What Just Mercy Doesn’t Tell You
Appeals aren’t set up to save the innocent.
Fresh from law school, I served as a Deputy Attorney General in Indiana working in criminal appeals. I defended the work of prosecutors to keep people in prison, and — on one occasion involving a man who molested and strangled a ten-year-old boy — on death row. (His heinous act prompted Zachary’s law, which established Indiana’s sex offender registry).
Memories of my work flooded back when I watched Just Mercy, a compelling drama depicting attorney Bryan Stevenson’s multi-year quest to free Walter McMillian from death row in Alabama.
In a shocking and close-to-accurate recounting, we learn a sheriff with a fondness for racial epithets arrested McMillian and placed him on death row before his trial for the shooting death of a white woman in a 1986 dry cleaner robbery. The case facts are here, but it suffices to say a jury convicted McMillian based principally on:
(1) the testimony of two witnesses who say they saw McMillian’s “low rider” truck at the cleaners near the time of the murder; and
(2) the testimony of Ralph Myers, the white co-defendant to the murder.
Your Alibi Won’t Save You
A jury convicted McMillian despite SIX black alibi witnesses testifying they saw him at locations that would have made it impossible for him to commit the murder.
McMillian was convicted despite no physical evidence. No gun (or any indication he owned the type of weapon employed in the murder), no hair, no fingerprints, no bloody clothes, no recovered cash, and no satchel that Meyers said McMillian used to cart away the money and gun.
In 1990, with Stevenson serving as McMillian’s attorney, the Court of Appeals of Alabama affirmed the conviction.
Jaw-droppingly crazy.
Then, in an absolutely insane twist, Stevenson found a cassette of an interview with Meyers that had never been provided to the defense in the original case. When Stevenson flipped the tape, he heard an interview conducted months earlier in which Meyers emphatically denied McMillian’s involvement in the murder.
We learn that after this first interview, the sheriff placed Meyers — who had a horrific fear of fire arising from a childhood incident— on death row in the cell closest to the electric chair shortly before an execution. To secure a change of scenery, Meyers told the sheriff everything he wanted to hear.
Stevenson also found an undisclosed statement from an inmate who heard Meyers say he and another man had committed the murder and intended to blame McMillian and a statement from a witness who saw the victim alive at 10:30 a.m., which contradicted the district attorney’s theory that the murder happened between 10:15–10:45 a.m.
During a hearing seeking a new trial, Meyers came clean as forcefully as he did in the original interview audio, and Stevenson also presented evidence that McMillian’s truck wasn’t “dropped to a low-rider” until six months after the murder, so the crucial detail two witnesses used to identify McMillian’s truck was provably false.
Gasp! (No, not really).
Then something happened that probably shocked the American viewing public but not a single lawyer who has practiced criminal law — the judge DENIED the motion for a new trial, concluding it could not say whether Meyers was lying in the recantation or at the original trial.
Ultimately, the Alabama Court of Appeals overturned the guilty verdict and delivered the Hollywood ending we see (to the extent being freed from false imprisonment after seven years only to suffer dementia that has you believing you’re back on death row is satisfying).
Racism or Law Doing What It’s Ordained to Do?
My visceral reaction — which I’m sure was shared by a great many — was “This is some racist bovine feces!” Perhaps. But to truly assess this, you have to understand the well-intended but manipulable procedural hurdles we set up when higher courts review judgments by juries and trial courts (and, as here, when trial courts decide whether to award new trials).
Appellate courts aren’t “do-over” courts. If you get a bad trial result— even a death sentence —nobody automatically looks at all the evidence again as if the case is new. In fact, appellate courts are forbidden from doing so.
Most criminal cases — at both the state and federal level — do not go to trial. In 2018, 80,000 federal cases were filed, 1,600 went to trial, and 320 were acquittals. But even so, because our court system is a pyramid, with a fraction of appeals court judges compared to trial judges, retrying every case in some kind of best-of-three, rock-paper-scissors tourney, would wreck the judicial branch as constituted.
Also, the law gives life to Shakespeare’s Sonnet declaration “the eyes are the window of the soul, and by extension, the soul itself.” We accept that a judge or jury who can hear a voice, see body language, and gaze deeply into eyes can suss out deceit better than somebody who only reads a transcript of what everybody said, which is what appeals courts do. This is supremely logical since most of our communication is non-verbal.
Thus, while each appellate court must absolutely determine whether the prosecutor presented “sufficient evidence beyond a reasonable doubt,” if you conceptualize a defendant’s true innocence as a room full of air, appellate courts are given straws to breathe through.
Here are things appellate courts CANNOT do:
- …pass judgment on the truthfulness or credibility of witnesses. If one witness supports the Defendant, and one doesn’t, this isn’t reasonable doubt. A jury can disregard the defendant’s witness (which it obviously does by rendering a guilty verdict). The only exception is if a witness is deemed “inherently incredible,” which for most states means “disproved as a matter of logic by the uncontradicted facts or by scientific evidence.” When a federal judge in Washington, D.C. overturned a conviction on this basis in 2016, it was the first time in fifty years it had happened.
- …reweigh the evidence. If there are SIX alibi witnesses, not just one, the result stays. An appellate court will not overturn the conviction because — as insane as this sounds — a jury could have discredited all 6.
- …use ITS judgment. If the appellate court finds that ANY rational trier of fact (jury or judge) could have entered the conviction, it will stand. In other words, even if a panel of appellate judges all think, “Well, I sure wouldn’t have made that decision, but I can see how some jury might have,” that’s good enough; and most critically…
- …apply evidence favoring the Defendant. When imagining this rational jury, the appellate court ONLY uses the evidence most favorable to the jury’s guilty verdict, AND if conflicts exist, must credit the evidence against the defendant. Say a jury convicts Jim of murder, and the prosecution’s evidence was that someone saw Jim at the time of death in the murder location, a ballistics test matched a bullet to his gun, and his DNA was found on-scene. Sounds like enough, right? Because that’s all an appellate court evaluates. It will not consider the three alibi witnesses, the four ballistics experts who said the prosecution’s expert is wrong, and the five experts who testified the DNA samples were tainted because of systemic foul-ups at the lab.
Why are you complaining? The dude got freed.
But, wait…Alabama exonerated McMillian. “The system works!” you say.
Terrifyingly, he didn’t get exonerated.
The Alabama Court of Appeals’ opinion says this:
“There is ample evidence to support the trial court’s findings and ruling. Hence, its findings that Myers’s testimony at the appellant’s trial was not false and that Myers did not perjure himself at the trial must stand.”
McMillian’s conviction was vacated only because our Constitution mandates that prosecutors turn over evidence that could prove innocence, and the audiotape and other statements were definitely that.
Alabama would have absolutely executed McMillian if a racist sheriff had simply recorded over an interview and taken two statements out of the file. I support no blanket indictment of law enforcement, but of whatever subset you believe might operate with either nefarious (or at least deliberately indifferent) intentions, how many can we expect to be this stupid?
Just Mercy concludes by noting that for every 9 executions, 1 person has his conviction overturned. That’s a staggering rate of false positives, and it reminded me of one of the most famous dissenting opinions in Supreme Court history.
Justice Harry Blackmun wrote in 1994:
“From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.
Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.
It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants “deserve” to die? — cannot be answered in the affirmative.
It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked.
The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.”
Sadly, I doubt anyone’s opinion on the death penalty or the justice system will change by virtue of this essay, but maybe some will realize how crucial fair prosecutors are and understand that reformers are not seeking absolution for the guilty.
Just mercy…for the as-yet-unidentified innocent.
Up next in your education process….
