needed a lawyer. She sighed with relief when I gave her my card. As we all left the
courthouse, we offered each other solemn goodbyes.
“We’ll pray for you,” the aunt said as they departed.
On the way to my car, I considered asking them to say something to the prosecutor and
state lawyers about not wanting Mr. Richardson to be executed, although it was clear that the
State wasn’t acting on behalf of these victims. The courtroom had been filled with state
lawyers and other officials watching the hearing, but they had long since fled the courthouse
without so much as a word to any of the battered souls standing in the back of the room. I
was haunted by the tragic irony that they felt I was their best hope for help.
The trial judge had denied our request for a stay of execution by the time I got back to
Montgomery. He ruled our evidence was “untimely,” meaning that he could not consider it.
With less than a week before the execution, the next few days involved one frantic filing after
the next. Finally, on the day before the execution, I filed a petition for review and a motion
for a stay of execution in the U.S. Supreme Court. Even in death penalty cases, the Court
grants review only in a small percentage of the cases filed. A petition for certiorari, a request
to review a lower court’s ruling, is very rarely granted, but I’d known all along that the
Supreme Court was our best chance for a stay of execution. Even when lower courts granted a
stay, the State would appeal, so the Supreme Court would almost always make the final
decision to permit an execution to proceed or not.
The execution was scheduled for 12 : 01 A.M. on August 18. I had finally finished the petition
and faxed it to the Court late on the night of August 16 and had spent the next morning in my
Montgomery office, waiting anxiously for the Court’s decision. I tried to busy myself by
reading files in other cases, including Walter McMillian’s. I didn’t expect we’d hear from the
Court until the afternoon, but that didn’t keep me from staring at the phone all morning.
Whenever the phone rang, my pulse quickened. Eva and Doris, our receptionist, knew that I
was anxiously awaiting the call. We had submitted an extensive clemency petition to the
governor with affidavits from family members and color photographs, but I didn’t expect
anything in response. The petition detailed Herbert’s military service and explained why
military veterans suffering from post-traumatic stress disorder are worthy of compassion.
I wasn’t very hopeful. Michael Lindsey had received a life verdict from the jury and was
executed instead; Horace Dunkins was intellectually disabled, and the governor had not
spared him, either. Herbert would likely be seen as even less sympathetic.
I spoke with Herbert regularly during the day by phone to let him know there was no news.
I couldn’t rely on the prison to get a message to him if the Court ruled, so I asked him to call
me every two hours. Whatever the news, I wanted him to hear it from someone who cared
about him.
Herbert had met a woman from Mobile with whom he had corresponded over the years.
They had decided to get married a week before the execution. Herbert had no money, nothing
to offer her if he was executed. But he was a military veteran, so his survivors were entitled
to receive an American flag upon his death. He designated his new wife as the person to
whom the flag should be presented. In the days leading up to the execution, it seemed that
Herbert was more concerned about his flag than his impending execution. He kept asking me
to check with the government about how his flag would be delivered and urging me to get a
commitment in writing.