He reached into his pocket to pull out a handkerchief to wipe the perspiration that had formed on his brow. I noticed for the first time that he had a Confederate flag tattooed on his arm.
“You know, I guess what I’m trying to say is that I think it’s good what you’re doing. I got so angry coming up that there were plenty of times when I really wanted to hurt somebody, just because I was angry. I made it to eighteen, joined the military, and you know, I’ve been okay. But sitting in that courtroom brought back memories, and I think I realized how I’m still kind of angry.”
I smiled. He continued: “That expert doctor you put up said that some of the damage that’s done to kids in these abusive homes is permanent; that kind of made me worry. You think that’s true?”
“Oh, I think we can always do better,” I told him. “The bad things that happen to us don’t define us. It’s just important sometimes that people understand where we’re coming from.”
We were both speaking softly to one another. Another officer walked by and stared at us. I went on: “You know, I really appreciate you saying to me what you just said. It means a lot, I really mean that. Sometimes I forget how we all need mitigation at some point.”
He looked at me and smiled. “You kept talking about mitigation in that court. I said to myself, ‘What the hell is wrong with him? Why does he keep talking about “mitigation” like that?’ When I got home I looked it up. I wasn’t sure what you meant at first, but now I do.”
I laughed. “Sometimes I get going in court, and I’m not sure I know what I’m saying, either.”
“Well, I think you done good, real good.” He looked me in the eye before he extended his hand. We shook hands and I started toward the door again. I was just about inside when he grabbed my arm again.
“Oh, wait. I’ve got to tell you something else. Listen, I did something I probably wasn’t supposed to do, but I want you to know about it. On the trip back down here after court on that last day—well, I know how Avery is, you know. Well anyway, I just want you to know that I took an exit off the interstate on the way back. And, well, I took him to a Wendy’s, and I bought him a chocolate milkshake.”
I stared at him incredulously, and he broke into a chuckle. Then he locked me inside the room. I was so stunned by what the officer said, I didn’t hear the other officer bring Avery into the room. When I realized Avery was already in the room, I turned and greeted him. When he didn’t say anything, I was a little alarmed.
“Are you okay?”
“Yes, sir, I’m fine. Are you okay?” he asked.
“Yes, Avery, I’m really doing well.” I waited for our ritual to begin. When he didn’t say anything, I figured I’d just play my part. “Look, I tried to bring you a chocolate milkshake, but they wouldn’t—”
Avery cut me off. “Oh, I got a milkshake. I’m okay now.”
As I began discussing the hearing, he grinned. We talked for an hour before I had to see another client. Avery never again asked me for a chocolate milkshake. We won a new trial for him and ultimately got him off death row and into a facility where he could receive mental health treatment. I never saw the officer again; someone told me he quit not long after that last time I saw him.
Chapter Eleven
I’ll Fly Away
It was the third bomb threat in two months. As we quickly cleared the office and waited for the police to arrive, the entire staff was nervous. We now had five attorneys, an investigator, and three administrative staff members. Law students had started arriving for short-term internships, which provided us with additional legal assistance and critically needed investigative help. But none of them had signed on for bomb threats. It was tempting to ignore them, but two years earlier an African American civil rights lawyer in Savannah, Georgia, named Robert “Robbie” Robinson was murdered when a bomb sent to his law office exploded. Around the same time, a federal appeals court judge, Robert Vance, was killed in Birmingham by a mail bomb. Days later a third bomb was sent to a civil rights office in Florida and a fourth to a courthouse in Atlanta. The bomber seemed to be attacking legal professionals connected to civil rights. We were warned that we could be targets, and for weeks we carefully hauled our mail packages to the federal courthouse for X-ray screenings before opening them. After that, bomb threats were no joke.
Everyone fled the building while we discussed the likelihood of an actual bombing. The caller had described our building precisely when making his threat. Sharon, our receptionist, had scolded the caller. She was a young mother of two small children and had grown up in a poor, rural white family. She spoke to people plainly and directly.
“Why are you doing this? You’re scaring us!”
She said the man had sounded middle-aged and Southern, but she couldn’t give any more of a description. “I’m doing you a favor,” he said threateningly. “I want y’all to stop doing what you’re doing. My first option is not to kill everybody, so you better get out of there now! Next time there won’t be a warning.”
It had been a month since the McMillian hearing. The first time the office was threatened the caller had made racist remarks about the need to teach us a lesson. Around the same time I got threatening calls at home. One typical caller said, “If you think we’re going to let you help that nigger get away with killing that girl, you’ve got another thing coming. You’re both going to be dead niggers!”
Although I was handling other cases, I was certain the calls were in response to the McMillian case. Leading up to the hearing, Michael and I had been followed several times while doing investigative work in Monroe County. A scary man had called me late one night to tell me that someone had offered him a lot of money to kill me, but he said he wasn’t going to do it because he respected what we did. I expressed my appreciation for his support and politely thanked him. It was hard to know how seriously to take any of it, but it was definitely unnerving.
After we cleared the building, the police went through the office with dogs. No bomb was found, and when the building didn’t blow up after an hour and a half, we all filed back inside. We had work to do.
A few days later, I received a different kind of bombshell, this time a call from the clerk’s office in Baldwin County. The clerk was calling to let me know that Judge Norton had ruled in the McMillian case—she needed my fax number to send me a copy of the ruling. I gave it to her and sat nervously by the fax machine. When only three sheets of paper came through the machine I was concerned.
The pages contained a tersely worded order from Judge Norton denying us relief. I was more disappointed than devastated. I had suspected that this would be Judge Norton’s response. For all his interest at the hearing, he had never seemed particularly engaged over the basic question of whether Walter was guilty or innocent. He was locked into a maintenance role: He was a custodian for the system who was unlikely to overturn the previous judgment, even if there was compelling evidence of innocence.
What was surprising, however, was how superficial, insubstantial, and uninterested the court’s two-and-a-half-page order read. The judge addressed only the testimony of Ralph Myers and none of the legal claims we’d presented or any of the testimonies of the other dozen-plus witnesses. In fact, there was no case law cited in the entire order:
Ralph Meyers took the stand before this Court, swore to tell the truth and proceeded to recant most, if not all, of the relevant portions of his testimony at trial. Clearly, Ralph Meyers has either perjured himself at trial or has perjured himself in front of this Court.
The following areas of concern were considered in reaching this decision: The demeanor of the witness; the opportunity of the witness to have knowledge of the facts which he testified to at trial; the rationale, as stated by the witness for his testimony at the first trial; the rationale, as stated by the defendant, for his recantation; the evidence of external pressures brought to bear on the witness prior to and after both trial and recantation; the actions of the witness that lend credence to his trial testimony
and the actions of the witness that lend credence to his recantation; evidence adduced at trial in contradiction of the witness’ testimony on details, and due to the nature of this case, any evidence from any source concerning the inability of the witness to have known the facts to which he testified to at trial.
Since the trial of this matter was conducted before the Honorable R. E. L. Key, Circuit Judge, Retired, this court did not have the opportunity to compare the demeanor of the witness during trial testimony and his recantation testimony.
A review of the other factors set out above does not provide conclusive evidence that the witness, Ralph Meyers, perjured himself at the original trial. There is ample evidence that pressure has been brought to bear on Ralph Meyers since his trial testimony which could tend to discredit his recantation. There is absolutely no evidence in the trial record or the recantation testimony that places Ralph Meyers somewhere other than the scene of the crime at the time it was committed.
This cause having been remanded to the Court for a determination of whether there is evidence to support the theory that Ralph Meyers perjured himself at the original trial and this court having determined that there is insufficient evidence to support that theory, it is therefore ORDERED, ADJUDGED and DECREED that the trial testimony of Ralph Myers is not found to have been perjured testimony.
Done this 19th day of May, 1992.
THOMAS B. NORTON, JR.
Circuit Judge
While Chapman had suggested that Myers must have been pressured to recant, the district attorney presented no actual evidence to support that claim, which made the judge’s ruling hard to understand. I had advised Walter and his family that we would likely need to go to an appellate court for any real chance of relief, despite how positive everyone thought the hearing had been.
I was optimistic about what our evidence might accomplish in the Alabama Court of Criminal Appeals. We were now regularly arguing cases in front of that court. Following my first McMillian argument, we had filed almost two dozen death penalty appeals, and the court was starting to respond to our advocacy. We had won four reversals in death penalty cases in 1990, four more in 1991, and by the end of 1992, we’d won relief for another eight death row prisoners. The court frequently complained about being forced to order new trials or grant relief, but nonetheless ruled in our favor. In a few years, some of the appellate court judges would be attacked and replaced in partisan judicial elections by candidates who complained about the court’s rulings in death penalty cases. But we persisted and continued raising reversible errors in capital cases. We were pushing the court to enforce the law in these cases, and when they refused, we were having success getting the Alabama Supreme Court and federal courts to grant relief.
Based on this recent experience, I thought we could win relief for McMillian on appeal. Even if the court was unwilling to rule that Walter was innocent and should be released, the withholding of exculpatory evidence was extreme enough that the court would have a hard time avoiding the case law requiring a new trial. Nothing could be assured, but I explained to Walter that we were only just now getting to a court where our claims would be seriously considered.
Michael had stayed long past the two years he had committed to us, but he was now scheduled to move to San Diego to start a job as a federal public defender. He agonized about leaving our office, although he was less conflicted about leaving Alabama.
I assigned one of our new attorneys, Bernard Harcourt, to replace Michael on Walter’s case. Bernard was a lot like Michael in that he was smart, determined, and extremely hardworking. He had first worked with me when he was a law student at Harvard Law School. He became so engaged in the work that he asked the federal judge he was clerking for after law school if he could cut short his two-year clerkship to join us in Alabama. The judge agreed, and Bernard arrived shortly before Michael left. Raised in New York City by French parents, he had attended the Lycée Français de New York in Manhattan, a high school that was unapologetic about its European perspective on education. After graduating from Princeton, Bernard worked in banking before pursuing his law degree. He had been preparing for a traditional legal career until he came down to work with us one summer and became fascinated by the issues that death penalty cases presented. He and his girlfriend, Mia, moved to Montgomery and were intrigued by life in Alabama. Bernard’s quick immersion in the McMillian case intensified his cultural adventure more than he could have ever imagined.
The community’s presence at the hearing got people talking about what we had presented in court, and that encouraged more people to come forward with helpful information. All sorts of people were contacting us with wide-ranging claims of corruption and misconduct. Only a few things here and there were useful to us in our efforts to free Walter, but all of it was interesting. Bernard and I continued to track leads and interview people who had insights to share about life in Monroe County.
The threats we received made me worry about the hostility that Walter would face if he was ever released. I wondered how safely he could live in the community if everyone was persuaded that he was a dangerous murderer. We began discussing the idea of reaching out to a few people who might help us publicly dramatize the injustice of Mr. McMillian’s wrongful conviction as a way of setting the stage for his possible release. If the public could only know what we knew, it might ease his re-entry into freedom. We wanted people to understand this simple fact: Walter did not commit that murder. His freedom wouldn’t be based on some tricky legal loophole or the exploitation of a technicality. It would be based on simple justice—he was an innocent man.
On the other hand, I didn’t think media attention would help win the case now pending in the Court of Criminal Appeals. In fact, the chief judge on the court, John Patterson, had famously sued The New York Times over their coverage of the Civil Rights Movement when he was Alabama’s governor. It was a common tactic used by Southern politicians during civil rights protests: Sue national media outlets for defamation if they provide sympathetic coverage of activists or if they characterize Southern politicians and law enforcement officers unfavorably. Southern state court judges and all-white juries were all too willing to rule in favor of “defamed” local officials, and state authorities had won millions of dollars in judgments this way. More important, the defamation lawsuits chilled sympathetic coverage of civil rights activism.
In 1960, The New York Times printed an advertisement titled “Heed Their Rising Voices” that attempted to raise money to defend Dr. Martin Luther King Jr. against perjury charges in Alabama. Southern officials responded by going on the offensive and suing the newspaper. Public Safety Commissioner L. B. Sullivan and Governor Patterson claimed defamation. A local jury awarded them half a million dollars, and the case was appealed to the U.S. Supreme Court.
In a landmark ruling, New York Times v. Sullivan changed the standard for defamation and libel by requiring plaintiffs to prove malice—that is, evidence of actual knowledge on the part of the publisher that a statement is false. The ruling marked a significant victory for freedom of the press, and it liberated media outlets and publishers to talk more honestly about civil rights protests and activism. But in the South it generated even more contempt for the national press, and that animosity has lingered beyond the Civil Rights Era. I had no doubt that national press coverage of Walter’s case would not help our cause at the Court of Criminal Appeals.
But I did think getting a more informed view of Walter’s conviction and the murder would make his life after release less dangerous—assuming we could ever get his conviction overturned. We felt that we had to take our chances and get the story out. I was concerned about the inability of people in the local community to get a fair picture of what was going on. Aside from the hostility we feared he would face if Walter was released, we were worried about what would happen if a new trial was ordered. All of the prejudicial media coverage would make a fair trial nearly impossible. The local press in Monroe County and Mobile had demonized Walt
er and had defiantly maintained that his conviction was reliable and his execution necessary.
Local papers had painted Walter as a dangerous drug dealer who had possibly murdered several innocent teenagers. Monroeville and Mobile newspapers freely printed assertions that Walter was a “drug kingpin,” a “sexual predator,” and a “gang leader.” When he was first arrested, local headlines emphasized the absurd sexual misconduct charges involving Ralph Myers. “McMillian Charged with Sodomy” was a common headline. In covering the hearings, the Monroe Journal focused on the danger Walter posed: “Those entering the courtroom had to pass through a metal detector, as has been the case throughout the court proceedings against McMillian, and officers were stationed throughout the courtroom.” Despite all of the evidence presented at our hearing showing that Walter had nothing to do with the Pittman murder, the local press invoked the case to scare up more fear about Walter. “Convicted Slayer Wanted in East Brewton Murder” was an early headline in the Brewton paper. “Ronda Wasn’t the Only Girl Killed” was the headline in the Mobile Press Register after our hearing. The Mobile paper reported after the hearing: “Myers and McMillian were part of a burglary, theft, forgery and drug smuggling ring that operated in several counties in South Alabama, according to law enforcement officers. McMillian was the leader of the operation.” From its focus on his pretrial placement on death row to the extra security surrounding his court appearances, the narrative in the press was clear: This man was extremely dangerous.
At this point, people seemed uninterested in the truth surrounding the crime. During the most recent hearing in Baldwin County, the State’s local supporters walked out of the courtroom rather than hear the evidence that supported Walter’s innocence. It was risky, but we hoped that national press coverage of our side of the story would change the narrative.
Just Mercy: A Story of Justice and Redemption Page 22