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.
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 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.’”
The letters poured into the governor’s office in support of clemency for Ernest.
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. 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, 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.
Basden v. Lee, 290 F.3d 602, 612 (4th Cir. 2002).