Death Sentence (33 page)

On September 17 the Supreme Court declined to reconsider Velma’s case and a new execution date was promptly set for October 17. On Friday, October 3, Little filed motions in Bladen County Superior Court asking for a new stay of execution and a hearing to determine whether Velma had received a fair trial.

The motion for a new hearing listed twelve reasons why Velma should be granted another trial—the primary one being ineffective counsel. Bob Jacobson, Velma’s new lawyers claimed, had spent only a few hours with her before trial, had failed to present the right witnesses, hadn’t had her fully examined psychologically, hadn’t put on appropriate psychiatric testimony, hadn’t offered testimony about the effect of her drug use, hadn’t made proper motions, and failed to make Velma appear human and sympathetic in the penalty phase, among other things. Jacobson, the motion charged, had himself dehumanized Velma.

In the fight against the death penalty, the charge of ineffective counsel was becoming a standard tactic but that didn’t keep Jacobson from being shocked and upset.

The motion was persuasive, however, to Judge Maurice Braswell of Fayetteville, who had signed the order to exhume the bodies of Velma’s victims and on October 9 he granted both the stay of execution and the hearing for a new trial. Velma was exultant, as were Ronnie and Pam when they heard the news.

The following day, Velma held her first news conference at Women’s Prison. She laughed and joked with reporters, and a photograph of her smiling broadly appeared in newspapers across the state.

Her new faith had given Velma new reason to live and confidence that she would be allowed to. “At times I think of death in the gas chamber, but I never dwell on it,” she said. “Who am I to say I am going to die in the gas chamber? I don’t know that I am going to be here tomorrow. My life is in the hands of God and I have great faith in Him. He won’t fail me.”

A week later, Jimmie Little drove to Raleigh to meet Velma. “She was deferential, demure, shy, very pleasant,” he recalled. “I couldn’t imagine this nice person about to be executed.”

He left Women’s Prison that day knowing he had to do everything he could to keep that from happening.

Mary Ann Tally knew from the moment she called Little that was how it would be. She knew the kind of person he was. “He’s cause oriented,” she later told a reporter. “It doesn’t make any difference if it is an unpopular cause or an unpopular client. If he believes in it, he’ll do it.”

At thirty-six, Little had been involved in many unpopular causes. As a student at the University of North Carolina, in a free-speech issue, he fought against North Carolina’s so-called speaker-ban law enacted in 1963, which prohibited communists from speaking on state university campuses. He had attempted to change his church’s stand on civil rights and had opposed the Vietnam War while serving as an Army officer.

In 1972, after law school, he became an assistant prosecutor in his hometown, Fayetteville. The district attorney then was Jack Thompson, whose father was his father’s business partner. Little’s heart, however, was not with the establishment, but with the disenfranchised, the poor, the uneducated, who often, he thought, got a raw deal in the courts. A year after he became a prosecutor, the public defender’s job came open. He put in for it and, to his surprise, got it.

As public defender, he remained an activist. He pushed to start one of the country’s first pretrial release programs, worked on a North Carolina Bar Association committee to provide legal services to the indigent and helped to start the movement to form a State Appellate Defender’s office, also one of the first in the country.

After three and a half years as public defender, he joined Fayetteville’s biggest law firm and later went out on his own. When Mary Ann Tally called about Velma, she had no doubt that he would say yes. She knew that he was opposed to the death penalty and that, once he got involved, he would not quit; he would throw his whole being into the battle and fight to the end.

Bob Jacobson had never been in a more awkward situation as a lawyer. When Velma’s hearing for a new trial opened before Judge Braswell on Monday, November 17, 1980, at the Robeson County courthouse in Lumberton, there he sat with his longtime antagonist Joe Freeman Britt and Donald W. Stephens, an assistant attorney general who handled death penalty appeals for the state. “It was kind of like fraternizing with the enemy,” Jacobson later recalled. “You get to see things from a different perspective.”

Even though Britt would be defending him, Jacobson realized that he couldn’t allow himself to start feeling too warmly about it. “You know that before long, he’s going to be across the table tearing you up again,” he said years later.

At the next table now were Dick Burr and Jimmie Little, who were charging that Jacobson had been incompetent in Velma’s defense, and Jacobson’s attitude left no doubt how he felt about that. “I don’t think any defense attorney has any business going into some other county and saying another attorney didn’t do his job,” he would say later. “Maybe I didn’t do the best job that ever was done in this world, but it certainly was the most I could’ve done at the time.”

Joe Freeman Britt found the whole procedure repulsive, all the more reason to hold defense attorneys in contempt, and he would make no secret of that either. “Self-appointed experts who ride up and shoot the wounded,” he would later snort of Velma’s new attorneys and some of their witnesses at the hearing. “What you have to realize is that this was a new law when this trial was held. Nobody knew how to try these things. We were all just feeling our way along, but they wanted to come in and tell us how it should have been done.”

Little and Burr were contrasts in style. Little was short with thinning hair, almost prim in appearance. Burr was big, six feet tall and 200 pounds, but teddy bearish, with long, curly hair and full beard to hide his baby face. Little was intense, highly strung; Burr soft-spoken, seemingly more relaxed, and openly emotional.

Velma sat with her lawyers, looking much different than she had at her trial two years earlier. Life had returned to her face, and she seemed relaxed, no longer angry and bitter. Later, Ronnie would say that even her animosity toward Britt appeared to have dissipated. She clearly was happy to be away from the prison, back in Robeson County amongst family and friends. Both Ronnie and Pam had taken off from work for the hearing, and other family members and friends would come to visit during the breaks.

The hearing got under way with Bob Jacobson on the stand. Had he been satisfied with his handling of Velma’s case? Little asked.

“Yes, sir,” he replied.

Would he like to retry it?

“Object,” said Britt.

“Sustained,” said the judge, and that would set the tone of this hearing. But neither Burr nor Little could imagine then how Britt’s objections would come to plague them, flying through the courtroom in such quantity that they would eventually feel obligated to object to the objections.

“Everyone has to try a first capital case,” Jacobson said when he finally was allowed to answer. “I would say as to whether I would approach it differently that I would try harder and that I did work harder.”

Jacobson went on to explain why he had put Velma on the stand, hoping to save her life with a second-degree murder conviction or to make her drug use a mitigating factor in the sentencing phase should she be convicted of first-degree.

“I counseled her on trying to be a sympathetic witness. I wanted her to look like somebody’s mother. Here was this poor lady and look what she was going through. I counseled her that she could very much help herself in the manner that she testified, and very frankly I was afraid that she was going to get into an argument with Joe Freeman Britt and look very bad. My fears came to pass. I told her many times I wanted her to cry, and at no time did she do that. In fact, she just seemed to stick her chin out and just wanted to go at it with the D.A. I was very disappointed.”

“What made you think she would go at it with Joe Freeman Britt?”

“Every time we got together, she wanted to argue with me about the cause of death of all the decedents. She was not satisfied that the arsenic had caused the death and we ourselves would argue about it, and I was afraid that she was going to do that, and that is what she did. She would get argumentative.”

Jacobson stayed on the stand for two days explaining his actions, and he grew testy about the implications of some of the questions.

“I don’t think it’s fair for you to give me a bar exam up here,” he told Little at one point.

At another, when Little began, “Did you consider asking the judge—” he was interrupted by Judge Braswell.

“I feel compelled to make a gratuitous comment,” said the judge. “The phrase ‘did you consider’ has been asked many times. It has been the opinion of the court that it has been worded so as to give the impression of ‘have you stopped beating your wife?’ Therefore the court registers its disapproval of the language.”

The next witness was Selwyn Rose, a psychiatrist who also held a law degree and was a frequent expert witness, usually for the defense. Velma’s new lawyers had hired him to examine her and he had spent two hours with her on September 13. Later, he had psychological tests administered.

While reading through his notes on the stand, Rose revealed one thing that Velma had never made known before.

“I asked her very specifically whether her father had ever made a sexual assault upon her and she admitted that he had at one time when she was about thirteen or fourteen, coming in to the bed with her, was naked and she was in a state of complete terror and they heard somebody outside, some noises occurred and he quickly got out of the bed and did not have intercourse or complete any assault upon her.”

She told him that she’d never thought of poisoning her father despite his abuse, he said. She also said that she had been “numb” from drugs when the idea came to poison her mother.

“‘It didn’t bother me then,’” he said she’d told him, “‘but it did after I began to think about it.’”

When Little tried to get an opinion from Rose about Velma’s mental condition at the time of the murders—which he and Burr considered to be important new evidence—he was stymied by consistently sustained objections from Britt. Little finally asked that the answer be allowed for the record, for the benefit of appellate judges, although it couldn’t be considered as evidence, and the judge agreed.

In his opinion, Rose said, Velma was not sane, but he was uncertain if she was sufficiently disturbed to meet the legal definition of insanity. She had three types of “severe psychopathology,” he said. First was organic depression. Second was drug abuse. Both could impair her thought processes. Third was a personality disorder that was “of such magnitude as to make her, or as to allow her, to pour poison into people’s drinks without any clear understanding of what that means.”

Mary Ann Tally was helping Little and Burr with Velma’s case, and Little wanted her to testify as an expert on the defense of first-degree murder. Although Tally had been practicing for only six years, her credentials and accomplishments were impressive. She was a member of the board of governors of the North Carolina Trial Lawyers, president of the North Carolina Association of Public Defenders, a member of the criminal code commission. She had attended seminars on the death penalty and had represented people charged with capital crimes.

Britt wanted to cross-examine her before she was qualified as an expert, and he asked how many of her capital cases had gone to the sentencing phase.

Three, she said.

And how many of those defendants had gone to death row?

Two, she answered.

Britt inquired about her interest in this case.

“I am interested that Mrs. Barfield have adequate representation and that she be given the kind of open and fair hearing that she deserved.”

“Well, do you feel then that she did not receive adequate representation at the prior trial?”

“Yes.”

“And this is based on your experience where two-thirds of your clients with capital cases have gone to death row, is that right?”

Little quickly objected, and the judge sustained.

Over Britt’s objections, Tally was declared an expert.

Although little of her testimony would be allowed except for the record, Tally read from notes as she listed twelve motions that should have been made in Velma’s case. She also criticized several of the motions Jacobson had made. Little then asked the judge to allow her testimony to be interrupted to accommodate an out-of-state witness who had just arrived and whose time was limited.

That witness was John Ackerman, dean of the National College for Criminal Defense at the University of Houston, which held seminars for defense lawyers throughout the country. Ackerman lectured on capital cases and was editor of
Death Penalty Reporter.

The judge allowed him to testify as an expert, but because of Britt’s objections most of his answers were only for the record. Jacobson, Ackerman maintained, was “absolutely ineffective” in both stages of the trial.

“There is just no coherent theory of defense,” he said. “It was in effect a slow plea of guilty. It was not a trial.”

He went on to list all the many ways Jacobson had failed before the judge declared a break at four o’clock.

After the recess, Britt had his turn.