sentencing has been delayed indefinitely amid testing
More than 4 months after a Lee County jury recommended life in prison for
Gregory Lance Henderson, the convicted cop killer’s fate remains in the hands
of Circuit Court Judge Jacob A. Walker III.
The judge will decide whether to accept the jury’s 9-3 vote against capital
punishment or override it and send the Columbus man to Alabama’s death row. But
defense attorney Jeremy W. Armstrong of Phenix City has been exploring a fresh
legal challenge to Henderson’s eligibility for execution that could change the
equation in an emotional case that shook the East Alabama law enforcement
Henderson was found guilty in October of running over and killing Lee County
deputy sheriff James W. Anderson during a September 2009 traffic stop in Smiths
Station, Ala. His sentencing, initially set for Jan. 31, has been postponed
twice, most recently because Armstrong has sought to determine whether
Henderson is mentally retarded and therefore legally immune to capital
The development could delay the case indefinitely if additional testing is
warranted. Walker has scheduled a hearing Wednesday to discuss a new sentencing
date and Armstrong’s recent motion for continuance.
Armstrong declined to discuss the case last week but said in court filings he
would decide soon whether to seek an “Atkins hearing,” a proceeding named after
the U.S. Supreme Court ruling that executing the mentally retarded amounts to
cruel and unusual punishment.
“Although trial counsel has handled numerous capital cases, counsel has not had
the experience in litigating an Atkins claim,” wrote Armstrong, a former
assistant attorney general in Alabama. “Subsequent to the penalty phase
hearing, counsel has conducted extensive legal research and attended a seminar
addressing the presentation of Atkins claims at the annual Death Penalty
Seminar presented by the Alabama Criminal Defense Lawyers Association.”
According to court filings, a psychologist has been conducting tests of
Henderson’s IQ. If the results show Henderson has “subaverage intellectual
functioning,” Armstrong said he’d have a legal duty to go a step further and
seek funding for an expert to assess his client’s “adaptive behavior.”
In support of his motion, Armstrong cited a forensic psychologist who testified
Henderson had “borderline” intellectual functioning when he evaluated him in
the Russell County Jail. During the penalty phase of the trial, Henderson’s
mother also said he’d been diagnosed with attention deficit hyperactivity
disorder around the age of 6.
“He couldn’t even sit still to watch a TV show,” Sheryl Lynn Henderson
testified. “He was always in trouble as far as home life.”
Assistant District Attorney Kisha Abercrombie declined to comment on the case.
But prosecutors are likely to ask Walker to override the jury’s recommendation
in Henderson’s case, as he did about a year ago after the high-profile murder
trial of Courtney Lockhart.
Prosecutors have portrayed Henderson, 33, as a career criminal who took the
life of a respected lawman he was trying to elude at all costs.
They’ve filed motions seeking records from Henderson’s days in Columbus public
schools as well as the Georgia prison system, documents that could buttress
their argument that the high school dropout is beyond rehabilitation.
But the records also could point to early signs of mental handicap. According
to Armstrong, Henderson must prove 3 factors by a “preponderance of the
evidence” in order to be ineligible for the death penalty. He must exhibit
“subaverage intellectual functioning” and deficits in “adaptive behavior,” and
these problems must have manifested themselves before he was 18.
Should he fail to meet these requirements -- or if Armstrong steers away from
that defense -- Walker would find himself at a crossroad reminiscent of the
Lockhart sentencing: weighing a jury vote heavily in favor of life against a
killing that outraged the community.
Lockhart, who claimed he was troubled after serving in Iraq, was found guilty
in the 2008 murder of Auburn University freshman Lauren Burk.
Walker’s decision to override a unanimous jury vote and sentence Lockhart to
death last year has fueled the controversy over Alabama’s unique capital
Critics have said Alabama is the only state in which elected judges routinely
disregard jury recommendations. Florida and Delaware also allow override in
capital cases, but both states require a more stringent standard to justify
intervention from the bench.
When they override, Alabama judges have done so overwhelmingly in favor of
death sentences over life without parole, according to a report published last
year by the Equal Justice Initiative, a Montgomery, Ala., nonprofit that
opposes executions. That report found that 92 % of 107 overrides since 1976
converted life recommendations to death sentences, including three in Russell
Armstrong told the Ledger-Enquirer last year he’d like to see judge override
“completely go away,” calling it “very arbitrary.” Supporters of override,
meanwhile, have said it affords judges discretion in capital murder cases where
juries appear to have been moved by passion and sympathy.
For her part, Henderson’s mother said she doesn’t like the odds in her son’s
case given the victim’s position as a law enforcement officer.
“I don’t look for him to have much hope,” Sheryl Lynn Henderson said by phone
Friday. “The only thing he might have is maybe an appeal if he gets the death
penalty, and I don’t know how that’s going to turn out, either.”
(source: Columbus Ledger-Enquirer)