Better Late Than Never, I Guess

Food Truck Rodeo
©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.

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.

When the Bell Tolls

David Lawson
David Lawson

Very often, those who kill in the depths of a depression become very different people when they receive treatment in prison. In a sense, they become the people they were meant to be. Such was the case with David Lawson.

I got to know David through Marshall and Jim, reading their briefs and listening to their stories. They, and others who came in contact with David, spoke of his deep remorse and concern for others. He sounded insightful, even philosophical. David was much more human than the horrific acts he committed fourteen years earlier might suggest.

One of the travesties of justice with our death penalty system is that we execute people who are no longer the same persons they were at the time of their crimes or even the same persons that a jury of twelve decided should be put to death. For the attorneys representing such prisoners on appeal, this transformation makes it easier to fight for life, but it makes the defeats excruciatingly difficult.

David had had numerous execution dates. When the US Supreme Court denied review of his federal petition in February 1994, we knew to expect another date. We also knew that this date could stick.

On Friday, April 11, Marshall received a letter from the warden of Central Prison. Never a good omen. Word spread quickly through our office suite, and we gathered in Marshall’s office. “An execution date has been set in David’s case,” Marshall said somberly. “It is June 14th.”

What do you say to someone who receives notice of the exact day and time that their client and friend will likely be killed? “I’m sorry,” is all I could come up with. Marshall was closing down his computer and putting some books in his satchel. “I am going to see David,” he announced. We all just stood there, as Marshall slid by us and out the door. Jim was close behind.

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.

Meeting Ernest and his family

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.