Execution on Ice

Ernest was scheduled to be executed on December 6, 2002, at 2:00 a.m.  All executions are scheduled for 2:00 a.m. in North Carolina.  Urban legend is that this early morning hour was designated long ago to limit inmate unrest, as well as public demonstration.   Maybe so, but the late hour is brutal on those involved in an execution, especially the witnesses and the family and friends of the inmate.   For those trying to stop the execution, exhaustion mixes with hope to stave off despair.

I awoke on Wednesday, December 4, to a grey sky.  A winter storm was on its way.   I went downstairs and flipped through the Raleigh News & Observer until I got to the latest weather report:

It is not yet officially winter, but the Triangle is bracing for its first brush with icy weather today and Thursday.

Forecasts call for snow and sleet starting by mid-afternoon, changing to a mix of sleet and freezing rain tonight. The storm could produce a quarter-inch of ice or more on roads by Thursday morning, when more rain or freezing rain is expected.[1]

“Great,” I said sarcastically as I recalled my execution mantra: expect the unexpected and roll with it.

My mind began to ponder the possible scenarios.   What would it take for the State of North Carolina to call off the execution?  Maybe the Executioners won’t be able to get to the prison?  Then a panic set in.  What if I can’t get to the prison?   What if my co-counsel, John and Matthew who live even further away, can’t get there?  And what about Ernest’s family?  Eight of his nine brothers and sisters, along with nieces and nephews, planned on being at the prison for their first contact visit with Ernest in a decade.  They would be devastated if they were unable to tell Ernest goodbye, as would I.        

It was raining when I went to bed early on December 4th.  I was awoken in the middle of the night by the sound of tree limbs breaking and transformers blowing.  Our electricity had gone out.  I snuggled closer to Pat in bed and tried not to think what the next 24 hours might bring.

When I woke again, the sun had risen.  I blew into the air and saw my breath.  I sat up, looked out the window, and saw a winter wonderland.  Everything in sight was covered with ice.

Unbeknownst to us, we were experiencing an ice storm of historic proportions.   New records were set across the Carolinas and Virginia on power outages and their durations, traffic accidents, school closing durations, and fatalities resulting from an extreme weather event.  Some dubbed it “Hugo on Ice” because the storm broke the previous record for regional power outages set by Hurricane Hugo in 1989.  Raleigh recorded the most freezing rain from a single storm since 1948, more than doubling its previous record for freezing rain totals. [1] OLYMPUS DIGITAL CAMERA

Pat went downstairs to turn on the gas fireplace and stove to give us a little relief from the arctic air.  I checked my cell phone.  No service.  I could not communicate with my co-counsel, the prison or Rose.  All I knew to do was to strike out for the prison.

Thanks to a gas water heater, I was able to take a hot shower before putting on layers of clothing.   I pulled on my hiking boots and carefully slid to the car.  Pat stayed behind to care for his elderly mother and our dogs.

My slow 30 mile trek to the prison took me through a surreal white landscape.  Those trees that were not snapped into pieces were arched to the ground by the weight of the ice.  It was lonely on the road, which was a good thing: fewer things to hit or to be hit by.

There were no signs of electricity, until I reached the prison.  As I pulled into the
de-iced driveway leading to the visitor center, planted between the road and the prison, I saw the lights on inside. “Damn. I guess they are up to an execution.”



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.

Meeting my first death row client

A man in a read jumpsuit appeared outside the door on the other side of the viewing window.  His movements suggested that the guard was removing handcuffs.  When the door swung open, Zane shuffled in and took a seat.  He was just a couple of feet away but the concrete wall with the plexiglas window kept us from physical contact.   Zane did not look the death row type.  He looked like a “normal” old man, older than the 57 years he had behind him.  The hard life of the mountains and the hard drinking were apparent.

Henderson explained our purpose, and Zane seemed pleased that someone was paying attention to his case.  I explained how I would be developing the facts of his case, in support of his court appointed attorneys.  We had to move fast given the deadlines set by the Court.   He was ok with my plan, but he wanted me to know one thing: “I can’t do a life sentence.”

Hmmm.  “So, you would rather be executed than do a life sentence?” I asked.   He slowly nodded and explained the hellacious prison conditions that were draining him of life.

“I didn’t mean to kill him,” Zane said, referring to his son.  “Randy was a good kid . . . but he pulled a gun on me.”  Zane continued to tell us his perspective of what happened that fateful night, which was consistent with his trial testimony.  He believed that he shot his son in self-defense and that he did not shoot at his wife.  Rather, the gun went off accidentally when he went out the door.

Zane was polite, looking down much of the time, glancing up occasionally as if to check to see if we were still there.  The D.A. offered a plea deal to second degree murder, but Zane believed even then that he couldn’t do the time.  Had he taken the offer he would be eligible for parole in 7-10 years.  But Zane was a stubborn man.  His clouded memories of the shooting convinced him that he shot in self-defense, and he hated being locked up.  He was very fearful of police and of guards.

Zane had no trusted attorney to walk him through the deal.  He hired one of the best lawyers in town when first arrested, the lawyer who had done previous work for him, but Zane ran out of money very quickly.  So, he was assigned court-appointed attorneys, who he didn’t know and who had very little capital experience.

I asked about his wife.  “Are you and Frannie still married?  “Yea,” he answered.  “She visits me every month.”  Really?   This news was encouraging.   The mother of the victim regularly visits her son’s killer.  One of the hardest aspects of a death case for defense lawyers is dealing with the surviving victims.  In domestic cases, the killer’s family and the victim’s family are one and the same.  This reality complicates the work of the legal team who relies upon a client’s family for help in building a case for life.

Zane assured me that Frannie would help me.  I had my doubts, but told him I would contact her.

These Boots are Made for Talking

My first job practicing law was at North Carolina Prisoner Legal Services.   My clients had legal issues that ranged from incorrect sentencing calculations to horrid jail conditions to injuries sustained from falling off of a bunk.  I liked the variety.

I also liked that my work took me to a variety of prisons and jails.  You learn a lot about a society by visiting their institutions of incarceration — and you learn a lot about yourself.    One day, I drove to a prison in the Sandhills of North Carolina, I parked in the unpaved lot, got out of my white jeep, and headed towards the front gate.  I looked for a visitor center or at least a guard station but didn’t see one.  “What’s your business?” a man yelled at me from the guard tower above.  I yelled back “I’m here for a lawyer visit.”   A bucket was lowered by a rope down to me.  I put my driver’s license and N.C. bar card in the bucket and up it went.  In a few minutes, the bucket came back down with my cards in it, and the gate opened.  I thought “what is this, Cool Hand Luke?” as I walked through the gates in my cowboy boots.

When you are a new lawyer, you think about what persona you want to project.  For some, particularly men, a dark tailored suit is the epitome of success. Men who want to project the image of a small town southern lawyer wear a seersucker suit.  In the 1990s, women lawyers were just coming into their own.   We took the traditional lawyer suit and “feminized” it as a way to project power in our own way.  Some wore blouses with bows tied at the neck.  Some accentuated their sensuality with short skirts.

To the classic skirt suit, I added cowboy boots.  Perhaps the relationship between power, confidence and cowboy boots was imprinted upon me as a child.  Many of my male relatives wore cowboy boots.   Or perhaps the brother of one of my death row clients had it right when he said to me when leaving court in 2005, “I now know why you wear boots in court:  you have a lot of crap to wade through.”

Connecting the Dots

Dad didn’t come around much as I was growing up.   We only lived together for about three years in Panama City, Fl., before Mama left him.  He stayed in Florida, moving eventually to Orlando.   Mama and I headed to Rome, Ga., then Pensacola, Fl., and then back to Rome.   Mama’s home base was Rome because her parents lived there; they were our safety net.   Dad hated Rome, though it was his hometown as well.

I stayed connected to Dad through his mother, Mama Cotton, who still lived in Rome.  Mama Cotton owned a little neighborhood grocery on the run-down side of the railroad tracks, i.e., where the black folk lived.   Mama Cotton was a tough woman, not liked by many — including my Dad.  She lived alone in the back of her store, having run off her fourth husband long ago. Born in 1896, she was always old to me.

Mama was committed to making sure I maintained connection with Dad’s family.  Bless her heart.  When we were living in Rome, Mama would “force” me to go with her to visit Mama Cotton every few months.  Like a normal teenager, I resisted going to sit in an old house in a “sketchy” neighborhood while she and my grandmother talked about people I didn’t know.  Later, I came to appreciate Mama taking me on these forced visits.  Otherwise, I would have never come to know this strong-willed, independent woman whose life spanned most of the 20th century and whose hand cast a long shadow over my Dad.

Dad was the youngest of a large brood of kids.  Mama Cotton had given birth to over 10 children, though quite a few didn’t survive long.  Dad was the only child of Mama Cotton’s third marriage, which also didn’t survive long.

Best I can tell, there was nothing happy about Dad’s childhood.  Not only did he grow up poor without a father in a rough part of town, but he was terrorized throughout his young life by his half-brother, T.W.  T.W. routinely threatened to kill Dad, sometimes with weapon in hand.   When T.W. , often drunk,  came looking for Dad, he would run.  Dad jokes about how he was skinny and fast as a kid.  You know, survival of the fittest.

T.W. was well known by the Rome police.  Legend has it that while he was serving time in a prison in Atlanta, he managed to escape and take the warden’s wife hostage.  In any case, years later, T.W. was shot and killed by his own son.  My cousin had enough of his father beating on him and his mother.  The police looked the other way.

Yep, this family history explains a lot about my Dad.

On the Prisoner Track

In my last year of law school, I secured a post-graduate judicial clerkship with Magistrate Judge Alexander B. Denson, Eastern District of the United States District Court.   In addition to being a great opportunity, it meant I had an additional year to look for a “permanent” job.

I graduated Duke Law still committed to serving the poor and marginalized but was not wedded to any particular type of law practice.  Over the term of my clerkship, I looked at jobs involving civil legal services and involving criminal defense representation.  There were very few to no openings in either area.   I was geographically bound because my husband was now pursuing his social work degree at East Carolina University.

When a position came open at a local non-profit that provided legal services to poor people, I jumped at the opportunity.   “Surely my credentials would help me secure the position,” I optimistically thought to myself. I was in Wilmington North Carolina where my judge was holding court when I got the call.  “I am sorry, Cindy, but we are offering the position to someone else,” said the voice on the other end.  I walked outside to the dock and wept.  I was crushed.  I would never get a job doing what I felt called to do.  Who knew it would be so hard to get a poorly paying legal job that served people few wanted to serve?  It would have been much easier to take the well-traveled path to the big firm where, in 1992, starting salaries were in the $60K range.

Much of Judge Denson’s caseload involved prisoner’s cases.  In most of these, the prisoner was seeking a new trial based on an alleged constitutional error.  I learned a lot about habeas corpus law and procedure in handling these cases.  I also got to know many of the lawyers who represented the inmates.  When a position opened at North Carolina Prisoner Legal Services in Raleigh, NC, I jumped at the opportunity to apply.   This time, I was offered the position.  I was elated and relieved.

My only contact with prisoners had been in handling their letters with the Prisoner Rights pro bono group in law school.  All we were allowed to do was to send them the desired case law they requested.  We did not handle cases.  I had also visited the local jail once to interview an inmate but that was pretrial.

During my judicial clerkship, I visited a prison for the first time.   The clerks were offered a chance to tour North Carolina’s maximum security prison, which was located in Raleigh.  I only remember a couple of things about that tour:  1) looking at some of the inmates and feeling ashamed of doing so, wanting them to know that I did not consider them animals in a cage to be gawked at and 2) entering the viewing room of the death chamber where the State of North Carolina executed inmates.

I felt a pall over the witness room.  I examined the large plate glass window that separated the audience from the inmate.   It was double-paned, and there was some type of measuring device in between the panes.  “What is this device for?” I asked solemnly.   “It is to alert the staff to any leakage of the deadly gas used during executions,” replied our guide.  “Can we sit in the chair?” chimed in one of the other law clerks in an excited tone.   “Really” I thought to myself, “you want to sit in the chair where people are killed?”   Guess he didn’t feel the pall.

I found out later that only three people had been executed in North Carolina’s death chamber since the reinstatement of the death penalty in 1977 and that all three had been put to death by lethal injection, not gas.   Inmates killed by lethal injection are strapped to a gurney.    Thus, no one had sat in that chair for execution in decades.  Little did I know that in less than three years, that chair would be put to use and I would know the man to sit in it.