Melinda Ruley | OPINION: Melinda Ruley | Indy Week
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Melinda Ruley 

Zero-sum game

Like every epic saga, the debate over capital punishment has its flashing battles and its unremarkable skirmishes. The battles get the headlines: fights over DNA testing, executing the mentally retarded, moratoria. The skirmishes remain by and large invisible. They are the jousting matches that take place in the background of nearly every capital murder case: a brief filed here, a motion argued there, accusations and recriminations among dueling lawyers.

Every so often, one of these skirmishes will find its way into the papers. Earlier this month, for instance, The News & Observer reported on the reaction of prosecutors to a recent move by the North Carolina Supreme Court. The court declined to hear the state's appeal on a ruling that removed convicted murderer Bobby Lee Harris from death row. Their failure to act essentially upheld an earlier reversal of Harris' death sentence. He is currently awaiting re-sentencing.

Harris was convicted of first-degree murder in the 1991 death of an Onslow County fisherman, John Redd. Harris' appellate lawyers had a number of potentially solid issues--questions about the defendant's IQ, his trial lawyer's effectiveness, intent to kill. Harris made a full confession after Redd's death, and there was strong evidence that he never meant to kill the victim--that, in fact, he placed the injured man in a conspicuous spot in hopes he would be rescued. None of these issues got Harris off death row, though. Instead, he won on a technicality, a detail in the fine print of a little-known practice called trial bifurcation.

Sometimes it's the details, the small things, that expose the whole. I once rented a house next to a man who would come home from work on Fridays, crack open a six-pack and light a Roman candle in his back yard. The firecracker scared the wits out of his cat, an orange tom who would disappear under my house for days, convinced the world had ended. I wrote my neighbor off as a redneck brute until I noticed him, one day, easing his lawn mower around a single wand of Queen Anne's lace.

To me, learning about the little skirmishes--Bobby Lee Harris and his bifurcated trial--is like looking through a peephole into the neighbor's back yard: The view is mostly uninteresting. Very occasionally, though, something happens that amounts to a kind of revelation.

The minutia of bifurcated trials don't make for sexy reading--in the end, they are not really the point. But learning about them does make it possible to witness the Byzantine workings of the lawyers and judges who operate the machinery of capital punishment every day. It also, surprisingly, throws light on some bigger truths about the death penalty.

There are two parts to every capital murder trial: the guilt phase, in which the jury decides on a verdict; and the penalty phase, in which jurors sentence the defendant. In capital cases, jurors must choose between the death penalty and life in prison. A bifurcated trial is one in which separate juries hear the guilt and penalty phases.

In Bobby Lee Harris' case, the trial was bifurcated by necessity: His defense attorney became seriously ill during the trial and was unable to continue representing his client. After Harris was found guilty of first-degree murder, the trial judge sent the jury home so that Harris could find another lawyer. A new jury was impaneled to hear the penalty phase and deliver Harris' sentence.

However, the trial judge failed to put into the record his reasons for impaneling a new jury. Bifurcation is legal--so long as there is documented cause for it. Otherwise, the law requires that criminal cases be tried in one session of court, by one judge and one jury. The trial judge in Harris' case simply failed to cross his "t"s, and Superior Court Judge Wade Barber found that the second jury, the one that imposed the death penalty, had no authority.

Capital cases are fraught with emotion and stress; neither side likes to let a victory slip away. In the Harris case, the response from prosecutors was somewhat ominous, a restrained bout of saber rattling. In the aftermath of the death penalty reversal, prosecutors hinted at repercussions. Wake County's District Attorney suggested that the court's failure to hear the case might throw a "wet blanket" on the future use of bifurcation. Another district attorney wondered about the procedure's validity. "Where are we now?" he asked. "We're here scratching our heads."

Reading these comments, what struck me about Harris' reprieve is that it might jeopardize one of the few procedural mechanisms proven to help keep defendants off death row. In capital cases, juries must be "death-qualified," meaning every member of the jury panel must stipulate a willingness to impose the death penalty. It is often difficult and time-consuming, and therefore expensive, to seat such a jury--this despite the overall support for the death penalty heralded in most polls. On the other hand, a death-qualified jury is far more likely than a regular jury to come back with a first-degree conviction.

For this reason, prosecutors are partial to death-qualified juries, while defense attorneys are loath to put their clients in front of them. A lawyer's best chance at getting his client a life sentence is at the trial level; once a defendant has been sentenced to death, the chances of saving his life drop precipitously. A bifurcated trial, consequently, can amount to an end-run around a death sentence. It can be a life saver.

Unfortunately for capital murder defendants, bifurcated trials are rare, occurring in fewer than 10 percent of cases. Unless a district attorney knows the case for capital murder is weak, he will usually object to separate juries. Still, in capital cases, where a human life hangs on every verdict, 10 percent is nothing to shrug off. Might prosecutors, angry about the Bobby Lee Harris case, use the state Supreme Court's failure to re-instate his death sentence as ammunition against bifurcated trials?

Not likely, says Durham lawyer Marshall Dayan, a veteran defense attorney and outspoken opponent of the death penalty. Prosecutors might be unhappy with the high court's decision not to hear the Harris appeal, he says, but the truth is there was no issue for the justices to decide on. Because the trial judge had failed to follow the letter of the law on bifurcated trials, the decision to vacate Harris' death sentence was entirely appropriate.

As for the grumblings from prosecutors, Dayan says, that kind of rhetoric is predictable enough. "They're saying, 'Let's see if we can get some political leverage out of this by calling into question the propriety of bifurcation in general,'" Dayan says. "It's just sort of payback."

But if the rhetoric over separate trials is just saber rattling, what is it about the Harris case that seems so portentous?

Perhaps it has to do with the fact that Harris' death sentence was reversed on--that dreaded "T" word--a technicality. In the years I've spent observing and writing about the death penalty in North Carolina, I've been concerned primarily with "technicalities"--glitches and loopholes in the system--used to garner convictions and guarantee executions. Procedural manipulations, sloppy investigations, slanted jury instructions--these sanctioned errors can and do lead to wrongful convictions, inappropriate prison sentences and executions. I remember being horrified by the endless examples of defendants whose trial lawyers were too drunk, stoned or otherwise incompetent to put a defense together. Or the appellate court that didn't think misplaced DNA evidence bore consideration.

For capital murder defendants, these problems are systemic; they exist at all levels of a capital case, from the arrest to the clemency hearing. And they are fueled by the high emotions that accompany murder cases. "Capital punishment brings out the worst in people," an appellate defender once told me. People cut corners, go out on limbs. It's not surprising, he continued, that blunders and mistakes are inherent to the system.

Here though, in the Harris case, the blunder went to the defendant's advantage. A trial judge made a seemingly insignificant error and a death-row inmate got a reprieve. I couldn't be happier for Harris. I'm glad his lawyers picked through the rules for bifurcation and found the trial judge's error. I'm glad Judge Barber had the courage to act on that error. Still, it seems to me that Harris' reprieve is really just one more piece of evidence for the precariousness of the entire practice of capital punishment.

Everybody in capital murder cases--cops, judges, prosecutors and defense attorneys--everybody works the system. They work it because it can be worked, because the potential for oversight, neglect, clerical error and intentional abuse are manifest. They work it because the law is an inexact science, as mutable and imperfect as the men and women who create it.

I've always been wary of arguments for moratoria on the death penalty, chiefly because the premise of those arguments--that the current practice of capital punishment is fraught with legal flaws--scares me. What if, one by one, we erase those flaws? What if the science of DNA evidence one day allows us to pull every verdict out of a test tube? Having failed to put the moral argument into the record, will we be able to bring it up on appeal?

One thing the Harris case makes me realize is that nothing--not even science--will ever rectify the imperfect law. In the end, its weaknesses are too human. They find form in a deputy sheriff who misplaces a box of bloody clothes, in a judge who fails to put a few words into the record. Because capital punishment is a serious business that makes no allowance for error, and because the law is so error-prone, the very application of that law is immoral. This is what former U.S. Supreme Court Justice Harry Blackmun meant when he wrote in 1994 that he'd given up on the death penalty after 20 years of trying to make the law sound enough to fairly address capital punishment. "Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved," he wrote, "... I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed."

Reading Blackmun makes me think of those dramatic depictions of the Final Judgment, with Christ looking stern in his flowing robes, and an angel standing to the side holding the Book of Life, a meticulous ledger of sins and good deeds. Whatever the petitioner's fate, one can be sure that truth and righteousness have prevailed. It's all right there in the ledger.

Down here in the prisons and courtrooms and judges chambers of North Carolina, there is no such ledger. The best we've got is a stack of law books, every word of which has been thought up and typed out by a mere mortal. I guess if people could be talked into putting the death penalty on hold until the law is sufficiently rehabilitated, I'd take that. It would be sort of like winning on a technicality. EndBlock


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