Just hours after one of its former members lost his Senate bid, the Alabama Supreme Court set a February 22, 2018 execution date for Doyle Lee Hamm, a terminally ill inmate whose case has come to symbolize the injustice of the state’s system. The idea that executioners want to make sure they kill Hamm before he dies of cancer, the fact that it is likely the lethal injection itself will cause him “needless pain” before he dies, may be abhorrent but it’s entirely consistent with the way state officials have handled Hamm’s case for years.
Hamm was convicted of murder and sentenced to death 30 years ago, in September 1987, following a trial in which his constitutional rights were ignored in virtually every way. Witnesses changed their stories, ultimately testifying against him only after they were charged as co-defendants and made sweetheart plea deals. His trial lawyer did a miserable job during the mitigation phase, failing utterly to give jurors a fair sense of the intellectual disability, or perhaps brain damage, from which Hamm has suffered his whole life.
Hamm faces execution because he confessed—a confession that likely wouldn’t hold up today—and because prosecutors told jurors during the penalty phase that Hamm had committed armed robbery in Tennessee—an “aggravating factor” that pushed jurors toward the death penalty. That other conviction was even more dubious, if that’s possible, that the conviction for which Hamm is scheduled to die in February. Even still, after a patently unfair trial, the sentencing verdict against Hamm was not unanimous. Alabama, alone, allows for the imposition of capital punishment in cases in which the jury is not unanimous. It takes only 10 of 12 jurors vote for death. And so it was in Hamm’s case. Eleven jurors bought the prosecution’s story. One did not.
All of which I have written about before in the three years I have been following this case. What has struck me most about it, however, is the way the Alabama courts rubber-stamped the prosecution’s theory of the case. And I mean that literally. Hamm’s case is extraordinary because 12 years after his conviction, following a state court hearing, the presiding judge simply signed without change an 89-page “Proposed Memorandum Order” prepared by prosecutors. The judge didn’t change a word in the document, didn’t fix any of the typos, didn’t correct any of the factual errors, didn’t even bother to strike the word “Proposed” from the title. Instead, he just signed the document the prosecutor showed him—without giving anyone the impression that he even had read the thing.
That’s unacceptable on any level of judicial conduct—it goes to the very heart of judging and the presumption of an independent review of facts and law—and yet when the 11th U.S. Circuit Court of Appeals was asked to do something about it the federal appeals court refused. The federal court included a footnote admonishing “the practice of trial courts’ uncritical wholesale adoption of the proposed orders or opinions submitted by a prevailing party” and still ruled against Hamm even though that’s precisely what had happened in his case. Even the U.S. Supreme Court, when given the opportunity to put to right this nonsense, declined to do so.
Which brings us to today. Hamm’s condition is so dire from cranial and lymphatic cancer, that a doctor who examined him in September could not find an “accessible vein” on Hamm’s feet, legs, left arm or hand. One vein, on Hamm’s right hand, is so damaged, the doctor concluded, that it would likely rupture if executioners poked it with a needle. Hamm’s lawyers have filed a motion requiring state officials to explain how they plan to work around his deteriorating medical condition and explain why Hamm shouldn’t be treated the same as previously terminally ill Alabama death row.
Hamm may or may not have committed murder despite that “confession” Even if he did, however, he deserves more from Alabama’s justice system than he ever received. He deserved a fair trial, a competent lawyer, and legitimate appellate review conducted by an earnest judge. He deserved to be sentenced by a capital system in which only a unanimous jury could condemn him to die. And now, as that death is near, as cancer ravages his body, he deserves to be free from the cruelty of an injection process more likely to result in a botched execution than anything else.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.