By Lyle C. May
John Grisham, noted author and criminal defense
attorney, recently published an op-ed article in the Raleigh News
and Observer claiming that most North Carolina death row prisoners
did not receive a fair trial. (1) As a board
member of the New York Innocence Project and someone versed in
criminal law, Grisham recognizes that the capital trial process is
flawed and rightly says, "It’s time for North Carolina to stop
fighting for executions that represent not its future, but battles
of an unjust past."
Too often the justice system fails the very people
"due process" is designed to protect, leaving defendants to bear
unjust results. Grisham’s article was understandably limited in
scope, and could not be expected to cover every aspect of the death
penalty, but there are some integral points about the capital
appeals process that must be made.
As someone who was convicted of murder and sentenced
to death in 1999, I have lived through 33 executions and have a firm
understanding of what many of my friends, living and dead, wish were
being addressed. I applaud anyone who fights to abolish capital
punishment, but it is critical to remember that if a defendant did
not receive a fair trial, both the sentence and the
conviction should be called into question.
Grisham states that North Carolina has an
uncharacteristically outsized death row, comprised of people whose
trials were "grossly unfair." Most of the 141 people on North
Carolina’s death row – approximately75% – were tried in an era
before the creation of Indigent Defense Services (IDS) that provided
competent counsel, DNA exonerations and laws that prohibit the
execution of people with mental disability. Also absent were
protections against coerced confessions, wrongful convictions and
the requirement prosecutors share all evidence with defense counsel.
The most impactful reform of the early 2000's was the end of a
mandatory requirement that prosecutors try all aggravated murders
for the death penalty. North Carolina was the only state in the
country that maintained such a law.
The "progressive" reforms Grisham mentioned merely
brought North Carolina in line with other death penalty states.
Despite this, prosecutors continue to withhold exculpatory evidence,
continue seeking the death penalty to get defendants to plead guilty
and accept life without parole and deny race is an issue during jury
selection. Though helpful in reducing the overall number of capital
cases in North Carolina, the legislative reforms of the early 2000's
do nothing for those of us who were tried before their enactment.
In the raging political theater of the 90's capital
punishment was the sweeping sword of "justice" alongside Three
Strikes laws, a surge in de facto life sentences and life without
parole, mandatory minimums and other mass incarceration policies.
None of these laws had a significant deterrent effect, have
overcrowded prisons, overburdened state budgets, and decimated
communities in urban centers.
Because tough-on-crime rhetoric has been allowed to
sink public policy and create a draconian criminal justice system,
North Carolina’s death row population exploded with people who never
belong there. Since 1997 the state has had a 71% reversal rate of
death sentences on appeal. This means three out of every four death
sentences and convictions are substantively defective. What should
be the most alarming is that 8 people have been exonerated, whereas
43 were executed. One innocent person for every five executions.
How has this been allowed to happen?
In our adversarial legal system winning is the goal
for both prosecution and defense, and while the burden of proof is
on the state, they have all of the resources. Considering that
every capital defendant is indigent, even with an IDS attorney,
it is easy to see why a conviction is a foregone conclusion before a
trial even occurs. Consider, also, that prosecutors withhold
evidence, control the court calendar, charge with little oversight,
rely on jail-house-snitch testimony without corroborating evidence,
use coerced confessions, and improperly imbalance juries to gain a
conviction regardless of the facts. By the time a jury is seated,
even if a defendant has competent counsel, and acquittal at trial is
rare in a capital case.
The case of Henry McCollum and Leon Brown is a prime
example of this process. Henry spent 30 years on death row before
the North Carolina Innocence Inquiry Commission, in connection with
their investigation of his brother, Leon, found both men innocent of
the 1984 rape and murder of Sabrina Buie. The only reason the
commission helped Henry is because Leon was acquitted of Sabrina’s
murder and resentenced to life in prison for her rape. While Henry
remained on death row, a friend of Leon’s filed a claim with the
innocence commission, which refuses to investigate active death
penalty cases. As a member of such a commission, Grisham should be
aware that, effective trial or not, death row inmates cannot file
innocence claim unless they: (1) have clear evidence of actual
innocence, (2) are out of appeals and (3) lack legal representation.
Death row prisoners who lack legal representation
and have no appeals left are executed. Innocence, the United States
Supreme Court has ruled, is not an appealable issue. Also, there are
many cases where the defendant, while guilty of a crime, was
overcharged by overzealous prosecutors. No innocence commission will
consider such a case and a sentence of life without parole would end
a capital defendant’s access to legal representation.
Appellate attorneys are not always able to fully
develop a client’s claims because they lack the investigatory power
of a commission. An attorney, for example, cannot enter a police
evidence room or look into the dusty attic of a court room for
exculpatory evidence and lost files. Maybe, if Henry’s former
appellate attorneys had the same resources as the North Carolina
Innocence Inquiry Commission, he would not have spent 30 years on
death row, or been pushed to plead guilty and accept life without
parole despite his repeated claims of innocence.
Though Grisham highlights five examples of the
status quo in defective capital cases from the 90s, calling for an
end to capital punishment does not go far enough and fails to
address their underlying problems. Grisham is right that "by today’s
standards and certainly under today’s laws, the bulk of North
Carolina’s death row inmates did not receive fair trials." But
automatically converting their death sentences to life in prison
without parole, without a thorough investigation into the problems
of each case, is as grave and injustice as lethal injection. The
difference is that this time, well-meaning abolitionists will have
brought about a new age of silent executions, where death by
incarceration is acceptable and no one is willing to examine or hold
people accountable for the corruption within North Carolina’s legal