Microsoft Word - Death Penalty Appeals Process booklet

Office of Alabama Attorney General Luther Strange

Office of Victim Assistance Contact Numbers

Local: 334-242-7342

Toll Free: 1-800-626-7676

501 Washington Avenue • Post Office Box 300152

Montgomery, Alabama 36130

For more information and Victim Resources,

Please visit the Victims Assistance section of our website.

http://www.ago.alabama.gov

Alabama’s Death Penalty

Appeals Process

A Guidebook provided by the

Office of the Attorney General of Alabama

TATE OF

LABAMA

FFICE OF THE

TTORNEY

ENERAL

UTHER STRANGE

ATTORNEY GENERAL

501 WASHINGTON AVENUE • PO BOX 300152

MONTGOMERY, AL 36130

(334) 242-7300

WWW.AGO.STATE.AL.US

This book is meant to guide you through Alabama’s death penalty appeals process. The

appeals process is a long and often complicated one. As your Attorney General, I am providing

you with this guidebook to help you understand the process better, to explain the three tiers of

appeal and to assure you my office will do everything we can to ensure justice prevails.

Capital murder cases can be some of the most difficult and complex to prosecute. The

task does not become easier on appeal. The appeals process moves at a much slower pace

than the trial court process. Many times it will take decades to reach a conclusion. The reasons

for this are as complex as the cases. With this booklet you will have the ability to track the

process as the appeals advance through the appellate courts.

The cases are assigned to the Capital Litigation Division in the Attorney General’s

office. The Capital Litigation Division is staffed with many of Alabama’s best attorneys. These

lawyers are assistant attorneys general. Justice will be well served by their expertise in this

special area of law. Additionally, my Victims Services Unit is staffed by qualified professional

victim advocates who are available to answer any questions you may have during this process.

Please call the Victims Services Unit at 1-800-626-7676 to register your contact information and

to let us know if you wish to be kept informed on your case. You may call any time you have

concerns or questions.

I hope you find this guidebook helpful. Do not hesitate to seek the assistance of my

office because we are here to serve you.

Sincerely,

Luther Strange

Attorney General

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TABLE OF CONTENTS

HOW A CAPITAL MURDER IS PROSECUTED ........................................................................... 4

PHASE ONE: THE TRIAL ............................................................................................................. 5

PHASE TWO: THE CAPITAL APPEALS PROCESS ................................................................... 5

TIER 1: THE DIRECT APPEAL ................................................................................................. 6

TIER 2: THE STATE POST-CONVICTION APPEAL or “RULE 32 APPEAL” .......................... 7

TIER3: FEDERAL HABEAS CORPUS PROCEEDINGS .......................................................... 8

UNITED STATES DISTRICT COURT ................................................................................... 8

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ......................... 8

UNITED STATES SUPREME COURT .................................................................................. 9

CLEMENCY ................................................................................................................................ 10

EXECUTION ............................................................................................................................... 10

AFTERWARD ............................................................................................................................. 10

GLOSSARY ................................................................................................................................ 11

NOTES ........................................................................................................................................ 13

Alabama Death Penalty Appeals Process - Page 3

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HOW A CAPITAL MURDER IS PROSECUTED

PHASE 1:

THE TRIAL PHASE

In the TRIAL Phase, the case of an individual charged

with Capital Murder by the State of Alabama is heard

(or tried) in an Alabama Circuit Court.

PHASE 2:

THE CAPITAL APPEAL PROCESS

The Capital Appeal Process has three tiers: The

Direct Appeal, The State Post-Conviction (or Rule 32)

Appeal, and the Federal Appeal.

TIER ONE:

THE DIRECT APPEAL

There are three (3) courts that an individual convicted

of Capital Murder may have review their conviction:

Alabama Court of Criminal Appeals; Alabama

Supreme Court and the United States Supreme

Court. The Alabama Court of Criminal Appeals

automatically hears the appeal, and the other two

courts may or may not choose to hear the appeal, if

they are petitioned by the defendant/appellant. (For a

detailed explanation of this tier, please see page 6.)

Alabama Court of Criminal Appeals

Alabama Supreme Court

United States Supreme Court

TIER TWO:

THE STATE POST-CONVICTION APPEAL

A defendant sentenced to death is entitled, under

Rule 32 of the Alabama Rules of Criminal Procedure,

to file a state post-conviction, or “Rule 32”, Appeal.

The courts which may be involved in this process are

the Alabama Circuit Court where the defendant was

convicted, Alabama Court of Criminal Appeals, the

Alabama Supreme Court, and the United States

Supreme Court. (For a detailed explanation of this

tier, please see page 7.)

Rule 32 Appeal

Alabama Court of Criminal Appeals

Alabama Supreme Court

United States Supreme Court

TIER THREE:

FEDERAL HABEAS CORPUS

After the state post-conviction appeal is completed,

the capital defendant may appeal to the United States

Federal Courts. These courts include the United

States District Court, the United States Court of

Appeals, the Eleventh Circuit, and the United States

Supreme Court.

The defendant must comply with strict federal time

requirements in order to appeal to the federal courts.

(For a detailed explanation of this tier, please see

page 8.)

United States District Court

United States Court of Appeals, Eleventh Circuit

United States Supreme Court

PHASE 3:

CLEMENCY

The Alabama Constitution gives the Governor the

authority to grant reprieves to persons sentenced to

death, and to commute a death sentence to a

sentence of life imprisonment. The Governor does not

have the power to grant a pardon or parole, or any

other form of clemency, to a condemned person.

EXECUTION

There can be more than one execution date set in

each case. Once a tier in the appellate process is

completed, an execution date may be set by the

Alabama Supreme Court. If the defendant files the

next appeal in a timely manner, the execution date

could be delayed (or “stayed”) by the court with

jurisdiction over the next appeal.

Alabama Death Penalty Appeals Process - Page 5

PHASE ONE: THE TRIAL

A capital murder prosecution begins when the grand jury hands down an indictment charging a

defendant with capital murder. The trial, which occurs in an Alabama Circuit Court, proceeds in

two phases.

During the first phase, called the GUILT / INNOCENCE PHASE, the jury must decide

whether the prosecution has proved beyond a reasonable doubt that the defendant is

guilty of capital murder.

If the jury finds the defendant guilty, the trial proceeds to the second phase, the

PUNISHMENT PHASE. In the punishment phase, the jury weighs the aggravating

circumstances of the case against any mitigating circumstances. The weighing of these

competing circumstances determines whether the jury recommends the defendant be

sentenced to death or to life imprisonment without parole.

After receiving the jury’s punishment recommendation, the trial judge holds a separate

sentencing hearing, goes through a similar weighing process, considers the jury’s

recommended sentence along with other factors, and imposes the death sentence or a

sentence to life imprisonment without parole. The trial judge may abide by the jury’s

recommended sentence, but is not required to do so.

PHASE TWO: THE CAPITAL APPEALS PROCESS

After a defendant is convicted of capital murder and sentenced to death, the APPEAL (or

APPELLATE) PROCESS begins. In Alabama, the Death Penalty “Capital Appeal” process

consists of three tiers. The Capital Litigation Division of the Office of Attorney General

represents the State of Alabama and the victim’s interests throughout the appellate process

before these courts.

In the first tier, called the DIRECT APPEAL, a capital defendant who has been sentenced

to death automatically has an appeal to the Alabama Court of Criminal Appeals, the

Alabama Supreme Court and the United States Supreme Court.

In the second tier, called the STATE POST-CONVICTION/RULE 32 APPEAL, the case

returns to the circuit court where the original trial was held for a review of issues not

appealable in a direct appeal. The trial court’s decision can then be appealed by the

capital defendant to the Alabama Court of Criminal Appeals, to the Alabama

Supreme Court, and to the United States Supreme Court. These appeals, however,

are not automatic.

In the third tier, the capital case is then appealed to the FEDERAL COURTS.

The following pages will give you further details and an explanation of the steps in the Appellate

Process. If, at any stage of the appeal, either the conviction or the sentence is reversed, a new

trial or a resentencing may be required.

The explanations on the following pages are based on the assumption that the

conviction and death sentence are affirmed at each stage of the process.

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TIER 1: THE DIRECT APPEAL

A defendant who is sentenced to death is entitled to an automatic appeal to the

ALABAMA COURT OF CRIMINAL APPEALS. At this point, the defendant is called “the

appellant.”

The record of the trial, including all of the papers filed in the trial court, the evidence presented

at trial, and the written record of all the trial testimony and arguments, is compiled and filed in

the Court of Criminal Appeals. The appellant’s attorney files a brief in which it is argued that

error occurred during the trial and the appellant’s conviction and/or death sentence should be

reversed.

The Capital Litigation Division of the Office of the Attorney General responds to the appellant’s

allegations in a brief filed on the behalf of the State. In most capital cases, there is an oral

argument before the Court of Criminal Appeals. These arguments are open to the public, but the

appellant is not present. Additionally, the families of the victim may attend the oral argument

but their presence is not required.

The Alabama Court of Criminal Appeals reviews the record on appeal, reviews the briefs,

considers the arguments of the lawyers, and issues an opinion that addresses each of the

appellant’s allegations of error. The court’s decision is not made at the oral argument, but at a

later date in the form of a written opinion.

The court affirms or reverses the conviction, the sentence, or both.

• If the Alabama Court of Criminal Appeals affirms the conviction and the sentence,

the defendant files a petition with the Alabama Supreme Court to hear the case. This is

not an automatic appeal. The Alabama Supreme Court chooses the cases it wishes to

hear, accepting some, rejecting others.

• If the Alabama Supreme Court does not hear the case, then the appellant may file a

petition in the United States Supreme Court. This is not an automatic appeal. The United

States Supreme Court chooses the cases it wishes to hear, accepting some, rejecting

others.

• If the Alabama Supreme Court does hear the case, then both sides file briefs, oral

arguments might be held, and the Alabama Supreme Court issues an opinion. If the

Alabama Supreme Court affirms the conviction and the sentence, the appellant may file

a petition asking the United States Supreme Court to review the case. This is not an

automatic appeal. The United States Supreme Court chooses the cases it wishes to

hear, accepting some, rejecting others.

The appellant, now called “the petitioner,” files the petition for a “writ of certiorari” (see

Glossary, pg. 12) in the United States Supreme Court in Washington, D.C., asking the

Court to review the case and arguing that federal constitutional rights were violated by

the trial court or the Alabama appellate courts.

• The Capital Litigation Division of the Office of the Attorney General again represents the

State at this level. The State usually files a “brief in opposition,” arguing there is no

reason for the United States Supreme Court to grant a writ of certiorari because the case

does not meet the requirements for review.

In the majority of cases, the United States Supreme Court refuses to hear the case and denies

the petition for a writ of certiorari. At this point, the defendant’s direct appeal is completed.

Alabama Death Penalty Appeals Process - Page 7

TIER 2: THE STATE POST-CONVICTION APPEAL

or “RULE 32 APPEAL”

A defendant sentenced to death is also entitled to seek an appeal under Rule 32 of the Alabama

Rules of Criminal Procedure. Under Rule 32, the defendant may not dispute the sentence or

conviction directly, but may dispute some important but collateral issues, such as whether the

trial counsel put on an effective defense. You will often hear lawyers refer to this additional

appeal as a “state post-conviction appeal,” a “Rule 32 appeal,” or an “error coram nobis” appeal

(see Glossary, pg. 12).

• An important limitation of this state post-conviction appeal is that issues raised at

trial or during the direct appeal, or which could have been raised at trial or on direct

appeal, are barred from review at this point and cannot be considered. A second or

successive state post-conviction appeal by the same defendant under Rule 32 is also

barred and cannot be considered.

• Most of the issues commonly raised at the post-conviction appeal stage involve

the allegations of ineffective assistance of the defense lawyers at the trial and direct

appeal stage. The Rule 32 appeal starts with the defendant, now called “the

petitioner,” submitting a petition for relief to the circuit court where the original

trial was held.

• The Capital Litigation Division and the District Attorney’s Office will represent the State,

writing a response to the petitioner’s request for relief.

• Often the circuit court judge will pare down the issues raised by the petitioner to those

not barred from review at this stage, and then hold an evidentiary hearing on those

issues.

• This hearing is open to the public and the petitioner will attend this hearing.

• After the hearing, the lawyers will submit briefs for the trial judge to consider, and the

judge will issue a written order, either denying the petition for relief or granting it. The

judge, in granting relief, could order a new trial, a new sentence hearing, or both.

• If the trial judge denies the petition, that decision may be appealed to the Alabama Court

of Criminal Appeals. Like the direct appeal, the “appellant” will submit a brief to the court,

and the Capital Litigation Division will submit a brief in response. The Court of Criminal

Appeals may order oral arguments, but usually renders an opinion without them.

Appeals to the Court of Criminal Appeals are not granted automatically, as they were on

direct appeal.

• The appellant may appeal the decision to the Alabama Supreme Court. If the Alabama

Supreme Court decides to hear the case (which is not automatic),the Court may uphold

the decision of the Court of Criminal Appeals. The appellant may then (as in direct

appeal) petition the United States Supreme Court for review on a writ of certiorari. As in

direct appeal, the majority of the petitions for review by the United States Supreme Court

are denied. If denied review by the United States Supreme Court, the state post-

conviction appeal is completed.

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TIER3: FEDERAL HABEAS CORPUS PROCEEDINGS

After the state post-conviction appeal is completed, the capital defendant may file an appeal in

the UNITED STATES FEDERAL COURTS. The defendant must comply with strict federal time

requirements in order to appeal to the federal courts.

UNITED STATES DISTRICT COURT

The first federal court to which the defendant may appeal is the United States District Court. In

Alabama, there are three district courts each serving particular counties. These districts include

the Northern District Court in Birmingham, the Middle District Court in Montgomery, and the

Southern District Court in Mobile. The case will be heard before a single federal district judge or

a federal magistrate from the district that the original trial was held.

In the petition filed in the United States District Court, the defendant, now called the

“petitioner,” argues that the conviction and/or sentence should be overturned because

the conviction was obtained in violation of the defendant’s federal constitutional rights.

In its answer, the State, represented by the Capital Litigation Division of the Office of the

Attorney General, responds to each of the allegations, arguing that relief should be denied and

the conviction and sentence upheld. The record of all the previous state court proceedings,

including the trial, direct appeal, and state post-conviction appeal, are filed in the United States

District Court.

• Sometimes, the district court holds a hearing to resolve some or all of the petitioner’s

allegations. These hearings are open to the public, and the petitioner will be present.

The court reviews the briefs of the lawyers, the records from all the state proceedings,

and the record of the federal hearing.

• The district court will then render an opinion, addressing each allegation of error in a

written decision.

• If the court denies relief, the petitioner may appeal the district court’s decision to the

United States Court of Appeals for the Eleventh Circuit.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

The United States Court of Appeals for the Eleventh Circuit is located in Atlanta, Georgia. This

Court hears federal cases from Alabama, Georgia, and Florida. Normally, a three judge panel

will hear any appeal granted by the United States Court of Appeals for the Eleventh Circuit,

although the entire court (with as many as nine or more judges) sitting together (called en banc)

may hear a case.

• The appellant files a brief alleging the district court was wrong to deny relief.

• The State, represented by the Capital Litigation Division, files a brief arguing that the

district court was correct to deny relief.

• The Court of Appeals will usually order an oral argument, which is open to the public.

The appellant will not be present.

• Afterwards, the Court of Appeals considers the briefs, the arguments of the lawyers, and

the record from the district court and issues a written opinion either affirming or reversing

the district court’s decision.

• If the Eleventh Circuit Court of Appeals affirms the district court’s decision, the appellant

may petition the United States Supreme Court to review the case.

Alabama Death Penalty Appeals Process - Page 9

UNITED STATES SUPREME COURT

At this point, the defendant, again called the ‘petitioner,” may file a petition for a writ of

certiorari in the United States Supreme Court in Washington, D.C., asking the Court to

review the case and arguing that the decision of the Eleventh Circuit Court of Appeals is

incorrect.

• The State, represented by the Attorney General’s Capital Litigation Division, files a brief

in opposition to the defendant’s brief arguing that the Eleventh Circuit’s decision is

correct and that there is no reason for the United States Supreme Court to review the

case.

• In most cases, the United States Supreme Court denies the petition for a writ of certiorari

with a short written order.

Page 10 - Alabama Death Penalty Appeals Process

CLEMENCY

The Alabama Constitution grants the Governor the authority to grant reprieves to persons

sentenced to death and to commute a death sentence to a sentence of life imprisonment. The

Governor does not have the power to grant a pardon or parole, or any other form of clemency,

to a condemned person.

If the Governor were to commute a death sentence to life imprisonment, that person would not

be eligible for parole until at least fifteen years of the life sentence had been served. A person

whose death sentence had been commuted to life imprisonment would not be eligible for a

pardon unless the Board of Pardons and Paroles was satisfied that evidence showed the

person was innocent of the crime, the board voted unanimously to grant a pardon, and the

governor concurred in and approved the granting of the pardon.

EXECUTION

There can be more than one execution date set in each case. Once a tier in the appellate

procedure is complete, the Alabama Supreme Court could set an execution date. If the

defendant files the next appeal in a timely manner, the Court before which this new appeal is

pending could then stay the execution date.

Once the appeals are exhausted, however, and the defendant has exercised all rights to appeal

with no relief, the Alabama Supreme Court sets an execution date no earlier than thirty days

from the date of the order.

It is your right as a surviving family member to request to view the execution at Holman Prison.

The Attorney General’s Office of Victim Assistance (AGOVA) will make arrangements with the

commissioner of the Alabama Department of Corrections and the warden of Holman Prison for

approval of a request for up to eight (8) members of the victim’s immediate family to attend the

execution. An AGOVA representative will accompany the family members to Holman Prison

should they choose to attend. The immediate family members who choose to attend the

execution must call AGOVA at 1-800-626-7676 or 334-242-7342 to make appropriate

arrangements in advance of the execution date.

AFTERWARD

Once the sentence of execution has been carried out, individuals may have diverse reactions.

Despite feeling relieved, closure, or that justice has been served, one can also feel very empty

and depressed. The execution may trigger new emotions, especially to members of the victim’s

family who may have been present to observe it. Ideally, you already have a support group with

whom you can share your feelings. If you do not, the Victims Assistance Office will be glad to

refer you to a grief counselor or a support group in your area.

Alabama Death Penalty Appeals Process - Page 11

GLOSSARY

Aggravating Circumstances: Those circumstances present in a capital murder, which make

the death penalty the more appropriate sentence. The jury and the judge must find at least one

aggravating circumstance before a death sentence can be considered as a punishment. The

Code of Alabama

specifies ten aggravating circumstances:

1. If the murder committed by a person under sentence of imprisonment;

2. If the defendant previously convicted of another capital offense or a felony involving the

use or threat of violence to the person;

3. If the defendant knowingly created a great risk of death to many persons;

4. If the murder was committed while defendant was committing or trying to commit,

helping commit, or fleeing after committing or trying to commit, a rape, robbery, burglary,

and/or kidnapping;

5. If the murder was committed to avoid or prevent a lawful arrest or while trying to escape

from custody;

6. If the murder was committed for money;

7. If the murder was committed to disrupt or hinder the lawful exercise of any government

function (such as a trial, or a session of the Legislature), or to disrupt or hinder the

enforcement of laws;

8. If the murder was especially heinous, atrocious, or cruel compared to other murders.

9. If the defendant intentionally caused the death of two or more persons by one act or

pursuant to one scheme or course of conduct; or

10. If the capital offense was one of a series of intentional killings committed by the

defendant.

Brief: A written document prepared by the lawyer arguing the case before the appellate court. It

contains a summary of the facts, the pertinent laws, and an argument of how the law applies to

the facts supporting the lawyer’s position.

Capital Litigation Division: The group of lawyers within the Office of the Attorney General

representing the State of Alabama in the appeal of all death penalty cases, and thus protecting

the interests of the victims’ families.

Capital Murder: Murder punishable by death or life imprisonment without parole. The Code of

Alabama limits this offense to murder under 18 specific circumstances, ranging from murder of a

child under the age of 14 to murder committed during the hijacking of an aircraft.

Commutation: The act of substituting a punishment (i.e. death penalty), with a lesser form of

punishment (i.e. life in prison). In Alabama, the governor can commute a death sentence to life

imprisonment.

Execution: In the law, an “execution” is carrying out some act to its completion. (You may hear

lawyers talking about “executing” a will or some other legal document.) In a capital case, an

execution is carrying out the sentence of death.

En banc: Literally, “full bench.” This refers to a court session where all the judges of the court

participate in the decision. The Circuit Courts of Appeal usually sit in panels of only a few

judges, but for important cases, all the judges may hear the case.

Page 12 - Alabama Death Penalty Appeals Process

Habeas Corpus: A writ of habeas corpus is an order from a court used to release a person from

unlawful imprisonment. In a capital murder appeal, the words refer to the appeal of a state

conviction in the federal court system. It is not technically an appeal of the defendant’s guilt or

innocence, but an appellate review to determine whether there were any constitutional rights

violated in the State’s conviction or sentencing of the defendant. The United States Constitution

guarantees this procedure.

Mitigating Circumstances: Those circumstances present in a capital murder, which make life

imprisonment without parole the more appropriate sentence. The Code of Alabama

states that

any part of a person’s character or record, or any of the circumstances surrounding the murder,

may be considered as mitigating. The Code

also specifies seven mitigating circumstances:

1. The defendant has no significant history of prior criminal activity;

2. The murder was committed while the defendant was under the influence of extreme

mental or emotional disturbance;

3. The victim was a participant in the defendant’s conduct, or consented to it;

4. The defendant was an accomplice in the murder committed by another and his

participation was relatively minor;

5. The defendant acted under extreme duress or under the strong domination of another

person;

6. The defendant’s ability to understand his conduct was a crime, or ability to act lawfully,

was greatly impaired (in other words, person was mentally ill, but not so ill as to be found

not guilty because of insanity);

7. The age of the defendant at the time of the murder.

Reprieve: Temporary relief from or postponement of the execution of a criminal punishment. It

does no more than postpone the execution for a time, and it is ordinarily an act of clemency

extended to a prisoner to afford an opportunity to pursue another relief from the sentence.

Stay: The act of stopping a judicial proceeding by the order of a court. A “stay” does not

reverse, annul, or undo what already had been done, but merely suspends the time required for

the performance of a particular act. Thus, when a court “stays” an execution, it merely suspends

the time in which the execution should have been carried out, until another appeal can be

considered.

Writ of Certiorari: An order by an appellate court that is used by that court when it has

discretion over whether to hear an appeal from a lower court. If the request or petition for the

writ is denied, the court refuses to hear the appeal and the lower court’s decision stands

unchanged. If the request is granted, the lower court is ordered to send the case up to the

higher court to hear the appeal. The United States Supreme Court grants a request for a writ of

certiorari review only when there are special and important reasons to hear the appeal.

Writ of Error Coram Nobis: In English common law (on which American law is based), a writ of

error coram nobis was a procedural tool used to bring a case back to the court which handed

down the verdict (coram nobis is Latin for “our court”) where, if certain facts had been known at

the time the verdict was rendered, the result would have been different. This specific procedure

has been replaced with the state post-conviction appeal process under Rule 32 of the Alabama

Rules of Criminal Procedure. ( You may still hear older lawyers and judges talking about “error

coram nobis” when they mean an appeal under Rule 32.)

Alabama Death Penalty Appeals Process - Page 13

NOTES

Office of Alabama Attorney General Luther Strange

Office of Victim Assistance Contact Numbers

Local: 334-242-7342

Toll Free: 1-800-626-7676

501 Washington Avenue • Post Office Box 300152

Montgomery, Alabama 36130

For more information and Victim Resources,

Please visit the Victims Assistance section of our website.

http://www.ago.alabama.gov