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.

Advertisements

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.