By Sara Foss - DailyGazette.com

Friday, June 20, 2008

As a reporter, you’re always learning. It’s not always clear how useful the information you accumulate is — does it help you in Trivial Pursuit? does it make you better at the crossword? — but you do develop an ability to talk about anything, with almost anyone, which at least gives you the ability to survive a dinner party. My moment of triumph came a couple of years ago, when a friend was complaining about her boyfriend’s tinnitus — a persistent ringing in the ears — and how she can never hear anything he says. “I just wrote a story on tinnitus,” I announced, as my friend Ed practically fell over with disbelief. “The problem is, there’s no cure.” You know you’ve reached some weird pinnacle in the accumulation of random information when you can discuss tinnitus with your friends. And not just discuss it, but discuss it with authority.

This week I began researching a story that will run in Sunday’s Gazette about the juvenile justice system and why certain crimes are prosecuted in adult court. (The article is inspired by the Albany 15-year-old who allegedly fired a gun and killed a 10-year-old girl.) As I surfed the web and looked for information, I began thinking about Mark Anthony Duke.

Duke, a resident of Shelby County, Ala., was sentenced to die for killing his father, father’s girlfriend, and the girlfriend’s two young daughters. His 1999 trial, which lasted a week, was one of the first things I covered in my job as a reporter at the Birmingham Post-Herald, my first newspaper. I don’t think about Duke often, but occasionally he pops into my head, like the name of a book I never finished, and I wonder: Whatever happened to Mark Anthony Duke?

I’d never tried to answer this question, but this week it became impossible not to. One of the people I interviewed for my juvenile justice story mentioned a 2005 Supreme Court decision barring the execution of 16 and 17-year-olds. When I took a look at it, there he was, Mark Anthony Duke.

The details of his case were outlined in grim detail, and I scanned through them. I’d forgotten how awful it all was, how Duke enlisted several friends to help him (one of the friends, 19-year-old Brandon Samra had already been convicted and sent to death row; he testified against Duke during one of the more riveting days of trial), how he told these friends he planned to kill his father and that he would kill the girls to eliminate witnesses.

Duke and Samra (the other two friends didn’t enter the house, which is why they received lengthy prison sentences but didn’t end up on death row) found the 6-year-old hiding in the shower and slit her throat. Then they found the 7-year-old hiding under a bed and slit her throat. They shot the adults, and ransacked the house to make it appear as though a burglary had occurred. Why did Duke decide to do this? The only explanation we heard in court was that he was angry because his father wouldn’t let him borrow the truck.

Duke never said a word at trial, though several people testified in his defense, saying he wasn’t all that bad. His mother and sisters attended the trial, but didn’t speak on his behalf. One of the more surreal aspects of covering a capital murder trial day in and day out is hanging out in the courthouse.

Many trial articles duly note that relatives and friends of the victim sit on one side of the courthouse, while relatives and friends of the defendant sit on the other side, but this observation, delivered in terse newspaper-style, fails to convey how truly bizarre this dynamic is. On one side you have people who want the defendant to live, and on the other side people who want the defendant to die, but for the most part everybody manages to ignore each other and keep things civil. At least, that’s what they did during this trial, though it was certainly tense and uncomfortable, even painful, particularly when the bloody photos from the crime scene were displayed. I remember several people leaving the courtroom. When the jury was charged, we knew it wouldn’t take long. We milled around in the hallway, and after about a half hour we were called back into the courtroom, where we learned that Mark Anthony Duke had been found guilty.

Duke is not a famous person, but this week I found myself recalling the facts of his case and discussing them with people. “Oh, yeah,” I said to one person. “I remember they attended the movie “Scream” the night of the murders to establish an alibi.” Because of the Supreme Court ruling, Duke will not be executed, but he will spend the rest of his life in prison. I found some information about him on a website about juveniles on Alabama’s death row. After the Supreme Court ruling, he was moved to a state prison in Atmore. In a photograph on the site, he is grinning — I don’t think he smiled once at trial — and it says: “Mark has been incarcerated since he was 16 years old. He welcomes new penfriends and encourages the more mature correspondent to contact him at ...” The website invited me to visit Duke’s website, but when I tried to pull it up I found that it had been removed. Still, I was satisfied. My question had been answered.

So that’s where Mark Anthony Duke is, I thought. In a state prison in Atmore. For some strange reason, it was information I was glad to have.

ALABAMA COURT OF CRIMINAL APPEALS

MARK ANTHONY DUKE
v.
STATE OF ALABAMA

May 27, 2005

Appeal from Shelby Circuit Court (CC-97-383).

The opinion of the court was delivered by: Wise, Judge.

On Remand from the United States Supreme Court

Mark Anthony Duke was convicted of capital murder in connection with the deaths of Randy Gerald Duke, Dedra Mims Hunt, Chelisa Nicole Hunt, and Chelsea Marie Hunt, because those murders were committed "pursuant to one scheme or course of conduct." See § 13A-5-40(a)(10), Ala. Code 1975. We affirmed Duke's capital-murder conviction and sentence of death on direct appeal. Duke v. State, 889 So. 2d 1 (Ala.Crim.App. 2003). The Alabama Supreme Court subsequently quashed Duke's petition for a writ of certiorari. Ex parte Duke, 889 So. 2d 1 (Ala. 2004). Duke petitioned the United States Supreme Court for a writ of certiorari.

On March 7, 2005, the United States Supreme Court granted Duke's petition for a writ of certiorari, vacated the judgment of this Court and remanded Duke's case for further consideration in light of Roper v. Simmons, 543 U.S. ___, 125 S.Ct. 1183 (2005). Duke v. Alabama, 543 U.S. ___, 125 S.Ct. 1588 (2005).

The record indicates that Duke was 16 years old when he committed this capital offense. In Roper v. Simmons, 543 U.S. ___, 125 S.Ct. 1183 (2005), the United States Supreme Court held that it was a violation of the Eighth and Fourteenth Amendments to the United States Constitution to impose a death sentence on a defendant who was under the age of 18 at the time the criminal offense was committed. This decision abrogated the Court's previous decision in Stanford v. Kentucky, 492 U.S. 361 (1989), upholding death sentences for offenders who were 16 or older at the time the crime was committed.

Because Duke's case was pending on certiorari to the United States Supreme Court when the decision in Roper v. Simmons was released, the holding of that case applies to him. "[A]ll defendants whose cases were still pending on direct appeal at the time of the law-changing decision should be entitled to invoke the new rule." United States v. Johnson, 457 U.S. 537, 545 n. 9 (1982). See also Griffith v. Kentucky, 479 U.S. 314 (1987).

Based on the foregoing, Duke's sentence of death must be vacated. However, the Supreme Court's decision has no bearing on Duke's conviction for capital murder. Accordingly, this case must be remanded for the Shelby Circuit Court to set aside Duke's sentence of death and to resentence him to life imprisonment without the possibility of parole -- the only other sentence available for a defendant convicted of capital murder. See § 13A-5-45(a), Ala. Code 1975. The circuit court shall take all necessary action to ensure that the return to remand is filed in this Court within 35 days from the date of this opinion.

AFFIRMED AS TO CONVICTION; REMANDED WITH INSTRUCTIONS AS TO SENTENCE.

McMillan, P.J., and Cobb, Baschab, and Shaw, JJ., concur.