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Alabama and Hurst

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Jo Deann Campbell was raped and murdered 23 years ago.  She was 23 years old.  It took as long as her entire too-short life to carry out justice in this case.  See today's News Scan and this article by Kent Faulk at AL.com.

The perpetrator argued against Alabama's execution protocol, similar to the one upheld by the Supreme Court last year in Glossip v. Gross.  He did not appear to get any traction with that, and the execution "went exactly as planned," according to the Prison Commissioner.

He also argued that last week's decision in Hurst v. Florida, discussed here, applies to Alabama's system.  The Court did not buy it and denied relief, although Justice Breyer did buy it.  Justices Sotomayor and Ginsburg seemed inclined to it on the merits but said that procedural obstacles would preclude relief.  They could be referring to the procedural default rule, the anti-retroactivity rule of Teague v. Lane, the deference rule of 28 U.S.C. ยง2254(d), or all three.

What do the other six Justices think?  They may well agree with the Alabama AG's argument, which is substantially the same as the one in my post earlier today:

"Second, and more importantly, unlike in Florida, the jury in Brooks's case specifically found the aggravating circumstances necessary to impose the death penalty. Specifically, the jury's unanimous guilty verdicts of capital murder during the course of a robbery, burglary, and rape, proved the existence of an aggravating circumstance under Alabama law," according to the AG's brief.
The Supreme Court needs to clear this up immediately.  This is much too important to leave hanging.

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Was the sentencing decision (or recommendation?) in Brooks made the jury or the judge?

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