As any student of the death penalty in America knows, the chance that a person charged with a capital crime will live or die depends greatly on race, social class, and--perhaps most important--where the alleged crime was committed. First and foremost is the question of whether the defendant comes to court in one of the 38 states where capital punishment is on the books. If he (or occasionally she) does, the outcome will differ greatly state by state and county by county, depending chiefly on the quality of the local defense bar, the trial judge, and the district attorney, who alone decides whether to seek capital punishment. For all these reasons, the odds on death are particularly high in Alabama, especially in the port town of Mobile, and most of all in the courtroom of Judge Ferrill McRae.
Though rarely mentioned in the national media's treatment of the death penalty, Alabama has the largest number of people per capita on death row. Its criminal defense system is the worst in the country, as rated by the American Bar Association (ABA). And Alabama is one of only a few states where judges can ignore a jury's recommendation of life without parole and unilaterally impose the death penalty. Thirty-two individuals, about one-sixth of the current population of Alabama's death row, were sent there by judges who overruled the jury. Judges can also reduce a jury's death sentence to life without parole, but in a state where capital punishment is hugely popular and judges run for office, that rarely happens.
Ferrill McRae sentenced his first man to die in 1981 and has sent many others to the electric chair since then. In six cases, more than any other Alabama magistrate, he's employed "override"--six times he has, as the quaint local lexicon has it, "enhanced" a jury's call for life without parole.
On a brutally hot morning last September, I passed through the metal detectors in the lobby of Government Center, a huge, modern building in downtown Mobile, and rode the elevator to Judge McRae's chambers on the sixth floor. The courtroom is lined by seven rows of benches for spectators, who on this day are exclusively African Americans. So, too, are the defendants. All the lawyers and prosecutors--as well as the judge--are white.
The first case on today's docket involves a young woman seeking a restraining order against her estranged husband, who recently beat her up. "Why didn't you pick up something and hit him in the head?" McRae asks, nodding toward her short, stocky husband, who's also standing before the bench.
"He's too big," she replies weakly.
"He doesn't look too big to me," says McRae. "He looks like he's been drinking a case of Budweiser every night." Using, at length, the metaphor of King Solomon, he lectures the two about the division of marital property before granting the restraining order.
Next up is a young mother caught stealing $2,000 worth of goods from a Target store where she worked. The district attorney is willing to plead her out, reducing a 10-year sentence to 30 days for time served. McRae tells the woman she's getting off easy but ratifies the proposal. "Be good and be gone," the judge admonishes. "You don't want to see me again. If you do, bring your toothbrush." Now comes a teenager charged with robbery, who arrives in the company of his court-appointed attorney. McRae notes that the accused has previously been busted for smoking pot, which in McRae's view "is the worst drug you can put in your system--worse than heroin... . Marijuana will eat away your brain, like termites to wood." McRae accepts a plea bargain that lets the teen off for time served but sets up a periodic drugtesting schedule. One slip up, he warns, and "you are gone."
This is the kind of folksy moralism that might earn the 66-year-old judge his own TV show. Yet according to local attorneys, this is Ferrill McRae on his very best behavior. When an African American in his courtroom wears a noticeable cologne, Judge McRae has been known to sniff the air and exclaim, "Ahhhh, evening in Prichard"--the name of a poor, predominantly black city outside of Mobile. One young attorney, who didn't want to be identified for fear of incurring McRae's wrath, recalled needing the judge's signature on a client's bail-reduction application. McRae first wanted to know the client's "color." When informed that he was black, McRae supposedly told the attorney that he "shouldn't try too hard because we need more niggers in jail." According to another Mobile trial judge, Joseph Johnston, McRae once queried Johnston's court reporter on the matter of whom she'd "been fucking lately," and asked a female attorney in his own courtroom if she was wearing her "trial tits." In newspaper accounts, McCrae has denied making such comments; but Johnston and others stand by their stories and locals, both friend and foe, say the judge is famous for his salty language.
All this would be bad enough in probate or small-claims court; in this criminal courtroom, where the stakes can be life or death, Judge McRae's views are especially alarming. And legal authorities in Alabama are well aware of McRae's antics: TAP has learned that the state's Judicial Inquiry Commission has been investigating the judge since last summer--but has thus far taken no action against him.
At a quarter past 11, McRae adjourns, as he needs to attend a friend's funeral. When I approach the bench and introduce myself, the judge is affable. He orders three courtroom employees to stick around for our conversation and then starts talking before I can pull a list of questions from my back pocket. "If I were you," he begins, "I'd ask why one person should be able to override what 12 citizens do. The answer to that question is rather simple. Judges are better able to determine if everyone is being treated fairly. Do you know anything about fixing a transmission? Neither do I--but I do know something about criminal law. If the defendant shows no remorse, I see that over the course of two or five or 10 days."
During the next 30 minutes, Judge McRae expounds on everything from historical precedents for the death penalty ("Throughout the Bible it states that death is permissible") to Alabama's status as one of just a few states to conduct executions using the electric chair exclusively ("I'm not sure lethal injection is more humane. With 7,000 volts of electricity, you're dead that quick"). On the subject of judicial override, McRae might be mistaken for a bleeding-heart liberal. "Let's say 12 rednecks find somebody guilty and give him death that quick," he says. "Shouldn't the judge have the power to reduce the sentence if it's not appropriate? If anybody thinks it's easy to tell a man that he'll get death by electrocution, it is not. It's a traumatic experience, one any judge would like to leave in the jury's hands. When a judge reduces it from death to life, I guarantee you he's happy."
McRae sounds fair, racially impartial, above politics--all of which is inconsistent with his record. Five of the six men the judge has sentenced to die via override are African American, and he's never substituted a life sentence for a jury verdict of death--even when an all-white jury condemned a retarded black man who couldn't read the confession that he signed. And despite his insistence to the contrary, McRae's colleagues seem far happier to override for death (which has occurred 70 times) than for life (eight times). Indeed, Alabama judges have overruled juries to condemn the deranged, the young, the retarded, and dozens of others--including the innocent--to die in the arms of "Yellow Mama," the state's garish yellow electric chair.
Life in the Death Belt
In 1972 the U.S. Supreme Court ruled in Furman v. Georgia that the death penalty was unconstitutional because sentencing discretion given to juries and judges in imposing capital punishment made the entire process arbitrary and irrational. Four years later, after a number of states prepared new statutes designed to reduce such discretion, the Court reinstated capital punishment. Since then, as of this writing, 705 individuals have been executed nationally--392 of them in the past five years.
Popular and political support for capital punishment is strongest in the South--defense attorneys call the region the "death belt"--where more than 80 percent of all executions are carried out. In Alabama, 188 inmates are awaiting execution and, according to the Alabama Prison Project, an antideath penalty group based in Montgomery, some 300 defendants have capital cases pending in the state's courts. Twenty-three individuals have been executed in Alabama since the reinstatement of capital punishment--as many or more than in all but six states--and the pace of killing is likely to increase: Last summer the state's supreme court gave itself the prerogative of passing on what was previously an automatic review of all death sentences.
As elsewhere, Alabama's death row occupants are overwhelmingly poor--95 percent are indigent--and minority. Blacks make up 26 percent of Alabama's population but 46 percent of death row, just higher than the national average of 43 percent. In the United States, about two-thirds of all murders involve victims who are black--yet more than 80 percent of those who are executed are sentenced for killing whites. Of the 23 persons executed in Alabama since 1976, 17 murdered whites. And the lingering effects of Jim Crow on the state judiciary are obvious: There are few black trial judges in Alabama, the Court of Criminal Appeals is all white, and the only two African Americans on the Alabama Supreme Court were both voted out last November.
Alabama's criminal defense system is abysmal. Those who face the death penalty are often saddled with incompetent lawyers who expend little energy pursuing their cases. To take just one of the worst examples: Judy Haney was convicted in 1988 for hiring a hit man to kill her husband, who routinely beat her and her children. It's rare for women who kill an abusive spouse to get the death penalty, but Haney's attorney came to court so drunk that the judge halted the proceedings and sent him to jail overnight to dry out. When the trial resumed the next day, Haney was sentenced to die. Bad lawyering is a primary reason that capital trials are so swift in Alabama, frequently running just a few days. In many states, jury selection alone can take weeks.
States have no obligation to provide counsel during the appeals process, and many don't. In Alabama judges can choose to appoint an attorney during the appeals process, but only after the condemned files a petition claiming to have found new evidence or procedural flaws at trial--a step beyond the ability of most death row inmates. Alabama caps pay for defense counsel at the appeals level to $2,000, which--given that a properly handled case requires about 500 hours of pretrial preparation--works out to $4 per hour. Defendants can also seek help from the Equal Justice Initiative in Montgomery or the ABA's pro bono death penalty project. Demand, though, far outstrips supply. Currently, 30 individuals on Alabama's death row are watching the clock tick down to their execution date without the aid of a lawyer.
Even if defendants do have lawyers, they face one of the nation's toughest capital statutes. While jurors must vote unanimously to convict, only 10 of 12 must agree on a death sentence. Even worse is the provision that allows judges to ignore the jury's sentence altogether, a power shared only by their colleagues in Delaware, Florida, and Indiana.
Yet Delaware judges are appointed, not elected, which is probably why they overwhelmingly use override to spare a life rather than take it. In Florida judicial overrides for death outnumber those for life, but not nearly as dramatically as in Alabama's 9-to-1 ratio. Indiana judges have overridden 19 jury verdicts, 10 for death and nine for life. Indeed, override is rarely employed anymore in Indiana or Florida, because the supreme courts in those states frequently reject its application--something that has never happened in Alabama. Indiana and Florida also require a judge to meet formal, written standards to set aside a jury's sentence, which is to be "given great weight." Alabama judges are supposed to balance aggravating circumstances, such as a prior record of violent crime, against mitigating ones--a history of mental illness, for example--but are otherwise free to do as they please. In 10 cases, a judge overrode a jury's unanimous, 120 recommendation for life.
Max Brax and the Black Death
Defense attorneys complain that a number of Alabama judges appear to have a predisposition toward the death penalty. Recently retired Mobile Judge Braxton Kittrell, who meted out five death overrides, was known by insiders as "Max Brax" owing to his tendency to impose the maximum sentence. Over baked salmon and spinach au gratin one Sunday evening, Kittrell told me that when he killed a leopard during a safari in Zimbabwe, "It broke my heart." He spoke more easily of sentencing prisoners to death, saying of one of the men he sent to the electric chair, "You could look in his eyes and see he was evil incarnate."
Judge Charles Price, an African American from Montgomery, portrays himself as a prudent advocate of capital punishment. "I'm a product of the civil rights movement and the era of unfairness of the system," Price, a big man with a bushy mustache, told me in his chambers. "I look for examples of unfairness." That would come as a shock to defense attorneys, who have nicknamed Price "the Black Death." Judge Price overrode a jury's life sentence in the case of William Knotts, a white teenager who murdered a black woman, and then rejected Knotts's appeal, including the assertion that his defense had been incompetent. In this he ignored that Knotts's two lawyers did not call a single witness during the guilt phase, and that during his closing argument co-counsel Paul Lowery--who slept through part of the trial--said, "I'll have to compliment the prosecution... . They certainly have an abundance of evidence."
Death penalty opponents have long sought to do away with override, arguing, among other things, that judges who run for elected office feel undue pressure to impose capital punishment. In 1995 lawyers with the Equal Justice Initiative convinced the U.S. Supreme Court to review override in the case of Harris v. Alabama. The appellant, Louise Harris, had been convicted of conspiring to kill her husband. The jury spared her life--Harris was a churchgoing mother of seven who held down three jobs--but the judge overruled the verdict and ordered her death. In an 81 decision, the Supreme Court ruled for the state and remanded Harris to death row, where she currently awaits execution. "Judges who covet higher office--or who merely wish to remain judges--must constantly profess their fealty to the death penalty," Justice John Paul Stevens wrote in dissent. "The absence of any rudder on a judge's free-floating power to negate the community's will ... renders Alabama's capital sentencing scheme fundamentally unfair."
By now, professing fealty to the death penalty is a well-established feature of judicial elections in Alabama. A few years ago, Alabama Supreme Court candidate Claud Neilson boasted in a campaign ad that he'd "looked into the eyes of murderers and sentenced them to death." Another candidate for the state's highest court, incumbent Kenneth Ingram, ran a TV ad that opened with grainy videotape footage from inside a convenience store where, 20 years earlier, a teenager had murdered the owner. Here, said the ad's narrator, "a 68-year-old woman, working alone, was robbed, raped, stabbed 17 times, and murdered. Without blinking an eye, Judge Kenneth Ingram sentenced the killer to die." The victim's daughter then appears on screen to give her personal endorsement. "It was my mother who was killed, and Judge Ingram gave us justice. Thank heaven Judge Ingram is on the supreme court."
Less Apt to Rule on Sympathy
The State Building in downtown Montgomery lies a few blocks away from the Dexter Avenue King Memorial Baptist Church, where Martin Luther King, Jr., once preached. There, in a fourth-floor office, Clay Crenshaw currently heads the attorney general's capital-litigation division. His secretary's office door is covered with Far Sidestyle cartoons. In one, two guards stand watch over a man in an electric chair, which sits in the prison yard during a rainstorm. As the guards wait for a bolt of lightning to hit the chair, one says to the other, "These darn cutbacks have gone too far." Upon spotting me reading the cartoons, Crenshaw, a tall, balding man, chuckles and says, "We've got a little gallows humor here. Whatever helps you do a better job."
But Crenshaw doesn't seem to need much help getting up for his job. Speaking about the case of James Harvey Callahan, who raped and strangled a college student, Crenshaw says, "She was a person who would have contributed to society, and this piece of trash kills her. He deserves to die."
Crenshaw expresses the same certainty when it comes to the question of deterrence. "If criminals know that if they go to a 7-Eleven store and kill the woman there for $50, that they are going to forfeit their life--they aren't going to do that as often," he says. Even if that's true, I say, what's the justification for override? After all, anyone who opposes the death penalty is summarily dismissed from the jury pool for capital cases, a practice that results in especially conservative panels. If a "death-qualified" jury comes back with a life sentence, it surely had good reasons. Not so, replies Crenshaw. "A jury may base its decision on emotion, a crying mother or sister. A trial judge will rule on the law and is less apt to rule on sympathy."
In preparation for my visit, Crenshaw had printed out summaries of some of the most gruesome murders in Alabama's recent history. One he hands me concerns Judy Neelley, who helped her husband kidnap and sexually brutalize a 13-year-old girl. When they finished, Judy--who was 18 at the time--tried to kill the girl by injecting her with Drano and, when that failed, shot her in the back. On his last day in office in 1999, Governor Fob James commuted Neelley's sentence to life without parole--the only commutation given by an Alabama governor since the death penalty was reinstated.
Crenshaw's summaries don't mention the testimony and evidence that can lead juries to opt for life sentences. To learn about that, I drove a mile across town to the old pink Victorian that houses the Alabama Prison Project, where I spent the afternoon sitting on the floor examining a stack of files on former and current death row inmates. Since Crenshaw had flagged the Neelley case, I made sure to examine her dossier. According to her clemency petition, Neelley's father died when she was nine and the family fell into poverty. She had no encounters with the law until she met her husband, who was 11 years her senior, when she was 15. During the trial, it emerged that Neelley's husband regularly beat her. He told her that if she ever left him he'd kill her family. Once, after accusing her of infidelity, he raped her with a plunger handle and urinated in her mouth. Yet Crenshaw labeled Governor James's commutation of Neelley's death sentence "a travesty of justice and a great disservice to the state of Alabama."
Neelley's story is one of hundreds stored in five battered filing cabinets that nearly occupy an entire wall. Another Prison Project file tells the story of Walter McMillian, one of two men sentenced to die by judicial override only to be exonerated later, before they were put to death. McMillian, sentenced to life imprisonment by a jury for the alleged murder of a white teenage girl, had no prior felony record and produced 12 alibi witnesses. Judge Robert E. Lee Key, Jr., condemned McMillian to the electric chair, citing the "vicious and brutal killing of a young lady in the first full flower of adulthood." After McMillian had spent six years on death row, his attorney discovered that the state's principal witness, a career criminal, had avoided a capital murder charge by falsely testifying against him.
Over the course of the afternoon, I found a number of cases in which judicial override was implemented in a manner that's hard to see as anything but arbitrary. Robert Lee Tarver was sentenced to die for the murder of a storekeeper. The only evidence against him came from co-defendant Andrew Lee Richardson, who secretly got a break from the prosecution in exchange for testifying. Tarver denied committing the crime, and an appeals court would later concede that "very little evidence made Tarver a better candidate than Richardson to be found to be the actual killer."
Whatever the issues with his conviction, Tarver had a compelling case at sentencing. For instance, his grandparents had taken him in after his mother abandoned him, and years later he returned the favor when they were too feeble to care for themselves. But none of his good deeds were introduced at trial, because Tarver's attorney spent just four hours preparing for the penalty phase. Judge Wayne Johnson--who overrode the jury's life sentence--learned of Tarver's better side five years later, when an out-of-state lawyer recruited by the ABA presented it on appeal. Johnson promptly ruled that Tarver's original defense had been constitutionally deficient, said he'd never have ordered him to the electric chair if he'd known all the evidence, and scheduled a new sentencing hearing. The state went to the Alabama Court of Criminal Appeals, which ruled that Tarver's defense had been sufficiently capable and that it was too late for Johnson to change his mind.
At the bottom of Tarver's file, I found a letter sent by his daughter, Clissie Rogers, to Alabama Governor Don Siegelman. "Is life without parole possible for the father and grandfather of those pictured above?" she asked in words typed below a photo of herself and her two beaming kids. Alas, it wasn't. Tarver was executed last April 14.
Taurus Carroll is one of 14 Alabama inmates sent to death row as a juvenile and one of four sent there via override. Carroll, along with a teenage companion, robbed a Birmingham dry cleaner in 1995 when he was 17. Before fleeing with $90, Carroll shot--the gun went off accidentally, he claimed, and there was no direct evidence to show the contrary--and killed the owner, Betty Long. The jury at Carroll's trial found him guilty of capital murder. During the penalty phase, the panel heard that Carroll's mother had kicked him out of the house at the insistence of her drug-abusing husband and that his grandmother raised him in one of Birmingham's worst slums. Several members of Betty Long's family asked that Carroll's life be spared. "When he took Betty's life, he destroyed mine," her mother testified. "[But I] do not want to see him dead, because if Betty was standing here instead of me, she would say the same thing. åDon't kill him, but make him pay for the suffering that he has caused me.'" The jury voted 102 for life, but Judge Alfred Bahakel ordered Carroll to the electric chair.
Death in Mobile
Capital-defense attorneys hate to end up in court in Mobile, partly because death penalty zealots have frequently occupied the local district attorney's office. Charlie Graddick, who served during the 1970s, pledged that on his watch he would "fry murderers until their eyeballs pop out." After the Court of Criminal Appeals tossed out a death sentence that DA Chris Galanos had won at trial, Galanos, who served until 1994, described its members as "the five dumbest white men in the universe."
Mobile judges tend to be cut from the same cloth. Ferrill McRae, one of five locals who has employed override, was born in Irvine, Kentucky, a railroad town in the foothills of Appalachia. His parents moved to Mobile when he was a child, taking along Ferrill and his nine siblings, including the judge's twin brother, Merrill.
McRae's judicial career dates to 1965, when Governor George Wallace--still in his "Segregation forever!" phase--appointed him to the bench just four years after McRae graduated from the University of Alabama's law school. McRae heard domestic cases during his first five years on the bench, but he's been handling criminal cases ever since. He's lost track of the number of capital trials he's presided at, other than to say there have been "a lot."
In at least six death penalty cases, McRae has issued findings that were ghostwritten by the attorney general's office. He's also pursued an open-door policy with a number of local district attorneys, especially Chris Galanos. Mike Odom, a lawyer who formerly worked on Galanos's staff, recalls two unspoken rules worked out between the DA and McRae. "The first was that there should always be at least one pretty woman on the jury so that the judge had something nice to look at during trial. The second was never to strike a juror who came from the 36608 zip code, because that's where the rich white locals live."
Like the rest of the South, Alabama turned increasingly Republican after Lyndon Johnson introduced civil rights legislation in 1964. Last year, a local lawyer named Charles Miller filed to run against McRae as a Republican, and the judge, a lifelong Democrat, deftly switched party affiliation so he could face him in the GOP primary. Miller crushed McRae in a pre-election poll conducted by the Mobile Bar Association--it was the first time an incumbent had failed to win the local bar's endorsement--but the judge squeaked out a narrow victory on primary day.
Though his views on the subject are well known, McRae ran TV ads to highlight his support for capital punishment. In one he is shown on the bench while an announcer notes that the judge has "presided over more than 9,000 cases, including some of the most heinous murder trials in our history." Meanwhile, the names of notorious convicted murderers whom McRae sentenced to death flash on the screen: "Singleton, Murdered Catholic Nun" and "State Trooper Martin, Murdered and Burned Wife."
Cornelius Singleton, a mentally retarded black man, got death from an all-white jury. He signed a confession--with an X--that he couldn't read; later he said he thought he was admitting to stealing laundry off a neighbor's clothesline. The confession was extracted before Singleton had a lawyer and after the police told him that the murder charge carried a maximum sentence of life in prison and allowed his girlfriend to sit on his lap in exchange for waiving his right to silence. Singleton's court-appointed attorney refused to meet with him and didn't tell the jury that his client was retarded. McRae allowed prosecutors to make inflammatory final arguments to the jury--one called the defendant a "creature [that] I can't refer to as a person or a human being"--and at sentencing dismissed the testimony of four defense psychologists while crediting a prosecution expert who said that Singleton was intellectually limited but not retarded. Singleton went to the electric chair in 1992. His IQ--in the range of 55 to 67--was lower than that of anyone executed in the United States during the past quarter-century.
George Martin, a former state trooper, was convicted last spring of killing his wife for insurance money. His attorney, Dennis Knizley--who has handled a score of capital cases and has only two men on death row, both McRae overrides--feared that with the primary election against Miller coming up, the judge would exploit Martin's case. "He'd given plenty of continuances to me in the past, but this time he refused" to extend the May 1 trial date, Knizley said over drinks at a local hotel. "I don't know if he was politically motivated, but I do know that he had the opportunity to be on TV and in the newspapers every day." What's especially noteworthy is that when the campaign ad ran, the jury had convicted Martin but voted to spare his life. McRae had not yet rendered his decision, though the ad all but announced that he planned to give Martin death--which he soon did.
When asked about such cases, McRae isn't the least bit defensive. "I never enter into a decision hurriedly--I always put it off at least five or six days," he told me in his courtroom. "After I've imposed it, I've never felt like I made a mistake." And what about Singleton, I asked a few months later, after learning details of the case. McRae faxed back: "Do I think Singleton received a fair trial? The answer is yes. There is no such thing as a perfect trial, but his comes close to it."
McRae disputes that race is a factor in the imposition of the death penalty. "It's the most overrated thing in the world," he lectures me from the bench when I mention Batson v. Kentucky, the 1986 Supreme Court ruling that prevents prosecutors from striking African Americans from the jury on the basis of race. "I'm taking up for blacks now, I'm not speaking badly of them. The idea that a black will stick up for a defendant just because he's black ought to offend every black. I would be offended by the attitude I hear from the lily-whites, that blacks are softer on crime."
Meanwhile, McRae's override of the Martin verdict sparked a small backlash. The conservative Mobile Register editorialized soon afterward that "no one man should be empowered, on his own, to sentence another to death." Last December, Hank Sanders, an African-American state senator from Selma, called for a three-year moratorium on executions, saying that override is one of his chief concerns. It's doubtful, though, that any significant change is on the horizon. Sanders's appeal was greeted with a chorus of catcalls from top state officials. "I'm not interested in a moratorium," Governor Siegelman replied. "That's another way of saying let's look at an alternative to the death penalty, and that's not a discussion I'm willing to engage in."
Judge McRae doesn't believe lawmakers will heed Sanders's call--nor should they. "Some say some judges are more prone to give the death penalty than others," he tells me in his courtroom before departing for his friend's funeral. "There's no question about that. But if it's based on what's fair in the case, I have no problem with that."
