Will Alabama Governor grant commutations to those on death row as the result of judicial override?

Gov. Kay Ivey made sure Alabama abandoned the process — called judicial override — by signing a law on her first day in office in 2017. But the law applied only to new cases. It did not have any effect on those people sentenced to die under the practice prior to 2017, reported AL.com.

Now, nearly ten years later, Ivey could use her last days in office to move the remaining 25 people on death row to the actual sentences their juries wanted and voted for: life in prison without the possibility of parole.

“I hope the governor is using her last few months to think about how she can leave a legacy of criminal justice reform in this state,” said A’Niya Robinson, the director of policy and organizing for the ACLU of Alabama.

Ivey’s stance is unclear.

There is no doubt she leaves a mark on the criminal justice system in this state. Alabama is building a new mega prison in Elmore County, set to be finished this fall and costing well over a billion dollars. It will be named after her.

But her record is more complicated.

Ivey set a record among Alabama governors in the modern era by approving the most executions, 26. And Alabama was an innovator of execution methods under Ivey’s watch, performing the nation’s first execution by nitrogen in January 2024.

Yet, she stopped judicial override upon taking office. She ordered a halt to lethal injection executions for several months in 2022, after the Alabama Department of Corrections couldn’t get it right. While she resumed the practice, some were astonished she had even paused it at all.

And she has also spared the most people from execution among all modern governors, too. She commuted the sentences of two men slated to die, something that does not happen often in Alabama, earning sharp criticism from fellow Republicans in the Attorney General’s office. In one case, Ivey said she had too many questions about guilt to move forward with an execution. In the other, the governor said she couldn’t “proceed in good conscience” to approve the execution of a man who wasn’t the actual shooter in the case, while the shooter was serving a life sentence.

Ivey isn’t running again, and will leave the governor’s mansion in January when the state’s new governor, either Democrat Doug Jones or Republican Tommy Tuberville, is sworn in.

‘They didn’t need a jury’

One of the people whom a jury wished to live, but a judge sentenced to die, was Robin “Rocky” Myers.

Myers was on death row from 1994 until 2025, when Ivey commuted his sentence, sending him to life in prison instead of an execution chamber because she said she wasn’t sure he was guilty. Myers has always maintained his innocence in the killing of his Decatur neighbor.

Years after Myers was sent to death row, a juror began speaking out, too.

Mae Puckett told AL.com in 2023 that she didn’t know a judge could change the sentence that she and the other jurors handed down. To Puckett, a life sentence was a compromise: She and several other jurors had agreed, in a jury room stalemate, to convict the 30-year-old father if he could be sentenced to life.

“Those of us who thought he was innocent had very strong feelings about it... (but) we knew those guys weren’t going to change their mind,” she said. “We decided to vote him guilty… the best thing we thought we could do was spare his life.”

To find someone guilty of capital murder, all 12 jurors have to agree. The decision has to be unanimous. Then, if prosecutors are seeking the death penalty, there is a second hearing following the trial to decide if the person should be sent to death row.

After hearing the testimony, jurors go back to deliberate for the second time. But a death vote doesn’t have to be unanimous in Alabama.

A death sentence can be handed down only if 10 or more jurors vote for death. If the jury can’t reach that vote, they can consider a sentence of life without parole.

But prior to 2017, Alabama had a loophole. The jury’s sentence was, technically, just a recommendation. A judge could, for a litany of different and vague reasons, disregard the jury’s sentencing decision. While a judge could alternatively overturn a death vote and send a person to prison for life, it was almost always applied the other way.

That’s what happened in the Myers case.

Puckett said she had no idea the judge could change the outcome.

“I cried,” Puckett recalled. “It was a mix of anger and sympathy and remorse. I felt like I had just fed him to the wolves when we tried so hard not to do that.”

According to information gathered by the Equal Justice Initiative, Alabama judges changed a jury’s sentencing verdict 107 times from 1976 to 2011. And 98 of those changes increased the penalty from life to death.

Jeffery Lee is set to die by lethal injection later this month, even though that’s not what his jury voted for either. He was convicted of killing two people and injuring a third during a pawn shop robbery in Orrville in 1998. His jury, in a 7-5 vote, opted to send him to live out his days in prison.

One of the people who served on that jury wants Ivey to commute Lee’s sentence and send him to prison for life.

“I didn’t know that a judge could do that,” the juror said during a phone call with AL.com. “The system just did what it wanted to do, and it didn’t matter what the jury had decided.”

The woman, who didn’t want her name used for fear of retaliation, called the issue a systemic one and said she wants her verdict honored. “If the judge was going to make the final decision, why have a trial? That was a waste of time for everybody.”

“If it was a judge’s decision, they didn’t need a jury.”

Only in Alabama

The practice of judicial override had only been legal in a few states: Alabama, Delaware, Florida and Indiana. Indiana got rid of the practice in 2002. Delaware and Florida also abolished override and made it apply to older cases, and they never routinely executed people who were sentenced under the practice.

In 2017, Alabama was all alone. And in 2026, the state still is the only place carrying out executions that resulted from a judge’s single-handed decision, disregarding a jury verdict.

Starting in 2006, Alabama State Sen. Hank Sanders, D-Selma, introduced bills in the state legislature to outlaw the practice. They didn’t go anywhere.

“I had tried so many years because I felt that was extremely unfair,” Sanders told AL.com. “Because in effect, they were taking away the right to trial by jury.”

“There’s a unique unfairness about that.”

Eventually, Republican Sen. Dick Brewbaker took interest in the topic. Sanders said he was surprised, and glad, to have his support. Instead of co-sponsoring the bill with Brewbaker, Sanders dropped his name from the bill so it would have a better chance of passing under a Republican sponsor.

It worked.

The bill passed a vote of 78-19 and in April 2017, on her first day in the office, Ivey signed into law a ban on judicial override.

The law had a caveat: the ban on judicial override did not apply to those sentenced before 2017. Retroactivity wasn’t included in the bill, said Sanders, because it could have hurt the bill’s chances at passing.

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SCOTUS grants new trial to condemned man who spent 20 years on death row

The question in the case was whether defendant's lawyer had a meaningful chance to challenge the prosecutor’s stated reasons for striking Black jurors

A divided Supreme Court sided with a Black death row inmate from Mississippi who accused the white prosecutor in his case of intentionally and illegally striking potential Black jurors from the panel that heard his case, reported The New York Times.

Terry Pitchford was convicted in 2006 for his role in the murder of a shopkeeper by a 12-member jury that included only one Black member. At the time, the county where his trial took place was 40 percent Black.

In its 5-to-4 decision, the Supreme Court said Mr. Pitchford’s lawyer should have had an opportunity to challenge the prosecutor’s reasons for striking all but one potential Black juror, consistent with a 40-year-old landmark precedent barring race discrimination in jury selection. The decision means that Mr. Pitchford, 40, who has served on death row for more than two decades, is entitled to a new trial, his attorney said.

The dispute in Mr. Pitchford’s case involved the same prosecutor whose jury-selection practices were condemned by the Supreme Court in a separate decision in 2019 that drew considerable public attention.

In that case, the prosecutor Doug Evans spent decades trying to convict Curtis Flowers, a Black man, of the 1996 murders of four people inside a furniture store. During six trials, Mr. Evans repeatedly ensured Black people were excluded from juries. The case was featured on a season-long podcast, as well as in episodes of a documentary series. Mr. Flowers spent 23 years in prison until he was released in 2019 following the court’s decision. Charges against him were dropped the following year.

The question in Mr. Pitchford’s case was whether his lawyer had a meaningful chance to challenge the prosecutor’s stated reasons for striking Black jurors.

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In general, prosecutors have leeway to remove a certain number of potential jurors, by issuing challenges that are discretionary and cannot be second-guessed. Forty years ago, the Supreme Court carved out an exception in the case Batson v. Kentucky. Under that ruling, when lawyers are accused of discriminating based on race in jury selection, they must provide a different, race-neutral explanation for their actions.

In recent years, the Supreme Court’s conservative majority has turned away most appeals from death row inmates. But writing for the majority, Justice Brett M. Kavanaugh said the state judge had failed to provide Mr. Pitchford’s lawyer “sufficient opportunity” to dispute the prosecutor’s race-neutral reasons for striking four of five potential Black jurors, and had failed to explore if the prosecutor’s reasons were “pretextual.”

Justice Kavanaugh, who wrote the court’s 2019 decision in Mr. Flowers’s case as well, has had a longstanding interest in race and jury selection. He was joined by Chief Justice John G. Roberts Jr. and the court’s three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Joseph Perkovich, one of Mr. Pitchford’s lawyers, praised the court for recognizing the “extreme failure of the state courts to enforce essential protections under the Constitution.”

In a statement, Megan Byrne, a lawyer at the ACLU’s Capital Punishment Project, said the decision “properly recognizes that potential racial discrimination in jury selection deserves meaningful scrutiny and careful review.”

Mr. Evans, the prosecutor, has retired from the Montgomery County district attorney’s office. The Mississippi attorney general’s office, which defended the conviction, did not respond to a request for comment.

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Creators: Jury Nullification -- An Expression of Discontent with Government

Matthew T. Mangino
CREATORS
November 11, 2025

Jurors play a prominent role in the criminal justice system. Although few cases go to trial — statistically as few as four defendants in 100 — jurors wield the same power as legislators and judges.

Being a juror is a form of democratic participation, applying and interpreting the law through the lens of the community's values and experiences, and acting as a check on government power.

Traditionally, the role of a juror is portrayed as merely the "finder of fact." Juries make crucial decisions on the credibility and believability of witnesses — they decide the facts. A trial judge determines and instructs jurors on the law, which the jury must follow. Through the determination of facts and the application of the law, decisions of guilty or not guilty are to be made.

However, it is not quite that simple.

Beyond determining the facts, a juror's conscience is also a protected element of the justice system. The act of jury nullification — when a jury returns a verdict of not guilty despite its belief that the defendant is guilty of the crime charged — is the final check on governmental power.

That check on power has grown so much more important at a time when the president of the United States is ignoring limits on executive power.

In 2004, conservative U.S. Supreme Court Justice Antonin Scalia acknowledged the role of jury nullification. He wrote, "(The jury) right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary."

Jury nullification is taking hold in places like Washington, D.C. Recently, over a period of three weeks, grand juries in Washington rejected three separate efforts by federal prosecutors to obtain an indictment against persons accused of felony assault against federal agents.

A grand jury rejecting an indictment is extraordinary. A grand jury needs only to find probable cause that a crime has been committed to move forward. Robert Morgenthau, a longtime Manhattan district attorney, said he could get a grand jury to indict a ham sandwich.

According to The New York Times, the pattern of failure to obtain indictments "(I)ndicated that the ordinary people called upon to sit on grand juries were pushing back against efforts by prosecutors to harshly charge fellow citizens who had encountered law enforcement officers on the streets."

Something similar happened in Los Angeles recently as federal prosecutors struggled to obtain indictments against protesters arrested during demonstrations against federal immigration actions. Justice officials told The Los Angeles Times that prosecutors have struggled to get several protest-related cases past grand juries. In some cases, prosecutors reduced charges against defendants to misdemeanors after repeatedly falling short at the grand jury level.

Then there is Kendall Diaz, who was found "not guilty" of assaulting a U.S. Border Patrol agent in Spokane, Wash.

Diaz was arrested by federal immigration agents, accused of elbowing an ICE agent in the eye during a struggle in his own front yard. While the agent emerged from the encounter with a black eye, it appeared the jury, which reached a verdict in less than two hours, determined that Diaz's conduct, although captured on video, was not an intentional assault.

Last week, a Washington, D.C. jury acquitted Sean Dunn — the "Sandwich Guy" — of assaulting a federal officer. Dunn became the symbol of defiance when he hurled a sub sandwich that hit the chest of an agent wearing body armor. He went to trial, admitting he hit the officer to divert his attention from fleeing protesters.

Jurors are, in a sense, speaking for their fellow citizens. They are challenging the government's overreaching, overcharging and overzealous prosecution of protesters who were expressing their displeasure with the government.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Creators: Increase in Executions Doesn't Signal Support for Death Penalty

Matthew T. Mangino
CREATORS
October 21, 2025

As of this writing, there have been 39 executions this year. That is a substantial increase over last year, and for that matter, over the last decade. The last time there were more than 30 executions in a single year was 2014.

Is this proof that support for the death penalty is growing? Hardly, executions are a lagging indicator of past support, while new death sentences and public opinion polls are a better barometer of current sentiment.

Why is an uptick in executions not an indicator of surging support for the death penalty? The 39 people executed this year were convicted long ago. The average stay on death row for those put to death so far in 2025 was 25.6 years.

More telling is the number of new death sentences each year. The number of death sentences imposed in the United States has declined significantly since a peak in 1996, when 316 death sentences were handed down. As of June 30, juries across the country imposed only 10 death penalty sentences. In recent years, the numbers have remained near record lows, with 26 new death sentences in 2024, 21 in 2023 and 18 in both 2022 and 2021.

What are Americans saying about the death penalty? According to an October 2024 Gallup poll, support for capital punishment was at a five-decade low in the United States. Overall, Gallup found 53% of Americans in favor of the death penalty, but that number masks considerable differences between older and younger Americans.

According to the Death Penalty Information Center, more than half of young adults aged 18 to 43 now oppose the death penalty. Among those expressing political affiliation, support for the death penalty fell markedly in all groups and in all generations, with the exception of Republicans aged 60 and older, where support for the death penalty rose by two percent.

In spite of the declining support for the death penalty, on Jan. 20, 2025, President Donald Trump's first day in office, the White House issued a proclamation that included the following, "The Government's most solemn responsibility is to protect its citizens from abhorrent acts, and my Administration will not tolerate efforts to stymie and eviscerate the laws that authorize capital punishment against those who commit horrible acts of violence against American citizens." 

The White House's position demonstrates the divide in this country regarding state-sponsored death. This year's executions are concentrated in the South. All but three executions were carried out in the South. Florida, Texas, Alabama and South Carolina account for 27 of the 39 executions.

In addition, every state that carried out an execution so far this year voted for Trump in 2024.

According to the Death Penalty Information Center, half of all U.S. states have abolished the death penalty or currently prohibit executions. In fact, 32 states have either abolished the death penalty or have not carried out an execution in more than a decade.

Clearly, outside the red states below the Mason-Dixon line the death penalty is slowly but surely falling out of favor.

Examining the death penalty in America's largest state provides some perspective on today's death penalty. Since capital punishment was reinstated in California in 1978, thirteen condemned inmates have been executed. During those 45 years, 166 death row inmates have died from natural causes, suicide, drug overdoses or undetermined causes.

The absurdity of the death penalty doesn't end there. In Pennsylvania, where there are just under 100 men on death row, only three men have been executed in more than 45 years. The dysfunction of Pennsylvania's death penalty has caused Governor Josh Shapiro to reevaluate his position. Shapiro, a former state attorney general, has come out against the death penalty: "At its core, for me, this is a fundamental statement of morality, of what's right and wrong in my humble opinion."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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CREATORS: Eyewitness Identification Under Scrutiny

Matthew T. Mangino
CREATORS
August 12, 2025

For decades, eyewitness identification was considered the gold standard when it came to evidence used to gain a conviction.

In the famous courtroom drama "12 Angry Men," rated by the American Bar Association as one of the 25 greatest legal movies of all time, juror No. 8, played by Henry Fonda, earnestly advocated for a not-guilty verdict.

Fonda started out as the only not-guilty vote. The turning point of the deliberations occurred when an older juror recalled that the state's prized eyewitness, who had observed the murder through her window as she lay in bed, had red marks on her nose left from wearing eyeglasses. The older juror asked a reserved, bespectacled juror, "Do you wear your glasses when you go to bed?" The bespectacled juror responded, "No, I don't. No one wears eyeglasses to bed."

Eyewitness identification can be convincing, but is it reliable?

More than 75,000 prosecutions every year are based entirely on eyewitness identification. Some of those identifications are erroneous. Advances in the social sciences and technology have cast a new light on eyewitness identification.

Hundreds of studies on eyewitness identification have been published in professional and academic journals. One study by University of Virginia Law School professor Brandon L. Garrett found that eyewitness misidentifications contributed to wrongful convictions in 76% of the cases overturned by DNA evidence.

U.S. Supreme Court Justice Sonia Sotomayor has acknowledged the shortcomings of eyewitness testimony. She wrote, "eyewitness identifications' unique confluence of features - their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process — can undermine the fairness of a trial."

What can cause an eyewitness to misidentify a suspect? There are a number of factors: Poor lighting, the crime occurred quickly, the presence of a gun and the fact that the perpetrator is a different race than the witness. The police can, as well, intentionally or unintentionally influence an eyewitness's identification.

There are four basic rules proposed by researchers to help promote valid police identifications, including: Who conducts the lineup; instructions on viewing the lineup; the structure of the lineup or array; and immediately obtaining a confidence statement for the eyewitness.

When it comes to the "who," research supports double-blind lineups administered by a police officer who is not familiar with the suspect and who is not one of the primary investigators on the case. The instructions are equally important. For instance, a photo array should be presented sequentially rather than as a group without comment by the officer displaying the array. Research studies have revealed that both practices decrease the pressure on witnesses to pick someone and guard against undue influence.

The structure of the lineup is another area where bias can seep into the process. If the eyewitness described the suspect as a white male with long hair, approximately 6 feet, 4 inches tall, with a thin build, it would not be fair to have the suspect and four short, overweight, bald men in a lineup.

Finally, a confidence statement taken from the witness immediately after the array or lineup will provide the police, the suspect and ultimately jurors with a clear understanding of just how sure — or confident — the eyewitness is in her identification of the suspect.

Former U.S. Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion nearly 35 years ago, "There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, 'That's the one!'"

No one can challenge the impact of eyewitness identification. However, it is clear from the research and the growing number of exonerations that the reliability of eyewitness identification falls far below its impact. Without meaningful reform, the threat of convicting the innocent continues.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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CREATORS: Florida's Convoluted Death Penalty Process

 Matthew T. Mangino
CREATORS
July 29, 2025

Last week, a Florida jury deliberated for one hour and 42 minutes before recommending the death penalty for Shelby Nealy. If a state is going to have a death penalty, it would be for people like Shelby Nealy. He was already serving a 30-year prison sentence after pleading guilty to manslaughter for killing his wife, Jamie Ivancic, in January of 2018.

He then pretended to be Jamie in the months that followed, corresponding with her family through texts and social media messages before they became suspicious.

In December 2018, he went to Jamie's parents' home in Tarpon Springs, Florida, and killed her parents, Richard and Laura Ivancic, along with Jamie's brother, Nick.

What is interesting about Nealy's fate is that the jury voted 11-1 in favor of death for all three victims. The jury was not unanimous, and that is only possible in two states — Alabama and Florida.

Alabama has not required a unanimous jury decision for a death sentence since 2017. Prior to that, Alabama was the only state that allowed judges to override a jury's recommendation for a life sentence and impose a death sentence.

Between 1976 and 2017, Alabama judges overrode jury verdicts 112 times, with 91 percent of the overrides changing a verdict of life to a death sentence. Currently, Alabama allows a death sentence if at least 10 out of 12 jurors recommend death.

In Florida, the path to non-unanimous jury verdicts in death penalty cases is even more convoluted.

Across the country, 27states allow death sentences. Although the United States is considered a death penalty country, executions are rare, or non-existent, in most of the nation. According to the Death Penalty Information Center, two-thirds of U.S. states — 33 out of 50 — have either no death penalty or have not carried out an execution in at least 10 years.

Prior to 2016, Florida did not require a unanimous jury verdict to impose death. Rather, according to Taylor Evans writing in the University of Miami Law Review, a simple 7-5 majority was sufficient under state law to sentence a criminal defendant to death. Additionally, judges could override a jury's sentencing recommendation.

That changed after a Florida case made its way to the United States Supreme Court in 2017. The high Court, by an 8-1 majority, held that "(t)he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough."

The United States Supreme Court required a unanimous jury verdict in capital sentencing. However, in 2020, the Florida Supreme Court issued a new interpretation of the law. According to the Death Penalty Information Center, the Florida Supreme Court found, "while a unanimous jury must find the existence of an aggravating factor in a capital case (which are the factors that make a first degree murder charge eligible for the death penalty), there was no requirement that the jury's recommendation for death must be unanimous."

The Florida Supreme Court decision opened the door to an even more bizarre standard. In January of 2023, only a month after three jurors declined to impose the death penalty on Nikolas Cruz, the mass shooter at Marjory Stoneman Douglas High School in Parkland, Florida, legislation was proposed to change Florida's unanimity requirement in death penalty sentencing to a mere supermajority.

Today, a person convicted of first-degree murder in Florida, followed by a jury finding that the alleged aggravating factors have been unanimously proven, can be sentenced to death by a mere 8 votes out of 12 jurors. That is not progress and certainly not justice.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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Creators: Trial by Jury Is Vital to American Democracy

Matthew T. Mangino
Creators Syndicate
August 20, 2024

In colonial America, the British deprived colonists the right to jury trials. This prohibition was cited as one of the causes of the American Revolution. In 1776, the Declaration of Independence, the document that delineated the Founders' grievances with Britain, included, "Depriving us in many cases, of the benefits of trial by jury." With that document, America's Founding Fathers made trial by jury a right for which they pledged "[their] lives, fortunes, and sacred honor."

Thomas Jefferson, the author of the Declaration of Independence, wrote, "I consider [trial by jury] as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution."

Jury trials represent an important and expanding symbol of American democracy. With the advent of questioning the outcome of elections, the idea of one person, one vote is demonstrated by the jury trial.

The jury system, both civil and criminal, is vital to the American way of life. The United States Constitution provides through the Sixth Amendment, "In all criminal prosecutions, the accused shall enjoy the right to ... trial, by an impartial jury of the State and district wherein the crime shall have been committed."

Unfortunately, from that simple sentence, jury trials have become extremely complex and exceedingly rare. In the criminal realm, state jury trials occur in less than 5% of cases, and in federal court, there are even fewer trials.

On the civil side, trials have become so costly and unwieldy that cases are often settled, not on the merits but instead on the cost of seeing the case through to a verdict.

Although juries and jurors are sacrosanct to the justice system, a significant majority of people would rather expend time and effort at evading service than just doing their civil duty and serving — in much the same way that a significant number of people don't bother to vote.

There are hardships with serving as a juror. Getting away from work, following behind in class or scrambling for child care are just a few of the barriers to jury duty. However, the absence of working people, young people or child-rearing parents skews the jury pool. The idea of a jury of one's peers does mean a pool of jurors who don't work or can't work, are retired or disabled, or are older jurors with adult children or no children.

A robust and thriving justice system conducts trials. Forcing the government to prove an accused guilty beyond a reasonable doubt is vital to a democracy. Yet in the U.S., few people are proven guilty beyond a reasonable doubt. In a typical criminal prosecution, the first stage is a probable cause hearing. The burden of proof at that stage: "Is it more likely than not that a crime has been committed and the accused may have committed the crime?"

That is not a very demanding burden, and yet if the defendant pleads guilty, that is the only burden the government must meet. Although we speak in glowing terms of the state having to prove someone guilty beyond a reasonable doubt, very few prosecutions are ever tested at that threshold.

Jurors can also be an important check on overreaching by the government and prosecutors. Jury nullification has long been a means to protect defendants from unjust laws. Juries have the power to nullify the law in individual cases by finding a defendant not guilty even when there is enough evidence to prove the crime beyond a reasonable doubt.

During prohibition, it was alcohol laws. In the late 1990s, it was Dr. Jack Kevorkian and assisted suicide. Today, it is marijuana.

In this era of bashing long-standing institutions — elections, the U.S. Supreme Court, Congress — we would do well to double down on support for our system of trial by jury.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino).

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Alabama executes man for 1998 robbery and murder

 The 10th Execution of 2024

Keith Edmund Gavin was executed by lethal injection on July 18, 2024, making him the third man Alabama has executed in 2024.

Gavin was sentenced to death on the 10-2 recommendation of a jury, Alabama and Florida are the only states that authorize execution with less than a unanimous vote of the jurors.

The 64-year-old was put to death for the March 1998 murder of William “Bill” Clayton Jr. in Cherokee County. Clayton was gunned down near an ATM while getting cash to take his wife on a date that evening.

Gavin’s execution was scheduled for 6 p.m. It happened at the scheduled time, after the U.S. Supreme Court declined to review the case around 5:15 p.m.

That denial came after he filed a handwritten appeal to the U.S. Supreme Court on Wednesday evening challenging a state judge’s dismissal of his motion to stay the execution because the judge would not waive the filing fees - finding that Gavin had enough money in his prison account.

Alabama Attorney General Steve Marshall commented on the execution, sending a statement to the media: “There is no doubt about Gavin’s guilt for this heinous offense. In 1998, Gavin was identified by four witnesses, including his own cousin, for walking up to a Corporate Express van outside a Regions Bank, where he shot and killed the driver, William Clayton. He subsequently stole the van and drove off with the victim as Clayton’s life slipped away.”

“William Clayton was a devoted father of seven who had just finished his workday and had stopped to get cash for a date with his wife. He was slain in cold blood by a repeat murderer. I cannot imagine the shock, pain, and frustration that William’s family has endured over the last 26 years. I pray his family finds solace in the long-awaited justice by the State of Alabama.”

Gov. Kay Ivey also made a statement. “After a Cherokee County courier, William Clayton, Jr., finished his day’s work, he stopped at an ATM so he could treat his wife to dinner, only to be robbed of his life by Keith Gavin. After receiving a death sentence, Mr. Gavin appealed time after time for years to avoid justice, but failed at every attempt. Today, that justice was finally delivered for Mr. Clayton’s loved ones.”

She continued, “I offer my prayers for Mr. Clayton’s family and friends who still mourn his loss all these years later.”

Execution

The curtains to the three viewing rooms opened 6:09 p.m.

When the curtain opened, Gavin was in the execution chamber and strapped onto the gurney in a standard white sheet. His imam, dressed in a black robe, was speaking and Gavin’s lips were moving. Their conversation couldn’t be heard in the viewing rooms.

At 6:11 p.m., Holman warden Terry Raybon read the state’s death warrant as Gavin’s lips continue to move.

When the warden offered him the microphone to say his last words, Gavin said, “I love my family.” He then followed that statement with several words in Arabic.

His lips continued to move as he stretched both hands against the straps on the gurney with his index fingers pointed upward.

Gavin then leaned his head back and closed his eyes. His mouth fell slightly open as his imam appeared to continue speaking or in prayer. Shortly after, the imam stepped back from the gurney.

At 6:19 p.m., a corrections officer performed a standard consciousness check by yelling Gavin’s name, brushing his eyelid, and pinching his left arm. The check is intended to make sure an inmate is unconscious from the first drug before administering the two other drugs that stop the heart and lungs.

At 6:20 p.m.., Gavin appeared to take his last breath.

The curtains closed at 6:25 p.m.

Matthew Clayton, the youngest of Bill Clayton’s seven children witnessed the execution and talked to reporters following an Alabama Department of Corrections press conference.

He called his dad “the last victim of Keith Edmund Gavin.”

Gavin committed the fatal shooting while on parole for another murder in Illinois.

On behalf of his family, Matthew Clayton thanked Ivey for standing for principles and “creating a line in the sand to let violent criminals know that taking the life of innocent individuals will not be tolerated in the state.”

He thanked the Attorney General’s Office for their dedication and hard work, and law enforcement for their apprehension of Gavin.

Matthew Clayton described his father as a large man 6 feet and 6 inches, weighing about 280 pounds. He was a gregarious, fun person, said Matthew Clayton, and a devoted husband of 38 years to his mother. Bill Clayton was in the Army in the Korean War, and was a man with rural American values.

“I have often described him as a slice of Americana,” said Matthew Clayton. “He had an incredible work ethic from his roots as an Alabama farm boy.”

“It’s quite unfortunate his final years were taken from him in such a brutal way.”

Matthew Clayton said his family was told Gavin was indoctrinated to gang violence at an early age in Chicago. They were told that when Gavin was a teenager he killed another gang member, but that killing didn’t result in a conviction. Gavin then committed another murder at 19 -- which was the crime he was on parole for when he fatally shot Bill Clayton.

“For us it’s always been a question as to, could the state of Illinois done a better job at protecting their citizenry and protecting the people of this country. Could that have prevented the murder of Bill Clayton...”

Final hours

Earlier Wednesday, prison officials gave a rundown of Gavin’s past 24 hours, including visitors and final meals.

On Wednesday his visitors were spiritual advisor Aswan Adul Addarr, attorneys Neil Conrad and Daniel Epstein. He refused breakfast, but had snacks of Ruffles Cheddar and Sour Cream Potato Chips, Lay’s Plain Potato Chips, and a chocolate Hersey Bar with almonds. He refused his lunch and dinner meals. He had no phone calls on Wednesday.

Thursday, he was visited by friend Lauren Gill, attorneys Kelly Huggins, Neil Conrad and Daniel Epstein. Gavin refused his breakfast, but had ice cream and Mountain Dew.

He accepted his lunch meal and refused his final meal. He did not make any special requests.

Prison officials also said Gavin’s execution witnesses were attorneys Neil Conrad and Daniel Epstein, friend Lauren Gill, and spiritual advisor Aswan Abdul Addarr.

Earlier Thursday, the Alabama Attorney General’s Office responded to Gavin’s appeal to the nation’s high court. The office said the appeal was “purely a state-law issue.”

“Second, a stay of execution would only serve to delay Gavin’s execution and not result in relief, as the claims he raises are meritless. Finally, the public interest weighs in favor of allowing the State to carry out his execution, and Gavin’s multi-decade delay should not be excused.”

Gavin, whose attorneys have not responded to repeated requests for comment from AL.com, was executed via Alabama’s three-drug lethal injection procedure. He did not opt-in to dying by nitrogen gas—a novel method Alabama first tried in January with the execution of Kenneth Eugene Smith—when inmates on Alabama Death Row had the opportunity to do so in June 2018.

Alabama’s lethal injection protocol requires two intravenous lines for the three-drug lethal injection cocktail. Alabama Department of Corrections Commissioner John Hamm said the execution team stuck Gavin three times for the required two IV lines.

The process did not cause delays in the execution, as executions prior have stretched into the night and early morning hours because of issues with IV lines.

He was the second lethal injection this year. Jamie Ray Mills was executed in May. And, the Alabama Attorney General’s Office is seeking execution orders for at least two more men later this year.

The state is set to have its second nitrogen execution in September. Alan Miller, who survived a lethal injection attempt in 2022, is set to be suffocated using nitrogen gas. So far, Alabama is the only state in the country to have used the new method.

Lawsuits

While Gavin did not specifically challenge Alabama’s fatal injection cocktail in the courts leading up to his execution, he did argue that his devout Muslim faith requires his body to be kept intact after his death and that he didn’t want a state autopsy.

After a brief legal battle in state court, the state obliged his request. “No autopsy will be performed on Keith Edmund Gavin,” said a statement from the Alabama Department of Corrections. “His remains will be picked up by the attending funeral home.”

And, despite that same lawsuit saying Gavin wouldn’t be fighting his impending death, days later Gavin filed a handwritten motion to another judge. He asked for a stay of execution, without involving his attorneys, and for a status that allows poor people to have court filing fees waived.

Cherokee County Circuit Court Judge Shaunathan C. Bell on July 10 ruled that Gavin had more than enough in his prison account to pay the filing fee and denied his request. The judge also dismissed Gavin’s motion for a stay.

That was the case that Gavin later appealed to the U.S. Supreme Court.

Crime

William C. “Bill” Clayton Jr. was a Korean War veteran who retired after working 15 years for L&N Railroad and another decade at AmSouth Bank, according to his obituary. In retirement, the father of seven took a contract job making deliveries for Corporate Express Delivery Systems, Inc.

Just after 6:30 p.m. on March 6, 1998, the 68-year-old Birmingham man’s life ended when he crossed paths with Gavin, who had just arrived in downtown Centre. He had come from Illinois, where he had recently been paroled after serving 17 years of a 34-year sentence for murder.

Clayton had just finished making his deliveries for the day and had stopped in his work van at the Regions Bank in downtown Centre to get cash from the ATM. He was planning to take his wife on a date that evening.

He never got to take his wife to dinner.

Gavin shot Clayton while attempting to rob him at the ATM, according to court records. Then, Gavin pushed him into the passenger seat of the van and drove off.

Several witnesses, including Gavin’s cousin that had traveled from Illinois with him, identified Gavin as the gunman.

Gavin’s cousin testified that when they stopped at the intersection near the courthouse and the Regions Bank Gavin got out of his cousin’s vehicle and approached a van that was parked nearby. The cousin testified he thought Gavin was going to ask the driver of the van for directions. However, when he looked up, he saw that the driver’s side door of the van was open, and Gavin was holding a gun. The cousin stated that he watched as Gavin fired two shots at the driver of the van. The cousin testified he fled the scene.

An investigator with the Cherokee County District Attorney’s Office testified at Gavin’s trial that he was returning to Centre from Fort Payne when he heard over the radio that there had been a shooting and that both the shooter and the victim were traveling in a white van with lettering on the outside. As he proceeded toward Centre, the investigator said, he saw a van matching the description given out over the radio and followed it.

At one point the van stopped, a man the investigator identified as Gavin got out and fired a round of shots.

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Alabama's death penalty rolls on in face of national decline

As one of only five states that executed people this year—and one of only seven states that sentenced people to death—Alabama remains an outlier in its continued use of the death penalty, according to the Death Penalty Information Center’s Year End Report.

According to the Equal Justice Initiative, the death penalty’s nationwide decline continued in 2023, which DPIC reports is the ninth consecutive year with fewer than 30 people executed and fewer than 50 people sentenced to death.

Alabama imposed three of this year’s 21 new death sentences. Two of the three were sentenced to death even though jurors did not agree that death was the appropriate sentence.

Allowing death sentences to be imposed without unanimous agreement from all 12 jurors is an outlier practice barred in almost every other state. Indeed, until Florida changed its law earlier this year, Alabama was the only state that allowed a person to be condemned to death without a unanimous jury vote.

Alabama put to death two of the 24 people who were executed this year in the U.S. Both men were executed despite the fact that all 12 jurors did not agree they should get the death penalty—a fact that would bar the death penalty in nearly every other state.

Alabama stands out as the state with the worst record of failed and botched executions after its torturous multi-hour execution of Joe James and its failed attempts to execute Alan Miller and Kenny Smith in 2022.

It retained that outlier status this year when the governor declared Alabama was ready to resume putting people to death after the same officials responsible for the failed and botched executions conducted a truncated, nontransparent “review” that failed to identify any problems with its protocol or explain what went wrong in its last three scheduled executions—in sharp contrast with the independent, comprehensive investigations ordered in states like Arizona and neighboring Tennessee.

The only specific change that resulted was an unprecedented new rule that made Alabama the only state in the country that allows executions without an established time frame, giving executioners unprecedented power.

And just last month, the Alabama Supreme Court authorized the use of an untested, unproven, never-before-used execution method when it gave prison staff a second chance to attempt to kill Kenny Smith by forcing him to breathe nitrogen gas.

The majority of states (29) have abolished the death penalty or stopped executions by executive action. Only a small handful of states continued to use the death penalty in 2023; indeed, the number of states conducting executions (5) and imposing death sentences (7) this year matched record lows.

Three more people were exonerated in 2023, bringing the total to 195 people who have been exonerated after being sentenced to death in the modern death penalty era.

Several other cases with strong evidence of innocence received intense media attention and unprecedented support from state lawmakers, prosecutors, judges, and other officials, likely contributing to the finding that more Americans now believe the death penalty is applied unfairly than fairly.

The number of new death sentences has dropped steadily over the past two decades, DPIC reports, thanks to new laws providing life-without-parole as an alternative sentence as well as “the elimination of non-unanimous death sentences in most states, the exclusion of people with intellectual disability from death penalty eligibility, and changes in the common and scientific understanding of mental illness and trauma and their lasting effects.”

These developments, together with apparent changes in jurors’ attitudes about the effectiveness, reliability, and fairness of the death penalty, underscore DPIC’s sobering conclusion that most of the people who were executed this year would not be sentenced to death today.

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The first of Trump's much avoided criminal trials is finally underway in New York City

The former president refers to the four prosecutions he faces as “witch hunts” motivated by partisanship and part of a nefarious scheme to keep him from returning to the White House. opined the editorial board of The New York Times. Donald Trump has repeated this narrative even though the prosecutions have been brought by different prosecutors around the country, and even though different grand juries, each composed of a random selection of regular citizens in different states, handed up indictments that now total 88 felony charges against him.

In the weeks leading up to the start of this trial, Mr. Trump has argued, dishonestly, that the judge and the prosecutor have treated him unfairly, and that it will be impossible for him to get a fair trial in Manhattan because New Yorkers are biased against him. But the opening days of the trial, devoted to jury selection, have already demonstrated the great care and respect with which everyone involved in the trial, except for Mr. Trump, has treated the process. Joshua Steinglass, a member of the office of the Manhattan district attorney, Alvin Bragg, told potential jurors on Tuesday that the case “has nothing to do with personal politics.”

“We don’t suggest you need to have been living under a rock for the last eight years, or the last 30 years,” he said. “We don’t expect you not to have heard about this, or not to have discussed this case with friends. What we do need is for you to keep an open mind.”

Dozens of potential jurors took those instructions seriously and admitted they could not be impartial. One man was excused from service after telling the judge that it was “going to be hard for me to be impartial,” since many of his family members and friends were Republicans. Justice Juan Merchan, the judge overseeing the trial, excused him, as other potential jurors stepped up. So far, seven jurors have been seated. At least two potential jurors were dismissed by the judge because of social media posts.

If anything, Justice Merchan has exhibited an extra degree of tolerance for Mr. Trump’s strategy of systematically attacking the legitimacy of the courts and court officials through repeated verbal outbursts and countless legal motions and other attempts to delay his trials. In the New York case, Mr. Trump received a short extension last month when federal prosecutors found a tranche of documents that had not been turned over to the defense team. In the week before the start of the trial, he filed three emergency appeals in three days, as The Times reported, including a civil action against the judge, which were quickly rejected by an appeals court.

The fact that he was able to have each of these motions fully considered is evidence of the justice system operating as it should, with deliberation and due process. Especially in criminal prosecutions, courts take the legal rights of litigants very seriously, to ensure that defendants receive fair trials. An appeals court is still considering Mr. Trump’s request to throw out a gag order that prevents him from verbally attacking witnesses, prosecutors or the judge’s family, but it will not delay the trial before the ruling. (Mr. Trump is not prevented from publicly criticizing the judge.)

In the other criminal cases against him, Mr. Trump has also been able to take full advantage of every legal protection available to him as a defendant.

He appealed his federal prosecution related to the Jan. 6 insurrection at the Capitol on the grounds that he enjoys absolute immunity for actions he took as president. This argument has been rejected by every judge to consider it. Still, the Supreme Court agreed to hear the appeal later this month, delaying the start of his trial in that case indefinitely, and possibly until after the election. While the Supreme Court weighs his immunity claim, the trial judge in the federal Jan. 6 case, Tanya Chutkan, put the proceedings on hold. In the other federal prosecution, on charges of illegally withholding highly classified national-security documents, Mr. Trump has had numerous favorable rulings from the judge handling that case.

The election-interference case out of Georgia was delayed by an extensive hearing on a possible conflict of interest for the lead prosecutor, Fani Willis, who had been in a romantic relationship with Nathan Wade, an outside prosecutor she hired to lead the case. After taking testimony from a series of witnesses, the judge decided Ms. Willis could remain on the case, but not with Mr. Wade. (Mr. Wade ultimately withdrew.) Mr. Trump appealed that decision, which the Georgia Court of Appeals is now considering.

The ability to file such appeals, successful or not, is essential to how the law functions in the United States. Despite having benefited from its protections, to Mr. Trump, the rule of law is nothing more than an obstacle to be overcome, an instrument of power to use at will.

Mr. Trump’s vision of an American legal system that protects his interests goes beyond his trial, of course, and extends in particular to the Justice Department. He has been explicit about his desire, if elected in November, to bring the Justice Department more fully under his control, to use it to protect his friends and, more important, punish his enemies. As president, Mr. Trump had an unparalleled record of abusing presidential pardons, and if he is re-elected, he appears likely to order the Justice Department to drop the criminal cases against him or to try to pardon himself for potential crimes. To Mr. Trump, independent prosecutors and Justice Department officials are precisely the problem. They will say no to him when he wants to do things that are illegal or unconstitutional, choosing to be faithful to the Constitution rather than to him. This Mr. Trump cannot abide.

Mr. Trump has said he intends to find a prosecutor to “go after” Mr. Biden and his family, suggesting that he intends to pursue prosecution with little regard to evidence or facts. According to The Washington Post, he also wants to investigate figures in his administration whom he perceives as being disloyal to him, including John Kelly, his former chief of staff; William Barr, his former attorney general; and Gen. Mark Milley, the former chair of the Joint Chiefs of Staff. (Mr. Trump has separately suggested General Milley should be executed for treason.)

As Mr. Kelly told The Post, “There is no question in my mind he is going to go after people that have turned on him.”

Mr. Trump has also repeatedly said that his prosecution is like no other. In fact, there are numerous examples of politicians, of both parties, who faced prosecution, and in some cases were convicted, during their candidacies. The former Texas governor Rick Perry, a Republican, ran for president in 2016 while under indictment for abuse of power. (Those charges were later dismissed.) Senator Robert Menendez, a Democrat of New Jersey, was indicted on federal bribery charges, and may run for re-election as an independent.

The former president is singular in one respect: As much as he accuses others of warping the justice system, he is the one who consistently demeans and disparages the role of the courts and the exercise of due process. The leaders of the Republican Party, echoing the views of Mr. Trump’s fervent base of followers, have fallen in line behind him, indicating that they will continue to support his candidacy even if he is a convicted felon.

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Trump's First of 4 Criminal Trials Gets Underway

Matthew T. Mangino
Creators
April 15, 2024

As you are reading this, Judge Juan M. Merchan's Manhattan courtroom should be bustling with activity as an unprecedented criminal trial gets underway.

For the first time in American history, a former president of the United States is sitting as a defendant in a criminal trial. Not to mention this defendant is currently leading in the polls to be elected president for a second time, in 2024.

The facts are straightforward. Donald Trump was running for president in 2016. As Election Day loomed, Trump sought to silence a former porn star, Stormy Daniels, from publicly revealing their affair.

An alleged scheme was hatched to have Trump's "fixer," attorney Michael Cohen, pay Daniels $130,000 in hush money and then be reimbursed through phantom legal fees.

As a result, Trump now faces 34 felony charges of falsifying records brought by Alvin Bragg, Manhattan's first Black district attorney. Falsifying records is actually a misdemeanor in New York, but Bragg has alleged the conduct is a felony when falsifying business records for the purpose of concealing or committing another crime.

The district attorney alleges Trump falsified the records to conceal the affair in order to win a national election.

Trump's trial, like all criminal trials before a jury, will begin with jury selection. The jury selection process, known as "voir dire," is crucial, especially in an extremely high-profile case where nearly every person in the pool of potential jurors has an opinion about the defendant.

Each of the potential jurors summoned to the Manhattan Courthouse will have completed a juror questionnaire. Those questionnaires will be closely scrutinized. Lawyers for both sides will know the jurors' names. They will know their education level, marital status, line of employment and their thoughts on police, investigators and the court system. The lawyers will also scour potential jurors' social media accounts, as well as their voter registration and voting histories.

The selection process will be a bit different in this case. With our polarized political process, voter registration will be a legitimate point of inquiry. Whether you voted in the last two presidential elections may be appropriate as well.

The requirement to sit as a juror in a given case is whether one can be fair and impartial. It doesn't matter if a potential juror has heard of the case, or the other criminal cases pending against Trump with the special federal prosecutor or the state of Georgia. The question is simply whether a potential juror can set aside what they read, heard or discussed with others and be fair and impartial.

According to The New York Times, it appears that the potential juror pool may not be favorable to Trump. Seventy percent of Manhattan's 1.1 million registered voters are Democrats. He lost overwhelmingly in his hometown in 2016 and 2020. Juries and judges in Manhattan have already found Trump liable for committing sexual abuse and defamation, to the tune of $83 million, and for fraudulently inflating his assets to obtain financing, making him liable for an additional $453 million.

Jury selection is expected to last one to two weeks. Starting Monday, prosecutors and lawyers for Trump will seek to reduce potentially hundreds of people to 12 jurors and six alternates.

Once a jury is empaneled, the sparks will begin to fly. The State of New York intends to call Cohen. He will testify that Trump directed him to make the payment to Daniels. She is also expected to be a key witness.

Trump's lawyers are likely to go after Cohen on the witness stand by, as NBC News suggested, "painting him as a liar who loathes the former president and whose testimony shouldn't be believed."

Daniels' former attorney Keith Davidson is likely to testify about his negotiations over the hush money payment. However, a more formidable witness for the prosecution may be former White House communications director Hope Hicks — who prosecutors have said was involved in phone calls between Trump and Cohen and may corroborate the testimony of Cohen.

The excitement over the trial may be tempered a bit by the fact that it will not be televised — New York law does not permit cameras in the courtroom.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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