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Stop the executions

Why Gov. Easley should declare his own moratorium--now

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Even after hearing that Quentin Jones had been served his last meal, the four dozen people who'd gathered for the vigil of his execution the night of Aug. 21 still hoped Gov. Mike Easley would spare his life. They hoped the long campaign for a moratorium on executions and a systematic study of capital punishment in North Carolina would finally win over the governor, who has steadily opposed it. Jones' case was not about his possible innocence, the moratorium movement's nightmare scenario. That he shot and killed Edward Peebles in 1987 was there on the store videotape for all to see. Rather, it typified the great majority of capital cases that fuel the moratorium push, those involving some combination of jury bias, poor defense representation and, sometimes, overzealous or corrupt law enforcement officials.

It also raised the issue of whether our standards today for putting people to death are different--and should be different--than they were when Jones' jury voted in 1987.

The elements: Jones was just 18 at the time. North Carolina, unlike 16 of the 38 states that allow capital punishment, will execute a juvenile for murder, at least in theory; but in fact no one under 21 ever has been put to death here, or not that Jones' lawyers could find. Should age matter?

Jones was stoned on drugs and booze, so that what the jury saw on the tape was an abomination they wanted to snuff out. But that also meant that the killing wasn't premeditated, at least not in the common use of that word. (Under the law, even the most instantaneous intention is sufficient to show premeditation.) Jones had been abandoned by a drug-addicted mother. His father, suffering from paranoid schizophrenia, admitted beating him. Jones had no prior criminal record. Should the jury have been sympathetic?

Was Jones remorseful? And should it matter if he was? Evidence that Jones was overcome with grief after he sobered up never came out at the trial, a combination--his appellate lawyers argue now--of the prosecution not wanting the jury to know it and Jones' trial lawyers failing to find it out. Now, 16 years later, the new lawyers had a witness: the jailer who processed Jones at the old Polk Youth Center in Raleigh said he'd been put on a suicide watch.

"I have seen a lot of prisoners in my time, including lots of people convicted of murder," said Flint Benson, currently assistant superintendent at Bladen Correctional Center. "Jones seemed to me to be a good, likable kid, certainly not the worst of the worst...I didn't think this was a premeditated incident meant to kill anybody."

Gretchen Engle, one of Jones' appellate lawyers, said if that '87 jury "had known of Quentin's true state of mind," they'd have let him off with a life sentence. Gordon Widenhouse, her co-counsel, made a different argument: If Jones were tried today, he maintained, a jury would not vote for the death penalty.

"We're a more enlightened society today than in 1987," Widenhouse said. "We understand better the psychological and social factors that influence behavior."

Moreover, Widenhouse argued, the law has changed since 1987. Then, a jury voting for life imprisonment--instead of a death sentence--knew that "life" meant the prospect of eventual parole. Today, after a change in state law, a jury can vote for a life sentence without parole and know the convict will never be released. Also, a prosecutor then could not accept a plea of guilty to first-degree murder without letting a jury decide between a life sentence and execution; the only option was to let a killer plead to second-degree murder, a legal fiction--though one frequently used anyway by some prosecutors--if the crime was intentional. Today, prosecutors can accept a first-degree plea without making it a capital case.

The result of these changes in attitude and in law is that far fewer capital cases are tried today; and when they are tried, juries are returning very few death sentences. So far, in 2003, just two death sentences have been handed down by North Carolina juries, a stunning drop from the '70s and '80s, when as many as 40 a year would be returned.

"The people are ahead of you," Durham trial lawyer James Cooney told a state House of Representatives committee this summer as it considered a two-year moratorium bill. "Juries are already imposing their own moratorium."

These two arguments form the crux of the moratorium movement in North Carolina:

The executions coming now result from old, and often badly flawed, cases.

Evolving standards of justice are such that, given all the relevant information, today's juries are choosing life sentences where juries used to vote for death.

And then there's the finality problem. What if a case is so screwed up, by police withholding evidence, or sloppy defense work, or a jury infected by bias, that the person convicted and sentenced to die might actually be innocent?

It's unthinkable, but it's not clear that it can't happen in North Carolina. "The strongest supporters of a moratorium should be the proponents of capital punishment," says James Coleman, a Duke University law professor, "because if we ever discover that we've executed an innocent person, the public will never again have any confidence in the system."

None of this moved Easley, an ex-prosecutor who supports capital punishment, in the case of Quentin Jones. In a brief, written statement, Easley said only that he saw no reason to "invalidate" the jury. Jones was executed at 2 o'clock in the morning on Aug. 22. Shortly, Easley will have three more chances to consider the state of capital punishment (see "Three Cases for a Moratorium," p. 28). One, the Eddie Hartman case, raises the issue of anti-gay bias against the defendant, an admitted killer. Another, the Joseph Bates case, seems to involve a jury that voted to execute a killer while unaware of the degree of his mental illness. In the third, Henry Lee Hunt maintains that he is innocent, and while prosecutors say the evidence he killed two people is overwhelming, his defense team says it's all circumstantial and tainted by police work that is undependable at best.

Since taking office in 2001, Easley has used his constitutional authority to stop two executions, in both commuting the death sentence to life imprisonment without saying why. One, the case of Charlie Alston, seemed due to Alston's possible innocence; the other, Robert Bacon, was a black man sentenced to death while the white mastermind got off with life.

In eight other cases, Easley has let the execution go ahead.

Easley says a moratorium is unnecessary because, as governor, he reviews every pending execution carefully so that no injustice is done. But the record is clear that justice is not being meted out evenly. With a moratorium bill already halfway through the General Assembly, it is time for the governor to declare his own moratorium on executions. Now, before anyone else is killed.

Q. Why?
A. For one thing, because the public wants the killing stopped, at least temporarily. Juries in the '80s voted for death sentences against a background of strong public support for capital punishment, but that support has eroded, as story after story comes out about innocent people put on death row--in North Carolina as well as in other states.

Q. What's the evidence that the public is pro-moratorium?
A. Polls by The Charlotte Observer and the N.C. Academy of Trial Lawyers showed 70 percent and 60 percent support, respectively, for a moratorium while state officials study how capital cases are handled. But the best evidence is this: The state Senate, never accused of being a liberal body, approved a two-year moratorium--and study--on April 30. The vote was 29-21. The legislature adjourned for the year without a House vote, so the Senate bill didn't become law. But at least 51 members (and some say 55) in the 120-member House were ready to vote for it if co-Speakers Black and Morgan brought it up.

Thus, a majority of citizens and a majority of their elected representatives oppose more executions at this time. Easley thinks executing prisoners is OK, and (polls show) so do most citizens--if it's done right. But in practice, most people are concerned that the system we use is flawed.

As the Common Sense Foundation's David Mills says, it can't be right for the state to "quick execute people before the House comes back" next year and votes on the bill, and maybe passes it. Even if it doesn't, should the state be exercising its absolute, final power in the absence of a public consensus that it's the right thing to do?

Q. How is the system flawed?
A. Two basic ways: (1) We could execute an innocent person without knowing it. (2) There's little consistency in the way cases come out. A tiny percentage of murderers are executed--it used to be less than 2 percent, now it's way under 1 percent--and they aren't the "worst of the worst." Rather, they're the poor, the poorly defended, and the mentally ill; and most are African-American. Who says so? The 12,000 members of the N.C. Bar Association, whose board of directors voted unanimously to support the moratorium. Also, all but two of the former justices of the N.C. Supreme Court support the measure, including every former Republican justice.

Q. Wait a minute. There's no proof we've ever executed an innocent person, is there?
A. No proof, no. Not in North Carolina. But nationally, more than 100 persons sentenced to death by juries have been proven innocent and released, and most experts think others who were innocent were put to death. And in North Carolina, three cases should give even diehard death-penalty backers pause. Last December, Alan Gell, on death row for eight years for a murder in Bertie County, was awarded a new trial after investigators turned up compelling evidence that the killing took place when he was either in jail on another charge or out of the state. Then in March, DNA samples showed that Jerry Hamilton, convicted and sentenced to death by a Richmond County jury, was in all likelihood innocent. He, too, was granted a new trial.

Here's the worst part: In both cases, prosecutors withheld or ignored crucial evidence and used suspect testimony from witnesses they had good reason to think might have guilty themselves.

Q. So maybe they're not guilty. What's the third case?
A. Charles Munsey, and he was absolutely not guilty. On death row for six years for a murder in Wilkes County, Munsey's conviction was thrown out by then-Superior Court Judge Tom Ross in 1999 after investigators proved that crucial testimony in the case, by a jailhouse snitch, could not have been true, and the prosecutor in the case knew it wasn't true. The prosecutor, by the way, committed suicide. Unbelievably, Munsey died in prison before he was released. Since then, Ross had been an outspoken proponent of the moratorium.

And who was fighting Munsey's appeals every step of the way? The state Attorney General's office, headed back then by Mike Easley. Easley's lawyers didn't give up even when the lie was proven and the lying prosecutor was dead.

Q. That doesn't mean Gov. Easley won't grant clemency if he thinks there's any chance the person's innocent?
A. No, it doesn't, and we trust that he would. But without dogged investigative work by a single appellate attorney who cracked the case, it's unlikely Munsey's "guilt" would have been in doubt when his execution came to the governor's office.

Henry Lee Hunt--he's the one scheduled to die Sept. 12--looks like a case of possible innocence. Once again, the prosecutors are absolutely sure he's the killer. But the evidence they're going on is not absolute. And Hunt's lawyers are still fighting for DNA testing of the only piece of physical evidence that might tie him to the crime. If Hunt's lawyers are right, he could be executed and later shown to be, if not innocent for sure, at least not guilty beyond a reasonable doubt. Unless Easley intervenes.

Q. OK, OK. But if there's no doubt the person's guilty, isn't it just a judgment call whether they live or die? The jury decides, and then the courts have to uphold it, and the governor. What's wrong with that?
A. Yes, as long we have capital punishment, it is a judgment call. And it's a judgment call whether we care that the judgments are demonstrably biased against black defendants, especially when a white person is the victim; against poor defendants; against defendants whose lawyers did a lousy job at trial.

That last one, by the way, isn't true any more. The bad-lawyering problem got so bad that the General Assembly fixed it--for future cases--in 2001, setting up an Indigent Defense Services Commission that appoints competent, experienced lawyers to defend people on trial for their life--and pays them a reasonable fee.

But the cases coming up for executions now were tried years ago by lawyers who were drunk in some cases, suffering from depression, totally out of their league--fact is, very few lawyers wanted to defend a capital case under the old system, because of the time it takes and, with an indigent client, the pittance they were paid to do it.

That's why such a rogues gallery of lawyers were involved: Two years ago, when the Common Sense Foundation counted up, they found that one out of six of the lawyers who defended death-row inmates had been disciplined by the State Bar, an extraordinary number given how few lawyers are disciplined. In one case, the lawyer had just gotten his license back after serving time in prison for child pornography--something the small-town jury knew full well as they were sentencing his client to death.

Q. Do good lawyers get you off?
A. Good lawyers and the money to mount an effective defense. Compare the recent Ian Campbell trial to Joseph Bates' case. Campbell came from a well-off family, had a good job, great prospects, and he strangled his finance so he could be with another woman. Then he lied about it. And tried to get a witness to lie for him. Even so, his lawyers convinced the jury that he didn't know what he was doing and was deeply sorry. He got a life sentence; the jury was back in under an hour.

Bates, on the other hand, was sentenced to die in Yadkin County for killing a guy he'd never met because he thought the guy was out to kill him. Since then, Bates has pretty conclusively been shown to be suffering from schizophrenia and paranoid delusions. Head injuries from a car accident contributed to that and make it impossible for him to show any emotions, which his jury took as lack of remorse.

Rosemary Godwin, one of the lawyers trying to save Bates now, is convinced that if jurors had known what they should have known about Bates, they'd have spared his life. But Bates' lawyers did a poor job at his trial, the jury knew almost nothing about him.

Q. I've heard the moratorium is just a smokescreen to get the death penalty abolished. True or false?
A. Some moratorium proponents want to abolish the death penalty. But some, like the members of the Charlotte City Council who voted 8-3 for a resolution supporting the moratorium, are pro-death penalty but want it to be fair, according to former Councilwoman Susan Burgess. Councils in every North Carolina city with a population of more than 100,000 except Raleigh have voted for the moratorium, including Durham and Cary. They're not all anti-death penalty.

Q. Remind me, how many states have the death penalty?
A. 38 states, but six have not used it since the U.S. Supreme Court reinstated capital punishment in 1976. Another 10 states have executed three prisoners or less in that time. Only the southern states, led by Texas, use it much: 82 percent of executions since 1976 have been in the South, and only 1 percent in the Northeast. Remember how people say it's a deterrent? Well, in 2002, the murder rate was up 2 percent in the South, and down 5 percent in the Northeast.

Q. And how many countries still execute people?
A. Glad you asked. According to Amnesty International, there were 1,635 legal executions in 37 countries in 1998, the last year for which they have reliable figures. The United States was third on the list with 68 executions. We trailed China and the Congo and were just ahead of Iran. Iraq also executed "hundreds," but no reliable count could be gotten.

Every Western democracy except the United States has abolished capital punishment.

Now, Gov. Easley has the opportunity to show that, in North Carolina, even if we insist on using the ultimate penalty, we won't until we can demonstrate with absolute certainty that it is being fairly applied. EndBlock

How to contact Gov. Easley
The Governor's office takes phone calls at 733-4240 or 733-5811; or, from anywhere in North Carolina, the toll-free number is 1-800-662-7952.

Emails can be sent via the governor's Web site at www.governor.state.nc.us ; click on the "contact us" link.

Or send a letter like this one:

Gov. Michael F. Easley
Office of the Governor
20301 Mail Service Center
Raleigh, NC 27699-0301

Dear Governor:

I support the movement for a moratorium on executions in our state pending a full study of our system of capital punishment. The Senate has passed a moratorium bill. I ask that you suspend further executions until the House reconvenes and votes on the measure.

The evidence is clear that the legal profession in North Carolina, and the public at large, believe that capital punishment as practiced here is unjust and so flawed as to raise the possibility that an innocent person could be put to death. While such doubts persist, the use of the state's ultimate penalty cannot be justified.

Sincerely,

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