E-Filed
01/15/2016 @ 10:27:26 AM
Honorable Julia Jordan Weller
Clerk Of The Court

IN THE SUPREME COURT OF ALABAMA
EX PARTE CHRISTOPHER BROOKS )
)
In re: State of Alabama,
)
Respondent,
)
)
)
v.
)
)
Christopher Brooks,
)
Petitioner.
)

No. 1951964
DEATH PENALTY CASE
JANUARY 21, 2016 EXECUTION
DATE

PETITION FOR STAY OF EXECUTION AND RELIEF FROM
UNCONSTITUTIONAL SENTENCE

Leslie S. Smith (SMI162)
FEDERAL DEFENDERS
MIDDLE DISTRICT OF ALABAMA
817 South Court Street
Montgomery, AL 36104
Tel.: (334) 834-2099
Fax: (334) 834-0353
Leslie_Smith@fd.org
Counsel for Mr. Brooks

 TABLE OF CONTENTS
Table of Contents ______________________________________________ i
Table of Authorities _________________________________ ii
I.

Introduction ___________________________________ 1

II. Statement Of The Case __________________________ 1
III. Argument _______________________________________ 5
A. This Court Should Consider Recent United
States Supreme Court Precedent Which Calls
Into Question The Constitutionality of
Alabama’s Capital Sentencing Scheme ________ 5
B. A Stay Of Execution Is Warranted __________ 20
Certificate of Service _______________________________ 23

i

 TABLE OF AUTHORITIES
Federal Cases
Brooks v. Alabama, 522 U.S. 893 (1997) ___________________4
Brooks v. Comm’r, 719 F.3d 1292 (11th Cir. 2013) _________5
Harris v. Alabama, 513 U.S. 504 (1995) ______________passim
Hildwin v. Florida, 490 U.S. 638 (1989) _____________11, 20
Hurst v. Florida, 135 S. Ct. 1531 (2015)_________________ 6
Hurst v. Florida, 2016 WL 112683 (Jan. 12, 2016) ___ passim
Payne v. Tennessee, 501 U.S. 808 (1991) _________________10
Ring v. Arizona, 536 U.S. 584 (2002) ______________6, 7, 16
Roberts v. Comm’r, Alabama Dep’t of Corr.,
677 F.3d 1086 (11th Cir. 2012) ______________________20
Spaziano v. Florida, 468 U.S. 447 (1984) __, 11, 12, 14, 20
Woodward v. State, 134 S. Ct. 405 (2013) ________________22
State Cases:
Adams v. State, 955 So. 2d 1037 (Ala. Crim. App.2003) ____8
Boyd v. State, 715 So. 2d 825 (Ala. Crim. App. 1997) _____8
Brooks v. State, 695 So. 2d 176 (Ala. Crim. App. 1996) ___4
ii

 Brooks v. State, 929 So. 2d 491 (Ala. Crim. App. 2005) ___4
Ex parte Brooks, 695 So. 2d 184 (Ala. 1997) ______________4
Ex parte Carroll, 852 So. 2d 833 (Ala. 2002) _____________9
Ex parte Harrell, 470 So. 2d 1309 (Ala. 1985) ___________14
Ex parte Harris, 632 So. 2d 543 (Ala. 1993) _____________14
Ex parte Nelson, 562 So. 2d 310 (Ala. 1989) _____________23
Ex parte Roberts, 735 So. 2d 1270 (Ala. 1999) ___________20
Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2002) ___________21
Gaddy v. State, 698 So. 2d 1100 (Ala. Crim. App. 1995) ___8
Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991) ____9
Harris v. State, 632 So. 2d 503 (Ala. Crim. App. 1992) __19
Jackson v. State, 133 So. 2d 420 (Ala. Crim. App. 2009) __8
Lambrix v. Jones, No.: SC16-56 (Fla. Jan. 12, 2016) ____ 23
Tedder v. State, 322 So. 2d 908 (Fla. 1975) _________13, 15
Woodward v. State,
123 So. 3d 989 (Ala. Crim. App. 2011) _______________14
State Statues:
Ala. Code § 13A-5-46(a) __________________________8, 17

iii

 Ala. Code § 13A-5-46(d) ______________________________8
Ala. Code § 13A-5-46(e) ______________________________8
Ala. Code § 13A-5-46(g) _____________________________17
Ala. Code § 13A-5-47 ____________________________18, 20
Ala. Code § 13A-5-47(a) ___________________________8, 9
Ala. Code § 13A-5-47 (d) _____________________________8
Ala. Code § 13A-5-47(e) ____________________7, 8, 9, 19
Ala. Code § 13A-5-49 ________________________________17
Ala. Code § 13A-5-51 ________________________________17
Ala. Code § 13A-5-52 ________________________________17
Ala. Code § 13A-5-58 ________________________________22
Ala. Code § 13A-5-59 ________________________________22
Fla. Stat. Ann. § 921.141 ___________________________18

iv

 I. INTRODUCTION
Christopher Brooks is under sentence of death at Holman
Prison in Atmore, Alabama.

Mr. Brooks’ execution has been

scheduled for January 21, 2016.

Mr. Brooks’ death sentence

might be unconstitutional under Hurst v. Florida1 and, if it
is unconstitutional, he is entitled to relief. Mr. Brooks’
death sentence should not be carried out while critical
questions concerning the constitutionality of Alabama’s
capital sentencing scheme remain unanswered. Thus, this
Court should exercise its equitable powers, grant Mr.
Brooks a temporary stay of execution, and undertake full
consideration of this issue.

II. STATEMENT OF THE CASE
On December 31, 1992, during a welfare check, Homewood
Police discovered Jo Deann Campbell’s partially clothed
body concealed beneath her bed.2 Crime scene investigators
soon surmised that Ms. Campbell had been sexually assaulted
and beaten to death and her belongings, including her
credit card, car, and other items, taken. Christopher

1
2

No. 14-7505, 2016 WL 112683, at *1 (U.S. Jan. 12, 2016).
(R. 336).
1

 Eugene Brooks and Robert Patrick Leeper, who had been
overnight guests of Ms. Campbell’s on December 30, quickly
became prime suspects in her murder.3 Although physical
evidence established the presence of both men in Ms.
Campbell’s home, and though police attributed the theft of
Ms. Campbell’s property to both men, only Mr. Brooks
eventually faced three capital murder charges -- murder
during rape, murder during robbery and murder during
burglary.4
Mr. Brooks, who was by then 20 years old, went to trial
in the Jefferson County Circuit Court on September 20,
1993, only nine months after his arrest.5 Because Mr. Brooks
could not afford to hire lawyers, two were appointed to
represent him: Scott Boudreux and Ken Gomany. A jury
convicted Mr. Brooks of capital murder on September 23,
1993.6 Later, after considering virtually no mitigating

3

(R. 299-302).

Despite the evidence implicating Mr. Leeper in the crime, the
prosecution allowed Mr. Leeper to plead guilty to theft of a credit
card and he received a five year split, time served sentence on
December 17, 1995.
4

5

(R. 12).

6

(C.R. 93-95).
2

 evidence and two aggravating circumstances, the jury
recommended a death sentence by an 11-1 margin.7
On November 10, 1993, when it was time for Mr. Brooks’
counsel to present more mitigating arguments and evidence
to Judge James Hard about why his life should be spared,
his counsel offered none.8 In contrast, the prosecution
presented an abundance of additional aggravating evidence
to Judge Hard that the jury had not considered -- 20 victim
impact letters, each of them demanding the court’s
imposition of the death penalty.9 Many of these letters
lobbied for Mr. Brooks’ death sentence as the sole means of
avenging Ms. Campbell’s tragic murder.10 Everybody present
for Mr. Brooks’ sentencing knew, as Mr. Brooks’ counsel
surely did, that the purpose of this victim impact evidence
was “to put the heat” on Judge Hard, an elected judge, to
sentence Mr. Brooks to death.11 Judge Hard sentenced Mr.

7

(C.R. 96).

8

(R. 1232).

9

(R. 1241).

10

(C.R. 121-138).

11

(R. 1241).

3

 Brooks to death on November 10, 1993. In doing so, Judge
Hard apparently considered the victim impact evidence.12
The Alabama Court of Criminal Appeals affirmed on July
3, 1996.13 On April 25, 1997, this Court affirmed.14 The
United States Supreme Court denied Mr. Brooks’ Petition for
a Writ of Certiorari on October 6, 1997.15
On September 4, 1998, Mr. Brooks filed a petition for
post-conviction relief, pursuant to Ala. R. Crim. Pro. 32.
He filed amended petitions in July 1999 and in May 2000. A
lawyer from Michigan volunteered to represent him.

In May

2000 and July 2000, evidentiary hearings were held. On
November 15, 2001, the Circuit Court denied his amended
petition, and adopted the State’s proposed order verbatim.
Mr. Brooks timely appealed to the Alabama Court of
Criminal Appeals on December 10, 2001.

That court affirmed

on April 29, 2005.16 On August 5, 2005, Mr. Brooks’

See (C.R. 26) (referring to letters received and made part of
the record).
12

13

Brooks v. State, 695 So. 2d 176 (Ala. Crim. App. 1996).

14

Ex parte Brooks, 695 So. 2d 184 (Ala. 1997).

15

Brooks v. Alabama, 522 U.S. 893 (1997).

16

Brooks v. State, 929 So. 2d 491 (Ala. Crim. App. 2005).
4

 application for rehearing was denied.

Mr. Brooks filed a

petition for writ of certiorari, which was denied by this
Court on October 21, 2005.
On November 21, 2005, Mr. Brooks filed a petition for
writ of habeas corpus in the Northern District of Alabama.
A sole practitioner from Birmingham accepted an appointment
to represent Mr. Brooks and filed amended petitions on his
behalf on September 29, 2006 and on October 30, 2006.

On

March 31, 2009, the district court denied the petition
without an evidentiary hearing.
Mr. Brooks timely appealed to the United States Court
of Appeals for the Eleventh Circuit.

On June 27, 2013, the

Eleventh Circuit denied relief.17 On December 11, 2013, Mr.
Brooks filed a petition for writ of certiorari in the
United States Supreme Court. The petition was denied on
March 24, 2014.
III. ARGUMENT
A. THIS COURT SHOULD CONSIDER RECENT UNITED STATES
SUPREME COURT PRECEDENT WHICH CALLS INTO QUESTION
THE CONSTITUTIONALITY OF ALABAMA’S CAPITAL
SENTENCING SCHEME.

17

Brooks v. Comm’r, 719 F.3d 1292 (11th Cir. 2013).

5

 On January 12, 2016, the United States Supreme Court
decided Hurst v. Florida.18 There, the question presented
was: “Whether Florida’s death sentencing scheme violates
the Sixth Amendment or the Eighth Amendment in light of
[the Supreme] Court’s decision in Ring v. Arizona, 536 U.S.
584 (2002).”19 In Ring, the Supreme Court held that if a
“State makes an increase in a defendant’s authorized
punishment contingent on the finding of a fact, that fact no matter how the State labels it - must be found by a jury
beyond a reasonable doubt.”20 But, contrary to Ring’s jurysentencing requirement, Florida’s capital scheme allows the
trial judge to consider and weigh aggravating and
mitigating circumstances, independently from the jury’s
advisory sentencing verdict, and to make the final
determination as to whether a capital defendant should be
sentenced to death.21

Hurst v. Florida, No. 14-7505, 2016 WL 112683, at *3 (U.S. Jan.
12, 2016).
18

Hurst v. Florida, 135 S. Ct. 1531, 191 L. Ed. 2d 558 (2015)
(granting certiorari to answer this question).
19

20

536 U.S. at 602.

21

Hurst, No. 14-7505, 2016 WL 112683, at *3.

6

 In Hurst, seven justices held that Florida’s capital
sentencing scheme violates the Sixth Amendment in light of
Ring.22 In doing so, Hurst reaffirmed what Ring had already
said: “The Sixth Amendment requires a jury, not a judge, to
find each fact necessary to impose a sentence of death. A
jury's mere recommendation is not enough.”23
Hurst described the portions of Florida’s statutory
sentencing scheme at issue. This description makes clear
that the Florida capital sentencing procedure is, in all
pertinent parts, virtually identical to Alabama’s.
Like Florida, Alabama employs a hybrid procedure in
which the jury renders an advisory verdict with the judge
responsible for the ultimate sentencing decision.24 Like
Florida, following trial on the question of guilt or
innocence, the sentencing judge conducts an evidentiary
hearing before the jury on the question of the sentence to

Id. at *3. Concurring in the result, Justice Breyer reasoned
that Florida’s scheme violated the Eighth Amendment.
22

23Id.

Ala. Code §13A-5-47(e); Harris v. Alabama, 513 U.S. 504, 508
(1995).
24

7

 be imposed.25 Like Florida, the jury is instructed by the
judge, retires to deliberate, and returns an “advisory
verdict.”26

Like Florida, there is no statutory or

constitutional requirement that the jury make specific
findings of aggravating or mitigating circumstances during
this sentencing phase of the capital case.27
More importantly, like Florida, the court later makes
its own decision, notwithstanding the recommendation of the
jury.28 Like Florida, the trial court must set forth written
findings if it imposes a death sentence.29

And like

Florida, the jury’s recommendation “is not binding upon the
court.”30

25

Ala. Code § 13A-5-46(a).

26

Ala. Code § 13A-5-46(d).

Ala. Code § 13A-5-46(e); Adams v. State, 955 So.2d 1037, 1101
(Ala. Crim. App. 2003); Boyd v. State, 715 So.2d 825, 846 (Ala.
Crim. App. 1997); Gaddy v. State, 698 So.2d 1100, 1143 (Ala. Crim.
App. 1995); Haney v. State, 603 So.2d 368, 387-388 (Ala. Crim.
App. 1991).
27

28

Ala. Code § 13A-5-47(a).

29

Ala. Code § 13A-5-47(d).

30

Ala. Code § 13A-5-47(e).

8

 Although a jury's recommendation is to be given weight,
and a recommendation of life imprisonment without the
possibility of parole is to be treated as a mitigating
circumstance, its weight in the trial court’s decisionmaking is dependent upon a number of factors, which permit
the trial court to override that recommendation.

In fact,

“the jury's recommendation may be overridden based upon
information known only to the trial court and not to the
jury when such information can properly be used to
undermine a mitigating circumstance.”31 As long as the trial
court provides appropriate written justification, the trial
court has the discretion to “override” a jury’s
recommendation of a life without parole sentence.32
And most importantly, as in Florida, a capital
defendant in Alabama is not sentenced to death unless the
trial court has determined that to be the sentence.33

The

jury recommendation is advisory only and does not stand as
a sentence, let alone a final one.

As with Timothy Hurst,

31

Ex parte Carroll, 852 So.2d 833, 836 (Ala. 2002).

32

Jackson v. State, 133 So.2d 420, 443 (Ala. Crim. App. 2009).

33

Ala. Code § 13A-5-47(a).
9

 in the absence of the trial court’s fact-findings and
imposition of sentence, Christopher Brooks would not have
received a death sentence.
In Mr. Brooks’ case, the jury voted, 11-1, in favor of
an advisory death verdict. Weeks later, the trial judge
sentenced him to death after improperly34 considering
aggravating evidence which had not been presented to the
jury, and independently evaluating aggravating and
mitigating circumstances.35
Mr. Hurst was similarly situated. After the jury
recommended a death sentence, he was twice sentenced to
death based on a trial judge’s separate, independent
determination that the aggravating circumstances outweighed
the mitigating ones.36 Hurst now forbids “a judge [to]
increase[] … authorized punishment based on her own
factfinding.”37 In so holding, the Supreme Court explicitly
The Eighth Amendment forbids the admission of “a victim’s family
members’ characterization and opinions about the crime, the
defendant, and the appropriate sentence.” Payne v. Tennessee, 501
U.S. 808, 830 n.2 (1991).
34

35

See (C.R. 21-32).

36

Hurst, No. 14-7505, 2016 WL 112683, at *4.

37

Id. at *6.

10

 overruled its decisions in Hildwin v. Florida38 and Spaziano
v. Florida,39 which had concluded that “the Sixth Amendment
does not require that the specific findings authorizing the
imposition of the sentence of death be made by the jury.”40
Thus, Hurst potentially imperils the constitutionality of
Alabama’s capital sentencing scheme, which also vests in
the trial judge sole discretion for determining whether to
impose the death penalty.
Alabama’s amicus brief to the United States Supreme
Court in Hurst evinces its legitimate concerns about the
constitutionality of its judicial sentencing scheme. There,
Alabama’s Solicitor General acknowledged that “[t]hree
states – Delaware, Florida, and Alabama – allow a judge to
impose a sentence regardless of a jury’s recommendation.
See Ala. Code § 13A-5-47; Fla. Stat. § 921.141; Del. Code
tit. 11, § 4209(d).”41 Alabama told the Supreme Court that

38

Hildwin v. Florida, 490 U.S. 638 (1989).

39

Spaziano v. Florida, 468 U.S. 447 (1984).

40

Hurst, No. 14-7505, 2016 WL 112683, at *8.

Brief Of Amici Curiae Alabama and Montana in Support of
Respondent at 7, Hurst v. State of Florida, 135 S. Ct. 1531 (2015),
2015 WL 4747983.
41

11

 “Ring … left untouched [precedent] holding that judicial
sentencing is consistent with the Sixth Amendment.”42
Critically, the Solicitor General repeatedly urged the
Court not to “upset established precedent”43 by overruling
the pre-Ring cases Harris v. Alabama44 and Spaziano v.
Florida,45 which had previously affirmed the
constitutionality of judge-sentencing schemes in Alabama
and Florida. To that end, Alabama’s amicus brief asserted
that “Florida and Alabama have relied on this Court’s
decisions in Spaziano and Harris to sentence hundreds of
murderers in the intervening decades. Some of those
murderers have likely already been executed. Others are
presently on death row.”46 These arguments recognized that
the Supreme Court’s rejection of Florida’s sentencing
scheme and Spaziano would mean that Alabama’s nearly

42

Id.

43

Id. at 19.

44

Harris v. Alabama, 513 U.S. 504, 512-513 (1995).

45

Spaziano v. Florida, 468 U.S. 447 (1984).

Brief Of Amici Curiae Alabama and Montana in Support of
Respondent at p, Hurst v. State of Florida, 135 S. Ct. 1531 (2015),
2015 WL 4747983.
46

12

 identical scheme would almost certainly fail to meet
constitutional standards.
In Spaziano, the Supreme Court held that Florida’s
death penalty statute was constitutional even though it
permitted judicial override of a jury’s recommended
sentence. Spaziano did not allege any constitutional
infirmity in his jury sentencing. Rather, he argued that
the practice of judicial override itself violated the
Eighth Amendment’s proscription against cruel and unusual
punishments, the Double Jeopardy Clause, the Sixth
Amendment, and the Due Process Clause.47 The Florida scheme
was upheld, in part, because jury recommendations are
accorded “great weight” by the sentencing judge, which the
Supreme Court found ensured that death sentences were not
arbitrarily applied.48

47

Spaziano, 468 U.S. at 457.

Id. at 465 (citing Tedder v. State, 322 So.2d 908, 910
(Fla.1975)); Harris, 513 U.S. at 511 (citing Spaziano, 468 U.S. at
465) (stating that “the hallmark of the analysis is not the
particular weight a State chooses to place upon the jury’s advice,
but whether the scheme adequately channels the sentencer’s
discretion so as to prevent arbitrary results.”)
48

13

 The constitutionality of Alabama’s current death
penalty scheme is dependent entirely upon the continued
viability of Harris, which itself is dependent entirely
upon the survival of Spaziano.49 In Harris, the Supreme
Court considered an argument that Alabama’s advisory jury
scheme for capital punishment was “unconstitutional because
it does not specify the weight the judge must give to the
jury’s recommendation and thus permits arbitrary imposition
of the death penalty.”50

In concluding that the scheme was

constitutional, the Supreme Court relied on its decision in
Spaziano, in which it had held that Florida’s scheme, upon
which “Alabama’s death penalty statute is based,” was
constitutional.51

See Ex parte Harrell, 470 So. 2d 1309, 1317 (Ala. 1985)(“We
follow
Spaziano
and
hold
Alabama's
override
provision
constitutional.”); Woodward v. State, 123 So. 3d 989, 1056 (Ala.
Crim. App. 2011), as modified on denial of reh'g (Aug. 24,
2012)(“[T]his Court notes that the Constitution of the United
States does not prohibit vesting the final sentencing authority in
the circuit court. See Spaziano v. Florida, 468 U.S. [447 (1984)].
Further, in Harris v. Alabama, the Supreme Court of the United
States held that Alabama's sentencing standard, which (at that
time) required only that the judge consider the jury's advisory
opinion, was ‘consistent with established constitutional law.’ 513
U.S. 504, 511 (1995)”).
49

50

Harris, 513 U.S. at 505.

51

Id. at 508.

14

 Comparing the Alabama and Florida schemes, the Harris
Court noted that “[t]he two States differ in one important
respect,” namely that the Florida Supreme Court has
interpreted Florida’s statute to include a requirement that
the trial court give “‘great weight’ to the jury’s
recommendation and may not override the advisory verdict of
life unless ‘the facts suggesting a sentence of death [are]
so clear and convincing that virtually no reasonable person
could differ.’”52 The Supreme Court explained, “This
distinction between the Alabama and Florida schemes forms
the controversy in this case – whether the Eighth Amendment
to the Constitution requires the sentencing judge to
ascribe any particular weight to the verdict of an advisory
jury.”53
Ultimately, the Supreme Court concluded that the “great
weight” requirement grafted onto the statute by the Florida
Supreme Court was not constitutionally mandated, and the
Supreme Court’s expressions of approval of that requirement

Id. at 509 (citing Tedder, 322 So.2d at 910) (brackets in
original).
52

53

Id.

15

 in subsequent cases upholding Florida’s death penalty
scheme did not render Alabama’s nearly identical scheme
invalid.54

The Supreme Court concluded its opinion by

explaining, “The Constitution permits the trial judge,
acting alone, to impose a capital sentence.

It is thus not

offended when a State further requires the sentencing judge
to consider a jury’s recommendation and trusts the judge to
give it the proper weight.”55
These holdings in Harris are now directly challenged by
the Supreme Court’s ruling in Hurst.
The Supreme Court was correct when, in Harris, it
described “Alabama’s capital sentencing scheme” as “much
like that of Florida.”56

Alabama’s capital sentencing

scheme provides that, after a jury has rendered an advisory
sentencing verdict and a presentence investigation report
has been prepared,
(d) Based upon the evidence presented at trial,
the evidence presented during the sentencing hearing,
and the presentence investigation report and any
evidence submitted in connection with it, the trial
54

Id. at 509-12.

Id. at 515. This holding is obviously no longer good law.
Ring v. Arizona, 536 U.S. 584, 589 (2002).
55

56

Harris, 513 U.S. at 508.
16

See

 court shall enter specific written findings concerning
the existence or nonexistence of each aggravating
circumstance enumerated in Section 13A-5-49, each
mitigating circumstance enumerated in Section 13A-5-51,
and any additional mitigating circumstances offered
pursuant to Section 13A-5-52. The trial court shall
also enter written findings of facts summarizing the
crime and the defendant’s participation in it.
(e) In deciding upon the sentence, the trial court
shall determine whether the aggravating circumstances
it finds to exist outweigh the mitigating circumstances
it finds to exist, and in doing so the trial court
shall consider the recommendation of the jury contained
in its advisory verdict, unless such verdict has been
waived pursuant to Section 13A-5-46(a) or 13A-5-46(g).
While the jury’s recommendation concerning sentence
shall be given consideration, it is not binding upon
the court.57
The death penalty statute declared unconstitutional in
Hurst, in relevant part, provides,
Notwithstanding the recommendation of a majority
of the jury, the court, after weighing the aggravating
and mitigating circumstances, shall enter a sentence of
life imprisonment or death, but if the court imposes a
sentence of death, it shall set forth in writing its
findings upon which the sentence of death is based as
to the facts:
(a) That sufficient aggravating circumstances
exist as enumerated in subsection (5), and
(b) That there are insufficient mitigating
circumstances to outweigh the aggravating
circumstances.
In each case in which the court imposes the death
sentence, the determination of the court shall be
57

Ala. Code § 13A-5-47.
17

 supported by specific written findings of fact based
upon the circumstances in subsections (5) and (6) and
upon the records of the trial and sentencing
proceedings. If the court does not make the findings
requiring the death sentence within 30 days after the
rendition of the judgment and sentence, the court shall
impose sentence of life imprisonment in accordance with
s. 775.082.58
In an attempt to save its statute, Florida argued that
the jury’s advisory sentencing recommendation “‘necessarily
included a finding of an aggravating circumstance,’” which
“qualified Hurst for the death penalty under Florida law,
thus satisfying Ring.”59 Rejecting Florida’s argument, the
Supreme Court explained,
The State fails to appreciate the central and singular
role the judge plays under Florida law . . . the
Florida sentencing statute does not make a defendant
eligible for death until “findings by the court that
such person shall be punished by death.” The trial
court alone must find “the facts . . . [t]hat
sufficient aggravating circumstances exist” and
“[t]hat there are insufficient mitigating circumstances
to outweigh the aggravating circumstances.” “[T]he
jury’s function under the Florida death penalty statute
is advisory only.” The State cannot now treat the
advisory recommendation by the jury as the necessary
factual finding that Ring requires.60
58

Fla. Stat. Ann. § 921.141.

59

Hurst, No. 14-7505, 2016 WL 112683, at *6.

Id. (internal citations omitted) (emphases and brackets in
original).
60

18

 Again, Alabama is no different from Florida in most
respects. Here, as in Florida, the statute permits the
trial judge, acting alone, to impose the death penalty.61
Nor does the jury’s advisory sentencing verdict save the
scheme because here, as in Florida, the judge decides the
death sentence “[n]otwithstanding the recommendation of a
majority of the jury.”62 Like Florida, Alabama “does not
require the jury to make the critical findings necessary to
impose the death penalty.”63 As noted by the Supreme Court
in Harris, the only meaningful difference between the
Florida and Alabama schemes is that Alabama’s accords much

See Harris v. State, 632 So. 2d 503, 538 (Ala. Crim. App. 1992)
aff'd sub nom. Ex parte Harris, 632 So. 2d 543 (Ala. 1993), on
reh'g (Oct. 29, 1993) aff'd sub nom. Harris v. Alabama, 513 U.S.
504, 115 S. Ct. 1031, 130 L. Ed. 2d 1004 (1995)(“Pursuant to §
13A–5–47(e), Code of Alabama 1975, ‘[t]he trial court and not the
jury is the sentencing authority.’”)
61

62

Ala. Code § 13A-5-47.

Hurst, No. 14-7505, 2016 WL 112683, at *5 (U.S. Jan. 12, 2016).
See, e.g., Ex parte Roberts, 735 So. 2d 1270, 1279 (Ala. 1999)
(“Roberts does not cite any authority, nor have we been able to
find any, for the proposition that if an appellate court remands
a case for a new penalty-phase hearing, that hearing must be
conducted before a jury, not before the trial court only.”)
63

19

 less credence to the jury’s advisory verdict than Florida
does.64
Also rejecting Florida’s appeal to stare decisis, the
Supreme Court, “expressly overrule[d] Spaziano and Hildwin65
. . . to the extent they allow a sentencing judge to find
an aggravating circumstance, independent of a jury’s
factfinding, that is necessary for imposition of the death
penalty.”66
B. A STAY OF EXECUTION IS WARRANTED.
In conclusion, the Supreme Court held, “The Sixth
Amendment protects a defendant’s right to an impartial
jury.

This right required Florida to base Timothy Hurst’s

death sentence on a jury’s verdict, not a judge’s
factfinding.

Florida’s sentencing scheme, which required

the judge alone to find the existence of an aggravating
Roberts v. Comm'r, Alabama Dep't of Corr., 677 F.3d 1086, 1096
(11th Cir. 2012)(noting that “Alabama law does not require the
judge to follow the jury's recommendation no matter the number of
jurors recommending life”).
64

In Hildwin, the Supreme Court, relying on its holding in
Spaziano, rejected a claim that Florida’s sentencing scheme
violates the Sixth Amendment insofar as it allows the trial court
to make the written findings necessary to impose a death sentence.
Hildwin, 490 U.S. at 640.
65

66

Hurst, No. 14-7505, 2016 WL 112683, at *8.

20

 circumstance, is therefore unconstitutional.”67 This ruling
directly impacts both Harris and prior rulings of this
Court.68
Justice Sotomayor, who authored the majority’s opinion
in Hurst, also recently dissented in the denial of
certiorari in Woodward,69 an Alabama case. There, Justice
Sotomayor forewarned that Alabama’s capital sentencing
scheme was incompatible with Ring. She reasoned that “[t]he
very principles that animated our decisions in Apprendi and
Ring call into doubt the validity of Alabama's capital
sentencing scheme.”70
Mr. Brooks is one of those “[o]thers . . . presently on
death row” to which the Solicitor General’s amicus brief
referred. He is presently scheduled to be executed on
January 21, 2016, under a capital sentencing scheme that is
indistinguishable from the one that the Supreme Court just
67

Id. at *9.

See Ex parte Waldrop, 859 So. 2d 1181, 1190 (Ala. 2002)(“Ring
and Apprendi do not require that a jury weigh the aggravating
circumstances and the mitigating circumstances.”)
68

Woodward v. Alabama, 134 S. Ct. 405, 410 (2013) (Sotomayor, J.,
dissenting from denial of cert.).
69

70

Id.

21

 declared unconstitutional.

Given this Court’s statutory

mandate to interpret and reinterpret Alabama’s death
penalty scheme to render it constitutional71 and the relief
available to those already sentenced under an
unconstitutional scheme,72 it should grant Mr. Brooks’
request for a stay of his execution73 pending this Court’s
actions in reinterpreting Alabama’s capital sentencing
scheme to cure, if possible, the constitutional infirmities
identified in Hurst.74

Ala. Code § 13A-5-58 (“This article shall be interpreted, and
if necessary reinterpreted, to be constitutional.”).
71

Ala. Code § 13A-5-59 (“It is the intent of the Legislature that
if the death penalty provisions of this article are declared
unconstitutional and if the offensive provision or provisions
cannot be reinterpreted so as to provide a constitutional death
penalty . . . the defendants who have been sentenced to death under
this article shall be re-sentenced to life imprisonment without
parole.”) (emphasis added).
72

See Ex parte Nelson, 562 So. 2d 310 (Ala. 1989) (granting motion
for stay of execution).
73

To do so, would again be following Florida’s lead. In Lambrix,
a petitioner with a February 11, 2016, execution date, the Florida
Supreme Court, on the day Hurst was issued, ordered briefing on
the “applicability of Hurst v. Florida, No. 14-7505, 2016 WL 112683
(Jan. 12, 2016), to each of Petitioner’s first-degree murder
convictions and sentences of death. Specifically, the Respondent
shall address the retroactivity of Hurst, the effect of Hurst in
light of the aggravating factors found by the trial court in
Lambrix’s case, and whether any error in Lambrix’s case is
harmless.” Lambrix v. Jones, No.: SC16-56 (Fla. Jan. 12, 2016).
74

22

 WHEREFORE, Mr. Brooks respectfully requests that this
Court temporarily stay his execution currently scheduled
for January 21, 2016, direct the parties to present briefs
on the applicability of Hurst, and undertake a thorough
consideration of Hurst’s impact on Alabama’s capital
sentencing scheme.
Respectfully submitted,
/s/ Leslie S. Smith
Leslie S. Smith (SMI162)
FEDERAL DEFENDERS
MIDDLE DISTRICT OF ALABAMA
817 South Court Street
Montgomery, AL 36104
Tel.: (334) 834-2099
Fax: (334) 834-0353
Leslie_Smith@fd.org
Counsel for Mr. Brooks

CERTIFICATE OF SERVICE
I hereby certify that on January 15, 2016, I
electronically filed the foregoing pleading with the Clerk
of the Court using the ACIS system, a copy of the foregoing
pleading will be hand delivered to the following counsel:
J. Clayton Crenshaw, Esq.
Assistant Attorney General
Capital Litigation Division
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130
/s/Leslie S. Smith
Leslie S. Smith
Counsel for Christopher Brooks
23