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Alabama executes Muslim inmate after Supreme Court overturns stay

Chip Brownlee | The Trace

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Alabama performed its first execution of 2019 following a legal back and forth over whether the inmate could be put to death without a chaplain of his faith in the chamber.

The state executed Dominque Ray, a Muslim inmate who had appealed to federal courts after the state refused to allow an imam to be in the chamber. He died Thursday at 10:12 p.m. by lethal injection, the Montgomery Advertiser reported.

“It is my duty as the governor of Alabama to uphold the laws of our state,” Gov. Kay Ivey said. “A role I hold with much reverence is ensuring that justice is done, by both the victims and the convicted. Due to the nature of his crime, the decision of a jury to condemn him to death and because our legal system has worked as designed, Mr. Ray’s sentence was carried out.”

The Supreme Court overturned a stay by the 11th Circuit Court of Appeals, allowing the execution to move forward just hours before his death warrant was set to expire.

Ray and his attorneys argued Alabama’s policy of having a Christian prison chaplain present in the execution chamber is a violation of the First Amendment. Ray wanted his imam — a local Muslim religious leader — present for his execution and last rites instead of a Christian chaplain.

The high court voted along partisan lines in a 5 to 4 decision to vacate the 11th Circuit’s stay. The court said Ray waited too late to challenge the execution.

“Because Ray waited until Jan. 28, 2019, to seek relief, we grant the state’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit,” the court found.

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They cited precedent in a 1992 case that allows the court to consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief. The justices in the majority took no position on whether the state’s practice does, in fact, violate the First Amendment’s Establishment Clause.

Justice Elana Kagan, writing in her dissent, did take a position.

“Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites,” Kagan wrote. “But if an inmate practices a different religion — whether Islam, Judaism or any other — he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”

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To justify religious discrimination, Kagan wrote, the state must show that the policy is narrowly tailored to a compelling interest, citing Supreme Court precedent.

“I have no doubt that prison security is an interest of that kind,” she wrote. “But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer.”

More directly to the point of the Supreme Court’s finding Thursday, Kagan wrote that it could be argued Ray did bring his case within a reasonable time period.

Holman Correctional Facility’s warden denied Ray’s request to have an imam in the chamber on Jan. 23. Ray filed a complaint five days later on Jan. 28. The 11th Circuit didn’t issue a stay until Tuesday, Feb. 6, a day before his execution.

“The state contends that Ray should have known to bring his claim earlier, when his execution date was set on Nov. 6,” Kagan wrote in the dissent. “But the relevant statute would not have placed Ray on notice that the prison would deny his request.”

Kagan cited Alabama code that state a spiritual adviser and the prison chaplain may be “present at an execution.” But family members and newspaper reporters are also listed under the same statute. They are not allowed in the actual chamber but are held in a separate viewing room.

“It makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room,” Kagan said. “So there is no reason Ray should have known, prior to Jan. 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.”

The state is notoriously quiet about its execution protocols, and it doesn’t release where it gathers its lethal injection drug cocktail.

Ray was originally scheduled for execution at 6 p.m. Thursday, but his warrant was valid until midnight, giving the state time to move forward with the lethal injection.

No spiritual adviser — including Holman’s Christian chaplain — was present for the execution, the AP reported. The state amended its execution policy after the 11th Circuit’s ruling, according to court documents.

The state argued that a prison chaplain was only allowed in the execution chamber because he is a Department of Corrections employee trained in execution protocol. Ray’s imam would not be trained in the protocol and could be a potential threat to the security of the execution, the state argued as their reason for not allowing him in the chamber.

“To accommodate Ray’s stated beliefs and the Establishment Clause, the ADOC has amended its protocol and will no longer allow the prison chaplain, or any other spiritual adviser, in the execution chamber,” the state said in its emergency motion to the court.

Ray’s lawyer, John Palombi, a federal public defender, said the state’s voluntary decision to change its practice last minute for one execution does not make the case any less important.

“Without a definitive court ruling on this question, Alabama could continue to change and unchange its execution protocol at whim,” Palombi wrote.

Ray was convicted for the rape and fatal stabbing of a 15-year-old girl, Tiffany Harville, of Selma, and sentenced to death in 1999. It wasn’t the first killing Ray was convicted of.

Just five months earlier, he was sentenced to life in prison for his role in the murders of two Selma teenage boys.

“Mr. Ray was convicted by a jury of his peers of killing Tiffany Harville after taking her from the safety of her home,” Ivey said. “Courts at every level have upheld Mr. Ray’s conviction for his senseless act. Accordingly, the laws of this state have been carried out. It is my prayer that, with tonight’s events, the Miss Harville’s family can finally have closure.”

Ray has tried numerous times to appeal his death penalty. His lawyers have argued that he was not adequately represented during the penalty phase of his trial for Harville’s death.

His lawyer in the 1999 trial did not hire an investigator to look into his background for mitigating evidence that could have been used to avoid a death penalty. Though the lawyer “stands by his work” in the trial, he has acknowledged that not all evidence now available was available then.

“I’ve done this a long time, I’ve been practicing law now for 34 years, and I know that I could have done better representing Dominique if I would have had somebody to guide our investigation of mitigation evidence,” attorney William Whatley told ProPublica.

Whatley had experience arguing against the death penalty in capital murder trials, and Ray was his only client sentenced to death. But Ray allowed his co-counsel, just a few years out of law school, to deliver the presentation during the sentencing phase, which has also drawn scrutiny.

Alabama remains one of 30 states with the death penalty. More than 40 death row inmates have been executed since 2000, and last year, Alabama executed two inmates. After Ray’s death, 175 inmates remain on death row.

 

Chip Brownlee is a former political reporter, online content manager and webmaster at the Alabama Political Reporter. He is now a reporter at The Trace, a non-profit newsroom covering guns in America.

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Sean Worsley, Black disabled veteran arrested for medical marijuana, gets parole

The Alabama Board of Pardons and Paroles granted Worsley parole on Wednesday.

Brandon Moseley

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Sean Worsley (VIA ALABAMA APPLESEED)

Sean Worsley, the disabled Black veteran who spent eight months incarcerated for possession of legally prescribed medical marijuana, has been released on parole.

The Alabama Board of Pardons and Paroles granted parole on Wednesday for Worsley. Worsley served in the Iraq War where he received a Purple Heart. Unfortunately, he also returned from the war with injuries and chronic PTSD, which he treated with legally prescribed marijuana in his home state of Arizona.

In 2016, Worsley and his wife were driving through Alabama on their way to visit relatives in North Carolina, when they stopped for gas in Gordo. The Worsleys were apparently playing their music too loud so were approached by a Gordo police officer for violating the Gordo noise ordinance.

The Worsleys granted the officer’s request to search the vehicle. He found the marijuana, which Worsley claimed was legally prescribed.

Medical marijuana is legal in most of the country, but not in the state of Alabama. While Worsley did not have enough marijuana in his possession for a trafficking charge, the arresting officer charged him with possession of marijuana for other than personal use, a felony in Alabama. The assistant district attorney prosecuting the case agreed.

Worsley agreed to a five-year probation, including drug treatment, as part of a plea deal to avoid prison in 2017. Worsley claims that the VA would not let him get their drug treatment because he does not have a problem.

The district attorney’s office in Alabama told APR that Worsley was kicked out of the VA for failure to comply with the program. Alabama ordered Worsley to appear in court in Pickens County. Worsley claims that he did not know about this court date. The court charged him with failure to appear, revoked his probation, and declared him a fugitive from justice.

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Worsley was arrested in Arizona for possession of marijuana with an expired medical marijuana card.

Alabama asked that Worsley be extradited back to Pickens County where he was jailed. The trial judge ordered the disabled veteran to serve the full five years in prison. Due to the incredible overcrowding of the Alabama Department of Corrections and the coronavirus crisis, ADOC could not find the space for him, so left him in the Pickens County Jail for five months.

Worsley spent the last three months with ADOC in the aging Draper Correctional Facility. Worsley was denied Community Corrections because he has a nonviolent felony record in 2011 in addition to his Alabama offense.

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Civil libertarians, marijuana advocates, veterans advocates and justice reform advocates were horrified by Worsley’s treatment by the Alabama court system after Alabama Appleseed’s Research Director Leah Nelson first publicized the case.

Worsley’s bid for parole was supported by a coalition of advocates and service providers, including John Carroll, a retired federal magistrate judge and Vietnam War veteran who now teaches at the Cumberland School of Law; Beau Armistead, a Birmingham-based counselor who specializes in treating veterans like Worsley who live with PTSD and has offered to treat Worsley pro bono on his release; BLOX LLC, an architecture and manufacturing firm that has offered Worsley a job; the Dannon Project, a re-entry provider that will help guide Worsley’s transition out of prison; and dozens of veterans who signed a letter to the Parole Board supporting Worsley’s release.

Online supporters raised over $100,000 to cover legal costs and other financial consequences of his conviction, including his wife Eboni Worsley’s move to Birmingham.

“Sean Worsley, was shown compassion by the Alabama Board of Pardons and Paroles,” said Chey Lindsey Garrigan, executive director of the Alabama Cannabis Industry Association. “This is a commendable act that should be acknowledged.”

Garrigan’s group is lobbying the Alabama legislature to legalize medical marijuana in the state and to guarantee safe passage for travelers from other states, where marijuana is legal so that other visitors are not at risk of being jailed while passing through Alabama.

“My faith in THE MOST HIGH has been further solidified in the demonstration of the law functioning in Alabama to help and not harm individuals via the parole board,” Eboni Worsley said in a statement. “We’re grateful to be able to pick up the pieces and begin rebuilding our lives once Sean is released. I am very grateful to the Parole Board of Alabama for showing the public the heart of the warm welcoming spirit of the people I’ve met since transitioning to Alabama.”

Worsley’s situation attracted national attention in July following a blog post by the Alabama Appleseed Center for Law and Justice. APR picked up the story as well as The Washington Post and Fox News.

“After three months covering Sean’s case and learning about his life and his service to this country I am thrilled he will no longer be held in prison for the mistake of stopping for gas in Alabama with his legally prescribed medicine,” Nelson said. “At the same time, I can’t say justice has been served, because Sean should never have been arrested or jailed at all.”

“A extraordinary group of advocates finally achieved a good outcome for Sean, but until Alabama fixes its overly punitive marijuana laws, struggling people will continue to be harmed and precious state resources will be wasted on enforcement of laws that have no connection to public safety,” said Appleseed executive director Carla Crowder.

“The case of Sean Worsley deals with a convergence of several issues,” said State Rep. Neil Rafferty, D-Birmingham. “It deals with Alabama’s harmful marijuana laws, particularly concerning medical marijuana. It deals with our country’s misunderstanding and treatment of veterans returning home and transitioning to civilian life. And it deals with excessive policing – that put suspicion on a man doing nothing more than listening to the radio and playing air guitar to his wife.”

Rafferty is a post-9/11 veteran who advocated for Sean’s release.

“While the news of Sean’s parole is welcomed and to be celebrated, it only serves to highlight the legislative chamber’s duty to make right these wrongs and allow our criminal justice system to focus on crimes that actually endanger community safety,” Rafferty added.

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Lawsuit alleges “religious test” on Alabama voter registration form

Plaintiffs say the phrase “so help me God” amounts to a mandatory religious oath.

Micah Danney

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(STOCK PHOTO)

A lawsuit filed in federal court is challenging language on Alabama’s voter registration form, saying that the phrase “so help me God” amounts to a mandatory religious oath prohibited by the Constitution.

Alabama is the only state that requires voters to swear the truthfulness of their voter registration information by signing a form that includes those words without any option of a secular affirmation.

The lead plaintiff is Randal Cragun, an atheist who has sought to register to vote in Alabama since November 2019. He noticed that on the mail-in form that is downloadable from the secretary of state’s website, a warning states: “Read and sign under penalty of perjury,” and, “If you falsely sign this statement, you can be convicted and imprisoned for up to five years.” The declaration begins “I solemnly swear or affirm” and ends with “so help me God.”

Cragun contacted Secretary of State John Merrill’s office to ask how he could register without signing the declaration as it is written, according to the Freedom From Religion Foundation, which filed the suit on behalf of Cragun and three other plaintiffs. The next day, Cragun was told by the director of elections that no legal mechanism existed to provide an alternative, and that crossing out any portion would result in the application being rejected.

“It is deplorable that in our secular nation nontheistic citizens are encountering a religious test to register to vote,” said Annie Laurie Gaylor, co-president of FFRF. “No citizen should have to choose between their right to vote and their freedom of conscience.”

Before filing the lawsuit, the organization sent a letter to Merrill’s office saying that the oath violates the First Amendment. It cited Torcaso v. Watkins, in which the Supreme Court ruled that neither a state nor the federal government can force a person to profess a belief or disbelief in any religion.

Merrill declined to comment until his office has been served with the lawsuit, but according to FFRF, he has maintained that the registration forms are “prescribed by statute” and “that any changes would require legislative action.”

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The lawsuit alleges that his office has the authority to create and amend voter registration forms. In a statement, FFRF noted that in all other states, voters are provided either a secular registration form or are not required to submit an oath or affirmation.

The group added that government officials routinely allow people who must take an oath, including attorneys, jurors and witnesses, “to make a secular affirmation instead when they are unable to swear ‘so help me God’ as a matter of conscience.”

The plaintiffs are seeking a permanent injunction that prohibits the secretary of state from requiring voters who register to swear “so help me God” and that requires his office to provide voter registration forms that don’t include the phrase as a requirement. They are also asking for a declaratory judgment that Merrill has violated the Constitution by not providing a secular alternative.

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“The secretary of state has willfully excluded nontheist citizens from registering to vote and is coercing a statement of belief in a monotheistic god by requiring nontheists to swear a religious oath,” said Patrick Elliott, FFRF’s senior attorney in the litigation.

In its letter to Merrill, FFRF said that a constitutional ban on mandatory religious oaths is a “well-settled issue.” 

In a 1972 case, Nicholson v. Bd. of Comm’rs of Ala. State Bar Ass’n, the court ruled, “We hold that it is a violation of the Constitution for the state of Alabama to compel plaintiff to swear an oath invoking the help of God as a prerequisite to entering upon the practice of law.”

The suit’s three other plaintiffs are Chris Nelson, Heather Coleman and Robert Corker. 

It was filed in the U.S. District Court for the Northern District of Alabama, Southern Division. Steven P. Gregory, of the Birmingham-based Gregory Law Firm, is local counsel. FFRF associate counsel Liz Cavell is also involved in the case.

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Vestavia doctor sentenced to 30 years for producing child porn

A federal judge sentenced Ronald Tai Young Moon Jr. of Vestavia Hills, 56, to 30 years in prison.

Brandon Moseley

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(STOCK PHOTO)

A federal judge sentenced a former Vestavia Hills doctor to 30 years in prison for producing and possessing child pornography, U.S. Attorney Prim Escalona and FBI Special Agent in Charge Johnnie Sharp Jr. announced Thursday.

U.S. District Judge Annemarie Axon sentenced Ronald Tai Young Moon Jr. of Vestavia Hills, 56, to 30 years in federal prison.

“Unfortunately, this sentence will not undo the harm suffered by Moon’s victims,” Escalona said. “However, understanding that the consequences of this conduct is severe might discourage other sexual predators from victimizing innocent children in this district.”

Moon worked as a doctor at the Industrial Athlete clinic in Birmingham until his license was revoked earlier this year. Moon went to trial in February. After four days of testimony, a jury convicted Moon of possessing, producing and attempting to produce child pornography.

“I am proud of the effort put forth by my agents in order to ensure this defendant was brought to justice and will no longer be able to harm children,” Sharp said. “Moon serving the next 30 years in federal prison ensures there is one less predator victimizing the most innocent and vulnerable members of our community.”

Federal prosecutors presented evidence at trial proving that between the mid-1990s and 2012, Moon secretly recorded neighbors and guests in his own home including girls as young as 12 years old.

Some of those individuals were filmed naked, dressing and undressing. The footage was located on VHS videotapes found in the defendant’s locked private office with other pornographic VHS tapes, steps away from a TV and VCR set that was working and plugged in.

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Evidence of multiple hidden-camera devices was also found in the defendant’s office.

Moon will also serve five years of supervised release after he gets out and, by law, will also be required to register as a sex offender.

Assistant U.S. Attorney John Ward and First Assistant U.S. Attorney Lloyd Peeples III prosecuted the case.

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The United States attorney’s office also thanked members of the Drug Enforcement Administration and the Department of Health and Human Services Office of Inspector General for assisting in the investigation.

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Roy Moore sues state challenging COVID orders

Moore is arguing that the state has exceeded its authority by issuing COVID-19 restrictions and the statewide mask mandate.

Brandon Moseley

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Former Alabama Supreme Court Chief Justice Roy Moore

The Foundation for Moral Law and former Alabama Chief Justice Roy Moore last week filed a lawsuit against Alabama Gov. Kay Ivey and State Health Officer Dr. Scott Harris, challenging the constitutionality of their public health orders intended to combat the spread of the coronavirus.

The foundation’s lawsuit was filed in the Federal District Court for the Northern District of Alabama. Moore is seeking damages, a temporary restraining order and a permanent injunction against Ivey and Harris from issuing more mandates.

Moore is arguing that Ivey and Harris have exceeded their authority.

“The Governor and State Health Officer of this State have clearly and repeatedly exceeded their authority under both the Constitution of the United States and the Alabama Constitution over the last six months,” Moore said. “Unconstitutional restriction of church assembly and worship, discriminatory closing of businesses, stay at home orders, social distancing, wearing of masks, and restriction on travel are simply against our rights secured by the Constitution of the United States.”

“We live in a Constitutional Republic and in a State whose motto is ‘We dare defend our rights,’ yet nothing has been done to stop the tyrannical abuse of power,” Moore said. “Our economy has been decimated, jobs lost, schools closed, church doors shut, and we have been told we must stay home and wear mask in public places. People are tired of such abuse!”

“Our Country was formed in crisis and we have withstood disease, pestilence, natural disaster, and wars without being told we must remain in our home and wear mask in public,” Moore said. “The Legislature of Alabama needs to stand up to and tell the Governor that she and the State Health Officer do not have the power to do things that even the Legislature can’t do. Nor can the Legislature give the Governor powers to take away our Constitutional rights when even the Legislature cannot.”

Some former legislators have privately told APR that if Ivey wanted more power to extend the public health emergency past July that legally she should have called a special session and asked the legislature for that authority.

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But some have also suggested that the Legislature does not want to go on the record as either favoring or opposing measures such as the eight-month-long public health emergency, the mask mandate, the closing of businesses and restrictions on capacity in businesses. As such, they are content to say or do nothing on the issue rather than alienating voters on either side.

“For over 200 years, men and women of every race, creed, and color have fought and died to preserve our rights; we don’t need to give them up without a fight,” Moore said.

The Montgomery-based Foundation for Moral Law is a nonprofit corporation dedicated to a strict interpretation of the United States Constitution. The foundation, founded by Moore, is often involved in freedom of religion issues.

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The governor’s statewide mask order expires on Friday if the governor does not extend it.

At least 208,843 Americans, including 2,501 Alabamians, have died from COVID-19 since February. Over 32.8 million people globally have been diagnosed as infected with the novel strain of the coronavirus.

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