Finishing the Opinion

At Zane’s trial, the prosecution painted a disturbing picture of an abusive husband who tortured and controlled his wife.  This picture explained the death sentence.   In 1990, there were 711 homicides in North Carolina.  Only 14 of the killers were sentenced to death.  Thus, with any death sentence, I ask myself “Why did this defendant get death?”

The strategy of the defense attorneys was to convince the jury that Zane did not intend to kill his son.  If he didn’t, then Zane was guilty of no more than second degree murder.  I dug further into the Court opinion to see what additional evidence there might be.

I breezed through the litany of legal issues raised by appellate counsel, who were also the trial attorneys.  Much evidence was excluded by the trial court.  The NC Supreme Court laid the fault at the feet of the defense attorneys.  The Court made them look inexperienced and inept.   One piece of excluded evidence caught my attention:

Dr. Felix testified that the defendant suffered some brain damage and the defendant’s use of alcohol and drugs worsened this condition. Dr. Felix expressed his opinion that, in light of the defendant’s condition, “[I]f he had formed a plan, he wouldn’t have been able to remember it.”

The Court found the doctor’s testimony to be speculative, and thus, the trial judge was correct in excluding it.   I looked forward to talking to Dr. Felix.

What about other mitigating evidence?  In a capital trial of a defendant who clearly did the deed, good defense counsel will build a case for life throughout the trial.   Too often, the main event is the sentencing phase.  Here the burden is on the prosecution to show why the jury should take the extraordinary step of sentencing a man or woman to death.  But defense counsel now has a client who the jury just convicted of murder, so counsel has to bring their best game to convince the jury to spare the life of this murderer.

The Court said little about any other mitigating evidence.  What was said seemed laughable.  Counsel presented testimony from a friend that he and Zane had been bitten by a rabid dog as children.  Counsel tried to get the trial court to instruct the jury that “The defendant’s chronological age is fifty-four, but his physiological age is in fact seventy-five to eighty.”  However, they presented no evidence to bolster this assertion.

I put down the opinion and took a breath.  I had not yet represented a wife abuser.  I knew the day would come and wondered how I would feel about it.  Sympathy for the man was certainly not my first emotion.   Given my past experiences, I was naturally sympathetic to Mrs. Hill.  Looking for the bright side, I thought, “at least he didn’t kill her.”

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