Here’s a question for Gov. Mike Easley. Let’s say that, in a murder trial, after the confessed killer has been convicted and the jury is considering whether to return a death sentence or not, the prosecution calls an “expert” witness–a psychiatrist–whose testimony is a crock. This expert says the killer was only faking remorse when he tried to kill himself in the police station following his arrest. She says he has “antisocial personality disorder” and is both dangerous and incorrigible. In other words, governor, she tells the jury this guy is scum.
Only it turns out she’s never met the person she’s testifying about, and her take on him is based completely on what she was told about him on the phone by the prosecutor and, maybe, a cop or firefighter. (Later on, she only remembers the firefighter.) On the phone? Oh, yes. She flew in from Washington, D.C., to testify. She heard none of the trial. Did not know, for example, that the guy was sky-high on booze and cocaine. (She’d been told he’d had “some wine.”) Did not know that after killing his aunt, he came home, attacked his wife and son and barricaded them into the house, and then set fire to it–with himself inside, too. Faking remorse? But for the firefighters, they’d all have died.
When the N.C. Supreme Court considered this question, they were told by the prosecution that White had conducted extensive interviews, so they rejected the defense claim that her testimony was improper and shouldn’t have been admitted because she hadn’t interviewed the defendant.
But then, this expert had never testified in a criminal case–before, or since. She had testified in some civil cases about the effects of drug- and alcohol-addiction, her specialty. That’s why the prosecutor brought her in, she thinks. They had a mutual friend.
And now the expert, 13 years later, is mortified by her own testimony, recants it all, has signed an affidavit calling it “inaccurate … erroneous with gross errors,” and is “extremely regretful and troubled that my testimony was presented by the prosecution in support of a sentence of death for this defendant.” She thinks the two state psychiatrists who did interview the defendant were probably right that he was mentally impaired to the point that, as the law describes it, he lacked “the capacity to appreciate the criminality of his conduct.”
One of the state psychiatrists testified for the defense. His testimony, perhaps, was offset by hers. Who knows?
As you know, governor, this is the case of John Daniels, who is scheduled to be executed this Friday at 2 a.m., unless you stop it. In previous cases, you’ve sent killers to die with no explanation beyond the bland statement that a jury determined the penalty and you saw “no compelling reason” to change it. But here, can you possibly know why the jury reached the decision it did, and whether the fact of Dr. Cynthia White’s appalling testimony–her word–tipped the balance against their returning a life sentence?
To judge that issue, you’d have to put yourself in their place, hear all the testimony they heard, and hear it without reference to your own life’s experience as a prosecutor who sought the death penalty … as a state attorney general who urged the courts to reject every death penalty appeal that ever came his way … and as a tough-on-crime governor who tells the voters that we don’t need a moratorium on executions in our state, or a study of how capital punishment is meted out, because you are the fair-minded court of last resort.
Either that, or you will have to judge the jury’s verdict by your own contemporary standards, and take into account the fact that, while juries commonly returned death sentences in 1990 murder cases, they almost never do so today. Using contemporary standards is something your “no compelling reason” position seems designed to avoid. But it would seem the only fair-minded alternative, unless you really think you can unravel the jury’s assessment of Dr. White’s testimony–the only expert witness for the prosecution they heard in the penalty phase of John Daniels’ trial.
So that’s the question. When the prosecution presents a witness whose testimony is stunningly inaccurate and unfair, how do you fairly determine what the jury should have done in a case of life-and-death? 
