Did an innocent man come within 36 hours of being executed? That's the question raised by a May 10 N.C. Supreme Court decision that stopped last week's scheduled execution of Jerry Wayne Conner.
Defense attorney Mark Kleinschmidt called it "an extraordinary moment." His co-counsel Ken Rose said, "It was just incredible."
The two death penalty appellate lawyers, who work at Durham's Center for Death Penalty Litigation, were referring to the experience they had May 10 when they went to Raleigh's Central Prison just after noon to tell Conner he would not be executed the following night. That morning, the Supreme Court issued an order that stayed Conner's execution.
Conner, 40, was scheduled to die by injection on May 12 at 2 a.m. for the 1990 murders of Minh Rogers and her daughter, Linda, who was also raped.
On May 10, the state's highest court remanded Conner's case back to Gates County Superior Court so a DNA test can be conducted on a semen sample found on Linda Rogers' body.
Because a 1991 DNA test was inconclusive, Conner's lawyers asked the state to retest the sample. A new test, called "short tandem repeat" (STR), will likely conclude if the semen was Conner's.
Had the Supreme Court denied the request for the new test, Conner's case would have likely landed in the hands of Gov. Mike Easley, who could have ordered a test as part of the clemency process. Several courts had already denied Conner's request for the new test.
Now, Conner and his lawyers must wait to get the results that will likely determine if Conner lives or dies. Easley has allowed 26 executions to go forward since he took office in 2001. The Supreme Court's ruling was in part a response to a 2001 bill passed by the General Assembly that determined criteria for DNA testing in criminal cases.
"We see execution after execution after execution with very strong clemency claims as well as very strong legal claims that are ignored," Kleinschmidt said.
Conner says he is innocent of the murders, and that a confession he made was coerced by police. Conner's lawyers also presented an expert's finding that Conner is borderline mentally retarded.
"If [the test result is] favorable, as we hope it will be and I think [Conner] expects it will be, then the statute will provide for a new trial," Kleinschmidt said. "And if it's unfavorable, and I don't think he expects it to be, then the execution would be rescheduled.
"I believe in my clients, and I believe in Jerry," Kleinschmidt continued. "That's what I do with my life. I believe in my clients, and I fight for them against the enormous obstacles of our criminal justice system--that its only objective is to kill him--so I was pleased that we were able to stop that machine.
"It was a little scary there. I guess it was 36 hours. We could feel the weight of every minute that was left just kind of bearing down on our shoulders. It was a great relief when it was lifted."
Special deputy attorney general Barry McNeill, who represents the state in opposing death row appeals, said the State Bureau of Investigation can't do the DNA test required by the court, so the sample will likely be sent to an independent lab. McNeill said he does not think the new test will exonerate Conner.
"There is a better than good chance that the result that comes back is going to say it's inconclusive, but we still can't exclude Jerry Conner as having contributed to the sample. That's what the result was in 1991 with the [initial DNA test]," McNeill said.
When Rose, Kleinschmidt and paralegal Robin Rogers arrived at the prison to tell Conner the good news, he was preparing to die, Rose said. Conner had already given away many of his possessions as he prepared to be moved to the prison's "death watch" area, a group of four cells adjacent to the execution chamber.
The news took a while to sink in, Rose said. "He was being told 'Good-bye' and making his good-byes to his friends on death row.
"You have to put yourself in a particular state of mind to be able to steel yourself to being killed, and I know he was in the process of doing that. He was getting ready to be killed."
Conner thanked his legal team, Rose said.
"It was just incredible," Rose said. "He's someone who really enjoys life. Despite very difficult conditions of incarceration, he wants to live. This meant a lot to him, and it meant a lot to me."
Rogers said other inmates who were getting visits also took time to celebrate with Conner, shaking his hand and hugging him. Rogers said Conner was "stunned by the news. He really didn't know what to say. We were just so excited to be able to tell him; that's not something we get to tell people very often."
Rose, who has gone to Central Prison on other occasions to say his good-byes to clients, said he could even sense relief from prison staff that Conner would not be executed the next night. Rose said a bond often develops between guards and inmates.
"What we see more often than we expect is there's a human bond often between the guards and death row inmates," he said, "and the guards get to know some of the death row inmates on a personal basis and really understand that we're killing human beings and we're not killing monsters--that the persons that we're executing are better than their worst day."