North Carolina

North Carolina

Wake County, North Carolina Imposes First Death Sentence in More Than a Decade

For the first time in more than a decade, a jury in Wake County, North Carolina has sentenced a defendant to death. On March 4, 2019, a capital sentencing jury voted to impose the death penalty upon Seaga Edward Gillard, convicted of the double murder of a pregnant prostitute and her boyfriend, who was assisting her in her business. It was the county’s tenth death-penalty trial since 2008, but juries had rejected a death sentence in each of the previous nine cases. Prosecutors portrayed the Caribbean-born Gillard as a man who preyed on sex workers and told the jury that the case was about securing “maximum justice.”

The sentence bucks a trend in North Carolina, where the use of the death penalty has declined significantly over the last decade.  Just 14 death sentences have been imposed in the state from 2009-2018 ­– more than a 90% decline off the peak of 241 death sentences imposed from 1991-2000 – and North Carolina has not carried out an execution since 2006. However, Wake County has continued to be an outlier in the state. The ten Wake County prisoners on North Carolina's death row at the end of 2012 placed the county among the 2% of counties that accounted for 56% of all prisoners on U.S. death rows. Gretchen Engel, executive director of North Carolina’s Center for Death Penalty Litigation criticized the prosecution as wasteful and discriminatory. “Since taking over as Wake district attorney, Lorrin Freeman has pursued the death penalty more than any other prosecutor in North Carolina, costing taxpayers millions of dollars,” Engel said. “That is a poor investment, even in this case.”

Wake County has had four capital trials since Freeman’s election in 2014, with another capital case in jury selection. Eight of the ten prisoners on the county’s death row are Black, one is Latino, and just one is white, and eight of the ten defendants tried capitally since 2008 have been Black. “All it shows is that, if you try ten death penalty cases in a row and exclude from the jury all the people who oppose the death penalty, you can find a jury that will sentence a person to death despite the death penalty's documented unfairness,” Engel said. Although Engel said Gillard committed a serious crime for which he should be punished, she questioned whether his crime was “the worst of the worst.” In March 2016, Wake County jurors sentenced Nathan Holden to life for the double-murder of his ex-wife's parents and attempted murder of his ex-wife. In January 2018, in a crime Freeman had called “everybody’s worst nightmare,” a jury also sentenced Donovan Jevonte Richardson to two life sentences for a home break-in that ended in a double murder. “Wake County jurors have refused to impose the death penalty in other double homicide cases and even in a case in which the defendant was convicted of murdering five people,” Engel said. “All today's verdict shows is what we already knew: That the death penalty is imposed arbitrarily, and disproportionately on black men.”

Friend-of-the-Court Briefs Challenge Systemic Injustices in North Carolina Death Penalty 

Two amicus curiae briefs filed in the Racial Justice Act appeal of North Carolina death-row prisoner Rayford Burke (pictured) are asking the North Carolina Supreme Court to redress systemic problems in North Carolina’s administration of its death penalty. One brief, filed by the New York-based NAACP Legal Defense and Educational Fund (LDF), urges the court to provide Burke “the opportunity to prove that racial bias impermissibly influenced jury selection and infected his death sentence.” A second brief, filed by the Promise of Justice Initiative and 12 former judges, prosecutors, and law enforcement officials from North Carolina, asks the court to declare the state’s death penalty unconstitutional.  

Burke was convicted and sentenced to death for the 1992 murder of a man who he said had testified falsely against him in a prior case. He had sought review of his death sentence under North Carolina’s Racial Justice Act (RJA), enacted in 2009, which permitted prisoners to challenge their death sentences based on statistical evidence of racial discrimination. However, before a hearing was held on Burke’s Racial Justice Act claim, Cumberland County Superior Court Judge Gregory Weeks conducted an extensive evidentiary hearing in the case of Marcus Robinson and granted Robinson relief. In a 167-page opinion, Judge Weeks reviewed an “exhaustive study” of North Carolina prosecutors’ strikes and acceptances of more than 7,400 jurors in 173 North Carolina capital murder trials between 1990 and 2010 and found “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.” Weeks wrote that prosecutors struck black jurors at more than twice the rate of all other jurors, with “remarkable consistency” in strike rates in every county and across the entire period of time studied. Race, he said, “was a materially, practically and statistically significant factor in decisions to exercise peremptory challenges during jury selection by prosecutors when seeking to impose death sentences in capital cases” and he concluded that the strikes were intentionally undertaken on the basis of race. 

The legislature responded by repealing the RJA in 2013. Although four death-row prisoners had received sentence reductions prior to repeal, Burke’s claim had not yet been heard in court and his trial court ruled that the repeal had extinguished any right he had to a hearing. The state courts also overturned the grants of relief to the four prisoners. In March 2018, the state supreme court announced that it would hear RJA appeals from those prisoners, as well as from Burke and another prisoner whose RJA claim had also been filed but not heard. 

The LDF brief sets forth evidence that prosecutors discriminated in Burke’s case, including that prosecutors struck all African-American prospective jurors, resulting in an all-white jury, and called Burke “a big black bull” during the trial. It also catalogues what it describes as “a long and tragic history of entrenched racial discrimination in the administration of North Carolina’s death penalty.” In a statement accompanying the filing of the brief, LDF Senior Deputy Director of Litigation Jin Hee Lee said: “Allowing racial bias in Mr. Burke’s case to go unchallenged would be tantamount to condoning racial bias in the administration of justice. The Court must affirm its unwavering commitment to fundamental fairness and racial equality by affording Mr. Burke the opportunity to prove that discrimination tainted his death sentence,” said. 

The Promise of Justice Initiative brief, joined by the former judges, prosecutors, and law enforcement personnel, takes an even broader view, calling on the court to strike down North Carolina’s death penalty as unconstitutional. “The time has come to consider whether the system of capital punishment that currently operates in North Carolina violates the evolving standards of decency,” the brief states. Citing evidence that, in North Carolina, no one has been executed since 2006 and the state has averaged fewer than one new death sentence per year over the last seven years, the brief argues that “it is now beyond dispute that use of the death penalty is unusual.” It also points to recent court decisions striking down the death penalty in other states, including Delaware in 2016 and Washington in 2018. “Courts have recognized that the penalty is corrupted by arbitrariness, plagued by error and discrimination, and unsupported by evidence that it deters,” it says.  

42 Years After Death Sentence, Federal Appeals Court Says Charles Ray Finch ‘Actually Innocent’

A federal appeals court has found 80-year-old Charles Ray Finch (pictured) “actually innocent” of the murder for which he was convicted and sentenced to death in North Carolina 42 years ago. The pronouncement came in a unanimous ruling issued by a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit on January 25, 2019. In that decision, Chief Judge Roger L. Gregory wrote that “Finch has overcome the exacting standard for actual innocence through sufficiently alleging and providing new evidence of a constitutional violation and through demonstrating that the totality of the evidence, both old and new, would likely fail to convince any reasonable juror of his guilt beyond a reasonable doubt.” The U.S. Supreme Court has never recognized innocence alone as grounds to overturn a conviction, so the appeals court could not set Finch free. Instead, the panel reversed a lower court’s denial of relief and sent the case back for adjudication of constitutional violations relating to Finch’s innocence claim. Jim Coleman, Finch’s lawyer and the co-director of the Duke Wrongful Convictions Clinic, said he now hopes to convince North Carolina Attorney General Josh Stein to “remedy the miscarriage of justice in joining us in a motion to overturn Ray’s conviction and release him without any further proceedings in court.”

Finch was convicted and sentenced to death in 1976 for the killing of Richard “Shadow” Holloman during a failed robbery attempt, but he has consistently maintained his innocence. In 1977, the North Carolina Supreme Court reduced his sentence to life in prison after the U.S. Supreme Court had declared the state’s then-mandatory death penalty law unconstitutional. The Fourth Circuit identified significant problems with the evidence used to convict Finch. He was subjected to “suggestive lineups,” in which he was the only suspect dressed in a three-quarter length jacket, the same style of clothing that the eyewitness, Lester Floyd Jones, said the perpetrator was wearing. Such lineups have since been declared unconstitutional. “These procedural issues support Finch’s allegations of constitutional error that he was misidentified by Jones,” Judge Gregory wrote. “No reasonable juror would likely find Finch guilty beyond a reasonable doubt if it knew the high likelihood that he was misidentified by Jones both outside and inside the courtroom as a murder suspect because of the impermissibly suggestive lineups.” The court also noted that Jones, who the court said “had cognitive issues, struggled with alcoholism and had issues with short-term memory recall,” told police that the killer was armed with a sawed-off shotgun and had never mentioned to the police that the shooter had any facial hair. At the time Holloman was killed, Finch had a long beard and distinctive sideburns. A new review of the autopsy evidence decades after the crime disclosed that Holloman had been killed with a pistol, not a shotgun and new ballistics evidence contradicted prosecution claims that the shells found at the crime scene matched a shotgun shell found in Finch’s car. Other witnesses also indicated they had been pressured into providing testimony implicating Finch. “This new evidence,” the court said, “not only undercuts the state’s physical evidence, but it also discredits the reliability of Jones.”

Record Lows Set Across the U.S. For Death Sentences Imposed in 2018

2018 was a record-low year for death-penalty usage in the United States, as nineteen death-penalty states set or matched records for the fewest new death sentences imposed in the modern history of U.S. capital punishment. (Click on map to enlarge.) Thirty-six U.S. states—including seventeen that authorized capital punishment in 2018—did not impose any death sentences in 2018, while California and Pennsylvania, which collectively account for nearly one-third of the nation’s death-row population, imposed record lows. Every western state except Arizona set or tied a record low, and Arizona, which imposed two new death sentences, was just one above its record low. Several southern states that were once among the heaviest users of capital punishment have now gone years without imposing any new death sentences.

For the first time in its modern history, North Carolina has gone two consecutive years without a death sentence, and it has imposed one new death sentence in the past four years. Only three capital trials took place in the state in 2018, and jurors rejected the death penalty in each. Gretchen Engel, executive director of North Carolina’s Center for Death Penalty Litigation, said, "Jurors are turning away from the death penalty and, in response to less favorable jury pools, prosecutors are seeking the death penalty less. And so, this trend away from the death penalty is really being led by citizens who've been summoned for jury duty." In Wake County (Raleigh), one of the 2% of U.S. counties that was responsible for a majority of death-row prisoners as of 2013, the last nine capital trials—including one in 2018—have resulted in life sentences. According to the North Carolina Office of Indigent Defense Services, taxpayers would have saved $2.4 million if prosecutors had not sought the death penalty in those cases. For the seventh consecutive year, Virginia did not sentence anyone to death in 2018. Though second only to Texas in the number of executions, Virginia has seen a dramatic decline in death sentences since establishing regional capital defender offices to provide quality representation to capital defendants. Georgia and South Carolina each marked four years with no new death sentences, a change that can also be attributed, at least in part, to improved representation.

Two of the states with the nation’s largest death rows, California and Pennsylvania, had historically low numbers of death sentences in 2018. California imposed only five death sentences, its fewest since reinstating the death penalty in 1978 and 38 fewer than its peak of 43 in 1999. Pennsylvania imposed a single death sentence for only the second time in the modern era. The previous year in which only one sentence was imposed was 2016. Neither state has carried out an execution in more than a decade, but California has the largest death row in the U.S., with 740 prisoners, and Pennsylvania has the fifth-largest, with 160.

Following Washington Death Penalty Abolition, Op-eds Encourage Other States to Follow Suit

Following the Washington Supreme Court's October 11, 2018 decision declaring the state's death penalty unconstitutional, news outlets have questioned what comes next. Op-ed writers in North Carolina, Texas, and California have responded, urging their states to reconsider their capital punishment laws. The Washington court cited racial bias, "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as reasons why it struck down the death penalty. In a guest column in the Sacramento Bee, University of California Berkeley School of Law Dean Erwin Chemerinsky wrote, "California’s death penalty suffers the same flaws and likewise should be struck down." Similarly, Kristin Collins, Associate Director of Public Information at the Center for Death Penalty Litigation, wrote in a commentary for the North Carolina blog, The Progressive Pulse, "[i]f those are reasons to outlaw the death penalty, then it is surely time for the North Carolina death penalty to go." Writing in the Austin American-Statesman, University of Texas sociology professor William R. Kelly observed: "In light of the ever-present potential for error and bias, the absence of a deterrent effect and the extraordinary cost to prosecute, appeal and execute someone, we are left with the basic question: Is the death penalty worth it? It’s a question more states ought to ask."

Collins and Chemerinsky pointed to systemic problems in their respective states that they say provide reasons to repeal the death penalty or declare their capital punishment statutes unconstitutional. Collins said a September 2018 study by the Center for Death Penalty Litigation revealed that "most of the people on N.C. death row are only there because they had the bad luck to be tried under outdated laws, before there were basic legal protections to ensure fairness at their trials." "Had they been tried under modern laws," she wrote, "most wouldn’t be on death row today." Chemerinsky highlighted the lengthy delays in California's death-penalty system and the large body of evidence showing that the state's death penalty is discriminatorily applied. Quoting federal Judge Cormac Carney's summary of the state of California's death row, he wrote: "Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death." These types of problems "and the fact that the death penalty is extraordinarily expensive and does not do much to deter violent crime," Professor Kelly wrote, "may help propel other states to abolish it."

73% of North Carolina's Death Row Sentenced Under Obsolete Laws, New Report Says

Most of the 142 prisoners on North Carolina’s death row were convicted under obsolete and outdated death-penalty laws and would not have been sentenced to death if tried today, according to a new report by the Center for Death Penalty Litigation. The report by the Durham-based defense organization, titled Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row, says that nearly three-quarters of the prisoners on the nation’s sixth-largest death row were tried and sentenced before the state enacted significant reforms in prosecution, defense, and trial practices. “[I]f these people on death row had been tried under modern laws, most of them would be serving life without parole sentences instead of facing execution,” said Gretchen Engel, the Center’s executive director.

Seventy-three percent of the men and women on North Carolina’s death row (103 prisoners) were tried and sentenced to death before July 2001, when North Carolina repealed a 1990s-era law that had required prosecutors to pursue the death penalty in every aggravated murder case, irrespective of reasons that might call for mercy, and created a statewide office to represent indigent defendants in capital trials and appeals. North Carolina was the only state in the country that denied prosecutors the discretion to decide when to seek the death penalty, and as a result, there were more than fifty capital trials in the state each year, including cases involving defendants who were seriously mentally ill or intellectually disabled or were comparatively minor participants in a murder. Capital trials fell to an average of sixteen per year in the decade following the change. The creation of the capital defender office that same year dramatically improved the quality of representation, and further reduced the number of cases in which death verdicts were returned. Since then, North Carolina has enacted additional reforms aimed at ensuring fairer trials in capital cases. In October 2004, the state became the first in the country to require prosecutors to make all witness files, police reports, other investigative records, and physical evidence available to capital defendants prior to trial. In 2008, it adopted a series of eyewitness identification and interrogation protocols designed to prevent mistaken identifications and false or coerced confessions.

The report states that during the 1990s, before the reforms were enacted, “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.” “Today,” Engel said, “we are living in a different world .... Public support for the death penalty is at a 50-year low, and North Carolina has stopped executing people. Juries now see life without parole as a harsh and adequate punishment for the worst crimes.” That, however, has produced its own historical inequities. In terms of moral culpability, Engel said, the defendants facing trial in 1995 and 2015 “are equal. And yet, one of them is being subjected to execution and other is not and that is an unfairness that as a fair society, we can not tolerate.”

North Carolina Bar Files Ethics Complaint Against Lawyer Accused of Fleecing Intellectually Disabled Death-Row Exonerees

Florida lawyer Patrick Megaro is facing an official complaint by the North Carolina State Bar for allegedly defrauding death-row exonerees Henry McCollum (pictured, right) and Leon Brown (pictured, left), and taking a third of the compensation granted to the two men. Half-brothers McCollum and Brown were exonerated in 2014 after spending 30 years in prison, some on death row, for the rape and murder of an 11-year-old girl. Both men are intellectually disabled, a factor that made them more vulnerable to wrongful conviction, and, the Bar complaint says, vulnerable to exploitation by Megaro. After McCollum and Brown were exonerated and formally pardoned by Governor Pat McCrory, they sought compensation from North Carolina for their wrongful convictions and incarceration. Megaro became McCollum's and Brown's lawyer in March 2015, after two women who claimed to be advocating on behalf of the brothers persuaded them to fire the lawyers who had been representing them in their compensation action and to hire Megaro's firm instead. The brothers received compensation awards of $750,000, but Megaro—who the complaint says did virtually no work on their exonerations or compensation cases—took $250,000 in fees from each man. Within seven months, McCollum was out of money and taking out high-interest loans that Megaro arranged and approved. Megaro also negotiated a proposed settlement of the brothers' wrongful prosecution lawsuit in which he was to receive $400,000 of a $1 million payment. The complaint alleges that Megaro committed 16 ethical violations, including lying to judges, double-billing his clients, and engaging in fraud by signing for loans with a 42% interest rate. It also alleges that he violated his duty to act competently when he failed to determine the police department's insurance policy limits before agreeing to settle the brothers' wrongful prosecution case. McCollum expressed his disappointment with Megaro, saying, "He took money that he should have never took. I could have that money right now." According to the Marshall Project, "Wednesday’s complaint begins a legal process similar to a civil lawsuit that will likely culminate in a public trial of the charges, with three members of the state’s Disciplinary Hearing Commission sitting as judge and jury." Megaro—whose law partner derided the disciplinary action as "a political prosecution"—could face disbarment if he is found guilty.

Jurors in Henry McCollum Case Reflect on How They Sentenced an Innocent Man to Death

Four years after intellectually disabled brothers Henry McCollum and Leon Brown were exonerated of the 1983 rape and murder of an 11-year-old girl in North Carolina, jurors in McCollum's case met with members of his defense team and reflected on how they sentenced an innocent man to death. In a September 6 op-ed in the Raleigh News & Observer, Kristin Collins—Associate Director of Public Information for North Carolina’s Center for Death Penalty Litigation and a former News & Observer reporter—writes that the jurors’ responses varied from relief, to shame, to fear of God’s wrath, to tears at he pain of even thinking about the case. “All [the jurors] were denied the information they needed to reach a fair verdict,” Collins observed. “I’ve been trying to figure out, where did we go wrong?,” one juror told Collins. “I feel like we got duped by the system,” he said. McCollum and Brown—age 19 and 15, respectively, at the time Sabrina Buie was raped and murdered—were convicted and condemned for her death in 1984. The main evidence against them were coerced confessions obtained during prolonged interrogations. Brown spent eight years on death row before the Supreme Court declared the death penalty unconstitutional for children under age 16, and his sentence was reduced to life imprisonment. But McCollum remained on North Carolina’s death row for more than 30 years, having lost of all his court appeals, until DNA evidence uncovered by the North Carolina Innocence Inquiry Commission disclosed that neither he nor Brown had raped and killed the young girl. At the time of his release in 2014, McCollum was North Carolina’s longest-serving death-row prisoner. The op-ed sheds light on how the gruesome facts of the case produced an unjust verdict and death sentence. Jurors recalled the graphic crime-scene photos and McCollum’s confession, which it turns out had been written by the police. “Even McCollum’s defense attorneys admitted his guilt, believing the jury would spare him if he accepted responsibility,” Collins writes. One juror believed that if McCollum was on trial, he’d probably done it: “his biggest regret,” Collins wrote, “is that he trusted prosecutors to tell the truth.” And what the jury did not know was of overwhelming importance. “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,” Collins writes. “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.” Collins reports that the jurors “remembered McCollum at the defense table, silent and unresponsive, like a confused and broken child.” One seemed especially remorseful. “I should have followed my conscience,” she said. “I hope he can forgive me.”

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