Just Mercy (10 page)

A week later, Walter sat in the van with shackles pinching his ankles and chains tightly wound around his waist. He could feel his feet beginning to swell because the circulation was cut off by the metal digging into his skin. The handcuffs were too tight, and he was becoming uncharacteristically angry.

“Why you got these chains on me this tight?”

The two Baldwin County deputies who had picked him up a week earlier had not been friendly on the trip from death row to the courthouse. Now that he had been convicted of capital murder, they were downright hostile. One seemed to laugh in response to Walter’s question.

“Them chains is the same as they were when we picked you up. They just feel tighter because we got you now.”

“You need to loosen this, man, I can’t ride like this.”

“It ain’t going to happen, so you should get your mind off it.”

Walter suddenly recognized the man. At the end of the trial when the jury had found Walter guilty, his family and several of the black people who had attended the trial were in shocked disbelief. Sheriff Tate claimed that Walter’s twenty-four-year-old son, Johnny, said, “Somebody’s going to pay for what they’ve done to my father.” Tate asked deputies to arrest Johnny, and there was a scuffle. Walter saw the officers wrestle his child to the ground and place him in handcuffs. The more he looked at the two deputies driving him back to death row, the more convinced he became that one of them had tackled his son.

The van began to move. They wouldn’t tell Walter where he was going, but as soon as they got on the road it was clear that they were
taking him back to death row. He had been upset and distraught on the day of his arrest, but he was so sure he’d be released soon. He got frustrated when the days turned into weeks at the county jail. He was depressed and terrified when they took him to death row before trial before being convicted of any crime, and the weeks became months. But when the nearly all-white jury pronounced him guilty, after fifteen months of waiting for vindication, he was shocked, paralyzed. Now he felt himself coming back to life—but all he could feel was seething anger. The deputies were driving him back to death row and talking about a gun show they were planning to attend. Walter realized that he had been foolish to give everyone the benefit of the doubt. He knew Tate was vicious and no good, but he assumed that the others were just doing what they had been told. Now he was feeling something that could only be described as rage.

“Hey, I’m going to sue all of y’all!”

He knew he was screaming and that it wasn’t going to make any difference. “I’m going to sue all of y’all!” he repeated. The officers paid him no attention.

“Loose these chains. Loose these chains.”

He couldn’t remember when he’d last lost control, but he felt himself falling apart. With some struggle he became silent. Thoughts of the trial flew back into his mind. It had been short, methodical, and clinical. Jury selection lasted just a few hours. Pearson used his peremptory strikes to exclude all but one of the handful of African Americans who had been summoned to serve on the jury. His lawyers objected, but the judge summarily dismissed their complaints. The State put Myers on the stand to tell his absurd story about Walter forcing him to drive to Jackson Cleaners because his arm hurt. This version had Myers going into the cleaners where he saw Walter standing over the dead body of Ronda Morrison. Bizarrely, he also claimed that a third person was present and involved in the murder, a mysterious white man with salt and pepper hair who was clearly in charge of the crime and who directed Walter to kill Myers too, but Walter couldn’t because he was out of bullets. Walter thought the testimony was so
nonsensical he couldn’t believe that people were taking it seriously. Why wasn’t everyone laughing?

Chestnut’s cross-examination of Myers made it clear that the witness was lying. When Chestnut finished, Walter was sure that the State would simply announce that they had made a mistake. Instead, the prosecutor brought Myers back up to repeat his accusations as if the logic and contradictions in the testimony were completely irrelevant, as if repeating his lies enough times in this quiet room would make them true.

Bill Hooks testified that he’d seen Walter’s truck pull out of the cleaners at the time of the murder and that he recognized the truck because it had been modified as a “low-rider.” Walter instantly whispered to his lawyers that he hadn’t turned his truck into a “low-rider” until several months after Morrison was murdered. His lawyers didn’t do much with that information, which frustrated Walter. Then another white man Walter had never heard of, Joe Hightower, took the stand and said that he had seen the truck at the cleaners, too.

There were a dozen people who could talk about the fish fry and insist that Walter was at home when Ronda Morrison was killed. His lawyers called only three of them. Everybody seemed to be rushing to get the trial over with, and Walter couldn’t understand it. The State then called a white man, Ernest Welch, who said he was the “furniture man” who collected money at the McMillian house on the day they were having a fish fry—but it wasn’t the same day that Ronda Morrison was murdered. He said he remembered better than anyone when she was murdered because he was her uncle. He said that he had been so devastated that he went to the McMillian residence to collect money on a different day.

The lawyers made their arguments, the jury retired, and less than three hours later they filed back into the courtroom. Stone-faced, one by one, they pronounced Walter McMillian guilty.

In February 1989, Eva Ansley and I opened our new nonprofit law center in Tuscaloosa, dedicated to providing free, quality legal services to condemned men and women on death row in Alabama. We never thought it would be easy, but it turned out to be even harder than we had expected.

In the first few months of operation our first director resigned, the University of Alabama School of Law where we had set up the office withdrew their support and promise of office space, and we discovered just how hard it was to find lawyers to come to Alabama and do full-time death penalty work for less than $25,000 a year.

Obstacles were multiplying rapidly. We were denied funding from the state legislature, which we needed to get federal matching dollars. After several disheartening meetings with our board, it had become clear that we had no support in the state for the project. State bar leaders were committed to seeing our operation succeed—some because they felt it was unacceptable that condemned prisoners could not obtain legal assistance, others because they wanted more executions at a faster pace and felt that the absence of counsel was slowing them down—but we now realized that we would have to do it on our own
and raise the money ourselves. Eva and I regrouped and decided to start again in Montgomery, the state capital. The project would eventually be named the Equal Justice Initiative (EJI).

I found a small building near downtown Montgomery, and in the summer of 1989 we signed a lease. The building was a good start: a rented two-story Greek Revival house built in 1882, near the historic district called “Old Alabama Town.” It was painted yellow and had a charming porch that made it feel open and welcoming—a nice contrast from the daunting courtrooms, institutional waiting rooms, and prison walls that defined so much of the lives of our clients’ family members. The office was cold in the winter, it was almost impossible to keep squirrels out of the attic, and there wasn’t enough electricity to run the copier and a coffeepot at the same time without blowing a fuse. But from the start it felt like a home and a place to work—and given the hours we would spend there, it was always a little of both.

Eva took on administrative duties for our new project, which were pretty challenging given that federal dollars came with all kinds of complex reporting and accounting requirements. Eva was fearless and smart, and she sorted everything out so that a few dollars could trickle in. We hired a receptionist and tried to figure out how to survive. I had worked on fund-raising for the Southern Prisoners Defense Committee almost as soon as I started there, so I had some experience asking for money to support our work. I was sure there would be a way to raise enough for the new Alabama office to meet the minimum federal matching requirements. We just needed some time—something, as it turned out, we wouldn’t get at all.

A flood of execution dates awaited us. Between the passage of Alabama’s new death penalty statute in 1975 and the end of 1988, there had been only three executions in Alabama. But in 1989, driven by a change in the Supreme Court’s treatment of death penalty appeals and shifts in the political winds, the attorney general’s office began vigorously seeking executions of condemned prisoners. By the end of 1989, the number of people executed by the State of Alabama would double.

Months before our center opened, I started visiting Alabama’s
death row every month, traveling from Atlanta to see a handful of new clients, including Walter McMillian. They were all grateful for the help, but as the spring of 1989 approached they all made the same request at the end of our meetings: Help Michael Lindsey. Lindsey’s execution was scheduled for May 1989. Later, they would ask me to help Horace Dunkins, whose execution date was scheduled for July 1989. I painfully explained the constraints on resources and time, telling them how frantic we were just trying to get the new office up and running. Although they said they understood, they were clearly anguished about getting legal assistance while other men faced looming executions.

Both Lindsey and Dunkins had volunteer lawyers who had reached out to me for help because they were overwhelmed. Lindsey’s lawyer, David Bagwell, was a respected civil attorney from Mobile; he had worked on the case of Wayne Ritter, who’d been executed a year earlier. That experience left Bagwell disillusioned and angry. He wrote a scathing letter published in the state bar association’s journal in which he vowed “never to take another death penalty case, even if they disbar me for my refusal” and urged other civil lawyers not to take death penalty cases. Bagwell’s public complaints made it hard for courts to appoint other civil lawyers for last-stage appeals in a death penalty case, not that they were particularly inclined to do so. But it had another effect as well. Prisoners got word of the letter and talked about it among themselves, especially about a chilling comment buried in Bagwell’s jeremiad: “I generally favor the death penalty because mad dogs ought to die.” The prisoners became even more distrustful of lawyers, even the ones who claimed they would help.

After further pleading by our other clients, we decided to do what we could for Michael Lindsey, whose execution date was fast approaching. We tried to make arguments about an interesting twist in that case: His jury had never decided that Michael Lindsey should be executed at all.

Lindsey received a sentence of life imprisonment without parole from his jury, but the judge had “overridden” it and imposed a death
sentence on his own. Death sentences resulting from “judge override” were an anomaly, even back in 1989. In almost every state, juries made the decision to impose the death penalty or life in prison without parole. If the jury imposed or rejected death, that was the final judgment. Only Florida and Alabama allowed the jury’s decision to be overridden by a judge—and Florida later put restrictions on the practice that severely curtailed it. It remains the law in Alabama, where judges almost exclusively use this power to turn life sentences into death sentences, although they’re also authorized to reduce death verdicts to life if they so choose. Since 1976, judges in Alabama have overridden jury sentencing verdicts in capital cases 111 times.
In 91 percent of these cases, judges replaced life verdicts from juries with death sentences.

The practice has been further complicated by the increasingly competitive nature of judicial elections in the state.
Alabama elects all of its judges in highly competitive partisan elections, one of only six states to do so (thirty-two states have some form of nonpartisan judicial election process). The elections attract campaign contributions from business interests seeking tort reform or from trial lawyers who want to protect large civil verdicts, but since most voters are unschooled in these areas, the campaigns invariably focus on crime and punishment. Each judge competes to be the toughest on crime. The people financing these elections are largely unconcerned with whatever modest differences exist between candidates on crime, but punishment gets the votes.
Judge overrides are an incredibly potent political tool. No judge wants to deal with attack ads that highlight the grisly details of a murder case in which the judge failed to impose the most severe punishment. Seen in that light,
it’s not surprising that judge overrides tend to increase in election years.

We wrote a letter to the governor of Alabama, Guy Hunt, asking him to stop the Lindsey execution on the grounds that the jury, empowered to pass judgment on him, had decided against putting him to death. Governor Hunt quickly denied our request for clemency, declaring that he would not “go against the wishes of the community
expressed by the jury that Mr. Lindsey be put to death,” even though we stressed that the community’s representatives—the jury—had done the opposite; it clearly elected to spare Lindsey’s life. It didn’t matter.
As peculiar as the practice is, the U.S. Supreme Court upheld judicial override in an earlier Florida case, which left us with no constitutional basis to block Michael Lindsey’s execution. He was electrocuted on May 26, 1989.