The whole thing made me incredibly sad. Our workload was increasing too quickly. I had just argued Joe Sullivan’s case at the U.S. Supreme Court, and I was anxiously awaiting that judgment. The Alabama Supreme Court had scheduled execution dates for several death row prisoners who had completed the appeals process. For years we’d been fearing what would happen when a sizable number of condemned prisoners exhausted their appeals. More than a dozen people were now vulnerable to execution dates, and we knew that it would be extremely difficult to block those executions given the current legal climate in Alabama, combined with the limits on federal court review in capital cases. I met with our staff, and we made the difficult decision to represent all of the people who were scheduled for execution and didn’t have counsel.
A few weeks later, I found myself deeply distressed. I was worried about the execution dates that were set for every other month in Alabama. I was worried about what the U.S. Supreme Court would do with all of the children condemned to die in prison, now that it had the issue to consider. I was worried about our funding and whether we had enough staff and resources to meet the demands of our expanding docket. I was worried about several clients who were struggling. When I got to the Montgomery nursing home to see Walter a week after he’d arrived there, I felt like I had been worrying all day.
Walter sat in a common room with older, heavily medicated people watching TV. It was jarring to see him sitting in a hospital gown among people so compromised and infirm. I stopped before I walked into the room and looked at him; he hadn’t seen me yet. He looked sleepy and unhappy slumped in a reclining chair, his head rested on his hand. He was staring in the general direction of the television, but it didn’t seem like he was watching the program. He wasn’t shaved, and something he’d eaten had crusted on his chin. There was a sadness in his eyes I had never seen before. Looking at him, I felt my heart sink; a part of me wanted to leave. A nurse saw me standing outside the room and asked if I was there to see someone. I told her I was, and she smiled sympathetically.
When the nurse escorted me into the room, I walked up to Walter and put my hand on his shoulder. He stirred and looked up, then gave me a broad smile.
“Hey, there he is!” He sounded cheerful, and suddenly he looked like himself. He started laughing and stood up. I gave him a hug. I was relieved; he hadn’t recognized some family members recently.
“How you doing?” I asked him while he leaned on me slightly.
“Well, you know, I’m doing okay.” We started walking to his room where we could talk privately.
“Are you feeling better?”
It was not a sensible question, but I was a little unnerved seeing Walter like this. He’d lost weight, and his gown wasn’t tied in the back, which he didn’t seem to notice. I stopped him.
“Wait, let me help you out.”
I tied the strings on his gown and we continued to his room. He moved slowly and cautiously, sliding his feet in his slippers across the floor as if he’d forgotten how to pick them up. He grabbed my arm a few feet down the hall and leaned on me as we slowly made our way.
“Well, I told them people I got plenty of cars, plenty of cars.” He spoke emphatically, with much more excitement than I’d heard from him in a while. “All different colors, shapes, and sizes. The man say, ‘Your cars don’t work.’ I told him my cars do work, too.” He looked at me. “You may have to talk to that man about my cars, okay?”
I nodded and thought of his field of metal. “You do have lots of cars—”
“I know!” He cut me off and started laughing. “See, I told them people, but they didn’t believe me. I told them.” He was smiling and chuckling now, but he looked confused and not himself. “Them people think I don’t know what I’m talking about, but I know exactly what I’m talking about.” He spoke defiantly. We reached his room, and he sat down on his bed while I pulled up a chair. He became still and quiet and suddenly looked very worried.
“Well, it looks like I’m back here,” he said with a heavy sigh. “They done put me back on death row.”
His voice was mournful.
“I tried, I tried, I tried, but they just won’t let me be.” He looked me in the eye. “Why they want to do somebody like they’re doing me is something I’ll never understand. Why are people like that? I mind my own business. I don’t hurt nobody. I try to do right, and no matter what I do, people come along, put me right back on death row … for nothing. Nothing. I ain’t done nothing to nobody. Nothing, nothing, nothing.”
He was becoming agitated so I put my hand on his arm.
“Hey, it’s okay,” I said as gently as I could. “It’s not as bad as it seems. I think—”
“You’re going to get me out, right? You’re going to get me off the row again?”
“Walter, this isn’t the row. You haven’t been feeling well, and so you’re here so you can get better. This is a hospital.”
“They’ve got me again, and you’ve got to help me.”
He was starting to panic, and I wasn’t sure what to do. Then he started crying. “Please get me out of here. Please? They’re going to execute me for no good reason, and I don’t want to die in no electric chair.” He was crying now with a forcefulness that alarmed me.
I moved to the bed next to him and put my arm around him. “It’s okay, it’s okay. Walter, it’s going to be all right. It’s going to be all right.”
He was trembling, and I got up so that he could lie down. He stopped crying as his head hit the pillow. I began talking to him softly about trying to make arrangements so he could stay at home and how we needed to find help, and that the problem was that it really wasn’t safe for him to be alone. I could see his eyes drooping as I spoke, and within a matter of minutes he was sound asleep. I’d been with him less than twenty minutes. I pulled his blankets up and watched him sleep.
In the hallway, I asked one of the nurses how he’d been doing.
“He’s really sweet,” she said. “We love having him here. He’s nice to the staff, very polite and gentle. Sometimes he gets upset and starts talking about prison and death row. We didn’t know what he was talking about, but one of the girls looked him up on the Internet, and that’s when we read what happened to him. Somebody said someone like that is not supposed to be here, but I told them that our job is to help anybody who needs help.”
“Well, the State acknowledged that he didn’t do anything wrong. He is innocent.”
The nurse looked at me sweetly. “I know, Mr. Stevenson, but a lot of people here think that once you go to prison, whether you belong there or not, you become a dangerous person, and they don’t want to have nothing to do with you.”
“Well, that’s a shame.” It was all I could muster.
I left the facility shaken and disturbed. My cell phone rang as soon as I stepped outside. The Alabama Supreme Court had just scheduled another death row prisoner’s execution. One of EJI’s best lawyers was now serving as our deputy director. Randy Susskind interned with us as a law student when he was at Georgetown University and became a staff attorney right out of law school. He proved to be an outstanding litigator and an extremely effective project manager. I called Randy and we discussed what we would do to block the execution, although we both knew that it was going to be difficult to obtain a stay at this stage. I told Randy about my visit with Walter and how painful it had been to see him. We were silent on the phone for a while, something that happens a lot when we talk.
The increasing rate of executions in Alabama went against the national trend. Media coverage of all the innocent people wrongly convicted had an effect on the death-sentencing rate in America, which began to decline in 1999. But the terrorist attacks in New York City on September 11, 2001, and threats of terrorism and global conflict seemed to disrupt the progress toward a repeal of capital punishment. But then a few years later, rates of execution and death sentencing were once again decreasing. By 2010, the number of annual executions fell to less than half the number in 1999.
Several states were seriously debating ending the death penalty. New Jersey, New York, Illinois, New Mexico, Connecticut, and Maryland all took capital punishment off the books. Even in Texas, where nearly 40 percent of the nearly 1,400 modern-era executions in the United States had taken place, the death-sentencing rate had dropped dramatically, and the pace of executions had finally slowed. Alabama’s death-sentencing rate had also dropped from the late 1990s, but it was still the highest in the country. By the end of 2009, Alabama had the nation’s highest execution rate per capita.
Every other month someone was facing execution, and we were scrambling to keep up. Jimmy Callahan, Danny Bradley, Max Payne, Jack Trawick, and Willie McNair were executed in 2009. We had actively tried to block these executions, mostly by arguing about the way the executions were being carried out. In 2004, I argued a case at the U.S. Supreme Court that raised questions about the constitutionality of certain methods of execution. States had largely abandoned execution by electrocution, gas chamber, firing squad, and hanging in favor of lethal injection. Viewed as more sterile and serene, lethal injection had become the most common method for the sanctioned killing of people in virtually every death state. But questions about the painlessness and efficacy of lethal injection were emerging.
In the case I argued before the Court, we challenged the constitutionality of Alabama’s protocols for lethal injection. David Nelson had very compromised veins. He was in his sixties and had been a drug addict earlier in his life, making access to his veins difficult. Members of the correctional staff were not able to insert an IV in his arm in order to carry out his execution without medical complications. The Hippocratic oath prevents doctors and medical personnel from participating in executions, so Alabama officials planned for untrained correctional staff to take a knife and make a two-inch incision in Mr. Nelson’s arm or groin so that they could find a vein in which to inject him with toxins and kill him. We argued that without anesthesia, the procedure would be needlessly painful and cruel.
The State of Alabama had argued that procedural rules barred Mr. Nelson from challenging the constitutionality of the protocol. The U.S. Supreme Court intervened. The legal question was whether condemned prisoners could file civil rights actions to challenge arguably unconstitutional methods of execution. Justice Sandra Day O’Connor was especially active during the oral argument, asking me lots of questions about the propriety of correctional staff engaging in medical procedures. The Court ruled unanimously in our favor, deciding that a condemned prisoner could challenge unconstitutional methods of execution by filing a civil rights case. David Nelson died of natural causes a year after we won relief.
Following the Nelson litigation, questions about the drug combination that most states used to carry out lethal injections arose. Many states were using drugs that had been banned for animal euthanasia because they caused a painful and torturous death. The drugs weren’t readily available in the United States, and so states had started importing them from European manufacturers. When the news spread that the drugs were being used in executions in the United States, European producers stopped making them available. The drugs became scarce, which prompted state correctional authorities to obtain them illegally, without complying with FDA rules that regulate the interstate sale and transfer of drugs. Drug raids of state correctional facilities were a bizarre consequence of this surreal drug dealing to carry out executions. The U.S. Supreme Court, in Baze v. Rees, later held that the execution protocols and drug combinations weren’t inherently unconstitutional. The executions would resume.
What that meant for Alabama death row prisoners and EJI staff was seventeen executions in thirty months. It happened at the same time that we were representing children sentenced to life without parole all over the country. I’d flown to South Dakota, Iowa, Michigan, Missouri, Arkansas, Virginia, Wisconsin, and California to argue cases on behalf of condemned children over the preceding months. The courts, procedures, and players were all different, and the travel was exhausting. We were still very actively litigating on behalf of condemned children in Mississippi, Georgia, North Carolina, Florida, and Louisiana—Southern states where we had litigated previously. And, of course, our Alabama docket had never been more jammed or demanding. In a two-week period, I had been in California visiting Antonio Nuñez at a remote prison in the middle of the state before arguing his case in an appellate court there, while also actively trying to win relief for Trina Garnett in Pennsylvania and Ian Manuel in Florida. I had visited Ian and Joe Sullivan in a Florida prison, and both of them were struggling. Prison officials weren’t allowing Joe to have regular access to his wheelchair, and he had fallen repeatedly and injured himself. Ian was still in isolation. Trina’s medical condition was worsening.
I was having an increasingly difficult time managing it all. At the same time, Walter’s authorized length of stay at the Montgomery facility was up, so we frantically made arrangements for him to move back home, where his sister would do the best she could to take care of him. It was a worrisome situation for him and his family, for all of us.
By the time Jimmy Dill was scheduled for execution in Alabama, the entire EJI staff was exhausted. The execution date couldn’t have come at a more difficult time. We had no prior involvement in Mr. Dill’s case, which meant getting up to speed in the thirty days before his scheduled execution. It was an unusual crime. Mr. Dill was accused of shooting someone during the course of a drug deal after an argument erupted. The shooting victim did not die; Mr. Dill was arrested and charged with aggravated assault. He was in jail for nine months awaiting trial while the victim was released from the hospital and was recovering fine. But after several months of caring for him at home, the victim’s wife apparently abandoned him and he became gravely ill. When he died, state prosecutors changed the charges against Mr. Dill from assault to capital murder.
Jimmy Dill suffered from an intellectual disability and had been sexually and physically abused throughout his childhood. He struggled with drug addiction until his arrest. He was appointed counsel who did very little to prepare the case for trial. Almost no investigation was done into the poor medical care the victim had received, care that constituted the actual cause of death. The state made a plea offer of twenty years, but it was never adequately communicated to Mr. Dill, so he went to trial, was convicted, and was sentenced to death. The appellate courts affirmed his conviction and sentence. He couldn’t find volunteer counsel for his postconviction appeals, so most of his legal claims were procedurally barred because he had missed the filing deadlines.
When we first looked at Mr. Dill’s case a few weeks before his scheduled execution, no court had reviewed critical issues about the reliability of his conviction and sentence. Capital murder requires an intent to kill, and there was a persuasive argument that there was no intent to kill in this case and that poor health care had caused the victim’s death. Most gunshot victims don’t die after nine months, and it was surprising that the state was seeking the death penalty in this case. And the U.S. Supreme Court had previously banned the execution of people with mental retardation, so Mr. Dill should have been shielded from the death penalty because of his intellectual disability, but no one had investigated or presented evidence in support of the claim.
Along with his other challenges, Mr. Dill had enormous difficulty speaking. He had a speech impediment that caused him to stutter badly. When he became excited or agitated, it got worse. Because he had not previously had a lawyer who would see him or speak to him, Mr. Dill saw our intervention as something of a miracle. I sent my young lawyers to meet with him regularly after we got involved, and Mr. Dill called me frequently.
We tried frantically to get the Courts to issue a stay based on the new issues we’d uncovered, to no avail. Courts are deeply resistant to reviewing claims once a condemned prisoner has completed the appeals process the first time. Even the claim of mental retardation was thwarted because no court would grant a hearing at such a late stage. Although I knew the odds w
ere against us, Mr. Dill’s severe disabilities had made me privately hopeful that maybe a judge would be concerned and at least let us present additional evidence. But every court told us, “Too late.”
On the day of the scheduled execution, I once again found myself talking to a man who was about to be strapped down and killed. I had asked Mr. Dill to call throughout the day because we were waiting to hear the outcome of our final stay request at the U.S. Supreme Court. Early in the day he had sounded anxious, but he kept insisting that things would work out, and he told me he wasn’t going to give up hope. He tried to express his gratitude for what we had done in the weeks leading up to his execution. He thanked me for sending staff down to visit him regularly. We had located family members with whom he had reconnected. We told him that we believed that he had been unfairly convicted and sentenced. Even though we hadn’t yet persuaded a court to stay his execution, our efforts seemed to help him cope. But then the Supreme Court denied our final request for a stay of execution, and there was nothing else to do. He would be executed in less than an hour, and I had to tell him that the Court would not grant him a stay. I felt overwhelmed.
We spoke on the phone shortly before he was taken into the execution chamber. Listening to him was hard. He was stuttering worse than usual and having great difficulty getting his words out. The imminent execution had unnerved him, but he was trying valiantly to express his gratitude for our efforts. I sat for a long time holding the phone while he strained to speak. It was heartbreaking. At one point, I remembered something I had completely forgotten until that moment.
When I was a boy, my mother took me to church. When I was about ten years old, I was outside of our church with my friends, one of whom had brought a visiting relative to the service. The visiting child was a shy, skinny boy about my height who was clinging to his cousin nervously. He didn’t say anything as the group of us chatted away. I asked him where he was from, and when this child tried to speak he stumbled horribly. He had a severe speech impediment and couldn’t get his mouth to cooperate. He couldn’t even say the name of the town where he lived. I had never seen someone stutter like that; I thought he must have been joking or playing around, so I laughed. My friend looked at me worriedly, but I didn’t stop laughing. Out of the corner of my eye, I saw my mother looking at me with an expression I’d never seen before. It was a mix of horror, anger, and shame, all focused on me. It stopped my laughing instantly. I’d always felt adored by my mom, so I was unnerved when she called me over.
Just Mercy: A Story of Justice and Redemption Page 30