By now the officials were angry. I looked through the window and saw the warden radio for more officers to come into the area. Someone else gestured for the officer to go back into the room and bring the family members out. I heard them tell her not to come out without the family. The officer looked frantic. Despite her uniform, she’d always seemed a little out of place at the prison, and she looked especially uncomfortable now. She had once volunteered to me that her grandson wanted to be a lawyer and that she was hoping he would. She looked around the room nervously and then came up to me. She had tears in her eyes and looked at me desperately.
“Please, please, help me get these people out of here, please.” I began to worry that things were going to get ugly, but I couldn’t sort out what to do. It seemed impossibly hard for them to expect people to just calmly abandon someone they loved so that he could be executed. I wanted to prevent things from getting out of control but felt powerless to do anything.
By this time, Herbert’s wife had started saying loudly, “I’m not going to leave you.”
Herbert had made a peculiar request the week before the execution. He said that if he was executed as scheduled, he wanted me to get the prison to play a recording of a hymn, “The Old Rugged Cross,” as he walked to the electric chair. I had been slightly embarrassed to raise the request when I spoke with prison officials, but to my utter amazement they had agreed to do it.
I remembered as a child that they always sang this hymn at somber moments during church services, on Communion Sundays, and Good Friday. It was sad like few other hymns I’d heard. I don’t know why exactly, but I started to hum it as I saw more uniformed officers enter the vestibule outside the visitation room. It seemed like something that might help. But help what?
After a few minutes, the family joined me. I went over to Herbert’s wife as she held him tightly, sobbing softly. I whispered to her, “We have to let him go.” Herbert saw the officers lining up outside, and he pulled away from her slowly and told me to take her out of the room.
Herbert’s wife clung to me and sobbed hysterically as I led her out of the visitation room with her family tearfully following. The experience was heartbreaking, and I wanted to cry. But I just kept humming instead.
The prison had made arrangements for me to go back to the death chamber in about an hour to be with Herbert before the execution. Although I had worked on several death penalty cases with clients who had execution dates, I’d never before been present at an execution. In the cases where I had actually been counsel for the condemned while I was in Georgia, we’d always won stays of execution. I grew anxious thinking about witnessing the spectacle of a man being electrocuted, burned to death in front of me. I’d been so focused on obtaining the stay and then on what to say to Herbert when I got to the prison that I hadn’t actually thought about witnessing the execution. I no longer wanted to be there for that, but I didn’t want to abandon Herbert. To leave him in a room alone with people who wanted him dead made me realize that I couldn’t back out. All of a sudden the room felt incredibly hot, like there was no air anywhere. The visitation officer came up to me after I had escorted the family out and whispered in my ear, “Thank you.” I was vexed by her thinking of me as an accomplice and didn’t know what to say.
When there were less than thirty minutes before the execution, they took me back to the cell next to the execution chamber deep inside the prison where they were holding Herbert until it was time to put him in the electric chair. They had shaved the hair off his body to facilitate a “clean” execution. The state had done nothing to modify the electric chair since the disastrous Evans execution. I thought about the botched execution of Horace Dunkins a month earlier and became even more distraught. I had tried to read up on what should happen at an execution; I had some misguided thought that I could intervene if they did something incorrectly.
Herbert was much more emotional when he saw me than he’d been in the visitation room. He looked shaken, and it was clear that he was upset. It must have been humiliating to be shaved in preparation for an execution. He looked worried, and when I walked into the chamber he grabbed my hands and asked if we could pray, and we did. When we were done, his face took on a distant look and then he turned to me.
“Hey, man, thank you. I know this ain’t easy for you either, but I’m grateful to you for standing with me.”
I smiled and gave him a hug. His face sagged with an unbearable sadness.
“It’s been a very strange day, Bryan, really strange. Most people who feel fine don’t get to think all day about this being their last day alive with certainty that they will be killed. It’s different than being in Vietnam … much stranger.”
He nodded at all the officers who were milling about nervously. “It’s been strange for them, too.
“All day long people have been asking me, ‘What can I do to help you?’ When I woke up this morning, they kept coming to me, ‘Can we get you some breakfast?’ At midday they came to me, ‘Can we get you some lunch?’ All day long, ‘What can we do to help you?’ This evening, ‘What do you want for your meal, how can we help you?’ ‘Do you need stamps for your letters?’ ‘Do you want water?’ ‘Do you want coffee?’ ‘Can we get you the phone?’ ‘How can we help you?’ ”
Herbert sighed and looked away.
“It’s been so strange, Bryan. More people have asked me what they can do to help me in the last fourteen hours of my life than ever asked me in the years when I was coming up.” He looked at me, and his face twisted in confusion.
I gave Herbert one last long hug, but I was thinking about what he’d said. I thought of all the evidence that the court had never reviewed about his childhood. I was thinking about all of the trauma and difficulty that had followed him home from Vietnam. I couldn’t help but ask myself, Where were these people when he really needed them? Where were all of these helpful people when Herbert was three and his mother died? Where were they when he was seven and trying to recover from physical abuse? Where were they when he was a young teen struggling with drugs and alcohol? Where were they when he returned from Vietnam traumatized and disabled?
I saw the cassette tape recorder that had been set up in the hallway and watched an officer bring over a tape. The sad strains of “The Old Rugged Cross” began to play as they pulled Herbert away from me.
There was a shamefulness about the experience of Herbert’s execution I couldn’t shake. Everyone I saw at the prison seemed surrounded by a cloud of regret and remorse. The prison officials had pumped themselves up to carry out the execution with determination and resolve, but even they revealed extreme discomfort and some measure of shame. Maybe I was imagining it but it seemed that everyone recognized what was taking place was wrong. Abstractions about capital punishment were one thing, but the details of systematically killing someone who is not a threat are completely different.
I couldn’t stop thinking about it on the trip home. I thought about Herbert, about how desperately he wanted the American flag he earned through his military service in Vietnam. I thought about his family and about the victim’s family and the tragedy the crime created for them. I thought about the visitation officer, the Department of Corrections officials, the men who were paid to shave Herbert’s body so that he could be killed more efficiently. I thought about the officers who had strapped him into the chair. I kept thinking that no one could actually believe this was a good thing to do or even a necessary thing to do.
The next day there were articles in the press about the execution. Some state officials expressed happiness and excitement that an execution had taken place, but I knew that none of them had actually dealt with the details of killing Herbert. In debates about the death penalty, I had started arguing that we would never think it was humane to pay someone to rape people convicted of rape or assault and abuse someone guilty of assault or abuse. Yet we were comfortable killing people who kill, in part because we think we can do it in a manner that doesn’t implicate our own humanity, the way that raping or
abusing someone would. I couldn’t stop thinking that we don’t spend much time contemplating the details of what killing someone actually involves.
I went back to my office the next day with renewed energy. I picked up my other case files and made updated plans for how to assist each client to maximize the chance of avoiding an execution. Eventually, I recognized that all my fresh resolve didn’t change much—I was really only trying to reconcile myself to the realities of Herbert’s death. I was comforted by the exercise just the same. I felt more determined to recruit staff and obtain resources to meet the growing challenges of providing legal assistance to condemned people. Eva and I talked about a few people who had expressed interest in joining our staff. There was some new financial support possible from a foundation, and that afternoon we finally received the office equipment we had ordered. By the end of the day, I was persuaded things would improve, even while I felt newly burdened by the weight of it all.
Chapter Five
Of the Coming of John
“It would have been so much easier if he had been out in the woods hunting by himself when that girl was killed.” Armelia Hand, Walter McMillian’s older sister, paused while the crowd in the small trailer called out in affirmation. I sat on a couch and looked out at the nearly two dozen family members who were staring at me as Armelia spoke.
“At least then we could understand how it might be possible for him to have done this.” She paused and looked down at the floor of the room where we had gathered.
“But because we were standing next to him that whole morning … We know where he was.… We know what he was doing!” People hummed in agreement as her voice grew louder and more distraught. It was the kind of wordless testimony of struggle and anguish I heard all the time growing up in a small rural black church.
“Just about everybody in here was standing next to him, talking to him, laughing with him, eating with him. Then the police come along months later, say he killed somebody miles away at the same time we were standing next to him. Then they take him away when you know it’s a lie.”
She was now struggling to speak. Her hands were trembling and the emotion in her voice was making it hard to get her words out.
“We were with him all day! What are we supposed to do, Mr. Stevenson? Tell us, what are we supposed to do with that?”
Her faced twisted in pain. “I feel like I’ve been convicted, too.”
The small crowd responded to each statement with shouts of “Yes!” and “That’s right!”
“I feel like they done put me on death row, too. What do we tell these children about how to stay out of harm’s way when you can be at your own house, minding your own business, surrounded by your entire family, and they still put some murder on you that you ain’t do and send you to death row?”
I sat on the crowded sofa in my suit, staring into the face of a lot of pain. I hadn’t expected to have such an intense meeting when I arrived. Folks were desperate for answers and trying to reconcile themselves to a situation that made no sense. I was struggling to think of something appropriate to say when a younger woman spoke up.
“Johnny D could have never done this no kind of way, whether we was with him or not,” she said, using the nickname Walter’s family and friends had given him. “He’s just not like that.”
The younger woman was Walter’s niece. She continued with her rebuttal to the very idea that Walter would need an alibi, which seemed to generate support among the crowd.
I was relieved to have the pressure off me for a moment, as Walter’s large family seemed to be moving toward some sort of debate over whether Walter’s character rendered an alibi unnecessary—or even insulting. It had been a long day. I was no longer sure what time it was, but I knew it was very late, and I was wearing down. I’d spent several intense hours on death row earlier in the day with Walter going over his trial transcript. Before my meeting with Walter, I spent time with other new clients on the row. Their cases weren’t active, and there were no deadlines on the horizon, but I hadn’t seen them since the Richardson execution and they had been anxious to talk.
Now that Walter’s case record was complete, appeal pleadings would be due soon, and time was critical. I should have returned to Montgomery directly from the prison, but Walter’s family wanted to meet, and since they were less than an hour from the prison I had promised to come to Monroeville.
Walter’s wife, Minnie Belle McMillian, and his daughter Jackie were waiting patiently when I pulled up to the McMillians’ dilapidated house in Repton, which was off the main road leading into Monroeville. Walter had told me I would know I was close when I passed a cluster of liquor stores on the county line between Conecuh and Monroe counties. Monroe County is a “dry county” where no alcoholic beverages can be sold; for the convenience of its thirsty citizens, several package stores marked the boundary with Conecuh County. Walter’s house was just a few miles from the county line.
I pulled into the driveway and was surprised at the profound disrepair; this was a poor family’s home. The front porch was propped on three cinder blocks piled precariously beneath wood flooring that showed signs of rot. The blue window panes were in desperate need of paint, and a makeshift set of stairs that didn’t connect to the structure was the only access to the home. The yard was littered with abandoned car parts, tires, broken pieces of furniture, and other detritus. Before getting out of my car, I decided to put on my well-worn suit jacket, even though I had noticed earlier that it was missing buttons on both jacket sleeves.
Minnie walked out the front door and apologized for the appearance of the yard as I carefully stepped onto the porch. She kindly invited me inside while a woman in her early twenties lingered behind her.
“Let me fix something for you to eat. You been at the prison all day,” she said. Minnie looked tired but otherwise appeared as I had imagined—patient and strong—based on Walter’s descriptions and my own guesses from our phone conversations. Because the State had made Walter’s affair with Karen Kelly part of its case in court, the trial had been especially difficult for Minnie. But she looked like she was still standing strong.
“Oh, no, thank you. I appreciate it, but it’s fine. Walter and I ate some things on the visitation yard.”
“They don’t have nothing on that prison yard but chips and sodas. Let me cook you something good.”
“That’s very kind, I appreciate it, but I’m really okay. I know you’ve been working all day, too.”
“Well, yes, I’m on twelve-hour shifts at the plant. Them people don’t want to hear nothing about your business, your sickness, your nerves, your out-of-town guests, and definitely nothing about your family problems.” She didn’t sound angry or bitter, just sad. She walked over to me, gently looped her arm with mine, and slowly led me into the house. We sat down on a sofa in the crowded living room. Chairs that didn’t match were piled with papers and clothes; her grandchildren’s toys were scattered on the floor. Minnie sat close to me, almost leaning on me as she continued speaking softly.
“Work people tell you to be there, and so you got to go. I’m trying to get her through school and it ain’t easy.” She nodded to her daughter, Jackie, who looked back at her mother sympathetically. Jackie walked across the room and sat near us. Walter and Minnie had mentioned their children—Jackie, Johnny, and “Boot”—to me several times. Jackie’s name was always followed by “She’s in college.” I had begun to think of her as Jackie “She’s in College” McMillian. All of the kids were in their twenties but still very close and protective of their mother.
I told them about my visit with Walter. Minnie hadn’t been to the prison in several months and seemed grateful that I had spent some time there. I went over the appeals process with them and talked about the next steps in the case. They confirmed Walter’s alibi and updated me on all the rumors in town currently circulating about the case.
“I believe it was that old man Miles Jackson who done it,” Minnie said emphatically.
“I think it’s the new owner, Rick Blair,” Jackie said. “Everybody knows they found a white man’s skin under that girl’s fingernails where she had fought whoever killed her.”
“Well, we’re going to get to the truth,” I said. I tried to sound confident, but given what I’d read in the trial transcript, I thought it very unlikely that the police would turn over their evidence to me or let me see the files and the materials collected from the crime scene. Even in the transcript, the law enforcement officers who had investigated Walter seemed lawless. These police put Walter on death row while he was a pretrial detainee; I feared that they would not scrupulously follow the legal requirement to turn over all exculpatory evidence that could help him prove his innocence.
We talked for well over an hour—or they talked while I listened. You could tell how traumatizing the last eighteen months since Walter’s arrest had been.
“The trial was the worst,” Minnie said. “They just ignored what we told them about Johnny D being home. Nobody has explained to me why they did that. Why did they do that?” She looked at me as if she honestly hoped I could provide an answer.
“This trial was constructed with lies,” I said. I was wary about expressing such strong opinions to Walter’s family because I hadn’t investigated the case enough to be sure there was more evidence to convict Walter. But reading the record of his trial had outraged me, and I felt that anger returning—not just about the injustice done to Walter but also about the way it had burdened the entire community. Everyone in the poor, black community who talked to me about the case had expressed hopelessness. This one massive miscarriage of justice had afflicted the whole community with despair and made it hard for me to be dispassionate.
“One lie after the other,” I continued. “People were fed so many lies that by the time y’all started telling the truth, it was just easier to believe you were the ones who were lying. It frustrates me to even read it in the trial record, so I can only imagine how you all feel.”