As North Carolina Juries Reject Death Penalty, Legislators Accused of Playing Politics With Executions
For the third time since 2012, no one in North Carolina was sentenced to death in 2017. All four trials in 2017 in which prosecutors sought a death sentence ended with a jury either acquitting the defendant of capital murder or returning a lesser sentence. Despite the historical decline in death sentencing in North Carolina, two state legislative leaders, in a letter derided by editorial boards as political posturing, used the recent killing of three prison guards to demand that Governor Roy Cooper and Attorney General Josh Stein "restart" executions in the state. House Speaker Tim Moore (pictured, left) and Senate President pro-tem Phil Berger (pictured, right), claimed that Cooper’s and Stein’s purported "indifference and failure to fight the moratorium [on executions in North Carolina] endangers the lives of prison employees in close proximity to hardened murderers with nothing left to lose, who see no possibility they will face execution for killing again." Editorial reaction to the legislators' comments was swift and sharp. The Greensboro News and Record called the accusation in the letter "a vulgar insinuation unsupported by facts." The Charlotte Observer editorialized that the legislative leaders were "seeking to politicize the tragedy rather than effectively remedy the conditions that make the state’s prisons so dangerous for correctional officers." Their actions, the paper said, were akin to "creating and tolerating the conditions that allow inmates to kill prison workers, then blaming the officers’ deaths on the governor whose administration is trying to actually address the problem." Raleigh's News and Observer editorial board called Moore and Berger's letter "absurd," "shameless," and a "political gambit" that was "demagogu[ing] the death penalty." It wrote, "[n]either the governor nor the AG can restart the death penalty, which is under legal challenge on a multitude of grounds, as it is in many states. That's why no one has been put to death by the state in more than 10 years. ... [A]s long as legal challenges are pending, the death penalty can't be restarted as if the task were just like turning on a light switch." A Capitol Broadcasting Company editorial called the legislators' charges "[c]ynical and shameful" "pathetic," and "political posturing." The company said, "Regardless of how anybody feels about capital punishment ... , it will do NOTHING to help make our prisons any more secure or help to make it safer for guards and other personnel who have to work inside them." Gretchen M. Engel, executive director of the Center for Death Penalty Litigation, provided context for North Carolina's use of the death penalty, noting that "[m]ore than three-quarters of death row inmates were sentenced at least 15 years ago, in an era when North Carolina juries sentenced to death dozens of people a year under less-enlightened laws. ... Defendants on trial for their lives did not have basic protections such as qualified attorneys or laws requiring that confessions be recorded." She credits high-profile exonerations, like that of Henry McCollum, for contributing to the reduction in death sentences in the state. “There are some elected officials in North Carolina who still like to talk about the death penalty for political purposes, but that’s about the only way it’s being used anymore,” Engel said. Rob Schofield of NC Policy Watch said, "Berger and Moore would do much more for the safety and security of prison personnel if they would invest adequate resources in our corrections system."
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Lawyer Says North Carolina Client's Brutally Traumatic Childhood Characteristic of Many on Death Row
The life of Terry Ball (pictured) "is worth remembering," says his appeal lawyer, Elizabeth Hambourger. She says Ball's life, which ended October 18 when he died of natural causes on North Carolina's death row, "hold[s] keys to understanding the origins of crime and our shared humanity with people labeled the worst of the worst." His "story of childhood trauma and brain damage" is characteristic of the backgrounds of many on death row, Hambourger says, but "was barely told at trial." Ball was convicted and sentenced to death for the cocaine-induced murder of his pastor's wife and attempted murder of his pastor in 1993, which occurred during a relapse of Ball's cocaine addition. His road to death row began when he was hit by a car at age 10, suffering injuries that kept him hospitalized for eight weeks. The head trauma changed his personality, but the severity of his brain damage was not detected at the time. He and a girlfriend ran away from home when he was 13, during which time he was abducted by a serial rapist, Jerry Wood, and repeatedly raped, kept high on drugs, and forced to steal, until he was able to escape nearly a month later. Rather than receiving mental-health services as a victim of sexual assault, Ball was adjudicated delinquent for running away and was incarcerated in a juvenile detention center, where a state psychiatrist questioned his sexual identity, writing that his month-long "association" with his rapist "raised the question of possible homosexuality." Wood, who was never prosecuted for raping and abducting Ball, was later convicted of raping two other children and sentenced to 45 years in jail. Ball then turned to drugs as self-medication for his trauma. He later enlisted in, but was swiftly discharged from, the Navy and subsequently committed several violent drug-motivated robberies and was jailed for nearly killing two people. After his release from prison, he checked himself in to three treatment centers over the course of three years, all in an unsuccessful effort to overcome his addiction to crack cocaine. Hambourger says that Ball's story is a reminder that "[t]his is who we sentence to death: the most damaged, the most abused; traumatized children who grow into adults without learning how to cope with their fear and anger." In North Carolina, death sentences have fallen from an average of 28 per year in the five years spanning 1992-1996 to an average of one per year between 2012-2016. Hambourger believes that, had Ball's trial been held today, "this mitigating evidence would have been thoroughly presented and likely would have persuaded a jury to sentence him to life without parole instead of death."
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Federal Court Rules to Protect the Interest of Incompetent North Carolina Death-Row Exoneree
A federal judge has voided a contract that had provided Orlando-based attorney Patrick Megaro hundreds of thousands of dollars of compensation at the expense of Henry McCollum (pictured left, with his brother Leon Brown), an intellectually disabled former death-row prisoner who was exonerated in 2014 after DNA testing by the North Carolina Innocence Inquiry Commission showed that he had not committed the brutal rape and murder of a young girl for which he had been wrongly convicted and condemned. McCollum and Brown—who both have IQs measured in the 50s and 60s—had been convicted in 1983 based on coerced false confessions that the brothers (aged 19 and 15 at the time) provided to interrogating officers. At the time of his exoneration, McCollum had spent 30 years on death row and was the state's longest serving death-row prisoner. 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 efforts to obtain compensation and to hire Megaro's firm. McCollum was awarded $750,000 in compensation from North Carolina in October 2015, at least half of which appears to have been paid to Megaro. Within seven months, McCollum was out of money and taking out high-interest loans that had been arranged and approved by Megaro. 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 to the brothers. Defense lawyer Ken Rose, who represented McCollum for 20 years and helped win McCollum's release from prison, provided testimony that two mental experts had previously found that McCollum was "not competent to provide a confession" and that McCollum remained "vulnerable to manipulation and control by others." After hearing additional evidence from experts and other witnesses, U.S. District Court Judge Terrence Boyle determined that, as a result of his intellectual disability, McCollum lacked knowledge and understanding of financial issues, "remains easily manipulated," and was "unable to make important decisions about his person and property." As a result, the court voided the contract between McCollum and Megano, including the fee arrangements. Raymond Tarlton, whom Judge Boyle appointed to serve as McCollum's guardian ad litem, said the decision "made clear that the same disabilities that led to Henry McCollum giving a false confession in 1983 made him vulnerable to be manipulated and controlled after release.” The court also has appointed a guardian to protect the interests of Leon Brown. Judge Boyle ordered further briefing pending receipt of the guardian's report to assist in determining the status of the contract between Megaro and Brown.
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North Carolina Decline in Death Verdicts Highlights Penalty's Cost, Ineffectiveness
Death sentences are sharply down in North Carolina and the combination of cost concerns and more effective representation have made them progressively rare. In an interview with The Hickory Daily Record, David Learner, District Attorney for the 25th prosecutorial district encompassing Catawba, Caldwell, and Burke counties, who has personally tried two death-eligible cases, says “It’s extraordinarily difficult to get a death verdict. ... [Y]ou come to realize it’s very difficult for a jury seated in that box to say ‘yes, you need to kill that man.'” Murder cases in which the death penalty may be sought are defended by five regional capital defender offices, which have a record of effectively investigating cases and negotiating non-capital outcomes. According to statistics maintained by the North Carolina Office of Indigent Defense Services (NCIDS), from 2007 to 2015, nearly 60% of capital prosecutions ended with non-capital convictions for second-degree murder or less, and only 2.2 percent of all capital cases in the state resulted in death sentences. In Wake County, juries have returned life verdicts in eight consecutive capital sentencing trials. When a case is charged, Assistant Capital Defender Victoria James told the paper, "you know what happened, but you don’t know why it happened.... And that’s where you get into the client’s mental health, provocation, and many times, those are the kind of cases you hope to be able to resolve without going to trial.” With representation by the regional capital defenders, there have been only 5 death sentences in the state over the past five years, down from 140 death sentences imposed 20 years ago in the five years spanning 1992-1996. No one has been executed in the state since 2006 and most of the 262 prisoners who the North Carolina Department of Public Safety (NCDPS) says have been removed from death row have been resentenced to life in prison without the possibility of parole after their convictions or death sentences were overturned. Although 98% of North Carolina cases that start out as capital do not end up with a death sentence, pursuing the death penalty has had significant financial consequences. NCIDS reports that, in fiscal years 2007 to 2015, the average costs were 4.4 times higher in a capital case ($93,231 per case) than when prosecutors did not pursue the death penalty ($21,022 per case). A Duke University study in 2009 concluded that repeal of the death penalty would have produced approximately $10.8 million in annual savings from reduced expenditures on murder cases. Between 2008 and 2013, the percentage of cases in which prosecutors have sought the death penalty has fallen from 28.1% to 11%, and budget cuts to the North Carolina Attorney General's office have shifted to local district attorneys the cost of criminal appeals that used to be handled by state prosecutors. “This thing about, ‘we need to execute him,’ the actual mechanics of the court system, it’s not happening,” Learner said. “Realizing the reality of the death penalty in North Carolina through the court system, it’s really about worthless.” Looking to the future, he said, “I wouldn’t be surprised if North Carolina eventually had a moratorium or completely dismantled the death penalty.”
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Three Years Later, Report Explores Lessons From Two North Carolina Death-Penalty Exonerations
On the third anniversary of their groundbreaking exoneration, a new report by the Center for Death Penalty Litigation (CDPL) reviews in-depth the long path from wrongful convictions and death sentences to freedom traveled by former North Carolina death-row prisoners Henry McCollum and Leon Brown. By the time DNA evidence exonerated the brothers of the 1983 rape and murder of 11-year-old Sabrina Buie, McCollum had spent 30 years on death row and Brown was serving a life sentence for Buie's rape, after his murder conviction and death sentence had been overturned. Justice Antonin Scalia had singled out the case as epitomizing why there should be a death penalty. According to the report, if not for a single cigarette butt, “Henry and Leon would likely have remained in prison for the rest of their lives. Henry might have been executed.” Although no physical evidence connected the brothers to the murder, the 19-year-old McCollum had signed a written confession that asserted he and three others had raped Buie and murdered her by stuffing her panties down her throat. His younger brother, Leon Brown, then 15 years old, also confessed to the crime. However, the CDPL report, Saved From Execution: The Unlikely Exoneration of Henry McCollum, notes that the two intellectually disabled teenagers had been "naive, powerless, and intimidated by a cadre of law enforcement officers ... into signing false confessions. Every gory detail in those confessions," the report recounts, "was provided by investigators ..., but law enforcement never followed up on clues that might have led to the real killer. An overzealous prosecutor with a flair for courtroom theatrics hyped the manufactured evidence. And the state illegally withheld facts that might have allowed Henry and Leon’s attorneys to prove their innocence." The CDPL represented McCollum for two decades. Gretchen Engel, the Center's Executive Director, said the case “shows us the power that law enforcement and prosecutors have in our system, and how that power can be abused. It shows us how hard it is to uncover a wrongful conviction. It shows us that even cases we think are airtight can get the facts entirely wrong.” In 2005, testing on the cigarette butt had produced DNA that did not match either McCollum or Brown, but their convictions remained unaffected. Then, in 2009, Brown—having exhausted his appeals in his non-capital case—sought review from the North Carolina Innocence Inquiry Commission, one of the few such commissions in existence in the country. In 2014, the Inquiry Commission ordered more advanced DNA testing of the cigarette butt, and the results matched another man who had lived around the corner from the Buies in 1983 and who raped and killed another young woman later that year. In 2015, Gov. Pat McCrory granted McCollum and Brown pardons based on innocence. Since being freed from 30 years of incarceration (including 10 years in solitary confinement and numerous sexual assaults at the hands of other prisoners), Brown has been diagnosed with schizophrenia and bipolar disorder and repeatedly hospitalized for mental health problems, including hallucinations and depression.
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Jury in Wake County, North Carolina Returns 8th Consecutive Life Verdict in a Capital Trial
A Wake County, North Carolina jury voted to spare Nathan Holden's life on March 3, marking the eighth consecutive capital sentencing trial in the county in which juries had opted to sentence a defendant to life without parole instead of the death penalty. No jury in Wake County has imposed a death sentence since 2007. Prosecutors had sought the death penalty against Holden for murdering his ex-wife's parents and attempting to kill her. The jury convicted Holden of two counts of first-degree murder but, after being presented evidence of 39 mitigating circumstances—including that he suffered from Posttraumatic Stress Disorder as a result of chronic childhood abuse—jurors chose to sentence him to life. Although the ten Wake County prisoners on North Carolina's death row placed the county among the 2% of counties that accounted for 56% of all prisoners on U.S. death rows as of 2013, Wake District Attorney Lorrin Freeman said after jurors returned the sixth consecutive life sentence in February 2016 that it might be time to rethink whether to pursue the death penalty in future cases. Wake County's experience has been typical of North Carolina, and the nation as a whole. The state has averaged fewer than two death sentences per year since 2011, with no new death sentences in 2012 and 2015. In 2016, only one of the five capital trials in the state resulted in a death sentence. By contrast, the state sent between 20 to 30 people per year to death row in the 1990s. The United States has seen a similar drop in death sentences, imposing a total of only 30 new death sentences last year, down from a peak of 315 in 1996 (see graph, click to enlarge). North Carolina's last execution was in 2006.
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At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental Illness
Bills to exempt individuals with severe mental illness from facing the death penalty are expected in at least seven states in 2017. Legislators in Idaho, Indiana, North Carolina, Ohio, South Dakota, Tennessee, and Virginia have either introduced such legislation or announced that they plan to. Six of the seven states have sponsorship from Republican legislators, indicating bipartisan support for the measures. The author of Indiana's bill, Sen. James Merritt (pictured, R-Indianapolis), says he supports the death penalty but draws a “bright line of distinction” around executing people with severe mental illness. There are some variations in the bills, but each creates a process in which a determination is made—usually by a judge—whether the defendant qualifies for the exemption. Some bills define serious mental illness by particular diagnoses, others by behavioral impairments in functioning. Qualifying diagnoses under the exemption typically included Schizophrenia and Schizoaffective Disorder, Bipolar Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, and Traumatic Brain Injury. Defendants found to be suffering from severe mental illness would not be exempted from criminal responsibility, but would be subject to a maximum sentence of life without parole. Numerous mental health organizations have called for an exemption to the death penalty for individuals with severe mental illness. The measures have the support of the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness (NAMI), Mental Health America (MHA), and state-level coalitions of mental health advocates. In December 2016, the American Bar Association held a national summit and issued a white paper in support of a severe mental illness exemption. Several religious leaders also have spoken out in favor of the exemption. Richard Cizik, President of the New Evangelical Partnership for the Common Good, wrote an op-ed for The Virginian-Pilot in late January saying, "Their conditions affect many aspects of the legal process, impacting their appearance in court, the jury’s perception of ticks or socially inappropriate interactions, the defendant’s presentation of facts, and even their own admission of guilt. Indeed, studies have shown that defendants with severe mental illness are more likely to give a false confession. ...As a faith leader, I am compelled to advocate for compassionate and fair laws such as this." Glenn Tebbe, executive director of the Indiana Catholic Conference, called the bill "prudent and just."
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