2017-09-25 10:59:00 UTC
"It's not a game": District Attorney, Capital Defender dive into importance of
negotiations, death penalty ineffectiveness
North Carolina's 100 counties are represented by 44 prosecutorial districts,
complete with 44 district attorneys.
Of those 100 counties and 44 districts, 31 counties contain public defender
offices located in 17 districts.
Catawba, Caldwell and Burke counties comprise the 25th prosecutorial district
and are represented by District Attorney David Learner.
The 25th district does not have a public defender's office, which means a local
private attorney is appointed to all defendants in the district if they request
court-appointed council in a case.
More than 80 % (68.3 % public defender, 13.7 % assigned counsel) of felony
defendants charged with a violent crime in the United States' 75 largest
counties were represented by publicly-financed attorneys in 1996, according to
a U.S. DOJ Bureau of Justice Statistics Special Report.
More than 65 % of defendants in U.S. District Courts had publicly-financed
attorneys in 1998, according to the report.
Learner noted the importance of having a public defender???s office in the
district, calling it a "mirror image" of the district attorney's office.
"Every court-appointed lawyer would be available for court, and we could
expedite the handling of smaller cases," he added.
In murder trials, or capital cases, resources are spread even thinner
throughout the state.
North Carolina houses 5 regional capital defender offices comprised of 16
assistant capital defenders, who each fall under N.C. Capital Defender Robert
E. Sharpe Jr. in the Durham office.
A capital defender is appointed to a defendant who requested court-appointed
counsel and is charged with 1st-degree or undesignated murder and was 18 years
or older at the time of the offense, according to the North Carolina Office of
Assistant Capital Defender Victoria Jayne, from the Buncombe County regional
office, said her cases span the entire western part of the state.
"There's sort of a rule. (The capital defender's office) really doesn't want us
to have more than 8 or 9 cases at a time," Jayne said.
Death by natural causes
31 states, including North Carolina, utilize the death penalty as possible
punishment for murder convictions with an aggravating factor, according to the
Death Penalty Information Center (DPIC).
North Carolina's 145 death row inmates place the state 6th in the nation as of
April 1, according to DPIC.
The state ranks 9th in the nation with 43 executions since 1976, when the death
penalty was re-implemented after a 10-year hiatus caused by United States
Supreme Court Case, Gregg v. Georgia.
North Carolina's last execution was in 2006, according to the North Carolina
Department of Public Safety (NCDPS). The number of death sentences in the
United States has decreased consistently over the last 18 years, from 295 in
1998 to 31 in 2016.
4 death penalty verdicts were returned in the last 5 years in North Carolina,
and 13 were returned in the last 10 years, according to the NCDPS.
Learner emphasized the difficulty of prosecuting a death verdict.
"It's extraordinarily difficult to get a death verdict," Learner said. "Those
are 2-part trials. The 1st part, the jury is selected and they are death
qualified; in other words, that they'll consider the possibility of a death
The last person to receive a death verdict from Catawba County was Glenn
Chapman, convicted Nov. 16, 1994. On Nov. 5, 2007, Superior Court Judge Robert
C. Ervin ordered Chapman to receive a new trial on 2 of his death sentences,
according to the NCDPS.
Chapman's 2 murder charges were dismissed April 2, 2008, and he was released
from prison the same day.
3 men were convicted of murder and sentenced to the death penalty from 1993:
Ronald W. Frye was convicted Nov. 15, 1993, and executed Aug. 31, 2001; and
Nathan and William Bowie were convicted and sentenced to the death penalty Feb.
5, 1993, and remain on death row 24 years later.
Learner said he has personally tried 2 cases with the death penalty eligible as
a possible punishment if convicted, with 1 resulting in a 2nd-degree murder
verdict and the other 1st-degree murder with life in prison without parole.
"When you have experience of trying them, observing them, and looking at cases,
you come to realize it's very difficult for a jury seated in that box to say
'yes, you need to kill that man,'" Learner said.
Assistant Capital Defender Jayne shared similar sentiments when addressing the
finality of the punishment.
"There's a huge difference between someone sitting on death row and someone
serving a sentence of life in prison without parole," Jayne said.
Jayne also emphasized the importance of negotiations with clients and their
families, in addition to the district attorney's office.
"A lot of times, it's just a person who has taken a wrong turn, and we have to
explain the differences between the death penalty and LWOP (life without the
possibility of parole)," Jayne said. "On rare occasions, we've also been able
to explain that to the victim's family as well."
Of the state's capital cases during fiscal years 2007 through 2015, 58.1 %
resulted in a conviction of 2nd-degree murder or less; 20.1 % ended in a
conviction of less than 2nd-degree murder; and only 2.2 % resulted in a death
verdict, according to NCIDS statistics.
"The absolute horrifying thing to me is that we have people sitting on death
row or in prison because of faulty DNA or testing from 10 or more years ago,"
A total of 262 inmates have been removed from death row, some of which
posthumously, according to the NCDPS. Most received a resentencing or retrial
and were sentenced to life in prison without the possibility of parole, but
other defendants had charges completely dropped in a retrial.
"It's easy to charge someone with 1st-degree murder, but it doesn't always mean
that's what they should be charged with or that they should be charged at all,"
Jayne said it's a choice on the district attorney's part whether to pursue the
case capitally or not.
"And I haven't seen any decrease in (district attorneys pursuing the death
penalty)," Jayne said.
"This thing about, 'we need to execute him,' the actual mechanics of the court
system, it's not happening," Learner said. "I wouldn't be surprised if North
Carolina eventually had a moratorium or completely dismantled the death
Importance of negotiations
A death penalty verdict cannot be achieved without going to trial. However, a
conviction of murder of the 1st or 2nd-degree can be reached through a guilty
plea, which does not require a trial if the defendant agrees to plead guilty.
"You have cases where you know what happened, but you don't know why it
happened," Jayne said. "And that's where you get into the client's mental
health, provocation, and many times, those are the kind of cases you hope to be
able to resolve without going to trial."
Jayne elaborated on a case recently she called "client-driven" where the
defendant said, "Please just save my life and get me to LWOP (life in prison
"There are cases like that, but other cases you don't know what happened,"
Jayne said, citing the possibility of lost information, mistakes on a crime
scene or witnesses recanting.
Jayne noted that despite improved resources with the North Carolina State Crime
Lab, it's not perfect.
"We may be pushed for something to be tested and have our expert find out,
'they didn't do this right,' because DNA is a complicated thing," Jayne said,
adding that every expert the capital defender's office uses is approved by
"And that's where negotiations can be so important, to be able to work with the
DA's office and have an open mind to listen to your investigation," Jayne said.
"It's not a game."
"There are various things that we'll look at from the standpoint of what do we
need and decide, is this a case that we can go forward with," Learner said.
"There has to be checks and balances, the system works when everyone does their
job and represents who they're supposed to represent," Jayne said. "It's when
people do underhanded things or are negligent that things don't work."
Learner stressed the importance of communicating with the victim's family in
murder cases; in several recent possibly capital cases in the 25th district,
the defendant has pleaded guilty with a sentence of life in prison without the
possibility of parole in an effort to take the death penalty off the table.
Learner discussed the case involving Sharman Odom, 34, who pleaded guilty to
the murder, 1st-degree sexual assault and 1st-degree kidnapping of Maggie
Daniels, 31, a Discovery High School counselor in 2014.
Odom received the sentence of life in prison without the possibility of parole
Jan. 5.<>P> Learner said Daniels' family was unanimous in taking the life in
prison plea arrangement, but said "(the victim's family) did not necessarily
desire the death penalty, but understood if the case went to trial, that's what
we were going to pursue."
"I met with the family 15 minutes before we went in (to take the plea) in this
very conference room and said 'you understand everything with life in prison,'"
Learner said. "'If there's anyone in this room that does not think this is the
right thing to do, tell me right now and I'll shut it down, and we'll go to
Learner also noted the only way to appeal a sentence of life in prison without
the possibility of parole is through claiming defense attorneys did not provide
competent assistance or citing prosecutorial misconduct.
"This administration does it by the book; we give them everything we know to
exist, and we meet with the defense counsel to do a review of physical evidence
and compare item-by-item everything in discovery," Learner said.
In a recent case in Burke County, Justin Sullivan pleaded guilty to the
1st-degree murder of John Bailey Clark and was sentenced to life in prison
without the possibility of parole after pleading guilty in federal court to 1
count of attempting to commit an act of terrorism transcending national
Sullivan was sentenced to life in prison for that charge as well, with the
sentences running consecutively. Learner noted that 2nd sentence was essential
in case Sullivan attempted to appeal the federal ruling.
"Could we have tried him for the death penalty? Yeah, we could have," Learner
said. "Would a jury have convicted him? Of the murder, I have no doubt, but I
don't know for sure if they would have given him the death penalty or not.
"I believe that we did exactly what we should have done, and we met with the
victim's family; they were 100 % on board with what we did, as were all the law
enforcement agencies involved," he added. "I feel good about the result we got,
and we know for certain that (Sullivan) can never get to innocent people
Both the North Carolina Attorney General's Office and Office of Indigent
Services have seen recent budgetary cuts that have caused each department to
A recent cut to the attorney general's budget shifted low-level appeals to
district attorney offices around the state for the 1st time, in addition to
cutting more than 40 staffers from North Carolina Attorney General Josh Stein's
"I've never been aware of a budget cut where it's made this kind of impact,"
Learner said in a previous interview.
On the other side, Jayne said the roster and quality of capital defenders is
healthy, but attorney fees have been cut in recent years.
In January 2011, hourly rates for capital cases for public defense attorneys
went from $95 to $85, then $85 to $75 in May 2011, according to NCIDS
"Indigent services doesn't seem terribly important a lot of times to those who
don't have to use it, or that don't consider the legal system terribly
important," Jayne said.
In addition, pursuing cases with the possibility of capital punishment comes
with its own set of financial repercussions.
The average cost of a capital case amounted to $93,231 per case from the fiscal
years 2007 to 2015, according to the North Carolina Office of Indigent
Services. Those same fiscal years, the cost of a non-capital case averaged out
A repeal of the death penalty would have reduced state expenditures on murder
cases by approximately $10.8 million per year, according to a Duke University
study conducted in 2009.
The study took state expenditures from the fiscal years 2005 and 2006, and
removed costs that included extra defense expenditures for capital cases in
trial phase, extra payments to jurors, capital post-conviction costs,
resentencing hearings, and extra prison system expenditures.
However, prosecutors have greatly reduced the percentage of capital cases, from
28.1 % in the fiscal year 2008 to 11 % in the fiscal year 2013, according to
"Realizing the reality of the death penalty in North Carolina through the court
system, it's really about worthless," Learner said.
Testimony set to begin in Bradenton double-murder trial
Testimony is set to begin Monday in the trial 1 of 2 men still facing charges
in the 2015 fatal shooting of a Bradenton couple during a home invasion.
Just before 4 a.m. July 9, 2015, Bradenton police were called to the 3900 block
of Southern Parkway after a security alarm was triggered by the break-in at the
home Esther Deneus and her boyfriend, Kantral Markeith Brooks, both 29, shared.
Police arrived to find the couple shot dead.
The couple's children - between the ages of 1 and 11 at the time - were found
near their parents' bodies.
Esther Deneus and her boyfriend, Kantral Markeith Brooks, both 29, were
murdered on July 9, 2015 during a home invasion at the home they shared in the
3900 block of Southern Parkway.
Trey Nonnombre, 20; Jimmie McNear, 20; and Terez Jones, 35, were each
identified as the suspects in the murders after images from the home's video
surveillance system were released to the public. Each were later indicted on 2
counts of 1st-degree murder and armed home invasion.
The state was seeking the death penalty against all 3.
In May, however, Jones took a plea deal and agreed to be a witness against
Nonnombre and McNear. Jones pleaded guilty to 2 counts of 2nd-degree murder and
1 count of armed burglary and was sentenced to 25 years in prison. Jones will
now be required to testify this week against Nonnombre and later at McNear's
If convicted of 1st-degree murder, Nonnombre and McNear still face the death
penalty. McNear is set to stand trial separately during a 5-week trial period
that begins Oct. 16, after the conclusion of another death penalty case in
Sarasota that Circuit Judge Diana Moreland is presiding over.
Nonnombre's trial got underway last week Monday, with jury selection. More than
150 potential jurors were questioned individually by Assistant State Attorneys
Art Brown and Rebecca Muller and defense attorneys Daniel Hernandez and Bjorn
Potential jurors were initially only asked about their prior knowledge of the
case because of media attention it received, scheduling hardships and regarding
any strong feeling that may have for or against the death penalty during
individual questioning. On Friday, the 54 remaining potential jurors were
further questioned before a panel was selected.
The jury of 14 - made-up of 6 women and 8 men - includes 2 alternates.
The trial will resume Monday morning with opening statements.
Defense says Hamad has PTSD, acted in defense
The man accused of shooting 2 people dead and wounding 3 others outside his
state Route 46 home suffered from post-traumatic stress disorder when the
shootings happened Feb. 25, according to a motion filed in the case.
The motion filed by Nasser Hamad's attorneys defends their use of a
psychologist to testify that their client acted in self defense. Because of
"constant threats of death" in a 6-month period, plus an assault before the
shooting, the 48-year-old was suffering from PTSD, the motion states.
The motion is in response to arguments by 2 Trumbull County assistant
prosecutors that expert testimony to bolster self-defense claims should not be
permitted at Hamad's trial because he is not a battered woman or child.
Hamad is scheduled to go on trial Oct. 11 on 2 counts of aggravated murder that
carry the death penalty and 6 counts of attempted aggravated murder.
The case revolves around a confrontation between Hamad and occupants of a van
that was driven up to his home late in the afternoon of Feb. 25. Hamad and
several of the van's occupants had engaged in taunting and threatening behavior
over social media prior to the shootings, according to a Howland police report.
In support of their motion, defense attorneys Robert A. Dixon and David L.
Doughten write that when the van drove up his driveway, Hamad did not recognize
the occupants, and initially thought it might have been a customer for his
"That all changed very quickly when the occupants of the van attacked the
unarmed Hamad near his front porch," the motion states.
Hamad suffered a head injury from being thrown to the concrete, as well as
numerous bruises and a sprained wrist, the defense motion claims.
Prosecutors Christopher Becker and Michael A. Burnett, in their motion, paint a
different picture of Hamad - someone who boasted to detectives after the
shootings about successfully defending himself after he retrieved a 9 mm
handgun inside his home and began firing at the group in the van.
Prosecutors also claim Hamad posted on social media before the shooting: "I
home (sic) bring your gang I dont need guns for u," and he gave his address to
the group in the van.
Both Dixon and Doughten said they are not arguing for an insanity defense.
"But for the jury to evaluate whether Hamad was subjectively reasonable in his
belief his death was imminent, it must understand Hamad's mental health
condition at the time of the shootings," they wrote in support of presenting
Dr. James Reardon as a witness.
No firearms were recovered at the scene where the 5 people were shot. The
defense motion, however, talks about a written death threat left on Hamad's
front porch the night before the shootings. It also states that police found a
large hunting knife just outside the van.
Killed in the shooting were Joshua Haber, 19, and Joshua Williams, 20. The 2
other gunshot victims were April Vokes, 43; John Shivley, 17; and Bryce
Common Pleas Judge Ronald Rice previously issued a gag order preventing court
officials from talking to the media about the case.
(source: Warren Tribune Chronicle)
Murdered model was scalped, drained of blood, autopsy shows
Los Angeles police said Iana Kasian was tortured, mutilated and killed by her
boyfriend, Blake Leibel. He has pleaded not guilty.
An autopsy shows that a model -- who Los Angeles cops say was tortured and
killed by her graphic-novelist boyfriend -- was scalped, had portions of her
face torn off and had been drained of all her blood.
Iana Kasian, 30, was found dead in a West Hollywood apartment in May 2016.
Her boyfriend, Blake Leibel, 36, the son of wealthy Canadian real estate tycoon
and Olympic sailor Lorne Leibel, has been charged with her murder and could
face the death penalty if convicted. He has pleaded not guilty.
At least one of his novels has drawn unsettling parallels to the murder case.
The book, "Syndrome," starts with flashbacks of a serial killer slashing
throats and draining blood, the New York Daily News reported.
Detectives found Kasian lying next to her 2-month-old baby who was not hurt.
The autopsy report revealing the grisly details was released Wednesday, KABC-TV
The report shows there was also an injury to Kasian's jaw that appeared to be
human bite marks, the station reported.
Leibel also worked as a writer and director, according to multiple reports.
(source: Fox News)
Attorney who defended Oklahoma City bomber Timothy McVeigh dies
A criminal defense attorney who represented Oklahoma City bomber Timothy
McVeigh through his execution died Sunday.
Rob Nigh died less than 3 months after stepping down as Tulsa County's chief
public defender because of cancer, friends said.
He was 57.
Nigh helped defend McVeigh at his 1997 trial in Denver and was the lead
attorney on the bomber's appeals and at his execution in 2001. In a statement
to the media after the execution, Nigh said, "I submit there's nothing
reasonable or moral about what we have done today."
"He earned Tim McVeigh's friendship and respect," the bomber's lead trial
attorney, Stephen Jones, said Sunday. "In all matters professional, Rob was
zealous and stalwart in defending his clients, no matter what the charge."
Attorney Cheryl Ramsey, who worked alongside Nigh during the bombing trial,
called him "a champion of defendants his whole life."
"He was very conscientious. He never let anyone down," she said through tears.
"He was wonderful to work with. He was respected by all and will be missed."
Nigh grew up in Enid and was inspired to become an attorney after participating
in a high school debate on prison conditions.
"I decided that I wanted to be a lawyer and, to the extent that I could, make
things better for people in prison or prevent people from having to go to
prison. It seemed like the right thing to do," he told the Oklahoma City
National Memorial & Museum in an oral history in 2012.
Nigh considered the death penalty "absolutely wrong" and called watching
McVeigh get executed "the worst thing I've ever seen in my life."
About defending McVeigh, Nigh said, "You can hate the crime that somebody's
charged with - and certainly the Oklahoma City bombing is a crime worth hating
- but you don't have to hate the person that's accused of doing it.
"And that's kind of, I think, the approach that a criminal defense attorney
needs to take if he's going to ... undertake the representation of people
charged with serious crimes, especially violent ones."
Nigh, a graduate of the University of Oklahoma College of Law, lived in Sapulpa
at the time of his death.
(source: The Oklahoman)
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