Law & Disorder

by Douglas, John

  Here’s how it went with Sedley Alley’s case, and it’s pretty routine for death penalty states.

  After a death sentence is imposed, there is an automatic appeal to the Tennessee Supreme Court, bypassing the court of criminal appeals under the reasonable logic that it would end up in the supreme court, anyway. By the time a trial transcript was prepared, new appeals attorneys had come on board and oral arguments had been made, it was two and a half years after the trial, and four since Suzanne’s murder. The state supreme court reviewed the full record and unanimously affirmed Alley’s conviction and sentence.

  Defendant’s guilt in this case was established at the level of absolute certainty, the written decision declared. Yet this was only the beginning.

  Art Quinn and Tim Holton, Alley’s new attorneys, appealed to the U.S. Supreme Court, which denied the request for certiorari, suggesting they saw nothing noteworthy or reversible in the case. The attorneys then hit the habeas corpus circuit.

  We’re not going to review the entire legal and political history of the habeas writ here. Let us only say that it is a noble and fundamental principle of our justice system that was designed as a procedural bulwark against unreasonable and illegal searches and seizures, unlawful imprisonment and other abuses of the system. What it was not meant to be was a second, third or fourth trial that could open up and overturn the findings and verdict of the original one. Yet, since the 1953 Supreme Court case of Brown v. Allen, that is just what it has evolved to become.

  I certainly don’t fault Quinn and Holton for taking advantage of every procedural nuance available to them—that was their job for their client—but the invocation of habeas corpus and its state court equivalent, “petition for postconviction relief,” effectively allowed them to throw everything at the wall in the hope that something would stick. And that is what they did.

  Alley filed a petition claiming his original trial lawyers were incompetent—a common ploy—even though Jones and Thompson were considered among the top capital murder defenders in the state. He claimed all sorts of procedural irregularities that kept him from getting a fair trial because the judge was biased. He even claimed he should get a new trial because Jack Collins had been allowed to get a cup of coffee from a pot in the judge’s antechamber. Not only does this type of claim clog up the courts, each one represents a significant delay in carrying out the sentence, adding cumulatively to the victims’ anguish.

  By the time the very fair and responsible Judge Axley had decided there was no merit to Alley’s petition, another year and a half had been eaten up.

  Jack Collins was so disturbed by the inherent abuses he saw in the habeas system that he returned to the law library for the first time since law school and began reading up. He offered to testify for congressional hearings, noting that no victim or survivor had ever been in that role. He came to the attention of the national victims’ rights organization, Citizens for Law and Order. He and Trudy became their Eastern Regional directors. They spoke to citizens’ groups and law enforcement organizations, and I met up with them again when they came to Quantico to speak to FBI Academy classes.

  At Attorney General Richard Thornburgh’s Crime Summit in Washington, DC, in March 1991, the meeting where Supreme Court justice Sandra Day O’Connor voiced the opinion that current habeas procedures represented a potentially endless round of appeals after normal safeguards had been observed and normal appeals exhausted, Jack spoke for all crime victims, stating, “Until we know that the punishment of those who savaged us—or our loved ones—is final, we cannot begin to put our lives back together.”

  Though no one identified it at the time, this was one of the opening salvos in what became known as the victims’ rights movement. It posited an extremely simple and basic premise that had hitherto been largely absent from criminal justice discussions: By virtue of the unwanted relationship the offender established when he committed the crime, victims and their families have a right to standing and a say in the disposition of his case.

  For example, if at sentencing, the defendant is allowed to introduce any mitigating fact or evidence he can think of, why shouldn’t the victim or her survivors be able to show what the crime has done to them? Out of this type of advocacy, the victim impact statement was born.

  The Collinses didn’t stop there. Jack testified before the U.S. Congress, giving them the victim’s perspective. They appeared on national television shows. As they had encouraged me to do at Vanderbilt, they described the hideous details of their daughter’s murder so that audiences would come to understand the kind of individual who would do such a thing. They pulled no punches. In their retirement years, they became militants.

  In recognition of their advocacy, Jack was asked by AG William Barr, who succeeded Thornburgh, to join the justice department as special assistant to the director of the Office for Victims of Crime. He accepted, and for two years he liaised with victims and victims’ organizations, advised on legislative initiatives, figured out ways to make the office more efficient and responsive, and tried to demonstrate that the government did care about victims and their families. Until he reached his goals, Jack considered his business unfinished.

  Meanwhile, Sedley Alley and his defense team were doing everything they could to keep that business unfinished. Having lost his petition for postconviction relief—that is, his claim that there were reversible irregularities in the trial—he appealed that turndown to the Tennessee Court of Criminal Appeals.

  That appeal and decision ate up another year and a half. In April 1994, the appeals court handed down a decision that Judge Axley should have recused himself because of an offhand comment he had made before a Rotary Club group that one way to reduce overcrowding in jails was to “just execute some of these people that are already in line for it.” So they ordered a new lower-court hearing with a new judge, and only after that would they rule on the merits of the claim itself. Another fourteen months went by.

  In that hearing, the issue of ineffective counsel was again raised, with the charge that the original lawyers should have brought in more medical evidence and testimony about Alley’s mental state. Since I was there, I can tell you there was plenty of testimony on that subject, as well as several pretrial delays for medical evaluations. Not only that, but in all the time since the trial, Alley had manifested no signs of multiple personality or again spoken of Billie or Death or any of the identities that supposedly cohabited inside his head.

  The stress level on Jack and Trudy had grown severe. They didn’t want to give up their advocacy, but they knew that if they didn’t remove themselves from the fray, at least to some extent, they would collapse. In 1994, they moved away from the Washington, DC, area and settled into a comfortable house in a smaller community near the Atlantic coast.

  The following year, the Tennessee Court of Criminal Appeals in Jackson ruled there was no basis for a claim of ineffective counsel or any other material defect. These findings of proper jurisprudence and jury verdict, and no indication of any exculpatory evidence, were repeated over and over again throughout the protracted appeals process. By this point, the court record ran to fifty volumes, taking up ten linear feet of shelf space.

  That same year, largely through the work of the Collinses and people and groups like them, Congress passed and President Bill Clinton signed Public Law 104-132, the Anti-Terrorism and Effective Death Penalty Act, part of which was aimed at preventing the endless recycling of habeas corpus petitions. The act set up a process of judicial review before a petition could be heard by a federal district court. It wasn’t a full solution to the problem, but it certainly was a start.

  Suzanne had now been dead for almost eleven years. At no time had Alley denied the killing, expressed any remorse, or reached out to the Collins family in any way. In 2002, Alley went back to the Federal District Court for the Western District of Tennessee for federal habeas corpus relief. He was turned down and appealed to the Sixth Circuit Court of Appeals in Cincinnati, which covers
Kentucky, Michigan, Ohio and Tennessee. Another complete review of the case, and another turndown. Every finding of fact and law had been consistent.

  You might have thought this would have ended it and let the state get on with its business. The district attorney filed a motion with the state supreme court requesting a new execution date; it was at least the third by my count. On January 16, 2004, the court granted the motion and set the execution date for June 3.

  At that point, Alley’s tactics changed. He no longer claimed he was not guilty by reason of insanity. Now he was just plain not guilty. He recanted his confession and all of the details he had provided investigators and said he hadn’t done it; he hadn’t killed Suzanne Collins. He offered no substantiation, alibi or corroborating detail. He just said he wasn’t there; and if the physical evidence was tested, his DNA would not be found and he would be vindicated.

  On May 4, less than a month before his latest date with lethal injection, he petitioned the Shelby County Criminal Court, which heard the case and produced a twenty-three-page order denying his motion. The order stated: [The] petitioner has failed to demonstrate that a reasonable probability exists that . . . he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis of the requested samples, and [The] petitioner has failed to demonstrate that a reasonable probability exists that analysis of said evidence will produce DNA results which would have rendered the petitioner’s verdict or sentence more favorable if the results had been available at the proceeding leading to the judgment of conviction.

  In other words, the court was saying, had testing turned up Sedley Alley’s DNA, it would have confirmed the verdict, but an absence of his DNA would not have negated or altered the verdict, since there was no testimony or evidence that Alley had penetrated Suzanne Collins with his penis or masturbated on or near her, or that she had been able to inflict any wounds that would have caused him to bleed. His conviction was based on a large amount of evidence, but none of it was related to DNA findings. This was definitely a sexual crime, but not one involving the exchange of bodily fluids.

  He appealed once again to the Tennessee Court of Criminal Appeals. In another lengthy ruling, the three-judge panel reviewed every point of the trial and claim in the case. In a masterfully written unanimous denial of the appeal, Judge David G. Hayes responded, one by one, to Alley’s arguments on why various sites of possible DNA evidence were irrelevant to the verdict or findings of actual innocence. For example, the court reasoned, a medium brown body hair found in the waistband of Suzanne’s shorts did not convict him and would not have exonerated him, had it been shown to belong to someone other than Alley. They pointed out that Suzanne lived in a public barracks, where there were numerous opportunities for hair and fibers to be picked up in her commonly laundered clothing.

  Moreover, the opinion stated, since her bloody hair and blood type were found on and in Alley’s vehicle, [it was] not reasonable to conclude that, even if the DNA of the samples revealed semen from another individual present on the victim (and there is no evidence that it would), the State would not have sought prosecution or the jury would not have convicted.

  Finally the court expressed serious questions as to whether Alley had requested this hearing to establish actual innocence rather than merely to delay execution, which is specifically prohibited in the statute (though I suspect, as Hamlet would say, “more honored in the breach than the observance”).

  But then the execution order was stayed once again when the federal district court filed a procedural motion. While waiting for its disposition, on March 28, 2005, the U.S. Supreme Court refused to hear Alley’s case without comment.

  This was where matters stood in January 2006, when I made my presentation at Vanderbilt. One of the reasons I was so forceful in my disgust with the system was that although Tennessee had about a hundred individuals on death row, they had carried out only one execution since 1960—that of a child rapist and killer in 2000. Was capital punishment just on the books for some sort of symbolic value?

  Word got back to the Collinses about the lecture and I got a call from Jack. “Do you know who was in the audience at your talk?” Jack asked.

  “No, who?” I responded.

  “Andrea Conte, Governor Bredesen’s wife.” Now, that was interesting, because not only was Ms. Conte the first lady of Tennessee, she was also a registered nurse, who also had an M.B.A., and was a hero of the victims’ movement.

  In December 1988, she was walking across a parking lot in Nashville when she was abducted by a man in a car. She fought him courageously and fiercely, and though she was hurt, she managed to jump out of his car as he drove. He was caught and identified the next year after murdering a woman in a Nashville park. In reaction to her experience, she founded the nonprofit organization You Have the Power to advocate for victims’ rights and help them through the criminal justice system. In 2004, she walked more than six hundred miles across Tennessee to publicize and raise money for child advocacy facilities. She spoke frequently about victim issues, not only in her state, but also across the nation.

  This was someone who would be able to break away from abstract statistics and procedure and understand the feelings and experiences of real people.

  “It would be great if you could write her a letter,” Jack said.

  I didn’t know how much influence she exerted with her husband or whether it would accomplish anything, but it sounded like a good idea. In a letter addressed to her at the state capital, dated February 1, 2006, I wrote:

  Dear Mrs. Bredesen:

  I heard that you were in the audience last Thursday evening at Vanderbilt University when I gave a presentation on the death penalty. I’m so sorry I didn’t have the chance to meet you and chat with you. I heard some great things about you and your deep concern for crime victims. I understand you were a victim of criminal abduction several years ago and but for your own initiative and courage might well have become a murder statistic. Thank God that was not the case!

  As you may remember from my presentation, one of the most horrific cases I have ever been personally involved in was the 1985 rape/torture/murder of Suzanne Collins, a 19-year-old Marine stationed at the Naval Air Base in Millington, just north of Memphis. Even though her killer, Sedley Alley, was convicted of first-degree murder/abduction/rape and sentenced to death in 1987, his appeals are still ongoing with no end in sight. In my opinion, this flagrant abuse of the appellate process is truly an obscenity.

  The impact of Suzanne’s murder on her parents and brother these past twenty years beggars description. As painful as her loss is to them, however, the failure of the judicial system to deliver final justice has had a dreadful multiplier effect on their sorrow. As a crime victim yourself, you have a unique basis for understanding how they must feel.

  I don’t know what, if anything, you can do about this situation. However, as a caring and concerned victim advocate and as a Tennessean, you should know the strength of my own feelings on this case, both professional and personally. It is one of the worst of the very worst that I have ever dealt with.

  Thank you for your courtesy in hearing me out.

  Sincerely,

  John E. Douglas

  Two months later, on March 29, 2006—another year and a day after the U.S. Supreme Court turndown and now more than twenty years since the murder—the district court rejected Alley’s procedural motion and the Tennessee Supreme Court set a new execution date of May 17.

  In all the years since the trial, Sedley Alley had not been able to convince a single juror or jurist that he was not guilty or that there might have been the remotest reason to believe he was. But that didn’t stop him. On April 11, thirty-six days before the once-again rescheduled execution, Alley went back to the federal district court with a new complaint.

  Tennessee’s lethal injection protocol, it seemed, might cause pain and distress and therefore violated his Eighth Amendment rights. The court stayed the execution unt
il they could consider this.

  Now, I am against cruel and unusual punishment, but lethal injection is the result of an ongoing search for ever-more “humane” methods of execution. Observation of the process suggests only a quick and peaceful end. But since the subject is no longer around to report on the experience after the fact, we don’t know for sure how much pain and suffering it actually causes. I do know one thing: It causes infinitely less pain and suffering than being beaten viciously over your entire body, having your face and head pummeled until they are unrecognizable, and then having a thirty-one-inch tree branch shoved forcibly into and past your vagina four times.

  The Sixth Circuit Court of Appeals must have had some sympathy for this point of view when they vacated the stay on May 12. The execution was on again for May 17. After all those years, it looked like the day of reckoning would finally come.

  But then Alley’s lawyers went before the Tennessee Board of Probation and Parole, asking for another stay so they could go back to the trial court and ask to have other items tested that were not included in his 2004 request! These included skin cells from the underpants found near Suzanne’s body that were presumed to belong to her attacker, any cells or tissue found on the end of the tree branch and any material from underneath Suzanne’s fingernails.

  This time around the team was bolstered by a legal big shot. Barry Scheck achieved national prominence in 1995 as one of the lawyers on the team that successfully defended O.J. Simpson from the charge of first-degree murder in the deaths of his ex-wife Nicole Brown and her friend Ron Goldman. After that verdict, I had worked with attorney Daniel Petrocelli in the Goldman family’s successful wrongful death civil suit against Simpson. So here was one more case in which Scheck and I had radically different views.