Just Mercy (16 page)

In capital cases, a motion for a new trial is routinely filed but rarely granted. But if the defendant alleges new evidence that could lead to a different outcome in the case—or that undermines the reliability of the trial—there is typically a hearing. After speaking with Darnell, I thought about refiling his assertions before the case went up on appeal and maybe, just maybe, we could persuade local officials to retreat from the case against Walter. I made a motion to reconsider the denial of a new trial for Mr. McMillian. I immediately got an affidavit from Darnell stating that Hooks’s testimony was a lie. I took the risk of talking to a few local lawyers about whether the new prosecutor might acknowledge that the conviction was unreliable and support a new trial if there was compelling new evidence.

Several people had suggested that Tom Chapman, the new Monroe County district attorney and a former criminal defense attorney, would be fairer and more sympathetic to someone wrongly convicted than lifelong prosecutor Ted Pearson. After Pearson’s long tenure as D.A., Chapman’s election represented something of a new era. He was in his forties and had talked about modernizing law enforcement in the region. Some said that he was ambitious and might want to run for statewide office someday. I also discovered that he had represented Karen Kelly in a prior proceeding, which told me that he was already familiar with the case. I was hopeful.

I was still sorting out how to proceed when Darnell called me at my office.

“Mr. Stevenson, you have to help. They arrested me this morning and took me to the jail. I just got out on bond.”

“What?”

“I asked them what I had done. They told me I was being charged with perjury.” He sounded terrified.

“Perjury? Based on what you told Mr. McMillian’s lawyers a year ago? Have they come to interview you or talk to you since we got your
statement? You were supposed to let me know if you heard from them.”

“No, sir. I haven’t heard from any of them. They just came and arrested me and told me I had been indicted for perjury.”

I hung up with Darnell, shocked and furious. It was unheard of to indict someone for perjury without any investigation or compelling evidence to establish that a false statement had been made. Police and prosecuters had found out that Darnell was talking to us and they decided to punish him for it.

A few days later, I called the new D.A. to set up a meeting.

On my way to his office, I decided to give him a chance to explain what was going on, instead of angrily complaining about the insanity of indicting someone for perjury because he had contradicted a State’s witness. I decided to wait until after my meeting before filing my stack of motions. This was my first meeting with anyone associated with Walter’s prosecution, and I didn’t want to begin with an angry accusation. I had allowed myself to believe that the people who had prosecuted Walter were just misguided, possibly incompetent. I knew some of them were bigoted and abusive, but I guess I held out the hope that they could be reoriented. Indicting Darnell was a worrisome signal that they were willing to threaten and intimidate people.

The Monroe County courthouse is situated in the heart of downtown Monroeville. I drove into town, parked, and entered the courthouse looking for the district attorney’s office. On my only other trip to the courthouse a month earlier, I had gone to the clerk’s office to pick up files and the staff had asked me where I was from. When I said Montgomery, they launched into a lecture about Monroeville’s prominence as a result of Harper Lee and her famous novel. I remember how the clerk had chatted me up.

“Have you read the book? It’s a wonderful story. This is a famous place. They made the old courthouse a museum, and when they made the movie Gregory Peck came here. You should go over there and stand where Mr. Peck stood—I mean, where Atticus Finch stood.”

She giggled with excitement, although I imagine she said the same
thing to every out-of-town attorney who wandered in. She continued talking enthusiastically about the story until I promised to visit the museum as soon as I could. I refrained from explaining that I was too busy working on the case of an innocent black man the community was trying to execute after a racially biased prosecution.

During this trip I was in a different frame of mind. The last thing I was interested in was a fictional story about justice. I walked through the courthouse until I found the district attorney’s office. I announced myself to the secretary, who eyed me suspiciously before directing me into Chapman’s office. He walked over to shake my hand.

Chapman started off by saying, “Mr. Stevenson, lots of people want to meet you. I told them you were coming down but decided that just you and I should talk.” It didn’t surprise me that word had gotten around and that people were talking about Walter’s new attorney. I had talked to enough people in the community to know that people would be discussing my efforts on Walter’s behalf. My guess is that Judge Key had already characterized me as misguided and uncooperative simply because I didn’t get off the case, as he had directed.

Chapman had a medium build, curly hair, and glasses that suggested he didn’t mind looking like someone who spent time reading and studying. I’d met prosecutors who dressed and presented like they would rather be out hunting ducks than running a law office, but Chapman was professional and courteous and approached me with a pleasant demeanor. I was intrigued that he would immediately give voice to the concerns of other people in law enforcement and was initially encouraged that he meant for us to have a candid conversation free of distractions and posturing.

“Well, I appreciate that,” I said. “I’m very concerned about this McMillian case. I’ve read the record, and to be honest I have serious doubts about his guilt and the reliability of this conviction.”

“Well, this was a big case, there’s no doubt about that. You do understand that I didn’t have anything to do with the prosecution, don’t you?”

“Yes, I do.”

“This was one of the most outrageous crimes in Monroe County history, and your client made a lot of people here extremely angry. People are still angry, Mr. Stevenson. There’s not enough bad that can happen to Walter McMillian for some of them.”

This was a disappointing beginning—he seemed completely convinced of Walter’s guilt. But I pressed on.

“Well, it was an outrageous, tragic crime, so anger is understandable,” I replied. “But it doesn’t accomplish anything to convict the wrong person. Whether Mr. McMillian has done anything wrong is what the trial should resolve. If the trial is unfair, or if witnesses have given false testimony, then we can’t really know whether he’s guilty or not.”

“Well, you may be the only person right now who thinks the trial was unfair. Like I said, I wasn’t involved in the prosecution.”

I was becoming frustrated, and Chapman probably saw me shift in my seat. I thought about the dozens of black people I’d met who had complained bitterly about Walter’s prosecution, and I was starting to see Chapman as either naive or willfully indifferent—or worse. I tried unsuccessfully not to let my disappointment show.

“I’m not the only person with questions about this case, Mr. Chapman. There’s a whole community of people, some of whom claim to have been with Walter McMillian miles away when the crime was committed, who believe in his innocence. There are people for whom he’s worked who are absolutely convinced that he did not commit this crime.”

“I’ve talked to some of those people,” Chapman responded, “and they can only have uninformed opinions. They don’t have facts. Look, I can tell you right now that nobody cares who slept with Karen Kelly. There is evidence that implicates Walter McMillian for this murder, and my job is to defend this conviction.” He was becoming more argumentative, and his voice was rising. The calm and curious look he had initially given me was shifting into anger and disgust.

“Well, you’ve indicted someone for perjury for contradicting the
state’s case. Do you intend to prosecute everyone who challenges the evidence in this case?”

My voice was now rising in exactly the way I wanted to avoid, but I was provoked by his attitude. “Alabama case law is clear that a perjury charge can’t be filed in the absence of clear and convincing evidence that a false statement has been made,” I went on. “A perjury indictment seems like a tactic designed to intimidate and discourage people from coming forward with evidence that contradicts the State’s case. The charge against Mr. Houston seems really inappropriate, Mr. Chapman, and legally indefensible.”

I knew I was lecturing him and knew he didn’t like it, but I wanted him to know that we were going to defend Walter in a serious way.

“Are you representing Darnell Houston now, too?”

“Yes, I am.”

“Well, I’m not sure you can do that, Mr. Stevenson. I think you might have a conflict there,” he said, and then his voice shifted from argumentative to blandly matter-of-fact. “But don’t worry, I may drop the perjury charges against Houston. Now that the judge has denied your motion to reopen the case, I don’t have any interest in pursuing charges against Darnell Houston. But I do want people to know that if they make false statements concerning this case, they are going to be held accountable.”

I was confused and a little stunned.

“What are you talking about? The motion to reconsider has been denied?”

“Yes, the judge has already denied your motion. You must not have gotten your copy of his order. He’s down in Mobile now, so sometimes there are mail issues.”

I tried to conceal my surprise about the court’s ruling on the motion without even permitting a hearing. I asked, “So you have no interest in investigating what Darnell Houston is saying about the possibility that the State’s main witness may be lying?”

“Ralph Myers is the State’s main witness.”

It was clear that Chapman had looked more deeply into the case than he had initially claimed.

“Without Hooks’s testimony, the conviction wouldn’t be valid,” I said, leveling my voice. “Under the State’s theory, Myers is an accomplice, and state law requires confirmation of accomplice testimony, which can only come from Hooks. Mr. Houston says that Hooks is lying, which makes his testimony a critical issue that should be heard in court.”

I knew I was right. The law was as clear as it possibly could be on this question. But I also knew that I was talking to someone who didn’t care what the law said. I knew that what I was saying wouldn’t persuade Chapman, but I felt the need to say it anyway.

Chapman stood up. I could tell he was annoyed by my lecturing and legal arguments, and I was pretty sure he thought I was being pushy. “That sounds like an issue you’ll need to raise on appeal, Mr. Stevenson. You can tell Mr. Houston that the charges against him are being dropped. I can do that for y’all, but that’s about it.”

His tone was dismissive, and when he turned his back to me I knew he’d ended the meeting and was now eager to get me out of his office.

I left his office extremely frustrated. Chapman had not been unfriendly or hostile. Yet his indifference to McMillian’s innocence claim was hard for me to accept. Reading the record had shown me that there were people who were willing to ignore evidence, logic, and common sense to convict someone and reassure the community that the crime had been solved and the murderer punished. But talking face-to-face with someone about the case made the irrational thinking swirling around Walter’s conviction much, much harder to accept.

Chapman hadn’t prosecuted the case, and I had hoped that he might not want to defend something so unreliable, but it was clear that he was locked into this narrative just like everyone else who had been involved. I’d seen the abuse of power in many cases before, but there was something especially upsetting about it here, where not only a single defendant was being victimized but an entire community as well. I filed my stack of motions just to make sure that if they didn’t
dismiss the charges they knew we would fight them. Walking down the hallway to my car I saw yet another flyer about the next production of
To Kill a Mockingbird
, which just added to my outrage.

Darnell had remained home after he posted bond. I stopped by his house to discuss my meeting with the D.A. He was thrilled to hear that the charges against him would be dropped, but he was still shaken by the whole experience. I explained that what the State had done to him was illegal and that we could pursue a civil action against them, but he had no interest in that. I didn’t actually think a civil suit was a good idea since it would just leave him vulnerable to more harassment, but I didn’t want him to think I was unwilling to fight on his behalf.

“Mr. Stevenson, all I wanted to do is tell the truth. I can’t go to jail, and I’ll be honest—these folks have scared me.”

“I understand,” I said, “but what they did is illegal and I want you to know you have done nothing wrong. They’re the ones who have acted very, very inappropriately. They’re trying to intimidate you.”

“Well, it’s working. What I told you is true, and I stand by it. But I can’t have these folks coming after me.”

“Well, the judge has denied our motion, so you don’t have to testify or come to court at this point. Let me know if you have any more problems with them or if they come to speak with you about this. You can tell people that I’m your lawyer and refer them to me, okay?”

“Yes, okay. But does that mean you are my lawyer?”

“Yes, I’ll represent you if anyone creates any issues behind what you’ve disclosed.” He looked a little relieved but was still pretty rattled when I left.

I got in my car with the sinking realization that if everyone who tried to help us on this case was going to be threatened, it would be very difficult to prove Walter’s innocence. If his case wasn’t overturned on direct appeal, we’d have a chance to file a postconviction petition later, and we would need new evidence, new witnesses, and
new facts to prove Walter’s innocence. Based on the experience with Darnell, this would be extremely challenging. I decided not to worry about it now and turned my attention to the appeal. With the reconsideration denied, the appeal brief was due in twenty-eight days. I wasn’t even sure how much time had elapsed since the judge’s ruling, as I had never received the order.