At the time the Constitution for the United States of America was drafted the jury was recognized to the the final check against bad laws and prosecutorial excesses; and, as contemplated by the Constitution, a criminal trial jury consisted of twelve men from the general area in which the crime occurred - and the accused usually lived - willing to be impartial in their judgment of the law and the facts. It is necessary that all 12 concur in order for a conviction to occur, but the dissent of one causes a failure of the prosecution, upon which the accused my not again be put in jeopardy for the same crime. These things are also contemporary to Alabama's Constitution. Absent redefinition by constitutional amendment, they must remain in force in America. It is fact that refusals to convict by juries aware of their powers have forced repeal of bad laws, among them excessively harsh sentences, throughout America's history.

The historical practice in Alabama, from 1841 throughout the period of usage of the 1940 Alabama Code, has been that the jury in a capital case had the power to fix the sentence at either death or life imprisonment, at their discretion. There was no equivocation in the statutory language.

Since the close of the Civil War the judiciary has intensified its ongoing usurpation of power and its displacement of the common law recognized at the time of the drafting of the Constitution. Trial by jury is their greatest impediment, so it has been a prime target of unconstitutional "interpretation."

Rules of Procedure

Within Amendment No. 328 to the Alabama Constitution are several subtle but sinister provisions, one of which is section 6.11 which permits rules drafting by the Alabama Supreme Court (actually done by Alabama State Bar Association Committee.) Most would think this innocuous, vizualizing "rules of procedure" as merely internal rules of decorum; but limitations upon the scope of these "rules" are few and vague, so this authorization has been used as excuse for open-ended judicial legislation, by formal rules and by judicial opinion, in violation of the Alabama Constitution, Article III, Sections 42 and 43, and Article IV, Section 44.

The Furman Case

In the case Furman v. Georgia 33LED2d346 (1972) the Supreme Court of the United States, ostensibly concerned with probable racial bias on the part of Georgia juries in their imposition of death sentences, issued an opinion disapproving Georgia's death sentencing method - which, like Alabama's provided for jury discretion in sentencing to either death or life imprisonment. While there is no doubt that many juries were racially biased - and in fact were often assembled by the prosecutor to be biased - declaring jury sentencing power unconstitutional was not the right way to correct the problem. Clearly, a jury which is sufficiently biased to sentence unjustly will also convict unjustly. So, when appeals courts review the cases on their individual merits, and there is found jury bias, the conviction should be nullified. If the appeals process is just, and convictions in which bias is found are reliably nullified, abuses in the trial court will soon cease. Why, then, the Furman opinion? In simplest terms: judicial jealousy of the power of the jury, and a desire for revenue. The Furman opinion served the anti-jury agenda in several ways: future convictions, their volume essential to a thriving systemic business, could be preserved since only arbitrary sentencing was addressed; and the stage was set for future usurpations, especially since the opinions given by the justices were sufficiently vague and confusing that non-lawyer state legislators would be likely to agree to the drafting of statutes by lawyers.

In response to the Furman opinion the Alabama legislature passed an ASBA - drafted code change in 1975, Act No. 2133, which provided for review of a jury imposed death sentence by the trial judge, the purpose of which was to permit the judge to override the (mandatory, upon conviction) jury-imposed death sentence and commute it to life in prison without parole, if he believed the jury's sentence to be excessive.

The Beck Case

Gilbert Beck's attorney challenged the 1975 Alabama statute on the sole basis that the statute precluded the option of conviction of what is called, in legal terminology, a "lesser included offense", but necessitated a verdict of either "guilty" or "not guilty" to the capital charge only (Beck v Alabama 65LED2d392(1980)), and the justices of the Supreme Court of the United States agreed and remanded to the Supreme Court of Alabama. That court's justices, in Beck v State 396S02d645(1981), proceeded to judicially legislate, claiming to modify the existing statute rather than to declare it to be infirm and leave the matter of change to the legislature. The justices asserted that they were "severing" the statute's preclusion of consideration of "lesser included offenses";then, prompted by the urging of the Attorney General to also "sever" the mandatory sentencing clause - a thing even they could not find a way to pretend without declaring the entire statute void, and with it all those lucrative and politically-advantageous convictions - claimed they could construe to be permissive the plain language of the statutory mandate that if the jury found the accused guilty, (1) they "shall fix the punishment at death"; then asserted they "judicially grafted" (as said later in Ex parte Hays 518So2d768, p. 776 (1986) a "bifurcated" or two-stage trial procedure to the 1975 death penalty statute, in which the jury would first determine innocence of guilt; then if the verdict was "guilty". determine the sentence in a separate, subsequent hearing. These are definitely acts of legislation, which the justices claimed to be merely procedural "rules" changes and not ""substantive"; but what more substantive right could there be , than retention of one's life and liberty? What happened here, and why? Many capital indictments are sought, and issued, in cases where the crime is not truly capital. Jurors, having no lesser option, often will (and should) acquit; or, if they are convinced to unjustly convict by the prosecutor and judge, the case will be, most often, overturned by an appeals court. Either is bad for business. By providing lesser charges as an option the prosecution has a much better chance to get a conviction for something; and, again, the stage was set for further usurpations.

The 1981 Statute

Subsequent to the acceptance of the Beck case by the Supreme Court of the United States, Alabama Assistant Attorney General Ed Carnes, aided by ASBA committees and several other members of the bar, set about drafting a revised death penalty statute to replace the one drafted in 1975. The result was a statute neither conceived nor drafted by the legislature but "rubber stamped" by them, which added subtle pro-conviction changes plus the "bifurcated" trial procedure, to which was added a provision whereby the trial judge could override jury's verdict of a life sentence and sentence to death instead. According to procedure, the jurors are selected only after being asked questions by which to assure that they have no opposition to imposing a death sentence. Through this statute the prior judicial legislation via opinion was formalized by the legislature; considerable additional work for lawyers was created (a legal organization has been established for the purpose of arguing sentencing issues); and a further means of advancing the political careers of judges was created, who could now posture as "tough on crime" while imposing death sentences contraary to the will of the jury. Death penalty cases are far more lucrative than non-capital cases, due to federal grants, another incentive for overriding the jury.

The Hays Case.

The crime for which Henry Hays was tried and convicted (and, eventually, killed) occurred before the July 1, 1981 effective date of the new statute, and so he was tried under a combination of the 1975 statute and the Beck v State opinion/pretended legislation, complete with the "bifurcated" trial procedure. The jury in Henry Hays' case voted for life imprisonment, but the judge overrode and sentenced him to death. The Alabama Court of Criminal Appeals pointed out the statutory language - not contested in the Beck opinion - whicch only empowered the trial judge to commute a death sentence, and they overturned the sentence. The justices of the Supreme Court of Alabama, in Ex parte Hays 518So2d368 (1986), claimed that the ability to override a life sentence was "implicit" (though clearly not authorized) in the 1975 statute, and claimed also to "clarify" their opinion in the Beck case, as implying this claimed authority to override a life sentence. Making this assertion of "clarification", the justices then attached it to Hays' trial expost facto while again claiming to be making merely a procedural, and not substantive, change. In addition to this assumption of power to apply law/opinion expost facto, in the Hays opinion the justices asserted that an Alabama judge was never actually bound by a jury's sentence, despite plain statutory language going back to 1841.

Summation and Prediction

All who acted to bring about the events described here are members of one or more Bar Associations, and all acted in concert. For example, the lawyers who appealed the cases limited the scope of issues presented, and designed their arguments to facilitate the opinions of the justices. This series of events was no accident, but was planned.

Due to the foregoing evolutionary changes through judicial usurpation of the legislative function, the jury's power to sentence in a capital case has been eroded from that of having the discretion to pronounce a sentence of either life in prison or death, to a situation where the judge could reduce a death sentence to life imprisonment, to being powerless, and present only in an "advisory" capacity, though specifically culled to be a pro-conviction assembly through the preliminary death penalty-related questions. Thus, they are used as pawns of the prosecution while giving the appearance of trying the sentencing issues, in a sham proceeding.

This, based upon past performance, is only the beginning. The probably next step is the overriding of acquittals by judges, calling jury verdicts "wanton" or "freakish", or "bizarre" (exaggerated terms used in the Furman, Beck and Hays cases). There has already been some "testing of the waters" done in this area, in other states, and a few jurors have even been unconstitutionally punished for refusing to convict. There have been several prosecutorial suggestions that convictions be had by less-than-unanimous juries, the "precedent" in Alabama set by Section 13A-5-46(f) of the 1981 statute, which allows a 10-2 jury vote to suffice as a verdict imposing the death penalty. This agenda is intended to progress to the point where juries are entirely shams, then eliminated altogether. This agenda has advanced so well and so unnoticed through its application to a highly-unpopular group of people: those accused of capital crimes; and by leading many who consider themselves "law abiding" to ignore injustices and to clamor for the death of those so accused. These "law abiding" people fail to consider that what works injustice in capital cases can also ensnare them; that the last check against bad laws, injustice and usurpation is the informed and impartial jury; and that unless the continuing emasculation of the powers of the jury is halted and reversed - by their refusals to convict when they have doubts about either the law of the facts - the evolution toward tyranny will be completed, and they will be the miserable sharers of the event.

1. Black's Law Dictionary, 6th Ed. says "shall" can mean "may" in certain circumstances; however in this case Act No. 213 provided no alternative to this directive.

George Sibley is on death row in Alabama for the death of a policeman in Opelika, Al. George and his wife Lynda Lyon were traveling in this state, when a "desked" policeman accosted them in the parking lot of the Wal-Mart shopping center. Lynda heard the shooting and dropped the pay phone when she saw the policeman shooting in the direction of her 9 year old son. She got her pistol to defend her child. The policeman bled to death and the fatal bullet was never found. Lynda was electrocuted on May 10, 2002 right before execution was to be changed to lethal injection. George is fighting to clear Lynda's name, but the Alabama Attorney General has asked the Alabama Supreme Court for an execution date for George and two other prisoners.

By George Everette Sibley