Just Mercy: A Story of Justice and Redemption Read online

  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.

  The hysteria surrounding bad mothers made a fair trial for Marsha Colbey very difficult. During jury selection, numerous jurors announced that they could not be impartial toward Mrs. Colbey. Some jurors indicated that they found allegations of killing a child so disturbing that they could not honor the presumption of innocence. Several revealed that they had such a close relationship with one of the state investigators—a key State witness who had been especially vocal about identifying bad mothers—that they would give him “instant credibility” and would “believe everything [he] said was credible.” Another juror admitted trusting law enforcement witnesses he knew to the point where he would “believe anything they say.”

  The trial court allowed almost all of these jurors to remain on the jury panel despite defense objections. Ultimately, a jury who brought many presumptions and biases to the trial of Marsha Colbey was selected to decide her fate.

  The jury returned a verdict of guilty on one count of capital murder. Prior to rendering a verdict, jurors expressed concerns about Mrs. Colbey being subject to the death penalty, so the State agreed not to pursue an execution if she was found guilty. This concession yielded an immediate conviction. The trial court sentenced Mrs. Colbey to life imprisonment without the possibility of parole, and a short while later she found herself shackled in a prison van heading to the Julia Tutwiler Prison for Women.

  Built in the 1940s, Tutwiler Prison is situated in Wetumpka, Alabama. Named after a woman who promoted the education of prisoners and championed humane conditions of confinement, Tutwiler has become an overcrowded, dangerous nightmare for the women trapped there. Courts have repeatedly found the prison unconstitutionally overcrowded, with almost twice the number of women incarcerated as it was designed to hold. In the United States, the number of women sent to prison increased 646 percent between 1980 and 2010, a rate of increase 1.5 times higher than the rate for men. With close to two hundred thousand women in jails and prisons in America and over a million women under the supervision or control of the criminal justice system, the incarceration of women has reached record levels.

  At Tutwiler, women are crammed into dormitories and improvised living spaces. Marsha was shocked by the overcrowding. As the only state prison for women, Tutwiler has no way to meaningfully classify and assign women to appropriate dorms. Women battling serious mental illness or severe emotional problems are thrown in with other women, making dorm life chaotic and stressful for everyone. Marsha could never quite get used to hearing women screaming and hollering inexplicably throughout the night in a crowded dorm.

  Most incarcerated women—nearly two-thirds—are in prison for nonviolent, low-level drug crimes or property crimes. Drug laws in particular have had a huge impact on the number of women sent to prison. “Three strikes” laws have also played a considerable role. I started challenging conditions of confinement at Tutwiler in the mid-1980s as a young attorney with the Southern Prisoners Defense Committee. At the time, I was shocked to find women in prison for such minor offenses. One of the first incarcerated women I ever met was a young mother who was serving a long prison sentence for writing checks to buy her three young children Christmas gifts without sufficient funds in her account. Like a character in a Victor Hugo novel, she tearfully explained her heartbreaking tale to me. I couldn’t accept the truth of what she was saying until I checked her file and discovered that she had, in fact, been convicted and sentenced to over ten years in prison for writing five checks, including three to Toys “R” Us. None of the checks was for more than $150. She was not unique. Thousands of women have been sentenced to lengthy terms in prison for writing bad checks or for minor property crimes that trigger mandatory minimum sentences.

  The collateral consequences of incarcerating women are significant. Approximately 75 to 80 percent of incarcerated women are mothers with minor children. Nearly 65 percent had minor children living with them at the time of their arrest—children who have become more vulnerable and at-risk as a result of their mother’s incarceration and will remain so for the rest of their lives, even after their mothers come home. In 1996, Congress passed welfare reform legislation that gratuitously included a provision that authorized states to ban people with drug convictions from public benefits and welfare. The population most affected by this misguided law is formerly incarcerated women with children, most of whom were imprisoned for drug crimes. These women and their children can no longer live in public housing, receive food stamps, or access basic services. In the last twenty years, we’ve created a new class of “untouchables” in American society, made up of our most vulnerable mothers and their children.

  Marsha wandered through her first days at Tutwiler in a state of disbelief. She met other women like herself who had been imprisoned after having given birth to stillborn babies. Efernia McClendon, a young black teenager from Opelika, Alabama, got pregnant in high school and didn’t tell her parents. She delivered at just ove
r five months and left the stillborn baby’s remains in a drainage ditch. When they were discovered, she was interrogated by police until she acknowledged that she couldn’t be 100 percent sure the infant hadn’t moved before death, even though the premature delivery made viability extremely unlikely. Threatened with the death penalty, she joined a growing community of women imprisoned for having unplanned pregnancies and bad judgment.

  The lives and the suffering of the women got tangled together at Tutwiler. For Marsha, it was impossible not to notice that some women never got visits. She tried at first but couldn’t remain indifferent to the people around her who seemed in acute distress—those who cried more than usual or who suffered the greatest anxiety about the children or parents they’d left behind or who seemed especially down or depressed. Knitted together as they were, a horrible day for one woman would inevitably become a horrible day for everyone. The only consolation in such an arrangement was that joyous moments were shared as well. A grant of parole, the arrival of a hoped-for letter, a visit from a long-absent family member would lift everyone’s spirits.

  If the struggles of the other women had been Marsha’s biggest challenge at Tutwiler, her years there would have been difficult but manageable. But there were bigger problems, coming from the correctional staff itself. Women at Tutwiler were being raped by prison guards. Women were being sexually harassed, exploited, abused, and assaulted by male officers in countless ways. The male warden allowed the male guards entry into the showers during prison counts. Officers leered at the naked women and made crude comments and suggestive threats. Women had no privacy in the bathrooms, where male officers could watch them use the toilet. There were dark corners and hallways—terrifying spaces at Tutwiler where women could be beaten or sexually assaulted. EJI had asked the Department of Corrections to install security cameras in the dorms, but they refused. The culture of sexual violence was so pervasive that even the prison chaplain was sexually assaulting women when they came to the chapel.