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seizures and experiencing psychotic episodes. At seventeen, he was deemed incapable of
management and was left homeless. Avery was in and out of jail until he turned twenty,
when in the midst of a psychotic episode he wandered into a strange house, thinking he was
being attacked by demons. In the house, he brutally stabbed to death a man he’d believed to
be a demon. His lawyers did no investigation of Mr. Jenkins’s history prior to trial, and he
was quickly convicted of murder and sentenced to death.
The prison would not let me bring Mr. Jenkins a milkshake. I tried to explain this to him,
but at the start of every visit, he’d ask me if I’d brought one. I’d tell him that I would keep
trying—I had to, just to get him to focus on anything else. Months later, we were finally
scheduled to go to court with the evidence about his profound mental illness, material that
should have been presented at trial. We contended that his attorneys had failed to provide
effective assistance of counsel at trial when they didn’t uncover Avery’s history or present his
disabilities as relevant to his criminal culpability and sentence.
When I got to the court where the hearing would take place, about a three-hour drive from
the prison, I went to see Avery in the court’s basement holding cell. After going through my
usual protocol about the milkshake, I tried to get him to understand what would happen in
court. I was concerned that seeing some of the witnesses—people who had dealt with him
when he was in foster care—might upset him. The testimony the experts would provide
would also be very direct in characterizing his disabilities and illness. I wanted him to
understand why we were doing that. He was pleasant and agreeable, as always.
When I went upstairs to the courtroom, I spotted the correctional officer who had given me
such a hard time when I had first met Avery. I hadn’t seen the officer since that initial ugly
encounter. I had asked another client about the guard and was told that he had a bad
reputation and usually worked the late shift. Most people tried to steer clear of him. He must
have been the officer assigned to transport Avery to the hearing, which made me worried
about how Avery might have been treated on the trip, but he had seemed his usual self.
Over the next three days we presented our evidence about Avery’s background. The experts
who spoke about Avery’s disabilities were terrific. They weren’t partial or biased, just very
persuasive in detailing how organic brain damage, schizophrenia, and bipolar disorder can
conspire to create severe mental impairment. They explained that the psychosis and other
serious mental health problems that burdened Mr. Jenkins could lead to dangerous behavior,
but this behavior was a manifestation of serious illness, not a reflection of his character. We
also put forth evidence about the foster care system and how it had failed Avery. Several of
the foster parents with whom Avery had been placed were later convicted of sexual abuse and
criminal mismanagement of foster children. We discussed how Avery had been passed from
one unhappy situation to the next, until he was drug-addicted and homeless.
Several former foster parents admitted to being very frustrated by Avery because they
weren’t equipped to deal with his serious mental health problems. I argued to the judge that
not taking Avery’s mental health issues into consideration at trial was as cruel as saying to
someone who has lost his legs, “You must climb these stairs with no assistance, and if you
don’t, you’re just lazy.” Or to say to someone who is blind, “You should get across this busy
interstate highway unaided, or you’re just cowardly.”
There are hundreds of ways we accommodate physical disabilities—or at least understand
them. We get angry when people fail to recognize the need for thoughtful and compassionate