It happens with murder cases where you've got first degree murder, is second degree a lesser included depends. On a DWI related fatality, second degree murder I've said that voluntary manslaughter is not. By statute it's specifically said it is not a lesser included offense, or a case in that instance may be. That's what I'm referring to, are elements of a case that are added together may amount to the highest level of punishment.
Bill Powers: Sure. Well, actually there are several steps before hand, even before the jury trial where there are fail safes put in place by the court system. First and foremost a prosecutor would need to make a decision of whether or not they are going to proceed with capital murder, meaning, are they going to proceed under first degree murder non-capital? Are they going to proceed where the option is, we call it LWOP, life without possibility of parole, or are they going to proceed capitally?
If they are going to proceed, say they make an intentionality, there's a designation, "We are proceeding with first degree murder formally," and sometimes we see initial arrests that say first degree murder, but the DA's office, through their charge and documentations, indictments, whatever, make a formal designation. They tell the accused, normally through a lawyer and the court, "We are proceeding with capital murder. If we get a conviction for murder we are seeking the death penalty."
That would trigger how the cases are held in the court system. There are special rights afforded to the accused. There would be an actual hearing where there'd be, it's called a rule. I won't go into number, but it's rule whatever hearing, and then there's a designation of whether it's going capital or non-capital. Then, because more resources are afforded to defense, if you're trying someone for their life you may be entitle to additional investigators, or assistance in preparing a defense. You may have more lawyers.
Normally you'd have two lawyers on a capital type of a defense as opposed to traditionally one in a non-capital. That's not to say that you can't have more than one lawyer, it's just that as a matter of course the court's appointing two.
Robert Ingalls: Is there a specific statute that applies like when they're choosing whether to go capital with that charge or not, or is that a decision that they make in that moment? Is there criteria?
Bill Powers: The answer is both. This is something that personally, this is one of those areas where, and I'm not commenting on whether there should be the death penalty or not, I want to preface that, but I do think that at times there's a little bit too much discretion allowed, one particular person, namely the prosecutor, in making that determination. Now, ultimately it's up to the jury to make a ruling of guilt or not guilt. There may be times where the court, as a matter of law, says that this is not legally sufficient, or not legally appropriate.
In North Carolina I think it would frankly be better if we had a more formalized process as you describe, where there are judges, and prosecutors, and maybe defense lawyers that get together and work together what would normally be considered a capital case versus non-capital. The reason this concerns me is that there are some cases that I've seen designated capital that in another jurisdiction would never be designated as capital, or there's very little chance of it actually going to that route, and this isn't play time when they're talking these type of offenses. You're literally trying to put someone on death row.
Robert Ingalls: Do you think that charging it as capital is ever used as a way to persuade, perhaps, a defendant into maybe accepting a lower charge and pleading guilty?
Bill Powers: Unfortunately yes. Unfortunately yes. I do think there can be overcharge, and in any kind of criminal case. I can't say that ... I mean, we don't see a lot of these, when I say we I mean the system. I don't think there's any nefarious purpose. I think prosecutors, when they do this, really believe it's appropriate, but clearly reasonable minds can differ. But there are times where cases are, what lawyers refer to as being overcharged, where there's just a vast number of cases brought against a person.
If you're creative in your paperwork you can add a bunch of lesser includes. I mean, we see this in a DWI, where there's a DWI, failure to maintain lane control crossing the center line, where there's case registration, failure to carry driver's insurance, not having your license or a registration license, insurance on you, where yes you can technically charge the person, but it's becoming superfluous. It's becoming, to some extent, vindictive.
But I don't want to just blindly point a finger and say this happens every day. Can it happen? Yes. Sure, it does happen, but these cases are such powder kegs of emotion that it kind of depends on the individual circumstance of the case. My experience has been over the years that the vast, vast, vast majority of prosecutors want to do the right thing by the community. I may not always agree with them, but I think their intent, their mindset, is I guess in good faith and well placed.
Robert Ingalls: If you've been charged with that capital and the jury delivers that verdict, is it the jury then that makes the determination on whether the death sentence is handed down? Is that the judge?
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