40

The judicial building that housed the Georgia Supreme Court on Capitol Square in downtown Atlanta was built to impress. The Superior Courts of Georgia—the trial courts—were messy and chaotic, their dockets jammed with criminal defendants cutting deals and spouses arguing over the kids—real-life courtroom dramas where arguments erupted and raw emotions played out. But the Supreme Court was above all that—magisterial, precise, and focused on the law. This was the last stage of the state’s legal process, a place of finality, a place where hopes were dashed forever, a place where sudden reversals could wipe out everything that had occurred before.

Three-story pillars flanked the entranceway to the sturdy granite building. The lawn was manicured to perfection, a pristine mix of mature trees, trimmed shrubs, and freshly planted spring flowers. The grass itself was a deep green.

The May morning scheduled for oral argument could have been featured in a Georgia tourism brochure—sunny with temperatures in the high seventies, a slight wind out of the northeast. Weather like this normally made me upbeat and energetic. It would have been a great day to go for a run or to paddle my kayak on the Chattahoochee. But it was never a good day to hear Professor Mace James proclaim the innocence of my mother’s killer.

I found out in advance that the state’s side of the case would be argued by Andrew Thornton. Bill Masterson, who normally attended these appellate proceedings with me, could not be there. He claimed his services were needed in the Milton County Superior Court. I thought it had something to do with a reluctance to sit in the audience and be forced to watch—and cheer for—your political adversary as he handled a high-profile case. Either way, Masterson had told me to brace myself. He didn’t like the amount of attention the Georgia Supreme Court was paying to Professor James’s latest filing. Plus, he said, Thornton was more of a desk jockey than an appellate court lawyer.

When I arrived, the building was surrounded by scaffolding being used by construction workers to pressure-wash the courthouse and remove the old grout. Mist from their work floated in my direction, and I took it as a bad omen—finding a way to get rained on when there wasn’t a cloud in the sky.

The building had seen its share of controversy, including some landmark death-penalty cases that had ended up at the US Supreme Court. In Furman v. Georgia, this court had upheld the death penalty arising from a murder conviction. But the US Supreme Court reversed, ruling that laws that gave juries wide discretion in the application of the death penalty constituted “cruel and unusual punishment.” That 1972 ruling put a de facto moratorium on the death penalty in the United States that lasted for the next four years.

A second Georgia case lifted that moratorium. In Gregg v. Georgia, the courts considered a new statutory scheme that became known as “guided discretion,” whereby trials would be divided into two phases. The first phase would determine the guilt or innocence of the defendant. The second phase, if necessary, would determine whether there were sufficient aggravating circumstances to impose the death penalty. The Supreme Court approved of that scheme, and the executions resumed.

In a third case, McCleskey v. Kemp, decided in 1987, the courts considered whether the death penalty should be ruled unconstitutional because of the allegedly discriminatory manner in which it was applied in Georgia. McCleskey’s lawyers had examined over two thousand murder cases and statistically demonstrated that defendants charged with killing white victims in Georgia received the death penalty in 11 percent of the cases, but defendants charged with killing black victims received the death penalty in only one percent of the cases. The disparity was most pronounced in cases with black defendants and white victims, when the death penalty was given 22 percent of the time. If the roles were switched—white defendants and black victims—the rate dropped from 22 percent to one percent.

Both the Georgia Supreme Court and the US Supreme Court had considered the statistics and decided they weren’t enough to nullify the death penalty. The executions continued.

As I passed through the metal detector at the judicial building, I thought about these cases and others like them that I had studied in law school. I had always defended the death penalty because I understood a victim’s need to see ultimate justice. I wondered now if the Georgia Supreme Court, already famous for its death-penalty jurisprudence, would plow new ground on our case. Would future generations of law students read about Marshall v. Georgia and debate the merits of the death penalty while ignoring the personal toll a case like this takes on the victims?

I hoped not. I desperately wanted this whole saga to be over, for the court to declare that the Cooper affidavit was not a game changer, that Antoine Marshall’s erratic march to the death chamber could continue. I wanted this case to be a footnote in the textbooks, not a section heading.

I arrived a full fifteen minutes early to the stately courtroom where the court heard arguments. There were seven high-backed leather chairs behind the oak dais at the front of the courtroom. The oak-paneled walls were lined with portraits of former chiefs. The carpet was a plush dark green, and the large wall behind the bench, in contrast to the oak walls on the sides of the courtroom, was covered in granite. That wall had a single Latin inscription highlighted in bold-relief letters: Fiat justitia, ruat caelum. I had looked it up after the first time our case had been argued here, more than eight years ago. It meant “May justice prevail though the heavens fall.” I prayed that would be the case today.

Mace James and a few other lawyers were seated in front of the bar on the left. Mace always looked out of place in a suit with his hulking frame, bald head, and tattooed neck. As a teenager, I had been enraged by Caleb Tate’s showmanship when he defended Antoine Marshall at trial. As an adult, listening to the arguments of Professor James made me equally livid.

Caleb Tate came across as a slick actor—I knew he didn’t really believe in Antoine Marshall’s innocence, but he had a job to do and knew how to put on a show. But for Mace James, it was more than a job; he was a true believer in Marshall’s innocence. Though I admired his crusading spirit, his blind allegiance to his client and his refusal to acknowledge the truth of what his client had done infuriated me.

At the hearing, I was surprised to see Caleb Tate seated just behind counsel table for the appellant. Tate had not played a role in the appeals for Antoine Marshall to date but apparently couldn’t resist a hearing if the press would be there.

I took my seat on the first bench on the right, hoping the Supreme Court justices would notice a member of the victim’s family at the proceedings. Three appellate lawyers from the AG’s office were in a huddle at counsel table. One of the younger ones noticed me and said hello. I stood, and all three reached over the rail to shake my hand and thank me for coming. Even Andrew Thornton, the oldest member of the team.

The handshake with Thornton was awkward, and he appeared even stiffer than normal. And this was the man who would be seeking justice for me and my family.