NC Lethal Injection Litigation Continues

News Update 05.14.08

North Carolina

The Council of State fired its latest volley this week in the ongoing litigation over North Carolina’s lethal injection protocol. The arguments can be summarized as follows: 1) the inmates cannot appeal the COS’s decision to approve the lethal injection protocol because they are not “persons aggrieved” by the decision; (2) it was not improper for the Attorney General (as the legal representative of one of the parties before the Council) to participate in a meeting of the Council from which the inmates’ attorneys were banned; and (3) it was not improper for individual members of the Council to seek legal advice about matters before the Council in nonpublic forums. The Council’s brief is here.

James Stitt has been found guilty of one count of first-degree murder and one count of second-degree murder. Jurors must now decide whether to sentence him to death or life without the possibility of parole. Arguing for life, Stitt’s attorneys have presented evidence that he has struggled since childhood and was operating in a fantasy world at the time of the killings.

Elsewhere

Two months before his scheduled execution date, the Supreme Court has decided to hear the case of Virginia’s Edward Nathaniel Bell. The Court only agreed to hear the narrow issue of whether AEDPA requires a federal court to defer to a state court ruling, even where the state court did not consider the evidence in question. Bell’s case presents other interesting questions, like whether counsel can be considered constitutionally effective when they present no evidence to the jury in the sentencing phase of a defendant’s trial. More here and here.

Jury Deliberates Guilt in Stitt Case

News Update 05.07.09

North Carolina

In Cumberland County, a jury will soon deliberate whether James Christopher Stitt is guilty of two counts of first-degree murder in the 2005 deaths of his housemates. If found guilty, Stitt will face the death penalty.

Today’s New York Times has “As Executions Resume, So Do Questions About Fairness,” which examines the three exonerations North Carolina has seen in the last six months - Jonathon Hoffman, Edward Chapman, and Bo Jones. A recommended read.

Elsewhere

William Earl Lynd was executed by lethal injection last night in Georgia. Lynd’s execution, which lasted 17 minutes, was the 1100th in the modern era. SCOTUSBlog has the end-phase filings in the case. Lynd is the first person executed since Texas killed Michael Richard on September 25, 2007.

DC sniper John Allen Muhammad has asked prosecutors to help him drop his appeals “so that you can murder this innocent black man.” Which bodes well for his competence to make such a decision.

The Sixth Circuit Court of Appeals ordered that death row inmate Paul House be released or retried within 180 days. The local prosecutor has said that he will retry House, despite evidence that Carolyn Muncie was in fact killed by her husband. Learn more about House’s case here. The District Court ruling is here, and the Sixth Circuit ruling is here.

Death Row Exoneree Bo Jones Speaks

News Update 05.06.08

North Carolina

Levon “Bo” Jones, recently released after serving over a decade for a murder he did not commit, held a press conference yesterday in Raleigh. Jones’ attorneys spoke first. Ernest “Buddy” Conner told those gathered how the police failed to dust for fingerprints at the scene and eventually lost what little physical evidence they gathered. He also spoke of the State’s star witness, Lovely Lorden, who unbeknownst to Jones’ trial attorneys was a paid, professional snitch who changed her story several times before trial. Conner noted that this injustice could have been corrected years earlier had North Carolina state courts bothered to consider Jones’ appeals.

Cassy Stubbs noted that Mr. Jones came within weeks of execution in 1997, his life saved only after attorneys Ken Rose and Mark Kleinschmidt intervened and rescued the case from counsel who missed a critical filing deadline. Jones is the third person exonerated in North Carolina in six months, Stubbs said, and in every case proof of innocence was withheld from the defense. Paid informants like Lovely Lorden are the leading cause of wrongful convictions.

Attorney Brian Stull added that Jones’ life was nearly ended because he lost the lottery of assigned counsel that often puts overworked, underfunded, and unprepared lawyers in charge of capital cases. Stull recognized that North Carolina has made great improvements in the last decade, but noted that many on death row - like Jones - were put there before the reforms were implemented. Studies show that a defendant is three times more likely to be sentenced to death if his victim was white. Where the defendant is black and the victim is white, as in Jones’ case, death is even more likely. The police could have investigated another suspect, George Overton, who owed the victim money, went to the victim’s house at least twice that night, lied to police about his activities, and fled the county the next day. But Overton was white. Stull suggested that cases like Jones’ illustrate the importance of passing the Racial Justice Act, which is before the state legislature this session.

Jones spoke only briefly, saying, “”From the day I was locked up, August 14, 1992, I said I was innocent, until this day…I’ve always been innocent. I hope you all believe the same.” In response to questions from the audience, Jones and his attorneys said that they hope there will be consequences for those responsible for putting him on death row, including the DA who prosecuted him despite evidence of his innocence, the attorneys who failed to seek out that evidence, and the lying witness on whose testimony his conviction was based. This befuddled District Attorney Dewey Hudson, who seeing nothing wrong with robbing a man of over a decade of his life responded, “I did my job…The guy’s won. What’s all this bashing Dewey Hudson about? I’ve done nothing wrong.”

(Photo source. See also reporting from The Progressive Pulse.)

Elsewhere

Cuban President Raul Castro commuted nearly all of that nation’s death sentences to terms of 30 years to life. He declared, “This decision was not undertaken because of pressure, but as a sovereign act in line with the humanitarian and ethical conduct that has characterized the Cuban revolution from the start.”

In Virginia, lawyers for Christopher Scott Emmett have appealed to the US Supreme Court, arguing that the Virginia lethal injection protocol is “unique and uniquely dangerous…far more dangerous” than the protocol approved in Baze. The State’s response is here.

Meanwhile in Georgia, a federal judge has found that state’s lethal injection protocol to be constitutional. After being denied clemency by the governor and the Board of Pardons and Paroles, William Earl Lynd is scheduled to be executed at 7 PM tonight.

Execution dates have also been set for Mississippi’s Earl Wesley Berry, Texas’ Jose Medellin, and a number of other inmates.

In Missouri, a new study reveals that race and geography play a significant role in capital sentencing.

After a vicious hacking, DPIC (a wee little non-profit organization) is having to shell out big bucks to beef up security for their site. Pitch in a few duckets to help here.

Levon “Bo” Jones Released from Death Row

For the second time in two months, an innocent man is being released from North Carolina’s death row. Levon “Bo” Jones spent 13 years on death row after being convicted of the 1987 murder of Leamon Grady. Federal judge Terrence Boyle vacated Jones’ conviction and death sentence in 2006 after finding that Jones’ trial attorneys “utterly failed” to investigate the crime.  (Read the Order here.)  Duplin County District Attorney Dewey Hudson, who tried Jones in 1993, vowed to retry the case. This week Hudson was forced to admit that he has no evidence against Jones, and is expected to ask the court to release Jones today.

From his appointment until a month before trial, Jones’ lead counsel - Graham Phillips - did virtually no work on the case. According to the District Court’s opinion, Phillips “interviewed no witnesses, filed no motions, sought no evaluation of Jones, and conducted no mitigation investigation.” Phillips did not even request the second counsel to which Jones was constitutionally entitled. The second lawyer, Charles Henderson, was appointed only upon the request of the District Attorney, less than a month before trial.

There was no physical evidence against Jones, and no eyewitnesses to the shooting. The State’s star witness, Lovely Lorden, was Jones ex-girlfriend. Although counsel’s strategy for the trial was to discredit Lorden’s testimony, they never interviewed her. Had counsel bothered to run a simple criminal record check, they would have discovered that Lorden had a number of convictions relevant to her truthfulness, including fraud and worthless checks. Counsel also failed to obtain all of Lorden’s statements to police, which were inconsistent with one another and with her testimony on the stand. Finally, counsel did not investigate Lorden’s history of mental health problems. Counsel failed to cross-examine Lorden about what she claimed to have seen, instead questioning her mainly about the paternity of her children.

Counsel never bothered to review the District Attorney’s file in the case, which contained evidence pointing to the guilt of another man. Allen Bizzell, who along with George Overton led police to Grady’s body, gave four very different statements to police. At first he said that he and Overton left work at 3 AM to buy beer for their boss from Grady. Then he claimed that Overton left work alone and returned ten minutes later with a six-pack he had stolen from Grady. Next Bizzell claimed that Overton left alone and returned acting strangely and asking Bizzell to tell the police that he had accompanied Overton to Grady’s house. FInally, Bizzell told police that Overton returned to work and told him that Grady had been killed, but suggested that they go to his house and “roll” him before calling the police. Overton, too, told different stories to police. He left town shortly after the murder, but was arrested within a week for rape.

From the District Attorney’s files, counsel could also have learned that Lovely Lorden changed her story about who accompanied Jones to Grady’s house that night. At first she identified Larry Lamb and “Tootie” Matthews as Jones’ accomplices. When it was revealed that “Tootie” had an airtight alibi, Lorden shifted her testimony to blame Tootie’s brother, Ernest Matthews. Across five statements, Lorden also changed her mind about the color of the car Jones was allegedly driving, how many shots were fired, what time the accomplices were picked up, and where else they went that night.

In April, Jones’ attorneys provided the court with an affidavit from Lovely Lorden in which she states, “Much of what I testified to was simply not true.” She further asserts that a detective coached her on what to say at Jones’ trial. Had trial counsel looked in the prosecutor’s file, they would have found an SBI surveillance tape of a conversation between Lovely Lorden and Larry Lamb, in which Lorden stated that the police were hassling her about the Grady murder and that she wanted to come up with a plan to save herself and Lamb. Lamb repeatedly denied any involvement in the murder.

Based on Lorden’s testimony, Larry Lamb is now serving life in prison. Ernest Matthews pleaded guilty to second-degree murder and was released in 2001.

The Governor’s Office paid Lorden $4000 for her testimony. Will it pay Bo Jones for the 13 years she cost him?

Executions - May 2008

6 - William Lynd (GA)

27 - Kevin Green (VA)

Where Do NC Candidates Stand on the Death Penalty?

(This post is an expanded and modified version of last week’s post. Thanks to everyone at BlueNC for their help. Further additions are welcome.)

With an important primary just a week away, here’s a look at how the contenders feel about capital punishment.

In the Democratic NC gubernatorial debate, both candidates said that they support the death penalty if it is applied fairly. Beverly Perdue, unlike Richard Moore, supports a moratorium and further study of the issue. Moore has stated that he “believe[s] that there is Biblical evil that lives among us, and for some crimes you give up the right to be here on Earth with the rest of us.” (source) Perdue has said that she “support[s] capital punishment as an option, but…also favor[s] the current moratorium [then] in place while constitutional issues are being studied.” (source)

According to a questionnaire by the Progressive Democrats, all three Democratic candidates for Lieutenant Governor support a moratorium. Dan Besse advocates a moratorium due to concerns about racial bias and the risk of executing an innocent person. He supports a study into how to make sure that the death penalty is applied fairly and consistently. Hampton Dellinger is concerned that there are effectively two death rows in North Carolina - one containing inmates sentenced before reforms, and one containing those sentenced after. (These reforms include the guarantee of qualified counsel and the assistance of experts in capital cases.) Dellinger believes that no one from the ‘old’ death row should be executed until it has been determined that they would have received the same sentence under the ‘new’ rules. Pat Smathers supports a moratorium due to concern about inmates who were represented by unqualified counsel and affected by racial bias. He believes that the question of abolition should be decided by referendum.

In the Iredell and Alexander County district attorney race, all three candidates have made clear that they plan to aggressively seek the death penalty.

Meanwhile, Durham County district attorney candidate Mitch Garrell has declared his opposition to capital punishment.

Marshall Adame, running for Congress in N.C. District 3, opposes the death penalty in all cases. Over at BlueNC, he posted:

1. Keeping a human being caged until natural death is far greater punishment than killing that person.

2. It cannot be undone in the event of a prosecutional mistake, or misdeed (HAS HAPPENED).

3. The death penalty, as it has been applied in the United States, has been open to far too many mistakes, unequally executed, cruel and unusual, and has almost no sense of Justice to it.

If, in our deepest conscience, we believed, as a country, that the Death penalty was Good and Just, we would not carry it out in such discreet privacy. We would be executing people in public forums.

Killing another human being is a dark deed, even when sacntioned by the State.

I would like to think we had grown beyond our darkest instincts. Collective, or institutional revenge is still revenge….and that has nothering to do with justice.

Robin Anderson, who is running for Commissioner of Labor and would serve on the Council of State (which is charged with approving any death penalty protocol), supports abolishing the death penalty, but believes it is the job of the legislature to do so. She previously represented a death row inmate on appeal. (her website)

Finally, Presidential candidate Barack Obama supports the death penalty only in cases “so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.” He was also instrumental in pushing for criminal justice reforms in Illinois, including the mandatory taping of interrogations and confessions (which just became law in North Carolina this year).

Life Sentence for Neil Sargeant

News Update 04.25.08

North Carolina

In Watauga County, Neil Sargeant has been sentenced to life without parole for the 2005 murder of Appalachian State student Stephen William Harrington. Harrington was bound, suffocated, and set on fire as part of what may have been a drug-related assault. After Sargeant was found guilty of first-degree murder earlier this week, Harrington’s family approached the DA, told him that nothing would bring their son back, and asked him not to proceed with the portion of the trial that could have resulted in a death sentence.

Elsewhere

In Alabama, Daniel Lee Siebert has died on death row of natural causes. (c/o How Appealing)

From Murder Victims’ Families for Human Rights, the story of a former prosecutor and defense attorney whose brother was murdered, and how that experience affected her views on the death penalty.

The New York Times on the cruel and unusual history of the death penalty. The article discusses a number of botched executions, most interestingly the executions of men on whose cases the Supreme Court relied in its recent Baze decision.

The Importance of Being Nerdy

A friend sent me this link, with a note, “Arrr! It be cruel and unusual punishment!”

To which I naturally replied, “Shiver me timbers! Yer evolving standards of decency has been cast in Davy Jones’ locker!”

It’s possible that we both need a hobby.

Fund for Glen Edward Chapman

As regular readers will know, Glen Edward Chapman was released from North Carolina’s death row recently after having served over a decade in prison for two murders he did not commit. People of Faith Against the Death Penalty have set up a fund to help Edward adjust to life in the free world. He was released from prison with little more than the clothes on his back and some pocket change, and needs help with basic things like renting an apartment. 100% of donations will go to help Mr. Chapman, and they are tax-deductible.

Send a check or money order to:

People of Faith Against the Death Penalty
110 W. Main St., Ste. 2G
Carrboro, NC 27510

Be sure to note “For Edward Chapman” on your donation.

(While it is possible that Mr. Chapman might receive compensation from the State for his wrongful conviction, he would first have to receive a full pardon from the Governor. Such pardons are extremely rare, particularly in cases like Mr. Chapman’s that do not involve DNA.)

North Carolina Reaction to Baze

News Update 04.21.08

North Carolina

The US Supreme Court’s decision last week in Baze v. Rees does not mean that executions will resume immediately here in North Carolina. There are two state-based cases that must be resolved - first, a suit by five inmates who allege that the Council of State acted improperly in approving a new lethal injection protocol, and second, a suit by the Department of Correction against the North Carolina Medical Board, which sought to sanction doctors who participated in executions.

To be sure, courts will be asked to consider whether the differences between the Kentucky and North Carolina protocols are constitutionally significant. The majority opinion spent a good bit of energy applauding Kentucky safeguards that are absent here in the Tarheel State, for example that someone is present in the execution chamber to directly monitor the inmate and his IVs. The BIS monitor briefly reared its ugly head in the majority opinion, only to be quickly dismissed as lacking in scientific and medical support as a means of determining unconsciousness. Wonder what the Council of State will have to say about that. Perhaps Justice Alito’s concurring opinion with regard to forcing doctor participation in lethal injection will have some role to play in the Medical Board case.

The Charlotte Observer urges the State not to rush back to the death chamber until reforms to prevent wrongful convictions and the execution of innocents have been implemented. The News and Observer takes things a step further.

Elsewhere

Blog coverage of the Court’s ruling in Baze v. Rees:

• Amnesty International (overall summary)
• Capital Defense Weekly (initial reaction and additional thoughts)
• SCOTUSBlog (analysis for the legal-minded)
• Sentencing Law and Policy (a more pro-DP view)
• StandDown Texas (initial reaction)
• Various sources as complied by CDW and StandDown

I also note SCOTUSBlog’s follow-up series, which includes a conservative perspective and a liberal perspective on the Baze opinion, and this New York Times piece on Justice Stevens’ conversion to death penalty opponent.

Now that Baze has been decided, executions are sure to begin again in some states. Virginia has the earliest scheduled execution at the moment - Kevin Green on May 27th. New litigation has been filed in Mississippi, arguing that the safeguards applauded by the Court in Kentucky are absent from the Mississippi protocol, and therefore the execution of Earl Wesley Berry cannot proceed under Baze. Meanwhile, Florida has filed a motion to vacate the stay of execution granted to Mark Dean Schwab because it believes its protocol “more than satisf[ies]” the requirements of Baze. This morning, the Supreme Court lifted a number of stays and denied cert in several other cases.

On the same day it announced its ruling in Baze, the Supreme Court heard oral arguments in Kennedy v. Louisiana, which challenges the implementation of the death penalty for crimes other than murder, in this case, child rape. Reporting from Amnesty International (re: whether executing their attackers is in the best interests of children) and SCOTUSBlog (re: summary of the arguments and insight into the Justices’ likely opinions). Compilation of media coverage by StandDown. You can read the transcript of the argument here.