فصل دهم

Chapter Ten

Mitigation

America’s prisons have become warehouses for the mentally ill.

Mass incarceration has been largely fueled by misguided drug policy and excessive sentencing, but the internment of hundreds of thousands of poor and mentally ill people has been a driving force in achieving our record levels of imprisonment. It’s created unprecedented problems.

I first met Avery Jenkins over the telephone. He called me, but he was pretty incoherent. He couldn’t explain what he had been convicted of or even clearly describe what he wanted me to do. He complained about the conditions of his confinement until a random thought caused him to abruptly switch topics. He sent letters, too, but they were just as hard to follow as his phone calls, so I decided to speak with him in person to see if I could make better sense of how to help.

For over a century, institutional care for Americans suffering from serious mental illness shifted between prisons and hospitals set up to manage people with mental illness. In the late nineteenth century, alarmed by the inhumane treatment of incarcerated people suffering from mental illness, Dorothea Dix and Reverend Louis Dwight led a successful campaign to get the mentally ill out of prison. The numbers of incarcerated people with serious mental illness declined dramatically, while public and private mental health facilities emerged to provide care to the mentally distressed. State mental hospitals were soon everywhere.

By the middle of the twentieth century, abuses within mental institutions generated a lot of attention, and involuntary confinement of people became a significant problem. Families, teachers, and courts were sending thousands to institutions for eccentricities that were less attributable to acute mental illness than resistance to social, cultural, or sexual norms. People who were gay, resisted gender norms, or engaged in interracial dating often found themselves involuntarily committed. The introduction of antipsychotic medications like Thorazine held great promise for many people suffering from some severe mental health disorders, but the drug was overused in many mental institutions, resulting in terrible side effects and abuses. Aggressive and violent treatment protocols at some facilities generated horror stories that fueled a new campaign, this time to get people out of institutional mental health settings.

In the 1960s and 1970s, laws were enacted to make involuntary commitment much more difficult. Deinstitutionalization became the objective in many states. Mental health advocates and lawyers succeeded in winning a series of Supreme Court cases that forced states to transfer institutional residents to community programs. Legal rulings empowered people with developmental disabilities to refuse treatment and created rights for the mentally disabled that made forced institutionalization much less common. By the 1990s, several states had a deinstitutionalization rate of over 95 percent, meaning that for every hundred patients who had been residents in state hospitals before deinstitutionalization programs, fewer than five were residents when the study was conducted in the 1990s. In 1955, there was one psychiatric bed for every three hundred Americans; fifty years later, it was one bed for every three thousand.

While these reforms were desperately needed, deinstitutionalization intersected with the spread of mass imprisonment policies—expanding criminal statutes and harsh sentencing—to disastrous effect. The “free world” became perilous for deinstitutionalized poor people suffering from mental disabilities. The inability of many disabled, low-income people to receive treatment or necessary medication dramatically increased their likelihood of a police encounter that would result in jail or prison time. Jail and prison became the state’s strategy for dealing with a health crisis created by drug use and dependency. A flood of mentally ill people headed to prison for minor offenses and drug crimes or simply for behaviors their communities were unwilling to tolerate.

Today, over 50 percent of prison and jail inmates in the United States have a diagnosed mental illness, a rate nearly five times greater than that of the general adult population. Nearly one in five prison and jail inmates has a serious mental illness. In fact, there are more than three times the number of seriously mentally ill individuals in jail or prison than in hospitals; in some states that number is ten times. And prison is a terrible place for someone with mental illness or a neurological disorder that prison guards are not trained to understand.

For instance, when I still worked in Atlanta, our office sued Louisiana’s notorious Angola Prison for refusing to modify a policy that required prisoners in segregation cells to place their hands through bars for handcuffing before officers entered to move them. Disabled prisoners with epilepsy and seizure disorders would sometimes need assistance while convulsing in their cells, and because they couldn’t put their hands through the bars, guards would mace them or use fire extinguishers to subdue them. This intervention aggravated the health problems of the prisoners and sometimes resulted in death.

Most overcrowded prisons don’t have the capacity to provide care and treatment to the mentally ill. The lack of treatment makes compliance with the myriad rules that define prison life impossible for many disabled people. Other prisoners exploit or react violently to the behavioral symptoms of the mentally ill. Frustrated prison staff frequently subject them to abusive punishment, solitary confinement, or the most extreme forms of available detention. Many judges, prosecutors, and defense lawyers do a poor job of recognizing the special needs of the mentally disabled, which leads to wrongful convictions, lengthier prison terms, and high rates of recidivism.

I once represented a mentally ill man on Alabama’s death row named George Daniel. George had suffered brain damage in a car accident that knocked him unconscious late one night in Houston, Texas. When he woke up, he was in an upside-down car on the side of the road. He went home that night and never sought medical assistance. His girlfriend later told his family that at first he just seemed a little off. Then he started hallucinating and exhibiting increasingly bizarre and erratic behavior. He stopped sleeping regularly, complained about hearing voices, and on two occasions ran out of the house naked because he thought he was being chased by wasps. Within a week of the accident he had stopped speaking in sentences. Just before his mother, who lived in Montgomery, was summoned to help persuade him to go to a hospital, George boarded a Greyhound bus in the middle of the night. He traveled as far as the money he had in his pocket would take him.

Disoriented and uncommunicative, he was forced off the bus in Hurtsboro, Alabama, after unnerving some passengers by talking loudly to himself and gesturing wildly at objects he imagined were flying around him. The bus had gone through Montgomery, where he had family, but he stayed on until he was thrown off, with no money and wearing jeans, a T-shirt, and no shoes in the middle of January. He wandered around Hurtsboro and eventually stopped at a house. He knocked on the door, and when the homeowner opened it, George walked inside without being invited and roamed around until he found the kitchen table, where he sat down. The alarmed homeowner called her son, who came and physically removed George from the house. George went to another home owned by an older woman and did the same thing. She called the police. The officer who responded had a reputation for being aggressive, and he forcefully removed George from the home. George started resisting while being pulled to the police car, and the two men began wrestling and fell to the ground. The officer pulled his weapon and the two were grappling over the gun when it discharged, shooting the officer in the stomach. He died from the gunshot wound.

George was arrested and charged with capital murder. While in the Russell County jail, he became acutely psychotic. Officers reported that he wouldn’t leave his cell. He was observed eating his own feces. His mother visited him, but he didn’t recognize her. He couldn’t speak in complete sentences. The two lawyers who were appointed to represent him at his capital trial were primarily concerned that only one of them would be paid the $1,000 for out-of-court time that Alabama provided lawyers appointed in capital cases. They began squabbling with each other, and one filed a civil suit against the other about who could claim the money. Meanwhile, the judge sent George to Bryce Hospital in Tuscaloosa for a competency examination. Ed Seger, the doctor who examined George, mysteriously concluded that he was not mentally ill but was “malingering” or faking symptoms of mental illness.

Based on that evaluation, the judge allowed the capital murder trial to proceed. George’s lawyers bickered with one another, presented no defense, and called no witnesses. The State called Dr. Seger, who persuaded the jury that there was nothing mentally wrong with George, even as he continuously spit in a cup and made loud clucking noises throughout the trial. George’s family members were distraught. George had been working at a Pier 1 furniture store in Houston before his car accident. He left town without picking up his check, which had been ready for collection for over two days before his departure. His mother, a poor woman who knew the value of a dollar to someone like George, found this behavior more demonstrative of mental illness than anything else she could point to, and she authorized the lawyers to obtain the unclaimed check in the hope that they could present it at the trial to confirm George’s confused mental state. The lawyers, who were still bickering over the money, cashed the check to pay themselves instead of using it as evidence.

George was convicted and given the death penalty. By the time we at EJI got involved, he had been on death row for several years, moving inexorably toward execution. When I met him, prison doctors were heavily medicating him with psychotropic drugs, which at least stabilized his behavior. It was so abundantly clear that George was mentally ill that it came as no shock when we discovered that the doctor who had examined him at Bryce Hospital was a fraud with no medical training. “Dr. Ed Seger” had made up his credentials. He had never graduated from college but had fooled hospital officials into believing he was a trained physician with expertise in psychiatry. He had masqueraded at the hospital for eight years conducting competency evaluations on people accused of crimes before his fraud was uncovered.

I represented George in his federal court proceedings. There, the State acknowledged that Seger was an imposter but wouldn’t agree that George was entitled to a new trial. We eventually won a favorable ruling from a federal judge who overturned his conviction and sentence. Because of his mental illness and incompetency, George was never retried or prosecuted. He has been at a mental institution ever since. But there are likely hundreds of other people imprisoned after an evaluation by “Dr. Seger” whose convictions have never been reviewed.

A lot of my clients on death row have had serious mental illnesses, but it wasn’t always obvious that their history of mental illness predated their time in prison, since symptoms of their disabilities could be episodic and were frequently stress-induced. But Avery Jenkins’s letters, handwritten in print so small I needed a magnifying glass to read them, convinced me that he had been very ill for a long time.

I looked up his case and began to piece together his story. It turned out he’d been convicted of the very disturbing and brutal murder of an older man. The multiple stab wounds inflicted on the victim strongly suggested mental illness, but the court records and files never referenced anything about Jenkins suffering from a disability. I thought I’d find out more by meeting him in person.

When I pulled into the prison parking lot, I noticed a pickup truck there that looked like a shrine to the Old South: It was completely covered with disturbing bumper stickers, Confederate flag decals, and other troubling images. Confederate flag license plates are everywhere in the South, but some of the bumper stickers were new to me. A lot were about guns and Southern identity. One read, IF I’D KNOWN IT WAS GOING TO BE LIKE THIS, I’D HAVE PICKED MY OWN DAMN COTTON. Despite growing up around images of the Confederate South and working in the Deep South for many years, I was pretty shaken by the symbols.

I’d always been especially interested in the post-Reconstruction era of American history. My grandmother was the daughter of people who were enslaved. She was born in Virginia in the 1880s, after federal troops had been withdrawn and a reign of violence and terror had begun, designed to deny any political or social rights for African Americans. Her father told her stories of how the recently emancipated black people were essentially re-enslaved by former Confederate officers and soldiers, who used violence, intimidation, lynching, and peonage to keep African Americans subordinate and marginalized. My grandmother’s parents were deeply embittered by how the promise of freedom and equality following slavery ended when white Southern Democrats reclaimed political power through violence.

Terrorist groups like the Ku Klux Klan cloaked themselves in the symbols of the Confederate South to intimidate and victimize thousands of black people. Nothing unnerved rural black settlements more than rumors about nearby Klan activity. For a hundred years, any sign of black progress in the South could trigger a white reaction that would invariably invoke Confederate symbols and talk of resistance. Confederate Memorial Day was declared a state holiday in Alabama at the turn of the century, soon after whites rewrote the state constitution to ensure white supremacy. (The holiday is still celebrated today.) When black veterans returned to the South after World War II, Southern politicians formed a “Dixiecrat” bloc to preserve racial segregation and white domination out of fear that military service might encourage black veterans to question racial segregation. In the 1950s and 1960s, civil rights activism and new federal laws inspired the same resistance to racial progress and once again led to a spike in the use of Confederate imagery. In fact, it was in the 1950s, after racial segregation in public schools was declared unconstitutional in Brown v. Board of Education, that many Southern states erected Confederate flags atop their state government buildings. Confederate monuments, memorials, and imagery proliferated throughout the South during the Civil Rights Era. It was during this time that the birthday of Jefferson Davis, the president of the Confederacy, was added as a holiday in Alabama. Even today, banks, state offices, and state institutions shut down in his honor.

At a pretrial hearing, I once argued against the exclusion of African Americans from the jury pool. In this particular rural Southern community, the population was about 27 percent black, but African Americans made up only 10 percent of the jury pool. After presenting the data and making my arguments about the unconstitutional exclusion of African Americans, the judge complained loudly.

“I’m going to grant your motion, Mr. Stevenson, but I’ll be honest. I’m pretty fed up with people always talking about minority rights. African Americans, Mexican Americans, Asian Americans, Native Americans … When is someone going to come to my courtroom and protect the rights of Confederate Americans?” The judge had definitely caught me off guard. I wanted to ask if being born in the South or living in Alabama made me a Confederate American, but I thought better of it.

I stopped in the prison yard to take a closer look at the truck. I couldn’t help walking around it and reading the provocative stickers. I turned back toward the front gate of the prison, trying to regain my focus, but I couldn’t make myself indifferent to what I perceived were symbols of racial oppression. I had been to this prison often enough to be familiar to many of the correctional officers, but as I entered I was met by a correctional officer I’d never seen before. He was a white man of my height—about six feet tall—with a muscular build. He looked to be in his early forties and wore a short military haircut. He was staring coldly at me with steel-blue eyes. I walked toward the gate that led to the lobby of the visitation room, where I expected a routine pat-down before entering the visitation area. The officer stepped in front of me and blocked me from proceeding.

“What are you doing?” he snarled.

“I’m here for a legal visit,” I replied. “It was scheduled earlier this week. The people in the warden’s office have the papers.” I smiled and spoke as politely as I could to defuse the situation.

“That’s fine, that’s fine, but you have to be searched first.”

It was difficult to ignore his clearly hostile attitude, but I did my best.

“Okay, do you need me to take my shoes off?” The hardcore officers would sometimes make me remove my shoes before going inside.

“You’re going to go into that bathroom and take everything off if you expect to get into my prison.”

I was shocked, but spoke as nicely as I could. “Oh, no, sir. I think you might be confused. I’m an attorney. Lawyers don’t have to get strip-searched to come in for legal visits.” Instead of calming him, this seemed to make him angrier. “Look, I don’t know who you think you are, but you’re not coming into my prison without complying with our security protocols. Now, you can get into that bathroom and strip, or you can go back to wherever you came from.” I’d had some difficult encounters with officers getting into prisons from time to time, mostly in small county jails or places where I’d never been before, but this was highly unusual.

“I’ve been to this prison many times, and I’ve never been required to submit to a strip search. I don’t think this is the procedure,” I said more firmly.

“Well, I don’t know and don’t care what other people do, but this is the protocol I use.” I thought about trying to find an assistant warden but realized that that might be difficult, and anyway, an assistant warden would be unlikely to tell an officer he was wrong in front of me. I had driven two hours for this visit and had a very tough schedule over the next three weeks; I wouldn’t be able to get back to the prison any time soon if I didn’t get in now. I went inside the bathroom and removed my clothes. The officer came in and gave me an unnecessarily aggressive search before mumbling that I was clear. I put my suit back on and walked out.

“I’d like to get inside the visitation room now.” I tried to reclaim some dignity by speaking more forcefully.

“Well, you have to go back and sign the book.”

He said it coolly, but he was clearly trying to provoke me. There was a visitation log that the prison used for family visits, but it was not used for legal visits. I’d already signed the attorney book. It would make no sense to sign a second book.

“Lawyers don’t have to sign that book—”

“If you want to come in my prison, you’ll sign the book.” He seemed to be smirking now. I tried hard to keep my composure.

I turned around and went over to the book and signed my name. I walked back to the visitation room and waited. There was a padlock on the glass door that had to be unlocked before I could enter the space where I’d meet my client. The officer finally pulled out his keys to unlock the door. I stood silently hoping to get inside without more drama. When he opened the door, I stepped forward, but he grabbed my arm to stop me. He lowered his voice as he spoke to me.

“Hey, man, did you happen to see a truck out in the visitation yard with a lot of bumper stickers, flags, and a gun rack?”

I spoke cautiously. “Yes, I saw that truck.”

His face hardened before he spoke. “I want you to know, that’s my truck.” He released my arm and allowed me to walk inside the prison. I felt angry at the guard, but I was even more irritated by my own powerlessness. I was distracted from my thoughts when the back door of the visitation room opened and Mr. Jenkins was led in by another officer.

Jenkins was a short African American man with close-cropped hair. He grasped my hand with both of his and smiled broadly as he sat down. He seemed unusually happy to see me.

“Mr. Jenkins, my name is Bryan Stevenson. I’m the attorney you spoke—”

“Did you bring me a chocolate milkshake?” He spoke quickly.

“I’m sorry, what did you say?”

He kept grinning. “Did you bring me a chocolate milkshake? I want a chocolate milkshake.”

The trip, the Confederate truck, the harassment from the guard, and now a request for a milkshake—this was becoming a bizarre day. I didn’t hide my impatience.

“No, Mr. Jenkins, I didn’t bring you a chocolate milkshake. I’m an attorney. I’m here to help you with your case and try to get you a new trial. Okay? That’s why I’m here. Now I need to ask you some questions and try to understand what’s going on.” I saw the grin fade quickly from the man’s face. I started asking questions and he gave single-word answers, sometimes just grunting out a yes or no. I realized that he was still thinking about his milkshake. My time with the officer had made me forget how impaired this man might be. I stopped the interview and leaned forward.

“Mr. Jenkins, I’m really sorry. I didn’t realize you wanted me to bring you a chocolate milkshake. If I had known that, I would absolutely have tried. I promise that the next time I come, if they let me bring you in a chocolate milkshake, I’ll definitely do it. Okay?” With that, his smile returned, and his mood brightened. His prison records revealed that he often experienced psychotic episodes in which he would scream for hours. He was generally kind and gentle in our meeting, but he was clearly ill. I couldn’t understand why his trial records made no reference to mental illness, but after the George Daniel case, nothing surprised me. When I returned to my office, we began a deeper investigation into Mr. Jenkins’s background. What we found was heartbreaking. His father had been murdered before he was born, and his mother had died of a drug overdose when he was a year old. He’d been in foster care since he was two years old. His time in foster care had been horrific; he’d been in nineteen different foster homes before he turned eight. He began showing signs of intellectual disability at an early age. He had cognitive impairments that suggested some organic brain damage and behavioral problems that suggested schizophrenia and other serious mental illness.

When he was ten, Avery lived with abusive foster parents whose rigid rules kept him in constant turmoil. He couldn’t comply with all of the requirements imposed on him, so he was frequently locked in a closet, denied food, and subjected to beatings and other physical abuse. When his behavior didn’t improve, his foster mother decided to get rid of him. She took him out into the woods, tied him to a tree, and left him there. He was found, in very poor health, by hunters three days later. After recovering from serious medical problems relating to his abandonment, he was turned over to authorities, who placed him back into foster care. By the time he was thirteen, he had started abusing drugs and alcohol. By fifteen, he was having seizures and experiencing psychotic episodes. At seventeen, he was deemed incapable of management and was left homeless. Avery was in and out of jail until he turned twenty, when in the midst of a psychotic episode he wandered into a strange house, thinking he was being attacked by demons. In the house, he brutally stabbed to death a man he’d believed to be a demon. His lawyers did no investigation of Mr. Jenkins’s history prior to trial, and he was quickly convicted of murder and sentenced to death.

The prison would not let me bring Mr. Jenkins a milkshake. I tried to explain this to him, but at the start of every visit, he’d ask me if I’d brought one. I’d tell him that I would keep trying—I had to, just to get him to focus on anything else. Months later, we were finally scheduled to go to court with the evidence about his profound mental illness, material that should have been presented at trial. We contended that his attorneys had failed to provide effective assistance of counsel at trial when they didn’t uncover Avery’s history or present his disabilities as relevant to his criminal culpability and sentence.

When I got to the court where the hearing would take place, about a three-hour drive from the prison, I went to see Avery in the court’s basement holding cell. After going through my usual protocol about the milkshake, I tried to get him to understand what would happen in court. I was concerned that seeing some of the witnesses—people who had dealt with him when he was in foster care—might upset him. The testimony the experts would provide would also be very direct in characterizing his disabilities and illness. I wanted him to understand why we were doing that. He was pleasant and agreeable, as always.

When I went upstairs to the courtroom, I spotted the correctional officer who had given me such a hard time when I had first met Avery. I hadn’t seen the officer since that initial ugly encounter. I had asked another client about the guard and was told that he had a bad reputation and usually worked the late shift. Most people tried to steer clear of him. He must have been the officer assigned to transport Avery to the hearing, which made me worried about how Avery might have been treated on the trip, but he had seemed his usual self.

Over the next three days we presented our evidence about Avery’s background. The experts who spoke about Avery’s disabilities were terrific. They weren’t partial or biased, just very persuasive in detailing how organic brain damage, schizophrenia, and bipolar disorder can conspire to create severe mental impairment. They explained that the psychosis and other serious mental health problems that burdened Mr. Jenkins could lead to dangerous behavior, but this behavior was a manifestation of serious illness, not a reflection of his character. We also put forth evidence about the foster care system and how it had failed Avery. Several of the foster parents with whom Avery had been placed were later convicted of sexual abuse and criminal mismanagement of foster children. We discussed how Avery had been passed from one unhappy situation to the next, until he was drug-addicted and homeless.

Several former foster parents admitted to being very frustrated by Avery because they weren’t equipped to deal with his serious mental health problems. I argued to the judge that not taking Avery’s mental health issues into consideration at trial was as cruel as saying to someone who has lost his legs, “You must climb these stairs with no assistance, and if you don’t, you’re just lazy.” Or to say to someone who is blind, “You should get across this busy interstate highway unaided, or you’re just cowardly.” There are hundreds of ways we accommodate physical disabilities—or at least understand them. We get angry when people fail to recognize the need for thoughtful and compassionate assistance when it comes to the physically disabled, but because mental disabilities aren’t visible in the same way, we tend to be dismissive of the needs of the disabled and quick to judge their deficits and failures. Brutally murdering someone would, of course, require the State to hold that person accountable and to protect the public. But to completely disregard a person’s disability would be unfair in evaluating what degree of culpability to assign and what sentence to impose.

I went back home feeling very good about the hearing, but the truth was that a state postconviction hearing rarely resulted in a favorable ruling. If relief was to come, it would most likely be on appeal. I wasn’t expecting any miracle rulings. About a month after the hearing, before judgment was rendered, I decided to go to the prison and see Avery. We hadn’t had much time to talk after the hearing, and I wanted to make sure he was okay. Throughout most of the hearing he had sat pleasantly, but when some of his former foster parents had come into the court, I could see him become upset. I thought a post-hearing visit would be helpful.

When I pulled into the parking lot, I once again saw that loathsome truck, with its flags, stickers, and menacing gun rack. I feared another encounter with the guard. Sure enough, after checking in with the warden’s secretary and heading toward the visitation room, I saw him approaching me. I braced myself, preparing for the encounter. And then something surprising happened.

“Hello, Mr. Stevenson. How are you?” the guard asked. He sounded earnest and sincere. I was skeptical.

“Well, I’m fine. How are you?” He was looking at me differently from how he had before; he wasn’t glaring and seemed genuinely to want to interact. I decided to play along.

“Look, I’ll step into the bathroom to get ready for your search.”

“Oh, Mr. Stevenson, you don’t have to worry about that,” he quickly replied. “I know you’re okay.” Everything about his tone and demeanor was different.

“Oh, well, thank you. I appreciate that. I’ll go back and sign the book, then.”

“Mr. Stevenson, you don’t have to do that. I saw you coming and signed your name in for you. I’ve taken care of it.” I realized that he actually looked nervous.

I was confused by the shift in his attitude. I thanked him and walked to the visitation room door with the officer following behind me. He turned to unlock the padlock so that I could go inside. As I started to walk past him to enter, he placed his hand on my shoulder.

“Hey, um, I’d like to tell you something.”

I wasn’t sure where he was going with this.

“You know I took ole Avery to court for his hearing and was down there with y’all for those three days. And I, uh, well, I want you to know that I was listening.” He removed his hand from my shoulder and looked past me, as if staring at something behind me. “You know, I—uh, well, I appreciate what you’re doing, I really do. It was kind of difficult for me to be in that courtroom to hear what y’all was talking about. I came up in foster care, you know. I came up in foster care, too.” His face softened. “Man, I didn’t think anybody had it as bad as me. They moved me around like I wasn’t wanted nowhere. I had it pretty rough. But listening to what you was saying about Avery made me realize that there were other people who had it as bad as I did. I guess even worse. I mean, it brought back a lot of memories, sitting in that courtroom.” He reached into his pocket to pull out a handkerchief to wipe the perspiration that had formed on his brow. I noticed for the first time that he had a Confederate flag tattooed on his arm.

“You know, I guess what I’m trying to say is that I think it’s good what you’re doing. I got so angry coming up that there were plenty of times when I really wanted to hurt somebody, just because I was angry. I made it to eighteen, joined the military, and you know, I’ve been okay. But sitting in that courtroom brought back memories, and I think I realized how I’m still kind of angry.” I smiled. He continued: “That expert doctor you put up said that some of the damage that’s done to kids in these abusive homes is permanent; that kind of made me worry. You think that’s true?” “Oh, I think we can always do better,” I told him. “The bad things that happen to us don’t define us. It’s just important sometimes that people understand where we’re coming from.” We were both speaking softly to one another. Another officer walked by and stared at us. I went on: “You know, I really appreciate you saying to me what you just said. It means a lot, I really mean that. Sometimes I forget how we all need mitigation at some point.” He looked at me and smiled. “You kept talking about mitigation in that court. I said to myself, ‘What the hell is wrong with him? Why does he keep talking about “mitigation” like that?’ When I got home I looked it up. I wasn’t sure what you meant at first, but now I do.” I laughed. “Sometimes I get going in court, and I’m not sure I know what I’m saying, either.”

“Well, I think you done good, real good.” He looked me in the eye before he extended his hand. We shook hands and I started toward the door again. I was just about inside when he grabbed my arm again.

“Oh, wait. I’ve got to tell you something else. Listen, I did something I probably wasn’t supposed to do, but I want you to know about it. On the trip back down here after court on that last day—well, I know how Avery is, you know. Well anyway, I just want you to know that I took an exit off the interstate on the way back. And, well, I took him to a Wendy’s, and I bought him a chocolate milkshake.” I stared at him incredulously, and he broke into a chuckle. Then he locked me inside the room. I was so stunned by what the officer said, I didn’t hear the other officer bring Avery into the room. When I realized Avery was already in the room, I turned and greeted him. When he didn’t say anything, I was a little alarmed.

“Are you okay?”

“Yes, sir, I’m fine. Are you okay?” he asked.

“Yes, Avery, I’m really doing well.” I waited for our ritual to begin. When he didn’t say anything, I figured I’d just play my part. “Look, I tried to bring you a chocolate milkshake, but they wouldn’t—” Avery cut me off. “Oh, I got a milkshake. I’m okay now.”

As I began discussing the hearing, he grinned. We talked for an hour before I had to see another client. Avery never again asked me for a chocolate milkshake. We won a new trial for him and ultimately got him off death row and into a facility where he could receive mental health treatment. I never saw the officer again; someone told me he quit not long after that last time I saw him.