New York Times

Justices May Review Capital Cases in Which Judges Overrode Juries

March 10, 2015

By Adam Liptak

WASHINGTON — In 2009, an Alabama jury convicted Christie Scott of murdering her 6-year-old son by setting a fire in her home. It then voted to spare her life.

Judge Terry L. Dempsey of the Circuit Court in Russellville rejected that verdict and sentenced Ms. Scott to death. “This jury was probably emotionally and mentally worn out,” he said, adding that jurors might have been swayed by testimony from the victim’s family seeking leniency.

A year later, on the other side of the state, a jury unanimously recommended that Courtney Lockhart, a veteran of the Iraq war, be spared the death penalty for murdering Lauren Burk, a college student.

Judge Jacob A. Walker III of the Circuit Court in Opelika overrode the jury’s verdict and sentenced Mr. Lockhart to death — but for the opposite reason. Judge Walker said Ms. Burk’s family had asked for the death penalty, which “weighs in favor of judicial override.”

The Supreme Court will soon consider whether to hear one or both of the cases — Scott v. Alabama, No. 14-8189, and Lockhart v. Alabama, No. 14-8194 — and to take a new look at the unusual power Alabama gives to its judges.

The court has lately been interested in other aspects of capital sentencing, agreeing on Monday to consider a challenge to Florida’s system in Hurst v. Florida, No. 14-7505.

Alabama is one of three with laws on the books allowing judges to reject juries’ sentencing recommendations in capital cases. In the past decade, it has been alone in sending defendants to death row after juries determined that the just sentence was life in prison.

Alabama law allows judges to override jury recommendations in either direction: from life to death or from death to life. But Alabama judges mostly choose death.

Since the Supreme Court reinstated the death penalty in 1976, judges in Alabama have overridden recommendations of life 101 times and of death just 10 times.

Twenty years ago, the Supreme Court upheld Alabama’s capital-sentencing system. But at least two justices seem ready to reconsider that ruling.

In a 2013 dissent, Justice Sonia Sotomayor, joined by Justice Stephen G. Breyer, said it was time for the court to re-examine a system that let “a single trial judge’s view to displace that of a jury representing a cross section of the community.”

Alabama jurors are not notably squeamish about the death penalty, and those opposed to it are automatically excluded from service. In Mr. Lockhart’s case, the prosecution excluded 10 potential jurors based on doubts about their commitment to capital punishment.

Delaware and Florida also allow overrides. But no one has been sentenced to death in Florida as a result of a judicial override since 1999, and no one is on death row in Delaware as a consequence of an override.

In Alabama, by contrast, more than 20 percent of the inmates on death row are there because of judicial overrides.

Mr. Lockhart’s case is already on the Supreme Court’s radar. Justice Sotomayor’s dissent, in a case involving a different condemned inmate, included an unusual footnote about Mr. Lockhart. She seemed to want to describe an extreme case.

Justice Sotomayor wrote that the jury’s 12-to-0 vote in favor of sparing Mr. Lockhart’s life had been “influenced by mitigating circumstances relating to severe psychological problems Lockhart suffered as a result of his combat in Iraq.”

“Lockhart spent 16 months in Iraq; 64 of the soldiers in his brigade never made it home, including Lockhart’s best friend,” she added. “The soldiers who survived all exhibited signs of post-traumatic stress disorder and other psychological conditions. Twelve of them have been arrested for murder or attempted murder.”

“The trial judge nonetheless imposed the death penalty,” Justice Sotomayor concluded.

Mr. Lockhart is one of five inmates on Alabama’s death row in spite of life verdicts from unanimous juries, according to the Equal Justice Initiative, which represents Mr. Lockhart and Ms. Scott. (The vote in favor of life in Ms. Scott’s case was 7 to 5.)

Justice Sotomayor said she had a theory about Alabama judges’ “distinctive proclivity” for overrides in favor of death.

“The only answer that is supported by empirical evidence,” she wrote, “is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.” She cited a study showing that overrides were more common in election years.

Judges in Delaware, by contrast, are appointed. They generally use their authority to reject death sentences.

But even appointed judges are more prone to sentence defendants to death than juries are. A study in the current Journal of Empirical Legal Studies that looked at three decades of data from Delaware, which has experimented with several systems, found that “the shift to judge sentencing significantly increased the number of death sentences.”

Three veterans’ organizations and the Constitution Project, a legal research and advocacy group, filed a brief supporting Mr. Lockhart. It said Alabama’s judicial overrides interfered with the jury’s role in violation of the Sixth Amendment.

But the more promising line of attack may be under the Eighth Amendment, which bans cruel and unusual punishment.

In a 1988 dissent, long before Alabama found itself alone in using overrides, Justice Thurgood Marshall said that allowing judges to overrule juries could not be reconciled with that amendment.

“The death penalty’s cruel and unusual nature is made all the more arbitrary and freakish,” he wrote, “when it is imposed by a judge in the face of a jury determination that the appropriate penalty is life imprisonment.”

A version of this article appears in print on March 10, 2015, on page A11 of the New York edition with the headline: Justices May Review Capital Cases in Which Judges Overrode Juries.