Frances Ferris has been active in the Campaign to End the Death Penalty at UNC-Chapel Hill almost since the day she arrived on campus two and a half years ago. Almost. She was vaguely pro-death penalty--"out of ignorance"--when she left home in Apex. She changed her mind, however, when campaign members showed her the evidence that an innocent person could be executed by mistake: Since 1976, when the United State reinstated the death penalty, 122 death-row inmates in 25 states have been released after they were found to have been wrongfully convicted. How many others, still in prison, are innocent? How many were?
After that, Ferris became a regular at the campaign's weekly meetings, listening to speakers and reading up on both sides of the issue, and what she's learned has made her an opponent of the death penalty for another reason. Even in those cases where the defendant's guilt is beyond doubt, she says, the jury's decision about whether to hand out a death sentence or life imprisonment is fatally infected by racial and economic bias.
Then, last year, Ferris helped with the research for a study by the Common Sense Foundation in Raleigh that underlined the problem of bad lawyers in the system in North Carolina: The inmates on death row were very likely to have been represented by the state's poorest defense attorneys, the study found.
"It's not like we just pick and choose the worst of the worst--like terrorists," Ferris points out. Instead, she believes, the ones put to death are those who can't afford a good lawyer and get stuck with a court-appointed incompetent--and almost always they've killed somebody who's white.
In the next six days, the state has scheduled two executions, the first in North Carolina this year. Unless Gov. Mike Easley grants clemency or the U.S. Supreme Court intervenes, Ernest Basden will be put to death at 2 a.m. Friday, Dec. 6. Next Tuesday, Dec. 10 at 2 a.m., Desmond Carter will die. Basden's white, Carter's black; both of their victims were white.
As the executions approach, UNC campaigners like Ferris will be the vanguard of the movement to stop them. The Campaign to End the Death Penalty expects to hand Easley petitions with over 1,000 signatures asking him to grant clemency in both the Basden and Carter cases--notwithstanding that both clearly committed murder--and to declare a moratorium on all executions in North Carolina while a study is conducted to see whether the death penalty can be administered fairly. "These cases are tainted by racial bias, unfair sentencing and ineffective assistance of counsel, exemplifying the problems of how the death penalty functions in this state," their message to Easley reads.
The students will be at the Governor's Mansion in Raleigh tonight--Dec. 4, starting around 8--as they are before every scheduled execution, trying to get Easley's attention with bullhorns and chants. (For a complete list of protests planned, see Act Now, p. 21.) "I like to think it helps," Ferris says. "The cops are always sent out, so someone's interested in getting rid of us."
Easley so far rejects the moratorium call, saying through spokesmen that he believes his own case-by-case review is enough. In nine clemency appeals so far since taking office, he's commuted two death sentences to life and rejected seven, five of which have resulted in executions (the other two were stopped by the Supreme Court).
The moratorium movement came of age in January, 2000 when Illinois Gov. George Ryan, a Republican and death-penalty supporter, declared one in his state after 13 death-row inmates there were shown to have been wrongfully convicted. The 9/11 terrorist attacks set back the cause. But it rebounded this year when Maryland Gov. Parris Glendening ordered executions suspended pending the outcome of a study of whether capital punishment is racially biased: Nine of 13 death-row inmates in Maryland at the time were black.
Then the D.C. snipers started killing people in Maryland. Governor-elect Robert Ehrlich has announced that, when he's inaugurated in January, he'll rescind Glendening's order and review each death sentence one at a time.
Though the sniper case was a setback, Steve Dear, who heads the Chapel Hill-based group People of Faith Against the Death Penalty, is nonetheless hopeful of a breakthrough in the 2003 General Assembly session. More than 600 churches, businesses and civic groups in the state have adopted pro-moratorium resolutions, he says, and 40,000 people have signed petitions.
In addition, 21 local governments in North Carolina have adopted resolutions in favor of a moratorium. They include three counties, all local (Durham, Orange and Chatham) and seven of the eight biggest cities: Asheville, Cary, Charlotte, Durham, Fayetteville, Greensboro and Winston-Salem. Only Raleigh is missing from the list. Other pro-moratorium municipalities locally are Carrboro, Chapel Hill and Hillsborough.
The '02 election returns "make for a difficult atmosphere" in Raleigh, Dear acknowledges. Republicans now control the House. Democratic leaders in both the House and Senate are anti-moratorium. "We've got to crack the Democratic leadership," he says.
His strategy is to focus on the Legislative Black Caucus, many of whom backed a moratorium bill last session. Of the 209 inmates on death row in North Carolina, 119 are black, 13 are Native American or "other," and 77 are white.
Also backing the moratorium movement are a growing number of the state's top attorneys, who want the governor to declare a moratorium based mainly on the issue of bad lawyering: Defense counsel for those who end up on death row is often so poor that it violates the constitutional guarantee of a fair trial. In "almost every case" that results in a death sentence, says former N.C. Supreme Court Justice Harry Martin, the performance of the defense lawyers is at best suspect "and usually is found to have been not adequate."
The N.C. Academy of Trial Lawyers, representing the state's defense bar, favors a moratorium. So does the American Bar Association. The movement in North Carolina got a big boost this year when Raleigh lawyer Alfred Carleton Jr. was elected president of the ABA, giving a position they first adopted five years ago new prominence here. Carleton, at a press conference recently, noted that the ABA's 400,000 members are broadly representative of the legal community as a whole. Some are conservative, some liberal, he said. Some are pro-capital punishment, some anti-captial punishment. But there's broad agreement among them that capital punishment as practiced in the U.S.--in the 38 states that allow it --is fundamentally flawed.
"One shudders to think of the possibility that an innocent person could still be executed," Carleton says.
The Basden and Carter cases do not raise the possibility of innocence, nor does either stand out from other capital cases in some way that makes it a compelling candidate for clemency. Rather, the two are typical of the kinds of cases that result in death sentences, exemplifying the argument for a moratorium on all executions.
Ernest Basden: A Case of Inadequate Counsel.
Even the conservative Fourth Circuit Court of Appeals recognized that Basden was "an intoxicated, manipulated rube" who pulled the trigger and killed Sylvia White's husband because Sylvia wanted him dead and her friend, Lynwood Taylor, got Basden to do the dirty work. Taylor told him Sylvia's husband beat her and abused her sexually--stories he made up, apparently.
But Taylor and Sylvia White got life sentences, Basden a death sentence. Why? One reason is that Basden was tried first, and his lead attorney fell ill with leukemia. The replacement lawyer had little trial experience and almost no time to prepare. So he failed to make an obvious move: Once Basden was convicted, he should have asked that sentencing be postponed while Basden testified against White in a separate case in which she was convicted of killing her 4-year old stepson.
Basden's testimony helped secure the conviction and would have been considered a "mitigating circumstance" that might have caused his sentencing jury to spare his life. Indeed, Taylor testified in the second case, too, and it helped his sentencing jury to decide against executing him. White, meanwhile, got a life sentence in the child-killing case and pleaded guilty to second-degree murder in her husband's killing. She's eligible for parole in 2005; Taylor will be eligible in 2013.
Desmond Carter: Racial Bias?
Carter, high on booze and cocaine, killed his neighbor, Helen Purdy, to steal her money. Death-penalty opponents have pointed to this as another case of incompetent lawyering because one of Carter's lawyers was recently reprimanded by the State Bar. The Common Sense Foundation's study showed that while less than 1 percent of the state's lawyers have been disciplined by the Bar, almost 20 percent of the lawyers who defended death-row inmates (at least 39 out of 207, it found) have been disciplined or disbarred. Common Sense concluded: "North Carolina has failed to provide fair trials ... by repeatedly assigning some of the state's worst lawyers to capital cases."
Recently, the standards for lawyers defending clients who face potential execution have been tightened, but they aren't retroactive--something the state Supreme Court could do but hasn't. One new requirement: The lead defense counsel must have been at least second chair in a previous capital case.
David Lloyd, one of Carter's post-conviction lawyers, thinks his case points to the more pernicious problem of racism by prosecutors and juries. He notes that while Carter was being tried and sentenced to death in Rockingham County, an almost directly parallel case was taking place next door in Guilford County: A young black, clearly guilty, killed a woman he knew for money while high on drugs and booze. Both this defendant and Carter had previous records of violent crimes. Both had longstanding mental problems. Both of their juries were back in short order. But the defendant in the other case, Michael Gooding, got a life sentence, while Carter was sentenced to death.
The difference? Gooding's victim was black, Carter's was white.
Last year, University of North Carolina researchers found that the odds are 3.5 times greater that a death sentence will result when the victim is a white person, regardless of the race of the killer. In Rockingham County, more than half the murder victims are black, but in seven of the eight cases in which a sentencing jury called for an execution, the victim was white, the UNC study found.
The legal profession's death-penalty opponents are divided on the question of whether, if the quality of defense counsel in capital cases were improved, a moratorium would no longer be needed and executions could resume. David Lloyd, one of the defense lawyers in the Desmond Carter case, says a moratorium still would be needed because problems of racial and class bias would remain. Former Justice Martin, who's helping in the Ernest Basden defense, says he's personally opposed to capital punishment because the cost of administering it fairly--lawyers' fees and judges' time--would be prohibitive. Carleton, however, says if the quality of representation is improved, a moratorium wouldn't be necessary: Public opinion is still heavily in favor of capital punishment, he notes, though only a bare majority think the way it's being administered now is fair.