Just Mercy (37 page)

The prosecutor chose to indict thirteen-year-old Joe Sullivan in adult court for sexual battery and other charges. There was no review of whether Joe should be tried in juvenile or adult court. Florida is one of a few states that allows the prosecutor to decide to charge a child in adult court for certain crimes and has no minimum age for trying a child as an adult.

At trial, Joe testified that he had participated in the earlier burglary but had not committed sexual battery. The prosecution relied primarily on the self-serving stories of McCants and Gulley, including Gulley’s claim that Joe had confessed the rape to him in a detention facility before trial. After implicating Joe, McCants was sentenced as an adult to four-and-one-half years and served just six months. Gulley, despite admitting his involvement in some twenty prior burglaries and a prior sex crime, was adjudicated and sentenced as a juvenile and spent only a short period of time in a juvenile detention facility.

The only physical evidence to implicate Joe was a latent partial palm-print that the state’s examiner testified matched him. This was consistent with Joe’s admitted presence in the bedroom prior to the rape. The police had collected seminal fluid and blood, but the state chose not to present it in court and then destroyed it before it could be tested by the defense. The prosecution also presented testimony from a police officer who got a “glimpse” of an African American youth running from the victim’s house after he observed Joe Sullivan at the police station being interrogated as the suspect in the sexual assault. He identified Joe as the fleeing youth.

Finally, the prosecution presented testimony from the victim, who, despite being coached through a rehearsal of her testimony outside the presence of the jury, could not affirmatively identify Joe Sullivan as the perpetrator.
Joe was made to say in court what the victim remembered her assailant saying to her, but she testified that Joe’s voice “could very easily be” that of the perpetrator.

Joe was convicted by a six-person jury after a trial that lasted only one day. Opening statements began sometime after 9
A.M.
, and the jury returned its verdict at 4:55
P.M.
Joe’s appointed counsel was later suspended from practice in Florida and never reinstated. The defense lawyer had filed no written pleadings and uttered no more than twelve transcript lines at sentencing. There was a great deal to say that was never said.

At the time of his arrest in 1989, Joe Sullivan was a thirteen-year-old boy with mental disabilities who read at a first-grade level, had experienced repeated physical abuse by his father, and had suffered severe neglect. His family had disintegrated into what state officials described as “abuse and chaos.” From age ten until his arrest, Joe had no stable home; he had no fewer than ten different addresses within this three-year period. He spent most of his time on the streets, where police stopped him for violations including trespassing, stealing a bike, and property crimes committed with his older brother and other older teens.

Joe had been brought to court and adjudicated on a single occasion, when he was twelve years old. The juvenile probation officer assigned to Joe’s case attributed his behavior to the fact that “he is easily influenced and associates with the wrong crowd.” She observed that “[i]t is apparent that Joe is a very immature naive person who is a follower rather than a leader” and that he has the potential to “be a positive and productive individual.”

Joe’s record of mostly misdemeanor-level juvenile incidents—nearly all of which were nonviolent and which did not merit more than a single court adjudication in a two-year period—was viewed differently by the sentencing judge, who concluded that “the juvenile system has been utterly incapable of doing anything with Mr. Sullivan.” The court concluded that Joe had been “given opportunity after opportunity to upright himself and take advantage of the second and third chances he’s been given.” In truth, Joe was never given a second,
much less a third, chance to “upright himself,” but he was nonetheless characterized at age thirteen as a “serial” or “violent recidivist” by prosecutors. The judge sentenced him to life imprisonment without the possibility of parole.

Despite numerous potentially meritorious grounds for appeal, Joe’s appointed appellate counsel filed an
Anders
brief—indicating his belief that there were no legitimate grounds for appeal and no credible basis to complain about the conviction or sentence—and was permitted to withdraw from representing Joe. Joe, just one year into his own adolescence, was sent to adult prison, where an eighteen-year nightmare began. In prison, he was repeatedly raped and sexually assaulted. He attempted suicide on multiple occasions. He developed multiple sclerosis, which eventually forced him into a wheelchair. Doctors later concluded that his neurological disorder might have been triggered by trauma in prison.

Another inmate housed with Joe wrote to us and described him as disabled, horribly mistreated, and wrongfully condemned to die in prison for a non-homicide crime at thirteen. In 2007, we wrote to Joe and discovered that he had no legal assistance and had spent the previous eighteen years in prison with no one to help him challenge his conviction or sentence. When I received Joe’s response to my letter, a scribbled note in the handwriting of a child, he could still only read at a third-grade level, despite the fact that he was thirty-one. He told me in his letter that he was “okay.” Then he wrote, “If I didn’t do anything, shouldn’t I be able to go home now? Mr. Bryan, if this is true, can you please write me back and come get me?”

I wrote to Joe that we would look deeper into his case and that we were convinced that he had a credible claim of innocence. We attempted to prove his innocence through a motion for DNA testing, but because the state had destroyed the relevant biological evidence,
the motion was denied. Disheartened, we decided to challenge Joe’s death-in-prison sentence as unconstitutionally cruel and unusual punishment.

I drove from Montgomery through South Alabama to Florida and then along a tangle of wooded back roads to get to the Santa Rosa Correctional Facility in the town of Milton to meet Joe for the first time. Santa Rosa County borders the Gulf of Mexico at the western end of the Florida Panhandle and had long been known for agriculture. Between 1980 and 2000, the county’s population doubled in size as the coastal areas attracted beach homes and resort properties. Many affluent families left Pensacola for Santa Rosa County, and military families from nearby Eglin Air Force Base settled there. But there was another industry in town—incarceration.

The Florida Department of Corrections built the prison to house 1,600 people in the 1990s, when America was opening prisons at a pace never before seen in human history. Between 1990 and 2005, a new prison opened in the United States every ten days. Prison growth and the resulting “prison-industrial complex”—the business interests that capitalize on prison construction—made imprisonment so profitable that millions of dollars were spent lobbying state legislators to keep expanding the use of incarceration to respond to just about any problem. Incarceration became the answer to everything—health care problems like drug addiction, poverty that had led someone to write a bad check, child behavioral disorders, managing the mentally disabled poor, even immigration issues generated responses from legislators that involved sending people to prison. Never before had so much lobbying money been spent to expand America’s prison population, block sentencing reforms, create new crime categories, and sustain the fear and anger that fuel mass incarceration than during the last twenty-five years in the United States.

When I arrived at Santa Rosa, I didn’t encounter any staff who were people of color, although 70 percent of the men incarcerated there were black or brown. This was a bit unusual; I frequently saw black and brown correctional officers at other prisons. I was subjected to an
elaborate admission process and given a beeper to activate if I was ever threatened or distressed while inside the prison. I was escorted to a forty-by-forty-foot room where more than two dozen incarcerated men sat sadly while uniformed correctional staff buzzed in and out.

There were three six-foot-tall metal cages in the corner that couldn’t have been more than four feet by four feet. In all my years of visiting prisons, I had never seen such small cages used to hold a prisoner inside a secure prison. I wondered what danger the caged men presented that they couldn’t sit with the other incarcerated men on the benches. Two young men stood in each of the first two cages. In the third cage, which was wedged into the corner, sat a small man in a wheelchair. His wheelchair faced the back of the cage, so he could not look out into the room. I couldn’t see his face, but I was certain it was Joe. A correctional officer was constantly walking into the room and calling out a name, prompting one of the men to get up from his bench and follow the officer down a hallway where he would meet with an assistant warden or whomever they were scheduled to see. Finally, the officer called out, “Joe Sullivan, legal visit.” I walked over to the man and said that I was the attorney for the legal visit. He summoned two officers, who went to Joe’s cage to unlock it. The cage was so small that when they tried to remove Joe’s wheelchair, the spokes on the chair got caught on the cage, and they couldn’t budge it.

I stood there watching for several minutes while more officers got involved in an increasingly elaborate effort to dislodge Joe’s wheelchair from the tight cage. They pulled up on the wheelchair. Then they pushed down on the chair, raising the front off the ground, but this didn’t work, either. They tugged at the chair with loud grunts and tried to force it free, but it was completely stuck.

Two inmate trustees who had been mopping the floor stopped to watch the officers struggle with the wheelchair and the cage. They finally offered to help out, even though no one had asked for their input. The officers silently accepted the assistance of the inmates, but none of them could come up with a solution. As the staff became more frustrated by their inability to get Joe out of the cage, there was talk of
using pliers and hacksaws, of putting the cage on its side with Joe in it. Someone suggested trying to lift Joe from his wheelchair to remove him without the chair, but both Joe and the chair were packed so tightly into the cage that no one could get in to move him.

I asked the guards why he was in the cage in the first place, which prompted a brusque response: “Lifer. All lifers have to be moved with higher security protocols.”

I couldn’t see Joe’s face while all of this was going on, but I could hear him crying. He occasionally made a whining sound, and his shoulders jerked up and down. When the staff proposed turning the cage on its side, he moaned audibly. Finally, the prisoner trustees suggested lifting the cage and tilting it slightly, which everyone agreed to try. The two trustees lifted and tilted the heavy cage, while three officers yanked Joe’s chair with a violent pull that finally dislodged it. The guards gave each other high fives, the inmate trustees walked away silently, and Joe sat motionlessly in his chair in the middle of the room, looking down at his feet.

I walked over to him and introduced myself. His face was tear-stained, and his eyes were red, but he looked up at me and began clapping his hands giddily. “Yeah! Yeah! Mr. Bryan.” He smiled and offered me both of his hands, which I took.

I wheeled Joe to a cramped office for our legal visit. He continued cheering quietly and kept clapping his hands in excitement. I had to argue with the attending prison guard for permission to close the door and talk confidentially with Joe. The officer eventually relented. Joe seemed to relax when I closed the door. Despite the terrifying start to the visit, he was extremely cheerful. I couldn’t shake the feeling that I was talking to a young child.

I explained to Joe how disappointed we were that the State had destroyed the biological evidence that might have allowed us to prove he was innocent through DNA testing. We had discovered that both the victim and one of his co-defendants had died. The other co-defendant would not say anything about what had really happened, making it extremely difficult for us to challenge Joe’s conviction. I then offered
our new idea about challenging his sentence as unconstitutional, which might create another way for him to possibly go home. He smiled throughout my explanation, although it was clear he didn’t understand all of it. He had a legal pad on his lap, and when I finished he told me that he had prepared some questions for our visit.

During the entire visit I kept thinking about how he was much more enthusiastic and excited than I had expected him to be, given his history. When he told me about the questions he had prepared for me, he was practically bubbling. He explained that if he ever got out of prison he might want to be a reporter so “I can tell people what’s really going on.” He spoke with great pride when he announced that he was ready to ask his questions.

“Joe, I’ll be happy to answer your questions. Fire away.”

He read with some difficulty.

“Do you have children?” He looked up at me expectantly.

“No, I don’t have children. I have nieces and nephews, though.”

“What is your favorite color?” He once again smiled eagerly.

I chuckled, since I don’t have a favorite color. But I wanted to respond to him.

“Brown.”

“Okay, my last question is the most important.” He looked up at me briefly with big eyes and smiled. He then became serious and read his question.

“Who is your favorite cartoon character?” He was beaming when he looked at me.

“Please, tell the truth. I really want to know.”

I couldn’t think of anything and had to force myself to keep smiling. “Wow, Joe, I honestly don’t know. Can I think about that and get back to you? I’ll write you with my answer.” He nodded enthusiastically.

Over the next three months I received a flood of scrawled letters from Joe, one almost every day. The letters were usually short statements
about what he’d eaten that day or what show he’d seen on television. Sometimes they were just two or three Bible verses he had copied. He would always ask me to write him back and let him know if his handwriting was improving. Sometimes the letters contained only a few words or a single question like, “Do you have friends?”