Trump Presses Forward With Execution of Man Convicted by All-White Jury

Orlando Hall, among the first to be condemned under the 1994 Crime Bill, will be the eighth person executed on federal death row this year.

By Liliana Segura
November 18 2020

On the last day of September, less than a week after the execution of Christopher Vialva, 49-year-old Orlando Hall received a letter inside the Special Confinement Unit at the U.S penitentiary in Terre Haute, Indiana. “The purpose of this letter is to inform you that a date has been set for the implementation of your death sentence,” Warden T.J. Watson wrote. He would be killed by lethal injection on November 19, 2020. “Soon, I will come to your housing unit to personally discuss with you many of the details surrounding the execution.”

Donna Keogh was at home in Columbus, Indiana, the next morning when she got an email from Death Penalty Action, which had been protesting the executions in Terre Haute. “Trump Sets 8th Execution: Most Racist Case Yet!” the email announced. It was not until she opened the message that Keogh realized it was the case of her friend Orlando, who she calls by his nickname, Lan.

Keogh had been writing to Hall for almost 16 years. She first connected to him through St. Bartholomew Catholic Church in Columbus, which sets up a Giving Tree every Christmas, decorated with paper ornaments featuring the names of children with incarcerated parents. Keogh was with her 12-year-old son; they picked a red ornament in the shape of a ball, which featured the names Solomon and Elijah. Their father, Orlando Hall, was on federal death row. Following the instructions, Keogh wrote to Hall to let him know about the presents she was sending his sons, on his behalf. Hall wrote back to thank her, and the two began corresponding. They never stopped.

“You know, when I started out, I have to say that I was a little hesitant,” Keogh said. But it turned out they had more in common than she would have expected. “We love to read, both of us.” She is into mystery novels, while he prefers nonfiction, but they shared what they were reading and made recommendations to one another. Soon she was sending him books for his birthday.

As years passed, they bonded over personal milestones. “We started having grandbabies right around the same time,” Keogh said. “So we were always one-upping one another with the latest cute grandbabies.” He is ahead in the count, she said. “He’s got 13 now. I have seven.”

Today Keogh has a box of letters Hall has sent her over the years. In his cell in Terre Haute, he has collected items from her, too. Keogh keeps flower beds and “he always asks me to send him pictures of the flowers. And he puts those up in his cell because it adds some color to his cell.”

Keogh knew, in theory, that Hall faced execution. But she had not seriously considered that it could really happen, even after the Trump administration announced it would resume executions after more than 15 years. That morning, “I got angry,” she said. “Why? What for? What possible good can this do anybody?” She was aware of the horrible crime Hall had committed; she had heard him express deep remorse. But she did not see the sense in killing him now, rather than letting him live out his days in prison.

Keogh thought back to the last email she had received from Hall, which had struck her as odd at the time. “I turned to my husband and I said, ‘It almost sounds like he was saying goodbye.’ … So he obviously knew.” She is planning to travel to Terre Haute to join the protesters outside the prison. But the spike in Covid-19 cases has recently given her pause. “Now that the virus is growing worse, I’m getting nervous.”

Meanwhile, Hall’s neighbors on death row are preparing to be placed on lockdown yet again. “Over the last two days, I have had what seems to be my last conversations with Orlando,” one man wrote in a recent email. “Do you know how unnatural it feels to have a last conversation with a sane, healthy human being who is clearly aware of the exact day of his execution, scheduled this very week?”

Pandemic Executions

Barring last-minute intervention, Orlando Hall will be the eighth person killed at the federal penitentiary in Terre Haute since July. The execution spree is unprecedented in more ways than one; according to the Death Penalty Information Center, Hall’s execution would be the first lame-duck federal execution in over a century.

Yet even as Covid-19 spreads out of control, the Trump administration plans to kill two more people in December. One is Brandon Bernard, the co-defendant of Christopher Vialva, whose jurors have signaled support for a commutation. The other is Lisa Montgomery, the only woman under a federal death sentence. Last week, attorneys for Montgomery, who has severe mental illness, revealed that they had tested positive for Covid-19, almost certainly as a result of traveling to see her in prison. In a hearing on Monday, a federal judge seemed reluctant to grant more time for her clemency petition.

Hall’s attorney, Robert Owen, who also represents Bernard, has declined to be in Terre Haute for the execution, out of concern for his health. “It alternatively fills me with rage and despair that the government is being allowed to pretend as though the pandemic is over when it is not,” he said. This week a federal judge denied a stay of execution in light of the pandemic.

In Terre Haute, where only two of the seven men put to death have had their attorneys present, fear of new execution dates is compounded by a sense of invisibility. In emails, a friend of Vialva’s reiterated the dismay he felt at the silence from politicians in Washington before he died. “I think Christopher wanted the Democrats to be true in action to their position against capital punishment and to take a public stand … against Trump’s executions, no matter the nature of the crimes,” he wrote.

For Democrats, opposing the federal executions would mean confronting a policy that President-elect Joe Biden did much to create. Hall’s case was one of the first capital cases tried under the 1994 Crime Bill, which dramatically expanded federal death row. The 1996 Antiterrorism and Effective Death Penalty Act curtailed federal review, making it harder for the condemned to challenge their convictions in court. Although Biden was instrumental in these “tough on crime” reforms, today he has vowed to eliminate the federal death penalty.

Read also:
Developed West is managing Covid-19 worse than poorer countries – France’s most well-known virologist

Last week, a group of Democratic lawmakers called on Attorney General Bill Barr “to suspend all federal executions so the incoming Biden-Harris administration can evaluate and determine the future use of the death penalty by the federal government.” The American Bar Association also sent a letter urging reprieves for Hall, Bernard, and Montgomery to allow attorneys to safely and fully advocate for their clients. But neither appeal seems likely to succeed. The Trump administration has refused to acknowledge the election results, much less the ways in which Covid-19 has stymied efforts to save people on death row.

Whatever the future of the federal death penalty, Hall’s case is not the type most likely to spur calls for abolition. The harrowing details have been repeatedly recounted in true crime documentaries and podcasts, which memorialize his teenage victim, Lisa René, and decry the brutal violence she endured. “In the years that I’ve been doing this, she is actually probably the most innocent victim that I’ve ever worked a case on,” Detective John Stanton said in an episode of “The FBI Files.”

Yet other parts of the story have been neglected, including critical context about the failures of the legal system that convicted Hall. Last year, his co-defendant, Bruce Webster, saw his own death sentence vacated after a federal judge was persuaded by an argument his trial attorneys tried to make almost 25 years ago: that his intellectual disability made him ineligible for execution.

Hall, meanwhile, was convicted by an all-white jury. Although his victim was also Black, in contrast with the majority of people on federal death row, the exclusion of Black jurors in his case is a disturbing emblem of the death penalty’s racist roots. Hall’s attorneys also point to significant failures by his court-appointed trial attorneys, particularly when it came to the critical investigative work that could have moved jurors to spare his life.

Among these documents are declarations from investigators, relatives, and members of Hall’s community in his hometown of El Dorado, Arkansas, who describe Hall’s expressions of remorse as well as his positive attributes. Several describe how Hall once saved his young cousin from drowning in a motel swimming pool. The same records describe a childhood marked by violence, abuse, and neglect — factors that help explain how he came to commit such a heinous crime, but most of which his jurors never heard

The Crime and Trial

From the moment Lisa René went missing in Arlington, Texas, in the fall of 1994, it was clear that her life was in danger. The 16-year-old girl had called her older sister, Pearl, to say that two men had come to the door of their apartment, claiming to be the FBI. At her sister’s urging, Lisa called 911. But the call was cut off. Her screams were captured on the recording before the line went dead. Pearl returned home to find the sliding glass door of her home shattered and her sister gone.

Lisa René was from the Virgin Islands. The teenager had arrived in Texas only a few months earlier, following her sister with the hopes of getting an education that could eventually lead to medical school. Her parents, Agnes and Nicholson, were getting ready to go to church in St. Croix when they heard their daughter had been abducted. “I know Lisa doesn’t deserve what she is facing right now,” Agnes René told the Fort Worth Star-Telegram after arriving in Texas. She prayed that her daughter would not get hurt.

Instead, her worst nightmares would come true. Eight days after René was kidnapped, her naked body was found buried in Pine Bluff, Arkansas. Prosecutors would say that she had been kidnapped by men seeking revenge on her brothers over a botched drug deal. Her captors kept her tied up and repeatedly raped her before taking her to a nature reserve named Byrd Lake Park, hitting her with a shovel, and burying her alive.

The horrific crime occurred just days before President Bill Clinton signed the Violent Crime Control and Law Enforcement Act, known today as the 1994 crime bill. The sweeping legislation included the Federal Death Penalty Act, which made 60 new offenses punishable by death. These included “kidnapping resulting in death,” one of several felony murder crimes that made it easier to convict multiple people for one killing. After five suspects were arrested, prosecutors said they were considering seeking death sentences against all of them. In the end, they focused on two men: 21-year-old Bruce Webster and 23-year-old Orlando Hall — the “first death penalty case filed under the new crime bill in the nation,” as one federal prosecutor announced.

Hall was tried first, in the U.S. District Court for the Northern District of Texas. Although the case against him was fairly overwhelming, including a confession that his lawyers tried unsuccessfully to keep out of evidence, the prosecution’s theory was built largely upon the testimony of witnesses who had a powerful incentive to minimize their own role in the crime. The accounts were at times contradictory; some of the statements made by witnesses to the FBI would change by the time they took the stand. Yet Hall’s lawyers were ill-prepared to cross-examine the witnesses, in part because their investigation had been rushed and incomplete.

The missteps by Hall’s trial lawyers are documented in declarations later collected by Hall’s post-conviction attorneys. Among the most troubling is one signed by veteran capital defense attorney Kevin McNally of the Federal Death Penalty Resource Counsel, which was started in order to assist capital defense attorneys with clients facing federal prosecution. After Hall’s original attorneys withdrew from the case, two new lawyers, Jeff Kearney and Michael Ware, were appointed on March 21, 1995. McNally recalls getting in touch with them that summer. “I was startled to learn that they had done essentially nothing to investigate the case since being appointed,” he wrote. “No one had taken the complex, time-consuming, and essential task of exploring Mr. Hall’s background in order to develop evidence that could persuade jurors to spare his life.”

McNally was also disturbed to discover that the attorneys had sought to secure a psychiatrist named Dr. James Grigson to evaluate Hall. Grigson was infamous at the time for having testified against more than a hundred men sentenced to death in Texas, which had earned him the nickname “Dr. Death” by the late 1980s. McNally considered Grigson unprofessional, he wrote. He was certainly not an expert he would seek to save a client’s life.

Trial attorneys ultimately agreed to hire a mitigation expert, a former colleague of McNally’s named Tena Francis. By the time she was appointed to the case in September 1995, the trial was just a few weeks away. In her own declaration, Francis recalled being told up front that there was “nothing in the family” that could be of value for mitigation purposes. She cautioned that, in her experience, there was almost always something about clients’ backgrounds that could provide context for their crimes.

Read also:
Gilets jaunes : Macron envisagerait un référendum, le même jour que les européennes

Indeed, like many who end up on death row, Hall had grown up in a household beset by poverty and domestic violence. One neighbor, a pastor, recalled in a declaration that one of Hall’s sisters used to come to his house and ask if he and his wife would adopt her. Hall’s father, who drank heavily, admitted that he would lose control and beat his wife in front of their children. “To this day, if I hear a loud thump, I involuntarily start to panic,” one of Hall’s sisters wrote in a declaration, describing how her father would lock the doors to prevent their mother from getting medical help. After their parents divorced, the children were often left to fend for themselves. The electricity would be cut off and they would sometimes go hungry.

As Francis recalled, she immediately recognized signs of abuse and trauma in Hall’s case. But she did not have time for the sensitive conversations needed to elicit the kinds of painful accounts that can make a difference during sentencing. In a declaration of her own, Hall’s mother, Betty, described her reluctance to discuss the abuse she endured when her son was growing up. “There are a lot of things you are so ashamed of you don’t want to talk about them with anyone,” she said.

On October 6, 1995, with jury selection underway, Francis sent a memo to the lawyers. She warned that, along with the lack of sufficient mitigation investigation, the legal team had little information on Hall’s co-defendants or the witnesses who would testify against him at the punishment phase. These included two jailhouse informants — whose testimony was highly questionable. In the end, the lawyers decided that Ware should go to Arkansas while Kearney stayed to handle jury selection. “This is the only capital case (state or federal) in which I have had any involvement in which the defense case was in such bad shape at the start of trial that one of the lawyers had to abandon the client during voir dire in order to try to conduct out-of-state investigation which should have been completed long before,” McNally wrote.

In an email, Ware provided a lengthy affidavit that disputed several of the claims in the declarations by Francis and McNally. It was “inaccurate and is a highly misleading” to say he had done no meaningful investigation prior to Francis’s appointment, he wrote. Among other tasks, he had obtained the files from Hall’s original attorneys, which included “an extensive questionnaire filled out by the defendant,” as well as notes from interviews with Hall’s family members and others connected to the case. His own conversations with Hall and his loved ones described a positive family environment, Ware said, and he did not have reason to believe they were being untruthful. He also said that Hall’s case was the first time Ware had relied on a mitigation specialist; in a subsequent death penalty case, he said he was able to convince the jury to sentence his client to life. “I did not use a ‘mitigation specialist’ in that case, nor do I believe that I needed one.”

Finally, Ware defended the notion that Grigson, who was never hired, could have made an appropriate expert at trial. He did not recall Francis or McNally raising concerns about “Dr. Death” at the time. Although Dr. Grigson was controversial, Jeff Kearney and I had the opinion, as did other attorneys whose judgment we respected, that Dr. Grigson was extremely effective when he testified for the defense. In addition, since he had frequently testified for the prosecution, the Government would have had a difficult time challenging his credentials.”

It’s hard to say whether better legal representation would have made a difference for Hall given the facts of the crime. News coverage shows how jurors wept at various points throughout the trial, including when prosecutors, over the objections of defense attorneys, displayed photographs of René’s naked body lying gagged and in the fetal position with both hands covering her face. The girl’s mother and sisters cried as Assistant U.S. Attorney Paul Macaluso described her death in graphic detail. “You can live your whole life and have a myriad of experiences and never know that evil exists,” he told the jury. “Then you meet someone like Orlando Hall. He’s proof positive of it.” Defense attorneys made no closing statement. Nor did they call any witnesses during the guilt phase. On October 31, 1995, the jury found Hall guilty.

In their declarations, Hall’s mother and one of his sisters recall being pulled aside in the hallway of the courthouse during the sentencing phase. Both were told they would be taking the stand that same day. Betty Hall did her best to describe the abuse she experienced at the hands of her ex-husband and tearfully asked jurors to spare her son. A week later, the jury sentenced Hall to death.

Suffused With Bias

Hall had been on death row for more than six years when another Texas man facing lethal injection received a stay of execution by the U.S. Supreme Court. Thomas Miller-El had been convicted in Dallas County in 1986, just weeks before the court’s landmark ruling in Batson v. Kentucky, which forbade prosecutors from using peremptory challenges to exclude prospective jurors based on race. At Miller-El’s trial, prosecutors had struck 10 out of 11 Black jurors, assembling a nearly all-white jury. Yet the Fifth Circuit Court of Appeals had refused to consider his appeal.

There was significant evidence to back Miller-El’s claims of racial bias. His attorneys relied in part on a 1986 report by the Dallas Morning News showing that county prosecutors had used peremptory challenges to dismiss 90 percent of eligible Black jurors in 15 death penalty cases. They also pointed at a damning document that revealing an overt policy inside the office to exclude jurors of color. A 1969 training manual in the DA’s office warned that prosecutors were not to allow “Jews, Negroes, Dagos and Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.”

One of the prosecutors involved in selecting the jurors in the Miller-El trial was Paul Macaluso, who would go on to become an assistant U.S. attorney and help choose the all-white jury that sent Hall to die. Macaluso denied ever being influenced by the training handbook, telling reporters in 2002, “I didn’t buy it then and I don’t buy it now. It was never impressed on anybody and was never indoctrinated. It’s nonsense.” Nevertheless, the U.S. Supreme Court ruled in favor of Miller-El. The evidence “reveals that the culture of the district attorney’s office in the past was suffused with bias against African-Americans in jury selection,” Justice Anthony M. Kennedy wrote in 2003.

Read also:
Bernie Sanders: Where the Democrats Go From Here

Hall’s current attorney says that the revelations of Macaluso’s conduct came too late for his own client. “It wasn’t known until after Orlando’s trial, that one of the members of his prosecution team is a serial offender in terms of striking black people from jury pools intentionally,” said Owen. The Miller-El decision arrived after Hall’s first post-conviction appeal had been denied. “I think in Orlando’s case, if that issue had been raised at the time, it would have been meritorious,” Owen said. “But you know, it’s hard to say, because the Fifth Circuit has granted very little relief on Batson claims.”

Last week, Owen filed a petition for a writ of habeas corpus challenging the racism in his case. It cited Macaluso’s history while also drawing on statistical evidence Hall has never presented before. “A statistical analysis of all criminal defendants eligible for the federal death penalty in Texas between 1988 (when the federal death penalty was reinstated) and 2010” found that “federal prosecutors in Texas were nearly six times more likely to request authorization to seek the death penalty against a Black defendant than a non-Black defendant,” it read. “Authorization was nearly eight times more likely to be granted in cases with a Black defendant than a non-Black defendant. And a death verdict was nearly sixteen times more likely to be rendered in a case with a Black defendant than a non-Black defendant.”

In a phone call, Macaluso, now 78, said he did not remember Hall’s case very well, explaining that he handled many death penalty trials over the course of his career. But he denied ever discriminating against Black jurors in order to seat an all-white jury. “It’s not true,” he said. Lawyers who make those allegations “have to have something to put the blame on.”

In a Medium post last week expressing remorse for his crime, Hall addressed the issue of race in his case. “How did I feel as a black man when I saw my all-white jury? I felt like the thousands before me — doomed!” he wrote. “I was never under the false illusion that I would receive a fair trial or a jury of my peers. … I was an uneducated man, functioning illiterate at best, but I also wasn’t a fool.”

“Everyone in the courtroom with any power was white,” he went on. “The American justice system has never been fair when it comes to the poor and people of color. On this fact alone, there shouldn’t be a death penalty. We can have justice without revenge.”

No Comfort

In the past several weeks, Hall’s family has come to Terre Haute in droves. “He’s broken all kinds of records for numbers of visitors,” Keogh wrote in an email last week. “The CO’s are amazed!” Lisa Brown, the mother of Christopher Vialva, has been trying to help guide the family through the process from afar, having witnessed her own son’s execution. Last week she spoke to one of the two loved ones planning to attend the execution. “She had to take a break when I was talking to her because she became too emotional,” she said.

It is unclear whether relatives of Lisa René will witness Hall’s execution. Agnes René died earlier this year in St. Croix. And coverage of the trial suggested that the family did not find much comfort in the death sentence at the time. As she left the federal courthouse in 1995, her sister Pearl told reporters, “I thought I would feel better, but I don’t. None of it is going to bring Lisa back.”

The René family did not respond to interview requests. Kearney declined to comment. Despite Ware’s objections to the characterization of his work, he said he wished Hall’s legal team had succeeded in overturning the death sentence “and that Mr. Hall was not looking at an execution date this Thursday.”

Among jurors, there is at least some evidence that at least one might have been moved to spare Hall’s life if his lawyers presented a more compelling case. In 2001, the foreperson of his jury, Jacquelyn Holmes, visited Death Row Speaks, a now-defunct website maintained by supporters of a man formerly on federal death row. The site included a profile of Hall, along with an address.

Holmes wrote a letter to Hall using a pseudonym. She said she had “followed the events of your trial in Ft. Worth” and was surprised by the quality of his writing on his inmate profile. She explained that she had two sons who were around the same age as Hall and said she was curious about how he had ended up on death row. “I want to learn more about you as an individual, your views on the death penalty, family, children. But I must be honest, I also want to learn more about your life and the events that led you to death row. Would you consider writing to me?”

Hall responded and the two wrote back and forth a few more times. But then the correspondence ceased. In 2002, Holmes wrote to the webmaster of the site, inquiring as to why Hall’s profile had been removed. “I corresponded with him anonymously for awhile, but was overwhelmed by the emotions it evoked and could not continue,” she confessed.

Holmes did not respond to messages from The Intercept. But it is clear she remained haunted by the case long after the trial. “I had no problem convicting Mr. Hall for his crimes, for the evidence against him was overwhelming,” she wrote 2001. “However, when the penalty phase of the trial began, I struggled with sentencing Mr. Hall to death. I was the final holdout.”

Holmes said she would always remember the pleas for justice from the father of Lisa René and the sadness in her mother’s eyes. “But I also remember the sadness in the eyes of Orlando’s mother. And her loss will also forever be a part of me.”

Published at theintercept.com