Who, us?

On the Monday after the Luigi’s night of horror, there was a pall over the Resource Center.   The ripples set in motion by the murders were already being felt two hours away by people who didn’t know the victims or the killer.   My colleagues and I gathered in Henderson’s office hoping to learn more about the killings and the latest about Mr. French.

For capital defenders, a high-profile killing is a shock to the system.   You battle — day in and day out — the hate directed at your clients and at you, a more accessible surrogate for your clients.  You battle the misperceptions of the causes of crime and the efficacy of the death penalty as anything other than a blood-letting.   Some days you battle your client who would rather die than live on death row, and some days you battle your own feelings of inadequacy.  Then, the news of another killing grabs your attention.  You know in the pit of your stomach that for you and your clients, the news is not good.

There was a buzz in the room.  The State had already charged Kenneth French with four counts of murder and three counts of attempted murder.  They had already held French’s probable cause hearing in his hospital room.

Henderson interrupted the chatter, “Jim Parrish will be representing Kenneth French.” Jim was a well-respected criminal defense attorney in Fayetteville.   “And I have been asked to co-counsel,” he added.

It had not occurred to me that our office would get involved in the case.  Our primary mission was to improve the legal representation of prisoners already on death row.  However, we all knew that it would be good for our team to get involved in a trial — if for no other reason to gain the experience to help us in attorney consultations and in attacking them on appeal.  In a sense, we needed our “street cred.”

At first there was silence; then, one by one the attorneys and the investigators stated their willingness to help.  “Count me in,” I said.

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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))