A juror’s dilemma: The wrenching job of deciding another person’s right to live

November 9, 2017

In a federal courtroom in Greensboro last week, attorneys were parsing a single conversation between a juror and a religious adviser, which took place during a capital trial more than 20 years earlier. It wasn’t the stuff of juicy news headlines. But it did serve to remind us of a little-known aspect of the death penalty: Its impact on jurors who must make life-and-death decisions.

The court was weighing whether a N.C. death row inmate, Russell Tucker, should get a new sentencing hearing because, during his 1996 trial, a juror asked a trusted person what the Bible says about the death penalty and sitting in judgment of others. The juror received an answer that he says allowed him to vote for the death penalty.

Conducting research and seeking advice seems like a logical thing to do when you are given a task as momentous as deciding whether a human being should live or die. Yet, capital jurors are not allowed to do it. They are not even allowed to talk the case through with a spouse or close friend. If they break the rules, they risk being charged with a crime.

There are good reasons for the law. Decisions in criminal cases must be based only on the evidence presented in the courtroom and the law as explained by the judge, not on a confusing array of private investigations and outside advice. Jurors have a solemn duty to decide without inappropriate influence or pressure, and it is critical that they not be swayed by someone else’s feelings or beliefs about the case.

But this necessity puts capital jurors in the uncomfortable position of having to make a life-changing decision without any of their usual support networks.

The Tucker case was actually the third N.C. death row case in the past two years to go to federal court because a juror sought outside spiritual advice. In all three cases, we are awaiting the court’s ruling on whether the defendants will get new sentences.

In William Barnes’ case, a juror asked her pastor which side was correct after the prosecutor and defense attorney offered opposing biblical perspectives on the death penalty in their closing arguments.

And in Jason Hurst’s case, a juror asked her father for advice about which sentence to choose. He directed her to a Bible passage about “eye for an eye.” The next day, she voted for the death penalty.

As long as we ask jurors to make profound and extraordinary moral decisions, we will continue to see well-meaning citizens end up on the hot seat. The fact is, we should never have put them in the wrenching position of deciding another person’s right to live.

Keith Tharpe is not an anomaly. Lots of death row inmates have been called at “n___r” at their trials.

Keith Tharpe death penalty Georgia
Keith Tharpe with his grandchild

Last week, the Supreme Court halted the execution of Keith Tharpe in Georgia because of a juror’s admission that he voted for death because he believed Tharpe was a “n—-r.”

“After studying the Bible,” the juror said, “I have wondered if black people even have souls.” Prosecutors later made the ludicrous claim that, when the juror said “n—-r,” he didn’t mean it in a racist way.

This kind of racism in a life-or-death trial flies in the face of our country’s most basic beliefs about justice. It might be tempting to believe this case was just an anomaly. But Keith Tharpe is far from the only defendant to be sentenced to death by a deeply racist juror.

Just look at these North Carolina cases:

Kenneth Rouse was sent to N.C. death row 1992, the same year Tharpe received his sentence in Georgia. After the trial, one of Rouse’s jurors told defense investigators that “bigotry” played an important role in his decision. The juror also used the n-word and said that “black men rape white women so they can brag about it to their friends.” He said he believed that “blacks do not care about living as much as whites do.” Rouse remains on death row.

At Robert Bacon’s trial in 1987, jurors made racist jokes and held it against Bacon that he was dating a white woman. He eventually won clemency from the governor.

Like many death row inmates, Rouse and Bacon were sentenced by all-white juries. Often, prosecutors make explicitly racial appeals to white juries. Both of these men remain on death row:

During his trial in front of an all-white jury, Guy LeGrande was called a “n—-r” by three separate witnesses. The Stanly County prosecutor, known for wearing a noose-shaped lapel pin, invoked the image of evidence that would come together “twisted and bound into a rope.”

A prosecutor at Rayford Burke‘s trial referred to him as a “big black bull” during closing arguments in front of the all-white jury.

Diverse juries are key to driving racism out of capital sentencing. Studies show that they deliberate more thoroughly and make fewer mistakes. Juries with people of color are also less likely to be swayed by prosecutors who use racial stereotypes to push for death sentences.

Yet, the practice of excluding people of color from juries remains rampant in N.C. capital trials.

Prosecutors are more than twice as likely to strike qualified African Americans as they are to strike whites. More than 60 of N.C.’s 145 death row inmates were sentenced by juries with no more than one person of color. More than 25 of them had all-white juries.

The legislature repealed the Racial Justice Act, which was enacted to remedy jury discrimination, and the courts have refused to hear more than 100 claims of such discrimination brought by N.C. death row inmates.

Georgia is not an exception. In North Carolina and across the country, we are a long way from fulfilling our promise of color-blind justice, even in life-and-death trials.

In the fight on crime, death is far more costly than life

Almost every time people discuss the death penalty on social media, at least one person chimes in with this opinion: We should execute people because it’s too expensive to keep them in prison for life.

But the truth is, the death penalty costs far more than life without parole.

The extra costs begin adding up the moment a suspect is arrested and charged capitally. They continue for all the years he sits on death row, until his execution is complete. When it’s all over, it would have been far cheaper if the person had spent his life in prison, awaiting a natural death.

A  2009 study on the costs of the N.C. death penalty found that keeping capital punishment on the books costs our state at least $11 million a year, even while executions are on hold. And that is just in extra defense costs, not taking into account prosecution and court expenses.

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 without parole, according to the N.C. Office of Indigent Defense Services, which provides defense attorneys for most criminal defendants in North Carolina.

Studies in other states have all shown the same thing: The death penalty is a net loss for taxpayers.

Here are some of the ways the North Carolina death penalty costs more than life imprisonment:

  • A suspect who is charged capitally has the right to two specially trained attorneys, plus funds for experts and mitigation investigators who compile extensive reports to help jurors understand the defendant’s circumstances when they are deciding between life and death.
  • At trial, selecting a “death-qualified” jury of only people who are willing to impose a death sentence often takes weeks or months, while selecting a non-capital jury is typically completed in a few days.
  • Unlike non-capital trials, death penalty trials have a separate penalty phase, complete with witness and expert testimony.
  • These longer, more complex trials add up to thousands of additional hours for defense attorneys, prosecutors, law enforcement, and court officials.
  • Once they are sentenced to death, defendants are automatically entitled to many levels of appeals, which typically go on for at least a decade.
  • While in prison, they are housed on death row — a special, segregated unit with extra security — and they are not allowed to work as other prisoners do.
  • As long as executions are possible, the prison must maintain a death chamber and a team of staff who are trained to carry out lethal injections. They also must procure increasingly scarce execution drugs, which some states are being forced to import or have specially made in compounding pharmacies. (That’s not to mention the cost of continuing litigation in North Carolina over the state’s lethal injection protocols.)

A 1993 study found that, all told, it costs the state $2.16 million more per case to prosecute a homicide capitally and see it through to execution. We can only imagine what the cost would be today.

So, the next time you find yourself in a conversation with someone spouting the old “kill ‘em to save money” line, we hope you’ll give them an education on the true costs of the death penalty.

Why North Carolina’s death penalty is not for the “worst of the worst”

By Gretchen M. Engel
Reposted from the blog of N.C. Policy Watch

Henry McCollum innocent man on death row
The justice system said Henry McCollum was the “worst of the worst.” He turned out to be innocent.

Since Arkansas shocked the world by trying to execute eight people in 10 days just to beat the expiration date on its lethal drugs, there has been more talk about the death penalty in North Carolina.

Most recently, WUNC’s Rusty Jacobs did a piece on where the death penalty stands, almost 11 years after North Carolina’s last execution. It revealed serious concerns about executing innocent people, and explained why it’s far more expensive to execute than to sentence people to life in prison.

However, one concept goes unchallenged in many stories about the death penalty: The naïve idea that the death penalty is used only in those rare, “worst of the worst” cases. Having spent my entire career up-close with North Carolina’s capital punishment system, I can tell you that’s not how it truly works.

First, let’s look at the 147 people on death row in North Carolina. More than three-quarters of them were sentenced more than 15 years ago, during an era in which North Carolina had one of the highest death-sentencing rates in the nation — even higher than Texas and Florida. Far from using the death penalty only in a handful of the most shocking crimes, execution was pursued Wild West-style in nearly every first-degree murder case.

During those years, we had a law unlike any other in the nation, which required prosecutors to seek the death penalty in every first-degree murder case with an aggravating factor. And, of course, the law is written so broadly that an aggravating factor can be found in almost any intentional killing.

Prosecutors were required to push for execution without regard to mitigating factors, or evidence that pointed to possible innocence. Even they thought this was a terrible idea, and they recommended the law be changed.

The General Assembly ended this requirement in 2001, but by then, death row had swollen to more than 200 people, more than 100 of whom remain there today. All of them were tried without the benefit of reforms intended to ensure fairness and prevent the conviction of innocent people.

There was, for example, no requirement that confessions be recorded. In many cases, the state presented unreliable forensic testing and “junk” science, and defendants were sentenced to death by juries selected in a racially-discriminatory fashion. Some of them, like Henry McCollum and Leon Brown, were innocent. Most would never have received death sentences under today’s laws. These are the people who would be first in line if our execution chamber were to crank up.

Next, consider how the death penalty is used today. Do prosecutors use their discretion to carefully cherry-pick death penalty cases? Absolutely not.

In reality, our justice system runs on pleas. Prosecutors use the death penalty as leverage, to persuade reluctant defendants to plead guilty and accept life sentences.

It works like this: The vast majority of murders are initially charged capitally, and pleas are negotiated from there. The theory is that a defendant facing the threat of execution is more likely to accept whatever deal the state offers. Pursuing the death penalty even when the prosecutor thinks the case is not execution-worthy makes a mockery of justice.

Defendants who refuse a deal are often our most vulnerable clients: those who are mentally impaired, those who least trust their lawyers, or those who are innocent and refuse to plead guilty. People who refuse plea deals represent the vast majority of people who are tried capitally in North Carolina today.

This means a defendant’s chance of facing the death penalty depends less on the crime than on a willingness to accept a life sentence without a trial. Often, several defendants are involved in a crime. Some accept a deal and get a life sentence, while another — maybe not even the most culpable — ends up on trial for his life.

Juries can see that the people who go to trial are not the “worst of the worst.” Look at the two capital trials in North Carolina this year. Both defendants were offered pleas but insisted on going to trial.

The first trial, in Wake County, ended with a verdict of life imprisonment. This marked eight times in a row that a Wake jury has chosen life over death. In the second, just this month, a Robeson County jury not only rejected a death sentence but refused even to convict the defendant of first-degree murder. He was found guilty of second-degree murder.

Prosecutors might tell you they need the death penalty to punish the “worst of the worst.” But in practice, our state spends millions to pursue death sentences that are arbitrary and unnecessary, and uses the threat of death as a negotiation tactic — sometimes putting innocent lives on the line.

Gretchen Engel is the Executive Director of the Center for Death Penalty Litigation.

After 20 years on death row, a fair ending to a family tragedy

Phillip Davis removed from NC death row
Phillip Davis in his high school yearbook photo

Last week, a man who spent nearly 20 years on death row was re-sentenced to life in prison without parole. This was a sane resolution to a senseless and much-regretted crime committed by a deeply troubled teenager.

Phillip Davis was re-sentenced with the full of support Buncombe County District Attorney Todd Williams, who acknowledged unfairness in Davis’ case. “Our system has built-in checks on abuses such as discrimination and prosecutorial misconduct. When the system is not allowed to work as it’s naturally intended to, that’s when you have a problem,” Williams told the Asheville Citizen Times.

It’s a prosecutor’s job to seek justice, rather than blindly seeking the harshest possible punishment. That’s why it was so refreshing to see a prosecutor willing to consider all the circumstances and come to a sensible agreement that serves justice and saves taxpayers money.

If only more North Carolina prosecutors would begin reevaluating the cases of the nearly 150 men and women on death row. The majority of them were sentenced to death more than 15 years ago, some as long as 30.

They were sentenced at a time when vastly different laws led to dozens of people being sent to death row each year. Now, with executions on hold for a decade and juries imposing an average of only one death sentence a year, they languish on death row year after year.

Settling these old cases for sentences of life imprisonment with no possibility of parole would end costly appeals and ensure that defendants are never released from prison — while giving a punishment that is far more fitting with North Carolina’s current standards of justice. Once in general population, inmates cost less to house and can get jobs that allow them to contribute to society.

In Davis’ case, he was just four months past the age that would now make him ineligible for the death penalty when, as a high school senior, he killed his cousin, Caroline Miller, and his aunt, Joyce Miller, after an argument. Davis was living with them because his mother — a lifelong drug addict who had subjected him to a traumatic childhood — was in prison.

Davis, whose IQ puts him in the range of borderline intellectual functioning, immediately accepted responsibility for his crimes and expressed deep remorse. He voiced his sorrow and regret for his actions again in court last week, his voice choked with emotion: “To family members and anyone who knew Joyce and Caroline, they were two very special people who were loved by a lot of people including myself. I regret everything that happened and it’s something I’ll regret for the rest of my life.”

The prosecutor who agreed to his new sentence acknowledged that race wrongly played a role in selecting the all-white jury that sentenced Davis to death in 1997. It is illegal to strike jurors based on race, and in 2016, the U.S. Supreme Court confirmed that in the strongest terms ever.

The problem was compounded when prosecutors in Davis’ case took the unusual step of shredding many of their notes from jury selection, making it impossible to examine them for evidence of racial bias.

The victims’ family members said they were satisfied with the life sentence. They have worked over many years to rebuild their relationship with Davis, and his new sentence allows the family’s healing to continue.

It’s a resolution that makes sense for all involved.

“Fearless & relentless” — Ken Rose retires after 35 years on death penalty’s front lines

At the beginning of 2017, Ken Rose retired from his longtime post as an attorney with the Center for Death Penalty Litigation in Durham.  Below is our tribute to the unforgettable 35-year career of one of North Carolina’s most passionate and committed death penalty abolition advocates.

Ken Rose’s client, Henry McCollum, was about to be released from death row. The story was spreading around the world: An innocent man, sentenced to death as a teenager, finally freed after 30 years by definitive DNA evidence. The moment was a defense attorney’s dream come true.

But Ken wasn’t celebrating. Instead, his mind was racing. Night and day, he pored over the case files, catalogued every injustice Henry had endured in three decades of awaiting his execution, every lie that was told in order to convict him, every person who allowed it to happen. He didn’t exempt himself. He had represented Henry for 20 years and, until now, had not been able to prove Henry’s innocence.

Even after more than 30 years of defending death row inmates, seeing the injustices of the death penalty in the starkest possible light, Ken was struck anew by the cruelty and indifference of our system. “There was so little evidence, and they were going to kill him,” Ken told the News & Observer afterward, when he was profiled as a Tar Heel of the Week. “It took almost a miracle to stop it.”

Ken retired this month from the Center for Death Penalty Litigation, where he worked since 1996. He had come to North Carolina in 1989, a young lawyer who began his career in Mississippi with the idealistic notion that a poor criminal defendant facing the death penalty should get the same quality of defense as a deep-pocketed corporate client. He grew into one of North Carolina’s most respected and visionary death penalty attorneys.

Ken pushed for the passage the N.C. Racial Justice Act, a groundbreaking 2009 law that brought to light decades of systematic racial bias in capital cases. He is also a key player in North Carolina’s lethal injection litigation, which has kept executions on hold here for more than a decade – an achievement that no other southern state has even approached.

Through it all, Ken never lost the idealism or the passion that has driven him since his earliest days. He never stopped being surprised – and outraged – at injustice. He never stopped plotting how to outwit the machinery of death, constantly dreaming up creative strategies that pushed boundaries and set precedents. And he never stopped representing every client as if both of their lives depended on it.

“Ken is both fearless and relentless on behalf of his clients,” says CDPL’s Executive Director Gretchen M. Engel. “There were times when he made judges and opposing counsel furious with his arguments. You could cut the tension in the courtroom with a knife. Most lawyers would have lost their nerve and started backpedaling.  Ken was eerily calm and he never backed down.”

Ken said that the biggest lesson of his 35 years defending some of the most despised people on the planet was: There is no such thing as a “monster.” Instead, he found that his clients were people damaged by poverty, racism, mental illness, intellectual disabilities, or abuse. People at the mercy of a system that punished arbitrarily, and of a society that failed to see the humanity of its most disadvantaged citizens. He said he found his clients to be no more or less human than himself — capable of terrible mistakes, but also of love, kindness, and generosity.

Even as he was crafting complex legal strategies, Ken always took the time to honor his clients’ humanity. As a young mitigation investigator, CDPL’s Gerda Stein remembers working with Ken on the case of David Huffstetler, a condemned man who stood very little chance of having his death sentence overturned, who was also gravely ill and not expected to live much longer. They were granted a hearing, and Ken asked the judge’s permission for David to speak.

“David spoke at length, much of which was completely irrelevant,” Gerda remembers. “I started to get nervous, but Ken sat calmly and after David finished, treated him with deep respect and kindness, thanking him for speaking. I was incredibly moved at how he gave David that last chance to be heard, to have a voice.”

Ken started his career with CDPL as its executive director. But 10 years later, in 2006, he decided that administrative duties were taking him away from the work of saving lives. He stepped down and became a staff attorney.

He was without ego, requiring neither a fancy office nor fancy clothes. He was generous with his time, happily giving it to any attorney, staff member, intern, or random person off the street who was interested in helping end the death penalty. Every staff member at CDPL knows the feeling of Ken barging into their office, almost vibrating with excitement to discuss his latest idea. Yet, when his ideas came to fruition, he frequently gave the credit to others.

“He sometimes introduced me to others by giving me total credit for things he was the driving force behind, or projects where we worked together closely,” says CDPL staff attorney David Weiss. “He’d say, ‘This is the guy in charge of the lethal injection litigation stopping executions in North Carolina.’ I never saw Ken try to claim the limelight for anything, even though he always deserved it.”

Ken’s commitment was total, and he expected the same from others. Ken believed that constant vigilance was crucial to longterm success. He never allowed people to rest on their victories, because he worried that while they celebrated, the next defeat could sneak up on them.

This was true even on the night the legislature passed the Racial Justice Act, a surprise victory achieved only minutes before the Senate’s adjournment. CDPL’s Board President, Jay Ferguson, had worked with Ken to lobby for the law. They stayed up late that night, watching in astonishment as a last-minute victory was snatched from the jaws of defeat.

“Of course, we were all ecstatic,” Jay remembers. “We were all wearing these blue and white buttons that said ‘Support the Racial Justice Act.’ As we were walking out, I took off my button and made a grand gesture of throwing it in the trash because we didn’t need it anymore. Ken, without any hesitation, dug in the trash, took it out and said, ‘This isn’t over. We may need these again.’ It’s that level of thinking — many moves ahead — that makes him such a great advocate.”

Even in his last weeks in the office, Ken stayed in character. He continued pitching ideas for ambitious new impact litigation projects. He continued poring over every report and national news story on the death penalty. And he spent days preparing a clemency petition for a death row inmate who wasn’t even his client. Ken went to visit the man at Central Prison and was moved to tears by his efforts to redeem his life, even within the confines of death row.

As 2017 begins, Ken is no longer in his office at CDPL. But he is far from gone. He is still representing some of his clients and working on lethal injection and RJA litigation. And we have no doubt he’ll still be reading the news, poring over statistical reports on the death penalty, and plotting. We expect he’ll be calling us any minute with his next idea.

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