In the usual frenzy by defense attorneys to save the life of their client, defense lawyers Cynthia Adcock and Kenneth Rose drove Monday to Surry County to file a last-minute appeal that introduces new evidence that, had it been heard by the jury, would have kept McHone off death row, Rose says. The two lawyers were slated to return to Surry County today for oral arguments on their appeal.
In Monday's motion for appropriate relief, Rose and Adcock submitted affidavits claiming that the killing of Mildred Adams may have been accidental and that McHone was far too intoxicated to have intended to commit first-degree murder.
According to testimony regarding the hours leading up to the killings, McHone, then 19 years old, "was drinking heavily," and "the amounts and types of alcohol McHone had consumed were undisputed."
On the evening before the killings, McHone started drinking and essentially didn't stop. His consumption included sharing "a pint and a half of Jack Daniels" with a friend, five six-ounce beers, another fifth of liquor shared with one other person, and two to three more cans of beer.
Even with that volume of consumption, police officers testified at trial that McHone was not significantly impaired, a point that is now being disputed by McHone's brother, Randall Adams.
In a sworn affidavit accompanying the new appeal, Adams wrote that shortly before she died, his mother told him that McHone was "the worst I've ever seen him."
"I knew she meant he was the most severely impaired by drugs and alcohol that she ever seen," he said. "We all knew for a long time that Steve was addicted to alcohol and other substances."
A second affidavit was submitted by Teresa Durham, the Surry County paramedic who arrived at the Adams' residence after the shootings and attended to Mildred Adams.
As Durham was helping to place Adams into the ambulance, Adams reached for Durham's hand and said of her son, "Don't hurt him, he didn't mean to do it," Durham wrote in her affidavit. Mildred Adams later repeated this statement as her last words.
"There is a good chance it was an accidental shooting," Adcock said of the shooting of Mildred Adams.
The U.S. Supreme Court banned the execution of murderers who commit their crime before age 18 in part because a person's brain development is not complete at that age, thereby diminishing that person's judgment. Brain development is also impaired by early alcohol abuse, Adcock said. Since McHone started abusing alcohol at age 13 or 14, Adcock said McHone's execution would constitute "cruel and unusual punishment" because he had the culpability of "someone who would be the equivalent of a young teenager."
Adcock said she would ask the judge for an evidentiary hearing on the new issues.
"In order to have a full evidentiary hearing we need a stay of execution," she said.
Rose, who is executive director of the Center for Death Penalty Litigation, said the jury would not have voted to execute McHone had they been aware of this new evidence.
"I believe he would have been acquitted of first-degree murder," Rose said.
James Dellinger, the former district attorney who originally prosecuted McHone, is now opposed to McHone's execution. In a rare move Monday, the North Carolina Academy of Trial Lawyers called on Gov. Mike Easley to commute McHone's death sentence to life with no possibility of parole. This is only the second time the academy has joined in a request for clemency.
In a letter hand-delivered to Easley's office, the academy argues that the defense lawyers appointed to represent McHone failed to provide the bare minimum of representation required in a capital murder trial.
One of McHone's trial lawyers, Terry Collins, has since been disbarred, and credible evidence exists that Collins was buying drugs "during or before Steve McHone's trial," appellate lawyers say.
"The criminal defense bar must voice its outrage when lack of adherence to basic standards for adequate representation appear to have contributed significantly to a finding of guilt and the imposition of the death penalty," academy President Clifford Britt wrote.