JUST TWO RALEIGH LAWYERS

JUST TWO RALEIGH LAWYERS, SEVEN SUPREME COURT JUSTICES AND ONE NIGHT’S WORK

BY WADE M. SMITH | THARRINGTON SMITH

ON A LATE NIGHT NOW BLURRED BY THE MISTS OF TIME, two of Wake County’s many great criminal lawyers Roger Smith and Joe Cheshire sat pondering what to do. It was after midnight. The year was 1984. Their court appointed client, James Hutchins, was scheduled to die in North Carolina’s gas chamber at dawn. On May 31, 1979, James Hutchins had shot and killed three law enforcement officers in Rutherford County. He was captured after a 12-hour search conducted by more than 200 law enforcement officers. He would be the first person to die by execution in North Carolina since 1977. However, on this fateful night, Roger and Joe had discovered a glitch in the execution protocol. What to do? At Central Prison in Raleigh, Hutchins was already being prepped to die. The glitch was a scheduling error. But, nevertheless, it was a glitch. It was now after 1 a.m. If Joe and Roger were going to do something, they had only a few hours to get it done. Time was racing by.

It is one thing to be sitting up at 1a.m. worried about a closing argument or a cross examination. However, it is something else indeed to be awake after midnight wondering how to stop an execution.

Burley Mitchell was chief justice of the North Carolina Supreme Court, at that time a Wake County lawyer and a member of the Wake County Bar Association. Fast asleep at his home in Raleigh. With their hearts in their throats Roger and Joe placed a call to the chief justice. They awakened him at nearly 3 a.m. and they explained their concern. Chief Justice Mitchell summoned the members of the Supreme Court, who all got up and dressed in whatever comfortable clothing they had been wearing before turning in for the night. And they came downtown. All of them.

At 3 a.m. Chief Justice Mitchell convened the Court and called them to order. Appearing before the North Carolina Supreme Court at 3:00 a.m., Roger and Joe argued their case. The Court voted to support their motion for a stay and after 4:00 a.m. Chief Justice Burley Mitchell called the prison and halted the execution with only moments to spare. Many years later, Roger and Joe recalled the remarkable moment when the chief justice picked up the telephone, called Central Prison and stopped the execution.

Just another night of work for Roger and Joe, two of Wake County’s many excellent criminal defense lawyers. And just another night’s work for the North Carolina Supreme Court and its Wake County Chief Justice, Burley Mitchell.

A new execution date was thereafter scheduled. This time James Hutchins died in North Carolina’s gas chamber. The date of his death was March 16, 1984, almost five years after the overnight stay of execution. WBF