Chapter Twelve

Mother, Mother

On a cool, crisp mid-March evening, Marsha Colbey stepped out onto the streets of New York City in an elegant royal blue gown with her husband beside her. She had dreamed of a moment like this for years. She took in the sights and sounds with great curiosity as they strolled down the busy sidewalks. Enormous buildings stretched to the sky in the distance while raucous traffic whizzed through Greenwich Village streets. The clusters of New York students and artisans paid them no mind as they made their way through Washington Square Park. She noticed an amateur jazz trio laboring through standards on a park corner. It all seemed like something out of a movie.

A white woman from a poor rural Alabama town, Marsha had never been to New York, but she was about to be honored at a dinner with two hundred guests. It was all exciting, but she was experiencing something unusual as she made her way to the venue. She soon sorted out what she was feeling. Freedom. She was wandering the streets of the world’s most dazzling city with her husband, and she was free. It was a glorious feeling. Everything in the last three months since her release had been magical. It was beyond what she would have imagined even before she was sentenced to life imprisonment without parole at the Julia Tutwiler Prison for Women.

When Hurricane Ivan hit coastal Alabama and blew chaos and calamity into Marsha’s life, she thought things were as bad as they could get. Ivan spawned 119 tornadoes and created over $18 billion dollars in damage. With six children to protect, she had no time to panic over the loss of their home or the violent destruction of everything around them. It was the uncertainty that worried Marsha. Where would she or her husband find work? How long would the kids be out of school? What would they do for money? What would they do for food? Everyone on the Gulf Coast was feeling vulnerable in the face of such an uncertain future. The constant wave of tropical storms and hurricanes that menaced coastal Louisiana, Alabama, Mississippi, and Florida in the summer of 2004 turned their relaxed Southern coastal life into an apocalyptic struggle for survival.

Marsha and Glen Colbey were living in a crowded trailer with their children, and they knew they were at risk when the hurricane warnings were announced. They weren’t alone; plenty of other families shared their situation, which offered some consolation. But when Ivan destroyed the Colbey home in September, there was little comfort in finding herself in line with thousands of other people seeking assistance from the Federal Emergency Management Agency (FEMA). Aid eventually came. The Colbeys were given a FEMA camper trailer as temporary housing, and they put it on their property so the kids could stay in their nearby schools. Marsha and Glen had found construction work and roofing jobs at the start of the summer, but now it would be weeks before rebuilding jobs would be available.

Marsha could also tell that she was pregnant. She was forty-three years old and hadn’t planned on having another child. All she could think about was how in a few months the pregnancy would limit her ability to do construction work. Her worry sometimes tipped over into a deeper anxiety that triggered an old temptation: drugs. But there were too many people depending on her, and there was too much to manage to give in. Five years earlier, police were called after nurses had found cocaine in her system when she was pregnant with her youngest son, Joshua, and the authorities had terrified her with accusations and threats of criminal prosecution, imprisonment, and the seizure of her children. She was not going to risk that again.

She and Glen were dirt poor, but Marsha had always compensated for the things she couldn’t give her kids by giving them all of her heart. She read to them, talked to them, played with them, hugged and kissed them constantly, and kept them close at all times. Against all odds, she nurtured a precious family bonded by an intense love. Her older boys, even her nineteen-year-old, stayed close to her at home despite the many distractions that emerged as they finished high school. Marsha liked being a mom. It’s why she didn’t worry about having so many kids. Getting pregnant with a seventh was not what she had expected or preferred, but she would love this child as she had loved each one before.

By winter, things in Baldwin County had settled down. Jobs had returned, and Glen finally found more steady work. The family was still struggling financially, but most of the kids were back in school, and it seemed as if they had survived the worst of the destruction.

Marsha knew that a pregnancy at her age was very risky, but she couldn’t afford to see a doctor. She just didn’t have the money to spare. Having endured six previous deliveries, she knew what to expect and thought she’d make the best of it without prenatal care. She tried not to worry even though she’d been experiencing some pains and problems with this pregnancy that she didn’t remember having before. There had been bleeding; if she could have afforded an examination, a doctor would have found signs of placental abruption.

Their old trailer sat next to the new FEMA camper and was largely uninhabitable, but it still had running water and a bathtub, which afforded Marsha a quiet getaway from time to time. One day, she wasn’t feeling well and thought a long hot bath would do her good. She settled into a tub of hot water minutes before a violent labor began. She sensed it was happening too fast and before she knew it, she’d delivered a stillborn son. She desperately tried to revive the infant, but he never took a breath.

Although she’d initially fretted about the pregnancy, Marsha mourned the baby’s death and insisted on giving him a name and a family burial. They named him Timothy and buried him in a marked grave beside their small camper home. The baby’s stillbirth might have remained a private tragedy for Marsha and her family had it not been for a nosy neighbor who had long been suspicious of the Colbeys.

Debbie Cook noticed that Marsha Colbey was no longer pregnant but did not have a baby, which stirred her interest in the details of the stillbirth. Marsha didn’t trust the woman and was evasive when she made inquiries. Cook, who worked at the elementary school attended by Mrs. Colbey’s children, eventually instructed one of the school cafeteria workers to call the police about the absent infant. Officer Kenneth Lewellen spoke with Ms. Cook and then went to Ms. Colbey’s home. Marsha, still grieving the loss of her baby and frustrated by the meddling, reacted badly to the police questioning. She initially attempted to misdirect the officer and the investigators in an effort to protect her privacy. It wasn’t a smart thing to do, but she was outraged by their prodding. When Lewellen noticed the marked grave beside the Colbey’s home, Marsha admitted it was the burial site for her recently delivered stillborn son.

Kathleen Enstice, a forensic pathologist who worked for the state, was summoned to exhume the infant’s body. Marsha was shocked that law enforcement would do something so upsetting without justification. As soon as the baby was exhumed but before she had an opportunity to formally examine the body, Enstice told an investigator that she believed that the baby had been born alive. She later conceded that she had no basis for such an opinion and that without an autopsy and tests there was no way she could know if a baby had been born alive. As it turned out, Enstice had a history of prematurely and incorrectly declaring deaths to be homicides without adequate supporting evidence.

The pathologist subsequently performed an autopsy at the Department of Forensic Sciences laboratory in Mobile. She not only concluded that Marsha Colbey’s baby was born alive but also asserted that the child would have survived with medical attention. Even though most experts agree that forensic pathologists—who primarily deal with dead people—are not qualified to estimate survival chances, the State allowed prosecutors to pursue criminal charges.

Unbelievably, Marsha Colbey—a few short weeks after delivering her stillborn son—found herself arrested and charged with capital murder. Alabama is among the growing list of states that make the murder of a person under the age of fourteen a capital offense punishable by the death penalty. The child-victim category resulted in a tremendous increase in the number of young mothers and juveniles who were sent to death row. All five women on Alabama’s death row were condemned for the unexplained deaths of their young children or the deaths of abusive spouses or boyfriends—all of them. In fact, nationwide, most women on death row are awaiting execution for a family crime involving an allegation of child abuse or domestic violence involving a male partner.

At trial, Kathleen Enstice testified that Timothy was born alive and had died by drowning. She testified that her conclusion of a live birth was a “diagnosis of exclusion”—that is, she could not find evidence that the baby was stillborn and did not have another explanation for his death. Her testimony was exposed as unreliable by the State’s own expert witness, Dr. Dennis McNally, an obstetrician/ gynecologist who examined Mrs. Colbey two weeks after the stillbirth. Dr. McNally testified that Mrs. Colbey’s pregnancy was at high risk for “unexplained fetal death” because of her age and lack of prenatal care. Enstice’s conclusion was further discredited by Dr. Werner Spitz, who had authored the medical treatise Enstice had relied on in her forensic pathology training. Dr. Spitz testified for the defense that he would “absolutely not” declare a live birth, let alone a homicide, under the circumstances of this case.

With no credible scientific evidence that a crime had occurred, the State introduced inflammatory evidence that Marsha was poor, a prior drug user, and obviously a bad mother for not seeking prenatal care. Police investigators went into her home and took photographs of an unflushed toilet and a beer can on the floor, which were waved in front of the jury as evidence of neglect and bad parenting.

Mrs. Colbey consistently maintained during multiple interrogations that the baby was stillborn. She told investigators that her son was born dead and never took a breath, despite her efforts to revive him. Mrs. Colbey rejected the State’s offer of a plea agreement, pursuant to which she would have gone to prison for eighteen years, because she was adamant that she had done nothing wrong.

The prosecution of Marsha Colbey eventually caught the attention of the press, which was titillated by another “dangerous mother” story. The crime was sensationalized by the local media, which lauded the police and prosecutor for coming to the aid of a defenseless infant. Demonizing irresponsible mothers had become a media craze by the time Marsha’s trial was scheduled. Tragic narratives of mothers killing their children were national sensations. When Andrea Yates drowned her five children in Texas in 2001, the tragedy became a national story. Susan Smith’s effort to blame random black men for the death of her children in South Carolina before later admitting to murdering them fascinated crime-obsessed Americans. In time, media interest in these kinds of stories grew into a national preoccupation. Time magazine called the prosecution of Casey Anthony, the young Florida mother ultimately acquitted in the death of her two-year-old daughter, the “social media trial of the century” after the story generated nonstop coverage on cable networks.

The murder of a child by a parent is horrific and is usually complicated by serious mental illness, as in the Yates and Smith cases. But these cases also tend to create distortions and bias. Police and prosecutors have been influenced by the media coverage, and a presumption of guilt has now fallen on thousands of women—particularly poor women in difficult circumstances—whose children die unexpectedly. Despite America’s preeminent status among developed nations, we have always struggled with high rates of infant mortality—much higher than in most developed countries. The inability of many poor women to get adequate health care, including prenatal and post-partum care, has been a serious problem in this country for decades. Even with recent improvements, infant mortality rates continue to be an embarrassment for a nation that spends more on health care than any other country in the world. The criminalization of infant mortality and the persecution of poor women whose children die have taken on new dimensions in twenty-first-century America, as prisons across the country began to bear witness.

Communities were on the lookout for bad moms who should be put in prison. About the same time as Marsha’s prosecution, Bridget Lee gave birth to a stillborn baby in Pickens County, Alabama. She was charged with capital murder and wrongfully imprisoned. Lee, a church pianist, mother of two, and bank bookkeeper, had gotten pregnant after an extramarital affair. Scared and depressed, the thirty-four-year-old hid her pregnancy and hoped to secretly put the child up for adoption. But she went into labor five weeks before her due date, and the baby was stillborn. She didn’t tell her husband about the stillbirth, which aroused suspicion. The disreputable circumstances surrounding Lee’s pregnancy were enough to influence the pathologist who conducted the autopsy to conclude that the stillborn baby was born alive and was then suffocated by Lee. Months after Lee was arrested and charged with capital murder, six additional pathologists examined the body and unanimously concluded that neonatal pneumonia had killed the child—it was a classic stillbirth with very common features. This new information led the prosecutor to drop the charges, sparing Ms. Lee a capital trial and, potentially, the death penalty. The discredited pathologist left Alabama but continues to serve as a practicing medical examiner in Texas.

In hundreds of other cases, falsely accused women never received the forensic help they needed to avoid wrongful convictions. A few years earlier, before representing Marsha Colbey, we took on the case of Diane Tucker and Victoria Banks. An intellectually disabled black woman living in Choctaw County, Alabama, Ms. Banks was accused of killing her newborn child even though police had no credible basis for believing she had ever been pregnant. Banks had allegedly told a deputy sheriff that she was pregnant to avoid time in jail for an unrelated matter. When she was seen months later with no child, police accused her of killing her infant. Disabled and without adequate legal assistance, Ms. Banks was coerced into pleading guilty to killing a child who had never existed along with her sister, Ms. Tucker. Because she was facing capital murder charges and a potential death sentence, she made a deal to accept a prison sentence of twenty years. Law enforcement officials refused to investigate her claims of innocence prior to sending her to prison. We won her freedom after establishing that she had had a tubal ligation five years prior to her arrest, which made it biologically impossible for her to conceive, let alone give birth to, a child.

In addition to unexplained deaths of infants parented by poor women, other kinds of “bad parenting” have also been criminalized. In 2006, Alabama passed a law that made it a felony to expose a child to a “dangerous environment” in which the child could encounter drugs. This “child chemical endangerment statute” was ostensibly passed to protect children living in households where there were meth labs or drug-trafficking operations. But the law was applied much more broadly, and soon thousands of mothers with children living in poor, marginalized communities where drugs and drug addiction are rampant were at risk of prosecution.

In time, the Alabama Supreme Court interpreted the term environment to include the womb and the term child to include a fetus. Pregnant women could now be criminally prosecuted and sent to prison for decades if there was any evidence that they had used drugs at any point during their pregnancy. Dozens of women have been sent to prison under this law in recent years, rather than getting the help they needed.

The hysteria surrounding bad mothers made a fair trial for Marsha Colbey very difficult. During jury selection, numerous jurors announced that they could not be impartial toward Mrs. Colbey. Some jurors indicated that they found allegations of killing a child so disturbing that they could not honor the presumption of innocence. Several revealed that they had such a close relationship with one of the state investigators—a key State witness who had been especially vocal about identifying bad mothers—that they would give him “instant credibility” and would “believe everything [he] said was credible. ” Another juror admitted trusting law enforcement witnesses he knew to the point where he would “believe anything they say. ”

The trial court allowed almost all of these jurors to remain on the jury panel despite defense objections. Ultimately, a jury who brought many presumptions and biases to the trial of Marsha Colbey was selected to decide her fate.

The jury returned a verdict of guilty on one count of capital murder. Prior to rendering a verdict, jurors expressed concerns about Mrs. Colbey being subject to the death penalty, so the State agreed not to pursue an execution if she was found guilty. This concession yielded an immediate conviction. The trial court sentenced Mrs. Colbey to life imprisonment without the possibility of parole, and a short while later she found herself shackled in a prison van heading to the Julia Tutwiler Prison for Women.

Built in the 1940s, Tutwiler Prison is situated in Wetumpka, Alabama. Named after a woman who promoted the education of prisoners and championed humane conditions of confinement, Tutwiler has become an overcrowded, dangerous nightmare for the women trapped there. Courts have repeatedly found the prison unconstitutionally overcrowded, with almost twice the number of women incarcerated as it was designed to hold. In the United States, the number of women sent to prison increased 646 percent between 1980 and 2010, a rate of increase 1. 5 times higher than the rate for men. With close to two hundred thousand women in jails and prisons in America and over a million women under the supervision or control of the criminal justice system, the incarceration of women has reached record levels.

At Tutwiler, women are crammed into dormitories and improvised living spaces. Marsha was shocked by the overcrowding. As the only state prison for women, Tutwiler has no way to meaningfully classify and assign women to appropriate dorms. Women battling serious mental illness or severe emotional problems are thrown in with other women, making dorm life chaotic and stressful for everyone. Marsha could never quite get used to hearing women screaming and hollering inexplicably throughout the night in a crowded dorm.

Most incarcerated women—nearly two-thirds—are in prison for nonviolent, low-level drug crimes or property crimes. Drug laws in particular have had a huge impact on the number of women sent to prison. “Three strikes” laws have also played a considerable role. I started challenging conditions of confinement at Tutwiler in the mid-1980s as a young attorney with the Southern Prisoners Defense Committee. At the time, I was shocked to find women in prison for such minor offenses. One of the first incarcerated women I ever met was a young mother who was serving a long prison sentence for writing checks to buy her three young children Christmas gifts without sufficient funds in her account. Like a character in a Victor Hugo novel, she tearfully explained her heartbreaking tale to me. I couldn’t accept the truth of what she was saying until I checked her file and discovered that she had, in fact, been convicted and sentenced to over ten years in prison for writing five checks, including three to Toys “R” Us. None of the checks was for more than $150. She was not unique. Thousands of women have been sentenced to lengthy terms in prison for writing bad checks or for minor property crimes that trigger mandatory minimum sentences.

The collateral consequences of incarcerating women are significant. Approximately 75 to 80 percent of incarcerated women are mothers with minor children. Nearly 65 percent had minor children living with them at the time of their arrest—children who have become more vulnerable and at-risk as a result of their mother’s incarceration and will remain so for the rest of their lives, even after their mothers come home. In 1996, Congress passed welfare reform legislation that gratuitously included a provision that authorized states to ban people with drug convictions from public benefits and welfare. The population most affected by this misguided law is formerly incarcerated women with children, most of whom were imprisoned for drug crimes. These women and their children can no longer live in public housing, receive food stamps, or access basic services. In the last twenty years, we’ve created a new class of “untouchables” in American society, made up of our most vulnerable mothers and their children.

Marsha wandered through her first days at Tutwiler in a state of disbelief. She met other women like herself who had been imprisoned after having given birth to stillborn babies. Efernia McClendon, a young black teenager from Opelika, Alabama, got pregnant in high school and didn’t tell her parents. She delivered at just over five months and left the stillborn baby’s remains in a drainage ditch. When they were discovered, she was interrogated by police until she acknowledged that she couldn’t be 100 percent sure the infant hadn’t moved before death, even though the premature delivery made viability extremely unlikely. Threatened with the death penalty, she joined a growing community of women imprisoned for having unplanned pregnancies and bad judgment.

The lives and the suffering of the women got tangled together at Tutwiler. For Marsha, it was impossible not to notice that some women never got visits. She tried at first but couldn’t remain indifferent to the people around her who seemed in acute distress—those who cried more than usual or who suffered the greatest anxiety about the children or parents they’d left behind or who seemed especially down or depressed. Knitted together as they were, a horrible day for one woman would inevitably become a horrible day for everyone. The only consolation in such an arrangement was that joyous moments were shared as well. A grant of parole, the arrival of a hoped-for letter, a visit from a long-absent family member would lift everyone’s spirits.

If the struggles of the other women had been Marsha’s biggest challenge at Tutwiler, her years there would have been difficult but manageable. But there were bigger problems, coming from the correctional staff itself. Women at Tutwiler were being raped by prison guards. Women were being sexually harassed, exploited, abused, and assaulted by male officers in countless ways. The male warden allowed the male guards entry into the showers during prison counts. Officers leered at the naked women and made crude comments and suggestive threats. Women had no privacy in the bathrooms, where male officers could watch them use the toilet. There were dark corners and hallways—terrifying spaces at Tutwiler where women could be beaten or sexually assaulted. EJI had asked the Department of Corrections to install security cameras in the dorms, but they refused. The culture of sexual violence was so pervasive that even the prison chaplain was sexually assaulting women when they came to the chapel.

Shortly after Marsha arrived at Tutwiler, we won the release of Diane Jones, who had been wrongly convicted and sentenced to die in prison for a crime she had not committed. Diane had been wrongly implicated in a drug-trafficking operation that involved her former boyfriend. She was convicted of multiple charges that triggered a sentence of mandatory life imprisonment without parole. We challenged her conviction and sentence and ultimately won her release. The release of Diane Jones, a condemned lifer, gave hope to all of the other lifers at Tutwiler. I received letters from women I’d never met thanking me for helping her. While working on her case, I’d go to Tutwiler to meet with Diane, who would tell me how the women were desperate for help.

“Bryan, I have about nine notes people want me to pass to you. It was too many to get past the guards so I didn’t bring them, but these women want your help. ”

“Well, don’t try to smuggle notes. They can write us. ”

“Well, some say they have written. ”

“We’re swamped, Diane. I’m sorry, but we’ll try to reply. ”

“I’m mostly worried about the lifers. They’re the ones who will die in here. ”

“We’re trying—there is only so much we can do. ”

“I tell them that, I know. They’re just desperate, like I was desperate before y’all helped me. Marsha, Ashley, Monica, Patricia are sweatin’ me to have you send someone to help. ”

We met Marsha Colbey shortly after that and began working on her appeal. We decided to challenge the State’s case and the way the jury had been selected. Charlotte Morrison, a Rhodes Scholar and former student of mine, was now a senior attorney at EJI. She and staff attorney Kristen Nelson, a Harvard Law grad who had worked at the Public Defender Service for the District of Columbia, the nation’s premier public defender office, met with Marsha repeatedly. She would talk about her case, the challenge of keeping her family together while she was in prison, and a range of other problems. But it was the sexual violence at Tutwiler that most frequently came up during these visits.

Charlotte and I took on the case of another woman who had filed a federal civil suit after she was raped at Tutwiler. She had had no legal help; because of defects in her pleadings and the allegations she made in her complaint, we could secure only a small settlement judgment for her. But the details of her experience were so painful that we could no longer look past the violence. We started an investigation for which we interviewed over fifty women; we were truly shocked to see how widespread the problem of sexual violence had become. Several women had been raped and become pregnant. Even when DNA testing confirmed that male officers were the fathers of these children, very little was done about it. Some officers who had received multiple sexual assault complaints were temporarily reassigned to other duties or other prisons, only to wind up back at Tutwiler, where they continued to prey on women. We eventually filed a complaint with the U. S. Department of Justice and released several public reports about the problem, which received widespread media coverage. Tutwiler made a list of the ten worst prisons in America compiled by Mother Jones; it was the only women’s facility to be so dishonored. Legislative hearings and policy changes at the prison followed. Male guards are now banned from the shower areas and toilets, and a new warden has taken over the facility.

Marsha held on despite these challenges and started advocating for some of the younger women. We were devastated when the Court of Criminal Appeals issued a ruling affirming her conviction and sentence. We sought review in the Alabama Supreme Court and won a new trial based on the trial judge’s refusal to exclude people from jury service who were biased and could not be impartial. Marsha and our team were thrilled, local officials in Baldwin County less so. They were threatening re-prosecution. We involved expert pathologists and persuaded local authorities that there was no basis on which to convict Marsha of murder. It took two years to settle the legal case and then another year of wrangling with the Department of Corrections to give Marsha full credit for the time she’d served before she was finally freed in December 2012 after ten years of wrongful imprisonment.

We had started holding annual benefit dinners each March in New York City to raise money for EJI. We usually honored a luminary in public service and a client. We’d previously honored Marian Wright Edelman, the heroic civil rights lawyer and founder of the Children’s Defense Fund. In 2011, we honored retired U. S. Supreme Court Justice John Paul Stevens. I had met Justice Stevens at a small conference when I was a young lawyer, and he had been extremely kind to me. By the time he retired, he’d become the Court’s most vocal critic of excessive punishment and mass incarceration. In 2013, along with Marsha Colbey, we decided to honor the charismatic former director of the NAACP Legal Defense Fund, Elaine Jones, and the progressive ice-cream icons Ben (Cohen) and Jerry (Greenfield). Roberta Flack, the legendary singer and songwriter, agreed to perform. She sang the George Harrison tune “Isn’t It a Pity” before it was time to present our award to Marsha.

In my introduction, I told the audience how, on the day of her release from Tutwiler, Marsha had come to the office to thank everyone. Her husband and her two daughters had picked her up at Tutwiler. Her youngest daughter, who was about twelve, had reduced most of our staff to tears because she refused to let go of her mother the entire time she was in the office. She clung to Marsha’s waist, kept hold of her arm, and leaned into her as if she intended never to let anyone physically separate them ever again. We took pictures with Marsha and some of the staff, and her daughter is in every shot because she refused to let her mother go. That told us a lot about what kind of mom Marsha Colbey was. Marsha took the podium in her lovely blue dress.

“I want to thank all of you for recognizing me and what I’ve been through. Y’all are being very kind to me. I’m just happy to be free. ” She spoke to the large audience calmly and with a great deal of composure. She was articulate and charming. She became emotional only when she talked about the women she’d left behind.

“I am lucky. I got help that most women can’t get. It’s what bothers me the most now, knowing that they are still there and I’m home. I hope we can do more to help more people. ” Her gown sparkled in the lights, and the audience rose to applaud Marsha as she wept for the women she’d left behind.

Following her, I couldn’t think of what to say. “We need more hope. We need more mercy. We need more justice. ”

I then introduced Elaine Jones, who began with, “Marsha Colbey—isn’t she a beautiful thing? ”

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