Two juries disagreed on who killed Cathy Padgett. Two different results came back from DNA analysis. Two attorneys still dispute what happened.

There are two more indisputable facts in the case:

Cathy Padgett was found stabbed 46 times in her home in Marshall County in north Alabama, while Padgett was in Destin, Fla., with his neighbor and lover, Judy Bagwell, court testimony showed. Cathy Padgett was last seen alive at a church revival.

While they were in Destin, Padgett's children's aunt had taken care of his children.

When the aunt and children went to pick up some things at Cathy Padgett's house, they found her covered in blood on the bed with one leg propped up on a night stand. Padgett had never been arrested and said he wouldn't be capable of such a crime.

"I've never laid a hand on a woman in a violent way," he said.

Padgett is over 6 feet tall and 200 pounds, but he speaks with a quiet and deliberate voice.

"Well, if I was the policeman, I would question myself because of the situation I was in. I was having an affair. My wife was the one who got murdered, and I think that they really got tunnel vision on me," Padgett said.

The prosecutor in the case, Ronald Thompson, still thinks Padgett is the sole suspect in the case.

"I never prosecuted a case when I didn't think 'guilty,'" Thompson said.

Defense attorney Richard Jaffe painted the neighbor having the affair with Padgett as the culprit. Padgett said his lover killed his wife and put his semen in her.

Thompson got a conviction on the first trial that sent Padgett to death row. Judge William Jetton overrode the jury's recommendation of life without parole and sentenced Padgett to death.

The Court of Criminal Appeals in 1995 ruled Padgett would get a new trial. They ruled the prosecutors didn't give the defense adequate time to review new blood test evidence.

Blood was found at the scene that was not Cathy Padgett's. At first, analysts said blood at the scene matched Padgett's. Later, they discovered the blood didn't match his blood, though the semen did.

"It is hard to imagine scientific evidence more crucial than blood test evidence showing that the blood found at the scene of the crime was not the blood of the defendant," wrote Judge Sam Taylor.

During the new trial in 1997, Jaffe pointed the blame toward Padgett's lover, characterizing her as a jealous woman who killed Cathy Padgett to secure Randall Padgett.

Jaffe said he used a basic tenet of law in the case, first noted by a Roman statesman, 2000 years ago.

"What Cicero said is look to the person with the most to benefit in a crime," Jaffe said.

Jaffe argued Padgett would not have wanted his children to find the body of their mother. Padgett's lover, he said, had threatened Cathy Padgett in the past.

Thompson said his wife was threatening a divorce and he feared he would lose his farm.

The jury acquitted Padgett, who walked out a free man after seven years on death row.

Padgett said he came close to going crazy at Holman in Atmore. He said he even sometimes wondered how he might have killed his wife and not remembered.

"I thought, 'Did I walk in my sleep and do that thing and didn't know about it?' Padgett said. "You think all kinds of things down there day after day in a 5-by-8 (foot) cell. Looking at nothing but concrete, steel and cockroaches, you think all kinds of stuff."

Four of Padgett's fellow inmates were electrocuted while he was there.

"The day of execution you're thinking, 'What am I going to do when it's my turn?'" he said.

Thompson said the case reflects imperfections in the judicial system.

"The jury system isn't perfect," Thompson said. "It doesn't acquit everyone who is innocent and it doesn't find guilty everyone who is guilty."

Padgett said he used to think that the police always got the right man.

"When I heard something on the news, that we arrested someone at such and such time, I would say, 'Well, good. They finally got the criminal.' I thought in the good ol' U.S. of A., that when you went to court and you went to trial, the truth was supposed to be foremost and the court endeavors to seek out the truth, you know, but I know firsthand that's not how it is," Padgett said.

He is a free man, but he is not free of the memories that started with his wife's murder.

"I hated that she had to leave this life so early, especially the way she did. I think a lot of times it's my fault. If I would have been where I should have been, at home with her, she might be alive today," Padgett said.

Charges haven't been filed against anyone else, though Padgett hopes someday there will be.

Steve Marshall, the new district attorney in Marshall County, who also briefly represented Padgett, said he doesn't anticipate opening the case again.

"There's not enough evidence to go after anybody," Marshall said. "As I understand it, the case is closed."

Love letters almost fatal

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

"That's the only thing I can think of," said McMillian, 59. "They wanted to get rid of me because they caught me with a white lady."

McMillian said police framed him for the Nov. 1, 1986, murder of Ronda Morrison, an 18-year-old woman who had a part-time job at Jackson Cleaners in Monroeville.

McMillian lives outside Monroeville in south Alabama, a town that served as a model for the fictional town of Maycomb in Harper Lee's "To Kill a Mockingbird," a novel about a black man unjustly accused of raping a white woman.

A slightly built man with graying hair, McMillian's home is a trailer with permanent rooms attached to the back that doubles as an office for the junkyard he operates.

Alabama released McMillian from death row in 1993 after an appeals court ruled prosecutors had withheld evidence from the defense, although some authorities dispute that.

District Attorney Tommy Chapman, elected to office during McMillian's stay on death row, doesn't think McMillian was even at the scene of the crime.

A second investigation conducted by the Alabama Bureau of Investigation convinced Chapman that someone else committed the murder.

McMillian said the case turned his thinking around.

"I had always believed in the police. I always thought the police were right," McMillian said. "I tell people if I hadn't been caught in this trap I would still be blind."

McMillian had been in trouble before for selling marijuana and for assault, he said, but he would never murder someone.

"From Day One, I was framed up. I know I was. There is no question about it," McMillian said.

Morrison's body was found behind a rack of clothes. She had been shot three times. Her bra and underwear were exposed under her unbuttoned pants and shirt.

Police testified at the trial that money had been taken from the cash register and thought robbery was the motive.

Chapman said the murder was never about robbery, but rather was a sex-driven crime, leading him to a different suspect than McMillian. But he said that since the initial investigation was botched, he couldn't try anyone else for the crime.

Daryl Masters, an attorney who represents Monroe County Sheriff Thomas Tate, said McMillian was never framed. He dismissed McMillian's claim that he was arrested because of a liaison with a white woman.

"That is an absolutely ridiculous charge," Masters said. "There was no conspiracy. All the evidence was made available to Mr. McMillian's attorney. Nothing was ever withheld by anyone."

McMillian filed a civil suit against Tate, Larry Ikner, an investigator for the Monroe County District Attorney, and Simon Benson, an agent for the Alabama Bureau of Investigation, for violating McMillian's rights.

"Neither one of us can say he is a murderer or he will sue us," Masters said.

The courts ruled that the officials couldn't be held liable for withholding evidence.

The Legislature passed a law that allows compensation of up to $50,000 a year for inmates later found not guilty. McMillian said he doesn't expect to see the money because the law says an indictment must be overturned before it can be awarded, but the prosecutor never did so. Masters said the only reason the state hasn't prosecuted McMillian again is because of intimidation.

"Witnesses change their stories. Witnesses move from telling the truth in part because of threats by some of Mr. McMillian's friends and "business associates," Masters said. Lawyer Bryan Stevenson, who heads the Montgomery-based Equal Justice Initiative, appealed McMillian's case.

Investigators targeted McMillian, Stevenson said, because he was black and poor.

"He's no more guilty than you or I," Stevenson said. "The community owes Mr. McMillian an apology.

Stevenson doesn't find it hard to believe McMillian's theory that being a black man and dating a white woman contributed to his conviction.

"Race still matters in the administration of criminal justice," he said.

Both Chapman and Stevenson said the investigation was handled poorly.

"It was just a comedy of errors," Chapman said.

One of those errors involved the testimony of Ralph Myers, who McMillian described as "low-down."

Myers, now 45, was arrested for the murder of Vicky Pittman, another 18-year-old, who was found dead on a dirt road in Escambia County, directly south of Monroe County.

Myers, a white man, told the court McMillian had gone with him to the cleaners, shot Morrison, and brought a wad of money back out of the cleaners.

Myers also told police that McMillian had sodomized him months earlier in Conecuh County before either of the two was taken into custody.

Police charged McMillian with sodomy and held McMillian in jail in Monroe County while evidence was collected in the Morrison case.

McMillian and Myers were taken to Holman Correctional Facility in Atmore, where most death row inmates are held. McMillian said the move was used to intimidate the two men.

"They take someone before a trial and put him on death row? That's prejudiced or racist. That's all it was. There is no doubt about it," McMillian said. "I stayed in that one cell, until I got out, for six years."

McMillian said he had been locked up for a speeding ticket once. His second time was in Holman on death row.

"I don't know how I made it myself," McMillian said.

McMillian had little hope, but he had heard of a lawyer that could help.

"They said if you get Bryan Stevenson on your case, you'll get out," McMillian said.

"When I talked with him, I felt relieved then. I thought I could rest pretty good now. Up until that point it was miserable. I was dreaming all kinds of dreams. Scared to death of prison. Rough."

Stevenson began to take a look at Myers' testimony.

"Unquestionably Myers was the key witness for the prosecution," the state court of appeals later wrote. "Without his testimony, the state could not have obtained a conviction."

And, the court said, it appeared as though lawmen coerced the evidence against McMillian.

In 1992 at an appeals court hearing, Myers admitted that he had never seen McMillian on the day Morrison was killed.

"This way we can all get out of this courtroom and we can let an innocent man go on home, if that's what the law will let happen," Myers said. "Me, I can simply look in your face or anybody else's face dead eye to eyeball and tell you that anything it was told about McMillian was a lie."

Myers told his doctors who examined him that he felt pressure to implicate McMillian.

The appeals court also said investigators withheld evidence from the defense, including testimony that cast doubts on the time frame presented by prosecutors.

The court also found a tape recording not entered into evidence in which Myers denied being a part of the Morrison murder and denied McMillian had him kill Morrison.

"We conclude that there is a reasonable probability that had Myers' prior inconsistent statement been disclosed to the defense prior to trial, the results of the proceedings would have been different," wrote Judge John Patterson.

The case was overturned. Chapman decided not to retry McMillian and "Johnny D." became the first man to be freed from death row directly into society in Alabama.

Stevenson said others could be railroaded in Alabama.

"White or black, they can put him on death row," he said. "If he's not strong and fighting to get someone trying to help him, he'll get electrocuted."

Fighting for another chance

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

Four death row inmates in the state have eluded Yellow Mama a third way: by gaining their freedom. Bo Cochran was one of them.

'I'm very happy. I'm just enjoying life because I know where I've been and know what I've been through.' --Bo Cochran

But don't feel sorry for Cochran for the time he spent on death row, said David Barber, Jefferson County district attorney.

"Cochran was just the perfect example of someone who was able to play the system to a point that he literally got away with murder," Barber said.

Cochran already had served a lengthy prison term for manslaughter before he was sent to death row for the 1976 murder of Stephen Ganey in Homewood. He spent 20 years on death row before being released in 1997.

Cochran said his life is stable now.

"I'm very happy. I'm just enjoying life because I know where I've been and know what I've been through," Cochran said.

He has a wife, Shirley, who stuck by him while he was on death row, a job working construction, and a house to call his own.

Police said they saw Cochran running from the A&P outside of which Ganey had just been killed.

Later, when asked why he ran, Cochran replied, "When I was 14, I was beaten up by cops. I had been running from them since."

Police found money with an A&P band around it in Cochran's pocket.

"They charged me with robbery and murder and I said, 'Murder? Who did I murder? I was panicked because I didn't have any idea what they were talking about."

Richard Jaffe, who represented Cochran at his last trial, said he didn't think police treated his client unfairly.

"Bo clearly looked guilty," Jaffe said. "They (investigators) did a very good job of investigating the case from the appearance of things."

Cochran had a mistrial, but prosecutors persisted and Cochran was found guilty in the second trial and sentenced to death.

That verdict was overturned as part of a U.S. Supreme Court ruling in 1980 that required Alabama to retry all their capital cases. Before that ruling, juries only had two options in a capital case: convict the defendant on capital charges or acquit the defendant. There was no possibility of being found guilty on a lesser charge.

At his third trial in 1982, Cochran again was convicted and sentenced to death. Cochran told the judge then, "I did not kill Mr. Ganey. ... When will I get justice in this courtroom?"

Jaffe said Alabama's death penalty system let Cochran down, not any one person.

"His lawyers, although good lawyers, had their hands tied behind their back," Jaffe said. "They had no funds. At the time they were given $1,000 (to represent Cochran). There is no way someone can get a fair shake with those kinds of limitations."

Judge William Cole of Jefferson County, now deceased, sentenced Cochran to death and then appointed Jaffe to Cochran's case.

"I asked him (Cole) not to make me do it," Jaffe recalled. "He said, 'I like old Bo. I had to give him the chair. I didn't have any choice and you're it.'"

Cochran saw little hope he would elude the electric chair.

"No one would listen to me. I even tried to get the NAACP to listen to me," Cochran said. "They said they were busy."

The 1986 Batson vs. Kentucky ruling by the U.S. Supreme Court gave Cochran another shot at freedom. The ruling meant attorneys could not strike prospective jurors solely on the basis of race.

"All the juries were 11 white and one black," Cochran said. "The race had something to do with it."

While he was in prison, Cochran persuaded Bryan Stevenson, director of the Equal Justice Initiative, a center set up to help indigent death row inmates with legal assistance, to help.

Stevenson had connections with the Drinker Biddle and Reath law firm in Philadelphia. Attorneys for the firm argued prosecutors unfairly chose a predominantly white jury for Cochran. A new trial was ordered in 1997.

Barber was asked on the stand in federal court if he thought, generally, whites made better jurors than blacks in capital cases.

"I had to say yes," Barber said. "I would have lied to say differently. I don't know if it would make any difference, because I think the burden is on us to give reasons for our strikes. And I couldn't even remember who was black and who was white."

In his last trial, seven blacks and five whites sat on Cochran's jury. Jaffe's strategy was to try to give the jury an alternative set of events.

There was no bullet in Ganey's body. There was an entry wound, but no exit wound. Ganey's body had been moved. Jaffe argued it would have been impossible for Cochran to move it by himself while being chased by police.

Barber said he was at a disadvantage because many of the witnesses had disappeared or died. One of Barber's witnesses had been in trouble with the law himself since Cochran's conviction, wasn't happy to be there, and "it showed on the stand," Barber said.

"Being found not guilty doesn't make him innocent," Barber said.

That point is academic to Cochran.

After a mistrial, a conviction, an overturning of the conviction, another conviction, an overturning of that conviction, and a final trial, Cochran was released.

"I was like, 'Oh,' Cochran said. "I couldn't believe it. I came out of the gate from death row crying."

Cochran says he is not only innocent, he is a changed man.

"My heart has changed. Since I put Christ in my life, my whole life has changed."

Not easy to forget — or forgive

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

The association with the two, Drinkard said, wound up costing him almost eight years of his life, sitting on death row. But their misdeeds also would allow him to regain freedom.

"I was cooped up in a little 6-by-10 cell. It was dimly lit. It was about a quarter of the candlelight in here. No TV. No radio. They only allowed you to have the Bible to read. It was ridiculous," said Drinkard, 42.

Drinkard was convicted in 1993 of shooting 61-year-old Dalton Pace, a junkyard dealer in Decatur, and taking his money. He got a second chance when Morgan Circuit Court Judge Steve Haddock allowed evidence that Drinkard was involved in a robbery by his half-sister, Beverly Robinson Segars, and her common-law husband, Rex Segars, in his first trial.

"I was handed divorce papers the day I was sentenced to death, so that was another little gig in the side," Drinkard said.

He was sent to Holman Correctional Facility in Atmore.

"Especially in the summertime, it would get so bad in there you're sweating in your sleep and you would have to flip sides of the bed so you can lie in a dry area for a while," Drinkard said.

Drinkard is convinced the authorities played into the hands of his half-sister. He said her testimony, with little other evidence, was able to put him on death row.

"It's as simple as that," Drinkard said.

"They built the case from there. They didn't have any other leads."

Drinkard sat down in Atmore and started writing letters to Birmingham defense lawyer Richard Jaffe. One letter, two letters, three letters, four letters. Jaffe took the case.

During his second trial, Drinkard listened to the testimony again, hoping it would change from the first trial. But, it only changed for the worse when his adopted daughter, Kelly Harvell, changed her story from giving Drinkard an alibi at home to saying she didn't see him the night of Pace's murder.

"I'm knowing I should walk free, but I'm afraid to hope and I'm afraid to say it because if I say it, then I'll jinx myself," he said.

Jaffe put people on the stand who cast doubt on Drinkard's accusers. They couldn't be trusted, said one witness. They were liars, said another. Most of the physical evidence was never recovered or lost in a fire that burned down Pace's home.

"When the jury went to deliberate, my stomach was tied up in knots. I wanted to get sick, and they came back within a couple of hours and I knew that was good. When they came back with the not guilty verdict, I cried like a baby."

He was released from prison in May 2001.

"Everything was lost. I'm starting from scratch," Drinkard said.

Drinkard is angry that the state could put him, or any innocent person in jail.

"I was mad as hell. I still have a lot of anger and resentment, but I deal with that," Drinkard said.

District Attorney Bob Burrell is among those still convinced of Drinkard's guilt.

When Drinkard got his second trial, eight years had passed since the killing.

"The passage of time almost never helps us," Burrell said.

Burrell said Drinkard had "been in and out of the system," but since he was on death row, he had no opportunity to get in trouble like some of the prosecution's witnesses.

"Some of our witnesses were in and out of trouble themselves," Burrell said. "Drinkard couldn't get into any more trouble."

Burrell said a guilty man is free.

"Our system is set up so it's better when 1,000 guilty people go free than when one innocent man goes to jail," Burrell said.

"The system is broken. I don't think the death penalty is appropriate for anyone. I think God is the only one who has the right to take a life," Drinkard said.

Drinkard said judges want to appear tough on crime for their elections and they do that by sending people to death row.

"The poor and the minorities have become steppingstones for all these politicians who want to further their careers," said Drinkard, who is white. "They've become disposable entities."

For all the portrayals of death row, Drinkard said, it is a more civil environment than what most people imagine.

"The guys there are just like you and I sitting here," he said. "People depict them as animals in a cage to be kept in chains. They're human beings. They're decent human beings. Some made a bad mistake. But people change. Some guys down there need to be down there for a long, long time, maybe the rest of their life. But a lot of guys down there changed and would never harm someone again.

"There are some that just can't be rehabilitated."

He is not one of those people and should never have been put there, he said.

"The only thing I did wrong was associate with the wrong people," Drinkard said.

'She was a very good child'

Speaking for the victims

"When it happened, I had been to the doctor that day ... and I was sick. Her phone kept ringing. She had her own line. We all had our own lines. Her phone kept ringing and I didn't know why.

I answered the phone and somebody said, 'Mrs. Collins, Have you been over to Popeye's?' because that's where Tamika worked. And I said, 'No. Why?' And they said, 'Well, something happened over there. I don't know what it is.'

There were police cars over there. My husband got in the van and then he went over there. He came back and said, 'Come on. Let's go back over there. Something happened. I don't know what it is.

We got over there and they just told us that she was in there and she was dead. Her and two more people. And that's how we found out.

It has changed our life. It really has. When it happened, I just couldn't get my thoughts together. I just couldn't believe it. When she left home, everything was fine.

I never have been on any medication in my life and when that happened, I had to get on blood pressure pills and nerve pills. I had to go through therapy for four years.

... Tamika was a very good child. She was working and going to college. Me and Joe had talked to her a few weeks before this had happened and told her we had wanted her to quit working and go full time to school. But she wanted to have her own little money, and her daddy was buying her a car and he was paying the high insurance.

It was a big loss when she left this world, I tell you, a big loss. She was a very, very good child. I'm not trying to put her on any pedestal. If she had any faults in her, I would say it. ...

If I could have her back right now, I would want her because she was my daughter and my best friend. She was always thinking of other people before she thought about herself. That's just the way she was.

I really had to do some hard praying. I just had so much in me.

When it happened I just said, 'Why?' I know I was questioning God and shouldn't have done that. I just couldn't believe she was gone like that.

For a while, I would go to church and I would see her all over the church and ... I would just break down. I would have to come home, or they would have to take me to the hospital.

My husband, he's a deacon at our church and he doesn't even go anymore. But I keep trying to talk to him to go. He said he has so much hatred in his heart, you know, he just doesn't feel right to go to church. But he was a real faithful person. ...

What do I think about Robert Bryant Melson? If I saw him right now, I wouldn't kill him. But I want him to do the sentence they gave him. He took three lives. I mean those were good people and there was just no sense in what he did.

I'm not going to say I hate him, and I wouldn't kill him, but I want them to do whatever they will do to him. I want them to do it.

Some people in my family said they were really looking forward to it (the execution), but I don't have to see that, because that's not going to bring her back. It really doesn't matter whether I go or not."

Does race decide who dies?

Some say color of defendant, victim plays significant role

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

Pretend further that the judge is black. So are the prosecutor and all of the jurors except one.

And all of the witnesses are black.

"Do you think the white defendant in this hypothetical would receive a fair trial?" asked Bryan Fair, a law professor at the University of Alabama, in a paper about the death penalty.

Fair said his hypothetical case was based on a real capital murder trial in Alabama, except with the races reversed of everyone involved.

No imagination needed in that scenario.

Alabama, with blacks making up 26 percent of its population, does not have a single elected black district attorney. Four percent of criminal court judges are black. No black judges sit on the Alabama Court of Criminal Appeals or on the Alabama Supreme Court.

And on the other side of the justice system, 66 percent of all prisoners and 46 percent of Alabama death row inmates are black. Sixteen of the 23 Alabamians executed since capital punishment was reinstated in 1976 have been black.

Some of the high numbers for black results from blacks committing far more homicides than do whites in Alabama. Blacks committed 70 percent of homicides in the state from 1995 to '99.

But that does not explain the startling disparity between the high percentage of blacks sentenced to death for killing whites, and the actual number of black on white homicides in Alabama.

Of all the homicides committed by black Alabamians in the past five years, 11 percent were committed against whites. But 57 percent of blacks on death row are there for killing whites. Only 43 percent are on death row for killing other blacks, even though 89 percent of homicides committed by blacks are against other blacks.

"I would be dishonest if I said it doesn't matter if you are African-American," said Barrown D. Lankster, who was Alabama's only black elected district attorney in the 1990s. "It matters in this state, and it matters in this country. It matters because you have individuals who are making the decision to pursue the death penalty, and they bring their own biases to that."

Lankster allowed five black men accused of capital murder to plead guilty in exchange for life sentences. All had killed white people. He said he could not say whether or not those decisions caused him to lose his re-election, but he said he thought race in general played some role.

The disproportionate number of blacks on Alabama's death row for killing white people seems to prove racism, said Jerald Burns, a professor of criminal justice at Alabama State University. But there are other ways to look at it, he said.

It may be that black-on-white homicides are more likely to rise to the level of a capital charge than a black-on-black crime, he said. For example, a typical black-on-black murder may arise out of a domestic dispute, which are usually not capital cases, while a typical black-on-white murder may happen during the commission of a robbery or burglary, which would make it a capital case.

But that would seem to suggest that whites who kill blacks also would stand a greater chance of going to death row than whites who kill whites. Statistics do not bear that out, however, showing instead that white killers of white victims have more than double the chance of reaching Alabama's death row than white killers of blacks.

The statistics make the most sense, Burns said, when seen through the prism of race. Jurors are more tolerant of blacks killing each other, he said.

"There's this attitude that it's not unexpected," he said. "It's the norm. It's acceptable. Now a black killing a white, that's unacceptable."

The statistics suggest that defendants in cases involving white victims also receive less sympathy from judges, who can opt to either accept or reject a jury's recommendation of leniency.

Judges have rejected a jury's recommendation that the defendant's life be spared 47 times in murder cases involving white victims and 23 times in cases with black victims.

Although the U.S. Supreme Court has prohibited lawyers from striking potential jurors solely on the basis of race, the racial composition of juries also remains an area of concern for many critical of the state's capital punishment system.

Some inmates on death row were convicted before the revised procedures for selection of juries ruling took effect in 1986, and even the current procedure allows racially imbalanced juries.

Critics cite the case of Brian Keith Baldwin, a black man executed in 2000, as an example of how the system breaks down along racial lines.

The Monroe County judge who tried the Baldwin case was white, the prosecutor was white and the defense lawyer was white. All the jurors were white.

Baldwin was convicted with another man of the 1978 kidnapping and murder of a white North Carolina woman. The trial court found Baldwin and his partner had robbed the woman in North Carolina, locked her in the trunk of her own car, driven to Alabama, then stabbed her to death.

"There was no question that he was at the scene," said Jack Martin, Baldwin's lawyer at the time of the execution. "The question was who did what."

Baldwin confessed to the police that he was the killer, but later said his confession had been coerced. After the verdict, Baldwin asked to take a lie detector test and undergo DNA testing. The Alabama attorney general's office denied the requests.

But the issue of race never went away. When Baldwin was tried, defense lawyers found it difficult to challenge the racial composition of a jury. Alabama uses a "strike down" system to select a jury, where the prosecution and defense exclude jurors one by one until a jury of 12 with two alternate jurors is reached.

The prosecutor could try to strike every black person in the jury pool, and the defense could not do much about it. A 1965 U.S. Supreme Court decision said the defense had to prove discrimination over a period of time, so Baldwin's lawyers would had to have proven that the prosecution did not just strike black people in his case but in many other cases.

Baldwin's lawyer in his initial trial said that was too difficult a burden, so he did not challenge the jury makeup.

Baldwin tried to challenge the racial composition of his jury under the new rule, but the state appeals court said he could not because his conviction was final before the new jury procedures took effect.

But the high court's ruling still allows juries without any black representation if the reasons for striking the black jurors appear adequate and not based on race.

In a 1994 symposium on race and the justice system, Montgomery lawyers Bryan Stevenson and Ruth Friedman offered a list of black men accused of capital crimes who have faced all-white or nearly all-white juries under the current jury selection system.

No blacks sat on the jury of Earl McGahee, a black man sentenced to death for the 1985 murders of two black nursing students in Selma. The prosecutor used strikes to exclude blacks from the jury (one served as an alternate juror, but alternates play no role in deciding a verdict). McGahee has appealed on the basis of racial discrimination, but the prosecutor argued successfully that there were reasons besides race to exclude the jurors.

Just because most judges are white does not mean they are biased, but the under-representation of blacks often means there is a problem, said Ralph Cook, one of two black Alabama Supreme Court justices in the 1990s. He was defeated in his bid for re-election in 2000.

"Is the justice system tainted because of race?" he asked. "I would say that we are still struggling to eliminate vestiges of race-related problems in our society and making some progress."

Rape victim finds reasons to save lives

Leads group that finds good in convicted killers

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

She has done this, in part, because she was raped by four teenage boys 30 years ago.

"I asked the detective then if there was anything in prison that would make them understand what they did to me," she said. "His answer was no. ... It just didn't make any sense to me. I thought if we are going to put people in prison for that amount of time, and they are going to come out worse, what's the point?"

So Penland began helping the criminals and their victims. She became a rape crisis counselor, a prison librarian, a juvenile probation officer. Now 57, she heads an organization that works so a judge will not take the life of someone who has taken a life.

Penland is the executive director of the Alabama Prison Project, a group that helps inmates and their families with anything that they need, from toiletries to dealing with prison authorities. But the project has drawn national attention for its efforts in an area of death penalty law called mitigation.

Someone convicted of capital murder does not go automatically to death row. The defense has a chance to present mitigating factors, reasons the convict should not be put to death. The prosecution argues for the death penalty with aggravating factors. The judge and jury weigh those factors and decide on death or life in prison without parole.

The death penalty is a way of giving up on people, of saying that they can never become better, Penland said. The point of the Prison Project is that everyone should be helped and can be helped, she said. So people at the project try to uncover reasons to spare a life — everything from a mother's love to a history of mental illness.

The Alabama Prison Project, with an annual budget of $296,000, researches those reasons from a converted house 1 mile west of the Capitol in Montgomery. Pictures of Martin Luther King Jr. and Mahatma Gandhi adorn the peach walls of Penland's small office.

A necklace with a unicorn medallion adorns her neck.

"One of the things about unicorns, the mythology, is that they can heal with their horn, or purify a poison stream," Penland said. "And they're elusive, but they have a lot of power."

She spends little time now working on mitigation. Her energy goes largely to administrative tasks, and a three-person team does the research.

"She has a huge heart, but she's a bit scattered," said Tracy Sprowls, a Montgomery minister who serves as the president of the Prison Project's board of directors. "She's having to work on a lot of things. It's a small organization that has begun to grow."

But working for the inmates, and against the death penalty, is still a passion born from the crime done to her. It took a while for that passion to evolve in the years following the rape.

"My feelings were mixed up a lot with what I learned in Sunday school about forgiveness," she said. "I think the way that some people think about forgiveness is, 'It's just no big deal, that's OK.' With something as traumatic as what I went through, you can't do that."

Penland was an Auburn University librarian in the spring of 1971, taking an early evening walk from her house to downtown. She found out later that during the walk, she passed by a restaurant window where the four teenagers who would rape her were eating.

They came up behind her and held her down. They were 14, 16, 17 and 18 years old. The youngest was put on strict probation, and the rest were given sentences of 20 to 30 years for the crime.

In the years after, Penland took different kinds of social work jobs, either counseling victims of crimes or counseling the people who committed the crimes. Penland began forgiving her attackers, and she felt one way to do that was to help people like them, she said.

In 1986, she came to the Prison Project. Researching mitigation issues in capital murder trials is a way to understanding and forgiveness, she said.

"We're not saying feel sorry for them," she said. "We're saying that because they had a tough childhood, there are certain ways they act. Look at David Freeman."

Freeman was convicted of murdering Mary Gordon, 17, and raping and murdering Gordon's mother in Montgomery in 1988. According to trial testimony, Freeman killed them because Gordon told him she did not want to be his girlfriend.

The Prison Project found Freeman had been abused as a child.

"It was a last loss he could not take," Penland said of Gordon's rejection of Freeman.

The trial court found that the aggravating factors outweighed any mitigation, and Freeman was given the death penalty.

"Some people call it the abuse excuse, but it's much more complicated than that," Penland said. "A lot of attorneys don't know what they should do. A lot put mothers on the stand, and they say, 'Please don't kill my baby,' but it's more complex than that."

Inexperienced lawyers do not understand that preparation for the penalty phase must start well before the trial or there will not be time to research mitigating factors, Penland said. The Prison Project normally works 200 hours per case, interviewing family members and tracking down medical histories.

Sometimes lawyers ask for help, but mostly the Prison Project finds out about a case and sends a letter offering to assist. Penland and her team are working on 33 of the 300 or so capital cases pending in Alabama.

The Prison Project earns some money for its work, when a defense lawyer pays for the assistance or a judge authorizes payment to the project for work it has done on an indigent case. Those earnings plus private donations make up the budget.

The project has begun some expansion. It is refinishing a house near its headquarters, a place where recently released convicts can get back on their feet. It is part of Penland's mission to help people who have a hard time helping themselves, she said.

"There is something wrong with a society that does not take care of its children, and then when they get out of hand, society throws them away," she said.

When a jury's choice doesn't matter

Judicial overrides send many to chair

Overrides viewed as political leverage

Critics: Popularity can outweigh justice

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

Ordering six men's death helped keep Mobile County Judge Ferrill McRae in office.

Both used a provision that allows Alabama judges to override the jury's recommendation to either let a defendant live or be sent to the electric chair. Alabama judges have used the provision most often among the four states that allow judicial overrides.

Since the override provision was included in a 1981 rewrite of Alabama's capital punishment law, Alabama judges have used the override more than 70 times to sentence defendants to death after a jury recommended life without parole, according to the Alabama Prison Project in Montgomery, a prisoner advocacy group.

The provision has been used seven times to give a defendant life in prison without parole when a jury recommended death.

Some critics say the provision inserts politics into the decision of whether a defendant should be sentenced to death. Others say that the judges, with greater knowledge of the cases and vast experience, are better equipped to determine whether a killer deserves to die.

Stephen Bright, an Atlanta-based lawyer who handles death penalty cases in Alabama, said the judicial overrides insert "an arbitrary factor" into the process.

Bright said Alabama's system of electing judges also fuels overuse of overrides. "You have human beings who become fodder for the campaign trail," he said.

Judge Nice, who died Dec. 5 after suffering a stroke, felt the political heat in Jefferson County after he used the override to spare the defendant's life all four times a jury returned with a death sentence in his courtroom.

In 1987, prosecutors asked Nice to disqualify himself from a capital murder case because of his overrides. Legislators passed a resolution in 1978 criticizing Nice, saying he "makes a mockery of the judgment of the jury."

Nice, said at the time he disliked the death penalty, although he was not "irrevocably opposed" to it. He later was transferred to Family Court.

Mobile's McRae has sentenced six men to death after the jury recommended life without parole, the most any Alabama judge has used the override.

According to published reports, the day after McRae rejected the jury's recommendation and sentenced former state trooper George Martin to death for the killing of his wife, campaign ads touted McRae's record on sentencing defendants to death. Martin's name was mentioned in the ad.

Charles Miller, a Mobile lawyer who lost to McRae in the election, said McRae denied a request to delay Martin's sentencing, even though both sides wanted the continuance. McRae set a date for Martin just a few weeks before the election.

Miller declined to say whether he thinks McRae used the override for political purposes.

"I don't feel comfortable answering that question," he said.

Efforts to reach McRae were unsuccessful.

Judge Denny Holloway in Houston County in south Alabama, who is among three judges who have used the override to spare a killer's life, said he is sure judges use the override in favor of executions to enhance their political careers.

"It's tough to put someone's life in the hands of an elected official," Holloway said.

The thought of using the override for political gain terrifies some.

"I would hate to think it was politics," said Judge Dan Reynolds, who retired after hearing cases in the Bessemer area.

Reynolds, who heard about 50 death penalty cases, gave two men, Patrick Carr and Ed Harrell, death after the jury recommended life without parole. Both men had been convicted of killing law enforcement officials. In Carr's case, the jury voted 12-0 to recommend life without parole. The jury voted 11-1 to give Harrell life without parole.

Reynolds said in those two cases the aggravating circumstances outweighed the mitigating circumstances, a yardstick Alabama judges are supposed to use in deciding overrides. Carr had been involved in a murder before, and Harrell had an attempted murder conviction.

"I did what the law required me to do," Reynolds said.

Reynolds said he would prefer a system where a judge couldn't override the jury's choice of life without parole. That would make a judge's job easier, he said.

"I would like to see a system where a judge could only reduce the sentence," Reynolds said. "But, it's not my call."

Judge James Garrett, who sits on the circuit court bench in Jefferson County, said Alabama should keep the override the way it is.

The best example, Garrett said, is when a case has co-defendants. The same judge will hear both cases, but each defendant will have a different jury.

"It's more consistent," he said. "They maybe hear only one trial. We do this all day every day."

The judge also receives a pre-sentencing report on the defendants with prior criminal histories, something the jury doesn't see.

Besides Alabama, three other states have judicial overrides: Delaware, Florida and Indiana. In Delaware, which has appointed judges, the judicial override has only been used to override death sentences, never the other way around. In Indiana, judges used the override to sentence nine people to death, and Florida judges have used it for that purpose about half as many times as Alabama judges have.

'Can you imagine what that does to a mother?'

"I've always believed in the death penalty. I had always wondered in the back of my mind if I served on a jury and it was my responsibility to mete out the death penalty if I would be capable of doing it.

Now I know I would be capable of doing it, and I know why it is important. ...

Quenette was killed Dec. 20 and she was already accepted as a graduate student at Auburn University. She was going to teach grammar school. She loved children. She didn't have a prejudiced bone in her little body. She was bubbling over with energy, and it was all taken for nothing. Just for one little fling with a little white girl.

I don't hate blacks. I don't. These were three mean black people. But I do get tired of hearing about the poor uneducated black people on death row. Well, I'm here to tell you there are more whites on death row than there are blacks. ...

She got off work about 5:30 in the afternoon, after dark, and she went straight to the fraternity house. She got there, and her boyfriend was preparing the steaks and he realized he didn't have any salad dressing.

As she came out of the U-Tote-Em (store), she was abducted and was shoved into her car. She got under the steering wheel and she screamed. She was screaming. And the clerks admitted they heard her scream but didn't go out. They thought it was children playing.

So nobody went out to see what was happening, so they pushed her into the car and drove off and kept her for four or five hours, at least, raping her, and when they were all through with her, they decided she couldn't live because Wallace Norrell Thomas told them they had called each other by name so they had no choice but to kill her. ...

And when we found out when she was missing, I was praying all the way to Birmingham that she was warm, because it was so extremely cold. I can't remember ever a colder night in my life.

Then to have to find out when they found her body that she was stark naked and her body was frozen. And Jerry Lee Jones tells how they were shooting at her and how she was running through the briars and begging for her life saying, 'You're killing me.'

Now, can you imagine what that does to a mother?

If I dwelt on what I know she went through for five or six hours, and knowing people look at me and view me as out for revenge. Revenge for me would be for me to ask for the state of Alabama to make Wallace Norrell Thomas go stark naked and shoot at him in the coldest weather ever for about five hours. That would be revenge. But to put him in the chair and he's gone just like that is not revenge. That is justice. ...

I have been asked how I felt when he was executed and it was nothing but relief. I was hoping.

And I feel like if I knew the hour I was going to meet my maker, I would make amends for my sins and I would say I was sorry and beg the Lord to forgive me. So that was really what I was expecting from Wallace Norrell Thomas, because I knew without a shadow of a doubt that he was guilty."

Finding reason enough for death

Where intelligence, morality meet: Should Alabama execute retarded criminals?

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

"I want my mommy," screamed the 6-foot-3-inch Holladay, who could bench press 400 pounds. "I want my mommy."

"OK, we'll talk to mommy," said the Alachua County, Fla. deputy, Chuck Sexton.

Sexton smacked Holladay's gun away and hit him with the radio. Holladay grabbed Sexton's revolver with one hand and clutched Sexton's crotch with the other, and bit his arm.

"If you let go of the gun, I won't kill you," Holladay said.

Sexton reached down to his backup gun on his ankle, pulled it up, and shot Holladay twice.

Holladay would live to stand trial for the 1986 murder of his ex-wife, Rebecca Ledbetter Holladay, her boyfriend, William David Robinson and a family friend, Larry Thomas, Jr., all in Gadsden.

"He tried to set me up pretending he was a crazy guy," said Sexton, now an investigator with the Alachua County sheriff's department in Gainesville, Fla. "He knew I wouldn't think he was the person he was."

Today, Holladay is fighting for his life on grounds he is mentally retarded. Eighteen of the 38 states that allow the death penalty do not allow execution of the mentally retarded. Some Alabama lawmakers also want to ban the practice.

The definition of mental retardation varies from state to state, but an IQ below 70 is the most common benchmark.

Holladay was scheduled to be executed in July for the three murders he was convicted of in July of 1987. The U.S. Supreme Court stayed the execution while they hear the case of Daryl Atkins, a mentally retarded Virginia man convicted of murder and robbery.

The cases of Atkins and Holladay were two of four before the court that involved the execution of a mentally retarded prisoner.

"He's been tested nine times," said Montgomery lawyer Bryan Stevenson, who is representing Holladay. "Every time he has been tested as mentally retarded."

Holladay's life could be spared if the Supreme Court rules it is unconstitutional to execute the mentally retarded or if the Alabama legislature passes a law prohibiting it.

State Sen. Hank Sanders, D-Selma, in 2000 proposed a ban on the execution of mentally retarded inmates, but won little support, partly because it was linked to a bill seeking a moratorium on all executions.

Sanders said he would likely introduce another bill to stop executions of the mentally retarded in the next session, most separate from a moratorium.

If a law were passed stopping the executions soon, Sanders said, it could spare Holladay's life. The highest hurdle to passing the bill, though, is overcoming opposition by law enforcement and the Alabama attorney general's office.

Those who prosecuted Holladay said even if he has tested as mentally retarded, he is a dangerous killer who should be executed.

James Hedgespeth, who prosecuted Holladay for the three deaths in Gadsden as the Etowah County district attorney, said Holladay is not mentally retarded, despite being illiterate. (While fleeing from the murders, Holladay kidnapped a man and took him to Georgia because he couldn't read the road signs once he got away from the interstate or roads he knew.)

"Glenn Holladay is just mean. He's a burglar, murderer and rapist who was just too darn lazy to learn how to read and write when he was in school," Hedgespeth said.

Stevenson said Holladay may have eluded police, but it isn't a sign of criminal genius.

"You don't have to be a rocket scientist to avoid the police if the effort is not targeted in the right way," Stevenson said.

Birmingham attorney David Arendall represented Holladay in the 1986 kidnapping case. He said Holladay was competent to stand trial but didn't help much in his own defense.

"He wasn't the best witness I ever had," Arendall said. "He definitely had limitations."

"He was certainly uneducated. He was certainly not very bright. Whether it was to the point of mental retardation, I don't know," Arendall said.

Four other Alabamians who were either mentally retarded or borderline have been put to death, according to the Death Penalty Information Center, based in Washington, D.C.

They were all mentally deficient, according to the center. They count 35 people nationwide with mental retardation have been executed since 1976, when the death penalty was reinstituted.

Eighteen states plus the federal government have stopped executing people they believe are mentally retarded. Most use an intelligent quotient scale drawing the line at mental retardation at about 65 or 70.

Jim Ellis, a law professor at the University of New Mexico, has been involved with almost every state's decision to end executions of the mentally retarded. He is helping Atkins' lawyers write their brief to the Supreme Court.

What separates the states that stop executing the mentally retarded and those who don't is a lobbying effort by disability groups within the state, said Ellis. So far that hasn't happened in Alabama.

The Supreme Court last heard the subject in 1989 in the case of a mentally retarded Texas man, John Paul Penry. After a 5-4 vote that upheld executing the mentally retarded, the court asked to see a "national consensus" from state legislatures before the court would act again.

Ellis said the country is closer to that consensus. In the last year alone, five states enacted laws prohibiting the execution of the mentally retarded.

Expanded DNA testing proposed

Lawyer says many death row inmates could win freedom

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

Evidence pointed to her stepfather, Danny Joe Bradley. He lied about where he was on the night of the crime. But some of the most damning evidence came from the bodily fluids found in and on Rhonda.

A state expert found they were from a man who had blood like Bradley's. About seven men out of every 100 had that same kind of blood, the expert said.

Bradley was found guilty and sentenced to death.

He said he was innocent, and a few friends found reasons to believe him. They wondered, for example, why Rhonda's shoes, which apparently had been tied by the killer after the slaying, were tied in single knots. If Bradley had been trying to hide the crime, the friends said, wouldn't he have tied Rhonda's shoes in the double knots that she always wore?

Bradley turned to the one thing that could prove he didn't rape his stepdaughter: DNA testing.

He is Alabama's first death row inmate who has used post-conviction DNA testing, a tool that has exonerated at least nine death row inmates nationwide. Some defense lawyers say they are sure that DNA testing would prove some Alabama death row inmates innocent. Others are more skeptical.

Bradley's case helps illustrate how difficult post-conviction DNA testing can be. Much of the biological evidence in the 18-year-old case appears lost. Some state officials have resisted Bradley's testing. They have also resisted a proposed law that would give death row inmates — those convicted before DNA testing became popular — access to the testing.

That resistance has critics wondering if the state is doing all it should to ensure the innocent are not executed.

"It's fine with me if he's guilty. I want him to stay in jail," said state Rep. John Rogers, D-Birmingham, who sponsored the DNA testing bill last year. "I'm afraid we've got some folks on death row who shouldn't be there. Not to give a person a simple DNA test to find if they are guilty or innocent is wrong."

As long as DNA testing appears to be legitimate and not just a stalling tactic, the attorney general's office will agree to testing in any death row inmate's case, said Clay Crenshaw, an assistant attorney general who deals with capital cases.

In fact, DNA testing is now a routine part of Alabama's justice system and has been since at least 1994, said J.C. Upshaw Downs, the state's chief medical examiner. The Birmingham laboratory, one of four state labs that handle DNA testing, processes 50 cases per month, said Larry Hughes, who oversees the lab's DNA testing.

About 70 percent of those cases are sexual assaults, where the criminal has left behind his semen, Hughes said. Not much is needed to make use of DNA testing.

Whoever has smoked a cigarette or licked a stamp leaves saliva behind, and that is all DNA analysts need.

Every cell in a person's body contains DNA, which stands for deoxyribonucleic acid, the group of proteins that determine everyone's hereditary characteristics: hair color, eye color, skin color, gender and so on. Only identical twins have identical DNA, so investigators can use it like a fingerprint.

After the testing process, scientists are left with a printout of what looks like a bar-code. Analysts compare the bars of an unknown person's code to the bars of a known persons code. One in 125 million will match on eight bars. One in several billion will have 13 bars that match .

And DNA, if stored properly, can be tested for decades.

DNA testing has caused something of a revolution in law enforcement across the country, said Barry Scheck, a lawyer for Bradley. Scheck, who is based in New York, is perhaps best known for his work in the O.J. Simpson murder trial. He has led the push for post-conviction DNA testing. A group he founded, the Innocence Project at Cardozo School of Law in New York, has used DNA testing to exonerate dozens of convicts nationwide.

"There must be quite a number of people in prison in Alabama who are innocent, probably on death row," he said.

Scheck cited a 1995 U.S. Department of Justice report that found DNA testing excluded suspects in up to a quarter of cases across the country. Those people were never charged because of the testing.

"But for DNA testing, how many of these people would have been convicted?" Scheck asked.

He said that Alabama death row inmates who could benefit the most from testing are those convicted of rape-murders before DNA testing became widespread. Like Danny Joe Bradley.

But the testing has only delayed his execution so far, not cleared him. Scheck and his associates began writing letters in 1996 to agencies who may have had the evidence from 1983.

None of the evidence could be found.

Scheck said people just haven't looked hard enough.

"Unless there is an order that it is destroyed, it's around somewhere," he said.

Rogers calls the state position that it will allow any reasonable post-conviction DNA testing a "smoke screen." The DNA testing bill didn't even make it to a vote in the legislature last year, and Rogers blames that on lobbying from the attorney general's office.

'The whole thing is scary'

Speaking for the victims

"Jo Deanne was full of life, a free-spirit-type person. She enjoyed people, laughing, traveling — just full of life.

... She worked at Chili's restaurant down 280 and she didn't come into work ... That was the year of the (University of Alabama football) championship so I thought maybe she took off to New Orleans or something like that.

She was due back later at work that day and Mom and Dad called her house and the answering machine picked up and she didn't show back at work.

That day she was due in at 5 (o'clock). That's when I first became alarmed. At Chili's, everyone was acting really strange, but then they (parents) called me.

I had been out playing tennis all day, and hearing the news was sort of an out-of-body experience. You lose bodily function control. Just the horror of it all.

It was overwhelming fright, disillusionment. All the things going through your mind. It was a big surprise.

Then, of course the fear of, 'Gosh, who could have done this?' And the thought of them walking through the apartment and the whole nightmare of it, as we learned later ... She knew the guy through a camp. It wasn't like she was any more friends with him (Chris Brooks) than anyone else.

She had a relationship with everyone from children to adults to having relationships with people her own age. She corresponded with people all over the country so it was not unusual that he would stop by when he came to town. It was not unusual for her to be glad to see him and welcome him. ...

He had taken the car, CD's, and answering machine and one thing that stuck out in my mind — it had her message on one side (when they caught him). He didn't bother to erase her message. He had just turned it over and put his message on the other side. But, he was living off her money.

... The presentation at the trial was not like I had pictured it would be like you see on TV. That was all I had seen. The reality of it was there were a lot more boring parts to it that you don't understand what's going on.

Then being in the room and walking behind him sitting there and just trying to physically picture him doing this. It's hard not to just want to find out why ... or, you know, strangling her. How hard it is to — anger, rage and a complete lack of understanding.

The trial was quite painful mainly because of my parents — to see them. And I think the district attorney did say if he (pleaded) guilty, would we agree to life without parole? At the time I think we stood there.

The entire conversation was not the normal type of conversation that you have with your family like when you sit down for dinner. It was anxiety ridden. But we all pretty much discussed it.

And I think I kind of wanted to hop towards doing this, but at the same time I didn't. ... I had these feelings about the death penalty at the time.

I think what I came to understand was that the death penalty is not a killing for a killing, but it's punishment for that killing and that just happened to be the course of punishment. That kind of made it OK.

Of course they didn't come out and admit it and they still haven't. How could he sit there and have this cold calculated look on his face the entire time when they're describing the things they did to her and how he did it?

And hearing his response in the trial. But the trial pretty much painted the picture of what happened that night. I think in his mind he was thinking, "How did they know we did it?" You know maybe a little ——— off because they put together what happened ...

It was also some anxiety there too watching the jury. What if they find him guilty, but only give him 10 years?

I felt confident towards the end of the trial because there was an incredible amount of physical evidence and the witnesses and everything, but the whole thing is scary."

Justice at 50 cents an hour

Defending death row case drove lawyer into bankruptcy

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

French said he worked thousands of hours preparing the defense for the 1983 capital murder trial. He argued that Neelley was a battered wife, that her husband had forced her to inject a 13-year-old girl with drain cleaner then shoot her in the back in DeKalb County. Neelley was indigent, so French was appointed to handle the case.

He doesn't remember exactly, but he said the state paid him between $500 and $1,000 for his work. By French's estimate, he and his Fort Payne office sank $340,000 into the case. It pushed him into bankruptcy.

"I don't want any more capital murder cases," he said.

The Neelley case is an extreme example of what death penalty lawyers faced for more than two decades in Alabama. The state wouldn't pay a lawyer more than $2,000, plus overhead expenses, for work on a capital case. When the legislature lifted those limits last October, both prosecutors and defense lawyers praised the move, saying it allowed for better defenses.

But almost everyone on Death Row was convicted under the old limits. They deserved a good defense, too, some observers say, and it seems they will not get it.

"The representation at trial level has been poor because funding has been poor," said Elisabeth Semel, who heads a death penalty representation project in California. "It puts an enormous amount of weight on the post-conviction level as a safety net."

The American Bar Association says a capital defense lawyer normally should work 500 hours or more on a case. Under the old Alabama standards for indigent defense, that meant a lawyer would be paid about $5 an hour. Top defense lawyers in the state demand $200 or more per hour
from clients who can afford to pay them.

French said the old payment levels left lawyers with two options: Put hundreds of hours into a case and spend their own money, or restrict themselves to using state money and put little time in a case.

That made for a system where defendants didn't always get good defenses, Semel said. But not all agree. While funding was low, defense was still adequate, said Tom Sorrells, executive director of the Alabama District Attorneys Association. If defense work was incompetent, appeals courts would order a new trial for the defendant, he said.

"I'm not saying there aren't people who don't get effective assistance," Sorrells said. "I'm saying it's not nearly as bad as people say it is. ... These cases are getting super scrutiny."

Sorells and others say that the problem was largely solved last October. Lawyers who represent indigent clients in capital cases now make $40 an hour for out-of-court work, $60 for in-court work, and they are still paid for overhead expenses (the amount differs for every case).

In the Neelley case, jurors convicted her, but recommended that she serve life in prison without parole. The judge rejected the recommendation, sentencing her to death. Former Gov. Fob James commuted her sentence in 1999.

Some face death without attorney

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

But in Alabama, that right disappears at some point during the appeals process, leaving about 40 of 185 death row inmates without representation.

Alabama is the only state that doesn't guarantee a lawyer or fund an office to help death row inmates find lawyers. And since the state pays so little to handle an appeal of a capital case, few attorneys vie for the privilege.

These inmates had attorneys at their original trials and through the initial round of appeals, but most other death-penalty states provide an attorney automatically for other appeals.

States that don't, such as Georgia and Louisiana, fund offices that give legal aid to death row inmates.

Alabama death row inmates Thomas Arthur and Christopher Barbour had executions delayed this summer because courts were uncomfortable with lengthy periods they had gone without lawyers.

State officials contend the appeals system in Alabama is adequate. Critics call that contention absurd.

"The consensus is that Alabama is the worst," said Robin Maher, director of the American Bar Association's Death Representation Project.

The most any lawyer can make working on an appeal, from a drunken driving offense to capital murder, is $2,000, said Brenda Layton with the state comptroller's office. Appointed lawyers also receive office overhead expenses.

Since a lawyer could work hundreds of hours on a death penalty appeal, that means he or she could receive less per hour than a first-day cook at McDonald's. For years, the same $2,000 limitation on pay existed for defending capital cases at trial, but the state recently made trial payments much more generous.

"The problem (with appeals work) is you really don't get paid for doing it," said Wilson Myers, a Birmingham defense lawyer.

Myers is representing two death row inmates, partly because an Army pension provides him with the financial stability to do so.

Despite all of the problems, most inmates awaiting execution in Alabama do have lawyers, some of them prominent out-of-state attorneys.

"What we see in this office is that a death row inmate is represented by a resource center or by a large out-of-state firm that has more resources than we do," said Clay Crenshaw, who oversees capital cases in the state attorney general's office.

The main resource center is the Equal Justice Initiative in Montgomery, with a five-lawyer staff that is working on the appeals of about 100 of the 185 death row inmates in Alabama.

The Equal Justice Initiative is funded entirely by private donations and by money that the lawyers working there earn for speeches, teaching and consulting.

The group also has recruited lawyers for about 40 other cases, almost all of them from outside Alabama. But that still leaves about 40 inmates without representation.

"We have gotten to the point where we say we cannot represent any more people," said Bryan Stevenson, head of the group. "People are missing deadlines. More and more people are at risk for injustice."

Stevenson said that his group has helped at least 40 people escape death row, most to life sentences, after proving errors in the initial trial.

The allegation that inmates without lawyers are being cheated out of justice in Alabama is without merit, Crenshaw said. He noted that inmates receive a trial before jury and then receive an automatic appeal.

More appeals are often used as delay tactics, he said.

The case of Bo Cochran, however, at least makes plain that the second round of appeals can be the difference between life and death. Cochran, accused of killing a Homewood grocery store employee in 1976, was given a new trial during the second round of appeals because prosecutors were striking blacks from the jury for no other reason than race.

A subsequent jury set him free.

Law enforcement officials contend that the Cochran case illustrates the problems endless appeals can cause, such as the fading memories of witnesseses who helped convict the accused during the first trial.

Time can cheat electric chair

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

In 1978, Cade was convicted in the shooting death of Geneva County Sheriff L.D. Sizemore the year before and sent to Death Row. In 1981, his case was reversed and he was convicted again. He applied for appeal after appeal from there, and died in a prison bed at the age of 73.

Cade's long wait isn't unusual. Five other men have been on Death Row since the 1970s. Sixty-seven people have been on death row more than 10 years. Some say the lengthy wait from conviction to execution is the worst feature of Alabama's death penalty system.

"Even if everything is working smoothly, you're talking 10 years," said Clay Crenshaw, the assistant attorney general who heads the state's capital division. "And things don't run smoothly in the justice system."

After the verdict is rendered, the first court to review the case is the Alabama Criminal Court of Appeals, which looks at all testimony, all witness statements and all evidence. At the quickest, that court takes one year to review a case, Crenshaw said.

The second court is the Alabama Supreme Court. The third court is the U.S. Supreme Court, which the inmate can petition to review the case.

But if the U.S. Supreme Court upholds the sentence, that signals only the end of the first round of appeals.

The inmate can then begin a second level of appeals, with arguments often focusing on ineffectiveness of counsel at the trial, new exculpatory evidence or constitutional issues.

Then the inmate may go to the third tier of appeals, handled in federal courts. There, the inmate can argue again that the trial violated constitutional rights.

That makes 10 courts in all that an inmate can petition for help. If at any time, one of those courts decides that the inmate should have a new trial, and the inmate is re-convicted, the process starts over.

Opponents of the death penalty and others say Alabama needs all of those levels because it pays defense lawyers poorly.

But Crenshaw said even if there were problems at the trial level, there are so many appeals that every mistake would be caught.

In a 1998 article published by the Washington Legal Foundation, state Attorney General Bill Pryor wrote that a new trial for an old case could harm justice because evidence is lost and memories fade and that the weight of the penalty diminishes since it takes so long to finalize.

Crenshaw said other states handle appeals more quickly: Some combine various appeal issues or have fewer state courts to navigate.

Pryor recommended the removal of the state court of criminal appeals from the process. The Alabama Supreme Court does exactly what the criminal appeals court does, he argued.

'Where was your God?'

Speaking for the victims

"While she was out of the house shortly before dark, he broke in.

It took him three efforts. He tried to get in the bathroom window and was unsuccessful. He tried to get in the front door and couldn't make it. And he got in the window in the living room and cut himself, so he left blood on the furniture and blood in the carpet.

He was in the process of ransacking the house when Mrs. Gray came home from visiting a neighbor.

... She was able to walk in the house and surprised him in the act. He grabbed her. By his own statement, she ordered him out of the house and he wouldn't leave. When he made up his mind he wasn't going to leave, then she was going to leave and he prevented her departure.

He had forcibly slung her down and he got one of the kitchen knives and he stabbed her. He nearly cut her throat in two, she was nearly decapitated. At some point in there, and we want to believe it was after she was dead, she was sexually assaulted — an act of sodomy, which is difficult for us to comprehend that a 20-year-old male could do something like this. Mrs. Gray was 89.

... The following day, two policemen came over, a lieutenant and the assistant investigator, and they came over to inform us of all they knew at this point. And that's when they told us about the sodomy.

And, of course, I have my wife (Fran) my daughter, and I don't know how many other female family members here in the room, and these guys come in and drop that on us. It was tough. Tough.

And the minister was here. Fran turned around and screamed at him, 'Ellis, where was your God?' He hasn't answered to this day.

... The appellate court upheld the conviction and the Supreme Court sent it back to retrial because the DNA instructions were not to their liking. I think the proper instructions were not given by the judge to the jury. Or something was said in front of the jury which should not have been within the jury's earshot.

... It took nearly a year where we were all back in the courtroom and the results were the same.

... Now, (on the appeal) these lawyers really come out with their shotguns. The first appellate hearing ... they run these things through a computer and say, 'what all can be done wrong in a trial?' and the computer prints them up 150 items and the lawyer goes with it. There are 150 things wrong with this trial and he argues this before the appellate court.

... We were all for the death penalty, even Mrs. Gray. I spent 20 years in the Marine Corps ... and in the Marine Corps, we did not tolerate thieves, but justice was swift. That was one of the things about it. You didn't dilly-dally with meting out punishment. It was done quickly and showed others what would happen.

And that's what we've lost here in the criminal justice here in the United States. You have 20 years between the crime and the carrying out of the sentence. When you have 20 years lapse, what does that prove to people? That's a terrible set of circumstances when you have the right people.

... We've been robbed of what would be her final years and we've been robbed of the good times.

... (On death row) probably 1 percent of all the murderers are there. We're talking about the worst of the murderers. The worst 1 percent of all the murders are sitting up there on death row.

We're not going to get into too much biblical stuff, but the Bible does allow for he who ever shall smite a man so that he dies shall certainly be put to death and that's right in that area of 'Thou shall not kill.'"

Proposals could bring fairness to system

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

"It's at the top of the list," she said. Semel said that inmates here don't get the protection they need, because the state doesn't provide enough money and resources for indigent defense.

Not everyone agrees. But among those that do, here are some of the remedies that are being discussed:

"The system is clearly broken, and we have to fix it," said state Sen. Hank Sanders, D-Selma, who sees the moratorium and the public defender proposals as key issues.

Attorney General Bill Pryor calls a moratorium a "ridiculous idea," since most death row inmates have been convicted beyond a reasonable doubt.

"While all of these death sentences are reviewed by appellate courts, as they should be, it makes no sense to say for all of the cases that we will deny the victims justice," Pryor said.

Sanders and others say creating a public defender system would ensure that defendants who can't afford to hire a lawyer still get a defense equal to the prosecution, proponents say.

A public defender is also important for the appeals process, because Alabama inmates aren't guaranteed lawyers after a certain point, Semel said.

A public defender system may be useful, Pryor said, but not for all parts of the state. Death Row inmates shouldn't be given public defenders on appeal because they already have been convicted and had their cases reviewed once, Pryor said.

"Opponents of capital punishment seem to think that all death penalty cases deserve review," Pryor said. "In fact, these processes are supposed to be used for extraordinary claims."

And for some counties, a public defender system makes little sense on the trial level, Pryor said. Large counties usually have qualified lawyers who can handle capital cases. Some smaller counties without much crime may not have a need for capital defense lawyers.

"Tuscaloosa County lawyers and judges think it's great," he said. "Other parts of the state would be violently opposed to it. There's no solution that will help everyone."

Tuscaloosa County's public defender has been in place since 1971. In the eight and a half years since Robert Wooldridge has been the defender, he and his staff have tried 13 capital cases. Only one of those defendants is on Death Row.

"In my opinion, we provide the most effective way of providing defense at a reasonable cost," he said.

For those who think that defendants get enough protection as it is, Tuscaloosa's conviction rate may argue against a public defender, Wooldridge said.

"It's not something that has a lot of public support — legislators giving more money to defend crimes," he said.

Criminal defense lawyers have opposed public defender proposals in the past. Those lawyers argue that the office wouldn't be properly funded. They also say a public defender could take away a big source of income — the public defender's office would handle criminal cases of all kinds, from drunken driving to murder.

"Part of it is the business," said Wilson Myers, a Birmingham defense attorney who has handled several capital cases. "I would lose business — 80 percent of my business is appointments."

Tom Sorrells, who heads the state district attorneys association, said the cost to taxpayers actually would be less with a public defender system.

What do you think?

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