Executed October 12, 2001

Honorable Michael F. Easley
Office of the Governor
20300 Mail Service Center
Raleigh, NC 27699-0300

Re: David Ward

Dear Governor Easley:

On behalf of the American Civil Liberties Union, we urge you to stay indefinitely the execution of David Ward, which is currently scheduled for October 12, 2001. Your recent grant of clemency to Mr. Robert Bacon, Jr. demonstrates your commitment to a fair and equal system of justice. Mr. Ward's case is similar to Mr. Bacon's in that neither was the main perpetrator of the crime and the other, more culpable defendant in each case received only a life sentence. We submit that Mr. Ward, therefore, deserves the same fairness and a similar grant of clemency. In this case, moreover, ineffective assistance of counsel and the unresolved adjudication of federal constitutional issues independently merit this extraordinary relief.

Mr. Wesley Harris was the architect of the crime, for which Mr. Ward was sentenced to death. Mr. Harris supplied the weapons and was the sole recipient of the proceeds from the robbery. The day after the crime was committed, the police questioned Mr. Ward about other matters and he promptly confessed to his role in the robbery and murder. He told police where to find the weapons involved and helped them locate and arrest Mr. Harris.

Mr. Harris and Mr. Ward were tried separately and convicted of first-degree murder and robbery. Mr. Harris, however, received a life sentence despite his greater participation in the crime. In Mr. Ward's trial, which occurred a month later, he was unable to introduce any evidence of Mr. Harris' life sentence and the fact that his cooperation with the police led to Mr. Harris' arrest, despite the fact that aiding in the apprehension of another capital felon is one of only eight statutory mitigating factors specified by the General Assembly for capital cases. See N.C. Gen. Stat. § 15A-2000(f). The jury returned a death sentence based on the single aggravating factor of "pecuniary gain," even though there was no evidence that Mr. Ward obtained any money from the crime nor proof that he ever intended to benefit financially.

It is rare for a North Carolina jury to recommend death where a defendant was not the main perpetrator of a crime, where there was no abuse of the victim before death, and no other aggravating factor beyond "pecuniary gain." Mr. Bacon and Mr. Ward's cases are the first two such cases in which death sentences resulted. Your recent grant of clemency to Mr. Bacon warrants a similar result to Mr. Ward.

In addition, Mr. Ward clearly suffered from ineffective assistance of counsel. His court-appointed lead trial counsel had a small town general practice, consisting primarily of real estate closings, and had never handled a first-degree murder case. His assistant counsel was a young lawyer one year out of law school, also inexperienced in capital cases. Neither of Ward's trial attorneys would have qualified as death case counsel under the new rules of the Commission for Indigent Defense Services.

Finally, there are serious federal constitutional issues outstanding regarding the failure of the trial counsel to have access to two crucial witness statements from law enforcement files. For over three years, Mr. Ward was denied the benefit of new discovery provisions enacted for death row inmates in North Carolina. It was not until September 2000, when Mr. Ward's counsel was allowed to review the witness' statements. The statements demonstrated that, in the hours after the murder and robbery, Mr. Harris had a great deal of cash and was spending freely with no participation or other display of extravagance by Mr. Ward. Such suppressed testimony would have strongly supported Mr. Ward's lack of involvement in any "pecuniary gain" from the robbery. Despite the post-trial discovery of such exculpatory information, Mr. Ward's efforts in obtaining a hearing on the new evidence has been futile both before the trial court and before the North Carolina Supreme Court. The Secretary of Correction, now, has set an execution date of October 12, 2001, and the State is moving forward without permitting sufficient time for any federal court review of his Fourteenth Amendment rights.

Because Mr. Ward's crime does not exhibit any of the gross aggravating factors which have previously characterized sentences of death in North Carolina, Mr. Ward's execution would represent a new "casualness" in imposition of death sentences. The disparity of Mr. Ward's death sentence with the life sentence of his co-defendant exemplifies the unfair and uneven imposition of the death penalty. Although the ACLU opposes capital punishment in all cases as a barbarous anachronism and in violation of the Constitution, we are ever more convinced that the sentence in this case is unfair, even by existing standards, and urge you once again to grant clemency for a defendant facing the death penalty for a crime in which his role was secondary.

Sincerely,

Diann Rust-Tierney
ACLU Capital Punishment Project

Deborah Ross
ACLU of North Carolina

Kara Mather*
Pro Bono Counsel
Squire, Sanders & Dempsey LLP

*Admittance in the District of Columbia Bar pending