A drunk lawyer at trial. A dropping of the N-word during closing arguments. These are things that have been overturned by Alabama’s “plain error” rule on appeals; but a new rule change might mean these instances wouldn’t be caught by the appeals courts.

The Alabama Supreme Court last week eliminated mandatory “plain error” review and left the ACLU of Alabama saying the change will strip the constitutional rights of people on Alabama Death Row.

Rule 45A Alabama Rules of Appellate Procedure previously required that appellate courts consider all constitutional violations that occurred at a trial on direct appeal, even if there were no objections at the time. The new rule says courts don’t have to consider any of those violations if there was no objection at the time.

The old rule also required the appellate courts to go through cases looking for errors, in addition to considering those that defense lawyers brought up. But now, they don’t have to look for themselves. And, they don’t have to consider those constitutional violations if the trial lawyer didn’t object at the time.

The mandatory plain error review only applied to death row cases.

Here’s what the new rule says: “In all cases in which the death penalty has been imposed, the Court of Criminal Appeals may, but shall not be obligated to, notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

Alison Mollman, ACLU of Alabama’s senior legal counsel, said the new rule will have dire consequences. “The Alabama Supreme Court’s appellate rule change is unnecessary, dangerous, and will lead to wrongfully convicted people being executed.”

“A majority of people on death row did not receive adequate representation at trial and had attorneys who failed to object to egregious constitutional violations,” she added.

According to the Equal Justice Initiative, mandatory plain error review has been responsible for nearly 40% of all reversals in Alabama death penalty cases.

According to both the ACLU and EJI, the court made the change without guidance from its Rules Committee. Three Justices dissented, writing opinions that were published online with the rule change’s announcement.

“We had this rule for 44 years. Our courts and our legislature recognized we needed it,” said Mollman. “Six people changed the rule we’ve had for 44 years. We should all be uncomfortable with that.”

Justice Jay Mitchell, who concurred with the ruling, wrote in his special opinion: “Plain-error review requires already overloaded appellate courts to spend hundreds, if not thousands, of hours per case scrutinizing trial-court records for possible errors and then explaining why those errors are (or are not) reversible… In such instances, plain-error review can have the effect of transferring limited judicial resources away from non-death-penalty appeals in which the defendant has a plausible claim of factual innocence and redirecting those resources toward death penalty appeals in which there is no doubt about the defendant’s factual guilt.”

“That result is bizarre at best, unjust at worst,” he wrote.

He also described the process as “rarely a fruitful exercise,” writing that most defense lawyers argue obvious errors on appeal.

Some of the issues that previously could have been resolved at the direct appeal level under plain error now must be raised later in the appeals process, which “kicks the can down the road,” according to Mollman. The result is possibly leaving people in jail for years, sometimes decades, longer before they may be freed on an issue that previously would have been reviewed sooner.

Sometimes, that issue won’t be reviewed at all.

“This isn’t good for victims or anyone else when we are delaying addressing constitutional issues,” Mollman said.

The rule change puts more pressure on trial lawyers, who may miss a chance at objections “and the consequences are going to be deadly.”

“Even the best lawyers miss objections,” she added.

Justices Greg Shaw, Alisa Kelli Wise, and Tommy Bryan dissented.

Shaw wrote in his dissent there was “no compelling reason to repeal the mandatory plain-error review.” He wrote, “The Alabama Court of Criminal Appeals is well-suited to conduct such a review on direct appeal, and if there is reversible error in a case in which the death penalty has been imposed, it should be detected and resolved sooner rather than later.”

“If such error is detected in subsequent state or federal postconviction litigation and relief is granted, which can occur many, many years after trial, the State, because of the passage of time and its effect on the evidence and witnesses, may be substantially hindered in prosecuting a new trial and obtaining another sentence of death.”

Wise, who wrote a dissent in the case that Bryan joined, said while she understands that the review on “places a burden on the Court of Criminal Appeals and requires the use of judicial resources,” the effort is important.

“However, in these cases, the defendants’ very lives are at stake, and I believe that such cases are entitled to heightened review on direct appeal,” she wrote.