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.

Who is Hurt by Executions?

Ernest was scheduled to die in just a few hours, and we still had not heard from the Governor’s counsel.  Why was he waiting so long to tell us his decision?  Was it a good sign?  Maybe he just wanted to wait until the evening news had been put to bed.  Or was it a bad sign?  If it were good news, wouldn’t he want to relieve our pain?    

Around 9:00, John’s phone finally rang. The room fell silent.  It was hard to breathe.  “Yes sir,” I heard John say.  “I understand.  Thank you for your consideration.”  John closed his phone and shook his head.  There would be no clemency.  The shock was palpable.  The wailing began.

This moment may be the hardest moment in death work for an attorney.  The emotional pain is intense.  I could literally feel it in my gut.  Yet, you have responsibilities:  to your client and to your client’s family and others on the legal team who have invested so much in the fight for life.   Thus, you tamp down your own sorrow, to make it through the night.

I headed for Rose, who was sobbing.  She gave me one of her legendary bear hugs.  “I am so sorry,” I said through my own tears.

We needed to tell Ernest.  John, Matthew and I bundled up and walked toward the main building.  When we entered the visiting cell, Ernest was waiting on the other side of the rear door.  Our eyes met, and I tried to crack a smile, while we waited for the steel door between us to slide open.   Ernest stepped in, and John broke the news: “The Governor denied clemency, Ernest.”   Ernest was the only one not crying.  “Don’t worry,” he said as he hugged us.  “I am ready to die. I appreciate all you have done for me.”   

Ernest’s family was standing outside the cell door.  We needed to step out and let them have their final visit.  We would return for ours.

The execution was still three hours away. I wanted to run, to escape, to go anywhere else and weep in private, but there was nowhere to run, at least nowhere with electricity.    When I reached the front door of the prison, I walked past the visitor center straight to the group holding vigil.  Most of the few left were my friends.  I thanked each of them for their support, as I tried not to break down.   

In our last visit with Ernest, he called us his “dream team,” and urged us to “continue the fight.”  I had no plans to witness Ernest’s execution; I had seen enough clients die. Besides, I knew John and Matthew would do it.   But not witnessing made it even harder to say goodbye to Ernest. I would never see him again.  This healthy man was about to be killed.  Before the guards took Ernest away, I hugged him tightly, kissed him on the cheek, and said “I will never forget you.”

The lawyers and family were ushered into the prison mailroom, located downstairs from the execution chamber.  We passed the time by praying, singing and telling stories about Ernest.  At 1:30, the warden came for the witnesses:  John, Matthew, Rose and Ernest’s brother Gerry.   I moved to the couch to sit next to Sonya.  We agreed that she would be my adopted little sis.  As the clock ticked to 2:00 and beyond, I held her and rocked.

At 2:25, Rose burst through the prison mailroom door, looking like she was going to explode.  Her face was beet red and as puffy as a cabbage patch doll.  She was trying to hold in her pain and anger as the tears ran down her cheeks.  John and Matthew didn’t look much better.  Rose blurted out that she wanted to speak to the media.

Still crying, Rose’s pain was obvious as she approached the podium at the 2:30 a.m. press conference in the visitor center.  “I just want you to know, my brother went with courage and dignity,” she pronounced.  “The State of North Carolina did not hurt my brother.  He is in heaven.”  Pointing to her red, puffy face, she added, “this is who the State hurt; they have created more victims.”

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.

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.

On the Prisoner Track

In my last year of law school, I secured a post-graduate judicial clerkship with Magistrate Judge Alexander B. Denson, Eastern District of the United States District Court.   In addition to being a great opportunity, it meant I had an additional year to look for a “permanent” job.

I graduated Duke Law still committed to serving the poor and marginalized but was not wedded to any particular type of law practice.  Over the term of my clerkship, I looked at jobs involving civil legal services and involving criminal defense representation.  There were very few to no openings in either area.   I was geographically bound because my husband was now pursuing his social work degree at East Carolina University.

When a position came open at a local non-profit that provided legal services to poor people, I jumped at the opportunity.   “Surely my credentials would help me secure the position,” I optimistically thought to myself. I was in Wilmington North Carolina where my judge was holding court when I got the call.  “I am sorry, Cindy, but we are offering the position to someone else,” said the voice on the other end.  I walked outside to the dock and wept.  I was crushed.  I would never get a job doing what I felt called to do.  Who knew it would be so hard to get a poorly paying legal job that served people few wanted to serve?  It would have been much easier to take the well-traveled path to the big firm where, in 1992, starting salaries were in the $60K range.

Much of Judge Denson’s caseload involved prisoner’s cases.  In most of these, the prisoner was seeking a new trial based on an alleged constitutional error.  I learned a lot about habeas corpus law and procedure in handling these cases.  I also got to know many of the lawyers who represented the inmates.  When a position opened at North Carolina Prisoner Legal Services in Raleigh, NC, I jumped at the opportunity to apply.   This time, I was offered the position.  I was elated and relieved.

My only contact with prisoners had been in handling their letters with the Prisoner Rights pro bono group in law school.  All we were allowed to do was to send them the desired case law they requested.  We did not handle cases.  I had also visited the local jail once to interview an inmate but that was pretrial.

During my judicial clerkship, I visited a prison for the first time.   The clerks were offered a chance to tour North Carolina’s maximum security prison, which was located in Raleigh.  I only remember a couple of things about that tour:  1) looking at some of the inmates and feeling ashamed of doing so, wanting them to know that I did not consider them animals in a cage to be gawked at and 2) entering the viewing room of the death chamber where the State of North Carolina executed inmates.

I felt a pall over the witness room.  I examined the large plate glass window that separated the audience from the inmate.   It was double-paned, and there was some type of measuring device in between the panes.  “What is this device for?” I asked solemnly.   “It is to alert the staff to any leakage of the deadly gas used during executions,” replied our guide.  “Can we sit in the chair?” chimed in one of the other law clerks in an excited tone.   “Really” I thought to myself, “you want to sit in the chair where people are killed?”   Guess he didn’t feel the pall.

I found out later that only three people had been executed in North Carolina’s death chamber since the reinstatement of the death penalty in 1977 and that all three had been put to death by lethal injection, not gas.   Inmates killed by lethal injection are strapped to a gurney.    Thus, no one had sat in that chair for execution in decades.  Little did I know that in less than three years, that chair would be put to use and I would know the man to sit in it.