The long wait

Process can leave inmates on death row for decades

Courtesy of Department of Corrections

Alabama’s lethal injection chamber is shown at Holman Correctional Facility in Atmore.

By Tom Smith & Bernie Delinski
Of the TimesDaily

Published: Sunday, October 7, 2007 at 3:30 a.m.
Last Modified: Saturday, October 6, 2007 at 11:42 p.m.

When Tommy Arthur's life was spared Sept. 27, seven hours before he was scheduled to die by lethal injection, he returned to a death row cell block in Holman Prison that houses eight other local inmates awaiting their fate.

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Because of an automatic, lengthy appeals process for convictions that carry the death penalty, Arthur has survived on death row for 24 years.

His time there is not the longest. Thomas Warren Whisenhant, of Mobile, has been on death row for 28 years.

In Alabama, there are 199 inmates on death row. All of them are entitled to an appeals process that began when they were sentenced to die, and can take decades to run its course.

"Some people have been on death row so long that they have died from natural causes or just old age," said Bryan Evans, of Amnesty International, a human rights watchdog and advocacy organization.

Officials say they want to make sure they have taken all measures necessary before executing an inmate.

"When dealing with the ultimate penalty, having so many checks and balances is a way to make sure the individual is guilty," said Franklin County District Attorney Joey Rushing.

The time it takes for those checks and balances, however, can be frustrating, he said.

"It is sort of frustrating when (the defendant) gets to appeal through the long process," Rushing said. "It looks like some of the appeals could be streamlined to shorten that process."

Evans said the appeals process for death penalty cases is long in every state.

"There are time frames and time limits for different steps in the appeals process, but appeals can go back and forth from courts to courts a number of times," Evans said. "It's not a question of speed, it's a question of being fair and accurate."

The appeals process includes these steps:

Direct appeal. This first appeal is heard by the Alabama Court of Criminal Appeals. The attorney files all the evidence presented at the trial with the argument that an error occurred during trial and that the death sentence should be reversed.

If the court upholds the sentence, attorneys can file a petition with the Alabama Supreme Court to hear the case, but that court has the option to hear the case or reject it.

If the Alabama Supreme Court chooses not to hear the case or hears the case and upholds the sentence, the attorney can petition the U.S. Supreme Court. It, too, has

Rule 32. In addition to the direct appeal, a person receiving the death penalty is entitled to an appeal under Rule 32 of the Alabama Rules of Criminal Procedure. This means the defendant raises claims that can include such things as the trial court didn't have jurisdiction, the death sentence is unconstitutional, there is newly discovered evidence or that the defendant had an ineffective attorney at the original trial.

Federal appeal. The defendant can appeal his case in federal courts beginning with the U.S. District Court. If that court upholds the death sentence, the appeal moves to the U.S. Court of Appeals for the 11th Circuit. If this court upholds the district court's decision, the U.S. Supreme Court can again be petitioned to review the case.

Lauderdale County District Attorney Chris Connolly said the appeals process can be trying for the victim's family.

"It seems no one cares about someone sitting in prison on a life-without-parole sentence," Connolly said. "But with a death penalty case, they get all of those appeals. It's automatic."

Any case that carries the potential of a death sentence goes through a lengthy process even before the original trial.

Lauderdale County Circuit Court Judge Mike Jones has files containing 60 motions in a pending capital murder case.

"You don't want it any other way, because a man's life is at stake," Jones said. "The kind of issues that come up in a capital case are more complex, just because of the nature of the crime. In a capital case, 60 motions are not unusual."

The jury in a capital murder case will determine whether to recommend the death penalty. The ultimate decision, however, lies with the trial judge.

If the judge decides on a death sentence, the appeals begin.

"One of the reasons it takes so long to work its way through appellate procedures is it's a different animal than just the original trial," Jones said.

Florence defense attorney Gary Wilkinson said the reason for the long pretrial, trial and appeals processes is because so much is at stake.

"It's one thing to deal with people's money," he said. "It's another thing to deal with someone's liberty and life."

Wilkinson said the process also can put a strain on a defense attorney's regular practice, because he has to dedicate so much time to it. "It can be every day, especially as you come down to trial time."

Tuscumbia defense attorney Steve Aldridge has been involved with four capital cases since January.

Attorneys appointed to the cases are paid $60 an hour for work done in court, and $40 an hour for work outside of court, Aldridge said.

An attorney could make more per hour on other civil or criminal cases, but they have to dedicate so much time to a capital case that they sometimes have to turn down other cases.

Aldridge said he has heard that some attorneys spend about 300 hours preparing for a capital murder case. He said it takes a physical and emotional toll on everyone from both sides, as well as on court officials and jurors.

"You're talking about appeals that will start out at the state appellate level, and will then go into the federal system, possibly all the way to the U.S. Supreme Court, and as new issues develop, they can start all over again," he said. "The areas for appeal are basically limited to the imagination of the attorney."

Aldridge said the death penalty should be imposed in a "quick, cost-effective basis."

"Delaying it for 20 years is just a huge waste of the taxpayers' money and it doesn't deter anyone else from committing the crime when they see people sitting on death row for 20 to 25 years," he said.

Bernie Delinski can be reached at 740-5739 or bernie.delinski@timesdaily.com.

Tom Smith can be reached at 740-5757 or tom.smith@timesdaily.com.

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