2 courts on Tuesday denied Alabama death row inmate Christopher Brooks' request to block his execution on Thursday.
The U.S. 11th Circuit Court of Appeals denied the request late Tuesday afternoon. So did the Alabama Supreme Court.
Brooks' attorneys say they will appeal both the Alabama high court and 11th Circuit rulings to the U.S. Supreme court.
Brooks is scheduled to be put to death at 6 p.m. Thursday by lethal injection at Holman Correctional Facility in Atmore. It would be Alabama's 1st execution since July 2013 and the 1st using the state's new 3-drug combination.
Brooks was convicted in the December 1992 rape and beating death of Jo Deann Campbell.
Brooks had sought an emergency stay of execution from the 11th Circuit. He argued he should be given a chance to have his execution delayed, at least until lawsuits by him and other inmates challenging Alabama's new three-drug lethal injection protocol have been decided at a trial in April.
23 years after her brutal death, and with her convicted killer just four days from his execution, Jo Deann Campbell's 2 sisters remember her as a bubbly person who was friends with everyone she met. Christopher Brooks is asked a court to stay his execution.
In its opinion this afternoon denying the stay, the court noted that Brooks in November had joined a federal lawsuit filed by 5 other death row inmates challenging the constitutionality of Alabama's method of execution.
The inmates in that lawsuit claim that Alabama's new three-drug lethal injection protocol - which uses midazolam, rocuronium bromide, and potassium chloride - created a substantial risk of serious harm in violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment.
A federal judge denied his motion for a stay of execution in December and he filed the appeal to the 11th Circuit. The trial court denied his motion for a stay, explaining that Brooks had not shown a substantial likelihood of success on the merits of his Eighth Amendment claim because he failed to show an available and feasible alternative method of execution as required by case law and he failed to show that he brought this claim within the applicable 2-year statute of limitations.
"Moreover, the district court determined that the balance of equities weighed against granting a stay because Brooks unreasonably delayed bringing his lawsuit until it was too late to resolve the merits of his claim without staying his execution," the appeals court stated.
In its ruling Tuesday afternoon the 11th Circuit affirmed the federal judge's ruling and denied Brooks' emergency motion to stay the execution.
Brooks' attorneys on Friday also filed another request for a stay with the Alabama Supreme Court, which had already previously denied a stay request.
In last week's request to the state high court Brooks' attorneys had also argued that the U.S. Supreme Court had ruled Florida's law allowing judge's to override jury sentence recommendations in capital cases was unconstitutional. Alabama also is one of two other states that have judicial override.
Brooks' sentence did not result from a judicial override. At his trial the jury voted 11 to 1 to recommended death. The judge followed that recommendation.
Under Alabama law fewer than 10 jurors voting to recommend a death sentence results in a recommendation of life without parole. But a judge can override a life without parole recommendation and impose a death sentence.
Assistant Federal Public Defender John Palombi explained the Florida override case and their stance:
"Although Florida's system, like Alabama's, allows for a judge override, the Court in Hurst reached its conclusion based on a different part of Florida's law that it found unconstitutional," Palombi stated in an email to Al.com. "Like Alabama's, Florida's death sentencing scheme has judges as the final finders of fact, and that is what the Supreme Court found unconstitutional."
"As in Alabama, Florida judges hear and weigh evidence at a separate sentencing hearing, and based on that (plus what they hear at the jury's sentencing hearing), they determine whether the sentence is to be death or life without parole," Palombi wrote. "In Hurst, the Supreme Court found that it is a violation of the Sixth Amendment right to trial by jury to have a judge be the factfinder who determines that an individual is deserving of a death sentence."
"The bottom line of Hurst is that the jury must have the final say in capital sentencing decisions -- its decision must be final, not advisory," Palombi stated. "Even though that's closely related to override, it's not the same issue, because even juries that "recommend" death in "advisory" capacities, as they do in Alabama and Florida, are not the final decision makers."
In Brooks' case, the judge who sentenced him to death considered aggravating evidence which had not been presented to the jury, his attorneys said.
Brooks' attorneys issued a statement Tuesday afternoon saying they will appeal both the 11th Circuit and Alabama Supreme Court denial of the stay requests.
"We believe the 11th Circuit erred in denying Mr. Brooks' stay motion and his appeal, and we will be asking the United States Supreme Court to review the decision," the attorneys state.
"As noted in our briefing, we believe the Supreme Court's ruling in Glossip v. Gross requires the 11th Circuit to overturn the District Court's ruling and allow Mr. Brooks to put on evidence showing that a three-drug protocol involving midazolam will leave him aware but unable to communicate while he is tortured to death with the 2nd and 3rd drugs," Brooks' attorneys stated. "This question of what individuals challenging lethal injection protocols must prove in order to succeed affects other Alabama death row prisoners, not just Mr. Brooks, and should be considered at a measured pace."
"Furthermore, major questions remain about whether midazolam is suitable as the 1st drug in a 3-drug execution protocol like Alabama's, and those questions will be answered during the April hearing already set on the issue," Brooks' attorneys stated. "In 2015, courts in a very similar situation denied a stay to Oklahoma inmate Charles Warner, who was executed a week before the Supreme Court granted certiorari on the very question his request for a stay was connected to. It has since emerged that Mr. Warner was executed using the wrong drugs, and now all Oklahoma executions are on hold while the state investigates exactly what is going on in its department of corrections."
"It would be a tragedy and a travesty if Mr. Brooks suffered the same fate as Mr. Warner and was executed while the rest of his co-plaintiffs benefited from having their claims heard and decided," Brooks' attorneys stated.
Brooks' attorneys also stated they will be filing a separate petition asking the United States Supreme Court to review the Alabama Supreme Court's denial of a stay based on last week's ruling in Hurst v. Florida, in which the United States Supreme Court found Florida's death sentencing scheme to be unconstitutional. "Since Alabama's sentencing scheme is virtually identical to Florida's, we believe the Hurst decision is applicable here as well and that the Sixth Amendment requires that he get a new sentencing hearing," Brooks' attorneys stated.
The Alabama Attorney General's Office has stated that the Florida ruling does not affect Alabama.
Source: al.com, January 20, 2016