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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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.

My First Death Row Clients

In my first few weeks as a capital defense attorney, I was assigned to three cases: Barbara Stager, Michael Pinch and Zane Hill.  All three prisoners had court-appointed attorneys, so I was charged with assisting them.   The cases were at different stages of litigation.  Barbara had won relief on direct appeal, and her resentencing hearing would be taking place soon.  Michael had lost on direct appeal years ago and had been in post-conviction litigation for several years as well.  Zane had lost on direct appeal recently and was just beginning the post-conviction stage.  Bizarrely, his execution date of September 10, 1993, had come and gone with neither Zane nor his attorneys ever knowing.

I cannot imagine starting deathwork with a more “normal” group of clients.   You would have never picked these individuals out of a crowd as killers, even after having a conversation with them.  Yet, all three had shot someone dead.   All were Caucasian, as were their victims.

Barbara was the only one of my new clients who said that she did not intentionally pull the trigger.   Her husband, Russell Stager, was a popular teacher and baseball coach at Durham High School.   He was shot in the head as he slept.  Barbara’s account of the events was that the gun accidentally went off as she was removing it out from under Russell’s pillow.   Hardly anyone believed her, especially as they learned that her first husband had also died of a gunshot wound inflicted at home, allegedly accidentally and by his own hand.

Barbara was tried, convicted and sentenced to death in May 1989.  I remembered the case being all over the news during my first year of law school.  Now, I would be helping the woman that so many despised.

The jury that sentenced Barbara to death used the standard sentencing instruction, despite the fact the instruction was being challenged as unconstitutional.  By 1989, the United States Supreme Court had made clear that states had to give capital juries the discretion to sentence a defendant to life despite the death sentence being on the table AND that this discretion had to be guided so that the jury would consider all evidence that the defendant presented that might mitigate her punishment.   The question remained whether the North Carolina instruction requiring that capital jurors had to be unanimous on the existence of a mitigating circumstance before that circumstance could be considered by any juror for the purpose of sentencing, unconstitutionally restricted a juror’s ability to consider mitigating evidence.

In 1990, the United States Supreme Court decided this issue in McKoy v. North Carolina and struck down the State’s standard instruction.  There were 86 prisoners on North Carolina’s death row at the time.  Forty-four had the faulty instruction and received new sentencing hearings.  Barbara was one of these 44.  Accounts of Barbara’s case, and there have been many, called the error a “technicality,” which is often what skeptics call errors of law even when the law lead to unjust results.

McKoy errors were not technicalities.  How jurors are instructed when they have the life of a defendant in their hands matters greatly.  In this instance, giving all jurors a voice matters greatly.  Of the 44 inmates who received death sentences with the McKoy instruction, 17 were sentenced to life by the next jury who heard their cases with the full discretion to vote for life.   Barbara was one of these 17.  In her resentencing hearing, each juror could fully consider the mitigating evidence, some of which I had prepared, and her life was spared.

Barbara, now 63, lives in the NC Correctional Institution for Women in Raleigh, NC.

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.