Petition for Writ of Certiorari — Steven Richard Mulkey, Petitioner v. Alabama

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2025

_____________________________________

STEVEN MULKEY,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

________________________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ALABAMA COURT OF CRIMINAL APPEALS

________________________________________

CORRECTED PETITION FOR A WRIT OF CERTIORARI

________________________________________

RANDALL SUSSKIND

Counsel of Record

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

rsusskind@eji.org

May 19, 2026

Counsel for Petitioner

CAPITAL CASE

QUESTION PRESENTED

Whether a capital defendant’s Sixth and Fourteenth Amendment rights

are violated where (a) during voir dire the trial court publicly sanctioned and

jailed one prospective juror in front of the entire jury venire; and (b) failed to

conduct any inquiry into how other members of the venire were impacted by the

court’s conduct, despite indications that multiple jurors were intimidated or

otherwise affected?

i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioner is Steven Mulkey. Respondent is the State of Alabama. No

Party is a corporation.

RELATED PROCEEDINGS

State v. Mulkey, Jefferson County Circuit Court, No. CC-2019-980.00.

Order of conviction entered April 23, 2023; sentencing order entered on April

27, 2023.

Mulkey v. State, Alabama Court of Criminal Appeals, No. CR-20230304. Conviction and sentence affirmed May 2, 2025.

Ex parte Mulkey, Alabama Supreme Court, No. SC-2025-0615. Petition

for writ of certiorari denied December 19, 2025.

State v. Mulkey, Jefferson County Circuit Court, No. CC-2019-980.60.

Petition for relief pursuant to Ala. R. Crim. P. 32 pending.

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I.

THE TRIAL COURT’S DECISION TO PUBLICLY PLACE

A PROSPECTIVE JUROR IN CONTEMPT IN FRONT OF

THE ENTIRE JURY POOL VIOLATES THE SIXTH AND

FOURTEENTH AMENDMENTS AND THIS COURT’S

PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

iii

TABLE OF AUTHORITIES

CASES

Davidson v. Cannon, 474 U.S. 344 (1986) . . . . . . . . . . . . . . . . . . . . . . . 12

DeShaney v. Winnebago Cnty. Department of Social Servs., 489 U.S.

189 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gomez v. United States, 490 U.S. 858 (1989) . . . . . . . . . . . . . . . . . . 9, 10

Gray v. Mississippi, 481 U.S. 648 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 9

Miller-El v. Dretke, 545 U.S. 231 (2005). . . . . . . . . . . . . . . . . . . . . . . . 10

Powers v. Ohio, 499 U.S. 400 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Remmer v. United States, 347 U.S. 227 (1954) . . . . . . . . . . . . . . . . . . 12

Rosales-Lopez v. United States, 451 U.S. 182 (1981) . . . . . . . . . . . . . . 10

Sheppard v. Maxwell, 384 U.S. 333 (1966) . . . . . . . . . . . . . . . . . . . . . . . 9

Smith v. Phillips, 455 U.S. 209 (1982) . . . . . . . . . . . . . . . . . . . . . . . 9, 11

STATUTES

28 U.S.C. § 1257(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

iv

________________________________________

PETITION FOR A WRIT OF CERTIORARI

________________________________________

OPINIONS BELOW

The opinion of the Alabama Court of Criminal Appeals affirming Mr.

Mulkey’s convictions and sentence of death, Mulkey v. State, No. CR–2023-0304,

2025 WL 1272751 ((Ala. Crim. App. May 2, 2025), is not yet reported and is

attached as Appendix A. The court’s opinion denying rehearing is not reported

and is attached as Appendix B. The order and certificate of judgment of the

Alabama Supreme Court denying Mr. Mulkey’s petition for a writ of certiorari

is unreported and attached as Appendix C.

STATEMENT OF JURISDICTION

In a decision dated May 2, 2025, the Alabama Court of Criminal Appeals

affirmed Mr. Mulkey’s convictions and death sentence. Mulkey v. State, No.

CR–2023-0304, 2025 WL 1272751 ((Ala. Crim. App. May 2, 2025). The Alabama

Court of Criminal Appeals denied rehearing on August 15, 2025. The Alabama

Supreme Court denied Mr. Mulkey’s petition for a writ of certiorari as to all

claims on December 19, 2025. Order, Ex parte Mulkey, No. SC-2025-0615 (Ala.

Dec. 19, 2025.) This Court granted Mr. Mulkey’s application to extend the time

to file a petition for writ of certiorari on March 9, 2026, extending the time to file

to April 17, 2026. Mulkey v. Alabama, No. 25A987 (March 9, 2026). The

1

jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for

his defence.

The Fourteenth Amendment to the United States Constitution provides

in relevant part:

No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United States;

nor shall any State deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal protection

of the laws.

STATEMENT OF THE CASE

Steven Mulkey has struggled with mental illness his entire life. Born in

1990 with Fetal Alcohol Syndrome Disorder (“FASD”), he did not begin to walk

until he was three, did not speak in words until age three or sentences until age

2

six or seven, and was not toilet trained until partway through elementary school.

(R. 1315, 1323.) His mother, a 15-year-old who struggled with alcoholism at the

time of his birth, was only allowed to spend two weeks with him after he was

born before she was made to return to a juvenile facility. (R. 1314.) Raised by

grandparents who abused him—including by being repeatedly tied to a chair

with duct tape—Mr. Mulkey was first sent to a psychiatric hospital when he was

eight years old. (R. 1332–34.) Over the next ten years, Mr. Mulkey was

diagnosed with bipolar disorder, major depressive disorder, psychotic disorder

and schizoaffective disorder, Attention Deficit Hyperactivity Disorder (ADHD)

and Oppositional Defiant Disorder, childhood onset, (R. 849–850), and

hospitalized at least 21 times in at least ten different psychiatric hospitals,

group homes and other residential treatment facilities across Alabama and

Tennessee. (R. 1363.)

After being kicked out of DHR custody when he turned 18 years old in

2008, Mr. Mulkey spent some time homeless living off of SSI disability

payments. (R. 862, 1378–79.) He was arrested for robbery in 2011, but was found

incompetent to stand trial. (R. 863–64, 1372–73; C. 704–05.) Following nearly

two more years of inpatient psychiatric treatment, during which he was first

diagnosed with FASD, Mr. Mulkey pleaded guilty to third-degree robbery in

2013. (R. 1373; C. 706–07.) Mr. Mulkey was released from incarceration in

3

February 2018. (R. 1376.) Denied SSI disability benefits, Mr. Mulkey was unable

to obtain the psychiatric medication he needed, and resorted to self-medicating

with marijuana, cocaine, and methamphetamine. (R. 1379.) By September 2018,

Mr. Mulkey was sleeping at an Econo Lodge in Ironwood, Alabama, and

subsisting on day labor work. (R. 918–20.)

On September 16, 2018, Mr. Mulkey was hired by Siu Mei Kao and Ching

Kao, the owners of the Siesta Motel in Irondale, to do some landscaping work at

the motel and another nearby property. (R. 926–927.) Mr. Mulkey drove to the

other property with Mrs. Kao, mowed the grass, smoked marijuana, and then

returned to the Siesta Motel. (Id.) Mrs. Kao entered the office area of the motel,

while Mr. Mulkey put away the lawn mower. (Id.) At this time, Mr. Mulkey

consumed approximately a gram of cocaine and methamphetamine. (R.

927–928.)

Surveillance footage from the Siesta Motel shows that Mr. Mulkey entered

the motel office several minutes later—after Mrs. Kao had stepped out of the

office—and began to argue with Mr. Kao. (State Ex. 171.) Mrs. Kao then reentered the office and joined the argument. (Id.) Several moments later, Mr.

Mulkey abruptly pulled out a hammer and struck Mr. and Mrs. Kao repeatedly,

killing both. (Id.) Mr. Mulkey also cut Mrs. Kao’s throat with a knife, and then

left the scene. (Id.) Two days later, the surveillance video shows Mr. Mulkey

4

removing the Kaos’ bodies and a safe from the motel, and placing them into the

Kaos’ silver Chevrolet Impala. (R. 669, 725.) Mr. Mulkey left the Kaos’ bodies in

a wooded area (R. 743–44) and left the Birmingham area, intending to travel to

New York City. (R. 937–38.)

Mr. Mulkey was arrested on September 24, 2018. (C. 223.) On March 8,

2019, Mr. Mulkey was indicted on three counts of capital murder: murder of two

or more persons pursuant to one course of conduct, in violation of Alabama Code

Section 13A-5-40(a)(10) (Count One); murder of Siu Mei Kao in the course of

committing a theft, in violation of Alabama Code Section 13A-5-40(a)(2) (Count

Two); and murder of Ching Kao in the course of committing a theft, in violation

of Alabama Code Section 13A-5-40(a)(2) (Count Three). (C. 221–22.)

Mr. Mulkey’s trial commenced with jury selection starting on April 17,

2023. Potential jurors completed questionnaires on the first day. (R. 172.) On

the second day, the State and defense counsel conducted group voir dire, (R.

228–377), followed by individual voir dire. (R. 382–505). On the morning of the

second day of jury selection, prior to group and individual voir dire, the trial

court—in front of the entire pool of potential jurors—ordered that a potential

juror be arrested and placed in contempt of court for running late to jury service:

Juror [J.F.], juror number 230, we were able to just

reach him at 9:30, and he indicated taht he was getting

dressed to come down. The Court is not going to delay

this process any more. For the record, the Court has

5

ordered that Mr. Fields be taken into custody, and he

will be held in contempt of court.

(R. 228. Potential jurors subsequently expressed concern throughout voir dire

that they would get in trouble or be “charged or thrown in jail” if they gave

answers that did not comply with the judge’s instructions or the law. (See, e.g.,

R. 409, 482.)

During the State’s case-in-chief at the guilt-phase, the State relied on

surveillance footage from the Siesta Motel, which showed the killing of the Kaos

on camera, as well as Mr. Mulkey’s attempts to remove their bodies. (R. 598–601;

State Ex. 171.) Defense counsel did not dispute that Mr. Mulkey killed Mr. and

Mrs. Kao (R. 603) but argued that Mr. Mulkey lacked the requisite mental state

to commit capital murder (R. 607–08). The defense argued that Mr. Mulkey was

not guilty by reason of mental disease or defect” (R. 609–610) and that he was

too intoxicated to form intent (R. 606–07, 1038–41). With respect to Counts 2

and 3, defense also pursued a theory that Mr. Mulkey did not have the intent to

rob the Kaos at the time of their murder. (R. 609.)

On April 24, 2023, the jury returned a verdict of guilty as to Count 1,

intentional murder of two or more people, but not guilty as to Counts 2 and 3,

intentional murder during the course of a robbery. (R. 1111, C. 189–94.)

The penalty-phase took place from April 24 to April 26, 2023. The State

sought two aggravating circumstances: that Mr. Mulkey killed two or more

6

people, and that Mr. Mulkey was previously convicted of a felony involving the

use or threat of violence to a person (namely, third-degree robbery). (R. 1125–26;

1145–46.) The State presented no additional witnesses at the penalty-phase.

(R. 1146.)

The defense sought to establish that the crime was committed while Mr.

Mulkey was under extreme mental or emotional disturbance, and that his

capacity to appreciate the criminality of his conduct or to conform his conduct to

the requirements of law was substantially impaired. (R. 1138.) Defense counsel

presented testimony from several expert witnesses who testified that Mr.

Mulkey suffers from FASD, was abandoned by his mother and his family, and

was raised in numerous hospitals, group homes or mental facilities between the

ages of 6 and 18. (R. 1139–41.)

On April 26, 2023, the jury reached a penalty-phase verdict, unanimously

finding two aggravating circumstances and “recommend[ing]” that Mr. Mulkey

be sentenced to death by a vote of 12 to 0. (R. 1455–56; C. 196–197.) The judge

immediately sentenced Mr. Mulkey to death (R. 1457–58) and issued a

sentencing order the next day on April 27, 2023 (S1. 202–03). The Alabama

Court of Criminal Appeals affirmed Mr. Mulkey’s convictions and death sentence

on May 2, 2025.

Mulkey v. State, No. CR–2023-0304, 2025 WL 1272751 ((Ala.

Crim. App. May 2, 2025).

7

REASONS FOR GRANTING THE WRIT

In this capital case, the trial court abdicated its duties to ensure a fair and

impartial jury during voir dire, by holding a prospective juror in contempt of

court and jailing him, and telling the entire jury venire that it was doing so. The

trial court’s extreme action undermined Mr. Mulkey’s right to a fair trial and

impartial jury under the Sixth and Fourteenth Amendments. The lower court’s

opinion to the contrary conflicts with this Court’s precedents.

Therefore,

certiorari is appropriate. See Sup. Ct. R. 10(b), (c).

I.

THE TRIAL COURT’S DECISION TO PUBLICLY PLACE A

PROSPECTIVE JUROR IN CONTEMPT IN FRONT OF THE

ENTIRE JURY POOL VIOLATES THE SIXTH AND FOURTEENTH

AMENDMENTS AND THIS COURT’S PRECEDENT.

Prior to group and individual voir dire, the trial court announced to the

entire jury venire that because prospective juror J.F. (No. 230) was running late

to jury service, “the Court has ordered that [J.F.] be taken into custody, and he

will be held in contempt of court.” (R. 227–28.) The court later disclosed to the

parties that J.F. was “currently in jail” and would be left there “overnight.” (R.

391.) J.F., a young Black man, (S3. 303), was otherwise a qualified juror who

indicated on his questionnaire that he could be fair and impartial, and that he

was death qualified. (See, e.g., Q. 19, 37, 42–43.)

In affirming Mr. Mulkey’s conviction and sentence, the court below found

that “Alabama courts have the authority to issue orders to prevent hindrance of

8

its proceedings,” and that therefore, the court “finds no plain error in the circuit

court’s actions.” Mulkey, 2025 WL 1272751, at *10. As applied to the trial

court’s actions, however, this finding conflicts with this Court’s longstanding

precedent requiring trial courts to protect a defendant’s right to an impartial

jury and to take measures to ensure that outside influences do not impinge this

right: “Due process requires that the accused receive a trial by an impartial jury

free from outside influences. . . . the trial courts must take strong measures to

ensure that the balance is never weighed against the accused.” Sheppard v.

Maxwell, 384 U.S. 333, 362 (1966).

Here, the trial court’s extreme actions during the voir dire process, affected

both Mr. Mulkey’s fair trial rights, as well as his rights to truthful answers

during voir dire, and to an unbiased and impartial jury. See, e.g., Gomez v.

United States, 490 U.S. 858, 876 (1989) (quoting Gray v. Mississippi, 481 U.S.

648, 668 (1987)) (“Among those basic fair trial rights that ‘can never be treated

as harmless’ is a defendant’s ‘right to an impartial adjudicator, be it judge or

jury.’”). The trial court’s actions further deprived Mr. Mulkey of his Sixth and

Fourteenth Amendment rights to “a trial judge ever watchful to prevent

prejudicial occurrences and to determine the effect of such occurrences when

they happen.” Smith v. Phillips, 455 U.S. 209, 217 (1982).

As an initial matter, this Court has consistently reaffirmed the critical

9

significance of jury service to the integrity of the entire trial process, and the

importance of protecting a juror’s right not to be unlawfully, or arbitrarily,

excluded from jury service. Miller-El v. Dretke, 545 U.S. 231, 238 (2005)

(discriminatory or unlawful jury selection jeopardizes “the very integrity of the

courts” and “undermines public confidence in adjudication”); Powers v. Ohio, 499

U.S. 400, 407–08 (1991) (holding that discriminatory jury selection violates the

equal protection clause and noting that “[j]ury service preserves the democratic

element of the law, as it guards the rights of the parties and ensures continued

acceptance of the laws by all of the people.”). J.F., although running late, was

on his way to jury service and was otherwise qualified to serve on Mr. Mulkey’s

jury. (See, e.g., Q. 19, 36, 37, 42–43.)

This Court has also consistently emphasized the critical importance of voir

dire in a criminal case:

[V]oir dire represents jurors' first introduction to the

substantive factual and legal issues in a case. To detect

prejudices, the examiner . . . must elicit from

prospective jurors candid answers about intimate

details of their lives. The court further must scrutinize

not only spoken words but also gestures and attitudes

of all participants to ensure the jury's impartiality.

Gomez, 490 U.S. at 874–75 (noting that the “atmosphere of the voir dire . . . may

persist throughout the trial”); see also Rosales-Lopez v. United States, 451 U.S.

182, 188 (1981) (“Voir dire plays a critical function in assuring the criminal

10

defendant that his Sixth Amendment right to an impartial jury will be

honored”).

Here, the trial judge’s actions had a significant impact on the remainder

of the venire, and the jurors’ ability to be open and honest about beliefs they

might hold that are contrary to the law or the trial judge’s instructions. The trial

court announced that it would place J.F. in contempt in front of the entire

venire, but did not take any steps to ensure that this would not affect jurors’

impartiality or ability to answer questions freely and honestly. Phillips, 455 U.S.

at 217.

Indeed, the record below indicates that prospective jurors were affected by

the trial court’s excessive and abusive actions. Prospective juror G.S. (No. 530),

expressed concern that she would be “charged or thrown in jail.” (R. 409). Other

jurors expressed similar concerns during individual voir dire, including

prospective juror K.E. (No. 221), who stated, “I don’t want to get in trouble for

my beliefs” (R. 482), after being questioned about his prior statement that he

would not consider mitigation (R. 481). Jurors were also described as “com[ing]

in here looking nervous” when they entered for individual voir dire (R. 518),

“coming in like it’s the trouble seat,” (R. 558), or that the judge “heard somebody

say uh-oh” when they were called back for individual voir dire (R. 467). The trial

court gave no instructions related to J.F.’s contempt and failed to question jurors

11

to ascertain whether this would affect their ability to answer questions honestly

and to be impartial adjudicators.

The trial court had an obligation under this Court’s precedents to

“determine the circumstances” of any irregularities or misconduct affecting the

jury, “the impact thereof upon the juror, and whether or not it was prejudicial,

in a hearing with all interested parties permitted to participate.” Remmer v.

United States, 347 U.S. 227, 230 (1954). It conducted no such inquiry.

Jurors act “as a vital check against the wrongful exercise of power by the

State.” Powers, 499 U.S. at 411. However, where a judge displays an abusive

show of authority as it did in Mr. Mulkey’s case, the jury’s ability to fulfill it’s

critical role is affected. Historically, the framers intended the Due Process

Clause of the Fourteenth Amendment to protect against just such abuses, “to

prevent government ‘from abusing [its] power, or employing it as an instrument

of oppression,’ . . . Its purpose was to protect the people from the State.”

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989)

(quoting Davidson v. Cannon, 474 U.S. 344, 348 (1986)).

This Court should grant certiorari and resolve whether the trial court’s

drastic action in placing prospective juror J.F. in contempt of court for running

30 minutes late to jury service resulted in the violation of Mr. Mulkey’s rights

protected by the Sixth and Fourteenth Amendments to the United States

12

Constitution.

CONCLUSION

For the foregoing reasons, Mr. Mulkey’s petition for certiorari should be

granted.

Respectfully Submitted,

/s/ Randall Susskind

RANDALL SUSSKIND

Counsel of Record

122 Commerce Street

Montgomery, AL 36104

Phone:

(334) 269-1803

Fax:

(334) 269-1806

Email:

rsusskind@eji.org

May 19, 2026

Counsel for Steven Mulkey

13