Death Penalty in North Carolina

You I Most of convicted murderer James Hutchins brought the attention of North Carolina's citizens to the death penalty.

A stare of execution by the State Supreme Court kept Hutchins alive at least 60 more days until March 16th when he is again scheduled to die by lethal injection. I'm Famital Henderson. UNC Chapel Hill Law Professor Dan Pollett comments on the death penalty in North Carolina. The death penalty now is reserved for those who are convicted of first degree murder. And first degree murder is you have to premeditate and deliberation deliberate. So there has to be some mental process which goes into it. It used to, the common law was lying in wait, for example, if you ambush someone, you lie and wait for them to come by, you have there's premeditation and deliberation. So if someone kills and takes life after they have after premeditation and deliberation that's first degree murder and then they can be executed for it. They don't have to be.

It's a jury up to the jury to decide if they find guilt. And they determine the sentence. And there are a series of aggravating factors and there are a series of mitigating factors. And an aggravating factor, for example, would be that it shoots a policeman or he is escaping from some other crime when he kills or he has a bad record. A mitigating factor would be that it's a young person. This is a first defense that he's driving the getaway car and he's not going into the 7-11 to commit the robbery, that sort of thing. So the jury looks at the mitigating factors and then looks at the aggravating factors and decide which outweigh the other and then they come to a decision which may be death. Now that sentence, the death sentence hasn't been used in state for a very long time. I think this would be the first execution in some 22 years.

And it seems like we can't decide whether to do away with it or not. What is the background? How often before has it been used? Our last execution was in 1961. And Terry Sanford commuted the death sentences thereafter. Then there were a series of Supreme Court decisions and it used to be in North Carolina that the death, if the jury found the accused person guilty and of first degree they could give death or they could give life. And there were no aggravating or mitigating factors to be considered. It was completely in the discretion of the jury. So the facts were, and I don't know whether there was a cause and effect, but the facts were, that in North Carolina, and in most places, a race had a good deal to do with it.

If you were charged with murder and were white and were found guilty of first degree murder, the chances were that you would get a life sentence, whereas if you were black and were found guilty, there was more chance that you would be found to get a death sentence. And if you did get the death sentence and if you were white, there was a greater chance that the governor would commute your sentence than if you were black. So the consequence was that of the capital offenses and that we had four until recently, there were rape and burglary and arson and murder. So the whites were charged, more whites than blacks were charged with these offenses. And more whites than blacks were found guilty of these offenses. More blacks than whites were sentenced to death and more blacks were executed.

But there was no, if you could take two, it doesn't matter, you take two blacks or you take two whites and they do the same type of offense, they each kill a policeman or they each hire somebody to do away with their spouse or they each kill a 78 year old neighbor. One of them would get life and one of them would get death and there was no rhyme or reason to it. So when the R case went up, R cases went to the Supreme Court along with cases from other states and the Supreme Court said that the death penalty is cruel and it is unusual, very unusual, and it's like being hit by lightning, there's no predictability about it and we can't have this. So the Supreme Court declared that the death penalty was cruel and unusual in violation of the Eighth Amendment to the United States Constitution.

Well, I went back to the states and what should we do about it and what North Carolina decided was to sentence everybody to death. Everybody who's found guilty of first degree murder gets a death penalty, regardless of anything, so it might be cruel but it certainly won't be unusual, everybody gets it. Georgia and Texas took the other approach and they said, let's give instructions to the jury, we'll have a mitigating, we'll have the things to be considered, they must consider them, the judge tells them and writing to consider them, then they have to weigh them and explain why they decide in life so it won't be by whim or caprice or prejudice, there'll be some basis for it and then the state Supreme Court has to review all the convictions to make sure that what happens in one county is not out of line with what happens in another

county so that there'll be a comprobility or they're all compared within the state boundary. So those cases went up to the Supreme Court along with the case from North Carolina and the Supreme Court said that the Georgia statute is okay because it's eliminated the caprice, the judge, the jury's are told what to consider and the state Supreme Court looks at all the death sentences to make sure that they're comparable in some way. The North Carolina law went up which was requiring everybody to get the death penalty and the United States Supreme Court said our law was unconstitutional, you have to look at the criminal as well as the crime, so our law was declared unconstitutional and everybody had to be retried. We had the largest number of people on death row of any state and they were all been convicted under an unconstitutional law so I had to redo it all.

So then the result was that we are present law which is like the Georgia law which the Supreme Court appealed where you do have the mitigating factors and the aggravating factors but those only come in if the jury finds that the person is guilty of first degree murder. The jury may find that the person is guilty of second degree murder and that means that there's no deliberation, pre-meditation, that they did it in the heat of passion. There was a plan poker and they had an argument or they'd been drinking wine and started argue about the bills and hit with a dish rag followed by the hammer followed by the shotgunner, something now that's not pre-meditated and deliberate, that's second degree murder for which you get life. So the jury still has this option to give second degree or first degree and that lends to Caprice and sometimes you can't tell, you can't forecast if this person does this

type of a crime or you get first degree or will you get second degree in a way of knowing. It depends on the mood of the jury, it depends upon the mood of the DA. Some DAs don't ask for first degree, they think that life imprisonment is enough and they won't have all the hassle that you have with the death case. So some DAs just ask for second degree. So it depends upon the DA, it depends upon the, it depends on a good deal on the DA. A lot of our death cases are centered where certain DAs are been elected to office. In a number of other states, not only North Carolina death sentences have been handed out and it seems like for a long time, you know, this is pretty close that you can't do this in nobody did, but now they decide, well, let's shake it off and start putting people to death over the past couple of years, it's been happening more, what prompted that?

Well, the law has became fairly clear that the Georgia type of law, where you do have the, where you guide the discretion of the jury with the aggravating and the mitigating factors with the appellate review of the sentence, that seems to satisfy the United States Supreme Court. Now, there's still cases that go up there, whether this can be aggravated or whether you can limit the mitigating factors, and there's no higher case where they had six mitigating factors, and that's all, and the Supreme Court said, no, you've got to look into the youth as well. This was a young girl driving the getaway car at a robbery, which resulted in a murder. And the Supreme Court said, you can't limit the mitigating factors. But these are sort of, the general principles have been established as far as the Supreme Court is concerned, so they've given it go ahead to the states, and if the states have

the kind of law, which has been approved in the North Carolina law, has been approved, unless there's something new, which comes along, I think we're going to see a lot of executions. Paula notes that people have been accumulating on death roles across the country, and the newspapers could be full of reports of executions, but that won't happen overnight. There's still a large segment of the community, which has turned off completely at the thought of the state executing someone, and amongst those are the defendants, and so they're going to fight it. And so when you have, when you ask for the death penalty, it just takes much longer and the appeals multiply, and the cost of the trial is very, very large. It's true, to keep a person in central prison costs somewhere 12, $15,000 a year, far more than sending them to Harvard or MIT.

And if you send somebody for life and they live 40 years, that's a lot of money, and that's, and it doesn't cost $36 to pay the executioner to inject the poison into the veins. Cost is not what makes the wheels go round in a democratic society. We try to do what's right, and if it costs a little more money, we're happy to pay it to do what's right. Certainly, we're willing to pay to make sure that there are no mistakes, and that's one of the problems in the executions. Thomas Jefferson said that he would fight for the abolition of the death penalty until he was satisfied with the infallibility of the human judgment. And Tom Wicker, a week or so ago, had a column on this very subject in which he said that the death sentence and Florida, there were questions. Did the man been at the homosexual gay bar at the time of the murder or had he not been? And then there was a situation in Arizona where the man was sentenced to death for arson.

He burned a bedroom where two of his children were. They were children by his wife, they were not his. After he'd been sent to jail, the wife went remarried, there was another child, and that child was burned. One question as to whether the husband was the one who really set fire. And in the Hutchins case, there's now questions as to his insanity at the time of the murder. What people don't know, I think, or maybe they do, is that this was a domestic squabble. The daughter called and said her father was drinking and was beating her. The policeman came and this is where there were more injuries to the policeman in this situation than in any other situation. And the policeman arrives and he's uniformed and he has a pistol and he is the authority of the state.

And the father who's been drinking says, get off my property, I have a right to beat my kid or whatever. He loses control of the situation and the psychiatrist said that he absolutely lost control. Well was he competent, did he have the ability to pre-meditate and deliberate? If he didn't have that capacity, then he's not guilty of first degree murder. And I mean, there are questions about that. Was the jury infallible in its judgment when they decided that he did have the capacity to make that deliberate? So I don't, I agree with Thomas Jefferson that the judge, human judgment is never infallible. There's always rooms for a mistake and that we ought to err in this regard on the side of life and rather than on the side of death. As for appeals, Paula points out the state Supreme Court can hear appeals based on arrows in the original trial.

The U.S. Supreme Court can be asked to review the case at the State Supreme Court of Holes of Death Sentence. That appeal must present arrows on the trial at the Supreme Court level. Any new issues must be carried to the original trial court. That new issue must be of constitutional dimension. If that fails, the Court of Appeals and Federal District Court can be appealed to again. Federal appellate courts and the U.S. Supreme Court are the next steps. All of this takes two to three years and a lot of money. I'm proud of the system in the Hutchins case where the governor was standing by and the State Supreme Court was judges, all of them were there on that Wednesday evening. The United States Supreme Court was standing by the telephone up there, ready to call the Chief Justice of the United States. Judge Phillips for the United States Court of Appeals was enrichment at his motel and he had a hearing at midnight. So the system responded generously without regard to expense and one has to be proud of the

system and the people who man the system. Questions of psychiatrists concerning Hutchins sanity were never heard by the jury, so that is a new issue. The State also makes it illegal to execute anyone insane. The effect of that obscure statute on the Hutchins case is unclear. Meantime, what other nations use the death penalty? The death penalty exists in the behind the Iron Curtain and it exists in South Africa and in China and in a few of the Muslim countries like Saudi Arabia and Yemen and in the United States, the other civilized countries of the world have done away with it, as have a number of the States. When we see our way through this, is there any likelihood that a binding decision on this will be made?

So I am emotional about this issue and I represented it as a lawyer to different people to a different time committed atrocious murders and if anybody deserves to die, they deserve to die. But I was still represented them because I was against the death penalty plus I didn't think they had the fair trial. That was some time ago and I was an original member of the North Carolinians against the death penalty which was found somewhere in the late 50s or early 60s but then I thought the problem had been solved. I really thought the problem had been solved that the death penalty had come to an end in the United States and I turned my attention elsewhere to other problems and I didn't update my materials or anything because I thought it was all over. Well obviously it's not all over.

Now I hope we find some better way of dealing with these social misfits and that's what they are. Couchins dropped out of school when he was in the sixth grade, his father beat his mother. He was an itinerant, low occupational standard, married his wife when she was 18. He had not graduated from high school. They lived from hand to mouth and he beat the wife, he beat the kids. This daughter would have been the first one to go to graduate from high school and everyone I've ever represented has a similar background of illegitimate raised by a maternal grandmother. Child neglect, the state takes them over and does a bad job of it. A literate or barely able to read and write. No opportunity to learn the differences between right or wrong or to appreciate them. Pollett favors long and carcerations for those he calls society's misfits.

He doesn't want the state setting the example of killing people. Well obviously you have two faces in a death case, you have the Gilderencens face and then the Sunancing face. Tom Stevens, Durham County District Attorney. He's been prosecutor and defense attorney in death cases. As a defense lawyer, you need to break it up into those faces, first you've got to represent your client in the first phase as best as you can in requiring the state to prove his guilt beyond the reasonable doubt, first degree murder before he can be convicted of that. And you can't look toward the second phase and forget the first phase because many times people are not guilty of crimes and obviously deserve as much emphasis on the first phase as the second phase. And then if he is convicted then you focus your attention on the second phase which is to try to save his life. And so it's completely separate two part phases with different emphasis on each phase.

Do you think that jurors, whether your experience at jurors tend to be reluctant still to hand out the death sentence? From my experience in the past, both as a defense lawyer and as a prosecutor, only in the most extreme cases, at least in this county, will jurors even consider the death penalty. In fact, we recently tried a death case here in Durham in which the death penalty was recommended and posed. And that was the first time that that has been done in Durham County which was done this year since the institution of the new law in 1977, although there had been six or eight other cases tried since 1977. This is the first time and of course it's 1984 now. This is the first time that a jury has recommended a death penalty in a Durham County case. I think that any juror would have to be absolutely and totally, not just beyond the reasonable

doubt, but beyond all doubt, convinced that the defendant who has charged and convicted the first criminal murder, in fact, committed that crime before they could get into the second phase of then deciding whether or not the crime was so heinous or the aggravating circumstances were such that it justified the imposition of the death penalty. And I think that once that is done, the weighing of those aggravating circumstances, that most jurors require even greater, more evidence and greater weight than the law would require before they come back with a recommendation of death. So I do think that even though you talk about the great burden, which is a great burden placed on jurors, that they take it seriously and that they do require a lot. And I think probably the statistics of the number of people who are on death road in comparison to the number of people who are, in fact, convicted of first-degree murder would bear out the fact that most folks that are, are in fact given a recommendation of a life sentence.

That reluctance on the part of jurors should make it difficult for prosecutors to decide to ask for the death sentence. How do you know that the case is good enough that you can? Well, under our law right now, as it stands, if there is evidence that would support the death sentence, then the prosecutor has no discretion at all, once he calls his case for trial, if it is the first-degree murder case and the fact support the conviction of first-degree murder. And even in his own mind, the death penalty is not particularly appropriate. The law does not allow him to announce that he will not ask for the death penalty because the facts and all will still be submitted to the jury in regard to the death penalty. And the law would require him under his oath to continue and give the jury those two options.

Now, North Carolina is right up at the top, or near the top, having no longer at the top, in the number of inmates that are on death road. If we do begin to kill people, it seems like we may just have wholesale bloodletting and that can seem somehow to be against what we believe in and who we are. Well, I mean, we've said a standard of laws. Our legislature has determined that in certain cases, only first-degree murder in this state, and only in aggravated first-degree murder cases, that a jury of 12 people, it would be appropriate for them to determine whether or not someone should die. And that's the law in this state. And it's like any other law, then 12 people decide that. And the question now is, well, we will abide by the law that our legislatures has passed, or whether we'll just completely disregard the 12, jurors, disregard the laws it is, and somebody, somewhere else, will decide differently.

And that's the law now, and I take it because of the legislative process, that at least is the majority opinion of the people of this state. The complaint that the use of the death sentence is arbitrary, and particularly unfair to blacks and societies have not, brought this response from Stevens. Well, we're getting into basically an oral, I mean, a moral position in response to that. I would just say that, again, of the 26 cases of murder in this county in 1982, two were prosecuted as first-degree cases in 1983. I don't recall the racial makeup of the defendants. But of other cases prosecuted in the last six or seven years in this county, some have been white, some have been black, and that is not a factor, as a practical matter, a factor that enters into at least this prosecutor's mind and a determination of the case.

Now it just might happen that the people who are charged, because of their background or whatever reason, has put them in a position where they have done things that they have done, and because perhaps they've not had some of the benefits that other people have had. But again, that's a societal thing, again, an issue that must have been brought up in the legislature, must have been debated, must have been argued at the time of the capital punishment, in capital offense decision in the legislation and the law of the state, and once we have all the eyes of prosecutor pretty much am duty-bound to follow it out. Something that prosecutors may be a bit upset about or frustrated by what seems to be an endless avenue of appeal, even though someone may have been convicted and be given, as we see in the Hutchins case, where any number of appeals happen, at the very last hour of seemingly, is this really serving justice? I don't think so, obviously prosecutors are frustrated by that.

First you have a jury of 12 people to decide whether or not this is an appropriate case or for the death penalty that they do, and they do that, and in the death cases that is the decision that they have made, from then on they are second-guessed by everyone in the world, including all of the judges, all of the appellate judges, everyone else. The decision is second-guessed, and it seems like every effort is made to show that they are in fact wrong, and their decision was an improper decision. So there is some frustration about the avenues that are used, and there is some question whether or not anyone would ever be executed in North Carolina, and that does not help the justice system because it doesn't have given the prosecutor a whole lot of leverage when he tries someone first to be murdered or decides to do that if the law is a hollow law and has no meaning.

We as a nation are at least to some degree conservative people, we're concerned about our welfare and the welfare of our families. I think most people, whether they would admit it or not, think that there is some deterrent in-calfal punishment. It's not all retribution. When I lay down at night, I personally feel that if my house is broken into and my family and I are there, and if doing the course of that break-in, I and my wife and three children are killed, that the person who does that break-in and kills us in doing the course of that criminal conduct should have to face more than just the possibility of going to jail for his natural life. I feel better when I lay down at night if I realized if that were to happen that he would at least have to, to someone, some jury could at least consider whether or not that was such a heinous crime that perhaps he should suffer more. I think other people feel the same way.

Davin's believes the sentence of life without parole will be more appealing than death to many jurors and would bring more convictions of first degree murder, but the death sentence isn't available to all and has been approved by the U.S. Supreme Court. And North Carolina may soon join the growing number of states that decide to use it. I'm Famigil Henderson for WUNC.