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).

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Conflict, Conflict, Conflict

The mid-1990s were bleak for attorneys working to save the lives of inmates on death row.  The death penalty had become a popular symbol of toughness on crime and of justice to murder victims.  In North Carolina, the attorneys at my organization, the North Carolina Resource Center, were about as popular as our clients.  “Tough on crime” politicians, including judges and prosecutors, saw us as obstructionists, responsible for endless and senseless appeals of convicted killers.  Many criminal defense attorneys saw us as threats to their livelihoods and reputations.  Many in the public saw us as lying, blood-sucking leeches, paid to do the devil’s work at tax-payer expense.  Murder victims saw us co-conspirators with our clients.  Heck, oftentimes, our clients – suffering from a range of mental illnesses and mental disabilities – didn’t even like us, sometimes accusing us of conspiring with the government to kill them.

I had followed my passion to help the dispossessed, the downtrodden, and I knew that throughout history persons who dedicated themselves to such work were commonly disliked and persecuted.  But I was beginning to realize a personal fault that could threaten my work:  I liked being liked and hated to be hated.  For this reason, I also disliked conflict.

To be an effective advocate for death row inmates, you cannot be conflict avoidant.  I was reminded of this one day as I was driving the back roads of North Carolina with a junior associate from a law firm in Washington, D.C.   We were searching for persons identified as former friends of our client.  In the course of making small talk I declared, “I hate conflict.”  The attorney looked at me in disbelief, “You do death cases and you hate conflict?”  “Odd, isn’t it,” I said as I began to ponder the apparent disjunction.

Why I did the work was easy to explain.  From a Christian perspective, at least my Christian perspective, there was no work more clearly morally righteous than to stand up for justice for those condemned to die.  How I managed to work continuously outside my comfort zone, in the face of hatred and suspicion, was harder to explain.

Conflict surrounded me; for by 1994, my colleagues and I were fighting not only for our clients but for our jobs.  Our office was part of a national network of Resource Centers, which had been created in the late 1980s at the urging of the federal judiciary.  Federal judges wanted trained lawyers in federal court to insure that all legal claims were raised adequately and timely.   It did not take long after the creation of the Resource Centers for conservative politicians to notice that having trained lawyers advocating for death row inmates meant fewer executions and at a slower pace.  On both the national and state level, these politicians organized to shut us down.

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.

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))