Editors' Note: As we went to press, the Secretary of Correction postponed this week's execution of Robert Bacon Jr. and set a new date of Oct. 5. The action was taken at the request of Gov. Mike Easley, who said in a statement that the postponement was due to "the travel and communication disruptions, as well as court closings, that followed last week's tragic events" and would ensure, "that the defendant and his attorneys have full access to the courts."
Like most everyone in America, the 20 to 30 students who filed into a lecture hall on the UNC-Chapel Hill campus last Thursday night had foremost in their minds how the nation should respond to terrorist attacks. But they were also thinking about the case of convicted murderer Robert Bacon Jr., and about Gov. Mike Easley's upcoming decision whether to commute his death sentence or let him be executed on Sept. 21.The students came to hear Gretchen Engel, Bacon's lawyer, at a meeting of a campus group called the Campaign to End the Death Penalty. For a while, they wrestled with the possibility that recent events will, as one student said, convince people that "it's time to stop the killing."
But as Engel acknowledged, those events have also overwhelmed her efforts and those of colleagues in the anti-capital punishment movement to call attention to Bacon's case. A protest rally in Charlotte was canceled. Another in Raleigh was postponed. The public wouldn't be paying attention, Engel said at the campus meeting.
Left unsaid, but hanging in the air is that the public taste right now is for revenge, not mercy. Engel's appeal to Easley is to remember two principles: "One, this country isn't worth a worth a damn without equality under the law. And two, life is sacred, and healing is better than revenge."
In more than eight months in office, Easley has shown no inclination to mercy in death penalty cases. Five clemency requests have come his way, including Bacon's, which is now before him for a second time. Easley heard arguments from Bacon's supporters in May, but a court intervened before the governor issued his decision. (See "Death Watch," The Independent, May 16).
In all four of the cases he has decided, Easley has sanctioned execution, refusing to commute death sentences to life imprisonment without parole. (The governor's counsel declined comment on these cases.)
One of those clemency cases drew more than the usual attention, when the U.S. Supreme Court stepped in to stay a sentence Easley had supported. That was the case of convicted murderer Ernest McCarver who is mentally retarded and may not have understood what he was doing when he killed.
McCarver's appeal is now part of what may prove to be a landmark case in which the court considers whether to overturn a prior ruling and decide that executing people with mental retardation is unconstitutional. The North Carolina General Assembly has since passed, and Easley has signed, legislation to identify murder suspects who are mentally retarded and exempt them from the death penalty.
In the other three clemency cases, Easley rejected mercy for convicts whose legal representation was shown to have been terrible, whose lives were awful and whose conduct in prison was good.
Easley let Willie Fisher be executed in March; Fisher's lawyer, suffering from severe depression during the trial and since disbarred, failed to mount a case during the sentencing phase.
After Fisher, there was a pause while the North Carolina Supreme Court affirmed that as governor, Easley retains the sole power of clemency. The question arose when a group of 100 death row inmates--Bacon among them--filed a class action suit arguing that the governor had a conflict of interest in hearing such cases, given the fact that he prosecuted some of them back when he was a district attorney in Southport, and given his advocacy for the death penalty during his years as state attorney general.
The state Supreme Court decision was Aug. 2. Since then, two more executions have occurred with Easley's approval, and a third has been scheduled for Oct. 12. Clifton White was put to death over appeals that he be spared because of an abusive family history. White had also been a well-behaved prisoner.
More controversial was Easley's decision to let Ronald Frye be executed earlier this month despite a horrific childhood that was never considered by Frye's jury because his lead lawyer was drunk throughout the trial and the other lawyer never spoke up about it. Frye was literally given away to strangers who beat him with whips. The state's trial lawyers thought his was the clearest possible case to show the bias in the legal system that allows murder convicts to escape with life sentences if their lawyers are good, but dooms those whose lawyers fail to make an effective plea for their lives. Burton Craige, the president of the North Carolina Academy of Trial Lawyers, said of Frye's execution, "The right to counsel has lost its meaning in this state."
Late in his term, former Gov. Jim Hunt commuted the death sentence of murder convict Marcus Carter because the trial judge let Carter fire his lawyer and defend himself. Though there was little doubt of Carter' guilt, Hunt said the case violated the principle that suspects in jeopardy of their lives must be afforded effective legal representation.
In affirming Frye's execution, Easley took the opposite tack, saying, in effect, that it was not his job to consider whether Frye's lawyers were good enough. "While I recognize there is a question about the effectiveness at trial of one of the two defense attorneys," the governor stated, "state and federal courts have carefully reviewed and unanimously rejected this claim."
Easley will get another chance in the Bacon case to consider whether the state should kill a killer, despite not having given him the full benefits of due process. In Bacon's case, his supporters say poor lawyering may well have allowed racial bias to infect the jury's decision to execute him, but not his co-conspirator--a woman who was his victim's wife. Bacon is black. The woman, Bonnie Clark, is white, as was her husband, Glennie. She is serving a life sentence for murder with the possibility of parole.
Engel says two all-white juries sentenced Bacon to death. The decision by the first one was overturned by the state Supreme Court because Bacon's lawyers never introduced evidence about a mitigating factor in his case: His prompt confession led to the apprehension of a second felon, his lover, Bonnie Clark.
Despite that ruling, Bacon's lawyers again failed to tell the jury the mitigating factor in his second trial, and for a second time failed to seat any black jurors despite the trial's venue in racially diverse Onslow County.
To enter a death sentence, state law says juries must find that the aggravating circumstances of a case outweigh mitigating factors. Bacon's juries found just one aggravating factor in his case, which was that Glennie Clark had a life insurance policy worth $130,000. Bonnie Clark's jury rejected that as an aggravating factor, despite the fact that she was the beneficiary of the policy.
Engel is convinced that racial bias on the part of jurors is the reason Bacon is scheduled to die. An affidavit signed by one of the jurors in his second trial noted that Bacon's second jury discussed the view that blacks commit more crimes than whites and shouldn't date whites. Engel presented Easley with the affidavit when he heard Bacon's appeal in May. She also played a videotape in which Bacon asked to be spared and expressed his grief over his crime.
During the last clemency hearing for Bacon, Engel says Easley was well-prepared and asked good questions. His response convinced Bacon's mother, also in the room at the time, that the governor would commute her son's sentence.
This time around, Engel says no additional time with Easley has been scheduled, though she plans to submit additional materials to his office this week.