A Morgan County Circuit Court judge last week decided he has the ability to impose the death penalty on a capital murder defendant even if the jury in a scheduled sentencing trial disagrees.

The Legislature abolished the practice of judicial override in 2017, but Cory Maples, 50, was convicted and previously sentenced to death almost 30 years ago.

The issue arose in advance of a resentencing jury trial that was set to begin Jan. 22, but was ultimately delayed after the defense team successfully argued that they needed more time to review prison phone records.

Maples was sentenced to death in 1997 for fatally shooting his friends, Stacy Terry and Barry Robinson, in the head. Maples was 21 at the time. The shootings took place in the front yard of Maples’ family’s Morgan County home.

After fighting for the right to appeal his punishment all the way up to the U.S. Supreme Court in 2012, a federal court later threw out his death sentence in 2022 due to ineffective assistance of counsel during the sentencing phase.

According to a court’s summary of the incident, Maples “left Terry’s body in the yard, then threw Robinson’s body in a creek a short distance away, stole Terry’s car, fled to Tennessee, and evaded arrest for nearly a month. When arrested, he gave a video-taped confession in which his speech was almost monotone, and he showed little emotion and no regret. But Maples said he could not remember why he killed his friends.”

The prosecution is now seeking to reinstate Maples’ death sentence, and the defense is arguing that the jury, not the judge, should determine whether to impose the death penalty.

“At 10:02 p.m., on the last business day before trial is set to begin in this case, the Court informed the parties that it intended to apply Alabama’s old capital statute,” reads a motion by Maples’ attorneys, filed Jan. 21, arguing against Circuit Judge Charles Elliot’s decision. “This represents a complete reversal of this Court’s earlier determination, made on the record, that Alabama’s new capital sentencing regime, which prohibits judicial override, would be applied here.”

An excerpt from the transcript of a status hearing held for Maples on Oct. 2 is attached to the motion to show Elliott had previously said he could not override the jury’s sentencing decision.

“I find that under the current Alabama sentencing scheme, we do not have advisory opinions anymore,” the transcript indicates Elliot said at the hearing. “So, in Alabama, a jury now sentences instead of the judge.”

Elliott said he could not comment publicly on the case.

According to the Equal Justice Initiative (EJI), almost 20% of people currently on death row in Alabama were put there through judicial override.

Alabama for the first time executed a convicted murderer, Kenneth Smith, by nitrogen hypoxia on Thursday. Smith was sentenced to death via judicial override in 1996, well before the practice was abolished. Unlike the Maples case, Smith was unsuccessful in overturning the death sentence and obtaining a new sentencing hearing.

Alabama has a “shocking” error rate when it comes to executions, according to EJI: For every eight people executed, one person on death row has been exonerated.

“The thing that’s important about this case, is there’s only two outcomes to this proceeding,” Brian White, one of Maples’ attorneys, said last week. “It’s either the death penalty, or life without parole.

“One outcome ends the proceedings once and for all. In other words, you don’t appeal a circumstance where you get the best outcome (life without parole). If Maples is sentenced to death, you have the rights of direct appeal, postconviction review in the state courts, and postconviction review in the federal courts.”

Alabama is the only state that does not provide legal assistance for postconviction proceedings, according to EJI.

“The fact that, so often, it boils down to organizations like EJI and volunteer, pro bono sections of large law firms to shepherd the cases to this point — you know, I’ve gotten in at the last minute of the fourth quarter, so to speak,” White said.

Attorneys sparred in court Jan. 22 over access to recordings of Maples’ prison phone calls.

“They (the prosecution) knew we were going forward in January and made no effort to provide the contents of the calls,” Rebekka Higgs, another one of Maples’ attorneys, argued in court. Higgs said the defense team didn’t receive the records until Jan. 19, one business day before the trial was scheduled to begin.

Beside Higgs sat Maples. An observer might have mistaken him for part of the defense team. Sans shackles and wearing a zip-up fleece over a collared shirt, Maples calmly watched the proceedings through large-framed glasses.

“They (the defense) didn’t move, they didn’t ask us for (the phone records) until (Jan. 18),” said Alabama Assistant Attorney General Polly Kenny. “The defense has requested continuance after continuance after continuance.”

Kenny argued there was nothing significant in the phone calls, despite admitting to not listening to the recordings in their entirety.

“It would be ineffective for us to rely on their assessment of the phone calls,” Higgs said. She further argued that the prosecution knew prior to Thanksgiving that they planned to use at least one of the recordings at trial.

Court records show that Maples’ attorneys requested all records pertaining to their client “generated or maintained by the Alabama Department of Corrections” and the Morgan County Jail on Aug. 12, 2022.

On Aug. 18, 2022, Elliott ordered the prosecution to allow the defense to inspect, on written request, any “papers, documents, photographs, videotapes,” etc., that are “material to the preparation” of Maples’ defense.

In his Jan. 22 ruling, Elliott said prison phone calls are usually full of “nothing,” based on his experience as a prosecutor.

“But sometimes there might be one or two sentences,” he said. “These phone calls should have been turned over. The defense should have the opportunity to listen to these phone calls.”

Maples’ trial was pushed back to April 30. Elliott said he expects it will last roughly three weeks. — Supreme Court

“This case is back in Morgan County because of volunteer assistants of a law firm that got it through the federal habeas proceedings,” White said.

After lawyers of one firm unsuccessfully sought post-conviction relief from the death penalty decision on Maples’ behalf, they left the law firm without notifying Maples or the court of the deadline to appeal, according to EJI. By the time Maples learned this, the time limit for filing an appeal had passed. Because that time had passed, state courts declined to allow him to appeal.

The law firm of Latham & Watkins then volunteered to provide legal assistance to Maples to challenge the penalty phase of the trial court’s proceedings.

“Maples was convicted of murder and sentenced to death in Alabama by a jury,” Latham & Watkins said in a press release. “During that trial, Maples was represented by a counsel who had never handled a capital penalty-phase proceeding, conducted almost no investigation into Maples’ life, and presented the barest of cases to the jury for why Maples’ life should be spared.”

Ultimately, Maples fought his right to appeal the sentencing decision all the way up to the U.S. Supreme Court, which ruled 7-2 in his favor in 2012, remanding the case to a lower court.

In a dissenting opinion, Justice Scalia argued that the court’s ruling was motivated by an “understandable sense of frustration” that Alabama did not simply allow Maples to appeal in the first place, “in the interest of fairness.”

A federal district court in 2022 ruled that Maples was entitles to a new sentencing trial due to the ineffective assistance of counsel in the first one.

Maples was transferred from prison to Morgan County Jail on Sept. 26, 2023, according to jail records, to await his resentencing trial.

Kenny deferred inquiries to the Morgan County District Attorney’s Office. District Attorney Scott Anderson said it wouldn’t be appropriate for him to comment on any aspect of the case with sentencing pending.

— [email protected] or 256-340-2438. @DD_DavidGambino

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