Death Sentence (21 page)

“It was shoot-from-the-hip,” he would recall, “not a lot of preparation time. Flew blind through it. You learn an awful lot from that. Anybody can prepare a case. The test is what you can do extemporaneously. It teaches you to seize opportunities.”

Within a year of becoming a prosecutor, Britt married a local teacher, Marlyn Linkhaw, and found himself settled even more deeply back into Robeson County. Although he didn’t have palm trees and balmy breezes, he still had flying. He’d never stopped that. He was always learning more, getting new licenses. He was qualified for instrument flying, commercial flying, multi-engine planes, seaplanes, gliders, licensed as an instructor in many fields of aviation. But helicopters became his passion, and he acquired his own.

In his helicopter he was no longer a prisoner of the air. He had complete power. He could hover, move forward, go backward, do whatever he wanted. “In that bubble,” he said, “you’re like a little tin god.” Later, there would be those who would claim that he was much the same in the courtroom.

After John Regan developed cancer early in the 1970s, Britt had to take on more and more of the workload, and it was clear even before Regan entered the final stages of his illness that Britt had been anointed his successor. He had already taken the necessary political steps in the Democratic Party, becoming precinct chairman, a member of the party’s executive committee, president of the Young Democrats. He announced for election in February 1974, only days before Regan’s death, and was appointed to fill his unexpired term.

Ironically, Britt had once opposed the death penalty. At Wake Forest, he had gone to Raleigh with a group of fellow students to pass out leaflets in front of the state capitol in opposition to a pending execution. But that, he later realized, was typical, starry-eyed, youthful liberalism entertained without great thought and with no experience with harsh reality.

Crime and punishment in Robeson County had brought Britt a different viewpoint. In seven years, he had tried criminal acts too horrendous to believe. He had encountered people so vicious, so evil, so utterly irredeemable that he had become convinced that society had no other choice but to eliminate them. To do otherwise was to ensure that some other innocent person would suffer down the road.

As that view had grown, he had become frustrated by his subservient role. John Regan thought that going for the death penalty was a waste of time. Under North Carolina law at the time, juries had the right to recommend mercy in capital cases, and, far more often than not, they did. A dozen other cases could be tried in the time a capital case took. There were only two prosecutors to try all the cases in two counties, and those cases accumulated in appalling abundance. The courts had to keep moving. Far better to accept a guilty plea and get a murderer into prison, Regan thought, than to squander time and hold up the system to no greater effect.

Britt, though, saw killers going off to prison vowing to return to kill again, and he knew that they meant it. He knew, too, that a life sentence was far from that. He was acquainted with families who lived in terror of the day a killer would be released, because they knew they would be next. By the time he was sworn in as prosecutor at age thirty-nine by Judge Henry McKinnon, he had decided that he would do something to help those people.

By then Robeson County was aligned in a new judicial district with Scotland County and his job title was district attorney. “Lot of people didn’t know what a solicitor was,” he said. “They thought you were a damn vacuum cleaner salesman.” Britt had two assistants, but he had already decided that when first-degree murder cases came along, he would be the one who tried them. And he would go for the death penalty in every one, no plea bargains accepted.

Britt was well aware that in the past the first-degree murder cases that usually went to trial were high-profile cases with white victims. Blacks killed by blacks, Indians killed by Indians, Indians killed by blacks, and vice versa, never had been deemed as important as whites murdered by killers of whatever race. Britt made known that distinction would be no more. A victim’s rights were the same, no matter race or class, and his job was to see that justice was done on behalf of all.

Britt had read a lot about capital punishment, but he had never seen convincing evidence that it actually deterred other murderers. He had made the acquaintance of Frank Schmalleger, a criminologist who was the head of the sociology department at Pembroke State University (Schmalleger later would become a noted author of criminology textbooks), and the two teamed up to conduct a study to determine if Britt’s planned “blitz,” as he called it, would show any effect on the first-degree murder rate in Robeson County, where nobody had received the death penalty since 1946.

But even as he embarked on his course, Britt knew that chances were good that nobody he sent to death row ever would be executed.

In 1972, more than two years before Britt was appointed district attorney, the U.S. Supreme Court, in a five-to-four vote, wiped out all the nation’s death statutes, ruling that capital punishment was “so wantonly and so freakishly imposed” as to make it “cruel and unusual punishment.” The nation’s death rows, which had held more than six hundred people—only ten of them in North Carolina—were emptied.

In the wake of the decision, Raleigh’s
News & Observer
carried a lead editorial headlined: “Capital Punishment Is Now Dead.” Many were pleased, including North Carolina’s commissioner of corrections and his boss, the secretary of social rehabilitation and control, both opponents of the death penalty.

Although public sentiment against the death penalty had been growing—just a year earlier the North Carolina House had beaten back by a single vote an attempt to repeal it—most voters in the state still favored it. Within days movement was underway to introduce new capital punishment laws in the next general assembly.

The same grassroots support rose elsewhere, and eventually thirty-four states reinstated the death penalty, taking two divergent routes to ensure more equitable enforcement. More than half of these states, including North Carolina, chose to make death mandatory for persons convicted of certain crimes: a wide range of killings as well as the rape of children and rapes committed in the course of other felonies. But nobody knew whether the new laws would stand up to the scrutiny of the Supreme Court, or whether the court had actually meant to eliminate the death penalty in its 1972 ruling.

Nevertheless, North Carolina’s new law became effective in 1974, just as Joe Freeman Britt became district attorney of the Sixteenth Judicial District. Whether the U.S. Supreme Court approved or not, North Carolina was about to begin filling its death row at a rate never before seen. Britt, with his planned “blitz,” was determined to do his part.

Within seventeen months, he had conducted thirteen first-degree murder trials and won thirteen convictions, a national record for a single prosecutor.
Newsweek
took note of his accomplishment in an article on July 21, 1975, in which Britt, in explaining his success, was quoted as saying, “You try to re-create just what happened, and you make the jury identify with the victim. Sometimes it’s difficult to re-create the savagery that took place.”

Britt, who was away on Army Reserve duty when the story appeared, was inundated with laudatory mail from across the country. Students from prestigious law schools sent applications for jobs. A district attorney in Alabama called wanting to bring his entire staff to watch his next trial.

Joe Freeman Britt at work in a courtroom was indeed a sight to behold, for in first-degree murder trials he had found his purpose. He loved the spectacle, the drama, the tension, the challenge, and just as in the cockpit of his helicopter, he controlled and directed it all.

He had discovered a simple truth: a murder trial was storytelling—and he was a born storyteller. He had overcome his early fear of public speaking to find an orator lurking inside, and not an Old-South bombastic orator, but an orator in the finest tradition of the region, where storytelling was prized and good storytellers held power.

The power that Britt held over juries was mesmeric. His hulking presence commanded the courtroom. And his stentorian voice, rolling like thunder, compelled rapt attention. His trials unfolded like stories, with vivid scenes that reached right into jurors’ hearts and guts, and made them see, hear and feel a victim’s terror, degradation and agonies—feel it to their very sinews—leaving them with images they could never forget.

He liked nothing better than getting a defendant on the stand and going straight for the jugular, exposing him for the merciless and vicious killer he was. “You never get the truth by kissing ’em on the cheek,” he said. “I like to heat ’em up, like a crucible, boil the truth out of ’em.”

Britt’s crowning glory was his closing argument. His voice rose and fell, now in wonder, now incredulous, indignant, angry, filled with wrath, eyes rolling, arms flailing, pointing, pacing. He would slam a fist into a table, wave bloody clothing, brandish a murder weapon. Trial was theater, Britt knew, and dramatic effects made good theater. Nobody came away from a murder trial conducted by Joe Freeman Britt without realizing that he, or she, had seen a hell of a show.

Yet, despite his unprecedented success, Britt was not without detractors, defense lawyers primary among them. Some resented his style, power and achievement, while others, sensing his disdain, simply disliked him.

“He doesn’t like defense lawyers,” Velma’s lawyer, Bob Jacobson, would later say. “The feeling is mutual.”

Britt lumped defense lawyers into two categories: nice guys and acid assholes. “The acid assholes are always sniping at you to get you off track,” he told journalist Pat Jordan, “and the nice guys are trying to take you home for dinner so they can rub up against you and take off the cutting edge of your personality. I used to get antagonistic with them, but now I just stay the hell away from them. They’re the enemy.”

Although none of the lawyers who had to try cases against Britt would admit to being intimidated by him, few relished the prospect. “You get your ass kicked so much, you don’t want to go back for more,” one later remarked.

Not only defeated defense lawyers and embittered defendants sniped at Britt, though. One killer he sent to prison would be charged with attempting to hire a hit man to assassinate him. Sometimes appellate judges went after him.

In 1976, Susie Sharp, chief justice of the North Carolina Supreme Court, took the unusual step of publicly upbraiding Britt for his zeal and for courtroom tactics that “transcended the bounds of propriety and fairness.” The court overturned a rape conviction because Britt reminded the jury that the defendant’s wife had not testified on his behalf. Under North Carolina law, spouses could not be required to testify against one another, and the comment was considered to be prejudicial. The chief justice noted that the court had earlier overturned one of Britt’s death penalty convictions for his excessive and prejudicial language and criticized him in another case for telling the jury that the defendant’s lawyers “would do everything they can to sway your mind from justice in this case and get their clients off if they can.” Later the court would accuse Britt of “gross improprieties” for telling a witness in a drug trial, “You are lying through your teeth, and you know you are playing with a perjury count, don’t you?”

“I deserved it roundly,” Britt said years later of the court’s criticism. “I just got carried away. You ignore the opinions of the Supreme Court at your peril. It caused me to be a hell of a lot more careful. It made me a better lawyer because it caused me to sit down and think through arguments that were powerful but could be prejudicial, and made me present them in a way that would be legally acceptable.”

When newspaper editorial writers fumed about his overzealousness, however, Britt responded less contritely. “It doesn’t disappoint me to be called zealous,” he told a reporter. “They can’t call me stupid, and they can’t call me crooked, and they can’t call me lazy. As long as I can be called zealous, I’m very happy with it.”

Britt did not allow any criticism to quell his zeal for prosecution. He went right on sending murderers to death row. At one point reporters calculated that of all the people occupying death rows across the country, nearly four percent had been personally put there by Joe Freeman Britt.

Then suddenly all his effort was for naught.

In June 1976, the U.S. Supreme Court ruled that mandatory death sentences were unconstitutional, and 120 people on death row in North Carolina celebrated their new life sentences. In the same ruling, though, in a seven-to-two vote, the court decided that it had not intended to outlaw capital punishment in 1972 and decreed that new death penalty statutes enacted after that ruling by three states—Georgia, Florida, and Texas—were acceptable. Those states had chosen to break death penalty trials into two phases, one to determine guilt, the other to set sentence. To be tried as a capital case, a murder had to meet at least one of a set of so-called aggravating circumstances (that a murder was particularly heinous, that it was committed for pecuniary gain, to avoid lawful arrest, etc.). Once guilt was found, the trial then moved to the penalty phase, where aggravating circumstances would be weighed against an almost unlimited number of mitigating circumstances (that a person was impaired, under duress, mentally disturbed, had no previous criminal record, etc.) to determine if death was the appropriate punishment.

North Carolina legislators moved quickly to write a new law in line with those of the three states that met the court’s approval. The new law went into effect on June 1, 1977.