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. (2)

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 system.