From Lawyer to Reverend

The usher handed me a printed program as I rushed into the funeral home.  It was only when he spoke that the mental clues began to fall into place:  “Are you the minister?”  Well, I did go to seminary, I thought to myself as I stared at the well-dressed man, wondering how he knew.  I opened up the program; yep, there was my name: Cindy Adcock, Officiating.

There was a part of me that was not surprised that I would be officiating at Ernest’s funeral.  I had prepared somewhat for such an eventuality, though not exactly for this eventuality.

Ernest’s sister, Rose, had called me the day before.   Pat and I were on our way to Laurinburg, ironically for a memorial service.  Pat’s beloved Uncle Charles had died a month earlier.  His funeral was held in California, where he had lived for decades, but he was now being buried at the McCoy family plot.  As we traveled the rural back roads, I was in a haze watching the ice-covered trees give way to a drier, but still bleak, landscape.

Rose asked if I would be coming to Ernest’s funeral.  “Of course,” I answered without skipping a beat.  I had never been to a client’s funeral before, but then I had never been invited.   “I was also wondering if you would be willing to say a few words,” Rose added tentatively.   “I would be honored,” I replied reassuringly.

Perhaps it was my preconceived notions of what a funeral for a man just executed might be like, but my mind latched onto “a few” words.  I imagined a few friends and family members gathered in a small room taking turns saying “a few words” about what Ernest had meant to us.

After Rose hung up, I turned to Pat, who was driving.  “The funeral is tomorrow in Kinston.” I paused and then added, “You will go with me, right?”  I expected he would.   Pat had been my rock over the last week.  Besides, I knew he understood the importance of funerals, always attending those of friends and family.  He had flown across country to be at his Uncle Charles’ funeral.

My cellphone rang again.  I looked down at it and saw Rose’s name pop up.   Guess she forgot something.  “How do you want to be identified in the program?” Rose asked, quickly adding “Reverend?”   Hmmm.   My mind searched for meaning in the question.  I had been Ernest’s lawyer.  Would that be appropriate?  “No, not Reverend,” I responded.  In the end, I left it to Rose.

That was an odd question, I thought to myself after we hung up, but my mind quickly turned to other matters.

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Who, us?

On the Monday after the Luigi’s night of horror, there was a pall over the Resource Center.   The ripples set in motion by the murders were already being felt two hours away by people who didn’t know the victims or the killer.   My colleagues and I gathered in Henderson’s office hoping to learn more about the killings and the latest about Mr. French.

For capital defenders, a high-profile killing is a shock to the system.   You battle — day in and day out — the hate directed at your clients and at you, a more accessible surrogate for your clients.  You battle the misperceptions of the causes of crime and the efficacy of the death penalty as anything other than a blood-letting.   Some days you battle your client who would rather die than live on death row, and some days you battle your own feelings of inadequacy.  Then, the news of another killing grabs your attention.  You know in the pit of your stomach that for you and your clients, the news is not good.

There was a buzz in the room.  The State had already charged Kenneth French with four counts of murder and three counts of attempted murder.  They had already held French’s probable cause hearing in his hospital room.

Henderson interrupted the chatter, “Jim Parrish will be representing Kenneth French.” Jim was a well-respected criminal defense attorney in Fayetteville.   “And I have been asked to co-counsel,” he added.

It had not occurred to me that our office would get involved in the case.  Our primary mission was to improve the legal representation of prisoners already on death row.  However, we all knew that it would be good for our team to get involved in a trial — if for no other reason to gain the experience to help us in attorney consultations and in attacking them on appeal.  In a sense, we needed our “street cred.”

At first there was silence; then, one by one the attorneys and the investigators stated their willingness to help.  “Count me in,” I said.

My First Death Row Clients

In my first few weeks as a capital defense attorney, I was assigned to three cases: Barbara Stager, Michael Pinch and Zane Hill.  All three prisoners had court-appointed attorneys, so I was charged with assisting them.   The cases were at different stages of litigation.  Barbara had won relief on direct appeal, and her resentencing hearing would be taking place soon.  Michael had lost on direct appeal years ago and had been in post-conviction litigation for several years as well.  Zane had lost on direct appeal recently and was just beginning the post-conviction stage.  Bizarrely, his execution date of September 10, 1993, had come and gone with neither Zane nor his attorneys ever knowing.

I cannot imagine starting deathwork with a more “normal” group of clients.   You would have never picked these individuals out of a crowd as killers, even after having a conversation with them.  Yet, all three had shot someone dead.   All were Caucasian, as were their victims.

Barbara was the only one of my new clients who said that she did not intentionally pull the trigger.   Her husband, Russell Stager, was a popular teacher and baseball coach at Durham High School.   He was shot in the head as he slept.  Barbara’s account of the events was that the gun accidentally went off as she was removing it out from under Russell’s pillow.   Hardly anyone believed her, especially as they learned that her first husband had also died of a gunshot wound inflicted at home, allegedly accidentally and by his own hand.

Barbara was tried, convicted and sentenced to death in May 1989.  I remembered the case being all over the news during my first year of law school.  Now, I would be helping the woman that so many despised.

The jury that sentenced Barbara to death used the standard sentencing instruction, despite the fact the instruction was being challenged as unconstitutional.  By 1989, the United States Supreme Court had made clear that states had to give capital juries the discretion to sentence a defendant to life despite the death sentence being on the table AND that this discretion had to be guided so that the jury would consider all evidence that the defendant presented that might mitigate her punishment.   The question remained whether the North Carolina instruction requiring that capital jurors had to be unanimous on the existence of a mitigating circumstance before that circumstance could be considered by any juror for the purpose of sentencing, unconstitutionally restricted a juror’s ability to consider mitigating evidence.

In 1990, the United States Supreme Court decided this issue in McKoy v. North Carolina and struck down the State’s standard instruction.  There were 86 prisoners on North Carolina’s death row at the time.  Forty-four had the faulty instruction and received new sentencing hearings.  Barbara was one of these 44.  Accounts of Barbara’s case, and there have been many, called the error a “technicality,” which is often what skeptics call errors of law even when the law lead to unjust results.

McKoy errors were not technicalities.  How jurors are instructed when they have the life of a defendant in their hands matters greatly.  In this instance, giving all jurors a voice matters greatly.  Of the 44 inmates who received death sentences with the McKoy instruction, 17 were sentenced to life by the next jury who heard their cases with the full discretion to vote for life.   Barbara was one of these 17.  In her resentencing hearing, each juror could fully consider the mitigating evidence, some of which I had prepared, and her life was spared.

Barbara, now 63, lives in the NC Correctional Institution for Women in Raleigh, NC.

The Newness of It

The five attorneys at the North Carolina Resource Center were a bit like the “mod squad.”    There was our fearless leader, Henderson Hill, black male from New York City.  Henderson had never engaged in capital defense work before coming to North Carolina but was an experienced public defender trained in one of the best offices in the country, Public Defense Services in Washington, D.C.   Marshall Dayan, Jewish male from Georgia, was a long time death penalty activist and the only one of us with experience in deathwork.  The remaining three of us — Gretchen Engel, Jim Moreno, and I — were not long out of law school.  Intelligence, drive and commitment were what we brought to the table.

We initially received a lot of resistance from the bar.  Local judges had the appointing power in death cases, and many of them wanted local attorneys to get the capital court-appointed work – no matter the level of experience or interest of those attorneys.   Our office was located in Durham, one of the more progressive cities in North Carolina.  Very few death sentences came out of Durham and neighboring Chapel Hill.   We were considered “outsiders,” coming in from the big city, no doubt to make trouble.

What seemed like overnight, we were appearing in courts across the state asking for stays of execution for inmates who had been sentenced to death by local jurors, at trials overseen by the very judges who we were now standing before.  “Tell me again who you are and what gives you the authority to make such a request?” was a common refrain from the clearly displeased judges.

To be fair, all of us were feeling our way through the system.  Post-conviction litigation was new to most everyone.  It rarely happens in non-death penalty cases, and there had been few capital cases to make it that far.  When I entered the work in 1993, only six of the over 130 prisoners sentenced to death in the modern era had exhausted all of their state post-conviction and federal habeas appeals.   Of these, five had been executed:

  • James Hutchins, 3/16/84;
  • Velma Barfield, 11/2/84 (the first woman in the country to be executed);
  • John Rook, 9/19/86;
  • Michael McDougall, 10/18/91; and
  • John Gardner, 10/23/92.

The other, Anson Maynard, had been saved from the executioner by Governor James Martin on 1/13/92 because of Maynard’s possible innocence.   Henderson was lead counsel on that effort.  Not a bad start for a rookie.

NC Killing Machinery 201

The North Carolina Supreme Court reviews every death sentence on direct appeal to make sure there is no prejudicial legal error.  If it finds no error on the record in a case, the condemned inmate can proceed to the second level of appeals.  The purpose of this level of review is to give state courts the opportunity to correct a death sentence obtained unlawfully or unconstitutionally based on facts not known by the defendant at trial.  This level is called “post-conviction” litigation.  Errors sometimes uncovered at this level include poor lawyering of trial counsel, prosecutorial misconduct, and juror misconduct.

Post-conviction defense attorneys investigate what happened at trial to insure that death sentences obtained unlawfully are brought to the attention of the court.   These attorneys also carry forward to the federal courts any legal or fact-based issues raised before the state courts for the third and final level of appeals.   This level insures that inmates have access to federal review when they are asserting that their state has unlawfully obtained a death sentence.   It is very rare, however, for an inmate to find relief in federal court, because the court gives great deference to the decisions of state courts.

It is at this level of appeals I have worked since beginning deathwork in 1993.  I entered the realm of post-conviction litigation at a time that was both exhilarating and mind-numbingly depressing.  It was exhilarating because the need for good legal representation was significant, and there was no question my work was needed.  It was depressing because, well, prisoners were being executed.  But it was mind-numbingly depressing because the death penalty system (a.k.a. the machinery of death) had not been cranked up to such a high degree since the 1940s, when “The War” taught us that gassing those viewed as less than human was an atrocity.

I became one of five lawyers at the North Carolina Resource Center.  This organization was created in 1985 with funding from lawyers and then expanded a few years later with state and federal funding.  The purpose of the agency was “’to identify, recruit, and assist attorneys representing prisoners under sentence of death in NC after direct appeal to the NC Supreme Court; and to act as a clearinghouse for the identification of legal issues that arise in those cases, to help insure that the prisoner receives adequate representation.’”

The Center was part of a network of federal resource centers in death penalty states created after the federal judiciary expressed grave concerns about the quality of representation of death row inmates.  The judiciary’s concerns were validated in 1990 when the American Bar Association issued a report concluding that “’the inadequacy and inadequate compensation of counsel at trial’” was one of the “’principal failings of the capital punishment systems in the states today.’” The report contained numerous examples of flagrant misconduct by defense attorneys in capital cases.  (I. Robbins, Toward a More Just and Effective System of Review in State Death Penalty Cases, Report of the American Bar Association’s Recommendations Concerning Death Penalty Habeas Corpus, 40 American U. Law Rev. 1 (1990))

NC Killing Machinery 101

In 1972, the United States Supreme Court declared that the death penalty as carried out in all jurisdictions, including North Carolina, was unconstitutionally cruel and unusual.   NC’s legislature adopted a new death penalty system in 1977, which remains the foundation upon which today’s death penalty laws are based.

In October 1977, the first two defendants to be sentenced to death under the new statute in North Carolina arrived on death row three days apart.  The first was Mr. Daniel Webster, white.  He committed suicide two weeks after his arrival.  His desperate act left Mr. James Calvin Jones, Indian, the sole death row occupant.  Jones received a new trial on direct appeal in 1979.  The second jury that heard his case convicted him to second degree murder; he was sentenced to life.  Jones was paroled in December 1992.

A death penalty system is a government program, which is, like any other government program, dependent upon government employees or contractors to carry it out.   At the trial level of the system, there must be both prosecutors and defense attorneys.   Most people get what happens at this level – guilt or innocence, life or death.

Some people have misconceptions about what happens after a sentence of death, in the appellate process.   They think that a person sentenced to death receives an “endless” number of appeals.  In reality, there are just three levels.  Each level serves a particular purpose and provides a check on what other decision-makers have done to that point.  Three levels of checks and balances are not too many, in my humble opinion, for a government program aimed at killing citizens.   (Since 1973, 140 women and men have been released from the death rows of 26 states with evidence of actual innocence.  Seven of these are from North Carolina.)

The first level of appeal, called the “direct appeal,” involves only a review of the trial record.  The question is whether there were any serious errors of law at trial, at least as can be determined by reading the transcript or related documents.  All of the early death sentences under the new statute were overturned on direct appeal.  Of the inmate who received a death sentence in the 1970s (and didn’t commit suicide), 9 out of 14 won their direct appeals and were resentenced to something less than death.   Fifty percent of inmates who arrived on death row by the end of 1983 won their direct appeals.  The attorneys that handle this level of appeal are called appellate attorneys.   I was never one of these attorneys.

A high number of reversals of a new sentencing law is not surprising given the uncertainty new laws bring.  But it also takes good appellate lawyering to reach such a result and that credit can be given to the decision of Governor James Hunt to establish an Office of the Appellate Defender and to appoint an experienced capital litigator, Adam Stein, as North Carolina’s first Appellate Defender.  Stein served as North Carolina Appellate Defender, 1981-1985.   He became one of my mentors in 1989, when I worked for his law firm in Chapel Hill.

An Unexpected Path

“How can you do that kind of work?”   I look at and listen to the questioner intently for the cues, how much emphasis and on which word.  Is the questioner’s face one of sympathy or of horror?   These cues, along with my mood at that moment, determine my answer.   “It is the most morally pure work a lawyer can do, to save a human life,” I say.  Or “The clients get you through it, along with their family and friends.”   Or I just smile.  Perhaps the more authentic answer to the question would be . . . “I can relate,” but that answer would require too much explanation.

I never planned on being a lawyer.  In high-school, I “walked the aisle” of my Baptist church and dedicated my life to “full-time Christian ministry.”   I wasn’t sure what kind of ministry, but I was committed to following my calling.  I had good grades in school, but was shy, with a serious fear of public speaking. Shaped by a variety of experiences in my young life, I was prepared to be brave, face my fears, and lay down my life if that is what it took to serve God.