penalty cases received. Chief Justice William Rehnquist urged restrictions on death penalty
appeals and the endless efforts of lawyers to stop executions. “Let’s get on with it,” he
famously declared at a bar association event in 1988. Finality, not fairness, had become the
new priority in death penalty jurisprudence.
Two weeks after my first conversation with Herbert Richardson, I was frantically trying to get
a stay of execution. Even though it was very late in the process, I was hoping that we might
win a stay when I saw some of the compelling issues in Herbert’s case. While his guilt wasn’t
really in question, there were persuasive reasons why this case should not have been a capital
murder case, above and beyond the absence of a specific intent to kill. And even if you
disregard that part of it, there was strong evidence that the death penalty should not be
imposed because of Herbert’s trauma, military service, and childhood difficulties. None of this
compelling mitigating evidence was presented at trial, and it should have been. The death
penalty can be imposed fairly only after carefully considering all the reasons why death might
not be the appropriate sentence, and that didn’t happen in Herbert’s case. I was increasingly
becoming convinced that Herbert was facing execution because he had been an easy target.
He was unaided and easily condemned by a system that was inattentive to the precise legal
requirements of capital punishment. I was deeply distressed that, had he gotten the right help
at the right time, Herbert would not be on death row with an execution date in less than two
weeks.
I asked several courts to stay Herbert’s execution because of his ineffective lawyer, racial
bias during the trial, the inflammatory comments made by the prosecutor, and the lack of
mitigation evidence presented. Each court said, “Too late.” We got a hastily scheduled
hearing in the trial court in Dothan, where I tried to present evidence that the bomb Herbert
had constructed was designed to go off at a certain time. I found an expert to testify that the
bomb was a timed device and not intended to kill on contact. I knew that the court would
probably conclude that this evidence should have been presented at trial or in prior
proceedings, but I hoped that the judge could be persuaded.
Herbert was in court with me, and we both immediately recognized the lack of interest on
the judge’s face. This heightened Herbert’s anxiety. He began a whispered dialogue with me,
imploring me to get the testifying expert to say things about his intent that were really
outside the expert’s knowledge. He became contentious and started making comments that
were audible to the judge. Meanwhile, the judge kept stressing that the evidence wasn’t
newly discovered and should have been presented at trial, so it couldn’t create a basis for a
stay of execution. I asked for a brief recess to try and calm Herbert down.
“He’s not saying what I need him to say!”
His breathing was panicked. He held his head and told me he had a severe headache. “I
didn’t intend to kill anybody and he has to explain that!” he cried.
I tried to comfort him. “Mr. Richardson, we’ve covered this. The expert isn’t allowed to
speak to your mental state. He’s testified that the bomb was designed to be detonated, but he
can’t really explain your motivations—the Court won’t permit that, and he really can’t speak
to that.”
“They’re not even paying attention to what he’s saying,” he said sadly, rubbing his temples.
“I know, but remember, this is just the first step. We didn’t expect much from this judge,