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Oct. 9, 2003 Press Contact: Sabrina Miller
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University of Chicago Law School professor prevails at Alabama Supreme Court in 26-year-old death penalty case

On October 3, 2003, the Alabama Supreme Court reversed the death sentence of an Alabama inmate who has spent more than half his life on death row. The decision in the case known as Ex parte Tomlin is one of the first to create a standard of review for judicial override in Alabama and one of the only cases to reverse a judicial override as improper. The United States Supreme Court had previously ruled that the United States Constitution did not require the Alabama judiciary to adopt any particular standard of review for judicial overrides.

The inmate, Phillip Tomlin, had been retried on three separate occasions in Mobile, Alabama, and on each occasion the trial judge overrode the unanimous jury verdict for life and sentenced Mr. Tomlin to death. The Alabama Supreme Court agreed with University of Chicago Law Professor Bernard Harcourt’s argument that the trial court’s override was improper on both state and constitutional grounds and ordered the trial court to resentence Mr. Tomlin to life imprisonment without parole. Mr. Tomlin had been on Alabama’s Death Row for 26 years, originally convicted and sentenced to death in 1978 for his alleged participation in a revenge killing.

“What this decision shows is respect for the jury,” Harcourt said. “The years of litigation, though, reflect many of the very serious problems that plague the death penalty in this country - especially, prosecutorial misconduct leading to two new trials and the repeated override by elected judges of a jury verdict for life.”

On a petition for writ of certiorari to review the judicial override and sentence of death, which the Alabama Supreme Court granted in May 2003, Harcourt, representing Mr. Tomlin pro bono, argued that the trial court improperly overrode the unanimous jury verdict for life imprisonment without parole by considering the death sentence of Tomlin’s co-defendant, John Daniels.

The Supreme Court reversed the lower court and directed the trial court to sentence Mr. Tomlin “following the jury’s recommendation of life imprisonment without the possibility of parole.” In reversing the death sentence, the Alabama Supreme Court agreed with Professor Harcourt that it was improper to consider the co-defendant’s death sentence. “It would be inconsistent,” the Alabama Supreme Court declared, “to hold that Daniels’s sentence could properly be used to undermine the jury’s recommendation of life imprisonment without the possibility of parole.” Justice Houston, concurring specially, quoted Shakespeare’s Merchant of Venice: “in the jury’s unanimous recommendation ‘mercy seasons justice.’”

Professor Harcourt was assisted on the briefs filed with the Alabama Supreme Court by two University of Chicago Law School students, Catherine Doyle and Eric Mersmann, both Class of 2005. Ms. Doyle and Mr. Mersmann conducted extensive legal research, helped frame the arguments, and drafted portions of the briefs.

Harcourt began representing Tomlin in 1990 on an appeal after Tomlin’s reconviction and judge-override sentence of death. At the time, Harcourt was working at the offices of the NAACP Legal Defense Fund in New York City representing Alabama death row prisoners on behalf of the Alabama Capital Representation Resource Center (now the Equal Justice Initiative). Harcourt obtained a new trial in 1992 on the grounds of prosecutorial misconduct in closing argument. While working as a trial and appellate attorney at the Equal Justice Initiative in Montgomery, Alabama, Harcourt participated in Tomlin’s retrial in 1993, which resulted in another judge override of the unanimous jury verdict of life imprisonment and a sentence of death in 1994.

Professor Harcourt continued to represent Tomlin pro bono after returning to Harvard University in 1995. Harcourt obtained a new trial for Tomlin in 1996 on the grounds of juror misconduct. The Alabama Court of Criminal Appeals found that during the voir dire questioning of potential jurors, two individuals subsequently chosen to serve on the jury had hidden vital information about themselves, including the fact that one of them was under indictment on a cocaine charge while sitting on Tomlin’s jury.

Harcourt, along with co-counsel Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta, Georgia, represented Tomlin at a new capital trial in June 1999. Tomlin was convicted of capital murder and, despite the previous unanimous jury verdict of life imprisonment, the trial court also overrode and sentenced Tomlin to death. Harcourt’s recent petition to the Alabama Supreme Court followed an appeal with the Alabama Court of Criminal Appeals, which had affirmed the trail judge’s override and death sentence.
Last modified at 04:04 PM CST on Thursday, October 09, 2003.

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