Journey into Darkness (41 page)

Now Alley’s lawyers were arguing not only ineffective counsel, but also that the trial judge should have recused himself from the hearing because, among other things, he had made a supposedly prejudicial statement at a speech he gave to a civic group. What he said, in what might have been considered an unfortunately lighthanded manner, was that some of the prison overcrowding could be solved if they would “just execute some of these people that are already in line for it.”

The appeals panel was headed up by Judge Penny White, a well-spoken woman in her late thirties, with impressive
credentials. But right from the start, Jack felt they were in deep trouble with Judge White.

“It became evident to us right away from body language, attitude, manner of speaking, everything, that she was very pro-defense. There was a marked difference in her attitude toward them and the prosecution team. There were smiles for the defense and some side comments, almost smirks, to one of the other judges while the prosecution was making its case. She gave relatively short shrift to the prosecution while encouraging the defense to tell her more.”

It took the Court of Criminal Appeals from October 1992 to April 1994 to hand down a decision that, in effect, said that the judge should have recused himself so we aren’t going to decide all the issues raised—we’re going to order a new lower court hearing with a new judge. That hearing took up the time from April 1994 until August 1995. Part of the claim of ineffective counsel was that not enough medical experts were brought in on the issue of Alley’s mental state, despite the fact that, on direct appeal, the State Supreme Court had seen no problem here and, in fact, the trial date itself had been delayed three or four times to provide for various medical evaluations.

“Essentially,” Hank Williams commented, “they were asking for even more doctors to see what in the world Robert Jones could have possibly missed. In other words, Jones was ineffective for assuming that a bunch of medical experts knew what they were talking about.”

In all the years since the trial, by the way, neither Hank Williams nor I have heard one scintilla more evidence of either Billie or Death taking over Sedley Alley’s personality again. We haven’t heard any evidence of Alley expressing any degree of sorrow or remorse. The defense continued grasping at straws.

In the meantime, Jack could feel himself burning out. He didn’t want to give up the fight on the national level, but he knew if he didn’t step back and let someone else lead the charge for a while, he was going to lose his effectiveness, and possibly a lot more. He was tired, depressed, his breath was short, and his cholesterol level and blood pressure were high.

Trudy said to him, “You’re going under and I’m not far
behind. We have got to get out of the D.C. area. If we don’t, this is the way we’re going to end our lives.”

They looked around, talked to friends, and finally decided on the old and venerable community of Wilmington, North Carolina. They moved there in the summer of 1994. Located along the Cape Fear River less than ten miles from beautiful Atlantic Ocean beaches, it was a long way, geographically and physically, from their New York origins, but it fit the bill.

Once ensconced in their one-level house, surrounded by the mementos of a lifetime of world traveling and many photos of Stephen and Suzanne, they tried to calm down and get their lives in order.

On August 31, 1995, Judge L. T. Lafferty, the new judge brought in because of Penny White’s 1994 decision, ruled that there was no basis for the claim of ineffective counsel. In addition, during his own hearing of Alley’s petition, he permitted the introduction of a great deal of additional medical testimony from expert witnesses. Suzanne Collins had been dead more than ten years.

A month or so later, a case that already had been in the pipeline was decided by the Tennessee Supreme Court, saying that in certain circumstances, state-funded expert testimony should be allowed during collateral appeals. As of this writing, Alley’s defense team appealed Judge Lafferty’s decision and has sent in a new written brief to the Court of Criminal Appeals. The Tennessee Attorney General’s office has likewise prepared its own response brief and both sides are now awaiting the date for oral arguments. Yet once this issue is dealt with—however long it takes—based on their experience, Jack and Trudy are fearful that yet another issue will be brought up, and another, and another.

The issue of supposedly ineffective counsel comes up a lot. At the same time that our age seems to be characterized by a lack of personal responsibility for anything, we are also quick to palm responsibility off or lay blame on others. Just as with the large number of medical suits clogging the courts, if you don’t get the result you want in a criminal trial, why not fault someone else?

Hank Williams has what I think is a good solution to this particular problem. Before a trial begins, there should be a
list of about fifty questions, almost like a preflight cockpit checklist. The defense attorney should answer each question, or check off each step, then the judge, as part of his own evaluation, should get the defendant on the stand and ask him if he’s satisfied. Then the judge certifies that the defense preparation has been adequate. At the end of the trial, perhaps even before the verdict, he should make another determination as to the adequacy of counsel. All of this would go into the trial record. It may not eliminate all the problems with bogus habeas claims of inadequate representation, but it would go a long way. And in cases where there really was incompetent counsel, the court would be made aware of it at the appropriate time—the beginning of the trial.

Williams thinks it’s downright insulting to attack competent and dedicated attorneys after the fact just for the sake of legal maneuvering. “The problem,” he says, “is that the anti—death-penalty people feel anything they do is justified because their cause is justified. That’s a dangerous attitude in a free society.”

There have been significant victories, though. A major piece of legislation providing for habeas corpus reform at the federal level was finally passed by Congress and signed into law by President Clinton on April 24, 1996. Public Law 104-132, the Anti-Terrorism and Effective Death Penalty Act, was designed to put an end to the endless recycling of habeas corpus petitions. Before a successive petition in a given case can be heard by a Federal District Court, its substantive merits must be certified by a three-judge panel of the Federal Circuit Court of Appeals. Given the other provisions of the new statute, that circumstance should prove very rare. And the imposition of time limits on both the filing of a petition and its adjudication by federal courts should go a long way toward eliminating undue delay.

Credit for the passage of the bill must be shared by many people and groups. In my opinion and in the opinion of people like Hank Williams, though, the habeas corpus reform is due in large measure to Jack and Trudy Collins and others like them who, believing in the power of the individual citizen and inspired by devotion to their slain loved ones, decided to march into the nation’s corridors of power and demand justice.

Says Jack, “Suzanne’s fingerprints are all over that law.”

Of course, on a state level, every state must pass its own reforms and Sedley Alley’s collateral appeals have not even reached the federal level yet, since so much time has been spent on the process thus far in Tennessee. This type of ordeal is being repeated for other victims and their families throughout the country.

For the last several years of this delay, Jack and Trudy have blamed Judge Penny White, who, since her order that Alley’s collateral appeal be reheard, had been appointed to the Tennessee Supreme Court in 1994 by then-Governor Ned McWherter. As in many states, once appointed to this court, judges do not run for reelection, but are voted on in a public approval referendum. They don’t run against an opponent in this referendum; it’s simply a yes-no vote. And the vote, generally by very low turnout, is almost always yes. Penny White’s appointment was to be judged by the voters on August 1, 1996.

Jack and Trudy and their fellow crime victims felt that Judge White was simply out-and-out against the death penalty, despite the fact that it was the law of the land in Tennessee. They had written a letter to Governor McWherter in 1994 urging him not to appoint her to the Supreme Court vacancy. They also felt so strongly that so many of her other decisions were egregious, that she was demonstrably antivictim, that they made the 1,400 mile round trip to Tennessee to actively support a drive to have her recalled from the bench. In this effort, they worked closely with Rebecca Easley from Burns, Tennessee, a widely respected victims’ advocate whose sister had been brutally murdered by her husband in a contract killing in 1977. Her sister’s case is still being appealed almost twenty years after that terrible event.

Giving interviews about the “judicial Ping-Pong” they were subjected to, talking to reporters, appearing at press conferences and on television, the Collinses and other victims’ advocates took part in a massive statewide drive to highlight what they felt were the problems with Penny White as a State Supreme Court jurist. They helped publicize an extensive position paper detailing the facts of many of her major case decisions. They were opposed by the “People to
Retain Penny White” campaign, which raised more than ten times as much money as the anti-White group.

Judge White’s critics cited a number of appellate decisions in which she took part that they said proved her bias against capital punishment and against victims. One involved the 1991 murder of Tennessee State Trooper Doug Tripp.

On May 19,1991, John Henry Wallen had pulled up next to Tripp as he sat in his patrol car and unloaded twelve or thirteen shots into his head, neck, and shoulder in two separate barrages with a .22 caliber rifle. Tripp’s revolver never left its holster. The killer admitted he had “made up his mind” that he would shoot the trooper. There was testimony at the trial that Wallen admitted hating police officers in general and told his girlfriend that one day he would kill Tripp or Tripp would kill him. A jury found Wallen guilty of first-degree murder.

When the case came up before the Court of Criminal Appeals in November of 1995, Judge White declared that there was insufficient evidence of premeditation on Wallen’s part and therefore the charge should have been reduced to second-degree murder. The other two judges on the panel disagreed.

“It is impossible to tell from the context whether this decision was reached months earlier or seconds before the killing,” she wrote.

This opinion outraged a lot of people, especially law enforcement officers who daily lay their lives on the line, particularly Doug Tripp’s brother, David, a detective with the Union County Sheriff’s Department. “If that can’t be tried for first-degree murder,” he said, “then I can’t imagine what could be.”

And that wasn’t all.

The same month that John Henry Wallen killed Trooper Doug Tripp, Richard Odom, a convicted murderer who had escaped from a Mississippi prison, raped and murdered seventy-eight-year-old Mina Ethel Johnson in a Memphis parking garage as she walked to her podiatrist’s office. As he was raping her, Johnson pleaded that she was a virgin and tried to diffuse his rage, saying, “Don’t do this, son.”

“I’ll give you a son!” Odom testified he replied. The rape was so brutal it tore her vaginal wall, then he stabbed her
repeatedly in her heart, lung, and liver until she died. There were also defense wounds on her hands. Odom testified that she remained conscious until she died. The jury convicted Odom and sentenced him to death.

By the time this case reached the Tennessee Supreme Court, Penny White was a member of that panel. She and one other judge ruled that there was no evidence that the Johnson rape-murder was “especially heinous, atrocious and cruel in that it involved torture or serious physical abuse beyond that necessary to produce death,” one of the state’s “aggravating circumstances,” necessary for imposition of the death penalty. Odom was therefore entitled to a new sentencing hearing.

The Supreme Court opinion, while allowing that, “while almost all murders are ‘heinous, atrocious and cruel’ to some degree, and we have no purpose to demean or minimize the ordeal this murder victim experienced,” stated that this standard “must be reserved for application only to those cases which, by comparison or contrast, can be articulately determined to be the very ‘worst of the worst.’” “Otherwise,” they piously pointed out, “every murder committed in the perpetration of rape could be classified as a deatheligible offense.”

Okay, folks. We can argue the merits of the death penalty all we want. But I’m here to tell you that I’ve been involved with thousands of rape and murder cases during my quarter century in law enforcement, and to paraphrase Detective David Tripp, if raping a seventy-eight-year-old virgin—making this violation the last experience of her life—ripping her vaginal wall and stabbing her over and over again isn’t “especially heinous, atrocious and cruel,” or that it isn’t “serious physical abuse,” then I can’t imagine what could be; and believe me, I’ve seen some pretty bad stuff.

Ron McWilliams, the lead detective on the case, wept openly when describing its brutality at a news conference.

White’s critics saw this ruling as manifest evidence that she simply wasn’t sensitive to victims of violent crimes and really didn’t get what they actually went through. The Collinses and their allies, including Rebecca Easley, David Tripp, and Mina Johnson’s sister, Louise Long, concluded that Judge White was simply against the death penalty and
was using her position and power to circumvent the will of the jury.

White’s supporters said she was just trying to insure fair trials for defendants and that it was unfair to judge her on only a few decisions, though her critics saw an overall pattern in her judgments. Whatever the overall record, though, I personally happen to believe that saying you shouldn’t evaluate a judge on one particular decision is like saying you shouldn’t evaluate a person on the commission of one particular crime. In both instances, they tell you a lot about where this individual is coming from.