Charles Ray Finch in 2015. Photo by Brad Coville, Wilson Daily Times.
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.
The death penalty is all but extinct in North Carolina. Juries have recommended only a single new death sentence since 2014. The state hasn’t carried out an execution since 2006. Yet, North Carolina has the sixth largest death row in the nation, with 140 men and women. It is a relic of another era.
More than 100 of N.C.’s death row prisoners — about three-quarters — were sentenced in the 1990s, under wildly different laws. During those years, North Carolina juries sent dozens of people a year to death row, more than Texas. The state’s courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.
Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave of reforms transformed the landscape. New laws guaranteed capital defendants such basic rights as trained defense attorneys and the right to see all the evidence in their cases. A court mandate requiring prosecutors to seek death for virtually every first-degree murder — the only such requirement in the nation — was ended.
Today, the death penalty is seen as a tool to be used sparingly, instead of a bludgeon to be wielded in virtually every first-degree murder case. Yet, new laws and shifting public opinion have had little impact on prisoners sentenced in another era. The bulk of North Carolina’s death row is now made up of people who were tried 15, 20, even 25 years ago. They are prisoners of a state that has moved on, but has refused to reckon with its past.
Watch the video to hear Nathan Bowie’s story:
Read the Center for Death Penalty Litigation’s 2018 report, Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized 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.
“Reasons for taking this position include the following:
(1) The belief in the worth of human life and the dignity of human personality as gifts of God;
(2) A preference for rehabilitation rather than retribution in the treatment of offenders;
(3) Reluctance to assume the responsibility of arbitrarily terminating the life of a fellow – being solely because there has been a transgression of law;
(4) Serious question that the death penalty serves as a deterrent to crime, evidenced by the fact that the homicide rate has not increased disproportionally in those states where capital punishment has been abolished;
(5) The conviction that institutionalized disregard for the sanctity of human life contributes to the brutalization of society;
(6) The possibility of errors in judgment and the irreversibility of the penalty which make impossible any restitution to one who has been wrongfully executed;
(7) Evidence that economically poor defendants, particularly members of racial minorities, are more likely to be executed than others because they cannot afford exhaustive legal defenses;
(8) The belief that not only the severity of the penalty but also its increasing infrequency and the ordinarily long delay between sentence and execution subject the condemned person to cruel, unnecessary and unusual punishment;
(9) The belief that the protection of society is served as well by measures of restraint and rehabilitation, and that society may actually benefit from the contribution of the rehabilitated offender;
(10) Our Christian commitment to seek the redemption and reconciliation of the wrong-doer, which are frustrated by his execution.
Seventy-five nations of the world and thirteen states of the United States have abolished the death penalty with no evident detriment to social order. It is our judgment that the remaining jurisdictions should move in the same humane direction.
In view of the foregoing, the National Council of Churches urges abolition of the death penalty under federal and state law in the United States, and urges member denominations and state and local councils of churches actively to promote the necessary legislation to secure this end, particularly in the thirty-seven states which have not yet eliminated capital punishment.”
There are 140 people on North Carolina’s death row, 137 men and 3 women.
North Carolina has the 6th largest death row in the United States.
African-Americans make up more than half of NC’s death row prisoners but less than a quarter of the state’s population.
43 people have been executed under North Carolina’s modern death penalty.
Five people have been granted clemency by the governor.
The last execution in North Carolina was in 2006. Concerns about systemic racial bias and the state’s lethal injection procedure led to a suspension of executions.
In the modern era of the death penalty, nine people on North Carolina’s death row have been exonerated.
For every five people executed in North Carolina, one innocent person has been removed from death row.
All total, exonerated men have served 85 years on death row.
On September 2, 2014, Henry McCollum, N.C.’s longest-serving person on death row, was exonerated by DNA evidence after 30 years of living under a death sentence. His brother, Leon Brown, who was serving a life sentence for the crime, was also exonerated.
The innocence claims of several more people on death row are still under investigation.
The N.C. Racial Justice Act, passed in 2009, has brought revelations of racial bias in capital trials.
A comprehensive study done in response to the law found that qualified African-Americans are more than twice as likely as white people to be denied the right to serve on capital juries.
The study also showed that a person’s chances of being sentenced to death increase significantly if the victim is white.
Four people on death row were resentenced to life without the possibility of parole under the Racial Justice Act, after proving that racial bias helped secure their death sentences.
The Racial Justice Act was repealed by the legislature in 2012, and the four people were sent back to death row. Their cases are currently awaiting a final decision by the N.C. Supreme Court
More than 100 other people on death row have also presented evidence of significant racial bias and their claims are still pending in court.
North Carolina’s new execution protocol, created in 2013, is being challenged in court. Executions are on hold until the case is decided.
The protocol was decided unilaterally by the state Department of Public Safety, with no provisions for public input. It does not require the state to reveal the source of its drugs and calls for the use of a drug that manufacturers refuse to sell for executions.
Transparency requires that the state explain how it will ensure that executions do not violate the constitutional ban on cruel and unusual punishment.
A series of death penalty reforms took effect in 2001, which are now considered essential to preventing wrongfully sentencing someone to death. Nearly three-quarters of people on death row were tried before 2001 and did not benefit from the reforms.
The new laws include:
The creation of the N.C. Office of Indigent Defense Services, which drastically improved the quality of legal representation that defendants receive
The right to open file discovery, ensuring that defendants are able to examine all evidence, including exculpatory evidence, in their cases
The option of a sentence of life imprisonment without parole for first-degree murder, which means that juries no longer have to vote for death to ensure that a defendant will never be released from prison
The granting of discretion to district attorneys, who may now choose life without parole over the death penalty in certain first degree cases, even when there is evidence of an aggravating circumstance
Protocols for police lineups, ensuring that they are conducted in ways that do not encourage false identifications
A requirement that confessions be videotaped, rather than simply allowing suspects to sign confessions written by investigators.
Capital trials continue in North Carolina, but juries have sentenced only a single person to death since 2014. In three of the past four years, there have been no new death sentences.
By comparison, in the 1990s, 20 to 35 people were sentenced to death each year in NC.
A 2013 poll of N.C. voters, about three-quarters of whom identified themselves as conservative or moderate, found that the public supports replacing the death penalty with life in prison without parole. 68 percent favored life without parole if individuals were required to work and pay restitution to their victims’ families, and 63 percent favored a life sentence if the money now spent on the death penalty were redirected to crime fighting.
A 2018 Gallup poll showed that fewer than half of Americans believe the death penalty is applied fairly, a new low. The number of Americans who support the death penalty is near its lowest point in 40 years.
Eight states have abolished the death penalty since 2007.
On average, defense in a capital trial is four times more expensive than in a trial where the maximum punishment is life without parole.
North Carolina could save at least $11 million a year by abolishing the death penalty, a 2009 study found. That conservative estimate did not take into account significant prosecution and court costs.
If carried through to execution, capital cases cost an average of $2.2 million more than non-capital ones, a 1993 Duke University study found. Costs have surely risen since then, and most or all of those expenses are paid by the state.
The death penalty is necessarily expensive. The United States Supreme Court has made it clear that when someone’s life is at stake, the investigation must be thorough. Lengthy appeals are necessary to avoid executing an innocent person. The only way to make the death penalty less expensive is to abolish it.
North Carolina’s death penalty costs millions of dollars each year, even while executions are stalled. A majority of North Carolinians say its high cost is not a good use of tax money.
In 2009, Duke University completed the first rigorous study on the costs of the death penalty in North Carolina. It found that death penalty prosecutions cost the state at least $11 million a year, despite the fact that no one has been executed since 2006.
Most of the money spent on the death penalty is wasted because executions are only rarely carried out. Of more than 450 people who have been sentenced to death in North Carolina since modern death penalty laws were enacted in 1976, only 43 — less than 10 percent — were executed.
The study’s cost estimate was conservative. It included:
Extra defense costs for capital cases, which require two attorneys paid at higher rates as well as a team of experts and investigators. On average, defending a capital case costs four times as much as a first-degree murder trial in which the defendant faces a maximum of life imprisonment.
Extra payments to jurors in capital trials, which typically last weeks longer than non-capital ones.
The expense of appeals and resentencing hearings, which are far more numerous in capital trials because of the high stakes of making a mistake.
The costs to prisons, which must house death-sentenced prisoners in special units with extra security, sometimes for decades.
The study’s estimate did not include prosecution costs, despite the fact that death penalty cases can eat up hundreds of hours in state-funded district attorney’s offices and law enforcement agencies. It also did not include additional costs to pay court reporters and other personnel, or the expense of additional appeals in state and federal court.
North Carolina continues to invest in the death penalty, despite the public’s growing discomfort with it. Death sentences have become rare occurrences, and polls show declining support for the punishment.
A 2013 poll showed that 68 percent of North Carolinians would support replacing the death penalty with life in prison without parole if offenders were required to work and pay restitution to their victims’ families. A clear majority also favored redirecting taxpayer funds spent on the death penalty to crime fighting, solving cold cases, and assisting crime victims.
For as long as the death penalty exists, the high costs will continue. Given that nine innocent people have been exonerated after being sentenced to death in North Carolina, it’s clear that a strong defense and extensive appeals are necessary to avoid executing an innocent person.
More than 35 years ago, the U.S. Supreme Court held in a landmark death penalty case that states must carefully administer the death penalty to make sure it is reserved for the “worst of the worst.” It is intolerable, the Court said, for the death penalty to be imposed in a manner that is as random as being struck by lightning. North Carolina completely revamped its death penalty statute in response to that ruling. Yet today, the use of the death penalty in North Carolina remains largely arbitrary.
Whether a defendant ultimately receives the death penalty depends less on the severity of his or her crime than on random factors such as the prosecutor’s enthusiasm for the death penalty, the skill and experience of the defense lawyers, and the race of the victim. For example, studies have found that defendants in cases with white victims are significantly more likely to be tried capitally and to receive death sentences than those where the victim was a person of color.
The inconsistency in the application of the death penalty led former North Carolina Supreme Court Chief Justice and death penalty supporter Burley B. Mitchell, Jr. to remark, “It’s like being picked in a lottery… It’s totally arbitrary.”
Imagine yourself in the shoes of a death row prisoner.
These questions are more likely to determine whether you got the death penalty than the facts of the crime.
WHAT YEAR WAS IT?
If you were tried before 2001, you had the misfortune to be sentenced during an era when pro-death penalty sentiment was running high and key legal protections were not yet in place. Dozens of people were sent to death row each year, compared with few or none today. You might have gotten an unqualified lawyer or been denied the right to see key evidence in your case. Beginning in 2001, laws changed to give capital defendants far more legal protections. But you were tried before then, so you’re out of luck. [Read CDPL’s comprehensive report on pre-reform cases, Unequal Justice.]
WHAT COUNTY WERE YOU IN?
In North Carolina, district attorneys (DAs) decide which defendants will face the death penalty. There are more than 40 elected DAs across the state, and each one approaches the death penalty differently. Some never seek death sentences, while others stake their political reputations on winning them. Maybe you had the misfortune of being tried under the reign of Ken Honeycutt, who aggressively sought the death penalty against black defendants and celebrated death sentences by handing out noose-shaped lapel pins to his staff. [Learn how the death penalty is warped by overzealous prosecutors who seek executions at disproportionate rates.]
WHAT WAS THE RACE OF YOUR VICTIM?
A comprehensive study showed that, if your case involves at least one white victim, you are 2.6 times more likely to get the death penalty in North Carolina than if the victim is a person of color.
WHO WAS YOUR LAWYER?
Were you rich enough to pay hundreds of thousands of dollars for a defense lawyer? Almost certainly not. That means you, like nearly everyone else on death row, relied on a public defender. Were you assigned a highly qualified one who devoted months of painstaking work to making the case for your life? Or did you get an overworked, inexperienced lawyer who spent just a few hours preparing for your trial? Did you get a lawyer who came to court drunk? Missed key deadlines in your case? Especially if you were tried before 2001, when the state finally created an agency to oversee capital defense, it was the luck of the draw.
DID YOU REFUSE A PLEA DEAL?
Imagine this scenario. You and a friend were involved in a crime. Your friend planned the crime and did most of the work of carrying it out. The DA offers you both a deal. If you plead guilty and accept life in prison, with zero chance of parole, you can avoid a death sentence. Your friend accepts. But you feel you don’t deserve such a harsh sentence for your minor role in the crime. You are only 19 and think you should get a second chance instead of dying behind bars. (Maybe you have a mental illness and cannot understand the risks of refusing this plea. Maybe, for a variety of reasons, you don’t entirely trust your lawyer, who is telling you to take the deal. Or maybe you simply want to exercise your constitutional right to a trial.) As punishment for refusing the plea, the DA seeks the death penalty and wins. You were the minor player in this crime, yet your co-defendant got life and you got death. Many people on death row ended up there because they refused plea bargains, which isn’t a very good way of choosing who lives and who dies.
There is no evidence that the death penalty deters crime. North Carolina’s murder rate declined after executions stopped. The death penalty has failed to deliver on the much-touted promise that it makes the people of North Carolina safer.
In this video, a former N.C. prison warden and police chief explain how the death penalty fails to contribute to public safety:
Over the past several years, there has been a steep drop-off in the use of the death penalty. No one has been executed in North Carolina since 2006. The number of death sentences handed down by juries declined to near zero. And prosecutors have opted to seek the death penalty in only a tiny handful of cases. During those years, the state’s murder rate has remained far lower than during North Carolina’s years of heavy death penalty use.
Nationally, murder rates are significantly lower in states that don’t use the death penalty than in those where the death penalty remains on the books— and have been consistently for the past two decades. In some years, the murder rate in non-death penalty states was nearly 50 percent lower than in death penalty states.
Studies purporting to show that the death penalty reduces crime have been discredited by rigorous research. Most people on death row committed their crimes in the heat of passion, while under the influence of drugs or alcohol, or while in the grips of mental illness or trauma. They represent a group that is highly unlikely to make rational decisions based on a fear of future consequences.
In a 2008 survey, police chiefs from across the country ranked the death penalty at the bottom of a list of effective crime-fighting tools. They said more law enforcement resources were the most needed tool for reducing violent crime.
Juveniles and people with intellectual disabilities are legally exempt from the death penalty because of their diminished capacity to understand and control their actions. Serious mental illness can reduce culpability in the same way, yet North Carolina offers few protections. For example, there is no law allowing judges to remove the death penalty from consideration because of mental illness, and defendants can mount an “insanity” defense before a jury, but juries rarely grant relief on this basis.
Some of the people who have been sentenced to death in North Carolina have schizophrenia and other psychotic disorders that can cause delusions, hallucinations, disorganized thinking, and disruption of memory and perception. Some are suffering from severe post-traumatic stress disorder, either because they are war veterans or suffered severe childhood trauma.
It is exceedingly difficult for defendants with severe mental illnesses to receive a fair trial. Many defendants with mental illnesses are paranoid and distrustful of their attorneys, leaving them unable to provide their defense team with critical information. Some cannot remember what may have happened or where they were. Additionally, if they are taking psychotropic medications to control their illness, they may appear apathetic and remorseless at trial; if they fail to take these medications, however, defendants may become belligerent or frightening in front of the jury.
Across the US, the majority of people executed have suffered under the weight of mental illnesses.
James Davis survived a shrapnel wound in Vietnam, but he never recovered from the psychological wounds he suffered during two brutal combat tours — which were compounded by severe childhood abuse and mental illness. Psychiatrists have now diagnosed him with paranoid schizophrenia and combat-related PTSD, but the jury at his trial heard almost no evidence of his severe mental illness.
Davis receiving his Purple Heart on death row
In 1995, James walked into an Asheville tool manufacturing plant, from which he had been fired a few days earlier, and killed three employees: Gerald Allman, Frank Knox and Tony Balogh. By the time of the murders, everyone who knew James believed he was seriously mentally ill. In the years before his crime, he lived in almost complete isolation, talked to himself, and shot at imaginary groundhogs in his yard. On the day of the shooting, investigators who interviewed him after he turned himself in said James appeared to be hearing voices and hallucinating. At his trial, he had to be so heavily medicated that his speech was slurred and he could not hold a coherent conversation.
As a child, James’ alcoholic father whipped him with a leather strap until he bled and beat James with a mop handle if he spoke at the dinner table. The father sexually abused his children and often threatened to kill them while they slept. At 15, James was placed in foster care. He never received treatment for symptoms of mental illness that plagued him for most of his life, nor did he receive mental health treatment after seeing near-constant combat during two tours in Vietnam. In 2009, he received a belated Purple Heart for his service in Vietnam.
At a separate civil trial, in which the families of James’ victims sued his former employer for failing to protect them from James, more than a dozen witnesses provided compelling evidence of James’ mental illness, none of which had been revealed at his criminal trial. The families won one of the largest civil settlements in North Carolina history. Since being sentenced to death, James’ paranoia and depression have continued to worsen. At one point, he fired his attorneys and asked to be executed, saying that continuing with appeals lead to increased paranoia and voices in his head.
As a jury weighed whether to sentence him to death, Guy LeGrande stood before them wearing a Superman T-shirt and made a non-sensical speech that concluded with the declaration that they should “pull the damn switch and shake that groove thing.” A state psychiatrist had deemed him psychotic, yet the judge allowed him to fire his court-appointed lawyers and represent himself at trial. The jury deliberated for 53 minutes before condemning him to death.
Guy LeGrande, second from right, with his family as a child
Guy LeGrande, who has been on death row since 1996, is perhaps the most striking example of the lack of protections afforded to people with mental illness in North Carolina’s capital punishment system. Before his trial, a psychiatrist at a state mental facility examined Guy and found that he had “narcissistic, grandiose, and hypomanic traits” and prescribed anti-psychotic medication.
Guy stood accused of the 1993 contract killing of Ellen Munford, a white Stanly County woman whose estranged husband, Tommy Munford, promised to pay Guy $6,500 for the murder. Tommy Munford gave Guy a gun, dropped him off in the woods next to the home, and picked up his two children so his wife would be alone. Tommy Munford received a life sentence for plotting the murder.
During trial, Guy, who is African-American, became more and more agitated as three separate witnesses referred to him as a “n****r.” The Stanly County prosecutor trying his case was well-known for wearing a lapel pin in the shape of a noose, and distributing them to his staff as morale-boosters when they won death sentences. Guy made outrageous statements to the prosecutor and others, claiming, among other things, that Oprah Winfrey and Dan Rather were sending him messages over the television. He called the jurors “antichrists.”
Lawyers appointed to be on “standby” to assist Guy were so troubled by his bizarre behavior that they filed a motion arguing he was not competent to represent himself. When the judge asked Guy what he had to say, he tore the document in half. The judge then allowed the trial to proceed.
During the crucial penalty phase of the trial, Guy’s incoherent ramblings culminated in this antagonistic argument to the jury:
Hell ain’t deep enough for you people. But you remember when you arrive, say my name, Guy Tobias LeGrande. For I shall be waiting. And each and every one of you will be mine for all eternity. And we shall dance in my father’s house. And you will worship me and proclaim me Lord and master. But for right now, all you so-called good folks can kiss my natural black ass in the showroom of Helig Meyers. Pull the damn switch and shake that groove thing.
Not only did Guy serve as his own lawyer at trial, the N.C. courts also allowed him to represent himself in post-conviction proceedings. He waived those appeals. In 2007, after more than a decade on death row, a Superior Court Judge finally declared Guy incompetent to be executed, requiring him to stay on death row until a time when he may be rendered competent and then executed. His lawyers’ requests for clemency have been ignored, and he remains on death row.
Had Allen Holman been prosecuted under current laws, he likely never would have faced the death penalty. He pled guilty and expressed deep remorse for shooting his wife, Linda Holman, to death in a grocery store parking lot in Apex. Allen and Linda were both seriously mentally ill, and Allen did not plan the crime. Instead, the July 1997 killing followed an out-of-control argument. Afterward, devastated by his actions, Allen shot himself in the stomach, one of several suicide attempts both before and after the crime.
Allen’s trial attorneys say that, in a private conversation, a Wake County prosecutor said the office would offer a sentence of life without parole “in a heartbeat” if the law allowed it. However, at the time, North Carolina was the only state in the nation that forced district attorneys to seek death in every aggravated first-degree murder. In 1998, a Wake jury sent Allen to death row.
Under current law, defendants willing to take responsibility for their crimes are almost never prosecuted capitally. In Wake County today, defendants are tried for the death penalty only if they refuse to plead guilty to first-degree murder. If they agree to plead guilty, as Allen did, they receive a sentence of life without parole. Documented serious mental illness like Allen’s is another factor that, today, almost always leads a prosecutor to choose a life sentence over death.
Even in cases that go to capital trials, Wake juries have not voted for a death sentence since 2007. But, at the time of Allen’s trial, even people who pled guilty, committed unplanned crimes, or were so mentally ill that they could barely participate in their own defense ended up on death row. Allen was one of them.
Allen and Linda Holman married in 1992. Allen had a history of depression and suicide attempts. Linda had multiple personality disorder and a substance abuse problem; Allen was her fifth husband. From the beginning, the marriage was fraught with violence on both sides. Shortly before the murder, Allen injured his back, lost his job, and attempted suicide. Linda asked Allen to move out. She told friends she wanted him dead and wished his suicide attempt had been successful. She openly resumed her relationship with an ex-husband, and then taunted Allen by displaying a nude photo of her lover in the bedroom she shared with Allen.
The jury that sentenced Allen to death, however, had little of this context. Allen refused to cooperate with his attorneys to present mitigating evidence of his mental illness. His lawyers failed to present any evidence of Linda’s personality disorder either. The jury never knew that Linda had repeatedly shot at and tried to stab Allen in the past, or that she was openly committing adultery. What’s more, Allen’s lawyers didn’t allow him to testify in his own defense, and no one told the jury of his deep remorse for the crime. While none of this evidence excused the murder, it would have helped explain Allen’s actions and might have persuaded the jury to vote for a life sentence.
On death row, Allen’s remorse, depression, and mental illness have persisted. During a crucial period in his appeals process, he fired his attorneys and asked to be executed, so the courts were never able to fully review his case. Allen has since asked to resume his appeals, but he lost his chance to present key evidence to the courts.
Intellectual disabilities compromise decision-making skills. They make people incapable of fully understanding the consequences of their actions, and render them unable to participate in their own defense. That’s why, in 2001, North Carolina passed a law prohibiting the execution of people with intellectual disabilities. In 2002, the U.S. Supreme Court made the ban nationwide.
However, North Carolina continues to fight to execute people with intellectual disabilities. People are sometimes kept on death row because of a single IQ test where they score slightly above the state’s cutoff of 70. In 2014, the Supreme Court found this practice unconstitutional and barred states from using a strict IQ cutoff to determine intellectual disability. The court said states must look at a range of IQ scores, and also consider how defendants function in daily life — the same standards that have been used for decades by psychologists and teachers. Yet, several people on death row with strong evidence of intellectual disability are still waiting for relief.
Read the stories below of North Carolinians whose IQ should prevent them from being subjected to capital punishment.
Frank Chambers’ school photos and elementary school records
Frank Junior Chambers was the third of five children born into extreme poverty in rural Rowan County. His father beat his mother so badly that she suffered permanent headaches and hearing loss. The beatings continued during her pregnancy with Frank, when he hit and kicked her in the stomach. She never received any prenatal care. Compounding the damage, Frank contracted bacterial meningitis as an infant, a frequent cause of intellectual disability.
Throughout his childhood, the signs of Frank’s disability were clear. He couldn’t learn to write his name or follow basic commands. At 8 years old, he still wasn’t potty trained and couldn’t dress himself. His teachers remarked that he was “slow to grasp basic concepts” and he failed several grades. At 12, when testing showed him reading at a second-grade level, his teachers placed him in special education. He dropped out in eighth grade, when he was 15. IQ scores throughout his lifetime range from 63 to 73, clearly in the range of intellectual disability. His mother told his defense attorneys that she always worried her son had brain damage, but that the family was too poor to get him any care. “We were barely surviving,” she said.
As an adult, Frank never held a job for long. He never lived independently, but boarded with a woman who helped take care of him. The woman said he was unable to do basic tasks like hanging clothes on a line, and she was afraid to leave him in the house alone for fear he would accidentally start a fire. “In order for him to understand, you’d have to break down what you were trying to say like [he] was a little kindergarten child,” she said.
In 1994, Frank was one of three men tried for the killing of an elderly couple, B.P. and Ruby Tutterow, during a robbery at their house. Prosecutors portrayed Frank as the remorseless mastermind of the crime. Meanwhile, Frank’s defense attorneys never investigated his family history or had him evaluated by a psychologist. The jury heard nothing of his profound intellectual disability. Meanwhile, the jury sentenced one of his co-defendants to life, precisely because that defendant’s attorneys presented evidence of intellectual disability.
Since 2001, when the Supreme Court banned the execution of people with intellectual disabilities, his appeals attorneys have compiled overwhelming evidence of Frank’s disability. Yet, his claims have stalled in the courts and Frank remains on death row.
Attorney Ken Rose holds two photos of his client, Timothy Richardson
Timothy Richardson was born with fetal alcohol syndrome and had severe lead poisoning as a toddler, both of which cause brain damage and serious mental and physical disabilities. He failed in school and struggled to learn to read. As an adult, he was never able to live independently, hold a job, or handle his own daily care. He frequently put his clothes on inside out, and his wife had to remind him to shower. She also adjusted the water temperature for him. He relied on family for errands like grocery shopping because he didn’t understand how much money he had or came home with the wrong items. On two IQ tests, he scored below 70, the N.C. statute’s original cutoff for a diagnosis of intellectual disability. Yet, despite laws that prohibit the execution of people with such disabilities, Timothy remains on death row.
Timothy was convicted and sentenced to death in 1995 for the kidnapping and murder of a convenience store clerk in Nash County, Tracy Marie Rich. The most significant evidence against him came from his confession, although people with intellectual disabilities are especially vulnerable to being pressured into false confessions. Timothy’s confession was not recorded or signed, which is required by law today. In it, Timothy said he was present at the crime, but that another man committed the murder. Yet, Timothy was the only person prosecuted. Police found a shoe print at the crime scene that did not match Timothy’s, but it was destroyed and never compared against other suspects. Had it matched the man Timothy named, it might have helped prove Timothy’s limited involvement in the crime.
At trial, an expert told the jury Timothy functioned at the level of an 11 or 12 year old. But at the time, it was still legal to execute people with intellectual disabilities. Seven years after his trial, the law changed to protect intellectually-disabled defendants. Since then, Timothy’s post-conviction lawyers have compiled extensive evidence of his disability. His mother drank alcohol heavily throughout her pregnancy with him. At three years old, he was hospitalized after a blood test showed a lead level of eight times the acceptable limit. One expert said Timothy’s lead level was “like taking a shotgun and shooting at brain cells.” Beginning as early as 11 years old, he compounded the damage by abusing drugs and alcohol. His drug use spiraled when he was a teenager after his brother was killed, and he remained addicted to drugs for his entire adult life.
The state, however, has pointed to two IQ tests where Timothy scored just above 70, and a judge dismissed his claim of intellectual disability. In 2014, the U.S. Supreme Court once again addressed the issue of intellectual disability and the death penalty, ruling that it was illegal to base determinations of disability on a strict IQ cutoff as the courts did in Timothy’s case. The court said that states should instead consider the defendant’s IQ alongside his functioning in daily life to determine whether he is disabled. A federal court recently found that he is entitled to a new hearing to present evidence of his disability under modern laws.
the more you know about a defendant, the less likely you are to support his or her execution; the more you know about the criminal justice system, the less likely you are to support anyone's execution
