The Equal Justice Initiative [EJI] has been fighting to save Jerry Smith’s life for many years now.   Mr Smith was convicted of capital murder and sentenced to death in 1998. Remarkably on 3rd June 2016 his death sentence was overturned for the fourth time and he now faces a fifth sentencing hearing.  The history of this case indicates an extraordinary lax attitude on the part of the State courts towards due process and basic fairness in a criminal justice system where the stakes could not be higher.

Alabama is one of only three states in the Union [the others are Delaware and Florida] where the jury merely makes a recommendation as to the appropriate sentence, which is then decided by the judge.  The concept of “judicial override” was overturned by the Supreme Court in Hurst v Florida 577 U.S. ___ (2016) in January of this year.  That in turn raises serious doubts about the Alabama death sentencing scheme which is likely to become a further complication in this case.

Mr Smith’s original death sentence was reversed by the Alabama Supreme Court because the trial court improperly excluded mitigating evidence from the jury’s consideration.  A second sentencing hearing was ordered.   By this time Smith had new attorneys from EJI.  The purpose of the punishment hearing was to decide whether Smith deserved the death penalty or whether he would be sentenced to life imprisonment.   During jury selection it became apparent to the defence attorneys that members of the family of one of the victims had been sitting outside the court talking with the jury panel and that the mother of one of the victims had been saying “he killed my son” and “he needs to die.”   When the venire panel entered the courtroom the family members came in with them and again sat with them unchallenged.  At one point a family member again said aloud “he needs to die. He took my son’s life.”  The prosecutor who obviously knew the family members from the previous proceedings had said nothing before the matter was raised in jury selection.  The State argued that no prejudice had been caused and the motion for a mistrial was rejected by the trial judge.  Five of the jury members selected had heard the prejudicial comments. Following a third death sentence, the judge’s ruling was upheld in the Court of Criminal Appeals who also considered that no prejudice had been caused.   Happily the Supreme Court of Alabama was not so sanguine and in October 2010 allowed Smith’s appeal.

A third penalty phase proceeding before a jury begun in January 2012,  This too ended in another death sentence for Mr Smith.  However because, on this occasion, the judge allowed the prosecution to rely on an aggravating factor that did not exist at the time of the offence this sentence was also overturned by the Court of Criminal Appeals.

In September 2014 Alabama tried again, for a fourth time.   It may be that on this occasion the court had in mind the unfortunate opportunity for interaction  between the jury panel and the general public that had caused the second penalty phase proceedings to be rendered null and void. However the court’s remedy for this was to exclude the public from the entire jury selection process.  Unlike in the UK where jury selection usually only takes a few moments jury selection in a capital case can last for days and includes individual cross-examination of prospective jurors to assess their suitability to serve on a capital jury.

After all the previous trouble you might have thought that on this occasion the court would have taken careful note of the objections made by Smith’s attorneys.  Amongst other things they pointed out that the judge was thereby excluding members of Mr Smith’s own family as well as the press.  Since the Sixth Amendment to the US Constitution explicitly requires “a public trial”, readers can probably see which way this was going to turn out.   Once jury selection had been completed the public were admitted to the court for the remainder of the hearing.  As before, the jury recommended a sentence of death by 10 votes to 2 [another aspect of the death penalty scheme that operates only in Delaware and Florida – in all other states a unanimous jury decision is required] and the court duly obliged.

It was this decision that was overturned on 3rd June this year.  In Presley v Georgia 558 U.S. 209 (2010) the US Supreme Court held that the Sixth Amendment right to public trial included the jury selection process. It was therefore not a hard task for the Court of Criminal Appeals to conclude that yet again Mr Smith’s death sentence was unconstitutionally obtained and had to be overturned.

Other important issues arise in Mr Smith’s case but have not so far been addressed.   The original trial jury was all-white, as so regularly happens in the deep South.   Mr Smith’s lawyers have raised this as an issue arguing that the prosecutor unconstitutionally eliminated potential black jurors.  A second important issue relates to whether Mr Smith is mentally competent to be executed due to his intellectual disability .  His lawyers from EJI raised this issue as long ago as 2008 when they  presented evidence that he was placed in special education classes.  There is evidence from a number of experts, including one working for the State, who have determined that he is intellectually disabled with an I.Q. of 67 and he cannot read or write.

As if that was not quite enough to raise serious doubts about whether Mr Smith has received his constitutional right to due process, the fallout from Hurst v Florida means that Alabama will also have to confront the question whether its death penalty statute remains constitutional and if not how it proposes to remedy that situation.  All in all, quite a mess.