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  Another inmate who wrote letters for Myers at the Monroe County Jail explained that Myers didn’t know McMillian, had no knowledge of the Morrison murder, and was being pressured by police to testify falsely against McMillian.

  We saved the most powerful evidence for the end. The tapes that Tate, Benson, and Ikner had made when they interrogated Myers were pretty dramatic. The multiple recorded statements Myers gave to the police featured Myers repeatedly telling the police that he didn’t know anything about the Morrison murder or Walter McMillian. They included the officers’ threats against Myers and Myers’s resistance to framing an innocent man for murder. Not only did the tapes confirm Myers’s recantation and contradict his trial testimony, they exposed the lie that Pearson had told the court, the jury, and McMillian’s trial counsel—that there were only two statements provided by Myers. In fact, Myers gave at least six additional statements to the police that were largely consistent with his testimony at the Rule 32 hearing that he had no information about Walter McMillian committing the Ronda Morrison murder. All of these recorded statements were typed, exculpatory, and favorable to Walter McMillian, and none of them had been disclosed to McMillian’s attorneys, as was required.

  I called on McMillian’s trial lawyers, Bruce Boynton and J. L. Chestnut, to testify about how much more they could have done to win an acquittal if the State had turned over the evidence it had suppressed. We finished the presentation of our evidence and, to our surprise, the State put on no rebuttal case. I didn’t know what they could have presented to rebut our evidence, but I’d assumed they would present something. The judge seemed surprised, too. He paused and then said he wanted the parties to submit written briefs arguing what ruling he should make. We had hoped for this, and I was relieved that the court would give us time to explain the significance of all the evidence in writing and assist him in preparing his order, an order I hoped would set Walter free. At the end of three days of intense litigation, the judge adjourned the proceedings in the late afternoon.

  Michael and I had been in a rush the final morning of the hearing and hadn’t checked out of our hotel before leaving for the courthouse. We said our farewells to the family in the courtroom and went back to the hotel, feeling exhausted but satisfied.

  Bay Minette, where the hearing took place, is about thirty minutes from the beautiful beaches on the Gulf of Mexico. We had started a tradition of bringing our staff down to the beach each September, and we’d all fallen in love with the clear warm waters of the Gulf. The white sand and pleasantly underdeveloped beachfront were spectacular and soothing. The view was slightly spoiled by the massive offshore oil rigs you could see in the distance, but if you could make yourself forget about them, you’d think you were in paradise. Dolphins loved this part of the Gulf and could be spotted in the early mornings, playfully making their way through the water. I’d often thought we should move our office to right there on the beach.

  It was Michael’s idea to hit the beach before heading back to Montgomery. I wasn’t sure it was a good idea, but the day was warm and the coast was so close, I couldn’t resist. We jumped in the car, trailing the last hours of sunlight to the beautiful shores near Fort Morgan, Alabama. As soon as we got there, Michael changed from his suit to swim trunks and went sprinting into the ocean. I was too tired to race into the sea, so I put on some shorts and sat down at the water’s edge. It would soon be dusk, but the heat persisted. My head was full of everything that had transpired in court: I was replaying what witnesses had said and worrying about whether things had gone exactly right. I was trawling through every detail in my mind, every possible misstep, until I caught myself. It was over; there was no point in making myself crazy by overthinking it now. I decided to dive into the ocean and, for a moment at least, forget it all.

  Recently, stranded at the airport with nothing else to read, I had read an article about shark attacks. As I approached the waves at Fort Morgan, now lit by the sunset, I remembered that sharks feed at dusk and at dawn. I watched Michael swimming far off shore, and as fun as it looked, I knew I’d be the more vulnerable target if a shark showed up. Michael swam like a fish while I barely stayed afloat.

  Michael waved at me and shouted: “B-man, come on out!” I cautiously ventured into the water far enough to explain my concerns about sharks to him. He laughed at me. The water felt warm and wonderful, comforting in a way I hadn’t expected. A school of fish zipped by my legs, and I stared at them in wonder until I realized that they might be fleeing some larger predator. I carefully made my way back to the shore.

  I sat on the sandy shore and watched the brilliant white pelicans gliding effortlessly over the still waters in search of food. Small fiddler crabs scurried around me, too fearful to get close but curious enough to linger nearby. I thought about Walter making his way back to Holman, shackled in the back of the van again. I wanted him to be hopeful but grounded enough to manage whatever the court decided. I thought about his family and all the people who had come to court. They’d kept the faith through the five years that had passed since Walter was first arrested, and now they had cause to feel energized and encouraged. I thought about Mrs. Williams. She had come up to me after the hearings and had given me a sweet kiss on the cheek. I told her how happy I was she’d come back to court. She looked at me playfully. “Attorney Stevenson, you know I was going to be here, and you know I wasn’t going to let these people keep me out.” Her words had made me smile.

  Michael got out of the water looking worried.

  “What did you see?” I joked. “Shark? Eel? Poisonous jellyfish? Stingray? Piranha?”

  He was out of breath. “They’ve threatened us, lied to us, there are people who have told us that some folks in the county are so unnerved by what we’re doing that they’re going to kill us. What do you think they’re going to do now that they know how much evidence we have to prove Walter’s innocence?”

  I had given this some thought, too. Our opponents had done everything they could to frame Walter—in order to kill him. They’d lied to us and subverted the judicial process. More than a few people had passed on to us that they’d heard angry people in the community make threats on our lives because they believed we were trying to help a guilty murderer get off death row.

  “I don’t know,” I told Michael, “but we have to press on, man, we have to press on.”

  We both sat there in silence, watching the sun fade into darkness. More fiddler crabs emerged from their holes, scurrying crazily and getting closer to where we sat. I turned to Michael in the approaching darkness.

  “We should go.”

  Chapter Ten

  Mitigation

  America’s prisons have become warehouses for the mentally ill.

  Mass incarceration has been largely fueled by misguided drug policy and excessive sentencing, but the internment of hundreds of thousands of poor and mentally ill people has been a driving force in achieving our record levels of imprisonment. It’s created unprecedented problems.

  I first met Avery Jenkins over the telephone. He called me, but he was pretty incoherent. He couldn’t explain what he had been convicted of or even clearly describe what he wanted me to do. He complained about the conditions of his confinement until a random thought caused him to abruptly switch topics. He sent letters, too, but they were just as hard to follow as his phone calls, so I decided to speak with him in person to see if I could make better sense of how to help.

  For over a century, institutional care for Americans suffering from serious mental illness shifted between prisons and hospitals set up to manage people with mental illness. In the late nineteenth century, alarmed by the inhumane treatment of incarcerated people suffering from mental illness, Dorothea Dix and Reverend Louis Dwight led a successful campaign to get the mentally ill out of prison. The numbers of incarcerated people with serious mental illness declined dramatically, while public and private mental health facilities emerged to provide care to the mentally distressed. State mental hospitals were s
oon everywhere.

  By the middle of the twentieth century, abuses within mental institutions generated a lot of attention, and involuntary confinement of people became a significant problem. Families, teachers, and courts were sending thousands to institutions for eccentricities that were less attributable to acute mental illness than resistance to social, cultural, or sexual norms. People who were gay, resisted gender norms, or engaged in interracial dating often found themselves involuntarily committed. The introduction of antipsychotic medications like Thorazine held great promise for many people suffering from some severe mental health disorders, but the drug was overused in many mental institutions, resulting in terrible side effects and abuses. Aggressive and violent treatment protocols at some facilities generated horror stories that fueled a new campaign, this time to get people out of institutional mental health settings.

  In the 1960s and 1970s, laws were enacted to make involuntary commitment much more difficult. Deinstitutionalization became the objective in many states. Mental health advocates and lawyers succeeded in winning a series of Supreme Court cases that forced states to transfer institutional residents to community programs. Legal rulings empowered people with developmental disabilities to refuse treatment and created rights for the mentally disabled that made forced institutionalization much less common. By the 1990s, several states had a deinstitutionalization rate of over 95 percent, meaning that for every hundred patients who had been residents in state hospitals before deinstitutionalization programs, fewer than five were residents when the study was conducted in the 1990s. In 1955, there was one psychiatric bed for every three hundred Americans; fifty years later, it was one bed for every three thousand.

  While these reforms were desperately needed, deinstitutionalization intersected with the spread of mass imprisonment policies—expanding criminal statutes and harsh sentencing—to disastrous effect. The “free world” became perilous for deinstitutionalized poor people suffering from mental disabilities. The inability of many disabled, low-income people to receive treatment or necessary medication dramatically increased their likelihood of a police encounter that would result in jail or prison time. Jail and prison became the state’s strategy for dealing with a health crisis created by drug use and dependency. A flood of mentally ill people headed to prison for minor offenses and drug crimes or simply for behaviors their communities were unwilling to tolerate.

  Today, over 50 percent of prison and jail inmates in the United States have a diagnosed mental illness, a rate nearly five times greater than that of the general adult population. Nearly one in five prison and jail inmates has a serious mental illness. In fact, there are more than three times the number of seriously mentally ill individuals in jail or prison than in hospitals; in some states that number is ten times. And prison is a terrible place for someone with mental illness or a neurological disorder that prison guards are not trained to understand.

  For instance, when I still worked in Atlanta, our office sued Louisiana’s notorious Angola Prison for refusing to modify a policy that required prisoners in segregation cells to place their hands through bars for handcuffing before officers entered to move them. Disabled prisoners with epilepsy and seizure disorders would sometimes need assistance while convulsing in their cells, and because they couldn’t put their hands through the bars, guards would mace them or use fire extinguishers to subdue them. This intervention aggravated the health problems of the prisoners and sometimes resulted in death.

  Most overcrowded prisons don’t have the capacity to provide care and treatment to the mentally ill. The lack of treatment makes compliance with the myriad rules that define prison life impossible for many disabled people. Other prisoners exploit or react violently to the behavioral symptoms of the mentally ill. Frustrated prison staff frequently subject them to abusive punishment, solitary confinement, or the most extreme forms of available detention. Many judges, prosecutors, and defense lawyers do a poor job of recognizing the special needs of the mentally disabled, which leads to wrongful convictions, lengthier prison terms, and high rates of recidivism.

  I once represented a mentally ill man on Alabama’s death row named George Daniel. George had suffered brain damage in a car accident that knocked him unconscious late one night in Houston, Texas. When he woke up, he was in an upside-down car on the side of the road. He went home that night and never sought medical assistance. His girlfriend later told his family that at first he just seemed a little off. Then he started hallucinating and exhibiting increasingly bizarre and erratic behavior. He stopped sleeping regularly, complained about hearing voices, and on two occasions ran out of the house naked because he thought he was being chased by wasps. Within a week of the accident he had stopped speaking in sentences. Just before his mother, who lived in Montgomery, was summoned to help persuade him to go to a hospital, George boarded a Greyhound bus in the middle of the night. He traveled as far as the money he had in his pocket would take him.

  Disoriented and uncommunicative, he was forced off the bus in Hurtsboro, Alabama, after unnerving some passengers by talking loudly to himself and gesturing wildly at objects he imagined were flying around him. The bus had gone through Montgomery, where he had family, but he stayed on until he was thrown off, with no money and wearing jeans, a T-shirt, and no shoes in the middle of January. He wandered around Hurtsboro and eventually stopped at a house. He knocked on the door, and when the homeowner opened it, George walked inside without being invited and roamed around until he found the kitchen table, where he sat down. The alarmed homeowner called her son, who came and physically removed George from the house. George went to another home owned by an older woman and did the same thing. She called the police. The officer who responded had a reputation for being aggressive, and he forcefully removed George from the home. George started resisting while being pulled to the police car, and the two men began wrestling and fell to the ground. The officer pulled his weapon and the two were grappling over the gun when it discharged, shooting the officer in the stomach. He died from the gunshot wound.

  George was arrested and charged with capital murder. While in the Russell County jail, he became acutely psychotic. Officers reported that he wouldn’t leave his cell. He was observed eating his own feces. His mother visited him, but he didn’t recognize her. He couldn’t speak in complete sentences. The two lawyers who were appointed to represent him at his capital trial were primarily concerned that only one of them would be paid the $1,000 for out-of-court time that Alabama provided lawyers appointed in capital cases. They began squabbling with each other, and one filed a civil suit against the other about who could claim the money. Meanwhile, the judge sent George to Bryce Hospital in Tuscaloosa for a competency examination. Ed Seger, the doctor who examined George, mysteriously concluded that he was not mentally ill but was “malingering” or faking symptoms of mental illness.

  Based on that evaluation, the judge allowed the capital murder trial to proceed. George’s lawyers bickered with one another, presented no defense, and called no witnesses. The State called Dr. Seger, who persuaded the jury that there was nothing mentally wrong with George, even as he continuously spit in a cup and made loud clucking noises throughout the trial. George’s family members were distraught. George had been working at a Pier 1 furniture store in Houston before his car accident. He left town without picking up his check, which had been ready for collection for over two days before his departure. His mother, a poor woman who knew the value of a dollar to someone like George, found this behavior more demonstrative of mental illness than anything else she could point to, and she authorized the lawyers to obtain the unclaimed check in the hope that they could present it at the trial to confirm George’s confused mental state. The lawyers, who were still bickering over the money, cashed the check to pay themselves instead of using it as evidence.

  George was convicted and given the death penalty. By the time we at EJI got involved, he had been on death row for several years, moving inexorably toward execution. When
I met him, prison doctors were heavily medicating him with psychotropic drugs, which at least stabilized his behavior. It was so abundantly clear that George was mentally ill that it came as no shock when we discovered that the doctor who had examined him at Bryce Hospital was a fraud with no medical training. “Dr. Ed Seger” had made up his credentials. He had never graduated from college but had fooled hospital officials into believing he was a trained physician with expertise in psychiatry. He had masqueraded at the hospital for eight years conducting competency evaluations on people accused of crimes before his fraud was uncovered.

  I represented George in his federal court proceedings. There, the State acknowledged that Seger was an imposter but wouldn’t agree that George was entitled to a new trial. We eventually won a favorable ruling from a federal judge who overturned his conviction and sentence. Because of his mental illness and incompetency, George was never retried or prosecuted. He has been at a mental institution ever since. But there are likely hundreds of other people imprisoned after an evaluation by “Dr. Seger” whose convictions have never been reviewed.

  A lot of my clients on death row have had serious mental illnesses, but it wasn’t always obvious that their history of mental illness predated their time in prison, since symptoms of their disabilities could be episodic and were frequently stress-induced. But Avery Jenkins’s letters, handwritten in print so small I needed a magnifying glass to read them, convinced me that he had been very ill for a long time.

  I looked up his case and began to piece together his story. It turned out he’d been convicted of the very disturbing and brutal murder of an older man. The multiple stab wounds inflicted on the victim strongly suggested mental illness, but the court records and files never referenced anything about Jenkins suffering from a disability. I thought I’d find out more by meeting him in person.