Authors: Bryan Stevenson
Terrorist groups like the Ku Klux Klan cloaked themselves in the symbols of the Confederate South to intimidate and victimize thousands
of black people. Nothing unnerved rural black settlements more than rumors about nearby Klan activity. For a hundred years, any sign of black progress in the South could trigger a white reaction that would invariably invoke Confederate symbols and talk of resistance.
Confederate Memorial Day was declared a state holiday in Alabama at the turn of the century, soon after whites rewrote the state constitution to ensure white supremacy. (The holiday is still celebrated today.)
When black veterans returned to the South after World War II, Southern politicians formed a “Dixiecrat” bloc to preserve racial segregation and white domination out of fear that military service might encourage black veterans to question racial segregation. In the 1950s and 1960s, civil rights activism and new federal laws inspired the same resistance to racial progress and once again led to a spike in the use of Confederate imagery.
In fact, it was in the 1950s, after racial segregation in public schools was declared unconstitutional in
Brown v. Board of Education
, that many Southern states erected Confederate flags atop their state government buildings. Confederate monuments, memorials, and imagery proliferated throughout the South during the Civil Rights Era. It was during this time that the birthday of Jefferson Davis, the president of the Confederacy, was added as a holiday in Alabama. Even today, banks, state offices, and state institutions shut down in his honor.
At a pretrial hearing, I once argued against the exclusion of African Americans from the jury pool. In this particular rural Southern community, the population was about 27 percent black, but African Americans made up only 10 percent of the jury pool. After presenting the data and making my arguments about the unconstitutional exclusion of African Americans, the judge complained loudly.
“I’m going to grant your motion, Mr. Stevenson, but I’ll be honest. I’m pretty fed up with people always talking about minority rights. African Americans, Mexican Americans, Asian Americans, Native Americans … When is someone going to come to my courtroom and protect the rights of Confederate Americans?” The judge had definitely
caught me off guard. I wanted to ask if being born in the South or living in Alabama made me a Confederate American, but I thought better of it.
I stopped in the prison yard to take a closer look at the truck. I couldn’t help walking around it and reading the provocative stickers. I turned back toward the front gate of the prison, trying to regain my focus, but I couldn’t make myself indifferent to what I perceived were symbols of racial oppression. I had been to this prison often enough to be familiar to many of the correctional officers, but as I entered I was met by a correctional officer I’d never seen before. He was a white man of my height—about six feet tall—with a muscular build. He looked to be in his early forties and wore a short military haircut. He was staring coldly at me with steel-blue eyes. I walked toward the gate that led to the lobby of the visitation room, where I expected a routine pat-down before entering the visitation area. The officer stepped in front of me and blocked me from proceeding.
“What are you doing?” he snarled.
“I’m here for a legal visit,” I replied. “It was scheduled earlier this week. The people in the warden’s office have the papers.” I smiled and spoke as politely as I could to defuse the situation.
“That’s fine, that’s fine, but you have to be searched first.”
It was difficult to ignore his clearly hostile attitude, but I did my best.
“Okay, do you need me to take my shoes off?” The hardcore officers would sometimes make me remove my shoes before going inside.
“You’re going to go into that bathroom and take everything off if you expect to get into my prison.”
I was shocked, but spoke as nicely as I could. “Oh, no, sir. I think you might be confused. I’m an attorney. Lawyers don’t have to get strip-searched to come in for legal visits.”
Instead of calming him, this seemed to make him angrier. “Look, I don’t know who you think you are, but you’re not coming into my
prison without complying with our security protocols. Now, you can get into that bathroom and strip, or you can go back to wherever you came from.”
I’d had some difficult encounters with officers getting into prisons from time to time, mostly in small county jails or places where I’d never been before, but this was highly unusual.
“I’ve been to this prison many times, and I’ve never been required to submit to a strip search. I don’t think this is the procedure,” I said more firmly.
“Well, I don’t know and don’t care what other people do, but this is the protocol I use.” I thought about trying to find an assistant warden but realized that that might be difficult, and anyway, an assistant warden would be unlikely to tell an officer he was wrong in front of me. I had driven two hours for this visit and had a very tough schedule over the next three weeks; I wouldn’t be able to get back to the prison any time soon if I didn’t get in now. I went inside the bathroom and removed my clothes. The officer came in and gave me an unnecessarily aggressive search before mumbling that I was clear. I put my suit back on and walked out.
“I’d like to get inside the visitation room now.” I tried to reclaim some dignity by speaking more forcefully.
“Well, you have to go back and sign the book.”
He said it coolly, but he was clearly trying to provoke me. There was a visitation log that the prison used for family visits, but it was not used for legal visits. I’d already signed the attorney book. It would make no sense to sign a second book.
“Lawyers don’t have to sign that book—”
“If you want to come in my prison, you’ll sign the book.” He seemed to be smirking now. I tried hard to keep my composure.
I turned around and went over to the book and signed my name. I walked back to the visitation room and waited. There was a padlock on the glass door that had to be unlocked before I could enter the space where I’d meet my client. The officer finally pulled out his keys to unlock the door. I stood silently hoping to get inside without more
drama. When he opened the door, I stepped forward, but he grabbed my arm to stop me. He lowered his voice as he spoke to me.
“Hey, man, did you happen to see a truck out in the visitation yard with a lot of bumper stickers, flags, and a gun rack?”
I spoke cautiously. “Yes, I saw that truck.”
His face hardened before he spoke. “I want you to know, that’s my truck.” He released my arm and allowed me to walk inside the prison. I felt angry at the guard, but I was even more irritated by my own powerlessness. I was distracted from my thoughts when the back door of the visitation room opened and Mr. Jenkins was led in by another officer.
Jenkins was a short African American man with close-cropped hair. He grasped my hand with both of his and smiled broadly as he sat down. He seemed unusually happy to see me.
“Mr. Jenkins, my name is Bryan Stevenson. I’m the attorney you spoke—”
“Did you bring me a chocolate milkshake?” He spoke quickly.
“I’m sorry, what did you say?”
He kept grinning. “Did you bring me a chocolate milkshake? I want a chocolate milkshake.”
The trip, the Confederate truck, the harassment from the guard, and now a request for a milkshake—this was becoming a bizarre day. I didn’t hide my impatience.
“No, Mr. Jenkins, I didn’t bring you a chocolate milkshake. I’m an attorney. I’m here to help you with your case and try to get you a new trial. Okay? That’s why I’m here. Now I need to ask you some questions and try to understand what’s going on.”
I saw the grin fade quickly from the man’s face. I started asking questions and he gave single-word answers, sometimes just grunting out a yes or no. I realized that he was still thinking about his milkshake. My time with the officer had made me forget how impaired this man might be. I stopped the interview and leaned forward.
“Mr. Jenkins, I’m really sorry. I didn’t realize you wanted me to bring you a chocolate milkshake. If I had known that, I would absolutely
have tried. I promise that the next time I come, if they let me bring you in a chocolate milkshake, I’ll definitely do it. Okay?”
With that, his smile returned, and his mood brightened. His prison records revealed that he often experienced psychotic episodes in which he would scream for hours. He was generally kind and gentle in our meeting, but he was clearly ill. I couldn’t understand why his trial records made no reference to mental illness, but after the George Daniel case, nothing surprised me. When I returned to my office, we began a deeper investigation into Mr. Jenkins’s background. What we found was heartbreaking. His father had been murdered before he was born, and his mother had died of a drug overdose when he was a year old. He’d been in foster care since he was two years old. His time in foster care had been horrific; he’d been in nineteen different foster homes before he turned eight. He began showing signs of intellectual disability at an early age. He had cognitive impairments that suggested some organic brain damage and behavioral problems that suggested schizophrenia and other serious mental illness.
When he was ten, Avery lived with abusive foster parents whose rigid rules kept him in constant turmoil. He couldn’t comply with all of the requirements imposed on him, so he was frequently locked in a closet, denied food, and subjected to beatings and other physical abuse. When his behavior didn’t improve, his foster mother decided to get rid of him. She took him out into the woods, tied him to a tree, and left him there. He was found, in very poor health, by hunters three days later. After recovering from serious medical problems relating to his abandonment, he was turned over to authorities, who placed him back into foster care. By the time he was thirteen, he had started abusing drugs and alcohol. By fifteen, he was having seizures and experiencing psychotic episodes. At seventeen, he was deemed incapable of management and was left homeless. Avery was in and out of jail until he turned twenty, when in the midst of a psychotic episode he wandered into a strange house, thinking he was being attacked by demons. In the house, he brutally stabbed to death a man he’d believed to be a demon. His lawyers did no investigation of Mr. Jenkins’s
history prior to trial, and he was quickly convicted of murder and sentenced to death.
The prison would not let me bring Mr. Jenkins a milkshake. I tried to explain this to him, but at the start of every visit, he’d ask me if I’d brought one. I’d tell him that I would keep trying—I had to, just to get him to focus on anything else. Months later, we were finally scheduled to go to court with the evidence about his profound mental illness, material that should have been presented at trial. We contended that his attorneys had failed to provide effective assistance of counsel at trial when they didn’t uncover Avery’s history or present his disabilities as relevant to his criminal culpability and sentence.
When I got to the court where the hearing would take place, about a three-hour drive from the prison, I went to see Avery in the court’s basement holding cell. After going through my usual protocol about the milkshake, I tried to get him to understand what would happen in court. I was concerned that seeing some of the witnesses—people who had dealt with him when he was in foster care—might upset him. The testimony the experts would provide would also be very direct in characterizing his disabilities and illness. I wanted him to understand why we were doing that. He was pleasant and agreeable, as always.
When I went upstairs to the courtroom, I spotted the correctional officer who had given me such a hard time when I had first met Avery. I hadn’t seen the officer since that initial ugly encounter. I had asked another client about the guard and was told that he had a bad reputation and usually worked the late shift. Most people tried to steer clear of him. He must have been the officer assigned to transport Avery to the hearing, which made me worried about how Avery might have been treated on the trip, but he had seemed his usual self.
Over the next three days we presented our evidence about Avery’s background. The experts who spoke about Avery’s disabilities were terrific. They weren’t partial or biased, just very persuasive in detailing how organic brain damage, schizophrenia, and bipolar disorder can conspire to create severe mental impairment. They explained that the psychosis and other serious mental health problems that burdened
Mr. Jenkins could lead to dangerous behavior, but this behavior was a manifestation of serious illness, not a reflection of his character. We also put forth evidence about the foster care system and how it had failed Avery. Several of the foster parents with whom Avery had been placed were later convicted of sexual abuse and criminal mismanagement of foster children. We discussed how Avery had been passed from one unhappy situation to the next, until he was drug-addicted and homeless.
Several former foster parents admitted to being very frustrated by Avery because they weren’t equipped to deal with his serious mental health problems. I argued to the judge that not taking Avery’s mental health issues into consideration at trial was as cruel as saying to someone who has lost his legs, “You must climb these stairs with no assistance, and if you don’t, you’re just lazy.” Or to say to someone who is blind, “You should get across this busy interstate highway unaided, or you’re just cowardly.”
There are hundreds of ways we accommodate physical disabilities—or at least understand them. We get angry when people fail to recognize the need for thoughtful and compassionate assistance when it comes to the physically disabled, but because mental disabilities aren’t visible in the same way, we tend to be dismissive of the needs of the disabled and quick to judge their deficits and failures. Brutally murdering someone would, of course, require the State to hold that person accountable and to protect the public. But to completely disregard a person’s disability would be unfair in evaluating what degree of culpability to assign and what sentence to impose.
I went back home feeling very good about the hearing, but the truth was that a state postconviction hearing rarely resulted in a favorable ruling. If relief was to come, it would most likely be on appeal. I wasn’t expecting any miracle rulings. About a month after the hearing, before judgment was rendered, I decided to go to the prison and see Avery. We hadn’t had much time to talk after the hearing, and I wanted to make sure he was okay. Throughout most of the hearing he had sat pleasantly, but when some of his former foster parents had
come into the court, I could see him become upset. I thought a post-hearing visit would be helpful.