On Sept. 26, we celebrated the achievements of Etta Blankenship and Bob Trenkle, two stars of the North Carolina capital defense community. Thanks to photographer Emily Baxter for capturing a beautiful evening that reminded us why we do this work.
CDPL founder Henderson Hill joins Curtis Flowers defense team
CDPL founder and former director Henderson Hill is joining the defense team of Curtis Flowers, a death-sentenced man in Mississippi whose extraordinary case rose to national prominence after a gripping podcast revealed that he is innocent.
Flowers is facing a seventh trial for the same crime. The U.S. Supreme Court overturned his case earlier this year after finding that the prosecutor had systematically excluded African American jurors at all six of Flowers’ previous trials. Now, the same district attorney appears poised to try Flowers again, even after the previous six trials either ended in hung juries or were overturned because of prosecutorial misconduct. Meanwhile, Flowers has spent 22 years in prison, most of it on death row, for a crime he didn’t commit.
“A good friend has famously observed that our criminal justice system treats you better if you are rich and guilty than if you are poor and innocent,” said Hill. “The justice system’s serial abuse of Curtis Flowers — poor, black and innocent — must and will stop. I am honored to work with Rob McDuff and the Mississippi Center for Justice to achieve that to which Mr. Flowers is so deeply entitled: a full measure of justice and vindication.”
The evidence of racist jury selection in Flowers’ case is strikingly similar to evidence that CDPL helped uncover in North Carolina under the Racial Justice Act. CDPL is litigating dozens of cases in which black jurors across North Carolina were illegally denied the right to serve because of their race.
Hill has spent his career fighting against the death penalty and championing civil rights. In addition to founding CDPL, he directed the Eighth Amendment Project, a national nonprofit that works to end the death penalty. His work has helped many people avoid death sentences and execution. In 2014, he won CDPL’s J. Kirk Osborn Award for leadership in capital defense.
“Henderson Hill is known throughout the country as an excellent lawyer with considerable courtroom experience in criminal defense and capital cases,” said McDuff. “He is a tireless proponent of fairness in our justice system, and his presence will add greatly to the effort to finally obtain justice for Curtis Flowers.”
CDPL argues Racial Justice Act cases in the NC Supreme Court
On August 26 and 27, CDPL attorneys were part of an amazing team that argued six Racial Justice Act cases before the North Carolina Supreme Court. These cases go to the heart of our work to bring to light the injustice of the death penalty. We presented clear evidence that these death sentences were poisoned by racial discrimination and cannot stand. Here are a few memories from those momentous days. Read more here about the Racial Justice Act and why it matters.
North Carolina Supreme Court to Address Racial Bias in Death Penalty
Justices must decide whether evidence of jury discrimination in capital cases will come to light
For Immediate Release: August 19, 2019
For More Information Contact: David Weiss, 919-593-7790 or Jin Hee Lee, 917-202-8848
Raleigh, NC — The N.C. Supreme Court will hear arguments next week, August 26 and 27, in the cases of six death row prisoners who have presented evidence that racial bias tainted their trials and death sentences.
The Racial Justice Act (RJA) was a first-of-its-kind law that allowed for a systematic review of racial discrimination in death penalty trials. Death row prisoners who proved discrimination had to be resentenced to life in prison without parole. The law was enacted in 2009, and its passage led to the uncovering of new evidence of discrimination. In 2013 a newly elected legislature repealed the RJA. That same legislature enacted voting laws that federal courts later determined to be racially motivated.
Now, the Supreme Court must decide whether the six defendants, who filed claims while the law was in effect, have a constitutional right to present their evidence of discrimination in court. The state seeks to dismiss all six defendants’ RJA claims without hearings.
“The court must answer a key question for North Carolina,” said David Weiss, a staff attorney with Durham’s Center for Death Penalty Litigation, one of several law firms that represents the RJA defendants. “Will our state abide by its constitution and confront the evidence that race has played an unacceptable role in death penalty trials? Or will we throw the evidence away without a hearing and send the message that pervasive racial bias doesn’t matter, even in life-and-death trials?”
The court will hear the following cases:
Marcus Robinson, Tilmon Golphin, Christina Walters, and Quintel Augustine from Cumberland County are the only four death row prisoners whose RJA cases were heard in court. In 2012, they won and were resentenced to life in prison without parole. On appeal, all four were returned to death row after the N.C. Supreme Court sent their cases back to Superior Court for a redo, saying that each defendant should get a separate hearing and that the state should be given more time to prepare. Yet, when the cases went back to Superior Court, a judge dismissed them without new hearings. The Supreme Court will decide whether Robinson, Golphin, Walters and Augustine have a right to the life sentences they previously won under the RJA, or whether they have a right to new hearings.
Andrew Ramseur and Rayford Burke are death row prisoners from Iredell County who filed RJA claims before the law’s repeal, but never got hearings. After the repeal, judges dismissed their claims, saying they no longer had a right to present evidence because the law was defunct. The Court will decide whether Ramseur and Burke have a constitutional right to litigate their claims.
The six defendants found a cache of evidence of race discrimination:
- A prosecutor referred to Burke as “a big black bull” during closing arguments.
During jury selection at Golphin’s trial, two white jurors suggested that Golphin should have been lynched, yet were allowed to remain in the jury pool. - At Ramseur’s trial, the sheriff’s department cordoned off the area behind the defense table with crime scene tape, prejudicing the jury and forcing the defendant’s black family to sit in the back of the courtroom.
- A black juror in Robinson’s case was questioned about whether he had gone “straight through” school, implying he may have repeated grades. The prosecutor also questioned his ability to read. White jurors were not asked these demeaning questions.
- In Augustine’s case, prosecutors wrote insulting notes about black jurors. A black juror with criminal history was a “thug” while a white juror who trafficked in drugs was “a fine guy.” A black juror was a “blk wino” while a white juror with a DUI conviction was a “country boy – ok.” A Black woman was acceptable because she was “from a respectable BLK family.”
- In several cases, prosecutors relied on a “cheat sheet” of prefabricated reasons to justify striking black jurors.
- In all cases, a statistical study showed that prosecutors struck qualified black jurors at far higher rates than white jurors, denying African American citizens the fundamental right to wield power in the jury box and defendants the right to a jury of their peers.
“These defendants uncovered a mountain of evidence that race played a role in their death sentences. Now, the law requires that our state deal with that evidence,” Weiss said. “If the justices don’t allow these defendants a fair hearing, North Carolina will have given up even the pretense of believing in justice for all.”
Racial discrimination in the jury box is a national problem, which was highlighted again in June when the U.S. Supreme Court granted a new trial to Mississippi death row prisoner Curtis Flowers because the prosecutor systematically excluded black jurors over the course of six trials.
“Jury discrimination is one of the key civil rights issues of our time,” said Jin Hee Lee, Senior Deputy Director of Litigation for the NAACP Legal Defense and Educational Fund, which filed a brief in support of the RJA cases. Founded by Thurgood Marshall, LDF becomes involved in cases when they present a chance to advance racial justice. Lee continued, “It threatens the integrity of our justice system and our democracy when we allow black citizens to be illegally barred from jury service. We hope North Carolina will give the evidence in these capital cases the serious consideration it deserves, and take needed steps to end race discrimination in North Carolina’s death penalty.”
Oral arguments begin at 9:30 a.m. Monday and Tuesday, Aug. 26 and 27 in the chambers of the N.C. Supreme Court, 2 East Morgan Street, Raleigh. On Monday, the court will hear the cases of Ramseur, Walters, Robinson, Burke, and Augustine. On Tuesday, it will hear Golphin’s case.
Read more from the N.C. Coalition for Alternatives to the Death Penalty.
For the full briefs filed in the cases, click here.
The whitening of the jury: Listen to a new documentary featuring CDPL attorney
Black people have a constitutional right to serve on juries, just like white people. That should go without saying. But the reality is that prosecutors use all kinds of tricks and excuses to stop black citizens from sitting on juries. In this 5-minute audio documentary created by students at Duke’s Center for Documentary Studies, CDPL attorney Johanna Jennings explains how this form of racial discrimination persists in the courtroom.
One note: The documentary’s creators, Shaakira Raheem and Khalid Bashr, imagined some fictional questions that prosecutors might ask of black jurors like, “Do you have a birth certificate?” While these are not the actual questions prosecutors have asked black jurors in North Carolina courtrooms, some of the questions they actually have asked are equally outrageous and demeaning. For example:
- In a Cumberland County courtroom, the prosecutor asked a black man if he had trouble reading and whether he went “straight through” school. No white jurors were asked similar questions.
- Another Cumberland prosecutor asked a black man if he listened to Bob Marley or was familiar with the former emperor of Ethiopia, Haile Selassie — implying that he might sympathize with black defendants who practiced Rastafarianism. Again, no white jurors were asked similar questions.
- In Rowan County, a prosecutor asked a black woman if she would face criticism from her black friends if she voted to convict a black person of a crime.
- In Transylvania County, a black juror was asked if her child’s father was paying child support.
Bob Trenkle & Etta Blankenship win 2019 Osborn Award
CLICK HERE to register for our Osborn Awards reception on Thursday, Sept. 26 from 6:30 to 9 p.m. at Parizade. Please consider buying a sponsorship to support CDPL’s work. Also, new this year, please consider donating an additional ticket to a young attorney or other member of our community who wouldn’t otherwise be able to afford to come. We look forward to seeing you for an evening of food, drinks and good company!
CDPL has always known that it takes a team to win a death penalty case. Often, an attorney’s most trusted teammate is the mitigation investigator. Together, they undertake some of the most grueling and emotional work of a capital case: tracking down family members, investigating crime facts, sorting through a lifetime’s worth of records and documents, in addition to spending many hours with the client. Often, the results of that collaboration make the difference between life and death for our clients. That’s why this year, CDPL’s award for outstanding work in death penalty cases goes to a team: Bob Trenkle, an attorney who has spent three decades defending capital clients, and Etta Blankenship, the private investigator, who also does mitigation work, who has worked beside Bob on many of his death penalty cases.
“Bob and Etta exemplify what we mean when we say team defense,” said CDPL Executive Director Gretchen M. Engel. “They have shown us over decades what it means to care about clients and to devote yourself to saving people’s lives.”
Bob and Etta began working together in 1991, when both worked for the Orange County Public Defender’s Office. Bob has now represented more than 100 capital clients, and taken eight cases to capital trial, as well as representing several capital clients in post-conviction proceedings. Etta has been his first pick as an investigator on every one of his cases. In 2001, the two worked together to shape North Carolina’s first Capital Defender’s Office. They helped set the capital defense standards that have made death penalty verdicts rare in North Carolina. Both have also devoted untold hours to mentoring other capital defense teams throughout the state.
Bob has worked as a public defender in both Florida and North Carolina. He also taught law at the University of Florida Law School. He has been with the firm of Edwards & Trenkle since 2002. He is a Board Certified lawyer in both federal and state criminal law. He has lectured and taught attorneys on defending capital murder charges in North Carolina, Pennsylvania and Texas, most recently in April. Bob has volunteered as an instructor at numerous training seminars on capital defense, and defense attorneys across the state say he is always willing to take their call and offer as much of his time as they need.
Etta was licensed as a private investigator in 2003. At that time, she began traveling the state doing fact and mitigation investigations in capital cases. Etta is known for her caring touch with clients and building the trust required to help them make good decisions about their defense. In 2017, in addition to dealing with her own cases, she flew to be with a friend whose brother was facing execution in Arkansas. Etta went to the prison with her friend while she had her final visit with her brother and was also at the prison with her friend during the execution of her brother. Afterwards, Etta wrote this moving piece about that experience.
Bob and Etta never rest on their victories. As soon as they win one case, they move on to saving the next life. We hope that, at our award reception in September, they will finally take a moment to celebrate their many accomplishments. BUY YOUR TICKETS HERE.
The J. Kirk Osborn Award
J. Kirk Osborn
It has now been more than 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. 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.
CDPL Statement on the Death Sentence of Seaga Gillard in Wake County
From Gretchen M. Engel, Executive Director of the Center for Death Penalty Litigation:
Today’s verdict in Wake County does not reflect the views of the majority of citizens in North Carolina. All it shows is that, if you try ten death penalty cases in a row and exclude from the jury all the people who oppose the death penalty, you can find a jury that will sentence a person to death despite the death penalty’s documented unfairness.
By law, juries in capital trials include only people who support the death penalty, which polls tell us are now a minority in North Carolina. However, even with juries stacked in favor of the death penalty, only two of the past seventeen capital trials in North Carolina have ended with death sentences. In Wake County the ratio is even lower. This is the only death verdict of the past ten capital trials.
Seaga Gillard committed a serious crime for which he should be punished. But was he the worst of the worst? Wake County jurors have rejected the death penalty in cases of rape and murder, including rape and murder of a child. Wake County jurors have refused to impose the death penalty in other double homicide cases and even in a case in which the defendant was convicted of murdering five people. All today’s verdict shows is what we already knew: That the death penalty is imposed arbitrarily, and disproportionately on black men.
Since taking over as Wake district attorney, Lorrin Freeman has pursued the death penalty more than any other prosecutor in North Carolina, costing taxpayers millions of dollars. That is a poor investment, even in this case. Executions have been on hold since 2006 and most death row prisoners in North Carolina have been awaiting execution for more than 20 years. Gillard will now join them, awaiting an execution that is unlikely to ever be carried out.
New poll shows death penalty supporters now in the minority among N.C. voters
Public concerns grow over racial bias and the execution of innocent people
For Immediate Release: February 6, 2019
For More Information Contact: David Weiss, 919-593-7790
North Carolina has long been considered a solidly pro-death penalty state, but a new poll finds that N.C. voters overwhelmingly believe the death penalty is error-prone and racially biased – and a majority believe it should be replaced with alternative punishments.
The poll of 501 voters across the state, conducted last week by Public Policy Polling, comes as a capital trial begins in Wake County. It is the first comprehensive statewide survey of death penalty views in North Carolina.
It reveals that a steep decline in new death sentences – North Carolina juries have sent only a single person to death row since 2014 – is the result of a sea change in public opinion about the death penalty that reaches across political divides. Of those polled, 47 percent voted for Donald Trump and 45 percent for Hillary Clinton.
“I was stunned when I saw these numbers,” said David Weiss, a capital defense attorney at the Center for Death Penalty Litigation in Durham. “Seventy percent of people believe an innocent person has likely been executed in North Carolina. Almost 60 percent believe that racial bias affects who is sentenced to death in our state. With these kinds of serious concerns about the death penalty, it’s inconceivable that North Carolina could execute anyone or even continue to sentence people to death.”
The poll found that voters have concerns about the death penalty’s fairness on several fronts:
- More than 70 percent said defendants should have the right to bring forward evidence of racial discrimination in capital trials and jury selection.
- 70 percent believe it is likely that an innocent person has been executed in North Carolina.
- 68 percent said they support the creation of a new law to exempt people with severe mental illness from the death penalty.
- 61 percent said they believe the courts should reexamine the death sentences of prisoners who were tried before a series of legal reforms were enacted to protect defendants’ rights and ensure fair trials. More than three-quarters of North Carolina’s death row prisoners were sentenced before these reforms.
- 57 percent said it is likely that racial bias influences who is sentenced to death.
The poll also showed that voters are willing to consider a range of alternatives to the death penalty:
- When given a choice between the death penalty and a maximum sentence of life without parole, more than 50 percent of voters said they favor life without parole, while only 44 percent leaned toward keeping the death penalty. The rest were unsure.
- When offered a larger range of alternatives, including requirements that offenders work and pay restitution to victims’ families, only 25 percent of those polled favored the death penalty.
- 58 percent said they would prefer to eliminate the death penalty if the millions of dollars spent on it each year were redirected to investigating and prosecuting unsolved rapes and murders.
- 59 percent said they would support a decision by Gov. Roy Cooper to investigate unfairness in the death penalty and, if necessary, replace it with life without parole.
- 57 percent said they would support a decision by their local district attorney to stop seeking the death penalty because of concerns about fairness, wrongful convictions, and cost.
North Carolina has not executed anyone since 2006. In the years since, five people who were sentenced to death in North Carolina have been exonerated, more than two dozen others have been removed from death row after the courts found serious errors in their cases, and a statewide study found that black jurors are systematically removed from capital juries, violating defendants’ right to be judged by a fair cross section of the community. Meanwhile, murder rates have declined.
Also, in fall 2018, a new report revealed that more than three quarters of North Carolina’s 140 death row prisoners were sentenced before a series of reforms that are now considered essential to fair trials. Among other things, the reforms ensured qualified capital defense lawyers, allowed defendants access to all evidence in the prosecution’s files, created protocols to prevent false confessions and mistaken identifications, and protected people with serious intellectual disabilities from execution.
Executions are currently barred in North Carolina by court order in a case that challenges the state’s lethal injection procedures. However, that case is on hold while the courts address other systemic questions of fairness in the state’s capital punishment system. First among those are cases filed under the state’s Racial Justice Act, which uncovered evidence of statewide race discrimination in capital cases. Those cases are currently before the N.C. Supreme Court and are expected to be argued later this year.
“The capital punishment system has so many problems that the public has lost faith in it,” said Weiss, who is among several attorneys spearheading statewide litigation about racial bias and the lethal injection process. “And after 12 years without executions, North Carolinians have seen that we can maintain public safety without the death penalty. When there is this level of mistrust in the system, we can no longer have a death penalty in North Carolina.”
New death sentences in North Carolina reached historic lows in 2018
For Immediate Release: December 17, 2018
For More Information Contact: Gretchen Engel, 919-956-9545 or gretchen@cdpl.org
In 2018, for the second year in a row, juries imposed no new death sentences in North Carolina. This marks the third year of the past four without any death sentences, and the first time in the state’s modern history that juries have rejected the death penalty for two consecutive years.
There were just three capital trials in North Carolina this year, one each in Wake, Lee, and Scotland counties. All three juries chose life without parole instead of death sentences.
The state has not executed anyone since 2006.
“The death penalty in North Carolina has become a relic,” said Gretchen Engel, executive director of the Center for Death Penalty Litigation and a defense attorney for death row prisoners. “Very few district attorneys seek death anymore and, when they do, juries reject it. The people of our state are speaking very clearly. We no longer need the death penalty to keep North Carolina safe.”
National trends away from the death penalty also continued in 2018. Washington became the 20th state to abolish capital punishment. A Gallup poll showed that, for the first time, a majority of Americans believe the death penalty is applied unfairly. Only eight states executed people, and numbers of death sentences and executions remained near all-time lows. At the same time, estimates showed that the U.S. murder rate was on track for its biggest decline in five years, providing more evidence that there is no connection between crime deterrence and the death penalty.
As the tide turns, Wake County remains an outlier in continuing to seek death sentences. It is the only county in North Carolina that has sought the death penalty at trial every year for the past three years. It is also the only county with two capital trials already on the calendar for early 2019. Since the beginning of 2016, there have been 12 capital trials across North Carolina, and a quarter of them were in Wake County. No other county has had more than one, and 90 percent of counties had no capital trials during those years.
Wake continues to seek death sentences even though the county’s juries have rejected the death penalty in favor of life without parole at nine capital trials in a row — and have not imposed a death sentence for more than a decade.
Continuing capital trials come at a high cost. Defense costs alone in death penalty trials, which are paid by taxpayers, average four times more than in non-capital trials. According to N.C. Indigent Defense Services, defense costs in Wake’s past nine capital trials have averaged nearly $350,000 per case. State taxpayers might have saved nearly $2.4 million if the cases had been tried non-capitally. These estimates do not include added costs for prosecutors, judges, and courts involved in in capital trials, which are longer and more complex.
“Our state is throwing away taxpayer money away every time there’s a capital trial,” Engel said. “We spend four times as much to end up with the same result we could have gotten with a non-capital trial, a sentence of life without parole. We should respect what our juries are telling us and stop death penalty prosecutions.”
Even though no one has been sent to death row since 2016, North Carolina continues to house the sixth largest death row in the nation with 140 prisoners. The vast majority were tried in the 1990s, before a series of reforms that transformed the death penalty by, among other things, providing an adequate defense to poor defendants, ensuring that people facing the death penalty could examine all the evidence against them, and setting protocols for police lineups and confessions to prevent suspects from being wrongly convicted. The problems with outdated death sentences were detailed in CDPL’s 2018 report, Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row.
Two people were removed from death row this year because of evidence of mental incapacity that was not revealed during their trials. James Morgan is now serving life without parole, and Juan Rodriguez will get a sentencing hearing. One person, Rowland Hedgepeth, died of natural causes.
Also this year, the N.C. Supreme Court agreed to review the cases of four prisoners who presented overwhelming evidence of race discrimination across the state and in their own cases. The court is expected to hold oral arguments in 2019.
CDPL wins justice for a client who spent 19 years on death row
On Nov. 9, CDPL client James Morgan was removed from death row after his attorneys argued that Morgan never got the fair trial to which the Constitution entitles him. The jury that sentenced Morgan to death 19 years ago wasn’t told about his his severe and lifelong brain damage from three separate traumatic brain injuries, beginning in childhood. This is exactly the type of evidence that typically persuades juries to choose life instead of death. With the approval of Buncombe District Attorney Todd Williams, Morgan will now serve life without parole. Read more from one of his attorneys, Elizabeth Hambourger.
