Garrett printed out the State’s order and changed the margins; I guess he thought that made it look better. But it appears word for word to be the State’s proposed order. I attach it even though I think we sent you the State’s order a couple of years ago. You may recall that we filed a lengthy response challenging the State’s proposed order, which I’m also resending in case you don’t have that anymore.
We will file a motion objecting to Garrett signing the State’s order just to preserve that issue for appeal. That will be filed next week. However, we won’t wait for a ruling on that. After ten days, a motion is deemed denied, so we’ll file the notice of appeal at that time and begin working on the appeal papers to file by the end of February.
We’ve called your family and Lester Bailey, and I’m sending stuff to our experts today, who I expect to be pretty outraged about this too. I’ll look to talk with you on Monday afternoon. Hang in there.
Sincerely,
Bryan
P.S. Jerline got the package you sent and absolutely loves it! Thank you for doing that.
Bryan was livid, but at some point, I just had to realize that the State would lie, cheat, steal, and stall to keep from admitting they were wrong about me. Evidence didn’t matter. Nothing seemed to matter. Bryan filed an appeal with the Alabama Court of Criminal Appeals. A hearing was scheduled, and Bryan had upped the ante involving Amnesty International, the local news, and the national news.
In August, they killed George Sibley. His last words were, “Everyone who is doing this to me is guilty of a murder.” I banged on the bars for him and said a prayer for his son. I wondered what it was like for that boy to have both his parents executed. It was too much for any person to carry.
In November of 2005, right before the hearing—prisoners were not allowed to attend appeal hearings at this level—a series of articles ran in The Birmingham News. I did an interview by telephone. The series of articles were about the death penalty, for and against. Bryan wrote the piece against, and as I read the article to the other guys on the row, I was proud to call him not only my attorney, but my friend.
The Birmingham News
Sunday, 11/7/05
THE DEBATE OVER DEATH
AGAINST
State’s justice system does not deserve to kill
by Bryan Stevenson
Last week, I spent two hours at Holman Correctional Facility with a condemned man who has been on Alabama’s Death Row for nearly 20 years.
Anthony Ray Hinton is innocent. He has never committed a violent crime. Hinton is generous, thoughtful and tries very, very hard to be cheerful. He helps guards and prisoners, he’s never had a disciplinary violation, and he sends handmade presents whenever he can save up enough money.
Although he has struggled for two decades to remain positive and hopeful, after you talk to him for a while you begin to see the profound sadness and unbearable grief emerge. He believes his wrongful conviction has contributed to his beloved mother’s death. He’s been tormented by more than 30 executions “just down the hall.” He’s been locked down in a tiny cell year after year after year. He cries a lot, and each day he struggles to control the pain and anguish of a continuing nightmare and an American tragedy.
Hinton was not sent to Death Row because he was in the wrong place at the wrong time. He was actually in the right place at the exact time of the crime, working as an unskilled laborer in a secure warehouse 15 miles away from where he was alleged to have shot someone. Hinton passed a polygraph test before trial, and he begged police to believe he is innocent. However, his life, freedom and rights were simply never taken seriously by anyone.
Hinton is on Death Row because he is poor. He is a victim of Alabama’s grossly under-funded indigent defense system. His appointed lawyer, like 70 percent of those still on Alabama’s Death Row, could by law only be paid $1,000 for preparing his capital case for trial. Hinton was given $500 for an expert to prove that a gun police found in his mother’s home was not the gun used to commit these crimes. With so little money, the only expert he could afford was legally blind in one eye and had no experience using the equipment necessary to test the evidence.
Like most Death Row prisoners, Hinton was presumed guilty before trial. Without money, political power or celebrity, he was a nameless black man imperiled by a system of justice that is shockingly tolerant of error, a system that treats you better if you are rich and guilty than if you’re poor and innocent.
Hinton is not the only innocent person who has been sent to Alabama’s Death Row. In 1993, the state ultimately admitted that Walter McMillian spent six years on Death Row for a crime he did not commit. Gary Drinkard, Louis Griffin, Randal Padgett, Wesley Quick, James Cochran and Charles Bufford were all acquitted of capital murder after being wrongly convicted and sentenced to death. With 34 executions and seven exonerations since 1975, one innocent person has been identified on Alabama’s Death Row for every five executions. It’s an astonishing rate of error.
What most defines capital punishment in Alabama is error. Reviewing courts have concluded nearly 150 Alabama capital murder convictions and death sentences have been illegally and unconstitutionally imposed. Reversals outnumber executions almost 5 to 1. While some states have seriously examined their death penalty systems and pursued reforms, Alabama leaders have recklessly called only for speeding up the execution process.
The U.S. Supreme Court has ruled that executing the mentally retarded is unconstitutional, but the Alabama Legislature has refused to enact laws enforcing this limitation. The Supreme Court has called for greater deference to jury verdicts, but Alabama persists as the only state in the nation that allows elected trial judges to override jury verdicts of life imprisonment to death with no restrictions or standards. Since 1990, nearly 25 percent of all Alabama death sentences have been imposed after jurors concluded that life without parole was the appropriate sentence.
I have represented people on Alabama’s Death Row for nearly 20 years. I know that not everyone on Death Row is innocent. I also know that Alabama’s death penalty is not about guilt and innocence. Anthony Ray Hinton can painfully tell you a lot about that.
Alabama’s death penalty is a lie. It is a perverse monument to inequality, to how some lives matter and others do not. It is a violent example of how we protect and value the rich and abandon and devalue the poor. It is a grim, disturbing shadow cast by the legacy of racial apartheid used to condemn the disfavored among us. It’s the symbol elected officials hold up to strengthen their tough-on-crime reputations while distracting us from the causes of violence. The death penalty is an enemy of grace, redemption and all who value life and recognize that each person is more than their worst act.
With so much fear, anger and violence, it’s easy to see the appeal of capital punishment. The pain of victims of violent crime is real.
However, the tragic number of innocent people wrongly condemned, the scores of illegal convictions and sentences, the unequal treatment of the poor and racial minorities have made capital punishment a question that is not about whether some people deserve to die for the crimes they’ve committed. Rather, the death penalty in Alabama is about whether state government, with its flawed, inaccurate, biased and error-plagued political system of justice, deserves to kill.
It’s time to acknowledge that it does not.1
I read the article again and again. Next to it in the paper was an opposing opinion piece—pro death penalty—by the attorney general, Troy King. His basic argument was an eye for an eye, and I understood that. I had grown up with that in church. Justice demanded a life for a life. Retribution. The perpetrator should not live while the victim has no choice. People on death row had earned their spots on death row, and justice cannot be consumed with protecting the rights of the guilty. But the system didn’t know who was guilty. I wasn’t blind. There is a moral difference between kidnapping and murdering a man, and imprisoning and executing a man. There is no moral equivalence, even when both things end in
death. But death has never deterred death. And we can’t be sure of guilt, save for an admission of guilt. A person could believe in the death penalty and still believe it should be ended, because men are fallible and the justice system is fallible.
Until we have a way of ensuring that innocent men are never executed—until we account for the racism in our courts, in our prisons, and in our sentencing—the death penalty should be abolished. Let Troy King spend a decade or two in prison under a sentence of death as an innocent man and see what kind of opinion he writes then. There was no humane way to execute any man. And regardless of any law, no one had the right to execute an innocent man. One line in particular in the pro article struck me: “To be sure, the death sentence must never be carried out in a way that allows the innocent to die.” There was an irony there. If he believed that, why was he refusing to objectively look at the evidence of my innocence? Bryan’s editorial was moving and impressive. Even the guards were reading pieces of it out loud. I didn’t know what was going to happen in appeals court, but I did know that I still had God’s best lawyer fighting for me.
On the day of the hearing, another article came out quoting both me and McGregor. He was still mad twenty years later that I’d stared him down in the courtroom, and he also threatened that if I was released, he’d be “standing right outside the gate with a .38 and it won’t be an old one.” I hoped that quote would help prove my case to the appeals court. Two decades later and he was still saying, on the record, he was going to get me one way or another. Bryan seemed hopeful after the oral arguments.
November 30, 2005
Anthony Ray Hinton, Z-468
Holman State Prison
Holman, 3700
Atmore, Alabama 36503
Dear Ray:
How are you, my friend? Last week, the State filed another pleading in your case following oral argument. It’s amazing that they now want to discuss the evidence in your case after saying for so many years everything is barred and defaulted. In any event, they have filed a motion to supplement their brief because I stressed the fact that the gun evidence exonerates you so much at oral argument, I think they are worried about that. I attach a copy of what they sent. We filed a response to their pleading yesterday, which is also enclosed with this letter.
I think it’s good that they now feel some need to address the merits of these issues. The letters to the newspaper following The Birmingham News articles have all been good. I’ll get copies of them to you as soon as we have them collected.
I’m really hoping that you’ve had your last Thanksgiving on death row. It’s always better to not get too optimistic when you are dealing with the Alabama justice system, but you deserve relief soon.
I’m going to try and get down before Christmas. The court issued a bunch of decisions in older cases last week, so we’ve been pretty busy. I hope you’re doing okay. All the best, my friend.
Sincerely,
Bryan Stevenson
I tried not to get too hopeful as we were waiting for the Court of Criminal Appeals. I kept as busy as possible and was grateful the guards let me spend much of the day in their break room. I would cook for them and counsel them on everything from money problems to marriage issues. There was a certain irony to the fact that they came to me for advice when I had spent over two decades locked in a cell and cut off from the outside world. I also helped deliver meals to the guys on the row. It was a way to say hi to each of them, to look in their eyes and see if I saw signs that they were heading to the dark place we all knew too well.
I was in service to others. It was what my mom wanted, and it got me through each day of each month until my visit with Lester.
At the end of June 2006, I got word to call Bryan. He told me the Alabama Court of Criminal Appeals had denied my appeal. We were now going to appeal to the Alabama Supreme Court. I went back to my cell and told the other guys. Jimmy seemed especially upset. The newspaper articles had established my innocence in a way that was more real than what I had been saying all these years. My freedom was a cause that everyone on the row wanted to fight for. No one doubted my innocence, and after Bryan’s article, I had told them all that when I got out, I was going to fight to end the death penalty. I had dreams where I spoke at colleges, in churches, around the country, and across the globe. I was going to be a voice like Bryan’s. I was going to tell my story so that this never happened to anyone else.
First I had to be set free.
And we were now going to another court, one that I had appealed to back in 1989. It was like my case was bouncing around inside a state pinball machine. Circuit Court. Appeals Court. Supreme Court and back again. Over and over. I wasn’t upset, though. I was ecstatic. The ruling in the Alabama Court of Criminal Appeals was 3–2. It was a ruling against me, but for the first time, two judges believed in my innocence.
Dissent was a beautiful thing.
And it was all I had.
21
THEY KILL YOU ON THURSDAYS
The degree of civilization in a society can be judged by entering its prisons.
—FYODOR DOSTOYEVSKY
We appealed to the Alabama Supreme Court, and they refused to rule until a determination was made as to whether Payne was a qualified expert. This took us back down the ladder through the Court of Criminal Appeals and then back to Jefferson County. Judge Garrett had retired completely now—and had let go of my case. I was hopeful that the new circuit court judge—Laura Petro—might be a bit more receptive to my case. It took until March of 2009 before Judge Petro ruled.
March 11, 2009
Anthony Ray Hinton, Z-468
Holman State Prison
Holman, 3700
Atmore, Alabama 36503
Dear Ray:
Well, unfortunately, Judge Petro did not help us. She wrote a very bizarre order which attempts to only address what she thinks Judge Garrett thought of Payne. She concludes that she thinks that Judge Garrett thought Payne was competent. We’ll interpret this as Petro being unwilling to independently find Payne competent. Very disappointing. Call me. I’ll be around all next week if you want to talk and we can discuss next steps. Because this order is so bizarre, it’s a better order than if she did what the court actually ordered which is to make independent findings about Payne’s competence. Anyway, I said I’d write unless there was good news so I wanted to get this in the mail to you right away. I’ll speak with you soon.
Hang in there.
Sincerely,
Bryan Stevenson
It was getting harder to hang in there. Jimmy Dill was scheduled to be executed in a month. Since the day we had hoped I would spend my last Thanksgiving on the row, I had watched thirty-seven men be put to death. Two had been put to death already in 2009. I had watched ten men die since Garrett had denied my Rule 32 petition. The mood on the row was solemn. There were no more bootleg book club discussions. We were all just trying to survive, and the younger guys who came in were angry and agitated in a way I had never seen before. They had no interest in discussing literature. And it only became tenser between the guards and the men on the row when an execution date was set. They didn’t practice turning on the generator, but they still practiced.
“We’d never kill you, Ray,” one guard used to say to me. “I’m just doing my job.”
“You volunteer for this, man. You volunteer to be on the Death Squad. I know it. You know it. All the guys know it.”
“I’m just doing my job.”
I knew that the guards would kill me if I got an execution date. They knew it too. There would be no way around it. I would imagine what would happen if they all just refused to kill. If they took a stand. How could they take us to the doctor, feed us, commiserate with us, and then lead us to our deaths? It messed with our minds after a while. These men were our family also. We were all in this dark, dank, tiny corner of the world acting out some perverse play where we laughed together six days of the week, but on Thursdays, they killed us.
My c
ase went back to the Court of Criminal Appeals, and they bounced it back down to Judge Petro again because, as Bryan had said, she didn’t rule on whether Payne was a qualified expert, only on what she thought Garrett had believed in 1986. In September 2010, she ruled that Payne was an expert because he “had acquired a knowledge of firearms identification beyond that of an ordinary witness.” That was like the court saying I was qualified as a heart surgeon because I’d had once had an EKG. We bounced back up to the appeals court, who affirmed the lower court, and sent us back up to the Alabama Supreme Court. They punted my case back down, saying the wrong standard had been applied when the court determined Payne was a qualified expert.
It was enough to make a man dizzy.
Bryan never gave up, and I could see how hard this was on him. He carried the world on his shoulders, and there were visits where I could see the strain and the stress in his eyes. I wasn’t his only case, and neither of us were getting any younger. I was tired, and I didn’t pray any longer for the truth to be known. The truth was known. Alabama knew I was innocent, but they would never admit it. They wouldn’t in 1986. They wouldn’t in 2002. They wouldn’t in 2005. And they weren’t going to in 2013.
Bryan had an arrangement that he would get a message to the prison when he needed to talk to me. Because there had been so much press, when there were rulings on my case, they ended up on the local news. Court rulings came in around 2:00 P.M. The news ran at 5:00 P.M. Bryan didn’t ever want me to find out about my case on the news first.
The Sun Does Shine Page 24