Jefferson County has one of the highest rates of capital punishment in the nation, according to a report released last month by Harvard Law School’s Fair Punishment Project. The two-part report, entitled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, found Jefferson County to be one of only 16 counties in the nation to impose five or more death sentences between 2010 and 2015.
In Jefferson County’s case, the researchers diagnosed the causes of the high capital punishment rate as “overzealous” prosecutors, biased jury selection, and inadequate resources provided to defense attorneys. In addition, local practitioners of the law point to Alabama’s status as the only state that allows non-unanimous juries to sentence defendants to death, and to the ability of judges to override jury recommendations and impose death sentences as compounding the high rates of capital punishment.
When asked why Jefferson County had one of the nation’s highest rates of capital punishment, Rob Smith, director of the Fair Punishment Project, indicated two major factors. “One reason is benign, which is that Jefferson County has a population that’s bigger than a lot of places.,” he said. “The second reason is less benign. I think it’s that the prosecutors in that county have an overzealous use of the death penalty in terms of how many times they use their discretion to charge it and then pursue those cases all the way to a death sentence.
“So I think you have a dual reality,” Smith continued. “You have a large population which absolutely [impacts the rate]. But you also have clear evidence of a personality-driven death penalty. There are a few prosecutors [who] handle capital cases over and over again — Mike Anderton being one of them — and I think if you replace some of those personalities, Jefferson would look much like other [counties] of its size throughout the South that don’t use the death penalty at all, or at least not as often.”
Like the report itself, Smith singled out Deputy District Attorney Mike Anderton for repeatedly pushing for the death penalty in the capital murder cases he has prosecuted. The report highlights Anderton’s handling of the case of defendant Montez Spradley, who sat on death row for three years before being released in September 2015.
Vital to the prosecution’s case was the testimony of Spradley’s girlfriend, Alisha Booker, who claimed that Spradley had confessed to committing a murder to her and threatened her if she testified. Largely on the basis of Booker’s testimony, the jury found Spradley guilty of capital murder and intimidating a witness, but voted 10 to two against the death penalty — only to be overruled by the judge.
However, after Spradley was sentenced to death, his lawyers discovered that Booker had been paid $5,000 for her testimony by a fund set up by the governor’s office that offers reward money to individuals who help solve crimes. This payment had not been disclosed to Spradley’s defense team as required by law, said Richard Jaffe, a defense attorney who served on Spradley’s team. Furthermore, Booker had been paid an additional $5,000 through Jefferson County’s “Crimestoppers” program.
Documents obtained by Spradley’s lawyers show that the district attorney’s office signed off on the payments, said Jaffe.
Anderton denied that he was informed of the payments during the trial, saying that while he knows of the programs, he is not informed of individual payments made by the office.
“Nobody informed me about the money that comes through here to give to witnesses,” he said. He also disputed the allegation that the payments were illegal or unethical, noting that the governor’s office fund and Crimestoppers are longstanding programs and that Booker was not given any payments until after she had made her testimony.
According to Jaffe, Booker later tried to recant her testimony, but officials with the Jefferson County’s Sheriff’s Office told her that she would be charged with perjury and lose custody of her children if she changed her testimony. Booker’s lawyer discovered that the statute of limitations for charging her with perjury had passed, and after Booker recanted her previous testimony in court, the case against Spradley collapsed. In 2013, Spradley took an Alford plea, in which a defendant maintains his innocence but acknowledges that it is in his best interest to plead guilty. Spradley was sentenced to a few more years in jail and completed his sentence in September 2015.
“The biggest finding in Jefferson County is that it’s these personalities among the prosecutors and not the people that are driving the death sentences in communities,” Smith said. “Like Mike Anderton: he is one of, or the personality in Jefferson County. You look at his conduct in these cases, and that tells you a lot about how reliable the death penalty is in Alabama.
“When you get rid of these personalities, people don’t use [the death penalty] anymore,” Smith said, explaining that communities often see a huge reduction in the number of death sentences when the prosecutors who often push for capital punishment leave office. “It’s so person-driven, and the good news is that most prosecutors across America have abandoned it. It’s just these few who are left.”
Anderton, a longtime member of the district attorney’s staff, disagreed with the report’s characterization of his prosecutorial style as “overzealous.” He said that he and other Jefferson County prosecutors do not seek capital cases but do have to prosecute crimes as the law mandates.
“We take a look at what the facts and evidence are that law enforcement brings to us and look at how that is related to the law,” Anderton said. “We look at a capital crime as what the books say [it is]. We don’t try to make capital cases. We don’t go out and just arrest somebody. We try to get the bad guy.
“I have a profession, and my profession has ethical rules, whether people believe it or not,” he said. “I have always strived to live up to those rules, because I’m not looking for convictions, I’m looking for justice.”
Anderton said he did not know for sure why Jefferson County has such a high rate of death penalty sentences. But he noted that Jefferson is the most populous county in the state, which naturally leads to higher rates of crime, including capital crimes.
District Attorney Brandon Falls, a Republican in a race to keep his seat in this week’s election, also strongly disputed the criticisms made against the county’s prosecutors. Falls emphasized that defendants who received the death penalty had all been found guilty of committing capital murder in a court of law. Falls noted that of the five cases covered in the Too Broken to Fix report, two no longer have the death penalty imposed as a sentence.
“The study misrepresents the facts of the cases it does cite in an effort to argue that the death penalty should be declared unconstitutional. Educated minds can disagree about the effectiveness and appropriateness of the death penalty,” Falls said. “The role of the District Attorney’s Office is to protect the citizens of Jefferson County by enforcing the law as set out by the Alabama Legislature, the Alabama appellate courts, and the U.S. Supreme Court, and to do so without bias toward any individual.”
Falls argued that county prosecutors were obligated by law to press charges as fit the crime.
“If someone commits a crime that meets the elements of capital murder, then we charge capital murder,” Falls said. “The law really doesn’t allow any other way. If two or more persons are killed … that’s capital murder. There’s no other charge. The same is true of murder for hire. The same is true for an intentional murder during robbery in the first degree, intentional murder during rape of the first degree, intentional murder during burglary of the first degree. So rather than pick and choose cases, we want to make sure that the correct charge is made.
“Now, that allows us to reduce the charge if we think it’s the right thing to do, but you have to start with the law itself. You can’t just say, ‘Well, we’re going to ignore the law during our charging process.’ That’s truly the only fair way to do it, to make sure that you’re treating everybody completely fairly instead of picking and choosing at the beginning of the process which cases will be charged according to law and which ones won’t.”
Falls’ opponent in the race for the district attorney’s office, Charles Todd Henderson, a local attorney who has practiced criminal defense law for 14 years following 11 years in law enforcement, also criticized local prosecutors for aggressively pursuing the death penalty. Henderson, a Democrat, argued that Jefferson County prosecutors pursue capital punishment to intimidate defendants into taking a plea deal.
“I’m of the opinion that the district attorney’s office uses the death penalty as a strong-arm tactic to entice defendants into plea bargains,” Henderson said. “I think that’s just wrong. We should charge a crime as the elements of the crime fit, instead of using capital [punishment] as a strong-arm tactic.”
Falls emphatically denied that prosecutors pursue the death penalty in any case where it is not warranted.
“That is the kind of statement I would expect from someone trying desperately to win a political race. But I have said many times for people in all areas of the political spectrum, a capital murder is not the proper issue for political fodder,” Falls said. “The most difficult thing I have ever done as a prosecutor is stand before a jury and ask them to make that decision between whether someone should be sentenced to life without parole or death. And as a man of God, it should be the hardest thing I’ve ever done. For someone to make a casual statement to that effect is really completely out of line.”
The Too Broken to Fix report also faulted Jefferson County prosecutors for pursuing capital punishment in cases where the defendant displayed evidence of a mental impairment. The report found that individuals with mental illnesses or intellectual disabilities are disproportionately sentenced to death in Jefferson County.
“The people who are sent to death row and are executed in Jefferson County and throughout Alabama are not the worst of the worst but are disproportionately the most impaired people, the most broken people, the most vulnerable people,” Smith argued. “The prosecutors should demand an investigation into the mitigation evidence that has enough resources and is of a high enough quality to make a charging decision. They have an independent obligation to make sure that the person has sufficient culpability — that they don’t have mental impairments — before they seek a death sentence.“
Falls took issue with this claim, noting that when the mental status of a defendant is in question, the state employs doctors who provide examinations and turn their findings over to the prosecutors.
“We are arguing the evidence that is provided by an expert for the state. They’re making claims that that’s overzealous,” Falls said. “No, it’s arguing the evidence that we have been presented in the case.”
In light of Jefferson County’s racial history, one of the report’s most striking findings is that every single defendant sentenced to death since 2010 has been an African-American man. The report’s authors do not hazard a guess as to the cause, but do note that in two of the cases that the researchers investigated, qualified prospective black jurors had been excluded from the jury by the prosecution.
“Why do you get to a reality of where every defendant who’s been sentenced to death in a county like Jefferson has been an African-American? It’s incredibly multifaceted, so it’s difficult to point to a single factor,” Smith continued. “What I think is disconcerting is when it’s every single person [sentenced to death], and it’s in a county that is in a state that has such difficulties with valuing black lives and over-punishing black Alabamians.
“I think it’s difficult to look at the history of Jefferson County and Alabama and to not worry about the degree to which black citizens have been … disconnected from jury service, their ability to serve democracy in a direct and incredibly important way,” Smith said. “I think there’s a lot of reason to believe there’s a pervasive over-punishment of black citizens.”
In 2010, the report notes, the Alabama Supreme Court found that prosecutors had excluded 79 percent of qualified African-Americans from the jury of Bessemer death row prisoner Demetrius Jackson and remanded the case to the lower courts for retrial. Jackson was again found guilty and sentenced to death, but the Alabama Court of Criminal Appeals told the Jefferson County court to reconsider the sentence because the “trial judge overrode the jury’s 10-to-2 recommendation for a life sentence for no apparent reason.” Jackson was finally sentenced to life in prison in 2013.
The report also notes that Birmingham prosecutors “struck eight out of 14 prospective black jurors when prosecuting Anthony Lane, an African-American defendant who was sentenced to death in 2011.” Lane’s death sentence was overturned in 2015 by the United States Supreme Court, which found that Lane’s intellectual disabilities rendered the death penalty unconstitutional in his case.
Henderson agreed that racial exclusion from juries happens in Jefferson County, saying he had seen qualified black jurors disproportionately struck from jury pools in his years as a defense attorney. He also said that the district attorney’s office keeps records of potential jurors who have previously sat on criminal cases and found in favor of the defendant, and that prosecutors use that information to strike off jurors who have found defendants not guilty in the past.
“They’re trying to cherry-pick jurors for these different cases,” Henderson said. “That’s been the practice of the Jefferson County DA’s Office for some time, and I think this is inherently biased and racist in nature.”
Falls disagreed with the charge that jury selection is biased. He did acknowledge that his office keeps records of how individual jurors rule for consideration if they ever come up for jury duty again, but explained that this it standard practice across the nation for both prosecutors and defense attorneys to look into a potential juror’s legal history.
“We wouldn’t be able to strike someone just because they found someone not guilty,” Falls said, and said that the information is useful as a tool to help determine a juror’s potential feelings about a case and strike out jurors who would not be impartial.
Time and Resources for the Defense
In addition to looking at prosecutorial conduct, the Too Broken to Fix report also alleges that defense lawyers in capital cases are given inadequate time and resources to properly protect their clients. The report notes that in 18 cases decided on direct appeal between 2006 and 2015, “defense lawyers presented less than one day’s worth of mitigation evidence in every single case, and in one case no mitigation evidence was presented.”
The report highlights the case of Alfonso Morris, a defendant with an IQ of 53 and “lifelong cognitive and adaptive deficits.” However, his counsel could not afford an expert witness to testify to Morris’s mental impairments.
The Alabama Court of Criminal Appeals found that the trial court’s refusal to grant “funds to hire an independent mental-health expert left him with no defense at the guilt phase of the trial,” though they upheld Morris’s death sentence.
“I think we need to be able to make sure the people we’re representing have… adequate resources and they have the skill and dedication and time to be able to go out and conduct an investigation that’s worthy of the question, ‘Is another person from their community going to live or die?’” said Smith.
David Luker, director of the Jefferson County’s Public Defender’s Office, disputed the report’s characterization of defense work in Jefferson County.
“I have never had a judge deny me resources when I adequately explained what I needed and provided justification for it,” said Luker, who worked in private criminal defense for over three decades before being named head of the Public Defender’s Office in September. “Our judges are very astute at evaluating requests for expenditures and they’re cognizant that the money they’re giving us is coming out of the taxpayer’s pocket, ultimately, and so they’re trying to be good shepherds of that money. But they’re also doing what the Supreme Court and the court decisions have told them they should do to give all of these defendants an opportunity to have constitutionally adequate counsel and constitutionally adequate defense.”
Local private defense lawyers echoed Luker’s sentiments and disputed the report’s allegations concerning the time and resources allotted to defense teams in capital cases.
“I think courts are very aware of the facts of what’s at stake in capital litigation,” said Wendell Sheffield, a criminal defense attorney with Sheffield & Lentine, PC. “The courts allow the defense here in Jefferson County to put on mitigation that’s required under the American Bar Association’s guidelines and also is required under case precedent, and I’ve never found a court that’s restricted our ability to do so.”
“I’ve never heard of any of our Jefferson County sitting judges denying defense requests for mitigation experts or scientific experts, and I think we’re actually doing pretty well with that,” said Brett Bloomston, a defense lawyer with the Bloomston Firm. “I would say as someone who’s practiced in Jefferson County for 20 years … I think we are very fortunate in Jefferson County in that we have judges who were former lawyers who practiced in these same courts.”
Too Broken to Fix points out that judges in Jefferson County have the option of appointing private attorneys in serious criminal cases instead of relying on public defenders. The report quotes Jefferson County Circuit Court Judge Tracie Todd, who wrote in a judicial order in March: “Locally, it is an ‘open secret’ that an attorney all too often receives case appointments in the criminal division based on his campaign contribution, and not squarely on this legal expertise.”
Sheffield and Bloomston both disagreed with Todd’s statements.
“I can’t speak for what judges in Jefferson County might do or not do, but I can tell you [what] our experience has been,” Sheffield said. “I’ve never known a judge who’s [appointed a private attorney] for no reason. My experience is that they try to appoint competent, qualified counsel to represent defendants charged with capital murder.”
“I read [Todd’s order] and I believe that the private counsel that is historically has been appointed in capital cases in Jefferson County are good lawyers,” Bloomston said. “They are dedicated lawyers. They are lawyers that educate themselves on the very difficult task of capital representation, and they do their best. I don’t believe there’s any political agenda behind the appointment of any capital cases.”
In that same order, Todd ruled that the capital sentencing scheme in Alabama was unconstitutional, in large part because Alabama is the last state to allow judges to override jury recommendations and impose a death sentence. In June the Court of Criminal Appeals ordered her to vacate the ruling. In September, the Alabama Supreme Court upheld Alabama’s capital punishment laws in a different case.
When Weld reached out to her, Todd said that because the courts are still considering her order, judicial ethics rules prohibited her from speaking further about the issue. She did reiterate, “People know that unfortunately there is in some cases a ‘quid pro quo.’”
Judicial Override and Non-Unanimous Juries
Two unique features of Alabama law directly contribute to the state’s and Jefferson County’s high capital punishment rates.
Alabama is the last remaining state which allows a judge to overrule a jury’s recommendation against the death penalty, as happened in the cases of Jackson and Spradley. The Harvard Law report found that nearly half of the individuals sentenced to death in Jefferson County since 2006 had a judge override a jury’s recommendation for a life sentence in favor of capital punishment. In her March judicial order, Todd noted, “Judges in Jefferson County have imposed a life-to-death override more than any other county in the state.”
Luker, however, argued that the use of judicial override has been becoming much more infrequent in his years practicing in Jefferson County.
“It doesn’t happen much, and it’s in very egregious cases where it does happen,” Luker said. “I’m not suggesting I agree with it, but I have not seen it happen frequently in the last 10 years, and when it did happen it was in significantly ugly cases.”
In addition to being the only state to allow judges to overrule a jury’s recommendation against the death penalty, Alabama is unique in allowing non-unanimous juries to impose the death penalty. (Florida allowed non-unanimous juries to impose death sentences until October 14, when their supreme court found the practice unconstitutional.)
Too Broken to Fix found that 100 percent of the death sentences handed out in Jefferson County since 2006 came from non-unanimous juries. Smith, however, does not see Alabama as holding out as the sole state to continue this practice for long.
“You’re on notice when every other state in America has either never had the practice or their state supreme court has said it is unconstitutional,” he said. “The Florida Supreme Court found these non-unanimous juries make for less reliable [rulings], they have impacts based on race, they deprive citizens of a community of being able to have a full process during deliberation and for everyone to have a voice, and they’re antithetical to our hundreds of years of our constitutional system.
“There’s a strong possibility that Alabama, if they don’t fix it themselves, will not be given the option of remaining the only state in America that allows non-unanimous juries,” he continued. “I think that there’s a good chance that those verdicts are ruled unconstitutional in the near to medium term.”
Smith noted that prosecutors in Florida fought for over a decade to continue to allow non-unanimous juries to impose capital punishment, in the process spending millions of taxpayer dollars. He warned that trying to defend the practice would almost certainly be a waste of time and taxpayer money.
Falls did not rule out the possibility of Jefferson County prosecutors arguing in court to defend non-unanimous death penalty verdicts or judicial override. But he admitted that he saw the court as being likely to rule against Alabama’s policies in those areas.
“I think what we would be doing is arguing the case law that is before us now and letting the courts make that decision,” he said. “But I will say that I believe we are headed toward … a similar ruling [to the one in Florida] in Alabama. I think it’s just a matter of time before the law regarding those two issues is changed.”
Luker agreed that these policies might soon change, though he also noted that it might eventually become a moot point.
“I think in our lifetime, we’ll see the end of the death penalty,” said Luker. “It’s going away now.”
Too Broken to Fix observes that 2015 saw the fewest capital punishments imparted since the death penalty was reinstated in 1976, and that the number of death sentences given in 2015 was less than half of what it was as recently as 2009. Only 33 counties in the entire nation imposed a single death sentence in all of 2015, and the 16 counties that imposed five or more since 2010 represent less than half of 1 percent of the 3,143 counties in the United States.
“The death penalty in America is dying,” the report states.
The Fair Punishment Project’s two-part report, Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, can be found at fairpunishment.org/part-ii-of-our-report-on-americas-outlier-death-penalty-counties-released.