EJI won reversals today from the Alabama Court of Criminal Appeals in two separate death penalty cases. The court granted new trials for EJI clients Brandon Sykes and Michael Powell after two different prosecutors committed the same constitutional violation at their respective trials.
The Fifth Amendment to the Constitution guarantees that no person “shall be compelled in any criminal case to be a witness against himself.” This fundamental right against self-incrimination means that defendants have the right not to testify at trial—and it bars prosecutors from suggesting a defendant’s silence is evidence of guilt.
Prosecutors cannot comment on a defendant’s decision not to testify. As Alabama courts have repeatedly confirmed, such comments are “highly prejudicial and harmful” because they encourage jurors to assume that, because an innocent person would take the stand to clear their name, a defendant who does not testify must be guilty.
Courts are required to “carefully guard against a violation of a defendant’s constitutional right not to testify.” Accordingly, the Alabama Court of Criminal Appeals found that prosecutors in two different counties committed strikingly similar violations of the right against self-incrimination.
Brandon Sykes was convicted of capital murder and sentenced to death in Lamar County in 2022. During rebuttal closing arguments, the prosecutor told the jury:
“There’s only two people in the world that know what happened in that house. One of them’s dead, and the other one is sitting right over there at the end of that table. (Indicating).”
EJI argued that longstanding Alabama law required the court to find that the prosecutor’s remark was a direct comment on Mr. Sykes’s decision not to testify and required reversal.
The court agreed, finding that the prosecutor’s remark “called the jury’s attention to the fact that [Mr. Sykes], the only eyewitness who could have taken the stand, did not testify,” the Court of Criminal Appeals wrote.
Mr. Sykes’s lawyer failed to object, but EJI argued that the trial court’s failure to take prompt curative constituted plain error. The appeals court agreed and ordered a new trial for Mr. Sykes.
Michael Powell was convicted and sentenced to death in 2021 following a trial during which the Shelby County prosecutor’s remarks violated Mr. Powell’s right against self-incrimination.
During rebuttal closing argument, the prosecutor told the jury:
“You know there is only one person in this room who knows where the gun is. One person, he is sitting over there. That guy knows where the gun is.”
Mr. Powell’s lawyer objected, and after the court overruled his objection, the prosecutor continued:
“There is one man in this courtroom who knows where that gun is, one man and he is sitting right over there next to that jury box.”
The Court of Criminal Appeals held the comment was “an impermissible direct reference to Powell’s failure to explain where the gun is, as Powell is the only person who could have testified as to the whereabouts of the gun.”
Because the trial court failed to promptly remedy the prejudice caused by the comment, the court reversed Mr. Powell’s conviction and death sentence and remanded the case to the trial court.
For 35 years, EJI has been committed to representing people sentenced to death and challenging unconstitutional practices that make the death penalty unreliable, including prosecutorial misconduct.
Official misconduct is a leading cause of wrongful convictions that lead to death sentences. According to DPIC, more than 6.3% of all death sentences imposed since 1972 have been reversed for prosecutorial misconduct or resulted in a misconduct exoneration, and 69% of death-row exonerations have included official misconduct.