Shortly after Marsha arrived at Tutwiler, we won the release of Diane Jones, who had been wrongly convicted and sentenced to die in prison for a crime she had not committed. Diane had been wrongly implicated in a drug-trafficking operation that involved her former boyfriend. She was convicted of multiple charges that triggered a sentence of mandatory life imprisonment without parole. We challenged her conviction and sentence and ultimately won her release. The release of Diane Jones, a condemned lifer, gave hope to all of the other lifers at Tutwiler. I received letters from women I’d never met thanking me for helping her. While working on her case, I’d go to Tutwiler to meet with Diane, who would tell me how the women were desperate for help.
“Bryan, I have about nine notes people want me to pass to you. It was too many to get past the guards so I didn’t bring them, but these women want your help.”
“Well, don’t try to smuggle notes. They can write us.”
“Well, some say they have written.”
“We’re swamped, Diane. I’m sorry, but we’ll try to reply.”
“I’m mostly worried about the lifers. They’re the ones who will die in here.”
“We’re trying—there is only so much we can do.”
“I tell them that, I know. They’re just desperate, like I was desperate before y’all helped me. Marsha, Ashley, Monica, Patricia are sweatin’ me to have you send someone to help.”
We met Marsha Colbey shortly after that and began working on her appeal. We decided to challenge the State’s case and the way the jury had been selected. Charlotte Morrison, a Rhodes Scholar and former student of mine, was now a senior attorney at EJI. She and staff attorney Kristen Nelson, a Harvard Law grad who had worked at the Public Defender Service for the District of Columbia, the nation’s premier public defender office, met with Marsha repeatedly. She would talk about her case, the challenge of keeping her family together while she was in prison, and a range of other problems. But it was the sexual violence at Tutwiler that most frequently came up during these visits.
Charlotte and I took on the case of another woman who had filed a federal civil suit after she was raped at Tutwiler. She had had no legal help; because of defects in her pleadings and the allegations she made in her complaint, we could secure only a small settlement judgment for her. But the details of her experience were so painful that we could no longer look past the violence. We started an investigation for which we interviewed over fifty women; we were truly shocked to see how widespread the problem of sexual violence had become. Several women had been raped and become pregnant. Even when DNA testing confirmed that male officers were the fathers of these children, very little was done about it. Some officers who had received multiple sexual assault complaints were temporarily reassigned to other duties or other prisons, only to wind up back at Tutwiler, where they continued to prey on women. We eventually filed a complaint with the U.S. Department of Justice and released several public reports about the problem, which received widespread media coverage. Tutwiler made a list of the ten worst prisons in America compiled by Mother Jones; it was the only women’s facility to be so dishonored. Legislative hearings and policy changes at the prison followed. Male guards are now banned from the shower areas and toilets, and a new warden has taken over the facility.
Marsha held on despite these challenges and started advocating for some of the younger women. We were devastated when the Court of Criminal Appeals issued a ruling affirming her conviction and sentence. We sought review in the Alabama Supreme Court and won a new trial based on the trial judge’s refusal to exclude people from jury service who were biased and could not be impartial. Marsha and our team were thrilled, local officials in Baldwin County less so. They were threatening re-prosecution. We involved expert pathologists and persuaded local authorities that there was no basis on which to convict Marsha of murder. It took two years to settle the legal case and then another year of wrangling with the Department of Corrections to give Marsha full credit for the time she’d served before she was finally freed in December 2012 after ten years of wrongful imprisonment.
We had started holding annual benefit dinners each March in New York City to raise money for EJI. We usually honored a luminary in public service and a client. We’d previously honored Marian Wright Edelman, the heroic civil rights lawyer and founder of the Children’s Defense Fund. In 2011, we honored retired U.S. Supreme Court Justice John Paul Stevens. I had met Justice Stevens at a small conference when I was a young lawyer, and he had been extremely kind to me. By the time he retired, he’d become the Court’s most vocal critic of excessive punishment and mass incarceration. In 2013, along with Marsha Colbey, we decided to honor the charismatic former director of the NAACP Legal Defense Fund, Elaine Jones, and the progressive ice-cream icons Ben (Cohen) and Jerry (Greenfield). Roberta Flack, the legendary singer and songwriter, agreed to perform. She sang the George Harrison tune “Isn’t It a Pity” before it was time to present our award to Marsha.
In my introduction, I told the audience how, on the day of her release from Tutwiler, Marsha had come to the office to thank everyone. Her husband and her two daughters had picked her up at Tutwiler. Her youngest daughter, who was about twelve, had reduced most of our staff to tears because she refused to let go of her mother the entire time she was in the office. She clung to Marsha’s waist, kept hold of her arm, and leaned into her as if she intended never to let anyone physically separate them ever again. We took pictures with Marsha and some of the staff, and her daughter is in every shot because she refused to let her mother go. That told us a lot about what kind of mom Marsha Colbey was. Marsha took the podium in her lovely blue dress.
“I want to thank all of you for recognizing me and what I’ve been through. Y’all are being very kind to me. I’m just happy to be free.” She spoke to the large audience calmly and with a great deal of composure. She was articulate and charming. She became emotional only when she talked about the women she’d left behind.
“I am lucky. I got help that most women can’t get. It’s what bothers me the most now, knowing that they are still there and I’m home. I hope we can do more to help more people.” Her gown sparkled in the lights, and the audience rose to applaud Marsha as she wept for the women she’d left behind.
Following her, I couldn’t think of what to say. “We need more hope. We need more mercy. We need more justice.”
I then introduced Elaine Jones, who began with, “Marsha Colbey—isn’t she a beautiful thing?”
Chapter Thirteen
Recovery
Events in the days and weeks following Walter’s release were completely unexpected. The New York Times covered his exoneration and homecoming in a front-page story. We were flooded with media requests, and Walter and I gave television interviews to local, national, and even international press who wanted to report the story. Despite my general reluctance about media on pending cases, I believed that if people in Monroe County heard enough reports that Walter had been released because he was innocent, there would be less resistance to accepting him when he returned home.
Walter was not the first person to be released from death row after being proved innocent. Several dozen innocent people who had been wrongly condemned to death row had been freed before him. The Death Penalty Information Center reported that Walter was the fiftieth person to be exonerated in the modern era. Yet few of the earlier cases drew much media attention. Clarence Brantley’s 1990 release in Texas attracted some coverage—his case had also been featured on 60 Minutes. Randall Dale Adams inspired a compelling, award-winning documentary film by Errol Morris called The Thin Blue Line. The movie had played a role in Adams’s exoneration, and he was released from Texas’s death row not long after its release. But there had never been anything like the coverage surrounding Walter’s exoneration.
In 1992, the year before Walter’s release, thirty-eight people were executed in the United States. This was the highest number of executions in a single year since the beginning of the
modern death penalty era in 1976. That number rose to ninety-eight in 1999. Walter’s release coincided with increased media interest in the death penalty, triggered by the increasing pace of executions. His story was a counternarrative to the rhetoric of fairness and reliability offered by politicians and law enforcement officials who wanted more and faster executions. Walter’s case complicated the debate in very graphic ways.
Walter and I traveled to legal conferences and spoke about his experience and about the death penalty. The U.S. Senate Judiciary Committee scheduled hearings on innocence and the death penalty a few months after Walter’s release, and we both testified. Pete Earley’s book Circumstantial Evidence was published a few months after Walter was freed, and it provided a detailed account of the case. Walter enjoyed the travel and the attention, even though he didn’t much like speaking in public. Politicians would sometimes say provocative things—such as that his exoneration just proved the system works—which irritated and angered me. My own speaking would sometimes take on an edge of combativeness. But Walter remained calm, jovial, and earnest, and it was very effective—watching Walter tell his story with such good humor, intelligence, and sincerity heightened the horror our audiences felt, that the State had been determined to execute this man in all of our names. It was a compelling presentation. We spent a good bit of time together, and Walter would occasionally share with me that he was still troubled by the cases of the men he’d left behind on death row. He thought of the guys on the row as his friends. Behind his gentle presentations, Walter had become fiercely opposed to capital punishment, an issue he readily admitted he had never thought about until his own experience confronting it.
A few months after winning his freedom, I was still nervous about Walter’s return to Monroe County. The big feast immediately following his release had brought hundreds of people to his home to celebrate his freedom, but I knew that not everyone in the community was overjoyed. I didn’t tell Walter about the death threats and bomb threats we’d received until he was free, and then I told him that we needed to be careful. He spent his first week out of prison in Montgomery. He then moved to Florida to live with his sister for a couple of months. We still talked almost every day. He’d accepted that Minnie wanted to move forward without him and seemed mostly happy and hopeful. But that didn’t mean there were no aftereffects from his time in prison. He started telling me more and more about how unbearable it had been to live under the constant threat of execution on death row. He admitted fears and doubts he hadn’t told me about when he was incarcerated. He had witnessed six men leave for execution while he was on the row. At the time of the executions, he coped as the other prisoners did—through symbolic protests and private moments of anguish. But he told me that he didn’t realize how much the experience had terrified him until he left prison. He was confused about why that would bother him now that he was free.
“Why do I keep thinking about this?”
He sometimes complained of nightmares. A friend or a relative might say something about how they supported the death penalty—just not for Walter—and he would find himself shaken.
All I could tell him was that it would get better.
After a few months, Walter very much wanted to return to the place he’d spent his whole life. It made me nervous, but he went ahead and put a trailer on property he owned in Monroe County and resettled there. He returned to logging work while we made plans to file a civil lawsuit against everyone involved in his wrongful prosecution and conviction.
Most people released from prison after being proved innocent receive no money, no assistance, no counseling—nothing from the state that wrongly imprisoned them. At the time of Walter’s release, only ten states and the District of Columbia had laws authorizing compensation to people who have been wrongly incarcerated. The number has since grown, but even today almost half of all states (twenty-two) offer no compensation to the wrongly imprisoned. Many of the states that do authorize some monetary aid severely limit the amount of compensation. No matter how many years an innocent person has been wrongly incarcerated, New Hampshire caps compensation at $20,000; Wisconsin has a $25,000 cap; Oklahoma and Illinois limit the total amount an innocent person can recover to under $200,000, even if the person has spent decades in prison. While other states have caps of more than a million dollars, and many have no cap at all, several states impose onerous eligibility requirements. In some jurisdictions, if the person lacks the support of the prosecuting attorney who wrongly convicted him, compensation will be denied.
At the time Walter was set free, Alabama was not among the handful of states that provided aid to innocent people released from prison. The Alabama legislature could pass a special bill granting compensation to a person wrongly convicted, but that almost never happened. A local legislator introduced a bill seeking compensation on Walter’s behalf that prompted the local press to report that Walter was seeking $9 million. The proposed legislation, of which Walter had no prior knowledge, went nowhere. But the news coverage about the possible $9 million payoff outraged people in Monroeville who still questioned his innocence and titillated some of Walter’s friends and family, a few of whom started soliciting him aggressively for financial help. One woman even filed a paternity suit falsely claiming that Walter was the father of her child, a child that was born less than eight months after Walter’s release. DNA tests confirmed that he was not the father.
Walter at times expressed frustration that people didn’t believe him when he told them he had received nothing. We pressed ahead in our efforts to get compensation for him through a lawsuit, but there were obstacles. Our civil suit ran up against laws that give police, prosecutors, and judges special immunity from civil liability in criminal justice matters. While Chapman and the state officers connected with the case now readily acknowledged Walter’s innocence, they were unwilling to accept any responsibility for his wrongful prosecution and death sentence. Sheriff Tate, who seemed most active in Walter’s wrongful pretrial placement on death row and whose racist threats and intimidation tactics seemed the most actionable in a civil suit, reportedly accepted Walter’s innocence upon his release but then started telling people that he still believed Walter was guilty.
Rob McDuff, an old friend of mine from Jackson, Mississippi, agreed to join our team for the civil litigation. Rob is a white native Mississippian whose Southern charm and manner enhanced his outstanding litigation skills in Alabama courts. He had recently asked me to help him with an Alabama civil rights case involving law enforcement misconduct. That case involved a police raid on a nightclub in Chambers County during which black residents had been illegally detained, mistreated, and abused by local authorities who refused to accept any responsibility for their misconduct. We ended up taking the case all the way to the U.S. Supreme Court, and we ultimately won a favorable ruling.
Walter’s civil case would also go to the U.S. Supreme Court. We sued almost a dozen state and local officials and agencies. As expected, the defendants all claimed immunity for the conduct that had resulted in Walter’s wrongful conviction. The immunity from civil liability given to prosecutors and judges is even greater than the protections provided to law enforcement officers. So even though it was clear that Ted Pearson, the prosecutor who had tried the case against Walter, had illegally withheld evidence that directly resulted in Walter’s wrongful conviction, we would likely not succeed in a civil action against him. As he was the person most in charge of Walter’s wrongful prosecution and conviction, it was hard to reconcile his immunity with his culpability in the whole affair, but there was little we could do. State and federal courts have persistently insulated prosecutors from accountability for egregious misconduct that results in innocent people being sent to death row.
In 2011, the U.S. Supreme Court again reinforced the protections that shield prosecutors from accountability. A month before an inmate named John Thompson was scheduled to be executed in Louisiana, a crime lab report was uncovered that contradicted the State’s c
ase against him for a robbery-murder that had taken place fourteen years earlier. State courts overturned his conviction and death sentence, and he was subsequently acquitted of all charges and released. He filed a civil suit, and a New Orleans jury awarded Thompson $14 million. The jury found that the district attorney, Harry Connick Sr., had illegally suppressed evidence of Thompson’s innocence and had allowed him to spend fourteen years in prison for a crime he had not committed. Connick appealed the judgment, and the U.S. Supreme Court overturned the award in a bitterly divided 5–4 decision. As a result of immunity law, the Court held that a prosecutor cannot be held liable for misconduct in a criminal case, even if he intentionally and illegally withheld evidence of innocence. The Court’s decision was strongly criticized by scholars and Court observers, and Justice Ruth Bader Ginsburg wrote a compelling dissent, but Thompson did not get any money.
We faced similar obstacles in Walter’s case. After a year of depositions, hearings, and pretrial litigation, we eventually reached a settlement with most of the defendants that would provide Walter with a few hundred thousand dollars. Walter’s claim against Monroe County for Sheriff Tate’s misconduct could not be settled, so we appealed the case to the U.S. Supreme Court. Law enforcement officers generally have no personal resources to pay damages to victims of misconduct, so the city, county, or agency that employs them is typically the target of any civil action that seeks compensation. That’s why we had sought relief from Monroe County for the misconduct of its sheriff. The county took the position that even though the sheriff’s jurisdiction is limited to the county, he’s elected by people only in the county, and he’s paid by the county, he’s not an employee of the county. The county sheriff was an employee of the State of Alabama, the county claimed.
Just Mercy: A Story of Justice and Redemption Page 26
