The machinery of death accelerates

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.

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The Crime

Ernest Basden was convicted of shooting and killing an insurance salesman, Billy White, in rural Eastern North Carolina in 1993.  The plot of the story is like a poor man’s soap opera.  Billy’s wife, Sylvia, wanted her husband dead.  After failing to accomplish this goal herself using poisoned berries, Sylvia talked Lynwood Taylor into killing her husband.

Lynwood knew how the system worked; a small-town drug dealer himself, he was an active police informant.  He knew better than to do the deed himself.  After
asking around town for a partner in crime, he turned to his nephew, Ernest, who was renting a room from Lynwood’s mother, Ernest’s aunt.  Ernest was down on his luck, chronically depressed and apt to self-medicate with alcohol and drugs.  Lynwood provided Ernest with the needed drugs and alcohol, and after initially resisting, Ernest was convinced to help kill Billy.

Lynwood and Sylvia devised a plot.  Under false pretenses, Lynwood arranged for Billy to meet him at a deserted plot of land late at night.  Lynwood plied Ernest with alcohol and drove him to the designated spot, where they waited in the dark.  When Billy arrived, Lynwood introduced himself and then excused himself.  Ernest got out of the car, picked up a shotgun, and shot Billy twice.

It did not take long for this tale to come to light.  Lynwood and Sylvia were arrested. Ernest turned himself in.

Of the three, Ernest was tried first.  He was sentenced to death on Good Friday, April 9, 1993. Sylvia and Lynwood Taylor both avoided death sentences.  The U.S. Fourth Circuit Court of Appeals was troubled that Ernest, “an intoxicated, manipulated rube,” was the only one to get a death sentence:

Moreover, notwithstanding (or indeed perhaps because of) the greater cunning of Taylor and Sylvia White, they have been treated much more leniently than Basden.  The State did not bring Taylor to trial until four years after Billy White’s murder, and then permitted Taylor to plead guilty to first-degree murder; he received a sentence of life imprisonment.  Similarly, the State did not seek to try Sylvia White for almost four years after the murder of her husband and then allowed her to plead guilty to conspiracy to commit murder and second-degree murder; she too received a sentence of life imprisonment.  Prior to that conviction, the State tried and convicted Sylvia White for the 1973 unrelated murder of her stepson (Billy White’s son and namesake) whom she suffocated with a plastic bag when he was four years old; the State did not seek the death penalty for that murder and White received a life sentence for that crime too.  [See Basden v. Lee, 290 F.3d 602 (4th Cir. 2002).]

According to one prosecutor, Taylor was given leniency in his sentence for Billy White’s murder because he helped the state win a conviction against Sylvia in the stepson’s case. The problem with this excuse is that Ernest’s testimony against Sylvia was equally if not more critical to the conviction.  In any case, Ernest’s attorney sought no favorable treatment, and Ernest received none.

There were other serious flaws with Ernest’s death sentence. Ernest’s trial attorney had to withdraw from the case when he was stricken with cancer; the new lawyer was given only six weeks to prepare for trial.  The trial was a disaster, most notably when the lawyers put Ernest on the stand, to no good end.

When the post-conviction team contacted the jurors, all but one stated that he (or she) never intended that Ernest be executed.  That one juror, then deceased, had told his fellow jurors that he “knew” first-hand that death sentences were overturned on appeal and that Ernest would get another trial and never be executed.  The jurors were sufficiently convinced and gambled with a death sentence.  They — and Ernest — lost.

Meeting Ernest and his family

Ernest had been executed just the day before, on December 6, 2002, at 2:00 a.m.  I did not witness Ernest’s execution, the only time I have not witnessed the execution of a client.  Seeing Rose’s face after she witnessed her brother’s execution was witness sufficient for me.   When Rose walked through the prison mailroom door around 2:25, she looked like she was going to explode.  Her face was beet red and as puffy as a cabbage patch doll.  I could tell she was trying to hold in her pain and anger as the tears ran down her cheeks.

Rose and I had grown close over the years.   I first met her brother Ernest at Central Prison on February 2, 1995.  When I explained who I was and my role as resource counsel, Ernest immediately directed me to Rose.  She had been Ernest’s tireless advocate since his arrest.  Ernest assured me that Rose was the keeper of all the information I sought.

Rose and her husband, Denny, lived in the small town of Kinston, about a two hour drive from my office in Durham.  On June 15, they made the trek to meet with me and my boss, Henderson.  Rose and Denny were pleasant, educated working class folk.  Rose was the most engaged and vocal of the two.  Her passion for justice for her brother seeped from every pore.  Rose explained how things had gone wrong with her brother and with his trial.  She and Denny had been all over the state in their quest to assist Ernest.  He was quite fortunate to have such supportive family advocates, a rarity in the dysfunctional families from which my clients originate.

Henderson explained how I had been assigned to Ernest as resource counsel.  My commitment was to shepherd Ernest’s case through the system after his direct appeal to insure that competent attorneys were appointed in post-conviction proceedings, to support those attorneys with my (growing) expertise in capital post-conviction litigation, and to step in whenever needed to protect Ernest’s rights.   I explained the status of Ernest’s case.  His appeal was sitting in the US Supreme Court in the form of a Petition for Writ of Certiorari.  It was inevitable that the Court would deny it.  We were hopeful that the Court would not deny it before they closed for the summer break at the end of June, pushing a decision into the fall.

Just a few days later, our hopes were dashed.  We received the order from the Supreme Court – Cert Denied.   This decision meant an execution date would be set.  I dreaded telling Ernest and his family, but faxed a letter to the prison asking for an “attorney visit.”

I drove to the thirty miles to the prison two days later.  I was pleasantly surprised to see on the sign-in sheet that Rose and Denny were visiting with Ernest.   After going through the gauntlet of guards and doors, I stepped into the ghost elevator, which is what I call the prison elevator with buttons that don’t work and which “mysteriously” takes you to your designated floor.

The guard on the visitation unit directed me to the booth in which Ernest, Rose and Denny sat, with a concrete and glass wall between them, of course.  I squeezed into the small phone booth size room with Rose and Denny and bent down to speak into the small metal grate that allows sound to travel to the inmate’s side of the booth.   “I have some bad news, Ernest.  The Supreme Court denied review of your case.”  I stopped to gauge his reaction.   Thankfully, Ernest understood that this loss was coming and that we were prepared to move into the next phase of litigation; but in death penalty work, the victories are often measured in time, and we had just lost three months.  Ernest seemed at peace.  He had faith in God, in his family and in me, even though he barely knew me.

Rose and Denny looked at me to gauge my reaction.  I was disappointed, but I smiled.  There was a lot to do, but Ernest already had a strong team in the three of us.

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))