Artez Hammonds (ADOC)

A federal appeals court has called a former Alabama prosecutor’s behavior "unconstitutional and unethical" in a 1997 death penalty case.

The U.S. 11th Circuit Court of Appeals describes former Houston County District Attorney Doug Valeska’s misconduct in an opinion issued in October. The court also said it planned to forward its opinion on his conduct to the Alabama State Bar.

The appeal was filed by death row inmate Artez Hammonds, who was convicted by Valeska in 1997. Hammond was asking the higher court overturn a Alabama Supreme Court ruling, which decided inappropriate comments by Valeska at the trial did not sway the jury.

The opinion states, "Although Valeska’s improper remarks ‘almost persuaded’ the Alabama Supreme Court to reverse Hammonds’s conviction, it nonetheless held that ‘the trial judge corrected any harm by giving appropriate corrective instructions.’" It continues, "Because Hammonds cannot show that he was actually prejudiced by any constitutional trial error, we affirm."

Valeska was first elected Houston County District Attorney in 1986 and served until 2016, when he decided not to seek a sixth six-year term. He has been a controversial figure in the past, and was even the focus of a New York Times article last year.

Hammonds was convicted of killing of Marilyn Mitchell, who was was found raped and murdered in her townhouse in May 1990. At trial, prosecutors presented evidence showing Hammonds DNA and fingerprint at the scene, and showed that Hammonds pawned a ring similar to Mitchell’s engagement ring after she was killed.

Hammonds did not testify at trial.

While a constitutional amendment allows a defendant the right to not testify– and prosecutors cannot their silence against the defendant– Hammonds’ attorneys asked the court in a pre-trial motion to preclude Valeska from making any negative remarks about Hammonds’ decision "given Valeska’s track record." The motion was granted.

Cobb in early January filed a complaint with the Alabama State Bar’s disciplinary committee stating that Houston County District Attorney Doug Valeska had given false statements, or was not properly prepared and relied on a faulty memory, to the Alabama Board of Pardons and Paroles.

"But neither the Constitution nor a direct order from the court inhibited Valeska from improperly referring to Hammonds’s decision not to testify," the Eleventh Circuit opinion states.

The appeal and the ruling focuses on two comments made by Valeska during the 1997 trial: One where Valeska said during an objection, "Let him testify," and another during closing arguments when Valeska referred to Hammonds’ previous imprisonment, before his arrest in Mitchell’s slaying.

The court states their job is to decide whether the remarks swayed the jury’s decision. "Hammonds argues that the prosecutor’s first statement, which referred to his decision not to testify, violated his Fifth Amendment right against self incrimination. He’s right," the opinion states.

It states, "We are very disturbed by Valeska’s behavior. Not only did Valeska intentionally refer to Hammonds’s decision not to testify, but he did so in flagrant violation of the court’s pre-trial order… Valeska had been reprimanded in prior cases for engaging in precisely the same unconstitutional and unethical behavior."

The order continues with its review of Valeska, claiming the state "white-washed" his actions. "For this reason alone, we, like the Alabama Supreme Court… are tempted to grant Hammonds’s petition. But as we have explained, we cannot do so unless Valeska’s conduct actually prejudiced Hammonds."

"We can, however, provide the Alabama State Bar with a copy of our opinion for consideration of Valeska’s conduct, and we will do so," the ruling states.

Valeska has faced at least one bar complaint before, filed by former Alabama Supreme Court Chief Justice Sue Bell Cobb in 2016.

The court says in the order that while Valeska’s conduct was inappropriate, the trial judge immediately gave jury instructions to disregard the remarks and that prosecutors presented "overwhelming evidence" incriminating Hammonds. For those reasons, the court ruled, the errors didn’t prejudice Hammonds.

Houston County has 18 inmates on Alabama’s death row– the second most behind Jefferson County, which has 25. According to the U.S. Census Bureau, in 2016 Houston County had a population of 104,056– Jefferson County had a population of 659,521.

Valeska had not responded to request for comment by the time of publication. This post will be updated.

Greg Griggers, district attorney for the 17th Judicial Circuit, oversees a small drug task force that has made big seizures from Mexican drug cartels in recent years. (Connor Sheets |
Last year, the drug task force for Alabama’s 17th Judicial Circuit released this photograph of the 167 pounds of cocaine it seized in Greene County.
In 2013, Alabama’s 17th Judicial Circuit Drug Task Force seized $386,900 in cash, much of which was hidden inside women’s shoes. (Courtesy U.S. Immigration and Customs Enforcement)
Roy Moore, left, and Doug Jones. ( file photos)

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