Depression Kills Redux

The suicide of Robin Williams brings to mind how tragic severe depression is, how it impairs rationality and concern for others, and how it takes so many people from the families and friends that love them.  For me it brings back memories of most of the death row inmates I have known, their families and their victims.

In January 2013, I blogged about a death row inmate, David Lawson , who suffered most of his life from severe depression (pasted below).  David was executed despite that significant evidence of severe depression at the time of his crime was withheld from the sentencing jury and that the trial attorneys allowed David to testify that he wanted to be executed, one more suicidal plea of a mentally ill man.

May Robin Williams’ death improve the conversations about and availability of treatments for depression.

____________

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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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).

NC Killing Machinery 101

In 1972, the United States Supreme Court declared that the death penalty as carried out in all jurisdictions, including North Carolina, was unconstitutionally cruel and unusual.   NC’s legislature adopted a new death penalty system in 1977, which remains the foundation upon which today’s death penalty laws are based.

In October 1977, the first two defendants to be sentenced to death under the new statute in North Carolina arrived on death row three days apart.  The first was Mr. Daniel Webster, white.  He committed suicide two weeks after his arrival.  His desperate act left Mr. James Calvin Jones, Indian, the sole death row occupant.  Jones received a new trial on direct appeal in 1979.  The second jury that heard his case convicted him to second degree murder; he was sentenced to life.  Jones was paroled in December 1992.

A death penalty system is a government program, which is, like any other government program, dependent upon government employees or contractors to carry it out.   At the trial level of the system, there must be both prosecutors and defense attorneys.   Most people get what happens at this level – guilt or innocence, life or death.

Some people have misconceptions about what happens after a sentence of death, in the appellate process.   They think that a person sentenced to death receives an “endless” number of appeals.  In reality, there are just three levels.  Each level serves a particular purpose and provides a check on what other decision-makers have done to that point.  Three levels of checks and balances are not too many, in my humble opinion, for a government program aimed at killing citizens.   (Since 1973, 140 women and men have been released from the death rows of 26 states with evidence of actual innocence.  Seven of these are from North Carolina.)

The first level of appeal, called the “direct appeal,” involves only a review of the trial record.  The question is whether there were any serious errors of law at trial, at least as can be determined by reading the transcript or related documents.  All of the early death sentences under the new statute were overturned on direct appeal.  Of the inmate who received a death sentence in the 1970s (and didn’t commit suicide), 9 out of 14 won their direct appeals and were resentenced to something less than death.   Fifty percent of inmates who arrived on death row by the end of 1983 won their direct appeals.  The attorneys that handle this level of appeal are called appellate attorneys.   I was never one of these attorneys.

A high number of reversals of a new sentencing law is not surprising given the uncertainty new laws bring.  But it also takes good appellate lawyering to reach such a result and that credit can be given to the decision of Governor James Hunt to establish an Office of the Appellate Defender and to appoint an experienced capital litigator, Adam Stein, as North Carolina’s first Appellate Defender.  Stein served as North Carolina Appellate Defender, 1981-1985.   He became one of my mentors in 1989, when I worked for his law firm in Chapel Hill.