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.
Immediately after Lindsey, we were faced with Horace Dunkins’s execution date. Once again, we tried to help in whatever ways we could, even though time was quickly running out and there was little hope. Mr. Dunkins suffered from intellectual disabilities, and the trial judge found he had “mental retardation” based on his school records and earlier testing. Just a few months before his execution was scheduled, the Supreme Court upheld the practice of executing the “mentally retarded.” Thirteen years later, in Atkins v. Virginia, the Court recognized that executing people with intellectual disabilities is cruel and unusual punishment and banned the practice as unconstitutional. For many condemned and disabled people like Horace Dunkins, the ban came too late.
The Dunkins family called frequently, trying to figure out what could be done with only days to go before his execution, but there were very few options. When it became clear there was no way to stop the execution, the family turned their attention to what would happen to Mr. Dunkins’s body after his death. They seemed particularly concerned, for religious reasons, with preventing the state from performing an autopsy on their son’s body. The date of the execution arrived, and Horace Dunkins was killed in a botched execution that made national news. Correctional officials had plugged the electrodes into the chair incorrectly, so only a partial electrical charge was delivered to Mr. Dunkins’s body when the electric chair was activated. After several agonizing minutes, the chair was turned off but Mr. Dunkins was still alive, unconscious but breathing. Officials waited several more minutes “for the body to cool” before realizing that the electrodes had not been connected properly. They made alterations and electrocuted Mr. Dunkins again, and this time it worked. They killed him. Following this cruelly mishandled execution, the state performed an autopsy—against the family’s repeated requests.
I received a call from Mr. Dunkins’s distraught father after the execution. He said, “They could take his life, even though he didn’t get a fair trial and he didn’t deserve that, but they had no right to mess with his body and soul, too. We want to sue them.” We provided some aid to the volunteer lawyer on the case and a suit was filed, although there wasn’t much hope. There were a few depositions but no judgment of relief. The civil suit failed to slow down the State of Alabama, which moved ahead aggressively with more execution dates.
We relocated to our new office in Montgomery in the shadow of these two executions. The men on death row were more agitated and unnerved than ever. When Herbert Richardson received word in July that his execution was scheduled for August 18, he called me collect from death row: “Mr. Stevenson, this is Herbert Richardson, and I’ve just received notice that the state plans to execute me on August 18. I need your help. You can’t say no. I know you’re helping some of the guys and y’all are opening an office, so please help me.”
I replied, “I’m really sorry to hear about your execution date. It’s been a very tough summer. What does your volunteer lawyer say?” I was still working on the best way to talk to condemned people about how to respond to news of an execution date. I wanted to say something reassuring like, “Don’t worry,” but of course that would be a remarkable request to make of anyone—news of a scheduled execution was nothing if not unimaginably worrisome. “Sorry” didn’t seem quite right either, but it tended to be the best I could think of.
“I don’t have a volunteer lawyer, Mr. Stevenson. I don’t have anyone. My volunteer lawyer said he couldn’t do any more to help me over a year ago. I need your help.”
We still didn’t have computers or law books, and I didn’t have other lawyers on staff. I had hired a classmate of mine from Harvard Law School who agreed to join our staff and moved to Alabama from his home in Boston. I was thrilled to finally have some help. He had been in Montgomery for a few days when I had to leave town for a fund-raising trip. When I returned, he was gone. He left a note explaining that he didn’t realize how challenging it would be for him to live in Alabama. He hadn’t been there a week.
Trying to stop an execution would mean nonstop work eighteen hours a day for a month, desperately trying to get a stay order from a court. Only an all-out effort
would get it done, and it was still wildly improbable that we’d succeed in blocking the execution. When I could think of nothing to fill the silence, Richardson continued: “Mr. Stevenson, I have thirty days. Please say you’ll help me.”
I didn’t know what else to do but be truthful. “Mr. Richardson, I’m so sorry, but I don’t have books, staff, computers, or anything we need to take on new cases yet. I haven’t even hired lawyers. I’m trying to get things set up—”
“But I have an execution date. You have to represent me. What’s the point of all that other stuff if you’re not going to help people like me?” I could hear his breath growing ragged.
“They’re going to kill me,” he said.
“I know what you’re saying, and I’m trying to figure out how to help. We’re just so overextended—” I didn’t know what to say, and a long silence fell between us. I could hear him breathing heavily on the phone, and I could imagine how frustrated he must be. I was bracing myself for him to say something angry or bitter, steeling myself to absorb his understandable rage. But then the phone suddenly went silent. He’d hung up.
I was unnerved by the call for the rest of the day and couldn’t find sleep that night. I was haunted by my helpless bureaucratic demurrals in the face of his desperation and the silence of his response.
The next day he called again, to my relief.
“Mr. Stevenson, I’m sorry, but you have to represent me. I don’t need you to tell me that you can stop this execution; I don’t need you to say you can get a stay. But I have twenty-nine days left, and I don’t think I can make it if there is no hope at all. Just say you’ll do something and let me have some hope.”
It was impossible for me to say no, so I said yes.
“I’m not sure there is anything that we can do to block this, given where things are,” I told him somberly. “But we’ll try.”
“If you could do something, anything … well, I’d be very grateful.”
Herbert Richardson was a Vietnam War veteran whose nightmarish experiences in brutal conditions left him traumatized and scarred. He enlisted in the Army in 1964 at the age of eighteen, at a time when America was heavily involved in combat. He was assigned to the 11th Aviation Group, 1st Cavalry Division, and was sent to Camp Radcliff in An Khe, Vietnam. The camp was near Pleiku, an area known for extremely heavy fighting in the mid-1960s. Herbert endured perilous missions in which he saw friends get killed or seriously injured. On one mission, his entire platoon was killed in an ambush, and he was severely injured. He regained consciousness coated in the blood of his fellow soldiers; he was disoriented and unable to move. It didn’t take long before he experienced a complete mental breakdown. He attempted suicide after suffering severe headaches. Despite multiple referrals from commanding officers for psychiatric evaluation, he remained in combat for seven months before his “crying outbursts” and “uncommunicative withdrawal” resulted in an honorable discharge in December 1966. Not surprisingly, his trauma followed him home to Brooklyn, New York, where he had nightmares, suffered disabling headaches, and sometimes ran out of his house screaming “Incoming!” He married and had children, but his post-traumatic stress disorder continued to undermine his ability to manage his behavior. He ended up in a veterans hospital in New York City, where he had a slow, difficult recovery from severe head pain associated with his war injuries.
Herbert became one of thousands of combat veterans who end up in jail or prison after completing their military service. One of the country’s least-discussed postwar problems is how frequently combat veterans bring the traumas of war back with them and are incarcerated after returning to their communities. By the mid-1980s, nearly 20 percent of the people in jails and prisons in the United States had served in the military. While the rate declined in the 1990s as the shadows cast by the Vietnam War began to recede, it has picked up again as a result of the military conflicts in Iraq and Afghanistan.
Herbert’s care at the veterans hospital in New York City slowly allowed him to recover. He eventually met a nurse there, a woman from Dothan, Alabama, whose compassionate care made him feel comfortable and hopeful for the first time, perhaps, in his entire life. When she was around, he felt alive and believed things would be all right. She had saved his life. When she moved back home to Alabama, Herbert followed.
He tried to date her and even told her he wanted to marry her. At first she resisted because she knew that Herbert was still suffering the effects of his time in combat, but ultimately she gave in. They had a brief intimate relationship, and Herbert had never been happier. He became intensely protective of his girlfriend. But she began to see his desperate and relentless focus on her as something closer to obsessive need than love. She tried to end the relationship. After months of unsuccessfully trying to create distance from Herbert, she finally insisted that he stay away.
Instead, Herbert moved even closer to her home in Dothan, which elevated her anxieties. It got to the point where she refused to allow him to see her, talk to her, or get anywhere near her. Herbert was convinced that she was just confused and would eventually come back to him. He was deluded by obsession; his logic and reasoning became corrupted, irrational, and increasingly dangerous.
Herbert was not unintelligent—in fact, he was quite smart, with a particular aptitude for electronics and mechanics. And he had a big heart. But he was still recovering from the trauma of the war as well as some serious traumas that preceded his military experience. His mother had died when he was just three years old, and he had struggled with drugs and alcohol before he decided to enlist. The horrors of war had added a new level of distress to an already damaged psyche.
He came up with an idea to win back his girlfriend. He decided that if she felt threatened, she would come to him for protection. He concocted a tragically misguided plan: He would construct a small bomb and place it on her front porch. He would detonate the bomb and then run to her aid to save her and then they would live happily ever after. It was the kind of reckless use of explosives that wouldn’t have been sensible in a combat zone, much less in a poor black neighborhood in Dothan, Alabama. One morning, Herbert completed his assembly of the bomb and placed it on his former girlfriend’s porch. The woman’s niece and another little girl came out instead and saw the peculiar package.
The ten-year-old niece was drawn to the odd bag with a clock on it and picked up the device. She shook the clock to see if it would tick, which triggered a violent explosion. The child was killed instantly, and her twelve-year-old friend, who was standing next to her, was traumatized. Herbert knew both children. In this community, children were always roaming the streets looking for something to do. Herbert loved kids and would invite them into his yard, pay them to do errands, and talk to them. He started making cereal and cooking for the kids who would wander by. The two girls had come by his house for breakfast.
Herbert, watching the house from across the street, was devastated. He had planned to run to his girlfriend’s aid when the bomb exploded to reinforce his readiness to protect her and to keep her safe. When the child picked up the bomb and it detonated, Herbert ran across the street and found himself in a circle of grieving neighbors.
It didn’t take long for police to make an arrest. They found pipes and other bomb-making materials in Herbert’s car and front yard. Because the victims were black and poor, this wasn’t the kind of case that would usually be prosecuted as a capital crime, but Herbert wasn’t local. His identity as an outsider, a Northerner, and the nature of the crime seemed to generate heightened contempt from law enforcement officials. Placing a bomb anywhere in Dothan, even in a poor section of town, posed a different kind of threat than “typical” domestic violence. The prosecutor argued that Herbert was not just tragically misguided and reckless; he was evil. The State sought the death penalty. After striking all of the black prospective jurors in a county that is 28 percent black, the prosecutor told the all-white jury in his closing argument that a conviction was appropriate because Herbert was
“associated with Black Muslims from New York City” and deserved no mercy.
Alabama’s capital statute requires that any murder eligible for the death penalty be intentional, but it was clear that Herbert had no intent to kill the child. The State decided to invoke an unprecedented theory of “transferred intent” to make the crime eligible for the death penalty. But Herbert had no intention to kill anyone. Herbert was advised to deny any culpability but ultimately argued that this was reckless murder, not capital murder, which could be punished with life imprisonment but not the death penalty.
During the trial, the appointed defense lawyer presented no evidence about Herbert’s background, his military service, his trauma from the war, his relationship with the victim, his obsession with the girlfriend—nothing. Alabama’s statute at the time limited what court-appointed lawyers could be paid for their out-of-court preparation time to $1,000, so the lawyer spent almost no time on the case. The trial lasted just over a day, and the judge quickly condemned Herbert to death.
Following the imposition of the death sentence, Herbert’s appointed lawyer, who was later disbarred for poor performance in other cases, told Herbert that he didn’t see any reason to appeal the conviction or sentence because the trial had been as fair as he could expect. Herbert reminded him that he’d been sentenced to death. He wanted to appeal no matter how unlikely the prospects, but his lawyer filed no brief.
Herbert was confined on death row for eleven years, until it was his time to face “Yellow Mama.” A volunteer lawyer had challenged the intent questions in a desperate appeal but was unsuccessful. Herbert’s execution was now set for August 18, just three weeks away.
Just Mercy: A Story of Justice and Redemption Page 8