NEWTON – North Carolina’s 100 counties are represented by 44 prosecutorial districts, complete with 44 district attorneys.
Of those 100 counties and 44 districts, 31 counties contain public defender offices located in 17 districts.
Catawba, Caldwell and Burke counties comprise the 25th prosecutorial district and are represented by District Attorney David Learner.
The 25th district does not have a public defender’s office, which means a local private attorney is appointed to all defendants in the district if they request court-appointed council in a case.
More than 80 percent (68.3 percent public defender, 13.7 percent assigned counsel) of felony defendants charged with a violent crime in the United States’ 75 largest counties were represented by publicly-financed attorneys in 1996, according to a U.S. DOJ Bureau of Justice Statistics Special Report.
More than 65 percent of defendants in U.S. District Courts had publicly-financed attorneys in 1998, according to the report.
Learner noted the importance of having a public defender’s office in the district, calling it a “mirror image” of the district attorney’s office.
“Every court-appointed lawyer would be available for court, and we could expedite the handling of smaller cases,” he added.
In murder trials, or capital cases, resources are spread even thinner throughout the state.
North Carolina houses five regional capital defender offices comprised of 16 assistant capital defenders, who each fall under N.C. Capital Defender Robert E. Sharpe Jr. in the Durham office.
A capital defender is appointed to a defendant who requested court-appointed counsel and is charged with first-degree or undesignated murder and was 18 years or older at the time of the offense, according to the North Carolina Office of Indigent Services.
Assistant Capital Defender Victoria Jayne, from the Buncombe County regional office, said her cases span the entire western part of the state.
“There’s sort of a rule. (The capital defender’s office) really doesn’t want us to have more than eight or nine cases at a time,” Jayne said.
Death by natural causes
Thirty-one states, including North Carolina, utilize the death penalty as possible punishment for murder convictions with an aggravating factor, according to the Death Penalty Information Center (DPIC).
North Carolina’s 145 death row inmates place the state sixth in the nation as of April 1, according to DPIC.
The state ranks ninth in the nation with 43 executions since 1976, when the death penalty was re-implemented after a 10-year hiatus caused by United States Supreme Court Case, Gregg v. Georgia.
North Carolina’s last execution was in 2006, according to the North Carolina Department of Public Safety (NCDPS). The number of death sentences in the United States has decreased consistently over the last 18 years, from 295 in 1998 to 31 in 2016.
Four death penalty verdicts were returned in the last five years in North Carolina, and 13 were returned in the last 10 years, according to the NCDPS.
Learner emphasized the difficulty of prosecuting a death verdict.
“It’s extraordinarily difficult to get a death verdict,” Learner said. “Those are two-part trials. The first part, the jury is selected and they are death qualified; in other words, that they’ll consider the possibility of a death verdict.”
The last person to receive a death verdict from Catawba County was Glenn Chapman, convicted Nov. 16, 1994. On Nov. 5, 2007, Superior Court Judge Robert C. Ervin ordered Chapman to receive a new trial on two of his death sentences, according to the NCDPS.
Chapman’s two murder charges were dismissed April 2, 2008, and he was released from prison the same day.
Three men were convicted of murder and sentenced to the death penalty from 1993: Ronald W. Frye was convicted Nov. 15, 1993, and executed Aug. 31, 2001; and Nathan and William Bowie were convicted and sentenced to the death penalty Feb. 5, 1993, and remain on death row 24 years later.
Learner said he has personally tried two cases with the death penalty eligible as a possible punishment if convicted, with one resulting in a second-degree murder verdict and the other first-degree murder with life in prison without parole.
“When you have experience of trying them, observing them, and looking at cases, you come to realize it’s very difficult for a jury seated in that box to say ‘yes, you need to kill that man,’” Learner said.
Assistant Capital Defender Jayne shared similar sentiments when addressing the finality of the punishment.
“There’s a huge difference between someone sitting on death row and someone serving a sentence of life in prison without parole,” Jayne said.
Jayne also emphasized the importance of negotiations with clients and their families, in addition to the district attorney’s office.
“A lot of times, it’s just a person who has taken a wrong turn, and we have to explain the differences between the death penalty and LWOP (life without the possibility of parole),” Jayne said. “On rare occasions, we’ve also been able to explain that to the victim’s family as well.”
Of the state’s capital cases during fiscal years 2007 through 2015, 58.1 percent resulted in a conviction of second-degree murder or less; 20.1 percent ended in a conviction of less than second-degree murder; and only 2.2 percent resulted in a death verdict, according to NCIDS statistics.
“The absolute horrifying thing to me is that we have people sitting on death row or in prison because of faulty DNA or testing from 10 or more years ago,” Jayne said.
A total of 262 inmates have been removed from death row, some of which posthumously, according to the NCDPS. Most received a resentencing or retrial and were sentenced to life in prison without the possibility of parole, but other defendants had charges completely dropped in a retrial.
“It’s easy to charge someone with first-degree murder, but it doesn’t always mean that’s what they should be charged with or that they should be charged at all,” Jayne said.
Jayne said it’s a choice on the district attorney’s part whether to pursue the case capitally or not.
“And I haven’t seen any decrease in (district attorneys pursuing the death penalty),” Jayne said.
“This thing about, ‘we need to execute him,’ the actual mechanics of the court system, it’s not happening,” Learner said. “I wouldn’t be surprised if North Carolina eventually had a moratorium or completely dismantled the death penalty.”
Importance of negotiations
A death penalty verdict cannot be achieved without going to trial. However, a conviction of murder of the first or second-degree can be reached through a guilty plea, which does not require a trial if the defendant agrees to plead guilty.
“You have cases where you know what happened, but you don’t know why it happened,” Jayne said. “And that’s where you get into the client’s mental health, provocation, and many times, those are the kind of cases you hope to be able to resolve without going to trial.”
Jayne elaborated on a case recently she called “client-driven” where the defendant said, “Please just save my life and get me to LWOP (life in prison without parole).”
“There are cases like that, but other cases you don’t know what happened,” Jayne said, citing the possibility of lost information, mistakes on a crime scene or witnesses recanting.
Jayne noted that despite improved resources with the North Carolina State Crime Lab, it’s not perfect.
“We may be pushed for something to be tested and have our expert find out, ‘they didn’t do this right,’ because DNA is a complicated thing,” Jayne said, adding that every expert the capital defender’s office uses is approved by NCIDS.
“And that’s where negotiations can be so important, to be able to work with the DA’s office and have an open mind to listen to your investigation,” Jayne said. “It’s not a game.”
“There are various things that we’ll look at from the standpoint of what do we need and decide, is this a case that we can go forward with,” Learner said.
“There has to be checks and balances, the system works when everyone does their job and represents who they’re supposed to represent,” Jayne said. “It’s when people do underhanded things or are negligent that things don’t work.”
Learner stressed the importance of communicating with the victim’s family in murder cases; in several recent possibly capital cases in the 25th district, the defendant has pleaded guilty with a sentence of life in prison without the possibility of parole in an effort to take the death penalty off the table.
Learner discussed the case involving Sharman Odom, 34, who pleaded guilty to the murder, first-degree sexual assault and first-degree kidnapping of Maggie Daniels, 31, a Discovery High School counselor in 2014.
Odom received the sentence of life in prison without the possibility of parole Jan. 5.
Learner said Daniels’ family was unanimous in taking the life in prison plea arrangement, but said “(the victim’s family) did not necessarily desire the death penalty, but understood if the case went to trial, that’s what we were going to pursue.”
“I met with the family 15 minutes before we went in (to take the plea) in this very conference room and said ‘you understand everything with life in prison,’” Learner said. “‘If there’s anyone in this room that does not think this is the right thing to do, tell me right now and I’ll shut it down, and we’ll go to trial.’”
Learner also noted the only way to appeal a sentence of life in prison without the possibility of parole is through claiming defense attorneys did not provide competent assistance or citing prosecutorial misconduct.
“This administration does it by the book; we give them everything we know to exist, and we meet with the defense counsel to do a review of physical evidence and compare item-by-item everything in discovery,” Learner said.
In a recent case in Burke County, Justin Sullivan pleaded guilty to the first-degree murder of John Bailey Clark and was sentenced to life in prison without the possibility of parole after pleading guilty in federal court to one count of attempting to commit an act of terrorism transcending national boundaries.
Sullivan was sentenced to life in prison for that charge as well, with the sentences running consecutively. Learner noted that second sentence was essential in case Sullivan attempted to appeal the federal ruling.
“Could we have tried him for the death penalty? Yeah, we could have,” Learner said. “Would a jury have convicted him? Of the murder, I have no doubt, but I don’t know for sure if they would have given him the death penalty or not.
“I believe that we did exactly what we should have done, and we met with the victim’s family; they were 100 percent on board with what we did, as were all the law enforcement agencies involved,” he added. “I feel good about the result we got, and we know for certain that (Sullivan) can never get to innocent people again.”
Both the North Carolina Attorney General’s Office and Office of Indigent Services have seen recent budgetary cuts that have caused each department to shift work.
A recent cut to the attorney general’s budget shifted low-level appeals to district attorney offices around the state for the first time, in addition to cutting more than 40 staffers from North Carolina Attorney General Josh Stein’s staff.
“I’ve never been aware of a budget cut where it’s made this kind of impact,” Learner said in a previous interview.
On the other side, Jayne said the roster and quality of capital defenders is healthy, but attorney fees have been cut in recent years.
In January 2011, hourly rates for capital cases for public defense attorneys went from $95 to $85, then $85 to $75 in May 2011, according to NCIDS statistics.
“Indigent services doesn’t seem terribly important a lot of times to those who don’t have to use it, or that don’t consider the legal system terribly important,” Jayne said.
In addition, pursuing cases with the possibility of capital punishment comes with its own set of financial repercussions.
The average cost of a capital case amounted to $93,231 per case from the fiscal years 2007 to 2015, according to the North Carolina Office of Indigent Services. Those same fiscal years, the cost of a non-capital case averaged out to $21,022.
A repeal of the death penalty would have reduced state expenditures on murder cases by approximately $10.8 million per year, according to a Duke University study conducted in 2009.
The study took state expenditures from the fiscal years 2005 and 2006, and removed costs that included extra defense expenditures for capital cases in trial phase, extra payments to jurors, capital post-conviction costs, resentencing hearings, and extra prison system expenditures.
However, prosecutors have greatly reduced the percentage of capital cases, from 28.1 percent in the fiscal year 2008 to 11 percent in the fiscal year 2013, according to NCIDS statistics.
“Realizing the reality of the death penalty in North Carolina through the court system, it’s really about worthless,” Learner said.