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 y
ear. 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.
A week later, Walter sat in the van with shackles pinching his ankles and chains tightly wound around his waist. He could feel his feet beginning to swell because the circulation was cut off by the metal digging into his skin. The handcuffs were too tight, and he was becoming uncharacteristically angry.
“Why you got these chains on me this tight?”
The two Baldwin County deputies who had picked him up a week earlier had not been friendly on the trip from death row to the courthouse. Now that he had been convicted of capital murder, they were downright hostile. One seemed to laugh in response to Walter’s question.
“Them chains is the same as they were when we picked you up. They just feel tighter because we got you now.”
“You need to loosen this, man, I can’t ride like this.”
“It ain’t going to happen, so you should get your mind off it.”
Walter suddenly recognized the man. At the end of the trial when the jury had found Walter guilty, his family and several of the black people who had attended the trial were in shocked disbelief. Sheriff Tate claimed that Walter’s twenty-four-year-old son, Johnny, said, “Somebody’s going to pay for what they’ve done to my father.” Tate asked deputies to arrest Johnny, and there was a scuffle. Walter saw the officers wrestle his child to the ground and place him in handcuffs. The more he looked at the two deputies driving him back to death row, the more convinced he became that one of them had tackled his son.
The van began to move. They wouldn’t tell Walter where he was going, but as soon as they got on the road it was clear that they were taking him back to death row. He had been upset and distraught on the day of his arrest, but he was so sure he’d be released soon. He got frustrated when the days turned into weeks at the county jail. He was depressed and terrified when they took him to death row before trial before being convicted of any crime, and the weeks became months. But when the nearly all-white jury pronounced him guilty, after fifteen months of waiting for vindication, he was shocked, paralyzed. Now he felt himself coming back to life—but all he could feel was seething anger. The deputies were driving him back to death row and talking about a gun show they were planning to attend. Walter realized that he had been foolish to give everyone the benefit of the doubt. He knew Tate was vicious and no good, but he assumed that the others were just doing what they had been told. Now he was feeling something that could only be described as rage.
“Hey, I’m going to sue all of y’all!”
He knew he was screaming and that it wasn’t going to make any difference. “I’m going to sue all of y’all!” he repeated. The officers paid him no attention.
“Loose these chains. Loose these chains.”
He couldn’t remember when he’d last lost control, but he felt himself falling apart. With some struggle he became silent. Thoughts of the trial flew back into his mind. It had been short, methodical, and clinical. Jury selection lasted just a few hours. Pearson used his peremptory strikes to exclude all but one of the handful of African Americans who had been summoned to serve on the jury. His lawyers objected, but the judge summarily dismissed their complaints. The State put Myers on the stand to tell his absurd story about Walter forcing him to drive to Jackson Cleaners because his arm hurt. This version had Myers going into the cleaners where he saw Walter standing over the dead body of Ronda Morrison. Bizarrely, he also claimed that a third person was present and involved in the murder, a mysterious white man with salt and pepper hair who was clearly in charge of the crime and who directed Walter to kill Myers too, but Walter couldn’t because he was out of bullets. Walter thought the testimony was so nonsensical he couldn’t believe that people were taking it seriously. Why wasn’t everyone laughing?
Chestnut’s cross-examination of Myers made it clear that the witness was lying. When Chestnut finished, Walter was sure that the State would simply announce that they had made a mistake. Instead, the prosecutor brought Myers back up to repeat his accusations as if the logic and contradictions in the testimony were completely irrelevant, as if repeating his lies enough times in this quiet room would make them true.
Bill Hooks testified that he’d seen Walter’s truck pull out of the cleaners at the time of the murder and that he recognized the truck because it had been modified as a “low-rider.” Walter instantly whispered to his lawyers that he hadn’t turned his truck into a “low-rider” until several months after Morrison was murdered. His lawyers didn’t do much with that information, which frustrated Walter. Then another white man Walter had never heard of, Joe Hightower, took the stand and said that he had seen the truck at the cleaners, too.
There were a dozen people who could talk about the fish fry and insist that Walter was at home when Ronda Morrison was killed. His lawyers called only three of them. Everybody seemed to be rushing to get the trial over with, and Walter couldn’t understand it. The State then called a white man, Ernest Welch, who said he was the “furniture man” who collected money at the McMillian house on the day they were having a fish fry—but it wasn’t the same day that Ronda Morrison was murdered. He said he remembered better than anyone when she was murdered because he was her uncle. He said that he had been so devastated that he went to the McMillian residence to collect money on a different day.
The lawyers made their arguments, the jury retired, and less than three hours later they filed back into the courtroom. Stone-faced, one by one, they pronounced Walter McMillian guilty.
Chapter Four
The Old Rugged Cross
In February 1989, Eva Ansley and I opened our new nonprofit law center in Tuscaloosa, dedicated to providing free, quality legal services to condemned men and women on death row in Alabama. We never thought it would be easy, but it turned out to be even harder than we had expected.
In the first few months of operation our first director resigned, the University of Alabama School of Law where we had set up the office withdrew their support and promise of office space, and we discovered just how hard it was to find lawyers to come to Alabama and do full-time death penalty work for less than $25,000 a year.
Obstacles were multiplying rapidly. We were denied funding from the state legislature, which we needed to get federal matching dollars. After several disheartening meetings with our board, it had become clear that we had no support in the state for the project. State bar leaders were committed to seeing our operation succeed—some because they felt it was unacceptable that condemned prisoners could not obtain legal assistance, others because they wanted more executions at a faster pace and felt that the absence of counsel was slowing them down—but we now realized that we would have to do it on our own and raise the money ourselves. Eva and I regrouped and decided to start again in Montgomery, the state capital. The project would eventually be named the Equal Justice Initiative (EJI).
I found a small building near downtown Montgomery, and in the summer of 1989 we signed a lease. The building was a good start: a rented two-story Greek Revival house built in 1882, near the historic district called “Old Alabama Town.” It was painted yellow and had a charming porch that made it feel open and welcoming—a nice contrast from the daunting courtrooms, institutional waiting rooms, and prison walls that de
fined so much of the lives of our clients’ family members. The office was cold in the winter, it was almost impossible to keep squirrels out of the attic, and there wasn’t enough electricity to run the copier and a coffeepot at the same time without blowing a fuse. But from the start it felt like a home and a place to work—and given the hours we would spend there, it was always a little of both.
Eva took on administrative duties for our new project, which were pretty challenging given that federal dollars came with all kinds of complex reporting and accounting requirements. Eva was fearless and smart, and she sorted everything out so that a few dollars could trickle in. We hired a receptionist and tried to figure out how to survive. I had worked on fund-raising for the Southern Prisoners Defense Committee almost as soon as I started there, so I had some experience asking for money to support our work. I was sure there would be a way to raise enough for the new Alabama office to meet the minimum federal matching requirements. We just needed some time—something, as it turned out, we wouldn’t get at all.
A flood of execution dates awaited us. Between the passage of Alabama’s new death penalty statute in 1975 and the end of 1988, there had been only three executions in Alabama. But in 1989, driven by a change in the Supreme Court’s treatment of death penalty appeals and shifts in the political winds, the attorney general’s office began vigorously seeking executions of condemned prisoners. By the end of 1989, the number of people executed by the State of Alabama would double.
Months before our center opened, I started visiting Alabama’s death row every month, traveling from Atlanta to see a handful of new clients, including Walter McMillian. They were all grateful for the help, but as the spring of 1989 approached they all made the same request at the end of our meetings: Help Michael Lindsey. Lindsey’s execution was scheduled for May 1989. Later, they would ask me to help Horace Dunkins, whose execution date was scheduled for July 1989. I painfully explained the constraints on resources and time, telling them how frantic we were just trying to get the new office up and running. Although they said they understood, they were clearly anguished about getting legal assistance while other men faced looming executions.