The U.S. Supreme Court has said juries must consider a defendant’s life, education and mental health before voting for execution. Lawyers for an Alabama man say that never happened in 1999, and now it’s too late.
By LAUREN GILL for ProPublica
On the morning of July 29, 1999, 12 men and women filed into the jury box in the Dallas County Courthouse in Selma, Alabama. The day before, they had convicted Domineque Ray of raping and killing a 15-year-old girl in a cotton field outside of town. It had taken just an hour and 40 minutes to deliver their verdict.
It was a terrible crime, and not the first killing Ray, 22, had been convicted of. Five and a half months earlier, Ray had been found guilty for his role in the murders of two teenage boys in Selma.
Now, shortly after 9 a.m., the jury was set to hear testimony on whether Ray’s life should be spared or if he should be sentenced to die.
Juries in death penalty cases have been required to separately weigh questions of guilt and punishment for more than four decades. Those facing the possibility of death get to argue for mercy; they’re allowed to present evidence that might temper a jury’s willingness to recommend execution a defendant’s limited intelligence, for instance, or history of victimization. The obligation of defense lawyers in such cases, the U.S. Supreme Court has held, is considerable.
William Whatley Jr. was Ray’s lead defense lawyer in the Dallas County courtroom. Whatley was a former prosecutor, and this was not his first death penalty case as a defense lawyer. But he opted to let his co-counsel, Juliana Taylor, make the presentation to the jury. Taylor, just three years out of law school, had little experience. She’d never been the lead lawyer in a criminal trial. And she’d worked on just one capital case.
Whatley and Taylor put a single witness on the stand, Ray’s mother. She testified that she loved her son, and that his life had not been easy. His father, she said, had disowned him, and she had tried her best. The testimony lasted roughly 10 minutes.
The jury, after two hours of deliberation, voted that Ray be sentenced to death. He is set to die by lethal injection on Thursday.
In the two decades since the jury’s decision, lawyers for Ray have mounted appeals in both state and federal court, insisting he deserves a new trial. They have alleged that Whatley failed to adequately represent Ray. They have alleged that prosecutors withheld evidence of other suspects in the murder of the young girl. They have argued that members of the jury knew a police detective involved in the case and should have been kept off the panel.
Most recently, in an appeal still making its way through the Alabama courts, the lawyers have argued that the state withheld critical evidence involving Ray’s chief accuser, his alleged accomplice in the murders. The lawyers have asserted that Marcus Owden, who confessed to the three killings, had been suffering from schizophrenia when he testified, and that prosecutors withheld that fact from Ray’s defense team.
Prosecutors have denied the claims of misconduct, and they have prevailed in each of Ray’s appeals.
But the question of whether Ray was adequately represented during the penalty phase of his trial has shadowed the case almost from the time the jury returned its verdict for death. In appeals filed in state and federal court beginning in 2003, Ray’s lawyers have attacked Whatley’s performance, saying it failed to meet the constitutional standard required of defense lawyers in such proceedings.
Whatley failed to hire an investigator to explore Ray’s background. He withdrew a request to have Ray evaluated by a forensic neuropsychologist. There were family members who said they would have been willing to testify, but they were not found, much less put on the stand. School records weren’t researched, nor were records chronicling Ray’s experience in foster care.
“Ray was sentenced to death by a jury and judge who simply had no idea of who Ray actually is and how he came to be a defendant in a capital case,” read his 2011 federal petition for habeas corpus. “Whatley and Taylor prepared virtually no mitigation case at all, making it all but certain that jurors would recommend the death penalty.”
In their filings, Ray’s lawyers have laid out the details of what they say was a horrifying upbringing for a boy with an 80 IQ. Ray, 17 at the time of the first murders, had been beaten as he went from household to household from the age of 3 on — bouncing between Selma, Chicago, New York, Philadelphia, Virginia and South Carolina. After being left in an abandoned building in Chicago, he’d been taken in by state child welfare officials. He was then sent off to suffer more, sexually abused by his stepmother’s family as a toddler and encouraged by his mother to have sex with her friends when he was a teenager. He never made it past eighth grade. He’s since been diagnosed with schizotypal personality disorder, characterized by severe social anxiety, paranoia and unusual beliefs.
Robert Dunham, executive director of the Death Penalty Information Center, said there is no reliable national data on how often those convicted in a death penalty case get spared as a result of information made available to juries at the penalty phase.
“In most of the country, nobody keeps track,” Dunham said. “It’s one of our biggest gripes.”
There are, though, any number of cases — in Alabama and other states — where juries have opted against execution for even those convicted of the most brutal crimes. Barry Lee Jones, then 20, was convicted of sodomizing and murdering his 7-month-old, but an Alabama jury voted to spare him after defense lawyers and an investigator worked with his mother, sister, aunt, uncle and family spiritual adviser to put together his life story. Looking at school records, they found some evidence of mental disability. Whatley was the lead lawyer.
In Ohio, then-Gov. John Kasich commuted the death sentence of Raymond Tibbetts in 2018 after a juror wrote to him saying he had learned of the defendant’s abusive childhood only after he had voted for execution. The juror told Kasich he was upset that he didn’t have all of the information when he made his decision.
In federal death penalty cases over the last 30 years, juries have opted against execution in roughly two-thirds of them. Those spared include Zacarias Moussaoui, the man often called the 20th hijacker in the 9/11 terrorist attacks. A psychologist and friends testified about Moussaoui’s abusive childhood, his years in an orphanage and a diagnosis of paranoid schizophrenia.
With Ray’s scheduled execution days away, ProPublica interviewed a number of people connected to that disputed moment in the Dallas County Courthouse. Whatley, the trial lawyer; Europe Ray, the brother who said he would have been happy to testify in 1999; the appellate lawyer who to this day is trying to save Ray’s life; and jurors from the trial, including some who had voted for death and one who had not.
Whatley, for his part, stands by his work on Ray’s behalf. He had no access to much of the material later uncovered about Ray’s childhood. But he has his regrets, too. He said he should have hired an investigator specifically to explore Ray’s life, education and mental health. He’s done it in many of the death penalty cases he’s handled since, and in the 28 capital murder trials he’s completed, just one of his clients has been sentenced to death: Ray.
“I’ve done this a long time, I’ve been practicing law now for 34 years, and I know that I could have done better representing Domineque if I would have had somebody to guide our investigation of mitigation evidence,” Whatley said.
The Trial Lawyer: “I Mean, I Would Have Loved to Have Had It”
The murders happened 18 months apart, and they went unsolved for years.
First, two brothers, Ernest and Reinhard Mabins, 18 and 13, were shot dead in their Selma home in February 1994. They were found by their parents, but there were few leads and no arrests.
Then, in August 1995, the decomposing remains of Tiffany Harville, 15, were found by a farmer driving his tractor in a field outside of town. She’d been raped and knifed to death. Months later, a local man was jailed and charged.
But on Aug. 18, 1997, with the Mabins killings unsolved and the man arrested for the Harville murder awaiting trial, Owden walked into the Selma Police Department headquarters. Accompanied by his pastor, Owden, 21, said he and his longtime friend, Ray, were responsible for all three killings. They had wanted to start their own gang, and had killed the Mabins boys and Harville to establish their bona fides. Owden had found religion, and confessing was the right thing to do, he said.
Ray was quickly interviewed by detectives. After several hours, he made a videotaped confession, saying he had played a role in the three murders.
Whatley only came to represent Ray in the three murders after Ray’s first lawyers withdrew from the case, citing a dispute over whether Ray should seek a plea bargain.
In an interview, Whatley said the chances of Ray being acquitted seemed daunting. While Ray later recanted his confession, it would be admissible as evidence. Owden had agreed to plead guilty to all three killings to avoid the death penalty, and he was set to testify against Ray. Whatley said that almost from the start he saw avoiding the death penalty as his top priority.
“I try to educate my clients, and my client families, that this is what we do. It’s not like a regular criminal case,” Whatley said of his strategy in death penalty cases. “They hang up on the guilty, not guilty. Yes, it’s important. Every case is important, but the focus on the punishment phase is so much more important when the state is actively seeking the death penalty.”
Whatley was born in Dothan, a midsize city in the southeastern corner of Alabama, and later attended the University of Alabama Law School. While friends of his were studying wills and trusts and property law, he signed up to assist lawyers in court as a third-year student. He had no interest in paper pushing, he said, and quickly became enamored of the rush of standing up in front of a jury.
After graduating from law school in 1984, Whatley worked for Alabama Attorney General Charles Graddick. In the attorney general’s office in Montgomery, Whatley worked in the Capital Punishment Unit. He prosecuted one death penalty case himself, but he also spent time helping the office answer appeals in death penalty cases, where those convicted had alleged inadequate defense counsel. He’d review the work of the defense lawyers and question them during hearings.
Ray’s trial for the Mabins killings — in February 1999, five years after the slayings — lasted under three days. Owden testified. There was testimony about a fingerprint found at the home that allegedly matched Ray’s. Ray, against Whatley’s advice, opted to testify himself, and he denied killing the boys, friends of his family he had known for years.
The jury quickly convicted Ray, and the penalty phase came next. Whatley handled the presentation. Ray’s mother was the lone witness. She testified roughly as she would later: Ray’s childhood was rough and full of struggle. The jury deliberated for 50 minutes before returning a vote to spare Ray. The vote was seven for life without parole, five for death.
In Alabama, prosecutors need to persuade at least 10 of 12 jurors that a death sentence is appropriate. At least seven votes are needed to recommend life without parole. But at the time, judges had the power to overrule a jury’s recommendation, whether it was to spare the defendant or see him or her executed. The judge let the jury’s recommendation stand. The mother of the Mabins boys had told the judge at the sentencing hearing that she did not want to see Ray killed.
The Harville trial still loomed. Prior to the breakdown over plea bargain options, Ray’s first two lawyers had made two important requests of the judge in the Harville case: to be allowed to hire an investigator to work on the case, and to have Ray evaluated by an independent forensic neuropsychologist.
Whatley, with months to prepare, managed to persuade Ray not to testify. But Owden was set to take the stand again, and Ray, while he denied raping Harville, had confessed to stabbing her at least once with a knife. But Whatley did have some material to work with. No physical evidence had been produced placing Ray at the scene of the murder. A local man had spent 18 months in jail charged with the murder, accused of killing her because she refused to have sex with him.
Yet Whatley chose to withdraw the requests that had been made by the prior lawyers. Whatley told the judge there was no need for a psychiatric exam. He had met with Ray and saw no signs of a significant mental health issue. A state psychologist had met with Ray briefly and concluded the same thing. Whatley also said there was no need for any more money for an investigator. A former state trooper had done some initial work with the first defense lawyers, but Whatley said he’d been told there was nothing else to be investigated.
The trial in late July 1999 was as short as the first, and it ended with another conviction.
Whatley, in an interview, said he was comfortable allowing Taylor, his young co-counsel, to handle the penalty phase. She had been responsible for talking to people about Ray’s background, Whatley said, and was regarded as a promising young lawyer. Taylor today said she was qualified to make the presentation but was hampered by Ray’s refusal to help.
Whatley said Ray would not discuss his childhood, other than to say it was unremarkable, and he provided no contacts for others in his family who might testify. Ray’s mother had given the lawyers a short list of people from his neighborhood whom they could talk to. Whatley admitted he never looked into Ray’s experiences in school. He said he didn’t ask for a mental health expert to testify during the penalty phase because he didn’t see the need to. He said if he’d asked at the start of the trial for an expert to help pick the jury, the judge would have laughed him out of the courtroom.
Ray’s mother, Gladys, was the sole source of information about her son, Whatley said.
“We didn’t know of anybody else. We didn’t know of any other person there, and we had no other person,” Whatley said.
Today, Whatley has no trouble understanding how helpful it would have been to have known more.
“I mean, I would have loved to have had it,” he said.
But Whatley said the single greatest factor that led to the jury recommending death was that the judge allowed prosecutors to tell the jury of Ray’s prior conviction in the Mabins case. He said he objected to the admission of the prior conviction but lost.
“I knew as soon as they heard it that they were going to vote for death,” he said of the jury. “I knew they were going to do it. You could see it in their faces.”
Ray’s lawyers today fault Whatley for not having moved earlier and more aggressively to bar the prior conviction from being introduced. He could have filed a formal motion, they said, but he did not.
Whatley’s assessment of his work is mixed. Defense lawyers were paid poorly, even in capital cases. And lawyers were required to ask the judge for any and all resources. Whatley was paid just over $9,000 for his months of work.
Whatley does not cite his modest compensation as an excuse for his work, but he concedes without hesitation that, given the enhanced requirements for lawyers in such cases today, the job he was able to do in 1999 falls short of the constitutional standard. As a result, he emphatically believes Ray deserves a new hearing on his sentence.
“I just, I hate it,” he said. “I just don’t think it was fair the way it turned out.”
The Brother: “I Can Recall It Like Day One”
The Chicago police found Europe and Domineque Ray running in an alley in the fall of 1980. The boys, 5 and 4, told the officers they lived in a nearby abandoned building. Their mother, they said, had gone missing days before.
Inside the building, newspapers covered the floor. A mattress was the lone bit of furniture. The single appliance was a refrigerator. When the police opened it, it held a single can of Coca-Cola.
Europe would later describe a nightmarish existence in the building. Maggots. Rodents. Abusive boyfriends who beat Gladys. Europe remembers one of the boyfriends holding him above his head and threatening to throw him down a flight of stairs. Domineque looked on, frozen in place.
“You wouldn’t believe that a human could live there,” Verna Mullins, a great-aunt who lived in Chicago, said of the building.
For Europe and Domineque, the abandoned building in Chicago was but one stop on a journey of pain and dislocation. The boys had both been born in Selma to Gladys Ray. She had married at 17 and was soon overwhelmed after she separated from the boys’ father. She would struggle with drugs, poverty, abusive men and her own mental health problems, including at least one suicide attempt. The boys wound up in foster care with their great-aunt, then back with their father and then back once more with their mother in Selma. Europe told the authorities at different points that they were beaten or abused by everyone: mother, father, stepmother, boyfriends, siblings. Domineque was dressed up in girls’ clothes for sport. He was sexually abused, according to court filings made as part of his appeal.
“I can recall it like Day One,” Europe, in a recent interview, said of his shared childhood experiences.
Earl Cobb, the boys’ father, denied any abuse, saying they had always been “one big, happy family.”
Europe said he was shocked by the telephone call he got sometime in the early 2000s. Europe had escaped Selma and built a new life for himself in Indianapolis. He’d married and had a child. He had a job as the activity director at a senior center in the city. He’d put distance between himself and his family, including Domineque.
The call was from students at New York University Law School. Bryan Stevenson, the author of the book “Just Mercy,” was a professor there. Stevenson, widely known for his work on behalf of Alabama inmates on death row, also ran a death penalty legal clinic. Students investigated cases of men on death row in Alabama, and they were now at work on Domineque’s case.
Europe had known his brother had run into trouble in Selma. But he had no idea Domineque was facing the death penalty. And he couldn’t understand why he had never been contacted by any lawyers for his brother earlier. When he learned only his mother had testified during the penalty phase, his confusion and upset worsened.
“Maybe they thought my mom was enough, I don’t know,” Europe said. “But it would have been nice if they would have come and reached out.”
In part, he said, because he knew his mother would not tell the whole story of their childhood and her role in it. Europe said his mother, who died in 2012, had asked for forgiveness over the years. But she held her secrets tight. He’s not at all surprised she wasn’t going to disclose them in a public courtroom.
“I don’t think the truth was supposed to be revealed,” Europe said. “I think that was going to be something that was never revealed.
“But I remember it.”
In September 2006, over roughly two hours on the witness stand, Europe told his version of the truth. He was appearing as part of his brother’s appeal for a new trial, or at least a new sentencing hearing. It was not easy. He and his brother, he said in an interview, had never talked about their childhood traumas. He wasn’t eager to have the world know what he had suffered, or at whose hands.
Europe, in interviews and testimony, said there had been bright spots in their lives. Europe, as a student at Southside Middle School in Selma, had dreamed of enlisting in the Navy. He brought home A’s and B’s on his report cards. And while Domineque struggled — he had trouble writing because of a hand injury and didn’t seem to absorb schoolwork — he loved music and was on his school’s dance team, performing hip-hop routines during halftime at sports games. At the age of 13, Domineque got a job at the local animal shelter, where he would spend his days taking care of the city’s abandoned cats and dogs, Europe said. He got into mixed martial arts and worked out at a local youth center under the care of a former boxer
But back at home, his mother had abandoned him for her boyfriends. He’d had sex with friends of his mother’s to help her out financially, a social worker later discovered. And he grew apart from his family.
Domineque wound up done with school after eighth grade. He got into a series of minor scrapes with the law, charged with harassment or trespassing or burglary. And he developed a friendship with Owden — they bonded over karate and Jackie Chan movies — that changed his life forever.
Domineque has always denied ever being abused. He says that his childhood was nothing more than “average,” and that stories of trauma and exploitation are made up. Even his mother’s milder version of his difficult upbringing, he has said, was false, the result of her being on medication.
He was furious with Europe over the testimony he gave as part of a bid to save his life. Europe knows that Domineque is upset with him but maintains that they both lived the life he chronicled on the stand. The two talk by phone occasionally, and Europe hopes to visit his brother before the execution, but he will not attend it. As for whether his brother killed the Mabins and Harville, Europe says he’ll never know. “To be honest with you, I don’t know if he did it or he didn’t,” he said.
“He’s angry at me because I told the truth,” Europe says of his brother. “There were things that, I don’t know, he was ashamed of, or he didn’t want no one to know about, or whatever. But I wanted to give the true statement.”
The Juror: “I Just Hope I Didn’t Make a Mistake”
Once the door of the jury room closed behind them in July 1999, the 12 jurors took an initial vote as to whether to recommend death or life without parole for Ray. Again, 10 votes were needed to recommend death, seven for life.
Angela Rose, one of the jurors, said she and two other women voted to spare Ray. Rose, recalling the deliberations in a recent interview in Selma, said that over the next couple of hours, people took turns making their cases. Several said that a death sentence would ensure Ray would never walk the streets again. They didn’t trust the judge’s promise that if they voted for life without parole, Ray would never be freed.
Rose, along with Sandra Jackson and another woman whose name they couldn’t remember, argued that empathy was required. They said it should be God who dealt with Ray.
“Allow God to work this,” Rose said she told the jurors.
Rose says one of the other jurors quickly shot back something to the effect of “God might just take too long. We need to just go ahead and get this guy off the streets so he won’t hurt anyone else’s child.”
Soon, there were enough votes for death. Jackson, in an interview, said she switched her vote because she was convinced if the jury returned a vote sparing Ray, the judge would have overruled it. The other woman whose name they couldn’t remember joined Jackson, though for what reasons it is not clear.
Rose said she pleaded through tears: “Please, don’t do this. Don’t do this. Don’t do this.”
The jury for Ray’s trial had been selected in the course of a single day. A pool of some 120 people — housewives, retail workers, salesmen, state forestry employees — had been reduced to a panel of eight women and four men, eight of them white, four black. They had been asked questions about their views on the death penalty and if they knew anything about the case.
The performance of Ray’s lawyers during jury selection became one of the many elements of Ray’s appeals. Two jurors had admitted knowing the lead detective on the case, and another said he knew the expert forensic witness who would also be called to the stand by the prosecution. At least three said they had heard or learned about the case. Ray’s lawyers have argued that Whatley’s failure to use any kind of challenge to the seating of those jurors amounted to inadequate counsel.
Nathaniel Holmes Jr., questioned during jury selection, had said he did not know many of the details of the case. Holmes, then 53, is an Army veteran who later worked for United States Postal Service. In an interview, Holmes did say word of Harville’s murder had swept through town. His sister had a local store that sold beer, and she had grown familiar with the teenager, often kicking her out, Holmes said.
Born in Selma in 1946, Holmes shared his name with his father, Nathaniel Holmes Sr., who is said to have been the first black police officer on the city’s force. His mother worked as a seamstress in the city’s downtown.
Holmes, in an interview, said he had never been called for jury duty before and had hoped he would not be chosen.
He recalled making his way to the jury box and realizing he actually hadn’t thought much about the death penalty before. But he remembered ultimately feeling confident he could recommend it, if necessary. It was, he said, an appropriate punishment for those who violated one of the Ten Commandments: Thou shalt not kill.
“Young and black,” Holmes said he first noted upon seeing Ray in court. The 22-year-old sat with his head in his hands, expressionless. Whatley said he had instructed Ray not to show emotion in front of the jury, something Holmes said he took as a sign that he had no remorse.
The deliberations on guilt or innocence did not take long. Rose said some jurors argued that Ray must have killed Harville because he didn’t testify. “He was evil,” one juror remembered thinking. Rose, the woman who held out for sparing Ray, at first refused to find him guilty. To her, Ray’s blank expressions seemed like the look of helplessness and confusion. But she eventually relented, a decision she would not discuss today.
Holmes, having voted to convict, voted for death.
Rose, hearing about Ray’s childhood, said the fuller picture of his life did not surprise her, and she thinks if the jury had heard it in 1999, it might have made a difference. Jackson agreed and now regrets having changed her vote.
In all, ProPublica contacted nine jurors from the case. Two had died, and the other could not be located.
One juror who served on the jury in 1999, Norman McDonald, a grocery store supplier, said he was not interested in hearing all the details of Ray’s upbringing, information that had only come to light in the 20 years since Ray was sentenced to death. “I don’t want to hear anymore. It wouldn’t have made a difference. He had no business killing that child,” McDonald said.
Maple Perkins, the wife of Cecil Perkins, one of the black men on the jury, said her husband wasn’t interested in talking about the case. But in an interview, she said she had known Harville’s family well. Perkins had not disclosed that during jury selection. Cecil Perkins would not be interviewed about his jury service.
Tammy Fancher also served on the jury. She now owns a gas station and deli on state Road 14. She initially said she didn’t remember much about the case and didn’t want to talk about it. But then she did, saying bluntly, “I think they should fry his ass.” She said she looked Ray up on the internet often and knew he was scheduled for execution on Thursday.
“I can’t believe we’ve left his ass in prison and spent all this money on his ass when he should already be dead,” she said. As for Ray’s childhood, Fancher said it would not have changed her decision. “Just because you was raised in the ‘hood and you ain’t got no damn money don’t give you the right to kill people,” she said.
Holmes, however, was one juror interested in hearing about Ray’s life. Now 72, he had little specific recollection of Ray’s mother’s brief testimony, and he said that, at least to date, he had never regretted his vote for the death penalty. He’d prayed over his decision, he said.
Told Ray’s lawyers had researched his background, Holmes was curious. “So what did he find out?” Holmes asked.
An impoverished, violent household, he was told. It’s the account of Europe, Ray’s brother, who said he would have been eager to testify about it in 1999.
“Lord, have mercy,” Holmes said occasionally.
Sexual abuse, he was told.
“Lord, have mercy,” he said. “You don’t have to take me through no more.”
Holmes was asked whether he would have wanted to know such things back in 1999.
“They brought these kids in the world and forgot all about them,” Holmes said of Ray’s parents. “Ain’t no love there, no sympathy, no nothing there.”
Holmes criticized Ray’s lawyers for not bringing the information to the jury. Had they, he said, “presented all of this to the 12 people that were there, then maybe we would have reconsidered.
“You can’t go out there and half-ass do a job. You can’t do it,” he said.
“I just hope I didn’t make a mistake,” he added.
Did he regret his vote?
“Yeah,” he said.
The Last Advocate: “You Know, It’s a Damn Hard Question”
When Peter Racher received a letter inviting him to attend a luncheon hosted by the American Bar Association’s Death Penalty Representation Project in 2002, he threw it away. Racher, a lawyer in Indianapolis, was busy. And his specialty was environmental law, not death row appeals.
But another lawyer at Racher’s firm got the same letter and was intrigued.
“You ought to take that letter out of your trash can and give it some more thought,” he told Racher.
Persuaded by the promise of a free lunch, Racher soon found himself in the chambers of Larry McKinney, chief judge of the southern district of Indiana. Representatives from the Death Penalty Representation Project told those gathered that there were people on death row in Alabama who did not have lawyers. Alabama, they said, doesn’t provide post-conviction counsel for death row inmates.
Racher signed on, and he was told about a death penalty inmate who was nearing the deadline to file a post-conviction appeal and didn’t have a lawyer. Students at NYU had discovered that the information about the defendant’s background presented to the jury in 1999 consisted of 3 1/2 pages of testimony from his mother. Nothing more.
Racher went to meet with Ray at Holman Correctional Facility, a maximum-security prison in Atmore, Alabama. Ray was nervous. He was aware this was Racher’s first capital case. But he accepted the offer of representation.
“He’s not entitled to me — he’s not entitled to an environmental attorney from Indianapolis,” Racher said. “He deserves far better.”
Three years later, Racher, having filed a voluminous appeal of Ray’s conviction and his sentencing, was in front of the Alabama judge who had presided over Ray’s trial in 1999 for the Harville murder. Racher attacked every aspect of the state’s case and Whatley’s defense — what he argued was the lack of physical evidence in the Harville murder, what he said were Whatley’s errors and omissions, what he said were the unexplored inconsistencies in Owden and Ray’s confessions.
Racher called nine witnesses to buttress his argument that Ray had been denied adequate representation during the penalty phase, including Europe Ray; Regina Marshall, one of Gladys Ray’s best friends who had watched her endure abusive boyfriends again and again; and Mullins, the great-aunt who delivered a video deposition chronicling her recollection of the family’s time in Chicago. He put on a neuropsychologist who said Ray’s childhood traumas were so great he had buried them. Racher also called Catherine Boyer, a psychologist who testified she had diagnosed Ray with schizotypal personality disorder. He put Whatley on the stand and had him admit how little of Ray’s life he knew.
At the end of the proceedings, Judge Tommy Jones praised Racher. “I think you have done a fantastic job,” he said.
Racher thought it had been a success. And his confidence wasn’t without some cause.
In 1984, the U.S. Supreme Court decided in Strickland v. Washington that defendants were denied their Sixth Amendment right to counsel when two conditions were met. First, the attorney’s performance is deficient, and second, the deficient performance must have been so damaging that there is a reasonable probability that the trial’s outcome would have been different. The opinion was important, but its vagueness left many wondering what exactly a deficient performance in a capital murder case entails.
In 2003, the Supreme Court cleared this up in Wiggins v. Smith. In its opinion, the court said that a lawyer’s performance is deficient when it falls below established norms at the time of the trial. Lawyers must examine their client’s background, such as medical history, educational history, employment and training history, and family and social history, to obtain all information that is reasonably available for the penalty phase, it said.
And two years later, the Supreme Court decided in Rompilla v. Beard that attorneys cannot solely rely on their client and his or her family’s word when it comes to investigating mitigating evidence. Regardless of what a client says, attorneys have a duty to conduct a full investigation, the opinion said.
Racher’s confidence, in the end, was misplaced.
On Aug. 6, 2007, Jones denied the appeal. Referring to testimony about Ray’s childhood, the order read: “The Court finds that there is no reasonable probability that more details about Ray’s home life would have caused a different result in the jury’s recommendation at the penalty phase of the trial.” He added that his belief death was the right outcome would not have been changed either.
The Alabama Court of Criminal Appeals affirmed the denial in February 2011, followed by the Alabama Supreme Court in September of that year. Racher then filed a petition for habeas corpus in federal district court on Sept. 19, 2011. The 138-page document included more than 50 pages in which Racher argued that Ray’s trial attorneys were ineffective for failing to put Europe Ray, other family members and experts on the stand during the penalty phase.
The district court turned down the petition, as did the 11th U.S. Circuit Court of Appeals. The judges said that they were “troubled” by Whatley’s minimal investigation, but that “there is no ‘reasonable probability’ that at least two jurors would have changed their recommendation and the sentencing judge would have ruled differently.”
Frustrated, Racher decided to travel to Selma to meet with Jones, who had returned to private practice. At dinner, Racher said, he couldn’t believe that new details of Ray’s life would not have affected Jones’s sentencing decision. How could it not?
“You know, it’s a damn hard question,” Racher recalled Jones saying. Racher said he asked Jones to sign an affidavit saying he had misspoken in court when he said his mind would not have been changed. He didn’t budge.
At his law office in downtown Selma in January, Jones declined to discuss the case. “I’m not really interested in talking about that. It’s over and done. You have a good day,” he said before shutting the door. He did not respond to a specific question about Racher’s story of their dinner conversation.
Racher’s last hope is what he says is a more recent discovery: that the state knew Owden was suffering from schizophrenia when he confessed and later testified. He’d first learned of that possibility when he visited Owden in prison in the spring of 2017. And he has introduced in a court filing Department of Corrections medical records that he says prove the point — the kinds of records Whatley had requested at trial and that Racher had been seeking for years.
To date, the bid has failed. The Alabama courts have held that Ray and his lawyers had to have discovered the information earlier.
“It’s enormously frustrating and frightening as a lawyer, as an American,” Racher said. “It is shocking that in this country we commit people to their deaths despite open and obvious evidence that there has not been due process.”
Racher, 62, has known Ray for 16 years. He said he and his firm have put more than $2 million worth of work into the case.
“I really do care for him,” Racher says of Ray.
On Nov. 8, 2018, Racher received a call from Ray. He had been summoned to the warden’s office in shackles and read his execution warrant. The state had scheduled his execution for Feb. 7, 2019, and sent him off with a physician for an examination in preparation for its administration of lethal drugs.
In January, Racher received another call from Ray. He had been called down to warden’s office again to provide a list of people he wanted her to permit to visit him in his last week and the spiritual adviser he wished to counsel him in his final moments. Ray wanted an imam that visited the prison regularly, not the chaplain, he told her. It was against Alabama’s policy to allow a religious leader other than a chaplain in the execution chamber, the warden told him, refusing to provide him with a copy of the policy.
Racher’s team filed for a stay of execution, saying the courts needed time to properly consider Ray’s request for an imam. On Feb. 1, that request was rejected.
“I’ve thought that maybe the death penalty is something that should exist because it represents something about our expression of horrific crime committed by people who are beyond, you know, beyond rehabilitation,” Racher said. “But this whole experience with Domineque’s case has convinced me that no matter how much uncertainty a person has about the morality of capital punishment, it’s an absolute indisputable fact that we as a people are incapable of administering it in a way that is fair and just.”
The Inmate: “Man, Who Are They Talking About”
Ray, 42, is set to be the 64th inmate executed by the state of Alabama since 1976. In July, he was given a choice: to die by lethal injection or by inhaling deadly amounts of nitrogen, an untested method for execution. Ray, who years ago converted to Islam, said his faith would not allow him to play a role in his own death, and so he is scheduled to be killed by lethal injection, the state’s standard method.
Alabama uses a three-drug combination, but the way they are actually administered is a closely guarded secret. In the past two years, there have been complications with a number of executions. Ronald B. Smith heaved and coughed for 13 of the 34 minutes it took to kill him, according to accounts of those who witnessed the execution. In February 2018, executioners spent nearly two hours unsuccessfully trying to find a vein in Doyle Lee Hamm as he continued to lose blood, before officials ultimately decided to cancel the execution.
“I’m not going to pick a way to die,” Ray said. “That’s against the law in Islam, that’s against my belief, and that’s against my faith.”
Last Friday, after losing his effort to have an imam be present with him at his execution, he said he had reconsidered and now was willing to be killed by what is called nitrogen hypoxia. The state in 2018 had given the option to all death row inmates but said they had to decide in a prescribed time period. Fifty-one inmates opted for nitrogen hypoxia, recognizing that it will take years for Alabama to figure out how to carry out the untested method.
In a telephone interview in January, Ray insisted on his innocence, and he remained confident the discovery of Owden’s possible mental health issues would result in a stay of his execution. He insists, as well, his childhood was just fine. His parents were great, spiritual people.
His routine as his execution approaches, he said, is consistent. He wakes up in his cell about the size of a small bathroom around 1 a.m. He said he prays and meditates, then reads and writes letters to family and friends. At 3:30 a.m., breakfast is served. Some days, he goes outside for a walk. On Fridays, he says he attends an Islamic service. Ray said he is weeks away from being certified as an imam through a California Islamic University.
He talked in the interview about what he says are the many indignities of incarceration, but it’s the most basic insult he hopes the state gets right if he is executed. For years, the state, in court papers and prison records, has repeatedly misspelled his given name, Domineque.
“Every time I read it, when I read my documentation for court, I’m like, ‘Man, who are they talking about?’ Are they talking about me or are they talking about somebody else? It’s something else.”