« New poll suggests strong bipartisan support for criminal justice reforms | Main | "Montgomery Momentum: Two Years of Progress since Montgomery v. Louisiana" »

January 26, 2018

SCOTUS (surprisingly?) stays scheduled Alabama execution

As reported in this local article, headlined "Execution called off for Alabama inmate Vernon Madison," the Supreme Court last night got in the way of a state's effort to carry out a death sentence for a man first convicted of killing a police office back in 1985(!). Here are some details and background:

Vernon Madison, one of the longest serving inmates on Alabama's Death Row, was scheduled to be executed at 6 p.m. Thursday, but 30 minutes before the scheduled execution the U.S. Supreme Court issued a temporary stay. The stay was later granted, and Madison's execution called off.

Madison, 67, has been on death row for over 30 years after being convicted in April 1985 of killing Mobile police Cpl. Julius Schulte. He was set to die by lethal injection at Holman Correctional Facility in Atmore Thursday night, but escaped execution for the second time via a court order.

Madison was 34 when he was charged Schulte's death, who was responding to a domestic disturbance call. Madison also was charged with shooting the woman he lived with at the time, 37-year-old Cheryl Ann Greene. She survived her injuries....

Madison's first trial took place in September 1985. He was convicted, but a state appellate court sent the case back for a violation involving race-based jury selection. His second trial took place in 1990. Prosecutors presented a similar case, and defense attorneys again argued that Madison suffered from a mental illness. They did not dispute the fact that Madison shot Schulte, but said he did not know that Schulte - dressed in plain clothes and driving an unmarked police cruiser - was a police officer.

He was again convicted, and a jury recommended a death sentence by a 10-2 vote. An appellate court again sent the case back to Mobile County for a retrial, this time based on improper testimony from an expert witness for the prosecution.

His third and final trial took place in April 1994. He was convicted, and the jury recommended a life sentence after both Madison and his mother, Aldonia McMillan, asked for mercy. Mobile County Circuit Judge Ferrill McRae sentenced Madison to death-- this time overriding the jury's recommendation.

In April 2017, Gov. Kay Ivey signed into law a bill that says juries, not judges, have the final say on whether to impose the death penalty. That law officially ended Alabama's judicial override policy, as Alabama was the last state to allow it.

Late Wednesday, Madison's attorneys filed two more petitions to the U.S. Supreme Court-- an application for a stay of execution, and a petition for a writ of certiorari focused on the issue of judicial override. Madison's attorneys argued that since he was sent to death under the judicial override statue, he is entitled to a stay and a review of his case. Attorneys filed similar motions to the Alabama Supreme Court, but they denied the request earlier Wednesday. "Because a death sentence is no longer permissible in cases where the jury has returned a sentence of life, Mr. Madison filed a challenge to his death sentence and scheduled execution in the Alabama Supreme Court. He contended that this execution would be arbitrary and capricious and constitute a violation of the Sixth, Eighth and Fourteenth Amendment," the petition states. "The judicial override in this case resulted in a death sentence that is arbitrary, disproportionate, and unconstitutional..." Madison was first scheduled to be executed by lethal injection in May 2016, but there was a temporary delay. Hours after that execution's scheduled time, the U.S. Supreme Court issued a ruling upholding an 11th Circuit Court of Appeals stay of execution. The AG's Office filed responses in opposition to those petitions. In November 2017, the U.S. Supreme Court unanimously reversed that decision, paving the way for Madison to be executed.

Last month, Madison's attorneys from the Equal Justice Initiative filed a petition in Mobile County court to stay Madison's execution, but after a hearing the judge in that case denied the request for a stay of execution. Bryan Stevenson, founder of the EJI and one of Madison's attorneys, then filed two new petitions to the U.S. Supreme Court: One for a stay of execution, and one asking the court to review the case. The AG's Office also filed responses to those requests....

Around 5:30 p.m., the U.S. Supreme Court issued a temporary stay of execution, but the stay was granted at 8:10 p.m. Madison will not be executed Thursday night, and the AG's office must request a new execution date from the state supreme court.

The Supreme Court's order states the stay is in place until the justices decide whether they will grant Madison's writ of certiorari, or if they will review the case. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would deny the application for stay, the order said.

Without seeing all the filings, it is hard for me to tell at this stage whether this stay could be a big deal for death penalty jurisprudence generally. But it is obviously a big deal for any and everyone connected to this defendant, his victims and perhaps all capital lawyers in Alabama.

UPDATE: A commentor and a tweet alerted me to this report from Chris Geidner at BuzzFeed News headlined "The Supreme Court Stopped Alabama From Executing A Man Over Competency Questions." Here is how this piece accounts for the stay:

The Supreme Court on Thursday night halted the scheduled execution of Vernon Madison, who was set to face lethal injection in Alabama for the 1985 murder of a police officer.

The stay of execution was granted by the court while the justices consider whether to take up Madison's case in which his lawyers argue he is no longer competent to face execution, noting this he has been diagnosed with vascular dementia and "is unable to recollect the sequence of events from the offense, to his arrest, to his trial and can no longer connect the underlying offense to his punishment." Alabama's lawyers opposed the request.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted that they would have allowed the execution to proceed. At least five justices had to vote to grant the stay of execution, but justices do not have to announce their vote on stay applications like Madison's stay request, so the exact vote tally — and the votes of the other justices — is not known publicly.

I have changed the title of this post to reflect my own uncertainty about the stay's terms.

January 26, 2018 at 12:29 PM | Permalink


I read from Buzzfeed's Chris Geidner that the stay was based on the competency challenge, not the judicial override issue.

Posted by: Joshua Lee | Jan 26, 2018 1:10:54 PM

The action was well timed for Geidner since he recently wrote an article on how Roberts at times joins the more liberal bloc, including in certain capital cases. As to the overall effect, as with a few other cases in recent years, likely shows that now and then the justices (including Roberts) will be concerned about a capital case. At least enough to give it a more careful look. This will in some small fashion also affect other cases.

A "big deal" is unlikely, somewhat less so for this defendant specifically. Shall see what happens.

Posted by: Joe | Jan 26, 2018 2:27:17 PM

Mr. Madison is represented by the Equal Justice Initiative. A previous order granting federal habeas relief in the 11th Circuit based on lack of competency to be executed was reversed by the US Supreme Court in late 2017. The unusual twist in the last-minute litigation is a claim of newly discovered evidence regarding the court-appointed psychologist who had previously found Mr. Madison to be competent. EJI returned to the state trial court with evidence "that the court-appointed psychologist who determined Mr. Madison to be competent and on whom both the [state] circuit court and this Court relied was suffering from a substance addiction disorder at the time of his evaluation of Mr. Madison, which ultimately led to four (4) felony charges related to illegally obtaining controlled substances and suspension from the practice of psychology." See cert. petition, pp. 1-2.

Posted by: Arthur Hopkirk | Jan 26, 2018 4:48:33 PM

Lawyer games delayed the execution until the prisoner suffered a dementia of old age. Now, the lawyers say, he is too demented to be executed. The death penalty now serves no purpose, neither punishment nor incapacitation. Now, he has a 90% chance of dying rough, over a long period. The lawyer profession belongs on the Twilight Zone. It is a sick joke.

Posted by: David Behar | Jan 27, 2018 12:39:12 AM

Hard to figure out what is going on here. As best as I can tell from the parties pleadings (nice to now be able to find petitions for cert and stay on-line), the change since the last review is some additional evidence that impeaches the credibility of the State's expert. Normal rule, however, whether talking AEDPA or direct review, is that credibility is for the trial court.

I guess that by going back to the trial court with a renewed motion, Madison can nominally claim that this is a new judgment that can be reviewed directly which would allow the Supreme Court to decide the merits of what it means to be competent to be executed without the AEDPA deference involved. I think Alabama has the stronger argument that collateral estoppel, res judicata, and law of the case should bar such an effort to manipulate the system, but, in a capital case, who knows.

Posted by: tmm | Jan 27, 2018 11:01:23 AM

T. Can one get collateral estoppel if the facts of the defendant have drastically changed?

Posted by: David Behar | Jan 27, 2018 3:26:47 PM

David, not if the facts have changed. But, apparently, as best as I could figure from the pleadings of the two sides, the only new evidence was the fact that the court-appointed psychiatrist had been disciplined.

If the inmate had presented a new evaluation showing that his mental condition had deteriorated, then the prior ruling that he was not incompetent would not necessarily bind the current court. But I am not seeing any suggestion that was done. I am not sure how Alabama does their system, but there are a significant number of motions/cases that parties can file on multiple occasions (child support modifications, bond reduction motions, guardianship applications, etc.). The normal practice in my state is that most judges would start with wanting to know what has changed since the last trial.

Posted by: tmm | Jan 28, 2018 9:49:35 AM

T. Thank you for this useful analysis.

Posted by: David Behar | Jan 28, 2018 6:16:53 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB