David Junior Ward struggles to express himself. He’s sorry he chose to go with Wesley Harris that day in 1991 when they robbed the woman who ran the neighborhood store in rural Pitt County, and one of them shot and killed her.Does he still think about what happened? “About every night,” he says. He dreams about Dorothy Mae Smith, and in his dreams he’s talking to her in her store, just as he did … before.
If he could talk to Gov. Mike Easley, he would ask the governor to spare his life. “There would be so much I’d want to say to him, but what could I say? I wouldn’t know how to put it in the words to say it.” He recorded a videotape for Easley, thought all night long about the words to say, but they just come hard to him. He doesn’t want to die now, at age 41. But if it’s God’s will, he must accept it. He wants to live, wants somehow to be able to tell the younger generation what happens when you use drugs, what can happen when you start stealing to pay for them. He’d tell them to get into rehab before it’s too late.
When Easley commuted Robert Bacon’s death sentence two weeks ago, Ward says, “It gave me hope.” He thought maybe Easley’s view of capital punishment was changing, because before, all the inmates on Death Row ever heard about the governor was that he was tough on crime. Ward hopes Easley will see that, self-conscious as Ward is, quiet as he is, he isn’t a killer, and he didn’t kill Dorothy Mae Smith. And if he could, he would take back what he did the day she died, when he “fell in with the wrong people at the wrong time.”
It’s not certain from the trial evidence that Ward didn’t fire the fatal shots. But his lawyers say there’s at least an even chance that he didn’t, and that Harris did. Nonetheless, Harris, tried separately, was sentenced to life in prison by his jury, while Ward’s jury handed up the death penalty.The case is as clear an illustration of the randomness of the death sentence as you could have, in the view of Ward’s lawyers, Durham attorneys Dawn Battiste and Marvin Sparrow. Ward and Harris, both armed with guns, robbed Smith as she was arriving home with the cashbox from her store. Both fired their guns. But the five bullets that hit her, and killed her, all came from one of the weapons. The two guns were later found in Harris’s girlfriend’s attic. Neither weapon yielded useful fingerprint evidence. Ward says he deliberately shot to the side of the victim, and that Harris killed her. Harris maintained the opposite in his trial.
According to Sparrow, Ward confessed to the crime the day after it happened while being questioned about “other matters.” His confession led to Harris’ arrest. Harris supplied the weapons, drove the car and afterward took all the money, some of which was found on him and some which was spent in the hours after the crime, according to witnesses interviewed by the police.
Nonetheless, Ward’s jury found that he’d committed felony murder for “pecuniary gain,” one of the “aggravating factors” in the law that a jury can cite if it wants to choose a death sentence. The jurors didn’t know about the witnesses who’d seen Harris spending freely, because the prosecution never told Ward’s original defense team about them. As Sparrow and Battiste see it, Ward got a death sentence in part because his lawyers were young and inexperienced in criminal work. Harris’ lawyers, much more experienced, did a better job of making him appear to be a sympathetic character during his trial.
It was only on appeal, when Battiste and Sparrow took Ward’s case, that they got their hands on all the evidence collected by the police using a new law that expanded Death Row prisoners’ discovery rights. The post-crime witness statements might not have persuaded Ward’s jury that Harris fired the fatal bullets, they maintain, but at least they would have supported the argument that Ward got no monetary gain from the crime and was less likely than Harris to be the one who set it in motion.
Since obtaining the evidence, however, Ward’s lawyers have been unable to get a state or federal court to reopen the sentencing phase of the trial. So it falls to Easley to decide whether to set the death sentence aside. The governor met with Ward’s lawyers on Monday and was still considering their arguments at press time.
Easley’s decision to commute Robert Bacon’s death sentence two weeks ago was the first time the governor spared a condemned prisoner since he took office in January. On the surface, Bacon’s case and Ward’s are similar: Bacon was sentenced to death and his co-conspirator, who was his lover and the wife of the victim, was not.
One difference in the two cases is that Bacon’s involved possible racial bias, since Bacon’s lover, and her husband, were white. Ward and Smith are both black. Another difference: Bacon had never been in trouble with the law before; Ward, a drug user starting at age 13 who did farm and other manual work for a living, had been jailed for stealing cars and robbing stores to pay for his drug habit.
Easley did not explain his reasoning when he commuted Bacon’s sentence to life imprisonment, except to say that the “totality” of the evidence made him decide that life was “the appropriate sentence.” So it isn’t clear whether his decision was mainly about race or mainly about the basic inequity of sentences.
According to the Center for Death Penalty Information in Washington, D.C., just 45 death sentences have been commuted by state officials since 1976, following the U.S. Supreme Court’s decision to reinstate capital punishment. Eight were spared by an Ohio governor on the day he left office. Five were spared by a New Mexico governor opposed to capital punishment. “Possible innocence” was cited in 12 cases, making it the most frequently cited factor. Second-most frequent: The death sentence was disproportionate to lesser sentences received by co-defendants who were at least equally culpable. That reason was given in six cases, not including Bacon’s, where Easley gave no explanation for the commutation.