Death Sentence (34 page)

“Mr. Ackerman, would it be fair to say that you make your living by contemplating in the cool of the evening what better men have done in the heat of the day?” Britt asked.

“No, I don’t think that is how I make my living.”

His job was trying to improve the competence of trial lawyers, he said. “And I think we are succeeding.”

“What percentage of the total national bar would you say is competent?”

“I hesitate to even say, but Justice Burger, I think, his estimate is around fifty percent, or something like that.”

After more fencing, Britt asked if he had an opinion about the percentage of lawyers who were competent to try capital cases. “Surely you have an idea about that.”

“Yes, I’d say one or two percent. Maybe five percent.”

“You are saying then that it is virtually impossible for anyone in the United States to get a fair trial in a capital case unless he has a lawyer from this one or two percent sample that you are talking about, is that correct?”

“I think there are two hundred and fifty thousand lawyers who are members of the ABA, and I don’t know how many more that are not. So that one percent would include quite a few people.”

Ackerman’s testimony closed the third day of the hearing, and it had not been a good one for Velma. Little that her lawyers had attempted to get into evidence had been admitted.

When court opened Thursday morning, Burr requested that the judge require that grounds for all objections be stated at the time of the objection.

Britt, of course, was opposed, saying, “I just object very strenuously to conducting a law school seminar for two lawyers who are floundering around over here at the other table.”

“While we appreciate Mr. Britt’s concern about our being educated,” responded Burr, “we don’t think that is the problem. We think the problem is one of having adequate notice and an opportunity to respond and to have the issue focused.”

The judge declared a recess to look up the rule. He returned and read it aloud. It did not require the reason for an objection to be stated.

When Burr suggested that the rule denied Velma’s constitutional rights, the judge sharply denied his motion.

Little was astounded at the turns this hearing was taking. He knew Judge Braswell, who was the senior resident superior court judge in the Twelfth District. When Little had been public defender he had worked closely with Braswell on administrative matters. “I always knew when it came to the crunch I could count on him,” Little said. But this seemed to be a Braswell he didn’t know.

“He thought of himself as a fair man, but he was prosecution oriented,” Little said later. “I was surprised and appalled at the rulings he made. He was not there as a finder of fact.”

Little suspected that Braswell was intimidated by Britt, but to Britt that was nonsense. Little and Burr simply weren’t laying the proper foundation for their evidence, he later said, and for that neither the judge, nor he, could be blamed.

Now Little brought Mary Ann Tally back to continue her criticism of Jacobson. Among other points, she claimed the penalty phase of the trial had been disastrous for Velma. Jacobson had presented too few witnesses and no evidence of Velma’s background, personality, humanity. The evidence of her mental state was not effective, she said. Doctors should have been called. And perhaps worst of all, Jacobson failed to tell the jurors that their decision on the penalty didn’t have to be unanimous (at least one juror had told a defense jury poller that he thought it had to be).

After a recess, Britt had some questions for Tally.

Was she saying that if Jacobson had done all of the things she talked about, the outcome would have been different?

“Sir, I cannot presume to talk about what twelve jurors might decide,” she replied.

Britt brought up one of Tally’s own death penalty cases. Did she do in that case all that she claimed Jacobson should have done in Velma’s?

No, she answered, explaining that each case had to be handled on an individual basis.

“In your expert opinion, did you rise to the level that you have advocated here in that case?”

“I certainly hope so, but that will be something for someone else to judge, Mr. Britt.”

“Went to death row, didn’t he?” said Britt.

“Yes.”

Britt brought up another of her cases and went through the same questions.

“Went to death row, didn’t he?” he asked again.

“Yes, he is currently on death row,”

After Tally had stepped down. Little called a series of people, family and friends of Velma, as examples of witnesses who could have testified in Velma’s trial but were never asked. More expert witnesses also were called but little of what they had to say was allowed into evidence. One, because of Britt’s barrage of objections, got to speak only her name.

Little and Burr had only five more witnesses, and they presented them on Friday morning, the fifth day of the hearing. Two were expert witnesses, a political scientist and a law professor, neither of whom was allowed to speak for evidence. Three were family members, Ronnie, Pam and Velma’s brother, Jimmy.

As he had done at the trial, Britt asked Ronnie about his father’s death. When Ronnie replied that he had died in a fire that started on his bed while he was sleeping, Britt asked, “Did that raise any suspicions in your mind as to what may have happened or what might have set that blanket on fire?”

But Little quickly objected.

“Sustained,” said the judge. “Don’t answer that.”

Following a recess, Velma’s lawyers began their final arguments. Burr left the matter of Jacobson’s competence to be argued by Little and concentrated on the other issues that had been raised about Velma’s trial. Many had yet to be looked at by any court, he noted, although they could have been if Velma had had effective counsel. “In a sense, ineffectiveness is all,” he said. “It encompasses everything.”

He also argued that Velma should have a new trial because of newly discovered evidence presented by the psychiatrist, Selwyn Rose, and the character witnesses.

After listing all the issues, Little began by going step by step through what he considered to be Jacobson’s errors in handling Velma’s case and finally got to Velma’s performance on the stand. If Jacobson had asked for a pretrial hearing to suppress Velma’s statements, Little said, he could have put Velma on the stand and seen how she reacted to Britt, thus avoiding the disaster of her testimony before the jury at her trial.

He moved on to what he called “the psychiatric mess,” Jacobson’s insanity plea, which, Little claimed, gutted his credibility with the jury. The psychiatrists he presented, Little said, were in effect state witnesses, although much psychiatric evidence was available that wasn’t presented.

Jacobson should have done more to keep out the evidence of the earlier deaths, Little maintained, and should have limited what was admitted once it was allowed. “The impact of the four other deaths cannot be understated,” Little said. “Mr. Jacobson was in effect trying five murder cases in one because he did not effectively move to limit the evidence that was presented as to the other deaths.”

Many witnesses could have been called in Velma’s behalf, especially in the sentencing phase, Little said, and by limiting his witnesses, Jacobson had limited his argument. “In the sentencing phase and in the guilt phase, it is our contention that Mr. Jacobson failed to argue effectively to the jury even the evidence that he had.”

In closing, Little stressed that he was not attacking Jacobson personally.

“This was his first capital case and everybody that tries capital cases has their first. We would submit that the fact that it is a person’s first capital case gives no lesser degree of effectiveness for which he is responsible, that the question is not whether or not Mr. Jacobson did his best. The question is whether he effectively represented Mrs. Barfield and we submit Mrs. Barfield has been prejudiced to the point that her rights to a fair trial, her rights to due process and other constitutional rights including the right to effective assistance of counsel were denied.”

It was four-thirty when Britt’s turn finally came. He went straight to basics. The new ideas presented in Velma’s behalf were not grounded in the fundamentals and practicalities of trying cases, he said.

“I love to hear them talk about the far-flung ideas that they dream up at these seminars they go to, but as they concentrate more and more on that, they lose sight of the business of the court itself, and the hands-on experience that is necessary, and the difficulty of getting some of this material into evidence.”

He went on to point out the many witnesses Little and Burr had presented whose testimony was not allowed. “Yet I would argue in a way they are some of the most important witnesses in this courtroom this week. They were presented to demonstrate the method in which a lawyer humanizes his client for the jury. Were they able to get any of that evidence in? No.

“What they have to learn is that all of these ideas are great, but they have to fit within a framework of rules of evidence. You can’t just go to some seminar and say, ‘Hey, humanize your client,’ and expect to walk into a courtroom and make it suddenly be part of the evidence. It is not that simple as—and I don’t mean to cast aspersions—certain counsel in the courtroom have found out this week.

“Talk is cheap and you can dream up all of these ideas and try to force them off on people and point the accusing finger at people like Jacobson and say, ‘Gee, you just didn’t do your job,’ but when you get down to the practicalities of it, when you get down to real life and the mano-a-mano confrontation in the courtroom, it ain’t quite that simple anymore.”

Britt moved on to the expert witnesses, noting that Little and Burr should have known that type of evidence wouldn’t be admissible. “They presented Brother Ackerman, who was an interesting, friendly little fellow in his alligator shoes, but I suggest to Your Honor that Mr. Ackerman sees himself as a guru of the new wave of how to try capital cases. I’m not belittling the fellow, Your Honor, but he had one death case, and he went to death row. He’s got him a good thing going, I guess, with his National Defense College and all that business, but I suggest that you don’t prove this type of case the way they have attempted to prove it here this week.”

Next he brought up what he referred to as “the juxtaposition of Madam Tally and Mr. Jacobson.” He had no quarrel, he said, with Tally being declared an expert. “At this stage of evolution of capital trials in North Carolina, I suppose anybody who has tried a capital case and read a few articles is an expert.”

It was her criticism of Jacobson, he said, that was the trouble. “There is something about it that just kind of rankles me. It galls me. If she has all these magic answers, they don’t seem to work for her very well because she’s got two people up on death row out of the three that she’s tried, and yet she says that Mr. Jacobson did it wrong some way. Monday morning quarterbacking. Anybody can do it.

“I suggest that Mr. Jacobson did everything that he could to protect the rights of his client and protect her life. He tried the case on the theory he set out to try it for, a poor woman completely soaked up in drug abuse, wallowing in depression and not responsible for her actions even though it didn’t quite meet the test of legal insanity.”

Then perhaps realizing that he seemed to be arguing in Velma’s behalf, he quickly jumped to the subject of trial tactics. “Nobody, and I don’t care how smart they are, can sit down with a cold record and second-guess what some trial lawyer fighting down in the trenches thought and felt and did in the performance of his duty,” he said.

The rules of evidence that controlled Jacobson during the trial had applied equally during this hearing, he pointed out.

“And I think when you compare what’s happened here this week with what happened in
Barfield,
Your Honor will see that there is no comparison between the effectiveness of counsel.”

Judge Braswell continued the court session into the following week and said he would try to have a ruling at 2:30 on Wednesday afternoon. Velma would be allowed to remain at the Robeson County Jail until then.

As he read his thirty-seven-page decision four days later, Braswell began telling about a football game between the Steelers and the Browns that he had watched on TV ten days earlier. The game went down to the last six seconds, the judge read, going on to describe the final play. “The Monday morning quarterbacks and the TV announcers were saying that the world champion Steelers blew it, meaning that they did not take advantage of their opportunities or perform as professionals…”

Ronnie sat listening in disbelief. His mother’s life was at stake, and the judge was talking about football.

“While football and a person’s life are not to be equated in value,” the judge went on, “the perfect game in sports or life is yet to be played. Success—and failure—always look different in hindsight.”

Braswell agreed on every point with Britt, noting that Velma’s new lawyers were guilty of some of the same failures of which they had accused Jacobson.

“There is no believable evidence to support the allegation that the defendant was denied effective assistance of counsel,” Braswell ruled. “The defendant had a fair and impartial trial. None of her constitutional or other legal rights were denied or violated.”