Authors: Bryan Stevenson
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.