Duke law professor James Coleman, speaking in Cary last month at the North Carolina Leadership Summit on the Death Penalty, raised some hypothetical questions. What if a physician conducted surgery while drunk or after a night of alcohol or drug use? What if he fell asleep during the surgery?
If such negligence occurred in the operating room, Coleman said, consequences for the surgeon and the hospital would be swift. Not in the legal profession, however. Numerous cases--even when the defendant was facing execution--have been brought to light in which defense lawyers conducted trials while under the influence of drugs or alcohol or hungover, Coleman said. In some of those cases, the lawyers have actually fallen asleep during trials.
"What's unimaginable for hospitals is routine in capital cases," Coleman said.
The summit, sponsored by the American Bar Association, was part of a push by the ABA on its call for a moratorium on executions, a proposal supported by 70 percent of the ABA's House of Delegates.
"It's disgraceful for the state of North Carolina to not do something," Coleman said about a capital punishment system that would allow defendants to be executed who were represented by incompetent lawyers.
While DNA evidence has exonerated scores of death row inmates around the country, what about the executions carried out before DNA evidence was available? What about cases of innocence in which no DNA evidence is available? "We have executed innocent people," UNC law professor Richard A. Rosen said. "We do execute innocent people, and so long as we have a death penalty we always will execute innocent people."
Other problems with capital cases include prosecutorial misconduct, the unreliability of eyewitness testimony, racism and prejudiced juries.
Former Superior Court Judge Tom Ross noted the case of the late Charles Munsey, a North Carolina man who was sent to death row on the testimony of another prisoner who turned out to be lying. The district attorney in Munsey's case failed to turn over exculpatory evidence to defense lawyers, Ross said.
And the most moving presentation of the day came from Jennifer Thompson Cannino, a woman who was raped in 1984 while a student at Elon College.
After making an intentional effort to memorize her attacker's face, Cannino worked with a police artist to make a composite sketch of her attacker. Shortly after the sketch was published, Ronald Cotton was arrested, identified by Cannino in a police lineup and charged with the rape.
"I'm positive that's the man who raped me," Cannino said she told police. Based on Cannino's eyewitness testimony, Cotton received a life sentence.
"He did things to my body that I've never shared outside a courtroom," Cannino said. "I held on to my hatred. I held on to my anger. I hated him."
More than a decade later, DNA evidence exonerated Cotton. Since then, Cannino has spoken out against the death penalty. Cotton forgave Cannino, and the two have appeared together in a documentary film and at forums. Instead of hatred, Cannino said she has found a "place of grace" in her life.
While some speakers at the summit supported a moratorium on executions, others said the death penalty can never be imposed justly.
"There will always be mistakes," Rosen said. "We can make improvements. How many? I do not know. But it defies logic to think otherwise. We need to understand that DNA testing doesn't provide an answer ... even if we improve identification procedures, even if we begin to deal for the first time with prosecutorial misconduct, we're still going to march innocent people to the execution chambers."