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Dothan, even in a poor section of town, posed a different kind of threat than “typical”
domestic violence. The prosecutor argued that Herbert was not just tragically misguided and
reckless; he was evil. The State sought the death penalty. After striking all of the black
prospective jurors in a county that is 28 percent black, the prosecutor told the all-white jury
in his closing argument that a conviction was appropriate because Herbert was “associated
with Black Muslims from New York City” and deserved no mercy.
Alabama’s capital statute requires that any murder eligible for the death penalty be
intentional, but it was clear that Herbert had no intent to kill the child. The State decided to
invoke an unprecedented theory of “transferred intent” to make the crime eligible for the
death penalty. But Herbert had no intention to kill anyone. Herbert was advised to deny any
culpability but ultimately argued that this was reckless murder, not capital murder, which
could be punished with life imprisonment but not the death penalty.
During the trial, the appointed defense lawyer presented no evidence about Herbert’s
background, his military service, his trauma from the war, his relationship with the victim,
his obsession with the girlfriend—nothing. Alabama’s statute at the time limited what court-
appointed lawyers could be paid for their out-of-court preparation time to $ 1 , 000 , so the
lawyer spent almost no time on the case. The trial lasted just over a day, and the judge
quickly condemned Herbert to death.
Following the imposition of the death sentence, Herbert’s appointed lawyer, who was later
disbarred for poor performance in other cases, told Herbert that he didn’t see any reason to
appeal the conviction or sentence because the trial had been as fair as he could expect.
Herbert reminded him that he’d been sentenced to death. He wanted to appeal no matter how
unlikely the prospects, but his lawyer filed no brief.
Herbert was confined on death row for eleven years, until it was his time to face “Yellow
Mama.” A volunteer lawyer had challenged the intent questions in a desperate appeal but was
unsuccessful. Herbert’s execution was now set for August 18 , just three weeks away.
After my call with Herbert, I filed a flurry of stay motions in various courts. I knew the
odds were low that we would block the execution. By the late 1980 s, the U.S. Supreme Court
had grown impatient with challenges to capital punishment. The Court had justified
reauthorization of the death penalty in the mid- 1970 s on the promise that proceedings would
be subject to heightened scrutiny and meticulous compliance with the law but then began to
retreat from the existing review procedures. The Court’s rulings had become increasingly
hostile to death row prisoners and less committed to the notion that “death is different,”
requiring more careful review.
The Court decided to bar claims from federal habeas corpus review if they weren’t initially
presented to state courts. Federal courts were then forbidden to consider new evidence unless
it was first presented to state courts. The Court began insisting that federal judges defer more
to state court rulings, which tended to be more indulgent of errors and defects in capital
proceedings.
In the 1980 s, the Court rejected a constitutional challenge to imposing the death penalty on
juveniles; upheld the death penalty for disabled people suffering from “mental retardation”;
and, in a widely condemned opinion, found no constitutional violation in the extreme racial
disparities that could be seen throughout most death penalty jurisdictions.
By the end of the decade, some justices had become openly critical of the review that death