The Birmingham News
By BOB BLALOCK
October 26, 2008
In a controversial Death Row case that demanded a decisive ruling, the Alabama Supreme Court instead decided to punt.
Anthony Ray Hinton's case has landed back in Jefferson County circuit court, where he was tried and convicted 22 years ago in the robbery-murders of two Birmingham restaurant assistant managers.
Two Fridays ago, the high court in an 8-0 decision ordered the trial court to determine whether Hinton had an inadequate defense because his expert witness was unqualified.
It is "a step in the right direction," says lawyer Bryan Stevenson, who is representing Hinton on appeal. But it is so much less than what Stevenson had asked of the court in 2006, which is to free Hinton from Death Row because he is an innocent man.
Stevenson has argued Hinton did not kill two men and shoot a third, who identified Hinton at trial as his attacker. Stevenson builds Hinton's innocence claim mainly on a plausible alibi and questionable ballistics.
On the night the third victim, Sidney Smotherman, was shot at the Quincy's restaurant in Bessemer, Hinton was working at the Bruno's warehouse in Ensley 15 miles away. Stevenson has argued it was physically impossible for Hinton to check into work at midnight, sneak out and drive 15 miles to Bessemer, follow Smotherman to a nearby Food World, wait for him inside and leave when Smotherman paid for his groceries at 12:26 a.m., according to a cash register receipt.
Then, bump Smotherman's car from behind, pull a gun on him and force him to drive back to the restaurant, rob and shoot him, and drive 15 miles back to the warehouse in time for his supervisor to see him at 12:40 a.m.
Bob McGregor, who prosecuted Hinton in Jefferson County, says, "It was simple. We had a Bessemer police officer drive it at night at the same time, at the speed limit, and he made it with two or three minutes to spare. He testified to that."
Then, there is the ballistics issue and Hinton's expert witness in firearms, Andrew Payne, who has since died.
State forensics experts testified that six bullets used in the three crimes all came from the same gun, a .38 special taken from the home of Hinton's mother. The forensic evidence linking the slugs was critical; the state acknowledged that without the connection, it couldn't have prosecuted Hinton for the two murders. There was no physical evidence linked to Hinton at any of the crime scenes.
Payne testified he didn't think the bullets came from the gun. Stevenson later hired three firearms experts who said they couldn't match the recovered bullets to a single gun, and that Hinton's weapon was mechanically incapable of firing the bullets recovered in the Smotherman shooting.
The state has argued since the trial that Payne was a qualified expert. But at trial, Payne admitted he never test-fired the Hinton firearm to compare test bullets to the slugs police recovered; he didn't know how to turn on the state Department of Forensic Sciences microscope; nor could he see the bullets under the microscope for most of his analysis.
It didn't help that Payne had only one eye, earning him the moniker of one-eyed "charlatan" from the prosecutor during closing arguments.
The Supreme Court in its Oct. 17 ruling wrote that "under the facts of this case, it would be premature for this court to examine this issue without the trial court's first making specific findings" about Payne's competence.
For this, we waited two years?
"I'm just frustrated for Mr. Hinton," says Stevenson, who has freed an innocent man from Death Row. "He's been on Death Row now for 22 years, and there is going to be more delay. If all you're going to do is send the case down for more fact-finding, why does it take you two years?"
Now, the case returns to Jefferson County, and Circuit Judge Laura Petro has been assigned to handle it, McGregor says. The judge at Hinton's trial, James Garrett, has retired.
McGregor says he got a phone call from a witness' wife, who expressed fear after hearing about the Supreme Court's latest ruling. He told her how he envisioned the case playing out -- that the circuit court, after getting an affidavit or testimony from Garrett, would rule Payne qualified, and the state Supreme Court would agree. Hinton would then take his arguments to federal court, where he would get nowhere. "I ... said if luck is with us, within five years, it's goodbye to Anthony Hinton."
If luck is with us, the state -- that's you and me -- has got it right and won't kill an innocent man. Since 1973, 130 inmates in 26 states have been released from Death Row, including five from Alabama, according to the Death Penalty Information Center in Washington, D.C.
Who's feeling lucky?