The Center for Death Penalty Litigation

CDPL wins national equity award for work to expose death penalty racism

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RJA hearings

CDPL attorneys were part of a team that argued Racial Justice Act cases in the NC Supreme Court in 2019

CDPL is proud to announce that we have been awarded this year’s Equity Award from the National Consortium on Racial and Ethnic Fairness in the Courts. The award honors individuals and organizations that work to eliminate bias and promote equal access to the courts. It was awarded to CDPL in recognition of decades of work to expose and remedy racism in the North Carolina death penalty, as well as the court system as a whole.

CDPL has undertaken two major areas of litigation focused on rooting out racism. First, we worked alongside partners to pass the 2009 Racial Justice Act, which allowed people on death row to unearth sweeping evidence that Black citizens were systematically denied the right to serve on capital juries. It also brought to light evidence that Black defendants were more likely to face the death penalty when the victim was white. Four people have been resentenced under the law and litigation continues. Also, since 2015, CDPL has expanded its work on racism in jury selection to include non-capital cases. We worked with many partner organizations to expose the North Carolina courts’ abysmal record of enforcing Batson v. Kentucky, the law preventing jury strikes based on race. Those efforts culminated this year when, for the first time in its history, the N.C. Supreme Court overturned a case because of racism in jury selection.

All these efforts have been accompanied by a comprehensive public education campaign intended to educate the public about the insidious role in the capital punishment system. In 2020, we released Racist Roots, an ambitious project that traces the racist origins of capital punishment from the past to the present. We are now working on a soon-to-be released film version of the project:

We are grateful for this recognition of our work and vow to continue our work to end the racist death penalty.

Read Henderson Hill’s letter nominating CDPL for the award.

CDPL’s 2022 Osborn Awards

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Thanks to all who attended our first in-person Osborn Awards celebration since 2019. It was wonderful to be together again. For those of you who couldn’t be there, you can watch the award presentations here.


Videography by Random Gott

Thanks also to our generous sponsors, who make CDPL’s work possible.

Champions ($1,000) — Donald Beskind and Wendy Robineau; Burton and Heather Craige; Jay and Kay Ferguson; Brandon Garrett; Jonathan and Rebecca Megerian; Ken Rose and Beth Silberman; Thomas and Elizabeth Sallenger; Faith Spencer and Mark Parts; Jane and Adam Stein; Mary Ann Tally

Defenders ($500) — Akin Adepoju; Jack and Jennifer Boger; Terrica Redfield Ganzy; Elizabeth Gibson and Robert Mosteller; Dionne Gonder-Stanley; Henderson and Renee Hill; Kate Joyce; Douglas Legg and Nina Goldman; Marcia Morey; Lao Rubert and Steve Schewel; Karen Stegman; Jake Sussman; Amos Tyndall

Advocates ($250) — Cindy Adcock and Pat McCoy; Jenny and Terry Alford; David Botchin; Marjorie and Kenneth Broun; Emily Coward and Raphael Ginsburg; Richard Dieter; Hon. James G. Exum, Jr.; Stephanie Fanjul; Cait Fenhagen and John Carlson; Steven Freedman; Elaine Gordon and Robert M. Hurley; Stephen Greenwald and Rebecca Sullivan; Sandra Hagood; Staples and Thomasin Hughes; Tye and Wanda Hunter; Cynthia Katkish; Jin Hee Lee; David Mills; Janet Moore and Neil Tollas; Christine Mumma; Lee M. Norris; NC Justice Center; Ann Peterson and James Glover; Kara Richards; Michelle Robertson; Cas Shearin and DeVon Tolson; Robert and Jessica Singagliese; Rebecca Slifken and Richard Rosen; Douglas Smith and Rachel Hughes; Helen and Fred Spielman; David Teddy; Robert Trenkle; Jenny Warburg

 

See Justin Eisner’s full gallery of photos from the evening here.

 

Coming soon: The Racist Roots film!

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In the fall of 2020, we released our project Racist Roots, a collection of essays, artwork, poetry and more that reveals the North Carolina death penalty’s deep entanglement with racism. This was CDPL’s most ambitious storytelling project ever, but we knew the website could not be the end. We want as many people as possible to understand the racist roots of North Carolina’s death penalty — and to join us in the movement to end it. That’s why, with the help of a talented video production team, we created the film version of Racist Roots. The full version will be released in late March, but this trailer will give you a taste.

Learn more and request a facilitated screening and discussion at Racist Roots: The Film.

For first time in state history, NC’s high court strikes down a conviction because of discrimination against a Black juror

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For Immediate Release: February 11, 2022
For More Information Contact: Elizabeth Hambourger, CDPL Senior Attorney, 919-412-2542

Raleigh, NC — On Friday, the North Carolina Supreme Court made history by invalidating a criminal conviction because the Wake County prosecutor illegally excluded a qualified Black citizen from the jury. It marks the first time that North Carolina’s appellate courts have ever overturned a case because of discrimination against a juror of color.

Until today, North Carolina was the only southern state whose appellate courts had never enforced the law on behalf of a Black citizen who was denied the right to serve on a jury.

“Discrimination against Black jurors has been rampant in North Carolina, but until now, our courts have refused to deal with the problem,” said Elizabeth Hambourger, a senior attorney at the Center for Death Penalty Litigation, who argued the case in the lower court and assisted with the appeal. “We are so relieved to see our state’s highest court finally acknowledge this important violation of civil rights.”

The court overturned the case of Christopher Clegg, who was convicted of armed robbery in Wake County in 2016, but the facts of the crime played no role in the ruling. Instead, the case hinged on the prosecutor’s decision to illegally remove a Black woman from the jury because of her race.

During the trial, when the prosecutor was questioned about his reasons for striking the woman, he told the judge that he did not like the juror’s “body language” and that she said she “supposed” she could be fair, indicating that she was unsure. The trial judge accepted the prosecutor’s reasons and allowed the prosecutor to dismiss the woman from the jury.

However, neither of the prosecutor’s reasons held up to scrutiny. There was no support for the vague claim about the juror’s body language or failure to make eye contact, which is a frequent excuse that prosecutors make for their removal of Black jurors. And he was simply incorrect about the juror being unsure about her own fairness. In truth, she said she “supposed” she could set aside her other responsibilities and serve on the jury. Meanwhile, a white juror who was questioned at the same time as the Black juror said that he would be distracted by his busy job, yet the prosecutor accepted him.

“Until today, it seems North Carolina’s courts have been waiting for a prosecutor to openly say: ‘I don’t want Black people on this jury,’ before enforcing the law,” said James Williams, a member of the National Consortium On Racial And Ethnic Fairness In The Courts and the retired public defender for Orange and Chatham Counties. “But that’s not how racism operates anymore. It’s rarely spoken aloud, yet it has devastating effects. It’s absolutely shameful how many Black people in North Carolina have been convicted by all-white juries.”

The opinion was authored by Justice Robin Hudson, who was joined by the Court’s three other Democratic justices. Justice Anita Earls wrote a concurring opinion, arguing the prosecutor discriminated against not just one, but two Black women jurors. Justice Phillip Berger, Jr., dissented, joined by the two other Republicans on the court. 

Mr.Clegg has already served his time and been released.  

Jury service is, along with voting, one of the few ways that citizens participate directly in democracy. It gives ordinary people a voice in the criminal punishment system and is an established civil right. Studies show that diverse juries deliberate more thoroughly and are less likely to convict innocent people.

Yet, courts across the country have been trying and failing to stamp out jury discrimination since 1965, when the Civil Rights Movement made it possible for Black people to finally begin serving on juries in the South. Even a 1987 U.S. Supreme Court ruling that explicitly outlawed the race-based exclusion of jurors has had little effect.

“North Carolina has a particularly atrocious record of enforcement, but discrimination against Black jurors is a problem nationwide, including in the most serious death penalty cases,” Hambourger said. “If we are ever to have a fair system, our courts must continue to say, over and over, that they will not allow convictions in cases where jurors of color have been excluded. I hope today’s decision is just the beginning for North Carolina.”

In the fight to end the NC death penalty, we’re no longer the underdogs

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Gretchen Engel, right, with Asheville advocate Jean Parks

There are so many reasons to end the death penalty. We could talk about it for days and never come to the end of its injustices. But in this interview, CDPL’s Executive Director Gretchen M. Engel condenses it to thirty minutes.

In that short time, she explains how most of the people on North Carolina’s death row were sentenced under outdated laws, the “barbaric” lack of protections for people with mental illness, the ways that exonerations have woken people up to the injustice of the death penalty, the nonsensical way we decide who to try capitally in North Carolina, the scourge of prosecutorial misconduct, and Wake County’s strange insistence on frequent capital trials, despite the fact that juries keep saying no to the racist, unjust death penalty. And that’s not even a complete list!

After thirty years as a capital defense lawyer, Gretchen has seen North Carolina transform from a state where prosecutors almost always won and people were regularly executed, to one where death sentences are rare and executions haven’t been carried out in fifteen years. She’s never wavered in her conviction that she’s fighting for the right side, but it used to feel like the losing side. Now, she says prosecutors are most often the losers as they fight for death sentences in a state that has outgrown executions. “I’d much rather be in my lane than that one.”

Listen to the full interview here.

A tribute to Gerda Stein: On the hard days and the joyful ones, she was there

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On January 21, one of North Carolina’s most dedicated advocates, Gerda Stein, will leave her long-time post as Director of Public Information at CDPL. Here, Executive Director Gretchen M. Engel pays tribute to a colleague and friend who has left an indelible mark on our movement — and whose kindness has touched many people who faced execution.

Gerda Stein with Henry McCollum, a longtime CDPL client who was exonerated in 2014 after 30 years on death row

By Gretchen M. Engel

This is not a eulogy.

That said, it is with deep sadness that I mourn, after 30 incredible years of service, Gerda Stein’s departure from CDPL later this month.

I met Gerda in the fall of 1991, when I was law student interning at Ferguson Stein.  Gerda had just been hired as a mitigation investigator at the NC Resource Center.  I had no idea then that Gerda would become one of my dearest friends and colleagues.

In the early 1990s, many men and women received the death penalty from juries who knew little about their lives.  Gerda changed that.  She worked with the UNC school for social work, organized trainings, consulted with capital defense teams and, through perseverance and patience, institutionalized the practice of mitigation investigation in capital cases in our state.  (Gerda would be the first to point out that she was not the only one involved in these efforts.  Of course she was integral to these efforts.  And, besides, this piece is about Gerda.)

Gerda was also a practicing model for new recruits.  She comforted Henry McCollum through years of depression before he was exonerated in 2014.  Her empathy for Norris Taylor, a desperately abused and mentally ill man, was legendary.  When he died of natural causes in 2006, the prison didn’t know any family members to call.  So they called Gerda.  Gerda was the mitigation investigator and later a member of the successful clemency delegation for Robert Bacon and, when Robert was dying, his sister likewise contacted Gerda.

The work was demanding and emotionally exhausting.  Our clients’ childhoods are so often horrifying and the daily exposure to stories of degradation and violence is corrosive.  Eliciting those stories and then helping to present them to jurors is hard even when you win.  And in the 1990s, we often lost.

Gretchen and Gerda in the old days

Gerda took a brief hiatus from CDPL sometime in the late 1990s.  It’s hard to remember now, because it feels to me like she was always there: She was there the nights my clients Harvey Green and Quentin Jones were executed.  Along with his attorneys and daughter, Gerda was with Dawud Abdullah Muhammad the night he was executed.  Between 1992 and 2006, nearly 40 times, at two o’clock in the morning, Gerda was there.

In 2000, Gerda came back to CDPL to take on a new challenge, telling the stories she knew so well to the public at large.  This was shortly after the national backlash to Benetton’s “We, on Death Row” ad campaign, and becoming CDPL’s public education director was no small challenge.  Back then, lawyers for people facing the death penalty were loath to speak to the press because their stories invariably and exclusively focused on the gory crime facts and suffering of people who’d lost a loved one to murder.  And the execution machine was burning at full throttle: in just over four months in the fall of 2003, North Carolina executed seven men.

Gerda brought her compassion, work ethic, fearlessness, and vision to the task and, over the years, media coverage of capital cases has dramatically changed.  First there was the series in the Charlotte Observer exposing the under-resourced state of capital defense and the endemic racism in our cases.  Later the News & Observer ran a series on prosecutorial misconduct and wrongful convictions in death penalty cases.

In clemency campaign after clemency campaign, Gerda worked with defense teams to expose injustices in individual cases.  Among many hard losses, Gerda was there to see the Colosseum in Rome lit up after Governor Hunt granted clemency to Wendell Flowers, to see Tim Allen and Pat Jennings sentenced to life after they’d each spent two decades on death row, and she was there to see Alan Gell and Henry McCollum walk free after years of wrongful incarceration.  And she’s been here to see 15 years with no executions, 15 more years of life for Blanche and Dan and Phil and Priscilla, and so many others.

Because our names both start with a hard “G,” I’ve often been called Gerda over the years – although never “Girla,” Norris Taylor’s pet name for Ms. Stein.  For years after we made a trip to Washington D.C. to investigate Tim Allen’s case, I would explain on the phone to Tim’s family members, “I’m Gretchen.  No, the pregnant woman was Gerda.  I’m the other one.”  How flattering it’s been to be confused with the most dedicated and powerful advocate and kindest human being I know.

 

As 2021 ends, the NC death penalty is in retreat but remains a threat

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The death penalty continued its inevitable decline in 2021.

North Carolina marked its second year in a row without a single capital trial. The size of death row shrank slightly, as two more people had their flawed and unjust death sentences overturned by the courts. And the state began its sixteenth year without an execution.

Meanwhile, a jury awarded death row exonerees Henry McCollum and Leon Brown a historic $75 million settlement for their 30-plus years of wrongful imprisonment, arising from false confessions that law enforcement coerced from them when they were teenagers. And many on death row continued to pursue litigation under the state’s Racial Justice Act, which has revealed an epidemic of discrimination in death penalty cases. [Read CDPL’s comprehensive project on the origins of NC’s death penalty, Racist Roots.]

Nationwide, 26 states have now banned capital punishment or imposed an official moratorium on its use. Most notably, in 2021, Virginia became the first southern state to abolish the death penalty. Even among those states with the death penalty on the books, few are actively using it. Death sentences were imposed in just seven states this year, and only five states carried out an execution.

According to the Death Penalty Information Center’s new report, the handful of death sentences and executions this year were mostly concentrated in a few former slave states. And they continued the tradition of targeting the most vulnerable. Ten of the 11 people executed in 2021 had severe mental illness, intellectual disabilities, or experienced childhood trauma.

Two more innocent people were exonerated from America’s death rows this year, bringing the total to 186 since 1973. Unsurprisingly, a new Gallup poll showed that Americans’ support for the death penalty remains at historic lows.

However, the spree of federal executions that concluded in January reminds us that we cannot sit back and wait for the death penalty to quietly fade away. After a 17-year hiatus, the federal government executed 13 people in just a few months. The same could happen in North Carolina, where more than 130 people remain on death row and pending litigation is the only thing stopping their executions.

It’s time for North Carolina to stop holding on to the death penalty, a remnant of slavery that embarrasses our state and undermines efforts to address the roots of injustice or the epidemic of mass incarceration and police violence. It is a punishment that feeds off people’s instincts for violence and retribution, rather than building a safer and more just society. It creates trauma rather than healing.

As Durham capital defense attorney Jay Ferguson writes:

For much of my career, I dreaded the holiday season.

Early October brought numerous cert denials by the US Supreme Court, and the State of North Carolina wasted no time lining up our clients for execution. We spent the holidays standing in the darkness outside Central Prison, protesting this macabre practice of state-sanctioned killing and supporting our exhausted colleagues, who fought valiantly until they got the call that clemency was denied.

Having to tell your client that he is going to be executed is heart-wrenching. We attorneys were escorted to the cramped viewing room, shoulder-to-shoulder with law enforcement, reporters and victims’ family members, so our client could have a small bit of comfort, knowing at least one person present cared for him as he died.

The last 15 years have been markedly different. We can never go back to the way things used to be. I’m too old and tired to stand outside Central Prison at 2 a.m. with candle wax dripping on my shoes. 

In 2022, we promise to work every day to place North Carolina among the growing list of states that have formally ended the racist and barbaric death penalty — and ensure that we never again sit by powerlessly while the state commits premeditated murder. 

N.C.’s highest court faces key test: Will it finally enforce the law against race discrimination on juries?

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For Immediate Release: October 4, 2021
For More Information Contact: Gretchen Engel, CDPL Executive Director, 919-682-3983

Raleigh, NC — North Carolina is the only southern state whose appellate courts have never once enforced the law prohibiting race discrimination against jurors of color. But that could be about to change. On Oct. 6, the N.C. Supreme Court will hear arguments in State v. Clegg, a case that offers the opportunity to address the unfair exclusion of Black citizens from jury service.

The case involves Christopher Clegg, who was convicted of armed robbery in 2016, but it’s not the facts of the crime that are at issue. Clegg has already finished serving his sentence. Instead, the case hinges on whether the prosecutor illegally removed a Black woman from the jury because of her race.

“This case is a key test for our Supreme Court,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation, which works to end jury discrimination. “It’s a constitutional right to serve on a jury and to have a voice in the criminal justice system. Yet, people of color are still being systematically excluded from juries. Given what we know today about the corrosive effects of racism on the criminal justice system, we should be welcoming rather than excluding the voices of jurors of color.”

The U.S. Supreme Court ruled in 1987, in Batson v. Kentucky, that it is illegal to exclude qualified citizens from juries based on race. Yet, studies show that in North Carolina, prosecutors continue to strike qualified Black jurors at more than twice the rate of whites. And the state’s high court has yet to enforce the simple rule laid out in Batson.

“Courts across the South, in states like Mississippi and Alabama, have found discrimination against jurors of color on multiple occasions,” said Jin Hee Lee, the senior deputy director of litigation at the NAACP Legal Defense & Educational Fund, Inc., and a member of CDPL’s board of directors. “There is simply no excuse for North Carolina to remain an outlier in its complete failure to protect jurors of color against discriminatory strikes. It is imperative for the North Carolina Supreme Court to take this opportunity to turn the tide and send a strong message that discrimination will no longer be tolerated.”

In Clegg, the prosecutor moved to strike a qualified Black juror. When the defense objected, saying there was no reason for the strike other than the juror’s race, the prosecutor had a chance to give “race-neutral” reasons for his strike. The prosecutor said he did not like the juror’s “body language” and that she said she “supposed” she could be fair, indicating that she was unsure.

The trial judge accepted the prosecutor’s reasons and allowed the prosecutor to dismiss the woman  from the jury. However, neither of the prosecutor’s reasons held up to scrutiny. There was no support for the vague claim about the juror’s body language or failure to make eye contact, which is a frequent excuse that prosecutors make for their strikes of Black jurors.

The prosecutor was simply incorrect about the juror being unsure about her own fairness. In truth, she said she “supposed” she could set aside her other responsibilities and serve on the jury. Meanwhile, a white juror who was questioned at the same time as the Black juror said that he would be distracted by his busy job, yet the prosecutor accepted him.

“Often, it seems like our courts are waiting for prosecutors to make openly racist statements in court before enforcing the law,” Engel said. “But this kind of discrimination operates much more subtly. If the courts accept flimsy excuses for excluding Black jurors, they’re allowing discrimination. In this case, the prosecutor didn’t provide a single valid reason for his strike. That’s unacceptable.”

Oral arguments will be held in the N.C. Supreme Court at 10:45 a.m. on Wednesday, October 6. Watch here.

CDPL’s 2022 Osborn Awards: Honoring Steve Freedman & Gerda Stein

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CDPL is happy to honor Steve Freedman as the winner of the J. Kirk Osborn Award for outstanding leadership in capital defense. Last fall, because of the steep rise in Covid cases, we made the difficult decision to postpone the ceremony honoring Steve. It is now scheduled for April 2022. The rescheduled event will honor Steve. We will also celebrate longtime CDPL staff member Gerda Stein, with the Messenger of Hope Award for her extraordinary work as a mitigation investigator and communications specialist.

The in-person celebration will be April 14 from 6 to 8:30 p.m. in the outdoor courtyard at Parizade in Durham. Please register for the event here. Everyone who purchased tickets in the fall will be automatically signed up for our spring event. For those who are unable to come in person, we plan to record the awards portion and post it on our website. If you’d like to make a donation in honor of Steve or Gerda, you can do that here.

About Steve Freedman

Steve Freedman

Steve Freedman

Steve recently retired from the N.C. Office of the Capital Defender. All told, he spent 30 years as a public defender and worked several years as a staff attorney at CDPL. Steve has taken on the most difficult capital cases and persuaded juries to spare his clients’ lives. To cite just one example, in 2007, Steve represented Sam Cooper, who was accused in a Wake County crime spree that left five people dead. After a month-long trial in which Steve and his team presented compelling evidence of post-traumatic stress disorder that resulted from horrendous childhood abuse, the jury voted for five life sentences instead of death. And Steve’s career is far from over. Despite his retirement, he recently agreed to take a Richmond County capital case, and he continues to assist on the case of a former client facing the death penalty in Pasquotank County.

To understand why we chose Steve for this honor, read this nomination letter from fellow capital defender Robert Singagliese:

The epitome of leading by example

Over the course of his career, Steve has done more for poor people charged with capital murder than most any attorney in the state.

Steve has been an excellent advocate at the trial level for his entire career for poor people charged with serious felonies. He has been a public defender in Columbus, OH; Cumberland County, NC; Orange County, NC; and the Eastern District of NC in the federal system. He also spent a number of years at CDPL. Finally, he has spent about 15 years at the Office of the Capital Defender in Durham, where we worked together. He has tried eight capital trials, only one of which resulted in a death sentence. While not a very vocal member of the bar, I believe Steve is the epitome of leading by example.

In my four and a half years at OCD, I have had the incredible opportunity to work with Steve on three capital cases. (We also tried a non-capital case together that thrillingly resulted in an acquittal.) His care for his clients is obvious. In his earliest meetings with his clients, he lets them know that our job is going to be to learn everything we can about them, so that by the time a case has reached its conclusion we know more about our clients than they do. That is a fine explanation of mitigation work. That introduction also lets our clients know from the beginning that the case is not about the lawyers, and it’s not about the crime. Our work is about them.

The last of the three capital cases I mentioned ended just recently. In that case, our client cared less about his life than we did. (Indeed, he told the judge at his sentencing hearing that he was dissatisfied with his lawyers because we delayed the case and prevented him from getting the death penalty.) While capital trial work is always demanding and frustrating, it was even harder with a client who refused to cooperate with his defense team. Yet, Steve didn’t give up, and with some creative litigation and a lot of patience, we were able to maneuver the case into a posture that allowed it to be resolved without a capital trial.

As for teamwork, it’s obvious that Steve is the “first chair” in essentially any setting in which he finds himself. Yet he doesn’t make the other members of his team feel that way. He encourages participation from fellow attorneys, investigators, and experts. I’ve also seen him switch his own gears and focus based on the input of others, a sign that he’s not just being polite about a team approach. He sincerely appreciates that every member of the team has something to contribute.

I have also watched Steve work with several junior members of the capital defense community, including myself. I owe much of what I have learned since joining this office to Steve. I have no doubt that other lawyers have had a similar experience.

Finally, a short anecdote. Two years ago, Steve tried a non-capital murder case in Durham. The State never made a plea offer, and the facts were not good for Steve’s client. Steve’s defense brought forward evidence of legitimate mental health issues, including intellectual disability, Bipolar disorder, and intoxication. Before sitting down at the end of his closing argument, knowing that the State would have last argument, Steve choked up a bit and asked the members of the jury for someone to be his client’s advocate in the jury room. He asked for someone to stand up for D’Marlo, because Steve wasn’t going to be allowed to stand up again. It was clear how much Steve cared about his client. What more could a client ask for?

About Gerda Stein

In January 2022, one of North Carolina’s most dedicated advocates, Gerda Stein, left her long-time post as Director of Public Information at CDPL. Here, Executive Director Gretchen M. Engel pays tribute to a colleague and friend who left an indelible mark on our movement — and whose kindness touched many people who faced execution:

On the hard days and the joyful ones, Gerda was there

This is not a eulogy.

That said, it is with deep sadness that I mourn, after 30 incredible years of service, Gerda Stein’s departure from CDPL later this month.

I met Gerda in the fall of 1991, when I was law student interning at Ferguson Stein.  Gerda had just been hired as a mitigation investigator at the NC Resource Center.  I had no idea then that Gerda would become one of my dearest friends and colleagues.

In the early 1990s, many men and women received the death penalty from juries who knew little about their lives.  Gerda changed that.  She worked with the UNC school for social work, organized trainings, consulted with capital defense teams and, through perseverance and patience, institutionalized the practice of mitigation investigation in capital cases in our state.  (Gerda would be the first to point out that she was not the only one involved in these efforts.  Of course she was integral to these efforts.  And, besides, this piece is about Gerda.)

Gerda was also a practicing model for new recruits.  She comforted Henry McCollum through years of depression before he was exonerated in 2014.  Her empathy for Norris Taylor, a desperately abused and mentally ill man, was legendary.  When he died of natural causes in 2006, the prison didn’t know any family members to call.  So they called Gerda.  Gerda was the mitigation investigator and later a member of the successful clemency delegation for Robert Bacon and, when Robert was dying, his sister likewise contacted Gerda.

The work was demanding and emotionally exhausting.  Our clients’ childhoods are so often horrifying and the daily exposure to stories of degradation and violence is corrosive.  Eliciting those stories and then helping to present them to jurors is hard even when you win.  And in the 1990s, we often lost.

Gerda took a brief hiatus from CDPL sometime in the late 1990s.  It’s hard to remember now, because it feels to me like she was always there: She was there the nights my clients Harvey Green and Quentin Jones were executed.  Along with his attorneys and daughter, Gerda was with Dawud Abdullah Muhammad the night he was executed.  Between 1992 and 2006, nearly 40 times, at two o’clock in the morning, Gerda was there.

In 2000, Gerda came back to CDPL to take on a new challenge, telling the stories she knew so well to the public at large.  This was shortly after the national backlash to Benetton’s “We, on Death Row” ad campaign, and becoming CDPL’s public education director was no small challenge.  Back then, lawyers for people facing the death penalty were loath to speak to the press because their stories invariably and exclusively focused on the gory crime facts and suffering of people who’d lost a loved one to murder.  And the execution machine was burning at full throttle: in just over four months in the fall of 2003, North Carolina executed seven men.

Gerda brought her compassion, work ethic, fearlessness, and vision to the task and, over the years, media coverage of capital cases has dramatically changed.  First there was the series in the Charlotte Observer exposing the under-resourced state of capital defense and the endemic racism in our cases.  Later the News & Observer ran a series on prosecutorial misconduct and wrongful convictions in death penalty cases.

In clemency campaign after clemency campaign, Gerda worked with defense teams to expose injustices in individual cases.  Among many hard losses, Gerda was there to see the Colosseum in Rome lit up after Governor Hunt granted clemency to Wendell Flowers, to see Tim Allen and Pat Jennings sentenced to life after they’d each spent two decades on death row, and she was there to see Alan Gell and Henry McCollum walk free after years of wrongful incarceration.  And she’s been here to see 15 years with no executions, 15 more years of life for Blanche and Dan and Phil and Priscilla, and so many others.

Because our names both start with a hard “G,” I’ve often been called Gerda over the years – although never “Girla,” Norris Taylor’s pet name for Ms. Stein.  For years after we made a trip to Washington D.C. to investigate Tim Allen’s case, I would explain on the phone to Tim’s family members, “I’m Gretchen.  No, the pregnant woman was Gerda.  I’m the other one.”  How flattering it’s been to be confused with the most dedicated and powerful advocate and kindest human being I know.

The J. Kirk Osborn Award

J. Kirk Osborn

J. Kirk Osborn was 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. Each year, the Center for Death Penalty Litigation honors 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.

New wave of Racial Justice Act litigation begins in North Carolina

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For Immediate Release: May 19, 2021
For More Information Contact: Gretchen Engel, Executive Director, 919-682-3983

Raleigh, NC — On Thursday, May 20, North Carolina will hold the first hearing under the Racial Justice Act since the state Supreme Court decided in June that people on North Carolina’s death row are entitled to present evidence of racism in their trials despite the legislature’s repeal of the RJA.

Hassan Bacote, one of 137 death row prisoners in North Carolina, will have a hearing in Wake County Superior Court at 10 a.m. Thursday. His case is from Johnston County. The hearing will center around his requests for the state’s jury selection notes, training records and other documents. The state has also requested information about the statistical analyses Bacote relied on.

In other cases, these records have shown that prosecutors wrote disparaging notes about jurors of color like “blk wino” or “blk, high drug” and that they attended training sessions designed to help them evade laws prohibiting race discrimination in jury selection. At these sessions, prosecutors were taught to give vague excuses for their exclusion of Black jurors, including body language or failure to make eye contact.

Bacote has already submitted evidence that Johnston County prosecutors at his 2010 trial excluded qualified Black jurors at more than three times the rate of white jurors. Statewide, a study found that Black jurors are struck at twice the rate of whites, meaning the discrimination in Bacote’s case was even more pronounced than the state average.

“Hassan Bacote is a Black man who was sentenced to death for a crime he committed as a teenager in a county known for Ku Klux Klan activity,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation. “We already know that the state made a great effort to keep Black people off his jury. We look forward to digging even deeper into the evidence to see how racism affected this case.”

Bacote’s case could set a precedent for how Racial Justice Act cases are handled going forward. The 2009 law allowed death-sentenced people to present evidence of race discrimination and, if they proved that race affected their sentences, be resentenced to life without parole. However, the RJA was repealed in 2013 after the first four death row prisoners won their cases. In the years since, all claims were on hold while the courts determined whether they were still valid after the repeal.

In June, the N.C. Supreme Court forcefully affirmed that all existing Racial Justice Act claims should be heard in court. Justice Anita Earls wrote that racial discrimination in criminal cases “undermines the integrity of our judicial system and extends to society as a whole.”

“We are thrilled that this litigation is beginning to move forward,” Engel said. “It’s critical that our courts examine the striking evidence of discrimination in death penalty trials, and that no one is executed based on a judgment tainted by racism.”

The hearing will be held at 10:00 am at the Wake County Courthouse, Courtroom 704, the Honorable Wayland J. Sermons Jr. presiding.

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