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) abrasher@ago.state.al.us 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

5  

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

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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: abrasher@ago.state.al.us

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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 tracie.todd@alacourt.gov cetonia.mccoy@alacourt.gov William R. Myers The Myers Firm, LLC 950 22nd Street North, Suite 622 Birmingham, AL 35203 williammyers@bellsouth.net Emory Anthony, Jr. Attorney at Law 2015 1st Avenue North Birmingham, AL 35203 bgemorye@aol.com Christopher L. Burrell The C. Burrell Law Group, LLC P.O. Box 1451 Birmingham, AL 35201 cb@cburrellgroup.com Katheree Hughes, Jr. Attorney at Law 2017 2nd Avenue North, Suite 200 Birmingham, AL 35203 katheree@aol.com

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Jacqueline O. Morrette 314 Main Street Trussville, AL 35173 lawyer.morrette@yahoo.com Wakisha E. Hazzard The Hazzard Law Firm, LLC 2107 5th Avenue North, Suite 401-A Birmingham, AL 35203 thehazzardlawfirm@gmail.com

/s/Andrew L. Brasher

ANDREW L. BRASHER Solicitor General