UNEQUAL JUSTICE: How obsolete laws and unfair trials created North Carolina’s outsized death row
SEPTEMBER 2018
Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave of reforms transformed the landscape. Most of N.C.’s death row were tried before all of those reforms.
INTRODUCTION The death penalty is all but extinct in North Carolina. Juries have recommended only a single new death sentence in the past four years. Capital trials have become rare. The state hasn’t carried out an execution since 2006. Yet, North Carolina has the sixth largest death row in the nation, with more than 140 men and women. It is a relic of another era.
More than 100 of N.C.’s death row prisoners were sentenced in the 1990s, under wildly different laws. One was sentenced as far back as the 1980s. During those years, harsh sentencing laws would create an epidemic of mass incarceration and give the United States the largest prison population in the world. Even amid that backdrop, North Carolina had one of the highest death sentencing rates in the nation. North Carolina juries sent dozens of people a year to death row, more than Texas. The state’s courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant DAs. Prosecutors like Joe Freeman Britt in Robeson County, who bragged on national TV about his nickname, “World’s Deadliest DA,” while sending innocent teenagers Henry McCollum and Leon Brown to death row. Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave
of reforms transformed the landscape. New laws guaranteed capital defendants such basic rights as trained defense attorneys and the right to see all the evidence in their cases. A court mandate requiring prosecutors to seek death for virtually every first-degree murder — the only such requirement in the nation — was ended. All nine of the men who have been exonerated and freed from North Carolina’s death row were convicted before these reforms took effect. The system remains imperfect and, even in 2018, innocent people are threatened with the death penalty. However, the public’s views on capital punishment, and the frequency of its application, have changed dramatically. Today, the death penalty is seen as a tool to be used sparingly, instead of a bludgeon to be wielded in virtually every first-degree murder case. Yet, new laws and shifting public opinion have had little impact on prisoners sentenced in another era. The bulk of North Carolina’s death row is now made up of people who were tried 15, 20, even 25 years ago. They are prisoners of a state that has moved on, but has refused to reckon with its past. This report outlines the significant new laws that were passed after nearly three quarters of our death row was sentenced, and the unfairness that resulted. It concludes with a case profile that illustrates many of the system’s flaws.
North Carolina is home to the
6th largest
death row in the nation, with
142 PRISONERS after 2001
before 2001
73% or 103 prisoners currently on death row were tried before 2001, when the first in a series of reforms took effect.
REFORMS THAT CHANGED THE DEATH PENALTY
EYEWITNESS IDENTIFICATION & CONFESSION PROTOCOLS
DISTRICT ATTORNEY DISCRETION AND INDIGENT DEFENSE STANDARDS
DEFENDANT’S RIGHT TO EVIDENCE
BAN ON EXECUTION OF PEOPLE WITH INTELLECTUAL DISABILITIES
131 /142
were tried before a 2008 package of reforms intended to prevent false confessions and mistaken eyewitness identifications.
103/142
were sentenced before the creation of a statewide indigent defense agency that drastically improved the quality of representation for poor people facing the death penalty, and a law ending the 1990s-era requirement that prosecutors pursue the death penalty in every aggravated first-degree murder.
119/142
were tried before a law granting defendants the right to see all the evidence in the prosecutor’s file.
104/142
were sentenced before laws barring the execution of people with intellectual disabilities.
EYEWITNESS IDENTIFICATION & CONFESSION PROTOCOLS Many on death row convicted before safeguards to protect the innocent In 2008, the N.C. legislature passed a package of reforms intended to protect innocent people from being falsely accused. One required the recording of interrogations in homicide cases to avoid scenarios in which suspects signed false confessions written by police. Another set strict guidelines for suspect and photo line-ups, to prevent false eyewitness identifications. Many people on death row were sentenced based on confessions or eyewitness testimony given before these protections were in place.
KEY FACTS ABOUT EYEWITNESS IDENTIFICATION AND CONFESSION PROTOCOLS
Effective March 2008 131 death row prisoners tried before this reform Nationwide, mistaken eyewitness identification is the biggest contributor to wrongful convictions, playing a role in more than 70 percent of cases where people have been exonerated by DNA testing Hundreds of scientific studies have shown that eyewitness identification is frequently unreliable and that people’s memories are changeable A study by a Clemson University researcher found that juries rely heavily on eyewitness identification, and are more likely to convict based on eyewitness testimony than on DNA or fingerprint evidence One in four people exonerated by DNA in the United States has falsely confessed
ELRICO FOWLER
A questionable eyewitness identification, obtained by methods that are now illegal, was the key evidence against him At Elrico Fowler’s 1997 trial in Mecklenburg County, the state’s star witness, James Guzman, said he had no doubt that Fowler was the man he had seen two years earlier, standing in the lobby of a Howard Johnson’s motel, having just shot a man to death. Before leaving the stand, Guzman looked at Fowler and said, “I hope you fry, man.” Based largely on Guzman’s testimony, the jury convicted Fowler and condemned him to death for the murder of Bobby Richmond. But the jury never heard the true story of Guzman’s shifting identification. Guzman was the owner of a restaurant just off the hotel lobby, connected by a glass door. When he heard gunshots, Guzman lifted up a piece of paper covering the glass and peeked through the door, seeing the gunman for five seconds from across a smoky hotel lobby. Nobody, except Guzman, ever identified Fowler. Even a second shooting victim, who survived, didn’t identify Fowler. But Guzman had known Richmond and wanted to help identify his killer. About a week after the crime, investigators showed Guzman a line-up of suspect photos, which included Fowler. Guzman said none of the men in the photos looked familiar. Two days later, law enforcement circulated photos of Fowler and another man, Cullen Marshall, saying they were wanted in connection with the shooting. A day after those photos appeared in newspapers and on TV, Guzman returned to the police station, where investigators showed him two line-ups containing photos of Marshall. Guzman identified Marshall as the shooter. Another week passed, and police showed Guzman another photo line-up, this time including a photo of Fowler. At that line-up, Guzman said Fowler “most closely resembled” the shooter but that he couldn’t be sure. After Guzman chose Fowler, police confirmed that he picked the right man, saying Fowler had boasted of committing the crime. This improper police confirmation was not disclosed to Fowler’s trial attorneys. After that identification, authorities dropped Marshall as a suspect and only Fowler was prosecuted. Between his first identification of Fowler and the trial, Guzman went from describing the shooter as having a long nose and face to saying the man had a “boxer nose,” facial hair, and a knit cap — a description that more closely matched Fowler. And Guzman’s wavering identification changed to absolute certainty that Fowler was the man who committed the crime.
At the time of Fowler’s arrest, it was up to police to decide how to conduct lineups. In Fowler’s case, every practice now required to prevent false identifications was violated. The line-up was not recorded on audio or video. Guzman was presented with a group of photos all at once, allowing him to compare and choose the person who looked most like the killer relative to others, and the police in charge of the investigation conducted the line-up. Today, line-ups must be run by someone who doesn’t know the suspect’s identity. Photos must be presented sequentially, one after the other, and the witness is not told how many photos will be shown. After the identification, police did not take a statement from Guzman about his level of confidence. Under current law, that statement would be required and no information about the suspect would be provided until it was taken. Guzman’s testimony and identification of Fowler became the key evidence against him. There was no DNA evidence linking Fowler to the crime, no blood found on his clothing, no hair or fiber. A fingerprint found in the hotel lobby did not match Fowler. No murder weapon was introduced at trial. Aside from Guzman, the only evidence came from known criminals and police informants who said Fowler confessed to the crime after the fact. They testified against Fowler in hopes of receiving reduced sentences on their own criminal charges.
EYEWITNESS IDENTIFICATION & CONFESSION PROTOCOLS IN OTHER DEATH ROW CASES • The confessions of Henry McCollum and Leon Brown were written by law enforcement, using details from the autopsy and crime scene investigation. There is no recording of the hours the two teenagers spent in interrogation rooms without lawyers or their parents. Henry, who was 19, said he signed the statement only because investigators told him that if he confessed, he’d be allowed to go home. Henry and Leon were exonerated in 2014. • At Mitchell Holmes’ trial, the prosecutor said the eyewitness had “never wavered” in his identification of Holmes and two co-defendants. In fact, the witness’ first descriptions of the suspects were of entirely different people, and he picked Holmes out of a lineup only after seeing his mugshot in the newspaper. The witness had criminal charges dropped in exchange for his testimony against Holmes.
DISTRICT ATTORNEY DISCRETION An era of excessive death penalty trials and DAs with no power to choose life In the 1990s, N.C. was the only state that required prosecutors to seek the death penalty for every aggravated first-degree murder, regardless of other factors that called for mercy. This unprecedented mandate forced prosecutors to seek death sentences at more than 50 capital trials each year, even in cases where defendants were seriously mentally ill, intellectually disabled, or where weak evidence linked them to the crime. The trials came before DNA exonerations began to expose the system’s flaws, so juries voted for death dozens of times a year. The policy was perhaps the biggest driver of a decade of excessive death sentences, when as many as 34 people were sent to death row in a single year. In 2001, the N.C. legislature passed a law granting prosecutors discretion to decide which cases warranted the death penalty. After the law was enacted, the number of capital trials immediately plummeted.
KEY FACTS ABOUT DISTRICT ATTORNEY DISCRETION
Effective July 2001 103 death row prisoners tried before this reform In the 1990s, North Carolina averaged about 50 capital trials a year In the decade after 2001, when district attorneys were granted discretion over which cases to try capitally, the average plummeted to about 16 capital trials a year Some prosecutors have said the pre-2001 restrictions forced them to argue for death sentences even in cases where they didn’t believe death was the appropriate punishment Today, there are typically fewer than five capital trials each year In 87 of N.C.’s 100 counties, there have been no capital trials in the past five years
ALLEN HOLMAN
He had severe mental illness and was deeply remorseful, but the law allowed no mercy Had Allen Holman been prosecuted under current laws, he likely never would have faced the death penalty. He pled guilty and expressed deep remorse for shooting his wife, Linda, to death in a grocery store parking lot in Apex. Allen and Linda were both seriously mentally ill, and Allen did not plan the crime. Instead, the July 1997 killing followed an out-of-control argument. Afterward, devastated by his actions, Holman shot himself in the stomach, one of several suicide attempts both before and after the crime. Holman’s trial attorneys say that, in a private conversation, a Wake county prosecutor said the office would offer a sentence of life without parole “in a heartbeat” if the law allowed it. However, at the time, North Carolina was the only state in the nation that forced district attorneys to seek death in every aggravated first-degree murder. In 1998, a Wake jury sent Holman to death row. Under current law, defendants willing to take responsibility for their crimes are almost never prosecuted capitally. In Wake County today, defendants are tried for the death penalty only if they refuse to plead guilty to first-degree murder. If they agree to plead guilty, as Holman did, they receive a sentence of life without parole. Documented serious mental illness like Holman’s is another factor that, today, almost always leads a prosecutor to choose a life sentence over death. Even in cases that go to capital trials, Wake juries have not voted for a death sentence since 2007. They have chosen life without parole at nine death penalty trials in a row, including cases involving multiple victims and children. But, at the time of Holman’s trial, even people who pled guilty, committed unplanned crimes, or were so mentally ill that they could barely participate in their own defense ended up on death row. Holman was one of them. Allen and Linda Holman married in 1992. Allen had a history of depression and suicide attempts. Linda had multiple personality disorder and a substance abuse problem; Allen was her fifth husband. From the beginning, the marriage was fraught with violence on both sides. Shortly before the murder, Allen injured his back, lost his job, and attempted suicide. Linda asked Allen to move out. She told friends she wanted him dead and wished his suicide attempt had been successful. She openly resumed her relationship with an ex-husband, and then taunted Allen by displaying a nude photo of her lover in the bedroom she shared with Allen.
The jury that sentenced Allen to death, however, had little of this context. Allen refused to cooperate with his attorneys to present mitigating evidence of his mental illness. His lawyers failed to present any evidence of Linda’s personality disorder either. The jury never knew that Linda had repeatedly shot at and tried to stab Allen in the past, or that she was openly committing adultery. What’s more, Allen’s lawyers didn’t allow him to testify in his own defense, and no one told the jury of his deep remorse for the crime. While none of this evidence excused the murder, it would have helped explain Allen’s actions and might have persuaded the jury to vote for a life sentence.
At the time of Holman’s trial, even people who pled guilty, committed unplanned crimes, or were so mentally ill that they could barely participate in their own defense ended up on death row. Holman was one of them.
On death row, Holman’s remorse and mental illness have persisted. During a crucial period in his appeals process, he fired his attorneys and asked to be executed, so the courts were never able to fully review his case. Holman has since asked to resume his appeals, but he has already lost his chance to present key evidence to the courts.
DISTRICT ATTORNEY DISCRETION IN OTHER DEATH ROW CASES • Guy LeGrande was so mentally ill that he believed Oprah was speaking to him through the television. At trial, he fired his attorneys and represented himself wearing a Superman T-shirt, telling the jury to “kiss my natural black ass in the showroom window of Heilig-Meyers.” • Charles Bond was in a hospital when a man was shot to death in a convenience store parking lot across town. Despite not being present for the murder, he received the death penalty for his involvement in the kidnapping that led to it. • Levon “Bo” Jones was arrested three years after the crime and tried for his life without a scrap of physical evidence. The only incriminating evidence was the statement of his ex-girlfriend, who testified in exchange for a $4,000 police reward. Jones spent 13 years on death row before being exonerated.
INDIGENT DEFENSE STANDARDS The Constitution guarantees a defense, but some of the condemned barely got one A state agency, Indigent Defense Services, now coordinates the defense of poor people across North Carolina. It maintains a roster of experienced attorneys who are specially trained to represent defendants on trial for their lives. IDS ensures that attorneys are paid for the time they spend on cases at an hourly rate that, although much lower than private attorneys charge, is at least guaranteed. IDS also provides funding for experts and investigation. Before the legislature created IDS in 2001, attorneys were assigned to capital cases with little regard to experience or ability and paid at the discretion of judges, sometimes only after the trial ended – leading to subpar representation for many people facing the death penalty. Many people on death row today had no mitigation investigator to research their life history and few or no experts to testify on their behalf. Some attorneys spent as few as 10 hours preparing for trial.
KEY FACTS ABOUT INDIGENT DEFENSE STANDARDS
Effective July 2001 103 death row prisoners tried before this reform In 2002, a study by the Common Sense Foundation found that one in six death row prisoners was represented at trial by lawyers who had been disciplined by the State Bar for such offenses as committing felonies, embezzling money, or failing to properly represent clients The courts rarely grant relief to defendants who had incompetent lawyers — of the more than 400 people sentenced to death in N.C. since 1976, only 18 have been resentenced because of poor lawyering Today, capital defense attorneys spend an average of 350 hours representing a client on trial for his life
JOHNNY BURR
The trial went forward even after his unprepared attorneys begged a judge to postpone it Three days before Johnny Burr’s capital trial began in Alamance County in March 1993, his lawyers begged a judge to postpone the trial. They said they had not yet done the most basic work of defending their client, who was accused of beating a baby to death. The case hinged on hundreds of pages of medical records. They hadn’t begun to read them, nor hired any experts to help them decipher such complex information. Even as they selected a jury, the lawyers continued to plead with the judge to delay the trial, but the judge refused. Burr’s attorneys had been assigned to his case just two and a half months before the trial started, taking over for attorneys who had left the case in disarray. The lead attorney was in no position to start work on Burr’s case as he had another capital case set for trial in late January about five weeks before Burr’s trial. The other attorney had never tried a capital case; his law practice focused on real estate transactions. Both were solo practitioners and had no colleagues to call on for help. Burr stood accused of inflicting the head injury that killed his girlfriend’s 4-month-old daughter, Tarissa “Susie” O’Daniel. He had no history of child abuse, and has always said he is innocent. On that night in August 1991, Susie’s mother left her sleeping in Burr’s care for 45 minutes. When she returned, she found the baby unresponsive and lying in her swing. Burr noticed that Susie’s eyes had started rolling from one side to the other and he thought she was having a seizure. Susie’s mother told police that, earlier in the day, Susie’s 8-year-old brother accidentally dropped the baby on a gravel driveway and then fell on top of her. Afterward, she said, Susie had seizures and cried for more than an hour. Burr’s attorneys never hired a medical expert to investigate whether the fall could have caused Susie’s death. Instead, at trial, Burr’s attorneys conceded in opening statements that Susie’s fatal injuries occurred during the time Burr was babysitting her, which Burr denied. Most damaging to Burr’s defense, they allowed three doctors to testify that Susie had a severe skull fracture — it looked like “a pushed in ping-pong ball” — that could not have been caused by a fall. Even a quick read of Susie’s autopsy report would have told Burr’s lawyers that the doctors were wrong. Susie had no skull fracture.
Since Burr’s conviction, trial counsel have readily admitted that they did not provide Burr adequate assistance of counsel as required by the Constitution. Experts hired by his new defense team have examined Susie’s medical records and found that her fatal injuries could have been caused by the fall her brother described. Doctors who testified at the trial now say their testimony about a skull fracture was wrong, and that the fall might have been more serious than they knew. Yet, while a federal district court concluded that Burr’s attorneys provided inadequate representation, a higher court reversed the decision and denied him a new trial. Burr remains on death row.
The case hinged on hundreds of pages of medical records. When the trial started, Burr’s attorneys hadn’t begun to read them.
INDIGENT DEFENSE STANDARDS IN OTHER DEATH ROW CASES • Keith East’s attorney was a drug addict who landed five clients on death row in five years before being disbarred and convicted of several crimes. • Kenneth Neal’s attorney was a convicted child pornographer whose arrest had been widely publicized just a few years before Neal’s trial. The jurors discussed the attorney’s crimes as they weighed Neal’s fate. Neal’s attorneys also failed to present evidence of his intellectual disability, which later led to him being resentenced to life without parole. • JT Thomas is widely considered one of the most reformed prisoners on death row and suffered some of the worst childhood abuse seen in any case. Yet, his postconviction attorney doomed his appeal by filing a one-and-a-half-page motion that included no evidence and raised no legitimate legal claims. A judge swiftly rejected the appeal and did not allow a new one, even when more competent lawyers were appointed.
DEFENDANT’S RIGHT TO EVIDENCE Evidence that might have persuaded juries to choose life lies hidden in state files In October 2004, North Carolina became the first state to require prosecutors to provide defendants with all the information in their files before trial. It is now common practice nationwide. Before this reform, prosecutors were required to turn over only narrow categories of information, such as the defendant’s own statements and documents the prosecution planned to use at trial. Federal law also required that the state turn over evidence that could cast doubt on a defendant’s guilt, but it was up to the prosecutor to determine which documents met that criteria. Prosecutors often kept evidence that was favorable to defendants hidden in their private files, and the courts rarely punished them for it.
KEY FACTS ABOUT DEFENDANT’S RIGHT TO EVIDENCE
Effective October 2004 119 death row prisoners tried before this reform During the 1980s and 1990s, capital defendants and their attorneys often never saw witness statements, police reports, or other investigative records, or saw them for the first time after witnesses had testified at trial North Carolina adopted its first open file discovery rules for capital cases in 1996, but the new rules only applied to post-conviction cases, not to defendants on trial In 2004, N.C. was the first state to require prosecutors to open all their files to defendants on trial for their lives Since then, dozens of N.C. death row prisoners have found key evidence that prosecutors never disclosed at trial, including witnesses who were paid for their testimony and physical evidence that was destroyed or left untested
JOHNNY DAUGHTRY
Prosecutors hid key evidence that pointed to another suspect At Johnny Daughtry’s 1993 death penalty trial, the jury heard a simple story of a woman beaten to death by a spurned exboyfriend. Daughtry and Jennifer Narron had recently gone through a difficult breakup, and she was living with her new boyfriend, Michael Hopkins. At trial, the Johnston County prosecutor provided seemingly definitive blood evidence linking Daughtry to the murder and a letter from Narron to her sister, in which she wrote that she was angry at her sister for telling Daughtry where she lived — appearing to show that she was afraid of Daughtry. The jury found him guilty after just 45 minutes of deliberation and then voted for a death sentence. However, the prosecutor withheld key evidence that raised questions about Daughtry’s guilt and his role in the crime. The prosecution’s full file wasn’t turned over to Daughtry’s defense team until 2006, after he had lost all his appeals in state and federal court and was nearing execution. In the file, his post-conviction attorneys uncovered striking evidence that cast doubt on Daughtry’s guilt and, at a minimum, may have sparked enough doubt among the jurors to spare him a death sentence. Narron was beaten to death on the front porch of her new boyfriend Hopkins’ home with a piece of firewood taken from Hopkins’ woodpile. Hopkins, who said he was taking a nap in the room next to where the killing occurred, discovered Narron’s body and told police Daughtry was the likely culprit. At trial, prosecutors theorized that Daughtry killed Narron in a rage because she rejected him in favor of Hopkins. Yet, the jury never saw notes Narron wrote to Hopkins shortly before her death, saying she wanted to end their relationship. The prosecutor also withheld a second letter Narron wrote to her sister, in which she said she was considering reconciling with Daughtry. The prosecutor also failed to tell the jury that, just one month before Narron’s murder, Hopkins was accused of assaulting another woman on his porch with a board from the same woodpile. On the morning before Narron’s murder, Hopkins was in court on charges stemming from that assault. The prosecution also failed to divulge two separate statements Hopkins gave to police, both of which contradicted his testimony about his activities on the day of Narron’s murder. Such information could have made the jury less likely to believe Hopkins’ testimony. What’s more, the prosecutor kept secret critical evidence from the State Bureau of Investigation. One SBI report revealed that there were bicycle tracks next to Narron’s
body, and they didn’t match Daughtry’s bike. The owner of the bike was never found, and the tracks weren’t mentioned at trial. The prosecutor also withheld the results of blood tests on Daughtry’s clothing that were negative or inconclusive, as well as notes showing there were bloody footprints inside Hopkins’ house. In the years since Daughtry’s trial, the work of the SBI’s blood lab during that era has been widely discredited. When Daughtry’s attorneys finally saw the prosecutor’s file in 2006, they argued that exculpatory evidence was illegally withheld. At the time, the law did not require prosecutors to turn over their complete files to the defense. In 2010, a judge denied Daughtry’s appeal, saying the suppressed evidence was inconsequential and would not have changed the outcome of his trial. However, in 2011, the state Supreme Court said Daughtry should get a hearing to present the evidence. He remains on death row, awaiting that hearing. Meanwhile, in 2003, the Johnston County Clerk of Court destroyed all the physical evidence from Daughtry’s trial, including the murder weapon and Daughtry’s pants, preventing any new testing. Other items were lost and have never been turned over to the defense, including a recording of Daughtry’s police interrogation and a second bloody board found near the murder weapon. All defendants are entitled to a fair trial. Daughtry never got one and, with so much evidence lost, never will.
DEFENDANT’S RIGHT TO EVIDENCE IN OTHER DEATH ROW CASES • At Alan Gell’s 1998 trial, prosecutors withheld the statements of 17 witnesses who saw the victim alive up to a week past the day when Gell was accused of killing him, showing that the murder happened at a time when Gell had an alibi and could not have been involved. They also withheld a tape recording on which two teenage girls outlined a plot to incriminate Gell. He was exonerated in 2004. • In Johnny Street Parker’s case, the prosecutor suppressed evidence that there were other participants in the crime. A federal court has granted Parker a hearing to determine whether the hidden evidence might have changed the outcome of his trial.
BAN ON EXECUTION OF PEOPLE WITH INTELLECTUAL DISABILITIES Even after two Supreme Court mandates to spare them, prisoners with intellectual disabilities remain on death row Courts, lawmakers, and the public broadly agree that people with intellectual disabilities should not be executed, because they have a reduced ability to understand their actions, make rational decisions, and participate in their defense. In 2001, North Carolina passed a law exempting them from the death penalty. In 2002, a U.S. Supreme Court ruling made the ban nationwide. Despite these laws, some N.C. death row prisoners have not been allowed to present evidence of their intellectual disabilities. Others had their claims denied based on a strict IQ score cutoff, despite other indicators of disability – a practice the U.S. Supreme Court has prohibited.
KEY FACTS ABOUT BAN ON EXECUTION OF PEOPLE WITH INTELLECTUAL DISABILITIES
Effective August 2001 104 death row prisoners tried before this reform In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that executing people with intellectual disabilities violated the constitutional ban on cruel and unusual punishment In 2014, the Court went further, ruling that states must use established medical criteria for determining intellectual disability, rather than continuing to execute anyone who scored even slightly above the cutoff of 70 on an IQ test One-third of people who have been exonerated by DNA after falsely confessing to crimes were intellectually disabled or mentally ill The law requires evidence that intellectual disability began in childhood, which is more difficult for defendants who went to segregated schools that had no funding for psychologists or long-term record keeping
TIMOTHY RICHARDSON
He functions at the level of a 12 year old yet remains on death row despite new laws Timothy Richardson was born with fetal alcohol syndrome and had severe lead poisoning as a toddler, both of which cause brain damage and serious mental and physical disabilities. He failed in school and struggled to learn to read. As an adult, he was never able to live independently, hold a job, or handle his own daily care. He frequently put his clothes on inside out, and his wife had to remind him to shower. She also adjusted the water temperature for him. He relied on family for errands like grocery shopping because he didn’t understand how much money he had or came home with the wrong items. On two IQ tests, he scored below 70, the N.C. statute’s original cutoff for a diagnosis of intellectual disability. Yet, despite laws that prohibit the execution of people with such disabilities, Richardson remains on death row. Richardson was convicted and sentenced to death in 1995 for the kidnapping and murder of a convenience store clerk in Nash County, Tracy Marie Rich. The most significant evidence against him came from his confession, although people with intellectual disabilities are especially vulnerable to being pressured into false confessions. Richardson’s confession was not recorded or signed, which is required by law today. In it, Richardson said he was present at the crime, but that another man committed the murder. Yet, Richardson was the only person prosecuted. Police found a shoe print at the crime scene that did not match Richardson’s, but it was destroyed and never compared against other suspects. Had it matched the man Richardson named, it might have helped prove Richardson’s limited involvement in the crime. At trial, an expert told the jury Richardson functioned at the level of an 11 or 12 year old. But at the time, it was still legal to execute people with intellectual disabilities. Seven years after Richardson’s trial, the law changed to protect those defendants. Since then, Richardson’s post-conviction lawyers have compiled extensive evidence of his disability. Richardson’s mother drank alcohol heavily throughout her pregnancy with him. At three years old, Richardson was hospitalized after a blood test showed a lead level of eight times the acceptable limit. One expert said Richardson’s lead level was “like taking a shotgun and shooting at brain cells.” Beginning as early as 11 years old, Richardson compounded the damage by abusing drugs and alcohol. His drug use spiraled when he was a teenager after his brother was killed, and he remained addicted to drugs for his entire adult life.
The state, however, has pointed to two IQ tests where Richardson scored just above 70, and a judge dismissed Richardson’s claim of intellectual disability. In 2014, the U.S. Supreme Court once again addressed the issue of intellectual disability and the death penalty, ruling that it was illegal to base determinations of disability on a strict IQ cutoff as the courts did in Richardson’s case. The court said that states should instead consider the defendant’s IQ alongside his functioning in daily life to determine whether he is disabled. A federal court recently found that Richardson is entitled to a new hearing to present evidence of his disability under modern laws.
BAN ON EXECUTION OF PEOPLE WITH INTELLECTUAL DISABILITIES IN OTHER DEATH ROW CASES • Leon Brown and Henry McCollum were 15 and 19, and both had serious intellectual disabilities, when police pressured them into signing confessions to a rape and murder they did not commit. Brown was later resentenced to life without parole, but McCollum spent 30 years on death row before the brothers were exonerated in 2014. • Thomas Michael Larry failed first and fourth grades, was identified as a “slow learner,” and dropped out of school in sixth grade. On one IQ test, Larry scored a 69, but the courts have kept him on death row because of an IQ score of 74 on another test.
CASE SUMMARY:
NATHAN BOWIE
How outdated laws left a young man virtually defenseless against the death penalty
NATHAN 4, IN PHILADELPHIA
At one of their first meetings, Nathan Bowie’s court-appointed lawyer showed up smelling of alcohol. But Nathan was 20 years old and charged with capital murder. His attorney’s taste for cocktails over lunch seemed the least of his problems. “I just looked at it like, hey, he had a couple drinks or something.” Nathan’s attorney was Thomas Portwood, an alcoholic who would later admit to drinking 12 shots of liquor a day. During the time he represented Nathan, Portwood had a car accident where his blood alcohol was measured at more than 0.4, high enough to cause coma or death. Before he died of an alcohol-related illness in 2003, Portwood landed three clients on death row in just two years. Nathan was the first. When Nathan thinks back on his trial, he sees a car with Portwood at the wheel. “He’s driving and I’m in the backseat. We’re getting ready to crash, but I don’t know it.” Nathan doesn’t deny that he committed a terrible crime in Catawba County in May 1991. Nathan and his uncle, William Bowie, went looking for two men who, the day before, had threatened and shot at Nathan’s aunt. When Nathan and William found the men, Calvin Wilson and Nelson Shuford, they shot and killed them. Nathan sees that his actions caused immense pain. He knows he deserves to be punished. But, 25 years after his 1993 trial, he remains haunted that the twelve people who held his life in their hands, and decided it was worth nothing, never knew him. “The truth is supposed to come out,” says Nathan, one of death row’s longest-term prisoners. “I wanted it all to come out. And then, even if you get the maximum punishment, at least you get to tell the whole story. But that jury, they didn’t know me at all.” Nathan’s case was emblematic of capital defense at the time. Portwood was appointed as lead attorney, despite well-known problems with alcoholism. The second-chair lawyer had practiced less than three years and had no training in capital defense. Just out of high school and lost in a system he couldn’t fathom, Nathan didn’t realize they were woefully unprepared to make a case for his life. “I just figured, these are lawyers that went to school. These are people that the court appointed. If I don’t trust them, who am I going to trust?” Were Nathan tried today, he likely would not face the death penalty. Prosecutors now try
Nathan’s attorney was Thomas Portwood, an alcoholic who would later admit to drinking 12 shots of hard liquor a day. Before he died of an alcohol-related illness in 2003, Portwood put three clients on death row in just two years.
only a tiny percentage of first-degree murders capitally. In Catawba County, no one has been sentenced to death for 20 years. However, in the 1990s, North Carolina law forced district attorneys to seek death in every first-degree murder with an aggravating circumstance – an unprecedented mandate that has since been reversed. While it lasted, the practice propelled North Carolina to one of the highest death sentencing rates in the nation. In 1993, the year of Nathan’s trial, 33 people were sentenced to die in North Carolina. Even if Nathan were tried capitally today, a state agency, Indigent Defense Services, would ensure him trained attorneys and funding for investigators and experts. At the time, however, judges selected each defendant’s lawyers from a list of local attorneys willing to represent poor people charged with crimes. The pay was uncertain, and often the most experienced attorneys refused to take court-appointed cases. As Nathan’s trial began, his attorneys hadn’t done the basic work of gathering records, hiring experts, or interviewing witnesses who would testify for Nathan. Today, this type of mitigation investigation — which reveals the client’s life history and capacity for redemption — almost always persuades juries to spare defendants’ lives. Portwood’s opening statement didn’t mention a single fact about Nathan or his case. A handful of witnesses testified for Nathan, but the attorneys failed to prepare them so they revealed only a fragmented picture of an upbringing plagued by homelessness, sexual abuse, addiction, and domestic violence. Nathan’s mother was addicted to alcohol and drugs and his father was mostly absent. He entered foster care at 12. From age 13 to 19, he lived in Sipe’s Orchard Home in Conover, N.C., a facility for troubled children. Workers there molested boys and hurled racial slurs. Nathan slept with a large stick he called his “protector” to fend off nighttime attacks by staff. But Nathan’s lawyers never read his records from Sipe’s or interviewed staff there, so they didn’t know enough to object when prosecutors told the jury Sipe’s was a wholesome environment for boys. They didn’t ask a single witness from Sipe’s to testify for Nathan, even though several were willing. The prosecutor used this lapse to argue that Nathan was irredeemable and should get a death sentence. “Did you hear anybody come in here from Sipe’s Orchard Home and say what a wonderful kid Nathan was? Huh? Where were they?” the prosecutor told the jury. “Think about it.”The prosecutor knew his arguments weren’t true. His office had prosecuted a Sipe’s staff member for molesting boys there. And the home’s director had written to the district attorney’s office, offering to testify for Nathan and saying he was “a favorite of several staff members.” Today, the law gives defendants full access to the prosecutor’s files, but at the time, the prosecutor could keep that information to himself.
NATHAN (FAR LEFT) AT HIS 4TH BIRTHDAY PARTY
Nathan’s appeals attorneys, Alex Charns and Steve Edelstein, say that if Nathan’s lawyers had told the full story of his troubled childhood and his time at Sipe’s, he probably would not have been sentenced to death. “It’s horrendous lawyering,” Charns says. “It’s deadly lawyering.” Of Portwood’s three clients who went to death row, only Nathan remains. In 2001, Ronald Frye was executed. Portwood failed to present any evidence of Frye’s horrific childhood at his 1993 trial. When Frye was three, his mother gave him away to a couple she met at a gas station. The man was a violent alcoholic who beat Frye with a bullwhip, leaving what witnesses described as “bloody stripes” on Frye’s body. The beatings went on for six years before the man was arrested for assault. A police chief later used Frye’s childhood photos as examples at child abuse seminars. Afterward, Frye bounced from an orphanage to the home of his abusive father who abandoned him at birth, back to the mother who gave him away. He never received treatment for his childhood trauma and instead self-medicated with drugs and alcohol. Portwood’s other death row client was Glen Edward Chapman, whose conviction and death sentence were overturned in 2008, in part because of Portwood’s inadequate work. Despite obvious leads in the police files given to the defense before trial, Portwood failed to investigate whether another person, and not Chapman, committed the crime. The prosecution ultimately dismissed all charges against Chapman, after he spent nearly 14 years on death row. After Chapman’s trial, Portwood’s alcoholism became so debilitating that he was removed from another death penalty case. In Nathan’s eyes, Portwood’s most glaring failure was allowing prosecutors to create a false picture of the crime and his motives. The state portrayed Nathan as a gang member who killed for sport with, in one prosecutor’s words, “less feeling than I would have if I stomped an ant by mistake.” In truth, Nathan had no history of violence and was not in a gang. Despite his troubled childhood, he graduated high school as a beloved star of the football team. He got a job in a lumber yard and began studying to be an electrician. A couple months before the murders, seeking a fresh start after a breakup, Nathan moved to Philadelphia.
A few weeks after the move, Nathan returned to North Carolina. During the visit, Nathan went to his Aunt Rochelle’s house and found William on the porch, distraught. William said that, a few hours earlier, Wilson and Shuford shot at Rochelle in the street. His aunt was hiding in a bedroom with her children, afraid that the shooters were hunting her. Nathan and William decided to confront the shooters. Believing the men were armed, Nathan and William carried guns. “This is max alert, max danger,” Nathan says. “And that means I’m max scared.” Nathan says he saw himself as a protector, trying to resolve a situation that threatened his family. He says his plan, when he found the men, was to get answers. “I got a million questions in my head. Why are you shooting at my aunt and uncle? Did my aunt threaten NATHAN AND HIS FATHER you? Tell me why.” But the conversation never happened. Nathan and William found Wilson and Shuford under a tree with a group of other men. One of them shouted, “What’s up?” Nathan believes the words carried an angry challenge, not a friendly greeting. Facing a group of five or six men, Nathan says he panicked and fired blindly. His uncle also fired shots. Then they ran, leaving Shuford dead and Wilson with a head wound. He died days later. Now 47 and sitting behind thick glass and bars in a visiting booth at Central Prison, Nathan wishes he had never gone to that street corner with the delusion that he could protect his troubled family. He wishes he’d called the police instead. He wishes for something to offer the families of the people he killed that day, other than heartbreak and loss. Part of him is still the young man who sat in a courtroom all those years ago, desperate to be understood. He wishes the jury had seen him as he was then — a kid barely out of high school, trying to be brave for the sake of his family. A kid who made a snap decision he can never take back. “In that moment, I’m scared. I’m ready to die. It was panic, them coming at us. I was scared. I was scared.” He begins to cry. “I’m not a bad person,” he says, as if he is still trying to convince himself. “But I made a big mistake. A huge mistake. A huge mistake.”
CONCLUSION
The death row prisoners profiled here represent just a handful of the more than 100 who were tried under outdated laws, but their cases reflect widespread problems. In writing this report, CDPL reviewed the court filings of dozens of N.C. death row prisoners. In case after case, we found botched defenses, police investigations that didn’t meet modern standards, and prosecutors who kept critical evidence hidden from defense attorneys. Every case was tried before district attorneys had the right to weigh all the evidence, including factors that call for mercy, before deciding whether to pursue a death sentence. The conclusion is inescapable. Had they been tried under modern laws, almost none of them would be on death row today. Yet, these men and women, many of them condemned more than two decades ago, would be first in line for lethal injection if North Carolina were to resume executions.
The Center for Death Penalty Litigation 123 West Main Street, Suite 700 Durham, North Carolina 27701-3228 www.cdpl.org
Thanks to the Z. Smith Reynolds Foundation and The Open Society Foundations for their support of CDPL’s work.