Justices Hear Appeal Of Death Case That Could Set Precedent

The state has exaggerated its predictions of massive problems if the North Carolina Supreme Court overturns the use of short form indictments, a lawyer for a death row inmate argued Tuesday.

Prosecutors say they'll have to retry many of the 202 prisoners on death row if justices throw out that type of indictment, which doesn't list reasons to justify a death sentence.

Attorney Steven Holley said some prosecutors already are handling new death cases by listing the reasons, called aggravating circumstances, on the indictments presented to grand juries.

"This whole doomsday scenario that has been spun out by the district attorneys seems a little improbable," said Holley, a lawyer for death row prisoner Henry Lee Hunt. "It seems that what the state is asking this court to do is to diminish the effectiveness of the grand jury.

"Capital defendants in this state have a constitutional right to an indictment voted on by 12 grand jurors," Holley said, adding that the extra protection makes sure charges aren't increased during trial.

Bill Hart, head of the appellate section of the state Attorney General's office, argued that the court has held short-form indictments legal in the past. The state believes "at most, it might be a due process issue which this court has already addressed regarding short-form indictments," Hart said

Hart also said the defendant doesn't lack protection because he can object at trial to anything a defense attorney believes is incorrect.

The grand jury issues charges based solely on evidence from a prosecutor and a trial jury hears evidence from both sides before determining guilt or innocence.

Justices interrupted the arguments frequently with questions.

Justice Bob Edmunds asked if a grand jury must be death-qualified. The term means jurors have said they could vote for a death sentence if the facts supported it. Holley said he didn't think it would be necessary but that it was an issue the court should address.

Despite state assertions that the high court had previously upheld the short indictment, Holley said it had been overlooked by courts that a grand jury that hands down indictments should also vote on aggravating circumstances. Now, only trial juries vote on them.

Hunt, 58, was scheduled to die Jan. 24 for two 1984 killings in Robeson County, a murder for hire and the slaying of a witness. The state Supreme Court stopped his execution Jan. 22.

Since the state began using a short-form indictment in 1887, it's been routine to omit aggravating circumstances when a defendant is charged with capital murder.

By law, there are 11 aggravating circumstances - including murder during a rape or armed robbery and murder of a police officer. In the past, the court has said every defense lawyer knows what they are.

The Supreme Court said in its order that it was stopping Hunt's execution so it could consider defense arguments that were based on a U.S. Supreme Court decision in an Arizona case in June.

In Ring v. Arizona, the U.S. high court said Arizona juries - instead of a judge - should determine the aggravating circumstances as well as the death sentence.

The circumstances are elements of the crime, but they have been treated as sentencing guidelines, Holley said. Hart responded that the state Constitution doesn't say all elements of a crime must be listed in an indictment.

It's not clear when the Supreme Court will issue a decision - the justices typically take weeks or months to decide on a case.