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Death’s door

When Sheriff Thomas Tate bumps into Walter McMillian on the street, he'll ask how he's doing.

"I just say I'm doing pretty good," McMillian says, with a sad-eyed smile. The 57-year-old junkyard owner spent six years on death row. He believes the sheriff framed him for the murder that put him there.In 1993 the state of Alabama acknowledged McMillian's innocence and freed him. Now he's back home in Monroeville, and Tate is still Monroe County's sheriff - neighbors again in the community that celebrates itself as the setting of "To Kill a Mockingbird," the classic novel of Southern childhood in which a black man is wrongly convicted of raping a white woman.

There was no question McMillian would come back to claim his share of the family land among the pine woods and cotton fields of southwest Alabama. "I'm an innocent man. I don't see no reason not to. The truth's been told," he said.

And it will be told again this week. McMillian is among more than 30 Americans who have been freed from death row and are planning to gather in Chicago for the first National Conference on Wrongful Convictions and the Death Penalty, sponsored by the Northwestern University School of Law.

They represent perhaps the greatest challenge to use of the death penalty: the risk that imposing capital punishment may kill an innocent human being.

Conference organizers identified 73 men and two women who have been released from death row since the 1970s, when the death penalty got an overhaul.

In 1972, the U.S. Supreme Court ruled execution was unconstitutionally "cruel and unusual" because states used it in arbitrary and capricious ways. In response, states made their laws more specific, and capital punishment was reinstated in 1976. Today, 38 states, the federal government and the military have the death penalty, and the nation's death row population was 3,517 as of Oct. 1, according to the NAACP Legal Defense and Educational Fund.

Among those convicted and cleared in the past three decades, at least eight are in prison, and conference organizers say nine have died and six could not be found.

Randall Dale Adams is expected at the gathering. Convicted in 1977 of killing a Dallas police officer, Adams was 72 hours from execution when the Texas Supreme Court spared his life because of improper jury selection. He was finally freed from prison in 1989 after his accuser recanted.

Sabrina Butler-Porter was a 19-year-old on welfare in Mississippi when convicted in 1990 of killing her 9-month-old son. In 1992 the state Supreme Court overturned her conviction; the prosecutor made improper remarks to the jury about Butler-Porter's failure to testify. She was retried and acquitted.

Wilbert Lee and Freddie Pitts are among nearly 20 on the list who were tried in Florida. Lee and Pitts were twice convicted and then sent to Florida's death row in 1963 for the murder of two gas station attendants. Another man confessed, but his statement was ruled inadmissible.

In 1975, Lee and Pitts received full pardons from Gov. Reubin Askew, who cited strong doubt about their guilt. This year the state awarded each of them $500,000 in compensation.

One man who won't be attending the conference is Michael Linder. Sent to South Carolina's death row in 1979, he was acquitted on retrial and freed in 1981 on grounds he killed in self-defense. But since 1988 he has been back in prison, serving a life sentence for kidnapping and assault.

McMillian is suing Sheriff Tate for $7.2 million, claiming civil rights violations. (The lawsuit originally sought $14.2 million and named other local and state officials. Some reached a small monetary settlement, and others were dropped from the case.) Citing the lawsuit, Tate declined to be interviewed, but his lawyer, Daryl Masters, denied McMillian's claims. "Sheriff Tate committed no wrongful act of any kind and should be commended for the way he conducted the case," he said.

The Nov. 13-15 conference is being organized by Northwestern law Professor Lawrence Marshall who helped win reversals in three capital penalty cases. At a time when most Americans support the death penalty, Marshall said, "there is a grave danger of wrongful convictions, and wrongful executions."

No physical evidence, no eyewitness, a jail-house snitch, claims of a confession but no record of one, investigators using weak or suspect "science": these are hallmarks of wrongful convictions, Marshall said. Individuals caught in this deadly net also are apt to be from society's fringes: poor, minority and criminal. Typically, their lawyers do a poor job. Reversals usually come from new evidence pointing to the real killer, a recanting witness and, less often, DNA testing.

This is no reason to discard the death penalty, proponents say.

Even one innocent person wrongly executed is terrible, said Robert Bork, a former federal judge now at the American Enterprise Institute in Washington. "But the question is, if you do away with it, have you condemned other people to death?"

Bork, who as U.S. solicitor general successfully argued before the U.S. Supreme Court for the death penalty's reinstatement in 1976, said the death penalty deters crime as well as incapacitating those who might kill again. And it's morally satisfying, Bork said.

"That's one way of vindicating the community," Bork said, "relieving the community's need to express itself, for retribution, in particular for horrible acts."

Ted Pearson, who prosecuted McMillian and is now an assistant district attorney in Mobile, says he did his job properly. "I thought he was guilty," Pearson said. "I did what I was supposed to do. The grand jury thought he was guilty. And the jury convicted him."

So if McMillian is innocent, who murdered Ronda Morrison?

The case was bungled almost as soon as the 18-year-old college student was found dead on the Saturday morning of Nov. 1, 1986, at Jackson Cleaners in Monroeville.

Before forensic tests could be made, the body was moved, the crime scene contaminated and fingerprints smudged - "a lot of things that are real stupid," said District Attorney Tommy Chapman, who took office in 1990, two years after McMillian's conviction.

When McMillian was arrested seven months after the murder, authorities had no motive and no physical evidence. With a robbery, the killing became a capital offense. Even this was uncertain. The indictment said the killing included the theft - or attempted theft - of $35 from the cleaner's till.

The case against McMillian rested on a story told by a convicted felon facing charges for another murder. Ralph Myers claimed McMillian made him drive them both in McMillian's truck to the cleaners. Myers said he hung around in the truck, heard gunshots, found the woman dead and McMillian with gun in hand.

Walter McMillian worked hard providing for his wife and their three children. His sole criminal record was a suspended sentence for a bar fight. And he had an alibi: He was at a family fish fry the morning Ronda Morrison was murdered. An uncle of the murder victim, in fact, came by and told them she was killed, witnesses said.

McMillian's family borrowed and scraped together thousands of dollars to hire two defense attorneys from Selma. When they sought a change of venue because of the publicity, the trial shifted from 40 percent black Monroe County, to 13 percent black Baldwin County.

At the trial 13 months later, two men testified they saw McMillian's truck at the scene.

After a three-day trial at which McMillian never took the stand, the jury found him guilty and recommended life imprisonment with-out parole.

In Alabama, the judge gets the last word, and Judge Robert E. Lee Key ordered McMillian put to death. In fact, McMillian had been on death row even before his trial - supposedly, he said, to protect him from vengeance seekers.

Once McMillian's appeal began, the stories told in court unraveled.

Almost by chance, McMillian got a new lawyer, Bryan Stevenson, who runs the Equal Justice Initiative, a nonprofit Montgomery firm that takes death penalty cases.

He picked McMillian's case at random when he came to the job in 1989. Soon this defendant and his case stood out. "What impressed me about him when we first talked was his desire for me to believe him," Stevenson said.

"What was different about this case was the complete absence of any motive. . . . A convoluted silly tale told basically by one convicted felon who had good reasons to lie, with confirmation by two dubious characters."

The lawyer unearthed statements and documents never seen at trial, found witnesses who knocked big holes in the lies. In the end, all three witnesses recanted.

After four years and six appeals, the Alabama Court of Criminal Appeals reversed McMillian's conviction and sentence on the grounds that prosecutors withheld evidence that would have weakened their case.

McMillian was saved from the lap of "Yellow Mama," as Alabamians call their electric chair. But how did he come so close?

"It's just something you can't imagine. How could this happen? You ask yourself all kinds of questions: Why? Why? Why?" said McMillian.

Only one reason made sense. "I had a relationship with this white lady," said McMillian, who is black. He says Tate, who took office two months after the crime, mentioned this every chance he got, often using racial epithets about blacks going with white women. Tate's attorney said his client "does not make those type of remarks."

The case was sent back to the lower court, where Chapman, the new district attorney, joined the defense and got it dismissed.

"I don't believe authorities knew he was innocent, nor do I believe that police framed him," Chapman said in an interview. "I believe he was framed by his former girlfriend and Ralph Myers, and the police were duped."

"The fact that he was a poor black man worked against him. . . . He was portrayed to law enforcement as some big-time dope dealer, and racketeering. All that is crazy."

It was a CBS "60 Minutes" report on the case that compelled Chapman to take a closer look.

"I don't think I've been the same since," he said of the McMillian case. The D.A. has since sent four people to death row - three white and one black, and "I take extra care in those cases."

McMillian is a tall, sturdy man with a spray of white in his jet-black goatee. He wears bifocals and ties his curly black hair in a blunt ponytail. He lives in a trailer in a clearing in the woods about 6 miles outside Monroeville. His wife of 30 years threw him out of the house for cheating on her, he said.

As he quietly makes his life over, he feels burdened by those who still suspect he killed Ronda Morrison.

People like Mayor Anne Farish. "It's horrible for the Morrisons, because how do you know he's not guilty?" she said. "There must have been a reason. I trust all of our law officials."

"I'll go hug his neck if they can prove somebody else did it," said Charles Morrison, 62. "I would apologize."

Photographs of Ronda, an only child, smile from every corner in the Morrison home. Her bedroom, with its Bruce Springsteen poster, is as she left it.

"Everything is taken away from you," said Bertha Morrison, 56, a garment-factory worker. "You're not going to have a wedding. You're not going to have grandchildren. You're not going to see her life, what it's going to be made up of."

The trial and death sentence left them uneasy. "We were afraid. What if he's not guilty?" said her husband, a retired pulp worker.

Still, they felt the matter was settled when McMillian was convicted, so his release reopened their wound. "I'm not saying whether the man is guilty or innocent," Morrison said. "But you know a jury proved him guilty. A jury did not prove him innocent."

Like McMillian, they no longer trust the system.

Investigators have a suspect, Chapman says, a white man who once worked across the street from the cleaners and who has a history of violent relationships. But an arrest is not imminent.

There's an irony to Walter McMillian's story: It took a death sentence to set him free. As his 32-year-old son, James McMillian, said: "If they had got a life sentence, he probably would never have got out, because people would have probably given up."