A major factor in whether a first-degree murder conviction results in a death sentence or life imprisonment, regardless of the crime, is the caliber of the legal defense. Good lawyers, life; bad lawyers, death, according to experts like Duke University Law Professor James Coleman, a leader in the movement for a moratorium on capital punishment. Good lawyers can make a jury see the defendant as a human being who made a terrible mistake. Bad lawyers can't, or don't, and the jury sees only a criminal.
Willie Fisher, who is scheduled to be executed early Friday morning, did commit murder. He turned himself in, confessed and took responsibility for his crime. He killed his longtime girlfriend nine years ago after fighting over the care of their young son. But he had no history of violence, had never been in trouble with the law before, and he's been a model prisoner since. "We don't have many clients who have a totally clean record" prior to conviction, says Ken Rose, executive director of the N.C. Center for Death Penalty Litigation. "The fact that David Tamer represented him was the key to his getting a death sentence."
Tamer, who was suspended from legal practice after representing Fisher at his trial and in his appeal to the state Supreme Court, has since been disbarred and charged with embezzlement of clients' funds.
Fisher, 38, is the youngest of nine brothers and sisters. He grew up in Winston-Salem, graduated from North Forsyth High School, and worked for 12 years as a school bus driver and roofer. Stephanie Morris, a clinical social worker who lives in Cary, has been visiting Fisher in prison for six years and has taken on the work of documenting his life, interviewing his family, friends and co-workers. She says no one she's talked to thinks Fisher should be executed. All think, as she does, that "he is someone who has had a productive life, and a terrible six hours."
"We've never said, or would say, that what Willie did was not awful," Morris says. But she hopes that Gov. Mike Easley will spare him "based on what he's done in prison, and what he can do." She says Fisher is a soft-spoken, friendly man who believes in God, has embraced Christianity and shares his faith and positive outlook freely with other inmates and guards. "One inmate I talked to called Willie a light in a lot of darkness," Morris says.
Fisher himself cannot explain why he went into a rage and killed Angela Johnson, Morris says. They were about to get married. Earlier on the day of the murder, Fisher had brought her a card and a rose. But then they fought, with Johnson fleeing the house after Fisher hit her, and Fisher leaving to go on a binge of alcohol and cocaine. He returned later and killed Johnson, stabbing her 32 times and also injuring her daughter when she tried to stop him.
A "pathological reaction to alcohol and drugs" is the best the experts can come up with, Morris says. Johnson, who went to a police station after the fight, told the officer who interviewed her that Fisher "never" hit her before, and that "his conduct tonight is out of character for him," according to Fisher's defense team. But Tamer failed to put that evidence in front of his jury.
That was just one of Tamer's mistakes, says Cindy Adcock, a member of the Duke Law faculty. Adcock now represents Fisher along with Winston-Salem attorney Larry Moore. Tamer, she says, was suffering from severe depression at the time of Fisher's trial and failed to mount much of a defense, billing the state for just 56 hours, 44 of them in the week prior to trial.
Tamer failed to call at least five witnesses who saw Fisher drinking the day of the crime, leaving the jury in doubt whether he actually was. Also, Tamer failed to call any expert witness to testify about the possible effects of alcohol and cocaine on Fisher's behavior despite several warnings from the one psychiatrist who did testify that he was not qualified to address that subject. Such testimony could have undercut the idea that the murder was premeditated--a prerequisite for a capital offense, Adcock says. And in the post-conviction phase of Fisher's trial, she says, when the jury was considering whether to vote for a life sentence or the death penalty, Tamer "put on a very slim case" with few witnesses and little of the mitigating evidence about Fisher's life to counter what the jury heard about the aggravating circumstances of the crime itself.
The mitigating evidence might have included Fisher's depression over the recent death of his mother, plus his mother's chronic alcoholism. He was, in effect, his mother's caretaker, Morris says. His father was disabled and unable to cope with her, and the family was perpetually poor.
When Fisher was sentenced to death, Tamer continued to be his lead attorney when the case was appealed to the N.C. Supreme Court, despite the fact that Fisher asked that Tamer be removed--twice. Finally, after Tamer had argued the appeal, but before it was decided, the State Bar suspended Tamer's law license for mishandling numerous cases and the Supreme Court was forced to replace him with the state Appellate Defender's office. The Court rejected Fisher's appeal before the Appellate Defender could file a brief.
The significance of that is twofold, Fisher's defense team argues. Tamer's appeal did not raise as an issue before the Supreme Court the inadequacy of his own defense. Moreover, when that issue was raised by the new defense team in a subsequent appeal to the trial judge, Tamer's testimony that his work was adequate was the chief reason the judge gave for rejecting the appeal.
Second, Tamer never raised the issue that the jury may have been racially biased, and because he didn't, recent laws limiting post-conviction appeals kept the new defense team from ever raising it. His jury consisted of 11 whites and one African American. Three other blacks were dismissed as potential jurors by the prosecution.
On Monday, the U.S. Supreme Court rejected an appeal from Fisher's legal team based on technical problems with his indictment. Other than an 11th-hour appeal to the Court on some other ground, Fisher's only hope now is that Easley will see this as a case in which a decent defense effort at his trial would have resulted in a life sentence, not death.
Sally Fisher, a sister, has collected letters and signatures from about 300 neighbors asking Easley for mercy. "I hope he will read them and listen to his heart," she says.
Morris says that as Fisher faces possible execution, he is in good spirits, never failing to ask about her family when she visits, always telling her and his lawyers not to worry too much about him. "He believes that the Lord is the source of his peace," she says.