Execution on Ice

Ernest was scheduled to be executed on December 6, 2002, at 2:00 a.m.  All executions are scheduled for 2:00 a.m. in North Carolina.  Urban legend is that this early morning hour was designated long ago to limit inmate unrest, as well as public demonstration.   Maybe so, but the late hour is brutal on those involved in an execution, especially the witnesses and the family and friends of the inmate.   For those trying to stop the execution, exhaustion mixes with hope to stave off despair.

I awoke on Wednesday, December 4, to a grey sky.  A winter storm was on its way.   I went downstairs and flipped through the Raleigh News & Observer until I got to the latest weather report:

It is not yet officially winter, but the Triangle is bracing for its first brush with icy weather today and Thursday.

Forecasts call for snow and sleet starting by mid-afternoon, changing to a mix of sleet and freezing rain tonight. The storm could produce a quarter-inch of ice or more on roads by Thursday morning, when more rain or freezing rain is expected.[1]

“Great,” I said sarcastically as I recalled my execution mantra: expect the unexpected and roll with it.

My mind began to ponder the possible scenarios.   What would it take for the State of North Carolina to call off the execution?  Maybe the Executioners won’t be able to get to the prison?  Then a panic set in.  What if I can’t get to the prison?   What if my co-counsel, John and Matthew who live even further away, can’t get there?  And what about Ernest’s family?  Eight of his nine brothers and sisters, along with nieces and nephews, planned on being at the prison for their first contact visit with Ernest in a decade.  They would be devastated if they were unable to tell Ernest goodbye, as would I.        

It was raining when I went to bed early on December 4th.  I was awoken in the middle of the night by the sound of tree limbs breaking and transformers blowing.  Our electricity had gone out.  I snuggled closer to Pat in bed and tried not to think what the next 24 hours might bring.

When I woke again, the sun had risen.  I blew into the air and saw my breath.  I sat up, looked out the window, and saw a winter wonderland.  Everything in sight was covered with ice.

Unbeknownst to us, we were experiencing an ice storm of historic proportions.   New records were set across the Carolinas and Virginia on power outages and their durations, traffic accidents, school closing durations, and fatalities resulting from an extreme weather event.  Some dubbed it “Hugo on Ice” because the storm broke the previous record for regional power outages set by Hurricane Hugo in 1989.  Raleigh recorded the most freezing rain from a single storm since 1948, more than doubling its previous record for freezing rain totals. [1] OLYMPUS DIGITAL CAMERA

Pat went downstairs to turn on the gas fireplace and stove to give us a little relief from the arctic air.  I checked my cell phone.  No service.  I could not communicate with my co-counsel, the prison or Rose.  All I knew to do was to strike out for the prison.

Thanks to a gas water heater, I was able to take a hot shower before putting on layers of clothing.   I pulled on my hiking boots and carefully slid to the car.  Pat stayed behind to care for his elderly mother and our dogs.

My slow 30 mile trek to the prison took me through a surreal white landscape.  Those trees that were not snapped into pieces were arched to the ground by the weight of the ice.  It was lonely on the road, which was a good thing: fewer things to hit or to be hit by.

There were no signs of electricity, until I reached the prison.  As I pulled into the
de-iced driveway leading to the visitor center, planted between the road and the prison, I saw the lights on inside. “Damn. I guess they are up to an execution.”

 


 

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Begging the Governor (Ernest Basden Part 3)

The final stop of our tour was at the Governor’s Office, just a couple of days before the impending execution.  John, Matthew and I, along with former NC Supreme Court Justice Harry Martin, who had become a supporter of Ernest’s cause, met in the rotunda of the North Carolina Capitol.  We were joined by Rose, Denny, Sonya and Ernest’s older brother Leonard.  As we waited, I saw the lawyers from the Attorney General’s Office arrive.  They were there to meet with the Governor as well, to argue for going forward with the execution.

The North Carolina state capitol building (DaveCrosby/Flickr).

I had been in this inner sanctum twice before, once before Easley.  Two years earlier, Larry Moore and I had sat in the same room and urged Easley to commute the death sentence of Willie Fisher.  The Governor was not convinced, and Willie was executed.   I wondered if the Governor remembered that meeting, as I smiled and shook his hand.The Governor took his seat behind his desk; I quickly assessed the most appropriate seat for me.  One by one we argued as lawyers do for sparing a man’s life, a perverse conversation that should never be had.  We then brought in the family.

Rose did not hesitate.  She stepped up to the Governor and pleaded for mercy for her brother.   Leonard summed it up, “The judicial system in this just hasn’t been fair.  The man without money is the one on death row.”[1]  The Governor looked uncomfortable.  Our time was up.

As I passed the Governor going out the door, he shook my hand and said “Good luck.”  “Luck?  What does luck have to do with this?” I screamed to myself.

The Public Campaign for Clemency (Basden Part 2)

Part of convincing the Governor to grant clemency is building public support.  We kicked off the public campaign on November 20 at the Broken Eagle Eatery in Kinston, North Carolina, where Rose worked.  Over thirty of Ernest’s family members and friends greeted John and I.  We asked for their help to get the word out about the injustices in Ernest’s case, to write letters to the Governor in support of clemency, and to get others to do the same.

rose sonya nancy

Sonya, Rose and Nancy by Steve Dear

Rose and her daughter Sonya were Ernest’s best spokespeople.  Rose could tell the story of the injustices in Ernest’s case like no one else.  Though she had no public speaking experience, Rose agreed to embark on a speaking tour of Eastern North Carolina.

Rose never declined an opportunity to talk about Ernest’s case.  At each stop, she would rise, introduce herself, and begin the heart-wrenching story of her brother’s case, pushing through the tears streaming down her face.  Her audience was always spellbound.

Sonya, who looked considerably younger than her eighteen years, would comfort her mother and provide the much needed tissues.  She would then stand and speak.  Sonya was amazingly poised as she described her friendship with her uncle and why she thought he should not be executed.  She had visited her uncle since she was ten-years-old and only knew him as a death row inmate.  Sonya told one reporter, “‘He’s the best uncle in the world,’ . . . recalling the way they tease each other because she is a Duke sports fan and Ernest roots for UNC.  ‘I believe in him so much.  He’s just a good man.’”[1]

The letters poured into the governor’s office in support of clemency for Ernest.

The fight for Ernest Basden

I first met Ernest on February 2, 1995, at Central Prison in Raleigh.  Of all my clients, he was the least needy.  For one thing, he was sane.  Ernest’s problems stemmed from his self-medication of depression with alcohol and drugs.  Once he was locked up, he got clean and became a new man.  Or, as he might say, Jesus saved him from his evil ways.

Ernest also had a strong support system.   images[8] He had reconnected with his family, most of whom were quite normal — whatever that means.  A family member visited him every week, despite the 90 mile drive and the harsh visiting conditions of a small closet-sized room, with steel stools and a Plexiglas barrier separating visitor from inmate.  They had missed only five or six visits over ten years.

Rose was Ernest’s most tireless advocate, laboring since his arrest in 1992 to get needed evidence at every stage of litigation.  But her work was largely in vain.   Ernest’s trial lawyers did not use any of the records she obtained, nor did they prep the witnesses she secured.  On appeal, we had no success in getting a court to listen to the evidence.   For us all, the post-conviction process had been a roller-coaster ride of hope and despair, hope and despair, hope and despair.

Now, in November 2002, we clung to one last hope:  the Governor could commute Ernest’s death sentence to life without the possibility of parole.  We knew this hope was a long shot.  Governor Mike Easley was the former Attorney General and had presided over ten executions and had pushed for upholding the death sentence of numerous inmates, including Ernest Basden.  In addition, he had just commuted earlier in the year the death sentence of Charlie Alston, who was possibly innocent. What were the chances of a second commutation?  Yet, we felt we had an unusually strong case for a life sentence.

First, there were the facts around the crime:

  • There were more culpable co-defendants.  Sylvia White wanted her husband, Billy, dead.  She convinced Lynwood Taylor, Ernest’s nephew, to kill Billy.  Together, they devised a plot, but Lynwood, local drug dealer and police informant, did not want to pull the trigger himself.
  • As one court described him, Ernest was a manipulated rube,[1] chronically depressed and a heavy user of alcohol and drugs.  Lynwood plied Ernest with drugs and alcohol and convinced him to help for a small amount of money.
  • Ernest lacked the mental state required by law for a first degree conviction much less the death sentence.  On the fatal night, Lynwood tricked Billy into meeting him and drove an intoxicated Ernest to the designated remote plot of land.  When Billy arrived, Lynwood introduced himself and then walked away.  Ernest got out of the car, picked up a shotgun, and shot Billy twice.

Then, there were the circumstances surrounding the trial and sentencing:

  • Lynwood and Sylvia were given more lenient treatment by State officials; both avoided the death penalty.  The State permitted Taylor to plead guilty to first-degree murder four years after the crime; he received a sentence of life imprisonment.  Similarly, the State allowed Sylvia to plead guilty to conspiracy to commit murder and second-degree murder, four years after the crime.  She too received a sentence of life imprisonment, despite the fact that the State had recently convicted her of the 1973 unrelated murder of her four year old stepson (Billy’s son and namesake), who she suffocated with a plastic bag.
  • Ernest’s lead trial counsel bowed out shortly before trial because he was dying of leukemia.  He had done little work on Ernest’s case, but the court refused to delay the trial.  New counsel was completely ineffective, most notably for allowing Ernest to testify for the State in Sylvia White’s baby-killing case without benefit of his testimony.
  • Many of the jurors gave affidavits and videotaped interviews that they did not intend for Ernest to actually be executed.  They were convinced by the foreman that a death sentence would be overturned.  They just wanted to send a strong message of condemnation.
  • Ernest was a model prisoner and served as liturgist for death row.
  • Ernest had a dedicated family undeserving of the weight of Ernest’s looming execution.

[1] Basden v. Lee, 290 F.3d 602, 612 (4th Cir. 2002).

The Ripples of Trauma from Sandy Hook

Hearing the news about the Sandy Hook Elementary School massacre last Friday triggered deep emotional pain across America and the world, even though few of us knew anyone close to those murdered.   Parents with young children held them tighter.  Children said prayers for the children lost.  In a darker place, many who have experienced loss through gun violence began to re-live their own trauma.

The ripple effects of senseless violence are long and deep.  Psychological trauma hits the hardest those caught in the immediate splash – the witnesses, the survivors (those closest to the event and the victim), and the perpetrator (assuming he or she lives).  The trauma spreads to friends of the survivors and of the perpetrator and to those who hear details about the killing.   It also spreads over time to those who later get to know the survivors and the perpetrator.

I have never had a loved one lost to gun violence or even murder, though my husband’s sister was murdered long before I knew him.  But as a lawyer, I have represented and have grown close to clients who have killed and then been killed by state execution.   I have heard things no one should hear and have seen things that no one should see.   The psychological trauma has taken its toll.

One of the consequences of psychological trauma is that its dysfunctions can re-emerge at any time, overwhelming your mental functioning.  You never know when the symptoms will be triggered.

I was running errands on Friday, when I first heard about a shooting at an elementary school.  Instinctively I knew it best to wait until I got home to learn more.  When I did, an overwhelming sadness enveloped me, and it has not lifted.  Thoughts of one of my executed clients, Steve McHone, and his family suddenly crowded my mind.  I write in hopes of stopping the flood.

Steve’s story is similar to Adam Lanza’s story though certainly different in magnitude.   Steve was the same age of Adam when he committed his crimes; he had just turned 20.  In the middle of the night in the idyllic town of Mount Airy, NC, Steve shot and killed his mother in their backyard and his step-father in the kitchen, before he was stopped by his half-brother.

Steve suffered from mental illnesses, which he had self-medicated with alcohol and drugs since the age of 12.  Steve had violent outbursts, once chasing his mother, Mildred, around the kitchen with a knife.  Mildred tried several times to get him psychological help, but the actual treatment he received was minimal.

On June 2nd, 1990, the perfect storm came together – alcohol, severe depression, conflict and guns.  Steve went to a party, got drunk, and got a gun from his family camper.  He fought with friends at the party but nothing came of it.   By the time he got home after midnight, Steve was distraught, threatening suicide.  He fought with his parents and was sent to his room to sleep it off.

In his basement room, Steve drank more and called his AA sponsor for help.  The sponsor did not come.  Steve went into the backyard with his pistol, most likely with the intent to kill himself.  Mildred was concerned about her son and made her way to the backyard too, with thoughts of removing the gun from the family camper, unaware of the fact that Steve already had it in his grips.

No one knows the details of the interaction of mother and son that night, but it ended with Steve shooting his mother.  Steve’s step-father, Wesley, ran to the scene, disarmed Steve and dragged him into the kitchen.  Wesley left Steve alone long enough for Steve to run to the bedroom and get a shotgun kept in the corner.

By this time Steve’s half-brother, Junior, was present.   Steve shot at Junior, but Wesley intervened and was shot dead.  Steve was subdued by Junior, who Steve begged to kill him.   Impressively, Junior, with both his parents dead, did not oblige.

The State was less restrained.  Steve was executed by the State of North Carolina on November 11, 2005, at the age of 35, fifteen years after his crimes.   I witnessed his pre-meditated killing.   I also witnessed the trauma suffered by three of his four siblings who had forgiven Steve and who had begged the Governor in vain to stop the execution.  So, goes the circle of violence and the traumatization.

I bristle when I hear people suggest that more guns in the home and in the schools are the answer to our country’s problem of violence.   I also bristle when I hear people suggest that we must arm ourselves to protect us from criminals.   I have met these criminals and they are us.  They are our brothers, our husbands, and our sons.   They are also our friends and our neighbors.

It is easy to be overwhelmed by the pain and grief caused by Adam Lanza, but we must not become paralyzed.  We all have much work to do in our own backyards:  to become more knowledgeable and understanding about mental illness, to become more perceptive of those in psychological distress, and for all our sakes, to remove guns from easy reach of those in distress.

The machinery of death accelerates

In September 1995, I received word that two attorneys had agreed to represent Ernest Basden in post-conviction proceedings: John Loftin and Matthew Martin, both from Hillsborough, NC.   I met with them to bring them up to speed on the case.  I was impressed by their intelligence and energy and concluded that Ernest was in good hands.  Both were very open to my continued involvement and support as a resource; like most of our recruited attorneys, neither had ever litigated a capital case.   The number of inmates coming onto death row far exceeded the capital expertise of the bar.

How did we get to this point?  [For my sources in this post, see the twenty-fifth anniversary of post-furman executions in north carolina:  a history of one southern state’s evolving standards of decency, http://www.elon.edu/docs/e-web/law/law_review/Issues/Adcock.pdf,%5D  Americans were greatly affected in the 1980s by rising crime, the news of which increasing seeped into our consciousness with an unprecedented intensity thanks to television and movies.   Nationally, in the more “innocent” years of 1950 through the mid-1960s, homicide rates had held relatively constant at about 4 –5 per 100,000 persons.  The rate then rose sharply, peaking in 1980 at 10.2 per 100,000 persons.  From 1980 to 1991, the rate fluctuated between 8-10 per 100,000 persons.   This disturbing trend held true in North Carolina, where the state’s violent crime rate spiked between 1988 and 1992 with a 35.3% increase.

As our fears of being killed, raped or maimed rose, politicians learned that playing on our fears worked to their benefit.   They made campaign promises of longer prison terms, larger prison populations, and more death sentences and executions.  Once elected, legislators, prosecutors and judges followed through on their promises.

Accordingly in the 1990s, North Carolina prisoners were sent to death row in record numbers.  Between January 1990 and October 1991, 27 condemned prisoners arrived on death row, a 57 percent increase.  By January 22, 1995, there were 112 inmates on death row.  By the end of the year, 34 additional prisoners had joined death row, the highest annual gain in modern times.

Not only were more defendants being sent to death row in the mid-1990s, more were staying there.  From 1979 to 1984, the North Carolina Supreme Court found reversible error in death cases 61% of the time.  In each of the years from 1990 to 1992, over 80% of capital convictions were overturned on direct appeal by the Court.  This reversal rate decreased dramatically in 1993 to just over 40%, marking the beginning of a sharp decline in reversals.  In 1994, the reversal rate was 32%; in 1995, just 4%.

Amidst this accelerating doom and gloom, capital defense lawyers held out hope that we could win relief for our individual clients if we did a good enough job.   We certainly thought so in the case of Ernest Basden.  John and Matthew did a great job of investigating the facts of the case, assembling a team of volunteers and paid specialists.  Their motions were thorough, culminating with a well-developed petition for “appropriate relief,” which in this case was a new trial and/or sentencing hearing.   Ernest and his family had a sense that the injustices in Ernest’s case would be finally addressed.

Then, in May 1996, hope was shattered.  On May 6, the District Attorney filed a motion to summarily dismiss Ernest’s case, without discovery and without a hearing.  John and Matthew quickly responded but on May 10, Matthew’s wife was critically injured in an automobile accident. They had just had their first child.  As Matthew was trying to attend to his family crisis, over Memorial Day weekend, Matthew received a court order dated May 21, summarily denying relief to Ernest. To add insult to injury, the order had been drafted by the District Attorney, behind the backs of the defense attorneys.   Just like that, in a matter of a few days, Ernest was out of court.

The Crime

Ernest Basden was convicted of shooting and killing an insurance salesman, Billy White, in rural Eastern North Carolina in 1993.  The plot of the story is like a poor man’s soap opera.  Billy’s wife, Sylvia, wanted her husband dead.  After failing to accomplish this goal herself using poisoned berries, Sylvia talked Lynwood Taylor into killing her husband.

Lynwood knew how the system worked; a small-town drug dealer himself, he was an active police informant.  He knew better than to do the deed himself.  After
asking around town for a partner in crime, he turned to his nephew, Ernest, who was renting a room from Lynwood’s mother, Ernest’s aunt.  Ernest was down on his luck, chronically depressed and apt to self-medicate with alcohol and drugs.  Lynwood provided Ernest with the needed drugs and alcohol, and after initially resisting, Ernest was convinced to help kill Billy.

Lynwood and Sylvia devised a plot.  Under false pretenses, Lynwood arranged for Billy to meet him at a deserted plot of land late at night.  Lynwood plied Ernest with alcohol and drove him to the designated spot, where they waited in the dark.  When Billy arrived, Lynwood introduced himself and then excused himself.  Ernest got out of the car, picked up a shotgun, and shot Billy twice.

It did not take long for this tale to come to light.  Lynwood and Sylvia were arrested. Ernest turned himself in.

Of the three, Ernest was tried first.  He was sentenced to death on Good Friday, April 9, 1993. Sylvia and Lynwood Taylor both avoided death sentences.  The U.S. Fourth Circuit Court of Appeals was troubled that Ernest, “an intoxicated, manipulated rube,” was the only one to get a death sentence:

Moreover, notwithstanding (or indeed perhaps because of) the greater cunning of Taylor and Sylvia White, they have been treated much more leniently than Basden.  The State did not bring Taylor to trial until four years after Billy White’s murder, and then permitted Taylor to plead guilty to first-degree murder; he received a sentence of life imprisonment.  Similarly, the State did not seek to try Sylvia White for almost four years after the murder of her husband and then allowed her to plead guilty to conspiracy to commit murder and second-degree murder; she too received a sentence of life imprisonment.  Prior to that conviction, the State tried and convicted Sylvia White for the 1973 unrelated murder of her stepson (Billy White’s son and namesake) whom she suffocated with a plastic bag when he was four years old; the State did not seek the death penalty for that murder and White received a life sentence for that crime too.  [See Basden v. Lee, 290 F.3d 602 (4th Cir. 2002).]

According to one prosecutor, Taylor was given leniency in his sentence for Billy White’s murder because he helped the state win a conviction against Sylvia in the stepson’s case. The problem with this excuse is that Ernest’s testimony against Sylvia was equally if not more critical to the conviction.  In any case, Ernest’s attorney sought no favorable treatment, and Ernest received none.

There were other serious flaws with Ernest’s death sentence. Ernest’s trial attorney had to withdraw from the case when he was stricken with cancer; the new lawyer was given only six weeks to prepare for trial.  The trial was a disaster, most notably when the lawyers put Ernest on the stand, to no good end.

When the post-conviction team contacted the jurors, all but one stated that he (or she) never intended that Ernest be executed.  That one juror, then deceased, had told his fellow jurors that he “knew” first-hand that death sentences were overturned on appeal and that Ernest would get another trial and never be executed.  The jurors were sufficiently convinced and gambled with a death sentence.  They — and Ernest — lost.