Parole Board Frees Man Courts Wouldn’t : Lawyers Played by Rules as Justice Failed Inmate

Attorney Pat Beall felt torn by nagging doubts.

His client, William (Pop) Campbell, had privately confessed to him that he alone killed a barber during a robbery in this small town near Athens in the piney woods of Georgia’s Madison County. But another man, Henry Drake, had also been convicted of the murder, largely due to Campbell’s testimony. An innocent man was sitting on Death Row.

Drake was not his client, Beall reasoned. Lawyers had to focus on their own client’s best interests. Beall’s task was to protect Campbell from the electric chair. A public confession would blow his chances.

“Just shut your mouth,” Beall told Campbell. “Don’t tell anyone else.”

Despite his hard stance, Beall felt he had no easy answer--he saw himself both as a hired gun and an officer of the court. He had purposefully avoided ever seeing Drake, for he did not want the issue cast in the form of a flesh-and-blood person. In the spring of 1979, feeling uneasy, he called the Georgia State Bar Ethics Committee, seeking guidance.

The voice from the state bar walked Beall through the state ethics code. Represent your client solely, the voice said. But do not let him tell any further lies. As long as your client has not told lies while you’ve been representing him, you are under no ethical obligation to make things square with the courts about a lie he told in the past.

Beall agreed. He would let Drake’s attorney worry about Drake, but he would never put Campbell on the stand to testify again about the events of Dec. 5, 1975.

He would have stuck with that strategy, Beall said later, “but for the Christians.”

The Rev. Murphy Davis of Atlanta’s Clifton Presbyterian Church had started visiting Campbell in January of 1978, as part of that church’s prison ministry. During their first visit, Campbell had told her everything. Later, he confided in a lay member of Davis’ church, Carolyn Johnson, who had taken to visiting Campbell with her infant, bouncing the baby on Campbell’s bony knee--an unlikely but affecting vision for Death Row regulars.

In 1980, these two women started urging Campbell to put his confession on paper. Campbell began pressing the matter with Beall. Beall resisted. So Davis and Johnson came to visit Campbell one day with paper, pen and a notary public.

Davis wrote out the story Campbell had told her a good number of times over the years. Because Campbell was illiterate, she then read the affidavit to him:

“My name is William Campbell and I was a witness in the trial of Henry Arthur Drake for armed robbery and murder. I lied at his trial. I said Henry was the one who killed the barber, Mr. Eberhart, and that I tried to stop Henry from killing him. But what I said were lies. I was the one who killed Mr. Eberhart. Henry wasn’t even there. He didn’t have anything to do with it . . . . I lied about Henry because I thought Henry had done me dirty. I thought Henry had turned me in . . . . But since being here at Jackson I’ve thought it over and I know it was wrong to lie and I can’t go on living like this . . . . I know what I’m saying might hurt my own appeals but I’m not going to worry about it. I want to get this off my conscience . . . .”

Before the notary, Campbell signed the document. It was April 2, 1981.

Davis called Beall that day at 4:30 p.m. “I just took an affidavit from Campbell and gave it to Drake’s lawyer, Mary Wilkes,” the minister said. “I ask your forgiveness. I had to do it as a Christian.”

Beall was furious. There had to have been collusion between the good Christians and Wilkes, given the short time in which the affidavit reached the lawyers’ hands, he thought. Wilkes had gone behind his back, using Murphy Davis. Of that he was sure.

Beall stormed into the prison the next morning. Campbell, brought to him in a small office, would not meet his eyes.

“Pop, what have you done.”

Campbell looked at Beall then.

“I did the right thing.”

“If the affidavit gets out, it ruins your chances,” Beall said. By now, he had been drawn inexorably into a game not entirely of his choosing.

“I know I should have been relieved and walked away when they got the affidavit,” he said later. “But maybe by then I was wrapped up in the game . . . . At that point, I can fault myself.”

He hammered at Campbell for more than an hour. This will be bad for your appeal, he argued. This will be bad for your conviction. This will be bad for your parole board. This is another crime, perjury.

Campbell would not budge. I want to go ahead and get this off my chest, he kept saying. I want to do the right thing.

Beall returned to his office enraged, kicking bookcases, yelling at secretaries. He called Mary Wilkes. I know you sent Davis down there, he spat out. This was a conspiracy. I know it.

The next morning, his fury cooled, Beall called Wilkes back. He had used the night to think. Now that my client has signed the affidavit, he told her, I’ll do anything I can to cooperate with you.

Two months later, Wilkes filed an extraordinary motion for a new trial, basing this request on “newly discovered evidence”--Campbell’s affidavit. Judge William Grant, who had presided over the original trials, held a hearing on the motion on July 7, 1981, at the Elbert County courthouse in Elberton.

Campbell, wheezing and toothless, proved as difficult to understand as he had at the trials, but he stood by the details of his affidavit. Beall followed him to the witness stand to corroborate the story and relate his own experiences.

There are those who might have expected from this hearing a long struggle’s triumphant culmination. The lawyers involved, though, knew better. The hearing, in fact, was largely pointless.

The words of witnesses and the decisions of jurors are not so easily reversed in the legal system. Campbell had testified, and a jury had believed his story. Judges are notoriously loathe to usurp a jury’s judgment or to grant new trials based on recantations by witnesses, particularly by witnesses who were co-defendants.

Judge Grant hurried the one-day hearing along, pressing the lawyers to limit their questions. Two weeks later, he denied the motion for a new trial in a two-paragraph order. Six months later, the Georgia Supreme Court affirmed Grant’s decisions. A year after that, a federal district court refused to intervene.

Kept Man From Electric Chair

Then, on March 23, 1983, during a court appearance, a colleague approached attorney Floyd Keeble, who had defended Campbell before Beall took over. The colleague brought news: Pop Campbell had died that day in prison of natural causes. Although Keeble had once fought for Campbell’s life, he could not help but feel exuberant. He and Beall, after all, had succeeded in keeping Campbell from death in the electric chair. Now their duty to a client had died with him. Keeble felt free.

A legacy remained, of course--another man on Death Row. Henry Drake, as a last resort, turned to the federal 11th Circuit Court of Appeals.

What followed was a series of conflicting events that promised from the legal system clarity and truth but yielded instead something less elegant.

Because the task of a federal appellate court is not to reconsider guilt or innocence but to rule on matters of constitutional procedure, the 11th Circuit did not care whether Campbell was lying or Drake innocent. It did care that prosecutor Bryant Huff had made certain inflammatory references in his closing argument and Judge Grant had used certain imprecise phrases in his final jury instructions. In two decisions handed down in February of 1984 and May of 1985, the 11th Circuit for those reasons first overturned Drake’s death sentence, then his conviction.

There would be a new trial. Campbell’s affidavit would be read to the jurors, of course. Attorneys Beall and Keeble would both take the stand to testify about what their deceased client had told them years before. The truth would finally come out.

Two Versions of Truth

All that is precisely what happened last year. It happened, in fact, twice--yielding two different versions of the truth.

In January of 1987, a jury listened to the new evidence and became hung, dividing 10 to 2 in favor of acquittal. In April, another jury listened to much the same evidence and voted unanimously for a conviction.

Drake, whatever else might be said, was off Death Row. At the last trial, the prosecution had relented, asking for a life sentence rather than the electric chair.

It was then that the Georgia Board of Pardons and Paroles, after years of watching this tortured case from the sidelines, decided to intervene.

In 1983, the Georgia Legislature changed the state constitution, granting the pardons board the power to issue stays and initiate clemency proceedings, a power until then held only by the governor.

The five members of the board soon decided that, if they were going to have that power, they wanted more information. They wanted their own staff-written investigative reports on all 130 prisoners then sitting on Death Row.

In this fashion, Drake’s file came to rest on the desk of board member James Morris in early January of 1984.

He read the Drake file once, then again, then over and over. The Georgia pardons board is not unwilling to allow executions--there have been 13 executions in Georgia since 1983. But this one troubled Morris.

Riddled With Contradictions

There simply was no evidence to convict Drake other than Campbell’s testimony, and that testimony was riddled with contradictions. It seemed likely that Drake had helped Campbell flee to Virginia after the murder and had initially lied about that--but nothing more.

Morris asked for a supplemental report. Soon after, he learned of Campbell’s recantation.

Go find the jurors in Drake’s trial, Morris told his investigator. Interview those jurors. Ask them if Campbell’s recantation would have affected their judgment.

The five jurors they found all agreed. Campbell’s changed testimony did not matter, they said. Both Campbell and Drake would not have known the truth if they saw it. They were sure they had made the correct decision.

Morris’ thoughts turned to these jurors’ roots--Madison County.

As it happened, Morris knew well the setting of the barber Eberhart’s murder and of the Drake trial. His family was from Madison County. It lived some eight miles from the barbershop.

Morris had grown up poor, his father a road crew foreman for the railroad, his mother from a family of Alabama farmers. He had worked his way through college and graduate school as a beat cop in Athens and Clark County. He became a state probation officer in 1967, then moved into management. Jimmy Carter appointed him to the state pardons board in February of 1974.

He now spent his days in a spacious office full of sofas and wingback chairs and picture windows overlooking the state Capitol, but at night he commuted the hour and a half to his home not all that far from where he grew up. His driving, in fact, sometimes took him past Eberhart’s barbershop, a small box of a brick building across from a coin laundry. He remembered the murder. At the time, he had shared the community’s outrage.

That outrage was precisely the problem. Morris had family and friends in that region, he came from there, but he felt it was just a fact of life you had to acknowledge: Madison County was a rural Southern community. In that, it was not unlike many other rural counties in the South. Lots of times emotions controlled the moment, it seemed to Morris, and facts flew out the window. It was just a different kind of place out there.

Yes, the jurors had decided Drake was guilty. That was how the legal system worked. But such decisions are not made in a vacuum.

The barber had been a fixture in the community, Drake something considerably less than that. There was also no way to ignore that Drake had been living with a black woman, an older black woman.

Drake himself, a man of profoundly limited intelligence, had offered the most concise explanation of his crime. “It was a barbershop in Colbert,” he told a parole officer. “They said I killed him. When all this happened, I was at my parents’ house. I didn’t do any of it. They were out to get me at the time because I was dating a black girl.”

From his years as a beat cop on up, Morris had seen thousands of cases. He believed deeply that courtroom decisions might be legal but not right. This one, it seemed to him, just was not right.

What to do, though? The matter was less a scholarly legal issue to him than a thorny political problem, one he would have to contemplate.

Then the 11th Circuit on May 31, 1985, overturned Drake’s conviction. Morris was driving to Atlanta from Athens that morning when he heard the news on his car radio. Thank God, he thought. Justice is done--and we’re off the hook.

Such feelings were short-lived. When the jury at the second retrial in April of 1987 convicted Drake, Morris and the other parole board members decided they could no longer avoid acting.

The board ordered two more reports--one a detailed examination of all the evidence, the other a look at the considerations involved in granting Drake clemency. Thus armed, the board members came close to pardoning Drake based on his innocence. They even drafted a formal order.

However, legal advisers in the state attorney general’s office urged caution. The pardons and parole board does not have the power to review court findings solely to determine guilt or innocence, the state lawyers pointed out. That was not their job.

The solution, in the end, was simple. Drake was now under a life sentence, not on Death Row. He had already served 12 years in prison. That made him eligible for parole. The board need not grant a pardon or clemency. The board need not rule on matters of guilt and innocence. The board could simply parole Drake.

That is what the board did on Dec. 23, 1987. Drake, dazed and withdrawn, came home to his parents’ house in Colbert last Christmas. In a way, Morris decided, parole was better--Drake would get the supervision he needed.

The reaction was immediate and vociferous. Death threats and protests filled Madison County. Citizens wrote outraged letters to newspaper editors and the parole board. They were appalled and horrified.

How could Drake be released after serving less than 12 years of a sentence for cold-blooded murder? How could members of the board of pardons sleep at night after having turned loose a murderer on the public? Drake was found guilty by a jury of his peers not once, but twice. Isn’t that the way the legal system is supposed to work?

Members of the parole board are not even elected, thundered Michael Crawford, the elected official who prosecuted Drake at both retrials. They answer to no one. It’s improper for them to decide innocence or guilt. That’s what a jury does. A key part of a trial is the looking at and judging of witnesses.

However legitimate that argument, there were those who saw the matter differently. Among those who reacted to Drake’s release in a more positive fashion were Beall and Keeble.

Even after their own client’s death, Campbell’s two attorneys had monitored Drake’s legal progress through the years, wondering with mounting apprehension what they would do if he ever neared the electric chair.

Death Row lawyers, normally bound together in a brotherhood against capital punishment, had found themselves in this matter pitted against each other as adversaries, weighing one man’s execution against another’s, balancing truth against a client’s best interests. In doing this, they had found it necessary to trust a legal system they believed to be flawed and unjust. They had played by the rules of a game they spend most of their time railing against.

Although their actions invited criticism, even condemnation, from some quarters, Keeble and Beall had in fact performed within the boundaries of what their fellow Death Row lawyers and experts in legal ethics consider to be reasonable attorney behavior. Their dilemma was extremely difficult, other lawyers and law professors said when questioned. There may have been a failing of moral judgment. But, then again, there’s always a tension between legal ethics and real ethics.

“If lawyers were willing to be honest and not worry about their image, they would say that Keeble and Beall’s actions are part of the turf,” said Death Row defense attorney Millard Farmer of the Team Defense Project in Atlanta. “You think one thing in the abstract, but in a real situation, you end up behaving like a person fighting for his life in the street. It makes you realize how fragile the ethical codes and guidelines really are.”

So Drake’s release prompted in Keeble and Beall powerful feelings of relief--but, as it happened, little regret.

“This was something, to know a person on Death Row without doubt was innocent . . . . I can’t explain what the feeling is like,” Keeble said one morning recently, sitting in the public defender’s small office in Royston, just miles from where the barber Eberhart was murdered.

“We were all up against the nature of the legal system. I have no qualms, though, about that system. I don’t think there’s anything I could have done differently. We have to do it this way to be effective. There is no other way.”