Two north Alabama defense attorneys are disputing a judge's ability to override a jury vote and condemn a capital murder convict to death.
Although a change in state law earlier this year takes away judges' ability to reverse a jury decision and sentence a capital murder convict to death, judicial override might not be over.
The judicial override law bans judges from imposing the death penalty when a jury votes to sentence a capital murder convict to life in prison without the possibility of parole. The law became effective with Gov. Kay Ivey's signature on April 11. But, the law appears to leave a question about the cases to which it applies.
For people who were charged with but not convicted of capital murder prior to April 11, prosecutors say judges still can impose the death penalty, even if a jury votes for life without parole. Defense attorneys, on the other hand, say their clients are protected from judicial override -- just like any suspect charged after the April 11 signing date.
One case in question involves Richard Burgin, a man recently convicted of capital murder in the notorious Huntsville church food pantry killings. His lawyers argue Madison County Circuit Judge Karen Hall cannot sentence the 54-year-old to die for killing brothers Anthony and Terry Jackson in 2013.
Because a jury voted 8-4 to send Richard Burgin to prison for life without parole, Judge Hall must impose the jury's recommendation, Huntsville lawyers Larry Marsili and Chad Morgan said in a court filing. The lawyers argue Alabama's recently-enacted Judicial Override law prohibits the judge from reversing the jury's sentencing recommendation.
Burgin was convicted and sentenced in May -- a month after the law was signed by the governor. But, prosecutors say the law doesn't protect Burgin because he was charged with capital murder before the bill became law. Burgin was arrested for capital murder in 2014. He was indicted the following year.
The only sentencing options in Alabama capital cases are life without parole or death. Alabama had been the only state that allows a judge to override a jury's recommendation when sentencing capital murder cases.
Judge Hall has not said whether she plans to sentence Burgin to death.
The judicial override law states, "This act shall apply to any defendant who is charged with capital murder after the effective date of this act and shall not apply retroactively to any defendant who has previously been convicted of capital murder and sentenced to death prior to the effective date of this act."
"It leaves open the question of someone who has been charged but not convicted," said retired Judge John Carroll, a professor at the Cumberland School of Law. "It's not crystal clear."
Madison County Chief Trial Attorney Tim Gann disagrees.
"In the law, they made it real clear," Gann said. "It's not retroactive and it doesn't apply in this case. It's a done deal. It's unambiguous. For us, this is a dead issue."
Joy Patterson, a spokeswoman for the Alabama Attorney General's Office, said the defendant would need to have been charged after April 11 to be protected from judicial override.
Burgin's trial was conducted under the theory that the judge had the final say in sentencing. The Madison County District Attorney's Office asked the jury to sentence Burgin to death, and now prosecutors are requesting the same from the judge. Sentencing is set for Aug. 22 at 1:30 p.m.
Because the defense lawyers argue the judge can't override the jury's recommendation, they say a sentencing hearing is "unnecessary and unauthorized," the court filing states.
"The newly enacted law makes no reference to the initial date of charging concerning the applicability of the law, instead indicating that the law 'shall apply to any defendant who is charged with capital murder after the effective date of this act,' Burgin's lawyers said in the filing.
Defense lawyers Morgan and Marsili also argue that if the legislature intended for the law not to apply in pending cases, like Burgin's, that lawmakers would have specified that.
Alabama Sen. Dick Brewbaker, a Republican from Montgomery, drafted the Judicial Override Bill.
"The intent of the legislature, and what we thought we were doing with passing the bill, was that upon signature of the governor, it would end judicial override in Alabama," Brewbaker told AL.com. "I think everyone in that chamber who voted for the bill thought, going forward, the juries' wishes would be the last word in all cases."
The Judicial Override Bill passed the House and Senate before being sent to the governor.
Birmingham lawyer Richard Jaffe has handled several death penalty cases in his career. He said at this point, the important question isn't whether judges can still legally override a jury verdict, but rather, "Why would they?"
"Because of the new law and the tenuous nature of the override practice, it would be perilous, and frankly, quite foolish for a judge to override," Jaffe said. "It's not in anyone's best interest for a judge to override. It's not fair to the victims' families or to the defendant. It would just be something that's litigated for years to come."
Jaffe told AL.com even before the law changed in April, many judges said override was so questionable that they wouldn't do it.
"You have to think about the constitutional implications," Jaffe said.