Overruled – Transcript

January 15, 2016
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When you get that notice in the mail for jury duty, it’s can be annoying. How are you going to fit it in? But juries are important — they’re  democracy in action… twelve men and women, who sit and hear an entire case, and then ultimately, decide a person’s fate. And for people serving on a jury, there’s no decision more fateful than making a decision whether to sentence a person to  life in prison…  or to condemn them to death penalty. For the past year, Life of the Law’s reporter Ashley Cleek has been out on the road, talking to jurors who sat on capital cases about the trials and their decisions.

It’s not easy to find jurors. She looked them up on Facebook, and sent them messages.  She wrote letters and drove through neighborhoods, called landlines and left voicemails.

VOICEMAIL: Guess what? Jesus is the way, jesus is the truth, jesus is the life, no man comes to the father except by jesus… Have a great day, leave a message and we’ll get back with you…

ASHLEY: Hi, I was calling to speak to …

Most jurors just didn’t want to talk with her. But then, a few did.

Here’s Ashley.

STORY:

This story begins back in 2008 — a violent crime was committed in the small town of Auburn, Alabama. It was in the evening, at the start of spring. Shannon Rae McKenzie was at home with her kids.

MCKENZIE: I remember, I heard all these sirens and it sounded awful. It was a cold, wet night. I was just like, oh, dear, I hope everything’s ok. And I really never heard the details. Because we didn’t receive the paper at the time, and we had quit watching our cable television

The crime didn’t involve Shannon; she just heard the sirens, and later, the details. That night–the night of March 4th, 2008–Lauren Burk, a bubbly eighteen-year-old in her freshman year at Auburn University, had planned to study with some friends. As Burk was walking to her car, a man named Courtney Lockhart pointed gun at her and forced her to get in.

Lockhart kept the gun pointed at Burk while he drove her car. He forced her to take off her clothes . At some point, Burk jumped out of the car. Lockhart shot her. A couple drove by, saw Burk lying naked on the side of the road, and called 911. When the medics arrived, Burk was already dead. Three days later, Lockhart was caught, and the case went to trial more than two years later. That’s where Shannon comes back into the story

MCKENZIE: My name is Shannon Rae McKenzie and I’m a mother and a wife and I love the lord.

Shannon was called for jury duty. Lockhart was accused of capital murder–in Alabama that meant that, if convicted, he could receive  the death penalty.

 

MCKENZIE: I believe one of the questions was, would I be able to ever vote for the death penalty, vote for them to be put to death? Am I against that? So, I had to pause and sit there and think for a few minutes, because I had never thought about it. I said, yes I could.

ASHLEY: Do you know where that decision came from?

MCKENZIE: Honoring the lord and what he’s called me to do at this moment. I was chosen for a reason, it’s not a coincidence, I don’t believe in that. I believe the lord put me there at that specific time to do a duty and I had to do it, and I had to do it to the best of my ability. So, I took this so seriously. You are holding someone’s life in your hands, something that you could overlook could cause them to be put to death. Or not to be sentenced. So it’s very important.

After four days of questions, Shannon was picked. She says she immediately felt this huge weight. She told her husband and kids not to talk about the case at all and not to bring any newspapers into the house.

MCKENZIE: I mean, I was very serious and I secluded myself away from my family and my friends. I would come home at night, when the trial was going on, and I would just stay in the back and go to bed.

During the trial, Shannon says she tried not to look out into the courtroom. She didn’t want the expressions on the faces of Burk’s family members to sway her decision.Instead she took notes.

MCKENZIE: I took notes about every single thing, cause I thought it might save him or find him guilty.

Over the course of five days, Shannon went through three yellow legal pads. During parts of the testimony, she cried. She says she took a long time deliberating about her final decision.

MCKENZIE: I felt like I was holding the jurors back. I felt like that was very important for my conscious to know that I made a good decision, one that is right.

Eventually, the jury issued a unanimous guilty verdict. Then they had to recommend a sentence — life without parole, or the death penalty. The jury had decided that Lockhart had murdered Burk. That the murder was random, and horrible. But Lockhart was also a veteran. He had served in Iraq in 2004, in a region known for being  the most dangerous part of the country. 64 members of his brigade had died fighting. Lockhart’s  troop leader was blown up in front of him. In fact, by 2010, when this trial took place, at least 12 other soldiers from Lockhart’s brigade had also been arrested for murder or attempted murder. Lockhart’s family said that in the months leading up to the crime, he’d stayed mostly in his room. He’d had nightmares and often hid under his bed.

MCKENZIE: And then we felt compassion about possibly having post traumatic stress disorder. So that’s why no one wanted to sentence him to death.

The jury unanimously recommended that Lockhart should be sentenced to life in prison, without parole.But that’s all it was: a recommendation. In Alabama the final decision between life and death is left to the judge. Not the jury. It’s called judicial override — meaning a judge can overrule–or override–a jury’s verdict. A few months after Courtney Lockhart’s trial, the judge presiding over the case overruled the jury’s verdict. He cited other crimes Lockhart had allegedly committed after the murder that the jury didn’t know about, and he sentenced Lockhart to death. Shannon says a friend called her…

MCKENZIE: You know the judge overruled y’all’s decision and he’s sentenced to death. And I was like really? I couldn’t believe it. I didn’t know that could happen.  But I just trust that the Lord has got the judge where he wants him spiritually, and that his decision is the Lord’s will.

The judge said he couldn’t speak to me about this case, since it’s still in appeals. At first another juror on the same case also agreed to speak with me. Then she got nervous and changed her mind. But she agreed that I could quote what she said. She said that this case has haunted her for years. That she still thinks about the details of the murder constantly. She said that she felt like the judge, “knew what he was going to do. I feel that way. When I found out he overturned it, it was kind of like a slap in the face. He knew that he was going to overturn that. I was kind of like, what were we there for?” 

Three states have judicial override. Alabama, Florida and Delaware.In Delaware judges generally use override to switch sentences from death to life without parole; right now no one is currently on death row in Delaware because of judicial override. In 1999, Florida passed stricter standards for when override can be used. And no judges have used it there since. But Alabama uses judicial override regularly — on average twice a year. Of the 200 or so people on death row, at least 40 were sentenced to death not by a jury, but by a judge. In Alabama, the original idea behind override was to rein in racist juries who would be more inclined to seek the death penalty when the defendant is black. But in fact, judges’ overrides seem to fall along racial lines. According to the the non-profit law firm, the Equal Justice Initiative, only six percent of murders in Alabama are black defendants killing white victims. But for judges — one third of the overrides from life to death are in cases where a black person kills a white person. Since 1981, judges in Alabama have overridden at least 101 life verdicts for the death penalty. They’ve also switch 10 death verdicts to life. And I just want to say: this isn’t a story about the death penalty. It’s about who gets to  mete it out as punishment. In Alabama, override means the decision always falls to the judge. And many judges seem to be deeply conflicted about that.

NAIL: Let me think about my answer on that, because I don’t want to go too far. Can I say off the record…

CLEEK: Yeah

NAIL: Off the record…

Judge Tommy Nail is the presiding criminal judge in Alabama’s most populous county. Nail’s been a judge since 1999.  He once overrode a jury’s verdict and believes he made the right decision under the law. This next quote was on the record.

NAIL: Philosophically, I can see where a judge could correct what he thought was an improper verdict, because at the sentencing hearing before the judge — there may be additional evidence offered that the jury never heard. The problem come is in practical application because of the pressures and other things that we as human beings have to deal with.

CLEEK: The elections.

NAIL: Elections

In Alabama, judges are elected. They run in partisan elections every six years. And judges say that Alabama voters mostly care about crime. Every day the newspaper in Birmingham runs at least a dozen stories about muggings, murders and rapes. So, when election time roll around, one of the rallying cries is ‘tough on crime.’ And according to the Equal Justice Initiative, in an election year, judges’ use of override goes up.

NAIL: Even though philosophically I can agree with the jury override in theory, I would much prefer the jury make that determination, personally. Cause you got 12 collected people that are making the decision. Not just one person. From a personal standpoint, yeah I would rather somebody else have to make that call. Unfortunately the law says I have to do it.

Judges are of course required to take the jury’s verdict into consideration. And if they override, they have to state why. Nail’s been a judge for three terms, and he’s talked about override before. In 2013, he was quoted by Justice Sonia Sotomayor when the U.S. Supreme Court decided not to hear a case regarding override. In her dissent, Sotomayor wrote that override can be explained by the fact that “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”

I tried to speak to other sitting judges about override, to find someone who believed wholeheartedly that judges should have the final say. But like jurors, a lot of judges didn’t want to talk. And everyone I spoke to was conflicted about override–even those who had used it. Like Judge Pam Baschab.

BASCHAB: I did that one time. I overruled a finding of life without parole and imposed a death sentence on a man who went to death row.

Baschab’s retired now, but she was on the bench for 20 years – as a local judge and then on the court of criminal appeals. I first met Baschab while I was reporting a story about elections. I hadn’t asked her about judicial override or even the death penalty. But she just started to talk about override. About a time she’d had to use it.   

BASCHAB: It was so hard. And I kept thinking, I don’t want this responsibility. I don’t want this responsibility.

Months after that first meeting, I visited Baschab at her home in North Alabama. She hadn’t slept the night before… And she had pulled boxes and boxes of notes out of storage. Her dining room table was covered with stacks of folders and legal pads.

BASCHAB: It was the William Earl Gregory case, and in fact, I have all my original notes here. These are my scratchy notes.

According to newspaper clippings, all of southern Alabama was looking for Gregory. He had beaten his mother-in-law to death with a tire iron and kidnapped his two-year-old son and ex-wife. His ex-wife had managed to escape and Gregory later released his son, at a gas station. Eventually, Gregory was arrested and charged with kidnapping and capital murder. Baschab says the local district attorney was a fan of media attention. And the trial was big news.

BASCHAB: And so, there was pressure on me to… I knew that whatever my decision was, was going to be a big public thing, whatever I did, and he was pushing for the death penalty, he wanted me to do the override. I don’t believe in my heart of hearts, that that influenced me, but I can see how it could influence me, or anyone else.

The jury decided Gregory was guilty and when it came to sentencing, the jury recommended that Gregory should go to prison for the rest of his life. But, because of override, that wasn’t the end.

BASCHAB: I can remember I went into my library — I had a little law library behind my courtroom and I just sat on the floor and I just took all the stuff, and went over it again.

As judge, Baschab was responsible for weighing the evidence again. Just her.  And as judge she is allowed to consider evidence that the jury didn’t hear. So, she sat down on the floor of her office and divided all the testimony and evidence into aggravating and mitigating. The crime was heinous and cruel – aggravating. But Gregory was a Vietnam vet with PTSD and had no prior record – mitigating. This was pre-computers, so Baschab wrote everything out by hand.

BASHAB: This is my rough draft, so the summary of my findings, it sets out the facts — But, this is actually how you do it, you just sit there and do it.

Baschab says she isn’t opposed to the death penalty. But as a Catholic, she was wary of imposing it herself. Before she became a judge, she’d actually consulted with her local bishop. The Bishop assured her that it was better she be in that position than anyone else.

BASCHAB: And here is my conclusion —

Baschab reads from her handwritten decision.

BASCHAB: It is therefore considered and judged by the court that William Earl Gregory is guilty and that the defendant should suffer the punishment of death by electrocution and then it says he is going to remanded to the sheriff.

This is back in 1995, Alabama still used the electric chair.

BASCHAB: And on that date on such time, the designated executioner shall… cause a current of electricity of sufficient intensity to cause the death to pass through the body of William Early Gregory until he is dead. 12th day of June 1995

Baschab announced her final verdict months after the trial was over. The jury wasn’t in the courtroom. She guesses the jurors probably read in the paper that she had decided on the death penalty. Baschab moved on. But, every couple weeks, she would drive past Alabama’s main death row — a prison called Atmore — and think about William Earl Gregory.

BASCHAB: Every time I would drive past Atmore I would know, he’s over there. He’s over there cause I had to make that decision. It was too much to ask of me. That I should do that. But it was my job, but it was too heavy a responsibility.

A year later, Baschab was elected to the court of criminal appeals. One day she was sitting in her office in the state capital…

BASCHAB: I can remember when they came and told me, that William Earl Gregory had taken his life on death row, how he did it, I can’t even remember, but I just sat down, cried my eyes out.

Mixed in with her papers, Baschab has a folder of newspaper clippings about the case. Her husband saved them for her during the trial. She finds a picture of Gregory. He was a small man, with thin lips, a greyish beard, and mousy looking  face. She says he was in her courtroom for a week.

BASCHAB: You know, even if you are a general in battle and you are going to be going out there killing people, you don’t know the people you haven’t heard about their whole lives. You don’t know everything about that person — like I did. That guy over there on your left flank, his momma died when he was three. It’s very personal and up close and you have seen him, he has been sitting there in the courtroom with you, day after day after day, you know who he is. You know him personally by that time. So I would say I don’t regret it, but I resent it. It’s not a necessary element of meting out justice — we have another method — just let the jury decide.

It’s been five years since Shannon Rae McKenzie was on the jury that decided Courtney Lockhart was guilty of killing Lauren Burk. When she was at trial, her husband also saved newspapers–in case she wanted to read them later. Shannon kept all those newspapers in a manilla folder.

MCKENZIE: I just now this morning opened it up and looked at it. And I said why am I keeping this stuff. I need to get rid of it. Then I am afraid if I get rid of it, I am going to forget,and I don’t want to forget, as much as I want to forget, cause I don’t want her to be forgotten, I don’t know… that sounds so weird.

Shannon’s thoughts about the case swing from deep empathy for Burk’s family to questions about Lockhart’s sentence . She says every time she drives down the road where Burk was murdered–she and her family pray.

SHANNON: I know her mom and dad sister, I feel their pain. I know it’s not anything near their pain, but. I feel pain for them. And when the anniversary is coming up of when it all occurred. Do you know when he is supposed to be executed, if they have a date?

I tell her I don’t know. That death penalty appeals take decades. Shannon gives me the folder. She’s tired of holding on to it. She says she tries not to drive herself crazy thinking about the trial, and the verdict, and how in the end, the decision she and eleven other jurors made to recommend a life sentence… still ended in the death penalty. Because in Alabama, the law says that 12 jurors can be overruled by one judge.

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