Next week, Cory Maye will have his hearing for a new trial. The optimal outcome, of course, would be for Judge Ewbanks to issue a judgment notwithstanding the verdict, and find insufficient evidence for Maye’s conviction. That would free him on the spot. That’s also by far the least likely outcome. The second best outcome would be a new trial. On this possibility, Maye’s lawyers have expressed some cautious optimism. Others I’ve spoken with say if there were a judge in Mississippi you’d want to hear this motion, it’s Judge Ewbanks. The least desirable, and unfortunately most likely, scenario would be a denial of both requests, in which case Maye would file his one-shot appeal to the Mississippi Supreme Court.
A bit of background on the death penalty in Mississippi:
At first blush, it would seem that Maye’s odds at the state supreme court might be favorable. Surprisingly, Mississippi has executed just three men since 1989. Given the inactivity, you’d think that a case with facts as compelling as Maye’s would eventually get him out of Parchman.
Unfortunately, there’s more to the story. When I was in Jackson last March, I spoke with Andre de Gruy, who heads up Mississippi’s Capital Defense Counsel. The Capital Defense Counsel is a state-funded legal aid group started up after Mississippi endured a barrage of criticism from the federal courts for its lack of help for post-conviction death penalty cases. Were it not for Bob Evans and the Covington team, they’d likely be representing Cory Maye.
De Gruy told me there are two reasons why Mississippi hasn’t executed many people over the last eighteen years. The first is that from 1983 to 1992, the supreme court had a justice named James “Jimmy” Robertson (in Mississippi, supreme court justics are elected to eight-year terms). Robertson (here’s a fascinating background story that may have helped shape Robertson’s views) wasn’t a dogmatic opponent of the death penalty, but was careful in its application. With Robertson’s leadership, the court overturned a number of convictions too iffy for the finality of the gas chamber. Robertson was voted off the court in 1992 by a “law and order” candidate who painted the justice as soft on crime (one issue used in the campaign was Robertson refusal to administer the death penalty for rape alone). It was during Robertson’s term that the court issued its decision in the Wheeler case, a case that’ll be very difficult for the current court to distinguish from the facts in Cory Maye’s case.
The second and more influential reason for the dearth of executions in Mississippi is a bit more foreboding.
In 1980, the U.S. Supreme Court ruled in the case of Godfrey v. Georgia that the state of Georgia’s death penalty instructions to jurors were overly vague. Georgia instructed jurors to administer the death penalt if they found a crime to be “outrageously or wantonly vile, horrible or inhuman.” At the time, Mississippi’s death penalty instructions included the phrase, “especially heinous, atrocious or cruel.” Despite the obvious similarities and vagueries, Mississippi decided to stick with its jury instructions, in spite of the Supreme Court’s ruling in Godfrey, on the assumption that the inclusion of the word “especially” somehow made the instructions less vague.
In 1988, the U.S. Supreme Court held in Warden v. Cartwright that Oklahoma’s instructions, identical to Mississippi’s right down to the word “especially” were also unconstitutionally vague. With that, Mississippi finally changed its jury instructions, but maintained that everyone convicted and currently on Death Row as a result of the flawed instructions weren’t affected by the ruling in Cartwright, because it was a “new rule.” Finally, in the 1992 case of Stringer v. Black, the U.S. Supreme Court gave Mississippi no alternative. The Court basically rebuked the state, and issued an order that required Mississippi to reevaluate all of its death penalty cases since the 1982 Godfrey decision. All of those cases that had to be redone after the Stringer decision have just in the last few years begun to make their way through the appeals process, toward execution.
In other words, Mississippi’s dry spell in executing people between 1989 and around 2000 wasn’t so much due to the state’s judicious application of capital punishment as it was due to its sheer stubbornness. De Gruy estimates that within the next several years, as all of those cases affected by Stringer exhaust their appeals, the state could well end up executing 30 or more men per year.
I don’t mean to be too negative, here. De Gruy was pessimistic about the state’s supreme court offering any of relief for Cory Maye. But one other well-connected person I spoke with in Jackson, a man who has the ear of several justices on the state’s high court, seemed to think at least a few of them might be sympathetic.
All of that said, if the hearing next week doesn’t go well, my own opinion is that Maye’s best hope lies in the federal courts. I don’t know how any federal judge could read the brief filed by his legal team last month and think this guy ought to be executed.