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.