“He asked the FBI to go out and re-interview witnesses, and I concurred in that, or I was aware of it, and they were reinterviewed,” Sessions said. “And I remember distinctly saying, ‘We need to know who did this murder, and we do not have proof now, but we need to go do something about it.’”
In his 2016 Senate Judiciary Committee questionnaire, Sessions wrote “When I became the U.S. Attorney for the Southern District of Alabama, I, along with Assistant U.S. Attorney Thomas Figures and the Civil Rights Division of the Department of Justice, worked to solve the murder.” The questionnaire also accurately identifies Hays as the “son of the local Klan chieftain.”
The federal attorneys were ultimately successful in forcing one of the perpetrators, Tiger Knowles, to testify against his accomplice Henry Hays, Bennie Hays’s son, and to plead guilty to a federal civil rights charge. The evidence they collected gave the state the crucial support it needed to pursue a murder charge against Hays.
Hays was prosecuted in state court by Harrison, a local assistant district attorney. Kidnapping and murder were not capital offenses, so in order to make Hays eligible for the death penalty, state prosecutors argued that Hays’s theft of a dollar from Donald turned the crime into murder in the course of a robbery––a crime punishable by death.
“The amount is not relevant, it’s the fact that he stole, that he took something from somebody holding a gun on him saying, give me whatever’s in your pocket,” explained Harrison. “That constitutes robbery under the laws of the state of Alabama, and was sufficient to bump it up from a murder case to a capital murder case and that’s what I wanted to do. I wanted a capital murder conviction of Henry Hays.”
It was a longshot, but the jury, and crucially, the judge, bought it. The jury convicted Hays and recommended life in prison, but the judge overturned the sentence and gave Hays the death penalty.
Hays was not the head of the KKK in Alabama, as Sessions would later claim to National Review––his father, Bennie Hays, was the second-highest-ranking Klansman. According to his brother Raymond, Henry, 27 at the time, committed the crime in part to impress his father, Raymond told the Register. Bennie Hays was later charged in connection with the murder, but he died in 1993 before he could be convicted.
Sessions has suggested that he played a major role in deciding that the case be tried in state court. “I insisted that the case eventually developed against one of the klansmen be sent to state court and tried there, despite our desire to be involved in it, because Alabama had the death penalty or life without parole,” Sessions testified in 1986.
But he had little choice––at the time, there was no way to prosecute a racist murder under federal law. The only option would have been an endlessly convoluted charge of conspiracy to deprive black defendants of a fair trial by intimidating witnesses, a crime in which Donald would not even have been the victim.