Bearman, who met with Gov. Mike Easley last Wednesday in support of clemency for Powell, conducted an "extremely detailed, large-scale analysis of proportionality" in the state's capital murder cases from 1978 to 1995 to determine if the state death penalty statute was indeed being reserved for the so-called "worst of the worst."
Bearman, now at Columbia University, said the case he had been asked to review was in fact proportional, but in the course of that review, he noticed Powell's case "was egregiously different from all the other cases that we looked at." Bearman called Powell's case an "outlier," and on a scatter graph chart of all the cases he reviewed, Bearman said Powell's data point, a red dot, appeared like a "moon" far off from the other data points.
"Proportionality review cases that look like Mr. Powell's case are life [imprisonment] cases, not death [penalty] cases," Bearman says. "I think it's extremely important if you have capital punishment that you are able to unambiguously and clearly distinguish between death eligible cases and those that are not death eligible. I think it's extremely important that we have a line that allows us to say these cases are clearly different than these other cases. The execution of William Powell will not just blur that line, it will erase whatever line has been established through proportionality review."
Shelby defense attorney David Teddy, who was among the lawyers who met with Easley to urge clemency, said he was "impressed with the governor," who had read the clemency material and "was very engaged with us." He said Easley's job is to be a gatekeeper and "to detach himself from the emotion" of a case and to "decide whether or not the death penalty in this case represents equal justice under the law." Teddy called Powell's a "rare and unique case [that] does not represent equal justice under the law."
Teddy prefaced his comments to the family of Mary Gladden: "Nothing that we are doing here today in any way diminishes her life. The fact that we're fighting for William Powell's life in no way minimizes what she went through."
In his first term, Easley permitted 18 executions, granting clemency just twice. The state has executed 33 men and one woman since it resumed executions in 1984. Four people were executed in 2004; none this year.
Chapel Hill defense attorney Bill Massengale said that although the court found Powell had no premeditation or intention to kill Gladden when he entered the convenience store unarmed, he was sentenced to die because his case involved the sole aggravating factor of pecuniary gain. Under the state's felony murder law, a case becomes "death eligible" when killing occurs in the course of the commission of another felony, in Powell's case, a robbery.
Massengale noted that 15 states with death penalty statutes, including Texas and Virginia, do not allow the death penalty to be applied to cases such as Powell's. "We think that felony murder is going to be the next retrenchment from capital murder," Massengale said. Just like more recent bans on the execution of the mentally retarded and juveniles, soon the courts "will require people to have a premeditated deliberate murder to make it capital," he said. "That's what we see the trend to be."
Massengale said Gladden's murder was "a panic killing" on the part of a man who was high on crack and alcohol at the time of the killing. "William Powell wants to live. He understands that it will be in prison for the rest of his life."
Powell's lawyers have not exhausted all appeals. Teddy said a witness against Powell, Lori Yelton Donohue, had a criminal charge dismissed as a result of her testimony for the prosecution at Powell's trial, information that was not revealed by the district attorney who prosecuted Powell. Teddy said Powell's lawyer was "deprived of the opportunity to question" Donohue regarding the deal. The case is pending before the state Supreme Court. A signed affidavit from Donohue, Powell's former girlfriend, was also presented to Easley. The alleged prosecutorial misconduct was uncovered when Teddy questioned Donohue in preparation for Powell's clemency hearing.
Powell's ex-wife, Marjorie Collier, and Pittsboro author Doris Betts, also contributed letters to Easley urging clemency.
Collier, who cares for Bobby, the autistic son she and Powell had together, wrote: "Bugs was a wonderful father, and I am afraid that his execution could have a disastrous effect on our son, who is severely and profoundly autistic."
In a single-page letter to Easley, Betts, who visited Powell on death row, wrote: "This is not a man who should be walking our streets," but "nothing in his biography ... categorizes him as one so irredeemable that he does not deserve to live."
Bearman said Powell is more than a data point now that he has met his lawyers and his family. "For me I learned that this data point is a real person," Bearman said. "Of course, as a data point the case is compelling. As a person, it's more compelling."
Activists opposed to Powell's execution have been fasting this week in front of Central Prison and the Capitol. For more information on the fast, call 833-4129. A prayer service for Gladden and Powell followed by a candlelight procession to the prison will be held Thursday at 7:30 p.m. at Pullen Memorial Baptist Church, 1801 Hillsborough St.