Better Late Than Never, I Guess

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©jenny Warburg

Observers applaud as Henry McCollum is exonerated. Behind Mr. McCollum is I. Beverly Lake, former Chief Justice of the North Carolina Supreme Court and founder of the North Carolina Innocence Inquiry Commission.

 

I. Beverly Lake, former Chief Justice of the NC Supreme Court, announced this week that he has lost confidence in the fairness of the death penalty.  In a blog post, he wrote

After spending years trying to instill confidence in the criminal justice system, I’ve come to realize that there are certain adverse economic conditions that have made the system fundamentally unfair for some defendants. These systemic problems continue to lead to the conviction of the innocent, as well as those individuals for whom the death penalty would be constitutionally inappropriate, regardless of the crime. Our inability to determine who possesses sufficient culpability to warrant a death sentence draws into question whether the death penalty can ever be constitutional under the Eighth Amendment. I have come to believe that it probably cannot. http://www.huffingtonpost.com/i-beverly-lake-jr/death-penalty_b_10027538.html?1463597343.

Lake, a conservative Republican, served on the Court from 1994-2006 and, thus, played a role in affirming the vast majority of death sentences of the 43 persons who have been executed by the State of North Carolina in the modern era.

I must admit having mixed feelings. Certainly, Lake’s change of heart inspires hope. For over twenty years, I have been one of many to tell the stories of the injustices underlying death sentences. Time and time again we have told these stories to judges and to governors in hopes of saving lives. Almost always those in power have been unmoved. Sometimes, I have found it hard to keep up the energy to fight. My clients and their families have helped sustain me. So have the lessons of history that successful fights against hate, prejudice, willful blindness, and stubborn devotion to senseless practices are long and painful. As Dr. Martin Luther King put it, “The arc of the moral universe is long, but it bends towards justice.”  Lake’s announcement is indeed a good sign that the arc towards abolition of the death penalty is well bent .

And as a lawyer whose clients have, for the most part, been clearly guilty of taking another life, I am very pleased that Lake, founder of the North Carolina Innocence Inquiry Commission, is now extending his concerns beyond the problems with innocents being sentenced to death. As he writes,

Too much reliance is put on jurors to identify those who are the “worst of the worst.” As Chief Justice of the Supreme Court of North Carolina, I was responsible for assessing the personal culpability of defendants in capital cases to ensure that the punishment would be applied appropriately, so I understand just how difficult this task can be.

In order for mitigation evidence to be considered it must be collected and introduced at trial. In states where indigent defense systems are woefully underfunded, as it is in North Carolina, or where standards of representation are inadequate, this evidence regularly goes undiscovered.

Additionally, a number of impairments are difficult to measure. For intellectual disability, we can use an IQ score to approximate impairment, but no similar numeric scale exists to determine just how mentally ill someone is, or how brain trauma may have impacted their culpability. Finally, even when evidence of diminished culpability exists, some jurors have trouble emotionally separating the characteristic of the offender from the details of the crime.

Yet, I cannot help but also feel anger. What took you so long, Justice Lake? All of my executed clients were poor, suffered from mental illnesses and defects, and had ill-equipped lawyers.  Why did you not see the light when we told their stories? Can you begin to appreciate the suffering your actions have caused?  And, by the way, why do so many judges wait until they are off the court to finally say they can no longer support the death penalty?

I know that I have to work on forgiveness.  I am certainly impressed that Lake and other former judges are trying to save the life of Lamondre Tucker on Louisiana’s death row, http://www.constitutionproject.org/wp-content/uploads/2016/03/Tucker-cert-brief-appellate-judges.pdf, and are fundamentally challenging the constitutionality of America’s death penalty system. I guess this goes a long way towards Lake doing penance.

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In Memory of Darryl Hunt

I am saddened to learn of the death of Darryl Hunt.  On Sunday, he was found dead, slumped over in his car in a shopping center parking lot in Winston-Salem, NC.  The immediate cause of his death has not yet been released, but who can doubt what lies at the root of the cause — state-induced trauma.

In 1984, Darryl was accused and convicted of a murder and rape that he did not commit.  Despite the lack of any credible evidence, Darryl spent almost 20 years in prison for these crimes.  The State of North Carolina sought a death sentence but fell short of its goal; a good thing since Darryl would likely have been executed by the time DNA and a subsequent confession by the killer proved, to even the most ardent doubters, that Darryl was indeed actually innocent.  His journey of injustice is captured in the documentary The Trials of Darryl Hunt.

As a young lawyer, I observed Darryl’s numerous loses in court from a distance.  I knew his appellate attorneys and saw them build a stronger and stronger legal case showing that an innocent man had been wrongfully convicted.  I felt their — and my — hopes for justice rise at each stage of review, only to have judge after judge deny relief.   A DNA test exonerated Darryl of the rape in 1994, yet his request for a new trial was denied.  It would be another 10 years, when the actual killer was identified, before a judge would order a new trial and, ultimately, release.

I was fortunate to cross paths with Darryl a few times after his release.  He was always humble, polite and giving.  When I invited him to speak to my small Access to Justice class at Charlotte School of Law, he was glad to do so, despite requiring a long drive at night.   As he had done for so many others, he showed my students and me amazing grace in the face of extraordinary loss.  His peaceful presence and advocacy for others after prison stands as a testament to how forgiveness is a much more desirable path than anger and resentment.

Nonetheless, no man can be carefree after losing 20 years of freedom because of racial bias and institutional arrogance, waiting day after day for those in power to hear his pleas of innocence.  The stress Darryl suffered in prison, and then the stress suffered adjusting to the “real” world, must have taken an extreme toll on his body and mind.  I am not surprised to learn that he suffered from both cancer and depression.   Perhaps he was living under a death sentence after all.

 

 

 

Adult education

I began teaching law in the mid-1990s.  My first course was a death penalty clinic at Duke Law School, which I co-taught with my former professors Jim Coleman and Bob Mosteller.  I had been something of a professional student, accumulating a number of degrees – BA, M.Div, MA, JD.  But I had never, ever imagined that I would be at the front of the classroom.

As a student, I was quiet but attentive; I rarely raised my hand, and when I did, I spoke quickly to get it over with.   Initially, my teaching was pretty much the same thing.  Hurry up and say something useful, but above all just get it over with.  It took me years to feel comfortable in front of the classroom, with all those eyes peering at me, judging my every move.  I was conscious of every word, and the more conscious I was, the more nervous I became.

Thankfully, I received sufficient affirmation along the way to keep teaching.  Also along the way, somewhere, somehow, I began to transcend my overly conscious self in the classroom.  I became less aware of the peering eyes and more aware of the peering minds.  I began to experience my students not as judges to fear, but as individuals with strengths and weaknesses who needed a teacher to help them achieve their goals, their dreams.

Yes, my students needed me, even those who didn’t seem to particularly like me.  My reality had shifted.  Teaching became a privilege and a joy, a journey with students to a new level of understanding of the law, the world and themselves.  The journey was not always easy or even completely successful.  But my students were like clients to serve.  Some became friends.

I recently left law teaching — for the second time.  I left Duke Law in May 2004 and, now, Charlotte Law in December 2015.  I don’t know if I will pick up law teaching again, but I want my former students to know that I am a better person for having taught them.  I not only morphed into a “professor,” which is pretty amazing, but I came to appreciate the role that adult education plays in the lives of so many of us just trying to make it in this crazy world.

 

Dean Smith and the Death Penalty

In his death, Dean Smith is being honored for being a great basketball coach and, more impressively, for being a great human being. Smith led by example and not just on the easy lessons of being a good sportsman and a good student. Smith also led by taking unpopular stances and actions on behalf of those most hated by many who surrounded him – blacks, gays and even murderers. Smith sat at a segregated lunch counter with a black student, recruited the first black player for UNC, held basketball practices in prisons, and stood before the Governor of North Carolina to request mercy for a man scheduled for execution.

Smith met John Noland years before Noland faced execution in November 1998.   Smith visited him in prison, after hearing Noland was a fan of his. They became pen pals and friends. Smith made a persuasive case to Governor Jim Hunt for sparing the man’s life, despite his horrible deeds. He famously asserted, “You’re a murderer. And I’m a murderer. The death penalty makes us all murderers.”

Smith courageously spoke truth to power on the social issues of his day because he believed it was the right thing to do, and UNC fans loved him regardless of whether they agreed with him.   Today, public university professors and administrators in North Carolina are discouraged and even punished for taking unpopular positions on social issues. Perhaps, we would best honor Dean Smith by giving educators the space to be prophetic leaders and by reflecting individually on whether we will be on the same side of history as Dean Smith, the right side.

Depression Kills Redux

The suicide of Robin Williams brings to mind how tragic severe depression is, how it impairs rationality and concern for others, and how it takes so many people from the families and friends that love them.  For me it brings back memories of most of the death row inmates I have known, their families and their victims.

In January 2013, I blogged about a death row inmate, David Lawson , who suffered most of his life from severe depression (pasted below).  David was executed despite that significant evidence of severe depression at the time of his crime was withheld from the sentencing jury and that the trial attorneys allowed David to testify that he wanted to be executed, one more suicidal plea of a mentally ill man.

May Robin Williams’ death improve the conversations about and availability of treatments for depression.

____________

Even as I began death work, executions seemed a distant possibility, events that could be stopped. Then came David Lawson. By early 1994, the real possibility of his execution began to sink in.

 

David was represented by two lawyers in my office: Marshall Dayan and Jim Moreno. Marshall, a long time death penalty activist in The South, had represented David since 1988; they had grown very close. Jim, a hippie from The North, joined the Resource Center at the same time I had. Jim and I had become like brother and sister, protective of one another in the strange death penalty landscape new to us both.

 

David had shot a man and his father during a home burglary gone bad, some fourteen years earlier. The father lived; the son did not. David was suffering from severe depression at the time of his crimes, something that was not revealed at David’s trial. Indeed, none of his extensive mitigating social and psychological history was presented. Rather, the only witness presented at trial was at the sentencing hearing. That witness was David himself. The sole purpose of his testimony was to let the jury know that David wanted to die.

 

Questioned by his own attorney, David was first asked about his criminal record. It was minimal “two cases of breaking and entering some years ago in Stanly County.” He also admitted that he had assisted the State “involving some criminal matters in Stanly County some years ago.” Then David’s attorney got to the heart of the matter:

Q: At this time would you tell the jury what your request is regarding their decision?

A: I’d like the death penalty.

Q: Would you care to tell us why you want the death penalty?

A: To be locked up in prison for something I did not do, is truly cruel and inhuman. I didn’t do it. I don’t care what anybody says. I’m innocent. That to be put in prison for life, that’s not right. You think I done it, gas me. [David was not innocent but knew saying so would really piss off the jury. He did not want to risk them having any pity for him.]

Q: And you’re–you know what you’re asking?

A: Yes, sir.

Q: You know it’s my responsibility to try to save your life?

A: Yes, sir.

Q: That’s all.

Lawson v. Dixon, 3 F.3d 743 (1993). The jury granted David his wish and sentenced him to death.

 

Fourteen years later, on Feb. 28, 1994, in a dissenting opinion from a US Supreme Court Order denying review of David’s case, Justice Harry Blackmun described his concern about what happened at trial.

At the time of his trial, the record suggested that David Lawson suffered “significant psychopathology,” anxiety, depression, hostility, and a likelihood of deficient impulse control. He generally lacked the ability to communicate with his attorney or to understand the nature and seriousness of the charges against him. He thought of suicide and once had attempted it. It is hardly surprising that he told his sentencing jury: “You think I done it, gas me.” Lawson’s counsel, taking his cues from Lawson, neither investigated nor presented any evidence of his client’s mental problems, which might have established statutory and nonstatutory mitigation, which, in turn, might have meant the difference between life and death.

Without deciding the merits of these claims, I conclude that they cast considerable doubt on the reliability and constitutionality of Lawson’s sentence of death.

Lawson v. Dixon, 510 U.S. 1171 (1994).

Enough is Enough!

I believe that in the not-too-distant-future, thoughtful Americans will look back at our governments’ use of the death penalty with horror, much like we do at slavery and at Jim Crow.  How could we (and our parents and grandparents) have ever supported such a practice?  What were we thinking to let our federal and state governments make decisions on who to kill and how to kill them?   How could we let our governments implicate us in carrying out executions — as jurors, as lawyers, as judges, as voters.  Thank goodness those vengeful days are behind us, we will one day say.

For this day to come, some of us have to bear witness to the horror of capital punishment in America.  I feel sorrow for Clayton Lockett who so tragically and so publicly suffered at the hand of prison officials in Oklahoma.  I also feel sorrow for his family and friends, the murder victim’s families and friends, and the lawyers, at least one of whom witnessed the execution.   “It looked like torture,” the lawyer reported.

I know that trauma.  In 2006, I was asked to report what I had witnessed during three executions.  I flew to California to testify at a hearing on the constitutionality of lethal injection.  The question:  is death by lethal injection a cruel and unusual punishment?

I reported what I witnessed.  As to the worst of my observations, that of Willie Fisher’ death, I said the following in an affidavit:

1)                Willie Fisher was executed on March 9, 2001, from 9:00 to 9:21 p.m.

2)                When Willie was brought into the execution chamber, he was alert but only looked at those of us in the witness room briefly.  He mostly stared at the ceiling or closed his eyes.  His lips would often move, as if he were praying.

3)                Shortly after 9:00, Willie appeared to lose consciousness.  Instead of the quiet death I expected, Willie began convulsing.

4)                The convulsing was so extreme that Willie’s cousin jumped up screaming.

5)                Willie appeared as if he was trying to catch his breath but he could not.   I remember this because I was upset that he was suffering, and, wanting to help him, I timed my breathing to his.

6)                Willie’s chest heaved repeatedly.  I wondered if the straps would hold him.

7)                Willie’s eyes were partially open through most, if not all, of the time he was convulsing.

Thankfully Willie was not as conscious as Mr. Lockett, though it did take him 20 minutes to die.

What I didn’t tell the court was how I screamed and jumped up after Willie’s cousin, grabbing her and pulling her down.  I feared we would be forced to leave since we are instructed to remain silent.  She wept.  I don’t think I did.  As usual, as the lawyer, I felt a responsibility to be strong.

I left the execution chamber outraged.  I marched with my co-counsel to the visitor’s center, where the press was stationed.   Unlike other executions, I took the stage.   I don’t remember exactly what I said, but I remember expressing my anger at the unnecessary cruelty that had just happened to my client AND to his family.

Here I am again feeling outrage at the senseless cruelty of state killings.  I pray that with this latest botched execution, courts, law-makers, and voters will finally say enough is enough.   Let’s put this torturous practice behind us.

Lethal Injections

P1040474On Saturday, I awoke to find my old black lab Macey in a bad way.  Pat and I knew this day was coming; we just hoped there would be a clear sign.  Now there was.  It was time to help Macey “crossover” to greener pastures, where she could once again roam free . . . to rummage through trash cans, one of her favorite activities.   At least that was the image I chose to hold onto to get me through the next few hours.

The employees at the vet hospital were very accommodating.  I arrived unexpectedly a couple of hours before they closed for the weekend.  “Don’t worry.  We can work her in.”

Macey was in the back of our Honda Element.  It had been a struggle to get her there.  Macey had lost the use of her back legs, but I had managed to pull/drag her out of the house and lift her to the very spot where she now rested.  (Pat was out of town.)

Now, I had help.  The aide and I struggled to get Macey onto a stretcher and strap her down so she wouldn’t fall off.  Then she was carried off to the back of the hospital to be “triaged.”  I was not allowed to be with her.  Instead, I was shuttled into an exam room, to wait . . . alone.

I tried to call Pat on my cell but could not reach him.  So, I just waited.  Thankfully, it wasn’t long before the door opened.  Two women entered with Macey on the stretcher.  She seemed to float in, on a magic carpet, partly covered with a comfy quilt.

I was thrilled to see Macey looking like her old self, even as she confusedly looked around the room.  I noticed a port taped to her front leg.  The aides sat the stretcher on the floor and left us alone to visit until the doctor was available.  Macey was never much into being touched, except in certain spots.  So I massaged those places, as I reassured her that all would be ok.  “I am ready,” she seemed to say.

Macey was over 14 years old, old for a lab.  We adopted her six years ago as a companion dog to our blind dog, Whitey.  Macey’s health had been declining for a while.  She had lung cancer, though a nerve disorder is what had brought her down.  Macey had rallied for the holidays, though, and that meant a lot to the family.

The vet entered the room, gently interrupting our visit.  She made a point to assure me that I was doing the right thing.   “It is best for Macey and that is what matters most,” she said.  I felt ready.

“Have you gone through this before,” the vet asked.  I nodded.  I couldn’t help think about it, in the same hospital, with Whitey.  “Okay, I have a syringe in my pocket,” the vet said as she reached toward her lab coat pocket.   “She will just go to sleep.”

WHOA . . . .  Not so fast.  “I don’t want to be here for that,” I blurted out.  “Sorry, I wasn’t sure,” she replied.  I was flooded with mixed emotions.  I knew I couldn’t stay, but I feared I sounded uncaring.  I looked to the doctor for direction, and she came through.  “I will leave the room.  You can say your goodbyes to Macey and then just leave.  I will take care of the rest.”   She then hugged me and left Macey and me alone.  I took a deep breath.

“Bye girl,” I said as I rubbed Macey in her special spots.  “You have been a great dog.  Everything is going to be fine.”  Tears were running down my face.  Not wanting other dog owners to see my upset, I raced through the waiting room and left alone in our Honda Element.

Perhaps it is common for pet parents to not stay with their animals being put down.  I don’t know, but I was angry that I could not.

I am a capital defense attorney and have witnessed the execution of four clients.

Zane, Willie, Steve and Timmy were all strapped down to a stretcher with a baby blue blanket pulled to their chins.  I never saw the tubes that I knew were inserted into their skin.  Separated by a thick window, I kept my eyes on each of their faces, trying to provide whatever comfort I could.  I sat there staring at Zane, Willie, Steve and Timmy, mouthing words of comfort and smiling.  All the while knowing that they were being poisoned to death — or as some like to think of it, being “put him to sleep.”

Yet I could not be there for my dog.  Witnessing those executions has left me vulnerable to traumatic stress reactions.  My first time was stepping up to have my own blood drawn, months after Zane’s execution.  The discomfort is less about the images and more about the flood of emotions:  the paralysis, the helplessness.  It is a state of mind one avoids if possible.  And on Saturday, I did.