Just Mercy (33 page)

When Hurricane Ivan hit coastal Alabama and blew chaos and calamity into Marsha’s life, she thought things were as bad as they could get. Ivan spawned 119 tornadoes and created over $18 billion dollars in damage. With six children to protect, she had no time to panic over the loss of their home or the violent destruction of everything around them. It was the uncertainty that worried Marsha. Where would she or her husband find work? How long would the kids be out of school? What would they do for money? What would they do for food? Everyone on the Gulf Coast was feeling vulnerable in the face of such an uncertain future. The constant wave of tropical storms and hurricanes that menaced coastal Louisiana, Alabama, Mississippi, and Florida in the summer of 2004 turned their relaxed Southern coastal life into an apocalyptic struggle for survival.

Marsha and Glen Colbey were living in a crowded trailer with their children, and they knew they were at risk when the hurricane warnings were announced. They weren’t alone; plenty of other families shared their situation, which offered some consolation. But when Ivan destroyed the Colbey home in September, there was little comfort in finding herself in line with thousands of other people seeking assistance from the Federal Emergency Management Agency (FEMA). Aid eventually came. The Colbeys were given a FEMA camper trailer as temporary housing, and they put it on their property so the kids could stay in their nearby schools. Marsha and Glen had found construction work and roofing jobs at the start of the summer, but now it would be weeks before rebuilding jobs would be available.

Marsha could also tell that she was pregnant. She was forty-three years old and hadn’t planned on having another child. All she could think about was how in a few months the pregnancy would limit her ability to do construction work. Her worry sometimes tipped over into a deeper anxiety that triggered an old temptation: drugs. But there were too many people depending on her, and there was too
much to manage to give in. Five years earlier, police were called after nurses had found cocaine in her system when she was pregnant with her youngest son, Joshua, and the authorities had terrified her with accusations and threats of criminal prosecution, imprisonment, and the seizure of her children. She was not going to risk that again.

She and Glen were dirt poor, but Marsha had always compensated for the things she couldn’t give her kids by giving them all of her heart. She read to them, talked to them, played with them, hugged and kissed them constantly, and kept them close at all times. Against all odds, she nurtured a precious family bonded by an intense love. Her older boys, even her nineteen-year-old, stayed close to her at home despite the many distractions that emerged as they finished high school. Marsha liked being a mom. It’s why she didn’t worry about having so many kids. Getting pregnant with a seventh was not what she had expected or preferred, but she would love this child as she had loved each one before.

By winter, things in Baldwin County had settled down. Jobs had returned, and Glen finally found more steady work. The family was still struggling financially, but most of the kids were back in school, and it seemed as if they had survived the worst of the destruction.

Marsha knew that a pregnancy at her age was very risky, but she couldn’t afford to see a doctor. She just didn’t have the money to spare. Having endured six previous deliveries, she knew what to expect and thought she’d make the best of it without prenatal care. She tried not to worry even though she’d been experiencing some pains and problems with this pregnancy that she didn’t remember having before. There had been bleeding; if she could have afforded an examination, a doctor would have found signs of placental abruption.

Their old trailer sat next to the new FEMA camper and was largely uninhabitable, but it still had running water and a bathtub, which afforded Marsha a quiet getaway from time to time. One day, she wasn’t feeling well and thought a long hot bath would do her good. She settled into a tub of hot water minutes before a violent labor began. She
sensed it was happening too fast and before she knew it, she’d delivered a stillborn son. She desperately tried to revive the infant, but he never took a breath.

Although she’d initially fretted about the pregnancy, Marsha mourned the baby’s death and insisted on giving him a name and a family burial. They named him Timothy and buried him in a marked grave beside their small camper home. The baby’s stillbirth might have remained a private tragedy for Marsha and her family had it not been for a nosy neighbor who had long been suspicious of the Colbeys.

Debbie Cook noticed that Marsha Colbey was no longer pregnant but did not have a baby, which stirred her interest in the details of the stillbirth. Marsha didn’t trust the woman and was evasive when she made inquiries.
Cook, who worked at the elementary school attended by Mrs. Colbey’s children, eventually instructed one of the school cafeteria workers to call the police about the absent infant. Officer Kenneth Lewellen spoke with Ms. Cook and then went to Ms. Colbey’s home. Marsha, still grieving the loss of her baby and frustrated by the meddling, reacted badly to the police questioning. She initially attempted to misdirect the officer and the investigators in an effort to protect her privacy. It wasn’t a smart thing to do, but she was outraged by their prodding. When Lewellen noticed the marked grave beside the Colbey’s home, Marsha admitted it was the burial site for her recently delivered stillborn son.

Kathleen Enstice, a forensic pathologist who worked for the state, was summoned to exhume the infant’s body. Marsha was shocked that law enforcement would do something so upsetting without justification. As soon as the baby was exhumed but before she had an opportunity to formally examine the body, Enstice told an investigator that she believed that the baby had been born alive. She later conceded that she had no basis for such an opinion and that without an autopsy and tests there was no way she could know if a baby had been born alive. As it turned out,
Enstice had a history of prematurely and incorrectly
declaring deaths to be homicides without adequate supporting evidence.

The pathologist subsequently performed an autopsy at the Department of Forensic Sciences laboratory in Mobile.
She not only concluded that Marsha Colbey’s baby was born alive but also asserted that the child would have survived with medical attention. Even though most experts agree that forensic pathologists—who primarily deal with dead people—are not qualified to estimate survival chances, the State allowed prosecutors to pursue criminal charges.

Unbelievably, Marsha Colbey—a few short weeks after delivering her stillborn son—found herself arrested and charged with capital murder. Alabama is among the growing list of states that make the murder of a person under the age of fourteen a capital offense punishable by the death penalty. The child-victim category resulted in a tremendous increase in the number of young mothers and juveniles who were sent to death row. All five women on Alabama’s death row were condemned for the unexplained deaths of their young children or the deaths of abusive spouses or boyfriends—all of them.
In fact, nationwide, most women on death row are awaiting execution for a family crime involving an allegation of child abuse or domestic violence involving a male partner.

At trial, Kathleen Enstice testified that Timothy was born alive and had died by drowning.
She testified that her conclusion of a live birth was a “diagnosis of exclusion”—that is, she could not find evidence that the baby was stillborn and did not have another explanation for his death. Her testimony was exposed as unreliable by the State’s own expert witness, Dr. Dennis McNally, an obstetrician/​gynecologist who examined Mrs. Colbey two weeks after the stillbirth.
Dr. McNally testified that Mrs. Colbey’s pregnancy was at high risk for “unexplained fetal death” because of her age and lack of prenatal care.
Enstice’s conclusion was further discredited by Dr. Werner Spitz, who had authored the medical treatise Enstice had relied on in her forensic pathology training. Dr. Spitz testified for the defense that he would
“absolutely not” declare a live birth, let alone a homicide, under the circumstances of this case.

With no credible scientific evidence that a crime had occurred, the State introduced inflammatory evidence that Marsha was poor, a prior drug user, and obviously a bad mother for not seeking prenatal care.
Police investigators went into her home and took photographs of an unflushed toilet and a beer can on the floor, which were waved in front of the jury as evidence of neglect and bad parenting.

Mrs. Colbey consistently maintained during multiple interrogations that the baby was stillborn. She told investigators that her son was born dead and never took a breath, despite her efforts to revive him. Mrs.
Colbey rejected the State’s offer of a plea agreement, pursuant to which she would have gone to prison for eighteen years, because she was adamant that she had done nothing wrong.

The prosecution of Marsha Colbey eventually caught the attention of the press, which was titillated by another “dangerous mother” story. The crime was sensationalized by the local media, which lauded the police and prosecutor for coming to the aid of a defenseless infant. Demonizing irresponsible mothers had become a media craze by the time Marsha’s trial was scheduled. Tragic narratives of mothers killing their children were national sensations. When Andrea Yates drowned her five children in Texas in 2001, the tragedy became a national story. Susan Smith’s effort to blame random black men for the death of her children in South Carolina before later admitting to murdering them fascinated crime-obsessed Americans. In time, media interest in these kinds of stories grew into a national preoccupation.
Time
magazine called the prosecution of Casey Anthony, the young Florida mother ultimately acquitted in the death of her two-year-old daughter, the “social media trial of the century” after the story generated nonstop coverage on cable networks.

The murder of a child by a parent is horrific and is usually complicated by serious mental illness, as in the Yates and Smith cases. But these cases also tend to create distortions and bias. Police and prosecutors have been influenced by the media coverage, and a presumption
of guilt has now fallen on thousands of women—particularly poor women in difficult circumstances—whose children die unexpectedly. Despite America’s preeminent status among developed nations, we have always struggled with high rates of infant mortality—much higher than in most developed countries. The inability of many poor women to get adequate health care, including prenatal and post-partum care, has been a serious problem in this country for decades. Even with recent improvements, infant mortality rates continue to be an embarrassment for a nation that spends more on health care than any other country in the world.
The criminalization of infant mortality and the persecution of poor women whose children die have taken on new dimensions in twenty-first-century America, as prisons across the country began to bear witness.

Communities were on the lookout for bad moms who should be put in prison. About the same time as Marsha’s prosecution, Bridget Lee gave birth to a stillborn baby in Pickens County, Alabama. She was charged with capital murder and wrongfully imprisoned. Lee, a church pianist, mother of two, and bank bookkeeper, had gotten pregnant after an extramarital affair. Scared and depressed, the thirty-four-year-old hid her pregnancy and hoped to secretly put the child up for adoption. But she went into labor five weeks before her due date, and the baby was stillborn. She didn’t tell her husband about the stillbirth, which aroused suspicion. The disreputable circumstances surrounding Lee’s pregnancy were enough to influence the pathologist who conducted the autopsy to conclude that the stillborn baby was born alive and was then suffocated by Lee. Months after Lee was arrested and charged with capital murder, six additional pathologists examined the body and unanimously concluded that neonatal pneumonia had killed the child—it was a classic stillbirth with very common features.
This new information led the prosecutor to drop the charges, sparing Ms. Lee a capital trial and, potentially, the death penalty. The discredited pathologist left Alabama but continues to serve as a practicing medical examiner in Texas.

In hundreds of other cases, falsely accused women never received
the forensic help they needed to avoid wrongful convictions. A few years earlier, before representing Marsha Colbey, we took on the case of Diane Tucker and Victoria Banks. An intellectually disabled black woman living in Choctaw County, Alabama, Ms. Banks was accused of killing her newborn child even though police had no credible basis for believing she had ever been pregnant. Banks had allegedly told a deputy sheriff that she was pregnant to avoid time in jail for an unrelated matter. When she was seen months later with no child, police accused her of killing her infant. Disabled and without adequate legal assistance, Ms. Banks was coerced into pleading guilty to killing a child who had never existed along with her sister, Ms. Tucker. Because she was facing capital murder charges and a potential death sentence, she made a deal to accept a prison sentence of twenty years. Law enforcement officials refused to investigate her claims of innocence prior to sending her to prison.
We won her freedom after establishing that she had had a tubal ligation five years prior to her arrest, which made it biologically impossible for her to conceive, let alone give birth to, a child.

In addition to unexplained deaths of infants parented by poor women, other kinds of “bad parenting” have also been criminalized. In 2006, Alabama passed a law that made it a felony to expose a child to a “dangerous environment” in which the child could encounter drugs. This “child chemical endangerment statute” was ostensibly passed to protect children living in households where there were meth labs or drug-trafficking operations. But the law was applied much more broadly, and soon thousands of mothers with children living in poor, marginalized communities where drugs and drug addiction are rampant were at risk of prosecution.

In time, the Alabama Supreme Court interpreted the term
environment
to include the womb and the term
child
to include a fetus. Pregnant women could now be criminally prosecuted and sent to prison for decades if there was any evidence that they had used drugs at any point during their pregnancy. Dozens of women have been sent to
prison under this law in recent years, rather than getting the help they needed.