Just Mercy (13 page)

I entered the prison and saw an older white woman—the correctional officer who managed the visitation yard. I had become a regular at death row visiting my new clients at least once a month, so she saw me frequently but had never been particularly friendly. Tonight she approached me with unusual warmth and familiarity when I arrived. I thought she was going to hug me.

Men in suits and ties hovered in the lobby, eyeing me suspiciously as I walked into the visitation room at a little past nine. The visitation area at Holman is a large circular room surrounded by glass so that officers can look in from any vantage point. There are a dozen small tables with chairs inside for visiting family who come on visitation days, typically scheduled two or three times a month. During the week of a scheduled execution, only the condemned prisoner facing a scheduled death is permitted to have family visits.

When I got inside the visiting room, the family had less than an hour left with Herbert. He was calmer than I had ever seen him. He smiled at me when I walked in and gave me a hug.

“Hey y’all, this is my lawyer.”

He said it with a pride that was surprising and moving to me.

“Hello everyone,” I said. Herbert still had his arm around my shoulder, and I wanted to say something comforting but couldn’t think of anything before Herbert jumped in again.

“I told the prison people that I want all my possessions distributed just as I’ve said or my lawyer will sue you till you all have to work for him.” He chuckled, and people laughed.

I met Herbert’s bride and her family and spent the next forty-five minutes with one eye on the clock, knowing that at 10:00
P.M.
the guards would take Herbert to the back, and we would never see him alive again. Herbert tried to keep things light. He told his family how he had persuaded me to take his case and bragged that I only represented people who were smart and charming.

“He’s too young to have represented me at trial, but if he had been there I wouldn’t be on death row now.” He said it with a smile, but I
was starting to feel shaken. I was really struck at how hard he was working to make everyone around him feel better in the face of his own death. I had never seen him so energetic and gracious. His family and I smiled and laughed, but all of us felt the strain of the moment. His wife became more and more tearful as the minutes ticked away. Shortly before 10
P.M.
, the commissioner of the Alabama Department of Corrections, the warden, and several other men wearing suits gestured to the visitation officer. She came into the room meekly and regretfully said, “It’s time, folks. We’ve got to end the visit. Say your goodbyes.”

I watched the men in the hallway; they had clearly been expecting the officer to do something more decisive and effective. They wanted things to proceed on schedule and were clearly ready to move to the next stage to prepare for the execution. One of the state officials walked over to the guard when she left the room and pointed at his watch. Inside the room, Herbert’s wife began to sob. She put her arms around his neck and refused to let him go. After a couple of minutes, her crying turned into groaning, distressed and desperate.

The officials in the lobby were growing more impatient and gestured at the visitation officer, who came back into the room. “I’m sorry,” she said as firmly as she could muster, “but you have to leave now.” She looked at me, and I looked away. Herbert’s wife began sobbing again. Her sister and other family members began to cry, too. Herbert’s wife grabbed him even more tightly. I hadn’t thought about how difficult this moment would be. It was surreal in a way I hadn’t anticipated. In an instant a flood of sadness and tragedy had overtaken everyone, and I began to worry that it would be impossible for this family to leave Herbert.

By now the officials were angry. I looked through the window and saw the warden radio for more officers to come into the area. Someone else gestured for the officer to go back into the room and bring the family members out. I heard them tell her not to come out without the family. The officer looked frantic. Despite her uniform, she’d always
seemed a little out of place at the prison, and she looked especially uncomfortable now. She had once volunteered to me that her grandson wanted to be a lawyer and that she was hoping he would. She looked around the room nervously and then came up to me. She had tears in her eyes and looked at me desperately.

“Please, please, help me get these people out of here, please.” I began to worry that things were going to get ugly, but I couldn’t sort out what to do. It seemed impossibly hard for them to expect people to just calmly abandon someone they loved so that he could be executed. I wanted to prevent things from getting out of control but felt powerless to do anything.

By this time, Herbert’s wife had started saying loudly, “I’m not going to leave you.”

Herbert had made a peculiar request the week before the execution. He said that if he was executed as scheduled, he wanted me to get the prison to play a recording of a hymn, “The Old Rugged Cross,” as he walked to the electric chair. I had been slightly embarrassed to raise the request when I spoke with prison officials, but to my utter amazement they had agreed to do it.

I remembered as a child that they always sang this hymn at somber moments during church services, on Communion Sundays, and Good Friday. It was sad like few other hymns I’d heard. I don’t know why exactly, but I started to hum it as I saw more uniformed officers enter the vestibule outside the visitation room. It seemed like something that might help. But help what?

After a few minutes, the family joined me. I went over to Herbert’s wife as she held him tightly, sobbing softly. I whispered to her, “We have to let him go.” Herbert saw the officers lining up outside, and he pulled away from her slowly and told me to take her out of the room.

Herbert’s wife clung to me and sobbed hysterically as I led her out of the visitation room with her family tearfully following. The experience
was heartbreaking, and I wanted to cry. But I just kept humming instead.

The prison had made arrangements for me to go back to the death chamber in about an hour to be with Herbert before the execution. Although I had worked on several death penalty cases with clients who had execution dates, I’d never before been present at an execution. In the cases where I had actually been counsel for the condemned while I was in Georgia, we’d always won stays of execution. I grew anxious thinking about witnessing the spectacle of a man being electrocuted, burned to death in front of me. I’d been so focused on obtaining the stay and then on what to say to Herbert when I got to the prison that I hadn’t actually thought about witnessing the execution. I no longer wanted to be there for that, but I didn’t want to abandon Herbert. To leave him in a room alone with people who wanted him dead made me realize that I couldn’t back out. All of a sudden the room felt incredibly hot, like there was no air anywhere. The visitation officer came up to me after I had escorted the family out and whispered in my ear, “Thank you.” I was vexed by her thinking of me as an accomplice and didn’t know what to say.

When there were less than thirty minutes before the execution, they took me back to the cell next to the execution chamber deep inside the prison where they were holding Herbert until it was time to put him in the electric chair. They had shaved the hair off his body to facilitate a “clean” execution. The state had done nothing to modify the electric chair since the disastrous Evans execution.
I thought about the botched execution of Horace Dunkins a month earlier and became even more distraught. I had tried to read up on what should happen at an execution; I had some misguided thought that I could intervene if they did something incorrectly.

Herbert was much more emotional when he saw me than he’d been in the visitation room. He looked shaken, and it was clear that he was upset. It must have been humiliating to be shaved in preparation for an execution. He looked worried, and when I walked into the
chamber he grabbed my hands and asked if we could pray, and we did. When we were done, his face took on a distant look and then he turned to me.

“Hey, man, thank you. I know this ain’t easy for you either, but I’m grateful to you for standing with me.”

I smiled and gave him a hug. His face sagged with an unbearable sadness.

“It’s been a very strange day, Bryan, really strange. Most people who feel fine don’t get to think all day about this being their last day alive with certainty that they will be killed. It’s different than being in Vietnam … much stranger.”

He nodded at all the officers who were milling about nervously. “It’s been strange for them, too.

“All day long people have been asking me, ‘What can I do to help you?’ When I woke up this morning, they kept coming to me, ‘Can we get you some breakfast?’ At midday they came to me, ‘Can we get you some lunch?’ All day long, ‘What can we do to help you?’ This evening, ‘What do you want for your meal, how can we help you?’ ‘Do you need stamps for your letters?’ ‘Do you want water?’ ‘Do you want coffee?’ ‘Can we get you the phone?’ ‘How can we help you?’ ”

Herbert sighed and looked away.

“It’s been so strange, Bryan. More people have asked me what they can do to help me in the last fourteen hours of my life than ever asked me in the years when I was coming up.” He looked at me, and his face twisted in confusion.

I gave Herbert one last long hug, but I was thinking about what he’d said. I thought of all the evidence that the court had never reviewed about his childhood. I was thinking about all of the trauma and difficulty that had followed him home from Vietnam. I couldn’t help but ask myself, Where were these people when he really needed them? Where were all of these helpful people when Herbert was three and his mother died? Where were they when he was seven and trying to recover from physical abuse? Where were they when he was a
young teen struggling with drugs and alcohol? Where were they when he returned from Vietnam traumatized and disabled?

I saw the cassette tape recorder that had been set up in the hallway and watched an officer bring over a tape. The sad strains of “The Old Rugged Cross” began to play as they pulled Herbert away from me.

There was a shamefulness about the experience of Herbert’s execution I couldn’t shake. Everyone I saw at the prison seemed surrounded by a cloud of regret and remorse. The prison officials had pumped themselves up to carry out the execution with determination and resolve, but even they revealed extreme discomfort and some measure of shame. Maybe I was imagining it but it seemed that everyone recognized what was taking place was wrong. Abstractions about capital punishment were one thing, but the details of systematically killing someone who is not a threat are completely different.

I couldn’t stop thinking about it on the trip home. I thought about Herbert, about how desperately he wanted the American flag he earned through his military service in Vietnam. I thought about his family and about the victim’s family and the tragedy the crime created for them. I thought about the visitation officer, the Department of Corrections officials, the men who were paid to shave Herbert’s body so that he could be killed more efficiently. I thought about the officers who had strapped him into the chair. I kept thinking that no one could actually believe this was a good thing to do or even a necessary thing to do.

The next day there were articles in the press about the execution. Some state officials expressed happiness and excitement that an execution had taken place, but I knew that none of them had actually dealt with the details of killing Herbert. In debates about the death penalty, I had started arguing that we would never think it was humane to pay someone to rape people convicted of rape or assault and abuse someone guilty of assault or abuse. Yet we were comfortable killing people who kill, in part because we think we can do it in a manner that doesn’t
implicate our own humanity, the way that raping or abusing someone would. I couldn’t stop thinking that we don’t spend much time contemplating the details of what killing someone actually involves.

I went back to my office the next day with renewed energy. I picked up my other case files and made updated plans for how to assist each client to maximize the chance of avoiding an execution. Eventually, I recognized that all my fresh resolve didn’t change much—I was really only trying to reconcile myself to the realities of Herbert’s death. I was comforted by the exercise just the same. I felt more determined to recruit staff and obtain resources to meet the growing challenges of providing legal assistance to condemned people. Eva and I talked about a few people who had expressed interest in joining our staff. There was some new financial support possible from a foundation, and that afternoon we finally received the office equipment we had ordered. By the end of the day, I was persuaded things would improve, even while I felt newly burdened by the weight of it all.

“It would have been so much easier if he had been out in the woods hunting by himself when that girl was killed.” Armelia Hand, Walter McMillian’s older sister, paused while the crowd in the small trailer called out in affirmation. I sat on a couch and looked out at the nearly two dozen family members who were staring at me as Armelia spoke.