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Birmingham News. OUR VIEW: This is one case where the judge should overrule a jury's recommendation regarding a death sentence

OUR VIEW: This is one case where a judge should overrule a jury's recommendation regarding a death sentence
Published: Wednesday, June 13, 2012, 5:45 AM
 By Birmingham News editorial board The Birmingham News

 Alabama is one of the only states in the country that let judges sentence a defendant to death even when a jury recommends against it. They should not have that power.

But that doesn't mean a judge should automatically follow the wishes of jurors when they vote to support a death sentence. To the contrary. Judges must be able to block death sentences that are recommended by a jury but are not called for, or permitted, under the law.

Take the case of Esaw Jackson.

Jackson has been convicted in the 2006 deaths of 16-year-old Milton Poole III and 42-year-old Pamela Montgomery. Montgomery's teenage children also were wounded when Jackson fired a rifle into their car at a traffic light.

A jury voted 10-2 to recommend a death sentence for Jackson. There's a problem, though. Testing ordered by Jefferson County Circuit Judge Stephen Wallace after the trial shows Jackson's IQ is 56 -- well under the level that generally indicates an intellectual disability. The U.S. Supreme Court ruled in 2002 that people with such disabilities can't be put to death.

To be sure, the diagnosis is more complicated than an IQ test, because there is no ironclad number that defines an intellectual disability. Other factors to consider is whether the disability impairs a person's ability to function and was present during childhood. Not surprisingly, prosecutors now say they will look at Jackson's school records to see what they reflect about his mental capacity and, by extension, his culpability for these crimes. That's fine, we suppose.

But the findings of the IQ test -- conducted by a state expert, no less -- raise strong questions about whether a death sentence is appropriate for Jackson under any circumstances. And the findings raise equally strong questions about Alabama's system of defending those accused of capital crimes.

Consider: Jackson had been convicted and sentenced to death for this crime once before. He spent four years on Death Row before winning a new trial. His first conviction, in 2007, came well after the Supreme Court's ruling on mental retardation. Even before that ruling, it was routine in potential death-penalty cases for defense lawyers to point out such things as intellectual disabilities in pleading the case for mercy. There are a number of reasons why intellectual disabilities are a reason for leniency: It stands to reason that someone without adequate intellectual capacity should not bear full legal responsibility for their actions. A strong case also can be made that people with diminished mental capabilities are at a disadvantage when it comes to defending themselves. Some intellectually disabled defendants, for instance, have confessed to crimes they didn't commit.

If Jackson has an intellectual disability now, he had one when he was tried the first time. Was Jackson's mental capacity raised at that time? If not, why not?

There are plenty of reasons Jackson should not be put to death for this crime -- reasons that don't have a thing to do with his intelligence. In many states, the simple fact that jurors weren't unanimously for execution would automatically rule it out. Besides, the alternative sentence, life without parole, is plenty to protect the public and doesn't trigger the necessary but expensive appeals that a death sentence does.

But if Jackson is intellectually incapable of bearing full responsibility for his actions, he not only should not be put to death -- he cannot be under the law. Staging not just one but two capital trials was a colossal waste of time and money. Wallace can avoid throwing more money down the drain by simply sentencing Jackson to life in prison with no chance for parole.

Does that mean ignoring the wishes of a majority of the jury in Jackson's case? Yes. But a key problem with judges' power to overrule juries on death sentences in the first place was that while the power went both ways in theory, it rarely went both ways in practice. Alabama's judges -- elected judges who are afraid to appear soft on crime -- were too often willing to say a jury had been wrong to recommend a sentence of life. But rarely were they willing to say a jury had been wrong to recommend a sentence of death.

This is one case where a judge should have no hesitation in sidestepping a jury's wishes. Not only can Wallace make a good case for overruling the jury -- he may have no choice.

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