James Ferguson II, pictured here with Ken Rose and Burton Craige at the conclusion of the first day of the Racial Justice Act hearings before the N.C. Supreme Court in August of 2019
When I was a young Black lawyer in the late 1960’s and 1970’s, there was an unwritten rule in North Carolina’s courtrooms: Though race shaped every aspect of the criminal punishment system, we were not to mention it, let alone raise objections to it. Well over a decade before the U.S. Supreme Court outlawed racial discrimination in jury selection, I objected to Black people being excluded from a jury. The judge not only angrily overruled my objection, but also hastily hauled me into his chambers to berate me for “seeing race in everything.” Although, at the time, I did not “see race in everything,” I have come to realize that perhaps I should have, because in reality, race has permeated practically everything in our criminal punishment system.
Today, we can no longer ignore the racism at the heart of this system. Videos of police officers beating people like my former client, Johnnie Rush, who was brutally beaten and falsely accused of “jaywalking” at midnight in Asheville, and of George Floyd, pinned to the ground and publicly executed in Minneapolis as he cried for his mother, saying, “I can’t breathe,” and many others, have made this painfully clear. People are marching in the streets and demanding change. Two weeks ago, amid these protests, our state Supreme Court issued a momentous decision requiring us to take an honest look at racism and the death penalty.
In its decision, the court declined to ignore evidence that Black people have been systematically denied the right to serve on capital juries. Instead, the evidence must be fully addressed, not just for the good of a few defendants, but for the sake of our courts’ integrity. As Justice Anita Earls, herself African-American, wrote, the harm of racial discrimination in criminal cases “undermines the integrity of our judicial system and extends to society as a whole.”
This victory lifts the knee off the necks of people sent to death row after racist trials, and breathes new life into the Racial Justice Act. The RJA will take its place in the history of other civil rights I have dedicated my career to advancing: integrated public schools, fair employment and the right to vote.
The RJA promised the people of North Carolina that no one would be executed in our names if race played a role in the death sentence. The RJA recognized that the death penalty is a powerful symbol of the state’s power, one that sits at the summit of our criminal punishment system.
The RJA revealed that prosecutors exclude Black citizens from death penalty juries at astonishingly disproportionate rates, and have even been trained to circumvent legal protections against racist jury selection.
It also led us to discover outrageous prosecutor notes reminiscent of those made during the trial of my Wilmington 10 clients in 1972. Prosecutors in my client Quintel Augustine’s case labeled one potential Black juror a “thug,” another a “blk wino.”
The RJA revealed more than some of our legislators wanted to see, and, in 2013, the law was repealed by a General Assembly different from the one that passed it in 2009. This new legislature – the very same one federal courts found have enacted racially discriminatory voting laws that targeted and disenfranchised African Americans “with surgical precision” – turned its back on our commitment to eradicate race discrimination in the death penalty.
In many ways, this is an old story. Throughout history, civil rights advances have met with resistance. I was attending junior high at an all-Black school in Asheville when Brown v. Board of Education was decided. As North Carolina vehemently resisted Brown, I waited September after September to attend an integrated school. It was only years later, after the federal courts accepted the argument of my firm’s client James Swann and stepped up to enforce it, that the promise of Brown was realized.
Now, the North Carolina Supreme Court has stepped up to say our state’s decades of tolerating race discrimination in death penalty cases are over. Our state must now reckon with undeniable and irrefutable evidence that Black citizens are denied the right to serve on capital juries solely because of the color of their skin.
We must finally bring the evil of race discrimination out of the shadows and into the sunlight. We must speak honestly about the ways it has distorted our capital punishment system and denied Black citizens access to the levers of power in our most serious cases. Only once we have done that can we begin to build a new structure that truly seeks justice.
James Ferguson II is a renowned North Carolina attorney and civil rights champion. He represents men and women on death row in litigation under the Racial Justice Act and is a founding partner and the president of Ferguson, Chambers and Sumter in Charlotte, established in 1964 as the first racially integrated law firm in North Carolina.
The Center for Death Penalty Litigation’s June 5 2020 Press Release:
The North Carolina Supreme Court today issued two landmark civil rights rulings on the Racial Justice Act, clearing the way for a much-needed review of racial discrimination in death penalty cases across the state.
The court decided 6-1 Friday that Rayford Burke and Andrew Ramseur, prisoners on North Carolina’s death row, were entitled to hearings where they can present evidence that prosecutors purposefully excluded African American citizens from their juries and that racism tainted their trials. The rulings also mean that death row prisoners across North Carolina who filed claims under the N.C. Racial Justice Act before its repeal in 2013 are entitled to present their evidence in court. The justices decided the case under the state constitution, so it cannot be appealed. [Read the full decisions: Ramseur and Burke.]
“This is a momentous decision that sends a clear message: Our state’s highest court will not allow North Carolina to ignore evidence that racism has infected the death penalty,” said CDPL Executive Director Gretchen M. Engel. “This was also an urgently needed decision as our state and our nation confront a long history of racism. The death penalty is the apex of a criminal legal system that has failed people of color.”
The court has not yet decided the cases of four other RJA defendants, Marcus Robinson, Quintel Augustine, Christina Walters, and Tilmon Golphin, who initially won their cases but saw them overturned on appeal.
The ruling comes just days after Chief Justice Cheri Beasley responded to protests against police violence with a candid admission that North Carolina’s courts have helped perpetuate racial disparities. “We must come together to firmly and loudly commit to the declaration that all people are created equal, and we must do more than just speak that truth,” Beasley said. “We must live it every day in our courtrooms.”
Justice Anita Earls authored the decision, and affirmed that it was about more than two individual defendants. She wrote that “the harm from racial discrimination in criminal cases is not limited to an individual defendant, but rather it undermines the integrity of our judicial system and extends to society as a whole.”
At oral arguments in August, Burke and Ramseur presented stark evidence. Both are black men convicted by all-white juries in Iredell County. Prosecutors at Burke’s trial referred to him during closing arguments as a “big black bull.” Ramseur’s trial was shadowed by widespread threats of lynching, and the judge and sheriff forced his family to sit in the back of the courtroom while the white family of the victim sat in front.
“This decision is built on basic fairness,” said Don Beskind, a Durham attorney and Duke Law professor involved in the litigation. “The evidence in these death penalty cases was stark and undeniable. The very least we can do is allow it to be heard in court. Even our most conservative U.S. Supreme Court justices, most recently Justice Kavanaugh, have said that race discrimination in jury selection is a serious long-standing problem that courts must address.”
Burke and Ramseur, like most of the people on North Carolina’s death row, first presented this evidence shortly after the N.C. legislature created the Racial Justice Act, which allowed death-sentenced people to bring forward evidence of racism in their trials. Those who could prove that race was a significant factor in their sentences would be resentenced to life in prison without parole. The law’s passage marked the first time a death penalty state allowed for a systematic review of racial bias in capital cases.
A statistical study commissioned as a result of the RJA found overwhelming evidence that, in scores of North Carolina capital cases over two decades, prosecutors illegally struck black jurors because of their race. And death row prisoners across North Carolina unearthed disturbing evidence of racism in their trials that had never before been examined by the courts.
However, in 2013, after the first four RJA defendants won their cases, a new legislature repealed the RJA. This same legislature was found by the U.S. Supreme Court to have enacted racially discriminatory voting laws. The RJA repeal legislation sought to invalidate all pending cases and prevent any court review of the evidence of bias that was uncovered. In its decision today, the Supreme Court rejected that gambit, saying that the evidence of rampant discrimination against black North Carolinians was too troubling to ignore.
Friday’s ruling was based on the precedent of State v. Keith, an 1869 case in which the N.C. Supreme Court ruled that a Confederate soldier charged with war crimes was protected by a post-Civil War amnesty law and could not be prosecuted, even though the amnesty law had since been repealed. The death row prisoners argued that if the Constitution protects Confederate war criminals, it must also protect their right to present evidence of race discrimination against black jurors even after the repeal of the Racial Justice Act.
“In light of decades, if not centuries, of mistreatment and brutalization of black citizens at the hands of America’s criminal system, today’s decision to take the death penalty off the table when there is evidence of racial bias is just one small but important step toward achieving the broad-based reform needed in North Carolina, and across the country,” said Henderson Hill, a prominent ACLU attorney who represents RJA defendants. “It’s something to celebrate, but also a reminder that we must keep working for justice.”
ADDITIONAL BACKGROUND:
Go here for more detail on the Racial Justice Act.
Read Bryan Stevenson’s op-ed on the importance of the Racial Justice Act.
Our current criminal legal system offers only one remedy when a crime has been committed: punishment. With the largest prison population in the world, the United States spends billions of dollars each year imprisoning and executing people. In North Carolina alone, about 66,000 adults are in prison or jail. And as much as the punishment system pays lip service to the victims of crime, it often ignores the central questions that might help create healing for people harmed by crime, their communities, and even the people who harmed them. But there is an alternative.
Who has been harmed? Why did it happen? What would help to repair the harm? How can we make sure this doesn’t happen again?
These are the questions asked by restorative justice, a growing movement that seeks alternatives to the punishment-only model. Restorative justice sees a crime as more than breaking the law; it’s an action that harms relationships and communities. The restorative justice process empowers those who are most affected by crime to have a voice in how that harm should be repaired. It promotes carefully facilitated dialogues that often result in transformation for both those harmed and those who committed crimes. The process typically ends with concrete steps the offender must take to make amends, tailored to the specific crime, its victims, and the community in which it happened. In other cases, it is used after the fact to help victims and offenders understand and heal from the trauma of the crime.
NCCADP Board Member Erica Washington, reading here at the Carolina Justice Policy Center’s annual Poetic Justice event, works with Impact Justice’s Restorative Justice Project
Right now, restorative justice is used in some North Carolina school districts — including Wake, Durham, and Chapel Hill — to keep children out of the criminal punishment system. A few North Carolina district attorneys have also begun to use restorative justice alongside the traditional legal process. In some cases, it has helped people take responsibility for their crimes while avoiding long prison terms, which are costly not just for incarcerated individuals but for their families, their communities, and the state. It might be tempting to think of restorative justice as a way for people to get off easy, but those familiar with the process say it makes far more demands on a person than the typical criminal legal system, where defendants passively receive punishment from a faceless system. In the criminal process, defendants sometimes come to feel like victims of a flawed system and avoid the difficult emotional work of taking responsibility for their behavior. By contrast, facing the people they harmed is a grueling process that forces them to reckon with the pain they’ve caused, accept responsibility, and participate in the community’s healing.
Each fall, the Capital Restorative Justice Project hosts a gathering in North Carolina for family members who have had a loved one murdered, family members who have had a loved one sentenced to death, and for community members to participate in Circles and to learn together about an aspect of restorative justice.
On North Carolina’s death row, some of the men have participated in restorative justice circles that allowed them to hear the stories of people who lost loved ones to violence. The circles encouraged them to explore the roots of their own crimes. Some people on death row say the process was life-changing, forcing them to understand the pain they caused in new ways. However, at present, only a tiny fraction of prisoners and victim family members are able to access a restorative justice process.
We envision a world in which the key questions of restorative justice are asked in every crime, especially in serious crimes that cause the most harm. We envision a system where families of murder victims have a voice in their own healing, rather than being told by the state that the death penalty will bring them “closure.” We envision a society that seeks to understand the causes and conditions of crime, and then implements evidence-based solutions to reduce its frequency. We envision a state whose response to crime is: How can we help to heal? Instead of: Who can we execute?
A LETTER TO LYNDA
Excerpt from Jason’s letter to the NCCADP about meeting RJ advocate Lynda Simmons
In October 2019, Jason Hurst wrote a heart-felt letter recalling Lynda Simmons, a woman who had shared with men on death row her powerful story of loss and restoration. This is an excerpt from that letter, published with generous permission from both Lynda and Jason.
“I would like to say that I had a full understanding of the pain I caused immediately after committing the atrocity that sent me here, but the truth is, I had no idea. At least not until my participation in the circle group and having the privilege to meet Lynda Simmons. A courageous, forgiving, amazing person, Lynda shared with us how the murder of her son completely changed her life. There was not a dry eye among us and it was then that the destruction my actions had caused began to be clear. It was as if each of us in the room were responsible for the loss of her son and we wanted to be forgiven for it.
Over a period of several weeks, she listened as each of us told her as much or as little about what brought us here as we were comfortable with, all the while offering us comfort while surely reliving the worst day of her life. That whole moving experience opened up the idea that maybe the possibility exists for me to express how remorseful I am to the family whose lives I’ve forever altered. To assure them that not only am I physically incarcerated, but after being granted a view into Lynda Simmons’ life, I hurt internally for what I’ve done as well. I want them to know that.”
The last photo Lynda has of her son Brian. Read more about her story here.
Thanks for your interest in attending the historic RJA hearings on August 26th and 27th. To help you prepare for your visit, we’ve answered a few frequently asked questions below.
Know before you visit:
A government issued photo identification is required for entry into the courthouse
Business casual dress is preferred.
Talking is not permitted inside the courtroom.
Do not approach or walk to the front of the courtroom.
Cell phones must be turned off or placed on silent only.
Electronic devices cannot be used to take photographs or to make audio or video recordings of
court proceedings. Violations may result in the confiscation of your electronic device.
No food or drinks of any kind is allowed inside the courtroom. Eating, drinking, and sleeping while
in the courtroom is not permitted.
Parking and timing: The Supreme Court is located at Two East Morgan Street in downtown Raleigh. Several parking lots and decks open to the public are nearby, including parking lots and decks at:
120 South Wilmington St.
1 South Wilmington St.
201 West Morgan St.
222 West Hargett St.
We recommend an earlier arrival. On the day of the argument, you should arrive at the Court in plenty of time to pass through security, find the courtroom, and settle into your seat before the session begins. The Justice Building opens at 8:00 a.m. The courtroom, located on the third floor, opens at 8:30 a.m. Oral arguments begin at 9:30 a.m.
What is the North Carolina Supreme Court (NCSC): The North Carolina Supreme Court is the highest court in the state and has the final say as to issues arising under the NC Constitution, NC General Statutes, and NC common law. Where a decision of the NCSC implicates a question arising under a federal statute or the federal Constitution, the US Supreme Court may elect to grant certiorari and hear an appeal on those issues.
Who serves on the North Carolina Supreme Court: The North Carolina Supreme Court consists of a Chief Justice and six Associate Justices. All seven Justices are elected in statewide non-partisan races and serve staggered eight-year terms. More info on the justices can be found here.
What is the role of The North Carolina Supreme Court? The NCSC hears:
death penalty appeals directly from the North Carolina Superior Courts,
appeals from divided panels of the North Carolina Court of Appeals, and
certain discretionary appeals from unanimous panels of the North Carolina Court of Appeals
All cases before the Supreme Court are orally argued.
What can be expected when hearing a case at the NCSC: An opinion deciding the appeal typically follows about six months after the oral arguments, though it may take shorter or longer.
2009 The N.C. Racial Justice Act was adopted by the state legislature on a party-line vote, with Democrats in favor and Republicans opposed.
2010 In August, most people on North Carolina’s death row filed claims under the RJA, citing a study by researchers at Michigan State University showing statewide racial disparities in charging, sentencing, and jury selection decisions in capital cases tried in North Carolina between 1990-2010.
After the November elections, the Republicans took control of both houses of the General Assembly.
2012 The first evidentiary hearing in the state on an RJA claim is held in the case of Cumberland County’s Marcus Robinson. Following a two-week hearing, Chief Resident Superior Court Judge Gregory A. Weeks entered an order vacating Robinson’s death sentence and resentencing him to life imprisonment without the possibility of parole. Judge Weeks found that prosecutors struck African-American citizens from juries at over twice the rate that they struck white citizens. Judge Weeks also determined that prosecutors in Cumberland County and around the state had engaged in intentional discrimination against African-American jurors.
Just months after the Robinson decision, the newly-GOP-controlled General Assembly amended and narrowed the RJA.
Later that fall, a second RJA hearing was held in Cumberland County in the cases of three more people on death row: Quintel Augustine, Tilmon Golphin, and Christina Walters. Judge Weeks again ruled race was a significant factor in prosecutors’ peremptory strike decisions and that prosecutors had engaged in intentional discrimination against African-American citizens. He resentenced all three defendants to life imprisonment without the possibility of parole. Among Judge Weeks’ findings were that prosecutors used a “cheat sheet” of manufactured answers to justify striking African-American citizens from juries, and that they wrote racially-charged notes about potential black jurors, such as “blk wino – drugs” or being from a “respectable blk family” or from a “blk/high drug” area.
2013 In March, the State appealed Judge Weeks’ decisions in all of the Cumberland County RJA cases.
In June, the General Assembly repealed the RJA.
2015 In December, the North Carolina Supreme Court remanded the cases of the four Cumberland County defendants to the trial court. The Supreme Court found no specific problem with Judge Weeks’ determinations about prosecutors’ improper use of race in jury selection, but instead found that the prosecution should have been given more time to prepare its own statistical study and that the consolidated RJA case should not have combined the cases of three defendants into one hearing.
2016 In March, the North Carolina Supreme Court granted petitions for certiorari review in two capital cases where RJA motions were filed, but never heard in court. These cases raise the question of whether the repeal of the RJA can be applied retroactively to void claims filed prior to the repeal. The defendants in these two Iredell County cases are Rayford Burke and Andrew Ramseur.
In November, a superior court judge heard oral argument in the Cumberland County cases on the question of whether the RJA motions that previously resulted in Judge Weeks imposing life-without-parole sentences should be dismissed based on the General Assembly’s repeal of the RJA.
2017 In January, the superior court dismissed the RJA motions of the four Cumberland defendants.
In May, the four sought review in the North Carolina Supreme Court.
2018 In March, the Court granted review in the four Cumberland cases.
In July, the Cumberland defendants filed their opening briefs in the state supreme court, along with supporting amicus briefs from groups including the NAACP Legal Defense Fund, the NAACP of North Carolina, NC Association of Black Lawyers, prominent civil rights advocates, and a coalition of former prosecutors.
2019 On August 26 and 27, the Supreme Court of North Carolina will convene oral argument in the cases of the Cumberland 4 and Iredell 2.
Tilmon Golphin, held by his uncle, Mr Willie McCray
LATEST NEWS
On June 5th, 2020 the North Carolina Supreme Court issued two landmark civil rights rulings on the Racial Justice Act, clearing the way for a much-needed review of racial discrimination in death penalty cases across the state.
The court decided 6-1 that Rayford Burke and Andrew Ramseur, prisoners on North Carolina’s death row, are entitled to hearings where they can present evidence that prosecutors purposefully excluded African American citizens from their juries and that racism tainted their trials. The rulings also mean that death row prisoners across North Carolina who filed claims under the N.C. Racial Justice Act before its repeal in 2013 are entitled to present their evidence in court. The justices decided the cases under the state constitution, so they cannot be appealed.
“This is a momentous decision that sends a clear message: Our state’s highest court will not allow North Carolina to ignore evidence that racism has infected the death penalty,” said CDPL Executive Director Gretchen M. Engel. “This was also an urgently needed decision as our state and our nation confront a long history of racism. The death penalty is the apex of a criminal legal system that has failed people of color.”
Read the Center for Death Penalty Litigation’s full press release here.
——
On August 26th and 27th, 2019, the NC Supreme Court heard oral arguments in six cases involving the Racial Justice Act (RJA). Here’s what you can do now to learn more and help protect RJA.
Spread the word. Your voice matters. Write a letter to the editor. Talk to your friends. Think local, think statewide, think about your regional newspaper, faith group, or book club. Share this site and share your thoughts on why capital punishment must come to an end. Go here for a Racial Justice Act fact sheet to help you write your letter, craft your speech, or hand out at your event.
Show up. Share. Let your voice be heard: North Carolina Must End This Racist Machinery of Death.
Shirley Burns, right, hugs a family friend after Superior Court Judge Greg Weeks ruled in 2012 that the trial of her son, Marcus Robinson, was so tainted by the racially influenced decisions of prosecutors that he should be removed from death row and serve a life sentence. Photo by Andrew Craft, AP
The Racial Justice Act Overview
In 2009, after several innocent black men were freed from death row, the North Carolina legislature passed the ground-breaking Racial Justice Act (RJA). The law allowed people on NC’s death row to present evidence that racial bias played a role in their death sentences. Those who could prove discrimination would be resentenced to life in prison.
The law led to a statewide study, which showed that people of color are systematically excluded from serving on capital juries at more than twice the rate of whites—along with a trove of evidence that prosecutors were purposefully striking black jurors in violation of federal law.
In 2012, the first four people to bring their RJA cases to court won and were resentenced to life in prison because of discrimination in jury selection. But their victory was quickly snatched away, even though the state was unable to refute the evidence of discrimination. The state appealed the decisions and the North Carolina Supreme Court, finding procedural errors in the first hearings, remanded the cases for new proceedings.
In 2013, the North Carolina General Assembly voted to repeal the RJA. Governor Pat McCrory signed the repeal into law. Soon after, a court dismissed the four cases that had been remanded for new hearings, saying they were no longer entitled to hearings because of the law’s repeal. The four defendants were returned to death row.
From death to life to death again.
Now, the N.C. Supreme Court must make a key decision.
On August 26 and 27, the state Supreme Court heard six cases under the RJA. The Court will be asked to decide whether those first four defendants are entitled to reinstatement of their life-without-parole sentences, or whether they should get new hearings to present compelling evidence of race discrimination in their cases. In two other cases, the Court will decide whether people on death row who filed claims under the RJA will still get the chance to present their evidence in court, even after the law’s repeal.
Of the six defendants, three were sentenced to death by all-white juries; one by a jury with one person of color. This mirrors state-wide discrepancies. At the time of the RJA’s passage in 2009, North Carolina was 34 percent non-white, but almost half of North Carolina’s death row prisoners had been sentenced by juries with no meaningful minority representation.
As the Court considers these six cases, the essential question is this: Will North Carolina confront overwhelming evidence of racial bias in the death penalty and protect the constitutional rights of jurors and defendants? Or will it throw away a mountain of evidence without addressing it, sending a message that discrimination doesn’t matter and thereby eroding the public’s trust in the system?
“It hurt my heart,” she said, “to hear that evidence of racism . . . . I don’t understand why African Americans can’t serve on juries just like white people.” Mr. Augustine’s mother sat in the courtroom as the prosecutor struck one black juror after the other. Ten years later in an RJA hearing, Ms. Choate returned to the courtroom to learn about the patterns of discrimination in her son’s case and in others across North Carolina.
The Evidence
The RJA study, conducted by researchers at Michigan State University, analyzed N.C. capital cases from 1990-2010. It found that qualified black jurors were struck from capital juries more than twice as often as white jurors. The researchers controlled for factors, and the disparity was attributable only to race.
In addition, defendants found direct evidence of discrimination such as prosecutors’ notes about potential jurors’ races. The notes about black jurors who were struck included descriptions such as “blk wino” and “thug.” They also found documents from a training session, in which N.C. district attorneys were taught to strike black jurors for preposterous reasons such as their hairstyles, clothing, or body language.
The History
Black people have been denied the right to serve on juries throughout American history. Many black men in America, in spite of their innocence, have been convicted and sentenced to death with charges brought by white prosecutors, tried in front of white judges, and before all-white juries. While citizens of color were once kept off juries by openly racist laws and policies, the discrimination is now more difficult to detect. Prosecutors use peremptory strikes to remove black jurors, and are often not required to provide any explanation for why they struck those jurors.
Why It Matters
The right to a jury of one’s peers is a fundamental Constitutional right. For most Americans, serving on a jury is, along with voting, the most direct way to participate in democracy. Studies also show that diverse juries deliberate more thoroughly and are less likely to convict innocent people.
Evidence of Discrimination in Each Case
Despite a prohibition against prosecutors using peremptory strikes in a race-conscious manner, all of the defendants obtained evidence of racial bias in jury selection. Many of the cases also included deeply troubling evidence of other forms of racial discrimination during legal proceedings. These include:
During jury selection in Tilmon Golphin’s case, a prospective African American juror heard two white jurors saying that Mr. Golphin “should have never made it out of the woods” [when he was taken into police custody]. The African American juror was struck, in part, because he reported overhearing these statements. It is unknown whether the white jurors who made the comments served on Mr. Golphin’s jury. Read Tilmon Golphin’s full brief.
“In front of an all-white jury, the prosecutor explicitly drew attention to [Rayford] Burke’s race. In closing arguments, while urging jurors to find [Mr.] Burke guilty, the prosecution referred to [Mr.] Burke as a ‘big black bull.’” Read Rayford Burke’s full brief.
In the courtroom in which Andrew Ramseur was tried, there was “crime scene tape” cordoning off the four rows behind him; his family, including his elderly grandfather, was literally required to sit in the back of the courtroom despite no reason being provided. Counsel moved to have the crime scene tape removed. After the Court initially denied the request, the tape was eventually removed, but Mr. Ramseur’s family was still required to sit in the back of the courtroom rather than behind him, without explanation. Read Andrew Ramseur’s full brief.
The prosecutor in Quintel Augustine’s case wrote racially-charged handwritten notes about prospective jurors. He described a Black juror who drank as a “blk. Wino” but a white juror who drank as a “drinks–country boy–OK.” He described a Black female juror as “ok” because she was from a “respectable blk family.” Read Quintel Augustine’s full brief.
During jury selection in Marcus Robinson’s case, the prosecutor asked a Black high school graduate whether he had repeated any grades or had trouble reading – questions he had asked no white juror. The prosecutor later testified that he recognized that he harbors implicit racial biases. Read Marcus Robinson’s full brief.
At Christina Walters’ trial, the prosecutor struck 10 of 14 potential black jurors, a strike rate of 3.6 times that of potential white jurors. Her explanations for why she struck black jurors did not hold up to scrutiny. For example, the prosecutor struck one black juror because he “did not feel like a victim” after his car had been broken into and a CD player stolen. Yet, she kept two white jurors who minimized the impact of their experience as victims of minor property crimes. Read Christina Walters’ full brief.
What Friends of the Court (otherwise known as Amici) Are Saying
“After a long and tragic history of entrenched racial discrimination in the administration of North Carolina’s death penalty, this Court can pave a new path for North Carolina’s judicial system that demonstrates an unequivocal commitment to fundamental fairness and racial equality. Especially with respect to juries, which are a crucial exercise of citizenship that is essential to the integrity of the judicial process, there simply should be no tolerance for the taint of racial bias.
[..]
No act by the North Carolina Legislature can wish away what we now know to be true from overwhelming statistical evidence: racial discrimination impermissibly influences the administration of North Carolina’s death penalty.”
ACLU Capital Punishment Project, ACLU of North Carolina,
North Carolina Advocates for Justice, and NC Conference of the NAACP (full brief here)
Whether our state courts will tolerate epidemic levels of racial bias and discrimination in jury selection is a question of grave importance to both our State and the perceived legitimacy of the criminal justice system.
In light of the evidence uncovered under the RJA, there can be no real question about whether race played a role in defendants’ capital trials. The only question is whether this Court will squarely face the record and respond in a way that honors our Constitution.
Promise of Justice Initiative and
12 Former Judges, Justices and Law Enforcement Officials (full brief here)
Capital punishment is now constrained to a dwindling handful of locations, reserved not for the most culpable offenders, but for those unlucky few prosecuted under anachronistic circumstances. In North Carolina, whatever standard method of measurement used, it is now beyond dispute that use of the death penalty is unusual. Indeed, use of capital punishment has dropped to such low levels that it would be hard to argue that it fulfills an indispensable role in the criminal justice system. And yet, the death penalty has an out-sized effect on our confidence in the fair administration of punishment.
Experience has taught us that while many prisoners undergo significant transformation, the death penalty leaves no room for the possibility of redemption. It thereby diminishes the dignity of human life that it was designed to enhance.
In every generation, there are those who counsel deliberation, patience, and a measured approach to the evolution of the standards of decency. But it comes at a cost: delay in addressing the constitutionality of capital punishment serves to further undermine and erode confidence in the administration of the system that capital punishment was once enacted to protect. The time has come to consider whether the system of capital punishment that currently operates in North Carolina violates the evolving standards of decency.”
Marcus should not be executed, especially not before the courts hold a fair hearing on the evidence that his death sentence came about in a racially biased manner. One judge has already found that such bias existed. Our Supreme Court, which is bound to fairness, now has a duty to all North Carolina citizens to make sure that this evidence sees the light of day.
James E. Ferguson II, renowned NC lawyer and civil rights champion (full article here)
The one thing that could not be repealed was the evidence that was brought out in the cases that we tried under the Racial Justice Act. We showed that racism has been a defining factor in jury selection in capital cases. So, the repeal of the act doesn’t change the facts. Our courts have the power, when racism is demonstrated as it has been under the Racial Justice Act, to take action and make sure that we don’t have people going to the death chamber because race played a role in jury selection or any other aspect of the case. I hope they will use their authority to ensure a more fair system, one that is not tainted by racial prejudice.
Study after study has shown that North Carolina prosecutors exclude qualified African-Americans from juries at twice to three times the rate they exclude white citizens. Prosecutors’ notes sometimes reflect their distrust of black jurors. In one case, for example, a prosecutor tagged African-American jurors with notations such as “blk wino,” and “blk/high drug area.” This is not an isolated occurrence.
My point is not that North Carolina prosecutors are racists or bigots; most likely intend to follow the law. But we now accept as fact that implicit bias affects human decisions, regardless of our legal training or good intentions. However, in a world in which the practice of excluding African-Americans from jury service is longstanding and tacitly accepted by our courts, such bias is persistent.
The RJA was only the second law of its kind in the nation and it was the first to address race discrimination in jury selection. The RJA established that no person in North Carolina could be capitally-prosecuted or executed if racial bias was a significant factor in the case. The law was sorely needed in the wake of several exonerations of African-Americans wrongfully convicted and even sentenced to death by all-white or nearly all-white juries.
On April 20, 2012, Cumberland County Judge Gregory Weeks issued the first decision under North Carolina’s Racial Justice Act, ruling that racial bias had played a role in Marcus Robinson’s 1991 trial and commuting Mr. Robinson’s death sentence to life imprisonment without parole.
Marcus Robinson, an African American man who was eighteen at the time of the crime, was sentenced to death in Cumberland County for the murder of a white person. North Carolina’s Racial Justice Act (RJA), which was narrowly adopted in 2009, authorized relief for death row defendants who could prove that race was a “significant factor” in jury selection, prosecutorial charging decisions, or the imposition of the death penalty. The RJA authorized defendants to bring claims based on evidence of discrimination at the statewide, judicial division, or district/county level.
According to a Michigan State University Law School study, during the time period Mr. Robinson was tried, North Carolina prosecutors used peremptory challenges to remove black people from capital juries more than twice as often as they did white people, and that disparity was even more pronounced in Cumberland County. At Mr. Robinson’s trial, prosecutors removed only 15% of white prospective jurors, compared to 50% of the qualified African American jurors. At an evidentiary hearing on the RJA challenge, EJI Director Bryan Stevenson testified regarding the history and broader context of racial discrimination in jury selection. Following the decision, prosecutors immediately made plans to appeal and the state legislature passed measures that weakened the RJA.
Charles Ray Finch in 2015. Photo by Brad Coville, Wilson Daily Times.
Jan. 31, 2019
A man who was sentenced to death in North Carolina may soon be exonerated after spending more than 40 years in prison.
Last week, a federal court said Charles Ray Finch — who was sentenced to death in 1976, but later resentenced to life because of changes to state death penalty laws — is entitled to a new hearing to determine whether he is innocent. The court also discounted nearly every piece of evidence used to convict Finch of murder.
The verdict was the result of work by Duke University’s Innocence Clinic, which has been investigating Finch’s case since 2001. Finch has claimed innocence since the day of his arrest, but other courts had refused to consider the evidence he offered. He is now 80 years old. Finch’s lawyers are asking Attorney General Josh Stein to agree to his release, since the court ruling said no rational jury would convict him based on the evidence available today.
According to the opinion, one witness who testified against Finch has since recanted, saying that police and prosecutors pressured him into identifying Finch as the killer. All of the physical evidence that police said connected Finch to the crime has been discredited.
Most importantly, the testimony of the state’s main eyewitness was proven unreliable. Lester Jones was working in a convenience store alongside Richard Holloman when three men robbed the store and shot Holloman to death. Jones was unable to describe the shooter’s face, but told police the man was wearing a three-quarter length jacket. That night, during three separate lineups, Finch was the only suspect wearing a three-quarter length jacket. Such highly suggestive lineups have been proven to lead to false identifications and are now illegal.
Other people who were convicted based on questionable eyewitness identifications remain on death row in North Carolina. For example, Elrico Fowler was sentenced to death in 1997 based largely on the testimony of an eyewitness. Despite having seen only one suspect, the witness picked several other men in photographic lineups — and when he was first shown Fowler in a photo lineup, he failed to identify him. He only picked Fowler in a second photo lineup administered several days after the crime, after the same photo of Fowler had appeared in the newspaper listing him as a suspect. And the witness became certain of his identification only after investigators told him that he picked the right person.
As long as we have the death penalty, innocent people will be in danger of execution. How many more people must be exonerated before North Carolina ends the death penalty?
We often hear about wrongful convictions in death penalty cases, leading to innocent people spending years or decades on death row. But another, often hidden problem is wrongful death penalty prosecutions — cases where innocent people are charged with capital murder and tried for their lives only to eventually be cleared of all charges. These innocent people, while never convicted, spend years in jail, and lose their jobs, savings, reputations and family relationships. Dozens of people have been capitally prosecuted in North Carolina despite evidence too weak to prove their guilt, showing that the death penalty is used broadly and indiscriminately instead of being reserved for the “worst of the worst.”
In the Center for Death Penalty Litigation’s 2015 report, On Trial for Their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina, authors pored over case files, court records, and news reports, contacted attorneys, and interviewed the accused to find cases in which a person was charged with capital murder and eventually acquitted by a jury or had all charges related to the crime dismissed by the state. The report found 56 wrongful capital prosecutions over 26 years, or an average of two each year. These unjust prosecutions had a devastating impact on the lives of the defendants — as well as a large public cost.
The report found that, between 1989 and 2015:
The state spent nearly $2.4 million in defense costs alone to pursue these failed cases capitally. (This conservative figure does not take into account the additional prosecution, court, and incarceration costs in capital cases.)
Defendants who were wrongfully prosecuted spent an average of two years in jail before they were acquitted by juries or had their charges dismissed by prosecutors.
The 56 defendants in the study spent a total of 112 years in jail, despite never being convicted of a crime.
By the time they were cleared of wrongdoing, many people lost their homes, jobs, businesses, and savings accounts, and saw personal relationships destroyed. They received no compensation after they were cleared of charges.
Serious errors or misconduct played a role in many cases. The 56 cases involved instances of witness coercion, hidden evidence, bungled investigations, the use of improper forensic evidence, and highly unreliable witnesses.
Read about some of the lives affected by wrongful prosecution below.
Jerry Anderson spent a lifetime building the 1,500-cow dairy farm he owned in rural Caldwell County. At age 46, he lost it all in the space of a few months, after he was arrested for the murder of his wife, Emily Anderson. He spent 18 months in jail and was tried for his life, even though no credible evidence connected him to the crime.
During his death penalty trial in July 2007, it became apparent that Emily died days after Jerry last saw her, during a time when he was searching for her with friends and family. The trial ended with a hung jury — eleven jurors voting not guilty and the lone holdout telling the press that he had a vision in which God told him to vote guilty. Prosecutors dropped the charges and never retried Jerry.
Jerry regained his freedom, but he says he will never be able to repair all the damage from being accused of a murder he did not commit. He moved back to his native Kentucky and settled into a mostly solitary existence, unsure how people would respond to his story. “You’re branded with it,” Jerry said. “To a lot of people, you’re guilty and they couldn’t prove it. You’re never innocent.”
Emily disappeared on Dec. 29, 2005. For days, Jerry and fellow church members searched the county. He allowed officers to search his farm and interview his employees. He submitted to a polygraph test, which he passed.
Nine days after she disappeared, Emily’s truck was found at a Quality Inn in South Carolina. Officers from the Caldwell County Sheriff’s Department went to pick it up, but failed to conduct a thorough search. It was the tow truck driver, after hauling the vehicle 120 miles back to North Carolina, who discovered Emily’s body in the large toolbox in the truck bed. She had been shot twice.
The sheriff’s department’s blunder made the news, and the sheriff, who was facing a contentious reelection campaign, had to admit to reporters that he had no suspects. Soon after, Jerry felt the investigation close in on him. He was arrested on January 27, 2006. His business collapsed quickly. Creditors auctioned off his cows, tractors, and farm equipment. He lost the down payment on a new home and dairy he and Emily were planning in Tennessee. Creditors and members of Emily’s family filed lawsuits against him.
After 18 months in jail, the prosecutor offered him a deal: If he pled guilty to second-degree murder, he could be out of prison in five years. Set on proving his innocence, he refused.
At his trial, two medical examiners concluded that Emily died two to four days before her body was discovered. The state’s theory of Jerry’s guilt hinged on Emily having been dead for at least nine days, but the prosecutor produced no medical experts to support that theory.
It also became clear that evidence that might have pointed to the killer was ignored. A rape kit was taken from Emily’s body but never tested. Witnesses who reported that they saw Emily alive in South Carolina after her disappearance were never interviewed. Hairs found in her truck were not tested.
Jerry said he concluded that the criminal justice system is not about seeking truth. Rather, it’s about each side trying to prove its own theory, sometimes in spite of the evidence. “It’s about winning,” Jerry says. “It doesn’t matter who’s right and who’s wrong.”
At 46, Leslie Lincoln was making a comeback from a painful divorce. She had just bought a house across the street from the land where her three horses grazed. She had a new boyfriend. She had recently landed a good job as an administrator at an assisted living facility making $42,000 a year, the most she had ever earned.
Then, in March 2002, her mother, Arlene Lincoln, was found beaten and stabbed to death in her home in Greenville, N.C. Leslie, who lived nearby and visited her mother often, had been the last known person to see her alive. Six months later, Leslie was charged with the murder and the prosecutor said he would seek the death penalty.
It would take five years—during which she was falsely implicated by flawed DNA evidence—before Leslie was finally acquitted by a jury. During that time, she lost her home, her savings, and her stability. Since her acquittal in 2007, she has been diagnosed with post-traumatic stress disorder and has drifted in and out of homelessness. She still grieves her mother’s death and cannot accept that the person who killed her will never be found.
“It takes a hole out of your heart, and you just can’t fill it back up again,” she says. “You try to pour good memories in, but the bad ones get in.”
Leslie spent more than three years in jail awaiting trial, during which she was never allowed outside and saw the outdoors only through a frosted window. During one jail visit, her attorney shocked her with the news that police had found her DNA in a bloody handprint left at the crime scene. Her lawyer requested that the sample be retested, but the state lab refused. He went to a private lab instead, and new tests uncovered a critical mistake: the DNA samples had been switched, and the DNA identified as Leslie Lincoln’s had actually belonged to her mother. In truth, none of Leslie’s DNA was found at the crime scene. Leslie says she will never be sure whether the incorrect results were the result of an error or an intentional effort to implicate her.
After the bungled DNA testing, the prosecutor took the death penalty off the table but continued to pursue first-degree murder charges. Prosecutors began offering to dismiss charges against other jail inmates, in return for testimony against Leslie. They used the testimony of two snitches at trial. Still, the jury took less than an hour and a half to find her not guilty.
By the time she was exonerated, Leslie had little to return to. Her horses and truck had been sold, her dogs had died, and her boyfriend had left her. She couldn’t find a good job, and had to take part-time work in fast food restaurants. She moved into an apartment, but couldn’t earn enough to hold on to it. Her grief over her mother’s death, pent up for five years, began to overtake her. She saw a psychiatrist and was prescribed medications for anxiety and depression, but still wore out the patience of close family members. She ended up moving into a homeless shelter and, in 2013, she spent several months living in her truck.
She says she never received an apology from police or prosecutors.“You just feel so helpless because you’re just this one little person. You want to say, ‘Don’t do this to anybody else.’”
Mike Mead was newly engaged and about to have a child. Then, on July 16, 2008, he got a call: His fiancée, Lucy Johnson, had been shot to death and her house set on fire. Mead immediately thought of Lucy’s ex-boyfriend—the two were involved in a bitter custody fight over their infant son—but months went by and no one was arrested. Then, six months after Lucy’s death, police finally made an arrest. They charged Mike with capital murder.
“It’s like a light switch was flicked, and my entire world came crumbling down,” Mike wrote shortly after his arrest, in a letter to friends and family.
In 2011, Mike was tried for his life in Gaston County and acquitted by a jury. There was not a shred of physical evidence linking Mike to the murder.
Like many modern couples, Mike and Lucy met on an online dating site. They knew each other only three months, but Mike says they felt an immediate connection. By the time Lucy died, she was pregnant with Mike’s child. He says they were both excited about the baby, and less than a week before her death, he asked her to marry him.
Mike submitted to interrogation without an attorney, searches of his home, gunshot residue tests, and a polygraph test—believing that police would recognize his innocence. Instead, in January 2009, they issued a warrant for his arrest. The prosecutor announced he would seek the death penalty.
Mike owned a successful engineering consulting business, which quickly collapsed. He sold his possessions and declared bankruptcy. On top of his legal bills, he had to pay monthly for his electronic monitoring bracelet. By the time of his trial, the cost topped $15,000, and he was never reimbursed. The bank foreclosed on his house a few months after he was acquitted.
Meanwhile, Mike’s attorney found that police had virtually no evidence to support their case. The attorney focused on the father of Lucy’s 6-month-old son, James Spelock, who had become enraged when Lucy refused to name the child after him. Since the child’s birth, the pair had been fighting over custody and child support. Lucy told friends she was afraid of James, and she wrote in her diary that if anything were to happen to her, James would be the culprit.
At trial, Mike’s defense team presented a strong case that James was the person with motive and opportunity. They also tore apart the state’s case against Mike, and caught investigators in a lie. At trial, police claimed that, after Lucy was found shot to death, they never tested Mike for gunshot residue. On cross-examination, police finally admitted that a gunshot residue test had been performed; they then claimed the test results had been lost.
At the end of the trial, with no physical evidence and their case unraveling, the state put a jailhouse snitch on the stand to testify that Mike had confessed to him during the few weeks he spent in jail. Mike says he had never met the snitch. The man’s testimony was so unbelievable that, by the time the snitch left the stand, the judge and jury were laughing.
After the verdict, Mike walked across the street to a hotel bar, where he found several members of the jury. He says they bought him drinks and cheered his freedom.
Nathan Bowie at 4. He has lived on death row since 1993, for a crime committed at 19.
North Carolina death row is the fifth largest in the nation, with more than 140 men and women. About three-quarters of them were sentenced in the 1990s, before a slate of reforms transformed the North Carolina death penalty. They were tried and sentenced to death before basic protections were written into the law, and when public attitudes about the death penalty were far more favorable. Under modern laws and standards, almost none of today’s North Carolina death row prisoners would have gotten the death penalty.
People tried before 2001, when North Carolina’s death penalty reforms began to take effect, had no agency to ensure them a trained capital attorney. They weren’t guaranteed the right to see all the evidence in the prosecutor’s case file. Procedures had not yet been created for recording confessions and preventing mistaken identifications in police lineups. Also during those years, a court mandate required prosecutors to seek death for virtually every first-degree murder. It was the only such requirement in the nation, and it led North Carolina to have one of the nation’s highest death sentencing rates during the 1990s. Dozens of people were sent to North Carolina death row each year.
Under today’s laws, the system remains imperfect and unjust. But North Carolina death penalty reforms have at least reduced the capital punishment’s reach. N.C. juries now sentence an average of less than one person a year to death. There are just a handful of death penalty trials each year.
Yet, more than 100 people sentenced under outdated laws remain on North Carolina death row, year after year, decade after decade. They are trapped a system that has moved on, but refuses to reckon with its past. The people on North Carolina’s death row received Unequal Justice.
Watch the story of Nathan Bowie, who has spent more than 25 years on death row for a crime committed as a teenager:
Read the Center for Death Penalty Litigation’s 2018 report, Unequal Justice, about North Carolina death row:
Parker, the former prosecutor, did not attend the execution of Ronald Frye in 2001. “I gave my ticket to the arresting officer,” he said. Parker said he had developed a certain level of affection for Frye by then. “I thought he has what’s coming to him, but I wasn’t gonna go watch him die.”
I asked Parker if he would feel satisfied if Nathan Bowie were to be executed today, 25 years after he was convicted. Would he consider it justice? Parker paused. “I really haven’t given it much thought,” he said, adding, “I did my job.” He doesn’t miss it. He’s happily retired, playing golf a few times a week, he told me. “I don’t think about it much anymore. I leave it alone.”
We like to think that the death penalty is capable of surgically removing problem people from our society, neatly ending the pain of murder. But the reality is that, with every execution, a new cycle of pain and grieving begins. It ripples outward to all kinds of people who are never discussed when the death penalty is debated in courts and legislatures. To the families of those executed, their parents, their siblings, and their blameless children. To the prison wardens and guards, who spend years caring for a person, only to be forced to participate in killing them. To the defense attorneys, who wonder for years afterward what they might have done differently to save their clients’ lives, blaming themselves for every actual or perceived mistake. To the jurors who know they are responsible for another human being’s death, and wonder how another person or higher power might one day judge their decision. Whether they recognize it or not, they too become victims of the cruelty of capital punishment.
Many of these pieces were originally published on our blog. Follow it for more stories and news about the N.C. death penalty.
The visitation room at Raleigh Central Prison is small, dark and oppressive. It is divided in half by a thick glass sheet encased in a rusted steel frame. The tiny space is stiflingly hot. If I stretch my arms, I can touch both concrete walls at the same time. The glare from the overhead light makes it difficult to see through the glass, while the constant screeching and clanging of metal doors outside the room makes it hard to hear anything at all. A small grate at the bottom of the glass sheet requires you to crane your neck to speak to the person on the other side.
The purpose of all the security is to prevent any physical contact between an incarcerated person and their visitor. Despite numerous reports that have exposed the prisons in North Carolina as being grossly underfunded, it was clear that the state spared no expense in securing the visitation rooms for people on death row.
In June 2018, I came to Durham, North Carolina as a summer intern for the Center for Death Penalty Litigation. The Center has been a leading force in dramatically reducing the number of executions in the state. I had worked with people in prison before, but never with men and women who were condemned to death. For most people, the death penalty is merely an abstract intellectual fascination, something to be debated in introductory philosophy classes or amongst friends and family whenever a particularly gruesome story made it onto the news. While I have never truly believed that there are people amongst us who are so evil, and so irredeemable, that they must be scrubbed from the earth as expeditiously as possible, I took this job, in part, because I wanted to see for myself who these people were. I was interested in getting to know the men and women on death row as well as the lawyers who worked every day to protect them from execution.
On this particular morning, I came to meet two people on death row that the Center had been working with for years, named Rico and Jason. Both men were incarcerated in their 20’s and had already served over a decade on death row. I took a seat on the metal stool in my side of the room, took out my new legal pad and began writing some notes.
Rico
After a few minutes of waiting, Rico entered the visitation room in a dark red jumpsuit. He is a large man, at least 6 feet tall and 220 lbs. He greets me with a warm smile and apologizes for making me wait. I feel at ease immediately. After discussing his case for a few minutes, Rico starts to tell me about the Raleigh Central Death Row Annual Basketball Tournament.
The tournament was started 15 years ago by a man who has since been executed. The men compete each year as a way to break up the monotony of life on death row and to honour their deceased compatriot. North Carolina’s death row is one of the few, if not the only, death rows in the country that allows people to play in an organized basketball tournament. Rico describes the tournament as a small mercy. Even when he is unwell or not particularly interested in playing, he would never even consider sitting out. He feels it would be wrong not to play since death row people all across the country would relish the opportunity to play an organized sport.
The tournament consists of a regular season, followed by knock-out elimination games until only one team remains. The prize is a bottle of body wash — a luxury worth competing for.
Rico tells me about his most recent game. His team starts out playing very well. They are tenacious on defense and are moving the ball well on offence. Spectators, the other people on death row, begin predicting an easy victory for Rico’s team. Then the opposing team makes a game-shifting substitution. Eddie-B steps onto the court. Eddie-B is 65 years-old, he is the oldest man in the tournament, and has competed every single year that the tournament has been running.
For some men, the tournament is the most important event of the year. This is perhaps no truer than for Eddie-B, who talks about the tournament all year long- visualizing and practicing his mid-range jump-shot. The other men know how much this game means to Eddie-B. He can’t jump or run like the other guys, his vision is fading and he has nagging knee and back pain. He moves gingerly up and down the court. But what Eddie-B does have is a picture perfect jump-shot.
The moment he steps on the court, the crowd of spectators explodes into chants of EDDIE-B, EDDIE-B, EDDIE-B. The tone of the game has changed drastically. The score no longer matters, what is important is that Eddie-B gets the ball. After a few trips up the court, the point guard runs a play for Eddie-B. Using a screen and roll, Eddie-B gets free and receives a perfectly-timed chest pass. He squares up to shoot. His defender feigns a legitimate effort at blocking the shot while purposefully giving Eddie-B just enough room to get off an uncontested jump-shot. The ball leaves Eddie-B’s hands and lands perfectly into the bottom of the net. The crowd explodes. The crowd bangs on the bleachers with their hands, they yell, and jump up and down in excitement as Eddie-B jogs back on defence, a cool smile on his face.
They continue to let him shoot and score, masking their excitement with devastation when each shot goes in. Eddie-B continues to hit shot after shot and Rico and his team go on to lose the game and are eliminated from the tournament.
The death row unit of the prison will spend the next few weeks listening to Eddie-B breakdown every shot he hit. He will tell them every trivial detail of his thought-process during the game, about how the defense was running towards him but he did not hesitate, kept his composure, and scored. They won’t interrupt him or brush him off. They let him tell his story over and over again. The basketball game is spiritual for him. Some guys have religion, others read and write poetry, but for Eddie-B, this is his salvation. No one would dare take this away from him. They will let him live in his moment of glory even as he talks during their favourite television program, or as they read their books. They let Eddie-B leave death row and reimagine himself as an athlete and a superstar.
We get a knock on the door followed by a guard yelling that time is up. We say our goodbyes. Rico puts his hand up against the glass and I press my own hand up against his on the opposite side of the glass. He is escorted away by the guards.
Alone in the room, I realize that I was so enraptured by Rico’s story that I forgot that I was in a hot, rusty, death row visitation room. I gather my notes and pack my bag. I have an hour to wait before my next meeting with my next client, Jason.
Jason
I spend the hour in my car before heading back to the visitation room to meet with Jason. He is already waiting for me on the other side of the glass. Jason has a long beard and big brown eyes. He is extremely soft spoken, and disarmingly endearing. He speaks as if he is choosing every word carefully. I can tell he is excited to meet me and really wants to make a positive first impression. I share this sentiment. We exchange pleasantries and I give him a few updates about his case. Then Jason steers the conversation towards the man in the cell next to his.
His neighbour’s name is Richard, he is 40 years-old and has been on death row for 20 years. Jason tells me that Richard is very mentally ill. Richard often doesn’t know where he is or what he should be doing. In the past few years he has gained a tremendous amount of weight and has swollen to 300 pounds — he is almost unrecognizable to when he first entered the prison. His mental health has been deteriorating steadfastly. It is not uncommon for Richard to defecate himself or urinate all over the floor of his cell. Often, he doesn’t leave his cell for days or get out of bed for more than a few hours at a time. He has no friends and no contacts outside of prison. Jason does what he can to make Richard’s life easier; he cleans his cell, encourages him to exercise, engages him in conversation and speaks to the staff about Richard’s welfare. Jason insists that Richard should not be on death row, but in some kind of facility where he can get his needs met.
He asks me if I know anyone who would be willing to correspond with Richard, preferably someone who knows how to communicate effectively with someone with a significant illness. Since Richard cannot read or write, Jason offers to read the letter to Richard and help him draft a response. I tell him that I will see if I can find someone. Jason insists that it would not be a very serious commitment, but just enough so that Richard could have some sort of healthy relationship and allow him to feel that he has a friend. Again, I assure Jason that I will try to find someone willing to correspond with Richard. Jason seems relieved, and thanks me several times.
While a person’s sentence begins with the loss of virtually all of their liberties, rights, and independence, it then becomes something much more nefarious. Men and women and death row are in a constant existential struggle not to be forgotten. While everyone else’s life moves forward, creating memories and experiencing life, they remain incarcerated. Stuck in a cell, day after day after day. They have to fight against feeling worthless, and try to preserve their belief that their lives have value. Jason is worried that Richard will feel forgotten and lose his desire to live. By cleaning up after Richard and looking out for him, Jason tries to show Richard that his life has meaning, and that his wellbeing matters to at least one person.
Men and women in state and federal prisons, especially those on death row, have an endless list of problems. Many of these issues involve being mistreated by guards, being denied proper nutrition, or the inability to get medical care. Whenever I have visited a client in prison, without fail, the entire hour is spent trying to resolve some of these problems. It is not uncommon for me or one of my colleagues to spend the entire legal visit working out the best way for the client to resolve seemingly minute problems like getting a pair of toenail clippers so that they can trim their toenails which have grown so long that they have become intolerably painful. This was the first meeting with someone where they focused nearly the whole visit trying to get me to help someone else, let alone another man on death row.
But these visits are more than just an opportunity for people to get legal help; they are also the only opportunity for them to see a fresh face, and hear new ideas and perspectives. Speaking with visitors offers the people a glimpse of what the world is like on the outside. Visitation hours are invaluable to men and women on death row.
This was likely to be the only contact Jason would have with someone outside of prison for weeks. With this hour, Jason tried his best to persuade me to find a pen-pal for Richard so that Richard might feel less lonely.
Almost as soon as we finish speaking about Richard, the correctional officers come and whisk him away. Jason puts his palm against the glass, and I place my palm opposite his on the other side. Once again I sit alone in the visitation room.
Death Row
Society at large has spent the last two decades telling Jason and Rico that they are not worthy of life, let alone comfort, kindness, or basic decency. They have been denied adequate food, any physical contact with their families or loved ones, and proper medical care. Yet they have refused to let the consistent, unending apathy and disregard for their wellbeing stop them from trying to be kind to others. They will not condemn their peers despite being condemned themselves. Whatever it is within us that makes us want to protect and help each other has not been extinguished in Jason and Rico.
These stories do not form an argument that because people do nice things, that they should be absolved of their wrongdoings. They are instead a glimpse into the complexity of humanity, and they inspire the idea that no one can be reduced to one identity, one thing, one moment, or one act. As these stories show, sentencing people to death ensures that in our effort to wipe out evil from the world, we invariably wipe out beauty as well. These stories are profound because they remind us that kindness and humanity exist even in the darkest places in our society, including a death row unit in a state prison. They show us that even the “worst amongst us” can still represent the best amongst us.
I doubt that Jason and Rico even remember telling me these stories and I am certain that they would never imagine that they would be interesting enough to write down. But these stories are impactful, not because they are heroic or because they are unimaginable acts of kindness, but because they disrupt the narratives that we hold about people on death row — the same narratives that cause us to spend millions of dollars to build fantastic prisons and to secure visitation rooms with steel beams and concrete, and to justify spending millions more in legal fees to see that these people are killed at the hands of the state.
The death penalty has never been exclusively used against people convicted of the worst offenses. In an effort to achieve justice through state executions we have killed innocent people, mentally ill people and abused and broken people. There is no reason to believe that we will ever be able to build a system where only those who “deserve” to die are executed. As long as humans judge guilt and innocence, irreversible errors will be made. But even if we could perfect the death penalty, should that even be our goal?
I believe that instead of trying to create a just society, we should instead be working to create a merciful society. Mercy stands on a higher moral grounding than justice. While the death penalty rejects a belief in redemption and restoration, mercy preserves it. Mercy creates room for people to perform small acts of kindness like giving another incarcerated person the chance to feel like a basketball star or assuring their neighbouring cellmate that their life has value. Where justice under the death penalty promises more death, pain and suffering- mercy offers a chance that something good can be salvaged from the wreckage. It is through mercy that we can save others, and in doing so, hopefully, save ourselves.
Leaving
After my meetings with Jason and Rico I leave the visitation room for the day and walk out of the prison. The fresh air and the warm sun feel intense. As I drive back to the Center, I think of Aleksandr Solzhenitsyn’s quote:
“If only it were all so simple! If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart?”
Humza Hussain is a student at Queen’s University Faculty of Law in Kingston, Ontario. Humza interned at the Center for Death Penalty Litigation in Durham, North Carolina, the summer of 2018. An earlier version of this essay was posted on January 27, 2019 on Medium and titled: The Worst Among Us.
Tessa Hale is a former mitigation specialist. She is now the Associate Director at the Carolina Justice Policy Center.
Mitigation work, often all at once, in the same moment or day, both haunted and healed me.
I am an attorney by training, but had the privilege of working as a mitigation specialist before moving on to work at a criminal justice reform nonprofit. After working at the ACLU Capital Punishment Project, I began working independently under the mentorship of the mitigation specialist there, who once confided in me that she was drawn to the work by her belief that everyone is broken. I never forgot that: everyone is broken. My mentor said she was fascinated by finding and compassionately reaching towards the broken points of her clients, ultimately finding the light in between them.
I believe that for many of us who do death penalty work, it is our own brokenness (or rather, awareness of that brokenness) that draws us to explore that of others.
As advocates, we are haunted by the horrific traumas our clients have experienced and if we are lucky, we are healed by witnessing the joy and the beauty that can emerge amid suffering. I know this was true for me.
I was in the first few days of my second semester in law school when the Haitian earthquake hit. The disaster did not strike some distant, abstract place for me: as a first-generation Haitian-American, it struck home. For days, I didn’t know if the relatives with whom I had spent idyllic childhood summers within the mountains, on the island beaches, or learning about the past mischief of older relatives were dead or alive. I recall being in my constitutional law class the day after the quake, stepping outside to take panicked phone calls while my classmates discussed decades-old case law at their desks. A beloved relative had been crushed under the rubble of his house. He had just entered remission from cancer and was now dead. I later learned that while I sat in class, many of my relatives had been freeing themselves from fallen buildings and earth or frantically searching the island, enveloped by the smell of dead bodies, to find loved ones.
And yet, I was able to heal from that experience for many reasons. I had a partner in a stable, loving relationship who supported me. I had the resources to go to therapy. I had a pastor who sat with me every week to sort through the questions that threatened my spirituality. I was privileged enough that the trauma I had endured did not threaten my professional life; I had mentors who had counseled other students through managing the rigors of the legal profession while also managing personal crises. I had a strong safety net to catch me when I fell. For my clients, they had no safety net; my clients were hanging on by a single, frayed thread.
The idiom that people need to “pull themselves up by their bootstraps” after a traumatic experience is significantly more difficult to apply to my clients. Sometimes it is impossible to apply to them. Metaphorically, they have never owned a boot; no one they know has a boot or owns shoelaces. When they fall, they have no means to pick themselves up, and neither does anyone they know. Even if they knew who to ask for help, they are often so damaged by poverty or ashamed of the skeletons in their closets that they think the better option is to help themselves in maladaptive ways. Putting on a different kind of boot, pulling on a broken strap. And, assuming they are guilty (they are not always guilty), they ruin other peoples’ lives in the ways that they have learned from the people around them.
Most often, our clients have never had the social or cultural capital to survive their own trauma or to successfully navigate the world. They had no safety net. This was a big problem for my first mitigation client. He loved his mother, the person who had failed him the most, so much that he was terrified to admit to himself that she had thwarted nearly all of his opportunities to succeed. He blamed himself for his trauma.
On the day of this client’s plea hearing, the victim’s mother stood up in court to read her victim impact statement. She looked at my client and told him that if her murdered daughter had known what he was going through, she would have fed and clothed him. She said that she hoped he would ask God to forgive him so he could go to heaven and meet her daughter. The reason this was important to her was so her daughter could tell him herself that she forgave him, because that is the type of person she was.
My client bowed his head and cried. In that moment, I felt relief for him. I knew that these were tears he had been afraid to cry for years because he thought he needed to be someone or something else to survive his own life. When the plea hearing was over, I felt numb. My mentor took me to a restaurant corner booth so I could cry and process the experience.
I watched the media coverage on the case when I got home. One local paper said that my client showed no remorse. He had clearly bowed his head, taken off his glasses, and wiped tears away. No newspaper mentioned anything about the victim’s mother’s miraculous decision to forgive my client.
As a mitigation specialist, I saw the very depths of both the fragility and the strength of the human spirit, and that was a privilege. But of course, there is no erasing the pain I came across during deep dives into the trauma of others. There is no erasing the pain of the families and loved ones I sat with who reluctantly told me their deepest darkest secrets out of fear that their loved one would be executed if they did not.
Two years ago, around the birth of my first child, I began to look for a job that wouldn’t leave me heartbroken at the end of each day. Indigent defense in North Carolina is grossly underfunded, which is a common problem across the country. In some cases, I was asked to stop seeing a client completely or as frequently for budgetary reasons, regardless of their needs at the time or what was happening in the case. I made a few visits for free even though I could not afford it. I worried that prioritizing my own life would cost someone else his. I realized that once my son was born this would not be sustainable.
In short, I couldn’t take it anymore.
And yet, even still, I’m able to look back to my mitigation days with love. I hold on tight to the moments where I saw beauty and strength emerge from the rubble. I looked at my clients every day and thought “There but for the grace of God go I.” And ultimately, little by little, I tried to hold their hands, understand their stories, and go with them in whatever ways I could.
B. Tessa Hale is an attorney and graduate of the University of North Carolina School of Law in Chapel Hill, North Carolina. She is currently a staff attorney at Legal Aid of North Carolina’s Advocates for Children’s Services and formerly the Associate Director at the Carolina Justice Policy Center in Durham.
Gretchen Engel holding a painting by her executed client, Quentin Jones.
By Gretchen M. Engel
I watched him die 15 years ago, and I still talk to him sometimes. I talked to him a lot in the weeks after he was killed and thought maybe I was going a little crazy. And then I thought, it’s probably normal to go a little crazy when you see somebody killed 10 feet in front of you, somebody you knew really well and cared about and tried so hard to save.
I’m talking about my client, Quentin Jones, who was executed at 2 a.m. on August 22, 2003. Quentin was 18, homeless, and addicted to drugs in 1987, when he robbed a convenience store with an Uzi 9mm pistol. The store camera caught most of the crime on tape. You can’t see Quentin shooting Edward Peebles, who had stopped in for coffee after playing music with his friends, but you can hear it. Like Quentin, Peebles had a young daughter. During Quentin’s capital sentencing hearing, the two toddlers played together in the back of the courtroom.
At the execution, Peebles’ daughter sat behind me, softly crying. Her grandfather, Peebles’ father, sat next to me in a three-piece blue-striped suit. We were so tightly packed in our row of plastic chairs that his left leg was firmly pressed against my right. On my other side were Quentin’s uncle and younger brother. While Quentin lay on the gurney waiting to be poisoned, his brother signed to him. As children, they’d learned sign language because they had a cousin who couldn’t hear. Quentin mouthed his love for us and an apology to Peebles’ family.
On left: A 1999 photo of Quentin, which was part of his clemency petition. On right: A portrait of Quentin by former death row prisoner Jamie Cheek, drawn in response to Quentin’s execution.
This wasn’t new. Quentin confessed and pled guilty. He told the police and the jury he was sorry. In my meetings with him, he frequently and consistently expressed his regret and sorrow for the deep pain he’d caused the Peebles family. He never tried to evade responsibility for what he did.
Quentin also had extraordinary insight about his life and compassion for those who failed him: a mother who struggled with drug addiction and a father who faced his own demons, cycling from homelessness to more than a dozen involuntary commitments at Dorothea Dix hospital. Quentin was the oldest son and, to help his family, he turned to the crack-infested streets of Baltimore, joined a gang, and entered the drug trade.
Despite a diagnosis of PTSD rooted in his experience of childhood trauma, Quentin grew up during 16 years on death row. He never finished high school, but in prison he read and studied. Quentin had a quick mind and he was thoughtful. He wrote poetry and embraced spirituality, becoming a devout Muslim. He maintained relationships with his family, despite distance and poverty that made it difficult for them to visit. He was a supportive and bright light in the life of his pen pal, an English woman raising a child with autism. A psychologist was so touched by his work with Quentin that he came to the prison the day of the execution to say goodbye, and ended up staying through to the bitter end. Every lawyer who ever represented Quentin urged the governor to commute the death sentence.
Over the nine years I represented Quentin, I came to know his family, and they were at the prison all day and into the night of the execution. On that terrible day, the worst moment was telling Quentin’s family that the governor had denied clemency, there was nothing left, their son and brother would be killed in 90 minutes. His younger sister let out a howl that I can still hear now. She sounded like an animal dying in a trap.
A social worker and I then went to give Quentin the news. When we told him, and started sobbing, he gathered us into his arms and comforted us. Quentin was so much more than the worst thing he’d done. I often wondered, as I have with other clients, what he might have accomplished if someone had taken the time to see his potential as a child and to rescue him from the violence that surrounded him.
In the face of horrible crimes, we often ask, how could someone do this? After defending men and women facing the death penalty for close to three decades, I can tell you how: Allow children to grow up in poverty, incarcerate their fathers, deprive their mothers of mental health care and drug treatment, confine them in dangerous and violent neighborhoods, send them to underfunded and overcrowded schools, and permit school suspensions and juvenile arrests to limit their opportunities.
In the weeks after the execution, I thought of little else. I painstakingly retraced and second-guessed every decision I’d made in Quentin’s case. I talked to him while walking my dog.
I wished so much then and still wish now that I’d been able to convey Quentin’s humanity to the judges who ruled in his case and the governor who decided against commutation. Perhaps they, and the jurors who sentenced Quentin to death, thought they were rooting out evil, teaching a lesson, meting out justice. What I saw was another killing that perpetuated a cycle of violence and trauma that continues to play out in many lives, including mine.
Gretchen M. Engel is the executive director of the Center for Death Penalty Litigation and has represented death row prisoners for more than 25 years.
The Carolina Justice Policy Center’s Poetic Justice was not only educational, it was also a profoundly moving experience for both the audience and speakers. This powerful event paired spoken word artists with criminal justice advocates to tell true stories from the criminal justice system. Topics explored by poets and advocates ranged from the death penalty to juvenile justice to bail reform to racial injustice.
One of CJPC’s many powerful speakers was Elizabeth Hambourger, an attorney at the Center for Death Penalty Litigation. She was paired with spoken word artist Blaize the Poet, who performed beautifully about Hambourger’s work. Both are pictured above, during a warm embrace following Blaize the Poet’s performance.
Speaking about the death penalty, Hambourger reflected, “The more I know about the death penalty, the more problems I see with it. But what seems most pressing to me now is that the death penalty increases pain. It’s like a machine that takes this terribly painful human event, and it takes that pain and replicates it and sends it spewing out in all directions. Even before the murder there is pain. Murders are born of pain. I have now gotten to know a lot of people who have committed murder. And, in a lot of ways, they’re a lot like the people you and I meet out here every day. But almost uniformly, every single person on death row experienced childhood trauma. And it’s one thing to hear the word ‘trauma’ or ‘child abuse’ or even ‘sexual abuse’ and it’s another to know the things I now know about what happens to some children in their own homes while they’re growing up.”
The need for healing from such trauma is not only limited to clients on death row. It also extends to those who get second-hand exposure to this trauma through working with families and others whose lives are transformed through the death penalty. Art has long been a recognized method of healing, and spoken word poetry clearly has this capacity to heal.
Watch the video below to hear Elizabeth and Blaize’s extraordinary words.
Kristin Collins is the associate director of public information at the Center for Death Penalty Litigation
One elderly woman sat with us in her living room, wearing a pink nightgown. “I should have followed my conscience,” she said, her hands shaking. “I hope he can forgive me.” It’s unclear if she’s seeking forgiveness from the innocent man she sent to death row, or God himself.
She believed the Bible’s instruction: “Thou shalt not kill.” Yet, as a juror decades earlier, she voted for a death sentence for Henry McCollum, an intellectually disabled teenager who was accused of raping and murdering an 11-year-old girl in Robeson County.
The juror put the trial out of her mind until, in 2014, McCollum was exonerated. New DNA testing proved another man guilty, and McCollum blameless. After 30 years on death row, McCollum was free.
At the time of McCollum’s exoneration, I was relatively new to my job at the Center for Death Penalty Litigation, whose lawyers represented McCollum. His story showed me just how high the stakes are in this world. North Carolina came close to executing an innocent man.
Even now, I am still learning from his case. In the spring and summer of 2018, a co-worker and I criss-crossed Robeson and Cumberland counties, finding jurors who unwittingly sentenced an innocent man to death. The jurors served at McCollum’s original trial in 1983, and his retrial in 1991, held in Fayetteville. Both juries voted unanimously for death.
We hoped they could shed light on how our system got it so terribly wrong. But as I knocked on strangers’ doors, I worried they would be defensive or angry. Instead, they welcomed us into their homes.
Some seemed relieved to finally talk through the trauma of the trial, though none would let us use their names. Many were ashamed of their role, afraid of what their neighbors would think. Some feared God’s wrath, and wondered if they would go to hell for McCollum’s wrongful conviction. Some shed tears at the mention of his name and said the experience was too painful to revisit. They remembered McCollum at the defense table, silent and unresponsive, like a confused and broken child.
All were denied the information they needed to reach a fair verdict. They were shown gruesome crime photos and McCollum’s confession, written by the police. Even McCollum’s defense attorneys admitted his guilt, believing the jury would spare him if he accepted responsibility.
No one told the jury that another, almost identical crime was committed just a month after the girl’s murder — and that the culprit was not McCollum, but a man who lived by the field where her body was found. The jury didn’t know fingerprints were found at the scene, and that none of them were McCollum’s. They didn’t know the case against McCollum started with a rumor from a teenage girl, who later admitted she made it up.
One juror said his biggest regret is that he trusted prosecutors to tell the truth. If McCollum was on trial, he believed, he’d probably done it.
Like everyone we talked to, his most vivid memories were the crime scene photos. At the time, he had a daughter the same age as the victim. When the verdict was announced in the courtroom, he looked at her father. The juror had done what the prosecutor said was right, and he hoped it would ease another father’s pain.
“I’ve been trying to figure out, where did we go wrong?” he said. “I feel like we got duped by the system.”
I was in the courtroom for McCollum’s exoneration four years ago. I will never forget the sight of him standing in a cage – the court probably calls it a holding cell – during a break. He stared silently at the floor, powerless against a system that had chained and caged him for his entire adult life.
Now, there is another image that stays with me. A woman sitting in the dim light of her living room, hardly strong enough to rise from her chair, wondering what those 30 years were like for Henry McCollum. Wondering whether God has heard her pleas for forgiveness.
Kristin Collins has been a writer and researcher at CDPL since 2012. This piece was also published in the News & Observer.
In June 1989, my client Leo Edwards was the last man in Mississippi to be executed in a gas chamber. I watched as Leo’s head flapped uncontrollably against an iron post for several minutes before he was pronounced dead.
As I watched him struggle to die, I believed that Leo was guilty of the crimes for which he was charged — murdering a man during a robbery spree following his escape from the Louisiana State Penitentiary. I did not then, and do not now, excuse his crimes.
However, I also believed that, like so many of the clients I have represented during three decades working on behalf of condemned men and women, Leo was sentenced to die by a flawed system in which the rules were openly flaunted by the prosecution. Had the system been fair, I do not think he would have been sentenced to die.
Leo Edwards was prosecuted by the long-serving elected district attorney, Ed Peters, who had a reputation for striking African-American prospective jurors from jury service. Indeed, Peters admitted in a newspaper article in July 1983 that, when he was presented with blacks on a jury panel his philosophy was to “get rid of as many” as he could. Peters said blacks were less law-enforcement oriented than whites. Peters later testified that he exercised that philosophy at Leo Edwards’ trial, resulting in the all-white jury that sentenced Leo, a poor black man, to death.
This clear racial bias was never addressed because Leo’s case was too far along by 1987, when the U.S. Supreme Court set new standards for reviewing claims of race discrimination in jury selection. But for a bit of poor timing, I am confident that Leo would have been awarded a new trial. The fact that Leo died while other condemned men were pardoned was completely arbitrary.
They have killed and so they deserve to die, the standard reasoning goes.
However, my career has taught me that executions say less about the criminals than they do about us, the society that carries them out. The system reflects our biases and blind spots. Just like us, it is susceptible to error and prejudice and, sometimes, an indiscriminate desire for revenge. Like our country, it favors the privileged and takes the heaviest toll on the poor and mentally ill.
As a young lawyer starting out in Mississippi, I had little competition for capital defense work. At that time, attorneys appointed to represent poor capital defendants were paid a maximum of $1,000 per case, no matter how much time they spent. Occasionally, we recruited a large law firm from New York or Washington D.C. to represent a death row inmate for free. Most often, death row inmates were poorly represented by attorneys with little time or interest in their cases.
Trying to stem the tide of executions was an unending battle, in which we were vastly outmatched. Some of my clients were picked for execution because of my mistakes, or the mistakes of other attorneys. My client Edward Earl Johnson, who was just 17 years old at the time of his crime, was executed despite my doubts about his guilt. There seemed to be grave injustices in every case, but no rhyme or reason why some lived and some died.
When I arrived in North Carolina in 1989, then one of the leading death sentencing states in the nation, things were much the same.
During the past 25 years, I have worked alongside a team of dedicated people to win many important victories and reforms. Five death-sentenced men have been exonerated in North Carolina. Many other clients have been saved from execution because of serious injustices in their cases. New laws ensure that defendants now receive an adequate defense and have rights to examine the evidence against them. One or two people a year are now sentenced to die in North Carolina, down from an average of 25 a year in the 1990s. No one has been executed since 2006.
Yet, none of those victories has erased the problems at the root of our capital punishment system. Racial bias still taints trials. Defendants are still chosen for death arbitrarily. Those sentenced to die are still overwhelmingly poor and mentally ill. Judges and lawyers, including myself, still make mistakes. Innocent people are still imprisoned.
No matter how many reforms we enact, these basic facts will never change. Our capital punishment system is created and carried out by human beings, who are by their nature imperfect and prone to error.
Over the years, I have gotten to know many of my clients and cared deeply about what happened to them and their families. Some were innocent and others were clearly guilty. Some were remorseful, while others were angry or uncommunicative. Many were mentally ill or disabled. Four of them were executed.
What I have learned from trying to save their lives is that they are no more or less human than myself — and that none of us is perfect enough to decide who lives and dies.
Ken Rose, a former senior staff attorney at the Center for Death Penalty Litigation, has spent 30 years defending condemned men and women. Here, he tells the story of why he has devoted his career to advocating for society’s most despised members. This piece was also published in N.C. Policy Watch’s Progressive Voices.
“I couldn’t help Henry in a system where the deck was stacked against him”
Ken Rose, a former attorney at the Center for Death Penalty Litigation, argues for Henry McCollum’s exoneration. This essay was originally posted on washingtonpost.com on September 2, 2014. Photo by Jenny Warburg
Watching an innocent client walk out of prison is every defense lawyer’s dream, especially for those of us who represent people condemned to die. This week, I got to watch my client, Henry McCollum, North Carolina’s longest serving death row inmate, regain his freedom after 30 years behind bars. New DNA evidence turned up by the N.C. Innocence Inquiry Commission proved that another man, a serial rapist and murderer, was the perpetrator in the crime for which Henry and his brother, Leon Brown, were sentenced to death in Robeson County in 1984.
Finally proving Henry and Leon’s innocence was a great victory, but what I cannot forget is that this case is, above all, a tragedy. Two innocent men — both intellectually disabled — spent three decades of their lives being, essentially, tortured by the state of North Carolina.
For Henry, it began when officers held him in an interrogation room for five hours and promised him he could go home if he signed a confession. He was naive enough to believe them. Then the 19-year-old spent three decades watching other inmates be hauled off to the execution chamber. He became so distraught during executions that he had to be put in isolation so he wouldn’t hurt himself.
During those years in prison, he was a man convicted of raping and murdering an 11-year-old living among a population that is notoriously unfriendly to child sex offenders. He wasn’t able to hug his family, or even hold their hands. He saw them only on the infrequent occasions when they were able to travel from New Jersey to Raleigh, an eight-hour trip. His mother and the grandmother who helped raise him died while he was in prison.
Both Henry and Leon got new trials in 1991. Leon’s murder charge was dropped, but he was convicted of rape and sentenced to life in prison. Leon was also exonerated and freed from prison this week.
Even 30 years of appeals aren’t always enough to dig up the truth.
I have been Henry’s attorney for 20 of those years, and he and his family pleaded with me to prove his innocence. But I couldn’t help Henry in a system where the deck was stacked against him. He had signed a detailed confession before a change in laws to require confessions to be videotaped. I had no way to prove that the details in the confession police wrote for Henry — down to the brand of cigarettes smoked by the perpetrator — were all provided by law enforcement.
I was told that the police file on Henry’s case had been lost, so I didn’t know how much evidence police had to ignore to pin this crime on two disabled boys with no history of violence. Until the Innocence Inquiry Commission unearthed that missing file, I didn’t know that Roscoe Artis, the man whom DNA showed to be the true perpetrator, was a convicted rapist who lived next door to the crime scene, or that, at the time of Henry and Leon’s arrest, Artis was wanted for another, almost identical rape and murder.
I also didn’t know until I saw the file that, three days before Henry’s trial began, law enforcement asked the State Bureau of Investigation to test a fingerprint found at the crime scene for a match with Artis. This was an important request, considering that no physical evidence linked Henry or Leon to the crime. Unbelievably, the test was never completed, and the district attorney tried Henry and Leon for their lives. Artis’s name was never mentioned at the trial.
It took the Innocence Inquiry Commission, working for four years and spending hundreds of thousands of dollars, to finally prove my client’s innocence. Sadly, only a handful of defendants ever get that kind of attention and resources. In many other cases, biological evidence is lost, contaminated or never existed to begin with.
Now, with Henry finally free, some people expect me to feel satisfied, or even happy. The truth is: I am angry.
I am angry that we live in a world where two disabled boys can have their lives stolen from them, where cops can lie and intimidate with impunity, where innocent people can be condemned to die and where injustice is so difficult to bring to light.
As I lie awake at night, mulling over the maddening details of this case, I wonder: How many more Henry McCollums are still imprisoned, waiting for help that will never come?
Helen is an artist who is friends with Scott, a man on North Carolina’s death row
I wish people could see that even though most of the people on death row have done something horrendous–or beyond horrendous–that that is only one part of who they are. For example, Scott is a human being who struggles with limitations and sorrow, regret, fear, and at the same time, he’s a person who has light, and beauty, and expressiveness inside of him and who yearns to show that to others and to be seen and heard.
There is never a case where death is the appropriate punishment.
This year, I began my twentieth year as a capital defense attorney. I have devoted my career to saving the lives of some of North Carolina’s most despised people. People like Demario Atwater, who was sentenced to life in prison for killing UNC student body president Eve Carson, and Malcolm Wright, a skinhead convicted of the racially-motivated killing of an African-American couple.
A few months ago, I had the good fortune to be in the courtroom on the day that Henry McCollum and Leon Brown were declared innocent 30 years after being sentenced to death. I was reminded once again that the death penalty in practice is much more horrific than it is in theory. It is tainted by racial bias and sometimes marred by prosecutorial and police corruption. It imperils people with mental disabilities and endangers the lives of innocent people.
Yet, it is not the stories like those of Henry McCollum and Leon Brown that keep me doing this work. The reality is that many of my clients have actually been involved in the killing of another human being. Many have been responsible for brutal and unprovoked killings. I have been involved in cases where children have been killed, where victims have been tortured or raped, and where the defendant has murdered other innocent people in the past. Some of my cases have provoked comments like, “If anyone deserves the death penalty, it is your guy.” Many of my clients had fair trials and good attorneys and were convicted.
Yet, every one of my cases has reaffirmed my belief that the death penalty is wrong. I get to know the people who have committed these awful acts. I come to see them as human beings with complicated stories, people not so different from myself, rather than as one-dimensional “monsters.” No matter how terrible my client’s crime, I have never met a single one who I believed should be killed by the state. Even those cases that outsiders might say are the “worst of the worst” have shown me a reason why killing my client is simply not the answer.
This is why I love my job: Because I am able to see goodness when others see only evil, because I look for understanding when others just look for hate.
We are lucky enough to have a justice system that recognizes that we must consider “mitigating factors stemming from the diverse frailties of humankind” before imposing a death sentence. So in every capital case, I seek to learn everything about a client’s life.
The defense team interviews the client’s family, friends, teachers, and anyone who has known him (or, occasionally, her). Every record that has anything to do with the client’s background is gathered, read, and digested. Mental health professionals evaluate the client and the records. From this exhaustive investigation I have learned something: The people who commit terrible crimes are not irredeemable or intrinsically evil. They are human beings who have decency and humanity — and who have been severely damaged in some fundamental way.
The circumstances of the client’s life do not excuse the crime. But a death sentence says a crime is so bad and the killer is so evil that there cannot be an explanation or any humanity. It is my job to show the judge and jury that that is never true. There is never a case where death is the appropriate punishment.
There is always some circumstance that brought a client to the point of murder, always some explanation for why he committed this act. Sometimes it is serious mental illness. Sometimes it is a combination of family dysfunction, trauma, poverty, or other complex factors. It is never simply “evil.”
I might have guessed that this type of work would have made me skeptical, cynical, and depressed about our society. Instead, it has helped me to see the decency in every human being.
Jonathan Broun is an assistant N.C. capital defender who has represented some of North Carolina’s most high-profile defendants. In April of 2015, we asked Broun what motivates him to take on our state’s most difficult cases and fight tirelessly against the death penalty.
Founded in 1909, the NAACP is the nation’s oldest and largest civil rights organization. Its members throughout the United States and the world are the premier advocates for civil rights in their communities. The North Carolina Conference of NAACP Branches is 70 years old this year and is made up of over 100 Adult, Youth and College NAACP units across the state, convenes the more the 150 members of the Historic Thousands on Jones Street (HKonJ) Peoples Assembly Coalition, and is the architect of the Moral Monday & Forward Together Movement.
the more you know about a person, the less likely you are to support their execution; the more you know about the criminal justice system, the less likely you are to support anyone's execution
