The Center for Death Penalty Litigation

A life condemned: Remembering my client who died on death row

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CDPL staff attorney Elizabeth Hambourger writes a moving essay about her client, Terry Ball, who recently died of natural causes after 24 years on death row. “Terry Ball caused a lot of pain in his life, and he also experienced more than his share. The same is certainly true of most of the thousands of men and women still on our nation’s death rows. This is who we sentence to death: the most damaged, the most abused; traumatized children who grow into adults without learning how to cope with their fear and anger. The death penalty says these lives have no value. I disagree.”

Read the full essay here.

A life condemned: Remembering my client who died on death row

CDPL celebrates Osborn & Amsterdam award winners

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On Sept. 28, CDPL honored two of our community’s most outstanding capital defense attorneys: Elaine Gordon, the winner of this year’s Osborn Award, and Ken Rose, winner of the Amsterdam Award. [Go here to read more about their exceptional careers.] Our community shared a beautiful evening at Parizade in Durham. It was an event that reminded us of the urgency of our work and the incredible commitment of our colleagues.

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Jury chooses life not death for CDPL client Campbell

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On Wednesday, a Granville County jury deliberated only about two hours before rejecting the death penalty and sentencing CDPL client Eric Campbell to life with no possibility of parole.  In the end, adding the threat of execution to the mix only made this tragic case more painful and protracted.

Campbell was represented at trial by William Durham, CDPL’s director of Investigative Services, and Amos Tyndall.

The trial started in May, with the arduous process of selecting a “death-qualified” jury, which means finding people who are willing to vote for a person’s execution but also able to consider circumstances that call for mercy. Jury selection took more than three weeks. In a non-capital trial, it usually takes two or three days.

The trial was lengthened by several extended breaks, including one after the jury had difficulty in deliberations due to the emotional intensity of the case and then a juror was involved in a serious car accident. The guilt phase alone lasted nearly two months. Add another week for the penalty phase, which happens only in capital trials — and in this case involved bringing in witnesses from Texas who had just endured Hurricane Harvey.

All this to seek the death penalty for a young man who the jury, during sentencing, found was a minor participant in the event and acted under the domination of his father.

Eric’s mentally ill and abusive father, Edward Campbell, planned and carried out the brutal murders of Jerome and Dora Faulkner. Edward, who terrorized Eric throughout his childhood, brought his 21-year-old son along mostly as a frightened spectator. Edward killed himself in jail, leaving Eric to face murder charges alone.

The trial carried a huge cost for everyone involved — the jurors, the attorneys, the DA’s office, the community, and almost certainly, the family of the victims. All to arrive at a result that could have been achieved in a couple weeks instead of several months.

The Unlikely Exoneration of Henry McCollum

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Of all the men and women on death row in North Carolina, Henry McCollum’s guilty verdict looked airtight. He had signed a confession full of grisly details. Written in crude and unapologetic language, it told the story of four boys, he among them, raping and suffocating 11-year-old Sabrina Buie. His younger brother, Leon Brown, also admitted involvement in the crime. Both were sentenced to death in 1984.

Leon was later resentenced to life in prison. But Henry remained on death row for 30 years and became Exhibit A in the defense of the death penalty. U.S. Supreme Court Justice Antonin Scalia pointed to the brutality of Henry’s crime as a reason to continue capital punishment nationwide. During North Carolina legislative elections in 2010, Henry’s face showed up on political flyers, the example of a brutal rapist and child killer who deserved to be executed.

What almost no one saw — not even his top-notch defense attorneys — was that Henry McCollum and Leon Brown were innocent. In 2014, both were exonerated by DNA evidence and, in 2015, then-Gov. Pat McCrory granted them a rare pardon of innocence.

In a new report, the Center for Death Penalty Litigation — which represented McCollum for the last two decades he spent on death row — tells the story of how two intellectually disabled teenagers were pressured into signing the false confessions that sent them to death row and how they were finally able to prove their innocence.

Henry and Leon’s case is not so much a lesson in how wrongful convictions are uncovered as it is a warning of how easily they can be missed entirely. If not for a complex and unlikely chain of events that unfolded over decades, Henry and Leon would likely have remained in prison for the rest of their lives. Henry might have been executed.

READ THE REPORT

2017 Osborn & Amsterdam Awards: Elaine Gordon & Ken Rose

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Thank you to our sponsors!

Fighters ($1,000) — Marcia Angle & Mark Trustin, Frank Baumgartner & Jennifer Thompson, Donald Beskind & Wendy Robineau, Buddy & Lisa Conner, Burton & Heather Craige, Jay & Kay Ferguson, Elizabeth Kuniholm, Megerian & Wells, Glenn, Mills, Fisher & Mahoney, P.A., N.C. Advocates for Justice, Sallenger & Brown, LLP, Adam & Jane Stein, Hon. Mary Ann Tally, Amos Tyndall

Defenders ($500) — Lisa Dubs & Steve Ehlers, Barbara O’Brien, Wanda & Tye Hunter, Janet Moore & Neil Tollas, David Neal & Jennifer Weaver, Rich Rosen & Rebecca Slifken, Steve Schewel & Lao Rubert, Faith Spencer & Mark Parts

Advocates ($250) — Cindy Adcock & Pat McCoy, Jack & Jennifer Boger, Ken & Margie Broun, Buzzard Law Firm, Robert Campbell, Harvey A. (Alec) Carpenter IV, Paul Castle, Richard Dieter, Samuel B. Dixon, Cait Fenhagen, Dionne Gonder-Stanley, Catherine Grosso, Nora Hargrove, Henderson & Renee Hill, Staples & Tamsie Hughes, Robert M. Hurley, Vicky McGee, Robert Mosteller, Christine Mumma, Ann Petersen & James Glover, Harold G. “Butch” Pope, Jenny Warburg, Susan Weigand, Susan J. Zach

Friends ($100) — Anna Arceneaux, June Arlinghaus, Bradley Bannon, Joseph Blocher, David Botchin, Ginger Calloway, Hon. Pat Devine, Drew Dulberg, The Elliott Group, Tom Fewell, Ronald Foxworth, Ted Frazer, Terrica Ganzy, Glenn Gerding, Alyson Grine & Karen Stegman, Vicki Jayne, Kate Joyce & Jeff Miller, Peter Kuhns, Thomas Maher, Massengale & Ozer, Deb H. McNeill, Melissa Michaud, North Carolina Justice Center, Vincent F. Rabil, Kenneth Ransom, Tonza Ruffin, William Simpson, Helen Spielman, Fred Spielman, Cassandra Stubbs, Jake Sussman, David Teddy, Bob Trenkle, Paul Welch

The J. Kirk Osborn Award

J. Kirk Osborn

It has now been a decade since we lost J. Kirk Osborn, one of the giants of the capital defense community. Kirk defended more than a dozen capital cases and never had a client sentenced to death. His advocacy and deep compassion for his clients saved many lives, and inspired other attorneys to follow in his footsteps.

This year, the Center for Death Penalty Litigation will once again honor Kirk’s legacy by presenting the J. Kirk Osborn Award for lifelong zealous advocacy, compassion for indigent men and women facing the death penalty, and leadership among capital defense attorneys. The 2017 award will go to Elaine Gordon, another warrior against the death penalty and a pillar of the capital defense community.

Elaine began her career as a public defender, working in Atlanta, Washington D.C. and Durham. In 2002, she joined CDPL’s Trial Assistance Unit and took on her enduring role as a consultant on capital cases across the state. She moved to the N.C. Office of Indigent Defense Services’ capital defender’s office in 2011, where she continued in her role as a compassionate ear and expert advisor for every North Carolina lawyer who has faced the awesome responsibility of defending a capital client at trial. She has helped to train virtually every capital trial attorney in North Carolina.

Elaine Gordon

Elaine always emphasized the importance of lawyers building strong relationships with clients. She developed critical resources for helping defendants facing the death penalty fully understand the risks of capital trials and make smart decisions in their own cases. Capital attorneys knew her as someone they could call at any time of the day or night, who never turned down an opportunity to help them bring a case to the best resolution. Many capital defense attorneys say she is a key reason why death sentences in North Carolina have fallen so dramatically in recent years.

“There are few attorneys who care for their clients – who truly see the value in their lives – as Elaine does. Her ability to build relationships with even the most broken of clients is simply magical,” writes Anna Arceneaux, a senior staff attorney with the ACLU’s Capital Punishment Project. “Capital clients across the state have taken life-saving pleas for no other reason than that they loved Elaine. Because they felt so deeply how much she cared for them and knew she would only recommend it if it were in their best interest.”

Elaine also took on her own clients, including death row inmate Shawn Bonnett. She visited Bonnett every month for 15 years, gaining a deep understanding of the conditions on death row and the unfairness of the death penalty. Bonnett was one of four people who participated in a robbery that led to a man’s murder. He was neither the shooter nor the mastermind of the crime, yet he was the only one of the four to receive the death penalty. Elaine fought ceaselessly until Bonnett finally won relief and was removed from death row in 2014. She says Bonnett’s suffering on death row motivated her to keep other defendants from ending up there.

She has also won the Fair Trial Initiative’s Mary Ann Tally Award for “dedication and leadership that elevates the practice of capital defense,” as well as the Charles L. Becton Award for Teaching from the N.C. Advocates for Justice.

The Anthony G. Amsterdam Award

Tony Amsterdam

This year for the first time, CDPL will also present the Anthony G. Amsterdam Award, in honor of Tony’s relentless and groundbreaking work to end the death penalty. Tony argued in front of the Supreme Court on multiple occasions, and always refused to mince words about the systemic racism and unfairness that infects our capital punishment system. Tony is best known for winning Furman v. Georgia, which effectively stopped executions for nearly a decade and forced a complete overhaul of the American death penalty. He is the architect of the modern strategy to end the death penalty.

Ken Rose was the obvious choice for the Amsterdam Award, as he is North Carolina’s version of Tony. All of us in the capital defense community know Ken as our visionary, whose passionate pursuit of relief for his clients has transformed the landscape in North Carolina. Thanks in large part to Ken’s innovative ideas and impact litigation, and his refusal to give up despite the odds, executions have been on hold for more than a decade and groundbreaking evidence of racial bias in capital cases has come to light in North Carolina. Ken also saw two of his death-sentenced clients, Henry McCollum and Bo Jones, released. McCollum received a pardon of innocence from the governor in 2015.

Ken retired from his longtime post as a senior attorney and former executive director at CDPL at the end of 2016. He had come to North Carolina in 1989, a young lawyer who began his career in Georgia with the idealistic notion that a poor criminal defendant facing the death penalty should get the same quality of defense as a deep-pocketed corporate client. He grew into one of North Carolina’s most respected and visionary death penalty attorneys.

Ken Rose and his client, Henry McCollum – ©Jenny Warburg

Ken pushed for the passage the N.C. Racial Justice Act, a first-of-its-kind 2009 law that exposed decades of systematic racial bias in capital jury selection. He is also a key player in North Carolina’s lethal injection litigation, which has kept executions on hold here for more than a decade – an achievement that no other southern state has even approached.

Through it all, Ken never lost the idealism or the passion that has driven him since his earliest days. He never stopped being surprised – and outraged – at injustice. He never stopped plotting how to outwit the machinery of death, constantly dreaming up creative strategies that pushed boundaries and set precedents. And he never stopped representing every client as if both of their lives depended on it.

“Ken is both fearless and relentless on behalf of his clients,” says CDPL’s Executive Director Gretchen M. Engel. “There were times when he made judges and opposing counsel furious with his arguments. You could cut the tension in the courtroom with a knife. Most lawyers would have lost their nerve and started backpedaling.  Ken was eerily calm and he never backed down.”

Read more of our tribute to Ken’s extraordinary career here.

 

For CDPL client, an 18-year journey to justice

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In 1999, David Gainey was sentenced to death in North Carolina based almost entirely on his own confession — even though that confession was coerced and clearly contradicted the physical evidence in the case. Among the facts Gainey got wrong were the location of the shooting, the number of shots fired, the victim’s state of consciousness after the shooting, and the location of the weapon.

Last week, in light of serious questions about his role in the crime, Gainey won a new sentence. He agreed to plead guilty to second-degree murder and will serve 26 years.

It was a long overdue resolution in a case that underscores the waste and sloppiness of our capital punishment system. Gainey was a former client of CDPL, and our attorneys began their fight to overturn his sentence 15 years ago. It took nearly two decades, the work of dozens of lawyers, and untold thousands of dollars to expose the injustice of Gainey’s death sentence and reach a just conclusion.

Gainey is yet another example of North Carolina’s penchant for pursuing the death penalty in cases with flimsy evidence. Rather than fully investigating crimes, law enforcement frequently uses the threat of execution to pressure suspects into confessing. It was this type of police work that led to the false confessions of Henry McCollum and Leon Brown, who were exonerated in 2014, three decades after being sentenced to death for a murder they did not commit.

In Gainey’s case, just like McCollum and Brown’s, police had little to go on except an inconsistent confession dragged out of him during hours of interrogation. When a team of two CDPL attorneys and a mitigation investigator were assigned to Gainey’s case in 2002, they quickly discovered a case full of holes.

Police arrested Gainey in 1998, after he was spotted driving a car belonging to Dwayne McNeill, an 18-year-old from Harnett County who was missing and later found dead. Investigators used coercive tactics, including threats to charge Gainey’s younger brother with the crime, to elicit three separate and conflicting confessions. The police investigation ended with Gainey’s confession, meaning that clues that might have pointed to a different killer were never gathered.

Despite the many questions raised by Gainey’s confession, the N.C. Supreme Court affirmed his conviction and death sentence. But after extensive investigation by CDPL’s team, the Supreme Court took the rare step of granting Gainey a new evidentiary hearing.

At the hearing in 2009, CDPL attorney David Neal and private attorney Don Cowan presented strong evidence that their client’s confession was false and unreliable, and they showed that the state had withheld critical evidence from the defense at trial.  Superior Court Judge Gregory A. Weeks ordered a new trial.

Since then, CDPL Board Secretary Buddy Conner has been part of Gainey’s defense team. He and Chatham County attorney Bob Trenkle worked for years to reach last week’s deal, which finally removes David Gainey from the shadow of the execution chamber for good.

In a just system, Gainey would never have been tried capitally to begin with and tens of thousands of dollars would have been saved.

CDPL attorneys secure life sentence in Wake capital trial

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CDPL attorneys Elizabeth Hambourger and Vernetta Alston were part of the team that won a life sentence for Nathan Holden in Wake County on March 3. The jury rejected both the state’s claim that the murder was premeditated and that the death penalty was warranted. It was the eighth capital trial in a row in which a Wake County jury chose life without parole over a death sentence. Here you can watch Elizabeth Hambourger give her moving closing argument, in which she asked the jury to save her client’s life.

Saving the Lives of our Most Vulnerable Clients

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Clients with intellectual disabilities are some of the most vulnerable people we represent. On April 13 in Raleigh, CDPL will host a one-day continuing legal education seminar on representing clients with intellectual disabilities in capital cases — and saving their lives. For attorneys and mitigation investigators appointed to represent indigent capital defendants. Enrollment is limited and preference is given to first-time attendees. Cancellations after April 6 are non-refundable.

CLICK HERE TO REGISTER

Learn more about intellectual disabilities and the death penalty in North Carolina at NCDeathPenalty.org.

 Full agenda:

The Center for Death Penalty Litigation Presents

WORKING WITH OUR MOST VULNERABLE CLIENTS AND SAVING THEIR LIVES:
THE DEFENSE OF CLIENTS WITH INTELLECTUAL DISABILITIES IN CAPITAL CASES
North Carolina Advocates for Justice Headquarters, 1312 Annapolis Drive, Raleigh
April 13, 2017

8:45     Registration (coffee provided)

9:10     Welcome

9:15     Overview of Intellectual Disabilities Law — Gretchen M. Engel                         

From Atkins v. Virginia to Hall v. Florida and Brumfield v. Louisiana, as well as N.C. Gen. Stat. §15A-2005 and its 2015 revisions.

10:00   Identifying Persons with Intellectual Disabilities —  J. Gregory Olley, Ph.D.   

Explanation of the diagnostic criteria for intellectual disability and a discussion of common pitfalls that cause defense teams to fail to recognize their clients’ deficits.

11:00   Break

11:15   Ethical Challenges of Representing Intellectually Disabled Clients — Hon. Mary Ann Tally & J. Gregory Olley, Ph.D.

How to ensure that your intellectually disabled client makes knowing and intelligent decisions about plea bargains and at trial.

12:30   Lunch (on your own)

1:45     Investigating Adaptive Functioning — Odalys Rojas                                           

Document collection and witness interviews needed to identify and prove deficits in adaptive functioning.

2:45     Presenting a Compelling Case of Intellectual Disability — Joseph E. Zeszotarski

How to persuade the prosecutor, judge, or jury of your client’s intellectual disability.

3:30     Adjourn

Total CLE hours: 4.75, including 1.25 hours of ethics

Register here. With questions, contact Barrie Wallace: barrie@cdpl.org.

CDPL client resentenced to life due to racial bias in court

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Last week, a CDPL client who spent nearly 20 years on death row was re-sentenced to life in prison without parole. This was a sane resolution to a senseless and much-regretted crime committed by a deeply troubled teenager.

Phillip Davis was re-sentenced with the full of support Buncombe County District Attorney Todd Williams, who acknowledged unfairness in Davis’ case. “Our system has built-in checks on abuses such as discrimination and prosecutorial misconduct. When the system is not allowed to work as it’s naturally intended to, that’s when you have a problem,” Williams told the Asheville Citizen Times.

Davis was represented by Shelagh Kenney, CDPL’s Director of Post-Conviction Litigation, and Mark Kleinschmidt.

Davis was among the more than three-quarters of N.C. death row inmates who were sentenced to death before 2001, when vastly different laws led to dozens of people being sent to death row each year. Now, with executions on hold for a decade and juries imposing an average of only one death sentence a year, they languish on death row year after year.

Settling these old cases for sentences of life imprisonment with no possibility of parole would end costly appeals and ensure that defendants are never released from prison — while giving a punishment that is far more fitting with North Carolina’s current standards of justice. Once in general population, inmates cost less to house and can get jobs that allow them to contribute to society.

In Davis’ case, he was just four months past the age that would now make him ineligible for the death penalty when, as a high school senior, he killed his cousin, Caroline Miller, and his aunt, Joyce Miller, after an argument. Davis was living with them because his mother — a lifelong drug addict who had subjected him to a traumatic childhood — was in prison.

Davis, whose IQ puts him in the range of borderline intellectual functioning, immediately accepted responsibility for his crimes and expressed deep remorse. He voiced his sorrow and regret for his actions again in court last week, his voice choked with emotion: “To family members and anyone who knew Joyce and Caroline, they were two very special people who were loved by a lot of people including myself. I regret everything that happened and it’s something I’ll regret for the rest of my life.”

The prosecutor who agreed to his new sentence acknowledged that race wrongly played a role in selecting the all-white jury that sentenced Davis to death in 1997. It is illegal to strike jurors based on race, and in 2016, the U.S. Supreme Court confirmed that in the strongest terms ever.

The problem was compounded when prosecutors in Davis’ case took the unusual step of shredding many of their notes from jury selection, making it impossible to examine them for evidence of racial bias.

The victims’ family members said they were satisfied with the life sentence. They have worked over many years to rebuild their relationship with Davis, and his new sentence allows the family’s healing to continue.

It’s a resolution that makes sense for all involved.

CDPL visionary Ken Rose retires after 35 years on death penalty front lines

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©Jenny Warburg

Ken retired this month from CDPL, where he had worked since 1996 and earned his reputation as one of North Carolina’s most respected and visionary death penalty defense attorneys. During his 35-year career in North Carolina, Ken never lost the idealism or the passion that has driven him since his earliest days. He never stopped being surprised — and outraged — at injustice. He never stopped plotting to outwit the machinery of death. And he never stopped representing every client as if both of their lives depended on it.

Read our tribute to Ken here.

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The Center for Death Penalty Litigation
123 West Main Street · Suite 700 · · ·
Durham, NC 27701
919-956-9545
cdpl@cdpl.org

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