In this Wake County case, defendant appealed his convictions for two counts of first-degree murder and the sentence of death, arguing a list of errors related to admission of evidence, denial of his motions to dismiss, and imposition of the death penalty. In a substantial and detailed opinion, the Supreme Court majority found no prejudicial error, affirming the death sentence.

In December of 2016, defendant set up a meeting with a woman, the eventual female victim, for sexual services at a Raleigh hotel. Defendant and an accomplice arrived at the hotel and the woman provided her room number. The two men went to the room, passing the man serving as a protector for the woman in the hallway. After a few minutes the protector, who was the eventual male victim, began banging on the door of the room. Defendant’s accomplice left the room and after an exchange in the hallway shot the protector several times. Hearing the shots, defendant ran out of the room, turned, and fired several shots back into the room, hitting the woman. By the time police arrived, both victims were dead from gunshot wounds; an autopsy determined the female victim was twelve weeks pregnant. Defendant and his accomplice fled the hotel but were subsequently arrested. During the guilt-innocence phase of trial, the State called two women, Bessie and Rachel, who had been hired for sexual services by defendant, and they offered testimony about his violent interactions with them, as he raped and robbed them in budget hotels. The State also called a woman, Kara, who had first been hired for sexual services by defendant, and who was then forced into prostitution by defendant and assaulted at gunpoint by him. Additional witnesses testified to defendant’s conduct during the sentencing phase of the trial. Defendant was convicted, sentenced to death, and appealed directly to the Supreme Court under G.S. 7A-27(a).

The Supreme Court took up defendant’s arguments regarding errors in both the guilt-innocence phase and the sentencing phase of trial (the numbering/lettering below corresponds to the majority opinion’s organization).

(A) Rule 404(b) Evidence (Bessie and Rachel) – Defendant argued it was error to admit evidence related to his interactions with Bessie and Rachel in the months before the murders. In separate incidents, defendant and an accomplice contacted each woman for sexual services, then met each woman at a budget Raleigh hotel, tied them up, raped them, and robbed them. (1) Defendant argued the evidence of the prior acts with the two women did not fall within the proper bounds of Rule 404(b) evidence. The Court disagreed, walking through defendant’s objections to the specific findings of fact and conclusions of law, noting the similarities between the crime at issue and the two incidents and concluding “[t]hese facts are sufficient in both temporal proximity and similarity to demonstrate a common plan or scheme to rape and rob [the female victim] on the night she was murdered.” Slip Op. at 18. (2) The Court then looked to whether the evidence was unfairly prejudicial under Rule 403, determining “this evidence was not unfairly prejudicial, nor did it substantially outweigh the highly probative value, because it was introduced to establish defendant’s common scheme or plan.” Id. at 19-20. (3) Finally, the Court considered the limiting instruction given by the trial court and found no error, noting that defendant actually requested the instructions in question, meaning even if there was error, it would be invited error on defendant’s part.

(B) Evidence of a Prior Assault with a Firearm (Kara) – Defendant next argued that admitting evidence of his assault on Kara was plain error under Rules of Evidence 401 and 403, as defendant failed to object at trial. Defendant met Kara after he hired her for sexual services, but defendant then forced her to engage in prostitution to raise money for him. After defendant continued to force Kara to raise money, she protested, and defendant threatened her by placing his gun in her mouth. (1) After defendant’s motion in limine, the trial court allowed the State “to elicit testimony from Kara [] to identify defendant and/or the weapon he used on the night she was assaulted.” Id. at 22. Kara was not permitted to testify about human trafficking or prostitution offenses. (2) The Court applied plain error review, noting review was not available under Rule 403 as review was not available for issues “within the realm of the trial court’s discretion.” Id. at 26 (quoting State v. Steen, 352 N.C. 227 (2000)). However, the Rule 401 relevancy issue could be considered, and the Court concluded that “testimony about defendant’s possession of, preference for, and prior assault with a firearm was relevant as it made the fact that defendant possessed and used the weapon to kill [the female victim] more probable.” Id. at 27-28. The Court also noted that even if the evidence was not relevant, defendant could not show the jury probably would have reached a different result if not for the evidence.

(C) Evidence of the Abusive Backgrounds of Prior Women Victimized by Defendant – The Court considered defendant’s arguments against testimony in both phases of the trial. (1) In the guilt-innocence phase, defendant challenged testimony from the female victim’s sister about her childhood, arguing it was improper testimony about the victim’s character. The court disagreed, explaining “the evidence revealed the factual circumstances of [the female victim’s] life relevant to explaining why she was engaging in prostitution on the night she was murdered by defendant at the hotel.” Id. at 31-32. Defendant also challenged certain testimony from the witness Rachel about her abusive childhood and experience in prostitution. Here the Court noted that defendant did not object to this portion of Rachel’s testimony at trial, and this “may have been part of defendant’s trial strategy” as defense counsel questioned Rachel regarding her experiences as a prostitute during cross-examination. Id. at 33. This represented invited error, and to the extent other portions of the testimony were objectionable, the Court found they were introductory evidence that provided context for the jury about how she crossed paths with defendant. (2) In the sentencing phase, two additional women, Keyona and Keyana, offered testimony about defendant’s violence towards them, and defendant again objected to testimony about their backgrounds. For sentencing, the rules of evidence did not apply, and the Rule 403 balancing test was not relevant. The Court found no error admitting the testimony as it introduced the women to the jury and “it showed a course of conduct by defendant of engaging in violent acts against vulnerable women and prostitutes.” Id. at 37. Defendant also argued that the trial court erred by instructing the jury they could consider evidence from the guilt-innocence phase of trial during their sentencing deliberations, but the Court dispensed with the argument as it was not error.

(D) Admission of Photographic Evidence from the Crime Scene – Defendant argued that the admission of nine photographs in State’s Exhibit 3 were unnecessarily repetitive and cumulative “because other evidence presented at trial showed that [the female victim] was found naked by the door of the hotel room, that her cause of death was a bullet wound to the chest, and that shell casings were found near her body.” Id. at 41. The Court walked through each of the photographs, determining they were independently useful by providing perspective and information related to the scene. Ultimately the Court determined “these photographs provided sufficiently distinct information of independent value to the State’s case, making them neither unnecessarily duplicative nor excessive.” Id. at 42-43.

(E) Failing to Dismiss Charges for First-Degree Murder of Female Victim – Defendant argued error in denying his motion to dismiss for insufficient evidence the first-degree murder charge on both theories of felony murder and premeditation and deliberation. (1) For felony murder, defendant argued the State’s evidence failed to establish the murder occurred during the commission of an attempted rape or robbery. The Court first established that “[Rule] 404(b) evidence may be considered when determining whether the State has presented sufficient evidence of a defendant’s intent to commit an underlying crime.” Id. at 46. The Rule 404(b) testimony here “demonstrated that defendant had a common scheme or plan to rape and rob prostitutes.” Id. The Court then found an “overt act” towards the felonies when defendant entered the female victim’s hotel room. Id. at 48. (2) Dispensing with the premeditated murder argument, the Court explained that there was no time requirement to constitute premeditation. Here, defendant arrived at the hotel with a loaded weapon, suggesting he was prepared to engage in violence. The female victim did not provoke defendant and she was unarmed, and defendant fired two shots at her face and chest, showing he had a deliberate intent to kill.

(F) Failing to Dismiss Charges for First-Degree Murder of Male Victim – Defendant also argued error in denying his motion to dismiss the murder charge for the victim shot by his accomplice in the hallway. The Court considered whether evidence supported the acting-in-concert doctrine for defendant’s conviction. (1) For felony murder, the Court found sufficient evidence to support defendant and his accomplice acted “in a common plan or scheme to commit rape and robbery with a dangerous weapon” and the male victim “was killed in pursuit thereof” even though he was not the intended victim. Id. at 52. (2) The Court also found sufficient evidence of premeditation and deliberation, as “[the accomplice’s] violence against [the male victim] was unprovoked, [the male victim] was unarmed, and nine separate rounds were fired by [the accomplice], with multiple gunshot wounds to [the male victim’s] body.” Id. at 53. The Court also noted that it was “foreseeable that a prostitute would have another individual monitoring business-related activity for safety and protection” justifying the charge. Id.

(G) Finding of the Aggravating Circumstance that the Murders were Committed During the Commission of an Attempted Rape and Attempted Robbery – Defendant argued that insufficient evidence supported the aggravating circumstance, as with the felony murder argument above. The Court explained that although defendant failed to object at trial, his objection was preserved as the trial court should have known he was contesting this factor. However, “the evidence of the attempted rape and armed robbery of [the female victim] was sufficient for its submission to the jury as an aggravating factor.” Id. at 55.  

(H) Trial Court’s Failure to Submit the Enmund/Tison Issue to the Jury for the Murder of the Male Victim – Defendant argued error under that Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987), as he did not shoot the male victim, although defendant did not raise this objection at trial. The Court first explained Enmund’s holding where “[t]he Supreme Court determined that imposition of the death penalty on those who had not manifested an intent to kill violates the Eighth Amendment.” Slip Op. at 56. The holding in Tison “essentially concluded that major participation in felonious conduct in which there is a significant risk of death is no different for Eighth Amendment purposes than the intent to kill issue that Enmund confronted.” Id. at 57-58. The Supreme Court of North Carolina held in State v. Robinson, 342 N.C. 74 (1995), that an Enmund/Tison instruction is not required if a defendant is convicted of first-degree murder based on premeditation and deliberation. The Court explained that the fact pattern here resembled Tison, as defendant was armed and actively involved in the planning and execution of the violent crimes, and in footnote 7 pointed out that the trial court provided an instruction on malice similar to the Enmund/Tison instruction in question. This led the Court to conclude that even if failing to provide an explicit Enmund/Tison instruction was error, it did not represent plain error.

(I) Jury Instructions Regarding the Use of the Same Evidence to Support More Than One Aggravating Circumstance – Defendant argued error in failing to instruct the jury that it could not use the same evidence to support more than one aggravating circumstance; here the circumstances were G.S. 15A-2000(e)(5) (during attempt or flight after robbery or rape) and (e)(11) (part of a course of conduct including other crimes of violence). The Court first noted that under State v. Moseley, 338 N.C. 1 (1994), the circumstances would only be redundant if there is a “complete overlap” of the evidence supporting each circumstance. Slip Op. at 60. Here testimony from two witnesses supported both (e)(5) and (e)(11), but “substantial separate evidence from additional victims that were subjected to the ongoing course of conduct” supported the (e)(11) circumstance, meaning no error. Id. at 61.

(J) Trial Court’s Denial of Defendant’s Motion to Suppress a Witness’s In-Court Identification – During sentencing, a witness testified about an encounter she had with defendant in 2016 while working as a prostitute in a Raleigh hotel. Before the witness testified, the trial court allowed voir dire about her identification of defendant; after being contacted by a Raleigh police officer, the witness conducted research on her own and determined defendant was the same person she encountered in 2016. Defendant objected to the witness’s identification, arguing it was tainted by government action, but the objection was overruled. Looking at the limited contact between the Raleigh police officer and the witness, the Court concluded her identification “was not a result of State action and does not violate defendant’s due process rights.” Id. at 66.

(K) Trial Court’s Final Mandate for First-Degree Murder Under the Theory of Felony Murder – Defendant argued error by failing to repeat the elements for the underlying felonies of attempted rape and attempted robbery with a dangerous weapon, but failed to object to the instruction at trial. Here, the trial court informed the parties that it planned to give N.C.P.I.-Crim. 206.14, and defendant did not object or propose new instructions, meaning the review was for plain error. The Court explained that the trial court instructed on first-degree murder on the basis of malice, premeditation, and deliberation, then for felony murder, and then a final mandate. Although the final mandate did not contain the elements of the underlying felonies, the Court reviewed the instructions as a whole and concluded “the trial court thoroughly and correctly instructed the jury as to the elements of the underlying felonies.” Id. at 73.

(L) Cumulative Error in Denying Defendant a Fair Trial and Sentencing Hearing – Defendant argued the cumulative effect of the various errors he identified justified a new trial or sentencing. The Court disagreed, explaining “there can be no cumulative error because the trial court did not err.” Id. at 74.

(M) Excusing Jurors for Cause Based on Their Views on the Death Penalty – Defendant argued abuse of discretion in excusing three jurors for cause when they expressed hesitation in imposing the death sentence. The Court first explored the caselaw in this area, noting a prospective juror cannot be excused for general objections to the death penalty, but can be excused for holding views that prevent impartially performing the required duties. The Court then examined the transcript, concluding the answers of each prospective juror represented personal views that were at odds with the duties imposed on jurors, and the trial court did not abuse its discretion when allowing the three to be excused for cause.

(N) Peremptory Instructions on Three Mitigating Circumstances – Defendant argued error in failing to give peremptory instructions on three non-statutory mitigating circumstances related to defendant’s childhood, home environment, and mental health. Initially the State stipulated to the three disputed circumstances, but after further evidence was admitted, the State withdrew the stipulations. The Court first noted that peremptory instructions for mitigating circumstances were not appropriate when “the evidence is controverted or the evidence supporting the circumstance is not manifestly credible.” Id. at 84 (quoting State v. McLaughlin, 341 N.C. 426, 449 (1995)). Here, after looking at the testimony and evidence admitted during sentencing, the Court found controverted evidence or credibility issues with all three circumstances, meaning the trial court did not err.

(O) Defendant’s Motion to Strike the Death Penalty – Defendant argued that the District Attorney’s “discretion in seeking the death penalty and engaging in plea bargaining” created a system where the death penalty was effectively mandated similar to the now-repealed G.S. 15-162.1. Id. at 88. The Court rejected this interpretation of the discretion granted to the State and found no constitutional violation with the existing system.

(P) Lethal Injection as Cruel and Unusual – Defendant argued that North Carolina’s execution method was unconstitutional under the United States and North Carolina constitutions. The Court rejected defendant’s argument because he merely identified hypothetical risks and failed to “articulate how North Carolina’s lethal injection procedure creates a ‘substantial risk of serious harm.’” Id. at 91.

(Q) Preservation Issues – Defendant argued that the Court should invalidate the death penalty under international norms and prevailing standards of decency, and the indictment was insufficient because it did not include any elements elevating the crime of murder from second-degree to first-degree or allege aggravating circumstances. The Court noted these arguments have been rejected in the past, and pointed to several cases such as State v. Allen, 360 N.C. 297 (2006), and State v. Golphin, 352 N.C. 364 (2000). The Court also rejected defendant’s argument that the State was barred from “death qualifying” the jury, pointing to State v. Barts, 316 N.C. 666 (1986). Slip Op. at 93. Defendant additionally argued that the death penalty itself was unconstitutional in light of evolving standards of decency, which the Court again rejected.

(R) Ineffective Assistance of Counsel – In defendant’s final issue, he requested the Court dismiss his claims of ineffective assistance of counsel without prejudice so he could assert them in a MAR proceeding. The Court granted this request and dismissed the claims without prejudice.

Justice Earls, joined by Justice Riggs, concurred in the Court’s judgement that the first-degree murder convictions were proper, but provided a lengthy dissent finding errors with defendant’s sentencing. Id. at 98.

The Eighth Amendment does not require courts to instruct capital sentencing juries that mitigating circumstances “need not be proved beyond a reasonable doubt.” 

In this habeas appeal, the petitioner was convicted of two murders in 1992 in Arizona state court. At that time, no requirement existed that the jury determine facts supporting an aggravating factor. At least one aggravating factor must be found to support a sentence of death under the Court’s precedents. In the petitioner’s case, the trial court found factors in aggravation for both murders and imposed death. In federal habeas proceedings 20 years later, the Ninth Circuit found that the trial court improperly ignored mitigation evidence in violation of Eddings v. Oklahoma, 455 U.S. 104 (1982) (reversible error for trial court to ignore relevant mitigation evidence at capital sentencing). The case returned to the Arizona Supreme Court, where the petitioner argued for a new sentencing hearing before a jury. The Arizona Supreme Court rejected this argument, pointing to Clemons v. Mississippi, 494 U.S. 738 (1990). Clemons allows a state appellate court to reweigh aggravating and mitigating factors in a death case following reversal for use of an improper aggravating factor (instead of a jury weighing those factors). The Arizona Supreme Court reweighed the sentencing factors in the case and again imposed death. The petitioner appealed to the U.S. Supreme Court, arguing that a jury should have made that determination. A majority of the court disagreed and affirmed the death sentence.

The court first rejected the argument that Clemons did not apply because that case involved an improper aggravating factor, whereas the petitioner’s case involved a failure to consider a mitigation factor.

. . . [T]he Court’s decision in Clemons ruled that appellate tribunals may perform a ‘reweighing of the aggravating and mitigating evidence.’ In short, a Clemons reweighing is a permissible remedy for an Eddings error. 

The court also rejected the argument that Clemons was overruled by Ring v. Arizona, 536 U. S. 584 (2002), and Hurst v. Florida, 136 S. Ct. 616 (2016), which require a jury to determine facts supporting an aggravating factor. The petitioner argued that an appellate court could no longer reweigh aggravating factors under those cases and that a jury determination was required. This too was rejected. A jury need only find the facts in support of the aggravated factor; states are free to allow the trial court to make the ultimate decision on whether to impose a death sentence, so long as any facts necessary to support the aggravating factor were found by a jury. The court noted:

. . .[I]n a capital proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. . . In short, Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.

The petitioner also pointed to the fact that no jury determined the facts of the factors in aggravation supporting his death sentence as Ring and Hurst require. This claim was foreclosed by the fact that Ring and Hurst were decided after the petitioner’s direct appeal became final. Those cases therefore do not apply retroactively to cases (like the petitioner’s) on collateral review under Schriro v. Summerlin, 542 U.S. 348. The court rejected the argument that the Arizona Supreme Court’s reweighing of aggravating and mitigating factors re-opened direct review. The Arizona Supreme Court categorized its decision as collateral review, and the U.S. Supreme Court declined to disturb that interpretation of state law. “As a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.” Id. at 8 (emphasis in original). The Arizona Supreme Court’s judgment was consequently affirmed by a 5-4 majority. Chief Justice Roberts, and Justices Alito, Gorsuch, and Thomas joined the majority opinion.

Justice Ginsberg dissented, joined by Justices Breyer, Sotomayor, and Kagan. The dissenting justices disagreed with the majority that the Arizona Supreme Court’s action in reweighing sentencing factors was a collateral proceeding. In their view, that proceeding was a re-opening of direct appeal proceedings, and Ring applied. The dissenting justices would have found the death sentence unconstitutional and reversed the judgment of the Arizona Supreme Court.

The trial court did not err by submitting the (f)(1) mitigating circumstance (no significant history of prior criminal activity) to the jury. The defendant’s prior record included: felony breaking and entering in 1999; felony larceny in 1998; driving under the influence in 1996; larceny in 1993; sale of marijuana in 1991; and sale of a narcotic or controlled substance in 1990. The court found it significant that the priors were somewhat remote in time and did not appear to involve violence against a person. 

(1) The trial court did not err by failing to give a peremptory instruction on statutory mitigating circumstances when the evidence as to each was contested. (2) Although the trial court erred by failing to give a peremptory instruction on the non-statutory mitigating circumstance that the defendant’s mother did not accept his deficits, the error was harmless beyond a reasonable doubt. (3) The trial court did not err by failing to give peremptory instructions on non-statutory mitigating circumstances when it was not clear how one was mitigating or that the evidence was credible; as to others, the evidence was not uncontroverted. 

The Court affirmed the decision below, rejecting the defendant’s argument that because of his unusual medical condition the State of Missouri’s lethal injection protocol is unconstitutional as applied to him.

For more detail about this decision, see my colleague blog post here: https://unc.live/2uNfWf3.

In a per curiam opinion in this capital case, the Court held that the defendant has shown he is a person with intellectual disability. In 2015 a Texas appellate court held that the defendant did not have an intellectual disability and consequently was eligible for the death penalty. The Court considered the lawfulness of that determination, vacated the court’s decision, and remanded the case for further consideration. The Texas court subsequently reconsidered the matter but reached the same conclusion, holding that the defendant had not demonstrated intellectual disability. The defendant filed a petition for certiorari, arguing that the trial court record demonstrates his intellectual disability. The prosecutor agreed with the defendant that he is intellectually disabled and cannot be executed; the Attorney General of Texas however asked the Court to deny the defendant’s petition. Considering the merits, the Court agreed with the defendant that the Texas appellate court’s determination was inconsistent with its prior opinion in the case. The Court noted: “We have found in its opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion.” For one thing, it explained, the Texas appellate court again relied less on the adaptive deficits to which the trial court had referred than upon the defendant’s apparent adaptive strengths. The Court also found that the Texas appellate court relied too heavily upon adaptive improvements made in prison. Furthermore, the Texas court concluded that the defendant failed to show that the cause of his deficient social behavior was related to any deficits in general mental abilities rather than emotional problems. The Court noted, in part, that in its last review, it said that the Court of Appeals had departed from clinical practice when it required the defendant to prove that his problems in kindergarten stemmed from intellectual disability rather than emotional problems. Additionally, despite the appellate court’s statement that it would abandon reliance on certain evidentiary factors, it seems to have used many of those factors in reaching its conclusion. The Court concluded:

[T]he appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper. And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court. We consequently agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.

The complex procedural history of this case, which involves motions for appropriate relief filed by three defendants under the Racial Justice Act and associated proceedings occurring over a years-long period of time when the RJA was amended and then repealed, is recounted in detail in the court’s opinion which vacates the trial court’s order ruling that the repeal of the RJA voided the defendant’s RJA MAR and remands the case for the reinstatement of the defendant’s sentence of life imprisonment without parole.  For the reasons stated in State v. Robinson, ___ N.C. ___, 846 S.E.2d 711 (2020), the retroactivity provision of the RJA repeal violates the double jeopardy protections of the North Carolina Constitution.  For the reasons stated in State v. Ramseur, 374 N.C. 658 (2020), the retroactive application of the RJA repeal violates the prohibitions against ex post facto laws contained in the United States Constitution and the North Carolina Constitution.

Justice Davis concurred in the result for the reasons stated in Justice Ervin’s concurring opinions in State v. Golphin, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020) and State v. Walters, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020). 

Justice Newby dissented for the reasons stated in his dissenting opinions in Robinson and Ramseur.

(1) In a case centered on the constitutionality of the State’s method of execution in capital cases, the Court held that the N.C. Council of State’s process for approving or disapproving the Department of Correction’s lethal injection protocol is not subject to the Administrative Procedure Act and that petitioners cannot challenge it by going through the Office of Administrative Hearings. Instead, the court held, any issue petitioners have with the protocol rests with the state trial courts or the federal courts. (2) The court also held that the superior court erred by dismissing the petitioners’ declaratory judgment claim that the Council’s approval of the execution protocol violated G.S. 15-188. Nevertheless, the court affirmed the superior court’s order as modified because the court correctly construed G.S. 15-188 to mean that petitioners’ rights “are limited to the obligation that [their] death[s] be by lethal injection, in a permanent death chamber in Raleigh, and carried out pursuant to an execution protocol approved by the Governor and the Council of State” and that no factual or legal authority “supports Petitioner[s] claims of a due process right to participate in the approval process.”

If a defendant with no memory of his crime rationally understands why the State seeks to execute him, the Eighth Amendment does not bar execution; if a defendant with dementia cannot rationally understand the reasons for his sentence, it does. What matters, explained the Court, is whether a person has a “rational understanding,” not whether he has any particular memory or any particular mental illness.

            The Court noted that in Ford v. Wainwright, 477 U. S. 399 (1986), it held that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. It clarified the scope of that category in Panetti v. Quarterman by focusing on whether a prisoner can “reach a rational understanding of the reason for [his] execution.” Here, Vernon Madison killed a police officer in 1985. An Alabama jury found him guilty of capital murder and he was sentenced to death. In recent years, Madison’s mental condition sharply deteriorated. He suffered a series of strokes, including major ones in 2015 and 2016. He was diagnosed with vascular dementia, with attendant disorientation and confusion, cognitive impairment, and memory loss. Madison claims that he can no longer recollect committing the crime for which he has been sentenced to die. After his 2016 stroke, Madison petitioned the trial court for a stay of execution on the ground that he had become mentally incompetent, citing Ford and Panetti. The trial court found Madison competent to be executed. Madison then unsuccessfully sought federal habeas corpus relief. When Alabama set an execution date in 2018, Madison returned to state court arguing again that his mental condition precluded the State from going forward, noting, in part, that he suffered further cognitive decline. The state court again found Madison mentally competent. The U.S. Supreme Court agreed to review the case.

            The Court determined that a person lacking memory of his crime may yet rationally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. It explained: “Assuming, that is, no other cognitive impairment, loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment. And that kind of comprehension is the Panetti standard’s singular focus.” It continued, noting that a person suffering from dementia or a similar disorder, rather than psychotic delusions, may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters, it explained, “is whether a person has the ‘rational understanding’ Panetti requires—not whether he has any particular memory or any particular mental illness.” The Court continued, noting that the “standard has no interest in establishing any precise cause: Psychosis or dementia, delusions or overall cognitive decline are all the same under Panetti, so long as they produce the requisite lack of comprehension.” Ultimately, the Court returned the case to the state court for renewed consideration of Madison’s competency, instructing:

In that proceeding, two matters disputed below should now be clear. First, under Ford and Panetti, the Eighth Amendment may permit executing Madison even if he cannot remember committing his crime. Second, under those same decisions, the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions. The sole question on which Madison’s competency depends is whether he can reach a “rational understanding” of why the State wants to execute him. Panetti, 551 U. S. at 958.