High Court Takes up Case of Cop Killer who Can’t Remember Crime

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By Jordan S. Rubin

The U.S. Supreme Court Feb. 26 took up the case of an Alabama cop killer with dementia who says he can’t remember his crime.

Vernon Madison hopes his case will turn out more favorably than his last high court encounter, when the justices in 2017 reversed a federal appeals court ruling that found him incompetent to be executed for the 1985 killing in Mobile.

After that decision, Madison returned claiming that he had new evidence related to his competency claim. The court stayed his execution Jan. 25 over the dissent of Justices Clarence Thomas, Samuel A. Alito, Jr., and Neil M. Gorsuch.

It will now review what Madison deems “the substantial question” of whether the Eighth Amendment permits executing prisoners with no memory of their crimes.

His current case may present a favorable context for him procedurally, compared to his unsuccessful trip to the Supreme Court.

The court’s opinion in November cited the “deferential standard” it had to apply. The justices there expressed “no view on the merits of the underlying question outside” of the federal law, the Anti Terrorism and Effective Death Penalty Act, that strictly limits federal habeas review of state court decisions.

How the justices view Madison’s case in another light may become clearer when when the case is argued during the Supreme Court term beginning in October 2018.

No Memory, New Evidence

Madison’s in his late 60s and suffers from vascular dementia as a result of multiple serious strokes over the past two years. He can’t remember committing the murder, according to his Jan. 18 petition that the court granted.

“His mind and body are failing,” it said.

And his lawyers found what he said is new evidence, according to his petition: That the court-appointed expert in his case had been suspended from the practice of psychology after his narcotics addiction led him to forge prescriptions for illegal pills and eventually into drug rehab. Lower courts relied on his opinion in rejecting Madison’s earlier claims.

Madison brought that evidence to a local state court in Alabama after the high court ruled against him previously. But the state court nonetheless said that Madison’s execution could go forward.

His current Supreme Court appeal seeks direct review of the state court judgment rather than the federal habeas issue the justices already rejected.

Red Herring

Alabama argued in its opposition brief that tried to convince the justices not to take the case that “Madison’s attack on the court-appointed expert” adds nothing here and serves “only as a red herring.”

Testimony from Madison’s own expert, separate from the court-appointed one, supported lower court findings that he was competent to be executed, the state said in its reply. And Madison’s expert found no fault with that expert, it said.

Madison’s case would be a waste of time, the state argued.

“Additional expenditure of judicial resources is not warranted to review a legal decision based on facts that have not changed, especially in light of the expense and vexation that would be imposed on the State of Alabama, not the least of which would be a further delay in having Madison’s sentence carried out,” it said.

What’s more, Madison doesn’t argue that he’s “insane,” and so arguing that his dementia prevents him from being executed wrongly expands prior Supreme Court precedents, it said.

Sentencing Claim Sidestepped

The justices declined to take up Madison’s separate argument that his sentence was unlawful because the trial judge overrode the jury’s decision to impose a life sentence and gave him a death sentence instead.

The state has since outlawed the “judicial override” practice, so allowing the execution now would constitute “the kind of arbitrariness that violates the Eighth and Fourteenth Amendments,” he argued in a separate petition that the justices rejected at the same time they granted his other one.

The state argued in opposing the other petition, this time successfully, that Madison deserved nothing less than the ultimate punishment.

“Madison executed a police officer who was sitting in his patrol car, then turned the gun on his girlfriend,” the state’s opposition brief said.

“He fired without regard for the safety of her child or anyone else in the neighborhood. Madison’s crimes—capital murder and attempted murder—were cold-blooded, and his punishment is entirely appropriate,” it said.

The case is Madison v. Alabama , U.S., No. 17-7505, granted 2/26/18 , Madison v. Alabama , U.S., No. 17-7535, denied 2/26/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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