Depression Kills

Even as I began death work, executions seemed a distant possibility, events that could be stopped. Then came David Lawson. By early 1994, the real possibility of his execution began to sink in.

David was represented by two lawyers in my office: Marshall Dayan and Jim Moreno. Marshall, a long time death penalty activist in The South, had represented David since 1988; they had grown very close. Jim, a hippie from The North, joined the Resource Center at the same time I had. Jim and I had become like brother and sister, protective of one another in the strange death penalty landscape new to us both.

David had shot a man and his father during a home burglary gone bad, some fourteen years earlier. The father lived; the son did not. David was suffering from severe depression at the time of his crimes, something that was not revealed at David’s trial. Indeed, none of his extensive mitigating social and psychological history was presented. Rather, the only witness presented at trial was at the sentencing hearing. That witness was David himself. The sole purpose of his testimony was to let the jury know that David wanted to die.

Questioned by his own attorney, David was first asked about his criminal record. It was minimal “two cases of breaking and entering some years ago in Stanly County.” He also admitted that he had assisted the State “involving some criminal matters in Stanly County some years ago.” Then David’s attorney got to the heart of the matter:

Q: At this time would you tell the jury what your request is regarding their decision?

A: I’d like the death penalty.

Q: Would you care to tell us why you want the death penalty?

A: To be locked up in prison for something I did not do, is truly cruel and inhuman. I didn’t do it. I don’t care what anybody says. I’m innocent. That to be put in prison for life, that’s not right. You think I done it, gas me. [David was not innocent but knew saying so would really piss off the jury. He did not want to risk them having any pity for him.]

Q: And you’re–you know what you’re asking?

A: Yes, sir.

Q: You know it’s my responsibility to try to save your life?

A: Yes, sir.

Q: That’s all.

Lawson v. Dixon, 3 F.3d 743 (1993). The jury granted David his wish and sentenced him to death.

Fourteen years later, on Feb. 28, 1994, in a dissenting opinion from a US Supreme Court Order denying review of David’s case, Justice Harry Blackmun described his concern about what happened at trial.

At the time of his trial, the record suggested that David Lawson suffered “significant psychopathology,” anxiety, depression, hostility, and a likelihood of deficient impulse control. He generally lacked the ability to communicate with his attorney or to understand the nature and seriousness of the charges against him. He thought of suicide and once had attempted it. It is hardly surprising that he told his sentencing jury: “You think I done it, gas me.” Lawson’s counsel, taking his cues from Lawson, neither investigated nor presented any evidence of his client’s mental problems, which might have established statutory and nonstatutory mitigation, which, in turn, might have meant the difference between life and death.

Without deciding the merits of these claims, I conclude that they cast considerable doubt on the reliability and constitutionality of Lawson’s sentence of death.

Lawson v. Dixon, 510 U.S. 1171 (1994).

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.