Condemned Man's Defense Attorney Wanted His Client to Die

Press Release from The Common Sense Foundation (Raleigh, NC, (919) 821-9270)


Please Contact:

November 3, 2000

Richard Rosen (919) 962-8505

Robert Mosteller (919) 613-7092

Stephen Dear (919) 933-7567


Raleigh---The Attorney General's office continues to seek to execute a man whose attorney now admits he wanted his client to die.

Russell Tucker is scheduled to be killed December 7, 2000 for a 1995 murder in Forsyth County. Tucker's own attorney, David Smith, admits he sabotaged his client's case so he would be executed.

Smith says in an affidavit to the court hearing Tucker's case that "I decided that Mr. Tucker deserved to die and I would not do anything to prevent his execution."

The Attorney General's office argues that the fact that Tucker's own lawyer wanted his client to die is irrelevant and Tucker should be executed anyway, a position which stunned Tucker's current lawyers and citizen groups across the state.

"How can our state execute someone who had no real defense," said Duke University law professor Robert Mosteller. "At a minimum, anyone facing the death penalty deserves a lawyer who is working zealously for him."

University of North Carolina law professor Richard Rosen finds it "incredible" that North Carolina plans to execute Russell Tucker in the face of his lawyer's admission that he acted against Mr. Tucker's interests in order to ensure his client's execution.

Noting the recent ruling upholding a Texas death sentence where defense counsel slept during a capital trial, Rosen said, "This is worse than a sleeping lawyer. The State's insistence on executing this man illustrates the sorry state of the death penalty in North Carolina."

Both Mosteller and Rosen called on Gov. Jim Hunt to grant reprieves to Tucker and two men scheduled to die in November until a Legislative Study Commission examining flaws in the administration of capital punishment in North Carolina finishes its work.

The Tucker case is the just the latest in a long line of events that has shaken public confidence in the state's capital punishment system. In September, after a six-month study, The Charlotte Observer reported significant problems with the death penalty in this state, including prosecutorial misconduct, incompetent counsel, racial bias, and the serious risk of executing an innocent person.

The two other men are scheduled for execution are Michael Sexton and Marcus Carter. Attorneys for both men have called on Governor Hunt to grant reprieves to let the Legislative Study Commission complete its work and the General Assembly to consider the Commission's recommendations.

According to Stephen Dear, Executive Director of People of Faith Against the Death Penalty, "The Tucker case seriously challenges Hunt's contention that North Carolina's system of capital punishment is 'fair,' Gubernatorial candidate Richard Vinroot's claim that the system, 'the way it is, is working,' and gubernatorial candidate Mike Easley's assertion that 'we don't have any flaws' warranting a moratorium on executions."


Russell Tucker is scheduled to die on December 7, 2000 for a 1995 murder in Forsyth County. In spite of the fact that Tucker's own attorney admits he sabotaged his client's case so he would be denied appellate review and be executed, the state Attorney General's office is pressing forward with the pending execution, asserting the condemned prisoner is not entitled to competent counsel. On Wednesday, Superior Court Judge Larry G. Ford accepted the state's argument, and signed an order written by Special Deputy Attorney General A. Danielle Marquis which denies a stay of execution.

Marquis instituted the proceedings for Tucker's execution after defense counsel missed a filing deadline. One of Tucker's attorneys, David Smith, admits in an affidavit submitted to Judge Ford and Marquis that he began "passively sabotaging" his client's appeal after concluding that Tucker should die. His other attorney, former Superior Court Judge Steve Allen, admits he misread the rule setting forth the time for filing. Although Smith knew Allen misinterpreted the filing deadline, he "did not challenge his reading" of the rule because he had decided that he "would not do anything to prevent his execution," according to the affidavit. Smith gave the affidavit after he became overcome by depression and guilt over his actions. He admits he began "passively sabotaging" his client's appeal after he "came to the belief that Mr. Tucker should be executed for his crimes."

In Wednesday's hearing, Marquis urged Judge Ford to allow the execution to proceed. Marquis argued that Tucker has no constitutional right to counsel in post-conviction appeals. Consequently, she argued, the fact that his attorney was assisting the State in its efforts to execute his own client is immaterial.

State law requires the appointment of two attorneys in state post-conviction proceedings. Smith was primarily responsible for preparing Tucker's appeal and is the only one who read the entire transcript. Consequently, Allen asked the court to reopen Tucker's appeal and appoint two new attorneys who could competently and devotedly work on Tucker's behalf. At the urging of the Attorney General's office, Judge Ford denied this request as well.