Smoke Screen Issue


Dick Brewbaker of the Alabama Senate says “his bill to end judicial override will/must be passed in order to save the capital statute in Alabama.”


This bill comes in the wake of turbulence cause by the recent United States Supreme Court ruling in the Timothy Hurst case which derived out of the State of Florida. The court’s ruling in the Hurst case dealt a deadly blow to the structure of Florida’s capital murder sentencing scheme. In response to the court’s ruling the Florida state legislature drafted a new sentencing scheme which made the jury penalty phase decision a verdict instead of a recommendation and provided for the majority’s vote for death be at least 10 for death.


The second portion of the bill was successfully challenged in the State Circuit Court of Dade County Florida and which that court’s ruling was appealed to the Florida Supreme Court; which in turn the Florida Supreme Court deemed the majority vote for death in capital cases was unconstitutional.


The Florida state legislature re-drafted the second portion of its statute in order to comport with its state and the United States’ constitutional demands of a unanimous verdict in capital cases.


For months following the United States Supreme Court’s decision in Hurst v. Florida, then Alabama Attorney General Luther Strange publicly announced that the ruling had no effect on the State of Alabama’s capital murder statute. Though circuit courts judges in the State of Alabama remained hesitant about moving forward with capital cases on their docket, a few of them reconciled their concerns about Alabama’s capital statute in light of Hurst v. Florida ruling from the United States Supreme Court, with the words of Alabama Attorney General (at the time) Luther Strange made this statement despite his plea, months earlier, for the United States Supreme Court to deny cert in the Hurst case because if the higher court rule against the State of Florida then that rule will have an effect on Alabama capital statute 13A-5-40(a) and 13A-5-46.


13A-5-40(a) is the offense section of Alabama’s capital murder statute and 13A-5-46 is the sentencing section.


It’s important to highlight these sections because of how the guilt/innocence phase of the trial is closely connected to the sentencing phase of the trial because of the underlying felony (robbery, burglary, rape, etc.) that makes a murder a capital offense is built into the charge of murder in the guilt/innocence phase of the trial.


A few circuit court judges (on state level) began to proceed with capital trials. However, in the case of Eugene Billups Jefferson County Circuit Judge Tracy Todd (upon motion filed by the defense) ruled in Billups (and other defendants) favor, concluding that Hurst v. Florida did apply to Alabama capital statute which would prevent a defendant from being tried on a capital offense.


Reasoning Circuit Court Judge Tracie Todd held: “The Hurst decision raised questions concerning the offense section of the capital murder statute in Alabama because in order to convict a defendant with a vote of all 12 jurors they must find that the defendant committed the murder during the course of a robbery, burglary, rape, etc. Once coming to a verdict to convict of the offense but failed to find the existence of the same felony to sentence a defendant to death is inconsistent.”


The Alabama Criminal Court of Appeals reversed her ruling in a conflicted opinion. Now the case is pending before the Supreme Court.


Senator Dick Brewbaker drafted and presented a bill which required for a jury verdict, instead of an advisory recommendation in the sentencing phase of a capital trial making the verdict binding upon the court which eliminates the judicial override which has happened several times in the State of Alabama.


This bill drafted by Senator Dick Brewbaker was presented to the State Senate and House of Representatives, passed both houses and Judicial Committee and was signed into law by the Governor of Alabama on April 3, 2017.


During Senator Dick Brewbaker’s campaign for this bill he stated, “If we (legislature of Alabama) didn’t pass this bill the courts are going to strike down our (Alabama) whole statute.”


In Hurst v. Florida the United States Supreme Court condemned non-binding “advisory recommendation by a jury” and “the judge’s ability to sentence a defendant”. Alabama’s system, like that of Florida, “required only an advisory recommendation for a sentence of death by a jury” and “judge’s ability to sentence a defendant”. This was the law of Alabama from 1982 to 2017.


Alabama is attempting to make the Hurst decision solely about judicial override, when the truth is that the bill signed into law by the Governor eliminates advisory recommendation of sentence by a jury.


The effects of the Hurst decision on Alabama’s capital statute has went from the (then) Alabama Attorney General Luther Strange pleading to the United States Supreme Court to rule against Timothy Hurst because a favorable decision would have a negative impact on Alabama’s capital statute 13A-5-40(a) and 13A-5-46.


To: (Then) Alabama Attorney General Luther Strange (in light of the favorable Hurst ruling) proclaiming that Hurst decision doesn’t apply to Alabama capital statute


To: Alabama’s Jefferson County Circuit Court Judge Tracy Todd ruling in the Eugene Billups case that Hurst applies to Alabama capital statute


To: The Alabama Criminal Court of Appeals reversing Jefferson County Circuit Court Judge Tracy Todd ruling the Billups case with a conflicting opinion


To. The Alabama Legislature passing a bill and the Governor signing it into law which curtail the infirmities of the then capital statute in order to meet the Hurst standards going forward in capital cases:




This smoke screen bill fails to address the constitutional violations in capital cases that were tried from 2002 to 2017!