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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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.

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.

A New Direction for the New Year

I cannot believe that I have not written here since July!  You know how it is.  You get busy.  For me, it was a new school year in a new location.  But being busy is never the whole story, right? 

I think I stopped, in part, because I did not want to go where the story was taking me next.   Not that the next chapter would have involved anything as traumatic as an execution, but it did involve the beginning of a relationship full of conflicting emotions and stress.  (I was just about to knock on the door of the wife of my first client to be executed, Zane Hill, see https://cadcocknc.wordpress.com/2013/07/06/beaverdam-loop-road/.)  It also involved dealing with the difficult subject of domestic violence. 

So, with the New Year, I have decided to head off into another direction.  I am reminded of the name of this blog:  struggling to breathe.  Sometimes life’s events can make it hard to breathe:  often metaphorically but sometimes in actuality.   And when it happens, you may – like me –have to hold your breath until the constricting pressure from the thought, the tide or the air lets up.   I am thankful for clean air and the ability to breathe deeply.  Happy New Year!

My First Thoughts on the Death Penalty

In memory of Will Campbell . . . .

Struggling to Breathe

I didn’t think much about the death penalty before college.  I grew up a Fundamentalist Baptist.  I don’t remember a sermon on the death penalty but certainly knew that plenty of church folk were for it.   Something about “thou shall not kill” and “the wages of sin is death.”    Though even as a child, I wasn’t sure how you got around the circular problem of killing a killer is still killing.

I didn’t think much about the death penalty in college either.  As I came to better appreciate God’s grace and Jesus’ ministry to the poor and dispossessed, I knew I was against it, but my concern was more on the millions of people who needed the basics in life to survive.  Only a few persons were executed each year.  The greater need was of those dying due to the lack of food, shelter and safety from domestic violence.

I…

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Getting to know Zane Hill

Zane Hill was the first death row inmate I ever met.  (More on the first visit at https://mysites.charlottelaw.edu/personal/cadcock/Personal%20Documents/Blog%20entries.docx)  He was a wife abuser, but this fact was never an obstacle to our relationship.  For one thing, he didn’t kill his wife.  He shot his adult son, who also had a gun.  For another, Zane was a grandfather and looked older than the 57 years he had behind him.  Finally, he was drinking and taking drugs the day of the crime.  So, he was “not in his right mind” when he shot his son and shot at his wife.   Perhaps I was rationalizing, but Zane was not your typical death row inmate, if there was such a thing. 

The hard life of the mountains and the hard drinking had taken their toll on Zane both physically and mentally.   He had many ailments and clearly was not the brightest bulb in the pack.    I was never apprehensive about meeting with Zane.   Indeed, he kind of reminded me of my grandfather – not because of his violence but because he was a mountain man.  

The Center recruited a couple of private lawyers to represent Zane in post-conviction proceedings:  Harold Bender and Robert Stephens, both of Charlotte, NC.  They were experienced attorneys but neither had litigated a post-conviction case.  In fact, Bob had never litigated a criminal case.   I stayed on the legal team to lead the investigation and be the capital post-conviction “expert.”   I don’t think Bob and Harold knew this was my first such case as well.  What mattered was that I was an attorney at the death penalty resource center.    Though I was a novice, the stakes were too high to act as one. 

The Zane that I came to know was kind, funny and humble, and that was his reputation — at least when he was sober — in the holler from which he came.   I never knew the man who would binge drink for weeks at a time and become violent to those he loved most.  That’s when he became like his father and, sadly, like many men in the holler.   

The trial lawyers had done little investigation into Zane’s family and medical history, something that is critical to presenting an adequate defense in a capital case, particularly of someone who unquestionably did the killing such as Zane.   Therefore, I was determined to leave no stone unturned in developing the story of Zane Hill.  

Zane was born in Buncombe County North Carolina where he lived his entire life until his son’s shooting.   With the help of law students and an investigator, I spent months combing the hollers of western North Carolina talking to anyone who would talk to me about Zane and talk they did.  I came to know Zane better than he knew himself.  I uncovered a compelling story for life, a story never presented to the jury.