Ernest had been executed just the day before, on December 6, 2002, at 2:00 a.m. I did not witness Ernest’s execution, the only time I have not witnessed the execution of a client. Seeing Rose’s face after she witnessed her brother’s execution was witness sufficient for me. When Rose walked through the prison mailroom door around 2:25, she looked like she was going to explode. Her face was beet red and as puffy as a cabbage patch doll. I could tell she was trying to hold in her pain and anger as the tears ran down her cheeks.
Rose and I had grown close over the years. I first met her brother Ernest at Central Prison on February 2, 1995. When I explained who I was and my role as resource counsel, Ernest immediately directed me to Rose. She had been Ernest’s tireless advocate since his arrest. Ernest assured me that Rose was the keeper of all the information I sought.
Rose and her husband, Denny, lived in the small town of Kinston, about a two hour drive from my office in Durham. On June 15, they made the trek to meet with me and my boss, Henderson. Rose and Denny were pleasant, educated working class folk. Rose was the most engaged and vocal of the two. Her passion for justice for her brother seeped from every pore. Rose explained how things had gone wrong with her brother and with his trial. She and Denny had been all over the state in their quest to assist Ernest. He was quite fortunate to have such supportive family advocates, a rarity in the dysfunctional families from which my clients originate.
Henderson explained how I had been assigned to Ernest as resource counsel. My commitment was to shepherd Ernest’s case through the system after his direct appeal to insure that competent attorneys were appointed in post-conviction proceedings, to support those attorneys with my (growing) expertise in capital post-conviction litigation, and to step in whenever needed to protect Ernest’s rights. I explained the status of Ernest’s case. His appeal was sitting in the US Supreme Court in the form of a Petition for Writ of Certiorari. It was inevitable that the Court would deny it. We were hopeful that the Court would not deny it before they closed for the summer break at the end of June, pushing a decision into the fall.
Just a few days later, our hopes were dashed. We received the order from the Supreme Court – Cert Denied. This decision meant an execution date would be set. I dreaded telling Ernest and his family, but faxed a letter to the prison asking for an “attorney visit.”
I drove to the thirty miles to the prison two days later. I was pleasantly surprised to see on the sign-in sheet that Rose and Denny were visiting with Ernest. After going through the gauntlet of guards and doors, I stepped into the ghost elevator, which is what I call the prison elevator with buttons that don’t work and which “mysteriously” takes you to your designated floor.
The guard on the visitation unit directed me to the booth in which Ernest, Rose and Denny sat, with a concrete and glass wall between them, of course. I squeezed into the small phone booth size room with Rose and Denny and bent down to speak into the small metal grate that allows sound to travel to the inmate’s side of the booth. “I have some bad news, Ernest. The Supreme Court denied review of your case.” I stopped to gauge his reaction. Thankfully, Ernest understood that this loss was coming and that we were prepared to move into the next phase of litigation; but in death penalty work, the victories are often measured in time, and we had just lost three months. Ernest seemed at peace. He had faith in God, in his family and in me, even though he barely knew me.
Rose and Denny looked at me to gauge my reaction. I was disappointed, but I smiled. There was a lot to do, but Ernest already had a strong team in the three of us.