The MacNeil/Lehrer Report; The John Evans Case

ROBERT MacNEIL: Good evening. At one minute past midnight Central Standard Time tonight, John Evans will die in the electric chair in Alabama unless there is a last-minute stay. And as we begin this program his attorneys are anxiously awaiting word of such a stay. Evans, a twenty-nine year old murderer, would be the first American executed since Gary Gilmore was shot by a firing squad in Utah two years ago. Evans has refused himself to appeal for clemency, saying he wants to die. But his mother, Mrs. Betty Evans of Beaumont, Texas, appealed today to the U.S. Supreme Court Justice William Rehnquist to grant a temporary stay of execution, and it is word on that appeal that is now being awaited. The lawyers argued that her son was incapacitated and unable to make the argument for himself. The appeal was supported by an affidavit from a psychiatrist, who said Evans was treating the situation as a game rather than a reality. Alabama Governor Fob James could also order a stay, but he said he would grant a hearing only if Evans asked for it.

Evans was convicted of killing a Mobile, Alabama pawnbroker while his children looked on, in January 1977. He`s admitted committing at least thirty armed robberies and nine kidnappings. Tonight we hear Evans` own extraordinary statement on why he wants to die, and talk to people in Alabama with different views on his execution.

Yesterday John Evans was brought out of his death row cell at Holman Correctional Institution at Atmore, Alabama. Manacled to a prison official, he made this statement.

(Yesterday.)

JOHN EVANS, Convicted Murderer: This interview is just going to be a statement of some things that I think need to be said. Many people continue to ask why I want to die now when I could fight the death sentence through the courts, and there are several reasons for that. I choose this now to show the barbarity of electrocution and the death penalty in general. What is to be gained in taking my life now or the lives of the others on death row in Alabama or any other state? Nothing. Society says I have a debt to pay. We are paying, and have paid, the debt. Will our death bring back a life? Will it stop crime? Will it rehabilitate? No way.

Stripped of all legal jargon, it boils down to the fact that there remains one motive only, and that`s revenge. You say you`re a Christian society, but it`s kind of strange to me you do not follow the principles of your founder, who spoke of love, understanding, mercy and forgiveness. Few, if any, crimes are done in passion, with malice, yet you will kill me in cold blood in the name of justice.

Thousands today ask, am I prepared to meet God. I have met God. I have met Him in inmates, in criminals, in jails and in people, and in decent, honest people. He knows me, and He knows what I am. Next Sunday many of you who hear me now will go to church. Is that where you find God? I don`t believe He is to be found only in the pages of a book or the four walls of a building. There are only three persons who know my innermost thoughts: God, myself and my chaplain.

I choose to die because I want to be free. I must have my physical freedom, it`s an obsession with me. There is a driving force within me that demands that I do be free. But in doing so I want it known that the State of Alabama is about to put me to death under the 1975 statute which has not yet been declared constitutional. Let them, the officers of the State, look me in the eye when the switch is thrown and then live with that memory. Who has committed the greater crime?

To the young, those who think I`ve led a glamorous life: bull. I have robbed, buglarized, stole, murdered, and always just been a few feet ahead of the law. Oh, yeah, you know, it was fun, I enjoyed it. But I always knew that I would end up here or I`d go down in the street. I couldn`t back out, and few of you will if you start on the road that I chose. Don`t do it. Whatever you do, don`t do it.

I want you to know that there are laws in society -needed laws -- and there always will be. If you think you can beat the system, you`re wrong. Dead wrong. This is the only place that you`re ever going to end up. There is no alternative. I am going to die because I was stupid enough to take a chance on losing my freedom.

Any family I have hurt, and particularly the little children who have suffered by what I have done to them, I say I am deeply, deeply sorry, and hope that someday they will find it in their hearts to forgive me. My death is my one constructive, positive act in a blasted life. If I accomplished anything by this death, if I can persuade you not to start a life of crime, then I can die tomorrow knowing that my life was not all wasted. The world gives us a lot, and we ought to leave it a little better when we go; I hope I do. It bothers me that others are hurt by what I am about to do -- my family, my friends; and they number in the hundreds. I just don`t care about myself.

It is now three years since Judge Johnson handed down his ruling on the conditions of prisons in Alabama. Little has been done to correct any of these abuses. As far as death row is concerned, some privileges in effect three years ago have been withdrawn. The United States Supreme Court struck down the death penalty as cruel and inhumane. The State of Alabama was told to write a new statute. It has not yet been tested in the U.S. Supreme Court. Regarding the living conditions on death row, the State of Alabama has already told these men that it is going to take the most precious thing they own: it`s going to take their life. Isn`t it enough for these men to know that they face the chair? Why should they be subjected to indignities to their person? Aren`t they human beings? These men, it is true, have violated the human rights of others, but they should not for a prolonged period of time be denied human rights granted every other prison inmate in the State of Alabama. They probably will pay the ultimate debt to society. Society says they must die for their crimes, yet the living conditions existing on death row cause those men to die a little every day.

You know that I have helped write a lawsuit with regards to the living conditions here at the prison. However, I wish to go on record now that Warden Joe Oliver, to the best of my knowledge, is not responsible for those conditions. His orders come from Montgomery; he just does his job and carries out those orders. To me, he and Deputy Warden Charlie Jones, considering the circumstances, were kind and compassionate to me and my family. I wish to publicly thank them for all they have done for me.

The conditions in this prison are brutal, dehumanizing, and should not be tolerated by a so-called civilized society. The Governor of Alabama, the Honorable Fob James, made political promises regarding prison reform. He says he is a fair man- he says he is a Christian. If this is true, why do these conditions still exist, since he now is in complete control of the prisons of Alabama? It is my dying wish that Governor James will waste no time in implementing his promises: that is, to stop the cruel conditions in all prisons in Alabama.

You of the press and the media have followed my story from the arrest to the present. Many of you were fair; unfortunately, some of you did not take the time, nor did not ask the right ques tions, to get the honest picture of me, or of what I`m trying to accomplish. At the risk of repetition, let me just state a couple of things.

I choose death to a hell on earth in prison. I want and am obsessed with my personal physical freedom. By this death I want to dramatize the barbarity of the death penalty. I want my death to be a lesson to the young who think crime is fun. This is where crime has brought me.

Last Saturday the Attorney General of Alabama, Mr. Graddick, came to see me. He asked that I give permission to have my death shown to you, the press, on closed circuit TV. He also asked me to allow a tape to be made of my electrocution. He proposes that that tape be shown to young criminals as a deterrent to crime and as an educational experiment in teaching young offenders the final end to crime; and this is the ultimate, final end. I will agree to Mr. Graddick`s request on the following conditions: first, that the tape he wishes to have made will have a covering affidavit signed by Mr. Graddick and stating that it will and can only be used for the purpose he mentions. Under no circumstances can it be used for commercial or political gain. That another tape of my death be made simultaneously; that the second tape and a similar affidavit as to its use be given immediately after my death to Father Duignan. He will give it to the Southern Coalition on Prisons and Jails to be used by them in their fight against capital punishment. This tape also may never be used for commercial purposes.

Now I`ll say goodbye to my friends, to my family. I`ve given my body to the University of South Alabama Medical Center for medical research purposes, I`ve given my soul to God. I just ask that you pray for me. Thank you.

MacNEIL: That was John Evans, speaking yesterday outside the prison at Atmore, Alabama. While that tape was running, we have just heard a few minutes ago that Supreme Court Justice William Rehnquist has granted a stay of execution to Mr. Evans until April the 13th. So he will not die just after midnight tonight as he was scheduled to, in Alabama. He will not die at least until April the 13th.

We turn now to Dennis Balske, staff attorney of the Southern Poverty Law Center. The Center was representing Mr. Evans until recently, but now represents the condemned man`s mother, the mother who today made the now successful appeal to Supreme Court Justice William Rehnquist. Mr. Balske is with us in the studios of Alabama Public Television Network in Montgomery. Mr. Balske, I presume you`re rather pleased with the news we`ve just heard.

DENNIS BALSKE: Oh, we certainly are.

MacNEIL: Did you believe that Mr. Evans, whom we`ve just watched, was competent himself to make the decision on whether he should die or not?

BALSKE: No, I don`t believe he was. Although you can see he`s a rather intelligent individual, our information from both Father Duignan, who you saw standing beside him, and from a psychiatrist who has watched the case and Mr. Evans closely over the past few months, was that he really is not competent to make that decision for himself; and his mother`s come forward and asked us to intervene for her as the next friend of the court and to seek to challenge the constitutionality of the Alabama law.

MacNEIL: Why do you believe he was not competent to make the decision?

BALSKE: Well, it`s his state of mind at the present time and over the last couple of months; I suppose my answer just would be what I feel to be one of the obvious indications, which is the fact that this intelligent human being who appears as intelligent as all of us seated here this evening wants to die in the electric chair rather than spend his life in prison. Although that`s an oversimplification, that`s just one of the indicia of what we believe to be a sign of his incompetence at this time.

MacNEIL: I read on the Associated Press today that Father Duignansaid that if there were a postponement it would change Evans` mind and that he would begin to fight for his life because he would regard postponement as an act of God. Do you think that observation has credibility?

BALSKE: I really don`t know. We have heard the same thing, but of course we have no contact with Mr. Evans. We do have contact with Father Duignan, and I think anything`s possible at this point and it is very possible that Mr. Evans would at this point change his mind and join, because he has changed his mind on different occasions previously.

MacNEIL: And one of the things he changed his mind about was asking you to stop representing him, your law center, after you had made an appeal to the Supreme Court -- which it refused to hear, I gather -- on the constitutionality of the Alabama law.

BALSKE: That`s correct.

MacNEIL: Now, why do you believe that the Alabama death penalty law is unconstitutional?

BALSKE: There are two basic reasons; the first is a very simple one, it`s what we call the kill-`em-or-set-em-free provision of the law, and that is that in a capital murder case in Alabama, if a person`s accused of capital murder the jury can only consider -- no matter what the evidence is -- whether or not that individual is guilty of capital murder, or, if they`re not convinced it`s capital murder -- for instance, they believe it`s manslaughter or something like that -- they must then set him free even though that person is a manslaughterer or what have you. There`s no lesser included sentence provision in the Alabama capital punishment statute. And a second basic reason is that the sentencing provision of the statute is such that the jury, if they find him guilty, must return a death verdict. What I mean by that is that if they find him guilty and they sentence him to death, then information is presented to a judge at a later sentencing hearing, putting the onus on the judge to set aside what would be looked upon as public sentiment, the jury verdict, in order to issue a life sentence. So when he considers life versus death, it`s coming to him in a posture of, "The jury has spoken and said death, and I`ve got to set that death sentence aside in order to give a life sentence," rather than a clean slate coming to the judge and the judge then deciding from that clean slate whether or not to give either the life sentence or the death sentence.

MacNEIL: Finally, Mr. Balske, do you believe there are grounds for executive clemency in this case by the Governor of Alabama?

BALSKE: Well, that`s difficult to say at this point in time. Now that there is time left in order to put together a clemency hearing, I would hope that there is. Certainly we hone to bring people forth, experts in the field, to inform the Governor on, number one, what we feel to be the unconstitutionality of the Alabama law; number two, a basic error which occurred at the trial of John Evans; and number three, any and all mitigating circumstances in Mr. Evans` case itself which we believe might point to clemency.

MacNEIL: Well, thank you, Mr. Balske. We`ll come back. I might just apologize to our viewers for the quality of the sound you`re hearing. This program was arranged very quickly, and we are operating on a telephone line instead of the normal broadcast lines. That`s the reason for the hollow quality of the sound.

Challenges to the constitutionality of the death penalty brought a halt to executions in the United States in 1968. In 1972 the U.S. Supreme Court banned capital punishment on certain grounds. Alabama was one of many states which drafted new laws to meet the Supreme Court`s guidelines. In 1976 the high court ruled that capital punishment was constitutional. One of the legislators who voted for Alabama`s death penalty law was Rick Manley, speaker pro tem of the State House of Representatives, and chairman of its Judiciary Committee.

Mr. Manley, what are you sentiments on hearing of this stay of execution?

RICK MANLEY: Well, I`m pleased for any opportunity for judicial review that should and could be made; I have no objection to that, but I still strongly feel that the law enacted by the State of Alabama is a valid, good and accurate law, is one that should be upheld and one that can and will be upheld in any court. I don`t blame Mr. Balske for taking the position that the law is unconstitutional; if I were representing his defendant, I sure would do the same thing. I would take issue with his position that the only choice that the jury has and the court has in a case of this nature is to go forward with a death penalty. This is a statute that the district attorney or the prosecuting attorney in Alabama makes a choice: to either prosecute under Alabama`s death penalty statute or to prosecute under other laws of the State of Alabama which would allow murder or manslaughter. The district attorney makes that choice based on the severity of the crime, such things as murder in an act of rape, murder concurrent with burglary, or murder concurrent with robbery or matters of this nature. And in this case, obviously the district attorney in Mobile County determined that this was, in his opinion, one of those crimes that should be prosecuted under this law.

MacNEIL: So you don`t have any doubts about the constitutionality of the law that you voted for.

MANLEY: Well, no, I don`t. The law was basically drafted by the former attorney general of the State of Alabama, was patterned after laws in one or two other states -- I believe North Carolina was one of the states, I`m not certain--but other states that have had their law taken to the U.S. Supreme Court. We feel that the law is sound, that it`s valid, and that it should be enforced and upheld.

MacNEIL: Let me ask you this: did you think, or do you still think, that Mr. Evans should die if he says he wants to?

MANLEY: I think this is a judicial determination to be made based upon and after the jury of twelve men and women in this state have made a determination under the law, having heard the evidence.

MacNEIL: Because I read today that the Governor had said he wouldn`t have a clemency hearing unless Mr. Evans asked for one, which kind of seemed to me to leave it to Mr. Evans to decide. What`s your interpretation of that?

MANLEY: I think Mr. Evans has clearly stated that he is guilty, not only of this crime, he`s openly stated that he`s guilty of this crime and many others. He has made statements, I`m sure you`ve seen them on public television, that if he had the opportunity or if this situation arose again, he would do the same thing.

MacNEIL: And you don`t have any doubts about his competence to make this decision at this point.

MANLEY: Well, I`ve not been involved in the case and I have no basis or information to go into his competence, but I`m sure that the judicial process has evaluated this and I think that they`re the ones that should and have made that determination.

MacNEIL: Do you see any grounds for clemency from your Governor in this case?

MANLEY: Well, I think that question is moot at the present time, since as I understand the stay has been granted temporarily.

MacNEIL: It is; I see. And if Mr. Evans should be executed on the thirteenth or after that, will that, as it were, kind of remove a roadblock to more executions in Alabama-- because this would be the first under your new law, would it not? -- would this make more executions likely, because you de have other people waiting on death row, don`t you?

MANLEY: Yes, we do. I don`t know, I don`t think so. Utah executed someone two years ago, and that`s been the only one in that state. Whether they have others on the death row, I do not -- I think this would be something that would be determined based upon the judicial process of the state.

MacNEIL: I see. Well, thank you, sir. As you heard, Evans made strong charges about conditions in the Alabama prisons. Prison reform has been a major political issue in the state, and one of those who worked to improve conditions was Ira DeMent, a lawyer in private practice now in Montgomery. Mr. DeMent served for eight years as U.S. Attorney for the Middle District of Alabama and received a Rockefeller Award for his work on the prisons issue. Mr. DeMent, do you have a personal opinion on whether or not Mr. Evans should be or should have been executed?

IRA DeMENT: No, I do not, because I`m not familiar with this case; but I think that since the jury pronounced him guilty and set the penalty at death and the case has been reviewed by the Supreme Court of Alabama, by the Supreme Court of the United States and apparently is again going to be reviewed on the issue of the constitutionality of the Alabama statute, that that`s really not a question that I would care to answer.

MacNEIL: Yeah. Do you have a position yourself on the death penalty?

DeMENT: Yes, sir, I have a position. I don`t think you can justify it morally or religiously, as a Jew or a Christian. I think, however, that I am very much in favor of it, for this reason: having been a district attorney for ten years and assistant before I was United States attorney, having been the chief of a criminal division in the office of the U.S. attorney, having represented the Montgomery Police Department for five years as its legal advisor, I know that people who commit serious and horrible crimes, ninety-nine percent of the time -- and any prosecutor will tell you this -- have done it before. And when they get out of prison they`ll do it again. And if you electrocute them you ensure that they will no longer commit serious and horrible crimes against innocent persons. That`s the basis on which I favor capital punishment. I do not favor it -- and I do not think you can justify it -- on a religious or a moral ground.

MacNEIL: Coming to the constitutionality or not of the Alabama law, do you believe that a state law needs explicitly to be tested by the U.S. Supreme Court before a man can validly be executed under it?

DeMENT: No, sir, it does not. There are many, many laws on the books that have never been tested by the United States Supreme Court which are enforced every day. I do not think that the law -- as a lawyer, I can tell you the law does not have to be tested. You`re asking me as an individual whether I think it ought to be tested?

MacNEIL: Well, we heard Mr. Evans say it hadn`t been tested, and we know that there was an attempt by his attorneys to test it and the Supreme Court refused to.

DeMENT: Yes, sir.

MacNEIL: Well, let me ask you this: how sound do you believe Mr. Evans` charges about the prison conditions in Alabama to be?

DeMENT: I think the prison systems in Alabama have improved since the order of the United States District Court for the Middle District of Alabama; they still have a long way to go. The main thing they need to do is to develop alternatives to incarceration. There are worlds of people in the Alabama prison system who could function outside the prison system and repay their debt to society without being incarcerated at a great cost to the taxpayer.

MacNEIL: I`d like to ask the other views. Mr. Balske, do you believe that Alabama can validly execute a man for the first time under its new law without having had that law explicitly endorsed by the Supreme Court?

BALSKE: Well, yes, unfortunately they can. Our hope here, and everything we`ve been fighting for, is that they won`t. The law is such, as with Gary Gilmore in Utah, that an individual can, if he wants to waive, as Mr. Gilmore did, all of his constitutional rights and get on with it, that that person can, and in fact he was. And Mr. Evans is attempting to follow that same particular path. And what we`re saying to the court is that this statute is so unconstitutional, it is so bad, that you`ve got to take a look at it, and we`re confident you`re going to strike it down when you do; so look at it now, strike it down now, and let`s not unnecessarily lose a life, not even one life, before we rule on the constitutionality of that statute.

MacNEIL: Can I come back to the question I asked at the beginning? Mr. Evans said he didn`t want a clemency hearing, he wanted to die. There were some similarities with the Gilmore case. Mr. Manley, I`ll start with you: should a man be denied a clemency hearing by competent doctors, psychiatrists and others simply because he says he doesn`t want one? In other words, should it go on his word? What do you think?

MANLEY: Yes, I think he can have that prerogative; I think he should be allowed that prerogative. And in this case he`s made that decision.

MaCNEIL: What do you think, Mr. DeMent, on that question?

DeMENT: I would agree. If he`s competent -- and I have no way of knowing whether he is or not, but assuming that he`s competent -- he`s in control of his case, he`s in control of his life.

MacNEIL: And I presume you do not agree with that, Mr. Balske.

BALSKE: That`s right. I don`t think that we need to presume that he`s competent. What we need to do right now is let`s all stop and let`s examine that question, and let`s see if he`s competent. And I believe that`s what Justice Rehnquist had in mind when he issued his stay, although I`ve not seen the order. But it just doesn`t make sense to go ahead with it and presume he`s competent and let him waive that right. Let`s look and see if he is, and if he is competent, then that`s another ball game; but if he`s not competent, let`s let his mother proceed in his behalf and let`s take a look at the whole thing, let`s take a look at that statute and see whether or not it`s constitutional. Because Mr. Evans is still going to be there, and there`s just no rush to go ahead with the execution before we get a ruling, a definite ruling, out of the United States Supreme Court that the statute is or is not constitutional. And we want to have that opportunity to argue to the Supreme Court of the land that this statute is, as we feel, unconstitutional.

MacNEIL: Right. Finally, back to you, Mr. DeMent, a question I asked Mr. Manley. There are -- how many men are there on death row in Alabama now? Does anybody have that figure in mind?

DeMENT: Yes, sir, forty-one.

MacNEIL: Forty-one. Will Evans` execution, if it takes place, oven the door to further executions in Alabama?

DeMENT: Well, I wouldn`t think so, not to the extent that there`ll be masses of people executed, because all these people are represented by counsel, and I`m certain that competent lawyers will continue to challenge the constitutionality of the statute and to challenge the capital punishment aspects of their cases.

MacNEIL: Well, thank you, gentlemen, all of you -- Mr. DeMent, Mr. Manley and Mr. Balske, for joining us this evening. We`re very grateful to you. That`s all for tonight. We`ll be back tomorrow night to examine the energy message President Carter is broadcasting to the nation this evening. I`m Robert MacNeil. Good night.