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Last week, media provided heavy coverage to a 4-to-4 U.S. Supreme Court ruling which denied the State of Alabama’s request to lift a stay of Vernon Madison’s execution. Numerous outlets discussed how the Supreme Court’s outlook and decision-making have changed since Justice Scalia passed away in February. With the stay order issued by the Eleventh Circuit Court of Appeals still in place, Madison’s lawyers must file a brief by May 27 on questions pertaining to his competency to be executed. While that issue will now become the focal point of efforts to prevent or proceed with Madison’s execution, it’s also worth taking stock of the remarkable history of prosecutorial misconduct which resides just beneath the surface of the case.

Madison, an African-American man, was tried to verdict on three occasions for the killing of a white police officer named Julius Schulte. While the third trial forms the basis of the current litigation, two previous death verdicts were thrown out due to prosecutorial race discrimination in jury selection and the introduction of improper witness testimony. In both of those instances, the Alabama Court of Criminal Appeals reversed the conviction and granted Mr. Madison a new trial. And, while addressing the third trial, the Eleventh Circuit previously noted that “[t]he history of racial discrimination at the Mobile County District Attorney’s Office . . . is significant.”

Round One:

The first trial occurred in September of 1985, less than four months after a grand jury indicted Mr. Madison. On appeal, the Alabama Court of Criminal Appeals sent the case back to the trial court for a hearing to determine whether the prosecution had illegally discriminated against African-American jurors on the basis of race during jury selection. This remand came in light of the U.S. Supreme Court’s landmark decision in Batson v. Kentucky, which set up a framework for trial courts to use when deciding whether a party unlawfully used peremptory strikes to racially discriminate against prospective jurors.

The trial court appeared to do the bare minimum it believed was required in response to the appellate court’s order. The presiding judge—the notorious (now-deceased) Ferrill McRae—later became famous not only for his off-color racist and sexist commentary but also for overriding jury recommendations for life sentences in capital cases by imposing death more than any other judge in Alabama (six times!). In fact, McRae performed a judicial override in Madison’s final trial, turning a jury’s recommendation that Madison be sentenced to life into a death sentence.

On remand, McRae held a perfunctory hearing in which the trial prosecutor gave reasons for why he struck “all seven prospective black jurors from the venire in this cause.” After listing a range of reasons for the strikes—including assertions that some black jurors displayed inappropriate demeanor and others happened to live in areas where “folks don’t like the police”—McRae quickly concluded that the State had not engaged in racial discrimination. He then asked the Mobile County District Attorney, his buddy Chris Galanos, to draft an order denying the Batson relief that Madison sought. As McRae put it: “I see absolutely nothing wrong with it and I do not think Batson v. Kentucky applies. Therefore, Mr. Galanos, prepare an order for me to be sent to the Court of Criminal Appeals in compliance with their order.”

The Court of Criminal Appeals was neither impressed with the prosecutor’s “reasons” for striking all of the eligible African-American jurors nor the trial court’s management of the remand proceedings. The appellate court determined that the prosecutors had indeed discriminated against jurors on the basis of race: “The district attorney’s general assertion that he did not strike jurors on the basis of race, but on other reasons which appear to us to be superficial and show a lack of proper examination of such jurors leaves this court no alternative but to reverse and remand this cause for a new trial because of the explanations given by the district attorney.”

Round Two:

Thanks to its prejudicial approach to picking a jury, the State had to embark on another trial. Once again, it sought the death penalty. Once again, Judge McRae presided. And, once again, the jury convicted Madison and the State obtained a death sentence.

On appeal, defense lawyers argued that the prosecution had elicited expert testimony that violated the strictures of state law. Specifically, a rebuttal expert named Dr. Harry Albert McClaren challenged the defense’s claim that Madison was mentally ill at the time of the crime. Relying on a vast amount of information that the State never put into evidence, Dr. McClaren shared his opinion that “at the time of the shooting, the appellant did not have a psychosis, could appreciate the criminality of his conduct, and could conform his conduct to the requirements of the law.” The Court of Criminal Appeals catalogued the information upon which the expert relied but the State never introduced at trial:

After reviewing the record, we find that the following information, upon which Dr. McClaren relied in arriving at his opinion of the appellant’s mental condition, was not introduced into evidence: the information received from Mary McCord, the mother of the appellant’s child; the information received from Cheryl Greene, his girlfriend; the information received from Lieutenant Boone, who arrested the appellant and took a statement from him; the information received from the chief jailer and from his assistant concerning the appellant’s conduct while incarcerated in the Mobile jail; a memorandum or statement from Paul Bivins, a state psychologist who had observed the appellant weekly for five years at Holman prison, portions of the “police file”; records from “the Atmore, Alabama vicinity,” presumably the same as those referred to as from Holman prison; a taped statement made by the appellant to the police shortly after he was arrested for the commission of the crime; and “some transcripts of court proceedings.”

None of this underlying information was directly available to the jurors.

The Alabama Court of Criminal Appeals again reversed Mr. Madison’s conviction. It reached “[t]he inescapable conclusion [] that Dr. McClaren’s opinion was based substantially on information not available for the jury’s consideration, and thus, in accordance with the rule of evidence discussed above, his testimony was inadmissible.” The prosecution thus presented its evidence in a manner that made it impossible for Madison to “attack the truth or basis of each source’s opinion.” While the court described the error in terms of the expert’s testimony and the rules of evidence, it is clear that the prosecutors knew or should have known what was permissible and failed to ensure that its expert complied with the rules. Blame for the reversal belonged to the prosecution, not the witness.

Round Three:

The State took Mr. Madison to trial a third time. Once again, it sought the death penalty. Once again, Judge McRae presided. And, once again the jury convicted Madison. This time the jury recommended that Madison receive a life sentence rather than capital punishment by a vote of 8-4. Unfazed, Judge McRae overrode its decision and imposed the death sentence that the State hoped to effectuate when it filed its papers with the U.S. Supreme Court last week.

Given the prominent history of prosecutorial misconduct in this case, it is perhaps unsurprising that the third trial raised its own urgent questions. When the prosecutors had used peremptory challenges against six of the thirteen eligible prospective African-American jurors, the defense lawyers objected and argued that the State was again racially discriminating in violation of Batson and the Equal Protection Clause. The trial court denied the defense’s objection without requiring the prosecutor to explain why it had struck those particular jurors. In 2012, the Eleventh Circuit remanded the case because the trial court and the state appellate court had utilized the wrong legal test in deciding whether the State had to provide its reasons for excluding African-American jurors, noting Madison had established sufficient cause to “raise an inference of discrimination” on the part of the state.

The courts ultimately denied Batson relief, but it was a close call. When the case came back to the Eleventh Circuit after remand, the court observed that the Mobile County District Attorney’s Office had a “significant” history of discriminated racially in jury selection. In fact, “[i]n the eight years between the 1986 decision in Batson and Mr. Madison’s third trial in 1994, Alabama appellate courts had found Batson violations by the Mobile County District Attorney’s Office on seven different occasions, including once at Mr. Madison’s first trial.”

While the denial of the Batson claim may be legally defensible in light of the extremely light burden the doctrine puts on the party explaining its peremptory strikes, the history of the prosecution’s behavior in Mobile County jury selections and in Mr. Madison’s case in particular gives pause. Prosecutorial misconduct has left yet another deep imprint in Alabama’s death penalty.

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