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A Georgia Courthouse
When I drive from Athens to Sparta, I know I am in Georgia. The road takes you through open fields. Only one sharecropper shack remains, light peering through between the four piles of bricks on which it stands. Cotton, mechanically maintained now, is regaining its place in competition with the beef cattle endlessly grazing on gently sloping hillsides. Coming into Sparta, the county courthouse commands attention.
Falsely promising to block the way, the monumental building rises straight ahead. Tall and wide, with white wooden lace falling over rich red brick as its high windows point toward the bright white of the cupola crown, this is the law's palace. Georgia's grandiloquent courthouses are her architectural glory. Creaking majesty may be a lot for a worn-down town to carry, but whether, as here in Sparta, in splendid raiment or where prosperity has forced the law to don drab modern garb, the courthouse reigns in each of the state's 159 counties.
There is nothing ridiculous about the courthouse's power. The feet of many citizens have worn the treads of the stairs as, for decades, they have climbed to the upstairs courtroom to watch neighbors learn their fate at the hands of justice.
Courtroom drama here in Georgia, as everywhere, is plentiful. Sometimes it slips close to comedy. A dog gets into a chicken yard and kills most of the fowls. The owner is found guilty of his dog's crime. It shouldn't be too hard for the jury to assess damages. The only problem is that these were notrun-of-the-mill 89-cents-a-pound chickens that were consumed; they were valuable fighting cocks, a value not diminished by the illegality of cock fighting in Georgia. Nothing, it seems, is simple.
The stakes are higher, in some eyes at least, if, another day in that courtroom, the dead body is that of a person brutally murdered and what is before a jury of peers is the decision to put to death the person guilty of that murder. Under the law of Georgia, acceptable to the nation's Supreme Court, these citizens of the state must decide whether to kill the killer.
There are few subjects grittier than the death penalty. Its curious appeal lies, in part, in its very grimness. For proponents, their eyes on the moment of terrible murder and the bereft family of the person killed, there is the Judgment Day finality of the act of execution. For opponents, most of whom reject the validity of any killing, even as punishment, there is the compelling suspense of the sentencing, and later, the wait for a judge's final stay, a governor's last-minute clemencyfollowed by the ineffable, helpless sadness when neither comes and they watch the doomed man's last hours, choreographed to the beat of the clock moving to the moment of his extinction. In either instance, deep emotion is at work.
On another day, when I drive over to Jackson, not far across the state from Sparta, confronting me is a very different structure. Amid stretches of an incongruously manicured park of sloping green surrounding a pond stands the low-lying, gleaming prison in which live the menin Georgia they are still all menawaiting death. For those unableor even unwillingto get help staving off execution, the wait will be less long than for others with competent lawyers. And yet the wait for most is considerable. In Georgia, the average time between conviction and execution is in excess of eight years; many have been on death row for more than twenty years. Even a man who wanted to die had to wait out appeals others filed for him. For those with lawyers at work, this wait, kept afloat by hope, stretches out over the years while the maddeningly baffling business of appeals and retrials works its way through the system.
Some of the men on death row at Jackson are among the clients of a group of lawyers forty-five miles north in Atlanta at the Southern Center for Human Rights. A phone call to the center is answered, simply: "Law Offices." There is no question but that law is practiced here. Stephen B. Bright is first among equals of these less than a dozen lawyers whose work is keeping their clients alive. Unlike those who zealously work to end the death penalty by trying to bring moral pressure at every point in the society where a decision to end the death penalty might be made, Bright and his colleagues fight to keep individuals from experiencing it. The law they so skillfully practice often, in other hands, works violence. These lawyers are determined to keep each of their clients from the ultimate expression of violence, the state killing its own people.
However complex the law as the work progresses, the identity of the center's clients is never lost in some theoretical attack on what might prove to be their fate. In the lawyers' daily conversations with each other and with their clients, each prisoner is, by name, Kenny or William, Carzell or Tony.
There are many, including the present chief justice of the United States, who, approving of the death penalty, hope these lawyers will not succeed. The Congress, with the justices' blessing, has already shortened the condemned persons' waitand their chances of survivalby limiting the ability to appeal to the federal courts. All across the land there are cries for more executions. Governors who have held out against the death penalty are defeated; politicians, former prosecutors prominent among them, climb to elected office on its popular coattails. The task of ending the death penalty, thought accomplished by an earlier Supreme Court in 1972, has seemed almost hopeless since 1976, when executions could be resumed. Until revived, the death penalty had not been exacted since 1967. In 1997, the states killed seventy-four people; thirty-seven in Texas alone.
In 1995, Congress voted to end funding for the twenty resource centers which provided counsel for death-sentenced inmates in the later stages of court review where lawyers are not furnished by the various states. Thwarting efforts to save convicts' lives, rather than economy, was the motive in many lawmakers' minds as they eliminated the federal program. Lawyers at the centers also provided advice to volunteer lawyers who often had no experience with capital cases. With the end of funding for the resource centers, the burden on the privately funded agencies grew heavier.
It was in 1995, also, that Congress, in the aftershock of the Oklahoma City bombing, launched an assault on the writ of habeas corpus, the law's avenue of appeal to the highest court of the realm. In the United States, the "great writ"once sacred to citizens of a democracy, and particularly to its lawyershas been seen as available for appeal from a sentence both in a state court and in the federal courts. In over roughly 40 percent of the cases appealed, federal district courts and the courts of appeal have found constitutional errors in the state courts' proceedings and have reversed death penalty convictions.
Despite the constitutional vagaries the lower federal courts so often found in state court decisions, the present Supreme Court, over the last decade, has been determined to establish the primacy of the states and their review processes. In so doing, the highest court of the realm is turning back a movement by its predecessor courts toward a reading of the Fourteenth Amendment that holds that even in such local matters as law enforcement the country's populace are citizens of a nation as well as a state and protected by federal law.
The rub is that those citizens invoking protection are sometimes unsavory criminals. Twentieth-century appellants are no longer, as they once were, corporations, which, in the nineteenth century coopted the Fourteenth Amendment and persuaded the Supreme Court to regard them as people. Many are convicts seeking redress; and with the rise of violent crime in the 1970s, powerful people sought to prevent their finding it. But not by making a frontal assault on the Fourteenth Amendment. The strategy rather was to restrict the seeking of remedy to the state courts, and to limit the time and grounds for death penalty appeals to federal courts. To end, in Senator Orrin Hatch's oft-repeated phrase, "these frivolous appeals," would be to speed the awful vengeance of the law and assert dominion over a threatening criminal class composed largely of the poor.
How can those of us for whom both the concept and the reality of the death penalty are repugnant be expected to keep the faith? A clue comes from an unlikely source. In "The Black Cottage," a poem by Robert Frost that I have read many times over the years, a minister and the narrator, out for a walk in the woods long after the Civil War, come upon an abandoned house. The woman who lived there, the clergyman muses, stood for a cause now almost forgotten: the freeing of the slaves. And she held to her obsolete belief "That all men are created free and equal." Those two causes, both beyond saving the Union, were what "she thought ... the Civil War was for."
Now, half a century later, "These doorsteps seldom have a visitor. / The warping boards pull out their own nails ..." The lonely house seems to the clergyman a lifeless reminder of actions and words that no longer matter. He muses on the meaningor rather, the lack of meaningthat the house symbolizes. Then he suddenly notices that
There are bees in this wall." He struck the clapboards,
Fierce heads looked out; small bodies pivoted.
We rose to go. Sunset blazed on the windows.
For the woman living in the house, the antislavery cause must once have seemed close to hopeless. The 1850s witnessed enforcement of the Fugitive Slave Act, talk of reopening the African slave trade, and the Dred Scott decision asserting that African Americans had no rights that white citizens need observe. Yet she lived to see slavery end, and the Reconstruction amendments that were supposed to ensure freedom and equality made the law of the land.
When the minister and the narrator came across her empty house, the nation seemed to have abandoned its post-Civil War commitment to equality for the people freed by that war. In the South, where most African Americans lived, the repression of Jim Crow laws and terrifying lynchings were accompanied by disenfranchisement. And yet, at the very time Frost wrote "The Black Cottage" (it was published in 1914), a small band of Americans had begun the twentieth century's long, unfinished march toward racial justice. The old woman's ideas do sting with life.
In our time, a small, determined group of people, whom she would have recognized as spiritual kin, refuse to give up the struggle to end what they see as a fundamental wrong in our society. Indeed, the anti-death penalty effort is not far apart from the nineteenth century's antislavery movement. Descendants of slaves have suffered a disproportionate number of imposed deaths. But race, decidedly a factor in the death penalty debate, does not alone define the issue. The death penalty in fact cuts even more deeply into the whole fabric of the society. Many, perhaps the majority of Americans presently regard capital punishment as necessary to the ordered weave of society. For others, it is a moral snag that must be undone. The most dedicated opponents of the death penalty work against seemingly hopeless odds, but still hope to see light blaze on their window.
THIS IS AN account of some of them, lawyers and clients who combat the death penalty in Georgia's courthouses. It is the story too of jurors who have to decide if a person is to die or live. It is not a treatise on the legal intricacies of death penalty law, nor is it an account of those with the fortitude to befriend inmates during their long wait and stand by them in the harrowing hours on the day they die. There is here neither sociological analysis nor a comprehensive history of the death penalty in the United States.
Instead, this is an account of a historian who suddenly found himself pulled out of history and into the reality of the law taking a person's life. Right in front of me, as a result of twenty minutes on the stand as a witness in a death penalty case, appeared what seemed to me a strand of the hatred that has done, and continues to do, great damage in the land.
I know something of the nation's historyof the history of its violencesbut one day in a Georgia courtroom carried me beyond a recording of the past toward a small responsibility for the present. And so this book is simply a story of a few people living in one corner of the country who carry a large responsibility. The dry boards of a Georgia courthouse creak into life when one persona lawyerin defiance of a society that no longer cares, goes about the tough, unpopular work of trying to keep us from killing his client, the person sitting next to him.
The Grand Dragon
The last of an early morning fog lifts from the courthouse square in McDonough, a town in central Georgia. Cars and pickups shuffle neatly into and out of roads meeting at its four corners. On one corner, the classic bank building is now a pawnshop; on another is the breakfast and lunch café. Across the common, thick with trees and bordered with late summer flowers, the white-steepled pile of brick and curved granite of the 1897 Henry County Courthouse, like its even more ornate cousin in Sparta, stands tall.
Up the worn stone steps and out of the nineteenth century, I climb the interior stairs and enter a neatly modernized small courtroom. Only its pressed tin ceiling belongs to the past. A history teacher never before with such an assignment, I am innocent of every particular of the coming event save one, its central issue. The previous Monday, September 25, 1995, the telephone rang in my University of Georgia office in Athens. When the caller identified himself"This is Stephen Bright"it took only two mental clicks for the name to register.
I had been told by a lawyer friend in New York that Stephen Bright was one of the best of the lawyers fighting the death penalty, but had not met him. Would I, Bright asks now, be an expert witness at a hearing on motions that he will present before the judge who will conduct the sentencing trial in the case of Carzell Moore? Needed is someone familiar, first, with the history of the Georgia state flag, two thirds of which bears the stars and bars of the battle flag of the Confederacy. The Confederate battle flag, waved at Ku Klux Klan rallies, was added to the state flag in 1956, the days of massive resistance to integration. Bright will contend that a black person is not equally protected by the Fourteenth Amendment to the Constitution in a room in which, approvingly, a racist emblem is displayed.
Secondly, Bright says he needs someone familiar with violence in the South. I gently remind him that this is a fairly big topic. Somewhat vaguely, he brings up lynching and a link to the death penalty. With the mention of lynching, I tell him the person he wants is Fitzhugh Brundage, author of Lynching in the New South. I haven't finished the citation when Bright cuts in: "He's up in Canada." The man knows the literature, and even the whereabouts of its perpetrators. And I'm not off the hook. Turning to the flag, I ask Bright if he wouldn't prefer to have it discussed in softer southern tones rather than my Manhattan rasp? "No," he replies. Out of excuses, and curious, I say, "Yes, I will be in McDonough at the courthouse on Thursday at nine."
TAKING A SEAT now at the end of a row in the spectators' section, I try to read the topography of the unfamiliar furnishings in the almost empty courtroom. I recognize the judge's bench high in the corner with the American and Georgia flags drooping on either side, but am not sure of much else. Across, at what I take to be the lawyers' table, a big-chested black man is going through papers pulled from thickly stuffed accordion files. His fashionably shaved head makes his age hard to guessperhaps thirty-five. He's wearing an up-to-the-minute dark suit with high-peaked lapels over a pinpoint blue shirt and silver and navy patterned tie. Things can't be all bad in Georgia, I think, if we have African American lawyers like this one taking capital cases. Through his thin-rimmed round spectacles, he peruses the documents with precision, pausing only to greet quietly others joining him at the table.
It is just after nine o'clock. As the room fills, the judge, balding and dapper in a camel's-hair jacket, enters from his chambers and quickly, formally identifies those present at the bar. Glancing hurriedly around, I try to find the defendanthe can't be the young man in the row in front of me; the prisoner would not be sitting with the spectators. It's an hour into the testimony before I can convince myself that the well-set-up man at the lawyers' table is Carzell Moore, a convicted kidnapper, rapist, and murderer.
One of those seated, or rather perched, at the crowded defendant's table is a tall white man with a strange sheath of dull copper hair who never seems to alight for long. Almost with a rush of air, he has come into the courtroom carrying energy with him. Toying with glasses, constantly on and off, he appears to be everywhere in the room at once. Not a large man, even a little narrow in the shoulders, he seems almost to fill the space. This has to be Stephen Bright.
In this courtroom he is in action, but not in command. Bright has an adversary, the Flint Circuit district attorney, Tommy K. Floyd. Deliberately languid, slow to rise to a dignified height, his handsomely graying wavy hair perfectly combed, Floyd sits most of the day with his long legs sprawled under his table. But there is a look almost of contempt on his face as he peers over half glasses at the defense lawyer. Perhaps it is all simply courtroom posture, but I sense more.
It is not that Bright and Floyd are two able lawyers capable of playing interchangeable roles in a legal game, as their professor in law school might once have had them do. Quite the opposite. They stand as exemplars of two fundamentally different philosophical positions on the death penalty. Bright and Floyd guard gates---of different cities.
Carzell Moore has been convicted for an act so terrible that neither guardian would lightly allow this man the freedom of his city's streets. One, to sustain the city, would use the law's authority to banish from life a being no longer within his concept of human; the other would claim that no person is ever wholly outside the city's wall. Though Moore has raped and murderedhas sacked his own cityhe is, to Stephen Bright, still of its people. For the authorities of that city, for its citizens, to match his act of killing with a killing, to deny even him life, is for the city to lose its very civility.
In December 1976, Teresa Allen, a young white woman working as a clerk in a Cochran convenience store, was abducted by two black men, Roosevelt Green and Carzell Moore. They drove her forty miles north, then raped and shot her. Both men were apprehended and jailed, pending trial which was to be held in Forsyth, the seat of the county in which her death took place. Green escaped from jail and Moore, in his absence, was tried, convicted, and sentenced to death. Green was traced to South Carolina when he made a telephone call to a mutual acquaintance inquiring about Moore. Brought back to Forsyth, Green was tried, and, after further litigation, executed. Meanwhile, the Center had taken Moore's case; errors in the penalty phase of his trial were established and he was granted a new sentencing trial.
In this courtroom in a town distant from Forsyth where Carzell Moore was tried and convicted, Judge Joseph B. Newton from Waycross, even farther down state, is conducting a hearing prior to the new jury trial that he will convene to determine whether Carzell Moore will live out the rest of his life in prison or die. The judge has entered this case, which has been moved to this courthouse, as a result of the long appeals process that has successfully challenged the fairness of the original sentencing.
To be heard and contended for are a cluster of arguments by Bright and his colleagues maintaining that Moore has been deniedand is in danger of again being deniedequal protection of the law under the Fourteenth Amendment. At the same time, Bright will be buildingwith a freshness that almost suggests this is the first time he has done soan argument that the death penalty is inherently wrong. This double strategy is at work throughout the day. Any conceivable maneuver allowed by law that might buy Moore's life more time is brought forth in tandem with the underlying principle that the state has no license to take that life.
At their table, facing the judge, is Moore's legal team. Alongside Bright sits Palmer Singleton. With his rumpled suit and unruly thatch of black-brown hair, he could stand in for a professor. But absent-minded, no; when it's his turn to go after a witness, the voice is as gravelly as Bright's is clear; he is firm and decisive. (Neither has an accent that spells region.) At Singleton's right is a woman as visible on any street as he would be inconspicuous. I had seen her earlier crossing one in McDonough, striding purposefully on long legs toward the courthouse, briefcase in hand. Her well-shaped head was shaved into a Mohawk, with the surviving hair corn-rolled and pigtailed down the back of her neck. Although, later, Bright would pointedly refer to her as "African American," that touch of the warpath together with the corporately correct tailored jacket and high heels made a mockery of any single label for Althea Buafo. She has joined Bright's team for the case.
In a chair pulled up to the far corner of the table is a still younger woman, Tanya Greene, proudly introduced to the court by Bright as the center's first Blackmun Fellow from the Harvard Law School. The mention of the name Harry Blackmun, the Supreme Court justice who turned against the death penalty, is all that is needed to make unequivocally clear that there will be no diffidence about proclaiming exactly where this band of lawyers stands on the death penalty. Justice Blackmun (who died in March 1999) in 1994 left the ranks of those on the Supreme Court protecting the death penalty and reinvigorated opponents across the country with his announcement that he would no longer "tinker" with the "machinery of death."
Years earlier, a conservative attorney general in Pennsylvania had, one day, come upon the room in which stood that state's lethal machine, an electric chair. He took one long look at the chair and the containers into which witnesses to an execution could vomit, and came close to throwing up himself. Fred Speaker hadn't, before that moment, taken in just what a capital case, a death penalty came down to. He bided his time. But after the election of his successor, minutes before yielding office, he dispatched a written order to the warden of the prison housing the long-unused electric chair to dismantle it. Accompanying the letter was a formal legal opinion declaring the death penalty to be cruel and unusual punishment under the Eighth Amendment. The warden may have been happy to carry out the order; not a few other wardens required to orchestrate executions have spoken of how painful the task is. The demolished electric chair was later replaced by another, only to be replaced, in its turn, by a gurney with the insidious intravenous needle close at hand.
Carzell Moore, the man on whom the machinery is likely to workGeorgia still has its electric chairsits not facing the judge but at right angles to him. With his back to the wall, Moore is in plain sight of the four deputy sheriffs---one black, the others whitewho, in shifts of two, stand across the room at either end of the empty jury box constantly watching the prisoner. Occasionally, one of the deputies, his big gut drooping over the railing, swaps knowing smiles with the other at some lawyer's familiar antic. The two remind you of any relaxed, nice guys drinking iced tea you might sit next to at a lunch counter. At a break, two of the deputies escort Moore to the bathroom. The three return seemingly sharing a joke.
There are no jokes in the formal proceedings, no down-home joshing. The subject is death, but the discourse is of flags and statistics. In Georgia, we have had a glorious ruckus over the state flag. I suspect that there are a good many loyal citizens of sister states who, if pressed, would have trouble recalling much of anything about the cloth fluttering over official buildings. Not here. Little can inflame an assemblyman or assemblywoman like a call to defend the flagor to defy it. One need look no further than present-day Georgia for evidence that rippling cloth can have potency. Either it stands for our southern way of life and no one may rip it down, or it stands for oppression, like a swastika, and must be banished.