An Adel water tower seen from the Cook County Courthouse.
December 6, 2018

Who Killed Donna Brown?

In a section of the Georgia Bureau of Investigation website listing unsolved crimes, a few short paragraphs detail the death of a man in a small town more than 18 years ago. “On April 8, 2000, at approximately 1:20 p.m., Shailesh Patel was found murdered at his brother-in-law’s residence located on North Gordon Avenue, Adel, Cook County, Georgia,” it reads. “Mr. Patel, who lived in Locust Grove in Henry County, GA., had been staying at this residence and managing the E Z Mart Convenience store while his brother-in-law and family were vacationing in California.”

There’s no photograph of Patel on the GBI profile, only a forensic artist’s sketch of “a man seen in the area several hours prior to the incident” – a possible witness. Patel had been “stabbed and beaten,” it says, although this hardly captures the brutality of the crime. Former Adel Police Officer Tim Balch remembers arriving at the house, on a quiet block on the north side of town. “When I got there,” he says, “I just peeped in and it was like, ‘We’re calling GBI. This is bad.’” There was blood everywhere and signs of struggle throughout the home. Patel had been bashed over the head with a television. Balch, a large tattooed Army veteran who drives a Hummer, had seen his share of bloodshed. But the savagery of this scene stands out in his mind. Whoever committed the crime had to be “a straight psychopath.”

The GBI concluded it was a robbery gone bad but was otherwise tight-lipped. Additional details were published in the local Adel News Tribune. Patel, a 37-year-old immigrant from India, was only in Adel temporarily to help his brother-in-law with the convenience store attached to a gas station near the home where he lived. According to his nephew, Manishh, a college student in Atlanta at the time, Patel would ordinarily eat dinner in a neighboring town after his shift. But that night, he had apparently walked the few blocks back to the house and discovered a burglary underway. After Patel failed to show up at work the next morning, police were called.

There was a cruel irony to his death. Manishh told the News Tribune that Patel planned to move to Adel with his wife and two kids, in part to avoid the crime he had encountered in other places. Murders in Adel were rare — and the neighborhood where Patel was killed was particularly peaceful. “The only noise you ever heard around here was children playing,” the minister at the church next door told the newspaper.

Yet Patel’s death was the second violent killing in Adel in less than two years. In the fall of 1998, a woman named Donna Brown, the single mother of a 7-year-old son, had been robbed and shot dead in front of the Taco Bell where she worked, less than two miles away. A suspect was quickly arrested and jailed in that case. But now there was another murderer on the loose, a terrifying prospect in a town of just more than 5,000 that covers only eight square miles. “We have never had anything like this happen here before,” an elderly neighbor told the newspaper after Patel’s death.

Still, Patel’s family had warned him to be careful. His brother-in-law, Vishnu, had been robbed at the EZ Mart several months earlier by a “masked man brandishing an Exacto knife,” according to a separate newspaper report. Patel told police that a “stocky black man” had forced him to the store counter after 10 p.m. on October 26, 1999 and said, “Give me all the money or I’ll kill you.” He then punched Patel in the mouth and fled.

Whether police sought a link between the 1999 robbery and the 2000 murder is unclear. Nor is it clear what was done with all the physical evidence left at the house on North Gordon Avenue, which was ripe for forensic testing. The case was presumably in good hands: The GBI routinely took over cases in the rural towns of South Georgia, which did not have the resources or technology to investigate major crimes. In the year Patel was killed, the GBI was taking full advantage of new DNA technology; by 2002, according to the Atlanta Journal-Constitution, the agency boasted that it was matching an average of “six crimes a month” to criminals in the state’s DNA database.

Yet the trail to Patel’s murderer quickly went cold. In contrast to the swift arrest following the murder of Donna Brown at the Taco Bell in 1998, the Patel case would be handed off to “a plethora of agents” over the next 18 years, according to GBI Special Agent Mark Pro, who insists that the agency is still working on solving the crime today. “We’re dealing in an area in South Georgia that is very small, and the neighborhood and the people that live in that area are very close-knit,” he said, explaining that he did not want to tip off any potential suspects by divulging further details about the agency’s investigation. But at least one man who worked on the Patel case was surprised to hear it was never solved. Former GBI agent Richard Deas remembers taking photos and dusting for fingerprints. He retired in 2001, figuring the killer was someone who had been in trouble with the law “or would be in trouble with the law again.”

Regardless, the Patel family says it has not heard from the GBI in years. Now in his 40s, Manishh Patel says the family never received basic answers about what happened or why the crime was not solved. He could understand this coming from a rural police force in a town like Adel, he said. But the GBI is “like the FBI of Georgia, the highest criminal investigators in our state,” he says. “So that’s the question that I have. What did they do?”

An Adel water tower seen from the Cook County Courthouse.

An Adel water tower, seen from the Cook County Courthouse.

Photo: Ryan Christopher Jones for The Intercept

Adel, Georgia, the seat of Cook County, sits just off Interstate 75, a north-south artery that runs from South Florida all the way north to the Great Lakes. Six lanes of highway slice through the west side of town, with an overpass bridging the divide. An Alabama news columnist once described Adel as “a little town nestled between billboards,” which remains an apt description. The highway is lined with dueling displays offering nostalgia or redemption; approaching from the north, signs aggressively promote the Magnolia Plantation, an oversized Greek revival-style home where travelers can buy peach marinades and praline pecans. Farther down the highway, a series of eye-popping religious billboards — sponsored by the defunct website I-Will-Be-Back.org — portray the harrowing alternative to Christian salvation, with ashen zombie-humans depicting the damned. In one fiery scene, Jesus’s flowing white robes are surrounded by tanks and gun-pointing soldiers, below the words “I Am Still In Control.”

Located some 40 miles from the Florida border, Cook County was built up along the Georgia Southern and Florida Railroad, which first opened in 1890, the year after Adel was incorporated. The tracks ran from Florida to Macon, part of a rapidly growing network of railroads throughout the state that would be key to its economic recovery from the Civil War. By 1910, according to a historical marker in downtown Valdosta, some 30 miles south of Adel, the region was home to one of the largest cotton markets in the world. “The railroads were the life line that connected Valdosta to its market centers and led to the economic growth of the town,” it reads. The trains were a selling point for towns like Adel, advertised by a turn-of-the-century real estate broker as “the best little town in south Georgia, growing bigger and better every day.”

A McDonald's in Adel, GA.

A McDonald’s in Adel, Ga.

Photo: Ryan Christopher Jones for The Intercept

But for black residents of Cook County, it was a different story. The cotton industry had been built on the backs of their enslaved ancestors — and the railroads were built under brutal conditions using convict labor, which became plentiful as the state criminalized its black population following abolition. By the time Cook County (named after Confederate general Philip Cook) was founded in 1918, chain gangs were common, while the short-lived political representation of black Georgians gained during Reconstruction had come to an end.

The legacy of slavery is all around Adel. A historical marker in Hahira, some 10 miles south, commemorates “one of the deadliest waves of vigilantism in Georgia’s history” in 1918, when a notorious white landowner was allegedly killed by a man sent to work for him from the local jail. Eleven black residents were rounded up and lynched, including a woman who was eight months pregnant. The site where Union soldiers captured Confederate President Jefferson Davis, about 40 miles north of Adel, is home to a park, museum, and gift shop.

Today, Adel remains small and segregated, and the railroad tracks, now in the hands of the Norfolk Southern Railway, are the de facto divider between black and white residents. Officially designated as the City of Daylilies by Georgia lawmakers in 2006, the city website lauds Adel for preserving “its friendly atmosphere and small-town charm.” But the perception is not universally shared — especially where police are concerned. Black residents have long complained about harassment from cops in Adel. For those just passing through Cook County, it is hard to miss the police cars swarming I-75, bearing the names of myriad small cities and towns clustered in the area, each with its separate police force. And for strangers who come to town, perhaps to ask questions about old crimes, the reception from law enforcement can be downright hostile.

Train tracks in Adel, GA seen through the reflection of a business window.

Train tracks in Adel, Ga., seen through the reflection of a business window.

Photo: Ryan Christopher Jones for The Intercept

Another Killing

It was not long before the murder of Shailesh Patel was dramatically eclipsed by a third gruesome murder in Adel. Just seven months after Patel’s body was discovered on North Gordon Avenue, a beloved local grocer and his employee were beaten to death in broad daylight at a small store near the railroad tracks, just two miles away. The murder “horrified and revulsed the community,” the News Tribune reported on November 15, 2000, with a mugshot of the perpetrator on the front page: 20-year-old Hercules Brown.

It was a familiar name. In fact, for nearly two years, “Hercules Brown” had been whispered and muttered out loud — by callers to the newspaper, by gossiping teenagers at the car wash on 4th Avenue and Martin Luther King Boulevard, and by locals interviewed by the GBI. It was a name that came up in rumors, not only after the brutal killing of Shailesh Patel earlier that year, but also following the 1998 death of Donna Brown at the Taco Bell, where Hercules had worked for two years, often on the closing shift. As a different man sat in jail awaiting trial for that crime — swearing he was innocent — the brazen double murder in the fall of 2000 resurfaced old questions in Adel. Did police get the wrong man in 1998?

It is often said that the tragedy of wrongful convictions is not just what they mean for the innocents who lose their freedom, but also the threat they present to communities as a whole. When a person is imprisoned for a murder they did not commit, the real perpetrator is free to kill again. Among longtime residents of Adel, the period between the fall of 1998 and the fall of 2000 is a bad memory, a time when four people were violently murdered across a four-mile radius. Whether some of the murders could have been avoided is a question few seem willing to confront.

Almost 20 years later, Adel residents have moved on from that era in the town’s history. Yet the man convicted for the murder at the Taco Bell, Devonia Inman, has continued to proclaim his innocence while facing the prospect of dying in prison. Today, there is good reason to believe him, including compelling new evidence showing that police got it wrong. Many involved in the original case do not understand why Inman is still in prison. Others simply refuse to revisit it. From the Cook County Sheriff’s Department to the State Supreme Court, his pleas have proven futile. In Georgia, the truth will not set you free.

The Taco Bell in Adel, GA. Devonia Inman was convicted of a murder that happened in the parking lot of this Taco Bell in 1998.

The Taco Bell in Adel, Ga., in July 2017.

Photo: Ryan Christopher Jones for The Intercept

The Taco Bell Murder

It was well after midnight on September 19, 1998 and 40-year-old Taco Bell manager Donna Brown was still trying to close for the night. It was only her third day on the job, and she was having a problem with the staff time cards. Employees working the closing shift usually left the restaurant together, but Brown told the two teenagers with her that night to go on home. Brown said she would call the Adel Police Department for an escort when she was ready to leave — a courtesy routinely extended to employees making late-night bank deposits. That evening, the Taco Bell’s deposit would be roughly $1,700.

Robin Carter and LarRisha Chapman, both students at Cook County High School, were working with Brown that night. Carter was picked up first; she remembered seeing Chapman pacing back and forth as she waited for her boyfriend to pick her up, which he eventually did shortly before 1 a.m. It was 1:52 a.m. when Brown finally clocked out.

A call came in to Adel police dispatch 12 minutes later. Customers at a nearby Huddle House restaurant had seen someone lying outside the adjacent Taco Bell, possibly passed out drunk. An employee called the cops. When police arrived on the scene, they found Donna Brown’s lifeless body in the middle of the otherwise empty parking lot. She was on her back; her employee uniform was intact — her white, short-sleeve collared shirt was tucked into pleated navy pants; a green chile-shaped nametag was still attached to her shirt — and her arms were splayed out to each side. Her head was cocked slightly to the left, her wavy hair matted from blood that had spread out across the asphalt. She had been shot once through her right eye with a bullet that police would later conclude had been fired by a .44 revolver.

A medical examiner would eventually testify that abrasions on Brown’s palms and left knee suggested she had fallen and tried to catch herself. Investigators would theorize that she had been killed by someone lying in wait, based on strands of vegetation found on her pants, which matched the weeds that ran along the parking lot curb. In one spot, those weeds were tamped down — a sign to the police that the killer had sprung from the bushes, surprising her before shooting her to death.

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A photo of Donna Brown’s hand at the crime scene.

Photo: GBI

There had recently been a similar ambush at a fast food restaurant just over the interstate from the Taco Bell. Two Hardee’s employees were heading out after midnight on August 11, when a man in a ski mask emerged from the bushes next to the drive-thru window, pointing a pistol and demanding cash. But there was nothing to hand over — “we don’t take the money out at night anymore,” one of them told him. She and her co-worker drove straight to the police station, but officers lost the masked man as he ran off across a field.

If the murder of Donna Brown just one month later had any connection to the attempted robbery, police would never find out. Adel Police Officer Kevin Purvis was the first to arrive at the Taco Bell that night. He secured the area, putting crime tape around the scene. Then he waited. Later he would testify that, although there were people in the surrounding area at the time he found Brown’s body, he did not know who they were. He didn’t interview them to see if there was a possible witness. Nor did he find out who called 911. There was no police report; none of the Adel police officers at the crime scene that night documented their discoveries or recorded their actions. “We don’t usually do reports for murders,” Purvis explained. Everyone knew the case would be handed over to the GBI.

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A photo of the crime scene.

Photo: GBI

It was true that the GBI would take charge when a serious crime occurred in Adel. The agency had investigative resources far beyond that of rural police forces in South Georgia, some of which did not even have an investigator on staff. Although the Adel Police Department employed a full-time detective — a man named Jimmy Hill — the murder at Taco Bell would soon be led by GBI Agent Jamy Steinberg.

A thickset man with an imposing presence now in his mid-40s, Steinberg was a rookie when he was tasked with solving Brown’s murder. He had previously been a member of the South Georgia Drug Task Force, one of several narcotics units born of federal funding to fight the war on drugs. Tim Balch, the former Adel police officer who would later respond to the Patel murder scene, remembers Steinberg as methodical, a stickler for paperwork, and comically clumsy at times. “If there’s a court day, you’ll know it because he’ll spill something on his tie that day at lunch,” Balch recalled.

Steinberg arrived at the Taco Bell at 3:30 a.m. accompanied by members of the GBI crime scene unit. As the team began processing the murder scene, two things were immediately clear: The bank deposit was missing, as was Brown’s black 1995 Chevrolet Monte Carlo. The car was soon found in the parking lot of a long-shuttered Pizza Hut just over the interstate overpass. But neither the money nor the deposit bag was ever found — even though the Adel News Tribune would report, repeatedly, that the deposit bag had been recovered from the car.

There was plenty of physical evidence at the scene. Brown’s keys were wedged between the driver’s seat and the door; her purse was in the trunk. A pink bath towel was lying on the ground next to the car. Several finger and palm prints were lifted from the car, and investigators found tire tracks from a single vehicle leading into the parking lot, along with a shoe print near the abandoned car. Yet investigators somehow overlooked the key piece of evidence among these items, despite it being clearly visible in crime scene photos. Draped across the front passenger seat of the Monte Carlo was a makeshift ski mask, constructed from a length of gray sweatpants, with two eyeholes cut into it. The mask went undiscovered for approximately two weeks, until it was found in the car by Brown’s family.

That missed ski mask would be something of a harbinger for the investigation to come. The nearly 1,000-page GBI report on the murder of Donna Brown is thick but shallow, filled with leads never followed. Describing the GBI investigation to a jury years later, prosecutors claimed it was exhaustive: “They went down every path, they went down every road until they could exclude a person,” Assistant District Attorney Tim Eidson promised. But in fact, the opposite was true. After perfunctory efforts to match the finger and palm prints to several seemingly random people, the GBI quickly zeroed in on a single suspect who matched none of the physical evidence. With Adel Police Detective Jimmy Hill by his side, Steinberg turned to a 20-year-old who was new in town, with a recent history of run-ins with the police. His name was Devonia Inman.

Old family photos at Dave and Dinah Ray's house in Sacramento. The top photo is of Devonia Inman.

Family photos on display at Dave and Dinah Ray’s home in Sacramento, Calif., including Devonia Inman at the top.

Photo: Ryan Christopher Jones for The Intercept

A Troubled Teen

Devonia Tyrone Inman was born on August 24, 1978, to Dinah Pickett and Eddie Lee Inman. He was delivered at home in a small house on Tomlinson Drive, just one mile southeast from where the Taco Bell would later stand. His father was in the military; when Inman was very young, his father’s post moved the family out of Georgia, leading them to Sacramento, California. His parents divorced when he was about 4 — Dinah would testify that her husband was abusive to her, including in front of their son. She remarried and stayed in California; Eddie Lee returned to Adel, eventually going to prison.

The move to California might have helped Inman avoid his father’s fate. As Inman’s aunt Ethel Pickett recalls, in her day, “when a black child graduated from high school, they went to the army. … They got out of Cook County, because if they hadn’t of got out of Cook County, they was going to jail.” Inman’s uncle, Ben Pickett, returned after a year deployed with the Marine Corps in Vietnam. “They didn’t have as many police then to really harass everybody,” he remembers about Adel in the 1970s. But like any segregated southern town, the law had a way of coming down hard on black folks. In 1982, Adel made national news after two white police officers fired their guns at a car carrying four black youth who were allegedly speeding. The car overturned, prompting calls from the NAACP for the cops to be fired.

By the time he was a teenager, Inman began getting in trouble in California. There was an arrest for armed robbery at 15, which landed him in juvenile hall, followed by an attempted robbery and car theft a couple years later. There was also a burgeoning pattern of domestic abuse. When Inman was 16, he was accused of choking and threatening to kill a girl he’d been dating for two weeks. Later, the family of a live-in girlfriend named Veronica filed several complaints against Inman, referring to him by his middle name. “Tyrone beats up Veronica all the time, but lately he has been getting much more violent,” her sister told police in 1997. An aunt described a phone call she overheard between her niece and Inman, who became enraged that her family was not letting her see him. “Fuck your aunt, fuck your grandma, fuck the law, I’m gonna get rid of them all,” he said.

Yet Inman also had a reputation for making empty threats, even among those who had been on the receiving end of his violent temper. “His bark is bigger than his bite,” said Marquetta Thomas, who met Inman when he returned to Adel in 1998. Her sister Christy Lima was dating Inman at the time of the murder at Taco Bell. He was violent toward her, Thomas said, but mostly he was a “pretty boy” who bullied girls because he wasn’t tough enough for real fights. For her part, Lima insisted that she was usually the one who got physical during fights with Inman, like the time she struck him in the face with a belt buckle. “Devonia probably hit me once, you know what I’m saying?”

There are different rumors for why Inman returned to Adel in the summer of 1998. One, still repeated among law enforcement, is that he was fleeing a murder rap in Sacramento. But according to his family, his mother simply thought he would stay away from trouble under the protection of his large extended family. That summer, the family was traveling South for a family reunion; before they returned to California, Dinah told Inman that she was going to leave him in Adel with his grandmother. He was angry, but his mother made it clear he did not have a choice.

It did not take long for Adel cops to remember the newly returned Inman. His relatives had deep roots in town, and his father had only recently gone to prison. Besides, Inman had already had his own run-in with the local law, after fathering a child with a girl during a visit to Adel in 1995. Inman showed up at the hospital that December, apparently against the mother’s wishes. “I just didn’t want him in there,” she later testified, denying she was afraid of him. “I just wanted him to leave.” But her mother and the nurses took out a warrant on Inman. Cook County prosecutor Bob Ellis charged him with terroristic threats and acts. He received 10 years’ probation, which he promptly violated by returning home to California. Breaking the terms of his probation would later come back to haunt Inman.

Marquetta Thomas at her home in Baldwin, GA. in 1998, Mrs. Thomas told investigators that Devonia Inman committed a murder at the Taco Bell in Adel, GA, but then recanted at trial.

Marquetta Thomas at her home in Baldwin, Ga. Thomas told investigators in 1998 that Devonia Inman committed a murder at the Taco Bell in Adel, but recanted at trial.

Photo: Ryan Christopher Jones for The Intercept

Case Closed

It’s unclear why investigators first set their sights on Inman for the murder of Donna Brown. The GBI report shows that his name was first provided by a man named Zachary Payne, a sometime drug dealer in his early 30s, who had once lived near Inman’s aunt. On the evening of September 20 — just over 24 hours after the murder — Jamy Steinberg went to see Payne in the trailer park where he lived. The one-page summary of the meeting is short on details, but it says that Inman had recently come to Payne’s door to harass him with a couple of friends. Payne suggested that Inman was mad because Payne “knew” Inman’s girlfriend, Christy Lima. But whatever their original beef, it was clearly far less important than what Payne claimed to have seen Inman carrying: a gun pulled from his waistband and pointed in Payne’s direction. There was little else beyond that. Payne had no specific information about the murder at the Taco Bell, but “believes Inman would be very capable of committing this crime,” according to the GBI report.

On September 22, Steinberg and Hill went to see Inman’s girlfriend Lima at the home she shared with her sister, Marquetta Thomas. According to the GBI report, Lima said that Inman had a bad temper, but she had never had problems with him. She said that he had once hidden a revolver “between the mattress and box springs in her bedroom,” but she hadn’t seen it since. Perhaps most importantly, she said Inman had been with her the night Donna Brown was killed. A third person, Victoria Allen, also said Inman had been at the house all night, except for a brief time when he left around 11 p.m., and that she did not think he was capable of committing the crime.

But Thomas told a very different story. Thomas told Steinberg and Hill that Inman had recently talked about “jacking and robbing” places in order to get enough money to “come up” in the Adel drug trade. He’d tried to involve her in his robbery plots, she said, but she declined. And she said Inman was not home the night of Brown’s murder — and that her sister would probably lie to protect him.

The next day, Jimmy Hill went to see Inman at the Adel jail. Conveniently, he had been picked up on a warrant for violating probation in connection with the incident at the local hospital several years earlier. Inman reluctantly admitted that he’d briefly possessed a gray .38 snub-nosed revolver that he’d found in his uncle’s closet. And he said that he’d been at Lima’s house all night on the night of the murder.

But police didn’t believe him. Investigators began re-interviewing individuals they had spoken to before. A big break came almost immediately, when 16-year-old LarRisha Chapman met again with Steinberg on September 24. Chapman had originally told him that nothing out of the ordinary had happened at the Taco Bell on the night of the murder. But now she had a new story to tell. Waiting outside the Taco Bell for her boyfriend, she said, she did see something — or rather, she heard something: While sitting on the curb tying her shoe, she was startled to hear Inman’s voice coming from the weeds. The person had a “bald head and a white tank top,” she said. She told Steinberg that she had been too scared to say anything earlier.

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A diagram of the Taco Bell parking lot, featuring measurements from key points in the crime scene.

Image: GBI

From there, the evidence against Inman began to stack up. A little over a month after the crime, a white woman named Virginia Tatem, a newspaper carrier, came forward with a damning account. On the night of the murder, she said she was under an awning outside the Howard Johnson’s just up the block from the abandoned Pizza Hut — the place where Brown’s car would later be found. It was around 2 a.m. and she was waiting for the papers to be brought up from Valdosta, when she heard what might have been a gunshot coming from the direction of the Taco Bell on the other side of the interstate. Shortly after that, she said, two cars came roaring across the overpass: the first, being driven by a black man wearing a gold chain, was a black two-door that matched the description of Brown’s Monte Carlo and going so fast that it fishtailed as it made the corner in front of her. Following close behind was a second car carrying at least two other black men and one black woman. They drove down the dark road that led to the Pizza Hut parking lot and disappeared. Steinberg showed Tatem a photo lineup, where she identified the driver of the first car. “Oh my God, that’s the one,” she said, according to the GBI report, covering her mouth and pointing at a picture of Inman.

The witness who would clinch the case against Inman came forward early in the new year. In January 1999, a man named Kwame Spaulding contacted the GBI from a jail in Valdosta, where he was being held on cocaine charges. Spaulding had been locked up with Inman, who remained in jail after being arrested on the probation violation. According to Spaulding, Inman had confessed to killing Brown, telling him he’d done the job with his girlfriend’s sister — presumably, Marquetta Thomas — and that the two had waited in the weeds for Brown to emerge. Then Inman shot her with a .44 caliber gun and the two had split the proceeds of the crime, leaving the deposit bag in Brown’s car. Spaulding asked if his jail time might be reduced for having provided this critical information. Steinberg said he would see about it.

On January 11, 1999, Inman was indicted for Donna Brown’s murder. His trial would not take place until 2001. In the meantime, elected District Attorney Bob Ellis announced he would seek the death penalty.

Inman’s relatives expressed disbelief. Ben Pickett recalls contacting Adel Police Chief Kirk Gordon and telling him repeatedly that the police had rushed to judgment, that word around town was that someone else had committed the crime. “I said, ‘You need to put the mens out on the street and find out what’s going on,’” he said, but was told, “No, we got our man.” Pickett answered, “Chief, you got the wrong man.”

A recent photo of Devonia Inman while in prison.

A recent photo of Devonia Inman while in prison.

Photo: Ryan Christopher Jones for The Intercept

Unreliable Witnesses

For all the circumstantial evidence pointing to Inman, there were reasons to think that his uncle was right. For one, Marquetta Thomas, whose story was so dramatically different from that of her roommates, had numerous potential reasons to lie. There was the fact that Inman mistreated her sister, which made Thomas hate him and gave her a motive to implicate him. More inconvenient for the GBI’s investigation, numerous people said Thomas — who would eventually be sent to prison for acting as a getaway driver in an unrelated armed robbery — had bragged that she herself was involved in Brown’s murder. She even fit the description of the woman in the second car that Tatem allegedly saw that night. Yet there is little indication in the GBI report that Steinberg investigated Thomas’s potential link to the crime.

Tatem’s story was also questionable. It was highly unlikely that she would have been able to see and hear everything she claimed from the spot where she stood that night. She had also waited more than a month to come forward — only after a $5,000 reward for information in the case had been published in the Adel News Tribune.

Finally, there were problems with Spaulding’s story. Like any jailhouse snitch, it was clear he sought to trade information to help himself, regardless of how accurate it was. But more importantly, many of the details he offered had been published in the newspaper by the time he came forward — including the erroneous detail about the deposit bag being left in Brown’s car. Spaulding also said that Inman had shot Brown with a .44 — a detail prosecutors would later say was never made public, convincing Steinberg that Spaulding was telling the truth. But that detail, too, had repeatedly appeared in the paper.

But the most significant reason to doubt the case against Inman was the GBI’s failure to pursue alternative suspects, central among them, Hercules Brown. In a brief interview with Steinberg, who had secured a list of all current and former Taco Bell employees, Hercules was asked questions that might implicate other people in the case, for example, whether Hercules knew of any trouble Donna Brown might have had with a boyfriend. Not surprisingly, Hercules said no.

Hercules, then a high school senior, worked at the Taco Bell for two years, often on the closing shift with LarRisha Chapman. He was not at work the night of the murder, allegedly because he was either at home or had been on a school band trip that evening. Yet numerous people came forward with information pointing toward Hercules. Though some of the information is included in the GBI report, there is no indication that Steinberg or Hill ever acted on any of the tips.

One man told investigators that his brother said Hercules had admitted that the crime was an inside job and that LarRisha Chapman was supposed to help him rob the store that night but that she’d chickened out. A second man also told police that he knew who did it — that the man had confessed to him that he’d used a .44 and that he’d worn a ski mask because Donna Brown knew who he was. The man would later say that the story had come from Hercules, while the two of them were talking at a local car wash.

Finally, Takeisha Pickett, Inman’s cousin, said she told Steinberg that before she quit her job at Taco Bell in July 1998, on two separate occasions, Hercules had asked whether she would join him in a plot to rob the store. Pickett turned him down. While Pickett is adamant that she gave Steinberg that information just two weeks after Donna Brown’s murder, it is not included in his report.

If Steinberg had followed up on these leads, there is a good chance that at least two, if not three, additional murders in Adel, Georgia, could have been prevented.

The post Who Killed Donna Brown? appeared first on The Intercept.

Elishia Sloan at Picture Rock Park on Oct. 28 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)
November 18, 2018

His Conviction Was Overturned. Why Is Arizona Doing Everything in Its ...

Elishia Sloan was 15 years old when her mother’s ex-boyfriend went to death row for a crime he swore he didn’t commit. It was 1995; Barry Lee Jones was convicted of raping and murdering a 4-year-old girl at the Desert Vista trailer park in Tucson, Arizona. Sloan had previously lived there with Jones and her mom, Joyce Richmond, who went by Rose at the time. The couple was hooked on drugs — all the adults at the trailer park seemed to be. But Sloan trusted Jones, who was like a father to her. “It’s weird, because usually as a pre-teen, you’re like, ‘You’re not my dad,’” she recalled. “But it wasn’t like that.” She did not believe Jones had killed that little girl.

Jones wrote letters to Sloan and her mother while awaiting trial in the Pima County Jail. He tried to be upbeat, using envelopes illustrated with cartoons. But after he was found guilty and sentenced to die, Sloan and her mom eventually fell out of touch with him. Sloan married a boy from the trailer park, later divorcing him, and settled with her mom in Montana. Richmond got clean while Sloan worked on raising her three kids. As the years passed, they would periodically look for information about Jones’s status on the website of the Arizona Department of Corrections. “It’s a scary feeling, looking at that page,” Sloan said. “But thank God it always said ‘Active.’”

Sloan and Richmond moved back to Tucson last year. Early last month, Sloan Googled Jones’s name and found the series of articles on his case published at The Intercept. They laid out the myriad problems behind Jones’s conviction: tunnel vision and sloppy police work by the Pima County Sheriff’s Department; unreliable evidence, from dubious eyewitness testimony to junk science; and a medical examiner who appeared to have shifted his conclusions to support the state’s case.

Elishia Sloan at Picture Rock Park on Oct. 28 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)

Elishia Sloan, photographed on Oct. 28, 2018, in Tucson, Ariz.

When Sloan got to the third story in the series, she called out to her mother, who was in another room. “I was like, ‘Oh my God, they overturned his conviction.’” Sloan sought out Jones’s legal team and spoke to Andrew Sowards, an investigator with the Arizona Federal Public Defender’s Office in Tucson. As it happened, he said, Jones was due in court the next day, October 12.

It was a gray, rainy morning as Sloan and her mother drove their black Ford truck to the U.S. District Court downtown and went up to the sixth floor. Richmond, 68, wore jeans, a coral top, and a gold chain. Sloan, 38, wore a shirt that said “Rock ’n’ Roll Forever.” At 9:20 a.m., Jones was escorted into the courtroom and seated just a few feet in front of them. He wore orange prison garb and looked almost unrecognizable, his remaining hair thin and gray. U.S. marshals walked in and out of the courtroom as Sloan and Richmond tried to follow the back and forth between the attorneys and U.S. District Judge Timothy Burgess.

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U.S. District Judge Timothy Burgess.

Photo: U.S. Court for the 9th Circuit

It was Burgess who had overturned Jones’s conviction, after presiding over an evidentiary hearing that exposed fatal flaws in the case. In his July 31 order, Burgess said Arizona prosecutors had to either retry Jones or release him, within a strict timeframe. But the Arizona Attorney General’s Office, which has spent years fighting to keep Jones on death row, filed a notice of appeal before the 9th Circuit Court to reverse the order and reinstate Jones’s conviction. Prosecutors also sought a stay from Burgess to waive the fast-approaching deadline to retry Jones. “We could be up in the 9th Circuit for a long time,” Jones’s attorney, Assistant Federal Public Defender Cary Sandman, told me. In the meantime, Jones would remain in prison.

Speaking before the court on October 12, Sandman pushed back on the state’s request for a stay. “The fact of the matter is that Mr. Jones has spent nearly 24 years on death row on a premise that’s completely faulty,” he said. That premise was that Jones had fatally assaulted the victim the day before she died. “And we now know there’s no reliable medical evidence to support that,” he said.

“When did it happen? Who did it?” Sandman went on. “We’re left now with no answers to those questions.” He added, “The time has arrived for him to get a fair trial.”

At around 10:30 a.m., Burgess declared a 20-minute recess and said he would hand down his decision when he returned. There was a quiet stir in the courtroom — federal judges rarely rule from the bench. When Burgess returned, he put on his glasses and read his decision aloud. The state’s motion for a stay was denied, he said. Prosecutors would have to move forward with a retrial, to begin by March 13, 2019. Jones was quickly whisked from the courtroom.

At a nearby McDonald’s afterward, Sloan and her mother processed what had happened. It was hard for Richmond to comprehend why the state insisted on fighting Jones’s release. “How do they sleep at night?” she asked. “They think he’s guilty,” her daughter replied. Neither of them believed it was true. In a 2002 affidavit filed by Jones’s legal team, Sloan wrote, “Barry would never hurt a child, especially not sexually. In fact, Barry was the one who always tried to protect the girls in the park from all the perverts who lived there.”

Sloan and her mother could think of plenty of other people in the trailer park who might have hurt that little girl. “If [detectives] had investigated right, they could have investigated everybody,” Richmond said. “There was a lot of weird men there. I’d be the first to admit that. They had just as much opportunity to do anything as anybody else.”

For a brief moment over the summer, it seemed possible the state of Arizona would be open to some kind of mutual resolution in Jones’s case. The Pima County Conviction Integrity Unit — an office founded in 2015 to review questionable convictions — had signaled it was open to examining it. In an August email, Supervising Deputy County Attorney Rick Unklesbay, who is in charge of the CIU, told me that “once the case comes back to this office we will be reviewing it.” But he backtracked in a more recent email, writing that “it’s a bit premature to have a discussion about where the case is going.”

The notion that the state must not be too hasty carries a cruel irony for Jones. At 60, he has spent much of his adult life on death row, struggling with depression and thoughts of suicide. After his conviction was overturned, “there was a sense of relief in Barry’s voice I’ve never heard,” Sowards told me. Sandman hoped to secure Jones’s release pending the appeal; Jones’s older brother, Otis, an Army veteran retired from law enforcement, signed an affidavit offering to let Jones stay at his home south of Tucson. But prosecutors cast Jones as a danger to the public, warning in filings that “any release from custody will be brief,” since Pima County law enforcement would be poised to re-arrest him in advance of a retrial.

If it was hard to imagine how the state could retry Jones given the dismantling of its case, a retrial nevertheless seemed to be on the horizon after Burgess’s October 12 ruling. Jones was appointed a trial attorney and a hearing was scheduled in Pima County Criminal Court. But on the eve of the hearing, his future was thrown into doubt once again. The state had asked the 9th Circuit to grant the stay denied by Burgess — the hearing was canceled. A week later, the 9th Circuit ruled for the state. It ordered that the appeal proceed as quickly as possible. Rather than allow its case against Jones to withstand the scrutiny of a new trial — and rather than face the likelihood of an acquittal — the attorney general’s office is determined to undo Burgess’s order overturning Jones’s conviction.

For Jones, the setback was compounded by his temporary transfer to Pima County Jail. According to Sandman, prison officials did not send any of the medication Jones takes for anxiety and depression. It was “very traumatic,” Sandman told me. Jones is faring better now, back among his old neighbors at the maximum-security prison in Florence, Sandman said, where Burgess’s order has made the rounds on death row. “It helps quite a bit that most people recognize he shouldn’t be there.”

It has now been more than a year since the evidentiary hearing in Jones’s case. Seven days of testimony in the fall of 2017 revealed how badly the Pima County Sheriff’s Department had botched the investigation into the death of 4-year-old Rachel Gray. The child’s lifeless body was carried into the hospital by her mother, Angela Gray, shortly after 6 a.m. on May 2, 1994. Angela, Jones’s then-girlfriend, had been living with Jones in his trailer along with her three children; it was Jones who dropped her off with Rachel at the hospital, then came under suspicion when he did not return.

In an aggressive interrogation later that day, Sheriff’s Detective Sonia Pesqueira accused Jones of killing Rachel, although it was not at all clear yet how she had died. Pesqueira never investigated the timing of Rachel’s fatal injury — a tear in her duodenum, part of her small intestine, caused by some sort of blow to her stomach. At the evidentiary hearing, it became clear that Pesqueira merely assumed the injury had occurred the day before Rachel died and tailored her investigation accordingly. But medical experts reiterated what they have said for years: that the injury could not have occurred in the window presented by the state.

To prevail at the evidentiary hearing, Jones’s attorneys had to show that his trial lawyers had provided ineffective assistance of counsel in violation of his Sixth Amendment rights. Burgess found that they had proved their case. In his 91-page order overturning the conviction, Burgess concluded that if not for the failures of Jones’s original defense attorneys, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.” He sharply criticized Pesqueira for her failure to interview alternative suspects, and Dr. John Howard, the former Pima County medical examiner, whose estimates about the timing of Rachel’s fatal injury had inexplicably shifted from his pretrial interviews to his testimony to the hearing decades later. Had Jones’s defense attorneys done their job properly, Burgess wrote, “the jury would likely have found Dr. Howard’s testimony not credible or persuasive.”

Burgess’s decision validated the feelings of at least two jurors who had served on Jones’s trial, both of whom told me that they had been troubled by the weakness of his defense representation. Hildegard Stoecker remained especially disturbed by the case. She had followed news of the evidentiary hearing and was glad to hear that Burgess had overturned Jones’s conviction. Had she known about the issues brought up at the hearing, she wrote in an email this past August, “I know I would never have voted to convict Barry Jones.”

The Evo A. DeConcini United States Courthouse seen on Oct. 22 in Tucson, Ariz.
(Caitlin O'Hara for The Intercept)

The Evo A. DeConcini United States Courthouse in Tucson, Ariz., on Oct. 22, 2018.

On November 14, prosecutors filed their appeal to the 9th Circuit. It was accompanied by thousands of pages of case records and exhibits — a daunting amount of material to review, especially given the expedited schedule ordered by the court. In their opening brief, prosecutors confidently reasserted Jones’s guilt, while rehashing arguments they have made before.

They insisted the medical evidence presented at the evidentiary hearing actually supported the state’s case against Jones. They argued that Jones’s trial lawyers had been perfectly adequate in investigating Rachel’s fatal injury, for example, by consulting with an independent pathologist. (Just because there was no indication the expert had ever reviewed the evidence necessary to provide an opinion didn’t mean it never happened.) Moreover, prosecutors said, even if the medical evidence did not prove that Jones had raped and fatally beaten Rachel, jurors would have found him guilty of endangering her health by failing to take her to the hospital the night before she died. Under Arizona law, this would still make him guilty of murder — and eligible for the death penalty.

Above all, the appeal invoked the powerful procedural barriers that routinely prevent people like Jones from winning challenges to their convictions. Under the U.S. Supreme Court ruling in Strickland v. Washington, which governs ineffective assistance claims, courts must show considerable deference to the decisions made by defense lawyers. The U.S. Supreme Court has said that there must be a presumption that their actions were undertaken “for tactical reasons rather than through sheer neglect,” prosecutors wrote, arguing that Burgess was wrong to find Jones’s defense unconstitutionally inadequate.

More confusing was the state’s continued insistence that Burgess should never have granted the evidentiary hearing in the first place. Prosecutors invoked the most reliable bulwark against revisiting questionable convictions: the Antiterrorism and Effective Death Penalty Act. Passed in 1996, a year after Jones was convicted, the sweeping law known as AEDPA drastically raised the bar for overturning convictions in federal court, in part by forcing judges like Burgess to show significant deference to rulings by state courts. When it came to ineffective assistance claims, AEDPA also bolstered rules shutting out such claims from federal review if a defendant had previously failed to bring them in state court.

For most people in Jones’s position, AEDPA is indeed the last word. But Jones got back into federal court thanks to a 2012 U.S. Supreme Court ruling that carved out a limited exception, at least in Arizona. Martinez v. Ryan held that, if the failure to bring an ineffective assistance claim in state court was itself due to the ineffectiveness of a state post-conviction attorney, a federal court could consider the claim. For Jones, Martinez opened the door to de novo review — a fresh consideration with no need to defer to a lower court. Crucially, this meant Burgess was not beholden to the strictures of AEDPA when considering his case.

Yet prosecutors insist the law still controls Jones’s fate. “Congress specifically intended AEDPA to limit federal evidentiary development,” they wrote, “and to restrict the general availability of habeas relief.” In other words, it was enough for Burgess to have reviewed Jones’s claim at all, they argued — Jones was not entitled to actually prove it in court.

In Sandman’s view, the AEPDA argument is “absurd.” Among other things, he pointed out that all the Supreme Court rulings prosecutors used to support it predate the Martinez ruling. “I’m not sure why they’re doing that,” he said. “Then again, I’m not sure why they’re doing anything that they are doing. Because if they were the least bit fair-minded, they would get on to either retrying Jones or let him go.”

Elishia Sloan at Picture Rock Park on Oct. 28 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)

Elishia Sloan, photographed on Oct. 28, 2018, in Tucson, Ariz.

Apart from dubious legal arguments, the state’s appeal to the 9th Circuit is perhaps most striking for its highly selective narrative about what happened at the Desert Vista in the spring of 1994. Whereas prosecutors once argued that lead detective Sonia Pesqueira followed the evidence of guilt for Rachel’s injuries “directly to Jones,” there is no mention of her now. Instead the state constructed a circumstantial case against Jones, starting with the claim that 4-year-old Rachel was afraid of him in the weeks leading up to her death. But this assertion rests heavily on testimony from Rachel’s sister, Becky, who was 10 years old when her sister died and whose statements evolved significantly over time to further implicate Jones. For a reader intimately familiar not only with Jones’s case but also with the trial of Angela Gray, who was convicted of child abuse but acquitted of murder, it is not hard to notice such things. It is far less clear what the 9th Circuit will make of them.

In our conversation at McDonald’s, Sloan remembered being glad when Jones would return to the trailer at the end of the day. “It wasn’t like, ‘Oh God, he’s home,’ the way it would be if he was an abuser,” she said. Like Jones’s own daughter, Brandie, who told police that her father never hit her, Sloan said Jones never laid a hand on her. She was just a few years older than Brandie; the girls used to sneak out of the trailer to hang out with the kids in the trailer park, which sometimes got them in trouble. Jones disciplined them but never harshly. “Barry caught me in the laundry room, kissing a boy, and I got grounded for, I swear, he said my ‘whole life,’” Sloan said. “But it ended up being a day.” Richmond remembered how if Brandie and Sloan wanted to smoke a cigarette, “they had to come inside and sit down in the room and read a book for an hour.”

“I hated it so much,” Sloan chuckled.

Sloan says she barely remembers anything from the time Jones went to death row. But she recalls being questioned by Pima County sex crimes prosecutor Kathy Mayer back in 1994. Sloan said Mayer tried unsuccessfully to get her to implicate Jones by showing her graphic photos from Rachel’s autopsy. “She’s like, ‘Look at these pictures. This could have been you,’” Sloan said. In her 2002 affidavit, Sloan wrote, “The prosecution wanted me to say how mean he was, but I would not lie.” Mayer, who retired earlier this year, did not return messages seeking comment.

Desert Vista Village seen on Oct. 22 in Tucson, Ariz. (Caitlin O'Hara for The Intercept)

Desert Vista Village, formerly known as the Desert Vista trailer park, on Oct. 22, 2018, in Tucson, Ariz.

In retrospect, Sloan says, the way they lived at the Desert Vista seems shocking. They didn’t always have food to eat; she remembers getting fresh fruit from a man who would bring produce in a truck from a food bank. Sometimes they got bags of leftover hamburgers that were thrown out by a nearby McDonald’s. “You look at it from the outside, and you’re like, ‘Wow. These poor kids,’” Sloan said. But she doesn’t remember her childhood as unhappy.

Richmond says that for all the problems at the trailer park — and despite what happened to Rachel — the community there tried to look out for one another, especially for the kids. Jones was particularly well-liked, Sloan remembered. “He would give you the shirt off his back,” she said. “Barry was a very nice-looking guy when we met,” Richmond says. She was “head over heels.” Richmond and Sloan passed by the Desert Vista when they returned to Tucson last year. “It looked the same, but it wasn’t the same, you know?” Richmond said.

Sloan felt guilty about falling out of touch with Jones. “It’s weird to see how he’s aged so much,” she said. She became emotional when I mentioned the letters he sent her from jail, which she did not remember now. Richmond said Jones wrote her a letter at one point and said, “‘If you’re not gonna be consistent about writing me, don’t write me anymore.’ And I didn’t. And I should’ve. But 24 years is a long time to write letters every day or every week, you know?”

The post His Conviction Was Overturned. Why Is Arizona Doing Everything in Its Power to Keep Barry Jones on Death Row? appeared first on The Intercept.

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October 29, 2018

Rodney Berget Says He Wants to Die. South Dakota Plans to Kill Him. Bu...

One of the first times Juliet Yackel met with Rodney Berget at the South Dakota State Penitentiary in Sioux Falls, he shared something startling about his childhood. “He told me he had been in the Special Olympics,” she said. Berget seemed proud as he brought up the memory. As a young kid in the 1970s, he had problems fitting in, and this had been a rare chance to compete — “to be able to be just like everybody else around him,” Yackel recalled.

In a different context, this might not have raised an eyebrow. But Berget was on death row. Under the U.S. Supreme Court ruling in Atkins v. Virginia, people with intellectual disabilities are ineligible for execution — it is one of the first things defense attorneys are supposed to look for when representing a client in a capital case. Yet there was no sign Berget’s trial attorney had investigated this background at all.

Yackel, a veteran mitigation specialist based in Chicago, had originally been hired as part of Berget’s state habeas appeal, to seek possible claims of ineffective assistance of counsel — failures by his original defense attorney that might show Berget’s trial had violated his constitutional rights. As she started to go through the attorney’s files, she noticed public welfare records that immediately caught her attention. One showed that Berget had been evaluated by a psychologist when he was 9 years old, who assigned him an IQ score of 70. “This boy appears to be quite immature and to be suffering from borderline mental retardation,” the psychologist wrote. “He probably should be in special education classes.”

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Rodney Berget in an elementary school class photo.

Photo: Courtesy of Ed Korbel

Yackel began to dig deeper into Berget’s childhood history. She met with two social workers who shed light on Berget’s home life, which was rife with alcoholism and physical abuse. His defense attorney had discussed some of this at trial. But he never mentioned that the social workers had been assigned to Berget in large part over concerns he had an intellectual disability.

It quickly became clear to Yackel that something had gone horribly wrong with Berget’s defense. “All of these pieces of the puzzle were available and not pursued,” she said. The revelation about the Special Olympics was just one more. After calling the organization’s office, she received a letter signed by the CEO, who confirmed that “Rodney Berget’s name appeared on our 1973 State Meet roster” in Sioux Falls. He was 10 years old, a student at Monroe Elementary School in Aberdeen.

Yackel was still pursuing her investigation when Berget sent a letter to Judge Douglas Hoffman in August 2016. It said that he wanted to drop his appeals. This made him a “volunteer” in legal parlance — and vulnerable for imminent execution. It was only after this, in September 2016, that Berget’s post-conviction attorney, Eric Schulte, told the court that it appeared “a complete investigation” into Berget’s mental competence had never been done.

It’s not unusual to see evidence of abysmal defense lawyering in old capital trials. When Yackel graduated law school in 1992, mitigation was a concept that had not fully caught on in many courtrooms across the country. It was not until the 2000s that the American Bar Association developed specific guidelines defining the role of mitigation specialists in capital defense: individuals trained to investigate a defendant’s family background, as well as screen for mental illness and intellectual disabilities. But Berget’s conviction was not old at all. He was convicted and sentenced to die in 2012. “It’s not like we’re talking about looking back at an old case where we didn’t know what we were doing,” Yackel said. “This was where the highest standards of care were already in place.”

Schulte, a civil attorney in Sioux Falls, had no previous experience with capital cases. But during the appeal he knew he was obligated to ask for time to complete the investigation into Berget’s mental competence, which could prohibit his execution. At the September 2016 hearing, Judge Hoffman obliged. The defense hired Dr. Greg Olley, a leading expert in developmental disabilities at the University of North Carolina. Over the next year, Olley reviewed all the available records and interviewed 15 people who knew Berget, including former teachers, social workers, family, and friends. He also reviewed intelligence tests individually administered to Berget between the ages of 9 and 17. In Olley’s subsequent reports, he explained that a diagnosis of intellectual disability required evidence of “significant impairment,” both in general intelligence and adaptive behavior, and the “origin of these impairments in childhood.” All of these factors applied to Berget.

South Dakota prosecutors hired an expert too, a psychologist who swiftly produced a report finding that Berget did not have an intellectual disability. But he conducted no interviews and relied on tests and sources that were widely considered to be invalid by leading medical experts. In fact, mere months after he released his report, the U.S. Supreme Court handed down a ruling that thoroughly debunked the factors he relied on in his evaluation of Berget. The 2017 decision in Moore v. Texas invalidated Texas’s methods for assessing intellectual disabilities, which were rooted in scientifically unsound stereotypes. South Dakota’s expert had drawn on these very same misconceptions. He did “everything that Moore says you should not do,” Yackel said.

In 2017, Hoffman granted an Atkins hearing to settle the question for good. As it approached, Yackel felt confident the state’s expert would be forced to concede he was wrong. But on the stand in January 2018, the expert stuck with his findings. On February 1, Hoffman sided with prosecutors and upheld Berget’s death sentence. “There was no incorporating the new standards, no acknowledging Moore at all,” Yackel said.

“This is one of the clearest-cut cases of intellectual disability that I’ve ever worked on,” Yackel said. “There is no question here. This is not a close call.” She pointed out an ugly irony. It was the state itself, through its schools, that first deemed Berget in need of special education resources to accommodate his intellectual disability when he was a child. “Now that exact same state is turning its back on their own original finding,” she said. “It’s the only way that they justify killing him.”

Barring any last-minute intervention, Berget will die on Monday at 1:30 p.m. Unlike most death penalty states, South Dakota does not set an exact execution date months in advance; a warrant issued by Hoffman in August said that Berget would die sometime between October 29 and November 2. On Friday morning, the South Dakota Department of Corrections issued a press release announcing the date and time.

On Friday afternoon, Yackel — who is also an attorney — filed an emergency writ to the South Dakota Supreme Court. She argued that Berget was not competent to make the decision to end his life. She also chronicled Berget’s decadeslong history of self-harm, including several suicide attempts beginning when he was a teenager. Along with evidence of intellectual disability, Yackel argued, Berget showed signs of mental illness that his attorneys failed to explore — which she suspects were at the core of his decision to drop his appeals.

Questions of mental competence are often raised about “volunteers” for execution. For lawyers who represent such individuals, ethical obligations to their clients do not necessarily allow them to fight on all fronts to save their life. But that is what makes mitigation so critical at the outset. In Berget’s case, judges repeatedly asked his trial attorney, Jeff Larson, whether Berget was competent to make decisions on his own behalf. Larson said he was but he never carried out an investigation to be sure.

On Saturday, Larson filed an affidavit signed by Berget. It rejected Yackel’s intervention and reasserted his decision to die.

Berget’s crime was certainly serious. He was convicted of killing a prison guard during an attempted escape in 2011. And he has a history of violence that would make plenty of people accept his execution without a second thought. But his case also reveals a disturbing breakdown in the constitutional protections that are supposed to be in place for people facing the death penalty. Dr. Stephen Greenspan, the most cited authority on intellectual disability in capital cases, recently reviewed the records in the case. He called it “one of the most outrageous” cases he’s seen, citing “the egregiousnesses of the ruling that was made by the court” after the Atkins hearing.

Greenspan explained one of the major problems that can surface in cases like Berget’s. Like most of the general public, “lawyers and judges are laypeople when it comes to their background and understanding of intellectual disability,” he said. They think of someone with an obvious impairment that can be easily detected. This problem is compounded if defendants make efforts to hide evidence of intellectual disability. “I have a lot of experience with lawyers who overestimate the competence of their clients,” Greenspan said. Neither Larson nor Schulte responded to messages seeking comment for this article.

The ethical dilemmas presented by death row volunteers are not new in South Dakota. Of the three people executed in the state since the death penalty returned in the late 1970s, all of them had dropped their appeals. Among them was Berget’s own co-defendant, who was executed in 2012. But Berget’s case is unusual in another way. His older brother, Roger, was executed in Oklahoma in 2000.

To Sean O’Brien, a law professor at the University of Missouri in Kansas City, who spent decades representing people on death row, the scenario is both unique and predictable. “The kind of trauma that Rodney experienced growing up was also visited on his brother,” he said. For Berget, who looked up to his brother as a child, the challenges of an intellectual disability would make it even harder to cope with the magnitude of such trauma. “These things are not separate,” O’Brien said. “They’re layered on top of one another.”

Investigators stand at the entrance to the South Dakota State Penitentiary in Sioux Falls, S.D. on Tuesday, April 12, 2011.  Two inmates killed a guard Tuesday during a failed escape attempt at a Sioux Falls prison, authorities said. Rodney Berget and Eric Robert, both 48, were apprehended on the grounds of the South Dakota Penitentiary, and a sweep of the facility showed all staff and inmates accounted for, the state Department of Corrections said.  (AP Photo/Argus Leader, Elisha Page)

Investigators stand at the entrance to the South Dakota State Penitentiary in Sioux Falls on April 12, 2011.

Photo: Elisha Page/The Argus Leader via AP

There is no denying the violence that sent Berget to death row.

The victim, Ronald Johnson — known as “R.J.” to his friends and family — was working a shift at the South Dakota State Penitentiary on April 12, 2011. It was his 63rd birthday, and he was supposed to be off of work. But a colleague had called in sick. At 7:15 in the morning, he arrived at the prison. He was wearing a baseball cap, brown pants, boots, and his state-issued uniform coat. In his wallet he carried photos of his grandchildren.

Johnson was assigned to the Prison Industries building, which housed Pheasantland Industries, a division of the South Dakota Department of Corrections. For 25 cents per hour, incarcerated workers produced a wide range of “high-quality, low-cost products for state agencies,” according to the Pheasantland catalog, from bookbinding to cabinets to license plates. Toward the back of the building was an area where lumber was sorted and stacked. That’s where Johnson’s body would be found.

A fellow guard discovered Johnson later that morning. He was lying face down, his head in a pool of blood. He was not wearing pants or shoes. The guard testified that as he rolled Johnson over, he found layers of Saran Wrap around his face. A medical examiner would later find that Johnson had died from blunt force trauma to his head.

By the time Johnson was taken to the hospital, two men were already in custody. One of them had been found wearing Johnson’s clothes: Eric Robert, serving an 80-year sentence for kidnapping. A corporal would later describe how — before anyone knew what had happened — he saw a guard he did not recognize approaching a prison entrance at around 10:30 a.m., pushing a handcart carrying boxes. He said he had forgotten his ID card. As the corporal asked for backup forms of identification, a second man, Berget, leaped from a box on the handcart. Both men began attacking the corporal. Another guard sent out an emergency alert. Robert tried to scale a fence to escape but realized he was trapped. He climbed down and shook hands with Berget. Both men then surrendered.

Although they were both serving serious sentences, Robert and Berget had lived very different lives before arriving in prison. Berget’s family background had the familiar hallmarks of many people who end up on death row — alcoholism, abuse, and early run-ins with the law. But Robert was a “model citizen,” according to one news article, a born leader who “put himself through college and had a successful career in wastewater treatment.” At Robert’s 2011 trial, his sister testified that he “took care of everything. He took out the trash, he made sure dinner was on the table, he even did grocery shopping.”

Berget was in many ways the opposite. He was slow for his age and struggled in school. Teachers would say he seemed a bit lost and tended to go along with the group. He followed his older brother, Roger, which got him into trouble. At 12 Berget was caught stealing donuts; at 15 he went to an adult prison for stealing a car. Later, Berget was briefly married to a woman who would later complain that he did little to contribute to their household and relied on her financially.

If their profiles would suggest that Robert was more likely to have come up with the plan to kill a guard and escape, this was never made clear at Berget’s trial. A different man would later admit to providing the metal pipe used to kill Johnson. But the roles of all three men remained murky. Addressing the third man in 2012, Minnehaha County Judge Bradley Zell observed that the full facts of the case would go to the grave with the co-defendants, while maintaining that “we do know what took place, at least to a certain extent. And some things, maybe it’s best we don’t know exactly all that happened.”

Eric Robert, center, and his defense lawyer, Mark Kadi, listen to Judge Brad Zell read the sentence for Robert's killing senior corrections officer Ronald "R.J." Johnson during a failed escape attempt in Sioux Falls, S.D., Thursday, Oct. 27, 2011. Robert was given the death penalty. (AP Photo/Argus Leader, Devin Wagner)

Eric Robert, center, and his defense lawyer, Mark Kadi, listen to Judge Bradley Zell read Robert’s sentence for the murder of Ronald Johnson.

Photo: Devin Wagner/The Argus Leader via AP

Nevertheless, it was clear that Robert saw himself as being at war with his keepers. At his trial, where he pleaded guilty to first-degree murder, he said he would have killed more guards if he had to. “Robert provided under oath that he attempted to bait a guard to get close enough to him during the end of his foiled escape attempt so he could grab his gun to continue killing,” Zell wrote in his sentencing order. “On April 12, it was a war to me,” Robert said. “It was the staff’s duty to ensure I stayed in prison for the rest of my life and it was my duty to defeat them.” In October 2011, Zell sentenced Robert to die.

The next month, Berget changed his plea from not guilty to guilty. He also waived his right to a jury trial, meaning Zell would hear all aggravating and mitigating evidence and then make a decision about his sentence. Defense attorney Jeff Larson repeatedly assured Zell that his client was not only competent, but smart enough to make such a choice. “Mr. Berget is very intelligent and quite competent,” he said. “We’ve had numerous long conversations about this matter.”

Larson, who is 63, was a veteran public defender in Minnehaha County when he first took the case. But about a month after Berget entered his guilty plea, Larson was suddenly fired. An article in the local paper said Larson “found his things piled up outside the door of the public defender office.” The office would not say why he was fired. Larson continued to represent Berget pro bono, with no mitigation expert.

It is possible that the judge would have sentenced Berget to die no matter what. As the trial began in January 2012, prosecutors pointed to Berget’s history of prison escapes dating back years and called witnesses whose harrowing testimony established several other aggravating factors, including the convictions that sent him to prison in the first place. An ex-girlfriend recounted how Berget showed up at her house and shot her boyfriend, then wounded her, too. Another woman testified that, on the same day, he took her hostage from the convenience store where she worked and raped her while driving 100 miles an hour on the highway. After a standoff with police, Berget was captured, convicted, and given two life sentences.

Finally, there was the heart-wrenching testimony from Johnson’s family. His daughter, a nurse anesthetist, was on duty at the hospital the morning her father was brought in. Johnson’s widow, Lynette, described how his murder shattered her. “He was my life,” she said. “We didn’t even go to the gas station without each other.”

Lynette Johnson, the wife of slain prison guard Ronald "R.J." Johnson, reacts as media witnesses describe to reporters the final moments of murderer Eric Robert, her husband's killer, on Monday, Oct. 15, 2012, in Sioux Falls, S.D. Robert and another inmate, Rodney Berget, killed Ron Johnson in April 2011 during a failed prison escape attempt. The Monday execution marked the first execution in five years and the second in more than half a century for the state. (AP Photo/Amber Hunt)

Lynette Johnson, wife of slain prison guard Ronald Johnson, reacts as media witnesses describe the final moments of Eric Robert, her husband’s killer, on Oct. 15, 2012, in Sioux Falls, S.D.

Photo: Amber Hunt/AP

In the face of such overwhelming evidence, Larson put on an astonishingly weak defense. Even if his client’s guilty plea meant it technically did not matter who struck the fatal blow, the question of culpability could still make the difference between life or death. Yet the case files reveal no effort by Larson to show that Berget might have been the less culpable party. He did not even cross-examine the prison guards who took the stand.

When it was time to present evidence for the defense, Larson called four witnesses whose testimony sometimes bolstered the state’s case. One was an associate warden who worked at the prison where Berget was incarcerated as a teenager, who described him as a flight risk. A different prison employee remembered thinking of Berget as “a throwaway kid,” but also “saw him as a fairly intelligent man.” A paralegal described his troubled upbringing but made no mention of the most serious mitigation evidence available in his file: evidence of intellectual disability that could have convinced the judge to spare his life.

At the end of the trial, Berget spoke on his own behalf. “All I have to say is that I’m guilty of taking Ronald Johnson’s life,” he said. He “destroyed a family” and would not beg the court to spare his life. “I believe I deserve the death penalty for what I’ve done.”

On February 6, 2012, the judge sentenced him to die.

Just a few days after Berget received his death sentence, his adult son, Travis, got in touch with his lawyer. The contact from his son came as a surprise to Berget, and he began calling him frequently. Larson had not previously reached out to Berget’s family. In fact, Larson wrote in his direct appeal that Berget “forbade defense counsel from engaging in a complete mitigation investigation or from calling his family to testify, stating, ‘one family in the courtroom going through that much pain is enough.’” It is not clear what exactly was behind this language, but it would prove self-sabotaging.

In 2013, the South Dakota Supreme Court remanded Berget’s case back to the trial court for re-sentencing. At a subsequent hearing, Larson tried in vain to convince the judge that he should be allowed to enter new mitigation evidence based on his client’s newfound relationship with his family. But the state pointed to Larson’s own words to persuade the judge to deny the motion. Berget was re-sentenced to die.

To experts who have reviewed the case, Larson’s conduct was unconscionable. In one of his most bewildering moves, Larson insisted he wanted to keep representing Berget in post-conviction, “a violation of professional ethics,” according to O’Brien. Ordinarily, a lawyer who represents a client at trial and then on direct appeal will be replaced by a different attorney, who can then bring forward any ineffective assistance of counsel claims. A lawyer can’t bring such a claim against himself — to do so would be an obvious conflict of interest. It was only when the state attorney general’s office raised alarm that the court appointed a new attorney, Schulte, to handle the ineffective assistance claim.

Both Larson and Schulte plan to attend Berget’s execution.

Among those who hold out hope that Berget will not die on Monday is Ed Korbel. Yackel tracked him down last year as one of the chaperones who took Berget to the Special Olympics as a young teacher in 1973. Korbel’s memories are fuzzy now. He remembers the kids marching in for the opening ceremony. “It was one of those hot, sunny spring days where our main concern was, oh my God, are these kids all going to get sunburned because we hadn’t thought to bring sunscreen along.”

Korbel does not remember what Berget competed in. But he remembers him as a student. He was “a very personable kid in those days,” he said, but “very low functioning.” When you live in a small town like Aberdeen, he said, you tend to know what’s going on around you, and he knew Berget lived in a rough household. “Coming from the family he had, I thought he presented himself fairly well,” he said. But later, “it all went to hell.”

Korbel took the stand at the Atkins hearing. To his surprise, Schulte did not ask him about the Special Olympics. He was disturbed by the outcome. “I just thought the Supreme Court outlawed the death penalty for people of diminished mental capacity,” Korbel said. In fact, even before the court handed down Atkins in 2002, South Dakota was one of the few states to pass legislation forbidding people with intellectual disabilities from being executed.

Today Korbel gets frustrated at the attitudes he encounters about Berget’s case. “People right away think you’re trying to say he’s not guilty,” he said. “We’re not saying that. He’s as guilty as sin. He was part of the escape process where a correctional officer was killed.” But that doesn’t mean Berget should be executed in violation of the Constitution, he said.

Korbel hopes Berget will reconsider volunteering to die. He even told Yackel that if Berget wanted him to be a witness to the execution, he would be willing. Perhaps the offer alone would stir something in Berget, he reasoned, make him think, “Maybe I should stick around for a while.” He can’t help but feel like Berget would not have ended up where he is had he grown up in a different place. “Sometimes you just wonder if you’re part of the guilt too,” he added. “Maybe you should’ve done more if you could’ve, that type of thing.” He thinks about the kids he works with now. “I don’t wanna see them as future Rodneys either.”

Top photo: Rodney Berget is escorted into Minnehaha County Court to face murder charges in Sioux Falls, S.D., on April 13, 2011.

The post Rodney Berget Says He Wants to Die. South Dakota Plans to Kill Him. But Experts Say His Execution Would Violate the Law. appeared first on The Intercept.

Frye-1539718681
October 17, 2018

“Relic of Another Era”: Most People on North Carolina’s Death Ro...

In the summer of 2001, North Carolina executed 42-year-old Ronald Wayne Frye, convicted of stabbing and robbing his 70-year-old landlord in 1993. The crime was brutal and there was no question of his guilt. Yet the circumstances of Frye’s trial and conviction would come to shock members of the public — and even members of his own jury — as his execution approached. Two jurors came forward to say that they would not have sentenced Frye to death row had they known then what they had since learned.

Like many who end up on death row, Frye lived a life marked by severe abuse and trauma. This history was never investigated by his defense attorneys, despite the fact that it would have made for powerful mitigating evidence. “A background of neglect and abuse would have changed my decision and my vote,” one juror told the Hickory Daily Record weeks before Frye’s execution. Among the evidence the jury never heard was that Frye’s mother had given him and his brother away to a pair of strangers she met at a gas station when Frye was a young boy. The couple beat Frye and his brother with a bullwhip and forced the boys to beat each other as well.

Frye was reluctant to share this history with his court-appointed lawyers. “I didn’t want my family involved,” he told one reporter. “I felt like I had shamed them enough already.” A competent capital defense attorney would have navigated this challenge to save a client’s life. Instead, Frye was represented by a man named Tom Portwood, a dentist-turned-attorney who had a severe drinking problem. His alcoholism would force him to stop practicing just a few years later. Portwood all but abandoned his client, later admitting that he did no work on Frye’s case outside the courtroom. Portwood’s co-counsel did not speak up until two weeks before Frye’s scheduled execution, writing in a sworn statement that he “chose to believe the best about my friend for as long as I could.”

North Carolina’s legal community was moved to action by Frye’s looming execution. “For the first time in its 35-year history, the 4,000-member N.C. Academy of Trial Lawyers asked for clemency for a death-row prisoner,” the Raleigh News and Observer reported in August 2001. If the governor allowed the execution to go forward, the group’s president said, “The right to counsel has lost its meaning in this state.” Nonetheless, on August 31, 2001, Frye died by lethal injection.

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Ronald Frye, executed in North Carolina in 2001.

Photo: Courtesy of the Center for Death Penalty Litigation

Frye’s execution came at a flashpoint for capital punishment across the country. In the late 1990s, the American Bar Association had recommended a national moratorium on the death penalty, citing unfair trials, racism, and wrongful convictions as pervasive problems. In North Carolina, activists, lawyers, and lawmakers took up the cause; in 2000, a legislative commission recommended a moratorium on executions in the state. A few months before Frye’s execution, a major study examining data from 1993 through 1997 found new evidence of racism in North Carolina’s death penalty system.

It was in this same era that the North Carolina legislature passed the first in a series of hard-fought reforms to the state’s death penalty system. Among them was the establishment of Indigent Defense Services, a state office that coordinates the representation of people facing the death penalty. Opened in July 2001, it imposed standards to ensure that cases were assigned to competent lawyers who received decent compensation — too late for defendants like Frye, but to the benefit of scores of defendants in the years to come.

The majority of people on death row were tried in a system that was effectively rigged against them.

The overhaul of indigent defense was a game-changer in North Carolina. But it was its combined effect with other systemwide reforms that would transform the landscape of capital cases in the state. This evolution is at the heart of a new report by the Durham-based Center for Death Penalty Litigation. Titled “Unequal Justice: How obsolete laws and unfair trials created North Carolina’s outsized death row,” it reveals how the majority of people on death row were tried in a system that was effectively rigged against them. Of the 142 men and women facing execution in North Carolina, more than 100 — 73 percent — were sentenced before the creation of the indigent defense office. The majority were also convicted prior to laws that prohibit the execution of people with mental disabilities; impose protections against wrongful convictions; and require prosecutors to share evidence against defendants before trial.

The CDPL report shows how the implementation of such reforms has led to a precipitous drop in death sentences. “The death penalty is all but extinct in North Carolina,” the authors write. “Juries have recommended only a single new death sentence in the past four years. Capital trials have become rare. The state hasn’t carried out an execution since 2006.” Although North Carolina’s death row is still among the largest in the country, it “is a relic of another era.”

In Catawba County, where Portwood once practiced, no one has been sentenced to death for 20 years. Yet his legacy lives on. In 2012, the state settled a federal civil rights lawsuit brought by Glen Edward Chapman, sentenced to die in 1994 for a double murder he insisted he did not commit. Represented by Portwood, Chapman spent years on death row before a Superior Court judge overturned his conviction and ordered a new trial. He was exonerated in 2008. Another one of Portwood’s former clients, Nathan Bowie, remains on death row. Bowie was 20 years old when he was tried alongside his uncle for a double murder in 1993. Today he is 47.

Bowie is one of a handful of condemned men profiled in detail in the report, which describes his case as “emblematic of capital defense at the time.” Portwood was appointed to represent him despite his well-known drinking problem and assisted by a lawyer with no experience in capital defense. Bowie remembers Portwood showing up to one of their first meetings smelling like alcohol. In the time he represented Bowie, the report notes, Portwood was involved in a car crash and found to have a blood alcohol level sufficient to kill him.

A video on the case of Nathan Bowie featured in the CDPL report.

Perhaps not surprisingly, Portwood and his co-counsel did little investigation into Bowie’s background. As a child, Bowie had experienced poverty, abuse, and bouts of homelessness; he was removed from his home when he was 12 and placed in the custody of the Department of Social Services. At 13, he was sent to Sipe’s Orchard Home, a facility for troubled youths, where he stayed until he was 19. Portwood did not review the records or interview staff from the facility. If he had, he would have discovered evidence of sexual abuse that occurred at Sipe’s, where Bowie kept a stick in his possession that he called his “protector.”

Portwood’s failures were compounded by the conduct of the prosecutor in Bowie’s case, Jason Parker. “His office had prosecuted a Sipe’s staffer for molesting boys there,” the report reveals, yet Parker cast the facility as a wholesome environment before the jury. Arguing for the death penalty, he also emphasized that no one from the facility had appeared at trial on Bowie’s behalf. Yet Parker had actually received a letter from the head of the facility offering to testify on Bowie’s behalf, which he never disclosed to defense.

Parker is now retired. In total, he sent seven people to death row, including Frye and Chapman, the two other people represented by Portwood. Parker said he never saw evidence that Portwood was drunk on the job in the years he tried cases against him. “Everybody knew he would take a drink here and there,” Parker said, “but as far as coming to court drunk, alcohol on his breath, never saw it.” Parker’s personal feelings about the death penalty have not changed, he said. “In certain horrific cases, the death penalty is highly justified.” Nevertheless, he says he would no longer seek death sentences if he were still working as a prosecutor today. “My reason is simple,” he said. “In reality the death penalty does not exist in North Carolina.”

Parker explained that of all people he sent to death row, only one — Frye — has been executed. One man killed himself. Another two died of natural causes. The remaining men — Bowie and his uncle — “have outlived the son of my co-counsel who was born during their trial” and died in a car accident at 24. “My position would be: Why waste my time?”

“Zombie Cases”

More than 40 years since the start of the so-called modern death penalty era in the United States, it has become widely understood that most people sentenced to death are more likely to die awaiting execution than on the gurney. In California, home to the country’s biggest death row population, the last execution was carried out in 2006; only 13 people have been executed since the 1970s. Those who do live to see the death chamber have often spent decades on death row.

The result is what Stephen Bright, founder of the Southern Center for Human Rights, has described as “this very strange situation now, in which these people sentenced to death a long time ago” are coming up for execution in cases that would be highly unlikely to lead to a death sentence today. Bright called them “zombie cases” — convictions that “remind us of just how unfair” the system used to be.

In Georgia, Kenneth Fults was executed in 2016 despite revelations that one of his jurors harbored racist animus against him, telling an investigator, “Once he pled guilty, I knew I would vote for the death penalty because that’s what that nigger deserved.” Veteran death penalty lawyer Thomas Maher, who heads Indigent Defense Services, has written about this disconnect in North Carolina. “The question, then, that policymakers and courts should confront is this: Should we execute scores of inmates for crimes that would not warrant the death penalty if they were tried today?”

Gretchen Engel, director of CDPL, explains that the report was published to “ignite a conversation” about this question. “It speaks to a need for there to be some kind of mechanism that will account for our evolving standard of decency,” she said. Given that most of North Carolina’s death row population would likely not be sentenced to die today, “it’s very hard to justify how we can execute them now.”

QJones-Painting-Engel-1539698288

Gretchen Engel holds a painting by Quentin Jones, a client of hers who was executed.

Photo: Courtesy of CDPL

Engel joined CDPL soon after graduating law school in 1992. “I think when I arrived there were maybe 75 people on the row” in North Carolina, she said. But the 1990s became “just a very bloody, frenzied time.” By the end of the decade, there were more than 175 people on death row.

Part of what drove the surge in capital prosecutions were overzealous prosecutors like Ken Honeycutt, who “celebrated new death sentences by handing out noose lapel pins to his assistant DAs,” as the CDPL report notes. Particularly notorious was Joe Freeman Britt in Robeson County, who attracted national media attention and even a listing in the Guinness World Records as the “world’s deadliest DA.” Britt sent some 38 people to death row over his 14-year tenure. Among them were two teenagers, Henry McCollum and Leon Brown, who were famously exonerated of murder and rape in 2014.

The impact of overzealous prosecutors has been well-documented where capital punishment is concerned. But in North Carolina, the phenomenon was compounded by a perverse, lesser-known feature of the state’s death penalty system. One of the more startling areas of the CDPL report is a section that explains how prosecutors were essentially coerced into seeking death sentences as often as possible. “In the 1990s, N.C. was the only state that required prosecutors to seek the death penalty for every aggravated first-degree murder,” the report explains, “regardless of other factors that called for mercy.”

Rooted in years of rulings by the state Supreme Court, the sentencing scheme was originally intended to ensure uniformity in the application of the death penalty. But in practice, it curtailed prosecutorial discretion to an absurd degree. Prosecutors were forbidden from arranging plea deals in which a defendant could plead guilty to first-degree murder in exchange for a life sentence. Instead, their only alternative was to reduce a charge to second-degree murder.

In 1993, the year Bowie was tried, 33 people were sent to death row in the state.

Parker began handling capital cases in Catawba County in 1990. He recalls seeking the death penalty in numerous cases that he would not have tried capitally had they come later in his career. In the case of Nathan Bowie, Parker actually offered a plea deal for second-degree murder. “That wasn’t the world’s greatest case,” he explains. The witnesses were unreliable — the kinds of people who say one thing in a meeting, then “go out on the stands and they say something entirely different.” But Bowie and his uncle rejected the deal. “So I didn’t have any choice but to try them for the death penalty. Once they turn down that second degree, it was on.”

Alex Charns, Bowie’s current attorney, counters that in fact, Parker did have a choice in Bowie’s case. “It could have been tried as second degree,” he says, adding that most prosecutors would not be inclined to do that. Bowie’s fate speaks to the utter neglect of Portwood in representing his client at every stage of his case, Charns says. But it is also illustrative of a phenomenon known as a “trial penalty,” in which prosecutors come down especially hard on defendants who refuse their plea offers. The notion that a crime could merit a charge of second-degree murder in one minute and a death sentence the next is also emblematic of the arbitrariness so often described by critics of capital punishment.

The lack of prosecutorial discretion in first-degree murder cases was “perhaps the biggest driver of a decade of excessive death sentences” in the state, the CDPL report says. It “propelled North Carolina to one of the highest death sentencing rates in the nation.” In 1993, the year Bowie was tried, 33 people were sent to death row in the state.

In 2001, the North Carolina legislature finally passed a law to address the problem of prosecutorial discretion. “Some DAs were having to try capital cases that they really didn’t want to try,” remembers Rep. Phil Baddour, a Democrat from Wayne County who sponsored the bill. “It went through without a lot of opposition.”

To Engel, it made sense that prosecutors would not oppose the new law. “It increased their power and so they didn’t fight it. I think that’s why it was really probably the least controversial of the reforms.” What she and her colleagues did not necessarily expect was just how dramatic a change would follow. Death penalty prosecutions “plummeted,” from an average of 50 per year in the 1990s to roughly 16 capital trials per year in the decade following the 2001 law.

The drop was no doubt due to prosecutors like Parker, for whom the death penalty became an easy way to force a defendant to plead guilty in exchange for life. “Most of the cases I tried for the death penalty after the law changed were those who rejected the plea offer taking the death penalty off the table.” Still, defendants were inclined to take the deal, he said. “Once you prove that you could put somebody on death row, it was a heck of a tool.”

A Legacy of Racial Violence

“I think if you polled district attorneys, they would all say, ‘Oh yes, the death penalty is very necessary,’” Engel says. But their actions betray the truth. Prosecutors are seeking fewer death sentences and are more willing to accept a plea to a life sentence, she points out. Indeed, as Parker recalls, after the law changed, “I made that offer available in the great majority of first-degree murder cases.”

Engel sees something similar among the general public, which seems to favor the death penalty more in theory than reality. “I think while public support for the death penalty in North Carolina has fallen just like it has nationally, you’d still have a fairly large number of people who would say, ‘Yes, of course, we should execute the worst of the worst.’” Yet “jurors are not returning death sentences, even in really horrendous cases.”

Nevertheless, the stubborn devotion to North Carolina’s death penalty has been on dramatic display for much of the past decade, in the ugly battle over the state’s Racial Justice Act. Passed in 2009, the groundbreaking law provided a way for condemned people to fight their sentences if they could prove that racism played a role in jury selection at their trials.

Four people on death row succeeded in getting their sentences commuted to life without parole before the Republican-led legislature repealed the RJA in 2013. Two years later, the North Carolina Supreme Court vacated the judge’s rulings, sending the four defendants back to death row. It was up to Engel and her office to share the wrenching news. By then, a couple of them had gone to medium custody, she recalls. One, Christina Walters, had completed her GED. “The impact on the families of those clients — to think your [child] is spared from execution and then three years later, oh no, you’re back on death row — it was devastating.”

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Nathan Bowie, left, with his father in Philadelphia circa 1989.

Photo: Courtesy of the Bowie family/CDPL

Nathan Bowie was among those who sought relief under the RJA before its repeal. In a 2012 filing, Charns, his lawyer, details the history of racial violence in Catawba County and the surrounding area. In 1919, the filing noted, a black man named Tom Gwyn died in the electric chair for raping a white girl despite the efforts of a mob that tried to lynch him first. He was still awaiting trial when a local newspaper declared the guilt of the “brute” with “beast-like hands.” An all-white jury convicted him in 10 minutes.

Racism permeated the prosecution of black men in rape cases into the 1970s, Charns points out. In the late 1980s and early 1990s, a group called North Carolinians Against Racist and Religious Violence tracked racial intimidation by the Ku Klux Klan in Catawba County. By the time Bowie went to trial before an almost all-white jury in 1993, the county had a black population of less than 9 percent. Parker, who is black himself, appealed to the racist fears and biases of the jury in court. Although there was no evidence that the crimes had anything to do with gang rivalry, Parker attributed the murders to a gang war, invoking Philadelphia, where Bowie came from, and contrasting it with the town of Hickory — “your community.”

Parker demurred when asked about evidence of racism in North Carolina’s death penalty system. And he was dismissive of Bowie’s RJA motion. “All I can say is … you had a black guy trying two black guys for killing two black people,” he said. “So if that’s injustice, fine. You know? I don’t see it.”

The evidence of systemic racism contained in Bowie’s RJA filing — and the aggressive denial that such a thing exists — underscores the broader thesis underlying the CDPL report. It’s not just that North Carolina’s death sentences are a relic dating back to the bad laws of the 1990s. Its death penalty system is inextricable from a history of racial violence rooted in slavery and reconstruction. As in the rest of the South, the same kind of fearmongering propaganda once used to defend lynchings would support state-sanctioned executions, particularly as punishment for rape against white women. The bloodlust extended all across the state; in 1922, 16-year-old McIver Burnett — “convicted in three minutes and 30 seconds,” according to the Daily Free Press — was executed for rape in Raleigh amid a crowd of spectators holding tickets to the execution, a mob dominated by “youths wearing the red caps that distinguish State College freshmen,” according to the News and Observer.

Evidence of enduring racism in capital cases helped pave the way for the landmark 1972 Supreme Court ruling in Furman v. Georgia. The plurality decision held that the death penalty was arbitrarily and thus unfairly imposed. Some death penalty states responded to Furman by crafting new statutes that would provide for bifurcated trials with a penalty phase to weigh aggravating and mitigating evidence — the system widely in place today. But others decided that the solution was to make the death penalty mandatory for crimes like murder and rape. The first to do so was North Carolina.

Joan Little and one of her defense attorneys, Kern Galloway, right, wait for an elevator in the lobby of the Wake County Courthouse in Raleigh, N.C., July 14, 1975, where she is on trial in the 1974 stabbing death of a jailer. (AP Photo/Harold Valentine)

Joan Little, left, and defense attorney Kern Galloway in the lobby of the Wake County Courthouse in Raleigh, N.C., on July 14, 1975.

Photo: Harold Valentine/AP

One of the first people to face North Carolina’s mandatory death penalty was a black woman named Joan Little. The 20-year-old had been charged with first-degree murder after stabbing a white guard to death with an ice pick while being held at the Beaufort County Jail in 1974. She said she had killed the man to stop him from raping her — his body was found naked from the waist down in her cell, with seminal fluid on his leg. Nevertheless, Little faced a mandatory death sentence if she was convicted.

As Little’s trial approached, the case became a cause célèbre — a symbol of the South’s deep-rooted racism and the largely unspoken sexual abuse of black women by white men dating back generations. In 1975, amid demonstrations, a jury acquitted Little. The next year, in Woodson v. North Carolina, the U.S. Supreme Court struck down the state’s mandatory sentencing scheme.

For Jennie Lancaster, one of the jurors in the case, the Little trial would indelibly shape her perspective on the criminal justice system. As a 25-year-old counselor at a juvenile prison facility in Raleigh, “I had this almost idealistic view of what you could accomplish” within prisons, she recalls. After the Little trial, she went on to become warden of the state’s women’s prison and eventually the Central Region director in the North Carolina Division of Prisons, where she supervised 12 facilities, including the prison in Raleigh that houses death row.

“Racism and sexism. That was prevalent in the whole judicial process within deep eastern North Carolina.”

Among Lancaster’s early responsibilities was presiding over the 1984 execution of Velma Barfield, a white woman convicted and sentenced to die for poisoning four people. As her execution date approached, the case of the “death row granny” became a media circus and political lightning rod; the state set the execution date just days before a major election for Senate. Democratic North Carolina Gov. James Hunt faced incumbent Sen. Jesse Helms. Hunt, who would go on to lose, denied Barfield’s pleas for clemency.

“I got to know Velma,” Lancaster says. “I got to know her family. I got to know what a positive influence she was” at the prison. She also saw the additional ways in which women behind bars were abused and dehumanized. Lancaster recalls having to fight with prison administrators to allow Barfield to wear a bra during her execution. “She was a big-breasted woman and she asked me, ‘Miss Lancaster, if I’ve got to go through this, I would like to have the dignity of wearing a bra.’”

The Barfield execution would eclipse the Little case in North Carolina’s death penalty history. But it was the latter that opened Lancaster’s eyes. “The system was on trial,” she said. “And our role in the criminal justice system was really on trial.” While she was proud at the outcome, the case was only her first look at the rampant abuse within prisons. “It ingrained a stronger sense of responsibility within me, about how we should be caretakers. And how we should not allow, if we’re in a supervisory role, the taking advantage of offenders who are under our care.”

“And also, the amount of racism,” Lancaster added. “Racism and sexism. That was prevalent in the whole judicial process within deep eastern North Carolina.”

Out of Sight, Out of Mind

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Jennie Lancaster, who served as chief deputy secretary for adult correction in North Carolina.

Photo: North Carolina Department of Public Safety

Today Lancaster is an outspoken critic of the death penalty — and especially of its impact on prison staff. “There’s no training for it,” she says about the psychological and emotional effects of executions. For the public, “executions are out of sight, out of mind,” Lancaster says. People don’t want to deal with it — “they just want it to be over with.” But people who work in the system “can’t go home and talk about it. We can’t talk about it anywhere. We can’t really even talk about it at the prison.” Over the course of her career, Lancaster attended 24 executions.

Parker, the former prosecutor, did not attend the execution of Ronald Frye in 2001. “I gave my ticket to the arresting officer,” he said. He had developed a certain level of affection for Frye by then. “I thought he has what’s coming to him, but I wasn’t gonna go watch him die.”

I asked Parker if he would feel satisfied if Nathan Bowie were to be executed today, 25 years after he was convicted. Would he consider it justice? Parker paused. “I really haven’t given it much thought,” he said, adding, “I did my job.” He doesn’t miss it. He’s happily retired, playing golf a few times a week, he told me. “I don’t think about it much anymore. I leave it alone.”

Top photo: The execution chamber at Central Prison in Raleigh, N.C., on Nov. 30, 2005.

The post “Relic of Another Era”: Most People on North Carolina’s Death Row Would Not Be Sentenced to Die Today appeared first on The Intercept.

cfg-lorie
October 5, 2018

Junk Arson Science Sent Claude Garrett to Prison for Murder 25 Years A...

On a Monday morning in late September, I arrived at a house in a gated subdivision in Alabama and asked for James F. Cooper, a retired agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. A tall, sturdy man in his 70s came to the door a few minutes later. His white hair was in a slightly overgrown crew cut; he wore athletic clothes and navy blue Crocs. “What can I do for you?” he asked, stepping outside.

I wanted to talk about an old arson case he investigated in 1992: a fatal fire at a small, one-story house in Old Hickory, Tennessee, just outside Nashville. A 24-year-old woman named Lorie Lee Lance had died in the blaze. Her boyfriend, Claude Francis Garrett, was arrested for setting the fire. He swore he was innocent. But two separate juries convicted Garrett of murder, first in 1993 and then again in 2003. Cooper was the star witness for the state.

Cooper recalled the case. He also remembered my previous attempts to reach him about it, for a story I published in 2015. The case was fairly unusual, Cooper said. As a federal agent, he did not generally work local arson cases, but he’d been called by the Nashville Metro Police Department about a suspected homicide early in the morning. It was February 24, 1992. Cooper could still describe the scene, along with most of the story told by Garrett: After a night of drinking with Lance and her stepfather at a local bar, he had awoken to the house on fire. Garrett yelled for Lance and ran with her toward the front door, he said, but she turned back toward a room at the other end of the house, where she was later found dead from smoke inhalation.

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Claude Francis Garrett and Lorie Lee Lance.

Photo: Courtesy of Claude Francis Garrett

The first clue that it was arson came from Fire Marshal investigator Kenneth Porter, who noticed a strong smell of kerosene upon entering the house. Shortly afterward, he found a large kerosene container. Garrett would say the couple used a kerosene heater, a common practice in the working-class neighborhood of Hopewell. But Porter’s suspicion deepened when he found large, irregular-shaped burns on the living room floor — a “pour pattern,” as Cooper would later explain on the stand. It was a telltale sign of the use of a liquid accelerant, he said, and a hallmark of arson scenes. After Cooper took over the investigation, he found additional clues that proved it was a murder. Most damning: The door to the room where Lance was found had reportedly been locked from the outside — “that was key,” Cooper told me.

At trial in 1993, Cooper gave expert testimony to bolster the state’s theory against Garrett: that he was an abusive boyfriend who locked Lance in the back room, poured kerosene throughout the house, lit it on fire, and left her to die. The jury found him guilty and sent him to prison for life. But it would not take long for doubts to emerge. Garrett’s original conviction was overturned when he discovered that the trial prosecutor had concealed a police report in which a key witness said the back-room door had been unlocked.

The investigation into the fire was looking increasingly like a relic from another age.

More significantly, in the decade between the first trial and the retrial, the field of fire investigation had radically transformed. Old assumptions about arson and fire behavior were debunked and new investigative methods were adopted. The so-called pour patterns found at the scene would come to be regarded as junk science. By the time of Garrett’s 2003 retrial, the investigation into the fire was looking increasingly like a relic from another age, resting on techniques that had long been discarded. Nevertheless, Cooper defended his findings on the stand and the jury sent Garrett back to prison.

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The one-story house in Old Hickory, Tenn., after the fire.

Photo: Courtesy of the family

My own understanding of the evolution of fire investigation came partly from Cooper’s division of the ATF. When I visited the Nashville field office in 2014, agents helpfully explained the modern approach to potential arson crimes, based on the scientific method and ongoing research into fire behavior. It seemed clear that the ATF was on the cutting edge of fire investigation. But this only made Garrett’s conviction more vexing — and his cries of innocence more compelling. Given that the investigation into the fire was rooted in old practices and theories, shouldn’t someone be giving his case a second look?

Cooper did not wish to revisit the case when I first sought to interview him in 2014. Neither did the two prosecutors who tried Garrett, although both were at least willing to briefly discuss the case. One of them — Jon Seaborg, who handled the retrial — acknowledged the challenge of outdated forensics. “As the science changes somebody needs to pay attention to it,” he said, adding “I don’t know how you do that.”

Regardless, Cooper was the person I had been most anxious to reach. Although he retired before the 2003 retrial, it was unfathomable that he would have remained unaware of the sea change in fire investigation since 1992. Yet he had repeatedly rebuffed my attempts to speak to him, even rejecting a list of questions sent via a colleague at the ATF. Now, as we spoke on his doorstep in Alabama, I repeatedly offered him an envelope containing a pair of scientific reports on the fire in Old Hickory. Written in 2016 by a group of renowned fire scientists who had reviewed Cooper’s investigation, the reports were firm in their conclusions: There was no evidence to support a determination of arson in Garrett’s case. “The central piece of evidence of the use of an accelerant is now recognized as a myth,” one of the authors explained. “A modern fire investigator would not find that this fire was incendiary.”

Cooper did not want the envelope. “I stand by my report,” he told me. He did not appreciate other experts second-guessing his work — especially people who had not worked the scene themselves. “My rule of thumb is ‘Were you there?’” he said. It echoed Cooper’s testimony during cross-examination in 2003. “If I’m proven wrong, I will admit I am wrong,” he said. “But on this one, no sir. I was there. I saw it with my eyes.”

Convictions Stuck in Time

In the 3 1/2 years since I first wrote about Garrett’s case, several people have been exonerated in old arson cases. Their cases are included in the National Registry of Exonerations, which tracks cases involving false or misleading forensic evidence. William Amor was acquitted in an Illinois retrial earlier this year, more than two decades after being convicted of killing his mother-in-law in a 1995 fire. Adam Gray was exonerated in 2017 for setting a fire that killed his upstairs neighbors in Chicago in 1993. And Herbert Landry was exonerated last year of trying to burn down his apartment complex in 2006; investigators found “pour patterns” like those at the scene in Garrett’s case. Other arson defendants have had their convictions overturned or reduced without being declared innocent. They are not included in the registry, making a tally hard to come by. Among them is Leticia Smallwood, who was finally released in Pennsylvania this year, after more than four decades in prison on dubious arson charges.

Despite the inescapable reality that flawed fire investigation methods once sent innocent people to prison, most states have taken no systematic steps to revisit old arson cases. A more common response has been to sweep wrongful convictions under the rug. In the case of Angela Garcia, which I wrote about in 2017, the Cuyahoga County Prosecutor’s Office spent months delaying an evidentiary hearing that would likely have dismantled their case against her, only to suddenly offer her a deal if she pleaded guilty right then and there. Despite swearing her innocence for the fire that killed her two daughters, Garcia tearfully took the deal. She is slated for release in 2022.

Now Garrett, too, has a shot at release. This year marked his 25th in prison, making him eligible for a parole hearing. On October 8, he will go before the Tennessee Board of Parole at Riverbend Maximum Security Institution in Nashville. In theory, he has a decent chance: Garrett has been what is often described as a “model inmate,” with a clean disciplinary record and a long list of people willing to vouch for his character. But such things can only take Garrett so far. In Tennessee, as in most states, parole hearings are often little more than a referendum on the original offense, no matter how much a person may have changed behind bars. For those who insist upon their innocence, there’s another dilemma: the expectation that there be a display of remorse for their crime.

Garrett has always said he will not apologize for a crime he did not commit. But forcefully invoking his innocence before the board could backfire.

Garrett has always said he will not apologize for a crime he did not commit. But forcefully invoking his innocence before the board could backfire. A safer route would be to rely on the numerous letters sent on his behalf, which argue that Garrett is a worthy candidate for release who has served his minimum sentence and deserves a chance to thrive on the outside. Still, he wants the parole board to understand the injustice of his case. Among the people Garrett has asked to speak at the hearing will be one of his most passionate advocates, Stuart Bayne, a veteran fire investigator based in East Tennessee. Bayne was the defense expert at Garrett’s 2003 retrial. For him, the hearing is a chance to correct an egregious wrong that has plagued him for over 15 years. In his letter to the parole board, Bayne called Garrett’s case “a classic example of injustice.”

“Tremendous advances in the understanding of fire behavior have occurred since 1992,” Bayne explained. Enclosed with his letter were seven flash drives, one for each member on the board. They contained his own reports on the case, a statement from Garrett, and the pair of expert reports I tried to show to Cooper at his house. If anyone is in a position to take them seriously now, it’s the board. “Please, please Mr. Chairman, distribute one to each member,” Bayne wrote. “Please, please, review the files.”

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Stuart Bayne, a veteran fire investigator, photographed at a home he was inspecting in 2015.

Photo: Tamara Reynolds for The Intercept

“Seeking Justice Through Fire Science”

From the moment I began looking into the Garrett case in 2013, it was impossible to miss the parallels to a more famous case — that of Cameron Todd Willingham, executed in Texas in 2004. The fires in their respective cases had occurred just two months apart — and both men were convicted largely on circumstantial evidence. In both cases, neighbors who initially described panicked behavior at the scene would later come to believe that it was just a larger deception. But most compelling was the fact that the evidence in both cases included “pour patterns” that had been disastrously misinterpreted.

I knew from Willingham’s case that burn marks once associated with arson could actually be the result of a long-misunderstood phenomenon called “flashover” — a transition phase during which a room’s contents simultaneously ignite. The physical evidence left by a “post-flashover fire” includes burn marks and patterns that form depending on factors like oxygen and ventilation, but which were once believed to be evidence of an ignitable liquid. After meeting Bayne in 2013, he gave me repeated lessons in such fire scenarios. At one meeting, he had me watch a clip from a short film by the National Fire Protection Administration called “Countdown to Disaster.” It showed how quickly and dramatically something like a smoldering cigarette dropped on an upholstered chair could lead to a conflagration. It also illustrated his own theory of how the fire in Garrett’s case started — a cigarette left unattended on a loveseat in the living room after a night of drinking.

** ADVANCE FOR SUNDAY SEPT. 27 ** FILE - In this Tuesday, May 2, 2006  file photo, Judy Cavnar, of Ardmore, Okla., a cousin of executed Texas prison inmate Cameron Todd Willingham, displays a picture of him during a news conference in Austin, Texas. Willingham always maintained he was innocent of setting the fire that killed his three small children two days before Christmas in 1991, and even the prosecutor who put him away now admits the arson investigation was "undeniably flawed." Says Innocence Project director Barry Scheck of Willingham: "There can no longer be any doubt that an innocent person has been executed  (AP Photo/Harry Cabluck, file)

Judy Cavnar, a cousin of Cameron Todd Willingham, who was executed in 2004, holds up a picture of him during a news conference in Austin, Texas, on May 2, 2006.

Photo: Harry Cabluck/AP

There was an additional link between Garrett’s case and that of Willingham: a leading fire scientist named Gerald Hurst, renowned in Texas for his work on arson cases — and most famous for trying to intervene before Willingham was executed. Garrett had written to Hurst before his 2003 retrial. Hurst offered to testify on Garrett’s behalf pro bono, but Garrett’s attorney hired Bayne instead. When I interviewed Hurst at his Austin home in 2014, he remembered it well. “It’s a case in which the investigation was a typical piece of crap,” he said.

Like Willingham’s case, the fire in Old Hickory had occurred at a moment when fire investigation was on the cusp of a revolution. In 1992, the National Fire Protection Administration published “NFPA 921,” which set forth a new set of guidelines for fire investigators, applying the scientific method to fire scenes rather than relying on investigators’ observations and experience. At first, “nobody accepted it,” Hurst said. Instead, professional fire investigators spent the next several years looking for ways to get around it. If Garrett’s 1993 trial was too early for the teachings of “NFPA 921” to have been absorbed, by 2003, they were more firmly established. Cooper would have known about them by then — “if he wanted to know,” Hurst said.

“It’s a case in which the investigation was a typical piece of crap.”

Hurst’s own foray into criminal cases came in the mid-1990s, when he testified in the trial of a woman named Sonia Cacy. She had been convicted of murdering her uncle in a fire and was facing a retrial. Like Bayne in Garrett’s case, Hurst was unable to sway the jury, and he was scarred by the outcome. “I had to get her out,” Hurst said. When Cacy went up for parole, Hurst gave a presentation to show that the fire scenario had been impossible. The parole board granted her parole and she was released, although it would take another 20 years for her to be exonerated.

Cacy’s case was highly publicized. But it was the Willingham case that broke into mainstream consciousness, Hurst said. “Every fire investigator in the country knows Willingham didn’t do it. Everyone,” he told me. It helped attract new fire experts to his cause, including chemists and engineers — a rarity among fire investigators, most of whom come from firefighting or law enforcement backgrounds. It also helped shift the perception of defense experts in arson cases, who were generally dismissed as “high-priced defense whores,” according to Hurst. “It was an unsavory sort of profession. How dare you work against the noble police? The noble fire marshals? The noble ATF?”

Hurst passed away just a few weeks after The Intercept published my story about Garrett. By then, the article had reached a group of experts who review old fire cases pro bono. They convened remotely under the banner of the Tetrahedron Committee, a loose consortium of fire scientists and veteran investigators started in 2007. The title is a reference to the four factors that combine to generate fire: fuel, heat, oxygen, and a chemical reaction. The committee’s motto is “Seeking Justice Through Fire Science.”

In April 2016, Craig Beyler, a respected Maryland-based fire engineer — and the author of a famed report on the Willingham case — produced an assessment of Garrett’s case on behalf of the Tetrahedron Committee. It echoed what Bayne had explained to me over and over again beginning in 2013: The investigation had been fatally flawed. The house was filled with furniture, paneling, and materials that were critical to explaining how the fire started and spread. Yet Porter, the fire marshal investigator who was first on the scene, did not bother to note this evidence. “As was common in the day, he simply removed all the contents of the room and hosed out the room to display the floor damage pattern,” Beyler wrote. “He treated the remains of the room contents as an obstruction to viewing the floor, rather than as evidence to be studied. All the contents were simply thrown out into the yard.”

The same month, a renowned fire scientist named John Lentini submitted an affidavit to Garrett’s federal public defender. Lentini drew from the history he lays out in his textbook, “Scientific Protocols for Fire Investigation,” to show how Cooper was emblematic of the initial resistance to “NFPA 921.” Though there had been a marked shift around 2000, “when this case was tried in 2003, some fire investigators, including Agent Cooper, still believed that by looking at the shape and texture of burning on the floor, they could infer the presence of ignitable liquids, even if subsequent laboratory analysis failed to reveal the presence of any such residues,” Lentini explained. Indeed, while “Cooper repeated the phrase ‘pour pattern’ over and over in his testimony,” no kerosene residue had been found in the flooring samples.

Lentini’s affidavit also contained evidence that was a revelation to Garrett — and which he believes should exonerate him once and for all. In 2013, researchers published a study called “Forensic Analysis of Ignitable Liquid Fuel Fires in Buildings,” sponsored by the National Institute of Justice. “What they learned is that ignitable liquids only burn for a very short time in fires, and do not cause the kind of charring found on the floor in the Garrett residence,” Lentini wrote. The photos from the scene showed the charring to be too deep, Lentini explained. In other words, it “could not have been caused by an ignitable liquid. Agent Cooper’s testimony on this point was scientifically unsupportable and erroneous.”

Tunnel Vision

As I listened to Cooper’s recollections of the fire in Garrett’s case, I was struck by his remarks about pour patterns, which sounded far less cavalier than what I recalled from the trial transepts. On the stand in 1993, Cooper had not only insisted that the marks were proof of a liquid accelerant, he had also claimed to be able to tell the difference between a deliberate pour and a spill. Now Cooper explained the need for caution. He recalled a different fire scene where he discovered what he believed to be pour patterns, only to be told by a forensic chemist that the marks were the result of a varnish that had been applied to the floor. Regardless, Cooper remained confident about the ones in the Garrett case. “I don’t make my determination by one thing, like pour patterns,” he told me. He looked at the totality of the evidence.

Cooper retained a trait that is a trademark of certain old-school fire investigators: a deep belief in his own instincts. “Can you tell from looking at a house where a fire started?” he asked me. No, I said. “See, I can,” he responded. “I have the advantage.” In reality, determining a fire’s point of origin requires far more than visual analysis. But as with any expert witness, the credentials of an ATF agent can impress a jury no matter how flawed their testimony. In the Angela Garcia case, Cleveland prosecutors struggled to win a conviction — her first two trials ended in hung juries — until they bulked up their witness list at her third trial, adding an ATF agent who insisted he could see a pour pattern in a photograph. “I don’t care what the NFPA says.”

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The area just inside the front door of the house in Old Hickory, Tenn.

Photo: Courtesy of the family

Such witnesses supported what Hurst told me about the ATF’s old role investigating local fires: that they were not brought in to provide their independent assessment of a fire scene so much as to make the state’s case. One of Garcia’s defense experts explained why this was so dangerous. Even if an ATF agent was “as honest a human being as exists on the face of the earth,” he said, “you’ve got this huge confirmation bias coming in.” Indeed, while Cooper handled the scene in Garrett’s case firsthand, he was called only after Porter believed that arson had been committed. “They immediately called those burns pour patterns,” Hurst said. “They immediately called the kerosene they found an accelerant. You’ve already prejudiced the case beyond redemption when you do that.”

“Agent Cooper was shockingly uninterested in the fact that the fire left carbon deposits on the sliding bolt showing that the bolt was slid to the right.”

Tunnel vision would certainly help explain Cooper’s sloppy investigation. “I don’t remember if I ever interviewed Garrett,” he said. He didn’t. Nor did he speak to the firefighters at the scene. It was not even clear how he became convinced that the latch to the back door had been locked. Neither the door nor the lock was removed or studied, let alone presented to the jury as evidence. If Cooper had scrutinized this crucial piece of evidence, Lentini wrote in his affidavit, he would almost certainly have found that the latch had been in an unlocked position. “Agent Cooper was shockingly uninterested in the fact that the fire left carbon deposits on the sliding bolt showing that the bolt was slid to the right at the time of the fire,” he wrote.

Cooper offered no explanation for why he did not study the latch or the door. And he flatly denied saying something that had jumped out at Bayne when he first started studying the case: that Garrett likely singed his face from leaning down to light the kerosene in the living room. Cooper had compared it to lighting a gas grill, according to transcripts of his trial testimony — “sometimes it won’t ignite and you stick your head down there to see and you’ve got this open flame that comes back with a POOF!” Such a “flash back” of kerosene vapors was “impossible,” Lentini wrote.

“He’s right,” Cooper told me. He could not imagine having made that claim, he said. I told him it appeared in the transcripts, but he protested that did not remember. “I would be crazy to say that.”

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The entrance to Riverbend Maximum Security Institution, in Nashville, Tenn., in 2015.

Photo: Tamara Reynolds for The Intercept

The Dilemma of Remorse

The last time I saw Garrett was in early August, in the large visitation room at Riverbend. He looked the same as when I’d last seen him, perhaps a bit sunburned — he recently traded his maintenance job for work doing landscaping on the grounds of the prison. Like his last job, it pays 50 cents an hour. In his 60s, Garrett does what he can to stay healthy. He lifts weights and runs a 5K every week, he says, and tries to buy food from the commissary. “I eat a lot of tuna,” he said.

Directly behind us in the visiting area was a conference room where the parole hearing would take place, Garrett told me. I had been told that participating board members would attend via video conference, if a member attends at all. Sometimes it is only a representative who comes on the board’s behalf.

When we met, Garrett was still considering the dilemma of remorse. It’s not that he has no regrets — he has many, he told me. The man he was in 1992 was a different person — and certainly far from perfect. When it came to the night of the fire, “there are so many things I regret,” he said. If they hadn’t been drinking or smoking, he said, maybe Lance would still be alive.

Garrett hoped that Lance’s family might be swayed by the new reports from Lentini and the Tetrahedron Committee. It seemed unlikely. When I spoke to Lance’s sisters in 2014, they remembered Garrett as very abusive and remained convinced that he was guilty, no matter what the science said. So did other relatives, at least one of whom was likely to attend the parole hearing to argue against Garrett.

Should Garrett win his freedom, he has already been offered a place to stay. He is optimistic that he can find work. Decades ago, before he went to prison, he spent time as a trucker hauling drywall. Maybe he could go back to driving a truck, he told me. He may not have a traditional resume, but his inmate file is filled with certificates and letters marking his completion of educational programs. In 2010, he completed a 30-week curriculum on “Developing and Improving Life Skills.” “As a graduate, you have accomplished a great goal that will assist you in your future endeavors,” reads a 2010 letter signed by then-Gov. Phil Bredesen, who is now running for Senate. “The state of Tennessee is proud to call you a Tennessean.”

To those who have gotten to know to Garrett in recent years, the sentiment is more than just a line in a form letter. Jeannie Alexander, the former prison chaplain at Riverbend, describes him as a positive influence. “I’ve seen this often, but I think a lot of people would not expect to find someone [in prison] who is genuinely compassionate and who has just a great deal of concern about the community that they live in,” she said. “He mentored a lot of young guys coming in with life sentences.”

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Garrett, healing from burns he sustained in the fire in 1992.

Photo: Courtesy of the family

The description echoes that of a man who emailed me in 2016, after reading my story. He had done time at West Tennessee Penitentiary in the early 2000s — Garrett had been his cellmate, he said. In fact, he had done one of Garrett’s tattoos, maybe the one of Marvin the Martian, he said. “Claude is a good guy, very direct, and the perfect cellmate for a kid turning 21 in prison,” he wrote. He occasionally searched for Garrett online, hoping to see him on Facebook, “free and happy.” He was dismayed to find that he was still incarcerated.

In late September, Bayne met with two of Garrett’s longtime advocates, Denny Griswold and Karen Vander Molen, at a Panera on Nashville’s West Side. It was Vander Molen who first brought the story to my attention, when she led a prison ministry at Riverbend. The three strategized around the hearing and shared their expectations and concerns. Dozens of letters have been sent to the board on Garrett’s behalf, and the hearing was shaping up to be well-attended. Dwight Scott, Garrett’s old defense attorney, plans to speak, along with Griswold and Bayne. “I’ve never had a verdict which so undermined my confidence in the jury system, or which so depresses me to this day,” Scott wrote Garrett in a letter earlier this year. Garrett’s mother, who is 83, insisted she would make the nine-hour drive from Hiawatha, Kansas, even putting new tires on her truck. But Garrett asked her to write a letter instead.

On September 28, Bayne sent out two last letters. The first went to the chairman of the parole board. Rather than discuss the fire, he described Garrett as a person, a man with whom he has “exchanged more than 100 personal letters” over the years. “He has earned my trust and respect,” Bayne wrote. He is eager to help Garrett find a home and a job, particularly if he moves to East Tennessee.

The second letter was addressed to Cooper. Bayne had enclosed a flash drive containing the reports from Lentini and the Tetrahedron Committee, along with additional materials. He urged him to look at them. “Were I in your shoes, sir, I would not want to,” he conceded. But he would also realize he had no choice. “I ask you to revisit the event and re-evaluate the evidence while answering the question all we investigators ask ourselves, ‘Did I make the right call?’”

Top photo: Claude Francis Garrett.

The post Junk Arson Science Sent Claude Garrett to Prison for Murder 25 Years Ago. Will Tennessee Release Him? appeared first on The Intercept.

Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom Monday, Aug. 16, 2010, in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. (AP Photo/The Knoxville News Sentinel, Michael Patrick)
August 15, 2018

As Tennessee Restarts Executions, 40 Years of Data Expose Its Death Pe...

As Tennessee prepared to kill Billy Ray Irick on the evening of August 9, a procession of cars drove toward a field just up the road from Riverbend Maximum Security Institution. One by one, they rolled down their windows at a security checkpoint, where Tennessee Department of Correction personnel asked passengers which side they were on: protesting the execution or supporting it. Protesters got a piece of orange tape stuck on their windshield. Supporters got green.

There were some 50 people there to oppose Irick’s execution. After parking and a pat-down, they entered the designated area, enclosed by a fence. “We Remember the Victims: But Not With More Killing,” read a large white banner brought from Ohio, courtesy of the abolitionist group Death Penalty Action. But most of the demonstrators were local. Unlike the far-flung prisons that house most death chambers across the country, Riverbend is a short drive from downtown Nashville. The proximity makes visitation easier than at most maximum-security prisons. Among the demonstrators that night were some 20 regular visitors to Tennessee’s death row.

Perhaps the most familiar was Rev. Joe Ingle, a well-known death row minister who has lived in Nashville since 1974. “What brings me here is I know Billy Irick,” Ingle said. In his decades visiting Riverbend, Ingle had come to know Irick as well-liked and trusted by others on the row, and particularly admired for his paintings, three of which he gave to Ingle before he died. “For Billy, his art was the way he expressed himself and dealt with a lot of his demons,” Ingle said.

“If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism.”

Irick was convicted of raping and murdering a 7-year-old girl named Paula Dyer in Knoxville in 1985. The horrific crime was undoubtedly intertwined with his severe mental illness, symptoms of which revealed themselves when he was just a child. The little girl’s family would later tell an investigator that Irick had been hearing voices and “talking to the devil” before the murder, but that evidence only came out after he’d been sent to death row. “Billy was abandoned by the state,” Ingle said. Today, he explained, Tennessee has a program called ACEs, which stands for Adverse Childhood Experiences and seeks to support kids with trauma and mental health issues. But no such program existed when Irick was growing up. “If they’d have done that for Billy, we wouldn’t be here tonight,” Ingle said.


Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom Monday, Aug. 16, 2010, in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. (AP Photo/The Knoxville News Sentinel, Michael Patrick)

Billy Ray Irick appears in a Knox County criminal courtroom on Aug. 16, 2010, in Knoxville, Tenn.

Photo: Michael Patrick/The Knoxville News Sentinel via AP

Irick’s mental illness was just one aspect of the execution that had raised controversy. There was also real concern that Tennessee was about to torture him to death. The state’s new lethal injection protocol adopting midazolam — a sedative linked to botched executions — had been the subject of a trial in Davidson County Chancery Court mere weeks before, over a lawsuit brought by attorneys for Irick and 32 other condemned men. Witnesses from all over the country gave disturbing testimony about executions carried out using midazolam; medical experts explained in detail why it was insufficient to provide anesthesia. Particularly revealing was new evidence culled from the autopsies of people executed using midazolam in other states, which showed how high doses of the drug led to pulmonary edema — fluid in the lungs that would cause a sense of drowning.

Nevertheless, the court rejected the plaintiffs’ claims, and the Tennessee Supreme Court declined to intervene. When the U.S. Supreme Court denied a stay of execution hours before Irick was set to die, Justice Sonia Sotomayor issued a scathing dissent. “If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience,” she wrote, “then we have stopped being a civilized nation and accepted barbarism.”

As 7 p.m. approached, the crowd outside grew quiet. Any minute, according to the protocol, Irick would be strapped onto the gurney, the IVs secured, and his hands taped down. At 7:10, he was supposed to give his last statement. The protesters formed a large circle, held candles, and sang “Amazing Grace,” while a handful of people in the pro-death penalty area blasted “Hells Bells” by AC/DC in their direction. One woman, Brenda Tindall, was incredulous that there were so many people there to oppose the execution. Irick “had no sorrow in his face,” she said. “Did you notice that on TV? Zero. I can read people very well.” As a Christian, she said, she was certain God wanted people like Irick to die. “It’s in the Bible.”

But most of the people gathered outside the prison felt the opposite way. David Bass first visited a man on death row four years ago. He expected to meet a monster, he said, but instead found a human being who struck him as kind. “It started messing with my brain,” he said. Over time he started coming once a week. Like Irick, the man he visits has been on death row for more than 30 years. “He’s seen six of these,” Bass said.

Dan Mann, who came with his daughters, was emotional as he talked about a different man, who he has visited for eight years. He tends to call Mann’s wife while the family makes dinner and she puts him on speaker phone. Years ago, they would apologize “for living life in front of him,” Mann said, “to which he replied, ‘I live vicariously through you. This is my life as well.’”

“These are real friends,” Mann said. “We know what some of them did was heinous. But the nature of my faith is that it’s for redemption,” he said. “I’m here because nobody needs to die alone.”

By 7:30 p.m. there was no report from the prison. Anxiety grew the more time passed. The chancery court’s decision had been partly based on the assumption that the execution — and the duration of any pain associated with midazolam — would be relatively short. As the sky darkened, people started to leave. But just before 8 p.m., The Tennessean sent a news alert. The execution was complete.

News stories followed quickly. The execution began late and took longer than average; there was evidence that Irick might well have been conscious and experiencing pain, just as attorneys had warned. Dave Boucher, who witnessed for The Tennessean, described snoring, one possible sign that the midazolam had not worked as intended. Steven Hale of the Nashville Scene described how two minutes after the consciousness check, “Irick jolted and produced what sounded like a cough or a choking noise. He moved his head slightly and appeared to briefly strain his forearms against the restraints. Around 7:37, the color in Irick’s face changed to almost purple.” The curtains were closed after he appeared to stop breathing, Hale wrote. Then the warden spoke over the loudspeaker. “That concludes the execution of Billy Ray Irick. Time of death, 7:48 p.m. Please exit now.”


image4-1534195865

Protesters gather outside the Riverbend Maximum Security Institution on Aug. 9, 2018.

Photo: Liliana Segura/The Intercept

Irick’s execution was the first in Tennessee in almost nine years. With two more men scheduled to die at Riverbend by the end of 2018, the fight over the death penalty is not going away. Yet, in a major election year — and for all the recent coverage and controversy — the topic has been conspicuously absent from Tennessee’s electoral debates. In such a conservative state, critiquing capital punishment is not likely to be a winning tactic. Yet the restarting of the death machinery in Nashville runs against a well-documented trend both in Tennessee and the rest of the country. Executions are declining year after year — and new death sentences have become vanishingly rare.

The state of Tennessee’s death penalty was documented in a comprehensive report published last month in the summer issue of the Tennessee Journal of Law and Policy. Somewhat lost amid the frenzy over Irick’s execution, it was co-authored by Bradley MacLean, a veteran capital defense attorney who represents Abu Ali Abdur’Rahman, the named plaintiff in the lethal injection lawsuit. The 97-page article draws from years of research assessing capital punishment as applied over four decades in Tennessee. It reveals a staggering rate of death sentences reversed or vacated by the courts due to issues such as ineffective assistance of counsel, prosecutorial misconduct, and innocence.

“We tend to forget the reason behind Tennessee’s current capital sentencing scheme,” the authors write. It goes back to the landmark 1972 U.S. Supreme Court ruling in Furman v. Georgia, which declared death sentences unconstitutional nationwide. At the heart of the decision was evidence that the death penalty was being “freakishly” applied to “a capriciously selected random handful,” who ended up on death row less because of the nature of their crime and more because of factors like race and geography. “These death sentences are cruel and unusual in the same way that being stuck by lightening is cruel and unusual,” Justice Potter Stewart famously wrote in Furman.

“It is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

States set about passing new death penalty laws, and in 1976, in Gregg v. Georgia, the court upheld a new model of death penalty statutes, designed to ensure that sentences were less arbitrarily imposed. Tennessee’s law was revised accordingly. Yet more than 40 years later, its death penalty is emblematic of the very problems identified in Furman. MacLean’s co-author, H.E. Miller Jr., examined every death sentence handed down in Tennessee since its law was enacted. Of 2,514 people found guilty of first-degree murder in Tennessee between 1977 and June 30, 2017, he found, 192 were sentenced to die. Of those, more than half — 106 people — had seen their sentences or convictions vacated. Of the remaining 86, only six had been executed. Irick was the seventh. By comparison, the study found, in the same 40-year period, “24 condemned defendants died of natural causes on death row.”

Tennessee’s death penalty today is “a cruel lottery, entrenching the very problems that the court sought to eradicate,” the report concluded. The lottery is not entirely random; as in the cases that led to Furman, there is evidence of racism — African-Americans represent 14 percent of Tennessee’s population and 44 percent of its death row, the study found. The evidence is particularly stark in the most recent sentences, most of which come out of Shelby County, home to Memphis. Among nine trials in which new death sentences were imposed between July 2007 and June 2017, all but one defendant was African-American.

The decline of capital punishment in Tennessee comes even as lawmakers and the state Supreme Court have “gradually expanded the class of death-eligible defendants.” Despite Gregg’s directive that the death penalty must be narrowly imposed, the general assembly has added to the list of aggravating factors that can send a person to die, while the court has broadened their interpretation. Today there are 17 such aggravating factors. That death sentences continue to decline in spite of this suggests the policy is mostly useless, the authors write. “At this level of infrequency, it is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

The findings of the Tennessee report paint a familiar portrait of a failed policy that exists in some version or another across death penalty states. In a number of them, the very architects of the death penalty statutes passed after Furman have expressed dismay at what followed. In California, an attorney named Don Heller wrote a 1978 ballot initiative that expanded the “special circumstances” that would make defendants eligible for the death penalty. Prosecutors rushed to file capital charges. “Everyone was trying to put a notch on their gun,” Heller told me in 2016. Even as California’s condemned population has grown to become the largest in the country, only 13 executions have been carried out since Furman. One of the executed men, Heller believes, was innocent.

In Arizona, the death penalty has been similarly expanded — so much so that the state’s sentencing statute was recently challenged in a petition filed before the U.S. Supreme Court by Neal Katyal, former solicitor general for the Obama administration. The brief in Hidalgo v. Arizona called on the court to declare the death penalty unconstitutional, using Arizona as “an exemplar of the arbitrariness in the imposition of the death penalty in the United States.” Among those who signed an amicus brief was Rudy Gerber, the man who authored Arizona’s new death penalty law after Furman.

“I thought, well, having a new death penalty law is like having a new tax code,” Gerber told me last year, as Hidalgo was pending before the court. But as he saw his law take effect in Arizona, he was unnerved. He had not predicted that prosecutors would be so eager to use it, nor had he expected the law would be amended to make more and more defendants eligible for death. Whereas he wrote the original law to include six aggravating factors, today there are 14 that can send a person to death row in Arizona. Ironically, the very mechanism that was supposed to fix the death penalty “has put us right back into the arbitrariness and caprice that was condemned in Furman,” Gerber says.

“No medieval torture could be more bizarre.”

The man who wrote Tennessee’s death penalty law, David Raybin, is now a defense attorney in private practice. He was still a student at the University of Tennessee College of Law when Furman passed in 1972. “I was dealing with getting on law review and that kind of thing,” he told me in an interview last month. He recalls Furman as important, but not earth shattering; after all, it came amid “the so-called criminal law revolution of the late ’60s in the early ’70s,” bringing landmark rulings such as Miranda v. Arizona, which enshrined the right of defendants to be informed of their constitutional rights. “Every time you turned around, there was another decision coming out that had to do with the criminal justice system.”

Nevertheless, just a few years later, while working in the state attorney general’s office, Raybin found himself drafting Tennessee’s new death penalty law. Like several other states, its initial attempt at a constitutional death penalty statute had been rejected by the courts. “The legislature said, ‘We want a new death penalty statute.’ So they go to the attorney general and the attorney general comes to me and says, ‘Kid, come here.’ He says, ‘Write me a death penalty statute.’ So, I said, ‘OK.’”

Raybin drafted Tennessee’s 1977 law based on what had passed constitutional muster in Gregg — a model “we perceived to be state-of-the-art,” he said. As he recalls, prosecutors were somewhat leery of capital prosecutions at first, but many soon embraced them. The death penalty proved particularly useful for its “coercive effect” — a tool to get guilty pleas to first-degree murder. “That’s why it’s so near and dear to prosecutors’ hearts,” Raybin said.

As new death sentences peaked between the late 1980s and early 1990s, a number of problems became clear. There was the failure by the state to fund capital defense, which led to poor representation. Some death sentences imposed in felony murder cases were also troubling to Raybin — “How do you distinguish one 7-Eleven killing from another?” In the Tennessee study, the authors contrast one such robbery-murder that led to a death sentence to a brutal case involving multiple victims including a pregnant woman and a 16-month-old infant. The defendants in the latter case were sentenced to life.

Raybin worked as a prosecutor for 10 years. Although he is not opposed to the death penalty, he has written extensively about its many flaws in the decades since he left the attorney general’s office. Among those he has represented as a defense attorney was Daryl Holton, a man on death row who gave up his appeals and was executed in 2007. Holton chose to die in the electric chair, with Raybin as a witness. In a detailed account, he called the execution “barbaric in the extreme. No medieval torture could be more bizarre.” But he’s also critical of lethal injection, a method of execution once “perceived as a benign way to do this,” he told me, but which has “just turned into chaos. … It’s just an absolute disaster.”

“To me it detracts from the purpose of even having a death penalty,” Raybin said. “And it dehumanizes people and everybody who’s associated with it.”


Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick Thursday, Aug. 9, 2018, in Nashville, Tenn. Tennessee carried out the execution of Irick, condemned for the 1985 rape and murder of a 7-year-old girl, marking the first time the state has applied the death penalty since 2009. (AP Photo/Mark Humphrey)

Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick on Aug. 9, 2018, in Nashville, Tenn.

Photo: Mark Humphrey/AP

As protesters stood outside the prison last week, a vigil took place at Fisk Memorial Chapel, organized by Tennesseans for Alternatives to the Death Penalty. The group also held a vigil at a church in Memphis and another one in Knoxville “to oppose the execution of Billy Ray Irick and to remember all victims of violence, particularly Paula Dyer.”

Earlier in the week, TADP had held a rally at Nashville’s Legislative Plaza. Among the speakers was Ray Krone, who addressed the crowd from a podium next to a banner that read “Mental Illness: Treat the Illness, Don’t Kill the Person.” Krone was twice convicted in Arizona of a murder he did not commit, a prosecution based on junk science. Today he lives in East Tennessee. “We moved here six years ago, and we love it,” he told me at the rally in Nashville. As a resident, he said, it is especially important to speak out against “something that is a personal heartache and hardship for me.”

Krone addressed the crowd, telling his story and describing the toll it took on his family. Afterward, he carried a box of petitions across the street to the state Capitol, containing more than 62,000 signatures. An aide to Gov. Bill Haslam was there to receive them, but it felt like an empty gesture. The governor had already released a statement saying he would not intervene.

Stacy Rector, the head of TADP, introduced Krone to the aide, urging him to consider the implications of restarting executions in the state. “I’m more than willing to have a discussion about that,” Krone added. The aide shook his hand politely, then turned with the box and walked away.

Top photo: People gather outside the Riverbend Maximum Security Institution to protest the execution of Billy Ray Irick in Nashville, Tenn., on Aug. 9, 2018.

The post As Tennessee Restarts Executions, 40 Years of Data Expose Its Death Penalty as a “Cruel Lottery” appeared first on The Intercept.

Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom Monday, Aug. 16, 2010, in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. (AP Photo/The Knoxville News Sentinel, Michael Patrick)
August 15, 2018

As Tennessee Restarts Executions, 40 Years of Data Expose Its Death Pe...

As Tennessee prepared to kill Billy Ray Irick on the evening of August 9, a procession of cars drove toward a field just up the road from Riverbend Maximum Security Institution. One by one, they rolled down their windows at a security checkpoint, where Tennessee Department of Correction personnel asked passengers which side they were on: protesting the execution or supporting it. Protesters got a piece of orange tape stuck on their windshield. Supporters got green.

There were some 50 people there to oppose Irick’s execution. After parking and a pat-down, they entered the designated area, enclosed by a fence. “We Remember the Victims: But Not With More Killing,” read a large white banner brought from Ohio, courtesy of the abolitionist group Death Penalty Action. But most of the demonstrators were local. Unlike the far-flung prisons that house most death chambers across the country, Riverbend is a short drive from downtown Nashville. The proximity makes visitation easier than at most maximum-security prisons. Among the demonstrators that night were some 20 regular visitors to Tennessee’s death row.

Perhaps the most familiar was Rev. Joe Ingle, a well-known death row minister who has lived in Nashville since 1974. “What brings me here is I know Billy Irick,” Ingle said. In his decades visiting Riverbend, Ingle had come to know Irick as well-liked and trusted by others on the row, and particularly admired for his paintings, three of which he gave to Ingle before he died. “For Billy, his art was the way he expressed himself and dealt with a lot of his demons,” Ingle said.

“If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism.”

Irick was convicted of raping and murdering a 7-year-old girl named Paula Dyer in Knoxville in 1985. The horrific crime was undoubtedly intertwined with his severe mental illness, symptoms of which revealed themselves when he was just a child. The little girl’s family would later tell an investigator that Irick had been hearing voices and “talking to the devil” before the murder, but that evidence only came out after he’d been sent to death row. “Billy was abandoned by the state,” Ingle said. Today, he explained, Tennessee has a program called ACEs, which stands for Adverse Childhood Experiences and seeks to support kids with trauma and mental health issues. But no such program existed when Irick was growing up. “If they’d have done that for Billy, we wouldn’t be here tonight,” Ingle said.


Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom Monday, Aug. 16, 2010, in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. (AP Photo/The Knoxville News Sentinel, Michael Patrick)

Billy Ray Irick appears in a Knox County criminal courtroom on Aug. 16, 2010, in Knoxville, Tenn.

Photo: Michael Patrick/The Knoxville News Sentinel via AP

Irick’s mental illness was just one aspect of the execution that had raised controversy. There was also real concern that Tennessee was about to torture him to death. The state’s new lethal injection protocol adopting midazolam — a sedative linked to botched executions — had been the subject of a trial in Davidson County Chancery Court mere weeks before, over a lawsuit brought by attorneys for Irick and 32 other condemned men. Witnesses from all over the country gave disturbing testimony about executions carried out using midazolam; medical experts explained in detail why it was insufficient to provide anesthesia. Particularly revealing was new evidence culled from the autopsies of people executed using midazolam in other states, which showed how high doses of the drug led to pulmonary edema — fluid in the lungs that would cause a sense of drowning.

Nevertheless, the court rejected the plaintiffs’ claims, and the Tennessee Supreme Court declined to intervene. When the U.S. Supreme Court denied a stay of execution hours before Irick was set to die, Justice Sonia Sotomayor issued a scathing dissent. “If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience,” she wrote, “then we have stopped being a civilized nation and accepted barbarism.”

As 7 p.m. approached, the crowd outside grew quiet. Any minute, according to the protocol, Irick would be strapped onto the gurney, the IVs secured, and his hands taped down. At 7:10, he was supposed to give his last statement. The protesters formed a large circle, held candles, and sang “Amazing Grace,” while a handful of people in the pro-death penalty area blasted “Hells Bells” by AC/DC in their direction. One woman, Brenda Tindall, was incredulous that there were so many people there to oppose the execution. Irick “had no sorrow in his face,” she said. “Did you notice that on TV? Zero. I can read people very well.” As a Christian, she said, she was certain God wanted people like Irick to die. “It’s in the Bible.”

But most of the people gathered outside the prison felt the opposite way. David Bass first visited a man on death row four years ago. He expected to meet a monster, he said, but instead found a human being who struck him as kind. “It started messing with my brain,” he said. Over time he started coming once a week. Like Irick, the man he visits has been on death row for more than 30 years. “He’s seen six of these,” Bass said.

Dan Mann, who came with his daughters, was emotional as he talked about a different man, who he has visited for eight years. He tends to call Mann’s wife while the family makes dinner and she puts him on speaker phone. Years ago, they would apologize “for living life in front of him,” Mann said, “to which he replied, ‘I live vicariously through you. This is my life as well.’”

“These are real friends,” Mann said. “We know what some of them did was heinous. But the nature of my faith is that it’s for redemption,” he said. “I’m here because nobody needs to die alone.”

By 7:30 p.m. there was no report from the prison. Anxiety grew the more time passed. The chancery court’s decision had been partly based on the assumption that the execution — and the duration of any pain associated with midazolam — would be relatively short. As the sky darkened, people started to leave. But just before 8 p.m., The Tennessean sent a news alert. The execution was complete.

News stories followed quickly. The execution began late and took longer than average; there was evidence that Irick might well have been conscious and experiencing pain, just as attorneys had warned. Dave Boucher, who witnessed for The Tennessean, described snoring, one possible sign that the midazolam had not worked as intended. Steven Hale of the Nashville Scene described how two minutes after the consciousness check, “Irick jolted and produced what sounded like a cough or a choking noise. He moved his head slightly and appeared to briefly strain his forearms against the restraints. Around 7:37, the color in Irick’s face changed to almost purple.” The curtains were closed after he appeared to stop breathing, Hale wrote. Then the warden spoke over the loudspeaker. “That concludes the execution of Billy Ray Irick. Time of death, 7:48 p.m. Please exit now.”


image4-1534195865

Protesters gather outside the Riverbend Maximum Security Institution on Aug. 9, 2018.

Photo: Liliana Segura/The Intercept

Irick’s execution was the first in Tennessee in almost nine years. With two more men scheduled to die at Riverbend by the end of 2018, the fight over the death penalty is not going away. Yet, in a major election year — and for all the recent coverage and controversy — the topic has been conspicuously absent from Tennessee’s electoral debates. In such a conservative state, critiquing capital punishment is not likely to be a winning tactic. Yet the restarting of the death machinery in Nashville runs against a well-documented trend both in Tennessee and the rest of the country. Executions are declining year after year — and new death sentences have become vanishingly rare.

The state of Tennessee’s death penalty was documented in a comprehensive report published last month in the summer issue of the Tennessee Journal of Law and Policy. Somewhat lost amid the frenzy over Irick’s execution, it was co-authored by Bradley MacLean, a veteran capital defense attorney who represents Abu Ali Abdur’Rahman, the named plaintiff in the lethal injection lawsuit. The 97-page article draws from years of research assessing capital punishment as applied over four decades in Tennessee. It reveals a staggering rate of death sentences reversed or vacated by the courts due to issues such as ineffective assistance of counsel, prosecutorial misconduct, and innocence.

“We tend to forget the reason behind Tennessee’s current capital sentencing scheme,” the authors write. It goes back to the landmark 1972 U.S. Supreme Court ruling in Furman v. Georgia, which declared death sentences unconstitutional nationwide. At the heart of the decision was evidence that the death penalty was being “freakishly” applied to “a capriciously selected random handful,” who ended up on death row less because of the nature of their crime and more because of factors like race and geography. “These death sentences are cruel and unusual in the same way that being stuck by lightening is cruel and unusual,” Justice Potter Stewart famously wrote in Furman.

“It is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

States set about passing new death penalty laws, and in 1976, in Gregg v. Georgia, the court upheld a new model of death penalty statutes, designed to ensure that sentences were less arbitrarily imposed. Tennessee’s law was revised accordingly. Yet more than 40 years later, its death penalty is emblematic of the very problems identified in Furman. MacLean’s co-author, H.E. Miller Jr., examined every death sentence handed down in Tennessee since its law was enacted. Of 2,514 people found guilty of first-degree murder in Tennessee between 1977 and June 30, 2017, he found, 192 were sentenced to die. Of those, more than half — 106 people — had seen their sentences or convictions vacated. Of the remaining 86, only six had been executed. Irick was the seventh. By comparison, the study found, in the same 40-year period, “24 condemned defendants died of natural causes on death row.”

Tennessee’s death penalty today is “a cruel lottery, entrenching the very problems that the court sought to eradicate,” the report concluded. The lottery is not entirely random; as in the cases that led to Furman, there is evidence of racism — African-Americans represent 14 percent of Tennessee’s population and 44 percent of its death row, the study found. The evidence is particularly stark in the most recent sentences, most of which come out of Shelby County, home to Memphis. Among nine trials in which new death sentences were imposed between July 2007 and June 2017, all but one defendant was African-American.

The decline of capital punishment in Tennessee comes even as lawmakers and the state Supreme Court have “gradually expanded the class of death-eligible defendants.” Despite Gregg’s directive that the death penalty must be narrowly imposed, the general assembly has added to the list of aggravating factors that can send a person to die, while the court has broadened their interpretation. Today there are 17 such aggravating factors. That death sentences continue to decline in spite of this suggests the policy is mostly useless, the authors write. “At this level of infrequency, it is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

The findings of the Tennessee report paint a familiar portrait of a failed policy that exists in some version or another across death penalty states. In a number of them, the very architects of the death penalty statutes passed after Furman have expressed dismay at what followed. In California, an attorney named Don Heller wrote a 1978 ballot initiative that expanded the “special circumstances” that would make defendants eligible for the death penalty. Prosecutors rushed to file capital charges. “Everyone was trying to put a notch on their gun,” Heller told me in 2016. Even as California’s condemned population has grown to become the largest in the country, only 13 executions have been carried out since Furman. One of the executed men, Heller believes, was innocent.

In Arizona, the death penalty has been similarly expanded — so much so that the state’s sentencing statute was recently challenged in a petition filed before the U.S. Supreme Court by Neal Katyal, former solicitor general for the Obama administration. The brief in Hidalgo v. Arizona called on the court to declare the death penalty unconstitutional, using Arizona as “an exemplar of the arbitrariness in the imposition of the death penalty in the United States.” Among those who signed an amicus brief was Rudy Gerber, the man who authored Arizona’s new death penalty law after Furman.

“I thought, well, having a new death penalty law is like having a new tax code,” Gerber told me last year, as Hidalgo was pending before the court. But as he saw his law take effect in Arizona, he was unnerved. He had not predicted that prosecutors would be so eager to use it, nor had he expected the law would be amended to make more and more defendants eligible for death. Whereas he wrote the original law to include six aggravating factors, today there are 14 that can send a person to death row in Arizona. Ironically, the very mechanism that was supposed to fix the death penalty “has put us right back into the arbitrariness and caprice that was condemned in Furman,” Gerber says.

“No medieval torture could be more bizarre.”

The man who wrote Tennessee’s death penalty law, David Raybin, is now a defense attorney in private practice. He was still a student at the University of Tennessee College of Law when Furman passed in 1972. “I was dealing with getting on law review and that kind of thing,” he told me in an interview last month. He recalls Furman as important, but not earth shattering; after all, it came amid “the so-called criminal law revolution of the late ’60s in the early ’70s,” bringing landmark rulings such as Miranda v. Arizona, which enshrined the right of defendants to be informed of their constitutional rights. “Every time you turned around, there was another decision coming out that had to do with the criminal justice system.”

Nevertheless, just a few years later, while working in the state attorney general’s office, Raybin found himself drafting Tennessee’s new death penalty law. Like several other states, its initial attempt at a constitutional death penalty statute had been rejected by the courts. “The legislature said, ‘We want a new death penalty statute.’ So they go to the attorney general and the attorney general comes to me and says, ‘Kid, come here.’ He says, ‘Write me a death penalty statute.’ So, I said, ‘OK.’”

Raybin drafted Tennessee’s 1977 law based on what had passed constitutional muster in Gregg — a model “we perceived to be state-of-the-art,” he said. As he recalls, prosecutors were somewhat leery of capital prosecutions at first, but many soon embraced them. The death penalty proved particularly useful for its “coercive effect” — a tool to get guilty pleas to first-degree murder. “That’s why it’s so near and dear to prosecutors’ hearts,” Raybin said.

As new death sentences peaked between the late 1980s and early 1990s, a number of problems became clear. There was the failure by the state to fund capital defense, which led to poor representation. Some death sentences imposed in felony murder cases were also troubling to Raybin — “How do you distinguish one 7-Eleven killing from another?” In the Tennessee study, the authors contrast one such robbery-murder that led to a death sentence to a brutal case involving multiple victims including a pregnant woman and a 16-month-old infant. The defendants in the latter case were sentenced to life.

Raybin worked as a prosecutor for 10 years. Although he is not opposed to the death penalty, he has written extensively about its many flaws in the decades since he left the attorney general’s office. Among those he has represented as a defense attorney was Daryl Holton, a man on death row who gave up his appeals and was executed in 2007. Holton chose to die in the electric chair, with Raybin as a witness. In a detailed account, he called the execution “barbaric in the extreme. No medieval torture could be more bizarre.” But he’s also critical of lethal injection, a method of execution once “perceived as a benign way to do this,” he told me, but which has “just turned into chaos. … It’s just an absolute disaster.”

“To me it detracts from the purpose of even having a death penalty,” Raybin said. “And it dehumanizes people and everybody who’s associated with it.”


Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick Thursday, Aug. 9, 2018, in Nashville, Tenn. Tennessee carried out the execution of Irick, condemned for the 1985 rape and murder of a 7-year-old girl, marking the first time the state has applied the death penalty since 2009. (AP Photo/Mark Humphrey)

Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick on Aug. 9, 2018, in Nashville, Tenn.

Photo: Mark Humphrey/AP

As protesters stood outside the prison last week, a vigil took place at Fisk Memorial Chapel, organized by Tennesseans for Alternatives to the Death Penalty. The group also held a vigil at a church in Memphis and another one in Knoxville “to oppose the execution of Billy Ray Irick and to remember all victims of violence, particularly Paula Dyer.”

Earlier in the week, TADP had held a rally at Nashville’s Legislative Plaza. Among the speakers was Ray Krone, who addressed the crowd from a podium next to a banner that read “Mental Illness: Treat the Illness, Don’t Kill the Person.” Krone was twice convicted in Arizona of a murder he did not commit, a prosecution based on junk science. Today he lives in East Tennessee. “We moved here six years ago, and we love it,” he told me at the rally in Nashville. As a resident, he said, it is especially important to speak out against “something that is a personal heartache and hardship for me.”

Krone addressed the crowd, telling his story and describing the toll it took on his family. Afterward, he carried a box of petitions across the street to the state Capitol, containing more than 62,000 signatures. An aide to Gov. Bill Haslam was there to receive them, but it felt like an empty gesture. The governor had already released a statement saying he would not intervene.

Stacy Rector, the head of TADP, introduced Krone to the aide, urging him to consider the implications of restarting executions in the state. “I’m more than willing to have a discussion about that,” Krone added. The aide shook his hand politely, then turned with the box and walked away.

Top photo: People gather outside the Riverbend Maximum Security Institution to protest the execution of Billy Ray Irick in Nashville, Tenn., on Aug. 9, 2018.

The post As Tennessee Restarts Executions, 40 Years of Data Expose Its Death Penalty as a “Cruel Lottery” appeared first on The Intercept.

July 23, 2018; Nashville, TN, USA; Davidson County Chancellor Ellen Hobbs Lyle presides over a lawsuit brought on by death row inmates contesting the use of lethal injection as unconstitutional because, they say, it would lead to cruel and unusual punishment, at Chancery Court Part lll, Metro City Hall. Mandatory Credit: Larry McCormack/The Tennessean via USA TODAY NETWORK
August 5, 2018

Chilling Testimony in a Tennessee Trial Exposes Lethal Injection as Co...

Julie Hall smiled on the witness stand as she recalled a memory of her old client Joseph Wood. He had spent most of the last two decades living in solitary confinement, with his recreation confined to a cage, when the Arizona Department of Corrections began to loosen some restrictions over people on death row. A basketball court was built outside his unit on the sprawling desert prison complex in Florence, about an hour south of Phoenix. At 55, Wood was relatively healthy — “he loved going out and playing,” Hall said. A prison sergeant even played a round of basketball with Wood, which meant a lot. “He felt like he was being treated like he was human for the first time in a long time.”

Hall’s smile disappeared when she described the day Wood died. It was July 23, 2014. His execution was scheduled for 10 a.m. Hall arrived at the prison that morning at 6:45, then waited almost an hour to see him. When the Arizona Supreme Court granted a temporary stay of execution, Hall told him the good news. Wood was prepared to die, she told the court; ever since he committed the murders that sent him to death row, he had felt he did not deserve to live. Still, “he wanted someone to listen to us when we said that this was an experimental method of execution.”

Wood was the first to face a new form of lethal injection in Arizona that used a combination of the opioid hydromorphone and the sedative midazolam. The latter had raised controversy over its use in executions. Florida first tried it in 2013 to kill a man named William Happ “in what seemed like a labored process,” according to one media witness. Happ “remained conscious longer and made more body movements after losing consciousness” than people executed under the old formula, according to another report. The Florida Department of Correction, which refused to say how it chose the drug, dismissed the concerns — and soon other states were trying out midazolam. In January 2014, Ohio used it to execute Dennis McGuire. Witnesses described how he struggled and gasped, clenching his fists and striving to breath. A few months later, in April 2014, Oklahoma used midazolam to kill Clayton Lockett in one of the most notorious botched executions in recent memory.

But Arizona stuck to the plan. By noon that day, Wood’s stay of execution had been lifted. Prison staff provided Hall with a pencil and paper and led her to the witness chamber. No phones were allowed. Once inside, she was told, she would be forbidden from leaving the room. Hall watched as a pair of TV monitors were turned on above the closed curtains. “That’s where we could view the insertion of the IV lines,” she explained. Hall was surprised at the amount of blood she saw — some of it dripped onto the floor. With the IVs eventually placed, the monitors went dark. The curtains opened. Wood lay strapped to the gurney, thick straps over his arms and a white sheet covering his legs.

After 20 minutes and 134 gasps, she stopped counting.

At 1:52 p.m., a voice came over the loudspeaker. The lethal injection was about to start.

After five minutes, with the first dose of midazolam presumably administered, a man entered to conduct a consciousness check on Wood. The voice came back to announce he was sedated. But three minutes later, Hall said, “I saw a quiver in his cheek, which surprised me a little.” She didn’t know whether it was normal or not. It was two minutes after that when she saw Wood gasp for air. Then he did it again. And again.

“He just kept gasping,” Hall said. She began counting the gasps on her notepad. After 20 minutes and 134 gasps, she stopped counting. “I just didn’t know what the point was anymore.” Hall struggled to describe what it looked like. It reminded her of a fish that was dying after being pulled from the water — “that opening of the mouth; trying to get air and just not getting it.”

At 2:50 p.m., Dale Baich, supervising attorney of the Arizona Federal Public Defender’s Capital Habeas Unit, who was seated behind Hall, passed her a note. “Go now,” it said, instructing her to call their colleagues in Phoenix. Hall hurried out of the witness room and asked a guard if she could use his phone. He refused, then escorted her outside of the death house, through a maze of sally ports and checkpoints, and finally, out to the administration building. It took nine minutes. Only then was Hall able to make a call, to tell someone that “something was going very, very wrong and it looked like Mr. Wood was suffering.”

Hall was still on the phone when Wood was finally declared dead at 3:53 p.m. The next day, media witness Michael Kiefer published his own account of Wood’s struggle to breathe. Over the two-hour execution, he reported, Wood gasped more than 640 times.

Hall told her story in fits and starts, answering questions in a courtroom in Nashville, Tennessee. It was July 9, 2018, day one of Abu Ali Abdur’Rahman v. Tony Parker, a trial over Tennessee’s lethal injection protocol. Parker is the head of the Tennessee Department of Correction, or TDOC. The named plaintiff is one of 33 men facing execution under a new formula that includes midazolam. Three have been scheduled to die by the end of the year. One of them, Billy Ray Irick, is set for execution on August 9.

Hall was one of more than 20 witnesses called by the plaintiffs, including some dozen defense attorneys who had witnessed their clients’ executions. They dramatized what lawyers argued in their trial brief: that Tennessee’s new protocol violates the Eighth Amendment ban on cruel and unusual punishment. First issued in January, it called for the injection of three drugs: midazolam, followed by a paralytic called vecuronium bromide, and culminating with potassium chloride to stop the heart. With midazolam chosen to provide anesthesia, the attorneys argued it was not only possible but very likely their clients would suffer. What’s more, they said, the protocol prevents defense attorneys from having access to a phone during the execution, in violation of their clients’ constitutional rights.

The inescapable conclusion was that states have almost certainly been torturing people to death in their execution chambers.

The witnesses described executions in Alabama, Arizona, Arkansas, Ohio, Virginia, Florida, and Oklahoma. Many had never spoken publicly. Their accounts ranged from subtle but unusual movement on the gurney to gasping, lurching, and clenching of fists. They were bolstered by leading medical experts who explained the scientific reasons why midazolam was inadequate to provide anesthesia.

One pathologist presented evidence that had never been shown in court. He had reviewed 27 autopsy reports out of the 32 total executions carried out using midazolam. In most of the cases, he found signs of pulmonary edema — fluid in the lungs that indicated the men had been in respiratory distress. The inescapable conclusion was that states have almost certainly been torturing people to death in their execution chambers — and that Tennessee might be ready to do the same.


July 23, 2018; Nashville, TN, USA; Davidson County Chancellor Ellen Hobbs Lyle presides over a lawsuit brought on by death row inmates contesting the use of lethal injection as unconstitutional because, they say, it would lead to cruel and unusual punishment, at Chancery Court Part lll, Metro City Hall. Mandatory Credit: Larry McCormack/The Tennessean via USA TODAY NETWORK

Davidson County Chancellor Ellen Hobbs Lyle presides over a lawsuit contesting the use of lethal injection in Nashville, Tenn., on July 23, 2018.

Photo: Larry McCormack/The Tennessean via USA Today Network

After weeks of testimony, a ruling came quickly, on July 26. It sided with the state. In her order upholding Tennessee’s lethal injection protocol, Davidson County Chancellor Ellen Hobbs Lyle wrote that the plaintiffs had failed to prove their case, while acknowledging that the use of midazolam might leave them vulnerable to pain during their execution. The U.S. Supreme Court was “aware of the risk of midazolam,” she wrote, and upheld it anyway in Glossip v. Gross. Though “dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions.”

For anyone who has followed the legal evolution of lethal injection, Lyle’s ruling was not a surprise. The decision ultimately turned not on midazolam, but on a different provision of Glossip. Under the ruling, the plaintiffs had to prove not only that Tennessee’s protocol was cruel and unusual, but that there was a viable alternative. In her dissent in Glossip, Supreme Court Justice Sonia Sotomayor decried this “surreal requirement,” one that puts attorneys in the perverse position of identifying methods that should be used to kill their clients. Though Lyle conceded that this law “seems odd,” the requirement was clear. “That proof has not been provided in this case.”

Decisions in chancery court have limited sway. Under Tennessee’s Declaratory Judgment Act, Lyle’s ruling amounts to a “declaration” — an opinion that can only be weaponized by bringing it to a different forum. Most lethal injection challenges are brought before federal courts that have the power to stop executions. Lyle did not. In bringing the lawsuit in chancery court, Federal Public Defender Kelley Henry hoped to win a ruling that could influence the state Supreme Court or governor to intervene.


Kelley Henry argues on behalf of plaintiffs during oral arguments on whether death row inmates can properly challenge the constitutionality of electrocution as a possible method of execution on Wednesday, May 6, 2015 in the Tennessee Supreme Court in Knoxville, Tenn. (Adam Lau/Knoxville News Sentinel via AP)

On May 6, 2015, Kelley Henry argues on behalf of plaintiffs on whether death row inmates can properly challenge the constitutionality of electrocution as a possible method of execution.

Photo: Adam Lau/Knoxville News Sentinel via AP

Yet the order belies the significance of the trial itself. As Henry said in her closing argument on July 24, it was the first time a three-drug protocol using midazolam had been the subject of a “real trial.” Until now, most hearings on midazolam were on whether to grant a preliminary injunction to stop a looming execution. Such hearings are rushed by their nature — witnesses often appear by Skype. This was not the case in Nashville. Though the trial moved quickly, the testimony was extensive and nuanced, providing a much fuller picture of the science behind the drugs used in lethal injection. Lyle was deliberate and measured — and cautious not to allow witnesses to testify beyond their expertise.

The questionable analysis of expert witnesses has had major consequences where lethal injection is concerned. At the preliminary injunction hearing that paved the way for Glossip, Alabama-based pharmacist Dr. Roswell Lee Evans peddled opinions divorced from scientific reality. Among his claims was that 500 milligrams of midazolam — the same dose as in the Tennessee protocol — would render someone unconscious to the point that they would not feel pain. Anesthesiologists adamantly disagreed. In an amicus brief to the Supreme Court, 16 professors of pharmacology cited the “overwhelming scientific consensus” that midazolam was incapable of inducing the “deep comalike unconsciousness” called for in lethal injection. On the eve of oral arguments in Glossip, the case was embroiled in controversy over the revelation that Evans had relied on sources like the website Drugs.com.

“Those states that have experimented with this drug have seen firsthand that it is a failure.”

There is “no debate around midazolam,” anesthesiologist Dr. David Lubarsky told the court in Nashville. Among such experts, Evans has no credibility. But among prosecutors intent on carrying out executions, Evans remains a useful and willing witness, “recognized by numerous state and federal courts,” as Deputy Attorney General Scott Sutherland told the court. If anyone lacked credibility, he suggested, it was the “highly biased” defense attorneys who watched their clients’ executions, he said, quoting a 6th Circuit ruling over Ohio’s lethal injection protocol. As a more authoritative source, Sutherland offered the official department of correction records from 19 executions carried out using midazolam in Arkansas, Florida, and Ohio. Many of them were described as problematic, but these records showed everything had gone fine, he said.

Yet states have already begun shifting away from midazolam. After a drawn-out legal battle following Wood’s death, Arizona agreed in 2016 to “never again use midazolam, or any other benzodiazepine” for lethal injection. “Those states that have experimented with this drug have seen firsthand that it is a failure,” Henry said. If Tennessee learns this lesson the hard way on August 9, it will not be for lack of warning. The trial in Nashville was a case study in Glossip’s twisted legacy — and a chilling look at the botched executions that continue amid little national controversy. If the death penalty is making a mockery of the Eighth Amendment, it is at least because not enough people are paying attention. In the words of the Supreme Court, “It is difficult to regard a practice as ‘objectively intolerable’ when it is in fact widely tolerated.”


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Nashville’s Metropolitan Courthouse.

Photo: Radley Balko/The Intercept

Davidson County Chancery Court is located inside Nashville’s Metropolitan Courthouse, steps from where the Cumberland River cuts through town. The historic art deco building is anchored by Public Square Park, home to festivals, concerts, and the occasional protest. A few days a week over the course of the lethal injection trial, food trucks lined the southwest corner, where the Nashville Downtown Partnership hosted something called “Adult Recess”: whimsical lawn games like oversized checkers.

In her opening statement on the morning of July 9, Henry acknowledged the strange task at hand. “When we talk over and over and over again about ways in which to inject our clients with chemicals, it can become numbing,” she said. But the state has chosen a method of execution that is akin to being burned alive, she said. It’s easy to dismiss such descriptions — “Oh, those are just the words of those anti-death penalty people. That’s not real.” But, she went on, “the medical proof will show those words are not hyperbole.”

Henry was accompanied by eight other lawyers representing men on death row. Several of the cases date back decades, to an era when the execution chamber lay dormant in Tennessee. Henry arrived in Nashville in 2000, one month before the state carried out its first execution in 40 years. Six have been carried out since. In the meantime, like many death penalty states, Tennessee has changed its protocol repeatedly and haphazardly.

It wasn’t always that way. When the U.S. Supreme Court took up the precursor to Glossip — Baze v. Rees — many assumed that the questions over lethal injection would soon be settled. In its 2008 ruling, the court upheld a prevailing three-drug protocol that had been in use for decades. But the decision was followed by an unexpected sea change in lethal injection, which would throw the death penalty into chaos. The drug at the center of the ruling, sodium thiopental, became suddenly unavailable after its sole U.S. manufacturer stopped making it. As states sought new sources, many began altering their protocols, adopting new drugs based on what was obtainable and not necessarily what was most likely to work. After Glossip came down in 2015, midazolam became the new go-to replacement for sodium thiopental.


Close up of Thiopental Sodium in a tray, Thiopental Sodium is used as a barbiturate general anesthetic. (Photo by Universal Images Group via Getty Images)

Thiopental sodium in a tray.

Photo: Universal Images Group via Getty Images

Speaking before the court, Henry explained why this was such a serious mistake. In Baze, the Supreme Court acknowledged that the three-drug formula relied on an efficacious dose of sodium thiopental. Without it, the second and third drugs would cause extreme suffering, Chief Justice John Roberts wrote, making an execution “constitutionally intolerable.” Although the plaintiffs in Baze had argued there was too much room for error, the drug itself was at least designed to provide anesthesia. Midazolam was not. “Sodium thiopental is a barbiturate,” Henry explained. “It is a completely different class of drug than midazolam.”

Henry pushed back against the state’s argument that the true effects of large quantities of midazolam are unknown since there have been no “human experiments” to collect data. “Unfortunately, we do have human experiments,” she said. “We have 32 human experiments. Men who were executed using a protocol that involves midazolam.”

Sutherland began by invoking the gruesome crimes for which the plaintiffs had been convicted. “These facts provide context for this court as to why we are here,” he said.

With a low voice that was sometimes hard to hear, Sutherland wore a look of mild irritation — and the slightly casual air of a man who knows the law is on his side. He quoted Justice Samuel Alito’s reasoning in Glossip: “Capital punishment in this country is constitutional, and it follows, necessarily, that there must be a constitutional means of carrying it out.” The Constitution does not require a painless execution, Sutherland went on. It only prohibits the deliberate infliction of torture, such as disembowelment or being burned alive. What’s more, “in the history of its existence,” the court “has never invalidated a state’s chosen method of execution as cruel and unusual punishment.” As for midazolam, there was nothing new to discuss.

Sutherland seized on the main problem with the plaintiffs’ lawsuit. They argued in favor of a one-drug protocol using the barbiturate pentobarbital, a formula used by states like Texas. But they showed no proof that pentobarbital was available, he said. Instead, they argued that TDOC never made an effort to procure it. This was not true, Sutherland said, but regardless, “it’s not our burden to prove that it’s unavailable.” The plaintiffs had to prove that it was.

Sutherland echoed the late Antonin Scalia’s complaint during oral arguments in Glossip, blaming anti-death penalty activists for the drug shortage. There was truth to his claim — the human rights group Reprieve has waged a successful campaign over the past decade to convince drug companies to block the use of their products for execution. But the specter of overzealous anti-death penalty activists has also proven useful to states — a way to justify heightened secrecy around the procurement of execution drugs. Throughout the trial, the identities of the state’s supplier and drug procurer were kept secret.

For all the blame heaped on activists and capital defense attorneys, the trial would reveal the recklessness and repeated mistakes shown by the state in its relatively short history with lethal injection. Henry called it a “timeline of indifference.”


Ricky Bell, the warden at Riverbend Maximum Security Institution in Nashville, Tenn., gives a tour of the prison's execution chamber on Wednesday, Oct. 13, 1999. Both the electric chair and the lethal injection gurney are kept in the room until the time is near for a prisoner to be executed and the one not used is taken out. Robert Glen Coe, the prisoner most likely to be the first executed in Tennessee since 1960, has chosen lethal injection over the electric chair. (AP Photo/Mark Humphrey)

Ricky Bell, then-warden of Riverbend Maximum Security Institution in Nashville, Tenn., gives a tour of the prison’s execution chamber on Oct. 13, 1999.

Photo: Mark Humphrey/AP

Tennessee first adopted lethal injection in 1998. With the state’s execution machinery about to restart, lawmakers were concerned that the U.S. Supreme Court would strike down the electric chair on Eighth Amendment grounds. They proposed new legislation to get with the times, while making clear that they weren’t trying to make things easier for the condemned. “We should draw and quarter those suckers who commit these heinous crimes, but that ain’t constitutional,” then-Rep. Chris Newton, the bill’s House sponsor, said at the time.

To design a lethal injection protocol, TDOC put together a committee of prison officials to look at other states’ methods. Ricky Bell, then-warden of Riverbend Maximum Security Institution, where executions take place, went to Texas to see a lethal injection firsthand. The result was the same formula used across the country: a three-drug cocktail, beginning with a fast-acting barbiturate, sodium thiopental, to provide anesthesia. This was followed by pancuronium bromide, a paralytic drug that froze the muscles used for respiration. Lastly, potassium chloride would stop the heart.

“It gave me the creeps. It is a classic sign of an anesthetized patient being awake.”

The three-drug formula was never particularly scientific. Invented by an Oklahoma medical examiner in 1977, the method was simply replicated from state to state. Decisions on doses were left to prison officials; in Texas, which first carried out lethal injection, the gurney was chosen to make it look antiseptic, like a medical procedure.

The first person killed by lethal injection in Tennessee was Robert Glen Coe in 2000. Media coverage was heavy, yet there was relatively little detail describing his death. A witness for the Associated Press reported that he briefly “convulsed and coughed,” then lay still, but no one seemed concerned that anything had gone wrong. Under Tennessee law at the time, Coe’s defense attorneys were not allowed to attend.


This image taken from videotape recorded by prison officials shows Robert Glen Coe as he is wheeled to the execution chamber at Riverbend Maximum Security Institution in Nashville, Tenn. on  April 19, 2000. The state blacked out areas that show people other than Coe. The state released a heavily edited version of the video this week after several news organizations sued for access under the state's public records laws. (AP Photo)

This image taken from a video recorded by prison officials shows Robert Glen Coe as he is wheeled to the execution chamber at Riverbend Maximum Security Institution in Nashville, Tenn., on April 19, 2000.

Photo: AP

It was not long before questions began to be raised, however. In 2002, Abu Ali Abdur’Rahman challenged the state’s execution protocol in chancery court. At the heart of the lawsuit was the second drug in the protocol, the paralytic pancuronium bromide, marketed under the name Pavulon. At an evidentiary hearing in 2003, one month before Abdur’Rahman’s scheduled execution, his lawyers called Dr. Mark Heath, a professor of anesthesiology at Columbia University. Heath said he had begun studying lethal injection after the execution of Timothy McVeigh in 2001. The Oklahoma City bomber died with his eyes open, according to witnesses, some of whom described a tear welling up in his eye. “It gave me the creeps,” Heath would later tell reporter Bruce Shapiro. “It is a classic sign of an anesthetized patient being awake.”

On the stand in 2003, Heath explained that if the first drug in the protocol, sodium thiopental, was not adequately administered, the pancuronium bromide would cause suffocation while creating a “chemical mask,” concealing any evidence of the excruciating burning pain that would result from the injection of the third drug, potassium chloride. Lawyers called a woman named Carol Weihrer, who described her terror during eye surgery in 1998, when she woke up while under the effect of pancuronium bromide and was paralyzed, unable to alert her doctors.

Presiding over the 2003 hearing was Ellen Hobbs Lyle, the same judge who handed down the ruling last month. On June 1, 2003, Hobbs sided with the state, concluding that lawyers for the condemned had failed to prove that Tennessee’s protocol was unconstitutional. But she was critical of the lack of research behind the protocol — and particularly pointed in criticizing Pavulon, “a drug outlawed in Tennessee for euthanasia of pets.” It served no purpose except to give “a false impression of serenity to viewers, making punishment by death more palatable,” she wrote. And if the anesthetic failed to work, she warned, the paralytic would hide the “excruciatingly painful ordeal of death by lethal injection.”


Gov. Phil Bredesen talks about his proposed budget on Monday, May 8, 2006 in Nashville, Tenn. (AP Photo/Mark Humphrey)

Tennessee Gov. Phil Bredesen talks about his proposed budget on May 8, 2006, in Nashville, Tenn.

Photo: Mark Humphrey/AP

By the time Tennessee carried out its next execution, killing Philip Workman in 2007, evidence had come to light to confirm what Heath had feared. The Lancet, a prestigious medical journal, had published findings from a review of 49 executions across four states, showing evidence that many of the condemned had not been adequately anesthetized. Toxicology reports showed that concentrations of sodium thiopental in the blood of 43 of the men “were lower than that required for surgery,” while 21 had “concentrations consistent with awareness.” One of the co-authors of the study, Dr. David Lubarsky, later reviewed the autopsy report for Coe; in a front-page story in May 2006, The Tennessean summed up his conclusion: Coe was “probably awake and suffering silently.”

Later that year, a Florida man named Ángel Nieves Díaz died in a harrowing execution after IV lines sent drugs into his tissue rather than his veins. The following February, then-Tennessee Gov. Phil Bredesen halted four scheduled executions. A botched execution was “a governor’s nightmare,” he said. “How do you know that’s not going to happen here?”

Bredesen announced a 90-day moratorium and the formation of a five-member commission to revise Tennessee’s lethal injection protocol. The current execution manual was a “cut-and-paste job,” he said. An AP report revealed how its “minute-by-minute guidelines for lethal injection” included rules clearly written to apply to electrocutions, for example, the directive that staffers shave the head of the condemned, as well as the need to keep a fire extinguisher on hand.

The commission, made up of TDOC employees, proved to be little more than political theater, however. In April 2007, TDOC released its new protocol. Although it now included instructions on doses, it preserved the three-drug formula, including the paralytic. At 1 a.m. on May 9, Workman died by lethal injection at Riverbend. “As a media witness at last night’s execution, I can say it’s true Workman showed no obvious signs of pain,” Nashville Scene reporter Sarah Kelly wrote. “But even if he was in agony, he wouldn’t have been able to move.” A few months later, Tennessee carried out a third execution — that of Daryl Holton. Given the choice between the gurney and the electric chair, he chose electrocution.

In September 2007, while the Supreme Court prepared to consider the writ of certiorari in Baze v. Rees, a U.S. District Court held a hearing on Tennessee’s revised protocol. The four-day proceeding was “filled with absurdities,” according to the Nashville Scene. Testimony revealed that TDOC Commissioner George Little had actually rejected the advice of Bredesen’s commission, which had recommended a single dose of a barbiturate to replace the three-drug formula. On September 20, 2007, U.S. District Judge Aleta Trauger declared the protocol unconstitutional.

Just five days later, the U.S. Supreme Court granted certiorari in Baze v. Rees. It would be the first time the court would consider the three-drug method used for executions across the country. In April 2008, the justices upheld the protocol, 7 to 2. In light of Baze, Trauger vacated her previous decision.

It was not long afterward that states stopped being able to find sodium thiopental. Some sought new dubious sources, while others tinkered with their protocols. But there was a silver lining to the chaos. As they considered new methods, states began drifting away from the traditional three-drug formula, eliminating the paralytic from many protocols. In 2013, after a supply of sodium thiopental was seized by the Drug Enforcement Administration, Tennessee did what the commission had suggested years before, adopting a one-drug protocol using pentobarbital. But after Glossip in 2015, states started going back to a three-drug protocol, mimicking the old formula with something that was actually far more dangerous. Like many states, Tennessee is relying on an anonymous, unregulated compounding pharmacy for its supply of midazolam. As far as the paralytic, 15 years after Lyle first warned about its dangers, Tennessee has gone full circle.

On Friday, July 13, Riverbend Warden Tony Mays took the stand. After nearly a week of testimony about botched executions, it was a chance for the state to show that the situation would be in good hands. It didn’t. Mays, named warden in 2017, seemed alarmingly ill-informed, unfamiliar with various details of the protocol and unable to answer what, if anything, he would do if problems arose.

Some of this was no fault of his own. With no warning to the plaintiffs, the state had issued a revised protocol on July 5, just days before the trial was about to start. Henry called it a “cynical ploy to gain litigation advantage.” But it also created confusion for Mays, who was tasked with training his subordinates to carry out executions.


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Tennessee Department of Correction Commissioner Tony Parker.

Photo: Dawn Majors/TDOC

The next witness was the official who ultimately has to answer for such concerns: TDOC Commissioner Tony Parker. A lifelong employee of the state’s prison system, Parker was named commissioner in 2016. The position made him responsible for selecting the state’s lethal injection protocol. Presumably, Henry asked, this meant that he would want to know what other courts and officials had said about previous versions of Tennessee’s lethal injection, correct? “I think I’d consider all the comments if I felt they were relevant,” Parker said.

Henry walked Parker through some of the state’s lethal injection milestones. Had he considered Lyle’s concerns over Pavulon back in 2003? Parker said he did not know what Pavulon was. Henry showed him portions of the ruling, which established Pavulon as the paralytic agent. Parker said he had never seen the decision before. “I guess it would be more important to me if we were using Pavulon,” he said. “But we’re not.” Would it be relevant if Pavulon was indistinguishable from the paralytic used in the protocol he chose? Henry asked as patiently as possible. “I would have to talk to a medical professional,” Parker said. “I don’t know any of that.” Henry asked Parker if he knew the difference between sodium thiopental and midazolam. No, he said.

Parker’s testimony was galling. But it was not entirely surprising. Parker had largely delegated his duties to his general counsel, Deputy Commissioner Debra Inglis, a veteran TDOC employee who was intimately acquainted with the state’s lethal injection history. She was a member of Bredesen’s 2007 commission that overhauled the execution manual. “Did Miss Inglis share with you that the committee’s recommendation at the time was to abandon the three-drug protocol in favor of a one-drug protocol?” Henry asked Parker. “We never had that particular conversation,” he said.

The email showed that the state had been warned by the source about the dangers of midazolam in the fall of 2017.

Inglis was the last state official to take the stand. Over more than two hours of testimony, she reiterated that Parker was the man in charge of selecting a lethal injection protocol. As for the move to adopt midazolam, she said, “it was his sole decision.”

Questioning Inglis, criminal defense attorney Kathleen Morris asked about an email that had raised controversy earlier this year. Written by an anonymous entity referred to as Source B, who had been tasked with procuring drugs for executions by TDOC, it was revealed by the Nashville Scene through an open records request. The email showed that the state had been warned by the source about the dangers of midazolam in the fall of 2017. “Here is my concern with Midazolam,” Source B wrote. “Being a benzodiazepine, it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride, especially.” Not necessarily a “huge concern,” the author added, but it could “open the door to some scrutiny on your end.”

Morris asked Inglis if she had discussed the email with Parker. He was made aware of it, she said. But they did not discuss it.

If such warnings were not enough to convince Tennessee to reconsider its search for midazolam in 2017, the drug had attracted plenty of scrutiny that year. In Arkansas, Gov. Asa Hutchinson had announced a plan to carry out eight executions over the course of 11 days that April. The reason for the rush: The state’s supply of midazolam was scheduled to expire at the end of the month.

Like Tennessee, Arkansas had not carried out an execution in years. It had never used midazolam. The planned execution spree threw attorneys into disarray. Only four executions ultimately went forward. Although there were some signs of trouble in the first three, no one reported any dramatic scenes. But in the final execution, on April 27, Kenneth Williams died a disturbing death. Media witnesses at the prison described how Williams had lurched and gasped. A spokesperson for the governor immediately dismissed the movement as “involuntary.”

He heard moaning, then “choking and coughing and heaving.” The sounds were loud enough to hear through the wall.

Among the witnesses that night was Eric Patrick Motylinski, a Rhode Island attorney appointed to represent Williams. Taking the stand in Nashville, Motylinski described what he saw.

At 10:52 p.m., after giving his last statement, Williams began speaking in tongues, continuing after an announcement had been made that the lethal injection was about to begin. “His words kind of became slow and halting and they eventually stopped,” Motylinski said. But then “I saw his chest kind of pumping and I could see his head kind of moving back and forth.” He also appeared to be clenching his jaw. At 10:55 p.m., Motylinski heard moaning, then “choking and coughing and heaving.” The audio to the witness chamber had been turned off, but the sounds were loud enough to hear through the wall. Williams began to convulse, Motylinski said. “He was rising up from the gurney repeatedly, rhythmically, and finally kind of hitting up against the straps.” At 10:57 p.m., Motylinski decided to leave the witness chamber. The prison had agreed to allow him access to a phone. When he re-entered, Williams was lying still. He was declared dead at 11:05.

Motylinski’s testimony was disturbing. But it was also instructive. Despite being unable to stop the apparent suffering of his client, he had been able to take action on his behalf relatively quickly. This was precisely what Tennessee denied attorneys in its protocol, Henry argued. In a deposition, Parker had suggested it might be possible to accommodate lawyers’ requests for a phone to be available if needed. But Inglis did not support this. An attorney could go get their phone from their car.

Even when a state ostensibly allows for such safeguards, they are no guarantee. When Ohio defense attorney Carol Wright witnessed the 2017 execution of her client Gary Otte, who violently struggled on the gurney, she tried to leave the room only to be stopped by prison staff. “They blocked the door,” she testified. “They said, ‘Sit down.’” After she saw tears coming down Otte’s face, she went to the door again. “And I said, ‘Dear Lord.’” Only then was she given permission to leave and call a fellow federal defender, who phoned a federal court. Wright “is reporting that there were signs that Mr. Otte was conscious, crying, clenching of the hands, heaving at the stomach,” the colleague told a federal judge, according to a transcript. But the judge declined to intervene. In a ruling five days later, he concluded that the description was not enough to show that Otte “was experiencing unconstitutionally severe pain.”

Like all things involving prison, the witnesses’ testimony revealed how arbitrary the different rules can be from state to state. In Alabama, lawyers were not even allowed to have writing materials during executions. Defense attorney Spencer Hahn described how he kept mental track of the duration of Ronald Bert Smith Jr.’s heaving and coughing during his 2017 execution by recording the start time in his mind and counting the minutes and seconds on his hands.

The point, of course, is to control the narrative. When Motylinski was shown an internal affairs report from Williams’s execution in Arkansas, he said the notes “substantially minimize what I saw.” There was no mention of the coughing or clenching of his jaw. It did not capture the violence of his convulsions, the way he hit against the straps. The state’s official report was “sanitized almost to the point of being unrecognizable.”

Cross-examining Motylinski, Sutherland asked only one question: Was that the first execution he had ever witnessed? Yes, Motylinski said. But other defense attorneys were asked a range of questions that were meant to show bias. Wasn’t it true, Sutherland asked Dale Baich, that he once received an award from the abolitionist group Death Penalty Focus? Wasn’t it true, Assistant Attorney General Rob Mitchell asked Julie Hall after her testimony about Wood’s execution, that she exclusively represented clients in death penalty cases?

Cross-examining Assistant Federal Defender Leslie Smith, Assistant Attorney General Charlotte Davis asked how long she had represented her client before seeing him struggle on the gurney in Alabama. Fourteen or 15 years, Smith answered. Was she close to him? “Yes,” Smith said. “He was my client and I cared about him.”


July 23, 2018; Nashville, TN, USA; Federal Public Defender Kelley Henry speaks during a lawsuit brought on by death row inmates contesting the use of lethal injection as unconstitutional because, they say, it would lead to cruel and unusual punishment, at Chancery Court Part lll, Metro City Hall. Mandatory Credit: Larry McCormack/The Tennessean via USA TODAY NETWORK

On July 23, 2018, Federal Public Defender Kelley Henry, center, speaks during a lawsuit brought by death row inmates contesting the use of lethal injection.

Photo: Larry McCormack/The Tennessean via USA Today Network

On July 16, the plaintiffs called Dr. Mark Edgar, a diagnostic pathologist at Emory University. Edgar had reviewed all the available autopsies of people executed using midazolam across the country. Conducted by the local medical examiners in the counties where the men were executed, the documents ranged in their level of detail. Some states, like Ohio, don’t conduct autopsies after executions at all.

But Edgar found some details that jumped out. “I was struck by the abnormality in the lungs,” Edgar said. “All of the lungs were heavy with fluid.” An average lung, he explained, would weigh about 350 to 400 grams. But the autopsies he studied showed lungs more than double that weight. What’s more, most of the lungs showed signs of pulmonary edema — “evidenced by bubbles, froth and foam both in the lung tissue and in the larger airways.”

Edgar had created a chart to compile his findings. He underlined the parts that indicated proof of pulmonary edema. In total, 23 of the 27 autopsy reports. Among them were the autopsies of Joseph Wood and Kenneth Williams. Wood’s right lung weighed 980 grams, his left weighed 945. There were “marked amounts of blood and frothy fluid” indicating “acute pulmonary edema,” Edgar said.

“As it gets even worse, they may have a sense of terror, panic, drowning, asphyxiation.”

Henry asked Edgar to explain the symptoms of pulmonary edema. “When it begins, the patients are short of breath. They feel like they can’t catch their breath and they breathe a little bit faster,” he said. “As it gets worse, they may have a sense of air hunger and be gasping for air. As it gets even worse, they may have a sense of terror, panic, drowning, asphyxiation. It’s a medical emergency and a stage of extreme discomfort.” In a hospital setting, he explained, a patient would be given diuretics to remove fluid from the lungs. “Because they’re in such a state of panic,” they would also be given morphine, he added.

Edgar’s testimony was supported by a renowned pharmacologist, Dr. David Greenblatt, the longtime head of the department of pharmacology and therapeutics at the Tufts University School of Medicine. Greenblatt was not only an expert in midazolam, he was responsible for some of the earliest studies of the drug, which were used by the Food and Drug Administration in its approval for clinical practice. Greenblatt explained why pulmonary edema might result from a large dose of midazolam. To be injected, midazolam has to be mixed with hydrochloric acid, which makes it water soluble. Once injected, it would go first to the heart and then to the lungs, whose capillary circulation is dependent on “a very thin and delicate membrane” that is “very sensitive to acid.” A dose of 500 milligrams of midazolam would be destructive to the membrane, he explained, making it leaky. “So the lungs acquire fluid … and that makes air exchange difficult if not impossible.”

The testimony from Edgar and Greenblatt added a disturbing new dimension to the more widely known features of midazolam. Dr. David Lubarsky, the respected co-author of the 2005 Lancet study, said it was fine for sedating a patient — he called it “a martini in a syringe.” But midazolam has no analgesic effects on its own. When it is used in minor surgical procedures, like colonoscopies, it is paired with an opioid. What’s more, it is limited by what is often described as a ceiling effect, a widely accepted property among benzodiazepines. Even at extremely high doses, their effects eventually plateau. The 500 milligrams of midazolam called for by Tennessee will not make a difference. Dr. Craig Stevens, a neuropharmacologist, compared it to taking a bottle of aspirin to treat an amputated leg. Lubarsky said it was “like throwing a glass of water into the ocean.”

Midazolam is therefore useless in the face of “noxious stimuli,” the experts explained, especially something as severe as the injection of drugs like vecuronium bromide or potassium chloride. The former is “formulated in an acidic solution,” Greenblatt testified, which made it “painful going in.” If one is conscious as it takes effect, “basically you’re suffocating. You want to breathe but you can’t, because you can’t use your muscles.” The potassium chloride was also “extremely painful when injected,” Greenblatt said. When patients receive it as part of a medical procedure, “you have to dilute it tremendously and also give it very slowly.”

The expert testimony illuminated why the petitioners in Glossip called lethal injection using midazolam “the chemical equivalent of being burned alive,” as Sotomayor wrote in her dissent. As the Supreme Court has rejected further challenges to lethal injection, she has continued to speak out. “What cruel irony,” she wrote last year, “that the method that appears most humane may turn out to be our most cruel experiment yet.”


July 23, 2018; Nashville, TN, USA; Assistant Attorney General Rob Mitchell andDeputy Attorney General Scott Sutherland listen as Federal Public Defender Kelley Henry speaks during a lawsuit brought on by death row inmates contesting the use of lethal injection as unconstitutional because, they say, it would lead to cruel and unusual punishment, at Chancery Court Part lll, Metro City Hall. Mandatory Credit: Larry McCormack/The Tennessean via USA TODAY NETWORK

Assistant Attorney General Rob Mitchell, left, and Deputy Attorney General Scott Sutherland listen as Federal Public Defender Kelley Henry speaks in court on July 23, 2018.

Photo: Larry McCormack/The Tennessean via USA Today Network

Cross-examining the experts, Sutherland asked if they knew of any potential sources of pentobarbital for lethal injection. Not surprisingly, they said no. Surely they had professional contacts who might, Sutherland said. But the point was not to impeach their expertise. It was to show that the plaintiffs had not sought alternative sources to midazolam as required by Glossip.

The questioning became tense at times. Sutherland proved particularly irritating to Greenblatt. Much of his cross-examination was devoted to a tedious review of official records and timelines from executions in Florida, Arkansas, and Ohio, portions of which Sutherland asked him to read aloud. In Florida, beginning with William Happ, the first man executed with midazolam — whose death was described by witnesses as “labored” and prolonged — the records repeatedly showed “no unusual occurrences or problems,” Greenblatt read again and again.

On July 18, Roswell Lee Evans, the expert who helped pave the way for Glossip, took the stand for the state. With white hair and a white beard, he struck an affable tone. “My occupation at the moment is that I’m retired,” Evans said. “Previously I was a dean and professor at Auburn University School of Pharmacy in Auburn, Alabama.” Sutherland went through his curriculum vitae. He got his pharmacist’s license in Georgia in 1971, then a Ph.D. at the University of Tennessee College of Pharmacy in Memphis, where he became interested in psychiatry. In 1975, he went to the Western Missouri Mental Health Center, “probably the third center in the country to develop psychiatric pharmacy as a specialty.” There, he dabbled in research on benzodiazepines, and helped treat patients with schizophrenia and anxiety disorders. In 1994, Evans moved to Auburn, where his duties were largely administrative.

Had he ever done clinical research on midazolam? No, he said.

Sutherland asked the court to qualify Evans as an expert, “based upon his scientific, technical, specialized knowledge through his career.” Henry objected. Lyle allowed her to question Evans before continuing. “Dr. Evans, you are not a pharmacologist, correct?” Henry asked. Correct, Evans said. He had no experience prescribing midazolam in any anesthetic context, did he? No, Evans said. “In fact, you’re not a medical doctor, are you?” He was not. Had he ever done clinical research on midazolam? No, he said. Sutherland pushed back. “Dr. Evans has been recognized in state and federal courts in the field of pharmacology and I think his experience speaks for itself.”

Over Henry’s objections, Lyle allowed Evans to testify in pharmacology. But she monitored his testimony. “I have no clinical experience with midazolam other than personal,” Evans conceded as his direct testimony resumed, but said that he had studied the drug and lectured on it. “Tell me what you mean by ‘studied it,’” Lyle interjected. “Reviewed the literature on it,” he said. Lyle pressed further, but Evans remained vague. “The studying … was largely in preparation for educational materials, lectures and so forth,” Evans said. Most recently, it was “in relation to hearings such as this.”

Henry continued to object over the course of Evans’s direct testimony. Other times, Lyle intervened. Evans was eventually able to provide some opinions, but they were somewhat hard to follow. He drew a distinction between the therapeutic use of midazolam and “the toxic use.” Although Greenblatt had testified extensively about studies showing that overdoses of benzodiazepine were not fatal on their own, Evans provided some examples. There was a 63-year-old man who had “received 10 milligrams of midazolam and he expired as a result,” he testified. In her dissent in Glossip, Sotomayor had lambasted the apparent logic at hand: that “because midazolam caused some deaths, it would necessarily cause complete unconsciousness and then death at especially high doses. … One might as well say that because some people occasionally die from eating one peanut, one hundred peanuts would necessarily induce a coma and death in anyone.”

Nevertheless, Evans was ultimately able to render the opinion most sought after by the state. “To a reasonable degree of pharmacological certainty,” Sutherland asked, “could 500 milligrams to 1,000 milligrams of midazolam render someone unconscious and insensate during the lethal injection?” It could, Evans said.

Cross-examining Evans, Henry reviewed his track record. Until he first assessed midazolam for the state of Florida in 2014, she asked, “you had not researched what would be necessary to achieve a lethal dose of drug?” No, he said. She pointed out instances in which he gave erroneous opinions, for example, claiming that midazolam was approved by the FDA for use as a general anesthesia. In one Alabama case, Evans had conceded at a deposition that he had previously misinterpreted a study he used to question midazolam’s ceiling effect — yet he had included that same flawed interpretation in his declaration to the state of Tennessee. “I reassessed the article and I stand by my initial comments,” Evans explained.

Henry went back to his early Florida cases. In one, Evans had said that midazolam had no pain-relieving properties at all, only to testify in a later case that it might help with lower back pain. Explaining the contradiction in a deposition, Evans said he’d had “a chance to do a little more digging.” Now, Evans appeared to be changing his mind again. When Henry asked whether midazolam had any pain-relieving properties, he said no. But then he elaborated. “There is some pretty hypothetical information” to show that “it may — may — have analgesic effects,” he began to say before Lyle stopped him. She wanted to know what further digging he had done in the previous case. “Your honor, I don’t remember,” he said. “But it was in a journal.”

On July 30, Henry and her colleagues asked the Tennessee Supreme Court to halt the August 9 execution of Billy Ray Irick. The plaintiffs planned to appeal and “it would not be appropriate to move forward with an execution while the issue of the constitutionality of Tennessee’s lethal injection protocol is still pending in the courts,” Henry said in a statement. Even while ruling against them, Lyle had acknowledged the risks posed by midazolam, she added.

Henry reiterated an argument she had tried to make at the end of the trial. If the state could not carry out an execution using the alternative they had put forward — a single dose of pentobarbital — the plaintiffs moved to amend their complaint to consider an “alternative to the alternative”: a two-drug cocktail that removed the vecuronium bromide altogether. This option is “clearly available and readily implemented,” which would satisfy the Glossip requirement. And it would remove one of the well-established risks: that their clients would be paralyzed, suffocating, and suffering as the lethal drugs took hold.

It seemed simple enough. Parker himself has suggested it would be possible. Indeed, Lyle had been among the first in the country to criticize the paralytic back in 2003. “If the state is sincere in its belief that midazolam will work the way that they say it will work,” said Bradley MacLean, counsel for Abu Ali Abdur’Rahman, “there is no reason why the state should oppose this.”

But it did. Sutherland called it a “desperate” move, while Lyle explained that the law prevented her from granting the motion. As for her prescient opinion 15 years ago, she wrote in her ruling, it came before Baze and Glossip. The Supreme Court had found a legitimate purpose for the paralytic: hastening death, while dignifying the process for witnesses and the condemned alike. Her previous decision was “of minimal use.”

In his closing statement, Sutherland decried the repeated challenges to Tennessee’s execution protocol over the years. “Nothing has ever been good enough,” he said. Whether he meant to or not, he also got to the heart of the problem — with the paralytic, with lethal injection, with using the tools of medicine in order to kill. The plaintiffs wanted a dignified death, he said, but why should their deaths be peaceful? The deaths of murder victims weren’t peaceful, he said, turning to stare at the audience in the courtroom. “Death is not pretty, your honor.”

The post Chilling Testimony in a Tennessee Trial Exposes Lethal Injection as Court-Sanctioned Torture appeared first on The Intercept.

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August 1, 2018

After 23 Years on Death Row, Barry Jones Sees His Conviction Overturne...

After more than 23 years insisting upon his innocence while living on Arizona’s death row, Barry Lee Jones had his conviction thrown out by a federal judge on Tuesday. In a 91-page order filed from Anchorage, Alaska, U.S. District Judge Timothy Burgess found that the verdict in Jones’s 1995 trial was the product of a “rush to judgment” by law enforcement, whose “lack of due diligence and thorough professional investigation” was compounded by the failures of Jones’s defense attorneys. Absent such failures, he wrote, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.” Burgess ordered that Jones be immediately retried or released.

The order is a sharp rebuke to the Arizona Attorney General’s Office, which has stubbornly defended Jones’s conviction even as its theory of the crime has fallen apart. In a state that has exonerated nine people from death row, prosecutors fought to preserve Jones’s conviction, relying on procedural barriers while showing indifference to the grave flaws in the case. That Jones was able to overcome such barriers is extraordinary on its own — and further proof of the rot that pervaded the case at every stage. Burgess’s order comes five months after an evidentiary hearing revealed stunning neglect on the part of his defense attorneys at both the trial and post-conviction levels — and profound tunnel vision by Pima County Sheriff’s Detective Sonia Pesqueira, who led the investigation.

Jones, now 59, was convicted and sentenced to die for raping and murdering his girlfriend’s 4-year-old daughter, Rachel Gray. The child died from a blow to the stomach, which tore her duodenum, part of her lower intestine, leading to a fatal condition called peritonitis. Jones was arrested shortly after dropping off the child and her mother, Angela Gray, at the hospital early in the morning on May 2, 1994. But the evidence against him was flimsy, based on a narrow window of time during which he’d been seen with Rachel in his van on the afternoon of May 1. A pair of 8-year-old twins would say they saw Jones hitting her while driving the vehicle, and drops of blood in the van and on his clothes were used as proof that Jones had raped the little girl. But there was no other evidence to support this. Investigators never even collected the clothing Rachel wore that day.

At the evidentiary hearing in Tucson last fall, Pesqueira, who has since retired, conceded that Jones became her sole suspect within hours of seeing Rachel’s body at the hospital — and that she never investigated the timing of Rachel’s fatal injury, merely assuming it had occurred the day before she died. Prosecutors nevertheless maintained that Pesqueira “followed the evidence of guilt for Rachel’s injuries, and that road led directly to Jones,” while insisting that the quality of her work was irrelevant, since the question at hand was whether Jones’s defense attorneys were constitutionally ineffective in violation of his Sixth Amendment rights. “Law enforcement has nothing to do with this case,” Assistant Arizona Attorney General Myles Braccio argued at an oral argument in March.


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U.S. District Judge Timothy Burgess.

U.S. District Court, District of Alaska

Burgess disagreed. Pesqueira’s failures were inextricable from those of Jones’s defense attorneys, he found. “There were several significant red flags that should have objectively and reasonably alerted counsel to the need to investigate the evidence regarding the timing of Rachel’s injuries,” Burgess wrote. Among them was evidence of alternate suspects, such as Jones’s girlfriend, who was “a serial abuser of her children,” as Assistant Arizona Federal Public Defender Cary Sandman reminded the court last spring. At the evidentiary hearing, Pesqueira seemed clueless when shown statements alleging that Gray had hit her children and thrown them down the stairs. “That would have been a good thing to have,” she said.

That the evidence no longer supported Jones’s conviction was clear long before the hearing took place, however. In a letter to Jones’s attorneys last year, the attorney general’s office wrote that the current Pima County medical examiner “did not dispute the conclusions of your experts.” These experts have long argued that Rachel’s injuries predated the window presented by the state. Renowned pediatric pathologist Janice Ophoven, who first looked at the case in 2002, has insisted for years that Arizona’s theory of the crime was impossible. At the evidentiary hearing, Ophoven explained how Rachel’s abdominal injury developed over time, with the severity of her illness unclear until it was too late.

Burgess clearly found the defense’s experts compelling, while remaining unconvinced by the ever-shifting opinions of the state’s key witness, former Pima County Medical Examiner John Howard, whose estimates regarding Rachel’s fatal injury have been bewilderingly fluid since he first handled the case back in 1994. “Dr. Howard’s inconsistent answers are plain in the differing testimony he provided on direct examination, on cross-examination, and during examination by the Court during the evidentiary hearing,” Burgess wrote.

“Contrasting the evidence presented at trial with the evidence that could have been presented at trial” made clear that Jones’s trial was unconstitutional, Burgess found. While he did not address the issue of innocence explicitly, the new evidence “undermines considerably the confidence in the outcome,” he wrote.

A Maze of Procedural Barriers

In a lengthy investigation into the Jones case last year, The Intercept reviewed thousands of pages of trial transcripts, police records, and investigative reports that revealed several hallmarks of wrongful convictions. Two jurors from Jones’s original trial expressed misgivings about the outcome, telling The Intercept that they had been disturbed by the weak defense Jones received. One juror, Hildegard Stoecker, was particularly troubled by the case. “It lessens my faith in the judicial system,” she said.

Despite the egregious flaws in Jones’s conviction, procedural barriers might easily have led to his eventual execution. Among the considerable obstacles was the Antiterrorism and Effective Death Penalty Act, passed one year after Jones was sent to death row. If not for a 2012 U.S. Supreme Court decision in a different Arizona case, Martinez v. Ryan, the law might well have prevented any chance for Jones to show the evidence casting doubt on his conviction. Under AEDPA, if attorneys failed to bring a claim of ineffective assistance during state post-conviction proceedings, that claim was forever barred from being heard in federal court. But Martinez carved out a “narrow exception,” as Burgess noted, holding that if such a claim was itself the result of ineffective lawyering by post-conviction counsel, a defendant should have a chance at relief.

The ruling was a lifeline for Jones. “Before Martinez, our office lost many, many, many ineffective assistance cases because the claims were never raised in the state court,” Sandman said. “If Barry’s initial appeal in the 9th Circuit had moved a little more rapidly, it could have been decided before Martinez and he might have been executed.”

“The evidentiary hearing is the key,” said Dale Baich, supervising attorney of the Arizona Federal Public Defender’s Capital Habeas Unit. “All our clients really want is one fair opportunity to have a full, fair hearing at the post-conviction level.” But such chances are exceedingly rare. Even under Martinez, there was no guarantee of a hearing. If there was any reason for Jones to feel optimistic about his chances before the ruling, it was that Burgess granted an evidentiary hearing at all. Even then, ineffective assistance claims are notoriously hard to win. Under the U.S. Supreme Court case Strickland v. Washington, Jones had to show, first, that his attorneys had provided an unconstitutionally inadequate defense, and second, that the outcome of his trial would likely have been different absent their failures. In his order, Burgess spent considerable detail explaining why Jones met the burden demanded by Strickland.

The state of Arizona has shown contempt for the resources Jones’s current lawyers have devoted to his case. “With a seemingly limitless budget, full-time counsel, investigators, support staff, and a horde of new experts, Jones has spent the past 15 years re-investigating his case,” prosecutors argued in a January filing. At the evidentiary hearing, Braccio and Assistant Attorney General Lacey Gard repeatedly contrasted the money spent by Sandman and his colleagues with the comparatively slim resources of Jones’s original attorneys, arguing that the lawyers could not be considered ineffective for having limited funds.

Burgess flatly dismissed the notion. “The Court rejects any suggestion by Respondents that trial counsel’s deficient pretrial investigation be excused on the grounds that funding for investigators and experts was lacking or inadequate,” he said. In fact, with regard to the failures of Jones’s post-conviction attorney, James Hazel, Burgess drew a parallel to the case of Anthony Ray Hinton, in which the Supreme Court found “counsel’s failure to request additional funding for an expert was unreasonable and constituted deficient performance.” Hinton was exonerated from Alabama’s death row in 2015.

“Right on Time”

On Tuesday afternoon, Jones’s legal team gathered in a conference room in their Tucson office to call Jones. “They don’t get short-notice phone calls very often,” defense investigator Andrew Sowards said. “He kind of knew something was up.” Upon hearing the news, he said, “there was a sense of relief in Barry’s voice I’ve never heard.”

In an email, the Arizona Attorney General’s Office told The Intercept that it had no comment on the order. If the state does not initiate a retrial within 45 days, Jones must be released. As they wait for the state to signal its next move, Jones’s legal team is reaching out to his family members, many of whom he has not seen in decades. In his time on death row, his three children have grown up and have kids of their own. Speaking to The Intercept over the phone last year, Jones said he felt like an emotional burden on them. “I’m hurting everybody out there by being here. I’ve got to live with that. That’s not easy.” Decades of severe isolation have taken their toll, not to mention the 33 executions carried out in Arizona since 1995, when Jones was sent to death row. “They’ve killed friends of mine,” he said.

The ruling came “right on time,” Sandman said. “He was really struggling.” As Sowards says, “It’s a tough life for a guy with that kind of conviction in any prison — especially on death row.” For 23 years, Jones has been seen as a child rapist and murderer. To be able to return to his unit to share the news was powerful vindication of what he has insisted all along: that he did not commit the crime that sent him to die.

Sowards himself was emotional over the decision. He joined the Arizona Federal Public Defender’s Office in 2008, just as Jones’s initial federal habeas petition had been denied. In the years that followed, he uncovered critical information that had been withheld by the prosecution at trial. Like all the members of Jones’s legal team, Sowards believed in his innocence.

To Sylvia Lett, Jones’s former federal habeas attorney, it was a stroke of good luck that the case fell to Burgess. Speaking to The Intercept last year, she had a hard time remembering when a federal district judge in Arizona granted relief in a death penalty case during the years she represented Jones. “It took a district judge from Alaska having the guts to say, ‘Hey, wait a second, there’s something wrong here,’” Lett said.

“It just seems like this judge got it,” Sowards said. “He saw the state’s investigation for what it was, which was shoddy, the defense investigation for what it was, which was nonexistent, and he said, ‘That’s not fair.’ And that’s how it’s supposed to work.”

Top photo: A photo of 54-year-old Barry Jones is shown by his former attorney Sylvia Lett.

The post After 23 Years on Death Row, Barry Jones Sees His Conviction Overturned: Arizona Must Retry or Release Him Immediately appeared first on The Intercept.

Capitol murder defendant William Morva is escorted from the courtroom as a break was called for lunch in Montgomery County Circuit Court in Christiansburg, Va,. Wednesday, Sept. 19 2007. Morva is charged with the August 2006 killings of a sheriff?s deputy and a hospital security guard. (AP Photo/Matt Gentry, Pool)
July 15, 2018

Tennessee Plans to Restart Executions By Killing a Man With Mental Ill...

Tennessee plans to kill Billy Ray Irick next month by lethal injection. If the execution goes through on August 9, a few weeks before his 60th birthday, he will be the seventh person put to death in the state since 2000, the year executions returned to Tennessee. On death row at Riverbend Maximum Security Institution, a short drive from downtown Nashville, Irick has faced at least three previous execution dates, most recently in the fall of 2014. But there is an urgency this time, his longtime attorney, Gene Shiles, says. “This one feels much more ominous.”

Irick was convicted in 1986 of raping and murdering a 7-year-old girl named Paula Dyer in Knoxville. He was arrested and confessed soon after the crime, but later insisted that he had been set up by the child’s father, who was an old friend. Irick had stayed with the family for two years prior to the murder, according to court filings; defense attorneys “attempted to create reasonable doubt about the identity of the perpetrator” during the guilt phase of the trial, yet called “no witnesses.”

Like so many who end up on death row, Irick’s background was fraught. In the Nashville Scene earlier this year, Steven Hale described Irick’s harrowing upbringing — as a child, he said his mother tied him with a rope and beat him — along with compelling evidence that he suffered from severe mental illness. Irick “was just 6 years old the first time someone raised questions about his mental health,” Hale writes. “His school’s principal referred him to the Knoxville Mental Health Center, requesting a mental evaluation to determine, according to court documents, ‘whether Billy’s extreme behavioral problems and unmanageability in school were the result of emotional problems or whether Billy suffered from some form of ‘organic brain damage.’” A psychologist said that he seemed to “fear his own impulses.” At 13, after spending time in a home for troubled children, Irick had a series of disturbing outbursts during a visit home, where he bashed a TV with an axe and “used a razor to cut up the pajamas that his younger sister was wearing as she slept.”

A fuller picture of Irick’s profound mental problems did not come out until years after his conviction, Shiles explains, when an investigator working for his appellate attorneys went to Knoxville and “discovered some hugely important facts that came from the victim’s family — that he was hallucinating and having psychotic episodes at the time that this occurred.” In affidavits, members of the family described Irick “hearing voices” and “talking with the devil.” The jury never heard this evidence. If they had, there’s reason to believe that the outcome of the case could have been different. As Hale writes, the same psychologist who examined Irick before his trial “stated in an affidavit that he no longer had confidence in his initial evaluation, which had been used to argue against an insanity defense.”

Barred by the procedural barriers imposed by the Antiterrorism and Effective Death Penalty Act, federal courts have declined to review the new evidence of Irick’s mental illness. As his client’s execution date approaches next month, Shiles says, “No one has ever looked at the issue of his mental competence with all the facts.”

Mental illness is notoriously widespread on death row. As in the broader prison system, it often goes undiagnosed and untreated. In his memoir, “Life After Death,” Damien Echols, who spent years on Arkansas’ death row as one of the West Memphis Three, remembers a man who used to keep everyone awake by screaming and arguing with his own reflection for hours at a time. “The only thing they do is shoot them full of Thorazine if they start to get riled up,” he writes. The conditions on death row — prolonged isolation in particular — make such symptoms worse. “For many people in prison the worst fear is going insane, because if you do all hope is lost. You will be locked up not only within these walls, but also within your own rapidly degenerating mind.”

In 1986, the same year Irick went to death row, the U.S. Supreme Court handed down Ford v. Wainwright, involving a condemned Florida man with paranoid schizophrenia. The ruling barred the execution of the “insane” on 8th Amendment grounds, but left it up to the states to determine who was “competent” to be executed. In 2007, in the case of Scott Panetti, diagnosed as paranoid schizophrenic, the U.S. Supreme Court reaffirmed the Ford decision, ruling that condemned people must have a rational understanding of why a state intends to execute them. But this has done little to prevent states from killing people with serious mental illness, including those who were suffering symptoms at the time of their crimes. Last year, Virginia executed 35-year-old William Morva for the murder of two police officers, despite significant evidence that the killings were driven by delusions. In legal filings and interviews with The Intercept, old friends described how a once sensitive and eccentric young man became gripped by mental illness that led to a deadly downward spiral. Calls for clemency fell on deaf ears; Democratic Gov. Terry McAuliffe refused to intervene. Morva was executed on July 6, 2017.


Capitol murder defendant William Morva is escorted from the courtroom as a break was called for lunch in Montgomery County Circuit Court in Christiansburg, Va,. Wednesday, Sept. 19 2007. Morva is charged with the August 2006 killings of a sheriff?s deputy and a hospital security guard. (AP Photo/Matt Gentry, Pool)

William Morva is escorted from the courtroom in the Montgomery County Circuit Court in Christiansburg, Va., on Sept. 19 2007.

Photo: Matt Gentry/AP


More recently, the 5th Circuit Court of Appeals held oral arguments last month in the case of Andre Thomas, a Texas man commonly described in headlines as the “murderer who ate his own eye.” Rather than reconsidering whether  crimes rooted in mental illness should be punishable by death, states have sought to medicate the condemned until they are fit to be killed. In 2012, Steven Staley faced execution in Texas despite a history of schizophrenia. Like Irick, his life was marked by a disturbing history of trauma and abuse. “Doctors who have examined Staley on death row have said that he talks in a robot-like monotone yet has ‘grandiose and paranoid’ delusions, including the beliefs that he invented the first car and marketed a character from Star Trek,” Emily Bazelon wrote in Slate. “He has given himself black eyes and self-inflicted lacerations and has been found spreading feces and covered with urine.” After the Tarrant County District Attorney requested that Staley be forcibly medicated, a judge dutifully found that “medicating Staley was the only way to ensure his competency to be executed.” Although his execution was stayed, Staley remains on death row.

Daniel Gwynn, a condemned man in Pennsylvania, has illustrated states’ callous approach in his artwork. In a pen and ink drawing titled, “Mental illness on death row will not stop the machine,” a condemned man is haunted by the Grim Reaper, burying his head in his hands. In the next frame, a nurse informs a huddle of eager state officials, “OK, he’s ready for the needle.”


FILE - This July 25, 2014 file photo shows bottles of the sedative midazolam at a hospital pharmacy in Oklahoma City. Supreme Court justices engaged in an impassioned debate on April 29, 2015, about capital punishment, trading unusually combative words in a case involving a drug used in several botched executions. (AP Photo/Sue Ogrocki, File)

Bottles of the sedative midazolam, photographed at a hospital pharmacy in Oklahoma City on July 25, 2014.

Photo: Sue Ogrocki/AP


Tennessee’s last execution took place in 2009, just as death penalty states began to face problems obtaining drugs for lethal injection. In 2013, amid a lawsuit challenging the state’s execution protocol, legislators passed a law to bring back the electric chair as an alternative. After the U.S. Supreme Court handed down Glossip v. Gross, giving the green light for a controversial sedative, midazolam, to be used in executions, Tennessee moved quickly to adopt it. The state Supreme Court upheld the new protocol and, in January, set three execution dates, including Irick’s. The attorney general then requested eight more. Most of those are unlikely to go through, since appeals are still pending. With a trial now underway over the newest challenge to the Tennessee’s lethal injection protocol, Irick’s is the likeliest exception.

Meanwhile, a burgeoning movement has risen to address the problem of mental illness and the death penalty. In Tennessee, a coalition called the Tennessee Alliance for the Severe Mental Illness Exclusion, or TASMIE, spent much of the past couple years pushing for an exception to be made among capital defendants, to spare those suffering from severe mental illnesses from death penalty prosecutions. On its website, it defines Severe Mental Illness, or SMI, according to definitions provided in the American Psychiatric Association Diagnostic and Statistical Manual, identifying five of the most severe diagnoses: “schizophrenia, schizoaffective disorder, bipolar disorder, major depression with psychosis and/or delusional disorder.”

The move to exclude severe mental illness from the death penalty is rooted partly in the 2002 Supreme Court case Atkins v. Virginia, which barred the death penalty for the people with mental disabilities — or mental “retardation” in the language of the ruling — in light of their “diminished capacities to understand and process information … to engage in logical reasoning, to control impulses, and to understand the reactions of others.” Recognizing that these same factors apply to people with severe mental illnesses, the American Bar Association convened a Task Force on Disability and the Death Penalty, bringing together lawyers and mental health practitioners to study the issue. In 2006, the group proposed a resolution to categorically oppose the death penalty for defendants who were suffering from severe mental illness or disabilities at the times of their crimes. The resolution was adopted by the ABA, along with much of the mental health community. But it would take 10 years to spur new legislation across the states. In a December 2016 report, the ABA called on advocates to turn its policy into “a meaningful tool to help states pass laws that will establish clear standards and processes to prevent the execution of those with severe mental illness.” Today, some dozen states have taken up the task.

In Tennessee, the bill was carefully designed to be as narrow as possible. “It is not a repeal bill, at all,” says Sarah McGhee, TASMIE’s educational coordinator. “It is a mental illness bill.” Where the death penalty remains popular among the state’s deeply conservative lawmakers, awareness has grown about mental illness. In the Senate, Republican Richard Briggs, a veteran and trauma surgeon, introduced SB0378, which “prohibits the death penalty as a punishment for defendants suffering from severe mental illness at the time of the offense.” Witnesses at a Senate judiciary hearing in March of 2017 included Anthony Fox, CEO of the Tennessee Mental Health Consumers’ Association, who described how living with depression and bipolar disorder had driven him to poverty and bouts of homelessness. “These are examples of what can drive people over the edge,” he said. The bill does not ask that people go unpunished for their crimes, he added — only that they not be sentenced to die.

Christopher Slobogin, head of the criminal justice program at Vanderbilt Law School and an expert on mental health law, also testified, explaining the Supreme Court precedent provided both by Atkins, as well as the 2005 decision in Roper v. Simmons, which banned the death penalty for people who committed their crimes as juveniles on the basis that the brains of young people are not fully developed. “In both cases, the court emphasized that the death penalty is reserved for the worst as the worst,” Slobogin explained, a category that cannot apply to defendants whose neurological impairments make them less culpable or deterrable as adults. Mental illness is even further impairing, he said, since it brings “delusions, hallucinations, and disorganized thinking.”

Testifying against the bill was Jerry Estes, head of the Tennessee District Attorneys General Conference, and previously the longtime elected district attorney general in Tennessee’s 10th Judicial District. Estes prosecuted four death penalty cases over the course of his 24-year career. He argued that the bill would undermine juries, drag out the process for victims, and add a financial burden on the state. What’s more, he said, Tennessee already has mechanisms in place to consider mental illness. Defense attorneys can bring it up at the sentencing phase, as mitigating evidence, for example. “All they have to do is find a witness,” he said.

Legislators seemed reassured by Estes’s suggestion that Tennessee juries are already positioned to hear evidence of severe mental illness before sending someone to death row. One lawmaker asked if he could think of any cases in which legislation like SB0378 might have changed the outcome — “Are there any cases you can think of?” Estes said he was not aware of any. “I can tell you of the four cases that I personally was involved in. … I can’t say that it would ever make any difference.”


** ADVANCE FOR SUNDAY, SEPT. 17 ** FILE **Ricky Bell, then the warden at Riverbend Maximum Security Institution in Nashville, Tenn., gives a tour of the prison's execution chamber on Oct. 13, 1999. Both the electric chair and the lethal injection gurney are kept in the room until the time is near for a prisoner to be executed and the one not used is taken out. Death row inmate Daryl Holton is scheduled to be executed Tuesday, Sept. 19, 2006, and has chosen the electric chair over the state's preferred method of lethal injection. (AP Photo/Mark Humphrey, File)

Ricky Bell, then the warden at Riverbend Maximum Security Institution in Nashville, Tenn., gives a tour of the prison’s execution chamber on Oct. 13, 1999.

Photo: Mark Humphrey/AP


At a time when death penalty prosecutions are increasingly rare across the country, it is true that carving out a narrow exception in Tennessee would have a limited effect. By Slobogin’s estimation, only 3 percent of capital cases nationwide involve severe mental illness as defined in the bill. But even a cursory look at Tennessee’s death penalty history reveals numerous cases infected by mental illness — cases in which the state spent considerable time and money pushing death sentences that were never carried out.

One dramatic case in point was handled by Estes himself. Ricky Thompson had been in and out of mental hospitals for years before he was convicted and sentenced to die in 1991 for killing his wife. Court records reveal a decadeslong odyssey through Tennessee’s death penalty system — two trials, two overturned death sentences, a slew of evaluations, hearings, and appeals — throughout which his severe mental impairments, including multiple diagnoses of schizophrenia, were dismissed by prosecutors. After the Tennessee Court of Criminal Appeals overturned his conviction, ruling that his trial judge had wrongly denied Thompson’s lawyers to bring testimony regarding his mental state at the time of the crime, Estes vowed immediately to seek the death penalty again, upon learning about the reversal from reporters, according to the Jackson Sun.

In a rare move, Thompson’s trial judge “modified the jury’s verdict to ‘not guilty by reason of insanity,’” according to court records, which could have avoided a retrial. But the state Supreme Court overturned the ruling. In 1998, Thompson was found incompetent to be tried again by the McMinn County Circuit Court after evaluations by two state mental health experts. But the next year, “a different trial judge determined that the Defendant had become competent.” After a 2003 retrial, Thompson was once more sentenced to die.

In 2007, the Court of Criminal Appeals at Knoxville reduced Thompson’s sentence to life. “It is rare that a capital case contains the volume of documented history of mental disease or defects found in this case,” the majority wrote, detailing his many diagnoses of schizophrenia and hospitalizations dating back to childhood. At Thompson’s retrial, “two mental health experts testified that the Defendant suffered from an impairment to the frontal lobe of his brain which would have affected his reasoning and judgment. One of the experts … testified that the Defendant suffered from a chronic psychiatric disorder called schizo-affective schizophrenia which causes a loss of touch with reality. … No expert testimony has ever been offered to contradict these findings, and none was presented by the State at the Defendant’s trial.” The majority made clear that its decision was “not meant to minimize the brutality of the Defendant’s crime or to justify his conduct,” but to give meaningful consideration to Thompson’s severe mental illness as a mitigating factor, which his trial utterly failed to do.

Thompson did not live long after leaving death row. Just six months after the court reduced his sentence to life, he died of “natural causes,” according to the Tennessee Department of Corrections. He was 57 years old.

There are many more examples of severe mental illness on Tennessee’s death row. Gregory Thompson (no relation) was sentenced to die in 1985. Represented by attorneys who presented no evidence during the guilt stage of his trial, his prison records showed that psychiatrists who treated him diagnosed Thompson as having “either a bipolar affective disorder, cyclic mood disorder, schizo-affective disorder or schizophrenia,” according to court documents. All of them described his “agitated behavior, hostility, inappropriate affect, auditory and visual hallucinations, delusions, paranoia, and thoughts of persecution.” Thompson’s case attracted national media attention, including a 2007 “60 Minutes” special that described his heavy medication regimen — 10 pills a day — and his recollections of trying to kill guards who were “turning into insects.” Thompson died before the state could execute him, in 2014.

Investigations into such cases have revealed not only how ill-equipped courts and prisons are to deal with people suffering from severe mental illness, but the sadism it can unleash among those given control over their lives. In 2008, the American Civil Liberties Union of Tennessee won a victory in the case of Richard Taylor, whose 1981 death sentence for killing a prison guard was reduced to life in prison. Taylor had insisted on representing himself at trial. After four different findings that he was not competent, he finally did so, wearing his prison uniform and sunglasses. According to the ACLU, “Taylor called no witnesses, introduced no evidence, and presented no defense. The few cross-examination questions he posed during the guilt-innocence phase of his trial were delusional, and he was completely silent during the sentencing phase of the proceedings. The jury was never presented with compelling evidence of Taylor’s difficult childhood, suicide attempts, psychiatric hospitalizations, or severe mental illness. Jurors deliberated for less than an hour before imposing the death sentence.”

Upon arriving on death row, prison guards unleashed vicious and sustained abuse at Taylor, ostensibly in retaliation for his crime. In a disturbing sworn statement given to the ACLU, one former guard said he first realized Taylor had problems when he saw him drink his own urine and smear his feces on the wall. Yet, rather than trying to handle his mental illness, he said, guards put him “through pure hell.” They denied him food and showers, refused to let him out of his cell, and goaded him into lashing out at them in order to beat him. Sometimes they spoke through the air chamber behind his prison cell, with messages like “Jesus Christ is coming to see you.” At one point, the former guard admitted, Thompson set his clothes on fire, and the officers adjusted the vents to his cell to help the fire along.

For those tasked with representing people with severe mental illness, the already difficult work of death penalty defense becomes immeasurably harder. After Assistant Post-Conviction Defender Kelly Gleason was assigned to represent the late serial killer Paul Reid in 2005, she went to see him at the Brushy Mountain Correctional Complex in East Tennessee. In a lengthy affidavit, she described how “Paul informed me that he knew that I was working with the military government and that he could not believe a single word I said or anything I wrote.”


Sen. Richard Briggs, R-Knoxville, attends the first meeting a health care task force in Nashville, Tenn., on Tuesday, April 26, 2016. The panel was launched by Republican House Speaker Beth Harwell to come up with proposals to expand access to health coverage following the defeat of Gov. Bill Haslam’s Insure Tennessee proposal last year. (AP Photo/Erik Schelzig)

Sen. Richard Briggs, R-Knoxville, attends the first meeting a health care task force in Nashville, Tenn., on April 26, 2016.

Photo: Erik Schelzig/AP


The most recent hearing on SB0378 took place this past March at the Tennessee State Capitol. The bill had been amended — no longer was depression among the included severe mental illnesses listed, and language had been tweaked to make clear that a defendant’s “documented history” of mental illness had to be a “documented medical history.” Speaking again on behalf of his bill, Briggs took pains to explain the ways in which it is limited in scope and not aimed at ending capital punishment altogether. “Personally I believe in the death penalty,” he said.

Briggs has attracted more conservative support since first introducing the bill. Op-eds have run in newspapers across Tennessee; in January, former U.S. Attorney Tom Dillard wrote in support of SB0378, drawing from his own experience representing mentally ill defendants who were sent to death row and whose conditions were not seriously considered at trial. The “good news,” he wrote, was that both clients had their sentences reduced to life. “The bad news: The cost to taxpayers in Tennessee was enormous and ultimately neither received adequate mental health treatment.”

This time, the voice of opposition at the hearing came from Craig Northcott, elected district attorney in Coffee County. He called the legislation a “solution looking for a problem.” Tennessee’s death penalty works just fine, he said, adding, “I’ve asked repeatedly from the sponsors to give me one example where our system has failed.” He said that they could not provide a single one. “Why are we even considering it?” The Senate Judiciary Committee voted down the legislation, 5 to 4.

With Irick’s execution date looming, last month the ABA published a new study on the costs of mental illness in Tennessee’s death penalty system. Its findings were the opposite of Estes’s claim that excluding defendants with severe mental illnesses from death penalty prosecutions would be more costly. “If a severe mental illness exclusion were to be implemented in Tennessee, it would lead to a saving of $1.4 million to $1.9 million a year,” the report concluded. “According to our estimate, the state of Tennessee would have saved between $57 and $78 million if this exclusion had been implemented in 1977, when the death penalty was reinstated in the state.”

The ABA’s fiscal assessment will be useful as TASMIE gears up to bring forward its legislation again next spring. When it does, the legislature would do well to consider Tennessee’s ugly treatment of defendants with severe mental illness, rather than relying on reassurances from prosecutors. After all, some of the most compelling moments at the state capitol were the brief reminders that mental illness affects people across party lines — and that such people might be worthy of compassion. At one hearing, Republican Sen. Janice Bowling recalled a neighbor she had known as a child who had murdered her own children while living with what would now be acknowledged as severe mental illness. “I hadn’t thought about it in years,” she said. Another legislator, Art Swann, addressed Northcott. “I happen to know a particular person that is schizophrenic,” he said. Swann did not say who he was talking about. But he called him a fine young man. But from “time to time,” he said, he “loses his ability to know the difference between right and wrong.”

Top photo: Billy Ray Irick, who was on death row for raping and killing a 7-year-old girl in 1985, appears in a Knoxville, Tenn., courtroom on Aug 16, 2010.

The post Tennessee Plans to Restart Executions By Killing a Man With Mental Illness appeared first on The Intercept.

(Original Caption) Bombing suspect Walter Leroy Moody Jr. is shackled and under tight security, as he is led into the Federal Courthouse for the 2nd day in a row, during a bond hearing on charges stemming from a 1972 bombing incident.
June 17, 2018

Alabama’s Lynching Memorial and the Legacy of Racial Terror in the S...

A week before the crowds arrived in Montgomery for the opening of the National Memorial for Peace and Justice, a monument to victims of lynching in the United States, Alabama prepared to kill 83-year-old Walter Moody. From his death watch cell at Holman prison, Moody called his attorney the night before he was to die. “He said, ‘An EMT was just in here and he seemed concerned about my veins,’” said Spencer Hahn, a lawyer with the Alabama Middle District Federal Defender.

There were good reasons to worry. Moody would be the oldest person executed in the so-called modern death penalty era — and problems finding viable veins had led to an unprecedented disaster at Holman a few months before. For more than two hours, prison personnel had tried and failed to place intravenous lines into the body of 61-year-old Doyle Lee Hamm. The execution was finally called off close to midnight, leaving Hamm bloody and traumatized. His lawyers called it torture. But the state was dismissive. “I wouldn’t necessarily characterize what we had tonight as a problem,” Alabama Department of Corrections Commissioner Jeffrey Dunn told the press.


(Original Caption) Bombing suspect Walter Leroy Moody Jr. is shackled and under tight security, as he is led into the Federal Courthouse for the 2nd day in a row, during a bond hearing on charges stemming from a 1972 bombing incident.

Walter Leroy Moody Jr. is led into the Federal Courthouse during a bond hearing in July 1990 on charges stemming from a 1972 bombing incident.

Photo: Bettmann Archive/Getty Images


Hahn filed a last-minute motion on Moody’s behalf, to no avail. On April 19, he and his boss, Christine Freeman, made the trip down I-65 to Holman to witness the execution. Moody was the seventh client Freeman has seen put to death. It began like all the others. “They open the curtains, the prisoner is there on the gurney,” she said. Moody’s arms were extended, forming the eerie crucifix shape. There was just one problem. Their client appeared to be sound asleep.

“I thought he was dead,” Hahn recalls. “He was breathing so shallowly.” But officials carried on as if everything were normal. The warden entered the execution chamber with a microphone. Speakers were flipped on for witnesses to hear as she read the execution order aloud. Then, absurdly, the warden asked the unconscious Moody if he had any last words. “She holds the microphone up and then she just quickly pulls it back and turns and walks away,” Freeman said.

“I think he was given a drug,” Freeman said. “I don’t know what the drug was, I don’t know if he asked for it or not.” To execute a man potentially unaware that he was about to die would be a serious violation of his rights. In fact, just weeks earlier, the U.S. Supreme Court had blocked another Alabama execution amid concerns over the condemned man’s dementia. But Dunn denied anything was amiss. Moody was pronounced dead at 8:42 p.m.

The state’s nothing-to-see-here posture was a “façade,” Freeman said, but it was one she has come to expect. In December 2016, Alabama executed her client Ronald Bert Smith, who “heaved and coughed and clenched his left fist,” as one media witness reported. “It was just awful to see,” Freeman recalled. Rather than investigate what went wrong, Alabama officials “launched a campaign of obfuscation and misinformation about what happened to him,” Freeman’s former colleague, an outspoken critic of Alabama’s lethal injection regime, wrote. “They just say whatever needs to be said, in order to ensure that they get to continue to do what they do,” Hahn said.

This is not just true in Alabama. I was at the prison known as the Cummins Unit the night Arkansas killed Kenneth Williams in April 2017 — the last in a series of controversial executions using a new lethal injection protocol. Defense attorneys had warned for months that things were likely to go wrong, but the state refused to listen. Press witnesses returned to the media room with disturbing reports, describing how Williams convulsed and struggled for breath before he died. But a governor’s spokesperson declared that everything had gone fine. In the year since the execution, I could not shake the brazen denial; the chilling directive that witnesses ignore what they saw; that it had not really happened that way.

“This system pushes everyone into a place of unreality,” said Freeman. It reminded me of the words of an anti-lynching activist I read before arriving in Alabama. “A lynching makes a lot of otherwise good people go blind or lose their memories.”


Part of a statue depicting chained people is on display at the National Memorial for Peace and Justice, a new memorial to honor thousands of people killed in racist lynchings, Sunday, April 22, 2018, in Montgomery, Ala. The national memorial aims to teach about America's past in hope of promoting understanding and healing. It's scheduled to open on Thursday. (AP Photo/Brynn Anderson)

Part of a statue depicting chained people at the National Memorial for Peace and Justice on April 22, 2018, in Montgomery, Ala.

Photo: Brynn Anderson/AP

“What Led to This Point?”

The office of Alabama’s Middle District Federal Defender sits on a quiet block in Montgomery, just a mile up the road from the Equal Justice Initiative. The famed legal nonprofit was founded in 1989 by renowned capital defense attorney Bryan Stevenson, who has attended his own share of executions. Stevenson has made it his life’s work to transform how Americans think about our criminal justice system, by tracing its origins and making them visible. Outside its downtown headquarters on Commerce Street, a historical marker stands where “enslaved people were marched in chains up the street from the riverfront and railroad station to the slave auction site or to local slave depots.” In a state that officially celebrates Martin Luther King’s birthday alongside that of Robert E. Lee, it is part of a broader effort, EJI explains, to “reshape the cultural landscape” to “more truthfully and accurately reflect our history.”

On April 26, EJI opened two new monuments in Montgomery: the National Memorial for Peace and Justice — commemorating more than 4,400 victims of lynching in the United States between 1877 and 1950 — and the Legacy Museum, which traces the evolution from “mass enslavement to mass incarceration.” A two-day Peace and Justice Summit at the convention center brought musicians, food trucks, and speakers like Michelle Alexander, U.S. Rep. John Lewis, and film director Ava DuVernay. The lynching memorial commanded the most attention. The long pavilion stands on a hill overlooking Montgomery, where Confederate monuments sit close to historic sites of the civil rights movement. On opening day, visitors and volunteers crowded the entrance. Inside, a wide path opened and turned toward the memorial, past a sculptor’s arresting portrayal of anguished men and women in shackles. Along a wall, large signs narrated the end of the slave trade to the collapse of Reconstruction and the emergence of “racial terror lynchings” as a means of enforcing white control of the South.

Entering the memorial at the top of the hill, steel rectangular columns stood at eye level, suspended from metal poles. The coppery orange pillars looked weathered and scarred, each one engraved with the names of counties and the lynching victims who died there. Some had only first or last names, others read “Unknown.” Walking further into the memorial, the floor began to curve and descend and the columns got higher and higher, until eventually the rows hung in an overwhelming canopy.


MONTGOMERY, AL - APRIL 26: Ed Sykes, 77, visits the National Memorial For Peace And Justice on April 26, 2018 in Montgomery, Alabama. Sykes, who has family in Mississippi, was distraught when he discovered his last name in the memorial, three months after finding it on separate memorial in Clay County, Mississippi. "This is the second time I've seen the name Sykes as a hanging victim. What can I say?" Sykes, who now lives in San Francisco, plans to investigate the lynching of a possible relative at the Equal Justice Initiative headquarters in Montgomery before returning to California. The memorial is dedicated to the legacy of enslaved black people and those terrorized by lynching and Jim Crow segregation in America. Conceived by the Equal Justice Initiative, the physical environment is intended to foster reflection on America's history of racial inequality. (Photo by Bob Miller/Getty Images)

Ed Sykes, 77, visits the National Memorial for Peace and Justice on April 26, 2018.

Photo: Bob Miller/Getty Images


There were some 840 pillars total. Visitors quietly sought out those associated with their family roots, taking pictures with their phones. The names were largely unfamiliar to me — generations of men, women, and children buried in revisionist history. But many locations were all too familiar. One of the first I saw was Lincoln County, Arkansas, where Kenneth Williams was executed. Six lynchings were inscribed on its surface.

Near the entrance, I found Butts County, Georgia, the site of only two recorded lynchings — a small number for Georgia. But Butts County is home to the Georgia Diagnostic and Classification State Prison in Jackson. Troy Davis was killed there in 2011. I was outside the prison five years later, when a man named Kenneth Fults was executed despite the racist remarks of a juror, who said, “I don’t know if he ever killed anybody, but that nigger got just what should have happened.”

Further down, I found Sunflower County, Mississippi, the site of 12 recorded lynchings, and where I once toured the execution chamber at Parchman Farm. Near the exit was West Feliciana Parish, most famous for the Louisiana State Penitentiary — a former slave plantation known as Angola, the country from which its inhabitants were stolen. Men still work the fields at Angola. Most are black, and the majority are serving life sentences. When I visited years ago, members of the Angola Three had been locked in solitary confinement for nearly four decades.


sunflower-county-museum-segura-1529089341

A column, center, at the National Memorial for Peace and Justice featuring Sunflower County, Miss.

Photo: Liliana Segura/The Intercept


Of the seven lynchings recorded on the pillar for West Feliciana Parish, the last took place in 1933 — the decade in which lynchings began to decline and legal executions rose throughout the South. In 1947, the U.S. Supreme Court considered the case of a black teenager named Willie Francis, who had gone to Louisiana’s electric chair but, gruesomely, survived. In a decision still cited today, the majority found that attempting to kill him again would not violate the Eighth Amendment. “Accidents happen,” the ruling read, “for which no man is to blame.”

Lynchings were once carried out “at the hands of persons unknown,” in the official language of the state. Though the identities of the perpetrators were often an open secret, newspapers “absolved their local leaders of responsibility,” Sherrilyn Ifill writes in “On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-First Century.” Aided by a compliant press, a “consensus story” formed: “The lynchers were ‘outsiders’ who could not be recognized.”

Stevenson calls the death penalty the “stepchild of lynching.” At the Legacy Museum, the parallel is starkly drawn. Yet historians who have probed the precise connection have been hamstrung by an absence of reliable data. The federal government never bothered to count the thousands of lynchings that terrorized black communities across the country; and it did not start keeping track of legal executions until 1930. That there is any historical record of lynchings is thanks to institutions like the Tuskegee Institute and activists like Ida B. Wells. A database of early executions exists because of the work of Watt Espy, an Alabama researcher who died in 2009. Nevertheless, the link is unmistakable in the South, where both lynchings and early executions were lawless forms of racial control. Public executions looked a lot like lynchings — and the justifications for both were often the same.

But even as lynchings persisted in the early 20th century, legal executions began to evolve, “from widely attended public hangings to tightly controlled official events held under high security in state prisons,” as Memphis historian Margaret Vandiver writes in “Lethal Punishment: Lynchings and Legal Executions in the South.” Today, the legal framework governing the death penalty is complex and impenetrable — and executions are more secretive and sanitized than ever. This long evolution can make the link between lynching and the death penalty feel tenuous and disorienting in 2018. Last year in Charleston, South Carolina, I watched as Dylann Roof was sentenced to die for the slaughter of nine black people, under the authority of a black president.

I came to Alabama to bridge another disconnect, one that spans my own lifetime: the distinction we created between the “modern death penalty era” and everything that came before. In between are the four years separating two landmark Supreme Court rulings: Furman v. Georgia, which struck down the death penalty in 1972, and Gregg v. Georgia, which upheld it in 1976. Gregg ushered in an age of state-sanctioned killing that would transform executions to look modern and humane, while closing a chapter in death penalty history that is now rarely invoked. For all the data we have amassed showing discrimination in capital punishment, its roots in racial terror have been severed from our collective memory. Today, even abolitionists describe the death penalty as “broken,” as if there were ever a time when it was carried out fairly, as a legitimate expression of society’s outrage.

For Freeman, who drove past the site of the pavilion almost every day as it was under construction, walking through the memorial was a jolt of perspective. “When you’re caught up in the minutia of your case, you’re not saying, ‘How did we get to this point?’” she said. EJI reminds us that “we created a bunch of laws to keep people in prison so that they could provide labor. And then the rest of us started to assume those laws made sense. And then we demonized certain portions of our citizens, and people started to think that made sense. I think it’s really critical that we always ask why,” she said. “Why are we here? What led to this point?”


Historic homes along the Walking Tour on Randolph Street. (Photo by: Jeffrey Greenberg/UIG via Getty Images)

Historic homes in Eufaula, Ala.

Photo: Jeffrey Greenberg/UIG via Getty Images

A New Order of Things

Eufaula, Alabama, sits on a riverbank border with Georgia, some 85 miles southeast of Montgomery. On the cusp of Alabama’s Black Belt, the city was once prosperous from cotton plantations and a railroad built by slave labor, later becoming the “fugitive seat of the Government of Alabama,” toward the end of the Civil War. Today, the Eufaula River is famous for big mouth bass, and its historic district is lauded in travel magazines. A Confederate monument overlooks a traffic circle downtown, where every spring the “Eufaula pilgrimage” features Southern belles in hoop skirts welcoming visitors to tour antebellum architecture.

Like other parts of the South after emancipation, Eufaula was the site of violent measures to roll back the gains made during Reconstruction. On the morning of Alabama’s critical 1874 elections, members of the White League carried out a notorious slaughter of black Republicans in Eufaula, driving scores of would-be voters from the polls. The mob later broke into a polling place north of town, fatally shooting the teenage son of a white Republican judge. Today, on U.S. Highway 82, a historical marker commemorates the “Election Riot of 1874,” which “marked the end of the Republican domination in Barbour County.” No black victims are mentioned.

In a sunny history of Eufaula published the following year, a local writer celebrated a renewed sense of optimism — “a new order of things is fully inaugurated,” he wrote. Just as the Black Codes did after the Civil War, new laws re-criminalized black people; in “Black Prisoners and Their World: Alabama, 1865-1900,” historian Mary Ellen Curtin describes how these years “established a solid practice of whites turning to the courts to prosecute African Americans for purposes of social control.” Between 1874 and 1877, she writes, the black incarcerated population of the state tripled. Convict leasing became the law of the land.

At the same time, lynchings were on the rise. In 1881, a black man in Eufaula was chased across the border to Georgia and killed by a mob for allegedly assaulting a white girl. “There was a rumor among the blacks that the wrong man had been hung,” the Eufaula Times and News reported, “but the writer, as well as every one who has taken the pains to learn the facts, knows that such was not the case.” Like many newspapers in the South and North alike, the Times and News wrote approvingly of lynchings, particularly to punish “outrageous assaults upon white women,” as the Eufaula newspaper wrote in 1885. Such crimes were increasing, it warned — and lynchings were “the only remedy.” The article dismissed those who denied that lynching worked as a deterrent. “White men and law-abiding tax-payers do not care to feed, week after week in jail, and incur other expenses in bringing to punishment such fiends in human shape.”

There was no evidence behind the hysteria over sexual violence against white women by black men. But the manufactured threat had embedded itself firmly in the Southern psyche. According to EJI, “Nearly 25 percent of the lynchings of African Americans in the South were based on charges of sexual assault” — and an allegation alone was enough. When pioneering journalist Ida B. Wells dared to suggest that the real fear animating such propaganda was of miscegenation – and showed evidence that some lynching victims had, in fact, been in consensual, clandestine relationships with white women — she was forced to flee her home in Memphis.

Wells’s defiant activism would spur a wave of bad press about Southern lynchings. After a series of her lectures abroad, Southern governors felt compelled to respond. “I am opposed to lynch law for anything but rape,” the governor of South Carolina insisted in a 1884 letter printed in the Eufaula Times and News. The governors of Georgia and Virginia were also “highly indignant,” another Alabama newspaper reported, reminding readers that while lynch mobs might be deplorable, the crimes they sought to punish were far worse. Undeterred, Wells published the Red Record the following year, including lynching statistics and featuring a postcard from a lynching in Clanton, Alabama. Activists would learn to weaponize such photos in the years to come, and eventually lynchings would fall out of favor. But even in 1895, the Eufaula Times and News showed a shift in rhetoric. There were doubts over the guilt of a recently lynched man in Florida, the paper reported that summer. Hasty acts of passion did not “make the same profound impression that imprisonment, trial by jury, and legal execution carry with them. Lynchings are not as deterrent of crime as legal punishment.”

In 1900, as Alabama prepared to ratify a new constitution enshrining white supremacy by law, a major event was held in Montgomery: the first conference of the Southern Society for the Promotion of the Study of Race Conditions and Problems in the South. Over three days in May, speakers looked to the future, while bidding good riddance to the dangerous ideas of the Reconstruction era. “In that day, miscegenation was by many looked upon with so little of horror that even Alabama judges on our Supreme Court bench decided that no law of the State could interfere with the right of whites and negroes to intermarry,” a former Alabama congressman declared in his introductory remarks. Fortunately, he added, a new legal era was in place, “and we shall never more hear of such decisions.” Still, the “Negro problem” had not been resolved. Conference attendees agreed that the 15th Amendment had failed, that science proved the inferiority of black people, and that the abolition of slavery had spawned a generation of black men who posed a threat to white women everywhere.

On the third day, a lawyer from Atlanta delivered a lecture titled, “The Punishment of Crimes Against Women, Existing Legal Remedies and Their Sufficiency.” “Even some of those who decry lynching and wish to have punishment meted out according to law are clamoring for some new method of procedure and punishment, which shall not only swiftly annihilate the criminal; but strike terror to the ignorant and criminals of the race,” he announced. South Carolina was leading the way, he noted. The previous year, newspapers had reported the state’s “first legal execution for criminal assault.”

Rape had long been punishable by death in the South, at least when the victims were white, but capital punishment had largely subsided at the time. In Alabama, according to the Espy File, no legal executions had been carried out from 1869 to 1874. But soon Southern states began to revise their death penalty laws. As Northern states had done decades before, many states moved executions away from public view and inside local jails, although certain exceptions remained, ostensibly to serve as a deterrent. “In 1901,” Stuart Banner writes in “The Death Penalty: An American History,” “Arkansas abolished public hanging except for rape, a crime for which capital punishment was in practice largely limited to blacks. … Kentucky, which had abolished public hanging in 1880, brought it back for rape and attempted rape in 1920, at the discretion of local officials.”

Newspaper reports from the turn of the century show a series of “firsts” throughout the South. In 1905, the first legal execution for “criminal assault” in North Carolina’s Sampson County was attended by 25 people, who had bought tickets for the occasion. That same year, Fulton County, Georgia carried out its first legal execution for criminal assault, hanging the “Negro assailant” of the wife of an Atlanta merchant. Legal executions were spreading for new crimes as well. In 1903, three black men were hanged for robbery for the first time in Alabama. That same year, 5,000 people attended the first legal execution in Randolph County, Alabama. The Advertiser reported it in detail, describing a number of humane touches: the man’s “hearty breakfast,” a last cigarette that evening, and the moving goodbye between the condemned and his wife. (“Seldom is such faithfulness seen in the colored race.”)

The rise of legal executions was widely regarded as a positive trend. In April 1903, an Alabama paper reported that Mississippi had not seen a single lynching since the start of the year. Records suggested the reason was a “plentitude of legal hangings.” Still, lynchings continued, and newspapers defended those they deemed justified. In 1906, two black men accused of raping white children were seized from a train by a lynch mob in Mobile. The governor was notified but did not intervene. “The Mob Was Very Orderly,” the Montgomery Advertiser wrote, noting that even a “legal hanging could not have been more quiet.”

By 1915, according to EJI’s Lynching in America, “Court-ordered executions outpaced lynchings in the former slave states for the first time.” In Alabama, following the botched hanging of a white man — “Grewsome and Harrowing Scenes enacted at County Jail Today Demand Change In This State,” the Montgomery Times announced — officials decided that it was time to make executions more befitting of a civilized age. Other states had already begun killing people by electrocution, a modern marvel that captured the popular imagination. In 1923, Alabama joined other states in moving executions to the middle of the night and the first electric chair was installed in Montgomery’s Kilby prison.

The first to die in the electric chair was a black man named Horace de Vaughn. The Montgomery Advertiser described an air of solemnity — de Vaughn was respectful, sitting down unassisted, and the prison “was wrapped in absolute silence.” A doctor declared it the best execution he’d ever seen, the newspaper announced. “Alabama justice has been carried into execution in as quick, painless and clean a manner as science has been able to devise.”


Here is shown a part of the crowd of 10,000 persons who jammed the courthouse square in the little town of Scottsboro, Alabama, April 6, 1933, on the opening of the trials of nine black youths accused of attacking two white girls near Sevenson, Ala., March 24, 1931.  National Guardsmen with fixed bayonets patrolled the courthouse grounds, and women and minors were barred from the courtroom.  The state asked for the death penalty for the first two defendants to be placed on trial.  The other seven will be tried later.  The nine were identified by the two girls as the ones who boarded the freight car in which they and seven white youths were riding, forced five of the white youths from the train, knocked the other two unconscious and attacked the girls. (AP Photo)

A part of the crowd of 10,000 people who jammed the courthouse square in Scottsboro, Ala., on April 6, 1933, the opening of the trials of nine black youths accused of attacking two white women near Sevenson, Ala., two years prior.

Photo: AP


The trials that led to state-sanctioned executions were utterly devoid of due process. But that would begin to change, at least in theory. In 1932, the U.S. Supreme Court took on one of the most famous miscarriages of justice in American history: the case of the Scottsboro Boys, nine youths accused of raping two white women in 1931. Newspapers called them “fiends” and mobs gathered outside the courthouse during their trials, where they were represented by incompetent attorneys, one of whom was visibly drunk. The Supreme Court found that the men’s right to a fair trial had been violated. But similar “legal lynchings” would continue. In 1944, South Carolina executed a 14-year-old boy named George Stinney, convicted in 10 minutes by an all-white jury.

In the meantime, as Alabama’s electric chair approached its 10-year anniversary, the Montgomery Advertiser assessed its record. “Of the 55 who passed through the little green door to die,” it reported, “47 were negroes and eight were white.”

A State of Denial

The lynching marker in Tuscaloosa is located on Sixth Street, in front of the old county jail. A couple blocks east, a six-lane boulevard cuts through downtown, named for the wife of segregationist ex-Gov. George Wallace. On the other side, a cluster of trendy shops and restaurants leads to the University of Alabama campus. On the Saturday after the EJI Peace and Justice Summit in Montgomery, a free outdoor concert attracted a mostly white crowd to an event called Alabama Roots Fest.

The lynching marker on the other side of the boulevard was placed by EJI in 2017. The last victim mentioned, David Cross, was shot to death in 1933 by a mob dressed as police officers, who accused him of trying to assault a white woman at a country club. “The County Sheriff later stated that the woman Cross was accused of assaulting had in fact never been attacked,” it reads.

On the South Side, just over the railroad tracks in a black neighborhood people still call Shacktown, I met the family of a man on Alabama’s death row who maintains his innocence. The man’s fiancée, a teacher named Crystal, had not been to Montgomery for years — she was only vaguely aware of EJI’s new memorial and museum. “That’s a good reason to go,” she said. History is not accurately taught in Tuscaloosa, she told me. The “misleading” begins as early as pre-K, she said, when kids learn about Christopher Columbus. “When it comes to black history, it’s just that one month.”

The link between lynchings and the death penalty felt logical to Crystal in a way that racism in Tuscaloosa is instinctive and familiar. “You just kind of have to live it,” she said. Black people in Tuscaloosa are heavily policed, including by campus officers with the University of Alabama. “They tolerate the athletes,” Crystal said, but black people from her side of town otherwise stay away.

In the ’50s and ’60s, the university was the scene of riots protesting desegregation. Years before Wallace notoriously blocked the schoolhouse doors on campus, a black woman named Autherine Lucy was briefly enrolled at UA, only to be met by mobs who threw eggs, burned desegregationist literature, and waved Confederate flags. The university board expelled Lucy — ostensibly for her own protection – but she would return to the College of Education decades later. Last year, six months after EJI erected the lynching marker, the university honored Lucy with a historical marker of her own, lauding her role in making the university “truly ‘one for all.’”

The Tuscaloosa campus holds a piece of EJI’s history too. When the office first opened in 1989, under the banner of the Alabama Capital Representation Project, its original headquarters were at the law school building. In his best-selling memoir, “Just Mercy,” Bryan Stevenson describes how the university withdrew its support within the first few months of operation, “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.” Months later, the office moved to Montgomery.


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The EJI offices in Montgomery, Ala.

Photo: Liliana Segura/The Intercept


When Stevenson first arrived in Alabama in the early 1980s, the state was outpacing the rest of the country in sending people to death row. There was no public defender system, Stevenson writes, “which meant that large numbers of death row prisoners had no legal representation of any kind.” Stevenson had not planned to stay in Alabama. He had come to the South as a Harvard law student, to take an internship with the Southern Prisoners Defense Committee in Georgia. He often tells the story of meeting then-Director Stephen Bright, a famed capital defense attorney, on a layover to Atlanta. Bright became an instant mentor. “We can’t help people on death row without help from people like you,” he told Stevenson. For more than a year, Stevenson slept on Bright’s living room couch while learning to defend indigent clients.

Bright was among the speakers at the Peace and Justice Summit in Montgomery. In a brown suit and tie, he described how he has seen the legacy of lynching in capital cases throughout his career. Today, he said, “80 percent of all death sentences are in states from the old Confederacy.” He repeated a line he had written many years ago, in an article called “Discrimination, Death and Denial.” American criminal courts are the institutions “least affected by the civil rights movement.”

A major reason is the judiciary’s longtime failure to acknowledge the racism in the criminal justice system. Even as the U.S. Supreme Court sought to impose due process in capital cases, decades of rulings would immunize the criminal justice system from challenges based on race. Bright has described countless examples in his writing; in the court’s 1965 ruling in Swain v. Alabama, the justices upheld a death sentence out of Talladega County, whose population was more than a quarter black, even though there was evidence “that due to peremptory challenges, no black person had ever served on a jury in either a criminal or civil case.” The ruling — “disapproving of racial discrimination but allowing it to continue by setting a virtually impossible standard of proof” — was the controlling law for 20 years.

It was around this same time that the NAACP Legal Defense and Education Fund (LDF) set out to prove what many had long known to be true: that the death penalty was particularly racist when it came to rape cases, a direct legacy of lynchings. In the summer of 1965, a group of law students traveled South to gather statistics; one case they found was that of Billy Maxwell, sentenced to death in 1962 for the rape of a white woman in Arkansas. At trial, Maxwell’s lawyer had shown evidence that, of 20 men convicted and sent to die for rape between 1930 and 1960, “all but one was black,” one participant wrote years later. Armed with additional statistics, Maxwell’s case made it all the way to the U.S. Supreme Court, which vacated his death sentence. But it did so on a different matter, leaving the issue of race unaddressed.

Just a few years later, thanks to the ongoing work of the LDF, the court handed down its landmark decision in Furman v. Georgia. The justices had been presented with exhaustive statistics laying out the death penalty’s racial bias. Yet in a series of separate opinions, the majority mostly talked around race, describing death sentences as “arbitrary” and “capricious.” A national moratorium on executions followed — but that did not stop states from continuing to send people to death row. No sooner did state legislatures pass new statutes than prosecutors sought new death sentences. In 1976, the Supreme Court upheld a new set of laws in Gregg v. Georgia, giving the green light to restart executions.

“To think that all of the problems identified in Furman — the racism, the consequences of poverty — to think that you could have that fixed in four years was just so incredibly preposterous,” Bright told me a few years ago. Perhaps more absurd, in 1977 the justices struck down the death penalty for rape in Coker v. Georgia, while managing to avoid mentioning race at all. But its most devastating decision regarding race and the criminal justice system came 10 years later, in the case of Warren McCleskey, a black man represented by Stevenson and Bright. In its 5-4 decision in McCleskey v. Kemp, the court said discrimination in the criminal justice system was “inevitable,” in the words of Justice Lewis Powell, and held that a sentence was not unconstitutional unless a defendant could prove that the racial bias had been intentional — a “crippling burden of proof,” as described by the LDF. Anthony Amsterdam, the lawyer who argued Furman before the court, called McCleskey “the Dredd Scott of our time.”

Legal scholars have since exposed one concern underlying the decision in McCleskey. “Although the point was not discussed in the majority opinion,” writes Jeffrey Kirchmeier, author of “Imprisoned by the Past: Warren McCleskey and the American Death Penalty,” the justices were concerned that a ruling in favor of McCleskey would effectively dismantle the death penalty. “During the justices’ discussion of the case,” Kirchmeier writes, “Powell warned in an interoffice memo, ‘This case presents, as we know, an attack on capital punishment itself.’”

By then, the Supreme Court’s refusal to acknowledge racism had already enabled plausible deniability about the death penalty’s discriminatory application. In Alabama, where the fight over passing a new death penalty law after Furman split lawmakers along racial lines in 1973, one Mobile Republican was offended when a black representative asked his colleagues to search their consciences and warned that reviving the death penalty would turn the clock backward for black people. “When the Brown v. Board of Education decision came out, I applauded,” he said. “But I feel you are guilty of racism in reverse.”

“They Brought the Tree From Outside”


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A historic marker commemorates the last lynching in the state of Alabama.

Photo: Liliana Segura/The Intercept

On a residential block in Mobile, Alabama, a historic marker stands in front of an old oak tree, commemorating the last lynching in the state. “On March 21, 1981,” it reads, “19-year-old Michael Donald was abducted, beaten, killed, and hung from a tree on this street by members of the Ku Klux Klan.” The marker, installed in 2009 as part of Mobile’s African American Heritage Trail, described how the crime — “retaliation for an interracial jury failing to convict a black man for killing a white Birmingham policeman” — led to a famous civil suit against the Klan, brought by Donald’s mother and the Southern Poverty Law Center, which bankrupted the KKK.

The Donald case also marked a turning point in Alabama’s death penalty history. At the time of the lynching, lawmakers had been forced to revise their new death penalty law, after sections had been overturned by the U.S. Supreme Court. In July 1981, a new law took effect in Alabama. Modeled after Florida’s death penalty law, it was controversial for allowing non-unanimous juries to recommend death sentences. Yet another critical provision was overlooked: the vast discretion it gave to judges to override jurors in capital cases.

As Henry Hays, one of Donald’s murderers, went to trial in 1983, evidence of racism in Alabama’s death penalty system had already emerged. That year, a Talladega College professor presented findings that Alabama had the highest percentage of black people on death row among Southern states — and study of death sentences from 1976 to 1981 had showed that killing a white person in Alabama was 10 times more likely to face the death penalty than someone who killed a black person. Officials issued vociferous denials — “There’s no way that can be true,” said Alabama Assistant Attorney General Ed Carnes, who helped author the law. But after Hays was convicted in December 1983, the mostly white jury recommended a life sentence — the perfect emblem of Alabama’s racist double standards.

Because Donald’s murder predated the new legislation, the trial judge was not technically authorized to override the jury’s sentence in Hays’ case. But in early 1984, he did so anyway. Some applauded the move, but others saw it as a cynical deflection — a way to show that Alabama’s death penalty wasn’t racist after all. In the decades that followed, Alabama became notorious for  “judicial override.” The power was eagerly exploited by the state’s elected judges, who could boast on the campaign trail about their death penalty record. By the time judicial override was finally abolished last year, Mobile led the state in capital prosecutions; in 2016, the Harvard-based Fair Punishment Project named it a death penalty “outlier,” one of the few remaining places in the country where prosecutors still aggressively seek death sentences.

Today, the legacy of Alabama’s 1981 law is evident in the words of a trial judge who, in 1999, explained why he overrode the jury in sentencing a white man to die. “If I had not imposed the death sentence,” he said, “I would have sentenced three black people to death and no white people.”


Anthony Ray Hinton stands near the spot in the yard of his home in Quinton, Alabama, Sunday, June 3, 2018, where Alabama police officers came to arrest him for crimes he didn't commit in 1985. When he is not traveling, Hinton says he spends a lot of time outdoors. "It just gives me a sense of belonging. When one has been locked up, the last place I want to be is stuck in the house. I love the outdoors." Hinton spent 30 years on death row after he was wrongfully incarcerated for two murders he did not commit. His recently released his memoir, "The Sun Does Shine: How I Found Life and Freedom on Death Row.”<br /> (Tamika Moore for The Intercept)

Anthony Ray Hinton stands near the spot in the yard of his home in Quinton, Ala., where police officers came to arrest him for crimes he didn’t commit in 1985.

Photo: Tamika Moore for The Intercept


“They have to put a few white guys on death row to make you think it’s not about race,” said Anthony Ray Hinton. We were at the EJI office in Montgomery, talking about Dylann Roof. Cases like that are a “distraction,” Hinton said. If executions don’t look like lynchings anymore, it’s only because the machinery is different. “They brought the tree from outside and put it inside.”

Hinton knows too well how racism drives the death penalty in Alabama. Sentenced to die in 1986 for two murders he didn’t commit, he spent nearly 30 years on death row before being exonerated with the help of EJI in 2015. In his memoir, “The Sun Does Shine,” Hinton describes how his cell stood 30 feet from Alabama’s execution chamber, so close he could smell the burning flesh of men killed in the electric chair. He was still on death row when the state switched to lethal injection in 2002. But he knew better than to consider it any more humane. When we met, he was still disturbed by Doyle Lee Hamm’s bloody ordeal months before.

At the EJI summit in Montgomery, where he spoke alongside Stephen Bright, Hinton had become emotional as he described how the state has yet to acknowledge his wrongful conviction. “To this day,” he said, “nobody in the governor’s office or the attorney general’s office or nowhere has had the decency to say, ‘Mr. Hinton, we’re sorry.’” Freeman was in the audience that afternoon. For her decades doing capital defense work in the South, his story made deeply her indignant. “It’s just this denying, denying, denying,” she said. “We just don’t want to believe that our system is that fallible. … In my view, it is part and parcel with the commissioner standing up and saying, ‘It all went according to plan.’”

For Hinton, telling his story is exhausting — “like reliving a nightmare,” he told me. But it is the only way to combat the state’s denial. So he tells it over and over again. Fifty-four executions were carried out while Hinton was at Holman. Among those friends he saw walk to their death was Henry Hays, the former Klansman sentenced to die in 1984. Hays, Hinton says, changed in the years he lived on death row, and the men formed an unlikely bond. On the night Hays died in 1997, Hinton and the men on death row banged the bars so that he would hear them. “Black. White. It didn’t matter,” Hinton writes. “I screamed so that whoever was there to watch the state of Alabama kill in their name knew that we were real men and that you couldn’t hide us under a black hood and pretend we didn’t feel pain.”

For lawyers like Freeman, who cannot protest, the experience is another kind of denial. It is a strange thing, she says, to fight for years for your client’s life only to sit still and watch as the state kills them in the name of the law. “You look at them and think, ‘Aren’t I supposed to do something? Aren’t I supposed to go up to the wall and bang on the window and say, Stop it?’” she said. “But everybody’s such a cog in the machine at that point. Nobody stops it.”

On June 1, a new law went into effect in Alabama, allowing condemned prisoners to choose a new way to die: nitrogen gas. Like his predecessors did when promoting the electric chair and lethal injection, the sponsor of the legislation vowed the new execution method would be humane, although it has never been used before. In the meantime, I returned from Montgomery to a letter from death row, written by the man whose family I met in Tuscaloosa. He said he knew Doyle Lee Hamm — they had lived in the same unit for years. “To hear how they tortured him broke me down,” he wrote. “It shook me up. I closed down in my cell and just laid in the dark.”

Top photo: A bronze statue called “Raise Up” is part of the display at the National Memorial for Peace and Justice in Montgomery, a new memorial to honor thousands of people killed in lynchings.

The post Alabama’s Lynching Memorial and the Legacy of Racial Terror in the South appeared first on The Intercept.

Anthony Ray Hinton Spent Almost 30 Years on Death Row. Now He Has a Me...

Anthony Ray Hinton was mowing the lawn at his mother’s house in 1985 when Alabama police came to arrest him for two murders he did not commit. One took place when he was working the night shift at a Birmingham warehouse. Yet the state won a death sentence, based on two bullets it falsely claimed matched a gun found at his mother’s home. In his powerful new memoir, “The Sun Does Shine: How I Found Life and Freedom on Death Row,” Hinton describes how racism and a system stacked against the poor were the driving forces behind his conviction. He also writes about the unique and unexpected bonds that can form on death row, and in particular about his relationship with Henry Hays, a former Klansman sentenced to death for a notorious lynching in 1981. Hays died in the electric chair in 1997 — one of 54 people executed in Alabama while Hinton was on death row.

After almost 30 years, Hinton was finally exonerated in 2015, thanks to the Equal Justice Initiative, or EJI. On April 27, Hinton spoke at the Peace and Justice Summit in Montgomery, organized by EJI to launch two new historical memorials: the Memorial to Peace and Justice and the Legacy Museum. I met Hinton at a conference room at EJI’s headquarters. In a blue checkered shirt and black boots, he said he likes to picture his lawyer and close friend Bryan Stevenson at that same table, strategizing around his case. We discussed Hinton’s memoir, his unlikely friendship with Hays, and the links between racial violence and the modern death penalty.

Liliana Segura: You were a big part of the opening of EJI’s Peace and Justice Summit. What was it like to visit the memorial and museum?

Anthony Ray Hinton: Seeing myself in the museum was like, “Wow.” A whole lot of memories came back — not all good memories. But if 30 years is what it cost me to educate people, so be it. Those names you read when you go up to the memorial — they lost their life. As you read why they were lynched, you think, are you serious? This man was lynched because he asked for a receipt. This man was lynched because he looked at a white woman. Although I’ve read about all of these types of crimes, it brought tears to my eyes.

I call the death penalty, to this day, a form of lynching. It’s not where they run to your house and burn you up without justification. Now, they do it in the name of the law. I was a victim of that, and almost lost my life because they have that much power.

LS: Lynching was a form of torture and terror for the community. You write vividly about those nights when men were killed in the electric chair. Would you call that torture?

ARH: Absolutely. It’s torture for the guards that have a job to do. It’s torture for the warden. It was torture for us. When you smell this smell, it makes you run to the toilet and throw up. This smell gets up in your nostrils, and you couldn’t get it out. Torture was sitting there, 30 feet away from the death chamber, knowing that one day that’s going to be me.


Anthony Ray Hinton recently released his memoir, "The Sun Does Shine: How I Found Life and Freedom on Death Row.” A photo of his mother sits next to his books on a side table in his home in Quinton, Alabama, Sunday, June 3, 2018. Hinton spent 30 years on death row after he was wrongfully incarcerated for two murders he did not commit.<br /><br /><br /><br /><br /><br />
(Tamika Moore for The Intercept)

A photo of Hinton’s mother sits next to his books on a side table in his home in Quinton, Ala.

Photo: Tamika Moore for The Intercept


LS: Your book is remarkable for having these very funny moments where you escape by imagining your way into amazing scenarios. But there are also moments where you are present in that space. The banging on the bars on execution nights — I was hoping you might talk about that.

ARH: Try to imagine: You and I live in this room for 30 years. We get to know each other, probably better than you would someone in your own household. Now, they come and it’s your time to be executed. We don’t know whether or not you have family members there. We don’t even know whether your lawyer was going to be there. No one came and said, “His mother is with him.” Banging on the bars was our way of letting the condemned know we are still here with you until the very end.

At one point, they used to carry out executions at 12:01 a.m. We would start beating on the bars about five minutes to 12. We would beat about 15, 20 minutes after 12. We would stop to see if we heard any noise. Every now and then one of the guards would say, “They haven’t killed him yet.” We would go back to beating on the bars.

LS: That’s interesting – they didn’t try to stop you.

ARH: The guards got to the point they understood why we did it. People don’t realize that when you go to prison, families forsake you or they don’t visit. You have to learn to develop a new family, new friends. A lot of guys had pen pals from other states and from other countries. The guards realized that it was our way of saying goodbye to someone that had no one.

LS: It’s a form of protest, really.

ARH: Absolutely. We wanted the guards to hear and we wanted the warden to hear. We would shout out, “Murderers.” We would shout out, “You’re no better than what he did.” Who was going to be put on death row for this man’s murder? I do think it made a difference. I think it made the condemned feel love. It made them feel that somebody really cared enough about me to raise hell.

LS: Some of the most profound parts of your book are the sections in which we get to know Henry Hays before he was executed. On my drive down here, I was listening to an audio book about his case — his crime, but also about his background, his father, who was horribly abusive. How have people responded to that portion of the book?

ARH: The first person who called me was my niece. She said, “Uncle Ray, how could you?” I said, “Let’s back up a moment. Henry was born Henry Francis Hayes, not “KKK Henry Francis Hayes.” I explained to her that from the time he was conceived, he was taught hate. I imagine at the age of four and five his daddy drilled in him the word “nigger” every day, all day. As he got older, he went to Klan meetings, teaching him more hate. Before he turned 15, 16, 17 – where was child protective services? We love to say it takes a village to raise a child. Where was this village when this young boy was being mentally abused? The village didn’t come out until he did something horrible. That same village that should have protected him found him guilty. This same village said, “This world would be better if you wasn’t in it.” What I find joy in is the fact that for 15 years, Henry was taught to hate, but once Henry came to death row, the very people that he was taught to hate taught him love, compassion. Henry changed and I saw the change.

LS: It really debunks the idea that some people are so irredeemable they have to be sentenced to die.

ARH: Politicians would also have you to believe it is a deterrent. Believe me, at the moment they was executing a man, somebody else was committing murder in Alabama. We need to be truthful. The death penalty serves no purpose other than the getting votes for politicians.

At least three different murder victims’ families have come to hear me speak. They said, “I’m against the death penalty now. I haven’t got any closure. Actually, it now gave me something more to think about. I had the date that my parents were murdered. Now I have to think of the date they executed the killer. I didn’t want that on my conscience. I just wanted … revenge.” I said, “Say it.” That’s what it is.


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Pat Turner, left, hugs Anthony Ray Hinton as he leaves the Jefferson County jail in Birmingham, Ala., on April 3, 2015.

Photo: Hal Yeager/AP


LS: One of the most emotional moments of your panel at the summit was when you described how you had never received an apology from the state. It reminded me of speaking to victims’ family members — sometimes it seems what they need more than anything to have a sense of justice would be the acknowledgement of the harm that was done to them.

ARH: That’s why an apology is so important. Can you imagine the victims’ family seeing me on TV, hearing somebody say, “You need to read this book by this guy”? An apology would at least acknowledge, first and foremost, I’m not the person that did the horrible crime. Second, it would acknowledge that as human beings, we make mistakes. Now, I’m going to be honest with you — there was no mistake made in my case. I was convicted because I’m a black male. But I’m willing to let the state say, “We made a mistake 33 years ago.” Somebody ought to be honest enough to say to the victims’ family, “I work for the state and we’re sorry that we didn’t catch the person — but we did let the right man go.”

LS: In 2003, Gov. George Ryan of Illinois commuted all death sentences and pardoned a man named Madison Hobley, who had been wrongfully convicted for killing his wife and child. He spent 16 years on death row. After his release, he came to New York and told his story like you’re doing now. This law student came up to him and said, “In the end, the system worked. You got released.” Do you ever hear anything like that?

ARH: I’ve had people say, “Thank God you wasn’t executed, but don’t you think that that is the price one must pay to have law and order?” I say, you have a right to feel that way, but how would you feel about that price if I had been your father, if I was your brother? Then I’ve had people that comes up to me and they’ll say, “Mr. Hinton, I’m so sorry what happened to you, but the system worked.” I said, “If the system had worked, I never would have went in the first place.”

LS: Some people are really resistant to accepting that these kinds of injustices have happened, whether it’s our criminal justice system now or the history EJI has put on display in these monuments. Do you feel like white folks in Alabama are responding to this message?

ARH: It’s too soon to know. I’m going to be honest with you. White people in Alabama know what happened. White people would love for it to stay in the closet, but it’s open, it’s out in the open. I think the white people in Alabama need to own up to responsibility. “My ancestors were a part of what happened. I feel nothing like they did, but I want to apologize in whatever way, by bringing the races together.”

LS: Is there anything you wish you could have included in your book that you didn’t?

ARH: I wish that I could have included a lot more about the men on death row — why they ended up being where they are. I wish I could have shown how we failed them. I think it was about five of us [on death row] that graduated from high school. Everybody had quit in the seventh and eighth grade. Tell me that society didn’t play a part. We still fail them because we’re spending more money on prison than we are on school. Since I’ve been out, I’ve been to white schools to speak and I thought I was at a college. They’ve got labs — Bill Gates, here they come. I’m saying, “Imagine if you could put something like this in a black neighborhood.”

I think about lynching. They probably lynched one of the greatest scientists of modern times. They probably lynched someone that could come up with a cure for AIDS, Alzheimer’s, cancer. We don’t know what a person can be. Earlier, we spoke of Henry Hays. Henry could still be alive today and could be in the general population getting blacks and white to come together. He could say, “I was brought up to hate. I’m telling you, it serves no purpose. If anyone knows, I know. I lived it.” But society didn’t want him to be an advocate.

LS: You mentioned in your book that you still have a fear of going back to death row.

ARH: Yes. Every time I go somewhere and I’m by myself, the fear that police could get behind me and pull me over. The fear will always be there now. I don’t disrespect them, but I trust no police.

LS: I noticed your car outside — it has the license plate that says “Hinton” on it.

ARH: Yeah.

LS: So you still drive that car with your name on it — fear isn’t driving you.

ARH: I saved up money and had this door fixed and that window fixed. When I went to get the license plate, I said, “Is it possible I can get ‘Hinton’ put on it?” The lady said, “You sure can.” I put Hinton on it because I want people to realize that for so long, I was nobody. I want you to realize that I am somebody.

Top photo: Anthony Ray Hinton at his home in Quinton, Ala., on June 3, 2018.

The post Anthony Ray Hinton Spent Almost 30 Years on Death Row. Now He Has a Message for White America. appeared first on The Intercept.