Chapter Four

The Old Rugged Cross

In February 1989, Eva Ansley and I opened our new nonprofit law center in Tuscaloosa, dedicated to providing free, quality legal services to condemned men and women on death row in Alabama. We never thought it would be easy, but it turned out to be even harder than we had expected.

In the first few months of operation our first director resigned, the University of Alabama School of Law where we had set up the office withdrew their support and promise of office space, and we discovered just how hard it was to find lawyers to come to Alabama and do full-time death penalty work for less than $25, 000 a year.

Obstacles were multiplying rapidly. We were denied funding from the state legislature, which we needed to get federal matching dollars. After several disheartening meetings with our board, it had become clear that we had no support in the state for the project. State bar leaders were committed to seeing our operation succeed—some because they felt it was unacceptable that condemned prisoners could not obtain legal assistance, others because they wanted more executions at a faster pace and felt that the absence of counsel was slowing them down—but we now realized that we would have to do it on our own and raise the money ourselves. Eva and I regrouped and decided to start again in Montgomery, the state capital. The project would eventually be named the Equal Justice Initiative (EJI).

I found a small building near downtown Montgomery, and in the summer of 1989 we signed a lease. The building was a good start: a rented two-story Greek Revival house built in 1882, near the historic district called “Old Alabama Town. ” It was painted yellow and had a charming porch that made it feel open and welcoming—a nice contrast from the daunting courtrooms, institutional waiting rooms, and prison walls that defined so much of the lives of our clients’ family members. The office was cold in the winter, it was almost impossible to keep squirrels out of the attic, and there wasn’t enough electricity to run the copier and a coffeepot at the same time without blowing a fuse. But from the start it felt like a home and a place to work—and given the hours we would spend there, it was always a little of both.

Eva took on administrative duties for our new project, which were pretty challenging given that federal dollars came with all kinds of complex reporting and accounting requirements. Eva was fearless and smart, and she sorted everything out so that a few dollars could trickle in. We hired a receptionist and tried to figure out how to survive. I had worked on fund-raising for the Southern Prisoners Defense Committee almost as soon as I started there, so I had some experience asking for money to support our work. I was sure there would be a way to raise enough for the new Alabama office to meet the minimum federal matching requirements. We just needed some time—something, as it turned out, we wouldn’t get at all.

A flood of execution dates awaited us. Between the passage of Alabama’s new death penalty statute in 1975 and the end of 1988, there had been only three executions in Alabama. But in 1989, driven by a change in the Supreme Court’s treatment of death penalty appeals and shifts in the political winds, the attorney general’s office began vigorously seeking executions of condemned prisoners. By the end of 1989, the number of people executed by the State of Alabama would double.

Months before our center opened, I started visiting Alabama’s death row every month, traveling from Atlanta to see a handful of new clients, including Walter McMillian. They were all grateful for the help, but as the spring of 1989 approached they all made the same request at the end of our meetings: Help Michael Lindsey. Lindsey’s execution was scheduled for May 1989. Later, they would ask me to help Horace Dunkins, whose execution date was scheduled for July 1989. I painfully explained the constraints on resources and time, telling them how frantic we were just trying to get the new office up and running. Although they said they understood, they were clearly anguished about getting legal assistance while other men faced looming executions.

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.

After my call with Herbert, I filed a flurry of stay motions in various courts. I knew the odds were low that we would block the execution. By the late 1980s, the U. S. Supreme Court had grown impatient with challenges to capital punishment. The Court had justified reauthorization of the death penalty in the mid-1970s on the promise that proceedings would be subject to heightened scrutiny and meticulous compliance with the law but then began to retreat from the existing review procedures. The Court’s rulings had become increasingly hostile to death row prisoners and less committed to the notion that “death is different, ” requiring more careful review.

The Court decided to bar claims from federal habeas corpus review if they weren’t initially presented to state courts. Federal courts were then forbidden to consider new evidence unless it was first presented to state courts. The Court began insisting that federal judges defer more to state court rulings, which tended to be more indulgent of errors and defects in capital proceedings.

In the 1980s, the Court rejected a constitutional challenge to imposing the death penalty on juveniles; upheld the death penalty for disabled people suffering from “mental retardation”; and, in a widely condemned opinion, found no constitutional violation in the extreme racial disparities that could be seen throughout most death penalty jurisdictions.

By the end of the decade, some justices had become openly critical of the review that death penalty cases received. Chief Justice William Rehnquist urged restrictions on death penalty appeals and the endless efforts of lawyers to stop executions. “Let’s get on with it, ” he famously declared at a bar association event in 1988. Finality, not fairness, had become the new priority in death penalty jurisprudence.

Two weeks after my first conversation with Herbert Richardson, I was frantically trying to get a stay of execution. Even though it was very late in the process, I was hoping that we might win a stay when I saw some of the compelling issues in Herbert’s case. While his guilt wasn’t really in question, there were persuasive reasons why this case should not have been a capital murder case, above and beyond the absence of a specific intent to kill. And even if you disregard that part of it, there was strong evidence that the death penalty should not be imposed because of Herbert’s trauma, military service, and childhood difficulties. None of this compelling mitigating evidence was presented at trial, and it should have been. The death penalty can be imposed fairly only after carefully considering all the reasons why death might not be the appropriate sentence, and that didn’t happen in Herbert’s case. I was increasingly becoming convinced that Herbert was facing execution because he had been an easy target. He was unaided and easily condemned by a system that was inattentive to the precise legal requirements of capital punishment. I was deeply distressed that, had he gotten the right help at the right time, Herbert would not be on death row with an execution date in less than two weeks.

I asked several courts to stay Herbert’s execution because of his ineffective lawyer, racial bias during the trial, the inflammatory comments made by the prosecutor, and the lack of mitigation evidence presented. Each court said, “Too late. ” We got a hastily scheduled hearing in the trial court in Dothan, where I tried to present evidence that the bomb Herbert had constructed was designed to go off at a certain time. I found an expert to testify that the bomb was a timed device and not intended to kill on contact. I knew that the court would probably conclude that this evidence should have been presented at trial or in prior proceedings, but I hoped that the judge could be persuaded.

Herbert was in court with me, and we both immediately recognized the lack of interest on the judge’s face. This heightened Herbert’s anxiety. He began a whispered dialogue with me, imploring me to get the testifying expert to say things about his intent that were really outside the expert’s knowledge. He became contentious and started making comments that were audible to the judge. Meanwhile, the judge kept stressing that the evidence wasn’t newly discovered and should have been presented at trial, so it couldn’t create a basis for a stay of execution. I asked for a brief recess to try and calm Herbert down.

“He’s not saying what I need him to say! ”

His breathing was panicked. He held his head and told me he had a severe headache. “I didn’t intend to kill anybody and he has to explain that! ” he cried.

I tried to comfort him. “Mr. Richardson, we’ve covered this. The expert isn’t allowed to speak to your mental state. He’s testified that the bomb was designed to be detonated, but he can’t really explain your motivations—the Court won’t permit that, and he really can’t speak to that. ”

“They’re not even paying attention to what he’s saying, ” he said sadly, rubbing his temples.

“I know, but remember, this is just the first step. We didn’t expect much from this judge, but this will help us on appeal. I know this is frustrating for you. ” He looked at me worriedly before sighing in resignation. He sat glumly through the rest of the hearing, holding his head, which I found even more disheartening than when he was argumentative and distraught.

Because I hadn’t hired any lawyers yet, I didn’t have co-counsel to sit with me and help manage documents or help with the defendant during the hearing. At the end of the proceeding, Herbert was shackled and sent back to death row, vexed, disappointed, and unhappy. I wasn’t feeling much better as I packed up my things and headed out of the courtroom. It would have been nice to debrief with someone, to evaluate whether what was presented might provide a basis for a stay. I had no expectation that the local judge would grant a stay, but I was hopeful that maybe a reviewing court would recognize that this wasn’t an intentional killing and that a stay should be granted. So much was going on that I couldn’t objectively evaluate if we had presented enough evidence to change the picture of the case. I mostly felt bad that I’d left Herbert in such a distraught state.

On my way out, I saw a group of black women and children huddled together in the back of the courtroom. Seven or eight of them were watching me intensely. The hearing had been set in the late afternoon when there were no other proceedings scheduled. I was curious about who these people might be, but honestly, I was too tired to really care. I smiled and nodded a weary greeting to the three women who seemed most focused on me, which they took as a cue to approach me as I was about to walk out the door.

The woman who spoke seemed nervous and somewhat fearful. She spoke hesitantly: “I’m Rena Mae’s mother—the victim’s mother. They said they would help us, but they never did. MaryLynn can’t hear right, her hearing ain’t never been right since that bomb, and her sister has nerve problems. I got ’em, too. We were hoping you would help us. ”

The stunned look on my face prompted her to say more. “I know you’re busy. It’s just that we could use the help. ” I realized that she’d cautiously offered her hand to me as she spoke, and I held it in mine.

“I’m so very sorry you haven’t received the help you’ve been promised. But I actually represent Herbert Richardson in this case, ” I said as gently as I could.

“We know that. I know you might not be able to do anything right now, but when this is over, can you help us? They said we’d get some money for medical help and help for my daughter’s hearing. ”

A young woman had quietly approached the woman as she spoke to me and embraced her. While she was probably in her early twenties, she acted in every other respect like a very small child. She leaned her head into her mother’s side like a much younger child would and looked at me sadly. Another woman approached and spoke somewhat defiantly. “I’m her auntie, ” she said. “We don’t believe in killin’ people. ”

I wasn’t exactly sure what she was trying to say, but I looked at her and replied, “Yes, I don’t believe in killing people, either. ”

The aunt seemed to relax a little. “All this grievin’ is hard. We can’t cheer for that man you trying to help but don’t want to have to grieve for him, too. There shouldn’t be no more killing behind this. ”

“I don’t know what I can do to help you all but I do want to help. Please contact me after August 18, and I’ll see what I can find out. ”

The aunt then asked me if she could have her son write to me because he was in prison and needed a lawyer. She sighed with relief when I gave her my card. As we all left the courthouse, we offered each other solemn goodbyes.

“We’ll pray for you, ” the aunt said as they departed.

On the way to my car, I considered asking them to say something to the prosecutor and state lawyers about not wanting Mr. Richardson to be executed, although it was clear that the State wasn’t acting on behalf of these victims. The courtroom had been filled with state lawyers and other officials watching the hearing, but they had long since fled the courthouse without so much as a word to any of the battered souls standing in the back of the room. I was haunted by the tragic irony that they felt I was their best hope for help.

The trial judge had denied our request for a stay of execution by the time I got back to Montgomery. He ruled our evidence was “untimely, ” meaning that he could not consider it. With less than a week before the execution, the next few days involved one frantic filing after the next. Finally, on the day before the execution, I filed a petition for review and a motion for a stay of execution in the U. S. Supreme Court. Even in death penalty cases, the Court grants review only in a small percentage of the cases filed. A petition for certiorari, a request to review a lower court’s ruling, is very rarely granted, but I’d known all along that the Supreme Court was our best chance for a stay of execution. Even when lower courts granted a stay, the State would appeal, so the Supreme Court would almost always make the final decision to permit an execution to proceed or not.

The execution was scheduled for 12: 01 A. M. on August 18. I had finally finished the petition and faxed it to the Court late on the night of August 16 and had spent the next morning in my Montgomery office, waiting anxiously for the Court’s decision. I tried to busy myself by reading files in other cases, including Walter McMillian’s. I didn’t expect we’d hear from the Court until the afternoon, but that didn’t keep me from staring at the phone all morning. Whenever the phone rang, my pulse quickened. Eva and Doris, our receptionist, knew that I was anxiously awaiting the call. We had submitted an extensive clemency petition to the governor with affidavits from family members and color photographs, but I didn’t expect anything in response. The petition detailed Herbert’s military service and explained why military veterans suffering from post-traumatic stress disorder are worthy of compassion.

I wasn’t very hopeful. Michael Lindsey had received a life verdict from the jury and was executed instead; Horace Dunkins was intellectually disabled, and the governor had not spared him, either. Herbert would likely be seen as even less sympathetic.

I spoke with Herbert regularly during the day by phone to let him know there was no news. I couldn’t rely on the prison to get a message to him if the Court ruled, so I asked him to call me every two hours. Whatever the news, I wanted him to hear it from someone who cared about him.

Herbert had met a woman from Mobile with whom he had corresponded over the years. They had decided to get married a week before the execution. Herbert had no money, nothing to offer her if he was executed. But he was a military veteran, so his survivors were entitled to receive an American flag upon his death. He designated his new wife as the person to whom the flag should be presented. In the days leading up to the execution, it seemed that Herbert was more concerned about his flag than his impending execution. He kept asking me to check with the government about how his flag would be delivered and urging me to get a commitment in writing.

His new wife’s family had agreed to spend the last few hours with Herbert before the execution. The prison allowed family members to stay until about 10: 00 P. M., when they would begin to prepare the condemned for execution. I was still in my office waiting to receive word from the Supreme Court. When the clock passed 5: 00 P. M. without any news, I allowed myself to become cautiously hopeful. If the Court wasn’t troubled by anything we’d presented, I expected an earlier ruling on our motion for a stay. So the later it got, the more encouraged I became. At 6: 00 P. M. I was pacing in my small office, nervously running through the possibilities of what the Court might be debating so close to the execution hour. Eva and our new investigator, Brenda Lewis, waited with me. Finally, a little before 7: 00 P. M., the phone rang. The clerk of the Court was on the line.

“Mr. Stevenson, I’m calling to let you know that the Court has just entered an order in Case No. 89-5395; the motion for a stay of execution and petition for writ of certiorari have been denied. We’ll fax copies of the order to your office shortly. ”

And with that, the conversation ended. When I hung up, all I could think was, why would I need a copy of the order? To whom did the clerk think I would show it? In a matter of hours, Herbert would be dead. There would be no more appeals, no more records to keep. I’m not sure why I was struck by these peculiar details. Maybe thinking about the procedural absurdities of the Court’s order was less overwhelming than thinking about its meaning. I had promised Herbert I would be with him during the execution, and it took me a few minutes to realize I needed to move quickly to get to the prison two hours away.

I jumped in my car and raced to Atmore. As I drove down the interstate to reach the prison, I noticed the long rays of sunlight retreating even as the heat of the Alabama summer persisted. When I arrived at the prison, it was completely dark. Outside the prison entrance were dozens of men with guns sitting on the backs of trucks that lined the long road to the prison parking area. They were state troopers, local police officers, deputy sheriffs, and what appeared to be part of a National Guard unit. I don’t know why the State felt they needed a militia to guard the entrance to the prison on the night of an execution. It was surreal to see all of these armed men gathered near midnight to make sure a life would be taken without incident. It fascinated me that someone thought there might be some violent, armed resistance to the scheduled execution of an indigent black man.

I entered the prison and saw an older white woman—the correctional officer who managed the visitation yard. I had become a regular at death row visiting my new clients at least once a month, so she saw me frequently but had never been particularly friendly. Tonight she approached me with unusual warmth and familiarity when I arrived. I thought she was going to hug me.

Men in suits and ties hovered in the lobby, eyeing me suspiciously as I walked into the visitation room at a little past nine. The visitation area at Holman is a large circular room surrounded by glass so that officers can look in from any vantage point. There are a dozen small tables with chairs inside for visiting family who come on visitation days, typically scheduled two or three times a month. During the week of a scheduled execution, only the condemned prisoner facing a scheduled death is permitted to have family visits.

When I got inside the visiting room, the family had less than an hour left with Herbert. He was calmer than I had ever seen him. He smiled at me when I walked in and gave me a hug.

“Hey y’all, this is my lawyer. ”

He said it with a pride that was surprising and moving to me.

“Hello everyone, ” I said. Herbert still had his arm around my shoulder, and I wanted to say something comforting but couldn’t think of anything before Herbert jumped in again.

“I told the prison people that I want all my possessions distributed just as I’ve said or my lawyer will sue you till you all have to work for him. ” He chuckled, and people laughed.

I met Herbert’s bride and her family and spent the next forty-five minutes with one eye on the clock, knowing that at 10: 00 P. M. the guards would take Herbert to the back, and we would never see him alive again. Herbert tried to keep things light. He told his family how he had persuaded me to take his case and bragged that I only represented people who were smart and charming.

“He’s too young to have represented me at trial, but if he had been there I wouldn’t be on death row now. ” He said it with a smile, but I was starting to feel shaken. I was really struck at how hard he was working to make everyone around him feel better in the face of his own death. I had never seen him so energetic and gracious. His family and I smiled and laughed, but all of us felt the strain of the moment. His wife became more and more tearful as the minutes ticked away. Shortly before 10 P. M., the commissioner of the Alabama Department of Corrections, the warden, and several other men wearing suits gestured to the visitation officer. She came into the room meekly and regretfully said, “It’s time, folks. We’ve got to end the visit. Say your goodbyes. ”

I watched the men in the hallway; they had clearly been expecting the officer to do something more decisive and effective. They wanted things to proceed on schedule and were clearly ready to move to the next stage to prepare for the execution. One of the state officials walked over to the guard when she left the room and pointed at his watch. Inside the room, Herbert’s wife began to sob. She put her arms around his neck and refused to let him go. After a couple of minutes, her crying turned into groaning, distressed and desperate.

The officials in the lobby were growing more impatient and gestured at the visitation officer, who came back into the room. “I’m sorry, ” she said as firmly as she could muster, “but you have to leave now. ” She looked at me, and I looked away. Herbert’s wife began sobbing again. Her sister and other family members began to cry, too. Herbert’s wife grabbed him even more tightly. I hadn’t thought about how difficult this moment would be. It was surreal in a way I hadn’t anticipated. In an instant a flood of sadness and tragedy had overtaken everyone, and I began to worry that it would be impossible for this family to leave Herbert.

By now the officials were angry. I looked through the window and saw the warden radio for more officers to come into the area. Someone else gestured for the officer to go back into the room and bring the family members out. I heard them tell her not to come out without the family. The officer looked frantic. Despite her uniform, she’d always seemed a little out of place at the prison, and she looked especially uncomfortable now. She had once volunteered to me that her grandson wanted to be a lawyer and that she was hoping he would. She looked around the room nervously and then came up to me. She had tears in her eyes and looked at me desperately.

“Please, please, help me get these people out of here, please. ” I began to worry that things were going to get ugly, but I couldn’t sort out what to do. It seemed impossibly hard for them to expect people to just calmly abandon someone they loved so that he could be executed. I wanted to prevent things from getting out of control but felt powerless to do anything.

By this time, Herbert’s wife had started saying loudly, “I’m not going to leave you. ”

Herbert had made a peculiar request the week before the execution. He said that if he was executed as scheduled, he wanted me to get the prison to play a recording of a hymn, “The Old Rugged Cross, ” as he walked to the electric chair. I had been slightly embarrassed to raise the request when I spoke with prison officials, but to my utter amazement they had agreed to do it.

I remembered as a child that they always sang this hymn at somber moments during church services, on Communion Sundays, and Good Friday. It was sad like few other hymns I’d heard. I don’t know why exactly, but I started to hum it as I saw more uniformed officers enter the vestibule outside the visitation room. It seemed like something that might help. But help what?

After a few minutes, the family joined me. I went over to Herbert’s wife as she held him tightly, sobbing softly. I whispered to her, “We have to let him go. ” Herbert saw the officers lining up outside, and he pulled away from her slowly and told me to take her out of the room.

Herbert’s wife clung to me and sobbed hysterically as I led her out of the visitation room with her family tearfully following. The experience was heartbreaking, and I wanted to cry. But I just kept humming instead.

The prison had made arrangements for me to go back to the death chamber in about an hour to be with Herbert before the execution. Although I had worked on several death penalty cases with clients who had execution dates, I’d never before been present at an execution. In the cases where I had actually been counsel for the condemned while I was in Georgia, we’d always won stays of execution. I grew anxious thinking about witnessing the spectacle of a man being electrocuted, burned to death in front of me. I’d been so focused on obtaining the stay and then on what to say to Herbert when I got to the prison that I hadn’t actually thought about witnessing the execution. I no longer wanted to be there for that, but I didn’t want to abandon Herbert. To leave him in a room alone with people who wanted him dead made me realize that I couldn’t back out. All of a sudden the room felt incredibly hot, like there was no air anywhere. The visitation officer came up to me after I had escorted the family out and whispered in my ear, “Thank you. ” I was vexed by her thinking of me as an accomplice and didn’t know what to say.

When there were less than thirty minutes before the execution, they took me back to the cell next to the execution chamber deep inside the prison where they were holding Herbert until it was time to put him in the electric chair. They had shaved the hair off his body to facilitate a “clean” execution. The state had done nothing to modify the electric chair since the disastrous Evans execution. I thought about the botched execution of Horace Dunkins a month earlier and became even more distraught. I had tried to read up on what should happen at an execution; I had some misguided thought that I could intervene if they did something incorrectly.

Herbert was much more emotional when he saw me than he’d been in the visitation room. He looked shaken, and it was clear that he was upset. It must have been humiliating to be shaved in preparation for an execution. He looked worried, and when I walked into the chamber he grabbed my hands and asked if we could pray, and we did. When we were done, his face took on a distant look and then he turned to me.

“Hey, man, thank you. I know this ain’t easy for you either, but I’m grateful to you for standing with me. ”

I smiled and gave him a hug. His face sagged with an unbearable sadness.

“It’s been a very strange day, Bryan, really strange. Most people who feel fine don’t get to think all day about this being their last day alive with certainty that they will be killed. It’s different than being in Vietnam … much stranger. ”

He nodded at all the officers who were milling about nervously. “It’s been strange for them, too.

“All day long people have been asking me, ‘What can I do to help you? ’ When I woke up this morning, they kept coming to me, ‘Can we get you some breakfast? ’ At midday they came to me, ‘Can we get you some lunch? ’ All day long, ‘What can we do to help you? ’ This evening, ‘What do you want for your meal, how can we help you? ’ ‘Do you need stamps for your letters? ’ ‘Do you want water? ’ ‘Do you want coffee? ’ ‘Can we get you the phone? ’ ‘How can we help you? ’ ”

Herbert sighed and looked away.

“It’s been so strange, Bryan. More people have asked me what they can do to help me in the last fourteen hours of my life than ever asked me in the years when I was coming up. ” He looked at me, and his face twisted in confusion.

I gave Herbert one last long hug, but I was thinking about what he’d said. I thought of all the evidence that the court had never reviewed about his childhood. I was thinking about all of the trauma and difficulty that had followed him home from Vietnam. I couldn’t help but ask myself, Where were these people when he really needed them? Where were all of these helpful people when Herbert was three and his mother died? Where were they when he was seven and trying to recover from physical abuse? Where were they when he was a young teen struggling with drugs and alcohol? Where were they when he returned from Vietnam traumatized and disabled?

I saw the cassette tape recorder that had been set up in the hallway and watched an officer bring over a tape. The sad strains of “The Old Rugged Cross” began to play as they pulled Herbert away from me.

There was a shamefulness about the experience of Herbert’s execution I couldn’t shake. Everyone I saw at the prison seemed surrounded by a cloud of regret and remorse. The prison officials had pumped themselves up to carry out the execution with determination and resolve, but even they revealed extreme discomfort and some measure of shame. Maybe I was imagining it but it seemed that everyone recognized what was taking place was wrong. Abstractions about capital punishment were one thing, but the details of systematically killing someone who is not a threat are completely different.

I couldn’t stop thinking about it on the trip home. I thought about Herbert, about how desperately he wanted the American flag he earned through his military service in Vietnam. I thought about his family and about the victim’s family and the tragedy the crime created for them. I thought about the visitation officer, the Department of Corrections officials, the men who were paid to shave Herbert’s body so that he could be killed more efficiently. I thought about the officers who had strapped him into the chair. I kept thinking that no one could actually believe this was a good thing to do or even a necessary thing to do.

The next day there were articles in the press about the execution. Some state officials expressed happiness and excitement that an execution had taken place, but I knew that none of them had actually dealt with the details of killing Herbert. In debates about the death penalty, I had started arguing that we would never think it was humane to pay someone to rape people convicted of rape or assault and abuse someone guilty of assault or abuse. Yet we were comfortable killing people who kill, in part because we think we can do it in a manner that doesn’t implicate our own humanity, the way that raping or abusing someone would. I couldn’t stop thinking that we don’t spend much time contemplating the details of what killing someone actually involves.

I went back to my office the next day with renewed energy. I picked up my other case files and made updated plans for how to assist each client to maximize the chance of avoiding an execution. Eventually, I recognized that all my fresh resolve didn’t change much—I was really only trying to reconcile myself to the realities of Herbert’s death. I was comforted by the exercise just the same. I felt more determined to recruit staff and obtain resources to meet the growing challenges of providing legal assistance to condemned people. Eva and I talked about a few people who had expressed interest in joining our staff. There was some new financial support possible from a foundation, and that afternoon we finally received the office equipment we had ordered. By the end of the day, I was persuaded things would improve, even while I felt newly burdened by the weight of it all.

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