In a letter he wrote last month to staff members at the Durham-based Center for Death Penalty Litigation, Russell William Tucker--whose execution had been scheduled for 2 a.m Dec. 7--included a prayer from an unnamed source:
"Oh my Lord, plead my cause with them that strive with me and fight against them that fight against me," wrote the 34-year-old New York City native, who now goes by the name of Abu Wamiq Abdul Ali Mizan. "Let them be confounded and put to shame that seek after my soul: Let them be turned back and brought to confusion that devise my hurt."
On Nov. 28, his prayer was answered. The State Supreme Court granted Mizan a stay of execution a little more than a month after one of his attorneys, David Smith of Greensboro, admitted that he had sabotaged his client's case by purposely missing a key appeals deadline. Smith, a former U.S. attorney, and his law partner Steve Allen, had been appointed to represent Mizan in post-conviction appeals. At the end of a visit with his client on death row, Smith said in an affidavit, "I decided that Mr.Tucker deserved to die and I would not do anything to prevent his execution." Based on Smith's admission, North Carolina's highest court issued a stay of Mizan's sentence and sent his case back to state Superior Court so that new attorneys can be appointed and his appeals reconsidered.
Mizan, who was sentenced to death for the 1994 killing of a 23-year-old KMart security guard in Winston-Salem, was the third death-row inmate scheduled to die in North Carolina this year. After an election-season lull of nearly 12 months, Attorney General Mike Easley's office requested execution dates for Michael Earl Sexton, Marcus Carter and Mizan. Sexton died by lethal injection at Central Prison on Nov. 9 for the murder of Kimberly Crews after Gov. Hunt denied his request for clemency. In Carter's case, Hunt surprised many observers by granting clemency 11 hours before the Goldsboro resident was scheduled to die on Nov. 22. It was only the second time in Hunt's career that he has commuted a death sentence. Mizan's reprieve was issued nine days before his execution, and a week after a state Superior Court judge rejected a request for reconsideration of his appeals based on his attorney's conduct.
Opponents of capital punishment view official decisions in the two most recent death-penalty cases as evidence that a growing push for reforming the system is having an impact.
"The courts are starting to pay attention to public opinion," says Ken Rose, director of the Center for Death Penalty Litigation, referring to the stay of Mizan's sentence. "The facts in this case were outrageous. But the courts have declined to review cases with outrageous circumstances before. I believe public opinion has a lot to do with this outcome."
There are other signs that public concerns about the death penalty are being heard. Last month, a legislative study commission called on the General Assembly to halt executions in North Carolina while questions of race and class bias are studied. Also last month, Winston-Salem joined the growing roster of local governments that have passed resolutions in favor of a moratorium on death sentences. In the Triangle, the list includes Durham, Carrboro and Chapel Hill.
Still, recent victories on the moratorium front haven't been able to slow the stepped-up pace of the state's capital punishment machinery. On Nov. 27, a day before Mizan's stay was issued, Easley's office notified the state Department of Correction to set an execution date for Bobby Lee Harris, who has been on death row since 1992 for the stabbing death of his boss, John Redd, the previous year.
Questions about Harris' sentence were raised by two state Supreme Court justices who ruled on his appeal. Justices James Exum and Henry Frye dissented from the majority, arguing that Harris should have received a sentence of life in prison because there was too little evidence that he and a co-worker had planned the murder. And they pointed out that Harris had taken steps to try to save Redd's life after the stabbing, had voluntarily surrendered to police and had expressed remorse about his boss's death. Murder charges against Harris' co-worker, Joe Simpson, were dropped and Simpson is scheduled to be released on Aug. 19, 2006. The state Department of Correction announced this week that Harris is scheduled to be executed on Jan. 19.
Information that was presented at trial would have shown that Harris has mental retardation, according to the Center for Death Penalty Litigation. The legislative study commission on capital punishment recommended that North Carolina end the practice of executing people with mental retardation.
The next meeting of the commission is Dec. 19 at 10 a.m. in the Legislative Office Building in Raleigh.