Just Mercy: A Story of Justice and Redemption

  A Washington Post journalist, Walt Harrington, had come to Alabama to do a piece on our work a year earlier and had heard me describe the McMillian case. He passed that information to a journalist friend of his, Pete Earley, who contacted me and became immediately interested. After reading the transcripts and files we provided him, he jumped into the case, spent time with several of the players, and quickly came to share our astonishment that Walter had been convicted on such unreliable evidence.

  I’d given a speech at Yale Law School earlier in the year that was attended by a producer from the popular CBS investigative program 60 Minutes, and he also called me. We’d gotten calls from various news magazine programs over the previous few years that expressed interest in covering our work, but I was wary. My general attitude was that press coverage rarely helped our clients. Beyond the general anti-media sentiments in the South, the death penalty was particularly polarizing. It’s such a politically charged topic that even sympathetic pieces about people on death row usually triggered a local backlash that created more problems for the client and the case. Even though the clients sometimes wanted press attention, I was extremely resistant to media interviews about pending cases. I knew of too many cases where a favorable profile in the media had provoked an expedited execution date or retaliatory mistreatment that made things much worse.

  We filed our appeal in the Court of Criminal Appeals that summer. With no small amount of lingering uncertainty, I decided to move forward with the 60 Minutes piece. Veteran reporter Ed Bradley and his producer David Gelber came down from New York City to Monroeville on a 100-degree day in July and interviewed many of the people whose testimony we’d presented at our hearing. They spoke with Walter, Ralph Myers, Karen Kelly, Darnell Houston, Clay Kast, Jimmy Williams, Walter’s family, and Woodrow Ikner. They confronted Bill Hooks at his job and conducted an extensive interview with Tommy Chapman. Word got around quickly that news celebrity Ed Bradley was in town, upsetting local officials. The Monroe Journal wrote:

  Too many of these [out-of-town] writers express open scorn for the people and institutions they encounter here, making no more than a superficial effort to gather facts. Worse, a few have been demonstrably inaccurate. We could do without any more news coverage of the “big-time reporter comes to hick town” genre.

  Even before the piece was broadcast, the local media seemed to be urging the community to distrust anything they heard reported about the case. In “CBS Examines Murder Case,” a local reporter for the Monroe Journal wrote, “Monroe County District Attorney Tommy Chapman said he believes researchers for the CBS television newsmagazine program 60 Minutes had their minds made up before ever coming here.” Chapman had taken to using a photo of Walter obtained at the time of his arrest that showed him with long bushy hair and a beard, which Chapman thought made it clear that he was a dangerous criminal. “The person they interviewed at Holman prison is not the same person arrested by Sheriff Tate for this murder,” Chapman explained. The Journal added that Chapman offered CBS the photograph of the “real” McMillian taken at the time of his arrest, but they were “not interested.” Prisoners in Alabama are required to remain clean-shaven, so of course Walter looked different when interviewed on camera.

  When the 60 Minutes piece aired months later, local officials were quick to discredit it. The Mobile Press Register headline was “DA: TV Account of McMillian’s Conviction a ‘Disgrace’ ”; the article quoted Chapman: “For them to hold themselves up as a reputable news show is beyond belief, and irresponsible.” The publicity was characterized as further injuring Ronda Morrison’s parents. The local writers complained that the Morrisons had to worry and deal with the stress that new publicity “could lead many people to think McMillian is innocent.”

  The local media were eager to join the prosecutors in criticizing the 60 Minutes piece because it implicated their coverage, which had largely presented only the prosecution’s theory and characterization of Walter and the crime. But people in the community watched 60 Minutes all the time and generally trusted it. Despite the local media reaction, the CBS coverage gave the community a summary of the evidence we’d presented in court and created questions and doubts about Walter’s guilt. Some influential community leaders also thought it made Monroeville look backward and possibly racist in a way that was not good for the community’s image or efforts at recruiting business, and business leaders started asking tough questions of Chapman and law enforcement about what was going on in the case.

  People in the black community were thrilled to see honest coverage of the case. They had been whispering about Walter’s wrongful conviction for years. The case had so traumatized the black community that many had become preoccupied with each court development and ruling. We frequently got calls from people simply seeking an update. Some callers sought clarification of a particular point in the case that had been the subject of serious debate in a barbershop or at a social gathering. For many black people in the region, watching the evidence that we had presented in court now laid out on national television was therapeutic.

  In the 60 Minutes interview with Chapman, he dismissed as silly the suggestion of any racial bias in Walter McMillian’s prosecution. He calmly professed his complete confidence and certainty that McMillian was guilty and that he should be executed as soon as possible. He expressed contempt for Walter’s attorneys and “people who try to second-guess juries.”

  We later found out that privately, despite the confidence expressed in his statements to local media and to 60 Minutes, Chapman had begun to worry about the reliability of the evidence against Walter. He couldn’t ignore the problems in the case that had been exposed at the hearing. Given our success in other death penalty cases, he must have feared the very real possibility of the appellate court’s overturning Walter’s conviction. Chapman had become the public face defending the conviction, and he realized that he’d put his own credibility on the line by relying on the work of local investigators—work that was now revealed as almost farcically flawed.

  Chapman called Tate, Ikner, and Benson together shortly after the hearing and expressed his concerns. When he asked the local investigators to explain the contradictory evidence we had presented, he wasn’t impressed with what he heard. Not long after that, he formally asked ABI officials in Montgomery to conduct another investigation into the murder to confirm Mr. McMillian’s guilt.

  Chapman never informed us directly about the new investigation, even though for over two years we’d sought just such a re-examination of the evidence. When the new ABI investigators, Tom Taylor and Greg Cole, called me, I eagerly agreed to share case files and information. After meeting with them, I was even more hopeful about what might come out of the investigation. They both seemed like no-nonsense, experienced investigators who were interested in doing credible and reliable work.

  Within a few weeks, Taylor and Cole seemed to doubt that McMillian was guilty. They were not connected to any of the players in South Alabama. We gave them files, memoranda, and even some original evidence because we had nothing to hide. I was nervous that if we won a reversal and had to retry the case, we might be disadvantaged by disclosing so much information to state investigators—who would then be better prepared to smear or undermine our evidence—but I was still confident that any reasonable, honest investigation would reveal the absurdity of the charges against Walter.

  By January, six months had passed since we had filed our appeal at the Court of Criminal Appeals, and a ruling was due any week. That’s when Tom Taylor called and said that he and Cole wanted to meet with us again. We’d talked a few times during their investigation, but this time we’d be discussing their findings. When they arrived, Bernard and I sat down with them in my office and they wasted no time.

  “There is no way Walter McMillian killed Ronda Morrison.” Tom Taylor spoke plainly and directly. “We’re going to report to the attorney general, the district attorney, and anyone who asks that McMillian had nothing to do with either of these mu
rders and is completely innocent.”

  I tried not to look as thrilled as I felt. I didn’t want to scare away this good news. “That’s terrific,” I said, trying to sound unsurprised. “I’m pleased to hear that and I have to say I’m extremely grateful that you’ve looked at the evidence in this case thoroughly and honestly.”

  “Well, confirming that McMillian had nothing to do with this wasn’t that hard,” Taylor replied. “Why would a drug kingpin live in the conditions he was living in and work fifteen hours a day cutting timber on difficult terrain? What we were told by local law enforcement about McMillian didn’t make much sense, and the story Myers told at trial definitely made no sense. I still can’t believe a jury ever convicted him.”

  Cole spoke up. “You’ll be very interested to know that both Hooks and Hightower have admitted that their trial testimony was false.”

  “Really?” I couldn’t hide my surprise at this.

  “Yes. When we were asked to investigate this case, we were told that you should be investigated because Hooks had said that you had offered him money and a condo in Mexico if he changed his testimony.” Taylor was dead serious.

  “A condo in Mexico?”

  “On a beach, I think,” Cole added nonchalantly.

  “Wait, me? I was going to give Bill Hooks a beach condo in Mexico if he changed his testimony against Walter?” It was difficult to contain my shock.

  “Well, I know it must sound crazy to you, but believe me there were people down there who were raring to get you indicted. But when we talked to Hooks, it didn’t take very long before he not only acknowledged that he’d never spoken to you and that you had never bribed him, but he also admitted that his trial testimony against McMillian was completely made up.”

  “Well, we’ve never had any doubts that Hooks was lying.”

  Cole chuckled. “We started polygraphing people, and things fell apart pretty quickly.”

  Bernard asked the obvious question, “Well, what happens now?”

  Taylor looked over at his partner and then at us. “Well, we’re not completely done. We’d like to solve this crime, and we have a suspect. I’m wondering if you might be willing to help us. I know you’re not trying to get anybody on death row, but we thought you might at least consider providing some help to identify the real killer. People will be a lot more accepting of Mr. McMillian’s innocence if they know who really committed this crime.”

  While it was ridiculous to think that Walter’s freedom depended on the arrest of someone else, I had imagined that a successful investigation might get to this—and I couldn’t dispute that even if an ABI investigation cleared Walter, people would still think he’d gotten away with murder until the actual killer was identified. We had long ago concluded that finding the real murderer might be the most effective way to free Walter, but without the power and authority of law enforcement officers, we were limited in what we could discover.

  We did have a strong theory. Several witnesses had told us that around the time of the crime, a white man had been seen leaving the cleaners. We had learned that before her death, Ronda Morrison had been receiving menacing calls and that there was a man who had been avidly and inappropriately pursuing her—stopping by unannounced at the cleaners, maybe even stalking her. We had not initially been able to identify this strange man.

  But we did have our suspicions. We had been contacted by a white man who seemed intensely interested in the case. He would call wanting to talk at length about what we were investigating. He would hint at having information that could help us, but he was coy and slow to share anything concrete. He repeatedly told us that he knew that McMillian was innocent and he would help us prove it. Eventually, after several calls and hours of conversation, he claimed to know where the murder weapon, which had never been recovered, might be located.

  We tried to get as much information out of him as we could. We also checked his background. He told us that he’d had some conflicts with another man in town and that the more he talked the more he blamed this other man for the shooting death of Morrison. When we investigated this theory, we weren’t impressed. The other man didn’t match the eyewitness descriptions of the person seen leaving the cleaners, and he didn’t have our caller’s history of stalking, violence against women, and preoccupation with the Morrison murder. We began to think that our caller could be the person who had murdered Ronda Morrison. We had dozens of phone conversations with him and even met him a couple of times. We were less and less convinced that the man he was accusing of committing the crime was involved. At some point we asked him some direct questions about where he was on the day of the murder, which must have alarmed him because we heard from him less often after that.

  Before I could tell any of this to the ABI investigators, Taylor said, “We think you may have interviewed our suspect and may have collected a good bit of information from this guy. We were hoping you might allow us to have access to that information and those interviews.” He named our suspect.

  I told them we would give them access to the information we had collected. None of it was protected by attorney-client privilege; we had never represented this man or obtained anything confidentially. I told Taylor and Cole to give us a few days to organize the information, and then we would turn it over.

  “We want to get Walter out of prison as soon as possible,” I insisted.

  “Well, I think the attorney general and the lawyers would like to maintain the status quo for a few more months, until we can make an arrest of the actual killer.”

  “Right, but you do understand that the status quo is a problem for us? Walter has been on death row for nearly six years for a crime he didn’t commit.”

  Taylor and Cole looked at each other uncomfortably. Taylor responded, “We’re not lawyers so I can’t really understand where they’re coming from. If I was in prison for something I didn’t do and you were my lawyer, I hope to hell you’d get me out as soon as you could.”

  When they left, Bernard and I were very excited, but we remained troubled by this plan to “maintain the status quo.” I decided I would call the attorney general’s office and see if they would concede legal error in the pending appeal, which would ensure relief at the appellate court and perhaps expedite Walter’s release.

  Another lawyer from the attorney general’s office named Ken Nunnelly had taken over the appeal. I had dealt with Nunnelly in several other death penalty cases. I told him that I’d met with the ABI investigators and that I understood there were some case developments that favored Mr. McMillian. It became clear that the state lawyers had been discussing this case quite a bit.

  “Bryan, it’s all going to work out, but you’ll need to wait a few more months. He’s been on the row for years, so a few more months are not going to make that much of a difference.”

  “Ken, every day makes a difference when you’re locked down on death row, and you’ve been wrongly convicted.” I tried to get a commitment but he offered nothing. I asked to meet with the attorney general or whatever official had final decision-making authority, and he said that he would see what he could do. Within a few days the State submitted a peculiar pleading to the Court of Criminal Appeals. The attorney general’s motion asked the court to stay the litigation and not issue a ruling because they “may have uncovered exculpatory evidence favorable to Mr. McMillian that could entitle him to a new trial,” but they needed more time to complete their investigation.

  I was furious that the State would try to prolong any order granting relief to Walter. It was consistent with everything that had happened over the last six years, but it was still maddening. We quickly filed a response opposing the State’s motion. We told the court that there was overwhelming evidence that Mr. McMillian’s rights had been violated, and that he was entitled to immediate relief. Delaying relief would add further injury to a man who had been wrongfully convicted and condemned to death row for a crime he did not commit. We urged the court to deny the State’s request and rule qui
ckly.

  I was talking to Minnie and the family every week now, keeping everyone updated about the new state investigation.

  “I feel like something good is about to happen, Bryan,” Minnie said to me. “They’ve kept him for years. Now it’s time they let him go. They have to let him go.”

  I appreciated her optimism, but I worried, too. We’d been disappointed so often before. “We have to remain hopeful, Minnie.”

  “I’ve always told people ‘no lie can live forever,’ and this has always been one big lie.”

  I wasn’t exactly sure how to manage the family’s expectations. I felt I was supposed to be the cautionary voice that prepared family members for the worst even while I urged them to hope for the best. It was a task that was growing in complexity as I handled more cases and saw the myriad ways that things could go wrong. But I was developing a maturing recognition of the importance of hopefulness in creating justice.

  I’d started addressing the subject of hopefulness in talks to small groups. I’d grown fond of quoting Václav Havel, the great Czech leader who had said that “hope” was the one thing that people struggling in Eastern Europe needed during the era of Soviet domination.

  Havel had said that people struggling for independence wanted money and recognition from other countries; they wanted more criticism of the Soviet empire from the West and more diplomatic pressure. But Havel had said that these were things they wanted; the only thing they needed was hope. Not that pie in the sky stuff, not a preference for optimism over pessimism, but rather “an orientation of the spirit.” The kind of hope that creates a willingness to position oneself in a hopeless place and be a witness, that allows one to believe in a better future, even in the face of abusive power. That kind of hope makes one strong.

  Havel prescribed exactly what our work seemed to require. Walter’s case had needed it more than most. So I didn’t discourage Minnie. Together, we hoped.