Lawyer's Reviews > Just Mercy

Just Mercy: Following the Road Less Taken

Just Mercy: A Story of Justice and Redemption was chosen as a Group Read for June, 2015, by On the Southern Literary Trail. My special thanks to Jane, my good friend who nominated this selection.


Bryan Stevenson

Bryan Stevenson has written a compelling memoir with Just Mercy: A Story of Justice and Redemption. This is an important work which should be read by any individual who is concerned with the concept of Justice and incidents of Injustice that merit compassion and mercy.

Stevenson, the founder of the Equal Justice Initiative, and its Executive Director, is a committed advocate opposed to the imposition of the death penalty, an advocate for unjustly imprisoned children, and an iconic American citizen at the forefront of discussing racism as reflected in the Judicial System. It is a book that will surprise you, shock you, and appall you. Simply put, read this book, one of the Ten most noted books of 2014 by the New York Times, the Washington Post, and numerous other literary reviews.

My work with the poor and the incarcerated has persuaded me that the opposite of poverty is not wealth; the opposite of poverty is justice. Finally, I’ve come to believe that the true measure of our commitment to justice, the character of our society, our commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the privileged, and the respected among us. The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.” -Bryan Stevenson

Just Mercy: A Story of Justice and Redemption revolves around the case of an innocent man, Walter McMillian, a black man who had a white girl friend in Monroe County, Alabama, framed by the Sheriff, the District Attorney, and convicted by a Jury for the murder of a clerk in a dry cleaner's shop. Condemned to die. The Sheriff and the District Attorney ignored the evidence that exonerated him. Manufactured the dirty evidence that convicted him and placed him on death row. Incredibly, though no law provided for it, the Sheriff succeeded in McMillian being held on death row prior to trial within the Alabama penitentiary system. McMillian was held on death row for a total of six years.


Walter McMillian, Exonerated

Although the case occurs in the home town and county of Harper Lee, the community which has gained fame from Lee's To Kill a Mockingbird, there is no Atticus Finch to implore the Jury, "For the love of God, do your duty."

Bryan Stevenson surfaces as a real life Atticus Finch who ultimately gathers the evidence, uncovers the chicanery and political machinations that imprisoned McMillian. Stevenson who was a young fledgling attorney not long out of law school. He has argued cases before the United States Supreme Court five times.

Walter McMillian is a man to cheer for. Stevenson is a man to be emulated by so many others in the Justice System. But Stevenson does not gleefully celebrate his victories, the exoneration of the innocent. A bubbling anger appears to roil within him at the injustices he has continued to attempt to right in those years following McMillian's exoneration.

That anger, for me, is understandable yet disturbing. I have to wonder if Stevenson bears a burden that prevents him from having faith in any system responsible for the administration of justice. Whether it is difficult for him to approach any adversary opposite the court room without feeling there is the possibility of fairness.

I was a prosecuting attorney for almost twenty-eight years. I spoke for vulnerable populations. Abused children, victims of sexual assault, both women and men who were undeniable victims of domestic violence. I directed our County's Domestic Violence and Sexual Assault Program for almost four years. I began the private practice of law and for nearly two years, represented children as a Guardian Ad Litem, and Adults charged with Criminal Offenses. The years finally took their toll. I am thankfully retired. The Equal Justice Initiative Office is only ninety odd miles away. I owe Bryan Stevenson a vist. Maybe a little volunteer work.


Alabama's Electric Chair, currently stored in the attic of Holman Prison.

Sunday Morning Coming Down: a Reader's Reflection

I'm having a most unusual Sunday morning. I'm listening to the music of Dale Watson, led there while contemplating Capital Punishment. I'm having a cup of coffee. I've been thinking. A lot.

Reading takes you on strange journeys.

"Yellow Mama" was the name given to Alabama's Electric Chair. Although the Alabama Legislature had authorized death by electrocution in 1923, there was no way to carry out that sentence until 1927.


Kilby Prison, 1922-1969, Montgomery County, Alabama

Alabama needed a way to electrocute Horace DeVaughan for a double murder committed in Birmingham. Inmate Ed Mason, an English cabinet maker by trade who was serving 60 years for theft and grand larceny, built Yellow Mama. The chair was painted with yellow paint from the nearby Highway Department. The same paint used to paint lane indicators on State roads. The inmates named the new chair.

While well built, the chair didn't work too well. On April 8, 1927, Horace DeVaughn was the first human being to experience "riding the lightning." It was a long ride.

"He prayed to Jesus for hours beforehand, and accepted no food, drink or cigarettes on the night of the execution. In his final statement he expressed that he had been forgiven and had no hard feelings toward anyone, and asked for someone to tell his mother goodbye and that his soul was saved. DeVaughan underwent three 2,000 volt discharges between 12:31 and 12:42 AM. At the first 40-second jolt his body surged forward, a thin gray smoke flowed from under the electrode over his head, and the odor of burning flesh was apparent. After the second discharge, flames were seen on his leg, but he was still alive. After the third jolt, he was pronounced dead. Twenty were present as witnesses, included Moore's brother, George, who traveled from Coffeyville, Kansas and claimed a piece of DaVaughn's belt as a souvenir of his visit."

(The Montgomery Advertiser, Montgomery, Alabama, (2002))

Horace Devaughn was a black man. Two weeks later, Virgil Murphy, a veteran of World War I who was convicted in Houston County of murdering his wife, became the first white man electrocuted in the chair. Before the state's use of the electric chair, executions generally were carried out in the counties by hanging. (The Alabama Department of History and Archives)

Tuscaloosa County "Old Jail," where the gallows were

So here I am listening to music by a Birmingham, Alabama, native singing about sitting in that chair. Most of my professional career it was my duty to uphold the imposition of the death penalty. No easy burden. It's a lot to think about when you ask a man's jury of his peers to kill him. I have the utmost respect for Stevenson, though we would have been on opposite sides of the court room had we ever met in one.

I have tried my share of Capital cases. The verdicts in each case was guilty. However, the Jury's sentencing recommendation in all but one Life in Prison Without Parole. Those Defendants will never walk out of prison alive. Unless the Legislature changes the law regarding Life Without Parole. It's quite possible. The State is going broke. The prisons are overcrowded. There is a growing geriatric population in our prisons.

The law prevents an Alabama Prosecutor from telling a Jury that the Legislature could one day allow the possibility of parole in a Capital case. Were a Prosecuting Attorney do that, it would be reversible error.

In each Capital case I have tried, the Judge presiding followed the Jury's sentencing recommendation. In each case, I did not ask the Judge to override the Jury's recommendation. In my opinion the Jury had spoken. The verdict was Just. When the Jury recommended Mercy, I believed Justice had been done.

There is that one case, though. The case where I sought the death penalty, the verdict was guilty. I strenuously argued to the Jury that the only appropriate sentence was death. The Jury's recommendation was death. The Judge presiding imposed the death sentence. That was fourteen years ago. The case remains somewhere in the seemingly endless series of Appeals.

The Defendant murdered his two month old son. Beat and shook him to death. The child had two rib fractures on his chest. The child had eight rib fractures on his back. Picture holding a baby in front of you. Your thumbs gently resting on his chest, your fingers cradling each side of his back. The weight of the baby supported underneath his arms by the flesh between your thumbs and forefingers.

Think of the amount of force necessary to break the cartilaginous ribs of a two month old child. Consider it the same degree of force as the impact of two vehicles colliding each travelling at sixty miles an hour. Consider that the baby's brain was shaken so hard that his brain swelled within his soft skull to the degree the pressure became so great his brain shut down all autonomous nerve processes.

The verdict was just. I have no, absolutely no reason, to be ashamed of the verdict I sought, the sentence I sought. Yet I live with the fact I asked twelve men and women to kill another human being. It will bring you down. But it the life denied a child who will never have the opportunity to grow up that haunts me. I do believe there are cases where the denial of mercy is just.

But. There is always the possibility of a "But." I agree with almost every word Bryan Stevenson wrote.

Surprised?

Two Diverging Roads

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.
Robert Frost, "The Road Not Taken

Bryan Stevenson and I started out on the same road. Neither of us intended to become lawyers.

Each of us felt the compulsion to do something meaningful. As Mr. Stevenson decided he could not help others by continuing his studies in philosophy by philosophizing, I decided not to be a teacher of history, a professor of Classical languages, or even a psychologist, though I took my undergraduate degree in that field.

Actually, I attempted to bluff the Chair of the Department of Psychology into allowing me to undertake my graduate studies in his department a semester earlier. I told him, "Well, if no assistance-ships are available, I'll apply to Law School." It seemed a good idea at the time. I had been tutoring the daughter of a Law Professor in her Latin studies. When the Chair smiled and answered, "We must all do what we must do, Mr. Sullivan," I nodded, swallowed, left his office and applied for entrance to Law School.

I was offered a Graduate Assistant-ship by the Department of Psychology the same day I received my acceptance to the School of Law. In my youthfulness and arrogant pride I turned down the offer and entered the study of Law.

Bryan Stevenson and I also agree about the traditional Law School curriculum. It is esoteric, It is a tortuous experience being the victim of the "Socratic" method of teaching. Students of the law are drilled in the art of confrontation and argument. To me, the desire to "Win" and not "Lose" is instilled in the student of Law. And, therein, lies the danger of Hubris in an adversarial process where the possibility of pride overtakes principle.

Perhaps, I have greater faith in our Judicial system that Stevenson. Or, perhaps I have too much.

There is the point at which we took the road the other did not.

The Tragedy of Walter McMillan

The behavior of two Monroe County District Attorneys primarily contributed to Walter McMillian's conviction and unlawful imprisonment. There should be consequences. Sanctions. The paramount duty of a District Attorney is not to secure a conviction, but to do the right thing. As prosecutors, we are lawyers just as those who are engaged in the private practice of law. I sport a tee shirt that defines a Prosecutor as a lawyer held to a higher standard. I personally always believed that, practiced that.

On June 11, 2015, retired District Attorney Charles J. Sebesta, Jr. was disbarred by State Bar Association of Texas for professional misconduct in obtaining a conviction of Robert Graves for a Capital Murder of six people on the basis of testimony he knew to be perjured. Further, Sebesta flagrantly withheld evidence proving Graves innocence. As a result Graves, an innocent man, was imprisoned for eighteen years for a crime he didn't commit.

It has been fundamental constitutional law since 1963 that prosecutors have an absolute duty to disclose evidence exculpatory to the Defendant. In other words, evidence which might be favorable to the Defendant. See Brady v. Maryland, 373 U.S. 83 (83 S.Ct. 1194, 10 L.Ed.2d 215) https://www.law.cornell.edu/supremeco....

In its opinion disbarring Sebesta, the Texas Bar Association found he had violated his ethical duty by: eliciting false testimony from Robert Carter, a Co-Defendant;

failing to disclose the exculpatory evidence of Carter’s statement the night before trial, clearing Graves’ of involvement in the crime;

eliciting false testimony from a Texas State Ranger regarding Carter’s statements about Graves’ involvement;

threatening an alibi defense witness with prosecution for the same murders, when he had no evidence to support her involvement, apparently causing her to decide not to testify on Graves’ behalf;

failing to disclose that a prosecution witness was under felony indictment by Sebesta’s office at the time of his testimony.

See http://www.prosecutorialaccountabilit... (2015).

That's simply as it should be. Stevenson's blistering memoir makes me cringe.

Bryant Stevenson attributes many of the problems he confronted to the lingering affects of slavery. Statistics do not lie. That racism exists is undeniable. Stating racism is the primary cause for the manner of imposition of Capital Punishment doesn't work for me. I initially intended to be a Defense Attorney. I cut my chops on the cases of Sacco and Vanzetti, Julius and Ethel Rosenberg. My legal literary mentors were Clarence Darrow, Louis Nizer, Melvin Belli and allen dershowitz.

My take on McMillian's case hinges on the base instinct to win at all costs. The very instinct to which law students are subjected throughout their education, whether that is the intent of Law Schools or not. It is a weakness of human nature to submit to the will to win whatever the cost.

Just Mercy isn't perfect. Following is an excerpt from the Sunday Review of Just Mercy, Ted Conover, The New York Times, October 17, 2014.

“Just Mercy” has its quirks, though. Many stories it recounts are more than 30 years old but are retold as though they happened yesterday. Dialogue is reconstituted; scenes are conjured from memory; characters’ thoughts are channeled à la true crime writers: McMillian, being driven back to death row, 'was feeling something that could only be described as rage ... "Loose these chains. Loose these chains." He couldn’t remember when he’d last lost control, but he felt himself falling apart.' Stevenson leaves out identifying years, perhaps to avoid the impression that some of this happened long ago. He also has the defense lawyer’s reflex of refusing to acknowledge his clients’ darker motives. A teenager convicted of a double murder by arson is relieved of agency; a man who placed a bomb on his estranged girlfriend’s porch, inadvertently killing her niece, “had a big heart.”

William Faulkner sums it up for me.

“Some things you must always be unable to bear. Some things you must never stop refusing to bear. Injustice and outrage and dishonor and shame. No matter how young you are or how old you have got. Not for kudos and not for cash: your picture in the paper nor money in the back either. Just refuse to bear them.”-Gavin Stevens, Intruder in the Dust, 1948.

Extras!

"Yellow Mama," Dale Watson, https://www.youtube.com/watch?v=Y44B2...

"The Death of the Death Penalty," DAVID VON DREHLE, Time Magazine, May 28, 20i5" http://time.com/deathpenalty/

"The Death Penalty Information Center," http://www.deathpenaltyinfo.org/

"The Equal Justice Initiative," http://www.eji.org/