When appellate lawyers read the transcript of Samuel Ivery’s capital murder trial in Mobile, Alabama, they were stunned to read that the prosecutor, in his closing argument, rebutted evidence that Mr. Ivery, who is Black, suffered from mental illness by telling jurors “this is not another case of niggeritous.” They were even more stunned that Mr. Ivery’s lawyer did not object.
At Judy Haney’s capital murder trial, appellate lawyers discovered that her attorney at trial was so intoxicated during the proceedings that the trial judge stopped the trial midway through and ordered the lawyer to be incarcerated in the city jail overnight. The next day, the trial resumed with no objections and Ms. Haney was sentenced to death.
Under Alabama Rule of Appellate Procedure 45A, known as the “plain error” rule, the Alabama Court of Criminal Appeals is required to review on appeal whether incidents like these necessitate a new trial, even if there were no objections at trial.
Last week, the Alabama Supreme Court announced, without input from the Alabama Appellate Rules Committee, that it is eliminating mandatory plain error review, effective immediately. The decision will have a profound impact on death penalty litigation and the reliability and fairness of capital convictions and sentences in Alabama.
In most criminal cases, Alabama appellate courts will address errors or issues on appeal only if the defense lawyer objected at trial. Rule 45A provided that, because death penalty cases require the highest possible level of reliability and scrutiny, the Alabama Court of Criminals is required to address errors or issues raised for the first time on appeal. It applied a higher standard to claims that were not preserved at trial, but it could not refuse to consider those claims.
As the Court of Criminal Appeals described Rule 45A in Ms. Haney’s case:
This rule requires that we notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate action whenever such error has or probably has adversely affected the substantial rights of the appellant.
Rule 45A allowed appellate attorneys to identify and correct unconstitutional conduct that has occurred in capital trials throughout the state. As a result, many wrongful convictions and illegal sentences have been brought to light.
Mandatory plain error review has been responsible for nearly 40% of all reversals in Alabama death penalty cases.
In a state with no statewide public defender system where, for decades, appointed defense lawyers were paid less than minimum wage for representing defendants in capital trials, the plain error rule has been critical in addressing and identifying wrongful convictions and illegal sentences in death penalty cases. Eliminating the rule raises serious questions about the reliability of Alabama’s capital system moving forward.
Plain error has been especially important for addressing illegal racial discrimination in jury selection. Prosecutors have routinely excluded Black prospective jurors from serving on capital trial juries in Alabama. At the capital murder trial of Joe Henderson, the prosecutor struck all 10 Black potential jurors from serving on Mr. Henderson’s jury, but his defense lawyer did not object.
After he was convicted and sentenced to death by an all-white jury, Mr. Henderson’s appellate lawyers argued that the prosecutor had illegally discriminated against Black jurors. The plain error rule required the Alabama Court of Criminal Appeals to address the claim even though there was no objection at trial. The court agreed that the conviction was infected by illegal racial bias and granted a new trial.
Similarly, the prosecutor at Maxine Walker’s trial struck 11 of the 15 Black potential jurors. The prosecutor used various pretexts for removing Black jurors. He claimed that some Black jurors did not appear “well kept,” or were “slow” and “dumb,” or had “no teeth,” or were “country,” “hefty,” or “effeminate.”
Again, the defense lawyer in the case did not object to the prosecutor’s conduct and again the plain error rule required the appellate court to address the claim on appeal. The Court of Criminal Appeals corrected the injustice and granted a new trial due to illegal racial discrimination in jury selection.
The Alabama Court of Criminal Appeals implements and enforces Rule 45A. Both of the Alabama Supreme Court justices who previously served on the Alabama Court of Criminal Appeals—Hon. Kelli Wise and Hon. Greg Shaw—were among the three justices who objected to the court’s order changing the rule last week.
Alabama has an Appellate Rules Committee comprised of outstanding appellate practitioners from across the state who represent parties on all sides of both civil and criminal litigation. Committee members devote a great deal of time to researching and evaluating proposed changes to the appellate rules and offer important perspectives on how proposed rules will impact appellate practice in Alabama.
Proposed rule changes typically are researched and evaluated by the committee, which makes recommendations to the Alabama Supreme Court before the court makes a final decision about whether to adopt proposed new rules or change existing rules.
But the court changed Rule 45A last week without notifying the committee or seeking its recommendation about the rule change, which is unprecedented, especially for a critical and longstanding appellate rule that impacts the most serious cases.