A Baldwin County man who was sentenced to death in 1999 for the murder of his 4-month-old son two years earlier is still appealing his conviction. On Friday, the Alabama Court of Criminal Appeals ordered the Baldwin County Circuit Court to consider new evidence John Michael Ward brought forth in 2018.
Ward, 56, is one of five inmates from Baldwin County on Alabama’s death row. In 1997, Ward was living in a travel trailer in Magnolia Springs with his wife and two children when his wife called 911 to report 4-month-old Nicholas unresponsive. Paramedics attempted resuscitation, but the child was declared dead on arrival to South Baldwin Regional Medical Center.
There, doctors observed signs of abuse and neglect and called the Baldwin County Sheriff’s Office; the state medical examiner later concluded Nicholas died from multiple blunt force injuries and suffocation. Ward was found guilty of capital murder, and the jury recommended the death penalty by a vote of 10-2. Former District Attorney David Whetstone prosecuted the case. Judge Charles Partin, who has since retired, accepted the jury’s recommendation.
The conviction has since been defended by the Alabama Office of the Attorney General.
In its order Friday, the appeals court noted “the procedural history of Ward’s post-conviction relief is convoluted.” His conviction was initially affirmed on direct appeal in 2001, but because his subsequent Rule 32 petition was mishandled by an attorney, it has bounced between the circuit, the appellate and the Alabama Supreme Court since 2005.
In 2017, after his petition was allowed to proceed, Ward alleged newly discovered evidence indicated Nicholas actually died from pneumonia. Further, he complained both his trial and appellate counsel were ineffective, and Alabama’s death penalty scheme was unconstitutional.That September, the Baldwin County Circuit Court held an evidentiary hearing on Ward’s petition in which Dr. Janice Ophoven, a forensic pathologist, testified “the pneumonia is what ended his life, but the malnutrition and the rib fractures that were clearly old, old, were the precipitating event … It’s my opinion that there is no evidence that [Nicholas] was suffocated.”
In 2018, Ward amended his complaint to include a 2007 memorandum from the Alabama Department of Forensic Sciences (DFS) in which Chief Medical Examiner Dr. Kenneth Snell reported four senior state pathologists reviewed evidence from the autopsy report and all agreed Nicholas had “significant acute bronchopneumonia.” Snell also wrote, “two of the pathologists are of the opinion that bronchopneumonia should be listed as the cause of death.”
But because there was no majority opinion, the autopsy report was never amended. The memo also contradicted testimony at Ward’s trial in which State Medical Examiner Dr. James Downs determined, “Nicholas must have been suffocated based on some physical signs that were consistent with death by suffocation” and he “could discern no other cause of death.”
The state admitted the memo was authentic, but denied knowledge of its existence prior to Ward’s fourth amended Rule 32 complaint. In November 2018 the circuit court — now presided over by Judge Joe Norton — denied Ward’s petition for relief, but “did not address the allegations in the DFS memo.”
Ward appealed again and on Friday, the Alabama Court of Criminal Appeals remanded the case back to Baldwin County, noting “Ward’s allegations based on the DFS memorandum present material issues of fact that the circuit court should evaluate in the first instance and for which it should enter written findings of fact.” Further, “although the circuit court in its order denying relief addressed Dr. Ophoven’s testimony in various ways, the court did not make any specific findings about Dr. Ophoven’s opinion as to the cause of Nicholas’s death; on remand, it should do so.”
Ward’s 22-year-long appeal may have long been exhausted if it was filed under the provisions of the state’s new Fair Justice Act, which was signed into law by Gov. Kay Ivey in 2017. Now, all post-conviction remedies must be “pursued concurrently and simultaneously with the direct appeal,” and Rule 32 complaints must be filed “within 365 days of the filing of the appellant defendant’s first brief or direct appeal of a case.”
The bill was proposed by State Sen. Cam Ward and supported by Attorney General Steve Marshall, who wrote, “justice should be fair and swift.”
Marshall noted the average death penalty appeal time was “15 years and rising,” and the Fair Justice Act was expected to shave six years off the process. He also pointed out the law still affords death row inmates three levels of review, while it also provides appointed appellate counsel for indigent defendants “to investigate claims immediately after sentencing — a statutory benefit that death row inmates have never had before.”
In February, Ward introduced a new bill aimed at streamlining — or “expediting” — the process even further. Senate Bill 200 sought to remove the direct appeal from Alabama Criminal Appeals Court altogether and provide for an “automatic direct appeal to the Alabama Supreme Court.” It was approved by the Senate Judiciary Committee but stalled along with a number of other bills during a legislative session interrupted by COVID-19.
The attorney general’s office was not available to comment about the most recent remand in the Ward case before deadline, but a spokesman provided the state’s 116-page appeal brief filed last year. Within it, the state suggests Dr. Ophoven’s testimony is unreliable, and the outstanding complaint about the DFS memo is untimely because Ward admitted “evidence showing that Nicholas had pneumonia at the time of his death was readily available at the time of his trial.”
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