In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

The long defense of the Alabama death-row prisoner Doyle Lee Hamm

Doyle Lee Hamm
On death row at the Donaldson Correctional Facility, in Bessemer, Alabama, Doyle Lee Hamm is known as Pops. He is fifty-nine years old and has been at Donaldson since 1987, when a jury found him guilty of fatally shooting a motel clerk during a robbery. The fact that Hamm has managed to elude execution for nearly three decades can be explained, in large part, by the tenacity of a single person: his attorney, Bernard E. Harcourt. The two met in 1990, soon after Harcourt began working for the lawyer Bryan Stevenson, who at the time had just started an organization in Alabama to defend condemned prisoners. Hamm was one of Harcourt’s first clients.

The two men came from opposite worlds. Harcourt was raised on Park Avenue, went to Princeton, and had recently graduated from Harvard Law School; his father was a partner in a law firm. Hamm grew up in northwest Alabama, the tenth of twelve children; his father worked as a carpenter and cotton picker, made his own moonshine, drank every day, beat his children with a switch, and was a frequent resident of the county jail (on charges of public drunkenness). Hamm’s sister later described their childhood home as “constant hell all the time.” She also recalled their father telling the children, “If you don’t go out and steal, then you’re not a Hamm.”

Growing up, Hamm flunked first grade, drank beer and whiskey mixed together, graduated to sniffing glue several times a day, quit school in the ninth grade, ingested Valium and Percocet and quaaludes, watched his six older brothers all go to jail, and eventually acquired his own extensive rap sheet, including arrests for burglary, assault, and grand larceny. He married and had one daughter. (The marriage lasted six months; his wife cited “habitual drunkenness” as one of the grounds for divorce.) In January of 1987, Hamm went on a crime spree that included a shooting in Mississippi and ended when he and two accomplices were arrested following the murder of a motel clerk in Alabama. About three hundred and fifty dollars were missing from the register and the clerk was found on the floor, shot once in the temple. Hamm confessed to the murder, and, at thirty years old, was condemned to death by way of Alabama’s electric chair, which was painted yellow and known by the nickname Yellow Mama.

Ever since meeting Hamm, Harcourt has been trying to save him from this fate. In the early nineteen-nineties, he hired an investigator named Gaye Nease to research Hamm’s past and search for “mitigating evidence” that might persuade a judge to spare his life. With Nease’s help, Harcourt collected hundreds of pages of documents, including Hamm’s parents’ original marriage certificate, from 1938; his father’s honorable-discharge papers from the Army, from 1946; and medical records from Doyle’s birth, in 1957. Harcourt also obtained elementary-school report cards, test scores showing Hamm reading at a first-grade level in fifth grade, his mother’s food-stamp paperwork, his brothers’ rap sheets, divorce papers filed by his brothers’ wives, Hamm’s own divorce papers, and photos of his parents and siblings and ancestors.

Through the decades, wherever Harcourt went—to Harvard to get a doctorate in political science, to the University of Arizona to teach, to the University of Chicago for a tenured job—Hamm’s case went with him. This did not mean simply dropping one more box into the back of a U-Haul; Harcourt had accumulated some twenty thousand pages, between legal documents and mitigating evidence—enough to fill eleven bankers boxes. Over the years, he kept in touch with Hamm by phone and travelled back to Alabama to work on the case.

Harcourt’s hope was not to prove Hamm’s innocence but to persuade a judge to throw out his death sentence and instead give him life in prison without parole. He fought on Hamm’s behalf in state court until 1998, when Harcourt asked for a hearing to be postponed and a judge assigned Hamm another attorney. The new lawyer lost the hearing. Harcourt still considered himself Hamm’s attorney, however, and immediately filed an appeal on his behalf. This request was denied in 2002. Harcourt appealed the decision to the Alabama Supreme Court but lost again. He continued his battle in federal district court, filing a habeas petition in 2006 to try to get Hamm a new trial. That court denied Hamm’s request in 2013.

None of these outcomes surprised Harcourt, but he kept at it, appealing the case to the U.S. Court of Appeals for the Eleventh Circuit, where he was turned down once again. About six months ago, Harcourt exercised his last option: filing a petition to the U.S. Supreme Court. On September 26th, the Court is set to consider whether to hear Hamm’s case. The stakes could not be higher: if the Supreme Court declines to accept Hamm’s case, Harcourt believes that the state of Alabama will finally set Hamm’s execution date.

In 1977, at age twenty, Doyle, drunk and high, got into a fight in a bar parking lot. Afterward, the police arrested him for allegedly robbing the other man. Though he insisted that he had not robbed anyone, his court-appointed attorney coached him on how to enter a guilty plea, and he was given a prison sentence of five years.

Fourteen years later, when Harcourt reinvestigated this conviction, the “victim” admitted that there had been no robbery, and Hamm’s attorney at the time, a man named William Travis Gobble, admitted that he had never investigated the allegations. “I was just too busy and overworked to give this case the time and attention it needed,” he said in an affidavit. “My practice at the time was not to educate my appointed clients about the judicial system. I assumed that they knew what a criminal trial was and what happened at trial. My concern was to make sure that my client gave the right answers at the plea hearing to get the deal agreed upon.” Years later, at the penalty-phase hearing following Hamm’s trial for capital murder, prosecutors brought up this earlier conviction to try to persuade jurors that they should send Hamm to the electric chair.

Another disturbing aspect of Hamm’s death-penalty case recently received some media attention. In 1999, when a state judge ruled against Hamm, he issued an eighty-nine-page opinion on the case. The trouble was that the opinion appeared to have been written by the office of the Alabama Attorney General.

Click here to read the full article

Source: The New Yorker, Jennifer Gonnerman, September 13, 2016

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