North Carolina Seeks Death Penalty Against Woman

News Update 8.31.07

North Carolina

Wake County prosecutors have announced their intention to seek death against Monique Berkley for the murder of her husband. One of Berkley’s co-defendants pleaded guilty earlier this week, the other will be testifying for the prosecution in exchange for a promise not to seek the death penalty. There are four women on North Carolina’s death row.

Elsewhere

Is Ohio, the deathiest state in the North, making a move towards abolition? The cases of three men – Kenny Richey (possibly innocent), John Spirko (possibly innocent), and Jason Getsy (sentenced to death when man who orchestrated killing was not) – have caused many to question whether the death penalty is just, fair, or fixable. (c/o CDW)

The Nation on the evolution of Texas’s approach to the death penalty. In sparing the life of Kenneth Foster, argues John Nichols, Governor Perry crawled up out of the swamp and onto the shore. (c/o CDW) The Foster family extend their thanks to all who supported Kenneth here.

Where do the major Democratic presidential hopefuls stand on the death penalty? In the same place as the Republican hopefuls do. Despite a recent shift in public perception of capital punishment, Dems are still too haunted by the spectre of Michael Dukakis to take a stand. (c/o ODPI)

From Daniel LaChance and the journal Law and Social Inquiry, a look at the larger meaning of last meals and last words. (c/o justcrim)

The American Bar Association has deemed plans to further limit capital appeals “deeply and fundamentally flawed.” The ABA is a professional associated of attorneys from both sides of the courtroom and across the country. More here.

Kenneth Foster Spared

Thanks to the hard work of thousands of people from around the globe, the life of Kenneth Foster has been saved. Foster was scheduled to die tonight for a 1996 Texas murder. Many said that Foster should not be executed because he was not the shooter, only the getaway driver. Foster was tried simultaneously with the shooter, who was executed in 2006.

Backed by a highly unusual parole board recommendation for clemency, Governor Perry commuted Foster’s sentence to life without parole.

Announcing his decision, the Governor said, “After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment. I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine.”

(image source)

A Brief History of Capital Punishment in North Carolina

Early America

Colonists brought the practice of capital punishment with them from England. Many of the crimes that had been death-eligible in England – robbery, burglary, arson, counterfeiting, theft, and of course murder – were quickly made capital in the common law. The colonies also executed people for other crimes, including witchcraft, aiding a runaway slave, forgery, and concealing a birth. At this time, there were no prisons, only small local jails incapable of containing criminals for long periods of time. Death was one of few punishments available in the event of a serious crime.

The first known execution in the colonies was that of George Kendall, who was shot to death in Virginia in 1608 for espionage. Most early executions were carried out by hanging, but such methods as breaking on a wheel, hanging in chains, gibbeting, bludgeoning, and burning at the stake were also employed. The first person executed in North Carolina was likely George Senneca, hung on August 26, 1726 for murder. Four hundred and twenty-two others lost their lives in a similar fashion over the next 184 years.

(This figure includes only state-sanctioned killings, not lynchings or other extrajudicial punishments. The image above, taken from the Department of Corrections website, shows the hanging of Wilfred Roseboro in Iredell County in 1903.)

The Early 1900s

The State took over the administration of the death penalty in 1910. For the first time, executions were conducted indoors and away from public view. An electric chair was installed in Central Prison, which had been completed in 1884. The first person to die in the chair was Walter Morrison of Robeson County, who was electrocuted on March 18, 1910 for the crime of rape. The last person to die in the chair was Wiley Brice of Alamance County, electrocuted on July 1, 1938 for murder.

In 1936, North Carolina installed a gas chamber at Central Prison. Allen Foster of Hoke County was the first to die in this manner (January 24, 1936, murder). Three hundred and sixty-two people were executed between 1910 and 1961. The chair from the gas chamber is now part of the collection at the North Carolina Museum of History.

The Modern Era

No one was executed in North Carolina between 1961 and 1984. When executions resumed, inmates were allowed to choose the manner of death – gas or lethal injection. Of the ten people executed between 1984 and 1998, all but two chose lethal injection. Ricky Lee Sanderson of Iredell County was the last person to die in the gas chamber, asphyxiated on January 30, 1998 for murder.

Forty-three people have been executed in North Carolina in the modern era. The first, James W. Hutchins of McDowell County, died by lethal injection on March 16, 1984. On August 18, 2006, Sammy Flippen of Forsyth County became the last person to die in North Carolina’s death chamber.

The only method of execution in North Carolina at the present time is lethal injection. In early 2007, executions were halted due to concerns about the constitutionality of the procedure. The State is working to resume executions as soon as possible. (image source)

Good News Edition

News Update 08.28.07

Excuse me while I pry myself down from the rafters.

North Carolina

Three North Carolina men who had been facing the death penalty were spared yesterday.
* In Gaston County, Samuel Mayfield obtained a plea to second-degree murder.
* In Hoke County, a jury unanimously decided against imposing the death penalty on Kelvin Ray Smith.
* In Wake County, Andrew Canty pled guilty to first-degree murder and was sentenced to life without parole.

Finally, the North Carolina Department of Justice is stepping in to review the case of Floyd Brown. Brown has been held in the state mental institution for 14 years without a trial.

Elsewhere

Miscellaneous coverage of the Gonzales resignation here.

Life Sentence for Lowry

News Update 8.27.07

North Carolina

A victory in Pasquotank County – a jury took just over half an hour to decide that Donald Carlton Lowry does not deserve to die. He was sentenced instead to life without parole.

Love Lived on Death Row will be showing in the multipurpose room of Central Carolina Community College’s Pittsboro Campus on September 20 at 6:45 PM. The documentary tells the story of the children of a man who was executed by the State in 2005.

Elsewhere

According to The New York Times, Alberto Gonzales has resigned the position of Attorney General. CNN is reporting that he will be replaced by Homeland Security Secretary Michael Chertoff. Allegations of perjury before Congress are only the most recent scandal for Gonzales, who has also been accused of firing assistant attorney generals for not being aggressive enough in seeking capital punishment.

A new study by law professors Eric Freedman (Hofstra) and David Dow (U-Houston) shows that the Anti-Terrorism and Effective Death Penalty Act has dramatically reduced the number of death sentences overturned in federal court. By denying courts the power to grant relief in most cases, even cases involving innocence, Congress has greatly increased the likelihood of wrongful executions. The DOJ recently proposed new rules that would further increase this risk. (c/o DPIC).

From Florida, plans to involve more medical professionals in executions. Florida currently protects the identity of doctors who perform executions by decking them out in purple hazmat suits that cover them from head to toe. Perhaps the whole team can get together and form a big, space-age rainbow of death. More colorful that hooded black robes, I suppose.

China’s Supreme People’s Court has OK’d capital punishment for people convicted of sabotaging the power grid. This appears to be directed at people who steal power cables to sell the copper they contain.

It Was an Accident

News Update 8.23.07

North Carolina

In Pasquotank County, things got a little colorful at the trial of Donald Carlton Lowry. At the climax of his closing argument, District Attorney Frank Parrish picked up the murder weapon, a baseball bat, and slammed it down on the defense table so hard that a sliver of wood flew off. Parrish told the judge he hadn’t actually meant to hit the table, so it was all OK.

Elsewhere

The New York Times marks the 80th anniversary of the executions of Sacco and Vanzetti. Nicola Sacco and Bartolomeo Vanzetti were executed in 1927 for a Massachusetts double murder they did not commit. (c/o ODPI)

Texas executed its 400th inmate last night. Johnny Ray Conner was 32 years old.

Current Cases in NC

News Update 8.22.07

North Carolina

There are presently at least two capital murder trials underway in North Carolina. In Hoke County, Kelvin Ray Smith has been convicted of robbery and murder charges and is moving into the sentencing phase of his trial. In Wake County, jury selection has begun for the trial of Andrew Canty.

Meanwhile, at least four defendants who formerly faced the death penalty have been sentenced to less: Robert Lilly (Anson County, second-degree murder), Jondre Lowemincey (Onslow County, first-degree murder – life without parole x2), Tharon Johnson (Onslow County, second-degree murder x2), and Robert Fastje (Union County, second-degree murder).

An op-ed by the ACLU’s Christopher Hill:

At every step of the capital conviction process, our state government has shown a willingness to evade, or even betray, the truth. It is against this backdrop that North Carolina must now reconsider carrying out the most severe sanction.

The truth is that the death penalty in North Carolina is broken. Considering the travesty confirmed by Judge Morrison, it is hard to imagine that it can be fixed.

Elsewhere

DePaul University College of Law’s Center for Justice in Capital Cases offers training and resources for students and professionals interested in the effective representation of capital clients. (c/o DPIC)

Floyd Brown to Get Day in Court

News Update 8.20.07

North Carolina

Good news for Floyd Brown. Durham County Superior Court Judge Orlando Hudson, Jr. has set a hearing for October 8th to determine whether Brown’s continued detention is legal. Brown has been awaiting trial on a murder charge for 14 years. District Attorney Michael Parker has refused to drop the charges, despite evidence of Brown’s innocence. Many are calling for Brown’s immediate release.

Officials at Fort Bragg have announced that Timothy Hennis will face a court martial for three 1985 killings of which he was acquitted in civilian court. A military judge will soon announce a schedule for arraignment, motions, and the (third) trial of Tim Hennis.

Elsewhere

Texas Students Against the Death Penalty are encouraging supporters of Kenneth Foster to make and send YouTube videos to Governor Perry asking for clemency. To see existing videos or submit your own, click here. For more information, watch the video below and read up on Kenneth’s case here.

(c/o Abolish, CDW, and ODPI.)

The New York Times asks what could make four Virginia men – sailors in the Navy with no prior criminal history – to confess to a rape-murder they did not commit. Their confessions were inconsistent with each other and with the evidence, but all were convicted, some pleading guilty to avoid a death sentence. Even when a DNA match and a factually solid confession revealed the real killer (who said he acted alone), prosecutors refused to release the Norfolk Four. Can physical and psychological intimidation really overcome reason and sheer self-preservation?

Wilson would later testify that Ford hit him several times and showed him photos of the crime scene and the victim and gave him details about the crime to include in his confession. At his trial in 1999, Wilson testified that he couldn’t withstand Ford’s pressure: “If they had told me that I killed J.F.K., I would have told them I handed Oswald the gun.”

Free Floyd Brown, Part II

Background

As discussed in a prior post, Floyd Brown, an innocent mentally retarded man, has been locked up for 14 years without a trial. He has been held at the state mental hospital since 1993 in connection with the murder of an Anson County woman. Until the Supreme Court banned the execution of the mentally retarded, he was facing a death sentence. Two days ago, his attorneys filed a petition that could finally win him his freedom.

I encourage everyone to read the entire petition here. The section on the severity of his mental retardation, especially in light of the detailed confession he is alleged to have given, is particularly moving. (Normally, I would encourage non-attorneys to skip the procedural section and get right to the juicy stuff, but even the chronology of events in this case is outrageous.)

New Information

The petition puts forth new information pointing to Mr. Brown’s innocence and blatant misconduct on the part of the Anson County Sheriff’s Department, including:

> Law enforcement officers conducted a search of Mr. Brown and his home prior to his arrest for which there is no documentation. No warrants were obtained and no reports were produced. The record contains a Consent to Search form signed by Mr. Brown on the day before law enforcement claims it first made contact with him. Mr. Brown’s sister observed him being taken from his home by law enforcement officers on that date.

> The victim had been assaulted during a home invasion two years prior to her death. The detectives who investigated the murder were the same detectives who investigated the assault. Despite similarities between the two crimes, the officers never attempted to determine the whereabouts of the men who had been convicted of the prior assault. Complete information about the assault has not yet been provided to defense counsel. The police had multiple other substantial leads they failed to follow up on.

> Law enforcement and prosecutors have failed to investigate or explain the fact that the victim died hours before the time stated in the fabricated confession allegedly taken from Mr. Brown. Records from the EMT who examined the body at the scene and a noted forensic pathologist indicate that the victim was dead for at least three hours before the statement says she was murdered.

Other interesting facts

> Law enforcement officers first spoke to Mr. Brown based on a tip that came from patrons of a liquor house. (For non-Southerners, this is a sort of illegal bar which serves liquor at all hours of the day and night, despite a person’s level of intoxication.) One witness indicated that a black male with a moustache, weighing approximately 150 pounds, told patrons of the liquor house that he knew about the murder. Mr. Brown has never had a moustache and weighed 120 pounds at the time of his arrest. The witness who allegedly identified Mr. Brown by name denies ever speaking to law enforcement, and there are no notes or official record of the alleged conversation.

> One of the detectives involved in the investigation was responsible for the preservation of the evidence in the murder, all of which has subsequently disappeared. This includes forensic evidence, preliminary testing of which indicated that Mr. Brown was not involved in the murder.

Where Things Stand

The petition concludes:

In this case, all of the elements for a perfect storm of injustice – a brutal murder in a small town with no suspect; corrupt cops who believed the ends justified the means; and a man with the mind of a little boy lacking both the knowledge and the means to defend himself – have converged over the life of Floyd Brown. As a result, Floyd has been confined to Dorothea Dix Hospital for the past 14 years because his mental retardation prevents him from ever becoming competent to stand trial.

This case illustrates that desperate men will do desperate things. Having no leads and under pressure to solve the case, the Anson County Sheriff’s Department and the North Carolina State Bureau of Investigation turned to information from patrons and residents of a liquor house as justification for their pursuit of Floyd Brown. Then, when they could not find any evidence to link Floyd to the murder of Catherine Lynch, they conspired to create the best evidence they could: a fabricated confession….

For justice to be done in this case, Floyd Brown must be set free, he must be allowed to return to society and live in the group home awaiting him, and the charges that have plagued him for the past 14 years must be dismissed with prejudice.

(Procedural note: The current status of Mr. Brown’s case is that the charges against him have been dismissed with leave. However, he is being held in the state mental hospital under civil commitment laws. Should he ever become competent, Anson County will reinstate the charges and bring him to trial. In effect, he is still accused, and he is being held indefinitely. To dismiss the case with prejudice would mean that Mr. Brown would be able to return to his family, and that Anson County would be prevented from resurrecting these fraudulent charges again in the future.)

What You Can Do

Concerned citizens can contact the district attorney and ask that Mr. Brown’s case be dismissed with prejudice.

Honorable Michael Parker, DA
District Attorney’s Office
P.O. Box 761
Wadesboro, NC 28170

(704) 694-0129

Justice Department Greases the Fast Track to Death

News Update 8.16.07

North Carolina

In an editorial, The Fayetteville Observer advocates for continued stays of execution while the lethal injection quagmire is worked out.

Elsewhere

Tennessee Supreme Court ruling will allow the execution of some mentally retarded defendants. Mental retardation is a condition that, by definition, must manifest itself before the age of 18. Therefore, the Court said, courts should not take into consideration IQ tests performed after that age. That would be reasonable if everyone was given an IQ test prior to the age of 18, but Tennessee’s new law will allow people to be executed just because they came from families or school districts without the resources to properly identify and diagnose their disabilities. There are also concerns with the age-of-18 bar because the human brain continues to develop into one’s twenties.

The Justice Department is proposing new rules that would give Alberto Gonzales more control over state capital prosecutions. He would have the power to cut the time for appeals in half, increasing the likelihood of wrongful executions because attorneys won’t have time to properly investigate factual and legal errors. Gonzales could also reduce the amount of time judges have to consider the issues before making a decision. In light of substantial caseloads, this can only result in hasty, arbitrary decision-making. The new regulations also allow the Attorney General, the nation’s lead prosecutor, to decide whether defendants have adequate representation. There are no guidelines as to what constitutes proper training or reasonable funding for attorneys. Attorneys, academics, and judges alike are gravely concerned about the potential impact of these new rules.

In Texas, the Fifth Circuit has overturned the death sentence of Billy Wayne Coble, in part because his jury was not able to fully consider evidence related to his history of post-traumatic stress disorder and bipolar disorder.

Stephen Colbert can’t be wrong. (c/o CDW)