it on his former girlfriend’s porch. The woman’s niece and another little girl came out instead and saw the peculiar package.
The ten-year-old niece was drawn to the odd bag with a clock on it and picked up the device. She shook the clock to see if it would tick, which triggered a violent explosion. The child was killed instantly, and her twelve-year-old friend, who was standing next to her, was traumatized. Herbert knew both children. In this community, children were always roaming the streets looking for something to do. Herbert loved kids and would invite them into his yard, pay them to do errands, and talk to them. He started making cereal and cooking for the kids who would wander by. The two girls had come by his house for breakfast.
Herbert, watching the house from across the street, was devastated. He had planned to run to his girlfriend’s aid when the bomb exploded to reinforce his readiness to protect her and to keep her safe. When the child picked up the bomb and it detonated, Herbert ran across the street and found himself in a circle of grieving neighbors.
It didn’t take long for police to make an arrest. They found pipes and other bomb-making materials in Herbert’s car and front yard. Because the victims were black and poor, this wasn’t the kind of case that would usually be prosecuted as a capital crime, but Herbert wasn’t local. His identity as an outsider, a Northerner, and the nature of the crime seemed to generate heightened contempt from law enforcement officials. Placing a bomb anywhere in Dothan, even in a poor section of town, posed a different kind of threat than “typical” domestic violence. The prosecutor argued that Herbert was not just tragically misguided and reckless; he was evil. The State sought the death penalty. After striking all of the black prospective jurors in a county that is 28 percent black, the prosecutor told the all-white jury in his closing argument that a conviction was appropriate because Herbert was “associated with Black Muslims from New York City” and deserved no mercy.
Alabama’s capital statute requires that any murder eligible for the death penalty be intentional, but it was clear that Herbert had no intent to kill the child. The State decided to invoke an unprecedented theory of “transferred intent” to make the crime eligible for the death penalty. But Herbert had no intention to kill anyone. Herbert was advised to deny any culpability but ultimately argued that this was reckless murder, not capital murder, which could be punished with life imprisonment but not the death penalty.
During the trial, the appointed defense lawyer presented no evidence about Herbert’s background, his military service, his trauma from the war, his relationship with the victim, his obsession with the girlfriend—nothing. Alabama’s statute at the time limited what court-appointed lawyers could be paid for their out-of-court preparation time to $1,000, so the lawyer spent almost no time on the case. The trial lasted just over a day, and the judge quickly condemned Herbert to death.
Following the imposition of the death sentence, Herbert’s appointed lawyer, who was later disbarred for poor performance in other cases, told Herbert that he didn’t see any reason to appeal the conviction or sentence because the trial had been as fair as he could expect. Herbert reminded him that he’d been sentenced to death. He wanted to appeal no matter how unlikely the prospects, but his lawyer filed no brief.
Herbert was confined on death row for eleven years, until it was his time to face “Yellow Mama.” A volunteer lawyer had challenged the intent questions in a desperate appeal but was unsuccessful. Herbert’s execution was now set for August 18, just three weeks away.
After my call with Herbert, I filed a flurry of stay motions in various courts. I knew the odds were low that we would block the execution. By the late 1980s, the U.S. Supreme Court had grown impatient with challenges to capital punishment. The Court had justified reauthorization of the death penalty in the mid-1970s on the promise that proceedings would be subject to heightened scrutiny and meticulous compliance with the law but then began to retreat from the existing review procedures. The Court’s rulings had become increasingly hostile to death row prisoners and less committed to the notion that “death is different,” requiring more careful review.
The Court decided to bar claims from federal habeas corpus review if they weren’t initially presented to state courts. Federal courts were then forbidden to