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26 years on Death Row: Time to annul judicial override


He spent 26 years on Alabama's death row, confined in a 5-by-8 cell for more than 23 hours every day, waiting to meet his executioner, watching as more than 2 dozen of his neighbors were put to death. Phillip Tomlin is one of a small group of death row inmates who have been awaiting execution longer than anyone else in the country.


He's been there since 1978, back when Jimmy Carter was president. You may ask, why so many years on death row? The answer has to do primarily with a peculiarity of Alabama's criminal justice system. It's called judicial override. In this state, a trial judge has the unique ability to override a jury's verdict of life imprisonment without parole and sentence someone to death despite the jury's verdict for life. In Tomlin's case, since 1990 a series of judges in Mobile improperly exercised that power and imposed a death sentence despite the jury's verdict for life -- only to be told by the Alabama Supreme Court, many years later, that they had failed to properly consider the jury's decision.


 Note: This was not a divided jury. In Tomlin's case, all 12 jurors agreed, after finding him guilty of capital murder, that the right sentence was life imprisonment without parole. And yet, judge after judge in Mobile -- starting with Ferrill McRae, running through William McDermott and ending with Herman Thomas -- simply ignored the unanimous jury verdict and sentenced Tomlin to death. To make matters worse, the judges were not aware of any evidence the jury had not heard -- no new incriminating evidence of guilt or aggravating evidence. In fact, the only reason the judges overrode the jury's verdict -- namely, the fact that Tomlin's co-defendant had been sentenced to death -- had been improperly told to the jury by the prosecuting attorney. That was the reason Alabama appellate courts ordered a new trial for Tomlin in 1993.


The sentencing jury knew the only reason for the judicial override -- and unanimously rejected it. In most of our peer countries, 26 years on death row would be considered a form of torture. Judges in Britain -- our closest ally in the war on terrorism -- have held that 5 years on death row is cruel and unusual. Our other European allies are bound by a decision of the European Court of Human Rights, which prohibits such lengthy detentions on death row. And a number of other countries, ranging from India to South Africa and Zimbabwe, also recognize what is called the "Death Row phenomenon," the fact that such long stretches on death row may be torturous to the prisoner.


 Last October, the Alabama Supreme Court finally corrected Tomlin's case and ruled that the judicial override was improper. Monday, Tomlin was finally sentenced pursuant to the jury's unanimous jury verdict of life in prison without parole. There are several lessons here. The first is that Alabama should eliminate judicial override. The Legislature has considered doing just this. It is high time. Twelve citizens, sworn to uphold their civic obligation and fulfilling their duties as public citizens, are in a far better position to express the conscience of the community than judicial officers seeking re-election. The death penalty is too charged to put in the hands of electoral politics.


Second, it is time to declare that 26 years on death row is too long for a civilized nation. When our appellate courts order new trials for entirely legitimate reasons -- in this case, prosecutorial and juror misconduct, reasons that were beyond the control of Tomlin -- the courts should intervene to eliminate such prolonged detention on death row. It is extremely hard for Americans to preach human rights and human decency abroad when we engage in practices at home that are universally condemned abroad.


Just last week, our Department of State was forced to delay publishing its worldwide human rights report because of the terrible abuses that took place in U.S. prisons in Iraq. If we plan on being leaders in the area of human rights and democracy, we must start acting like leaders. [Bernard E. Harcourt is a law professor at the University of Chicago. He is the author of "Illusion of Order: The False Promise of Broken Windows Policing" and the editor of "Guns, Crime and Punishment in America." He has represented Phillip Tomlin since 1990


(source: Birmingham News, May 11)



Death sentence reversed State Supreme Court orders that Phillip Wayne Tomlin be resentenced to life without parole in 1977 slayings of teens 10/04/03



Staff Reporter


The Alabama Supreme Court on Friday overturned the long-standing death sentence of Phillip Wayne Tomlin, who helped murder two Mobile County teenagers in 1977 as part of a blood feud between two families. In its 8-0 opinion, the high court instructed the Alabama Court of Criminal Appeals to order Mobile County Circuit Judge Herman Thomas to resentence Tomlin to life in prison without parole. Tomlin, 49, has spent more than half his life on death row for the slayings of 19-year-old Richard Brune and 15-year-old Cheryl Moore, who were gunned down in Brune's car at the Theodore-Dawes exit off Interstate 10. The case, which shocked the area at the time, has languished in the courts for nearly 27 years as appellate judges have repeatedly found flaws in Tomlin's prosecution.


Tomlin was tried and convicted four times, most recently in 1999, of hiring John Ronald Daniels to kill Brune, who had shot and killed Tomlin's brother, a friend of Brune's, in 1975 in what investigators ruled was an accident. "I'm very upset about it," Cheryl Moore's father, Herbert E. Moore of Satsuma, said of Friday's ruling. "I had to go through four trials with that boy. That's 12, 24, 48 people convicted that boy of cold-blooded murder." Daniels died on death row of a heart attack in 1995. Thomas overrode a jury's 12-0 recommendation of life without parole for Tomlin, explaining later in a written ruling that death penalty guidelines required him to give the defendants equal punishment. "For our judicial system to say, under the circumstances of this case, that the hit man should be sentenced to death but that the hirer, the planner, the cold avenger and the co-executioner should be sentenced to life without parole is an aberration; a freak that cannot be allowed," Thomas wrote. In Friday's 16-page order, the supreme court ruled that Thomas should not have considered Daniels' sentence.


Justice Thomas A. Woodall, who authored the opinion, also cited an earlier supreme court ruling that concluded a 10-2 jury recommendation should be given strong consideration by the sentencing judge. "Therefore, it is only logical to conclude that a unanimous recommendation like the one here provides even more overwhelming support of such a sentence and, therefore, must be afforded great weight," Woodall wrote. In a concurring opinion, Justice Gorman Houston wrote that the jury's recommendation of life without parole was evidence that "mercy seasons justice," a quote from Shake speare's "The Merchant of Venice." "What this decision shows is respect for the jury," said University of Chicago law professor Bernard Harcourt, who got involved in Tomlin's case in 1990 while working at what is now the nonprofit Equal Justice Initiative of Alabama in Montgomery and helped defend him in the 1999 trial.


Thomas said late Friday that he had not seen the opinion and thus could not comment on it, but he would follow any directions given to him by a higher court. Assistant Attorney General Don Valeska, who prosecuted Tomlin in each trial, said the state likely would not appeal the justices' ruling. "It appears that there's very little chance that they would overturn their own order," he said. Tomlin's mother, Joyce Tomlin of Eight Mile, said she and her husband visited their son for a few hours Friday at Holman Prison near Atmore, and he might not be satisfied with the court's decision. "I've heard him say a lot of times he didn't want life without parole," she said. Harcourt said he would continue to pursue allegations of jury tampering that could result in yet another trial for Tomlin. Said Moore, "I lost my baby daughter on account of him, and I don't think he deserves to be breathing air. But it's not my decision. If it was, he'd done been a goner."



Court throws out death sentence in 25-year-old murder case

The Associated Press

10/3/2003, 5:41 p.m.



The Alabama Supreme Court has thrown out the death sentence of Phillip Wayne Tomlin in an almost 26-year-old murder case, saying a judge shouldn't have overruled the unanimous recommendation of a jury that Tomlin be sentenced to life in prison without parole. 


Tomlin has been tried four times for the murder-for-hire shooting deaths of Richard Brune and Cheryl Moore, whose bodies were found Jan. 2, 1977, on an Interstate 10 exit ramp in Mobile County.


His first two convictions were thrown out because of prosecutorial misconduct, and the third conviction because of juror misconduct.He appealed his fourth conviction partly on the basis of a U.S. Supreme Court ruling that overturned an Arizona death sentence because the sentencing decision was made by a judge and not a jury.


The Alabama Supreme Court has ruled that a trial judge must consider the recommendation of the jury as one factor in determining the final sentence.The judge in Tomlin's case sentenced him to death after the fourth trial, despite a unanimous jury recommendation after the third trial that he receive a sentence of life without parole. Attorneys in the fourth trial had agreed to use the jury's recommended sentence from the previous trial.


The Supreme Court, in an 8-0 ruling, said the judge did not give enough importance to the jury's unanimous recommendation. The court sent the case back to Mobile County Circuit Court with instructions that Tomlin be resentenced.



Supreme Court upholds death sentence despite jury override


The Associated Press

1/22/02 6:31 PM



 The Alabama Supreme Court on Friday upheld the death sentence given to a man convicted of killing his grandparents, even though the judge did not go along with the jury's recommended sentence of life in prison without parole. The Supreme Court also upheld the death sentence in a second case, where attorneys had argued that a Tuscaloosa County man's sentence violated a recent U.S. Supreme Court ruling that retarded individuals should not be executed.


The Alabama Supreme Court in September held a hearing on the case of Bobby Wayne Waldrop. The court wanted to consider whether his death sentence should be thrown out because of a U.S. Supreme Court ruling that overturned an Arizona death sentence because the sentencing decision was made by a judge and not a jury. Waldrop was convicted of robbing and stabbing his grandparents in Randolph County in 1998. Circuit Judge Dale Segrest sentenced Waldrop to death after the jury had recommended life in prison on a 10-2 vote.


The state Supreme Court ruled that Alabama's law is different from Arizona's law in that it gives jurors a greater role in determining the final sentencing decision. The court also found that the death of Waldrop's grandparents, who were stabbed numerous times, was particularly "heinous, atrocious and cruel" and that Segrest made the right decision. In another case, the state Supreme Court upheld the death sentence of Roy Edward Perkins, sentenced to die for the Aug. 9, 1990, abduction and killing of Cathy Gilliam in the Tuscaloosa County community of New Lexington. Perkins' attorneys argued that he is mentally retarded and should not be executed because of the recent U.S.


Supreme Court ruling. But the Alabama Supreme Court ruled that after a careful review of the case there was no evidence that Perkins was retarded. "The record indicates that Perkins earned a GED certificate while he has been in prison and has completed community college courses there," the ruling said. The ruling also encourages the Alabama Legislature to "develop procedures for determining whether a capital defendant is mentally retarded and thus ineligible for execution."


In a third death penalty case, the Alabama Court of Criminal Appeals on Friday upheld the death sentence given Phillip Wayne Tomlin for the 1977 murder-for-hire killing of two people in Mobile. Tomlin's appeal was also based on the U.S. Supreme Court decision in the Arizona case. But the appeals court ruled that there were aggravating circumstances in Tomlin's case that justified the judge's ruling.


Tomlin has been tried and sentenced to death four times in the 25 years since the crime occurred. The criminal appeals court also sent the death sentence of Darryl D. Turner, convicted of the 1995 robbery and slaying of a Limestone County woman, back to the circuit court with instructions that several factors used in determining the death sentence be reconsidered.


The appeals court asked the trial court judge to further explain his finding that the murder was "especially heinous, atrocious, or cruel as compared to other capital murders." The appeals court also said the trial court erred when it considered arrests, instead of only convictions, to determine an aggravating circumstance.



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