Jerry Conner Video Released

In the summer of 1990, Minh and Linda Rogers were shot to death while working at their family-owned grocery in rural Gates County, North Carolina. Some money was taken. Sixteen year-old Linda was raped. The next year, Jerry Wayne Conner was tried and sentenced to death for the murders. His sentence was overturned on appeal, but after a re-sentencing hearing in 1995, Mr. Conner was again sentenced to die. In May of 2006, Conner came within 36 hours of execution before the North Carolina Supreme Court intervened. The Court didn’t want Jerry Conner to be killed until he had the chance to apply modern DNA technology to the semen found on Linda Rogers’ body. Unfortunately, the semen sample was too degraded to produce conclusive results.

We may never know if Jerry Conner killed Minh and Linda Rogers seventeen years ago. What we do know is that if and when lethal injection returns to North Carolina, Conner will be among the first scheduled to die. With that in mind, his attorneys have released a video on YouTube highlighting another major issue in the case: juror misconduct.

A local news reporter who covered Mr. Conner’s first trial sat on his re-sentencing jury. The reporter/juror learned confidential facts about the case before, during, and after the first trial through her contacts with the Sheriff’s Department and others involved in the investigation of the murders. When questioned directly about communications with people involved in the case, she did not tell the court what she knew. Her deceptions denied Mr. Conner his right to be tried by an impartial jury.

More information about Jerry Conner’s case is available here, here, and here.

During this brief respite from executions, it is important to remember that there are still thousands of men and women out there awaiting their final day. Daily we are adding to the queue – men and women afflicted by mental illness, represented by incompetent lawyers, convicted based on the false testimony of jailhouse snitches and crooked police officers. While Ralph Baze has taken center stage to tell the nation about the constitutional perils of lethal injection, Jerry Conner is waiting in the wings with an equally important story to tell about the broken system used to decide who is sentenced to die in the first place.

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

Free Floyd Brown

Imagine you have been accused of a crime you didn’t commit. Now imagine that you can’t defend yourself because your IQ makes you the mental equivalent of a five or six-year-old child. You can’t tell time. You can’t spell your own name. But somehow, police say, you gave them a lengthy and detailed confession to the murder of an elderly woman. You are facing the death penalty.

Fast forward fourteen years. You’re still in jail. You haven’t gone to trial. Both of the detectives who accused you have been convicted of federal racketeering charges. All of the physical evidence against you – if there ever was any – has disappeared. It’s not clear that you will ever get your day in court. There is a very good chance you will die in a state mental facility because you are too retarded to stand trial for something you didn’t even do.

On the bright side, the Supreme Court has outlawed the execution of the mentally retarded.

This is the story of Floyd Brown. Mr. Brown was arrested for the 1993 murder of Katherine Lynch in Anson County. He was sent to Dorothea Dix, the state mental hospital in Raleigh, which has a special area for evaluating whether people are competent to stand trial. Mr. Brown is so severely impaired that the doctors said he wouldn’t be able to understand what was going on in the courtroom, or to help his attorneys defend him. When a person is found incompetent to stand trial, the job of the staff at Dix is to make them competent. This is usually accomplished through education. Inmates/patients attend classes where they learn to identify various people in the courtroom (the judge, the prosecutor, the defense attorney), what their roles are, and how to describe a defendant’s basic rights. Most schoolchildren could pass this test, but it took Floyd Brown a decade to parrot back enough information to satisfy doctors. When Mr. Brown was finally deemed competent to stand trial, the State got scared and offered him a plea to voluntary manslaughter. Brown would have gotten credit for the time he spent at Dix, and would not have had to concede guilt in accepting the sentence. (This is known as an Alford plea. The defendant says that he is factually innocent of the crime, but that it is nonetheless in his best interests to enter the plea.) The only problem was that Mr. Brown couldn’t understand what that meant. Back to competency school he went.

Floyd Brown’s nightmare began six days after the murder of Katherine Lynch. The police picked him up and took him to Katherine Lynch’s house – with blood still on the floor – and told him to hold a stick. It was the murder weapon. (Unfortunately for the State, the one of the only forensic tests ever conducted in the case shows that the bloody palm print found on the stick does not match Floyd Brown’s hand. The other shows that there was no blood on Mr. Brown’s clothing.) The next day, the police removed Mr. Brown from his day center for people with special needs and took him in for questioning. They had Mr. Brown sign a waiver of his rights – which he could neither read nor understand – and interrogated him without recording the interview. From this interrogation came the only piece of evidence tying Mr. Brown to the murder, his alleged confession.

The statement refers to time of day. Brown cannot tell time. The statement says that Lynch called Brown her favorite cousin, but they were not related and had never met. According to the statement, before the murder Brown and Lynch had been watching television together in her living room. There was no TV in Lynch’s living room. Although Brown cannot tell left from right, detectives claimed he told them he hit Lynch on her right arm. Brown – who did not learn to bathe until he was 15 and still has trouble grooming himself – allegedly knew enough to check Lynch’s heart rate and breathing after the attack. Brown identifies the town where his vocational center was located, but today, after 14 years of training at Dix, he doesn’t even know what state he’s in. The mentally retarded are easily coerced into confessing to things they didn’t do because they are eager to please, but it is virtually impossible for Floyd Brown to have given this statement at all.

The Anson County detective listed in Sheriff’s Department records as lead investigator denies ever having been involved in the case. The deputies who took the statement both pleaded guilty in 1998 to shaking down suspects for money in exchange for not pressing trumped-up criminal charges. State Bureau of Investigation agent David Ramsey refers to these officers as, “The worst I’ve ever seen…they were just as corrupt as they can be. I wouldn’t put anything past them.” An Anson County Sheriff’s deputy who worked on the case said that his colleagues were eager to close the case, so “they probably led Floyd to say what they wanted him to.” No one who has spent time with Mr. Brown, including psychiatrists trained to work with the mentally retarded, believes that he made this statement.

In 2003, after Mr. Brown was found competent to stand trial, his attorneys asked to see Ms. Lynch’s walking stick, the murder weapon. It was gone. Also gone was almost all the physical evidence in the case – Brown’s clothing, wooden planks from the floor of Lynch’s home, palm prints lifted from the scene, fingerprint cards, etc. Sometime in the decade since the murder, the evidence had been lost, misplaced, or destroyed. Upon learning of its absence, the Sheriff did nothing to look for it. Prosecutors tried to blame the loss on UPS, but court records show that the evidence was returned to the Sheriff’s Department from the lab, safe and sound. When asked by a reporter what happened to the murder weapon, one detective involved said, “I don’t know. If I did, I wouldn’t say it. It’s not your business what happened to that evidence. It’s nobody’s business what happened to that evidence.”

To the contrary. Putting aside the apology and compensation owed to Floyd Brown, District Attorney Michael Parker and Sheriff Tommy Allen owe the people of Anson County an explanation. Sheriff Allen won’t comment. Mr. Parker has said, “Lost or missing evidence seriously compromises the State’s ability to achieve true justice, but it does not affect a prosecutor’s desire to protect the public from dangerous people. In these cases, the prosecutor attempts to do substantial justice to avoid a greater injustice.” Apparently the irony is overwhelming to everyone but Parker. Katherine Lynch’s killer is still out there, and Anson County has done nothing to find him. Says Lynch’s neighbor, a pastor, “[Brown] got screwed because they didn’t have no suspect and no physical evidence to nail anyone. All these years later, we’d really like to know who did this to Miss Katherine.”

(Source article here. Video of Mr. Brown talking with a reporter here. Click on “Day 4″ at top left.)

Oprah, Can You Hear Me?

The strange case of Guy Tobias LeGrande goes on. In 1996, Guy LeGrande was sentenced to death in Stanly County for the murder of Ellen Munford. (Incidentally, the man who hired LeGrande and provided him with the murder weapon – Munford’s husband – was convicted only of second-degree murder.) LeGrande fired his court-appointed attorneys and was allowed to represent himself over their protestations that he was severely mentally ill.

The jury never heard evidence that LeGrande believed he was receiving signals from Dan Rather and Oprah Winfrey through the television. They did not know that he had long suffered from delusions and extreme mood swings. LeGrande represented himself while wearing a Superman t-shirt, and his ranting arguments drew comments even from the judge who’d found him competent. LeGrande challenged the jury to sentence him to death, telling them, “All you so-called good folks can kiss my natural black ass in the showroom window of Heilig-Myers” and “Pull the damn switch and shake that groove thing.” They obliged after 45 minutes of deliberation. After his conviction, LeGrande continued to represent himself, and failed to preserve any of the legal issues that might have won him relief in federal court.

Over the years, attempts have been made to intervene. Attorneys have visited LeGrande in hopes of helping him with appeals. LeGrande refused assistance, but told the lawyers that he could see people’s thoughts and desires, that he was expecting a settlement to his multi-billion dollar lawsuit against the State any day, and that he could see a circle of smoke around one lawyer’s head. Doctors have tried to evaluate Mr. LeGrande, some finding him incompetent, others finding him competent, but all agreeing that he is severely mentally ill. They noted hypomanic behaviors and grandiose delusions. LeGrande has a family history of mental illness – his sister has bipolar disorder, and his half-sister suffers from chronic paranoid schizophrenia.

Eventually, a federal court tired of the frivolous lawsuits LeGrande continually filed, and appointed counsel to represent him. By this time it was too late – federal courts can only consider issues that have previously been raised in state court, and LeGrande had failed to do so. Guy LeGrande was scheduled for execution in December of 2006. In late November, a judge declared a 60-day stay, asking three doctors to evaluate LeGrande and decide whether he was competent to be executed. The stay was extended due to difficulties in evaluating LeGrande. Thus far, LeGrande has refused to meet with the doctors, and until recently, their only opportunity to observe him has been to watch videotape – without audio – of LeGrande’s activities in his cell over a 30-day period.

Last week, the judge in the case sought further information through a hearing. LeGrande’s lawyers over the years, all of whom he refuses to acknowledge, testified about their interactions with him. One said that LeGrande does not believe he will be executed, instead he will be pardoned, given billions of dollars, and enjoy his first free meal with the Governor himself. It has been reported in the past that LeGrande can be seen marching around his cell for hours at a time, and that he anticipates living out the rest of his days on the beachfront property he will purchase with his settlement from the State. LeGrande has suggested that certain employees of the Department of Corrections have ESP, and has opened letters: “From the Constitutional and Civil Rights Office of the Director for the National Coalition of Black Secret Agents Enslaved at Central Prison.”

For its part, the State insisted that LeGrande is an intelligent man who took deliberate steps to avoid capture. (The State seems to confuse mental retardation with mental illness, and conflates competency to stand trial with competency to be executed.) Ellen Munford’s parents and children have been very vocal about their desire to see LeGrande executed.

The most interesting aspect of the hearing is that LeGrande agreed to be questioned by the judge. His statements have been described as “articulate, but rambling.” Although able to cite statutes by number, LeGrande made off references to Albert Einstein and Clarence Thomas. He refused to directly answer the judge’s questions about whether he believes he will be pardoned and other significant matters. He used profanity in court. Although LeGrande grasped that the purpose of the hearing was to examine the issue of his competency, he didn’t seem to think he was a necessary part of the process. He referred to himself as a “conscientious observer” and spent much of the hearing leaning back and swiveling in his chair.

Doctors say that LeGrande most likely suffers from one of the following: (1) Schizoaffective Disorder, Bipolar type, (2) Bipolar 1 Disorder, Manic with psychotic features, or (3) Delusional Disorder. All of these would affect Mr. LeGrande’s ability to understand the fact of his impending execution, and perhaps also to understand the real reason for it. At trial, of course, these disorders would have impaired his ability to work with counsel, much less represent himself, but that issue is moot now.

The United States Supreme Court recently heard the case of Scott Panetti, a schizophrenic Texas man allowed to represent himself at trial, with much the same result as Guy LeGrande. The Court is re-examining the standard for competency to be executed, and considering, in light of its decisions about the mentally retarded (Atkins) and juveniles (Roper), whether the execution of the mentally ill serves any legitimate purpose. This blog entry gives information on recent reform efforts in North Carolina. (That bill is still in committee.)

As for Guy LeGrande, the State has made it clear that they intend to execute him as soon as possible. If the court finds LeGrande competent, the State will set an execution date to be carried out when the lethal injection debate is resolved. LeGrande insists there is a method to his madness. (When asked about a time he claimed to see anvils falling from the sky, LeGrande said, “When I make these little conundrums, these riddles, I’m alluding to another situation.”) He says that if he is executed, it will not be because he chose to represent himself. “I didn’t fail, the law failed.” At least he’s right about one thing.

Tennessee Moratorium Ends, State Prepares to Execute Man Who Never Killed Anyone

In February, Tennessee Governor Phil Bredesen called for a 90-day halt in executions. He wanted time to examine how Tennessee goes about executing inmates. The moratorium expires today, and many are saying that it’s time for Bredesen to focus on the who rather than the how.

Philip Workman is scheduled to be executed on May 9th. Workman was sentenced to die for the killing of a police officer, Lieutenant Ronald Oliver, during the robbery of a Memphis restaurant in 1981. Although Workman never denied that he robbed the restaurant, he has steadfastly maintained that he is innocent of shooting the officer. The only eyewitness to the shooting has since recanted his testimony. Forensic analysis – conducted only after the trial – has shown that Philip Workman could not have fired the bullet that killed Lieutenant Oliver. Even the former district attorney whose office prosecuted Workman said that his life should be spared and offered to serve as lead counsel in Workman’s clemency efforts.

The video below, titled Deadly Silence, was produced in 2003. Although it’s slightly out of date as to the legal status of Mr. Workman’s case, it presents an excellent argument for clemency. Learn more about the case. Learn about the parole board that failed to consider Mr. Workman’s evidence impartially – or at all. Hear from Lieutenant Oliver’s daughter, who believes that Philip Workman should not be executed. Hear from the man whose perjured testimony put Philip Workman on death row. Hear from one of five jurors who say that if they’d known then what they know now, they wouldn’t have convicted Philip Workman of capital murder, much less sentenced him to death. Hear from Philip Workman.

Several execution dates have been set for Philip Workman in the past – he once came within 42 minutes of execution – but the only person who can save Workman now is Governor Bredesen. Please contact the Governor’s office and urge him to spare the life of Philip Workman.

Governor’s Office
Tennessee State Capitol
Nashville, TN 37243-0001

Phone: 615.741.2001
Fax: 615.532.9711
Email: phil.bredesen@state.tn.us

Honoring All Victims

I was recently reminded that April 22-28 is National Crime Victims’ Rights Week. It is a time to remember those we have lost, and a time to think about the needs of those left behind.

It is often assumed that victims’ families all share a common perspective born of their tragic experience. Most victim outreach programs are tailored to what we think these families want and need. Those left out find themselves victimized again.

Murder Victims’ Families for Reconciliation, Murder Victims’ Families for Human Rights, and Journey of Hope have issued the following statement:

April 22 – 28, 2007 is National Crime Victims’ Rights Week. The theme for this year is “Victims’ Rights: Every Victim, Every Time.” As victims, and survivors, we strongly support efforts to ensure that the needs of victims don’t fall through the cracks or fall prey to politics.

The death penalty does not serve victims’ families. It draws resources away from needed support programs, law enforcement and crime prevention. And the trials and appeals endlessly re-open wounds as they are beginning to heal, and it only creates more families who lose loved ones to killing.

Alternatives to the death penalty provide the certainty and punishment that many families need while keeping our communities safe. Critically, alternatives ensure attention is cast where it is needed most – on the survivors – and not on sensational trials or suspects.

As murder victim family members we also share the same concerns as other Americans with the death penalty. We are concerned about innocent people being sentenced to death, about racial and economic disparities and about arbitrariness. But for us the stakes are higher because an innocent person might be executed in a misguided attempt to give us justice. Losing one innocent life to murder is one too many, the taking of another innocent life because of the first is beyond comprehension.

Those who argue for the death penalty often claim to do so on behalf of us, the victims’ families. They say it will give us “closure.” We don’t want the death penalty, and closure is a myth. Every victim, every time needs help, understanding, resources, and support. We don’t need more killing.

If anyone out there has lost a loved one to violence, or provides support to someone who has suffered such a loss, Murder Victims’ Families for Reconciliation is holding a workshop this weekend in Raleigh. The event is intended to provide strength and support to survivors who oppose capital punishment.

People on all sides of the death penalty debate mourn the loss of life that begins the legal process. Abolitionists and those who oppose capital punishment for one reason or another are often assumed to care only about the loss of life that ends that process. Perhaps this week we can set time aside to remember the victims, however they died, and to hope for healing for their families, however they feel about the death penalty.

Proportionality

Common sense isn’t sexy. It’s hard to get all worked up over something that seems perfectly reasonable. Maybe that’s why so little attention has been paid to House Bill 341. That, and explaining the death penalty appeals process in a soundbite is about as easy as carrying a rhinocerous in your purse.

For right now, let’s just focus on the direct appeal. After a defendant has been convicted of first-degree murder and sentenced to death, his or her case is automatically appealed to the North Carolina Supreme Court. The purpose of this review is to ensure that the death penalty is administered consistently from case to case. Nothing wrong with that, right? Whether or not you believe that the death penalty is influenced by arbitrary factors like race and geography, you probably don’t want capital punishment to depend on passion, prejudice, and chance. Hence proportionality review.

Moving on to the ‘sense to come in out of the rain’ portion of our lesson. At present, the relevant statute directs the Supreme Court to compare the result in a given case to “the penalty imposed in similar cases, considering both the crime and the defendant” to ensure that the death sentence is not “excessive or disproportionate.” N.C. Gen. Stat. 15A-2000(d)(2). What that statute says to me is, “If you’ve got a case involving a guy with a prior robbery conviction who shoots a convenience store clerk during a stick-up at 2 AM, you should check to see if there are any other murder cases involving a guy with a prior robbery conviction who shoots a convenience store clerk during a stick-up at 2 AM.” Call me crazy.

Call the North Carolina Supreme Court…something else. The Court has interpreted “similar cases” to mean “cases in which the same sentence was imposed,” thereby ignoring the 97% of homicide cases in which the defendant is not sentenced to death. Consideration of similar crimes and similar defendants is only secondary, and the Court often cobbles together its justification piecemeal. Rather than looking at the ten cases with identical facts which resulted in life sentences, the Court will reach back in time to find a death case – any death case – involving a prior felony OR a convenience store OR a killing in the middle of the night. Similar enough.

In applying such blinders, the Court has virtually ensured that no death case will be found excessive or disproportionate. When you’re a hammer, everything looks like a nail. The Supreme Court has failed to meet its obligation to consider each case individually. It’s as if they cut and paste reasoning from past decisions without any further thought; the Court continues to cite cases that have long been overruled. In the last twenty-four years, over two hundred death-sentenced defendants have come before the Supreme Court for proportionality review. Relief has been granted in only eight cases, and every death sentence has been upheld since 2002.

The Court has utterly failed to protect against excessive and disproportionate sentences. Even supporters of the death penalty, like former North Carolina Supreme Court Chief Justice Burley B. Mitchell, Jr., recognize that being sentenced to death in North Carolina is, “like being picked in a lottery…it’s totally arbitrary.”

Representatives Earle (D-Mecklenburg), Glazier (D-Cumberland), Parmon (D-Forsyth), and Wainwright (D-Craven and Lenoir) are the primary sponsors of House Bill 341, which would return common sense and judicial responsibility to direct appeals in North Carolina. The bill makes explicit the Supreme Court’s obligation to consider the full range of first-degree murder cases:

In determining whether a sentence of death imposed under this section is disproportionate, the Supreme Court shall consider and compare factually similar cases that have been reviewed on appeal by the Supreme Court or the Court of Appeals. The reported cases compared by the Supreme Court shall include both those in which the jury recommended life imprisonment, with or without parole, and those in which the jury recommended the death penalty.

Nothing outrageous about that. Contact your representative and let them know that when someone’s life is at stake, the Supreme Court owes them – and all of us – more than just a rubber stamp.

Choosing Death

Unlike most of us, Allen Holman knew in advance when he was going to die: Friday, March 9th, 2007, shortly after two o’clock in the morning. Almost ten years ago, Holman shot and killed his wife Linda in the parking lot of a convenience store. Ironically, Linda was a nurse at the prison where Allen Holman was scheduled to be executed, and the question of whether medical professionals should participate in lethal injections is what has put his execution on hold.

Allen Holman is a volunteer – someone who has willingly abandoned his appeals in order to expedite execution. Between 1977 and 2003, ninety-seven other death row inmates volunteered for execution. One study (John Blume, Killing the Willing: Volunteers, Suicide, and Competency, 103 Mich. L. Rev. 939 (2005)) found that 88% of those volunteers suffered from mental illness and/or substance abuse problems which may have contributed to their decision to die. Holman, 47, has a history of mental illness stretching back to his teen years, including at least five suicide attempts. This time, he had hoped to let the State do the job for him.

Suicide is no longer a crime in North Carolina. While there is technically no law prohibiting it, killing someone on their request would likely be prosecuted under the regular homicide statutes. (Dr. Kevorkian, for example, could be prosecuted under either the “murder by poison” or “premediated and deliberate” theories of first-degree murder.) When the State assists a suicide, as when it commits murder (death certificates of the executed list the cause of death as homicide), the legal penalties are not the same for those involved. But what is the moral cost?

How is executing the severely mentally ill or brain-damaged so different from executing the mentally retarded, which was recognized as cruel and unusual punishment by the Supreme Court in 2002? In its decision, the Court noted that the nature of mental retardation is such that the ends of retribution and deterrence are not served by executing the retarded. (For example, because the mentally retarded are less capable of engaging in logical reasoning than the average person, they are less likely be deterred from crime by the execution of others.) Without a valid penological objective, executing the mentally retarded was found to be a “purposeless and needless infliction of pain and suffering.”

Two days ago, a bill was filed in the General Assembly by Representatives Insko (D-Orange) and Harrison (D-Guilford) which would prohibit the execution of the severely mentally disabled. The bill would exempt the severely mentally ill and brain-damaged from the death penalty, but would not relieve them of criminal liability altogether. All other sentences, including life imprisonment, would remain possible.

The bill defines “severe mental disability” as a mental disability which significantly impairs a person’s capacity to do any of the following:

(1) Appreciate the nature, consequences, or wrongfulness of the person’s conduct;
(2) Exercise rational judgment in relation to conduct; or
(3) Conform the person’s conduct to the requirements of the law.

A person who doesn’t know what they’re doing or who is unable to control themselves is clearly less morally culpable than a person who makes a cold and calculated decision to kill. When we choose to kill the mentally ill or brain-damaged, our own moral standing is in serious question.

Consider Ricky Ray Rector. Before his arrest, Rector attempted to commit suicide by shooting himself in the head. A large section of his brain was destroyed, but Rector survived. He was clearly severely disabled – Rector was frequently observed howling, barking, and dancing in his cell – but the law held no exception for someone in his situation. On the night of his execution, the guards asked Rector why he hadn’t eaten the pecan pie from his last meal. He replied that he was saving it for later.

Insko and Harrison’s bill is neither an excuse nor an easy way out. Built into the bill is a provision making clear that, “a mental disability manifested primarily by repeated criminal conduct or attributable solely to the acute effects of alcohol or other drugs does not, standing alone, constitute a severe mental disability.” Furthermore, the defendant bears the burden of proving his or her disability status to the judge or jury by a preponderance of the evidence – the State has no obligation to prove anything.

A bill to prohibit the execution of the severely mentally disabled is not a radical proposition. It doesn’t undermine the death penalty, rather it recognizes the larger goals underlying capital punishment and strives for a system more consistent with those aims. Choosing death for the brain-damaged and mentally ill means doing what we fear most in the accused – killing for the sake of killing.

Learn more here, here, and here, then contact your representative and let them know that you oppose the execution of the brain-damaged and mentally ill.

Malice Aforethought

When Jakiem Wilson was brought before a magistrate early this morning, the unidentified judge made plain what punishment (s)he thought Wilson deserved.

Wilson reached the window at the Wake County Magistrate’s Office around 1:30 a.m., where a magistrate read the charge using the term “malice aforethought.”

“What’s malice aforethought?” Wilson asked slightly above a whisper.

“It means you intended to do it,” the magistrate replied. “That’s a needle in the arm.”

According to the North Carolina Magistrates Association, a magistrate’s “primary function in the judicial system of North Carolina is to provide an independent, unbiased review of charges and complaints by law enforcement officers or citizens.”

In addition to being entirely inappropriate, the magistrate’s reply was incorrect. While it is common for lay people to be confused about the law pertaining to capital murder, one would hope that lawyers and judges would have a clear understanding. One would hope.

There are three kinds of first-degree murder in North Carolina. Presumably Mr. Wilson has been charged with the first: a killing done with malice and a specific intent to kill, formed after premeditation and deliberation. First-degree murder is a Class A felony, meaning that it is punishable by either the death penalty or life imprisonment without the possibility of parole. I will leave for another time the discussion of how the jury goes about choosing between these two options, but for now I want to make one thing clear:

Under no circumstances, no matter how gruesome the crime, no matter how sympathetic the victim, no matter how vile the defendant, does a conviction of first-degree murder mean that a person will automatically be sentenced to death. In fact, life in prison without the possibility of parole is the presumed sentence for first-degree murder.

The magistrate was, or should have been, aware of this fact when (s)he spoke to Mr. Wilson. Mr. Wilson had likely not yet been appointed counsel, and the magistrate was propbably the first “neutral” legal figure he’d come across since his arrest. Mr. Wilson asked him/her for help, but instead he was told that both his guilt and his sentence were already decided. To intentionally engage in such hurtful deception is in itself a malicious act. (For legal purposes, malice is generally defined as “the intent, without justification or excuse, to commit a wrongful act.”)

This sort of comment would not be tolerated if it were made by a regular judge in open court, nor is it acceptable when made by a magistrate in black of night. That it came as no shock to anyone involved is a sad testament to our expectations of the criminal justice system.

Since U Been Gone

I go out of town and everything changes.

Although some said that the General Assembly wouldn’t get around to the death penalty question any time soon, it seems that Assembly members had ideas of their own. State Senator Ellie Kinnaird of Orange County filed a bill calling for a moratorium. State Senator Phil Berger of Rockingham County filed a bill to get executions underway again.

(FYI, Rockingham County (population 92,614) has two people on death row and Orange County (population 118,386) has none.)

The text of Senator Berger’s proposed legislation is as follows:

A BILL TO BE ENTITLED

AN ACT to ensure that assistance rendered by any health care professional in the process of a lawful execution by the state does not result in disciplinary or corrective action by any State authorized board or authority, and to exclude the administration of controlled substances used in an execution from the practice of medicine.

The General Assembly of North Carolina enacts:

SECTION 1. Article 19 of Chapter 15 of the General Statutes is amended by adding a new section to read:

“§ 15‑188.1. Health care professional assistance.

(a) Any assistance rendered with an execution under this Article by any licensed health care professional, including, but not limited to, physicians, nurses, and pharmacists shall not be cause for any disciplinary or corrective measures by any board, commission, or other authority created by the State or governed by State law which oversees or regulates the practice of health care professionals, including, but not limited to, the North Carolina Medical Board, the North Carolina Board of Nursing, and the North Carolina Board of Pharmacy.

(b) The infliction of the punishment of death by administration of the required lethal substances under this Article shall not be construed to be the practice of medicine.”

SECTION 2. This act is effective when it becomes law.

Can the General Assembly keep the Medical Board from sanctioning its members? Sure. The Board is an “authority created by the State or governed by State law.” The General Assembly giveth, and the General Assembly taketh away. The legislature can also choose to assault both logic and the English language by defining the administration of some drugs as the practice of medicine and the administration of others as moonlighting.

But in so doing, the General Assembly would be shirking its duty to both lead and serve the people of North Carolina. A growing number of North Carolinians are calling for a moratorium, a break in executions while the legislature or its appointed committee closely examines the questions surrounding the death penalty. Commissions in Illinois and New Jersey required many months to fully investigate all the issues put before them. Senator Berger wishes to avoid such an in-depth study, but all he will succeed in doing is delaying the inevitable.

Executions have been effectively halted in eleven states (Arkansas, California, Delaware, Florida, Maryland, Missouri, New Jersey, North Carolina, Ohio, South Dakota, and Tennessee) out of concern about lethal injection procedures. Eleven states (Colorado, Kansas, Kentucky, Maryland, Missouri, Montana, Nebraska, New Jersey, New Mexico, South Dakota, and Washington) are considering legislation which would either impose a moratorium or repeal the death penalty altogether. The tide is going out. When the water is gone, it will lay bare all that has been hidden, and sooner or later we will have to confront the reality that a botched lethal injection is no less barbaric than the electric chair or the gas chamber, it is only more pleasant to watch.

Senator Berger can choose to be a leader, or he can opt for a patch-up solution that is likely to end up costing more time and money than confronting the issue head-on. It remains to be seen whether his proposed bill will gain any traction; it has been referred to the Judiciary Committee, and it may well die there. The challenge now is for the rest of us to ensure that a bill like Senator Kinnaird’s reaches the floor, one which would provide for a moratorium and the time and resources necessary to create a commission to study:

1) The history and present administration of the death penalty in North Carolina, with an eye towards lethal injection procedures, wrongful convictions, cost, deterrent effect, and disparities in sentencing;

2) Means of safeguarding defendants against the above failures and improving the functioning of the system overall; and

3) What recommendations should be made to the Governor and the General Assembly to ensure justice, fairness, and the humane implementation of the death penalty.