Tomorrow morning, the Supreme Court will meet to decide whether to consider the case of Phillip Tomlin, a man who served 14 years on Alabama's death row for a crime that was not eligible for the death penalty.

Tomlin has been in prison more than 40 years, now serving life without parole, and he wants to explain to a federal judge why he is entitled to a shot at parole. But he can't. https://cccct.law.columbia.edu/content/life-prison-without-parole

In the federal system, you have to ask for permission to appeal. It's called a Certificate of Appealability, or COA. It's basically like knocking on the door and asking a judge to let you in so you can make your argument. When Tomlin knocked on the door, the judge said no.

Whether you get a COA is like playing the lottery, Tomlin's lawyers say: some judges grant them <3% of the time. Some, >25%. The decisions are supposed to be based on the merits of your argument. But they appear to be based on luck. https://twitter.com/BernardHarcourt/status/1265382337778454528?s=20

What's more, in some circuits, a single judge decides whether to grant a COA. In other circuits, 3 judges meet and decide together. If any one of the judges thinks you deserve a COA, you get it. That means some prisoners get 3x as many chances to be heard.

In a way, the case is sort of meta: Tomlin is arguing about whether he's able to make his argument. But it's also about basic fairness: why should a roll of the dice determine whether you get to explain to a judge that you're locked up unfairly?

Because that's what this is about: habeas corpus petitions, the legal equivalent of saying, you have no right to lock me up. If you think you do, prove it.

Separate from his SCOTUS petition, btw, Tomlin's case is CRAY. He was convicted of murder *4 times,* the first in 1978. 3 times the conviction was overturned due to misconduct. 2 of the 3, the *same prosecutor* committed the misconduct.

It is *extremely unusual* to have a case reversed due to prosecutorial misconduct. For a judge to do this *twice*—in *Alabama*—is practically unheard of. This guy (and his brother) are infamous among prosecutor-watchers. https://www.prosecutorialaccountability.com/2017/01/05/the-brothers-valeska-merchants-of-constitutional-demise/

Then there's his judge. His name was Ferrill McRae. (He had a twin brother named Merrill McRae, also a judge, if I'm not mistaken. But that's neither here nor there.) He is also famous in certain circles, not for good reasons. https://prospect.org/features/judge-lynch-mob/

Until 3 years ago, in Alabama, even if a jury determines you should get a life sentence, a judge could override them and sentence you to death anyway. McRae was one of the judges most likely to do this. https://www.themarshallproject.org/2016/12/07/in-alabama-you-can-be-sentenced-to-death-even-if-jurors-don-t-agree

In one of Tomlin's trials, McRae overrode the jury and sentenced Tomlin to death, even though the death penalty statute at the time did not allow it.

Tomlin killed 2 people. No one is arguing that the 40 years he's already served aren't fair. But like most cases, it's complicated. The man he shot had killed Tomlin's brother—who was in bed, asleep—a few years prior, and walked away when the DA said it was an accident.

He was 22, with a wife and two young children when it happened. He's 66 now. He's lived in the honor dorm for almost 20 years. He just wants a chance to convince a judge that he should have a shot at going before the parole board. What will SCOTUS say?