Death row population growing as juries and judges choose execution over life in prison
by Rachael Brown
rbrown@annistonstar.com
Jul 28, 2013 | 5236 views |  0 comments | 39 39 recommendations | email to a friend | print
Nicholas Smith will be sentenced by a judge in September and if the precedent of previous Calhoun County judges is followed, the sentence will be death.

On July 2, a jury found Smith, 24, guilty of kidnapping, robbing and murdering Wellborn Elementary School teacher Kevin Thompson in April 2011. On July 10, the jury recommended to Circuit Judge Brian Howell in an 11-1 vote that Smith be executed for his crime. Howell is scheduled to sentence Smith on Sept. 3.

Prosecutors say the trials of Smith’s co-defendants, Tyrone Thompson and Jovon Gaston, should take place before the end of next year.

The state has executed five men sentenced in Calhoun County cases since 1937 and could nearly double that number if Smith is sentenced and executed, and the death sentences of three other men eventually are carried out. The possibility for Alabama judges to increase the number of inmates on death row based on their own discretion and not a jury’s recommendation has some people questioning the state’s judicial system.

Three inmates currently on death row are from Calhoun County. Jimmy Davis, 42, of Anniston, was sentenced to death by former Calhoun County Circuit Judge Malcolm Street Jr. in 1994. Davis was found guilty of shooting convenience store clerk Johnny Hazle to death during a robbery. The jury recommended the death penalty for Davis by an 11-1 margin.

Ellis Louis Mashburn, 34, of Jacksonville, was sentenced to death in 2006 by former Circuit Court Judge Sam Monk. Eleven out of 12 jurors recommended he be sentenced to death for killing his grandmother, Clara Eva Birmingham, and step-grandfather, Henry Owen Birmingham, in their Alexandria home. Prosecutors said the couple were victims of a robbery gone bad and died of multiple stab wounds and blunt-force trauma.

Jesse Earl Scheuing, 27, of Waycross, Ga., was sentenced to death in 2010 by former Circuit Judge Malcolm Street Jr. Ten jurors, the minimum number needed to recommend a death penalty sentence in Alabama, told the court Scheuing should die for shooting Sean Adam Cook to death in an Oxford convenience store.

Sentence reversed

In February 2009, Howell sentenced Mark Dwyatt Brown to death for capital murder, arson, burglary and robbery in the death of four members of the Benefield family in Cleburne County. The Star previously reported that Brown, his brother, Shannon Brown, and Timothy Patrick Morris were charged in 2005 with entering the Cleburne County home in 2005 and bludgeoned to death Lena Benefield, 88, and her three sons, Reo, 69; Shable, 59; and Durward, 49; before setting the home on fire. Online court records show Brown’s death sentence was reversed and remanded by an appeal in July 2010.

Brown’s attorneys argued that the trial court made an error when it instructed the jury that it could convict him of capital murder even if he did not have intent to kill the victims.

Brown’s appeal stated the jury believed it could convict him of capital murder as long as one of his co-defendants possessed specific intent to kill. However, Alabama law says defendants cannot be convicted of capital murder or given the death penalty unless they intended to kill their victim.

Howell said Brown’s case was similar to Smith’s in that there were three co-defendants. Howell said he needed to instruct the jury that each co-defendant must have individual intent to kill in order to be convicted of capital murder.

The judge said he thought he’d instructed the jury in that manner, but in the appeal’s court opinion he “didn’t make it clear.”

Shannon Brown is also serving a life sentence after he pleaded guilty to the crime. Morris also pleaded guilty to the murder and was sentenced to 21 years in prison.

Error in instruction

Bryan Stevenson, director of the Equal Justice Initiative, said Brown asked his nonprofit organization to represent him on his appeal. Stevenson said a review of the court’s transcripts revealed several errors in Brown’s case.

“There’s state and federal laws that regulates how a trial should be conducted,” Stevenson said. “Certain evidence is prejudicial. If you don’t properly instruct the jury on those differences then the jury may wrongly convict someone that the evidence does not support. The judge did not properly instruct this jury.”

Howell said the victims’ families were supportive of Brown getting life in prison without the possibility of parole.

“They didn’t really want to go back through another trial. They felt that life without gave them more finality,” the judge said. Brown and Smith’s cases are the only two capital cases Howell has presided over to date, he said.

A report from EJI on Brown’s case noted that during the trial, Brown admitted to involvement in the robbery, but argued he did not intend for the Benefields to die and he did not kill them personally.

Online prison records show Brown is serving a life sentence without the possibility of parole at Holman Prison.

Previous cases show judges in Calhoun County typically sentence a defendant based on a jury’s recommendation, but that doesn’t always happen across the state.

Alabama is one of three states that allow a judge to override a jury’s sentencing recommendation for life in prison or the death penalty. The other two states — Delaware and Florida — have stricter rules judges must follow, including providing the court with reasoning for their decision. In Alabama, a judge can simply override a jury’s recommendation without providing details as to why, according to a report on judicial override released in July 2011 by the Equal Justice Initiative.

Talitha Powers Bailey, director of the Capital Defense Clinic at the University of Alabama, said between 20 and 30 percent of inmates on death row were sent there by judicial override. Bailey’s organization allows students to assist attorneys with case strategy, research and trial preparation for defendants charged with capital murder in cases where the state is seeking the death penalty.

Bailey said it’s rare for a judge to override a jury’s recommendation for the death penalty and give the defendant life without the possibility of parole. Alabama judges overrode a jury’s recommendation for death to a life imprisonment sentence in nine cases since 1976, according to EJI’s report.

Death penalty not a deterrent

Sen. Hank Sanders, D-Selma, said he would like to see Alabama do away with judicial overrides and the death penalty.

“That’s what juries decide. They’re not to be a provision for one person to override, like a judge. It’s a bad system. It increases the number of people on death row,” Sanders said.

Sanders said he believes if the death penalty had been a deterrent since its reinstatement that there would be fewer death penalty cases tried in the state. There have been more than 50 people executed since 1976, and death row now houses 192 inmates, according to the ADOC website. The most recent inmate to be executed, Andrew Reid Lackey, died by lethal injection Thursday. Five men were sent to death row in 2012, according to the ADOC.

Sanders said part of the reason there are nearly 200 people on death row is due to the financial burden of hiring an attorney.

“If every person charged with a capital crime had good lawyers you’d have less people on death row and have much shorter time. The prosecutor has all the resources and the lawyers on the other side have less experience and less resources to work with. It’s not an even match,” he said.

Bailey said that in an average death row case, it takes about 15 years to exhaust the appeals before the inmate can be executed.

If during the appeal process an error is discovered from the trial phase, Bailey said, then the defendant could be retried.

“If the trial court now finds that there’s error, he would get a new trial or at least a new sentencing hearing and if he’s again sentenced to death that process starts over again,” Bailey said.

Bailey said it’s unusual for a case to be retried multiple times.

“Usually on the second or third time they just settle it,” Bailey said. “They just agree to life without and that will stop the whole process.”

Executed from Calhoun County:

Roosevelt Collins, executed on June 11, 1937, for rape

Pernell Ford, executed on June 6, 2000, for murder

James H. Callahan, executed on Jan. 15, 2009, for murder

Danny J. Bradley, executed on Feb. 12, 2009, for murder

William Glen Boyd, executed on March 31, 2011, for murder

Staff Writer Rachael Brown: 256-235-3562. On Twitter @RBrown_Star.
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