Less than one day after the U.S. Supreme Court refused to allow Alabama to use nitrogen gas to execute Jeffrey Lee for a 1998 double homicide, his legal team spoke out over Alabama’s former policy called “judicial override.” The loophole allowed the judge in Lee’s case to ignore his jury’s recommendation of life in prison and impose a death sentence. Alabama Public Radio focused on this controversial policy in its 2016 national award-winning investigation titled ‘…and justice for all.” Four months later, Governor Kay Ivey signed legislation ending “judicial override.”
That didn’t help Jeffrey Lee.
In a press release today, Lee’s defense team said…
“But a reprieve on method is not justice on the merits. The courts spared Jeffery from one form of suffering. They did not answer the question that has shadowed this case for 26 years: How can Alabama execute a man whose jury voted for life?
Attorney General Marshall and Governor Ivey both say they will keep seeking justice. We could not agree more that justice must be served. In this case, justice is honoring the sentence imposed by Mr. Lee's jury through a 7-5 vote for life without parole.
The State has spent its energy, and the taxpayers' money, fighting over how to end Mr. Lee's life. We are asking Governor Ivey to consider whether it should end at all. In 2017 Alabama recognized that judicial override was wrong and abolished it. The State cannot now claim it was wrong enough to repeal, but reliable enough to execute.
The fight continues. We continue to ask Governor Ivey to honor the jury's decision, and to reckon with the legacy of the practice she abolished with the first bill she signed as governor. Clemency for Jeffery Lee is justice, and we all agree that justice must be served.”
Alabama Public Radio’s 2016 investigation “… and justice for all” focused on the case of convicted murderer Roy Doster. His case was similar to Jeffrey Lee, in that his jury also voted in favor of life in prison, only to have the judge impose a death sentence through “judicial override.”
APR reported in 2016 how…
“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.
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…
“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.
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 murder,” 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 (Roy Doster’s sister) 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.”
In Jeffrey Lee's case, an Alabama jury convicted him in the year 2000 for a 1998 double homicide that occurred during a pawn shop robbery in the the town of Orville. The panel decided in favor of life in prison and the judge imposed the death penalty.
