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Does race decide who dies?

Some say color of defendant, victim plays significant role

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

Pretend a white man is accused of the robbery and murder of a young black woman in a mostly black Alabama town.

Pretend further that the judge is black. So are the prosecutor and all of the jurors except one.

And all of the witnesses are black.

"Do you think the white defendant in this hypothetical would receive a fair trial?" asked Bryan Fair, a law professor at the University of Alabama, in a paper about the death penalty.

Fair said his hypothetical case was based on a real capital murder trial in Alabama, except with the races reversed of everyone involved.

No imagination needed in that scenario.

Alabama, with blacks making up 26 percent of its population, does not have a single elected black district attorney. Four percent of criminal court judges are black. No black judges sit on the Alabama Court of Criminal Appeals or on the Alabama Supreme Court.

And on the other side of the justice system, 66 percent of all prisoners and 46 percent of Alabama death row inmates are black. Sixteen of the 23 Alabamians executed since capital punishment was reinstated in 1976 have been black.

Some of the high numbers for black results from blacks committing far more homicides than do whites in Alabama. Blacks committed 70 percent of homicides in the state from 1995 to '99.

But that does not explain the startling disparity between the high percentage of blacks sentenced to death for killing whites, and the actual number of black on white homicides in Alabama.

Of all the homicides committed by black Alabamians in the past five years, 11 percent were committed against whites. But 57 percent of blacks on death row are there for killing whites. Only 43 percent are on death row for killing other blacks, even though 89 percent of homicides committed by blacks are against other blacks.

"I would be dishonest if I said it doesn't matter if you are African-American," said Barrown D. Lankster, who was Alabama's only black elected district attorney in the 1990s. "It matters in this state, and it matters in this country. It matters because you have individuals who are making the decision to pursue the death penalty, and they bring their own biases to that."

Lankster allowed five black men accused of capital murder to plead guilty in exchange for life sentences. All had killed white people. He said he could not say whether or not those decisions caused him to lose his re-election, but he said he thought race in general played some role.

The disproportionate number of blacks on Alabama's death row for killing white people seems to prove racism, said Jerald Burns, a professor of criminal justice at Alabama State University. But there are other ways to look at it, he said.

It may be that black-on-white homicides are more likely to rise to the level of a capital charge than a black-on-black crime, he said. For example, a typical black-on-black murder may arise out of a domestic dispute, which are usually not capital cases, while a typical black-on-white murder may happen during the commission of a robbery or burglary, which would make it a capital case.

But that would seem to suggest that whites who kill blacks also would stand a greater chance of going to death row than whites who kill whites. Statistics do not bear that out, however, showing instead that white killers of white victims have more than double the chance of reaching Alabama's death row than white killers of blacks.

The statistics make the most sense, Burns said, when seen through the prism of race. Jurors are more tolerant of blacks killing each other, he said.

"There's this attitude that it's not unexpected," he said. "It's the norm. It's acceptable. Now a black killing a white, that's unacceptable."

The statistics suggest that defendants in cases involving white victims also receive less sympathy from judges, who can opt to either accept or reject a jury's recommendation of leniency.

Judges have rejected a jury's recommendation that the defendant's life be spared 47 times in murder cases involving white victims and 23 times in cases with black victims.

Although the U.S. Supreme Court has prohibited lawyers from striking potential jurors solely on the basis of race, the racial composition of juries also remains an area of concern for many critical of the state's capital punishment system.

Some inmates on death row were convicted before the revised procedures for selection of juries ruling took effect in 1986, and even the current procedure allows racially imbalanced juries.

Critics cite the case of Brian Keith Baldwin, a black man executed in 2000, as an example of how the system breaks down along racial lines.

The Monroe County judge who tried the Baldwin case was white, the prosecutor was white and the defense lawyer was white. All the jurors were white.

Baldwin was convicted with another man of the 1978 kidnapping and murder of a white North Carolina woman. The trial court found Baldwin and his partner had robbed the woman in North Carolina, locked her in the trunk of her own car, driven to Alabama, then stabbed her to death.

"There was no question that he was at the scene," said Jack Martin, Baldwin's lawyer at the time of the execution. "The question was who did what."

Baldwin confessed to the police that he was the killer, but later said his confession had been coerced. After the verdict, Baldwin asked to take a lie detector test and undergo DNA testing. The Alabama attorney general's office denied the requests.

But the issue of race never went away. When Baldwin was tried, defense lawyers found it difficult to challenge the racial composition of a jury. Alabama uses a "strike down" system to select a jury, where the prosecution and defense exclude jurors one by one until a jury of 12 with two alternate jurors is reached.

The prosecutor could try to strike every black person in the jury pool, and the defense could not do much about it. A 1965 U.S. Supreme Court decision said the defense had to prove discrimination over a period of time, so Baldwin's lawyers would had to have proven that the prosecution did not just strike black people in his case but in many other cases.

Baldwin's lawyer in his initial trial said that was too difficult a burden, so he did not challenge the jury makeup.

Baldwin tried to challenge the racial composition of his jury under the new rule, but the state appeals court said he could not because his conviction was final before the new jury procedures took effect.

But the high court's ruling still allows juries without any black representation if the reasons for striking the black jurors appear adequate and not based on race.

In a 1994 symposium on race and the justice system, Montgomery lawyers Bryan Stevenson and Ruth Friedman offered a list of black men accused of capital crimes who have faced all-white or nearly all-white juries under the current jury selection system.

No blacks sat on the jury of Earl McGahee, a black man sentenced to death for the 1985 murders of two black nursing students in Selma. The prosecutor used strikes to exclude blacks from the jury (one served as an alternate juror, but alternates play no role in deciding a verdict). McGahee has appealed on the basis of racial discrimination, but the prosecutor argued successfully that there were reasons besides race to exclude the jurors.

Just because most judges are white does not mean they are biased, but the under-representation of blacks often means there is a problem, said Ralph Cook, one of two black Alabama Supreme Court justices in the 1990s. He was defeated in his bid for re-election in 2000.

"Is the justice system tainted because of race?" he asked. "I would say that we are still struggling to eliminate vestiges of race-related problems in our society and making some progress."

Rape victim finds reasons to save lives


Blake Sims/Post-Herald
Lucia Penland is the executive director of the Alabama Prison Project, a nonprofit prisoner advovacy organization that has drawn national attention for its efforts to keep inmates from facing the death penalty.

Leads group that finds good in convicted killers

By JEB PHILLIPS
BIRMINGHAM POST-HERALD

Lucia Penland has spent the past decade reading old medical records or interviewing people she has never met before, hoping to uncover the bit of information that will save a murderer from the electric chair.

She has done this, in part, because she was raped by four teenage boys 30 years ago.

"I asked the detective then if there was anything in prison that would make them understand what they did to me," she said. "His answer was no. ... It just didn't make any sense to me. I thought if we are going to put people in prison for that amount of time, and they are going to come out worse, what's the point?"

So Penland began helping the criminals and their victims. She became a rape crisis counselor, a prison librarian, a juvenile probation officer. Now 57, she heads an organization that works so a judge will not take the life of someone who has taken a life.

Penland is the executive director of the Alabama Prison Project, a group that helps inmates and their families with anything that they need, from toiletries to dealing with prison authorities. But the project has drawn national attention for its efforts in an area of death penalty law called mitigation.

Someone convicted of capital murder does not go automatically to death row. The defense has a chance to present mitigating factors, reasons the convict should not be put to death. The prosecution argues for the death penalty with aggravating factors. The judge and jury weigh those factors and decide on death or life in prison without parole.

The death penalty is a way of giving up on people, of saying that they can never become better, Penland said. The point of the Prison Project is that everyone should be helped and can be helped, she said. So people at the project try to uncover reasons to spare a life - everything from a mother's love to a history of mental illness.

The Alabama Prison Project, with an annual budget of $296,000, researches those reasons from a converted house 1 mile west of the Capitol in Montgomery. Pictures of Martin Luther King Jr. and Mahatma Gandhi adorn the peach walls of Penland's small office.

A necklace with a unicorn medallion adorns her neck.

"One of the things about unicorns, the mythology, is that they can heal with their horn, or purify a poison stream," Penland said. "And they're elusive, but they have a lot of power."

She spends little time now working on mitigation. Her energy goes largely to administrative tasks, and a three-person team does the research.

"She has a huge heart, but she's a bit scattered," said Tracy Sprowls, a Montgomery minister who serves as the president of the Prison Project's board of directors. "She's having to work on a lot of things. It's a small organization that has begun to grow."

But working for the inmates, and against the death penalty, is still a passion born from the crime done to her. It took a while for that passion to evolve in the years following the rape.

"My feelings were mixed up a lot with what I learned in Sunday school about forgiveness," she said. "I think the way that some people think about forgiveness is, 'It's just no big deal, that's OK.' With something as traumatic as what I went through, you can't do that."

Penland was an Auburn University librarian in the spring of 1971, taking an early evening walk from her house to downtown. She found out later that during the walk, she passed by a restaurant window where the four teenagers who would rape her were eating.

They came up behind her and held her down. They were 14, 16, 17 and 18 years old. The youngest was put on strict probation, and the rest were given sentences of 20 to 30 years for the crime.

In the years after, Penland took different kinds of social work jobs, either counseling victims of crimes or counseling the people who committed the crimes. Penland began forgiving her attackers, and she felt one way to do that was to help people like them, she said.

In 1986, she came to the Prison Project. Researching mitigation issues in capital murder trials is a way to understanding and forgiveness, she said.

"We're not saying feel sorry for them," she said. "We're saying that because they had a tough childhood, there are certain ways they act. Look at David Freeman."

Freeman was convicted of murdering Mary Gordon, 17, and raping and murdering Gordon's mother in Montgomery in 1988. According to trial testimony, Freeman killed them because Gordon told him she did not want to be his girlfriend.

The Prison Project found Freeman had been abused as a child.

"It was a last loss he could not take," Penland said of Gordon's rejection of Freeman.

The trial court found that the aggravating factors outweighed any mitigation, and Freeman was given the death penalty.

"Some people call it the abuse excuse, but it's much more complicated than that," Penland said. "A lot of attorneys don't know what they should do. A lot put mothers on the stand, and they say, 'Please don't kill my baby,' but it's more complex than that."

Inexperienced lawyers do not understand that preparation for the penalty phase must start well before the trial or there will not be time to research mitigating factors, Penland said. The Prison Project normally works 200 hours per case, interviewing family members and tracking down medical histories.

Sometimes lawyers ask for help, but mostly the Prison Project finds out about a case and sends a letter offering to assist. Penland and her team are working on 33 of the 300 or so capital cases pending in Alabama.

The Prison Project earns some money for its work, when a defense lawyer pays for the assistance or a judge authorizes payment to the project for work it has done on an indigent case. Those earnings plus private donations make up the budget.

The project has begun some expansion. It is refinishing a house near its headquarters, a place where recently released convicts can get back on their feet. It is part of Penland's mission to help people who have a hard time helping themselves, she said.

"There is something wrong with a society that does not take care of its children, and then when they get out of hand, society throws them away," she said.

When a jury's choice doesn't matter

Judicial overrides send many to chair

Overrides viewed as political leverage

Critics: Popularity can outweigh justice

By TAYLOR BRIGHT
BIRMINGHAM POST-HERALD

Sparing four men's lives risked political doom for former Jefferson County Circuit Judge Charles Nice.

Ordering six men's death helped keep Mobile County Judge Ferrill McRae in office.

Both used a provision that allows Alabama judges to override the jury's recommendation to either let a defendant live or be sent to the electric chair. Alabama judges have used the provision most often among the four states that allow judicial overrides.

Since the override provision was included in a 1981 rewrite of Alabama's capital punishment law, Alabama judges have used the override more than 70 times to sentence defendants to death after a jury recommended life without parole, according to the Alabama Prison Project in Montgomery, a prisoner advocacy group.

The provision has been used seven times to give a defendant life in prison without parole when a jury recommended death.

Some critics say the provision inserts politics into the decision of whether a defendant should be sentenced to death. Others say that the judges, with greater knowledge of the cases and vast experience, are better equipped to determine whether a killer deserves to die.

Stephen Bright, an Atlanta-based lawyer who handles death penalty cases in Alabama, said the judicial overrides insert "an arbitrary factor" into the process.

Bright said Alabama's system of electing judges also fuels overuse of overrides. "You have human beings who become fodder for the campaign trail," he said.

Judge Nice, who died Dec. 5 after suffering a stroke, felt the political heat in Jefferson County after he used the override to spare the defendant's life all four times a jury returned with a death sentence in his courtroom.

In 1987, prosecutors asked Nice to disqualify himself from a capital murder case because of his overrides. Legislators passed a resolution in 1978 criticizing Nice, saying he "makes a mockery of the judgment of the jury."

Nice, said at the time he disliked the death penalty, although he was not "irrevocably opposed" to it. He later was transferred to Family Court.

Mobile's McRae has sentenced six men to death after the jury recommended life without parole, the most any Alabama judge has used the override.

According to published reports, the day after McRae rejected the jury's recommendation and sentenced former state trooper George Martin to death for the killing of his wife, campaign ads touted McRae's record on sentencing defendants to death. Martin's name was mentioned in the ad.

Charles Miller, a Mobile lawyer who lost to McRae in the election, said McRae denied a request to delay Martin's sentencing, even though both sides wanted the continuance. McRae set a date for Martin just a few weeks before the election.

Miller declined to say whether he thinks McRae used the override for political purposes.

"I don't feel comfortable answering that question," he said.

Efforts to reach McRae were unsuccessful.

Judge Denny Holloway in Houston County in south Alabama, who is among three judges who have used the override to spare a killer's life, said he is sure judges use the override in favor of executions to enhance their political careers.

"It's tough to put someone's life in the hands of an elected official," Holloway said.

The thought of using the override for political gain terrifies some.

"I would hate to think it was politics," said Judge Dan Reynolds, who retired after hearing cases in the Bessemer area.

Reynolds, who heard about 50 death penalty cases, gave two men, Patrick Carr and Ed Harrell, death after the jury recommended life without parole. Both men had been convicted of killing law enforcement officials. In Carr's case, the jury voted 12-0 to recommend life without parole. The jury voted 11-1 to give Harrell life without parole.

Reynolds said in those two cases the aggravating circumstances outweighed the mitigating circumstances, a yardstick Alabama judges are supposed to use in deciding overrides. Carr had been involved in a murder before, and Harrell had an attempted murder conviction.

"I did what the law required me to do," Reynolds said.

Reynolds said he would prefer a system where a judge couldn't override the jury's choice of life without parole. That would make a judge's job easier, he said.

"I would like to see a system where a judge could only reduce the sentence," Reynolds said. "But, it's not my call."

Judge James Garrett, who sits on the circuit court bench in Jefferson County, said Alabama should keep the override the way it is.

The best example, Garrett said, is when a case has co-defendants. The same judge will hear both cases, but each defendant will have a different jury.

"It's more consistent," he said. "They maybe hear only one trial. We do this all day every day."

The judge also receives a pre-sentencing report on the defendants with prior criminal histories, something the jury doesn't see.

Besides Alabama, three other states have judicial overrides: Delaware, Florida and Indiana. In Delaware, which has appointed judges, the judicial override has only been used to override death sentences, never the other way around. In Indiana, judges used the override to sentence nine people to death, and Florida judges have used it for that purpose about half as many times as Alabama judges have.

'Can you imagine what that does to a mother?'


Grant Blankenship/Post-Herald
Miriam Shehane holds a picture of her daughter, Quenette Shehane, in front of a wall of photos of other murder victims in her Montgomery office. After Quenette's murder in the '70s, Shehane became an advocate for the rights of the families of murder victims.
Miriam Shehane's daughter, Quenette, was abducted in 1976 as she was left a grocery store. Three men raped and murdered her. William Norrell Thomas was sentenced to death and executed in 1990. Edward Bernard Lee was sentenced to life in prison without parole. Jerry Lee Jones, who testified against the two, received life in prison. Birmingham Post-Herald reporter Taylor Bright asked Shehane about capital punishment in Alabama. Here's what she had to say:

"I've always believed in the death penalty. I had always wondered in the back of my mind if I served on a jury and it was my responsibility to mete out the death penalty if I would be capable of doing it.

Now I know I would be capable of doing it, and I know why it is important. ...

Quenette was killed Dec. 20 and she was already accepted as a graduate student at Auburn University. She was going to teach grammar school. She loved children. She didn't have a prejudiced bone in her little body. She was bubbling over with energy, and it was all taken for nothing. Just for one little fling with a little white girl.

I don't hate blacks. I don't. These were three mean black people. But I do get tired of hearing about the poor uneducated black people on death row. Well, I'm here to tell you there are more whites on death row than there are blacks. ...

She got off work about 5:30 in the afternoon, after dark, and she went straight to the fraternity house. She got there, and her boyfriend was preparing the steaks and he realized he didn't have any salad dressing.

As she came out of the U-Tote-Em (store), she was abducted and was shoved into her car. She got under the steering wheel and she screamed. She was screaming. And the clerks admitted they heard her scream but didn't go out. They thought it was children playing.

So nobody went out to see what was happening, so they pushed her into the car and drove off and kept her for four or five hours, at least, raping her, and when they were all through with her, they decided she couldn't live because Wallace Norrell Thomas told them they had called each other by name so they had no choice but to kill her. ...

And when we found out when she was missing, I was praying all the way to Birmingham that she was warm, because it was so extremely cold. I can't remember ever a colder night in my life.

Then to have to find out when they found her body that she was stark naked and her body was frozen. And Jerry Lee Jones tells how they were shooting at her and how she was running through the briars and begging for her life saying, 'You're killing me.'

Now, can you imagine what that does to a mother?

If I dwelt on what I know she went through for five or six hours, and knowing people look at me and view me as out for revenge. Revenge for me would be for me to ask for the state of Alabama to make Wallace Norrell Thomas go stark naked and shoot at him in the coldest weather ever for about five hours. That would be revenge. But to put him in the chair and he's gone just like that is not revenge. That is justice. ...

I have been asked how I felt when he was executed and it was nothing but relief. I was hoping.

And I feel like if I knew the hour I was going to meet my maker, I would make amends for my sins and I would say I was sorry and beg the Lord to forgive me. So that was really what I was expecting from Wallace Norrell Thomas, because I knew without a shadow of a doubt that he was guilty."

 
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