The Alabama Supreme Court last week overturned a longstanding Alabama statute that requires appellate courts to review “clear error” in death penalty cases. Pressure groups sharply criticized the verdict, fearing it could lead to the execution of those wrongly convicted.
Rule 45A of the Alabama Rules of Appellate Procedure previously mandated appellate courts to review possible violations of the constitutional rights of prisoners sentenced to death, even if those shortcomings have not been challenged or appealed to the court.
The new High Court order removes the mandatory plain error review procedure with immediate effect. The court was split 6-3, with Justices Greg Shaw, Kelli Wise and Tommy Bryan dissenting.
The Equal Justice Initiative wrote that mandatory plain error review was responsible for nearly 40% of all reversals in Alabama’s death penalty cases.
Judge Jay Mitchell wrote in a unanimous opinion that an appeals court takes hundreds of hours to review a mandatory simple error test, diverting resources from other non-death penalty appeals.
“Former Rule 45A thus imposed extraordinary costs on the appellate courts with no corresponding clear benefit,” Mitchell wrote.
The dissenting judges recognized the burden of simple error checking, but also felt that the seriousness of the judgment warranted thorough scrutiny.
“[I]In these cases, the lives of the defendants are at stake and I believe such cases merit increased scrutiny upon direct appeal,” Wise wrote in her dissent.
Alabama does not have a public defense attorney system, and ineffective attorney support in court is a “pervasive and systemic problem” in the state, the Alabama ACLU wrote in response to the order. Without rule 45A, some violations will not be reviewed – which could have serious consequences.
“Changing the Alabama Supreme Court’s rules of appeal is unnecessary, dangerous and will result in the execution of those wrongly convicted,” said Alison Mollman, senior legal counsel for the ACLU of Alabama.
EJI wrote that mandatory simple error checking is particularly important to address racial discrimination in jury selection, since prosecutors have routinely barred black potential jurors from serving on juries in capital cases.
The decision was made without input from the Alabama Appellate Rules Committee, EJI said, which normally investigates and evaluates possible rule changes before the court imposes them. EJI called the rule change “unprecedented, especially for a critical and longstanding appeal rule impacting the most serious of cases.”
The order came on the same day as another change to Alabama’s execution process, giving the governor the power to set the timeframe for executions, allowing them to be extended beyond midnight deadlines, which have halted the state’s last two execution attempts.
Evan Mealins is a justice reporter for the Montgomery Advertiser. Contact him at [email protected] or follow him on Twitter @EvanMealins.
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