March 4, 2004
Vol. 23 No. 11

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    Law professor gets inmate off death row in legal victory

    By Peter Schuler
    News Office

    Bernard Harcourt

    Bernard Harcourt is preparing to return to Mobile, Ala., this month for the re-sentencing of death row inmate Phillip Tomlin—but this time, without the possibility of death.

    Harcourt, Professor in the Law School, waged a 14-year legal battle on behalf of Tomlin, an Alabama inmate on death row for 26 years—more than half his life—that ended in victory last October. The Alabama Supreme Court agreed with Harcourt’s argument that the trial court’s override of the jury’s sentence was improper on both state and constitutional grounds. On Dec. 19, 2003, the Alabama Supreme Court denied the state’s application for rehearing.

    The Alabama Supreme Court reversed Tomlin’s death sentence and instructed the lower court to restore the jury’s original sentence of life in prison without parole.

    “What this decision shows is respect for the jury,” said Harcourt. “The Alabama Supreme Court has finally begun to rein in the trial judge’s power to simply override jury verdicts of life.”

    The decision in the case, known as Ex parte Tomlin, is one of the first in Alabama to create a standard of review for judicial override of a jury’s sentence and one of the only cases to reverse a judicial override as improper. The United States Supreme Court had previously ruled that the United States Constitution did not require the Alabama judiciary to adopt any particular standard of review for judicial overrides.

    “Phil Tomlin’s case is a microcosm of what’s wrong with the death penalty in this country,” said Harcourt, whose scholarship, including two books, focuses on issues of crime and punishment. “As a result of prosecutorial misconduct and elected judges overriding unanimous jury verdicts of life imprisonment without parole, this case has dragged on for decades and harmed practically everyone involved, including the victims’ families, multiple sets of jurors, as well as Phil Tomlin’s family, children and grandchildren.”

    Tomlin had originally been convicted and sentenced to death in 1978 for his alleged participation in a revenge killing. The inmate had been retried on three separate occasions in Alabama, and on each occasion, the trial judge overrode the unanimous jury verdict for life and sentenced Tomlin to death.

    Harcourt, who had previously earned a J.D. and a Ph.D. from Harvard University, began representing Tomlin in 1990, when he appealed Tomlin’s reconviction and judge-override sentence of death. At the time, Harcourt worked at the offices of the NAACP Legal Defense Fund in New York City, representing Alabama death row prisoners on behalf of the Alabama Capital Representation Resource Center (now the Equal Justice Initiative).

    Harcourt obtained a new trial for Tomlin in 1992 on the grounds of prosecutorial misconduct during the closing argument. Harcourt also participated in Tomlin’s retrial in 1993, which resulted in another judge override of the unanimous jury verdict of life imprisonment and a sentence of death in 1994. He obtained a new trial for Tomlin in 1996 on the grounds of juror misconduct.

    Harcourt continued to represent Tomlin pro bono when he returned to Harvard Law School as a Senior Fellow and when he was appointed to the Chicago Law School faculty in 2003.

    Two Chicago Law School students, Catherine Doyle and Eric Mersmann, both in the Class of 2005, assisted Harcourt on the briefs filed with the Alabama Supreme Court. “Cathy and Eric provided invaluable research and assistance,” Harcourt said. “Their dedication and interest was inspiring to me and reflects well the talent and public spiritedness that runs deep at the University.”