Death Sentence (30 page)

“Objection,” said Jacobson, hoping to deflect his crescendo.

“Overruled,” said the judge.

After that performance, Jacobson was thankful that he wouldn’t have to face the jury immediately. It was well past noon, and the judge recessed for lunch, telling the jurors that they would have to remain together. They would be taken to the Tory Inn, he said, and fed at the state’s expense.

Jurors would later say that they thought Jacobson appeared nervous and uncertain when he began his argument after lunch.

“I have never had to ask anybody for anybody else’s life before,” he said in a quiet, almost tremulous voice. “It’s hard to do, and I don’t imagine any of you have ever had to decide whether to give anybody else their life or death, so this is not something that you can go in there and in five minutes decide.”

He urged them to take their time, give their opinions, discuss it thoroughly.

Britt had talked for an hour, he noted, and he didn’t know how long he would take. “It’s so important to me, if I had to talk forever to convince you to give this woman her life, I would do it.”

He went over the mitigating circumstances: that the murder had been committed while Velma was under mental or emotional disturbances, that her capacity to appreciate the criminality of the act was impaired, plus any other mitigating factors that the jury might want to include.

“Now you say, ‘Mr. Jacobson, this is a first-degree murder case. How can anything make it milder or less severe? Murder is murder.’ Mr. Britt has suggested the three aggravating circumstances and there is, admittedly, evidence that tends to show all three of them. You say, ‘Mr. Lawyer, what have you got to offer us to support your contentions that there are mitigating circumstances that outweigh those aggravating circumstances?’

“I submit to you there is a very serious mitigating circumstance.”

He went on to encapsulate Velma’s life, Thomas’ drinking, their fights, his death, the medicines she started taking as a result, the growing abuse of those medicines and all the problems that ensued.

“This really isn’t one case,” he said. “This is five cases, maybe six, maybe seven. It’s not just murders, it’s forgeries, worthless checks.”

The jurors might ask, “Why are you telling us all that?” he said.

“The problem goes back to the medications, the dope, the problems that she had coping. She is an inadequate personality, passive-aggressive, unable to cope. She is a poor person, not enough money for doctors and pills. She forged. She tried to cover up, and she used the poison. And this didn’t happen one time. It happened in a series of poisonings, but I submit to you that it goes back to the dope.

“These bottles over here aren’t figments of my imagination,” he said, indicating the empty medicine vials that had been introduced into evidence. “And these doctors that came in, even the state’s doctors, many of them had prescribed drugs for her. It goes back to the dope, more dope, more dope, more forgeries, more covering up, more poisonings.”

He went back over all the doctors who had testified, all the drugs he’d asked them about, pointing out how easy it was to get the doctors to prescribe them.

“These drugs have reduced Mrs. Barfield to the point where she can’t reason,” he said. “The thing that separates a human being from an animal is the ability to reason, and Mrs. Barfield, because of these narcotics over here, was not able to reason. You have seen her testify. Does she look like a person with a problem?

“Mr. Britt pointed out how cold and calculating she was. That looks mighty bad, and I submit to you that’s part of the problem. It’s part of the dope that for years and years she has been taking, and it is due from the many, many doctors giving her many, many medications.

“You convicted her of first-degree murder, and I am not suggesting to you for one moment that she shouldn’t be punished. But I think she has got mitigating circumstances, and it’s really not two or three. Her capacity was impaired, and you can see it. I don’t have to tell you that. I submit to you that her emotional disturbance caused her to do this.”

Jacobson recalled that in questioning potential jurors, one had said that he felt capital punishment was a necessary law but that he might feel different if life imprisonment really meant that.

“I want to submit to you in this case that it will mean life imprisonment,” he said, getting a quick rise from Britt.

“I object to that argument.”

“Overruled,” said the judge.

“And you know who has the power over that?” Jacobson went on, his voice rising for the first time. “Do you want to know who can determine that and who has had the power to determine that all along?” This was his first real display of emotion, and now he turned and pointed. “That man right there, Mr. Britt.”

“Now, I do object to that, Your Honor,” Britt said.

“Objection sustained,” said McKinnon, turning to the jury. “Don’t consider the last portion of the attorney’s statement.”

If Velma had committed five murders, as Britt had contended, Jacobson pointed out, then he could charge her with five, win five convictions and five life sentences, and they could run consecutively. A life sentence was considered to be eighty years, and in North Carolina a person could become eligible for parole after serving a fifth of the total maximum punishment. “If the total is four hundred years, one-fifth of four hundred years is eighty years, and eighty added to forty-five…” he said, noting Velma’s age, although she had turned forty-six a month earlier. “You add it up.”

“Your Honor,” said Britt, “I object and move to strike.”

“Motion denied,” said the judge.

“Consider that, ladies and gentlemen of the jury. It is a viable alternative. Go back there, discuss the issues, ask yourselves, ‘Am I doing the right thing? Am I convinced beyond a reasonable doubt?’ Express your opinions. When you come out here, each of you personally will be asked what your verdict is. Ask yourselves if you can live with it. I am not asking, I am begging you to give this woman her life.”

Jacobson didn’t have to win all twelve jurors. Just one strong juror holding out for life would do. A hung jury would bring the same sentence as a unanimous verdict for life.

After a brief recess, the judge instructed the jurors on their deliberations, and they filed out.

Velma remained in the courtroom, her family gathered around her. Three of her brothers and her sisters were there, as well as Ronnie and Pam and their spouses, and others. Ronnie and Joanna, unable to find a babysitter, had brought Michael to court. He was two and a half, and he ran to his grandmother and climbed into her lap.

Ronnie and Pam were anxious and tense, but Velma didn’t appear ill at ease. “She didn’t seem to be worried at all,” Ronnie later recalled. “I think she enjoyed the trial. She enjoyed all the attention she was getting.”

The longer the jurors took, Jacobson had told them, the better, and Ronnie couldn’t keep his eye off the clock.

As soon as the jurors had taken their seats in the jury room, one man announced that he was ready to vote. “I’m for the death penalty,” he said.

Tuton, who thought this far too grave a responsibility to be handled hurriedly or flippantly, asked instead if anybody objected to a prayer. Nobody did, and he called for a minute of silent prayer.

The jury had been given a verdict sheet, and on it were four questions that had to be answered: (1) Did the aggravating circumstances exist? (They could say yes or no to any of the three.) (2) Did the mitigating circumstances exist? (They could say yes or no to either and add any that they pleased.) (3) Did the mitigating circumstances outweigh the aggravating? (4) Were the aggravating circumstances sufficient for the death penalty?

Tuton led the group through all the issues, discussing each. And although some jury members initially seemed to have trouble fully grasping the concept of mitigating and aggravating circumstances, he continued the discussion until he felt that all understood before taking a secret ballot. This time the jurors would answer all the questions as they appeared on the verdict sheet. As he opened and read each, he was amazed. All the answers, he later would recall, were identical.

But once again he wanted to make sure that if anybody had reservations there was ample opportunity to make them known. He wanted everybody to be completely certain of his or her decision. So he went through the discussion and vote again. And again. And still again. Later, he would lose count of how many votes he took, but he thought it could have been as many as seven.

The afternoon had stretched on agonizingly for Ronnie. His only real hope was that the jury might spare his mother because she was a woman, a grandmother; and, as the jury’s deliberations had gone past an hour, then two hours, he had begun to allow himself to think that it might happen. Then darkness came, and still the jury was out, and Ronnie felt certain that at least some of the jurors must be tormented by their decision, and that could only be seen as a good sign.

At 5:50, nearly three hours after the jury had begun deliberating, word filtered through the courtroom and hallways that the jury was returning. Court quickly reassembled. Pam joined Ronnie at the defense table. The judge took the bench and called for order.

“Ladies and gentlemen, the jury indicates that it has some report,” he said. “We do not know what it is at this time. If it should be a verdict, or regardless of what it is, this remains a court of law in which order will be kept and no one should make any visible, audible outburst in response to the report of the jury.”

As the jury filed back in, both Ronnie and Pam noticed that a young woman juror, about Pam’s age, appeared to have been crying.

Once again the judge asked if the jury had a verdict, and Ronald Tuton said they did. McKinnon asked for the verdict sheet, and the clerk handed it to him. He read it silently, then requested that Velma stand while he asked Tuton each of the questions. The jury had found that all three aggravating circumstances existed, but found against both the mitigating.

Were the mitigating circumstances insufficient to outweigh the aggravating?

Tuton answered yes.

Were the aggravating circumstances sufficient to call for the death penalty?

“Yes,” said Tuton and a gasp came from the audience where the victims’ relatives were seated.

“You return as your recommendation, ‘We the jury, based upon the answers to the above issues, and as evidenced by the signature of the undersigned foreman of the jury, unanimously recommend to the court that the punishment for the defendant, Margie Bullard Barfield, be the death penalty, this the second day of December, 1978. Ronald Clay Tuton, foreman of the jury,’” said the judge. “Mr. Foreman, is that the verdict as the jury returned it?”

“Yes, it is.”

Pam began sobbing uncontrollably; Ronnie sat slumped in his chair, his arms folded, despondent. But Velma stood mute, as stoic as a statue.

Jacobson requested that the jurors be polled, and each in turn agreed that this was his, or her, verdict.

The judge thanked them for their service and dismissed them, then declared a brief recess.

“Mr. Jacobson, are there any motions prior to the sentencing?” the judge asked after court had reconvened.

“Well, I would like to make a motion for mistrial on account of the misconduct of the prosecutor during the closing arguments.”

“Motion denied and exception noted,” said the judge.

Jacobson also offered motions that the verdict be set aside because it was contrary to the law and the weight of the evidence, and that a new trial be granted for errors assigned, both of which were denied.

“Will the defendant please rise,” said the judge, and Velma stood, a blank look on her face.

“Do you have anything to say before sentencing, ma’am?”

Velma shook her head, and the judge went on to read the long and repetitive sentence.

“It is therefore ordered and adjudged that the defendant, Margie Bullard Barfield, be, and she is hereby, sentenced to death by asphyxiation…

McKinnon set the date of execution as February 9, 1979, a little more than two months away, a date that had special meaning to Ronnie. That would be his sixth wedding anniversary.

“Mr. Sheriff, she’s in your custody,” the judge said.

Bailiffs quickly took Velma back to the jail, and the judge closed court.

It was over now. Ronnie turned to Jacobson, who looked as despondent as he felt, thoroughly beaten. (“You really can’t lose a bigger case than that,” Jacobson would say much later. “There isn’t anything more devastating than losing a capital case.”) Ronnie offered his hand and assured Jacobson that he’d done the best he could.

Kirby put an arm around his still sobbing wife and led her from the courtroom, avoiding reporters and their questions.

At the prosecutor’s table, Joe Freeman Britt began assembling his papers. He was not flush with victory. Instead, he looked drained. “When you finish that last argument,” he later would say, “you’re dead. You’re so damned tired. You don’t feel anything. If you did it right, you’d train for murder trials just like an athlete. It’s a very debilitating activity.”

Britt seemed surprised when he looked up and saw Ronnie standing before him.

“I know you were just doing your job,” Ronnie told him. “I just want you to know that I and my family don’t hate you for it.”