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Opinion | The “rule of law” has some exceptions

Josh Moon

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The State of Alabama murdered a man on Thursday night. 

Murder is what you call it when someone intentionally causes the death of another human for an unjustifiable reason. 

That fits with what Alabama did to Nathaniel Woods. 

Woods didn’t kill anyone. Everyone associated with the case agreed on that. And the amount of mental gymnastics you have to perform in order to apply Alabama’s “accomplice law” to Woods’ involvement in the shooting deaths of three police officers is Cirque du Soleil worthy. 

But it didn’t matter to the State of Alabama. Or Attorney General Steve Marshall. Or Gov. Kay Ivey. Or to the U.S Supreme Court. 

Everyone was cool with sticking the needle in Woods’ arm because “the rule of law” must be followed. 

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It’s weird how the importance of the “rule of law” never comes into play when discussing ineffective counsel or improper jury instructions or a judge who improperly allows the victims’ widows to recommend sentences to the jury — all of which, and more, happened in Woods’ case — but “rule of law” becomes the absolute most important thing when it’s time to carry out the execution in a flawed case. 

I mean, if the rule of law is actually that important to you, maybe start tidying up the processes that have repeatedly led to innocent men landing on Alabama’s death row, and some of them winding up dead. 

If you need examples of this happening, let me point you to the movies made about those cases. All of them. 

If the rule of law matters to anyone, here’s what it did to Nathaniel Woods: it failed him in the biggest way. 

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To understand how, you have to know the story of Woods’ arrest, so here’s the quick version. He was at a home allegedly known as a crack house, and Birmingham police were at the door to serve a warrant. These cops apparently knew Woods, and he apparently knew them. They argued, and Woods said he didn’t believe he had a warrant and refused to come out. 

So, the cops went in. According to court records from the prosecutors, Woods almost immediately surrendered and asked not to be maced. 

Not understanding what was happening, Woods’ alleged accomplice, Kerry Spencer, who was asleep in a back room when cops broke through the door to arrest Woods, picked up an assault rifle and came out firing. He killed three of the cops and injured a fourth. 

This is why Nathaniel Woods was murdered by Alabama on Thursday. 

For another man’s crimes. 

Oh, there was another explanation — one pushed by the prosecutors and by Marshall and Ivey the last two days — that makes so little sense it’s hard to believe grownups are repeating it. 

In order to charge Woods under Alabama’s accomplice law, which allows the state to hold people responsible for crimes they cause even if they’re not the person who commits the act, the state had to show that Woods intentionally lured the officers into the home knowing they would be shot. 

To prove this, the state presented evidence that Woods and Spencer had argued with two of the officers earlier in the day, and that Woods had allegedly told one officer that if he would “take off that badge,” Woods would “(mess) him up.” There were allegedly other threats made back and forth. And then everyone went on their way. 

But according to the prosecutors — and wrap your head around this — Woods knew they would be back with a warrant later and set up a trap to murder them. 

That’s the only way the accomplice statute can be applied here. Woods had to know the shooting was going to occur and he had to cause it to happen, which means he had to anticipate the police would come back looking for him and he had to arrange for Spencer to shoot them (or at least know that Spencer would shoot them). 

For the record, Spencer finds that just as silly as you. He has been consistent in his testimony that Woods had no idea that he was going to shoot the officers and that Woods played no role in the shooting. 

Didn’t matter. Woods was still arrested and charged, and that was the first failure. 

He received a lawyer who had no experience with capital murder cases and advised his client that a plea deal offered by the state for 20-25 years — Marshall inexplicably denied in a letter on Wednesday that a deal was offered, despite this plea deal being mentioned numerous times in court filings — shouldn’t be taken because the state had to prove that he participated in the crime. This was bad advice. 

So, Woods was failed again. 

A number of appeals deadlines were missed — failed again — and Woods’ ever-changing attorneys — failed again — attempted to file late appeals for rehearings. The criminal appeals court and Alabama Supreme Court refused to hear those late appeals, which argued ineffective counsel, among other things — and he was failed again. 

And, of course, you know the failures that happened on Thursday night, when all of the people who could have stopped this travesty instead hid behind a “rule of law” excuse to do nothing. To keep up the appearances of tough-on-crime politicians. To tout their “law and order” record. 

Which is odd, because you’d think stopping improper executions would be part of law and order.

 

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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Illinois man sentenced on drug trafficking charges

Ortega was found guilty of operating a drug trafficking ring that stretched all the way from Mexico to Alabama.

Brandon Moseley

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(STOCK PHOTO)

United States Attorney Prim F. Escalona and Drug Enforcement Administration Special Agent in Charge Brad L. Byerley on Monday announced that Nolberto Ortega, from Chicago, Illinois, was sentenced to 390 months in prison on Oct. 28 for distribution of heroin, cocaine, methamphetamine and fentanyl.

U.S. District Judge Liles C. Burke imposed the sentence. Ortega, age 54, has been found guilty of operating a drug trafficking ring that stretched all the way from Mexico to Alabama.

In August 2019, a federal grand jury charged Ortega in a multi-count indictment with leading a drug trafficking organization that transported heroin, cocaine, methamphetamine and fentanyl from Mexico to Talladega, Alabama.

The charges stemmed from an investigation led by the Drug Enforcement Administration and the Talladega County Drug Task Force in early 2019.

Law enforcement officers arrested Ortega in California after a drug shipment was seized in Talladega.

“This dealer went to extreme lengths to profit from this deadly poison with no regard to the devastation and destruction he left behind,” said Escalona. “The lengthy sentence sends the message that drug trafficking in our communities will not be tolerated and will be severely punished. The citizens of the Northern District of Alabama have one less drug dealer to worry about for years to come.”

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“We will continue to attack the scourge of illegal and dangerous drug distribution in Alabama and beyond,” Byerley said. “The lengthy sentencing of this individual should be taken as a message to those who want to sell drugs. We are going to catch you and put you in prison for a long time if you distribute this poison in our communities.”

The DEA investigated the case along with the Talladega County Drug Task Force. Assistant U.S. Attorneys Blake Milner and Austin Shutt prosecuted the case.

The Trump Administration has worked to increase security along the nation’s southern border with Mexico.

“America’s porous southern border causes the deaths of 30,000+ Americans every single year (from illegal alien homicides and overdoses on poisonous drugs shipped across our porous southern border),” said Congressman Mo Brooks, R-Alabama.

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According to the Center for Disease Control and Prevention, in 2018, 67,367 drug overdose deaths occurred in the United States. The age-adjusted rate of overdose deaths decreased by 4.6 percent from 2017 (21.7 per 100,000) to 2018 (20.7 per 100,000). Opioids were involved in 46,802 overdose deaths in 2018 (69.5% of all drug overdose deaths).

Ortega will serve his sentence in the federal prison system.

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Corruption

State Rep: Lee County DA’s past cases should be reviewed by AG, DOJ

Rep. Jeremy Gray, D-Opelika, wants the AG’s office or DOJ to examine all of the DA’s previous cases for similar issues.

Josh Moon

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Lee County District Attorney Brandon Hughes

A state representative from Lee County is calling on the Alabama attorney general’s office and the Department of Justice to open an investigation into past cases handled by indicted Lee County District Attorney Brandon Hughes. 

Rep. Jeremy Gray, D-Opelika, said that in light of the details regarding Hughes’ indictment and arrest, he wants the AG’s office or DOJ to examine all of Hughes’s previous cases for similar issues. Gray also wants the public to be allowed to come forward if they were ever extorted or mistreated by Hughes. 

“In light of the very serious and disturbing charges facing Lee County District Attorney Brandon Hughes, and the brazen nature of his alleged crimes in which he used the power of his office to extort vulnerable citizens — including by threatening them with bogus charges — I call on the Alabama Attorney General’s Office and the US Department of Justice to open an inquiry into possible other instances in which Hughes misused the power of his office against the people of Lee County,” Gray said in a statement. “That investigation should include a thorough review of all convictions and indictments procured by Hughes and should allow the people of Lee County an opportunity to report any additional instances of Hughes misusing his office.”

Hughes was charged on Monday with seven felony ethics counts, including allegedly using a DA’s subpoena to steal a pickup truck and using another subpoena to allegedly coerce a private business into aiding his defense. Hughes was also accused of hiring private attorneys with public money to benefit himself and his wife, and accused of hiring his three children to work in his office. 

He was arrested Monday afternoon on felony perjury charges for lying to a grand jury about his alleged crimes.

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Corruption

Prosecution accepts misdemeanor plea in high-profile environmental administrator’s case 

The plea deal came shortly before Jefferson County Circuit Court Judge Stephen C. Wallace was to hear arguments on selective and vindictive prosecution.

Bill Britt

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(STOCK PHOTO)

Almost two years ago, Trump administration EPA Region 4 Administrator Onis “Trey” Glenn III was charged with more than a dozen state felony ethics violations. On Monday, he pleaded guilty to three misdemeanor charges after reaching a plea agreement with the prosecution.

The plea deal came shortly before Jefferson County Circuit Court Judge Stephen C. Wallace was to hear arguments on selective and vindictive prosecution.

According to a statement from the Ethics Commission at the time, Glenn, along with former Alabama Environmental Management Commissioner Scott Phillips, was charged after a Jefferson County grand jury returned indictments against the two on Nov. 9, 2018, according to a statement from the Ethics Commission.

Rather than moving forward with the case, prosecutors dropped the felony charges against Glenn. They opted to reach an agreement to accept a plea on three counts of “unintentional” violations of the ethics code. Glenn received a two-year suspended sentence for his actions.

“In the interest of efficiency, we were pleased to take advantage of the opportunity to resolve this matter,” Glenn’s attorney Matt Hart told APR when reached for comment. “My client pleaded to unintentional, misdemeanor violations of the ethics law, and the matter is concluded.”

Questions surround the prosecution’s decision to settle the case for a confession to minor offensives in such a high profile case. Still, from the beginning, the case was marred by allegations that the Alabama Ethics Commission’s lawyers had mishandled the investigation and indictments.

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Indictments against Glenn and Phillips were reported by AL.com even before the pair was arrested or served with the indictments. In AL.com’s report, Ethics Commission Executive Director Tom Albritton said that then-Jefferson County District Attorney Mike Anderton had requested the Ethics Commission help indict the two men.

As first reported by APR, shortly after Glenn and Phillips’ indictments, Albritton and his team’s actions raised serious questions about the process that led to charges against the two men. APR reported that Albritton and Ethics Commission lawyer Cynthia Propst Raulston approached Anderton, and he did not request help with the case from the commission, as was reported in AL.com.

Later, APR confirmed that the Ethics Commission approached Anderton, contradicting Albritton’s public statement. In a sworn statement given on Feb. 9, 2019, Anderton said it was Ethics Commission lawyers who approached him, as first reported by APR in November of last year.

According to Anderton, in the fall of 2018, Propst Raulston approached him because “she had a case she wanted to present to the Jefferson County Grand Jury.”

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He further states, “I told Ms. Raulston that I would facilitate her appearance before the grand jury but that my office did not have the resources to support her case. I also told her that she would have to prosecute the case herself.”

These and other aberrations came into sharper focus when Hart — the state’s most famous prosecutor of his generation turned defense attorney — began diving into the particulars of the prosecution’s case.

Glenn’s defense argued from the start that procedural process was circumvented when Albritton and Propst Raulston took the complaint directly to a grand jury rather than the Ethics Commission as prescribed by the Legislature.

An ethics commissioner told APR privately that the commission was never informed about a complaint against the two men, nor was the investigation.

According to internal sources, actions taken by Albritton and Propst Raulston created turmoil at the commission and raised a question about who would prosecute the case on the state’s behalf.

During the process, Albritton, Propst Raulston, and other attorneys for the commission asked the attorney general’s office to take over the case; however, according to sources within the office, the AG turned them down after a review found “statutory problems” with how the case against Glenn and Phillips was handled.

In a motion to dismiss, the defense said, “In sum, the Ethics Commission Staff trampled Mr. Glenn’s rights in obtaining the indictment without giving him his required notice and an opportunity to be heard as required by the Alabama Ethics Act, and then after indictment denied him notice as guaranteed by the Grand Jury Secrecy Act and failed to protect his presumption of innocence as required by the Rules of Professional Conduct.”

While not explicitly noted in the motion to dismiss, the relationship between environmental group GASP and the prosecution was a subject that would have been heard in the hearing on selective and vindictive prosecution.

Immediately following Glenn and Phillips’ indictment, GASP posted a celebratory tweet, even taking credit for the indictment.

Former GASP director Stacie Propst is the sister of Ethics Commission lawyer Propst Raulston who presented the case to the Jefferson County grand jury.

While many in the environmental community celebrated Glenn’s indictment, the defense argued the prosecution took an illegal short cut to indict him, which denied Glenn due process and amounted to selective and vindictive prosecution.

Monday’s plea agreement ended the two-year drama without further exposure as to what happened behind the scene. Phillips’s case is still pending.

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Courts

U.S. Supreme Court rules Alabama can ban curbside voting

“The District Court’s modest injunction is a reasonable accommodation, given the short time before the election,” the three dissenting justices wrote. 

Eddie Burkhalter

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(STOCK PHOTO)

The Supreme Court, in a 5-3 decision, allowed Alabama Secretary of State John Merrill to ban curbside voting, staying a district court injunction that had allowed some counties to offer curbside voting in the Nov. 3 election amid the COVID-19 pandemic.

The Supreme Court’s majority in its order declined to write an opinion, but Justices Stephen Breyer, Elena Kagan and Sonya Sotomayor’s five-page dissent is included.

The lawsuit — filed by the NAACP Legal Defense and Educational Fund, Southern Poverty Law Center, American Civil Liberties Union, ACLU of Alabama and Alabama Disabilities Advocacy Program — was brought on behalf of several older Alabamians with underlying medical conditions.

“The District Court’s modest injunction is a reasonable accommodation, given the short time before the election,” the three dissenting justices wrote. 

Sotomayor, who wrote the dissent, closed using the words of one of the plaintiffs in the case. 

“Plaintiff Howard Porter Jr., a Black man in his seventies with asthma and Parkinson’s disease, told the District Court, ‘[So] many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – We’re past that time,’” Sotomayor wrote. 

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Alabama Secretary of State John Merrill on Wednesday applauded the Supreme Court’s decision. 

“I am proud to report the U.S. Supreme Court has now blocked a lower court’s order allowing the fraudulent practice of curbside voting in the State of Alabama,” Merrill said in a statement. “During the COVID-19 pandemic, we have worked diligently with local election officials in all 67 counties to offer safe and secure voting methods – including through the in-person and mail-in processes. I am glad the Supreme Court has recognized our actions to expand absentee voting, while also maintaining the safeguards put into place by the state Legislature.”

“The fact that we have already shattered voter participation records with the election still being 13 days away is proof that our current voting options are easy, efficient, and accessible for all of Alabama’s voters,” Merrill continued. “Tonight’s ruling in favor of election integrity and security is once again a win for the people of Alabama.”

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Education Fund, expressed frustration after the ruling in a tweet.

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“Another devastating loss for voters and a blow for our team fighting to ensure safe voting for Black and disabled voters in Alabama. With no explanation, the SCOTUS allows Alabama to continue making it as hard as possible for COVID-vulnerable voters,” Ifill wrote.

Curbside voting is not explicitly banned by state law in Alabama, but Merrill has argued that because the practice is not addressed in the law, he believes it to be illegal. 

A panel of federal appeals court judges on Oct. 13 reversed parts of U.S. District Judge Abdul Kallon’s Sept. 30 order ruling regarding absentee voting in the upcoming Nov. 3 elections, but the judges let the previous ruling allowing curbside voting to stand. 

In his Sept. 30 ruling, Kallon wrote that “the plaintiffs have proved that their fears are justified” and the voting provisions challenged in the lawsuit “unduly burden the fundamental Constitutional rights of Alabama’s most vulnerable voters and violate federal laws designed to protect America’s most marginalized citizens.”

Caren Short, SPLC’s senior staff attorney, in a statement said the Supreme Court’s decision has curtailed the voting rights of vulnerable Alabamians.

“Once again, the Supreme Court’s ‘shadow docket’ – where orders are issued without written explanation – has curtailed the voting rights of vulnerable citizens amidst a once-in-a-century public health crisis. After a two-week trial, a federal judge allowed counties in Alabama to implement curbside voting so that high-risk voters could avoid crowded polling locations,” Short said. “Tonight’s order prevents Alabama counties from even making that decision for themselves. Already common in states across the South and the country before 2020, curbside voting is a practice now encouraged by the Centers for Disease Control and Prevention (CDC). It should be a no-brainer to implement everywhere during a pandemic; the Alabama Secretary of State unfortunately disagrees, as does the Supreme Court of the United States.”

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