Petition for writ of mandamus 3-10-16ftpcontent4.worldnow.com/wbrc/docs/Petition.pdf · 501...
Transcript of Petition for writ of mandamus 3-10-16ftpcontent4.worldnow.com/wbrc/docs/Petition.pdf · 501...
NEWS ADVISORY
Luther Strange Alabama Attorney General
FOR IMMEDIATE RELEASE March 10, 2016
For More Information, contact:
Mike Lewis (334) 353-2199 Joy Patterson (334) 242-7491
Page 1 of 1
501 Washington Avenue Montgomery, AL 36104 (334) 242-7300
www.ago.alabama.gov
ATTORNEY GENERAL STRANGE ASKS ALABAMA APPEALS COURT TO
VACATE JEFFERSON COUNTY CIRCUIT COURT ORDER HOLDING ALABAMA’S
DEATH PENALTY SENTENCING TO BE UNCONSTITUTIONAL
(MONTGOMERY) – Attorney General Luther Strange announced the State of Alabama has
filed a petition for a writ of mandamus asking the Alabama Court of Criminal Appeals to order a
Jefferson County trial court to vacate its March 3, 2016, order declaring Alabama’s “capital
sentencing scheme” to be facially unconstitutional.
The State of Alabama’s March 10, 2016, filing with the Alabama Court of Criminal Appeals
notes the lower trial court has no power to prevent the state from seeking the death penalty in
capital murder cases.
“The trial court’s order ignores on-point precedent from the Supreme Court of the United States
and the Supreme Court of Alabama. The trial court does not have the power to prevent the State
of Alabama from seeking the death penalty when and if the defendant is convicted of capital
murder.”
The petition continues, “Although recent legal developments may call into question the
imposition of the death penalty under certain circumstances, the trial court’s order is
indefensible. It eliminates the State’s ability to seek the death penalty for four offenders. And it
does so as a facial matter before they have even been found guilty. To ensure that these and
other prosecutions can move forward in an orderly and equitable manner, the Court should grant
the petition for writ of mandamus and direct the trial court to vacate its order declaring
Alabama’s ‘capital sentencing scheme’ to be facially unconstitutional.”
--30--
A copy of the State’s filing is attached
No. __________
IN THE ALABAMA COURT OF CRIMINAL APPEALS
EX PARTE STATE OF ALABAMA
STATE OF ALABAMA
V. KENNETH EUGENE BILLUPS, STANLEY CHATMAN, TERRELL MCMULLIN, AND BENJAMIN ACTON
On Petition for Writ of Mandamus to the Circuit Court of Jefferson County, Birmingham
Division (CC-2005-001755, CC-2012-001194, CC-2012-001195, CC-2014-003011, CC-2014-003012, CC-2014-003015,
CC-2014-003016)
STATE’S PETITION FOR WRIT OF MANDAMUS
_____________________________________
LUTHER STRANGE Attorney General Andrew L. Brasher Solicitor General J. Clayton Crenshaw Thomas R. Govan, Jr. Assistant Attorneys General OFFICE OF THE ATTORNEY GENERAL501 Washington Avenue Montgomery, Alabama 36130-0152(334) 353-2609 (334) 242-4891 (fax) [email protected] Attorneys for Petitioner
E-Filed 03/10/2016 @ 10:11:42 AM Honorable D. Scott Mitchell Clerk Of The Court
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................... ii
INTRODUCTION .............................................. 1
BACKGROUND ................................................ 2
REASONS THE PETITION SHOULD BE GRANTED .................... 3
I. Alabama’s capital sentencing scheme is facially constitutional under the Sixth Amendment ............................................. 4
A. Ring and Hurst require the jury to find the existence of aggravating factors that make a defendant eligible for the death penalty .......................................... 6
B. The jury will find the aggravating factor that makes the defendants eligible for the death penalty ................................ 7
C. Neither Ring nor Hurst suggest that judicial sentencing is unconstitutional under the Sixth Amendment ....................... 11
II. None of the trial court’s other findings support its conclusion that Alabama’s capital sentencing scheme is facially unconstitutional ....... 13
A. The Eighth Amendment does not require jury sentencing in capital cases ................ 14
B. The underfunding and purported politicization of the courts is irrelevant ...................................... 17
III. Mandamus is the appropriate remedy ................... 18
CONCLUSION ............................................... 22
CERTIFICATE OF SERVICE ................................... 23
ii
TABLE OF AUTHORITIES
Cases
Apprendi v. New Jersey, 530 U.S. 466 (2000) ..................................... 6
Blystone v. Pennsylvania, 494 U.S. 299 (1990) .................................... 15
Brice v. State, 815 A.2d 314 (Del. 2003) ............................... 12
Bryant v. State, 951 So. 2d 732 (Ala. Crim. App. 2003) ................... 9
Commonwealth v. Roney, 866 A.2d 351 (Pa. 2005) ................................ 12
D.B.Y. v. State, 910 So. 2d 820 (Ala. Crim. App. 2005) .................. 19
Ex parte McNabb, 887 So. 2d 998 (Ala. 2004) ............................. 13
Ex parte Moore, 880 So. 2d 1131 (Ala. 2003) ............................ 20
Ex parte Nice, 407 So. 2d 874 (Ala. 1981) ............................. 19
Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2002) ...................... 8, 9, 20
Graham v. Florida, 560 U.S. 48 (2010) ..................................... 15
Harris v. Alabama, 513 U.S. 504 (1995) ................................ 14, 16
Higgs v. United States, 711 F.Supp.2d 479 (D. Md. 2010) ........................ 11
Hurst v. Florida, 136 S. Ct. 616 (2016) ............................. 2, 4, 7
iii
Lee v. Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172 (11th Cir. 2013) ...................... 9, 11
Lockhart v. State, 163 So. 3d 1088 (Ala. Crim. App. 2013), cert. denied 135 S. Ct. 1844 (2015) .......................... 17
Oken v. State, 835 A.2d 1105 (Md. 2003) ............................... 12
Ring v. Arizona, 536 U.S. 584 (2002) ........................... 4, 6, 7, 14
Ritchie v. State, 809 N.E.2d 258 (Ind. 2004) ............................. 12
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) .................................... 17
Scott v. State, 163 So. 3d 389 (Ala. Crim. App. 2012), cert. denied 135 S. Ct. 1844 (2015) .......................... 17
Sharifi v. State, 993 So. 2d 907 (Ala. Crim. App. 2008), cert. denied 129 S. Ct. 491 (2008) ........................... 17
Spaziano v. Florida, 468 U.S. 447 (1984) .................................... 16
State v. Blane, 985 So. 2d 384 (Ala. 2007) ............................. 19
State v. Fry, 126 P.3d 516 (N.M. 2005) ............................... 12
State v. Gales, 658 N.W.2d 604 (Neb. 2003) ............................. 12
United States v. Purkey, 428 F.3d 738 (8th Cir. 2005) ........................... 11
United States v. Sampson, 486 F.3d 13 (1st Cir. 2007) ............................ 11
iv
Walton v. Arizona, 497 U.S. 639 (1990) ..................................... 6
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) ................................. 18
Woodward v. State, 123 So. 3d 989 (Ala. Crim. App. 2011), cert. denied 134 S. Ct. 405 (2013) ........................... 17
Statutes
Ala. Code § 12-22-91 ..................................... 21
Ala. Code § 13A-5-40 .................................. 8, 10
Ala. Code § 13A-5-45 ................................... 8, 9
Ala. Code § 13A-5-47 ..................................... 16
Ala. Code § 13A-5-49 .................................. 8, 10
Ala. Code § 13A-5-50 ...................................... 9
Del. Code tit. 11, § 4209(d) ............................. 16
Fla. Stat. § 921.141 ..................................... 16
Mont. Code Ann. § 46-18-301 .............................. 16
Mont. Code Ann. § 46-18-305 .............................. 16
Other Authorities
Robert E. Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099 (1953) .......... 16
Steve Bousquet, Gov. Rick Scott signs new Florida death penalty law as legal challenges mount, Miami Herald (March 7, 2016) ........................... 16
1
INTRODUCTION
This petition presents extraordinary circumstances that
require an extraordinary writ. Based on dissenting opinions
and policy papers, the trial court purported to hold
Alabama’s “capital sentencing scheme” to be
unconstitutional. See Exhibit A. The trial court’s order
ignores on-point precedent from the Supreme Court of the
United States and the Supreme Court of Alabama. The trial
court does not have the power to prevent the State from
seeking the death penalty when and if a defendant is
convicted of capital murder.
Although recent legal developments may call into
question the imposition of the death penalty under certain
circumstances, the trial court’s order is indefensible. It
eliminates the State’s ability to seek the death penalty
for four offenders. And it does so as a facial matter
before they have even been found guilty. To ensure that
these and other prosecutions can move forward in an orderly
and equitable manner, the Court should grant the petition
for writ of mandamus and direct the trial court to vacate
its order declaring Alabama’s “capital sentencing scheme”
to be facially unconstitutional.
2
BACKGROUND
Very few facts are necessary for this Court to rule on
the petition.
In separate cases, Jefferson County grand juries
indicted Kenneth Billups, Stanley Chatman, Terrell
McMullin, and Benjamin Acton for various counts of capital
murder. Billups was indicted for one count of murder
during a robbery, see Exhibit C, Chatman for one count of
murder during a robbery and one count of killing two or
more persons during the same course of conduct, see Exhibit
D, McMullin for one count of murder during a robbery and
one count for killing two or more persons during the same
course of conduct, see Exhibit E, and Acton for one count
of murder during a robbery, see Exhibit F.
These four capital-murder cases were assigned to Judge
Tracie Todd. Although the cases were still at the pre-trial
stage, the defendants raised a hodgepodge of constitutional
arguments against the eventual imposition of the death
penalty. See Exhibits C, D, E, & F. Specifically, the
defendants argued that the death penalty could not be
imposed unless it was the recommendation of a unanimous
jury in light of Hurst v. Florida, 136 S. Ct. 616 (2016).
3
Judge Todd consolidated the four cases for the limited
purpose of adjudicating the defendants’ pre-trial
constitutional arguments. She held a consolidated hearing
on March 3. The hearing transcript is attached as Exhibit
B. At the end of the hearing, Judge Todd read from a
prepared order. She purported to decree “that the capital
sentencing scheme as provided by the Alabama Criminal Code
is unconstitutional and is this day barred from enactment
(sic).” Exhibit B at 81-82. Later that day, Judge Todd
entered a written order consistent with her oral order. See
Exhibit A.
REASONS THE PETITION SHOULD BE GRANTED
The trial court’s 28-page order is a jumble. It begins
with an indictment of the Alabama Judiciary for supposedly
succumbing to the “cancer of politics.” It then attacks the
Legislature for inadequately funding the Judiciary. But it
appears that the central holding of the order turns on the
Sixth Amendment. The trial court held that “[i]n light of
the ruling in Hurst, Alabama’s capital sentencing scheme”
is facially unconstitutional. Exhibit A at 26-27. See
also id. at 19 (citing defendant’s Hurst-related motion).
4
That is a manifestly incorrect reading of Hurst. And
none of the trial court’s other findings about politics or
funding support its conclusion that Alabama’s “capital
sentencing scheme” is facially unconstitutional. The State
has a clear legal right to prosecute these four defendants
for capital murder and to seek the death penalty if they
are convicted. The Court should grant the petition.
I. Alabama’s capital sentencing scheme is facially constitutional under the Sixth Amendment.
The trial court apparently believes that Alabama’s
death penalty sentencing procedures violate the Sixth
Amendment because they allow a judge to determine whether
to sentence someone who is convicted of capital murder to
either death or life without parole. The trial court’s
order relies on Ring v. Arizona, 536 U.S. 584 (2002) and
Hurst v. Florida, 136 S. Ct. 616 (2016). But the trial
court misunderstands Ring, Hurst, and the way that
Alabama’s capital sentencing statute works.
Part of the problem is that the order is not even based
on the Hurst opinion. Instead, all of the trial court’s
purported citations to Hurst are mistaken citations to the
unofficial syllabus of the opinion or to West’s headnotes
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to the opinion.1 For example, the trial court’s ultimate
conclusion about the death penalty is based on a mistaken
quote from a sentence in the opinion’s headnotes. See
Exhibit A at 26-27 (purporting to quote Hurst for the
proposition that a statute is unconstitutional if “‘an
advisory jury makes a recommendation to a judge, and the
judge makes critical findings needed for the imposition of
a death sentence’”). This sentence does not appear in the
Hurst opinion itself.
Had the trial court continued reading Hurst past the
unofficial syllabus and headnotes, the court would have
realized that there is no legitimate argument that Hurst
rendered Alabama’s capital sentencing statute to be
facially unconstitutional. Instead, under established U.S.
Supreme Court and Alabama Supreme Court precedents,
Alabama’s capital sentencing statute can be applied
consistent with the Sixth Amendment as long as the jury
makes critical factfindings in the guilt or penalty phase.
1 The syllabus and West’s headnotes, of course, “constitute[] no part of the opinion of the Court.” They are written by editors at Thomas Reuters, not Supreme Court justices.
6
A. Ring and Hurst require the jury to find the existence of aggravating factors that make a defendant eligible for the death penalty.
Ring holds that a jury must find the existence of the
facts that increase the range of punishment to include the
imposition of the death penalty. In Ring, the Supreme Court
applied the rule of Apprendi v. New Jersey, 530 U.S. 466
(2000), to death penalty cases. In so doing, it overruled
part of Walton v. Arizona, 497 U.S. 639 (1990). The Court
held that Arizona’s death penalty statute violated the
Sixth Amendment right to a jury trial “to the extent that
it allows a sentencing judge, sitting without a jury, to
find an aggravating circumstance necessary for imposition
of the death penalty.” Ring, 536 U.S. at 585. Thus, the
trial judge cannot make a finding of “any fact on which the
legislature conditions an increase in their maximum
punishment.” Id. at 589. Only the jury can.
Hurst did not add anything of substance to Ring. In
Hurst, the State of Florida prosecuted a defendant for
simple murder. Florida did not ask a jury to find the
existence of any aggravating circumstance at the guilt
phase. At the sentencing phase, the jury also did not find
the existence of any particular aggravating circumstance.
7
The judge, however, did find aggravating circumstances and
imposed a death sentence. Applying Ring, the Court held the
resulting death sentence unconstitutional because “the
judge alone [found] the existence of an aggravating
circumstance” that expanded the range of punishment to
include the death penalty. Hurst, 136 S. Ct. at 624.
B. The jury will find the aggravating factor that makes the defendants eligible for the death penalty.
Alabama’s sentencing practices comply with Ring and
differ from the procedures that Florida followed in Hurst.
As Justice Scalia explained in his concurrence in Ring,
“[w]hat today’s decision says is that the jury must find
the existence of the fact that an aggravating factor
existed.” 536 U.S. at 612 (Scalia, J., concurring). “Those
States that leave the ultimate life-or-death decision to
the judge may continue to do so -- by requiring a prior
jury finding of aggravating factor in the sentencing phase
or, more simply, by placing the aggravating-factor
determination (where it logically belongs anyway) in the
guilt phase.” Id. at 612–13 (Scalia, J., concurring).
In most cases, Alabama has chosen the second and most
“logical” option -- to secure a jury determination of
8
aggravating circumstances at the guilt phase. The elements
of capital murder in Alabama mostly track aggravating
circumstances. For example, one way the State can convict a
person of capital murder is to show that “two or more
persons [we]re murdered by the defendant by one act or
pursuant to one scheme or course of conduct.” Ala. Code §
13A-5-40(a)(10). This same showing is also an aggravating
factor for the purposes of sentencing. See Ala. Code §
13A-5-49(9). Alabama law expressly provides that “any
aggravating circumstance which the verdict convicting the
defendant establishes was proven beyond a reasonable doubt
at trial shall be considered as proven beyond a reasonable
doubt for purposes of the sentence hearing.” Ala. Code §
13A-5-45(e).
As long as the jury finds the existence of at least one
aggravating factor at the guilt phase, both the Supreme
Court of Alabama and the Eleventh Circuit Court of Appeals
have held that a resulting death sentence complies with
Ring. In Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2002), the
Supreme Court of Alabama addressed the effect of Ring on
the constitutionality of Alabama’s sentencing scheme.
There, the defendant had been convicted of two counts of
9
murder during the course of a robbery in the first degree,
in violation of Ala. Code §13A-5-40(a)(2). Id. at 1188.
The Supreme Court of Alabama explained that “[b]ecause the
jury convicted Waldrop of two counts of murder during a
robbery in the first degree . . . the statutory aggravating
circumstance of committing a capital offense while engaged
in the commission of a robbery, Ala. Code 1975, §13A-5-
49(4), was ‘proven beyond a reasonable doubt.’” Id.
(citing Ala. Code § 13A-5-45(e); Ala. Code § 13A-5-50)).
The court explained that “[o]nly one aggravating
circumstance must exist in order to impose a sentence of
death.” Id. (citing Ala. Code § 13A-5-45(f)). The court
reasoned that, because “the findings reflected in the
jury’s verdict alone exposed Waldrop to a range of
punishment that had as its maximum the death penalty,” the
State had done “all Ring and Apprendi require.” Id. The
Eleventh Circuit agreed with this reasoning in Lee v.
Commissioner, Alabama Department of Corrections, 726 F.3d
1172, 1197–98 (11th Cir. 2013).
This Court has applied Waldrop’s reasoning to affirm
countless capital sentences. E.g. Bryant v. State, 951 So.
2d 732, 751 (Ala. Crim. App. 2003). All of the defendants
10
affected by the trial court’s order have been charged with
capital murder in a way that the charge tracks aggravating
circumstances for purposes of sentencing. If a jury
unanimously convicts these defendants of capital murder
with embedded aggravating circumstances, then any death
sentence that may be imposed will be perfectly consistent
with Ring and Hurst. When a jury convicts Acton of capital
murder during the course of a robbery (Ala. Code § 13A-5-
40(a)(2)), the jury will necessarily find beyond a
reasonable doubt the existence of the corresponding
aggravating circumstance specified in section 13A-5-49(4).
Similarly, when a jury convicts McMullin of capital murder
during the course of a burglary (Ala. Code § 13A-5-
40(a)(4)), the jury will necessarily find beyond a
reasonable doubt the existence of the corresponding
aggravating circumstance specified in section 13A-5-49(4).
These findings will expose the defendants to a range of
punishment that has as its maximum the death penalty. That
is all that Ring and Hurst require.
11
C. Neither Ring nor Hurst suggest that judicial sentencing is unconstitutional under the Sixth Amendment.
The trial court erroneously implies that a judge’s
potential ability to override the jury’s advisory sentence
of life without parole necessarily violates the Sixth
Amendment. But the trial court confuses two separate
issues: (1) whether an aggravating circumstance exists and
(2) whether the aggravating circumstances outweigh the
mitigating circumstances. The first issue is a fact-finding
that may be submitted to a jury. The second is not a fact-
finding; it is a prudential determination that hundreds of
judges make every day in non-capital sentencing. Courts
have uniformly held that a judge may perform the “weighing”
of factors and arrive at an appropriate sentence without
violating the Sixth Amendment.2 Apprendi and Ring do not
2 Lee, 726 F.3d at 1198 (“Ring does not foreclose the ability of the trial judge to find the aggravating circumstances outweigh the mitigating circumstances.”); United States v. Sampson, 486 F.3d 13, 32 (1st Cir. 2007) (“As other courts have recognized, the requisite weighing constitutes a process, not a fact to be found.”); United States v. Purkey, 428 F.3d 738, 750 (8th Cir. 2005) (characterizing the weighing process as “the lens through which the jury must focus the facts that it has found” to reach its individualized determination); Higgs v. United States, 711 F.Supp.2d 479, 540 (D. Md. 2010) (“Whether the
12
require juries to impose capital sentences; they merely
require judges in capital cases to follow the same
sentencing principles that judges must follow in non-
capital cases.
aggravating factors presented by the prosecution outweigh the mitigating factors presented by the defense is a normative question rather than a factual one.”); State v. Fry, 126 P.3d 516, 534 (N.M. 2005) (“[T]he weighing of aggravating and mitigating circumstances is thus not a ‘fact that increases the penalty for a crime beyond the prescribed statutory maximum.’”); Commonwealth v. Roney, 866 A.2d 351, 360 (Pa. 2005) (“[B]ecause the weighing of the evidence is a function distinct from fact-finding, Apprendi does not apply here.”); Ritchie v. State, 809 N.E.2d 258, 266 (Ind. 2004) (“In Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994), we concluded, as a matter of state law, that ‘[t]he determination of the weight to be accorded the aggravating and mitigating circumstances is not a ‘fact’ which must be proved beyond a reasonable doubt but is a balancing process.' Apprendi and its progeny do not change this conclusion.”); Brice v. State, 815 A.2d 314, 322 (Del. 2003) (Ring does not apply to the weighing phase because weighing “does not increase the punishment.”); State v. Gales, 658 N.W.2d 604, 628–29 (Neb. 2003) (“[W]e do not read either Apprendi or Ring to require that the determination of mitigating circumstances, the balancing function, or proportionality review be undertaken by a jury”); Oken v. State, 835 A.2d 1105, 1158 (Md. 2003) (“the weighing process never was intended to be a component of a ‘fact finding’ process”).
13
* * *
Alabama’s “capital sentencing scheme” is not facially
unconstitutional under the Sixth Amendment. There may be
individual cases in which there is no corresponding
aggravator between the capital murder charge and the
capital sentencing statute. But that potential as-applied
procedural problem can be solved with special jury forms or
instructions that require a unanimous vote on one or more
aggravators. See, e.g., Ex parte McNabb, 887 So. 2d 998
(Ala. 2004) (death sentence constitutional because jury
instructed that it must unanimously find an aggravating
circumstance). In any event, that problem does not exist
with any of the defendants affected by the trial court’s
order. Each of these four cases fit squarely within the
framework that the Alabama Supreme Court addressed in Ex
parte Waldrop. The trial court’s order is manifestly
erroneous.
II. None of the trial court’s other findings support its conclusion that Alabama’s capital sentencing scheme is facially unconstitutional.
In addition to the Sixth Amendment, the trial court
suggests that other factors also work to make Alabama’s
capital sentencing scheme facially unconstitutional. To the
14
extent the trial court’s order rests on any of these
alternative grounds, it is also manifestly erroneous.
A. The Eighth Amendment does not require jury sentencing in capital cases.
The trial court suggests that the Eighth Amendment
forbids judges from pronouncing sentences in capital cases,
even though they can in non-capital cases. Only two
Supreme Court justices have been persuaded by this argument
over the last twenty years. See Ring, 536 U.S. at 615–16
(Breyer, J., concurring); Harris v. Alabama, 513 U.S. 504,
523 (1995) (Stevens, J., dissenting). To the extent the
trial court ruled on the basis of the Eighth Amendment,
that ruling is based on these dissenting opinions, which
are obviously not the law.
Instead, in Harris v. Alabama, the U.S. Supreme Court
specifically upheld the constitutionality of Alabama’s
sentencing statute against an Eighth Amendment argument.
The Court held that “[t]he Constitution permits the trial
judge, acting alone, to impose a capital sentence” and is
“not offended when a State further requires the sentencing
judge to consider a jury's recommendation and trusts the
judge to give it the proper weight.” Harris, 513 U.S. at
515.
15
The trial court appears to reason that Alabama law is
unconstitutional because it is has become an outlier since
Harris. This is wrong for three reasons.
First, the U.S. Supreme Court has held that the
practices of other states are irrelevant for the purposes
of judging death-penalty procedures. See Blystone v.
Pennsylvania, 494 U.S. 299, 309 (1990) (“The fact that
other States have enacted different forms of death penalty
statutes which also satisfy constitutional requirements
casts no doubt on Pennsylvania’s choice.”). The Supreme
Court’s Eighth Amendment jurisprudence invalidates the
imposition of certain sentences based on “the nature of the
offense” or “the characteristics of the offender.” Graham
v. Florida, 560 U.S. 48, 60 (2010). There is no Eighth
Amendment inquiry into procedural consensus among the
various states.
Second, there has been no change with respect to the
number of states that allow for judicial sentencing since
Harris. In 1953, Utah, New York and Delaware allowed a
judge to “impose the death sentence in spite of such a
[life without parole] recommendation if he so desire[d].”
Robert E. Knowlton, Problems of Jury Discretion in Capital
16
Cases, 101 U. Pa. L. Rev. 1099, 1133 (1953). In 1984, the
number remained at three, with Florida, Alabama, and
Indiana granting judges the final sentencing decision after
juries provided advisory recommendations. Spaziano v.
Florida, 468 U.S. 447, 464 n.9 (1984). By 1995, the year
Harris was decided, the list of judicial sentencing states
had grown to four with the return of Delaware. Harris, 513
U.S. at 516. At present, Montana gives sole sentencing
authority to a judge to weigh aggravating factors found by
the trier of fact. See Mont. Code Ann. §§ 46-18-301, 46-18-
305 (current through 2015). Three states -- Delaware,
Florida, and Alabama -- allow a judge to impose a sentence
regardless of a jury’s recommendation. See Ala. Code § 13A-
5-47; Fla. Stat. § 921.141;3 Del. Code tit. 11, § 4209(d).
Third, even if the trial court were correct to question
Harris, the U.S. Supreme Court has instructed lower courts
to follow its decisions until the Supreme Court itself
3 After the trial court’s ruling in this case, Florida amended its capital sentencing statute in light of Hurst. But the new law apparently tracks the “sentencing system used in one other state, Alabama.” Steve Bousquet, Gov. Rick Scott signs new Florida death penalty law as legal challenges mount, Miami Herald (March 7, 2016) http://www.miamiherald.com/news/politics-government/state-politics/article64556467.html.
17
overrules them. “If a precedent of this Court has direct
application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the [lower
courts] should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own
decisions.” Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989). The U.S. Supreme
Court has not overruled Harris; it did not even mention
Harris in Hurst. The trial court is bound to follow Harris.
The U.S. Supreme Court has consistently denied
certiorari on the question of whether the Eighth Amendment
requires judicial sentencing in capital cases.4 It even
denied certiorari on this question after it granted
certiorari in Hurst. The trial court’s order finds no
support in the Eighth Amendment.
B. The underfunding and purported politicization of the courts is irrelevant.
Most of the trial court’s order concerns issues that
are unrelated to capital sentencing. There is, no doubt, a
4 See Lockhart v. State, 163 So. 3d 1088 (Ala. Crim. App. 2013), cert. denied 135 S. Ct. 1844 (2015); Scott v. State, 163 So. 3d 389 (Ala. Crim. App. 2012), cert. denied 135 S. Ct. 1844 (2015); Woodward v. State, 123 So. 3d 989 (Ala. Crim. App. 2011), cert. denied 134 S. Ct. 405 (2013); Sharifi v. State, 993 So. 2d 907 (Ala. Crim. App. 2008), cert. denied 129 S. Ct. 491 (2008).
18
funding crisis in the courts. This underfunding may make
it difficult for trial judges to staff their courtrooms or
research constitutional issues. But it does not render
capital sentencing unconstitutional.
Similarly, the fact that Alabama elects its judges in
partisan elections has nothing to do with the imposition of
the death penalty. As the U.S. Supreme Court recently held,
“[t]he Constitution permits States to make a different
choice” about selecting judges than the federal system and
“most of them have done so.” Williams-Yulee v. Florida Bar,
135 S. Ct. 1656, 1662 (2015). “In 39 States, voters elect
trial or appellate judges at the polls.” Id. “The vast
majority of elected judges . . . serve with fairness and
honor.” Id. at 1667. There is no constitutional principle
that supports the trial court’s apparent conclusion that
elected judges may sentence criminals to life without
parole, but not death.
III. Mandamus is the appropriate remedy.
This Court has authority to issue such remedial and
original writs as are necessary to give it a general
superintendence and control of the circuit courts in
criminal matters, over which it has exclusive appellate
19
jurisdiction. Ex parte Nice, 407 So. 2d 874, 876 (Ala.
1981). “[M]andamus can be used by the government in aid of
its lawful rights in the prosecution of criminal cases.”
Id. at 879. Mandamus “is appropriate in exceptional
circumstances which amount to judicial usurpation of
power.” Id. at 878. Moreover, “mandamus can be used to
prevent a gross disruption in the administration of
criminal justice.” Id. at 879. Thus, when a trial court has
acted without lawful authority, this Court has properly
afforded the State mandamus relief. See, e.g., State v.
Blane, 985 So. 2d 384 (Ala. 2007) (directing circuit court
to vacate order expunging criminal record); D.B.Y. v.
State, 910 So. 2d 820 (Ala. Crim. App. 2005) (directing
trial court to reinstate juvenile’s probation and direct
that juvenile undergo sexual-offender risk assessment
before being released from probation).
The trial court’s order in this case reflects an
extraordinary disruption in criminal justice. The trial
court has barred the State from even seeking the death
penalty in four otherwise unrelated capital cases. Indeed,
the trial court’s order purports to declare capital
sentencing unconstitutional without limitation. To make
20
matters worse, that order is riddled with patently obvious
errors, up to and including the trial court’s accidental
citations to the syllabus and West head notes of the Hurst
opinion. Although trial judges have discretion in
sentencing, the trial court does not have the power to
prevent the State from even asking for the death penalty
when these four defendants are convicted of capital murder.
In fact, the trial court’s order is nothing less than a
declaration that it will not follow Alabama law or the
precedents of the Supreme Court of Alabama. Mandamus is
appropriate when there is “1) a clear legal right in the
petitioner to the order sought; 2) an imperative duty upon
the respondent to perform, accompanied by a refusal to do
so; 3) the lack of another adequate remedy; and 4) properly
invoked jurisdiction of the court.” Ex parte Moore, 880 So.
2d 1131, 1133 (Ala. 2003). Here, the State has a clear
legal right to seek the death penalty upon convicting any
of these four defendants of capital murder. And the Supreme
Court of Alabama has already approved the imposition of
death sentences under the exact same fact situation as in
these four cases. See Ex parte Waldrop, 859 So. 2d at 1188.
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The trial court had an imperative duty to follow Alabama
law and the precedents of the Supreme Court.
The State has no other adequate remedy. The law
provides that the State may appeal to the Supreme Court of
Alabama “[i]n all criminal cases when the act of the
Legislature under which the indictment or information is
preferred is held to be unconstitutional.” Ala. Code § 12-
22-91. But, by its terms, the trial court’s order does not
hold the capital murder statute unconstitutional -- only
the “capital sentencing scheme as provided by the Alabama
Criminal Code.” Exhibit A at 28.
Although the Alabama Code does not allow an appeal by
its terms, it supports the conclusion that mandamus is an
appropriate remedy for an order like the one below. The
Legislature intended for the State to be able to appeal
rulings against the constitutionality of statutes. But the
Legislature did not envision that trial judges would rule a
“sentencing scheme” to be unconstitutional as a facial
matter. Without mandamus, such important constitutional
rulings would never be subject to appellate review and the
constitutionality of state sentencing statutes would vary
from judicial circuit to judicial circuit. The trial
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court’s extraordinary order declaring Alabama’s capital
sentencing scheme unconstitutional in all its applications
deserves mandamus review.
CONCLUSION
The Court should GRANT the writ and VACATE the trial
court’s order.
Respectfully submitted, LUTHER STRANGE Attorney General
/s/Andrew L. Brasher ANDREW L. BRASHER Solicitor General J. Clayton Crenshaw
Thomas R. Govan, Jr. Assistant Attorneys General
ADDRESS OF COUNSEL: OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130-0152 Phone: (334) 353-2609 Fax: (334) 242-4891 Email: [email protected]
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CERTIFICATE OF SERVICE
I hereby certify that I have on this 10th day of March, 2016, served a copy of the foregoing on the following, by email and by placing same in the United States mail, postage pre-paid and addressed as follows:
Hon. Tracie Todd Circuit Judge, Tenth Judicial Circuit 801 Richard Arrington Jr. Blvd. N, Suite 605 Jefferson County Courthouse Birmingham, AL 35203 [email protected] [email protected] William R. Myers The Myers Firm, LLC 950 22nd Street North, Suite 622 Birmingham, AL 35203 [email protected] Emory Anthony, Jr. Attorney at Law 2015 1st Avenue North Birmingham, AL 35203 [email protected] Christopher L. Burrell The C. Burrell Law Group, LLC P.O. Box 1451 Birmingham, AL 35201 [email protected] Katheree Hughes, Jr. Attorney at Law 2017 2nd Avenue North, Suite 200 Birmingham, AL 35203 [email protected]
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Jacqueline O. Morrette 314 Main Street Trussville, AL 35173 [email protected] Wakisha E. Hazzard The Hazzard Law Firm, LLC 2107 5th Avenue North, Suite 401-A Birmingham, AL 35203 [email protected]
/s/Andrew L. Brasher
ANDREW L. BRASHER Solicitor General