* Forwarded (from: PIML) by Roy J. Tellason using timEd 1.10.y2k.
* Originally from Margi Crook (1:270/615.77) to All.
* Original dated: Thu Jul 11, 10:28

From: Margi Crook 
Subject: [piml] Trial by Jury Endangered by Revisions

Trial by Jury Endangered by Revisions to Alabama Capital Trial Procedures
By George Everette Sibley

History

At the time the Constitution for the United States of America was drafted
the jury was recognized to the the final check against bad laws and
prosecutorial excesses; and, as contemplated by the Constitution, a
criminal trial jury consisted of twelve men from the general area in which
the crime occurred - and the accused usually lived - willing to be
impartial in their judgment of the law and the facts.    It is necessary
that all 12 concur in order for a conviction to occur, but the dissent of
one causes a failure of the prosecution, upon which the accused my not
again be put in jeopardy for the same crime.    These things are also
contemporary to Alabama's Constitution.    Absent redefinition by
constitutional amendment, they must remain in force in America.   It is
fact that refusals to convict by juries aware of their powers have forced
repeal of bad laws, among them excessively harsh sentences, throughout
America's history.

The historical practice in Alabama, from 1841 throughout the period of
usage of the 1940 Alabama Code, has been that the jury in a capital case
had the power to fix the sentence at either death or life imprisonment, at
their discretion.   There was no equivocation in the statutory language.

Since the close of the Civil War the judiciary has intensified its ongoing
usurpation of power and its displacement of the common law recognized at
the time of the drafting of the Constitution.   Trial by jury is their
greatest impediment, so it has been a prime target of unconstitutional
"interpretation."

Rules of Procedure

Within Amendment No. 328 to the Alabama Constitution are several subtle but
sinister provisions, one of which is section 6.11 which permits rules
drafting by the Alabama Supreme Court (actually done by Alabama State Bar
Association Committee.)   Most would think this innocuous, vizualizing
"rules of procedure" as merely internal rules of decorum; but
limitations upon the scope of these "rules" are few and vague, so
this authorization has been used as excuse for open-ended judicial
legislation, by formal rules and by judicial opinion, in violation of the
Alabama Constitution, Article III, Sections 42 and 43, and Article IV,
Section 44.

The Furman Case

In the case Furman v. Georgia 33LED2d346 (1972) the Supreme Court of the
United States, ostensibly concerned with probable racial bias on the part
of Georgia juries in their imposition of death sentences, issued an opinion
disapproving Georgia's death sentencing method - which, like Alabama's
provided for jury discretion in sentencing to either death or life
imprisonment.   While there is no doubt that many juries were racially
biased - and in fact were often assembled by the prosecutor to be biased -
declaring  jury sentencing power unconstitutional was not the right way to
correct the problem.   Clearly, a jury which is sufficiently biased to
sentence unjustly will also convict unjustly. So, when appeals courts
review the cases on their individual merits, and there is found jury bias,
the conviction should be nullified.  If the appeals process is just, and
convictions in which bias is found are reliably nullified, abuses in the
trial court will soon cease.  Why,
then, the Furman opinion?  In simplest terms: judicial jealousy of the
power of the jury, and a desire for revenue.  The Furman opinion served the
anti-jury agenda in several ways:  future convictions, their volume
essential to a thriving systemic business, could be preserved since only
arbitrary sentencing was addressed; and the stage was set for future
usurpations, especially since the opinions given by the justices were
sufficiently vague and confusing that non-lawyer state legislators would be
likely to agree to the drafting of statutes by lawyers.

In response to the Furman opinion the Alabama legislature passed an ASBA -
drafted code change in 1975, Act No. 213, which provided for review of a
jury imposed death sentence by the trial judge, the purpose of which was to
permit the judge to override the (mandatory, upon conviction) jury-imposed
death sentence  and commute it to life in prison without parole, if he
believed the jury's sentence to be excessive.

The Beck Case

Gilbert Beck's attorney challenged the 1975 Alabama statute on the sole
basis that the statute precluded the option of conviction of what is
called, in legal terminology, a "lesser included offense", but
necessitated a verdict of either "guilty" or "not
guilty" to the capital charge only (Beck v Alabama 65LED2d392(1980)),
and the justices of the Supreme Court of the United States agreed and
remanded to the Supreme Court of Alabama.   That court's justices, in Beck
v State 396S02d645(1981), proceeded to judicially legislate, claiming to
modify the existing statute rather than to declare it to be infirm and
leave
the matter of change to the legislature.   The justices asserted that they
were "severing" the statute's preclusion of consideration of
"lesser included offenses";then, prompted by the urging of the
Attorney General to also "sever" the mandatory sentencing clause 
- a  thing even they could not find a way to pretend without declaring the
entire statute void, and with it all those lucrative and
politically-advantageous convictions - claimed they could construe to be
permissive the plain language of the statutory mandate that if the jury
found the accused guilty, (1) they "shall fix the punishment at
death"; then asserted they "judicially grafted" (as said
later in Ex parte Hays
518So2d768, p. 776 (1986) a "bifurcated" or two-stage trial
procedure to the 1975 death penalty statute, in which the jury would first
determine innocence of guilt; then if the verdict was "guilty".
determine the sentence in a separate, subsequent hearing.   These are
definitely acts of legislation, which the justices claimed to be merely
procedural "rules" changes and not ""substantive";
but what more substantive right could there be , than retention of one's
life and liberty?  What happened here, and why?  Many capital indictments
are sought, and issued, in cases where the crime is not truly capital. 
Jurors, having no lesser option, often will (and should) acquit; or, if
they are convinced to unjustly convict by the prosecutor and judge, the
case will be, most often, overturned by an appeals court.  Either is bad
for business.  By providing lesser charges as an option the prosecution has
a much better chance to get a conviction for something; and, again, the
stage was set for further usurpations.

The 1981 Statute

Subsequent to the acceptance of the Beck case by the Supreme Court of the
United States, Alabama Assistant Attorney General Ed Carnes, aided by ASBA
committees and several other members of the bar, set about drafting a
revised death penalty statute to replace the one drafted in 1975.   The
result was a statute neither conceived nor drafted by the legislature but
"rubber stamped" by them, which added subtle pro-conviction
changes plus the "bifurcated" trial procedure, to which was added
a provision whereby the trial judge could override jury's verdict of a life
sentence and sentence to death instead.   According to procedure, the
jurors are selected only after being asked questions by which to assure
that they have no opposition to imposing a death
sentence.   Through this statute the prior judicial legislation via opinion
was formalized by the legislature; considerable additional work for lawyers
was created (a legal organization has been established for the purpose of
arguing sentencing issues); and a further means of advancing the political
careers of judges was created, who could now posture as "tough on
crime" while imposing death sentences contraary to the will of the
jury.   Death penalty cases are far more lucrative than non-capital cases,
due to federal grants, another incentive for overriding the jury.

The Hays Case.

The crime for which Henry Hays was tried and convicted (and, eventually,
killed)  occurred before the July 1, 1981 effective date of the new
statute, and so he was tried under a combination of the 1975 statute and
the Beck v State opinion/pretended legislation, complete with the
"bifurcated" trial procedure.  The jury in Henry Hays' case voted
for life imprisonment, but the judge overrode and  sentenced him to death.
The Alabama Court of Criminal Appeals pointed out the statutory language -
not contested in the Beck opinion - which only empowered the trial judge to
commute a death sentence, and they overturned the sentence.  The justices
of the Supreme Court of Alabama, in Ex parte Hays 518So2d368 (1986),
claimed that the ability to override a life sentence was
"implicit"  (though clearly not authorized) in the 1975 statute,
and claimed also to "clarify" their opinion in the Beck case, as
implying this claimed authority to override a life sentence.  Making this
assertion of "clarification", the justices then attached it to
Hays' trial expost facto while again  claiming to be making merely a
procedural, and not substantive, change.  In addition to this assumption of
power to apply law/opinion expost facto, in the Hays opinion the justices
asserted that an Alabama judge was never actually bound by a jury's
sentence, despite plain statutory language going back to 1841.

Summation and Prediction

All who acted to bring about the events described here are members of one
or more Bar Associations, and all acted in concert.  For example, the
lawyers who appealed the cases limited the scope of issues presented, and
designed their arguments to facilitate the opinions of the justices.  This
series of events was no accident, but was planned.

Due to the foregoing evolutionary changes through judicial usurpation of
the legislative function, the jury's power to sentence in a capital case
has been eroded from that of having the discretion to pronounce a sentence
of either life in prison or death, to a situation where the judge could
reduce a death sentence to life imprisonment, to being powerless, and
present only in an "advisory" capacity, though specifically
culled to be a pro-conviction assembly through the preliminary death
penalty-related questions.  Thus, they are used as pawns of the prosecution
while giving the appearance of trying the
sentencing issues, in a sham proceeding.

This, based upon past performance, is only the beginning.  The probably
next step is the overriding of acquittals by judges, calling jury verdicts
"wanton" or "freakish", or "bizarre"
(exaggerated terms used in the Furman, Beck and Hays cases).  There has
already been some "testing of the waters" done in this area, in
other states, and a few jurors have even been unconstitutionally punished
for refusing to convict.  There have been several prosecutorial suggestions
that convictions be had by less-than-unanimous juries, the
"precedent" in Alabama set by Section 13A-5-46(f) of the 1981
statute, which allows a 10-2 jury vote to suffice as a verdict imposing the
death penalty.   This agenda is intended to progress to the point where
juries are entirely shams, then eliminated altogether.   This agenda has
advanced so well and so
unnoticed through its application to a highly-unpopular group of people: 
those accused of capital crimes; and by leading many who consider
themselves "law abiding" to ignore injustices and to clamor for
the death of those so accused.  These "law abiding" people fail
to consider that what works injustice in capital cases can also ensnare
them;  that the last check against bad laws, injustice and usurpation is
the informed and impartial jury;  and that unless the continuing
emasculation of the powers of the jury is halted and reversed - by their
refusals to convict when they have doubts about either the law of the facts
- the evolution toward tyranny will be completed, and they will be the
miserable sharers of the event.

(1) Black's Law Dictionary, 6th Ed. says "shall" can mean
"may" in certain circumstances; however in this case Act No. 213
provided no alternative to this directive.

George Sibley is on death row in Alabama for the death of a policeman in
Opelika, Al.  George and his wife Lynda Lyon were traveling in this state,
when a "desked" policeman accosted them in the parking lot of the
Wal-Mart shopping center.  Lynda heard the shooting and dropped the pay
phone when she saw the policeman shooting in the direction of her 9 year
old son.  She got her pistol to defend her child.  The policeman bled to
death and the fatal bullet was never found.  Lynda was electrocuted on May
10, 2002 right before execution was to be changed to lethal injection. 
George is fighting to clear Lynda's name, but the Alabama Attorney General
has asked the Alabama Supreme Court for an execution date for George and
two other prisoners.


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