For the first time in nearly a decade, Joshua Russell will start the new year without the threat of execution hanging over him. At a new sentencing trial two months ago, he was spared the death penalty and sentenced to life imprisonment without parole.
Background
On the morning of August 24, 2011, Joshua Russell was walking through his Anniston neighborhood, feeling nervous and fearful after smoking synthetic marijuana and getting almost no sleep the night before.
When Anniston police officer Justin Sollohub stopped him, Mr. Russell had a .22-caliber handgun and small amount of marijuana and was aware he had outstanding warrants for nonpayment of child support, so he gave the officer a fake name.
Minutes later, after the arrival of a second officer who knew Mr. Russell’s real name and had a reputation for physically assaulting people during arrests, Mr. Russell ran.
Officer Sollohub chased him down an alley and into a backyard, where there was a confrontation and Officer Sollohub was shot once, sustaining a gunshot wound to the side of his head. Joshua Russell ran away and hid in a drainpipe, where police found him and beat him before taking him into custody.
The trial was moved to Lee County because of pretrial publicity in Calhoun County. Mr. Russell did not dispute that he shot Officer Sollohub, but he consistently maintained that he never intended to kill Officer Solohub. He said he had pulled out the gun to scare the officer so he could run away, and it went off unexpectedly when the officer caught up to him in the backyard.
Mr. Russell was convicted of capital murder on September 16, 2013. At the penalty phase, prosecutors introduced evidence in support of three aggravating circumstances, including that Mr. Russell was under a sentence of imprisonment at the time of the crime because he was on probation after pleading guilty—without a lawyer—to violating a municipal ordinance.
Mr. Russell submitted mitigating evidence, including testimony that his parents had struggled with addiction issues for his entire life and had never taken care of him. He was considered an outcast within his mother’s family because they were white and his father was Black, and he spent his childhood being moved around to different relatives’ homes.
Despite these struggles, Mr. Russell had a loving relationship with his grandmother, who suffered from dementia, and a strong bond with his five-year-old daughter, who “talk[ed] about her dad all the time.”
The jury rejected the death penalty for Mr. Russell and voted for a sentence of life imprisonment without parole. The case was then sent back to Calhoun County.
There, the trial judge disparaged the jury’s decision, citing the “reluctance of Lee County juries to recommend the death penalty” and other improper factors. On December 16, 2013, the judge overrode the jury’s life verdict and sentenced Mr. Russell to death.
Fewer than four years later, Alabama became the last state to abolish judge override.
EJI’s Role
EJI took on Mr. Russell’s case and challenged his conviction and death sentence on appeal. Among other constitutional violations, EJI lawyers argued that the State’s introduction of Mr. Russell’s municipal conviction to support an aggravating circumstance violated state and federal law because Mr. Russell did not have the assistance of counsel when he pleaded guilty and was sentenced to jail and probation in municipal court.
The U.S. Supreme Court and Alabama courts have held that an uncounseled prior conviction cannot be used to enhance punishment. But despite defense counsel’s objections, the trial court allowed the State to present this improper evidence to the jury and relied on the finding that the offense was committed by a person under sentence of imprisonment in condemning Mr. Russell to death.
On September 8, 2017, the Alabama Court of Criminal Appeals agreed. Mr. Russell had a right to counsel in the municipal court case, the court held, and the State did not prove that he was represented by counsel or that he validly waived his right to counsel. As a result, the court concluded, the trial court erred when it allowed the jury to consider that evidence at the penalty phase.
Because the jury and the judge considered an invalid aggravating circumstance, the appeals court reversed Mr. Russell’s death sentence and sent the case back for a new penalty phase trial.
Resentencing
Mr. Russell had a second sentencing trial in September, and the jury once again rejected the death penalty. It returned a 11-1 verdict for life imprisonment without parole.
This time, however, the trial judge respected the jury’s decision. On October 27, the judge sentenced Mr. Russell to life without parole, and he was moved from death row.