Fatal Mistakes?

Fatal Mistakes?

- in Weekly Briefing

Use of the Death Penalty in N.C. Comes Under Renewed Scrutiny

By Rob Schofield

Quick Take:

  • Recent events are a reminder that North Carolina government, like all other public and private institutions, makes major, unforeseen mistakes.
  • Last week’s meeting of a special House Committee made clear that this fallibility carries over to the state’s application of the death penalty.
  • Given the stakes, state leaders would do well to take a closer look at how they apply this important law.   

One of the biggest controversies in North Carolina government circles these days surrounds an enormous foul-up in the paving of Interstate 40 in Durham County. Despite the expenditure of many millions of dollars on equipment, raw materials and people power and untold hours of planning and designing by teams of engineers and other experts in the private and public sectors, somehow, more than 10 miles of road got improperly paved. Now, just a couple of years after being put in place, the pavement is crumbling and will have to be torn up and redone at a cost of more than $18 million.

As disturbing and frustrating as this development is, it probably doesn’t come as a shock to a lot of people. Most North Carolinians understand and accept the fact that their government makes mistakes – sometimes, very large ones. No human institution, be it Ford Motor Company, FEMA, or the Catholic Church, gets things right every time – no matter how hard the people who comprise it work or how well they prepare.

When Mistakes are a Matter of Life and Death

Some mistakes, of course, are more reparable than others. Failed corporate leaders and government officials can be replaced. Bad roads can be repaved. Victims of abuse can, at least, be counseled and compensated and have the satisfaction of seeing their tormenters exposed and punished. Even some irreparable mistakes (like fatal automobile accidents) are accepted by society as unavoidable.

And then there is the rarest and perhaps most horrifying of irreparable mistakes – the intentional execution of a person who has been wrongfully or improperly convicted of a crime. In the 21st century, North Carolinians appear to be less and less comfortable with the prospect of such an irreparable mistake. Spurred by disturbing reports of innocent men wrongfully sentenced to death row and compelling research about its disparate and almost random application, more and more North Carolinians are expressing the desire to revisit the death penalty. Though not yet willing to call for outright abolition, these people are anxious to see the death penalty system (and the cases of the people on death row) examined in order to see if things can be made to work in a fairer and more foolproof way.        

Legislators Hear New Evidence

Last week, a special committee of the state House of Representatives heard new evidence about mistakes in the use of the death penalty in North Carolina. The focus of the discussion: prosecutor errors of omission and commission. While a former District Attorney denied the existence of any widespread prosecutorial error based on his experience in three counties, experts with experience in other parts of the state offered compelling and disturbing testimony that the treatment of capital defendants varies dramatically, even wildly, from county to county.

Duke University Law School professor Jim Coleman, who teaches a course in wrongful convictions, cited specific examples in which prosecutorial misconduct (what he termed “the unprincipled exercise of discretion”) has led to miscarriages of justice. Coleman cited the public admission of one North Carolina District Attorney that his decision of whether or not to seek the death penalty had been a function of the kind of verdict he could reasonably expect from a “white jury” judging a white defendant. Coleman argued that it is simply wrong for a defendant’s fate – particularly a possible death sentence – to ride upon a prosecutor’s estimate of what he or she can “get a jury to do” rather than what is dictated by justice.

Coleman also held up North Carolina’s next scheduled execution – in the case of Guy LeGrande – as a classic example of what can happen when unprincipled prosecutor discretion meets up with incompetent defense counsel. As has been explained in many recent media accounts, LeGrande is a delusional person who was allowed to represent himself in his 1996 Stanly County murder trial. During the trial, LeGrande, who is African American, verbally harassed the all-white jury and wore a Superman t-shirt to court. No physical evidence was presented that linked LeGrande to the murder. Meanwhile, the prosecutor in the case, a man who gained notoriety for wearing a gold lapel pin shaped like a noose and for awarding such pins to assistant prosecutors who won death-penalty cases, has had two other death penalty verdicts overturned on appeal because of allegations that he withheld critical evidence. LeGrande is scheduled to be put to death this week.         

Veteran defense lawyer Joseph Cheshire, who has practiced before the courts of the large majority of the state’s counties, argued persuasively that errors by prosecutors (and defense attorneys) have contributed to North Carolina’s crowded death row. Cheshire noted that prior to the establishment of the state’s Office of Indigent Defense Services (IDS) in 2000, defense counsel quality for murder defendants could vary enormously from place to place and trial to trial. In many cases, persons were sentenced to death after having had their case presented by an inexperienced, overmatched and under-funded lawyer. Even today, he noted, improvements in quality are dependent upon the willingness of IDS lawyers to work at effective pay rates of as little as seven dollars per hour.    

Cheshire also spoke to the natural human and political pressures that encourage district attorneys to make successful prosecution and high penalties their top objective, despite the fact that their sworn duty is to seek truth and justice, whatever the result. Cheshire attributed many of the prosecutorial mistakes and misconduct that he has witnessed over the years to these pressures.

Preventing Future Mistakes

During last week’s hearing, speakers identified both near-term and long-term steps that might assist North Carolina in assuring that it does not commit the ultimate mistake of executing an unjustly convicted person.

Joseph Cheshire urged the panel to consider creating a new committee of veteran attorneys – perhaps including retired judges – that District Attorneys would be required to consult prior to seeking the death penalty. Such a system is already in place at the federal level. Lawyer Katherine Jean of the North Carolina State Bar, the agency in charge of meting discipline for prosecutorial misconduct, asked legislators to require local clerks of court to report to her office all instances in which new trials are awarded in response to allegations of misconduct. Jim Coleman, however, voiced concern that merely toughening penalties against overzealous prosecutors might only serve to drive the problem further “underground.” 

Outside of the House committee, many North Carolinians – both opponents and supporters of the death penalty – believe that the best way for the state to get a handle on the mistakes in this critical area is to enact a moratorium on executions. As previously passed by the state Senate and nearly passed by the House, a moratorium would place a two-year “hold” on executions while experts worked to determine what steps would be necessary to make the system foolproof or, at least, much less subject to failure. Murder prosecutions, with the possible imposition of death sentences, would continue during the two-year freeze. Lawmakers are expected to consider moratorium legislation once again in 2007.

Going Forward

Whatever route they choose to take, state leaders would do well to keep some simple facts in mind:

1. Even the best public and private institutions make enormous mistakes.
2. Many such mistakes are not immediately apparent.
3. Guy LeGrande and other death row convicts won’t be going anywhere if the state takes some additional time to make sure it gets things right. ~             

About the author

Chris Fitzsimon, Founder and Executive Director of N.C. Policy Watch, writes the Fitzsimon File, delivers a radio commentary broadcast on WRAL-FM and hosts "News and Views," a weekly radio news magazine that airs on multiple stations across North Carolina.