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"When the jury says 'life,' and the judge says 'death.' An APR 40th anniversary encore airing

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Alabama’s prison system has been in the news a lot this year, and not for good reasons. Inmate riots, allegations of mismanagement and corruption, and a failed prison building plan in the state legislature have pointed out plenty of problems. The Alabama Public Radio news team has spent the past several months examining what happens as people go into the state’s prison system and what happens when they come out.  I looked into the on-going complaints over how Alabama judges sentence people to death. ?

“I just want what’s right for my brother,” says Jodi Kirkland of Andalusia. Her brother Roy Doster is on Alabama’s death row. “Because he didn’t kill that man. I don’t know about the one in Texas,” she says. “But, Texas ain’t trying to kill him.”

Putting it lightly, the Alabama Judicial system doesn’t consider Roy Doster to be a boy scout. Both killings occurred after he broke out of jail in Covington County. That’s why Doster is on death row… “It’s total misery. It’s like being in a nightmare you can’t wake up from…” If anybody knows what Doster is going through, it’s Randal Padgett of Guntersville. He spent three years on Alabama’s death row. He remembers when he first arrived.

“Well, I got there at night. It was about ten thirty at night. Didn’t have any light in my little cell. And, I’m scared, you know. And, anyway… there’s all this commotion going on, screaming, and metal doors sliding shut.”

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Padgett’s case is different from Roy Doster’s. Padgett’s conviction was thrown out over how prosecutors handled DNA evidence. Doster, on the other hand, is still waiting to die for killing a Covington County man. However, in both cases, the sentence of death was handed down the same way. And Padgett says what his judge did confuses him to this day…

“The jury recommends life without…(parole) so why would he (the judge) reverse that and give me the electric chair.”

Bear in mind, Padgett was convicted in 1990. Alabama electrocuted people until 2002 when lethal injection began. Whether it’s death by voltage or drugs, Jodi Kirkland’s says it’s not fair that her brother’s jury recommended a life sentence, and the judge said no…

“I’m not saying that Roy shouldn’t pay for the crimes that he did commit,” says Kirkland. “But, being put to death is not justice.”

Alabama is the only state in the nation with a statute allowing judges to overrule a jury’s recommendation of life in prison in favor of death sentence. “That is precisely opposite what the Supreme Court says is appropriate,” says Evan Farber. He’s an attorney representing Roy Doster as he appeals his death sentence. And, that defense is taking shape a long way from Alabama.

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Farber is a partner at the law firm Reed Smith in New York City. As for his relationship with Roy Doster… “He is my only death row inmate,” says Farber. “He’s my first death row client, I should say. I may have more over the course of my career.”

Even if Roy Doster’s case is a first for Evan Farber, it’s not for Reed Smith. Most of that firm’s pro bono work centers on judicial overrides. Farber says Alabama’s statute is not only unconstitutional, it’s not right…

“You know, in particular, in a case like Roy Doster’s, where the jury voted twelve-nothing for a life sentence, and one person comes in says ‘well, I disagree, I’m going to impose death,’ that seems incredibly unfair,” he says.

“Really, in no area of criminal law, do juries impose sentences,” according to Andrew Brasher, Alabama’s Solicitor General.

He argues on behalf of the state, and he’s more than ready to go to bat on the subject of judicial overrides… “What juries do is adjudicate guilty and innocence, then those adjudications, under the statutes, work to provide a range of sentencing options,” says Brasher. “Then, a judge chooses from among those ranges.”

At least that appeared to be the case, until something happened back in January. Florida used to be able to allow judicial overrides—but, not any more. That’s due to a U.S. Supreme Court in the murder case involving Timothy Lee Hurst. In Hurst versus Florida, the judge and the jury agreed the defendant deserved death. However, the judge considered evidence the jury didn’t see before making up his mind on a sentence. The Justices said that was wrong.

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For attorney Evan Farber and the case of Roy Doster in Alabama, that Supreme Court decision is a legal ah-ha moment.. sort of… “That’s not saying that they believe that Alabama is equivalent to Florida, but it’s pretty strongly implying it,” says Farber. “So that gives me some hope. And if you read the Florida decision itself, it’s written broadly enough that it seems it ought to apply and, in my view, it does apply to Alabama as well.”

“Our position, which was upheld by the Court of Criminal Appeals, is that Hurst adds nothing,” says Alabama’s Solicitor General Andrew Brasher. He contends the Hurst in Florida case actually proves Alabama’s override statute is constitutional. That’s because how juries find defendants guilty under Alabama law… “There has to be some aggravating factor, or aggravating circumstance, on top of your murde,” says Brasher. “And, the jury has to find that. They either have to find that. They have to find it either at the adjudicating phase, or they have to find it at the sentencing phase.”

By an aggravating factor Brasher means the murder needs to be really bad, like killing someone during a sexual assault, or murdering more than one person during a crime. In Roy Doster’s case, prosecutors argue he was an escaped prisoner when he killed a Covington County man. That, Brasher argues, gave the judge the power to override the jury. Defense Attorney Evan Farber rejects that…

“I mean Alabama is full of sinful hypocrites, and that’s what this state is all about.” Jodi Kirkland’s frustration is clear as time appears to be running out for her brother. “I mean it’s easy to judge someone you don’t know,” she says. “And if you don’t know their heart and the love that it holds, you don’t that person.”

Kirkland also says her brother has stopping talking to her during visits on Death Row. He says the less she knows, the better.

Editor's note: Weeks after APR's national award- winning investigation on prison reform in Alabama aired, the DOJ began a probe into the state's prison system. Months later, Governor Kay Ivey signed a law preventing judges from overruling juries in death penalty cases, though the effectiveness of the law remains in doubt.

Also, attorney Evan Farber was a partner with the law firm Reed Smith from 2010 to 2017. He has since joined the firm Loeb & Loeb as a partner. However, he remains a member of the Reed Smith pro bono team that's represented Alabama death row inmate Roy Doster since 2009. Pat D

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