Since his confirmation hearings for a seat on the U.S. District Court for the Middle District of Alabama, 36-year-old Brett Talley has come under criticism for his relative inexperience, his failure to disclose that his wife works as a lawyer in Trump’s White House, and the fact that he didn’t reveal that he’d apparently written a series of pseudonymous message board posts on the website TideFans.com under the username BamainBoston.
In those posts, which covered a wide range of sports and nonsports topics, BamainBoston was open about his enthusiasm for the death penalty. In 2015, for example, BamainBoston noted that it would be “awesome” if Alabama brought back the electric chair. Later in the thread, BamainBoston proposed an alternative means of execution, saying that a “bullet’s cheap.” One year earlier, responding to news that an Oklahoma inmate named Clayton Lockett had died of a heart attack on the gurney after his lethal injection was botched, BamainBoston wrote: “Just shoot them. That’s effective.”
In a post this year, BamainBoston indicated he had worked on capital punishment cases in his career. That post read as follows:
Handled a bunch of death row cases in my previous job. With one exception, every one of them admitted that they’d committed the crime but were trying to mitigate to life without parole based on some excuse—drugs, violent childhood, etc. And the one exception the guy was clearly guilty. I don’t know the details of this Arkansas case, but death row cases with an actual innocence claim are kind of like abortions based on rape, incest, or the life of the mother. They certainly happen, but the whole debate shouldn’t turn on them.
BamainBoston’s message came in a thread titled “Arkansas May Have Just Executed an Innocent Man.” That man, Ledell Lee, was executed earlier this year. Elizabeth Vartkessian of the Marshall Project wrote that the “courts refused to allow Lee’s team to conduct DNA testing and new evidence of his likely intellectual disability was never heard.” BamainBoston opined, “I wouldn’t spend too much time weeping for Lee.”
As a district court judge, Talley could hear capital criminal cases. At least 18 former death row inmates have been exonerated by DNA evidence and released from prison, the Innocence Project reported in 2009. BamainBoston expressed skepticism that anyone had been executed wrongfully since the Supreme Court reinstated the death penalty in 1977, writing:
Anti-death penalty advocates have gone to great lengths to definitively identify someone from the modern era who was executed and was innocent, Roger Keith Coleman is probably the most famous failed example. But that is beside my point. Feel free to change the standard for the death penalty if you like and give people who make claims of actual innocence yet another appeal process, or have a higher standard for imposition of the death penalty itself, beyond not only a reasonable doubt but any doubt. Do whatever you want, because the vast majority of people on death row are unequivocally and admittedly guilty.
In response to follow-up questions from Sen. Dick Durbin, a member of the Senate Judiciary Committee, Talley listed his work on death penalty cases as one of his key qualifications as a potential federal judge. In his own follow-up questions, Sen. Sheldon Whitehouse noted that Talley had in his role as deputy solicitor general of Alabama “defended questionable practices concerning the death penalty, such as executing a mentally incompetent death-row inmate and allowing a judge to override a jury’s recommendation for a life sentence and impose the death penalty.” Talley’s response:
I defended the practices to which you refer in my capacity as an attorney representing a client, the state of Alabama. Those representations will have no influence on my sentencing practices, other than providing familiarity and experience with the legal issues surrounding the death penalty and challenges to sentences generally.
The Supreme Court ultimately sided with Talley’s view in the case of the mentally incompetent death row inmate. Earlier this month, the court unanimously struck down a lower court ruling blocking the execution of a man who couldn’t remember his crime—but could understand the concepts of crime and punishment—after having suffered a series of strokes.
By Jeremy Stahl