In the Rearview Mirror, Oklahoma and Death Row

By DAN BARRY

MONTGOMERY, Ala.

You can never come back, ever. If you plead guilty to that long-ago murder in Oklahoma City, you will be released from prison, where you have spent most of the last 27 years on death row. But once free, you will be banished from Oklahoma. O.K.?

O.K., said James Fisher, trading his black-and-white-striped prison top for a blue-and-white-striped dress shirt. Then, without shackles or escort, he stepped into the late afternoon of a state that once wanted him dead and now just wanted him gone.

First, though, Mr. Fisher’s lawyers and supporters thought that the end to his Hitchcockian case, a study in the cost of appalling legal representation, warranted at least dinner. So they took him to Earl’s Rib Palace for the celebratory opposite of a last meal.

With brown eyes wide behind large glasses and incarceration-gray hair cut close to the scalp, the ex-inmate dined on ribs, coleslaw, fried okra, and root beer. While he ate, a gospel singer from Georgia introduced herself, sang out a song of redemption, and handed him a $100 bill.

When dinner was over, he ordered a coffee, to go.

A trip to WalMart for the incidentals needed on the outside was aborted when word came that the district attorney expected Mr. Fisher to be already gone. His lawyers promised an early start the next day, and he went to sleep in a hotel at the city’s edge.

In the morning, his latest defense lawyer, Perry Hudson, gave him a farewell gift, a portable MP3 player. Mr. Fisher had wanted a Walkman, a hot item back when he was last free, but Mr. Hudson explained that this was better.

Then Mr. Fisher got into the passenger seat of a small red rental car that soon blended into the southward flow of Interstate 35. As the radio played hip-hop, the exhausted, exhilarated man gazed through the car window at a different country from the one he remembered.

“It looked like the society outside had become cleaner, shinier,” he said.

What Mr. Fisher, 46, remembered included this: abandoned as a small child, fobbed off to relatives, returned to an abusive father and dumped at 13 on the doorstep of the New York State child-welfare system, which cut him loose at 16. In and out of the Navy in seven months, he bobbed through the drugs and street life of the South, until he found a bus ticket to Tulsa and drifted, finally, into Oklahoma City.

There, on Dec. 12, 1982, a white man named Terry Neal was stabbed to death in his apartment with the broken neck of a wine bottle. A juvenile known to solicit on the streets was charged with the murder, but that changed when he named Mr. Fisher as the assailant. He said that Mr. Neal had picked the two of them up for sex, but that things had gone wrong.

Mr. Fisher, who is African-American, was arrested in upstate New York and returned to Oklahoma, where he pleaded not guilty to first-degree murder. He faced execution if convicted, a prospect that, records show, his well-respected lawyer did little to avoid.

The lawyer, E. Melvin Porter, a civil rights advocate and the first African-American elected to the Oklahoma State Senate, later said that at the time he considered homosexuals to be “among the worst people in the world,” and Mr. Fisher to be a “very hostile client.”

Mr. Porter was shockingly ill-prepared for trial — “unwilling or unable to reveal evident holes in the state’s case,” a federal appellate court later noted, yet “remarkably successful in undermining his own client’s testimony.” He exhibited “actual doubt and hostility” about his client’s defense, the court said, and failed to present a closing argument, even though the state’s case “was hardly overwhelming.”

When the time came at sentencing to plead for mercy, the court said, Mr. Porter uttered just nine words. Four were judicial pleasantries; the remaining five formed a lame objection to the prosecution’s closing argument.

With that, James Fisher, 20, was sentenced to death.

Years passed and appeals were denied. He lived in the cave-like setting of the death-row unit, spending 23 hours a day in his cell, and was frequently relegated to one of the special disciplinary isolation cells. As his various emotional problems went largely untreated, he grew increasingly self-destructive, according to a comprehensive psychological assessment.

He became a notoriously difficult inmate, often disciplined for refusing to remove his hands from the cell-door slot through which his food trays were passed. With these hand gestures, Mr. Fisher shouted his frustration.

Finally, after 19 years, the federal Court of Appeals for the 10th Circuit overturned Mr. Fisher’s conviction on the grounds of “ineffective assistance of counsel.” In 2005 he was tried again, only to relive his courtroom betrayal.

This time his lawyer was Johnny Albert, also well-regarded, who later admitted that at the time of the trial, he was drinking heavily, abusing cocaine and neglecting cases. The two men fought so much that Mr. Albert once physically threatened Mr. Fisher, who then refused to attend his own trial.

According to court records, Mr. Albert all but ignored the many boxes of defense material concerning Mr. Fisher’s case. The various other examples of his inept counsel included the failure to sufficiently challenge in the testimony of the state’s central witness, the juvenile, now a man with a violent criminal record.

Mr. Fisher was convicted and sentenced to death, again. And, again, his conviction was overturned on grounds of ineffective counsel — faster this time, and by the Court of Criminal Appeals of Oklahoma.

His new lawyer, Mr. Hudson, succeeded in finally gaining Mr. Fisher’s trust, but it was not easy. As the prospect of a third trial drew nearer, Mr. Fisher instructed his lawyer to seek a plea deal.

Last month the two sides ended the 28-year-old case. In addition to pleading guilty to first-degree murder, Mr. Fisher agreed to complete a comprehensive re-entry program in Montgomery, Ala., overseen by the Equal Justice Initiative, which helps indigent defendants and inmates who have been mistreated by the legal system. This nonprofit organization had long been familiar with Mr. Fisher’s case.

One other thing: Mr. Fisher also agreed to get the hell out of Oklahoma forever.

The small red car, driven by Sophia Bernhardt, a lawyer for the Equal Justice Initiative, continued south on the interstate. Packed inside were several goodbye gifts, including a set of inexpensive luggage from Janet Davis, a lawyer with the Oklahoma Indigent Defense System, who had worked for Mr. Fisher’s freedom for many years.

“He has certainly done his time,” she said later. “He deserves to be free in the world.”

Just short of the Texas border, Mr. Fisher and Ms. Bernhardt, who, at 31, was 5 when Mr. Fisher was first sentenced to death, stopped to eat at a Braum’s Ice Cream store, where two men stared and talked loudly about his release. They drove on. And when they finally left Oklahoma, Mr. Fisher had this thought: “The past is over with.”

At Dallas-Fort Worth International Airport, Ms. Bernhardt, who had to rush off to another case, entrusted Mr. Fisher and the car to her colleague Stanley Washington. The two men bought some takeout at a diner, spent the night at a budget hotel and, at 6:45 the next morning began the 16-hour drive to Montgomery.

Early in the ride, Mr. Washington rolled down the car windows to allow the hot Texas air to rush in. “Here’s freedom blowing on you,” he said, and he knew what he was talking about.

Mr. Washington, 60, was once sentenced to life without parole for various nonviolent drug-related crimes; he served 14 years in the Alabama prison system before being released in January 2009. Now, gently, he began to suggest ways for Mr. Fisher to make the best of what was before him: small goals; a day at a time; it will be all right.

They stopped for food at gas stations along the way. Mr. Fisher savored the various brands of root beer. He talked about the pet he had on death row, a mouse called Jasper. He noticed how lush the landscape became once they hit Louisiana, and how there were so many cars on the road at night, all of them so sleek, and forming uniform lines that said America never sleeps.

Mr. Fisher vented for a while about his banishment from Oklahoma. He asked Mr. Washington why they would do that, but seemed satisfied by Mr. Washington’s answer of: Who cares?

It was 10:30 at night by the time the small red car pulled up to the Montgomery apartment where Mr. Fisher would start again. Home, Mr. Washington said, to which his passenger said something along the lines of, O.K.

Donations can be sent to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD 21218. Ph: 410-366-1637; Email: mobuszewski [at] verizon.net

"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs

Baltimore Nonviolence Center

Wednesday, August 11, 2010