Just Mercy (9 page)

“There were days when I couldn’t breathe,” Walter recalled later. “I hadn’t ever experienced anything like this before in my life. I was around all these murderers, and yet it felt like sometimes they were the only ones trying to help me. I prayed, I read the Bible, and I’d be lying if I didn’t tell you that I was scared, terrified just about every day.”

Ralph Myers was faring no better. He had also been charged with capital murder in the death of Ronda Morrison, and his refusal to continue cooperating with law enforcement meant that he was sent to death row, too. He was placed on a different tier to prevent contact with McMillian. Whatever advantage Myers thought he could gain by saying he knew something about the Morrison murder was clearly gone now. He was depressed and sinking deeper into an emotional crisis. From the time he was burned as a child, he had always feared fire, heat, and small spaces. As the prisoners talked more and more about the details of the Evans’s execution and Wayne Ritter’s impending execution, Myers became more and more distraught.

On the night of the Ritter execution, Myers was in full crisis, sobbing in his cell. There is a tradition on death row in Alabama that, at the time scheduled for the execution, the condemned prisoners bang on their cell doors with cups in protest. At midnight, while all the other prisoners banged away, Myers curled up on the floor in the corner of his cell, hyperventilating and flinching with each clang he heard. When the stench of burned flesh that many on the row claimed they could smell during the execution wafted into his cell, Myers dissolved. He called Tate the next morning and told him that he would say whatever he wanted if he would get him off death row.

Tate initially justified keeping Myers and McMillian on death row
for safety reasons. But Tate immediately picked Myers up and brought him back to the county jail the day after the Ritter execution. Tate didn’t appear to discuss with anyone the decision to move Myers off death row. Ordinarily, the Alabama Department of Corrections couldn’t just put people on death row or let them off without court orders or legal filings—and certainly no prison warden could do so on his own. But nothing about the prosecution of Walter McMillian was turning out to be ordinary.

Once removed from death row and back in Monroe County, Myers affirmed his initial accusations against McMillian. With Myers back as the primary witness and Bill Hooks ready to say that he saw Walter’s truck at the crime scene, the district attorney believed that he could proceed against McMillian. The case was scheduled for trial in February 1988.

Ted Pearson had been the district attorney for nearly twenty years. He and his family had lived in South Alabama for generations. He knew the local customs, values, and traditions well and had put them to good use in the courtroom. He was getting older and had plans to retire soon, but he hated that his office had been criticized for failing to solve the Morrison murder more quickly. Pearson was determined to leave office with a victory and likely saw the prosecution of Walter McMillian as one of the most important cases of his career.

In 1987, all forty elected district attorneys in Alabama were white, even though there are sixteen majority-black counties in the state. When African Americans began to exercise their right to vote in the 1970s, there was deep concern among some prosecutors and judges about how the racial demographics in some counties would complicate their reelections. Legislators had aligned counties to maintain white majorities for judicial circuits that included a majority-black county. Still, Pearson had to be more mindful of the concerns of black residents than at the beginning of his career—even if that mindfulness didn’t translate into any substantive changes during his tenure.

Like Tate, Pearson had heard from many black residents that they
believed Walter McMillian was innocent. But Pearson was confident he could win a guilty verdict despite the suspect testimony of Ralph Myers and Bill Hooks and the strong doubts in the black community. His one lingering concern may have been a recent United States Supreme Court case that threatened a longstanding feature of high-profile criminal trials in the South: the all-white jury.

When a serious felony case went to trial in a county like Monroe County, which was 40 percent black, it was not uncommon for prosecutors to exclude all African Americans from jury service. In fact, twenty years after the civil rights revolution, the jury remained an institution largely unchanged by the legal requirements of racial integration and diversity. As far back as the 1880s, the Supreme Court ruled in
Strauder v. West Virginia
that excluding black people from jury service was unconstitutional, but juries remained all-white for decades afterward.
In 1945, the Supreme Court upheld a Texas statute that limited the number of black jurors to exactly one per case. In Deep South states, jury rolls were pulled from voting rolls, which excluded African Americans. After the Voting Rights Act passed, court clerks and judges still kept the jury rolls mostly white through various tactics designed to undermine the law.
Local jury commissions used statutory requirements that jurors be “intelligent and upright” to exclude African Americans and women.

In the 1970s, the Supreme Court ruled that underrepresentation of racial minorities and women in jury pools was unconstitutional, which in some communities at least led to black people being summoned to the courthouse for possible selection as jurors (if not selected). The Court had repeatedly made clear, though, that the Constitution does not require that racial minorities and women actually
serve
on juries—it only forbids excluding jurors on the basis of race or gender.

For many African Americans, the use of wholly discretionary peremptory strikes to select a jury of twelve remained a serious barrier
to serving on a jury.
In the mid-1960s, the Court held that using peremptory strikes in a racially discriminatory manner was unconstitutional, but the justices created an evidentiary standard for proving racial bias that was so high that no one had successfully challenged peremptory strikes in twenty years.
The practice of striking all or almost all African American potential jurors continued virtually unchanged after the Court’s ruling.

So defendants like Walter McMillian, even in counties that were 40 or 50 percent black, frequently found themselves staring at all-white juries, especially in death penalty cases. Then, in 1986, the Supreme Court ruled in
Batson v. Kentucky
that prosecutors could be challenged more directly about using peremptory strikes in a racially discriminatory manner, giving hope to black defendants—and forcing prosecutors to find more creative ways to exclude black jurors.

Walter was learning some of this history as the months passed. Everyone on death row wanted to advise him, and everyone had a story to tell. The novelty of a pretrial capital defendant on death row seemed to motivate other prisoners to get in Walter’s ear every day. Walter tried to listen politely, but he’d already decided to leave the lawyering to his lawyers. That didn’t mean that he wasn’t very concerned about what he was hearing from folks on the row, especially about race and the kind of jury he would get.

Nearly everyone on death row had been tried by an all-white or nearly all-white jury. Death row prisoner Jesse Morrison told Walter that his prosecutor in Barbour County had used twenty-one out of twenty-two peremptory strikes to exclude all the black people in the jury pool. Vernon Madison from Mobile said that the prosecutor struck all ten black people qualified for jury service in his case. Willie Tabb from Lamar County, Willie Williams from Houston County, Claude Raines from Jefferson County, Gregory Acres from Montgomery County, and Neil Owens from Russell County were among the many black men on death row who had been tried by all-white juries after prosecutors struck all of the African American prospective jurors.
Earl McGahee was tried by an all-white jury in Dallas County, even though the county is 60 percent African American. In Albert Jefferson’s case, the prosecutor had organized the list of prospective jurors summoned to court into four groups of roughly twenty-five people each, identified as “strong,” “medium,” “weak,” and “black.” All twenty-six black people in the jury pool could be found on the “black” list, and the prosecutors excluded them all. Joe Duncan, Grady Bankhead, and Colon Guthrie were among some of the white condemned prisoners who told a similar story.

District attorney Ted Pearson had to be concerned about the new
Batson
decision; he knew veteran civil rights lawyers like Chestnut and Boynton would not hesitate to object to racially discriminatory jury selection, even though he wasn’t too worried about Judge Robert E. Lee Key taking those objections seriously. But the extraordinary publicity surrounding the Morrison murder gave Pearson another idea.

In high-profile cases, it’s fairly standard for defense lawyers to file a motion to change venue—to move the case from the county where the crime took place to a different county where there is less pretrial publicity and sentiment to convict. The motions are almost never granted, but every now and then an appellate court finds that the atmosphere in a county had been so prejudicial that the trial should have been moved. In Alabama, asking to change venue was an essentially futile act. Alabama courts had almost never reversed a conviction because the trial judge had refused to change venue.

When the court scheduled a hearing in October 1987 on pretrial motions in Walter’s case, Chestnut and Boynton showed up with no expectation that any of their motions would be granted. They were more focused on preparing for trial, which was scheduled to begin in February 1988. The pretrial motion hearing was a formality.

Chestnut and Boynton presented their change-of-venue motion. Pearson stood up and said that due to the extraordinary pretrial coverage of the Morrison murder, he agreed that the trial should be moved. Judge Key nodded sympathetically; Chestnut, who knew his way
around the Alabama courts, was sure something bad was about to happen. He was also certain the judge and the DA had already conspired.

“The defendant’s motion to change venue is granted,” the judge ruled.

When the judge suggested that it be moved to a neighboring county so that witnesses wouldn’t have far to travel, Chestnut remained hopeful. Almost all of the bordering counties had fairly large African American populations: Wilcox County was 72 percent black; Conecuh was 46 percent black; Clarke County was 45 percent black; Butler 42 percent; Escambia was 32 percent black. Only affluent Baldwin County to the south, with its beautiful Gulf of Mexico beaches, was atypical, with an African American population of just 9 percent.

The judge took very little time deciding where the trial should be moved.

“We’ll go to Baldwin County.”

Chestnut and Boynton immediately complained, but the judge reminded them it was their motion. When they sought to withdraw the motion, the judge said he couldn’t authorize a trial in a community where so many people had formed opinions about the accused. The case would be tried in Bay Minette, the seat of Baldwin County.

The change of venue was disastrous for Walter. Chestnut and Boynton knew there would be very few, if any, black jurors. They also understood that while jurors from Baldwin County might be less personally connected to Ronda Morrison and her family, it was an extremely conservative county that had made even less progress leaving behind the racial politics of Jim Crow than its neighbors.

Given what he’d heard from other death row prisoners about all-white juries, Walter worried about the venue change as well. But he still put his faith in this fact: No one could hear the evidence and believe that he committed this crime. He just didn’t believe that a jury, black or white, could convict him on the nonsensical story told by Ralph Myers—not when he had an unquestionable alibi with close to a dozen witnesses.

The February trial was postponed. Once again, Ralph Myers was having second thoughts. After months in the county jail, away from death row, Myers again realized he didn’t want to implicate himself in a murder he had not committed. He waited until the morning that the trial was set to begin before he told investigators that he could not testify because what they wanted him to say was not true. He tried to wrangle for more favorable treatment but decided that there was no punishment he was willing to accept for a murder he hadn’t committed.

Myers’s refusal to cooperate got him sent back to death row. Back at Holman, it wasn’t long before he again showed serious emotional and psychological distress. After a couple of weeks, prison officials were so concerned that they sent him to the state hospital for the mentally ill. The Taylor Hardin Secure Medical Facility in Tuscaloosa did all of the diagnostic and assessment work for courts managing people accused of crimes who might be incompetent to stand trial due to mental illness. It had frequently been criticized by defense lawyers for almost never finding serious mental disabilities that would prevent defendants from going to trial.

Myers’s time at Taylor Hardin did very little to change his predicament. He hoped that he might be returned to the county jail after his thirty-day stint at the hospital, but instead he was returned to death row. Realizing he could not escape the situation he’d created for himself, Myers told investigators he was ready to testify against McMillian.

A new trial date was scheduled for August 1988. Walter had been on death row for over a year. As hard as he had tried to adjust, he couldn’t accept the nightmare his life had become. Although he was nervous, he had been convinced that he was going home back in February, when the first trial was scheduled. His lawyers seemed happy that Myers was struggling and told Walter it was a good sign when the trial was continued because Myers refused to testify. But it meant another six months on death row for Walter, and he couldn’t see anything encouraging about that. When they finally moved him to the Baldwin County Jail in Bay Minette for the August trial, Walter left
death row confident he’d never return. He had become friends with several men on the row and was surprised by how conflicted he felt about leaving them, knowing what they would soon face. Yet when they called his name to the transfer office, he lost no time gathering his things and getting in the van to leave.