Updated Jul 6, 2000 [an error occurred while processing this directive]
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STEVE FORD: Will Governor Hunt Take a Chance With the Death Chamber?


Was the star attraction in our latest Death Row cause celebrate, the erstwhile Pinehurst Hotel cook known as Dawud Abdullah Muhammad, actually the person who took a knife and butchered a neighbor and her 9-year-old daughter? Beats me.

But the way I look at it, that’s the problem. Muhammad (or David Junior Brown if you prefer) has his ticket to ride the Central Prison gurney-of-no-return this coming Friday. It would be a heck of a note, wouldn’t it, if he is killed when he had never killed anybody.

Seems to me the least you’re entitled to expect, when the state exercises its awesome prerogative to turn your lights out, is that there not be any significant degree of legitimate doubt that you’re guilty. The fact that sensible people can review Muhammad’s case and come away shrugging their shoulders as to whether he murdered Diane and Christine Chalflinch back in 1980, or whether he didn’t, ought to leave us feeling pretty queasy about the strong likelihood that he’s going to be zapped.

It’s true that Muhammad wound up in his current predicament because a jury decided that whatever doubt might attach to his guilt did not rise to the level of reasonableness. But that jury, because of what can only be described as cheating by the prosecution, was not playing with a full deck of cards. Evidence that might have helped him was withheld.

What about the evidence suggesting that he was guilty as sin? What about Muhammad’s ring tucked right in there beneath Diane Chalflinch’s liver?

It’s certainly tough to explain; Muhammad can’t explain it, although he insists, surprise, surprise, that he had nothing to do with putting it there. Various judges who have upheld his conviction, even while criticizing the prosecutor’s tactics, have determined that even if the jury had been fully clued in, the evidence of guilt was strong enough that the jury’s verdict would have gone against him anyway.

Against that backdrop, Muhammad’s advocates are mounting a final effort to highlight what they see as evidentiary twists and turns pointing to his innocence. Their hope is to convince Gov. Hunt that the courts were unfair when they decided that prosecutorial misconduct in the case couldn’t have swayed the outcome. Given Hunt’s record of never having granted clemency to a condemned prisoner, Muhammad needn’t bother working on any thank you note just yet. But the non-infinitesimal chance that when the ambulance/hearse pulls away from the prison next Friday at 3 a.m. or so, its featured passenger will be an innocent man ought to make our governor just a little bit nervous.

If he’s not, then he’s shielding himself behind the rationale that, well, the courts have tramped back and forth across this field numerous times and have always emerged in the same place: "no prejudicial error," guilty verdict stands, sentence affirmed.

But if justice really is Hunt’s objective, as opposed to finding an excuse not to get involved, then that shield is flimsy.

The difference between a lawful execution and a lynching is that the execution is carried out only after the legal system has arrived at a determination of guilt beyond a reasonable doubt and imposed death as the appropriate sentence. It’s painful to contemplate, but that system, with all its safeguards, sometimes malfunctions.

And the malfunction from time to time puts innocent people on Death Row. A strong argument can be made that once in a while, it even puts them in the hearse.

An article in the current issue of The Atlantic, titled "The Wrong Man," takes a thorough look at all the factors that combine in this country to make it not at all implausible that someone will be executed for a crime they didn’t commit.

And a 1998 Duke University law journal article by two experts in the field — Michael L. Radelet of the University of Florida and Hugo Adam Bedau of Tufts University — leaves little doubt that it has happened before, even though they report that no such mistake has been admitted by American officials in the 20th century.

The authors cite the number of close calls, where condemned inmates nearing the end of the line were exonerated; a calculation of the odds, given that murder convictions often embrace a small element of uncertainty; and the role of pure luck in saving some innocent prisoners. What about the unlucky ones?

Radelet and Bedau describe several conceptions of "innocence." There’s the obvious category in which a defendant was totally uninvolved in the crime. The killing might have been accidental or in self-defense. Or it might have been deliberate, but not legitimately meeting the standards for imposing the death penalty. The defendant would have been guilty of some form of criminal homicide, but factually innocent of capital murder.

Let’s stipulate this: No matter how many innocent people might have been forced to make the last walk or be scheduled to make it, that has no bearing on Muhammad’s case. His true guilt or innocence can’t be determined through some sort of statistical gambit. The facts have to rule — but the jury didn’t have all the facts.

Notwithstanding what the appellate courts have decided, it’s now hard to say with certainty that a jury kept fully informed by a scrupulous prosecution would have found as it did.

Some people see the risk of occasionally executing somebody who’s innocent as an unavoidable price to pay in the battle against crime. Does Gov. Hunt count himself among them? Better if he were to consider that risk as one North Carolinians should not be satisfied to tolerate.

Steve Ford is associated editor of The News &Observer of Raleigh, from which this column is reprinted.

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