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Guilty until proven innocent?

Four men are proof that not everyone sent to death row should be there

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

These are the facts in the case of Randall Padgett.

His wife, Cathy Padgett, was murdered.

Cathy Padgett was found stabbed 46 times in her home in Marshall County in north Alabama, while Padgett was in Destin, Fla., with his neighbor and lover, Judy Bagwell, court testimony showed. Cathy Padgett was last seen alive at a church revival.

While they were in Destin, Padgett's children's aunt had taken care of his children.

When the aunt and children went to pick up some things at Cathy Padgett's house, they found her covered in blood on the bed with one leg propped up on a night stand. Padgett had never been arrested and said he wouldn't be capable of such a crime.

"I've never laid a hand on a woman in a violent way," he said.

Padgett is over 6 feet tall and 200 pounds, but he speaks with a quiet and deliberate voice.

"Well, if I was the policeman, I would question myself because of the situation I was in. I was having an affair. My wife was the one who got murdered, and I think that they really got tunnel vision on me," Padgett said.

The prosecutor in the case, Ronald Thompson, still thinks Padgett is the sole suspect in the case.

"I never prosecuted a case when I didn't think 'guilty,'" Thompson said.

Defense attorney Richard Jaffe painted the neighbor having the affair with Padgett as the culprit. Padgett said his lover killed his wife and put his semen in her.

Thompson got a conviction on the first trial that sent Padgett to death row. Judge William Jetton overrode the jury's recommendation of life without parole and sentenced Padgett to death.

The Court of Criminal Appeals in 1995 ruled Padgett would get a new trial. They ruled the prosecutors didn't give the defense adequate time to review new blood test evidence.

Blood was found at the scene that was not Cathy Padgett's. At first, analysts said blood at the scene matched Padgett's. Later, they discovered the blood didn't match his blood, though the semen did.

"It is hard to imagine scientific evidence more crucial than blood test evidence showing that the blood found at the scene of the crime was not the blood of the defendant," wrote Judge Sam Taylor.

During the new trial in 1997, Jaffe pointed the blame toward Padgett's lover, characterizing her as a jealous woman who killed Cathy Padgett to secure Randall Padgett.

Jaffe said he used a basic tenet of law in the case, first noted by a Roman statesman, 2000 years ago.
 
 
Mark Weber/Post-Herald
One-time death row resident Randall Padgett fishes nearly every day at Lake Guntersville State Park.
"What Cicero said is look to the person with the most to benefit in a crime," Jaffe said.

Jaffe argued Padgett would not have wanted his children to find the body of their mother. Padgett's lover, he said, had threatened Cathy Padgett in the past.

Thompson said his wife was threatening a divorce and he feared he would lose his farm.

The jury acquitted Padgett, who walked out a free man after seven years on death row.

Padgett said he came close to going crazy at Holman in Atmore. He said he even sometimes wondered how he might have killed his wife and not remembered.

"I thought, 'Did I walk in my sleep and do that thing and didn't know about it?' Padgett said. "You think all kinds of things down there day after day in a 5-by-8 (foot) cell. Looking at nothing but concrete, steel and cockroaches, you think all kinds of stuff."

Four of Padgett's fellow inmates were electrocuted while he was there.

"The day of execution you're thinking, 'What am I going to do when it's my turn?'" he said.

Thompson said the case reflects imperfections in the judicial system.

"The jury system isn't perfect," Thompson said. "It doesn't acquit everyone who is innocent and it doesn't find guilty everyone who is guilty."

Padgett said he used to think that the police always got the right man.

"When I heard something on the news, that we arrested someone at such and such time, I would say, 'Well, good. They finally got the criminal.' I thought in the good ol' U.S. of A., that when you went to court and you went to trial, the truth was supposed to be foremost and the court endeavors to seek out the truth, you know, but I know firsthand that's not how it is," Padgett said.

He is a free man, but he is not free of the memories that started with his wife's murder.

"I hated that she had to leave this life so early, especially the way she did. I think a lot of times it's my fault. If I would have been where I should have been, at home with her, she might be alive today," Padgett said.

Charges haven't been filed against anyone else, though Padgett hopes someday there will be.

Steve Marshall, the new district attorney in Marshall County, who also briefly represented Padgett, said he doesn't anticipate opening the case again.

"There's not enough evidence to go after anybody," Marshall said. "As I understand it, the case is closed."

Love letters almost fatal

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

Walter "Johnnie D." McMillian said love letters to a white woman sent him to death row.

"That's the only thing I can think of," said McMillian, 59. "They wanted to get rid of me because they caught me with a white lady."

McMillian said police framed him for the Nov. 1, 1986, murder of Ronda Morrison, an 18-year-old woman who had a part-time job at Jackson Cleaners in Monroeville.
 
 
Christine Jacobs/Post-Herald
Walter McMillian of Monroeville sat on death row for years until his murder charge was overturned. "From Day One, I was framed up," McMillian said.
McMillian lives outside Monroeville in south Alabama, a town that served as a model for the fictional town of Maycomb in Harper Lee's "To Kill a Mockingbird," a novel about a black man unjustly accused of raping a white woman.

A slightly built man with graying hair, McMillian's home is a trailer with permanent rooms attached to the back that doubles as an office for the junkyard he operates.

Alabama released McMillian from death row in 1993 after an appeals court ruled prosecutors had withheld evidence from the defense, although some authorities dispute that.

District Attorney Tommy Chapman, elected to office during McMillian's stay on death row, doesn't think McMillian was even at the scene of the crime.

A second investigation conducted by the Alabama Bureau of Investigation convinced Chapman that someone else committed the murder.

McMillian said the case turned his thinking around.

"I had always believed in the police. I always thought the police were right," McMillian said. "I tell people if I hadn't been caught in this trap I would still be blind."

McMillian had been in trouble before for selling marijuana and for assault, he said, but he would never murder someone.

"From Day One, I was framed up. I know I was. There is no question about it," McMillian said.

Morrison's body was found behind a rack of clothes. She had been shot three times. Her bra and underwear were exposed under her unbuttoned pants and shirt.

Police testified at the trial that money had been taken from the cash register and thought robbery was the motive.

Chapman said the murder was never about robbery, but rather was a sex-driven crime, leading him to a different suspect than McMillian. But he said that since the initial investigation was botched, he couldn't try anyone else for the crime.

Daryl Masters, an attorney who represents Monroe County Sheriff Thomas Tate, said McMillian was never framed. He dismissed McMillian's claim that he was arrested because of a liaison with a white woman.

"That is an absolutely ridiculous charge," Masters said. "There was no conspiracy. All the evidence was made available to Mr. McMillian's attorney. Nothing was ever withheld by anyone."

McMillian filed a civil suit against Tate, Larry Ikner, an investigator for the Monroe County District Attorney, and Simon Benson, an agent for the Alabama Bureau of Investigation, for violating McMillian's rights.

"Neither one of us can say he is a murderer or he will sue us," Masters said.

The courts ruled that the officials couldn't be held liable for withholding evidence.

The Legislature passed a law that allows compensation of up to $50,000 a year for inmates later found not guilty. McMillian said he doesn't expect to see the money because the law says an indictment must be overturned before it can be awarded, but the prosecutor never did so. Masters said the only reason the state hasn't prosecuted McMillian again is because of intimidation.

"Witnesses change their stories. Witnesses move from telling the truth in part because of threats by some of Mr. McMillian's friends and "business associates," Masters said. Lawyer Bryan Stevenson, who heads the Montgomery-based Equal Justice Initiative, appealed McMillian's case.

Investigators targeted McMillian, Stevenson said, because he was black and poor.

"He's no more guilty than you or I," Stevenson said. "The community owes Mr. McMillian an apology.

Stevenson doesn't find it hard to believe McMillian's theory that being a black man and dating a white woman contributed to his conviction.

"Race still matters in the administration of criminal justice," he said.

Both Chapman and Stevenson said the investigation was handled poorly.

"It was just a comedy of errors," Chapman said.

One of those errors involved the testimony of Ralph Myers, who McMillian described as "low-down."

Myers, now 45, was arrested for the murder of Vicky Pittman, another 18-year-old, who was found dead on a dirt road in Escambia County, directly south of Monroe County.

Myers, a white man, told the court McMillian had gone with him to the cleaners, shot Morrison, and brought a wad of money back out of the cleaners.

Myers also told police that McMillian had sodomized him months earlier in Conecuh County before either of the two was taken into custody.

Police charged McMillian with sodomy and held McMillian in jail in Monroe County while evidence was collected in the Morrison case.

McMillian and Myers were taken to Holman Correctional Facility in Atmore, where most death row inmates are held. McMillian said the move was used to intimidate the two men.

"They take someone before a trial and put him on death row? That's prejudiced or racist. That's all it was. There is no doubt about it," McMillian said. "I stayed in that one cell, until I got out, for six years."

McMillian said he had been locked up for a speeding ticket once. His second time was in Holman on death row.

"I don't know how I made it myself," McMillian said.

McMillian had little hope, but he had heard of a lawyer that could help.

"They said if you get Bryan Stevenson on your case, you'll get out," McMillian said.

"When I talked with him, I felt relieved then. I thought I could rest pretty good now. Up until that point it was miserable. I was dreaming all kinds of dreams. Scared to death of prison. Rough."

Stevenson began to take a look at Myers' testimony.

"Unquestionably Myers was the key witness for the prosecution," the state court of appeals later wrote. "Without his testimony, the state could not have obtained a conviction."

And, the court said, it appeared as though lawmen coerced the evidence against McMillian.

In 1992 at an appeals court hearing, Myers admitted that he had never seen McMillian on the day Morrison was killed.

"This way we can all get out of this courtroom and we can let an innocent man go on home, if that's what the law will let happen," Myers said. "Me, I can simply look in your face or anybody else's face dead eye to eyeball and tell you that anything it was told about McMillian was a lie."

Myers told his doctors who examined him that he felt pressure to implicate McMillian.

The appeals court also said investigators withheld evidence from the defense, including testimony that cast doubts on the time frame presented by prosecutors.

The court also found a tape recording not entered into evidence in which Myers denied being a part of the Morrison murder and denied McMillian had him kill Morrison.

"We conclude that there is a reasonable probability that had Myers' prior inconsistent statement been disclosed to the defense prior to trial, the results of the proceedings would have been different," wrote Judge John Patterson.

The case was overturned. Chapman decided not to retry McMillian and "Johnny D." became the first man to be freed from death row directly into society in Alabama.

Stevenson said others could be railroaded in Alabama.

"White or black, they can put him on death row," he said. "If he's not strong and fighting to get someone trying to help him, he'll get electrocuted."

Fighting for another chance

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

There are usually only two ways to get off Alabama's death row: get the sentence reduced or die in the electric chair known as "Yellow Mama."

Four death row inmates in the state have eluded Yellow Mama a third way: by gaining their freedom. Bo Cochran was one of them.
 
 

'I'm very happy. I'm just enjoying life because I know where I've been and know what I've been through.'

--Bo Cochran 


But don't feel sorry for Cochran for the time he spent on death row, said David Barber, Jefferson County district attorney.

"Cochran was just the perfect example of someone who was able to play the system to a point that he literally got away with murder," Barber said.

Cochran already had served a lengthy prison term for manslaughter before he was sent to death row for the 1976 murder of Stephen Ganey in Homewood. He spent 20 years on death row before being released in 1997.

Cochran said his life is stable now.

"I'm very happy. I'm just enjoying life because I know where I've been and know what I've been through," Cochran said.

He has a wife, Shirley, who stuck by him while he was on death row, a job working construction, and a house to call his own.

Police said they saw Cochran running from the A&P outside of which Ganey had just been killed.

Later, when asked why he ran, Cochran replied, "When I was 14, I was beaten up by cops. I had been running from them since."

Police found money with an A&P band around it in Cochran's pocket.

"They charged me with robbery and murder and I said, 'Murder? Who did I murder? I was panicked because I didn't have any idea what they were talking about."

Richard Jaffe, who represented Cochran at his last trial, said he didn't think police treated his client unfairly.

"Bo clearly looked guilty," Jaffe said. "They (investigators) did a very good job of investigating the case from the appearance of things."

Cochran had a mistrial, but prosecutors persisted and Cochran was found guilty in the second trial and sentenced to death.

That verdict was overturned as part of a U.S. Supreme Court ruling in 1980 that required Alabama to retry all their capital cases. Before that ruling, juries only had two options in a capital case: convict the defendant on capital charges or acquit the defendant. There was no possibility of being found guilty on a lesser charge.

At his third trial in 1982, Cochran again was convicted and sentenced to death. Cochran told the judge then, "I did not kill Mr. Ganey. ... When will I get justice in this courtroom?"
 
 
Christine Jacobs/Post-Herald
Bo Cochran looks at his 8-month-old granddaughter, Aaliyah Ball, during a church service at Free Will Church of God in Christ in Overton. Since being released from death row, Cochran married and became an active member in church.
Jaffe said Alabama's death penalty system let Cochran down, not any one person.

"His lawyers, although good lawyers, had their hands tied behind their back," Jaffe said. "They had no funds. At the time they were given $1,000 (to represent Cochran). There is no way someone can get a fair shake with those kinds of limitations."

Judge William Cole of Jefferson County, now deceased, sentenced Cochran to death and then appointed Jaffe to Cochran's case.

"I asked him (Cole) not to make me do it," Jaffe recalled. "He said, 'I like old Bo. I had to give him the chair. I didn't have any choice and you're it.'"

Cochran saw little hope he would elude the electric chair.

"No one would listen to me. I even tried to get the NAACP to listen to me," Cochran said. "They said they were busy."

The 1986 Batson vs. Kentucky ruling by the U.S. Supreme Court gave Cochran another shot at freedom. The ruling meant attorneys could not strike prospective jurors solely on the basis of race.

"All the juries were 11 white and one black," Cochran said. "The race had something to do with it."

While he was in prison, Cochran persuaded Bryan Stevenson, director of the Equal Justice Initiative, a center set up to help indigent death row inmates with legal assistance, to help.

Stevenson had connections with the Drinker Biddle and Reath law firm in Philadelphia. Attorneys for the firm argued prosecutors unfairly chose a predominantly white jury for Cochran. A new trial was ordered in 1997.

Barber was asked on the stand in federal court if he thought, generally, whites made better jurors than blacks in capital cases.

"I had to say yes," Barber said. "I would have lied to say differently. I don't know if it would make any difference, because I think the burden is on us to give reasons for our strikes. And I couldn't even remember who was black and who was white."

In his last trial, seven blacks and five whites sat on Cochran's jury. Jaffe's strategy was to try to give the jury an alternative set of events.

There was no bullet in Ganey's body. There was an entry wound, but no exit wound. Ganey's body had been moved. Jaffe argued it would have been impossible for Cochran to move it by himself while being chased by police.

Barber said he was at a disadvantage because many of the witnesses had disappeared or died. One of Barber's witnesses had been in trouble with the law himself since Cochran's conviction, wasn't happy to be there, and "it showed on the stand," Barber said.

"Being found not guilty doesn't make him innocent," Barber said.

That point is academic to Cochran.

After a mistrial, a conviction, an overturning of the conviction, another conviction, an overturning of that conviction, and a final trial, Cochran was released.

"I was like, 'Oh,' Cochran said. "I couldn't believe it. I came out of the gate from death row crying."

Cochran says he is not only innocent, he is a changed man.

"My heart has changed. Since I put Christ in my life, my whole life has changed."

Not easy to forget - or forgive

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

Gary Drinkard's half-sister and her husband shot up cocaine and robbed houses to pay for their habit. Drinkard used to tell them who was home and who wasn't before they went out.

The association with the two, Drinkard said, wound up costing him almost eight years of his life, sitting on death row. But their misdeeds also would allow him to regain freedom.

"I was cooped up in a little 6-by-10 cell. It was dimly lit. It was about a quarter of the candlelight in here. No TV. No radio. They only allowed you to have the Bible to read. It was ridiculous," said Drinkard, 42.

Drinkard was convicted in 1993 of shooting 61-year-old Dalton Pace, a junkyard dealer in Decatur, and taking his money. He got a second chance when Morgan Circuit Court Judge Steve Haddock allowed evidence that Drinkard was involved in a robbery by his half-sister, Beverly Robinson Segars, and her common-law husband, Rex Segars, in his first trial.

"I was handed divorce papers the day I was sentenced to death, so that was another little gig in the side," Drinkard said.
 
 
Mark Weber/Post-Herald
Gary Drinkard was released from Alabama's death row earlier this year. Drinkard spent eight years in prison before a second trial would lead to his freedom. "When they came back with the not guilty verdict, I cried like a baby," he said.
He was sent to Holman Correctional Facility in Atmore.

"Especially in the summertime, it would get so bad in there you're sweating in your sleep and you would have to flip sides of the bed so you can lie in a dry area for a while," Drinkard said.

Drinkard is convinced the authorities played into the hands of his half-sister. He said her testimony, with little other evidence, was able to put him on death row.

"It's as simple as that," Drinkard said.

"They built the case from there. They didn't have any other leads."

Drinkard sat down in Atmore and started writing letters to Birmingham defense lawyer Richard Jaffe. One letter, two letters, three letters, four letters. Jaffe took the case.

During his second trial, Drinkard listened to the testimony again, hoping it would change from the first trial. But, it only changed for the worse when his adopted daughter, Kelly Harvell, changed her story from giving Drinkard an alibi at home to saying she didn't see him the night of Pace's murder.

"I'm knowing I should walk free, but I'm afraid to hope and I'm afraid to say it because if I say it, then I'll jinx myself," he said.

Jaffe put people on the stand who cast doubt on Drinkard's accusers. They couldn't be trusted, said one witness. They were liars, said another. Most of the physical evidence was never recovered or lost in a fire that burned down Pace's home.

"When the jury went to deliberate, my stomach was tied up in knots. I wanted to get sick, and they came back within a couple of hours and I knew that was good. When they came back with the not guilty verdict, I cried like a baby."

He was released from prison in May 2001.

"Everything was lost. I'm starting from scratch," Drinkard said.

Drinkard is angry that the state could put him, or any innocent person in jail.

"I was mad as hell. I still have a lot of anger and resentment, but I deal with that," Drinkard said.

District Attorney Bob Burrell is among those still convinced of Drinkard's guilt.

When Drinkard got his second trial, eight years had passed since the killing.

"The passage of time almost never helps us," Burrell said.

Burrell said Drinkard had "been in and out of the system," but since he was on death row, he had no opportunity to get in trouble like some of the prosecution's witnesses.

"Some of our witnesses were in and out of trouble themselves," Burrell said. "Drinkard couldn't get into any more trouble."

Burrell said a guilty man is free.

"Our system is set up so it's better when 1,000 guilty people go free than when one innocent man goes to jail," Burrell said.

"The system is broken. I don't think the death penalty is appropriate for anyone. I think God is the only one who has the right to take a life," Drinkard said.

Drinkard said judges want to appear tough on crime for their elections and they do that by sending people to death row.

"The poor and the minorities have become steppingstones for all these politicians who want to further their careers," said Drinkard, who is white. "They've become disposable entities."

For all the portrayals of death row, Drinkard said, it is a more civil environment than what most people imagine.

"The guys there are just like you and I sitting here," he said. "People depict them as animals in a cage to be kept in chains. They're human beings. They're decent human beings. Some made a bad mistake. But people change. Some guys down there need to be down there for a long, long time, maybe the rest of their life. But a lot of guys down there changed and would never harm someone again.

"There are some that just can't be rehabilitated."

He is not one of those people and should never have been put there, he said.

"The only thing I did wrong was associate with the wrong people," Drinkard said.

'She was a very good child'

Speaking for the victims

Robert Bryant Melson fatally shot Tamika Collins on April 15, 1994, during a robbery of Popeye's Famous Fried Chicken restaurant in Gadsden. Two other employees were killed, but one lived and testified against Melson. Melson was sentenced to death. Birmingham Post-Herald reporter Taylor Bright asked Denise Collins, the mother of Tamika Collins, about the killing and capital punishment. Here's what she had to say.

"When it happened, I had been to the doctor that day ... and I was sick. Her phone kept ringing. She had her own line. We all had our own lines. Her phone kept ringing and I didn't know why.

I answered the phone and somebody said, 'Mrs. Collins, Have you been over to Popeye's?' because that's where Tamika worked. And I said, 'No. Why?' And they said, 'Well, something happened over there. I don't know what it is.'

There were police cars over there. My husband got in the van and then he went over there. He came back and said, 'Come on. Let's go back over there. Something happened. I don't know what it is.
 
 
Christine Jacobs/Post-Herald
Denise Collins holds her daughter Tamika's 1993 high school graduation picture. Tamika Collins was killed in 1994 during a robbery at her job at Popeye's in Gadsden. "It was a big loss when she left this world," Collins said.
We got over there and they just told us that she was in there and she was dead. Her and two more people. And that's how we found out.

It has changed our life. It really has. When it happened, I just couldn't get my thoughts together. I just couldn't believe it. When she left home, everything was fine.

I never have been on any medication in my life and when that happened, I had to get on blood pressure pills and nerve pills. I had to go through therapy for four years.

... Tamika was a very good child. She was working and going to college. Me and Joe had talked to her a few weeks before this had happened and told her we had wanted her to quit working and go full time to school. But she wanted to have her own little money, and her daddy was buying her a car and he was paying the high insurance.

It was a big loss when she left this world, I tell you, a big loss. She was a very, very good child. I'm not trying to put her on any pedestal. If she had any faults in her, I would say it. ...

If I could have her back right now, I would want her because she was my daughter and my best friend. She was always thinking of other people before she thought about herself. That's just the way she was.

I really had to do some hard praying. I just had so much in me.

When it happened I just said, 'Why?' I know I was questioning God and shouldn't have done that. I just couldn't believe she was gone like that.

For a while, I would go to church and I would see her all over the church and ... I would just break down. I would have to come home, or they would have to take me to the hospital.

My husband, he's a deacon at our church and he doesn't even go anymore. But I keep trying to talk to him to go. He said he has so much hatred in his heart, you know, he just doesn't feel right to go to church. But he was a real faithful person. ...

What do I think about Robert Bryant Melson? If I saw him right now, I wouldn't kill him. But I want him to do the sentence they gave him. He took three lives. I mean those were good people and there was just no sense in what he did.

I'm not going to say I hate him, and I wouldn't kill him, but I want them to do whatever they will do to him. I want them to do it.

Some people in my family said they were really looking forward to it (the execution), but I don't have to see that, because that's not going to bring her back. It really doesn't matter whether I go or not."


 
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