Outside the Beltway

Alabama Executes Domineque Ray Under Questionable Circumstances

Critics on both the Left and the Right rightly see an injustice here but the US Supreme Court allowed it to happen.

James Joyner · Saturday, February 9, 2019 · 17 comments

Serial killer and rapist Domineque Ray was finally put to death in Alabama Thursday night, more than two decades after his most brutal crimes. My erstwhile home state’s execution practices have frequently been subject to national and even international controversy. In this case, the execution itself went smoothly. The cruelty was far more subtle.

The Montgomery Advertiser:

Ray was executed after an 11th-hour ruling from the U.S. Supreme Court vacated a stay of execution pending a religious rights claim. Ray, a Muslim, had argued Alabama’s practice of including a Christian prison chaplain in the execution chamber was in violation of the First Amendment. Ray sought to have his imam present in the death chamber at the time of his death.

Imam Yusef Maisonet, Ray’s spiritual adviser, witnessed Ray’s execution from an adjoining chamber, which held media and prison officials. Two lawyers accompanied Maisonet.

[…]

The 11th Circuit Court of Appeals had previously stayed the execution, writing that there was a possibility Alabama had “run afoul” of the religious freedom clause of the First Amendment.

The U.S. Supreme Court voted 5-4 to vacate the stay “because Ray waited until Jan. 28, 2019, to seek relief.”

Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor dissented to the ruling.

“Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death,” Kagan wrote in her dissent. “The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process — and itself rejects the claim with little briefing and no argument — just so the State can meet its preferred execution date.”

Ray was sentenced to death for the 1995 rape and fatal stabbing of 15-year-old Tiffany Harville of Selma. Months before his death penalty trial, he was sentenced to life for a 1994 slaying of two teen brothers.

Ray was implicated in the crime after another man, Marcus Owden, confessed to his role in Harville’s kidnapping. Owden testified in a 1999 trial that Ray cut Harville’s throat. Owden is serving a life sentence without parole.

The Supreme Court denied a second stay appeal on Thursday night, in which attorneys said Ray’s original defense team wasn’t informed that Owden suffered from schizophrenia and potential delusions at the time of his trial.

“For 20 years, Domineque Ray has successfully eluded execution for the barbaric murder of a 15-year-old Selma girl,” said Attorney General Steve Marshall in a statement. “In 1995, Ray brutally deprived young Tiffany Harville of her life, repeatedly stabbing and raping her before leaving her body in a cotton field. A jury gave him a death sentence for this heinous crime. A year before, Ray had also taken the lives of two teenage brothers, Reinhard and Earnest Mabins. Tonight, Ray’s long-delayed appointment with justice is finally met.”

A family member of Harville reached by phone Tuesday declined to comment. Prison officials said Thursday no one from the victim’s family would witness the execution.

Last week, Alabama prison officials argued in court that the prison chaplain is allowed in the execution chamber because he is a Department of Corrections employee trained in execution protocol. ADOC agreed to exclude the chaplain for Ray’s execution.

But after a Wednesday ruling that suggested the state’s practice had “run afoul” of the religious freedom clause of the First Amendment, Alabama amended or altered its lethal injection protocol, according to court records, to exclude the prison chaplain.

Alabama Department of Corrections Commissioner Jeff Dunn said the department has not yet made changes to its official lethal injection protocol, though the Holman chaplain was not included in Ray’s execution. Dunn said the department conducts an “after-action review” following every state execution and will consider changes then.

Dunn said that execution protocol is a “product of ADOC policy,” and it is within the purview of the department to make changes as it deems necessary.

Let’s stipulate that Ray and his lawyers have repeatedly filed motions to delay his execution, continually finding new and dubious grounds. Still, Alabama had to be sued to relent on having a Christian chaplain oversee the execution and refused to allow a Muslim imam in the room with him. On security grounds. The 11th Circuit issued a stay to hear the facts of that dispute but the US Supreme Court decided enough was enough.

National Review‘s David French:

I have no sympathy for Domineque Ray. The man was convicted of raping and murdering a 15-year-old girl, an act so heinous that the death penalty is appropriate and just. But Ray, no matter his crimes, still enjoyed the protections of the United States Constitution. Yet last night the state of Alabama and the Supreme Court failed to respect those protections at the most crucial of moments — they denied him access to an imam at the moment of his death. He could receive solace in the execution chamber from a Christian cleric, but his imam had to watch behind glass.

Any policy that by law or practice provided death-row inmates with access only to Christian chaplains would likely fail 9-0 if addressed on the merits. In this case, however, the Supreme Court didn’t decide the merits. It determined that Ray’s request for an imam was made too late. The state set his execution date on November 6, it denied Ray’s request for an imam on January 23, and Ray filed his application for judicial relief on January 28. On that basis alone, five justices of the Supreme Court determined that the execution should proceed.

[…]

I dissent as well. Ray’s execution was just. The circumstances were not. The state’s obligation is to protect and facilitate the free exercise of a person’s faith, not to seek reasons to deny him consolation at the moment of his death.

Stipulating again that Ray could certainly have filed to get an imam earlier than he did, I’m hard-pressed to figure why ten days’ notice was inadequate to find a Muslim chaplain. If Ray’s own imam couldn’t be cleared on security grounds, one suspects there’s a Muslim chaplain assigned to Maxwell Air Force Base just up the road with a US Government security clearance who would have performed the task free of charge.

Beyond the cruelty of denying the condemned the spiritual comfort we normally provide simply because he’s of a minority faith, there are other reasons to be concerned about the execution. There’s no doubt that Ray committed unspeakably awful acts. But as Lauren Gill explains at ProPublica, there are questions about his state of mind.

Juries in death penalty cases have been required to separately weigh questions of guilt and punishment for more than four decades. Those facing the possibility of death get to argue for mercy; they’re allowed to present evidence that might temper a jury’s willingness to recommend execution a defendant’s limited intelligence, for instance, or history of victimization. The obligation of defense lawyers in such cases, the U.S. Supreme Court has held, is considerable.

William Whatley Jr. was Ray’s lead defense lawyer in the Dallas County courtroom. Whatley was a former prosecutor, and this was not his first death penalty case as a defense lawyer. But he opted to let his co-counsel, Juliana Taylor, make the presentation to the jury. Taylor, just three years out of law school, had little experience. She’d never been the lead lawyer in a criminal trial. And she’d worked on just one capital case.

Whatley and Taylor put a single witness on the stand, Ray’s mother. She testified that she loved her son, and that his life had not been easy. His father, she said, had disowned him, and she had tried her best. The testimony lasted roughly 10 minutes.

The jury, after two hours of deliberation, voted that Ray be sentenced to death. He is set to die by lethal injection on Thursday.

In the two decades since the jury’s decision, lawyers for Ray have mounted appeals in both state and federal court, insisting he deserves a new trial. They have alleged that Whatley failed to adequately represent Ray. They have alleged that prosecutors withheld evidence of other suspects in the murder of the young girl. They have argued that members of the jury knew a police detective involved in the case and should have been kept off the panel.

Most recently, in an appeal still making its way through the Alabama courts, the lawyers have argued that the state withheld critical evidence involving Ray’s chief accuser, his alleged accomplice in the murders. The lawyers have asserted that Marcus Owden, who confessed to the three killings, had been suffering from schizophrenia when he testified, and that prosecutors withheld that fact from Ray’s defense team.

Prosecutors have denied the claims of misconduct, and they have prevailed in each of Ray’s appeals.

[…]

In their filings, Ray’s lawyers have laid out the details of what they say was a horrifying upbringing for a boy with an 80 IQ. Ray, 17 at the time of the first murders, had been beaten as he went from household to household from the age of 3 on — bouncing between Selma, Chicago, New York, Philadelphia, Virginia and South Carolina. After being left in an abandoned building in Chicago, he’d been taken in by state child welfare officials. He was then sent off to suffer more, sexually abused by his stepmother’s family as a toddler and encouraged by his mother to have sex with her friends when he was a teenager. He never made it past eighth grade. He’s since been diagnosed with schizotypal personality disorder, characterized by severe social anxiety, paranoia and unusual beliefs.

Robert Dunham, executive director of the Death Penalty Information Center, said there is no reliable national data on how often those convicted in a death penalty case get spared as a result of information made available to juries at the penalty phase.

“In most of the country, nobody keeps track,” Dunham said. “It’s one of our biggest gripes.”

There are, though, any number of cases — in Alabama and other states — where juries have opted against execution for even those convicted of the most brutal crimes. Barry Lee Jones, then 20, was convicted of sodomizing and murdering his 7-month-old, but an Alabama jury voted to spare him after defense lawyers and an investigator worked with his mother, sister, aunt, uncle and family spiritual adviser to put together his life story. Looking at school records, they found some evidence of mental disability. Whatley was the lead lawyer.

In Ohio, then-Gov. John Kasich commuted the death sentence of Raymond Tibbetts in 2018 after a juror wrote to him saying he had learned of the defendant’s abusive childhood only after he had voted for execution. The juror told Kasich he was upset that he didn’t have all of the information when he made his decision.

In federal death penalty cases over the last 30 years, juries have opted against execution in roughly two-thirds of them. Those spared include Zacarias Moussaoui, the man often called the 20th hijacker in the 9/11 terrorist attacks. A psychologist and friends testified about Moussaoui’s abusive childhood, his years in an orphanage and a diagnosis of paranoid schizophrenia.

There’s much more at the link.

Issac J. Bailey, writing at the Root, is more succinct.

For Ray, justice in America meant enduring sexual and other forms of physical abuse throughout his childhood, so much so that he was ashamed to even admit it to save his own life.

[…]

For Ray, justice in America meant enduring murder trials with inadequate legal representation in a system that disproportionately punishes black men and women at every level, trials that left legitimate questions about his guilt.

For Ray, justice in America meant that system ignored his upbringing and his low IQ even as it used a contested previous conviction against him to argue that he should be put down like a rapid dog.

For Ray, justice in America meant not even being allowed to have an imam at his side as the state unnecessarily and in a premeditated manner put him to death—in other contexts, that’s first-degree murder, but when the state does it, it’s legal and deemed justified—even though Christian prisoners are allowed to have a Christian chaplain by their side in the death chamber.

Very little about this case is just, it seems.

Ray was arguably not intelligent enough to be fully culpable for his actions. And he was almost certainly denied adequate legal representation, particularly during the sentencing phase. And there’s pretty strong evidence of police and prosecutorial misconduct. The denial of his basic religious rights at the end, which sparked my interest in the case, was really just insult added to injury.

At the same time, the victims’ families have been denied closure for almost a quarter of a century. Had Ray simply been sentenced to life in prison, they could have gotten on with their lives a long time ago.