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John Louis EVANS III





Classification: Murderer
Characteristics: Robberies - Kidnappings
Number of victims: 1
Date of murder: January 5, 1977
Date of arrest: March 7, 1977
Date of birth: January 4, 1950
Victim profile: Edward Nassar (pawn shop owner)
Method of murder: Shooting
Location: Mobile County, Alabama, USA
Status: Executed by electrocution in Alabama on April 22, 1983

John Louis Evans III (January 4, 1950 in Beaumont, Texas - April 22, 1983 in Atmore, Alabama) was the first inmate to be executed by the State of Alabama after the United States reinstituted the death penalty in 1976. The torturous manner of his execution is frequently cited by opponents of capital punishment in the United States.

Conviction and sentencing

After his 1976 parole from an Indiana prison, Evans and fellow convict Wayne Ritter embarked on a two-month long crime spree involving, by Evans's own admission, over thirty armed robberies, nine kidnappings, and two extortion schemes across seven states.

On January 5, 1977 he and Ritter robbed and killed Edward Nassar, a pawn shop owner in Mobile, Alabama while his two young daughters were in the store. The perpetrators fled, but were captured on March 7 by FBI agents in Little Rock, Arkansas. Among the evidence recovered was the gun used to shoot Nassar in the back, and another gun stolen from the pawn shop.

Though he made a detailed confession, prosecutors refused to accept his plea of guilty because under Alabama law capital punishment can only follow a conviction by a jury. Evans was tried in State Circuit Court in Mobile, Alabama on April 26, 1977 for first-degree murder committed during commission of a robbery. During the trial, Evans again admitted his crime and stated that he did not feel remorse and that under the same circumstances he would kill again.

Furthermore, he threatened that if the jury did not sentence him to death, he would escape and murder each of them. Despite his testimony, the jury was instructed to consider all the evidence and to return a verdict of guilty only if the prosecutors had left no reasonable doubt. The jury convicted Evans of the capital offense charged, thus imposing the death penalty, after less than fifteen minutes of deliberation.

Under Alabama law all capital sentences must by affirmed by review in higher court. The sentence of death was confirmed by the Alabama Court of Criminal Appeals and by the Alabama State Supreme Court, which set the date of April 6, 1979 for his execution.

On April 2 Evans's mother Betty, acting as "next friend," petitioned the U.S. District Court for the Southern District of Alabama for a Writ of Habeas Corpus. The application requested the Court to find Evans's conviction to be unconstitutional because consideration of lesser included offenses was not offered the jury. The District Court dismissed her application on the grounds that she was not entitled to act as "next friend."

She appealed to the United States Court of Appeals for the Fifth Circuit, which overturned the District Court's decision and, in fact, judged the initial criminal conviction to be invalid. In 1982 the United States Supreme Court granted the State's petition for a writ of certiorari, reversing the judgment of the Court of Appeals and returning to them the decision on the constitutionality of his sentence.

This finding was made with two of the justices (William J. Brennan and Thurgood Marshall) entering an opinion "concurring in part and dissenting in part," because they accepted the argument of the State of Alabama on the matter in question, but held that capital punishment itself was "cruel and unusual punishment" prohibited by the 8th and 14th amendments to the Constitution of the United States.

In July of that year Evans fired his lawyers and filed a motion to dismiss all further appeals. The Court of Appeals accepted his motion on October 19, 1982. A subsequent application for a new sentencing hearing was rejected by the State Supreme Court on February 18, 1983 and execution was carried out at Holman Prison, near Atmore, Alabama on April 22.


The execution is notable for its imprecision. The means of carrying out the sentence of death used at Holman Prison was an electric chair constructed by an inmate in 1927. The chair was nicknamed "Yellow Mama" because of its traffic-yellow coat of paint. It had not been used since 1965, after which a series of Supreme Court decisions created an effective moratorium on executions in the U.S. until the constitutionality of the death penalty was affirmed by the Court in Gregg v. Georgia 1976.

The following description of Evans' electrocution was sworn by Russell F. Canan on June 22, 1983:

"At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans's body. It lasted thirty seconds. Sparks and flames erupted from the electrode tied to Mr. Evans's left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of greyish smoke and sparks poured out from under the hood that covered Mr. Evans's face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.

"The electrode on the left leg was refastened. At 8:30 p.m. [ sic ] Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. The doctors reported that his heart was still beating, and that he was still alive.

"At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request for clemency was denied.

"At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans's body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes."

Shortly before his execution, Evans's was featured in an After School Special called "Dead Wrong" in which he shared his life story with young people and pleaded for them not to make the mistakes he did that led to the electric chair. Evans's accomplice, Wayne Ritter, was executed on August 28, 1987.


  • United States Supreme Court. EVANS v. BENNETT , 440 U.S. 1301 (1979)

  • United States Supreme Court. EVANS v. ALABAMA , 461 U.S. 1301 (1983)

  • Dead Wrong: John Louis Evans Story at the Internet Movie Database (1984)

  • Friendly, Fred W. and Martha J. H. Elliot (1984). The Constitution: That Delicate Balance. New York: Random House. ISBN 0075546124.

  • Harold Jackson. (March 30, 2000) "Time for N. J. to rethink death penalty." Philadelphia Inquirer.


Execution of John Evans

On April 22, 1983 in Alabama, John Evans was executed by electrocution. After the first jolt of electricity, sparks and flames erupted from the electrode attached to Evans's leg. The electrode burst from the strap holding it in place and caught on fire. Smoke and sparks also came out from under the hood in the vicinity of Evans's left temple. Two physicians entered the chamber and found a heartbeat. The electrode was reattached to his leg, and another jolt of electricity was applied. This resulted in more smoke and burning flesh. Again the doctors found a heartbeat. Ignoring the pleas of Evans's lawyer, a third jolt of electricity was applied. The execution took 14 minutes and left Evans's body charred and smoldering.**

    ** For a description of the execution by Evans' defense attorney, see Russell F. Canan, Burning at the Wire: The Execution of John Evans, in FACING THE DEATH PENALTY: ESSAYS ON A CRUEL AND UNUSUAL PUNISHMENT 60 (Michael L. Radelet ed. 1989); see also Glass v. Louisiana, 471 U.S. 1080, 1091-92 (1985).
    Source - Post-Furman Botched Executions by Michael L. Radelet, University of Colorado


U.S. Supreme Court

440 U.S. 1301

Betty EVANS, Individually and as next friend acting on behalf of John Louis Evans, III, Applicant,
Larry BENNETT, Commissioner, Alabama Correctional System, and Joseph Oliver, Warden, Holman Unit.

No. A-868.

April 5, 1979.

Mr. Justice REHNQUIST, Circuit Justice.

This application for stay has come to me by reason of the unavailability of Mr. Justice POWELL. Applicant is the mother of John Louis Evans; her son was tried and convicted of robbery-murder and was sentenced to death pursuant to Alabama law by an Alabama trial court in April 1977. Evans did not contest his guilt at trial. Instead, he took the stand, confessed to the crime, and requested the jury to find him guilty so that he could receive the death penalty. His conviction and sentence were appealed (according to the application, against his will) under the Alabama automatic appeal statute, and the judgment and sentence were affirmed by the Alabama Court of Criminal Appeals and the Supreme Court of Alabama. Evans v. State, 361 So.2d 654 (Ala.Crim.App.1977); Evans v. State, 361 So.2d 666 (Ala.1978). With his approval, a petition for writ of certiorari seeking review of the sentence imposed upon him was filed in this Court in November 1978. On February 3, 1979, Evans' counsel, at Evans's insistence, filed a formal request for withdrawal of his petition for writ of certiorari, but both the petition for withdrawal and the petition for writ of certiorari were denied by this Court on February 21, 1979. Evans v. Alabama, 440 U.S. 930 . Following that action by this Court, the Supreme Court of Alabama set an execution date of April 6, 1979.

According to the application for stay, John Louis Evans has refused to undertake any further appeals on his behalf and has repeatedly expressed his desire to die. On April 2, 1979-nearly six weeks after this Court had denied the petition for certiorari, and only four days before the execution date set by the Supreme Court of Alabama-applicant, the mother of the condemned killer, filed a petition for a writ of habeas corpus in the United States District Court in the Southern District of Alabama. That court heard oral argument on April 3, and following that argument dismissed the petition on the grounds that "the reason forwarded by petitioner for the inmate's failure to verify the petition, i. e., incompetency is not supported by credible evidence, that Betty Evans is not entitled to next friend status by reason thereof, that accordingly, this Court has no jurisdiction over the action and the action must therefore be DISMISSED and the stay DENIED."

A timely notice of appeal was filed and the District Court issued a certificate of probable cause. On April 4, the applicant moved for a stay of execution in the Court of Appeals for the Fifth Circuit. That court likewise denied the application for a stay, reciting in its order:

"A majority of the Court concludes that a factual issue justifying standing in a next friend has not been made.

"Judge Hill would grant the stay in order to ascertain whether or not a mental deficiency short of incompetency would authorize proceedings by a next friend." If I were casting my vote on this application for a stay as a Member of the full Court, I would vote to deny the stay. Evans has been found guilty of an atrocious crime, sentenced to be put to death in accordance with Alabama law, and has had his conviction and sentence reviewed both by the Alabama Court of Criminal Appeals and by the Supreme Court of Alabama. His petition for certiorari to review the judgments of those courts affirming his conviction and sentence was denied by this Court. A Federal District Court has denied a stay and dismissed the petition for habeas corpus filed by Evans' mother on his behalf, and a panel of the Court of Appeals for the Fifth Circuit also has denied a stay. There must come a time, even when so irreversible a penalty as that of death has been imposed upon a particular defendant, when the legal issues in the case have been sufficiently litigated and relitigated that the law must be allowed to run its course. If the holdings of our Court in Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976), and Woodson v. North Carolina, 428 U.S. 280 (1976), are to be anything but dead letters, capital punishment when imposed pursuant to the standards laid down in those cases is constitutional; and when the standards expounded in those cases and in subsequent decisions of this Court bearing on those procedures have been complied with, the State is entitled to carry out the death sentence. Indeed, just as the rule of law entitles a criminal defendant to be surrounded with all the protections which do surround him under our system prior to conviction and during trial and appellate review, the other side of that coin is that when the State has taken all the steps required by that rule of law, its will, as represented by the legislature which authorized the imposition of the death sentence, and the state courts which imposed it and upheld it, should be carried out.

There is not the slightest doubt in my mind that the United States District Court made every effort to resolve doubts as to legal issues in favor of granting a stay, but was nonetheless unable to find legal authority for granting the stay. My conclusion in this regard is supported by the following language from the opinion of that court:

"Having concluded that next friend applications are permissible in habeas corpus cases, it remains for the Court to determine whether this is such a case that a next friend petition ought to be allowed. Both Funaro [United States ex rel. Funaro v. Watchorn, 164 F.152 (CA2 1908)] and Preiser [United States ex rel. Sero v. Preiser, 506 F.2d 1115 (CA2 1974)] limited the use of such applications to incidents of infancy, incompetency, or lack of time, and the Court is unpersuaded that any other grounds are permissible. In the instant case the inmate is over the age of majority and adequate time exists for him to verify his own petition, so the petitioner must fail unless the inmate is incompetent.

"The only evidence presented to the Court in support of John Evans' incompetency is a sworn affidavit of a staff psychiatrist at the Mobile Mental Health Center. The psychiatrist, who has not personally interviewed or otherwise examined John Evans, concludes from conversations with other individuals that John Evans is 'not able to deal rationally with his situation and . . . probably need[ s] someone else to make legal decisions affecting his life for him.' The affidavit further reveals that the doctor tried to arrange an interview between John Evans, himself, and a psychologist, but Evans refused to be evaluated. The evidence in rebuttal to the allegation of incompetency is quite strong. John Evans was evaluated prior to his murder trial and was determined fit to stand trial, and there is no indication of any intervening physical or mental disability arising between the time of trial and the filing of the petition in the instant case. Clearly one who is competent to stand trial is competent to make decisions as to the course of his future. At no time prior to the filing of this petition, as far as the Court can ascertain, has John Evans' competency been questioned. The fact that Evans has elected not to pursue postconviction remedies that would serve to forestall the impending execution is not controlling, since it may well be, as the media has advertised, that John Evans has confronted his option of life imprisonment or death by execution and has elected to place his debts on a new existence in some world beyond this. The Court finds no evidence of irrationality in this; indeed, in view of the allegations in the case of Jacobs v. Locke, the death row conditions of confinement case presently pending in this Court, it may well be that John Evans has made the more rational choice. In any event, this Court is not persuaded that John Evans is incompetent merely from a professional opinion rendered on hearsay information. 1  

    "1 Evan's attorney stated during the hearing that he had observed no change in Evan's mental condition in the past two years, but of course this counsel is without any training in psychiatry."

The application for stay cites a number of decisions relating to mental competency, none of which seem to me to bear directly on the issue in this case. The application states (p. 7):

"The criticism of the trial judge that the affidavit is based on hearsay is due solely to the fact that John Louis Evans refused to see the psychiatrist. Clearly Evans should not be allowed to control his mother's standing to raise issues on his behalf."

To my mind, this argument stands the question on its head: It is not Betty Evans, the applicant, who has been sentenced to death, but her son, and the fact that her son refuses to see a psychiatrist and has expressed a preference for electrocution rather than serving the remainder of his life in a penitentiary cannot confer standing upon her as "next friend" which she would not have under recognized legal principles. Nonetheless, since this matter is not before the full Court, but simply before me as a Circuit Justice, I must act as surrogate for the full Court. The most closely analogous case to come before us in this posture is that of Gilmore v. Utah, 429 U.S. 1012 d 632 (1976). There, a majority of the Court denied an application for a stay of execution over the dissents of Mr. Justice WHITE, joined by Mr. Justice BRENNAN and Mr. Justice MARSHALL, id., at 1017, 97 S.Ct. at 439, and of Mr. Justice MARSHALL, id., at 1019, 97 S.Ct. at 440, and Mr. Justice BLACKMUN, id., at 1020, 97 S.Ct. at 441. As I understand the dissent of Mr. Justice WHITE, its linchpin was the absence of any consideration or decision as to the constitutionality of the Utah statute providing for the imposition of the death penalty by the Utah courts. Mr. Justice MARSHALL's dissent, as I read it, was based upon what he regarded as the inadequacy of the procedures provided by the State to determine the competency of the waiver by Gilmore of his right to appeal from the sentence imposed by the Utah trial court. Mr. Justice BLACKMUN's dissent expressed the view that the question of the standing of Gilmore's mother to raise constitutional claims on behalf of her son was not insubstantial, and should receive a plenary hearing from this Court.

Were this a case involving an issue other than the death penalty, I think I would be justified in concluding that because the Alabama Court of Criminal Appeals and the Alabama Supreme Court have fully reviewed Evans' conviction and sentence, the same considerations which led four Members of this Court to disagree with our denial of a stay of execution in Gilmore's case would not necessarily lead all of them to do so here. But because of the obviously irreversible nature of the death penalty, and because of my obligation as Circuit Justice to act as surrogate for the Court, I do not feel justified in denying the stay on that assumption.

I have therefore decided to grant a stay of the execution ordered by the Supreme Court of Alabama to be carried out at 12:01 a. m. on April 6, 1979, pending further consideration by me, or by the full Court at its Conference scheduled for Friday, April 13 in the event that I should refer the application to that Conference, of the following submissions:

(a) a response by respondent Larry Bennett, Commissioner of the Alabama Correctional System, to this application for stay;

(b) a detailed explanation by counsel for applicant as to why, in a matter of this importance, she waited from February 21, 1979, the date upon which this Court denied John Louis Evans' petition for certiorari seeking to review the judgment of the Supreme Court of Alabama, until April 2, 1979, to file a petition for a writ of habeas corpus in the United States District Court for the Southern District of Alabama. There may be very good reasons for the delay, but there is also undoubtedly what Mr. Justice Holmes referred to in another context as a "hydraulic pressure" which is brought to bear upon any judge or group of judges and inclines them to grant last-minute stays in matters of this sort just because no mortal can be totally satisfied that within the extremely short period of time allowed by such a late filing he has fully grasped the contentions of the parties and correctly resolved them. To use the technique of a last- minute filing as a sort of insurance to get at least a temporary stay when an adequate application might have been presented earlier, is, in my opinion, a tactic unworthy of our profession. Such an explanation is not a condition of the granting of this or any further stay, but the absence of it will be taken into consideration by me.

The parties are required to file the foregoing submissions by 12 noon, e. s. t., on Tuesday, April 10, 1979. Unless otherwise ordered by me or by the Court, this stay shall expire at 5 p. m., e. s. t., on Friday, April 13, 1979.

The application for a stay is granted on the terms and conditions set forth in this opinion, and an order will issue accordingly.


628 F.2d 400

John Louis Evans, III, Petitioner-Appellant,
Robert G. Britton, Commissioner, Alabama Board of Corrections, and Joseph Oliver, Warden, Holman Prison, Respondents-Appellees.

No. 79-3674

Federal Circuits, 5th Cir.

October 15, 1980

Appeal from the United States District Court for the Southern District of Alabama.

Before VANCE and SAM D. JOHNSON, Circuit Judges, and THOMAS,[fn*] District Judge.


John Louis Evans, III, was convicted of capital murder by a jury and was sentenced to death in an Alabama state court. In his 28 U.S.C. § 2254 petition for habeas corpus relief, denied by the district court, 472 F.Supp. 707, he alleges that because the Alabama death penalty statute, Code of Ala. § 13-11-2 (1975), deprived him of due process of law and equal protection and constituted cruel and unusual punishment in violation of the United States Constitution, his conviction must be reversed. The Alabama statute precludes the jury from considering lesser included offenses in capital cases; thus it gives the jury the option of convicting a defendant of the capital offense or of acquitting him.

In Beck v. Alabama, ___ U.S. ___, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the United States Supreme Court was presented with a challenge to the Alabama death penalty statute and held that a death sentence could not constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict. The state argues that Beck does not control this case. In Beck, the state conceded that Beck's testimony would have entitled him to an instruction on a lesser included offense, absent the statutory prohibition. The state says that there was no evidence adduced by Evans which would require instruction on a lesser offense even if such instruction were not prohibited. It urges that we certify to the Alabama Supreme Court whether the constitutionally offensive portions of the Alabama Capital Punishment Statute may be severed from the remainder of the Statute. It reasons that Evans' conviction should be allowed to stand with the preclusion clause severed from the Statute.

We cannot reconcile this position with the Supreme Court's language in Beck:

In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the fact-finding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason - its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason - that, whatever his crime, the defendant does not deserve death. In any particular case these two extraneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.

___ U.S. at ___, 100 S.Ct. at 2392 (emphasis added).

Obviously we cannot conclude that Evans' trial under an unconstitutional statute was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The peculiar nature of the offensive statute would infect virtually every aspect of any capital defendant's trial from beginning to end. Each and every decision concerning trial strategy, the selection of evidence to use and its presentation, the argument of counsel, objections, requests for charges, all were inevitably influenced by the brooding omnipresence of the unconstitutional edict - Evans must either be sentenced by the jury to die or he must be set free.

The state says that harm to Evans is sheer speculation because he did not even undertake to prove a lesser offense. It seems to us, however, that it offends the most fundamental notions of fairness for the state first to tell Evans that there is no lesser offense and then later urge that his death sentence should be upheld because he failed to present evidence which would prove a lesser included offense.

We will not speculate as to whether if tried under a constitutional statute Evans will adopt some different strategy or whether he can present evidence of some less serious offense. We also will not speculate as to whether the Supreme Court of Alabama can judicially tailor the state statute to pass constitutional muster. We decline to certify his case to the state court because, as to Evans, certification would be nothing more than an empty academic exercise. The infirmity in his trial cannot be excised retroactively. Evans may not be executed until and unless he be tried, convicted and sentenced in a manner that at least meets minimum constitutional standards. His trial, conviction and sentence now before us was under a statute which the Supreme Court says introduces in every case a level of uncertainty and unreliability that cannot be tolerated.

The judgment of the district court denying relief under 28 U.S.C. § 2254 must be reversed.



DANIEL HOLCOMBE THOMAS, District Judge, dissenting:

This writer respectfully dissents. I would certify to the Alabama Supreme Court the question of whether the preclusion clause of the Alabama Capital Punishment Statute may be severed from the remainder of the Statute.

The State of Alabama has filed a motion requesting that the certification be granted. I think that the question of severability is a question of Alabama law and that certification to the Alabama Supreme Court should be granted.

I dissent.


[fn*] United States District Judge for the Southern District of Alabama, sitting by designation.


639 F.2d 221

John Louis Evans, III, Petitioner-Appellant,
Robert G. Britton, Commissioner, Alabama Board of Corrections, and Joseph Oliver, Warden, Holman Prison, Respondents-Appellees.

No. 79-2674

Federal Circuits, 5th Cir.

March 9, 1981

Appeal from the United States District Court for the Southern District of Alabama.

On Petition for Rehearing

[Opinion Oct. 15, 1980, 628 F.2d 400 (5th Cir. 1980)]

Before VANCE and SAM D. JOHNSON, Circuit Judges and THOMAS,[fn*] District Judge.


In its petition for rehearing, the state raises two points which merit further comment.

The state first argues that the panel ignored the effect of Evans' guilty plea. The state maintains that, under Alabama law, the guilty plea was effective, and forecloses on any doubt regarding the fairness of Evans' trial. The initial difficulty with the state's position is that Evans' guilty plea was not accepted by the trial court. The Alabama Supreme Court reached this specific point in dealing with Evans' codefendant Ritter. Evans and Ritter both entered identical pleas, Evans v. State, 361 So.2d 654, 655-56 (Ala.Crim.App. 1977). On appeal, the Alabama Supreme Court adopted the statement of facts of the Court of Criminal Appeals, affirmed as to Evans, but remanded to the Court of Criminal Appeals as to Ritter, Evans v. State, 361 So.2d 666 (Ala. 1978), cert. denied, 440 U.S. 930 , 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979). On remand the Court of Criminal Appeals reinstated the conviction, Ritter v. State, 375 So.2d 266 (Ala.Crim.App. 1978). In affirming, the Supreme Court described the events as follows:

Nevertheless, against the advice of his attorney, Ritter entered a guilty plea to the robbery and intentional killing of Nassar. (He also pled guilty to the robbery of a Radio Shack in Mobile.) The trial judge, however, did not accept the guilty plea but instead set the matter for presentation to a jury.

Ex parte Ritter, 375 So.2d 270, 276 (Ala. 1979), vacated ___ U.S. ___, 100 S.Ct. 3044, 65 L.Ed.2d 1133 (1980) (emphasis added). Since Ritter's plea was identical to Evans', it is clear that, under Alabama law as interpreted by the Alabama Supreme Court, Evans' plea of guilty was not accepted.[fn1]

The instruction which the trial judge gave to the jury makes it clear that the rejected guilty plea was not determinative.

I can only tell you that in reaching your verdict, you may not take the simple approach and say, if the Defendant admits he did it, we go no further. You must reach a verdict that is supported by all of the creditable evidence that has been presented to you in this case. . . . A Defendant in Alabama is presumed to be innocent, and this presumption of innocence attends him as a matter of evidence until the State has, by the evidence, proved him guilty beyond all reasonable doubt. That is the burden that is on the State of Alabama. They must prove the Defendant guilty beyond all reasonable doubt. . . . Until and unless the State proves the Defendant guilty beyond a reasonable doubt, you cannot convict him.

The state took no exception to these instructions at trial. It therefore cannot now be heard to argue that "a valid guilty plea conclusively establishes all elements of the offense charged and removes any issue of factual guilt."[fn2] We also observe that the Alabama courts themselves considered the merits of Evans' contention that the death penalty statute was unconstitutional. Contrary to the state's position, the Alabama courts were no more willing than we to regard the rejected guilty plea as disposing of the constitutional issue. Evans v. State, 361 So.2d at 662; Evans v. State, 361 So.2d at 667.

Finally, even if all of the state's contentions were allowed, it would not have the legal result for which it argues. A guilty plea waives constitutional challenges to proceedings before the plea is entered, not to events afterwards. "The Brady trilogy announced the general rule that a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pretrial proceedings." Lefkowitz v. Newsome, 420 U.S. 283, 288, 95 S.Ct. 886, 889, 43 L.Ed.2d 196 (1975).

We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973).

The rule in this circuit is the same, as is that of Alabama.

This Court has consistently held that a guilty plea voluntarily and understandingly made waives all non-jurisdictional defects in the prior proceedings against the accused.

United States v. Boniface, 631 F.2d 1228, 1229 (5th Cir. 1980); accord, Stanley v. Wainwright, 604 F.2d 379, 380 n. 1 (5th Cir. 1979), cert. denied, 447 U.S. 925 , 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980).

A guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a person admits in Open Court that he is in fact guilty of the crime or crimes with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

Harris v. State, 367 So.2d 524, 533 (Ala. Crim.App. 1978), cert. denied, 367 So.2d 534 (Ala. 1979).

Thus, even if Evans' guilty plea had been accepted, it would have waived his right to challenge only defects in prior proceedings. It would also have waived his right to trial. However, a guilty plea has never been held to waive future defects if the case is nevertheless tried.

The state's second point is that, in view of what it contends is the overwhelming evidence of Evans' guilt, no defects in the statute or the trial procedure, no matter how grave, could possibly have prejudiced him. However persuasive this argument might otherwise be, it has been foreclosed by the Supreme Court. In analyzing the Alabama statute in question, the Court stated as follows:

But in every case they [the defects in the statute] introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case.

Beck v. Alabama, 447 U.S. 625, 643, 100 S.Ct. 2382, 2392, 65 L.Ed.2d 392 (1980). "Every case" means even cases in which the defendant tried to plead guilty. The Court has established that there are "constitutional error[s] of the first magnitude and no amount of showing of want of prejudice would cure [them]." Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). Unless the Supreme Court changes its language in Beck, we must conclude that the defects in the Alabama death statute fall into this category.

We extend our opinion. In all other respects the petition for rehearing is denied.

District Judge THOMAS continues to dissent for the reasons previously stated in the panel opinion.


[fn*] District Judge of the Southern District of Alabama, sitting by designation.

[fn1] Evans' and Ritter's pleas were not accepted because of language in the Alabama Death Penalty and Life Imprisonment Without Parole Act, Ala.Code tit. 13, §§ 11-1 et seq. Section 13-11-2(a) allows a death penalty to be imposed "[i]f a jury finds the defendant guilty . . . ." This language was interpreted in Prothro v. State, 370 So.2d 740 (Ala.Crim.App. 1979), to require a jury trial even if the defendant sought to plead guilty. Note the specific reference to the Evans and Ritter trial:

The Act, ex vi termini, and the Alabama Legislature, ex proprio vigore, have set forth not only the only crimes for which one may be punished by death or by life imprisonment without parole, but also the only method by which either punishment may be lawfully imposed. Neither the death sentence nor a sentence to life imprisonment without parole is permissible, whether by agreement of all concerned or not, in the absence of a verdict of a jury finding the defendant guilty and fixing his punishment at death.

We must come to the conclusion that in Alabama the constitutional and statutory law does not permit the trial court, without a jury, to try or fix the punishment in a capital case. . . . In Alabama, under the Death Penalty and Life Imprisonment Without Parole Act, he cannot waive a jury trial, even with the consent of the prosecution and the consent of the trial court; he cannot by such a maneuver avoid the legal necessity for a jury to try the facts, find defendant guilty or not guilty, and if found guilty to fix his punishment at death. Such was the procedure in the Evans and Ritter v. State, supra, in which defendants pleaded guilty and requested the death penalty.

Id. at 746 (emphasis in original).

[fn2] Under Alabama law, it would not be possible to accept a guilty plea and then hold a full trial. "The rule of law is that a plea of guilty when accepted and entered by the court is a conviction . . . ." Ex parte Sankey, 364 So.2d 362, 363 (Ala. 1978), cert. denied, 440 U.S. 964 , 99 S.Ct. 1513, 59 L.Ed.2d 779 (1979) (emphasis added). Indeed, it is doubtful as a constitutional matter whether a guilty plea could ever be held to establish actual guilt, but still to require a full trial. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) a defendant whose guilty plea had been accepted sought to argue the converse position, that his plea had waived trial but had not admitted factual guilt. The Supreme Court rejected this attempt to split the dual function of the guilty plea.


U.S. Supreme Court

461 U.S. 1301

John Louis EVANS, III

No. 82-6581 (A-848).

April 21, 1983.

Justice POWELL, Circuit Justice.

This is an application for a stay of execution set for April 22, 1983, pending the disposition of a petition for certiorari to the Alabama Supreme Court. The petition for certiorari was filed on April 19, 1983. This application was filed later the same day, following the Alabama Supreme Court's denial of applicant's motion for a stay of execution. On April 20 the State filed a response in opposition to the application for a stay, and applicant filed a reply to the State's opposition.

Applicant was tried and convicted on April 26, 1977, in the Mobile County, Ala., Circuit Court of first-degree murder committed during the commission of a robbery. The trial court sentenced him to death. Applicant's conviction and sentence were affirmed by the Alabama Court of Criminal Appeals, 361 So.2d 654 (1977), and the Alabama Supreme Court, 361 So.2d 666 (per curiam ), rehearing denied, 361 So.2d 672 (1978) (per curiam ). This Court denied a petition for certiorari. 440 U.S. 930 (1979).

In April 1979 applicant filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Alabama, challenging the constitutionality of both the conviction and the death sentence. The District Court rejected all of his contentions and denied the petition. Evans v. Birtton, 472 F.Supp. 707 (1979). The Court of Appeals for the Fifth Circuit reversed, finding that applicant's conviction was invalid. Evans v. Britton, 628 F.2d 400 ( 5 Cir., 1980) (per curiam ), modified on rehearing, 639 F.2d 221 (5 Cir., 1981) (per curiam ). This Court granted the State's petition for a writ of certiorari and, after briefing and argument, reversed the judgment of the Court of Appeals. Hopper v. Evans, 456 U.S. 605 , 72 L. Ed.2d 367 (1982).

This Court's judgment reinstated applicant's conviction, but his challenges to Alabama's capital-sentencing procedures remained to be decided by the Court of Appeals on remand. In July 1982, however, applicant dismissed his attorneys and filed a motion with the Court of Appeals seeking to dismiss his appeal. The court dismissed the appeal on October 19, 1982.

On October 22, 1982, the State of Alabama sought an order from the Alabama Supreme Court setting an execution date. Applicant then filed a motion requesting a new sentencing hearing. On February 18, 1983, the Supreme Court of Alabama denied this motion, and on April 8, 1983, the court ordered that applicant's execution be set for April 22, 1983.

Applicant's constitutional challenges to Alabama's capital-sentencing procedures have been reviewed exhaustively and repetitively by several courts in both the state and federal systems. I have reviewed the record and conclude that there is not "a reasonable probability that four members of the Court would find that this case merits review." White v. Florida, 458 U.S. ___ (1982) (POWELL, J., in chambers). All of the papers relevant to applicant's request for a stay of execution also have been circulated to the entire Court. With the concurrence of six other Members of the Court, I deny the application for a stay.

Justice BRENNAN and Justice MARSHALL have indicated that they would vote to grant the stay.


461 U.S. 230

103 S.Ct. 1736

75 L.Ed.2d 806

John Louis EVANS, III.

No. A-858.

April 22, 1983.


This matter was presented to Justice POWELL on the morning of April 22, 1983, on an application for an order vacating a stay of execution, and by him referred to the Court. It is helpful to review briefly the sequence of events that preceded this application.

On April 8, 1983, the Alabama Supreme Court ordered that respondent John Louis Evans, III, be executed on April 22, 1983, at 12:01 a.m., Central Standard Time. On April 20, 1983, respondent filed a petition here for a writ of certiorari to the Alabama Supreme Court and an application for stay of execution addressed to Justice POWELL as Circuit Justice. At approximately 5:45 p.m., Eastern Standard Time, on April 21, 1983, Justice POWELL, acting in his capacity as Circuit Justice, and with the concurrence of six other Members of the Court, denied respondent's application for a stay of execution pending disposition of his writ of certiorari to the Alabama Supreme Court. (See Order of April 21, 1983 (POWELL, J., in Chambers) --- U.S. ----, 103 S.Ct. ----, --- L.Ed.2d ----)

At 5:23 p.m., CST, on April 21, respondent filed a petition for a writ of habeas corpus in the District Court for the Southern District of Alabama. At approximately 9:30 p.m., CST, the District Court, stating that "the time available does not permit this Court to make a meaningful review or study," temporarily stayed the execution. The State sought an order from the Court of Appeals for the Eleventh Circuit vacating the stay. At 12:25 a.m., EST, the court denied the motion, stating that "[b]ased upon the telephonic oral presentation by both parties to the Court we are unable to conclude that the District Judge has abused his discretion in granting the temporary stay. . . ." Pursuant to Alabama law, the warrant to carry out the execution expires at 11:59 p.m., CST, on April 22, 1983.

The State seeks an order vacating the District Court's temporary stay. Respondent has filed a response in opposition to the State's application.

Justice POWELL'S order of April 21, 1983, denying respondent's application for a stay of execution, described the lengthy proceedings that have followed respondent's conviction and death sentence for first-degree murder committed during the course of a robbery in 1977. Respondent has exhausted his review by way of direct appeal and by way of the petition for a writ of habeas corpus filed in April 1979. He also has had his claims heard a second time by the Alabama Supreme Court acting on a petition for a new sentencing hearing. In sum, respondent's "constitutional challenges to Alabama's capital-sentencing procedures have been reviewed exhaustively and repetitively by several courts in both the state and federal systems." Order of April 21, 1983, at 2 (POWELL, J., in Chambers).

Following a brief hearing on the evening of April 21, 1983, the District Court found that "counsel for petitioner conceded that all issues raised in the petition were raised in the petition previously filed before [the United States District Court] except for the issue asserted in section 12 of the petition." Thus, in the latest petition for habeas corpus filed in this case, all but one of the grounds presented have been presented before and rejected.

The one new issue now raised by respondent is a claim that the Alabama courts applied a statutory aggravating factor in an unconstitutionally broad manner. The trial court found that on numerous prior occasions respondent "knowingly created a great risk of death to many persons. By Mr. Evans' testimony, he was involved in thirty armed robberies and nine kidnappings with [co-defendant] Mr. Ritter, and further claims to have been involved in approximately 250 armed robberies prior to associating with Mr. Ritter." 361 So.2d 654, 663 (Ala.Cr.App.1977). Respondent contends that by construing this statutory aggravating factor to encompass acts not involving the offense for which he was found guilty, the trial court construed the statute in an unconstitutionally broad manner.

Respondent does not appear to have raised this challenge at any time in any of the many prior state and federal proceedings in his case. Nor was the existence of this claim made known to this Court in any of the papers filed by respondent before Justice POWELL'S denial of respondent's application for a stay of execution. The claim thus was raised for the first time in respondent's second petition for a writ of habeas corpus, filed approximately seven hours before his scheduled execution. His only justification for raising this issue now is that, in his view, the decision in Proffitt v. Wainwright, 685 F.2d 1227, 1265-1266 (CA11), decided in September 1982, some seven months ago, has changed the applicable law. Proffitt, however, does not address the question whether this particular aggravating factor may be applied to acts unrelated to the capital offense itself. The decision in that case only applies the principle established in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), that aggravating factors must be construed and applied in a nonarbitrary manner. On the facts of respondent's case, there was no violation of the Godfrey principle in finding this particular aggravating circumstance. Nor is there any question that application of this aggravating factor was proper under the Alabama statute as construed by the Alabama courts. After carefully reviewing the record, the Alabama Court of Criminal Appeals, in sustaining respondent's death sentence, stated: "The aggravating circumstances were here averred and proved at trial, and also determined by the trial judge in a public hearing, as required by law. In addition, this Court has weighed the aggravating and mitigating circumstances independently." 361 So.2d, at 662.

Respondent's petition for a writ of habeas corpus filed on April 21, 1983, thus seeks to litigate several issues conclusively resolved in prior proceedings and a claim never before raised. This new claim, challenging the validity of one of the aggravating circumstances found to exist in this case, is a question of law as to which no further hearing is required. For the reasons stated above, we conclude that the claim is without merit.* Accordingly, the application of the State of Alabama to dissolve and vacate the stay ordered by the United States District Court is granted.


Justice BRENNAN would deny the application.

Chief Justice BURGER, concurring:

I agree with the Court's action vacating the temporary stay entered by Judge Emmett Cox, U.S. District Court, Mobile, Alabama. This matter had never been before Judge Cox prior to April 21 and had been referred to him due to the absence of Judge William B. Hand who had previously acted on the case and who was out of the state on judicial business. Far from being a matter in which there is hasty judicial action, this case has been heard and reviewed over the past six years, by not less than 14 state appellate judges and 13 federal judges, and this Court has previously acted on this case, see Hopper v. Evans, --- U.S. ----, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).

This case falls within a familiar* pattern of literal "eleventh hour" efforts to frustrate judicial decrees after careful and painstaking judicial consideration over a period of years. For more than six months prior to April 21 the courts were open to consider the petition presented to Judge Cox at or about 5:30 p.m. Thursday, April 21, but counsel failed to present any application for relief during that period. At that late hour a petition that could have been presented long before was thrust upon a judge who had no previous contact with the case.

This Court is fully familiar with the records in the state and federal courts on Evans' case; the claim now presented is wholly without merit and the Court appropriately vacates the stay of execution granted yesterday.


Justice MARSHALL, dissenting.

It has long been recognized that this Court's power to dissolve a stay "should be exercised with the greatest of caution and should be reserved for exceptional circumstances." Holzman v. Schlesinger, 414 U.S. 1304, 1308, 94 S.Ct. 1, 4, 38 L.Ed.2d 18 (MARSHALL, J., in chambers). Exercise of this power is proper only where the record demonstrates that the grant of a stay was clearly an abuse of discretion. Brown v. Chote, 411 U.S. 452, 457, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973).

On the basis of the papers before us, I am frankly at a loss to comprehend how the majority can conclude, in the brief time we have had to consider the matter, that the District Court abused its discretion in granting the stay and that the Court of Appeals erred in declining to vacate the stay. In his petition for a writ of habeas corpus, Evans claimed that the Alabama Supreme Court has never determined whether his sentence is proportional to his crime in light of the sentences received by other defendants in Alabama, and that the sentencing judge gave an unconstitutionally broad construction to one of the aggravating circumstances on which the sentence was based. Although the first claim was previously considered by a federal district court, the relevant law has changed since that earlier decision, see Pulley v. Harris, 692 F.2d 1189 (CA9), cert. granted, --- U.S. ----, 103 S.Ct. 1425, 74 L.Ed.2d ---- (1983), and the decisions of this Court firmly establish that a state prisoner may relitigate a constitutional claim "upon showing an intervening change in the law." Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). The second claim has never been considered by any federal court and finds support in the decision of the Court of Appeals for the Eleventh Circuit in Proffitt v. Wainwright, 685 F.2d 1227, 1265-1266 (1982).

The District Court concluded that "the time available" did not "permit . . . [the] meaningful review or study" that would be necessary to decide Evans' claims on the merits. Order at 4. Under these circumstances, it was completely proper for the court to grant a stay of execution to afford an opportunity to decide whether Evans' death sentence is indeed unconstitutional.* As Justice Harlan once stated, when a prisoner under a sentence of death presents a constitutional claim, a court should grant a stay even if it has "grave doubt . . . as to whether [the prisoner] . . . presents any substantial constitutional question." Edwards v. New York, 76 S.Ct. 538 (1956) (in chambers).

This Court's action today is particularly indefensible in view of the fact that Evans has never had an opportunity to respond to the supplementary papers that the State has filed in support of its application to vacate the stay. The State has done nothing to serve those papers, which were filed today, other than placing a copy in the mail. The papers obviously will not be received by Evans' counsel until after it is too late.

"It is . . . important that before we allow human lives to be snuffed out we be sure—emphatically sure—that we act within the law." Rosenberg v. United States, 346 U.S. 273, 321, 73 S.Ct. 1152, 1177, 97 L.Ed. 1607 (1953) (Douglas, J., dissenting). The execution of Evans prior to a decision of his claims on the merits will ensure that such certainty is never achieved.

I dissent. The world will not come to an end if the execution is stayed at least until Monday, to permit the District Court to hold a hearing.



In a case of this kind, a District Court normally should find and state substantive grounds for granting a stay of execution. In the circumstances of this case, however, we understand the difficult situation in which the District Court found itself. Judge Cox was not the judge who had reviewed this case on the previous habeas corpus petition. Apparently without notice, this second habeas corpus petition and application for a stay of execution, filed by the same counsel who had filed the previous application for a stay in this Court, was not filed until about seven hours prior to the scheduled execution time. No explanation has been offered by counsel for the timing of these applications.


See Brooks v. Estelle, --- U.S. ----, 103 S.Ct. 1490, 74 L.Ed.2d ---- (1982) and Mitchell v. Lawrence (Coppola), --- U.S. ----, 103 S.Ct. 21, 73 L.Ed.2d 1394 (1982).


The issue before us is not affected by the fact that on April 21, 1983, Justice Powell, acting as Circuit Justice, denied an application for a stay of execution pending filing of a petition for certiorari to the Supreme Court of Alabama. Evans v. Alabama, --- U.S. ----, 103 S.Ct. ----, 74 L.Ed.2d ---- No. 82-6581 (A-848). The standard governing an application for a stay pending the filing of a petition for certiorari is entirely different from the standard governing an application to vacate a stay granted by a lower court. A stay pending the filing of a petition for certiorari will be granted only where there is "a reasonable probability that four members of the Court would find that [the] case merits review." Id., at ----, 103 S.Ct. at ----. In denying the application for a stay, Justice Powell concluded that there was no such probability.

That determination has no bearing on the merits of the claims that respondent has presented to the District Court. Since the denial of certiorari "imports no expression of opinion upon the merits of a case," House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 521, 89 L.Ed. 739 (1945), certainly a conclusion by a Circuit Justice that the Court would deny certiorari likewise is not an expression of opinion upon the merits.


John Louis Evans


John Louis Evans



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