Did sick judge have to declare a mistrial in murder-for-hire case?

How Russell County Judge George Greene came to declare a mistrial in the capital murder case against Lisa Graham has become more of an issue than whether Graham hired a man to gun down her daughter in 2007.

In motions filed this summer with the Alabama Court of Criminal Appeals, Graham's defense team argues Greene felt compelled to declare a mistrial Sept. 25, 2012, feeling pressured by Chief Circuit Judge Al Johnson, who that morning inquired about Greene's health after hearing Greene fell asleep during jury selection.

Greene declared the mistrial minutes later, citing his poor health, but months afterward said he believed he could have finished the trial.

If Greene did not on his own decide his ailments required a mistrial, that raises doubt that discontinuing the trial was by law a "manifest necessity," with no alternative. If a mistrial wasn't necessary, then retrying Graham constitutes double jeopardy, prohibited by the Fifth Amendment to the U.S. Constitution and by the Alabama constitution, the defense contends.

On May 3, the defense moved to dismiss the charges against Graham, claiming that to try her again would be double jeopardy.

During a July 3 hearing on that motion before Lee County Circuit Court Judge Jacob Walker, who was appointed to replace Greene, Greene testified that Johnson the morning of the mistrial told him he had talked to the chief justice of the Alabama Supreme Court, and both Johnson and the chief justice felt Greene had to call a mistrial, lacking the stamina to continue.

Greene testified that he felt he could have carried on.

Snoring in court

Graham's filings with the criminal appeals court include a transcript of testimony Johnson gave July 3 while the press and public were excluded from the courtroom. Johnson testified the district attorney, sheriff and court clerk told him Greene not only fell asleep during jury selection Sept. 18, 2012, but snored into his court microphone.

Johnson said he also heard Greene had called the trial to order when Graham and her attorneys were not in the courtroom. Testimony also showed Graham had called her mother from jail and said a conviction would be overturned because the judge kept falling asleep.

A trial deferred

Jury selection began Sept. 17, 2012. On the evening of Sept. 20, 2012, Johnson called defense attorney Margaret Young Brown and District Attorney Ken Davis to tell them he would consult the Alabama chief justice about Greene's conduct.

The next day, a Friday, attorneys made opening statements, and testimony began. It continued on the following Monday. Then came the Tuesday morning the trial was delayed as Johnson talked to Greene.

In the appeal transcript of his testimony July 3, Johnson said he was troubled by Greene's appearance that morning: "Judge Greene, when I talked to him, I was, to be quite candid, somewhat frightened for him. His eyes were almost swollen shut. He appeared unkempt."

Johnson said he told Greene he had talked to the chief justice, and both the chief justice and Johnson believed Greene would be justified in declaring a mistrial because of his health.

In his July 3 testimony, Greene said Johnson told him the chief justice and Johnson as presiding circuit judge were ordering him to declare the mistrial, and he might have to vacate the bench if he didn't.

Greene said he felt he could finish the trial, likely to last no more than a week.

As the July 3 hearing ended, Judge Walker dismissed the defense claim that retrying Graham was double jeopardy. He said Greene's statements and conduct the day Greene declared the mistrial were more reliable than Greene's recollection, which Johnson had called incorrect.

The defense told Walker it would take its claim no "manifest necessity" required a mistrial to the Alabama Court of Criminal Appeals. Once more, Graham's murder trial was on hold.

The homicide

Jailed five years while awaiting a trial repeatedly delayed, Graham today is free on bond.

She is accused of hiring a family worker, Kenneth Walton, to kill her daughter Stephanie Shea Graham, 20, whom Walton shot six times in the head and torso before leaving the body on Bowden Road, between U.S. 431 and Ala. 165 near Pittsview.

Investigators said Walton confessed to the homicide, acting it out for them. He told them he killed the daughter at the behest of her mother, who promised to support him if he complied.

Officers said Lisa Graham was frustrated by her daughter's drug use and feared Shea Graham would jump bail on charges she faced in a drive-by shooting in Columbus. She was due in court the morning after she was killed.

Walton pleaded guilty June 14, 2012, and was sentenced to life in prison, with possible parole. He has agreed to testify against Lisa Graham.

Now the circuit court must wait for the appeals court decision on whether the mistrial was a manifest necessity.

'Manifest necessity'

In Alabama the precedent for a judge's declaring a mistrial because of his infirmity dates to 1833. The court then said "the necessity should always be urgent and apparent." The state supreme court later said "a high degree of necessity is required before a mistrial is appropriate."

The courts have not specifically defined "manifest necessity," stating it must be determined case by case and left to the "sound discretion" of the judge.

If Judge Greene felt he could continue, the mistrial did not meet the "manifest necessity" standard, the defense argued in its appeal: "Certainly, there was no evidence that the illness was 'sudden,' 'urgent,' or 'apparent.'"

Representing the state in the appeal is Alabama Attorney General Luther Strange. In his response he detailed the ailments afflicting Greene:

Greene had diabetes, for which he'd been under treatment for 15 years.

He for four years had foot infections that would not heal, and in July had surgery to remove part of a foot.

Two weeks before Graham's trial, he developed bleeding in his right eye, which impaired his vision and caused headaches. The affliction has persisted, despite surgery, laser treatments and injections.

He has been treated by kidney and lung specialists.

He takes medication for cholesterol, blood pressure and gout.

He took a medical leave Oct. 1, 2012, canceling court sessions through early December. On Nov. 8, 2012, Johnson issued an order asking Greene to tell the court by Nov. 13 whether he could return to work in the next 90 days. Greene on Nov. 13 said he would be back Dec. 10.

Greene was hospitalized with pneumonia Dec. 10-17.

Strange argued that even if Greene's decision to declare a mistrial resulted from his talk with Johnson, a manifest necessity still existed: "The standard for declaring a mistrial is not the exercise of the judge's independent discretion, but rather the exercise of his 'sound' discretion -- which could certainly entail entertaining the concerns of his superior as to his ability to finish the trial."

Strange said the mistrial protected the defendant's interests as well as the prosecution's, "due to Judge Greene's difficulty staying awake on the bench." He added: "Surely a defendant stands to benefit from a capital trial as error-free as possible -- a trial in which the judge is, by necessity, awake."

The defense filed its appeal July 25. The attorney general responded Aug. 15. The appeals court may rule solely on the case file, without oral arguments.