You got married when you were on the inside.
Ziegler: Yeah she’s here.
Do you look forward to spending time with your wife?
Ziegler: She already has a honey-do list for me. (laughing) I’m not too sure about that.
Was freedom something you considered when you tied the knot?
Ziegler: Look, I always knew one day I would return home. And that was part of what helped me survive that situation. I never let my mind live on the inside. I always lived on the outside. I always kept my faith in God and I kept my faith in my attorneys. I had a team that — if you go out and pay for it, it would take a million dollars to put together. I had the best counsel I could wish for and I never gave in. I never stopped and neither did they.
Can either of you speak to the differences between Judge Stewart and the original judge in the case?
Lagemann: Well from our perspective, Judge Kendall passed away fairly early on when we first got involved. I think we had maybe one or two brief appearances before him so we can’t speak to his rulings much at all once we were involved.
Callaway: Realize a judge can only rule on what is presented to him. The judge doesn’t have any way of looking at the evidence other than what the lawyers present.
But didn’t you mention that Judge Stewart seemed to ask a lot of questions during the Rule 32?
Callaway: The Rule 32 is where the judge is the trier of the fact so yes, Judge Stewart did an excellent job. She was very conscientious, she really considered the evidence thoughtfully.Lagemann: From my perspective, I’ve done cases, not all the way to trial, but I’ve had cases in many different jurisdictions and I consider Judge Stewart to be one of the finest judges that I’ve had the privilege of appearing before. I think she absolutely reviewed everything that we filed, and I wish I could say that every single judge I’ve ever appeared in front of had really paid attention to everything I’ve ever filed. But Judge Stewart took the time, spent the effort and really dug into the case and learned it. I think from the first moment she took the bench she always gave both parties a fair and equal shot. She didn’t always rule in our favor, but in my mind, although I may have wanted it to go a different way, she had a basis for it both in the law and in the facts. I think in terms of when she ruled in our favor in the Rule 32 proceeding, it was obviously, totally based upon the law and the facts and the fact that it went to the Court of Criminal Appeals — a 217-page order that was ultimately unanimously affirmed — I think says a lot about the detail, the care and the skill she brought to this case.
What, if anything, could have sped up the appeal process?
Lagemann: We obviously had a great result in the Rule 32 proceeding. But the way post-conviction litigation, both in terms of Rule 32 proceedings and then the federal habeas … I don’t want to use the phrase “a stacked deck,” but it is very onerous and burdensome. You have to carry a lot of burden to be successful in appeals. One of the things we’ve dealt with over the years or at least been aware of in the Rule 32 proceedings is there were a number of legal issues that where based upon certain rulings, it became extremely hard to prove your Rule 32 case. For instance, during the pendency of the Rule 32 proceedings, there was for a while a number of cases that said that you couldn’t succeed on a Brady claim unless you were proceeding under this particular statute called the “newly discovered evidence statute.” That’s Rule 32.1(e). The problem with that was … there were five requirements under that Rule 32.1(e). One of which is that it not be solely for impeachment. But the problem is Brady encompasses impeachment.
So you have a scenario where, those rulings have since been overturned by the Alabama Supreme Court, in a case — Beckworth (v. Alabama) — that was finally overturned while we were on appeal actually. But, who knows how many cases where someone may have actually had a good Brady claim, but it didn’t fit neatly into those five factors for the purposes of newly discovered evidence. There is another proposition of law which deals with the penalty phase where there are certain cases out there that say in a Rule 32 proceeding, you can’t put on — you know you’re bound by the rules of evidence — but you aren’t able to put on hearsay evidence. While I understand that, in the penalty phase of the original trial you are allowed to put on hearsay evidence. So you have a scenario in a Rule 32 where if you’re trying to prove your counsel was ineffective in the penalty phase, you can’t put on the same evidence in the Rule 32 where you’re saying trial counsel was ineffective for not putting on at the first trial. Which leads you into a quandary of, how do you prove your constitutional claim? Because you can’t bring forward the evidence you’re saying trial counsel should have found, had they done their work in the original case.
There are some rulings like that — and case law changes — but in the Rule 32 context, I don’t know how many people may have had good Brady claims that were procedurally barred or otherwise because of that case law that was dealing with Rule 32.1(e). Also, those people probably would not have gotten discovery on those Brady claims, to actually vindicate it. So it’s a very onerous system. In terms of your question, there are procedural aspects, particularly in Rule 32 context, that tend to make the cases move slower.
Is there anyone in particular you’d like to extend credit to?
Lagemann: Let me start with the man sitting to my right. When we first got involved in this case, our first local counsel was from Birmingham. He was great, his team was great but they were from Birmingham. So they helped us find Henry and Henry, both in terms of his practice and his knowledge of how things are done down here, in terms of the resources and availability … every time we come down here, we end up in nicer conference rooms than we have at home and we have people like Carol Oates (Callaway’s secretary), who has helped us out with procedural filings. Henry actually played a great role at the Rule 32 hearing itself, putting on our first witness Vicky Bosarge (who recanted her original testimony) as well as also putting on Dean Carroll, who offered expert testimony about the defense standards in a capital case, as well as also arguing a number of motions. So in terms of people our firm is most grateful for, at Sidley, we’ve had a remarkable team.
I have probably been down here more than most people but Ben Nagin has been an unbelievable leader in this case, kind of a field general if you will, kind of pushing us forward at each stage getting us where we needed to go. John Lavelle and Andy Hart (of Sidley Austin), the four of us have been the partners on this case, were fantastic at the Rule 32 and they played tremendous involvement in the putting together of the pleadings to get us to the Rule 32 hearing. And given the length of time on this case, so many associates — some of whom have left us and gone elsewhere, some of whom are still around. I would point out in particular Tim Hargadon, now out of our Chicago office. To tell you how long we’ve worked on this case, when we took on this case, Tim was a paralegal. He went on to law school, came back to the firm and is now a great associate for us.
Ziegler: Don’t sell yourself short either, you’ve been the driving force.
Callaway: Yes, Nick has been the work horse.
Ziegler: Nick has not only been my attorney but he’s a lifelong friend. He helped save my life. And that’s something I can never repay.
Lagemann: But there are an immense number of people who have contributed throughout the case and another thing, one of the things that I have always felt immense pride about our firm first as an associate and now as a partner is the amount of time and resources we have committed not only to Willie’s case, but to the other roughly 17 cases we have in Alabama. Particularly under the leadership of John Gallo in our Chicago office. He made the decision decades ago that defending people on death row in Alabama really needed assistance in the post-conviction aspect and all the credit in the world I think should also go to our management committee and executive committee who decided to dedicate our firm toward taking on those cases because once you take them, you bought them. And to do it right takes an immense amount of hours, time, effort and our firm has never wavered.
In the very recent context, two people I don’t want to omit are certainly Jeff Deen and Brandy Hambright. They have been the shortest term members of our team, just because of the timing but Jeff, just by reading the paper over the years I had heard his name — it’s a big name — but literally just called him out of the blue and said who I was and who I represented and said ‘we’d like to get you involved’ and ‘yep!’ (snaps fingers) he said, ‘sure thing!’ And he’s a character, but even in the brief moments he was doing cross examination well, he’s everything. He was exceptional in the courtroom. And Brandy, I don’t think we had the opportunity to unleash Brandy in the courtroom just yet, but Brandy has been terrific and I think she would be fantastic at trial too.
Ziegler: It takes pure dedication and it’s not just a business interest but it takes personal interest because you have to get personally involved to be able to fight the way they have and the way they do.
I’ve been here a while so I’ll wrap it up but I mentioned Tammy (your wife) because I’ve been speaking to her, but sometimes I forget you’re a father as well.
Ziegler: I have two children. I have two stepchildren. But Michael is 21 now. Jacob will be 15 in August. I begin talking to him tomorrow. I have an iPhone now, maybe I’ll get on Facebook and do it then. I told you I’m still trying to absorb everything, I don’t know exactly how off the top of my head but maybe I’ll invite him to spend the summer with me. I don’t want to try to impose myself on him too hard because I’m his dad but he still doesn’t know me. So I’m going to have to learn how to be a dad I guess, one day at a time.
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