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.

Advertisements

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))