Apparently, Bryan had sounded white to Perhacs—however white sounded. I looked at Perhacs and could see how he had aged. My life had been in his hands, but he never valued my life. I was so young and stupid about the legal system to have believed he was fighting for me, that he actually cared that I was innocent. He knew, though. I could see it in his eyes the few times he glanced my way. I wondered if it ever kept him up at night. I wondered if he and McGregor ever talked about me. Probably not. I was just another black boy who wasn’t going quietly—a pain in their side—but nothing to worry about.
McGregor wasn’t at the hearing, but I didn’t care one way or the other. My days of hating him were over. I didn’t want to play that game. He knew what he had done. Most of all, I didn’t want to go back to having hatred in my heart. I had forgiven McGregor. His sins were between him and God. I also forgave the rest of them. They were a shameful lot of sad men, and I prayed for their souls.
I was innocent, and the three ballistics experts could not be argued with. I closed my eyes and imagined Garrett banging his gavel and standing up to yell, “In light of these three independent ballistics experts and in the name of true justice, I hereby declare Mr. Hinton innocent and order for him to be released immediately!”
That didn’t happen. In fact, I saw the judge yawn during their testimony.
There were three assistant attorneys general at the hearing: Houts, Hayden, and Deason. They had tried every which way to block the hearing from happening, but here we were, and they didn’t seem too happy about it.
“What issues does the petitioner want to raise in the Rule 32 at this time?” asked Judge Garrett. I noticed he never once looked at me—it was like I didn’t exist.
Bryan stood up. “Your Honor, we intend to present evidence relating essentially to the claim of factual innocence, claim of ineffective assistance of counsel, the Brady violation. And then there are legal claims, Your Honor, to which we don’t believe we have to present any evidence. In our petition, we talk about prosecutorial misconduct with closing argument. The record speaks for itself on that issue.”
I wondered what McGregor would’ve thought about that statement. Would Perhacs tell him?
“There are some legal issues, however,” Bryan continued, “that we also think the new evidence relates to. For example, the consolidation issue is a legal claim. We don’t really have facts that relate to that. However, if the evidence establishes that this weapon could not be matched to these crimes, it changes the legal analysis on consolidation. That’s why that claim is included in the evidentiary portion of our presentation, but the facts actually go to the first claim.”
Judge Garrett argued a bit with Bryan. Were we presenting the same evidence but on a different theory? We couldn’t introduce evidence if it had already been considered by the courts. Bryan didn’t back down.
“Our primary presentation is about the innocence claim and about the ineffectiveness of counsel claim and about claims flowing from due process violations relating to the withholding of exculpatory evidence. All those issues are cognizable in this Rule 32 process and cognizable by this court.”
Score one for Bryan, I thought.
Bryan told Garrett he was going to present evidence from experts. I was amazed when Garrett played dumb about the evidence. They had been trying to get the court and the State to look at these new experts and their reports for years.
“Was there not evidence of both of those—by experts on both sides at trial?” Garrett looked at Bryan smugly.
“Well, Your Honor, I guess two things. We believe that the State was wrong, and we believe that Mr. Payne was not qualified to make the kind of examination that these experts are qualified to make.”
“Well, that issue would be moot since that issue was raised in the trial of the case, wouldn’t it?”
I sighed. Why wouldn’t they just look at the evidence?
Bryan’s voice got a bit louder. “No. We can present evidence that establishes that the State is wrong.”
“What would be the nature of the testimony presented by your experts in this regard?”
Bryan stared at Garrett for a few seconds and then took a breath. Give it to him, Bryan, I thought.
“It will be basically that microscopic comparisons between the bullets recovered does not allow a determination that these bullets were fired from a single weapon. And as you recall, Your Honor, a single weapon was critical to the State’s theory at trial. This court found Mr. Hinton guilty and sentenced him to death based on the belief that recovered bullets from all three of these crimes came from a single weapon. We believe that that belief is clearly inaccurate, that the evidence will make that clear. Secondly—”
Garrett interrupted him. “Well, isn’t this just a differing of experts, one expert disagreeing with another expert? Of course we had that at the trial of the case.”
“No, Your Honor. I don’t believe that’s what this is.”
“Are these the ultimate experts in the whole wide universe that are going to testify to that?”
“Yes, sir. I believe they are.”
“What if we come up with some different experts later on that are even more recognized as the ultimate experts? That’s what we’re getting into—a swearing contest between experts.”
In that moment, I realized that the real killer could walk into this courtroom with pictures of himself committing the crime, and the judge wouldn’t accept the evidence. The attorney general would just say, “That’s an old story wrapped in a new cover.”
“Your Honor, I don’t think that’s our case. We have been trying frankly for the last eight years to have the State reexamine this evidence. We don’t believe that anybody from the Department of Forensic Sciences can now look at this evidence and come in here and tell you that these bullets were fired from one weapon or that they were fired from the weapon recovered from Mr. Hinton. We don’t think they can do it. We think actually that they had an opportunity to do it and declined to do so. We have some information that they looked at in 1994 and concluded that they couldn’t make a match any longer.
“This is not a battle of experts. We would welcome any expert the State could identify that the court appoints to look at this evidence and disagree with our findings. We have three experts from different places, because we want to make it clear that this is not a battle of experts. We think any competent, trained expert that looks at this evidence now is going to come to the same conclusion about how these bullets were not fired from a single weapon. They were not fired from the weapon recovered from Mr. Hinton. That’s our evidence.”
I watched amazed as Assistant Attorney General Houts argued with Bryan about Payne being a competent expert. At the time of my trial, they called him all sorts of names—expert wasn’t one of them. Bryan argued that the new evidence established my innocence, and this made the evidence allowed in a Rule 32 proceeding.
Houts turned to the judge. “To the extent that Mr. Stevenson is attempting to make an actual innocence claim that is constitutional, the U.S. Supreme Court does not recognize actual innocence as a constitutional claim through which you can bring a habeas corpus action.”
I knew a habeas corpus action was part of the federal appeals process that we would begin if I lost in all the state courts. I didn’t want to think about that. Bryan had told me the federal appeals process was extremely narrow and difficult.
Bryan cleared his throat. “I feel some need, Your Honor, to just kind of be real clear about what we’re saying here. And I can expect this court to do anything but hear me when I say this. But we believe this man is innocent, innocent, and that is why we think this evidence is so critical. And this is not like any standard Rule 32 case. It’s not even like a standard death penalty case.
“The temptation that the Court of Criminal Appeals will have to face if they hear an argument from the State of Alabama that this evidence should have been precluded on appeal, in my judgment, is nothing like the temptation to ignore the poss
ible execution of an innocent person. We believe this evidence is compelling. We believe it’s compelling and will be compelling to this court. We believe it ought to be compelling to the State. But we think we ought to have the right to present it.”
Judge Garrett was silent for a minute and then asked, “What makes this evidence so different from that evidence which was presented at trial except that it’s by different persons?”
Bryan explained that it was rare to have three different experts separately find the same thing and even rarer that several people look at evidence, find the same thing, and that thing is not what was presented at trial. He also pointed out that no one from the State was prepared to prove a match now or say that they could find exactly what was found in 1985.
“Let me say this,” began Judge Garrett. “Mr. Payne has been recognized or was recognized as an expert and testified both in civil and criminal courts all over the State.”
“Well, he was characterized by the State at trial, Your Honor, as a charlatan, as someone who didn’t know anything about this kind of testimony. He was mocked.”
“Oh, well, I see that on experts quite often by either side.”
“But you rarely see one, Your Honor, who’s legally blind, who could not operate the machine, and who had never been qualified for this kind of examination and this kind of case. And that’s the distinction.”
Garrett didn’t respond, so Bryan continued.
“What we have are experts or leaders in the association of firearms and tool mark examinations. Mr. Dillon was the head of the FBI in their unit for many years, its former past president for the Association of Firearm and Tool Mark Examiners. He’s taught all over the country, consults with the FBI, consults with the ATF.
“Mr. Emanuel and Mr. Cooper work mostly for the prosecution. They’ve worked for the United States military, the State of Texas. They work for Dallas County prosecutors regularly. These experts have testified and examined over two thousand cases. They’ve been qualified over two hundred times. They’re leaders in this field. And we’ve really spared no cost in getting the people we could identify as the best in the country, because we really wanted to make it clear to the court that this wasn’t about a mere dispute but about a critical piece of factual evidence on which this conviction stands.”
It should have been enough for Garrett. We had unimpeachable experts. Men who had every reason to find me guilty. Houts fought it the whole way. Garrett argued the State’s side as well. But Bryan never faltered. I had never seen him like this. God’s best lawyer was preaching the law at them like the law had never been preached at them before. I wished I’d had Bryan on my case in 1985. I would never have gone to death row. I probably would have never even gone to trial. It wasn’t fair that justice could be so arbitrary and the truth so hard for the State to admit. How could Garrett sit there and say Payne was a qualified expert? How could he in good conscience, when the State had argued the opposite?
Bryan didn’t back down an inch.
“What we’re saying, Your Honor, is that the State made a mistake. It’s a ‘made a mistake’ case. And what I hear the State to be arguing is that it’s too late. If they made a mistake, you can’t do anything about it. We don’t care about innocence, we don’t care about your evidence, we don’t care about the strength of your claim. It’s too late. We’re going to move on, and we’re just going to have this case move toward execution. What I’m saying is that that’s not what the law says, and it would be an unconscionable result. They made a mistake, and we think we can show that.”
They argued back and forth until lunch. The State didn’t think any of our claims should be allowed to be presented at this hearing. They just wanted Bryan to shut up and for me to go to the death chamber. Bryan persisted, and ultimately Garrett let the hearing happen, and we were allowed to present all our evidence and witnesses.
The State didn’t defend the fact that Bryan found worksheets that Higgins and Yates and McGregor hadn’t turned over to Perhacs that were full of question marks and hyphens and showed that they didn’t know what markings were on the bullets, and they certainly didn’t show the bullets from the victims matched the test bullets from my mom’s gun. They didn’t defend any of it. They didn’t think that they needed to test the bullets or the gun again. In their mind, none of this was allowed because it was time barred or it didn’t count as new evidence based on their obscure interpretation of the rules of appeal. I don’t think proof of innocence should ever be disregarded. Who are we if we allow that? What part of our system is working if an innocent man can be killed and no one cares because of rules that were made to be able to kill him quickly? Like it was some kind of game. The clock was ticking. Prove your innocence in five, four, three, two, one … too late now … off with your head.
I was taken back to Holman after the hearing. Bryan was brilliant in court, but it was like he was talking to a wall. They wanted me dead. Guilty or innocent, they just wanted to kill me. I hadn’t been able to say anything to my mom or Lester before I was taken away from the hearing. My mom had her head resting on Lester’s shoulder and her eyes closed. She was safe. Lester would keep her safe. I knew Bryan would talk to them and offer encouraging words, just as he always offered them to me. I should have been excited, but I didn’t have a lot of faith. Our evidence was compelling, but it was the same old cast of characters who had put me away to begin with, plus the assistant attorney general who thought I was nothing but a waste of time. I went back to my cell and ignored the questions of the guys asking how it went. Even the guards wanted to know and seemed hopeful that I might get released. Some nights, however, just called for silence and prayer. And on the row, we knew not to push. There were a lot of bad days and a lot of bad nights, and if someone didn’t want to talk, you backed off. Survival was at stake, and we cared enough for each other to let each other survive in our own way.
I woke up to a bootleg book club discussion. The thought of book club made me sad. When I thought of it, all I could think of was those empty chairs in the library as they killed us off one by one. First Larry, then Horsley; Henry, then Brian, and finally Victor. Nothing but empty chairs with every execution. After they had closed us down, the books we had read, plus some new ones, circulated around the tiers. There was no meeting in the library, but guys would talk about the books, yelling from cell to cell. If you hadn’t read the book, you just listened. If you had read the book, you could give ideas, offer opinions. And always questions got thrown to me, as if I were the book club teacher. I didn’t know the answers, and I told the guys that. There was no right or wrong in book club. You just had your own thoughts and interpretations and beliefs and ideas. It was new for a lot of guys. Giving their honest opinion, and having that listened to and respected, was a new kind of drug that traveled around the row. Matters of the heart were discussed. Politics were discussed. Racism and poverty were discussed. Violence was discussed. And if you had already discussed the book, you let others have the discussion, let them have a chance to talk their way through the big ideas.
“Ray! You listening, Ray?” It was a guy named Jimmy Dill. Jimmy was a former drug addict who had been going to nursing school before he was convicted of robbing and killing a man for cocaine and a couple of hundred bucks. He had a broad forehead and brown eyes that were spread just a little too far apart on his face. It made him look a bit unsure of himself when he talked. Jimmy loved to eat, and all day long he would talk about his favorite foods. Okra. Biscuits. Fried chicken. It was enough to drive you crazy. But Jimmy had a kindness about him that made it hard to imagine him shooting someone in the back of the head.
“What you need, Jimmy?” I asked.
“I want to read that book To Kill a Mockingbird. Do you have it?”
“I have it.”
“Can you send it my way with the guards next time they come round?” he asked.
“I can.”
“Okay. Johnson wants to read it too; we’re going to talk about it after.
I’ve heard it’s good. I don’t know if that white boy is gonna understand it, but we’ll see what he has to say.”
I heard a few of the guys laugh. This was how it worked, and the book or books would get passed around, and then one day, without any planning, someone would yell, “How about that Scout girl?” and the discussion would begin.
That summer was hot and slow. We were waiting for word back from Judge Garrett about my Rule 32 petition, but there was nothing but silence. I couldn’t imagine it would take him more than the summer to rule. He was the judge in the original trial. He knew the case inside and out. Where I used to pray that the truth would come out, now I prayed that the truth would be heard. The truth was proven in that hearing. I was innocent. I had been set up. I had been thrown away. I needed Garrett to do the right thing. I needed him to do the honorable thing. I was ready to get out.
Lester’s visit in August had to be the hottest day of the year. It felt like it was 120 degrees in the shade, and without air, I thought we were all going to melt into a puddle on the visiting yard. I tried to keep my visiting whites clean and fresh, but I was sweating so hard that I decided to cut the visit short just so he and Sia could get back to the air-conditioning in the car.
“Lester, before you go, one more thing,” I said.
“What’s that? What do you need?” Lester got me everything I needed even before I needed it. He made sure I never went without commissary or a television and radio or extra socks and shorts.
“I need my birth certificate.”
“Your what?”
“I’m going to need my birth certificate for when I get out of here. I won’t have any identification. I’m going to need some, and all I’m going to have to prove I am who I am is my birth certificate.”
The Sun Does Shine Page 22
