Double Jeopardy
In Alabama, a judge can override a jury that spares a murderer from the death penalty.
BY PAIGE WILLIAMS
On an April night in 1997, when Shonelle Jackson was eighteen, he went out to a local club in Montgomery, Alabama. As he and several friends watched a d.j. perform, a young man called Cocomo—a gang member from across town—walked up behind him and slapped him in the head, then ran off. The next day, Jackson, who had no car, approached a known thief named Antonio Barnes and asked him to steal him a ride. Jackson wanted to find Cocomo and “holler at him.”
Barnes hot-wired a Buick LeSabre, and, with Jackson driving, they picked up Barnes’s friends Poochie Williams and Scooter Rudolph. All had been drinking or smoking weed, and they were armed: Jackson had a .380-calibre handgun, Barnes had a .357, Rudolph had a 9-millimetre, and Williams had a shotgun. Cocomo could not be found, but at around 11 P.M. a small-time drug dealer named Lefrick Moore rolled past in a red Chevrolet Caprice with a booming and clearly expensive stereo system.
Jackson followed the Caprice onto a service road, sped past, and cut it off, forcing it to a stop. Guns began firing. Moore sprang from the Caprice; he was hit once, in the chest, but he attempted to run away. His friend Gerard Burdette, who was in the passenger seat, headed in the opposite direction. “No need in you running now, motherfucker!” Jackson allegedly yelled while firing his weapon.
Burdette escaped, but Moore collapsed in the street and died. Jackson and Rudolph fled in the Buick. Williams and Barnes took the Caprice, ripped out its stereo, then ditched the car in a pasture on the edge of town. After Williams showed Barnes a .380 that he said he’d found in the Caprice, they stashed their weapons in the woods and walked home. The next morning, Barnes and Jackson went to strip the vehicle, but they were run off by a farmer who had come to the pasture to feed his hogs.
Investigators had little evidence to work with: the spent casing of a single Mag Tech .380 bullet, shattered automobile glass, the fatal projectile in Moore’s heart. But two days later Barnes turned himself in, giving a “full confession,” according to a detective’s sworn affidavit, and naming Williams, Rudolph, and Jackson as accomplices. The next day, Williams and Rudolph surrendered.
The three suspects in custody identified Jackson as the sole shooter. The police went looking for him at the apartment where his mother, Marilyn, lived with his two sisters, Wanda and LaQuanda. Jackson sometimes stopped by with food or money, but mostly he stayed at Trenholm Court, a housing project on the north side of town. He had grown up there and had been reluctant to leave after his mother was evicted and moved to the west side. (“The west side got Bloods—they wear red,” Wanda told me. “On the north side, the Crips, they do blue and black. Shon affiliated with the blue and socialized with the black.”)
Jackson had started “holding” for drug dealers at Trenholm at the age of twelve. He dropped out of school in the eighth grade, and spent a year in juvenile lockup after helping to assault and rob a guy who, he claimed, had beat up a friend’s sister. He was currently on probation for participating in a break-in at a pawnshop. On the street, he went by Wendell—his father’s middle name. Tall and solid, with round cheeks and a bright smile, he had a deep voice and kept his hair cut low; his left forearm bore an amateur tattoo of an “S,” which his father had inked, years earlier, with a needle and thread.
Marilyn consented to an apartment search. After investigators confiscated a box of .380-calibre Mag Tech ammunition from a bedroom closet, she called Jackson and urged him to talk to the police. Together they went to the station.
It was just after two o’clock in the afternoon, and his mother says that he had been smoking marijuana. At first, Jackson denied knowing Barnes, Williams, and Rudolph. Then a detective told him that his fingerprints had been found on a Dairy Queen cup in the stolen Buick. This was a lie, but it had its intended effect: Jackson eventually admitted that he had run Moore off the road. But, he added, “I ain’t kill no one.” His account of the incident is much different: he says that gunfire flew from all directions, including from Moore’s passenger, Burdette, who started shooting after Williams fired the shotgun into the air.
All four defendants were charged with capital murder—an intentional killing accompanied by another felony. In order to secure the death penalty, the state would have to prove that the defendants had intentionally killed Moore while robbing him.
Jackson went to trial first. He knew his co-defendants in passing, but hung out with a different crowd, and insisted that they had turned on him to save themselves. (After testifying against Jackson, all three pleaded guilty to lesser offenses, with the understanding that their lives would be spared.)
The prosecutors’ case rested overwhelmingly on the co-defendants’ story. Investigators could not definitively connect the spent casing to the fatal projectile, and the only link that prosecutors could establish between the casing and the ammunition confiscated at Marilyn’s apartment was the Mag Tech brand name. (The ammo box yielded no viable fingerprints; Jackson’s mother and sisters told me it had long been in the apartment and belonged to Jackson’s father, who had been in and out of jail for years.) The state’s ballistics expert eventually testified that the lethal bullet could have been fired from three types of gun present on the night of the crime: a .380, a .357, or a 9-millimetre. Hours after the shooting, the central eyewitness—Moore’s friend Burdette—told the police that multiple people had fired guns from the Buick.
The only other principal eyewitness not facing the death penalty was a truck driver who worked at a chicken-processing plant across the road from the crime scene. After the cars collided, he saw flashes of gunfire on the driver’s side of the Buick; he heard a boom and several pops. He had observed the quickly unfolding action from inside his truck, about sixty-five yards away, on the other side of a chain-link fence. It was late at night, and the street light nearest the crime scene was out.
The D.A.’s office, possibly foreseeing the difficulty of proving guilt beyond a reasonable doubt, offered Jackson a plea bargain: life in prison without the possibility of parole. With the death penalty on the table, he should have taken the deal. But Jackson declined.
At the time, the state carried out its death sentences with a century-old electric chair, Yellow Mama, so named because it was coated in the paint used to mark centerlines on highways. Alabama, which has since switched to lethal injection, condemns more people to death, per capita, than any other state. As Jackson went to trial, in February, 1998, nearly two hundred prisoners were awaiting execution.
The trial took place in the courtroom of William Gordon, a circuit judge in his mid-fifties who had been on the bench for two decades. Alabama elects its judges, and Gordon, a reserved and plainspoken Democrat, had spent most of his career running unopposed. He had presided over several noteworthy cases—in 1993, he banned the governor from flying the Confederate flag atop the capitol—and his colleagues told me that he was considered “brilliant” and “very fair, very scholarly.”
Testimony began on a Tuesday afternoon, and by Friday morning the trial was over. Jackson’s two court-appointed lawyers—general practitioners who had never served as lead counsel in a capital trial—called no expert witnesses and did little to exploit weaknesses in the state’s case. Burdette, the key eyewitness, had disappeared, as had a recording of his interview with the police. (Jackson’s lawyers, who never spoke to Burdette, presented the jury with only a transcript of his statement.) As is common in murder trials, Jackson did not testify—his lawyers advised against it. The defense failed to call any witnesses who might have attested to the possible motives of Jackson’s co-defendants in testifying against him. “Basically, nobody got up in his defense,” Monroe Clark, a letter carrier who served on the jury, told me. “And he didn’t get up on the stand and defend himself, so we never really knew what went down.” The jury accepted the co-defendants’ narrative and convicted Jackson of capital murder.
In a death-penalty trial, a conviction is followed immediately by the sentencing phase, in which the prosecution urges execution and the defense argues for life in prison without the possibility of parole. The state’s lawyers argued that Jackson should die, because he had shown that he could not “live in an orderly society.” Jackson’s attorneys called four witnesses; they were on and off the stand in minutes. His mother, Marilyn, told the jury, “Spare my son’s life. I love him. And he is my only son I have, and I need him.” Jackson’s father, Louis Taylor, testified that his son was guilty only of hanging out with “the wrong type” of people, adding that perhaps he was to blame for his son’s problems: “I wasn’t around as much as I should have been.”
Most states with the death penalty require a unanimous vote of twelve in order to impose capital punishment. Alabama requires ten. In this case, the jury unanimously rejected the state’s request to send Jackson to the electric chair. The jurors were reluctant to condemn a teen-ager to death, especially in a case with such conflicting evidence. “I had concerns about whether Shonelle Jackson was the shooter,” a juror named Jan Burkes later said, in a sworn deposition, adding, “Other jurors also had concerns about whether Mr. Jackson was responsible.”
Judge Gordon thanked the jurors and sent them home.
In Alabama, though, a capital case doesn’t necessarily end there. The state’s judges can exercise an unusual power: they can “override” a jury’s collective judgment and impose the death penalty unilaterally.
In the days after the jury rendered its verdict, Gordon began independent deliberations over whether Jackson should live or die. At his request, a state probation-and-parole officer prepared a “presentence” investigative report, which summarized the case in eight pages. The report included something that prosecutors had been prohibited from presenting at trial: Jackson’s juvenile record. He had been arrested yearly since the age of twelve, first for misdemeanors (joyriding on a tractor, trespassing), then for felonies (the assault, the pawnshop robbery). The jury had been allowed to factor only the robbery conviction into its deliberations, because that case had been handled in adult court and wasn’t sealed.
In the “Personal/Social History” section, the officer summed up Jackson’s life in two hundred and sixty-six words. (“It appears the only job he has ever had was working with his uncle in Millbrook, at Owens’ Body.”) The section reserved for a psychological assessment said, “None.” The presentence report didn’t mention that when Jackson was in juvenile lockup the state had found his I.Q. to be just above the threshold for mental retardation. Nor did the report include details about Jackson’s complicated childhood: Marilyn smoked marijuana while she was pregnant with him and used crack in his early youth; she sold the family’s food stamps, forcing Jackson to provide for his sisters; his parents often had physical fights and smoked crack together in the kitchen. Later, Marilyn got clean. But her son’s mental deficiencies were never addressed. (Wanda told me that her mother “wasn’t gonna get him tested.” As a girl, Marilyn had been enrolled in special-education classes, and Wanda believes that her mother didn’t want people thinking of her children as “slow.”)
The officer’s report noted that Jackson had already been given chances at redemption, including boot camp and probation. It failed to mention that Jackson had responded well to the structured environment of juvenile detention: Department of Youth Services caseworkers found that he needed to work on his “inconsistent behavior” but commended his “favorable response to treatment,” his “valuable” contributions in anger-management class, and his efforts to earn a G.E.D.
As Gordon assessed the report alongside case law and the evidence presented at trial, he considered the mitigating and aggravating factors. Proof of mental instability, for instance, is a mitigating factor that may spare a defendant the death penalty; “especially heinous, atrocious, or cruel” violence is one of the ten aggravators encoded in Alabama law that may do the opposite. Instead of merely tallying the factors, jurors, and then the judge, weigh them against one another. Jackson’s jury had arrived at its unanimous vote to spare his life by finding that mitigating factors outweighed aggravating ones.
Capital-case judges aren’t officially allowed to add aggravating factors to the jury’s list, but they often do so obliquely, by rebutting claims of mitigating evidence with subjective assessments not prescribed by law. For instance, they may cite a defendant’s apparent lack of remorse. In one Alabama capital case, a jury found mental retardation to be a mitigating factor—the defendant’s I.Q. was sixty-five—but the judge dismissed this by suggesting that people can easily fake the condition. In his decision, he recalled reading that “gypsies intentionally test low on standard I.Q. tests.”
Four months after the jury’s verdict, Gordon drafted a sentencing order. He suggested that Jackson, in pleading not guilty, had refused to take responsibility for his actions. He observed that three of Jackson’s priors involved violent crimes, and that he was on probation—an aggravating factor—at the time of Moore’s death. Jackson’s voluntary statement to police was deemed a mitigating factor, as was his “truthfulness” with his mother and the fact that he was “no trouble at home.” Jackson had a girlfriend and a baby, and there were no reports of domestic violence; this was also considered mitigating. Gordon diminished the importance of Jackson’s youth, a mitigating factor by law, partly by commenting on his size: “At the time of the homicide, Jackson was 6 feet tall, weighed 175 pounds and was within 35 days of being 19 years old,” the Judge wrote, calling him “a physically mature adult.”
In a curious turn, Gordon twice acknowledged that Jackson might not be the killer. The passenger in the Caprice, Gerard Burdette, “did not identify anyone with a .380 automatic, and he did not specifically enumerate how many people fired shots,” he wrote. “He said he heard 4 to 5 shots . . . and because he said he saw 2 persons with weapons”—someone with a .357 and someone with a 9-millimetre—“it could be reasonably inferred that the one or both fired.”
The Judge went on, “According to Burdette, and the medical examiner’s opinion of the type of bullet that killed Moore, the person with the .38 or .357 would have fired the fatal shot. That person was Barnes, assuming the testimony can be reconciled, because the evidence from Barnes and Williams is that Barnes had a .357.” In a footnote, Gordon wrote that the evidence “suggests that Barnes, not Jackson, fired the shot that killed Moore.” He further acknowledged that the three co-defendants “had an interest in casting Jackson as the leader and prime culprit.” (Williams received a sentence of life imprisonment. Rudolph will be eligible for parole in September, 2015, and Barnes in December, 2017. None of them responded to my attempts to speak with them.)
Gordon’s reasoning plainly contradicted itself. Even so, he determined that the aggravating factors outweighed even the ambiguity about who fired the fatal shot. Setting aside the jury’s unanimous vote, the Judge ordered that Jackson be put to death.
The Jacksons learned of Gordon’s override from Marilyn’s sister, Thelma Owens, who had heard it from a co-worker, who had heard it on the radio. They called Ben Bruner, the lead defense attorney, who hadn’t heard about the ruling; he rushed to the county jail, but by the time he arrived his client had already been given the news.
A good capital-defense lawyer establishes a close, mutually informative relationship with the defendant and his family, but Bruner and the Jacksons had no such bond: the first time the Jacksons met their lawyer was at the courthouse, as the trial began. The family felt blindsided by the death sentence because they had never been told that, in Alabama, a judge could override a jury. Jackson was vaguely aware of the override provision, but his lawyers had said not to worry about it—the state’s initial plea offer had suggested to them that the death penalty was off the table.
On July 2, 1998, a week after the Judge released his death order, Jackson returned to the courtroom for the formal sentencing. The jury box was now empty.
“Mr. Jackson have anything to say in this case why sentence of law should not be imposed against him?” Gordon asked.
Standing before the court, Jackson choked up. “Your Honor, I’m very sorry for what happened,” he said. “And what happened I know shouldn’t have happened. And, Your Honor, it wasn’t planned like that at all. . . . Your Honor, I don’t want to die. Let me live, please, Your Honor. I don’t want to die.”
The Judge was not swayed. As Gordon condemned him to death, Jackson struggled to absorb what was happening. “My mother and them crying—I started zoning out when I seen my folks crying,” he told me recently. “I didn’t really comprehend. But I knew it was something bad.”
Judicial override first entered the American legal system in the nineteen-seventies, and was conceived as a way of guardingagainst the overuse of the death penalty. In 1972, in Furman v. Georgia, the Supreme Court struck down the state’s death-penalty law, because it was “so wantonly and so freakishly imposed.” Racial disparities were especially at issue and remain so: in some states, black defendants are about four times more likely than whites to be sentenced to death; the odds are even greater when the victim was white. The Furman ruling effectively invalidated death-penalty statutes, and executions stopped nationwide.
States were allowed to rewrite their death-penalty laws. To satisfy the Supreme Court’s concerns about arbitrariness, Florida’s new version shifted final sentencing authority from jurors to judges—the jury’s sentence became merely an advisory verdict. Florida’s judges were not afforded complete discretion, though; they had to give a jury’s recommendation “great weight” and could exercise override only when the justification for a death sentence was “so clear and convincing that virtually no reasonable person could differ.” Satisfied with these and other changes, the Supreme Court, in 1976, found the statutes in Florida, Texas, and Georgia constitutional. Today, thirty-two states sanction capital punishment.
Alabama modelled a new death-penalty statute on Florida’s and adopted it in 1981, but without the “great weight” and “clear and convincing” safeguards. Alabama required only that a judge “consider” the jury’s sentencing verdict. A jury’s life-without-parole vote—even a unanimous one—was given no statutory standing. As Gordon noted in Shonelle Jackson’s death order, “Neither the Alabama Death Act nor Alabama case authority informs the trial court how it is to consider the advisory verdict.”
According to a 1994 paper in the Alabama Law Review by Katheryn Russell-Brown, a University of Florida law professor, the state’s law putatively offered the “perfect combination of jury and judge input: the jury represents the community’s conscience and the judge represents legal balance and wisdom.” But, in adopting no statutory standards for override, Alabama constructed a legal “façade” that “allows the judge to operate without adequate checks and balances.” Russell-Brown, one of many scholars who have expressed concerns about override, wrote that the state’s approach would probably “leave capital jurors skeptical at best about the value of their time, effort, and energy.”
During jury selection in the Jackson case, a man in the candidate pool asked, “Suppose the jury votes against the death penalty. Can the court overrule that?”
“It can,” Judge Gordon replied. “But that should not be a consideration in your vote.”
“Why do we go through this exercise, then?”
“Because the legislature passed the law, and I’m here to enforce it,” Gordon said, adding, “It’s not a good answer, but it’s the best answer I can give you.”
Currently, Florida and Delaware are the only other states with override, but their judges use the provision very sparingly, and when they do it’s almost always to convert death sentences to life. Nobody in Delaware is on death row because of override, and it has been fifteen years since a Florida judge has exercised override to impose the death penalty. In thirty-one of the past thirty-two years, Alabama’s judges have condemned someone to death through override at least once.
Nearly seventy Alabama judges have single-handedly ordered an inmate’s execution, and collectively they have done so more than a hundred times. Thirty-six of the nearly two hundred convicts on death row are there because of override.
The potential for error in death-penalty cases is known to be so great—according to the National Academy of Sciences, one in twenty-five defendants in America will likely be wrongly convicted—that capital punishment is declining nationwide. Since the late nineties, the number of executions has dropped by about half. Alabama, meanwhile, has executed twelve men in the past four years, three of them through override.
Certain Alabama judges have exercised override repeatedly. The late Ferrill McRae, of Mobile County, used the provision six times. McRae was one of nine local circuit judges but “presided over thirty per cent of the capital cases because he assigned a large number to himself,” according to a 1995 Boston University Law Review paper by Stephen Bright, an Atlanta-based human-rights attorney. Another Mobile County judge, Braxton Kittrell, Jr., who had exercised override five times, was called Max Brax.
Override execution orders have been carried out ten times so far. Among those put to death was Robert Lee Tarver, Jr., a black man accused of shooting a white convenience-store owner, Hugh Kite, in 1984. Tarver was convicted largely on the testimony of his co-defendant, who pleaded guilty to lesser charges and received a sentence of twenty-five years. Tarver appealed the judge’s override on the grounds of racial bias and incompetent counsel—his lawyer had never tried a murder case and was a friend of the victim. The appeal failed despite an affidavit from the prosecutor admitting that he had illegally struck qualified black people from the jury (a longtime problem in Alabama). In April, 2000, Tarver went to the electric chair, maintaining his innocence until the end. In “Race to Execution,” a PBS documentary about the case, a relative of Tarver’s said of the Kite family, “I’m sure they grieved for their loved one. But I would want to make doggone sure you got the right man.”
The State of Alabama has not always had the right man. In 1987, Walter McMillian, a black pulpwood worker, was accused of killing Ronda Morrison, a white eighteen-year-old dry-cleaning clerk, in Monroeville. The judge, Robert E. Lee Key, Jr., had McMillian await trial on death row, as if a death sentence were a foregone conclusion, and relocated the trial from a county that was forty per cent black to an overwhelmingly white one. The trial lasted a day and a half. Twelve defense witnesses swore that McMillian was at home on the day of the crime, hosting a fish fry. There was no physical evidence. Nevertheless, the jury found McMillian guilty based on the testimony of three state’s witnesses, two of whom reported seeing McMillian’s truck at the dry cleaner’s around the time that Morrison was strangled and shot. The jury recommended life in prison. In overriding this decision, Judge Key remarked that McMillian deserved to be executed for the “brutal killing of a young lady in the first full flower of adulthood.” The Judge’s confidence was misplaced—McMillian was exonerated after his appellate lawyers discovered that prosecutors had withheld evidence and that the state’s star witnesses had lied. By the time McMillian was set free, in 1993, he had spent six years on death row.
More than twenty override decisions have involved white defendants, but in some of these cases, too, the judge’s reasoning has had a racial subtext. In 2000, a judge ordering the death of a white defendant noted that if he hadn’t overridden the jury he’d have “sentenced three black people to death and no white people.” The comment has been interpreted as an attempt to cover up racial disparities in the death penalty. Race is “a real consideration here,” Douglas Johnstone, a retired Alabama Supreme Court justice, told me. Some judges, he said, “want to make sure they put enough white people to death to hang on to the prerogative” of override.
The U.S. Supreme Court has considered the constitutionality of override several times. In Spaziano v. Florida, a 1984 case that upheld the provision, Justice Harry Blackmun declared that the Supreme Court was not about to establish “any one right way for a state to set up its capital sentencing scheme.” (Ten years later, Blackmun announced his opposition to the death penalty, calling it “fraught with arbitrariness, discrimination, caprice, and mistake.”)
In 1995, the Court addressed how heavily an Alabama judge should weigh a jury’s sentencing verdict. The override case in question involved Louise Harris, a woman with a lifelong history of trauma and abuse, who had hired someone to kill her husband. In an 8–1 decision, the Court declined to require Alabama to adopt Florida’s “great weight” standard. Such a ruling would constitute “micromanagement,” Justice Sandra Day O’Connor wrote. In capital cases, she declared, the Court “trusts the judge” to level the correct punishment. (The opinion validated the viewpoint of override proponents, who have argued that judges possess experience, expertise, and a dispassionate approach that jurors may lack.) The lone dissenter was Justice John Paul Stevens. Override, he observed, allowed a prosecutor “who loses before the jury” to get “a second, fresh opportunity to secure a death sentence,” in some cases by presenting “the judge with exactly the same evidence and arguments that the jury rejected.” He wrote, “A scheme that we assumed would ‘provide capital defendants with more, rather than less, judicial protection’ has perversely developed into a procedure” in which a “defendant’s life is twice put in jeopardy.”
Death-row inmates have challenged override through the Fifth Amendment (double jeopardy), the Sixth (right to a jury), the Eighth (cruel and unusual punishment), and the Fourteenth (equal protection). All such efforts have failed. In Ring v. Arizona, a 2002 case involving the killing of an armored-car guard, the Court held that only a jury can decide if there are aggravating circumstances that warrant the death penalty. By stripping judges of the power to add aggravating factors, Ring seemed to open a new path to challenging overrides, since they largely happen when a judge recalculates a jury’s evaluation of mitigating and aggravating circumstances. But since then the Supreme Court has not addressed the issue directly, other than to declare that Ring was not retroactive.
Last November, the Court had an opportunity to revisit Alabama’s override provision, through the appeal of a death-row inmate named Mario Woodward. In 2006, he shot and killed a Montgomery police officer during a traffic stop. Woodward had previously served six years in prison for killing his girlfriend. In the case involving the police officer, the jury voted 8–4 for life imprisonment, in part because Woodward’s childhood was marked by abuse. Judge Truman Hobbs, Jr., overrode the recommendation, citing access to information during the sentencing phase that the jury had not heard.
Woodward mounted an appeal, but the Court declined to hear the case. Justices rarely issue opinions when rejecting a petition for writ of certiorari, but this time Sonia Sotomayor and Stephen Breyer did. Sotomayor, pointing out that the prevalence of override in Alabama may be due to politics, wrote that giving unilateral death-sentence power to judges who are seated through partisan elections “casts a cloud of illegitimacy over the criminal justice system.” Noting that the Court had not examined Alabama’s death scheme in eighteen years, she argued that it was time for “a fresh look.”
After Shonelle Jackson learned that he would be executed, he filed jailhouse motions asking for a new trial and new counsel. The lawyer appointed to the case was Bryan Stevenson, the founder and director of the Equal Justice Initiative, a nonprofit organization in Montgomery that represents indigent defendants facing the death penalty. E.J.I. has won dozens of retrials, death-sentence reversals, and exonerations, including Walter McMillian’s. In that case, Stevenson uncovered the prosecutor’s pressure tactics simply by listening to the flip side of a police interrogation tape.
Stevenson is the nation’s most prominent opponent of override. Much of what is known about override originated with studies conducted by E.J.I. Stevenson, a Delaware native, moved to Montgomery three decades ago, not long after graduating from Harvard Law School. In 1995, he was awarded a MacArthur “genius” grant for his defense work. Every autumn, he commutes weekly to New York to teach at N.Y.U.; his students discover that in Alabama’s capital-justice system virtually all defendants are black and poor, and virtually all administrators—including all nineteen appellate judges—are white. Stevenson, a lanky fifty-four-year-old who keeps his hair shaved like a Buddhist monk’s, is one of the few African-American lawyers a criminal defendant in Alabama might meet.
Stevenson considers override to be the most pressing death-penalty issue. In his new book, “Just Mercy,” he argues that “judge overrides are an incredibly potent political tool.” One morning this spring, he told me, “Override introduces such arbitrariness into a death-penalty system that’s already flawed by the arbitrariness of poverty and race and power and politics.” We were at E.J.I.’s headquarters, which is in a brick building on a rejuvenated block of downtown Montgomery, between a tapas bar and the Hank Williams Museum. Slaves once disembarked at the end of the street, on a broad bend in the Alabama River, to be marched into town and auctioned off at the public fountain.
Proponents of override argue that the provision insures that “the worst of the worst” will receive proper justice. But too often, Stevenson said, judges are “imposing the death penalty because the death penalty is good for your brand.” He went on, “If you’re a prosecutor or judge who has to run for reëlection, and you have to worry about your identity in the community—frankly, nothing says ‘tough on crime’ like the death penalty.”
Every six years, Alabama elects circuit judges (who hear capital cases) and members of the Alabama Court of Criminal Appeals and the Alabama Supreme Court. Judicial overrides tend to spike in and around election years. According to a 2011 study by E.J.I., thirty per cent of the state’s death sentences in 2008, an election year, were imposed through override, compared with seven per cent the previous year.
Most overrides are upheld. Douglas Johnstone, the retired Alabama Supreme Court justice, told me that judges on the Alabama Court of Criminal Appeals tend to “know, or think, that reversing a criminal case is a way to throw away votes.” He said, “Affirming a verdict is a way to stay down in the foxhole and not get your head shot off.”
Shonelle Jackson was sentenced to death in the summer of 1998, an election year. Bruner, his lead attorney, told me he assumed that Judge Gordon exercised override because “he was planning to run for something else.” In fact, Gordon decided to retire.
An ex-prosecutor named Tracy McCooey ran for his seat. That fall, as judicial-campaign ads appeared throughout Alabama, a TV spot for McCooey aired in Montgomery County, featuring her former boss, the longtime district attorney Ellen Brooks. The D.A., standing in a courtroom, before an American flag, told viewers, “Tracy McCooey and I tried hundreds of cases in courtrooms like this. Tracy won’t need to be taught.”
In a 1996 address to the American Bar Association, Justice Stevens said that a prospective judge’s “campaign promise to ‘be tough on crime’ or to ‘enforce the death penalty’ is evidence of bias that should disqualify a candidate from sitting in criminal cases.” But in Alabama pledging to be tough on crime is how judges get elected. Every election season for decades, television ads have shown aspiring judges posing with a hunting rifle or saying things like “I’ve looked killers in the eye and sentenced them to death.”
Alabama doesn’t cap campaign contributions, and its judicial-election spending leads the nation’s. According to a report by the nonprofit Justice at Stake and the Brennan Center for Justice, at N.Y.U., appellate-court candidates alone collected two hundred and six million dollars in campaign contributions between 2000 and 2009, more than double the amount raised in the previous decade. The study found that special-interest groups and political parties contribute through an “arcane maze” of PACs, making influence hard to trace.
Some transactions are less difficult to track, as I learned by reviewing the campaign-finance records of more than a hundred judges. The state allows lawyers to contribute money to the campaigns of judges who may preside over their cases, and they do so routinely. Randy McNeill, the prosecutor who asked Judge Gordon to sentence Shonelle Jackson to death, had contributed to Gordon’s campaign fund. McNeill, a deputy district attorney who some thought would make a good D.A., donated the money in April, 1991, with his wife, Margaret, who had clerked for Gordon. The McNeills gave fifty dollars, because Gordon, who was running unopposed, had personally capped contributions at that amount. McNeill told me that he supported Gordon politically because he was a mentor and “the most honorable man I’ve about ever known.”
The judges themselves often make donations to candidates who may be in a position to uphold their decisions: between 1993 and 2012, nearly forty judges who had practiced override donated money to candidates for the Alabama Court of Criminal Appeals, the Alabama Supreme Court, and attorney general. In 1993 and 1994, two years for which records are available, Judge Gordon contributed a total of three hundred and fifty dollars to two Alabama Supreme Court candidates. In 1999, he retired and became a private judge; he is sometimes appointed by the state to hear cases. Since then, he has contributed more than two thousand dollars to candidates for the Alabama Supreme Court, the Alabama Court of Criminal Appeals, and attorney general. He donated to the reëlection efforts of Ellen Brooks, the Montgomery County D.A., and gave two hundred dollars to McCooey, the judge who succeeded him. McCooey, who was reëlected several times and recently retired, told me that she returned any contributions she received while running unopposed, including Gordon’s. “Perception is everything,” she said. “The perception when you’re getting money is not good.”
The Alabama State Bar Association does not consider campaign contributions by judges and lawyers to be unethical. But Stevenson, of E.J.I., told me, “It clearly undermines the impartiality of the courts. A donor’s interest in supporting you is exactly what is implied: favorable treatment, more considerations, some accountability.” Justice O’Connor, since her retirement, has made similar warnings about an elected judiciary: in a speech last year, she said that electing judges fosters a public image of courtrooms governed by “politicians in robes.”
Every year since 2000, Hank Sanders, a Democratic state senator from Selma, has introduced legislation calling for death-penalty reforms and for the abolition of override in Alabama. In his view, the state’s capital system heavily skews the odds in the prosecution’s favor: the attorney general’s office has an entire litigation unit devoted to making the death penalty stick, but there is no statewide criminal-defense system. A poor defendant receives a court-appointed or contracted attorney who needs to have only five years’ experience in criminal-defense law; the American Bar Association recommends that a capital defense team consist of at least two “high quality” attorneys supported by investigators, as well as experts in such areas as mental health, forensics, and substance abuse. Stephen Bright, the Atlanta attorney, has said that it’s “unconscionable that a defendant facing serious criminal charges can get stuck with a tax or real-estate lawyer.” (Defendants may also get stuck with an unscrupulous attorney: a review of Alabama State Bar Association disciplinary records shows that a fifth of the lawyers whose clients have received the death penalty have been reprimanded, suspended, or disbarred.)
None of State Senator Sanders’s proposed reforms have been adopted. Cam Ward, a Republican state senator from Alabaster, told me, “This is a deeply red state—the death penalty’s still very popular.” He said, “I’m not a fan of all these anti-death-penalty bills, but if you’ve got a judge who’s in a hot election, and the jury returns a verdict of life without parole, and the judge overrides for the sole purpose of politics—I can see where that could happen.” Even judges who have exercised override have acknowledged the problem of outside pressure. Politics “has to have some impact, especially in high-profile cases,” Tommy Nail, a circuit judge in Birmingham, once said. “Let’s face it, we’re human beings.”
William Gordon, the judge in the Shonelle Jackson case, told me that he did his job without politics in mind: “That wasn’t the way I worked.” McNeill, the prosecutor—who has since left the D.A.’s office for private practice—told me, with some exasperation, that there “was no agenda” behind his campaign support of Gordon. He said, “Now, is there some case where agenda did, or could, come into play for some judge? Sure. But you’ve got that in every aspect of the law. We are a system of man. Man is fallible. The last perfect person to live on this earth, we nailed Him to a cross.”
In May of 2001, the Alabama Supreme Court found that Judge Gordon had exercised bad judgment at one point during Jackson’s trial. The defense had requested a hearing on the admissibility of Jackson’s police statement—the one that was elicited by lying to Jackson—and Gordon had refused to allow it. The case was remanded to Montgomery County—to what was now Judge McCooey’s court. McCooey held the hearing and ruled the statement admissible.
Jackson again appealed to the Alabama Supreme Court, whose nine justices included Douglas Johnstone. Formerly a Mobile County circuit judge, Johnstone had once overridden a jury in a case involving execution-style shootings during a robbery. It was the kind of gruesome crime cited by override proponents. Not long afterward, Johnstone ran for the Supreme Court. One of his campaign ads featured an image of a locked jail cell and footage of him, in robes, grimly assuring viewers that he had been “meting out the full measure of justice.”
Yet, in February, 2002, when the Alabama Supreme Court upheld Jackson’s conviction and death sentence, by a vote of 7–2, Johnstone was one of the dissenters. He wrote, “In assigning no weight nor binding effect to a life-imprisonment recommendation by a jury, Alabama law reduces to a sham the role of the jury in sentencing and allows baseless, disparate sentencing of defendants in capital cases.” The other dissenter was Justice Champ Lyons, who argued that override was wrong in a “close case like this one, where the evidence suggests a possibility that Jackson might not have fired the fatal shot.” Later that year, Jackson’s appeal reached the U.S. Supreme Court, which declined to hear the case.
Jackson soon sought a new trial or sentencing hearing through the next tier of Alabama’s capital appeals process. He filed a Rule 32 petition, which, under the Alabama Rules of Criminal Procedure, allows a defendant to return to the trial court and raise new issues of concern. In January, 2007, the case came back before McCooey.
Before being sworn in as a judge, McCooey prepared for the job by shadowing Gordon for a month. She noticed that Gordon wrote “draft after draft” of his orders. “He’s a very learned judge, extremely smart about the law,” she told me. “He’s a good person. . . . When he writes an opinion, he literally spends weeks and weeks researching, reading, writing. He does not take anything lightly.” In dismissing Jackson’s attempt to secure a retrial or a new sentence, McCooey explained that her decision was informed by her discomfort with “second-guessing” Judge Gordon. She told the courtroom, “I’m not going to go in back of what Judge Gordon did, because I know what kind of judge he was and I know the kind of decisions he makes.” In essentially upholding the override, McCooey declared, “That man would not have made that decision unless he had good grounds to make it.”
During the next several years, Jackson’s case moved through the appeals system, based on claims about juror misconduct, incompetent trial counsel, and discovery. In 2009, the eyewitness Gerard Burdette died, in a drug-related shooting. Ultimately, all appeals to the state failed. At one point, an appeals court argued that the jury’s 12–0 verdict against the death penalty proved the competence of Jackson’s lawyers.
In October, 2013, Jackson and his legal team began appealing through the federal courts. He petitioned for a writ of habeas corpus, which allows a defendant to argue that a state judgment violated federal or constitutional law. This past May, a federal magistrate recommended denying the petition. The case, which is now before a district-court judge, may one day come before the Eleventh Circuit of the U.S. Court of Appeals, in Atlanta. Its chief judge is Ed Carnes, whom the National Law Journal once called “the premier death-penalty advocate in the country.” Carnes, who has tried to restrict death-row inmates’ access to federal appeals, once ran Alabama’s capital litigation unit, and he wrote what later became the state’s death-penalty law.
If the Eleventh Circuit rejects Jackson’s appeals, he can once again petition the U.S. Supreme Court. There is also the possibility of clemency from Alabama’s governor. (The current governor, Robert J. Bentley, is a Republican who strongly supports the death penalty.) If Jackson’s sentence is carried out, he will be the first person to be executed despite a jury’s unanimous vote for life.
“I don’t like judicial override,” Douglas Johnstone told me one afternoon in May. “I think it’s a bad thing, but it’s the law, and since it’s the law even a judge who doesn’t like it may have to use it.” He said, “My criterion was that if my observation of the jury and my knowledge of the facts of the case satisfied me that the jury had failed to do its duty, then I would override.”
Johnstone and I were on the splintery dock of his home, on a river south of Mobile. Silver-haired and in his early seventies, he had on jeans, sandals, and a T-shirt. We walked up to his house—tin roof, open windows, stacks of Audubonand The American Scholar—and he brewed two mugs of Irish breakfast tea. As we sat in Adirondack chairs overlooking the water, he said, “To me, it’s perfectly absurd that a jury’s recommendation of life without parole isn’t even a factor—the jury is wasting its time.”
He went on, “Why have we become a nation that’s just obsessed with punishment? The reason is that we’ve become a fearful nation. The people that were once free and brave are so afraid of something bad happening to them. They’re attracted to politicians who say, ‘I will be tough on crime.’ And if a politician promises to be tough on crime he’s got to have something to show for it.”
Johnstone seemed surprised to hear that Gordon was the trial judge in the Jackson case.
“Kiwi did the override?” he said. Gordon picked up the nickname Kiwi in 1959, while enrolled at an Alabama military academy. (“You went through a week of hazing, and everybody got a nickname,” Gordon told me. “They named me for shoe polish.”)
Johnstone and Gordon serve on a task force charged with rewriting jury instructions in plain language. “I had observed over the years that Kiwi is a real judge, and a good judge,” Johnstone later told me, in an e-mail. “By ‘good judge,’ I mean that he is so smart and so scholarly that he consistently gets the facts, the law, and therefore the judgment itself, right.”
One night in January, 1982, on the north side of Montgomery, a sanitation worker named Paul Edward Murry tried to sell marijuana to two plainclothes vice detectives. The officers, Tony Burks and Mary McCord, attempted to arrest him, and, during a scuffle with Burks, Murry fired a pistol several times. A bullet struck McCord in the chest. Murry got hold of Burks’s gun and shot him in the back.
McCord died, becoming the first female police officer in Alabama to be killed in the line of duty. Immediately after the shooting, and again during the trial, Murry insisted that he had thought Burks and McCord were robbers.
The case came before Judge Gordon. The jury voted, 11–1, to sentence Murry to life without parole. Gordon overrode the jury and sentenced Murry to death, arguing that the defendant’s drug use and dealing, and his tendency to gamble, had helped to make him “not a person of good character.”
The Alabama Supreme Court overturned the sentence, by a vote of 6–3, finding that Gordon had failed to tell the jury that the crime could be raised to the capital level only if Murry knew that McCord was a cop. The reversal prompted about two hundred law-enforcement officers from across Alabama to protest outside the state capitol.
Gordon imposed the death penalty a second time. An appeals court remanded the case because the Judge had written a relatively short and opaque sentencing order. Alabama appellate judges had a history of signing off on cursory overrides, but in this case the court demanded elaboration: Gordon had to be explicit about the aggravating and mitigating factors.
The Judge provided a more detailed account of his reasoning. He listed Murry’s lack of a significant criminal record as a mitigating factor. He also noted that Murry had performed “kind acts” for his family and neighbors, including caring for his invalid mother, and that he had adjusted well to prison, where he had learned to read and write. The Judge then resentenced Murry to life without parole.
Gordon told me that when the Supreme Court rejected his override he had asked himself, “What did I miss? Was my judgment bad?” He went on, “You read what experienced judges have to say, and their criticisms, and you take those things to mind and make a decision.”
Now in his seventies, Gordon is white-haired and compact, with the ruddy complexion of an outdoorsman. (He hunts deer.) Since leaving the bench, he has worked as a private civil judge and a mediator. We met in the corner office that he rents in a bank tower in downtown Montgomery. His tidy desk held a glass gavel.
It has been sixteen years since he ordered the death of Shonelle Jackson, and he told me that he could not fully recall his reasoning. “Whatever I put into that sentencing order is what I thought about,” he said, adding, “I made the best decision I could. Somewhere down the line, if somebody says I was wrong, then you can accept that.” I asked how much pause the jury’s unanimous recommendation for life had given him. “I don’t know that I could quantify it for you,” he answered. Why had he factored Jackson’s juvenile record into the decision when prosecutors had been barred from using it at trial? “As I wrestled with this case, I researched, and there was this case from Florida that dealt with a juvenile record and sentence,” he said. “My recollection is I looked at it and thought it was appropriate to rely on.” At one point, he said, “What you’re trying to get at is what happened here,” and tapped his head. “And I can’t answer that.”
In a later conversation, the Judge told me that his position on override is to “let the jury decide.” He said, “If you’re going to have the jury system, you’ve got to put all your faith in it.”
Then why had he lacked faith in the Jackson jury? And why had he overridden the jury despite his explicit acknowledgment that Jackson might not be the killer?
“I’m not going to go beyond what I wrote,” he said. “That was a long time ago.”
Gordon told me he left the bench, in part, because adjudicating criminal cases for twenty-two years had exhausted him. Jackson’s case was “not the worst case I ever had,” he said. He then mentioned one in which three men drove around Montgomery, randomly shooting people with an assault rifle, including a woman whose brains had been “blown out.” The Judge said, “People do some terrible things.”
He went on, “People talk about being hard on crime. O.K.—are you willing to pay the price? Are you willing to construct the prisons? Staff the prisons? Budget for food and medical care? You can’t put everybody in the penitentiary. You just can’t.” He looked away, shook his head, and said, “Sometimes you just have to put ’em down.”
The State of Alabama recently ran out of pentobarbital, one of the drugs used in lethal injection. Cam Ward, the state senator from Alabaster, once warned that the legislature’s failure to grant anonymity to the manufacturers of such drugs could result in the return of the electric chair. In September, the state tried to resume executions, turning to a new three-drug lethal cocktail used in Florida. Some death-row inmates are challenging the change in federal court.
Yellow Mama remains on standby at Holman Correctional Facility, in Atmore, fifty miles northeast of Mobile. Shonelle Jackson is incarcerated there. In a recent phone conversation, he said, “You talking about killing me for something you ain’t even sure that I did? That’s crazy.”
On May 30th, he turned thirty-six. He’s a bit heavier now, with glasses and more tattoos. He didn’t want to talk about his role in Moore’s killing. Instead, he spoke of his childhood: “I stole food first, because I hated going to ask the next-door neighbors do they have some bread—a boy like that be the laughingstock of the school the next day. It went from stealing one pack of bologna to two packs. I used to go from apartment to apartment, trying to steal perfume, sell it on the street. Me and my sisters go to Burger King and eat. That make you feel good, and special, to be able to do that for your sisters. I was eleven and twelve, doing that shit. By the time my mother did get clean, it was too late.”
Phone calls were timed, and Jackson had to keep calling me back. “I feel like everybody is born good, but at some point you get corrupted,” he said. “The solution is not just to kill the problem. But society don’t look at it like that.” A few minutes later, he had to hang up for good. ♦
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