Alabama Supreme Court Rejects Trial Judge’s Order Denying Relief Prepared by Prosecutor on Death Penalty Case


The Alabama Supreme Court on Friday reversed the summary denial of death row prisoner Willie Scott’s postconviction petition because the trial court’s order copied verbatim an adversarial pleading written by the prosecutor.

Last year, in Ex Parte Ingram, the Alabama Supreme Court criticized the common and unfair practice of judges signing orders written by prosecutors, even in death penalty cases. The trial judge had dismissed death row prisoner Robert Ingram’s postconviction petition by signing an order written by the prosecutor. The state supreme court found it could not be confident that the order reflected the judge’s independent findings, in part because the order said it relied on the judge’s own personal observations from when he presided over Mr. Ingram’s trial, but the judge who signed it did not actually preside at the trial.

In Mr. Scott’s case, the trial court similarly adopted verbatim as its order the State’s answer to Mr. Scott’s postconviction petition. “Here, we do not even have the benefit of an order proposed or ‘prepared’ by a party,” the Alabama Supreme Court wrote, “rather the order is a judicial incorporation of a party’s pleading” — a pleading that is adversarial and was never intended to be an impartial consideration of the facts and law.

Because the trial court adopted a “work of advocacy that exhorts one party’s perception of the law as it pertains to the relevant facts” instead of making its own independent and impartial findings, the Alabama Supreme Court reversed the summary denial of Mr. Scott’s petition and sent the case back to the trial court so that Mr. Scott can get a fair opportunity to challenge his conviction and sentence.

The holding in Mr. Scott’s case raises questions about fairness and reliability in dozens of death penalty cases in Alabama where judges have adopted wholesale orders written by state prosecutors.