Appealing the ultimate penalty.

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Hasty Death Penalty Review Raises Doubt in Alabama

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Everyone who follows the vicissitudes of the death penalty knows Alabama’s sentencing process is seriously flawed. Jaded as I am, I was still shocked to read about the case of Doyle Lee Hamm, who lost his post-conviction quest for review when the judge adopted verbatim an 89-page opinion proposed by the state prosecutor -- one business day after receiving it.

There’s no doubt that this apparent judicial contempt for the deliberative process is morally outrageous, especially when a man’s life is at stake. But does it violate due process? That’s the question that Hamm’s lawyer has asked the Supreme Court to consider. And as it turns out, the answer is far from easy. An appeals court has already said no. And it seems highly unlikely that the justices would agree to take it up. In a perfect world, the Supreme Court would find a way to avoid the legal issue while still making the court write a new opinion.

Hamm isn’t denying that he committed the 1987 murder for which he was convicted. He’s challenging the death sentence, primarily on the ground that his trial lawyer was so ineffective that he was denied his right to counsel under the Sixth Amendment.

It’s almost impossible to win this kind of claim unless your lawyer was asleep or drunk during trial -- preferably both. Nevertheless, Hamm has some colorable grounds. In a capital case, the state offers aggravating circumstances to justify the death penalty, and the defense is supposed to answer with mitigating facts. Hamm’s lawyer introduced just 19 minutes worth of testimony in mitigation. And he didn’t introduce any evidence at all of what Hamm’s lawyer now says is his client’s significant brain damage.

Alabama doesn’t pay for post-conviction attorneys, even in capital cases. (You read that right.) So Hamm’s post-conviction legal proceedings were a bit scattered. One lawyer found a mental health expert to testify. But the next tried to introduce an affidavit of the testimony, and was denied. As a result, the court considering the post-conviction motion never heard the new testimony about Hamm’s mental disability that motivated the whole proceeding.

Quick on the heels of that litigation disaster came the blow spurring Hamm's current complaint. On a Friday in 1999, state prosecutors submitted the long document marked “Proposed Memorandum Opinion” to the judge for review. The following Monday, the judge signed the order, adopting it in full. In a nice rhetorical touch that doesn’t have much legal meaning, Hamm’s current lawyer points out that the judge didn’t even strike out the word “Proposed” from the document before he signed it.

Somewhere along the way, Hamm’s case was taken up by Bernard Harcourt, then a professor at the University of Arizona and now at Columbia Law School. Harcourt isn’t your typical criminal defense lawyer, or, for that matter, your typical law professor. Dashing, brilliant, and immaculately dressed, he has a Ph.D. in political science and is best known for closely argued scholarship inspired by French theorist Michel Foucault.

At oral argument before the U.S. Court of Appeals for the 11th Circuit, the panel seemed concerned that the post-conviction judge in Alabama had failed to consider the prosecutor’s memorandum before adopting it. Judge Adalberto Jordan, an Obama appointee with years of experience as a trial judge, raked Alabama’s counsel over the coals:

I’m telling you: I don’t believe for a second that that judge went through 89 pages in a day and then filed that as his own. As if he had gone through everything, went through his notes, the transcript, the exhibits, and the like. It just can’t be done! It just can’t be done.

But when the time came for the court’s decision, Jordan joined a unanimous, detailed, and thorough (though unpublished) opinion rejecting all of Hamm’s various claims.

That led to Hamm’s current appeal to the Supreme Court. For procedural reasons, the case is unlikely to be heard by the justices.  But it’s still worth asking what the law should be in such cases.

A court has the duty to consider all arguments and provide a reasoned explanation of its judgment. But it isn’t unusual for busy courts to sign orders prepared by parties for their signature. That generally satisfies due process, because the judge is adopting reasons advanced by one side. In the end, that’s the essence of nearly all legal decisions in an adversarial system: the judge agrees with one side, not the other, and gives reasons that often match those the winner gave.

There is still something unseemly about adopting a full 89-page decision. And according to a friend-of-the-court brief filed on behalf of several former Alabama state judges, the practice isn’t unknown in Alabama capital cases. Technically, length shouldn’t matter. If it’s constitutional to sign a one-page opinion, there’s no legal reason to treat a longer one differently.

The speed of the adoption is what seemed to bother Judge Jordan. And indeed, it smacks of a lack of thoroughness. But it is possible that the judge spent the weekend reading the proposed opinion. And if every judicial opinion were scrutinized for circumstantial evidence of how it was produced, few would escape whipping.

So while the Alabama judge’s actions were reprehensible, they likely weren’t demonstrably unconstitutional. I’d love to see the justices make the judge do it over again. But there’s no easy procedural way to get there. Chalk it up as another instance in which the flawed machinery of death makes capital punishment indefensible.

  1. For an unkind, unfair and highly amusing review of a recent book of Harcourt’s, see this link. It might almost make you believe that law review writing isn’t necessarily dull.

  2. It isn’t good from Hamm’s perspective that the 11th Circuit never adjudicated any due process challenge to the adequacy of the Alabama court opinion.

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Noah Feldman at nfeldman7@bloomberg.net

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Susan Warren at susanwarren@bloomberg.net