On Friday, Dec. 2, Kenneth Lee Boyd became the 1,000th inmate put to death in the United States since capital punishment was reinstated almost 30 years ago. Because of the symbolism involved, North Carolina's execution of Boyd drew worldwide attention.
But it was another largely ignored execution by the State of North Carolina three weeks earlier that fully illustrates why the current system is flawed and capricious. Steve McHone was executed at 2 a.m. Friday, Nov. 11, because he did not have the money to hire a competent defense lawyer at his trial, and once the death sentence was imposed he never had a realistic chance of having it overturned.
Justice Ruth Bader Ginsburg remarked in a 2001 speech that she had yet to see a death penalty case where there was not significant evidence of ineffective assistance of counsel. McHone's case unquestionably confirms her observation.
McHone was convicted of killing his mother and step-father. There was no dispute that when he did this he was extremely intoxicated and there was evidence that he was under the influence of LSD. But McHone's defense lawyers called no expert witnesses on the effects of his intoxication on his ability to form the required intent for first-degree murder. Two experts who testified during the penalty phase of the trial, when the jury was considering the death penalty, subsequently said if they had known the extent of his intoxication they would have testified that McHone could not possibly have committed first-degree murder. The defense lawyers never called witnesses who spoke with McHone immediately before and after the murders who could have offered crucial testimony as to his condition and mental state.
The importance of adequate counsel in death penalty cases cannot be overstated. A study in Florida found that the single largest variable that would predict whether a capital defendant would be sentenced to death or not is whether or not that person had a privately retained counsel or a court-appointed lawyer. A study in Georgia found those who had court-appointed lawyers were 2.6 times more likely to be sentenced to death than those who had privately appointed lawyers. Of 131 individuals executed during the Texas governorship of George W. Bush, 43 had an attorney who had previously been disciplined by the Bar for misconduct, and 40 of those who had been convicted had a lawyer who presented no evidence or, at most, one witness on their behalf.
Once McHone was sentenced to death, the system offered him little chance. The appellate courts deferred to the trial court and to the possibility of clemency from the governor, but the governor deferred to the courts. The North Carolina Supreme Court at one point ordered a new hearing for McHone, but then affirmed his death sentence without the hearing ever being held.
In the federal court of appeals, McHone had the misfortune of having a panel with two very conservative judges, including one, Michael Luttig, who has affirmed the death sentence in 46 of 47 capital cases where he has participated as a judge. Luttig's own father was murdered and Luttig took a leave from his job to go to Texas to work for the death penalty for his father's murderers. The federal court of appeals decision was 2-1, with Judge Roger Gregory writing a long dissent detailing the ineffective of assistance of counsel and its effects.
I wrote the petition for Supreme Court review in the case, working with terrific lawyers at the North Carolina Death Penalty Center who had represented him in federal court, and was convinced the Court would either take the case or send it back to the Fourth Circuit. On Sept. 27, the Supreme Court denied review and the State of North Carolina immediately set an execution date for six weeks later. It was one of a large number of death penalty cases, including five from North Carolina, where review was denied that day without comment by any justice.
If Steve McHone had money to hire top-notch counsel, he would be in prison right now, not dead. If McHone had the good fortune to have had drawn different judges in the federal system, or if the Supreme Court had decided it wanted to hear another ineffective assistance of counsel case, he likely would still be alive.
One thousand people across the country have now been executed since the death penalty was reinstated. Most never would have been sentenced to death if they had competent lawyers.