“The scale and the brutality of our prisons are the moral scandal of American life.” 1
—Adam Gopnik
Bryan and Ray appealed to the Alabama Supreme Court, and the court refused to rule until a determination was made as to whether Payne was a qualified expert. So, back down the ladder. Judge Garrett was gone—completely retired—and had let go of Ray’s case. Ray was hopeful that the new circuit court judge—Laura Petro—might be a bit more receptive to his case.
It took until March 2009 before Judge Petro ruled.
March 11, 2009
Anthony Ray Hinton, Z-468 Holman State Prison Holman, 3700
Atmore, Alabama 36503
Dear Ray:
Well, unfortunately, Judge Petro did not help us. She wrote a very bizarre order which attempts to only address what she thinks Judge Garrett thought of Payne. She concludes that she thinks that Judge Garrett thought Payne was competent. We’ll interpret this as Petro being unwilling to independently find Payne competent. Very disappointing. Call me. I’ll be around all next week if you want to talk and we can discuss next steps. Because this order is so bizarre, it’s a better order than if she did what the court actually ordered which is to make independent findings about Payne’s competence. Anyway, I said I’d write unless there was good news so I wanted to get this in the mail to you right away. I’ll speak with you soon.
Hang in there.
Sincerely, Bryan Stevenson
It was getting harder for Ray to hang in there. Jimmy Dill was scheduled to be executed in a month. Since the day Ray had hoped he would spend his last Thanksgiving on the row, he had watched thirty-seven men be put to death. In 2009, two had already been put to death that year. Ray had watched ten men die since Garrett had denied his Rule 32 petition. The mood on the row was solemn. There were no more bootleg book club discussions. They were all just trying to survive, and the younger guys who came in were angry and agitated in a way Ray had never seen before. They had no interest in discussing literature. And it only became tenser between the guards and the men on the row when an execution date was set. Because execution was now by lethal injection, they didn’t practice turning on the generator anymore, but they still practiced their routines for putting someone to death.
“We’d never kill you, Ray,” one guard used to say. “I’m just doing my job.”
“You volunteer for this, man. You volunteer to be on the Death Squad. I know it. You know it. All the guys know it.”
“I’m just doing my job.”
Ray knew that the guards would kill him if he got an execution date. They knew it too. There would be no way around it. What would happen if they all just refused to kill? If they took a stand? How could they take the inmates to the doctor, feed them, commiserate with them, and then lead them to their deaths? It messed with the prisoners’ minds after a while. The guards were their family also. They were all in this dark, dank, tiny corner of the world acting out some perverse play where they laughed together six days of the week, but on Thursdays, these same guards killed the men on the row.
Ray’s case went back to the Court of Criminal Appeals, and they bounced it back down to Judge Petro again because, as Bryan had said, she didn’t rule on whether Payne was a qualified expert, only on what she thought Garrett had believed in 1986.
In September 2010, Judge Petro ruled that Payne was an expert because he “had acquired a knowledge of firearms identification beyond that of an ordinary witness.” Ray thought that was like the court saying he was qualified as a heart surgeon because he’d once had an EKG. In other words, complete nonsense. So, Bryan and Ray bounced back up to the appeals court, which affirmed the lower court, and sent them back up to the Alabama Supreme Court. Aaaand … they punted his case back down, saying the wrong standard had been applied when the court determined Payne was a qualified expert.
It was enough to make a man dizzy.
Bryan never gave up, and Ray could see how hard this was on him. He carried the world on his shoulders, and there were visits where Ray could see the strain and the stress in his eyes. Ray wasn’t his only case, and neither of them were getting any younger. Ray was tired, and he had stopped praying for the truth to be known. The truth was known. Alabama knew he was innocent, but they would never admit it.
They wouldn’t in 1986.
They wouldn’t in 2002.
They wouldn’t in 2005.
And they weren’t going to in 2013.
Bryan had an arrangement that he would get a message to the prison when he needed to talk to Ray. Because there had been so much press when there were rulings on his case, they ended up on the local news. Court rulings came in around 2:00 p.m. The news ran at 5:00 p.m. Bryan didn’t ever want Ray to find out about his case on the news first.
When Ray got the message to call Bryan, he tried to keep his expectations low.
“They denied us, Ray. I’m sorry.”
Ray held the phone away from his ear. He had been so sure that there would be a miracle. He had been so certain that because two judges had finally taken his side, everything would be fixed.
He was never going to get out of there.
He was going to be slowly and painfully killed by a toxic drug cocktail from the inside out. He was going to be put to sleep like a stray, rabid dog. That was how much his life mattered—maybe even less. The dog would have comfort in his death, perhaps.
Ray would miss this life. He would miss Bryan. He knew Bryan had watched men he cared about die. Ray had too. There are no words for the scars that leaves. There are no words for how every death kills a little piece of your humanity. Your soul dies a little, your mind cracks a bit, your heart pounds and bleeds as a piece of it tears off. A mind, and a heart, and a soul could only take so much.
Ray wiped at his tears and took a deep breath before he held the phone back up to his ear. Bryan was still talking. “Maybe I didn’t do enough. I should have—”
Ray’s heart ached for this man, so he interrupted him. “Mr. Stevenson, this is Ray Hinton’s assistant, and he asked me to tell you to go on home now; it’s Friday. He said you have yourself a nice dinner, drink a glass of wine, watch a movie … do whatever it takes to feel better, and he said that you should just forget about Ray Hinton for the weekend.”
“Ray—” Bryan tried to interrupt.
“This is Ray Hinton’s assistant, and he said to tell you that if they let him go outside this weekend, he is going to shoot some basketball and relax and take some time away from all these legal matters. He said you should do the same, and he’ll call you first thing Monday morning.”
Bryan laughed softly.
“Ray also said you have his permission to enjoy your entire weekend. Enjoy the sunshine. Take a nice walk in the woods. Forget about Ray Hinton, because Ray Hinton is going to forget about Ray Hinton for a while.”
“You tell him thank you for me.” Ray could hear that Bryan’s voice was lighter.
“You can tell him yourself when he calls you Monday morning.” Then Ray hung up the phone and went back to his cell. What lawyer needs a convict’s permission to go out and enjoy his weekend? Bryan cared about him so much that it moved Ray in a way that was beyond words. He knew Bryan was doing everything he could to save his life. Bryan deserved to have a weekend free of the burden. Ray wanted Bryan to hold his face up toward the sunshine. To experience some much-deserved moments away from the horrors of the prisons, away from the disappointment of the courts.
It was dark in Ray’s cell, darker than it should have been for 5:00 p.m. in April. He wondered if he would ever get a chance to turn his face to the sun as a free man. He wondered if there would come a time when the fight was over.
On Monday morning at 9:00 sharp, Ray yelled to the guards that he needed the telephone, and he called Bryan’s office collect.
“Ray, how are you doing this morning?” Bryan asked.
“I’m fine, Bryan. How was your weekend?”
“I had a great weekend, Ray, a really great weekend.” Ray could tell by his voice that it was true.
But the weekend was over.
“Well, it’s 9:00 a.m., and I told you I would call, so now get back to work on my case!”
Bryan laughed. “I’m going to come see you. I have something I’d like to talk to you about in person.”
“You have an idea about what to do next?”
“I do, Ray. I do.”
They said their goodbyes, and Ray was happy to know that Bryan wasn’t giving up yet. If he wasn’t giving up, then Ray wasn’t going to give up either.
Ray gave Lester the news the next time he visited.
As promised, Lester had gotten Ray’s birth certificate, and they talked a little bit about where Ray would go if he ever got out. His mom’s house had been empty for ten years and would need a lot of repairs before it was habitable again.
They had been talking about Ray walking out of prison for twenty-seven years.
Before long, he would be on death row for longer than he had been a free man. Ray and Lester were putting less into their dreams about the future. They were both getting old. Ray looked at Lester, and for a second, his whole time on death row flashed before his eyes—but this time without Lester in it. Lester, his friend, his brother, had never missed a visit since he had been arrested in 1985. It was 2013. The world had changed, but Lester’s friendship had remained the same. Tears formed in Ray’s eyes.
“What’s wrong?” asked Lester.
“Remember those days when we used to walk home and jump in the ditch and hide?” Ray asked.
“Yeah, I remember.”
“What were we afraid of, exactly?”
Lester didn’t say anything. He just stared at Ray, and his eyes were sadder than Ray had ever seen them before.
“I’m getting tired,” Ray said. “The court denied my rehearing. I don’t think I have many more options. They don’t seem to care about the new evidence. They don’t seem in any hurry. They’re going to either give me a date or bounce me around from court to court until I die. For the first time in a long time, I don’t know if I’m going to walk out of here. I just don’t know.”
“You can’t stop fighting.”
“Why? Why can’t I stop fighting?” Ray wasn’t being funny. He was just so tired. “I’ve lived a full life.”
Lester gave a grunt like he didn’t believe him.
“Lester, I’ve won Wimbledon five times. I’ve played third base for the Yankees and led the league in home runs for ten straight years. I’ve traveled the world. I’ve married the most beautiful women. I’ve loved and I’ve laughed and I’ve lost God and found God again and wondered for too many hours what the purpose is for me going to death row for something I didn’t do. And sometimes I think there is no purpose—that this is just the life I was meant to live. I’ve made a home here and a family out of some of the most terrifying men you’d ever meet. And you know what I’ve learned? We’re all the same. We’re all guilty of something, and we’re all innocent at the same time. And I’m sorry, but a man can go crazy trying to make it all fit into some plan. Maybe this is the plan. Maybe I was born to live most of my life in a five-by-seven so I could travel the world. I would have never won Wimbledon if I hadn’t gone to death row. Do you see what I’m saying, Lester? Do you understand what I’m saying?”
Lester cleared his throat. “I remember walking home with you and jumping in that ditch and you saying to me that it’s strange what a person could get used to. Do you remember that?”
Ray shook his head. He didn’t remember that.
“Well, you said it. And you know why we were so afraid? Do you know why, Ray?”
“No. Why?”
“We were afraid because we couldn’t see what was coming at us. So we hid in those ditches. We hid rather than face whatever might be in front of us.”
Ray nodded.
“We’re not kids anymore, Ray, and we’re not afraid. We’re not going to hide in a ditch together. We’re going to face whatever happens. We’re going to face it, and we’re going to fight if we have to fight, and we’re not going to ever get used to this. You were not born to die on death row. I know that for a fact.”
Lester had never been a talker, but he had something to say this time.
“Okay,” Ray said.
Ray didn’t ever want to get used to this.
He didn’t want this to ever be normal.
There was beauty if he looked for it.
He had his best friend at his side.
“We’re still walking home, Ray. We’re still just walking home together.”
When Ray walked into the visiting area and saw Bryan waiting, Bryan’s expression was serious. More than serious, he looked determined in a way Ray hadn’t seen before. They’d had so many denials, so many phone calls where Bryan had to tell Ray they’d ruled against him again, that sometimes they didn’t even want to talk about his case. Sometimes they just laughed. At nothing in particular, and everything. Some days they were like two teenagers who can’t stop laughing even when their teacher yells at them. Some days it all seemed so bizarre that Ray was still in that prison that they just had to laugh their heads off. It felt good to laugh like that. Ray felt like it kept them young, and it kept them sane.
Bryan smiled when Ray walked up. “How you doing, my friend?”
“I’m doing all right.”
“Listen, I have an idea. I want you to really think about everything I’m about to say before you decide. We’ve got some strategic decisions to make.”
Bryan explained that they could appeal through the lower state and federal courts, arguing things like suppression of evidence and ineffective counsel but they couldn’t argue his innocence. “There’s only one last opportunity for us to talk about your innocence, and that is if we go to the U.S. Supreme Court now. We can’t claim innocence in the federal habeas, only how your federal rights were violated. The Supreme Court is not going to grant relief on the innocence claim alone, but I think we can present to them a narrative that might motivate them to do something. Your innocence will matter, Ray. It’s the last time it will matter to a court.”
Ray nodded again. He wanted his innocence to matter. He wanted it to matter forever.
“Listen, though. If they deny the cert, then nobody’s going to ever listen to your innocence claim again. If we don’t go to the Supreme Court now, we’ll have another chance at the end of this federal habeas process, which could take years. You should know that. Be prepared for that. But when the Supreme Court reviews, then, it will be only a review on the very restricted issues we bring in federal habeas. What I mean is, they’re not going to look at your innocence. They’re going to be very narrow in what they consider, and the chance for relief will be greatly reduced.”
“And in federal habeas, I can get bounced through different courts again? Bounced back and forth, but just federal courts this time?”
“Pretty much,” answered Bryan. “You know how the State’s been with your appeal. That’s not going to change. If anything, they’re going to ramp up the opposition in federal habeas. I mean, we can go to the Supreme Court after for review, but we could be in litigation for years, and they rarely, I mean, it’s going to be hard either way … and there’s something else, Ray. If we take your case to the Supreme Court and we lose, things could speed up. It could make it harder for us to win in federal habeas and harder for us to stop them from killing you.”
So basically, they could take their chances, and if the Supreme Court took the case and they won—Ray could be on the fast track to freedom. But if they did, and he lost … his execution date could come up sooner rather than later. If they didn’t try for the Supreme Court now, they could spend years and years dealing with shenanigans and inertia in the lower federal courts.
Ray interrupted Bryan. “Do you have money for the vending machine? I’d like a drink.”
“Sure, Ray. Sure.” Bryan gave him some quarters, and Ray walked over and got a Coke out of the machine.
Ray sat back down and opened the soda. “A man needs a drink when he’s making a big decision.”
“Ray—”
Ray held up his hand to silence Bryan and drank a long swig of the soda. For the first time in his life, he wished he had some hard liquor. Ray had never been a drinker, but now he imagined that soda was full of scotch.
“Bryan, I’m innocent. I want the courts to admit I’m innocent. I want the world to know I’m innocent. I don’t want life without parole. I want to walk out of here. I want to live the rest of my life a free man. I would rather die. If I can’t prove my innocence, I would rather die.”
“So what do you want to do, Ray? It could take another eight or nine months to file, and there’s no guarantee and—”
“I want to go to the Supreme Court now, Bryan. I want them to know I’m innocent. I want them to hear my case now, when we can present everything. I don’t want to spend another ten years in the courts. I don’t think I can do it. I don’t think I can be here until I’m seventy years old and still be fighting.”
They were quiet for a while after that. Ray looked around the visiting area. He had spent so much time there over the last few decades. He had eaten a lot of key lime pie out of the vending machine. And he had come to respect and love this man who sat in front of him. He knew Bryan was tired too, and Ray was just one of many battles he was fighting. They both deserved a win.
It was time.
And if it wasn’t, then Ray would take his Thursday. He would eat his last meal, and he would thank Lester for being the best friend a guy could ever have, and he would tell Bryan Stevenson that he couldn’t save everyone. He’d tell Bryan that he knew he had done everything he could. He would have joy knowing that he lived as big a life as anyone ever could live in a five-by-seven cell.
And God have mercy on their souls, but Ray knew what his last words would be.
I am innocent.