In September 1995, I received word that two attorneys had agreed to represent Ernest Basden in post-conviction proceedings: John Loftin and Matthew Martin, both from Hillsborough, NC. I met with them to bring them up to speed on the case. I was impressed by their intelligence and energy and concluded that Ernest was in good hands. Both were very open to my continued involvement and support as a resource; like most of our recruited attorneys, neither had ever litigated a capital case. The number of inmates coming onto death row far exceeded the capital expertise of the bar.
How did we get to this point? [For my sources in this post, see the twenty-fifth anniversary of post-furman executions in north carolina: a history of one southern state’s evolving standards of decency, http://www.elon.edu/docs/e-web/law/law_review/Issues/Adcock.pdf,%5D Americans were greatly affected in the 1980s by rising crime, the news of which increasing seeped into our consciousness with an unprecedented intensity thanks to television and movies. Nationally, in the more “innocent” years of 1950 through the mid-1960s, homicide rates had held relatively constant at about 4 –5 per 100,000 persons. The rate then rose sharply, peaking in 1980 at 10.2 per 100,000 persons. From 1980 to 1991, the rate fluctuated between 8-10 per 100,000 persons. This disturbing trend held true in North Carolina, where the state’s violent crime rate spiked between 1988 and 1992 with a 35.3% increase.
As our fears of being killed, raped or maimed rose, politicians learned that playing on our fears worked to their benefit. They made campaign promises of longer prison terms, larger prison populations, and more death sentences and executions. Once elected, legislators, prosecutors and judges followed through on their promises.
Accordingly in the 1990s, North Carolina prisoners were sent to death row in record numbers. Between January 1990 and October 1991, 27 condemned prisoners arrived on death row, a 57 percent increase. By January 22, 1995, there were 112 inmates on death row. By the end of the year, 34 additional prisoners had joined death row, the highest annual gain in modern times.
Not only were more defendants being sent to death row in the mid-1990s, more were staying there. From 1979 to 1984, the North Carolina Supreme Court found reversible error in death cases 61% of the time. In each of the years from 1990 to 1992, over 80% of capital convictions were overturned on direct appeal by the Court. This reversal rate decreased dramatically in 1993 to just over 40%, marking the beginning of a sharp decline in reversals. In 1994, the reversal rate was 32%; in 1995, just 4%.
Amidst this accelerating doom and gloom, capital defense lawyers held out hope that we could win relief for our individual clients if we did a good enough job. We certainly thought so in the case of Ernest Basden. John and Matthew did a great job of investigating the facts of the case, assembling a team of volunteers and paid specialists. Their motions were thorough, culminating with a well-developed petition for “appropriate relief,” which in this case was a new trial and/or sentencing hearing. Ernest and his family had a sense that the injustices in Ernest’s case would be finally addressed.
Then, in May 1996, hope was shattered. On May 6, the District Attorney filed a motion to summarily dismiss Ernest’s case, without discovery and without a hearing. John and Matthew quickly responded but on May 10, Matthew’s wife was critically injured in an automobile accident. They had just had their first child. As Matthew was trying to attend to his family crisis, over Memorial Day weekend, Matthew received a court order dated May 21, summarily denying relief to Ernest. To add insult to injury, the order had been drafted by the District Attorney, behind the backs of the defense attorneys. Just like that, in a matter of a few days, Ernest was out of court.