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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.”


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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.  


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NEW POLL—Only 25% of North Carolina Voters Favor the Death Penalty as Punishment for Murder

According to new polling results, support for capital punishment in North Carolina has fallen dramatically, with only 25% of voters saying they prefer the death penalty for people convicted of first-degree murder. The poll, conducted the last week of January 2019 by Public Policy Polling, found that nearly three quarters of North Carolina voters rejected capital punishment for people convicted of murder, with 35% preferring a combination of life without parole plus a requirement to work and pay restitution; 19% preferring life without parole; 12% favoring a lengthy prison term, plus restitution, with the possibility of parole; and 6% favoring a lengthy prison term, without restitution. When asked whether North Carolina should keep the death penalty or replace it with life without parole, a majority of North Carolina voters (51%) said the state should replace the death penalty, while 44% said the state should keep it. Six percent said they were not sure.

The poll also disclosed that North Carolina voters have serious concerns about the administration of capital punishment in the state. 70% said it was likely that North Carolina has executed an innocent person. 24% said it was unlikely the state had done so. 57% said they believed it is likely that racial bias affects whether a person is sentenced to death and 75% believe defendants should be able to present evidence that racial discrimination affects capital trials. 39% said racial bias was unlikely to have affected sentencing and 18% would deny a defendant the opportunity to present evidence of bias. North Carolina voters also favored efforts to reform the state's death penalty. More than two-thirds (68%) said they favored banning the death penalty for defendants with severe mental illness. 61% favored requiring the courts to reexamine death sentences imposed in North Carolina cases tried before the state enacted a series of reforms designed to protect defendants’ rights, provide more competent representation, and ensure fair trials. Nearly three-quarters of North Carolina’s death row prisoners were sentenced before these reforms.


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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.”


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