The fight for Ernest Basden

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.   images[8] 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,[1] 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.

[1] Basden v. Lee, 290 F.3d 602, 612 (4th Cir. 2002).

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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.

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.

Abnormal

In college, I majored in religion and in psychology. I found the subjects equally fascinating. With psychology, I was particularly intrigued by abnormal psychology — the study of why some of us, either occasionally or consistently, act outside the bounds of socially accepted behavior. As with any typical psych major, my family was the primary group on whom I applied my new found education.

Mama was in a fragile state for much of my college years. Her life fell apart when my stepfather disappeared with their 5 year old son, my half-brother. He picked David up from daycare and kept going.  Mama also lost her job at a local hotel. She moved in with her parents (Grandmama and Granddaddy to me) in their double-wide trailer.  Grandmama was very sick from decades of cigarette smoking and was not expected to live much longer. Granddaddy was a disabled WWII veteran.  These were, needless to say, very dark days.

Psychology was useful for me in understanding my dysfunctional family, but Mama did not take well to any psychological analysis. Nonetheless, to her credit, Mama pulled herself through the nightmare, relying in large part on the strength she found in her conservative religious beliefs.

Mama was determined to find my brother and to bring him home. She became a sleuth, sometimes wearing disguises to get the information she needed. Mama finally found David in Pensacola, Florida, where she and my stepfather had met. She brought David home, just in time to see Grandmama before she died. Mama soon found a new job and a new man, whom she later married.

I remember talking to Mama on the phone one night. I told her that none of my friends in college had parents who were divorced. “None?” she asked in disbelief. “None,” I confirmed. I was abnormal.