Just Mercy: A story of Justice and Redemption, by Bryan Stevenson, One World (Reprint edition), 2015, 368 pages, €9.79
The Guardians, by John Grisham, Hodder & Stoughton Ltd, 2020, 384 pages, €10.75
Tenzin Gyatso, the 14th Dalai LamaIf you think you’re too small to make a difference, try sleeping with a mosquito.
On 10 December 2020, Brandon Bernard was put to death after spending 20 years on death row for his involvement in a double homicide when he was 18 years old. By all accounts, he was a model prisoner, genuinely remorseful, and rehabilitated. His dying words to the victims’ families were:
I’m sorry. That’s the only words that I can say that completely capture how I feel now and how I felt that day.
Bernard was not aware that on that faithful day, the four others he was with, who were older, had planned the killing. The jury sentenced him to death even though he did not participate in the killing. According to his lawyers who had sought a temporary halt of his execution to raise a constitutional issue that was not challenged at trial (the withholding of evidence by the prosecutor), five jurors who sentenced Bernard to death and the former prosecutor who challenged Bernard’s appeal came out against Bernard’s execution.
Alfred Bourgeois was executed the next day. His lawyer’s last-ditch effort to stay the execution – to raise a constitutional issue not raised by his trial or appeal lawyers (Bourgeois’ intellectual disability) – was turned down by the majority of Justices of the US Supreme Court. More federal inmates on death row are lined up to be legally killed by the US Trump administration.
For the past six months, President Trump and Attorney General William Barr have ramped up efforts to expedite federal executions. After an 18-year hiatus, and with many states putting a freeze on the death penalty for a host of reasons, not the least of which is that it is disproportionally imposed on black people and other minorities (who so often are innocent and wrongly convicted and sentenced to death), the Trump/Barr rush to execute federal death row inmates is inexplicable.
President-Elect Joseph Biden opposes the death penalty. Hopefully, he will put an end to this killing spree, and push to abolish the death penalty for federal crimes. Hard to expect states to refrain from carrying out executions if the federal government is leading the parade.
Whatever the reason for seeking the death penalty, there is something to be said about a society and some of its god-fearing, love-preaching, and humanity-hugging citizens that advocate for the killing of fellow citizens to show that killing is wrong. Aside from it being wrong to execute anyone no matter the crime committed, there is no way to right a wrong for executing an innocent person. Mistakes are made (check out the lives saved from wrongful execution by the Innocence Project) – even in the federal judicial system where the resources afforded to the defense in death penalty cases are generous in comparison to the measly resources offered by the states.
Reading about these executions, the last-minute challenges, the potential reasons why those scheduled to be executed might be innocent or undeserving of the ultimate punishment, I thought I would recommend two books I recently read: Bryan Stevenson’s nonfiction Just Mercy – A Story of Justice and Redemption and John Grisham’s fiction The Guardians. No matter your stance or knowledge on the death penalty, both books are likely to inspire, inform, and entertain.
If you have seen the film Just Mercy((For a non-fiction film on Stevenson, check out True Justice: Bryan Stevenson’s Fight for Equality, an award wining HBO documentary that chronicles EJI’s work in Alabama as well as the early influences that drove him to become an advocate for the poor and the incarcerated.)) but have not read the book, then do so. If you have not seen the film, hold off until you have read the book. Bryan Stevenson, a death-penalty defense lawyer (and much more), shares a slice of his vast, impressive, exhausting, despairing, disappointing, and occasionally exhilarating experiences in Just Mercy. In simple yet eloquent prose, he reports from the trenches of defending the most dispossessed in the US – individuals convicted of death penalty crimes awaiting execution while the appeal process takes its course, as well as minors and mentally ill individuals who have been convicted and sentenced to life, or as I put it, death-in-prison sentences.
Just Mercy is the story of a young, idealistic lawyer – a Harvard Law graduate, who as a second-year law student in 1983 spent a month in Atlanta, Georgia with the legendary Steven Bright (one of my legal heroes) at the Southern Center for Human Rights. After graduation, rather than taking a lucrative job in a big law firm or accepting a prestigious federal Circuit Court of Appeal or Supreme Court clerkship, Stevenson returns to the Southern Center for Human Rights. Having attended lectures by Steven Bright and having seen him in action (like watching a soft-spoken Southern preacher with Faulkner-esque prose and Gandhi-esque charisma), it is unsurprising that Stevenson returned. But then, Stevenson is no ordinary lawyer. A gladiator and missionary wrapped in one – cerebral, astute, fearless, compassionate. A brother’s keeper in every sense. It should come as no surprise that Stevenson was named the 2020 Global Citizen of the Year for his exceptional, profound, and sustained impact in fighting inequality and injustice.
Returning to the Southern Center for Human Rights, he works unseemly hours while crashing on Steven Bright’s couch for his first 18 months. With Alabama having a dire need for pre- and post-conviction death penalty lawyers, he heads off in 1989 to set up the Equal Justice Initiative (EJI) in Montgomery, Alabama. He has been the Executive Director ever since.
Just Mercy is not an autobiography. Nor is it one of those books written by a high-flying lawyer cashing in on the fame (or infame) of a celebrated case, shamelessly and conceitedly self-promoting with demi-truths, reversionistic shades of events, and apocryphal exploits. Rather, it is a composite of legal battles fought by Stevenson and others. One such battle is Walter McMillian’s case. Stevenson, a relatively newly minted lawyer to be handling death penalty cases, with his unrelenting drive, resourcefulness, and brilliant strategic thinking, takes on the system (even in the late 80’s-early 90’s it was not easy for a black lawyer to be representing a black man on a death penalty case in the Deep South, such as Alabama),(( The Deep South is referred to a geographic subregion of the US with large agricultural plantations dependent on Chattel slavery and where after the American Civil War white supremacy was reinforced with Jim Crow laws designed to racially segregate and disenfranchise black citizens. )) ultimately getting McMillian’s conviction reversed.
McMillian’s experiences are woven in with disheartening encounters of other death-row inmates in their last-ditch efforts for reprieve. Poignantly, the reader is treated to the inexcusable, inhumane, and inequitable traditions of the criminal justice system in some of the southern US states (though not exclusively), in seeking and imposing the death penalty.
Along with these sad death-penalty stories (some lost, some won), Stevenson introduces us to other inequities in the US criminal justice system with its excessive sentences, though thankfully with some happy endings that delight, inspire, and validate the Dalai Lama’s refrain that no one is too small to make a difference.
In the Cruel and Usual chapter, Stevenson takes us through an emotional rollercoaster – from disbelief, to anger, to hopelessness, to joy. But even happy endings can be melancholic. We first meet Ian Manuel, who was sentenced as an adult at the age of 13 to a life sentence and spent 20 years in solitary confinement for an assault with a weapon which did not result in homicide. Then there is Joe Sullivan, who was also sentenced at the age of 13 and serving a life sentence without the possibility of parole for sexual battery (which he did not commit) and other charges. And there are others – juveniles sentenced to death-in-prison. Along with his EJI legal warriors and others, Stevenson shepherds these cases through the intricacies of state and federal appellate procedures, reaching the US Supreme Court in Sullivan v. Florida, successfully arguing that such sentences for minors violate the Eighth Amendment to the US Constitution, forbidding courts (through state and federal laws) to inflict cruel and unusual punishment.
Aside from the human drama played out in this gem of a book, trial advocates are treated to superb behind-the-scenes strategic and tactical thinking. The strategic and procedural maneuvering in capital cases is sophisticated and complex – much, much, more than what defense counsel encounter in representing accused before the international(ized) criminal tribunals and courts. Factor in the lack of resources available to appointed counsel in death penalty cases, as well as the high stakes involved where even small strategic or tactical decisions could result in a death sentence – or where a life sentence without the possibility of parole is considered a victory (even when the accused is innocent of the charges) – and the refrain death is different, common among death penalty lawyers, takes on real, if unconceivable, meaning.
Now, if you are looking for more lighthearted entertainment during this locked-down festive season, I recommend John Grisham’s The Guardians, recently released in paperback. A fast-paced legal mystery with relatively real events and courtroom scenes, mainly about a wrongly convicted man on death row, Grisham delivers the goods.
The title of The Guardians chapter is a play on Centurion, an organization unknown to me, even though it has been around for some time doing God’s work – assisting wrongfully accused and convicted persons.
Centurion Ministries was founded in 1980 by a divinity student, James McCloskey, who, as a prison chaplain met an inmate claiming to be innocent. Believing in the inmate’s innocence, McCloskey helped him get exonerated. Then came the next one, and the next one, and so on. Centurion Ministries became Centurion. For 40 years it has freed a lot of innocent people. On their web page there are 49 faces with a number depicting the years of their unjust incarceration, linked to bitter-sweet heart-wrenching summaries of what they endured.
While doing research, Grisham came across some documents from Centurion Ministries. This led him to McCloskey. Add a story he heard about a Texas inmate named Joe Bryan, wrongly convicted of killing his wife, and Grisham’s imagination was off and running.
I won’t give away the plot, but here is why I think this book, other than its sheer entertainment value, is worth reading. First, it shows how good investigation leads generate other leads, which may lead to truths. Much like in Just Mercy, we see some excellent strategic thinking, which, if I may say, is quite useful in demonstrating how it is done and why it is important. There are some excellent lessons on the use and abuse of expert witnesses, and how the proper examination of physical evidence can make a difference. There are also some nice examples of courtroom skills on display.
There is also an ethics issue, which, if I have one criticism, was handled by Grisham cavalierly – an artistic license that he could have avoided taking, or, once taken, could have made the ethical consequences more realistic. Without giving away too much, the investigator manages to sneak out a piece of evidence to be tested (since the prosecutor would not), with the idea that if the result is positive, then all’s well that ends well. Not so in real life. Normally one can expect severe consequences. Even if the test results (means) assist in persuading that other untested evidence be examined resulting in militating in favor of exoneration (ends), the ethical breach is not excused. Here lies the moral dilemma for the ethical lawyer – something that Grisham should have developed. If the lawyer is going to go for it damn the consequences, then Grisham should at least make it more complex, realistic, and nuanced. But then, Grisham is out to entrain, inform, maybe inspire, or provoke, and if artistic license is necessary, so be it.
Reading Just Mercy brought back a flood of memories and emotions. So, with your indulgence, a personal vignette. In 1997, I spent six months in South Carolina working pro bono on two death cases. I had recently been back from Cambodia where I had helped train human rights advocates to represent accused in criminal matters, judges, and prosecutors as part of a judicial reform project. At the time, there was no Bar Association or criminal defense lawyers for that matter. Justice was in short supply if at all in Cambodia. The police abused the rights of suspects and accused, lied in court, and intimidated (without the need to threaten) anyone who dare question their methods or version of the truth. The prosecutors, for the most part, cow-towed to the police and judges, while the judges harangued at defense advocates (criminal defense lawyers were non-existent at that time), ignored the procedural rules, turned a blind eye to exonerating evidence, and so on. As bad as this was, I was in for a shocker when I found myself in two South Carolina courts, first in Marlboro County and later in Lexington, where my colleagues whom I went down to help would introduce me as “a Yankee, but a good Yankee.” Uncheerfully, I refer to this as my Southern Exposure – a play on a then popular TV show that took place in a fictional town in Alaska (where I practiced) called Northern Exposure.
I had heard of the injustices in the Deep South, some of which sounded a bit farfetched – especially having practiced mostly in Alaska where there is no death penalty and where the racial divide is – at least from my experiences – less pronounced. Space does not allow for a full treatment of my Southern Exposure, nor is it the purpose of this post. But in a few words, what I saw, heard, and experienced in and out of court, made me realize just how badly judicial reform was needed in some US states when it comes to the death penalty.
Imagine a defense lawyer assisting in the case, getting worked up about the use of a diminished capacity defense to keep the client from being tried on capital offenses and perhaps getting the death penalty, because it would be unfair to others (potential victims) of his own race (not hard to guess the color of the good ol’ boy’s skin and that of the client’s). Or a judge, shouting at a black lawyer for the whole courtroom to hear while evidence was being given by a psychiatrist on the issue of diminished capacity of your client “Jimmy, Jimmy, come here, you’re my favorite colored lawyer.” And then seeing Jimmy, with pride intact and no outward display from suffering this indignity, hurry over to hear the judge’s self-amusing yarns, lest he offend His Honor and bring harm to his client (a black co-accused in the case). Or the prosecutor, outright lying to the judge about not having visited the jail in search for jail-house snitches, only to bring in jail-house snitches who, when asked to point out in court who had approached them while in jail, flexed their index fingers toward the lying prosecutors. Not that it mattered to the judge who had been lied to. Par for the course.
I’ll stop here. Suffice it to say, it was an experience that informed me up close about the vagaries of the US criminal justice system in the application of the death penalty. The person in the dock may not necessarily be the right person, but even so, imposing the death penalty is simply wrong. It is a primitive custom of revengeful justice of no social utility and unbefitting for any civilized society.
In parting, if you are looking for an inspiration fix, Just Mercy will have you on an emotional roller-coaster that is sure to get you thinking about all those who toil in the trenches – often for little compensations and little appreciation – representing those accused of or having been, rightly or wrongly, convicted and sentenced to death. If you are looking for a good legal fiction to get an entertainment fix, go for The Guardians. Or just treat yourself to both books … and then a movie.
And since we are in the season of giving, consider making a small donation to the Centurion or the Equal Justice Initiative.
Happy Holidays!!!
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