Bacon, Robert, Jr., NC, Granted Clemency, Undated

CLEMENCY PETITION

Presented on behalf of

ROBERT BACON, JR.

Submitted on :

| Gretchen M. Engel

Center for Death Penalty Litigation
123 West Main Street, Suite 500
re Durham, NC 27701

Tel: (919) 956-9545

Fax: (919) 956-9547

WHY GOVERNOR EASLEY SHOULD SPARE ROBERT BACON, JR.’S LIFE

The death penalty is excessive in this case. Robert Bacon, Jr. is on death row for his
first and only crime. His codefendant, Bonnie Clark, masterminded the murder and
pushed Robert to do it. Bonnie Clark, who is white, received a life sentence. Robert,
who is African-American, was sentenced to death. Bonnie Clark stands to be paroled
while Robert faces execution. At Bonnie Clark’s trial, prosecutors argued that she was
“the brains” behind the murder; although Robert was the one who wielded the knife, the
prosecutor argued that Robert was “only a pawn.” The prosecution also took the position
that Robert and Bonnie Clark deserved the “same sentence.” Two former chief justices
of the Supreme Court of North Carolina wrote that the disparity in punishments meted
out to Bonnie Clark and Robert was patently clear. Justices Exum and Frye said that
when inconsistent, inherently contradictory results lead to the sentence of life
imprisonment in one case and the sentence of death in another, it is the court’s duty to
remedy the result by setting aside the death sentence and imposing life imprisonment.
The judicial system failed in this case, and it falls to the Governor to impose a fair and
just punishment: life imprisonment without parole.

Governor Easley should not tolerate the risk that Robert Bacon, Jr. faces the death
penalty because of the color of his skin. Jurors admitted in post-trial interviews that,
when they were deciding whether Robert should live or die, they held it against him that
he, an African-American man, was dating a white woman, Bonnie Clark. At trial, jurors
made racial jokes. No court has been willing to compel jurors to take the stand and
testify under oath as to the role racial prejudice played in determining Robert’s
punishment. As a consequence, the specter of racism haunts this case. The State must
not carry out an execution in a case so tainted by racial bias.

Law enforcement officers with substantial involvement in the investigation of this
case believe that the execution of Robert Bacon, Jr. would be unfair. Dennis Dinota,
formerly with the Jacksonville Police Department, has given an affidavit stating that he
believes Robert should be sentenced to life imprisonment. Mr. Dinota is a 20-year
veteran of the United States Marine Corps and worked in law enforcement for more than
two decades. He was awarded the Silver Star, the Bronze Star for Heroic Achievement, a
Battle Field Commission, and two Purple Hearts. Mr. Dinota is a proponent of the death
penalty. As part of the homicide investigation in this case, Mr. Dinota interviewed
Bonnie Clark. He thinks that it is unfair to execute Robert because Bonnie Clark was at
least as guilty as Robert and she received a life sentence. J.J. Phillips has also given an
affidavit attesting to the unfairness of an execution in this case. Officer Phillips has been
with the Jacksonville Police Department since 1976. He found the body of Glennie Clark
and testified at the Bacon and Clark trials. Officer Phillips believes that Bonnie Clark
pushed Robert to commit the crime and that it is not fair to execute Robert. A third
officer who was involved in the investigation of the case has also expressed the view that
it would be unfair to execute Robert. This officer declined to give an affidavit but has
agreed to speak privately with the Governor’s representative.
Robert Bacon, Jr.’s jury did not hear critical evidence about the events leading to
the crime. A significant factor in the offense was the substantial and sustained abuse
inflicted on Bonnie Clark by her husband. It was this abuse that led to the crime. Bonnie
Clark’s jury heard substantial evidence of the abuse, but Robert’s jury did not. Evidence
presented at Bonnie Clark’s trial showed that Glennie Clark was a severe alcoholic who
was violent and mean when he was drunk. Glennie Clark’s behavior was such that
Bonnie Clark was afraid to leave their children with him. He had threatened to kill
Bonnie Clark if she ever went out with another man. Bonnie Clark confided in Robert
and sought his help. The jury that heard this evidence returned a life sentence. The jury
that did not hear this critical evidence sentenced Robert to die.

The death sentence is unreliable because the jury never heard compelling mitigating
evidence about Robert Bacon, Jr.’s background. Trial counsel devoted a single
weekend to the investigation of penalty phase evidence. Consequently, the jury heard
little evidence about why Robert should be sentenced to life imprisonment. The Supreme
Court of North Carolina vacated Robert’s death sentence so that a new jury could hear
available, constitutionally mitigating evidence about Robert’s cooperation with the police
and how his assistance resulted in Bonnie Clark’s arrest. On resentencing, trial counsel
conducted no new investigation and failed to present the very evidence that the Supreme
Court had ruled should have been admitted. In addition, post-conviction investigation
revealed a wealth of other evidence that counsel never discovered. One judge on the
Fourth Circuit found that this newly discovered family history evidence “uniquely
mirrors the circumstances surrounding the crime” and, therefore, it would have helped the
jurors understand how Robert could have been manipulated by Bonnie Clark. The jury
deliberated nearly six hours in this close case. Had it been presented, this evidence likely
would have persuaded the jury to reject the death penalty.

The jury was never told that Robert Bacon, Jr. promptly accepted responsibility for
his actions and that his cooperation with the police aided their investigation. The
General Assembly has specified only eight statutory mitigating factors which a jury must
consider mitigating in a capital case. One of these eight is whether the defendant aided in
the apprehension of another capital felon. Testimony of State witnesses at pretrial
hearings established that, when Robert was first questioned by police, he promptly
admitted that he had stabbed the victim. In addition, Robert voluntarily showed the
police incriminating physical evidence. It was only after Robert’s confession that the
police realized that Bonnie Clark was involved in her husband’s murder. Prior to her
arrest, Bonnie Clark had lied to the police for approximately four hours and told them
that she and her husband were attacked by unknown assailants. According to testimony
from the investigating officer, once she was placed under arrest and confronted with
Robert’s confession, Bonnie Clark finally admitted her role in the killing. The jury that
sentenced Robert to death did not know that Robert’s cooperation with law enforcement
authorities led to Bonnie Clark’s arrest. The omission of this crucial evidence
undermines the reliability of the death sentence in this case.

Trial counsel made other grave mistakes in this case. Not only did trial counsel fail to
spend enough time preparing, but they interviewed all potential sentencing witnesses in
the presence of the prosecutor X the person charged with seeking Robert’s execution. At
resentencing, after painstakingly excusing prospective jurors who were familiar with the
case and might be biased because of their knowledge of the case, Robert’s trial lawyers
unnecessarily told the jury that another jury had previously sentenced Robert to death.
Further, Robert’s attorneys inexplicably invited the jury to think that Robert would be
released from prison if he were sentenced to life. In opening statement, Robert’s lawyers
promised evidence about Glennie Clark’s drinking and Robert’s relationship with Bonnie
Clark. Counsel then inexplicably failed to present this evidence to the jury. Trial counsel
aided the State by helping the prosecutor present testimony supporting its case for death.
In closing argument, the prosecutor bolstered the credibility of the State’s case by
drawing the jury’s attention to defense counsels’ personal participation in the
presentation of the State’s evidence. These serious errors place in grave doubt the
fairness of Robert’s death sentence.

Fundamental fairness is in question in this case because, at different stages of the
proceedings, the State has taken inconsistent positions on vital issues. The State
argued to the jury in this case that death was appropriate because Robert was the “leader
and organizer” of this crime. The State took a starkly contrasting position in the trial of
codefendant Bonnie Clark, where the prosecutor argued that Robert was “only a pawn.”
Two former prosecutors have questioned the fairness of the State’s contradictory
arguments in the Clark and Bacon trials. The State has taken similarly inconsistent
position on the quality of Robert’s defense and other critical issues. By repeatedly
switching horses in midstream, the State has undermined the reliability of the death
sentence in this case.

The State systematically excluded people of color from jury service in this case.
Approximately 20 percent of the population of Onslow County is African-American. Yet
Robert Bacon, Jr., who is African-American, was tried and sentenced to death by two all-
white juries. All of the persons of color who were questioned and were found by the trial
court to be qualified for jury service were dismissed by the State.

Many of the state and federal judges who have reviewed this case have found
unfairness. The first time the Supreme Court of North Carolina examined this case, all
seven justices concluded that there was significant constitutional error and threw out the
death sentence. The second time the court reviewed the case, one-third of the justices
concluded that the death sentence was unusually cruel and excessive. Former Chief
Justices Exum and Frye dissented and wrote that Robert should be given a life sentence.
United States District Judge W. Earl Britt heard evidence concerning the quality of
representation in this case and found that Robert had received ineffective assistance of
counsel X the only federal court finding of its kind in a North Carolina capital case in
more than a decade. One of the three judges who reviewed this case in the Fourth Circuit
X a court that has not granted relief in a death penalty case since 1992 X concluded that
the notion that Robert had received a “full measure of fair procedure” was a “legal
fiction.”
Governor Easley cannot have confidence in the legal process afforded Robert
Bacon, Jr. on direct appeal. The Supreme Court of North Carolina is required by
statute in every death penalty case to ensure that the death penalty is applied fairly and
that the punishment fits the crime. The court’s proportionality analysis in this case was
tainted by irregularities that render it unreliable. When it first reviewed this case, the
court said that Robert’s death sentence was not disproportionate because another capital
defendant, Willie Gladden, had committed a very similar crime and had also been
sentenced to death. Appellate counsel informed the court that Willie Gladden had
obtained relief in post-conviction proceedings and had been resentenced to life
imprisonment. Accordingly, counsel asked that Robert be sentenced to life. The court
responded by issuing a new opinion that again affirmed Robert’s death sentence.
However, this time the court said the Bacon and Gladden cases were not comparable
cases. The public can have no confidence in the proportionality review in this case.

Governor Easley cannot have confidence in the legal process afforded Robert Bacon
in state post-conviction proceedings. Without hearing evidence, the state post-
conviction court summarily denied relief on all of Robert’s claims. The Supreme Court
of North Carolina has ruled that post-conviction discovery is an essential component of
“thorough and complete review” in capital cases. However, in Robert’s case, the courts
refused to order the State to disclose its investigative and prosecutorial files. It is
incumbent upon the Governor to act in a case that, by definition, has not been subjected
to thorough and complete review.

Governor Easley cannot have confidence in the legal process afforded Robert Bacon
in federal habeas proceedings. In federal habeas proceedings, even though the defense
was refused discovery and denied an opportunity to present evidence in state court, the
federal habeas court granted an evidentiary hearing. United States District Judge W. Earl
Britt ruled that Robert had received ineffective assistance of counsel and ordered
resentencing. The State appealed. Had Robert Bacon Jr.’s appeal been heard in any
other circuit in the country, it is likely that he would have received a new sentencing
hearing. However, the Fourth Circuit reversed the district court’s grant of sentencing
relief. The appeals court did so by ignoring trial counsel’s clear testimony in the district
court and by disregarding decades of North Carolina law. The appeals court also refused
to grant a hearing on other evidence raising serious questions about the adequacy of
Robert’s counsel. The Fourth Circuit has not granted relief in a death penalty case since
1992, despite having reviewed more than 100 capital cases. Robert’s was the twenty-
second capital case in a row in which the court reversed a grant of relief. One judge on
the Fourth Circuit was moved to dissent in despair, “In a case such as this — where a life
hangs in the balance — it is more important than ever that justice not only be done, but
that justice also be seen to be done.” The Governor is the only one who can do justice in
this case.

Robert Bacon, Jr. deserves a sentence of life imprisonment without parole. Robert
has accepted responsibility for his actions and is remorseful. Robert had no criminal
record at the time of this offense. If he is sentenced to life imprisonment without parole,
Robert Bacon, Jr. can be expected to pose no danger in prison.
INDEX TO PETITION
The death penalty is excessive in this case. Tab 1

N.C. Supreme Court Opinion in Bacon I (discussion of facts and

suppression issue)
N.C. Supreme Court Opinion in Clark (discussion of facts)
Dissenting Opinion of Former Chief Justices Exum and Frye in Bacon IT
Resentencing Issues & Recommendation Form (Jury Findings)
Jacksonville Daily News from August 20, 26, and 29, 1987
Affidavit of Walter Wayne Vatcher
Trial Transcript 1140 (Testimony of Dr. Walter Gable)
Resentencing Transcript 1783-84, 1786 (Testimony of Robert Bacon, Jr.)
Trial Transcript 821, 834 (Testimony of Delma Collins)
Clark Trial Transcript 129, 134 (Testimony of Delma Collins)
Clark Suppression Hearing Transcript 270, 279, and 289 (Testimony of

Delma Collins)
“Jury gives Johnson life term,” Greensboro News-Record, February 1, 2001
“Watkins admits shooting Adams,” he Charlotte Observer, August 1, 2000
“Former Marine convicted of murder,” Jacksonville Daily News, April 13, 2001
“Cole gets life term in slaying,” Jacksonville Daily News, April 18, 2001
“Death penalty case spurs protest,” Raleigh News & Observer, December 6, 1999
Order of James B. Hunt, Jr. Granting Clemency to Wendell Flowers
Independent Weekly from October 1999
“Another Inequity on N.C. death row,” Jacksonville Daily News, April 13, 2001

Governor Easley should not tolerate the risk that Robert Bacon, Jr.
faces the death penalty because of the color of his skin. Tab 2

Resentencing Transcript 1398 (Prospective Juror’s Memory of Crime)

Onslow County Census Data from 1990

Motion to Prohibit District Attorney from Peremptorily Challenging Blacks
Trial Transcript 1462-65 (Jury Poll)

Trial Transcript 30, 278, 302, 378, 392, 572, 624 (Race of Jurors)

Trial Transcript 59, 62-70 (State’s Excusal of African-American Juror)

Trial Transcript 483, 511-17, 521 (State’s Excusal of African-American Juror)
Bacon I Record on Appeal 144-45 (Batson Assignment of Error)

Resentencing Transcript 2166-67 (List of Jurors by Race)

Resentencing Transcript 395-98, 1182, 1378 (State’s Excusal of Minority Jurors)
Stipulation Concerning All-White Resentencing Jury (Fourth Circuit Record)
Brief of Defendant filed in N.C. Supreme Court, April 20, 1992 (Batson Claim)
Superior Court Disposition of Swain Claim

Introduction to Habeas Petition Swain Claim

Federal District Court Disposition of Swain Claim

September 25, 1995 Affidavit of Gretchen M. Engel

Senate Bill 171 (An Act to Provide for the Fair and Reliable Imposition
of Capital Sentences)
Superior Court Disposition of Jury/Race Claim
Federal District Court Disposition of Jury/Race Claim
Fourth Circuit Disposition of Jury/Race Claim
“Study Finds a Racial Link to Death Sentences in North Carolina,” The New
York Times, April 19, 2001
“Victim’s Race Affects Decisions on Killers’ Sentence, Study Finds,” The New
York Times, April 20, 2001
“Researchers Study N.C. Death Penalty,” The Washington Post, April 20, 2001
“Death Penalty Tied to Race in North Carolina Study,” Chicago Tribune,
April 17, 2001
“Study says race a factor in N.C. death sentences,” CNN.com, April 20, 2001
“Race is key in death penalty,” The Charlotte Observer, April 17, 2001
“Execution-bias claim is debated,” The Charlotte Observer, April 22, 2001
“Race and Death Row,” Raleigh News & Observer, April 18, 2001
N.C. Academy of Trial Lawyers Report on Racial Bias
“Race and the Big Needle,” Spectator, March 7-13, 2001
Race and the Death Penalty in North Carolina, An Empirical Analysis: 1993-1997
“NAACP intercedes on behalf of killer,” Jacksonville Daily News, April 26, 2001
Letter from Julian Bond, Chairman, Board of Directors, NAACP
Letter from Wayne Covington, President, Onslow County Branch NAACP
Letter from Luther Jordan, Jr., Chairman, N.C. Legislative Black Caucus
Request for Precautionary Measures, filed in the Inter-American Commission on
Human Rights on April 9, 2001
Letter from Jorge Taiana of the Inter-American Commission on Human Rights
Amnesty International Weekly Death Penalty Action

Law enforcement officers with substantial involvement in the investigation
of this case believe that the execution of Robert Bacon, Jr. would be unfair. Tab 3

Affidavit of Dennis Dinota
Federal Evidentiary Hearing Transcript 11-12 (Testimony of Dennis Dinota)
Affidavit of J.J. Phillips

Robert Bacon, Jr.’s jury did not hear critical evidence about the events
leading to the crime. , Tab 4

January 31, 1996 Affidavit of Gerda Stein

Jacksonville Daily News from August 20, 1987

Resentencing Transcript 1644-45, 1647 (Opening Statement of Defense Counsel)

Resentencing Transcript 1768 (Testimony of Robert Bacon, Jr.)

Resentencing Transcript 1889 (State’s Objection to Dr. Billy Royal’s Testimony)

Resentencing Transcript 1903 (Testimony of Dr. Billy Royal)

Resentencing Transcript 2012-15, 2021-22, 2025 (Closing Argument of William
H. Andrews)

Bacon Suppression Hearing Transcript 53-54 (Testimony of Delma Collins)
Clark Trial Transcript 295-98, 300-302, 307-308, 313-14, 321-25, 329, and
358-60 (Testimony of Bonnie Clark)

The death sentence is unfair because the jury never heard
compelling mitigating evidence about Robert’s background. Tab5

Dissenting Opinion of Judge King in Bacon v. Lee (discussion of evidence

of family history and record of incarceration)
Resentencing Issues & Recommendation Form (Jury Findings)
Resentencing Transcript 1889-94 (Testimony of Dr. Billy Royal)
January 31, 1996 Affidavit of Gerda Stein
February 15, 1996 Affidavit of Gretchen M. Engel
Suppression Hearing Transcript 53 (Testimony of Delma Collins)
Resentencing Transcript 1776-77 (Testimony of Robert Bacon, Jr.)
Clark Transcript 370-76 (Testimony of Bonnie Clark)
Jacksonville Daily News from August 20, 1987
Senate Bill 765 (An Act to Redefine First and Second Degree Murders)
Federal Evidentiary Hearing Transcript 36-37, 49, 52-53

(Testimony of Robert Coxe)

Letter from Harold J. Bender

The jury was never told that Robert Bacon, Jr. promptly accepted
responsibility for his actions and that his cooperation with the
police aided their investigation. Tab 6

N.C. Supreme Court Opinion in Bacon I (discussion of (f)(8))
N.C. Supreme Court Opinion in Bacon IT (discussion of (£)(8))
N.C. Supreme Court Opinion in Clark (suppression issue)
Superior Court Disposition of (f)(8) Claim
September 17, 1999 Order of U.S. District Judge W. Earl Britt
Federal Evidentiary Hearing Transcript 81-89 (Direct Testimony of
Harold J. Bender)
“Deputy: Suspect led cops to weapons,” Jacksonville Daily News, April 10, 2001
“Sheriff testifies about slaying,” Jacksonville Daily News, April 11, 2001

Trial counsel made other grave mistakes in this case. Tab7

Resentencing Transcript 2099-2100 (Defense Counsel Informing Jury
of Robert’s Prior Death Sentence)
Dissenting Opinion of Judge King in Bacon v. Lee (improper revelation claim)
Resentencing Transcript 1854-55, 1859, 1863, 1867, 1871 (Defense
Counsel Eliciting Testimony on Robert’s Possible Release
from Prison if Sentenced to Life)
Resentencing Transcript 1681, 1724, 1751 (Defense Counsel Reading
Prosecution Testimony into Record)
Resentencing Transcript 2026, 2028-29 (Closing Argument of William

H. Andrews)
Resentencing Transcript 2083 (Closing Argument of Defense Counsel)

Resentencing Transcript 1644-45, 1647 (Opening Statement of Defense Counsel)

January 31, 1996 Affidavit of Gerda Stein
Letter from L. Robert Coxe

Fundamental fairness is in question in this case because, at different
stages of the proceedings, the State has taken inconsistent positions
on Vital issues.

Jacksonsville Daily News from August 20, 26, and 29, 1987

Resentencing Transcript 2045-46 (Closing Argument of William H. Andrews)

Affidavit of Walter Wayne Vatcher

Letter from Harold J. Bender

Clark Suppression Hearing Transcript 105 (Testimony of Dennis Dinota)

Clark Trial Transcript 383 (Testimony of Bonnie Clark)

State’s November 22, 1989 Brief in N.C. Supreme Court 71 ((£)(8) issue)

State’s July 21, 1992 Brief in N.C. Supreme Court 65-67 ((£)(8) issue)

Federal Evidentiary Hearing Transcript 62 (Testimony of Delma Collins)

State’s May 13, 1999 Trial Brief in U.S. District Court 10

State’s January 14, 2000 Brief in Fourth Circuit 10

September 17, 1999 Order of U.S. District Judge W. Earl Britt 15-17

Resentencing Transcript 1889 (Testimony of Dr. Billy Royal)

Resentencing Transcript 2038-40, 2043-44 (Closing Argument of William
H. Andrews)

State’s July 21, 1992 Brief in N.C. Supreme Court 73-74, 77-78 (quality of
penalty phase defense)

State’s March 21, 2000 Brief in Fourth Circuit 29 (quality of penalty
phase defense)

State’s April 28, 2000 Brief in Fourth Circuit 11-13 (quality of penalty
phase defense)

The State systematically excluded people of color from jury service

in this case. See Tab 2

A majority of the judges who have reviewed this case have found unfairness.

See the following judicial opinions contained in previous tabs Tab 9

N.C. Supreme Court Opinion in Bacon I, Dissenting Opinion of
Former Chief Justices Exum and Frye in Bacon IT, September 17, .
1999 Order of U.S. District Judge W. Earl Britt; Dissenting

Opinion of Judge King in Bacon v. Lee

Governor Easley cannot have confidence in the legal process afforded

Robert Bacon, Jr. on direct appeal. Tab 10

Tab 8
N.C. Supreme Court’s June 1993 Withdrawn Opinion in Bacon II
(first page and discussion of proportionality)

Defendant’s August 10, 1993 Motion for Reconsideration 12

N.C. Supreme Court Opinion in Bacon II (proportionality review)

Governor Easley cannot have confidence in the legal process afforded
Robert Bacon in state post-conviction proceedings. Tab 11

Defendant’s August 11, 1998 Petition for Writ of Certiorari
(w/o attachments)

Defendant’s June 14, 1999 Motion to Supplement Petition

Superior Court’s May 16, 1996 Order for Transcript

N.C. Supreme Court’s August 24, 1999 Order

N.C. Academy of Trial Lawyers Report on Levon Jones

Letter of Former Associate Justice Harry C. Martin

Orders in State v. Ward

Governor Easley cannot have confidence in the legal process afforded
Robert Bacon in federal habeas proceedings. Tab 12

October 4, 1999 Letter from Gretchen M. Engel

Federal Evidentiary Hearing Transcript 30-33, 38, 40 (Testimony of
Robert Coxe)

“A Court Becomes a Model of Conservative Pursuits,” New York
Times, May 24, 1999

“The Voodoo Court,” American Lawyer, June 2, 2000

“Bringing equality to an appeals court,” Raleigh News & Observer,
August 20, 2000 (reprinted from The New York Times)

“North Carolina and the court of appeals,” Raleigh News & Observer,
October 19, 2000

Table of Capital Cases Denying Relief 1992-Present

Table of Capital Cases Reversing Grants of Relief 1992-Present

September 17, 1999 Order of U.S. District Judge W. Earl Britt 17-22

Fourth Circuit Opinion in Bacon v. Lee (merits of (f)(8) claim)

Robert Bacon, Jr. deserves a sentence of life imprisonment without parole. Tab 13

Bacon Suppression Hearing Transcript 53 (Testimony of Delma Collins)

Resentencing Transcript 1814 (Trial Testimony of Robert Bacon, Jr.)

Resentencing Issues & Recommendation Form (Jury Findings on Remorse
and Robert’s lack of future dangerousness)

Audiotape of Robert Bacon, Jr.
THE DEATH SENTENCE IS EXCESSIVE IN THIS CASE

The facts of this case, as summarized in State v. Bacon (Bacon I), 326 N.C. 404,
390 S.E.2d 327 (1990); State v. Bacon (Bacon II), 337 N.C. 66, 446 S.E.2d 542 (1994);
and State v. Clark, 324 N.C. 146, 377 S.E.2d 54 (1989), and other court documents, are
as follows:

In 1986, Robert moved from Massachusetts to North Carolina where he met
Bonnie Clark. The two became romantically involved and moved in together. Bonnie
Clark frequently complained to Robert about her estranged husband, Glennie Clark, an
alcoholic who abused her and their two children. Glennie Clark learned that his wife was
seeing Robert; Glennie Clark would call the house and call Robert names.

Bonnie Clark asked Robert to help her kill her husband and at some point
mentioned to him that she was the beneficiary of her husband’s life insurance policies.
Robert had never been invoived in criminal activity before but, eventually, he succumbed
to pressure from Bonnie Clark and agreed to help Bonnie Clark get rid of her husband.
However, he “chickened out” when he was supposed to kill Glennie Clark.

Bonnie Clark persisted and the next night arranged another meeting with her
husband. This time, Bonnie Clark made sure she was present when the killing was
supposed to occur. She and Robert went to Glennie Clark’s home to pick him up. On his
way out the door to the waiting car, Glennie Clark tossed a beer can into the yard. He
was drunk and had a blood-alcohol-level of .31. He was also angry; the first thing
Glennie Clark did when he saw Robert was to point at him and say, “What is this shit?”
Then Glennie Clark got into the car and an argument ensued concerning Bonnie Clark’s
relationship with Robert. During the argument, Glennie Clark called Robert a “nigger.”

Before Robert and Bonnie Clark left for Glennie Clark’s home, Robert had
removed a knife from his coat pocket and thrown it in the back of Bonnie Clark’s car.
Upon hearing the racial epithet, Robert picked up the knife and repeatedly stabbed
Glennie Clark while Bonnie Clark drove. Bonnie Clark parked the car outside a movie
theater. The pair agreed that Bonnie Clark would tell police that she and her husband
were attacked by unknown assailants. The two hoped to fake a robbery and Robert
knocked Bonnie Clark out. Then Robert went home.

That night, around 11:00 p.m., a police officer found Bonnie Clark unconscious
and seated in the car next to her deceased husband. Bonnie Clark told the officer that she
and her husband had been attacked by unknown assailants. Officer Donna Waters took
Bonnie Clark to the hospital and Bonnie Clark repeated her story to Officer Waters.
Officer Dennis Dinota picked Bonnie Clark up at the hospital and took her to the police
station. Bonnie Clark repeated her story to Officer Dinota. Bonnie Clark also gave a
written statement describing an attack by unknown assailants.

In the meantime, other officers went to Bonnie Clark’s home to check on her
children. At the house, the officers met Robert. According to testimony from the officers
who questioned him, Robert was cooperative with the authorities, who had no reason to
suspect his involvement in the murder. Only one time did Robert answer a question
untruthfully and he quickly admitted the falsehood and confessed. Robert described the
racial slur and admitted that he killed Glennie Clark. Then he directed the police to
inculpatory evidence. Robert also alerted police to the fact that Bonnie Clark was
involved in the murder.

In contrast, when questioned by the police, Bonnie Clark repeatedly and, for a
number of hours, lied about her involvement in her husband’s death. In the words of one
of the interrogating officers, she “play[ed] us for dummies.” Only after Robert had come
clean did the police place Bonnie Clark under arrest.

Robert and Bonnie Ciark were tried separately. Although both were convicted of
first degree murder, Bonnie Clark was given a life sentence; Robert was sentenced to die.

Former Chief Justices Exum and Frye examined the case and concluded the
following:

In short, Bonnie Clark and defendant committed the same crime.
Although defendant dealt the fatal blows, Clark was the instigator, planner
and motivator who was actually present during and actively participated in
the murder. Considering the findings of both juries, I conclude Clark and
Bacon are at least equally culpable. Considering only the findings in the
case before us, I would conclude Clark is more culpable.

Viewed side by side, the disparity between the perceptions of the same
crime by these two sentencing juries is patent. When such inconsistent,
inherently contradictory results lead to the sentence of life imprisonment
in one case and the sentence of death in another, it is this Court’s duty on
proportionality review to remedy the result by setting aside the death
sentence and imposing life imprisonment.

From every perspective the instant case is a misfit among similar cases in
the proportionality pool. First, it is the only case in which the death
penalty has been ultimately imposed where the sole aggravating
circumstance found was the motive of pecuniary gain. Second, it is the
only case in the proportionality pool in which a defendant determined by
the sentencing jury to have been under the domination of a confederate
was condemned to death while the confederate was sentenced to life.
Third, defendant Bacon, who killed at the behest and under the inspiration,
direction, and domination of another and whose sentencing jury found
[seven] mitigating circumstances, is less culpable than [other defendants]
whose death sentences were determined disproportionate by this Court.
State v. Bacon, 337 N.C. 66, 128 and 131, 546 S.E.2d 542, 577-78 (Exum, CJ.,
and Frye, J., dissenting).

At Bonnie Clark’s trial, the State did not disagree with the views expressed by the
dissenting justices. For example, District Attorney William H. Andrews argued:

The idea originated in her mind. She had more reasons to have him killed
than Robert Bacon. Robert Bacon had what he wanted X her. Money was
the main reason she wanted him dead.

Assistant District Attorney Dewey Hudson argued, “Who was the brains? Robert Bacon
was only a pawn.”

Robert did wield the knife and kill Glennie Clark. This fact, standing alone, does
not justify the disparity between the death sentence in this case and the life sentence for
Bonnie Clark. As argued by the State in Bonnie Clark’s trial, Bonnie Clark was not a
hapless “wheelman” but was responsible for each and every stab wound. According to
the jury findings in this case, the idea for the murder came from Bonnie Clark, who
dominated Robert.

Notably, in other capital cases involving adulterous lovers who planned the
demise of a spouse, the “triggermen” have received life sentences. See, e.g. State v.
Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986) (defendant was having affair with
married woman and lovers schemed to kill the husband; defendant shot husband
repeatedly and received life sentence); State v. Woods, 307 N.C. 213, 297 S.E.2d 574
(1982) (defendant was having affair with married woman who asked defendant to “rig
up” her husband’s death; defendant shot husband in the head and, pursuant to a plea
agreement, received a term of incarceration); State v. Harris, 333 N.C. 543, 428 S.E.2d
823 (1993) (defendant was having affair with married woman and lovers planned to kill
the husband; defendant choked husband to death and received life sentence); State v.
Collins, 345 N.C. 170, 478 S.E.2d 191 (1996) (husband asked defendant to kill wife for a
“cut” from life insurance proceeds, defendant is found guilty of first degree rape,
conspiracy to commit murder, and first degree murder on the basis of premeditation and
deliberation and sentenced to life); State v. McKeithan, N.C. __., 537 SE.2d 526
(2000); State v. Lee, 140 N.C.App. 384, 539 S.E.2d 696 (2000) (unpublished); and State
v. Brewington, 352 N.C. 489, 532 S.E.2d 496 (2000) (male and female codefendant were
lovers who plotted murder of two of the male codefendant’s relatives for insurance
money; murder was committed by defendant and female codefendant, both of whom
received life sentences; male codefendant who was not present and did not physically
participate in murder received death sentence). See also newspaper clippings on State v.
Cole (defendant and lover plan murder, defendant solicits two others to assist in killing
but personally kills victim, defendant receives life sentence); State v. Johnson and State v.
Kemmerlin (married woman having affair plans with her lover the killing of husband for
life insurance proceeds, lover commits murder and receives life sentence while wife who
was not present at crime scene is sentenced to death); State v. Watkins and State v.
Carruth (man hires another to kill his pregnant wife, killer fires five shots, three of which

struck the victim, State offers plea to triggerman for life sentence in exchange for
testimony at capital trail of defendant who planned the murder).

In addition, the Supreme Court of North Carolina has said that the fact that a
defendant in a particular case was not the actual shooter of the victims does not
necessarily mean that the defendant is any less culpable. State v. Lemons, 348 N.C. 335,
377, 501 S.E.2d 309 (1998) (case involving three defendants, evidence suggested that
defendants who actually shot the two victims were sentenced to life). Similarly, in State
y. Bonnett, 348 N.C. 417, 502 S.E.2d 563 (1998), four men were charged with homicide.
One pled to lesser charges while three were convicted of first degree murder. The
shooter received a life sentence. In State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987),
the Supreme Court of North Carolina found the death sentence excessive despite the
jury’s finding and sufficient evidence of the fact that the defendant delivered the fatal
blows that killed the victim. In short, the fact that Robert wielded the knife does not
mean that he is any less deserving of a life sentence than Bonnie Clark, the one who
planned, persisted, and participated in the offense.

No North Carolina death sentence has been found disproportionate since 1988.
Former Chief Justice Exum has said that, for many years while he was a member of the
Supreme Court of North Carolina, the court struggled in its proportionality review to
search out evidence of capriciousness or discrimination. The court hoped sensibly to
reserve the death penalty for those cases that are the most heinous, the most awful.
However, Justice Exum confessed, “Toward the end of my career on the court, I gave up
on the idea of ever being able to do that with any rationality.” Kytle, Calvin & Pollitt,
Daniel H., Editors, Unjust in the Much, The Death Penalty in North Carolina, Chestnut
Tree Press (1999) at 42.

An examination of capital punishment in North Carolina found that no case better
illustrated the “arbitrary nature of the death penalty” than this one. “The Death Lottery,”
Independent Weekly, October 13-19, 1999. An editorial in the Jacksonville Daily News
recently pointed to Robert’s case as “another inequity” on North Carolina’s death row.
The editorial noted the disparate treatment of Bonnie Clark and Robert and asked, Equal
justice for all?” The answer: “Not really.”

Many of the state and federal judges who have reviewed this case have found
serious constitutional error and unfairness. Former Chief Justices Exum and Frye found
Robert’s death sentence manifestly unfair even though the record they examined did not
include significant mitigating evidence that was never presented to the jury.

In 1999, Governor James B. Hunt, Jr. commuted the death sentence of Wendell
Flowers. Governor Hunt noted that Flowers and three other men were charged in the
case. However, only Flowers received the death penalty. The Governor said it was
“clear as a bell that Flowers did not kill [the victim] alone. None of the other participants
in the crime received the death penalty.” Governor Hunt concluded that “the right and
fair thing to do is to commute Wendell Flowers’ sentence to life in prison without
parole.”
As in the Flowers case, the prosecution here argued different theories of moral
culpability in Robert’s case and in codefendant Bonnie Clark’s case. At Bonnie Clark’s
trial, the prosecution said Robert was “only a pawn.” In Robert’s case, however, the
prosecution argued to the jury that Robert was “a leader and an organizer.” The assistant
district attommey who tried both cases expressed the view that Robert and Bonnie Clark
deserved the same sentence. However, in subsequent appeals, the State took the position
that Robert was more culpable and therefore more deserving of the death penalty.

The State also argued different theories of motive. In Bonnie Clark’s case, the
State argued that she killed for money and that all Robert wanted was to be with Bonnie
Clark. But in Robert’s case, the State argued that Robert killed “purely” for money.

These are precisely the sorts of inconsistencies that plagued the Flowers
prosecution and led Governor Hunt to say it was “not clear exactly what role Flowers
actually carried out.”

The facts here are even stronger for clemency than they were in Flowers. Flowers
was “a very dangerous criminal who was already serving a life sentence for the vicious
killing of an elderly shop owner in Wilkes County.” His capital offense involved the
murder of a fellow prisoner. In stark contrast, Robert is not dangerous; he is on death
row for his first and only criminal conviction.

The disparity between Bonnie Clark’s life sentence and Robert’s death sentence
can be explained in two ways. One explanation is that Bonnie Clark’s attorneys did a
better job of presenting to the jury the abuse that led to the crime. This critical evidence
helped jurors understand the context of the murder and thereby mitigate Bonnie Clark’s
actions. In addition, this evidence showed that Bonnie Clark had mixed motives and that
she did not kill for money alone. The other explanation is racism. A comprehensive
statistical study of homicide cases in North Carolina between 1993 and 1997 shows that
the rate of death sentences for a person of color charged with capital murder for the
killing of a white victim is more than twice the rate for a white defendant charged with
killing a white victim. Jurors in this case admitted that they held Robert’s race against
him when deciding punishment.

Whether a person faces execution or life imprisonment without parole cannot
depend on the quality of representation. Nor should imposition of the death penalty turn
on the race or gender of the perpetrator and victim. The Governor has the opportunity to
examine the entire record in this case and to correct what would be an extreme
miscarriage of justice: the execution of Robert Bacon, Jr. The Governor must act to
ensure fairness in this case and commute Robert Bacon, Jr.’s death sentence to life
imprisonment without parole.
RACE DISCRIMINATION HAS TAINTED THIS CAPITAL PROSECUTION

Robert Bacon, Jr., was sentenced to die for the killing of his girlfriend’s estranged
husband, Glennie Clark. Bonnie Clark was also convicted of first degree murder, but she
was sentenced to life imprisonment. Robert is African-American; Bonnie and Glennie
were both white. Just before the stabbing, Glennie Clark called Robert a “nigger.”

The United States Supreme Court has observed that, in a capital case, “there is a
unique opportunity for racial prejudice to operate but remain undetected.” Turner v.
Murray, 476 U.S. 28, 35 (1986). This is because jurors in a death penalty case are called
upon to make a “highly subjective, unique, individualized judgment regarding the
punishment that a particular person deserves.” 476 U.S. at 33-34. The court
acknowledged that a juror who harbors racial prejudice might well be influenced by those
beliefs in deciding that a defendant’s crime is more deserving of the death penalty. Jd. at
35. “It remains an unfortunate fact in our society,” wrote the court, “that violent crimes
perpetrated against members of other racial or ethnic groups often raise [a reasonable
possibility that racial prejudice would influence the jury].” Jd, fn. 7 (brackets in
original). Consequently, the court ruled that, when a capital defendant is charged with an
inter-racial crime, the accused is constitutionally entitled to question jurors carefully so as
to ensure that racial prejudice does not infect the capital prosecution. /d. at 36-37.

Robert’s case was one in which there was a “unique opportunity for racial
prejudice to operate.” Not only was the victim white and the defendant black, but the
homicide was immediately preceded by the victim’s use of an incendiary racial epithet.
In addition, Robert had violated an age-old taboo: he was romantically involved with
Bonnie Clark, a white woman. Individuals questioned during jury selection at the
resentencing hearing were asked what they remembered about the crime. It is telling that
one prospective juror, who remembered little about the case, immediately noted, “I know
that the man that was killed was a white man, and his wife was also white; I do remember
that.”

There was not only an opportunity for racial prejudice to operate in this case; in
fact, racial prejudice did operate in this case. he Charlotte Observer noted, “Few N.C.
death penalty cases in recent history have been as thoroughly suffused with racial issues
and tensions as the Robert Bacon case.” First, people of color were systematically
excluded from the jury. Robert was convicted and sentenced to death by an all-white jury
in 1987. The death sentence was vacated by the Supreme Court of North Carolina and
the case remanded. Robert was resentenced to death by an all-white jury in 1991.

Robert’s trial and resentencing hearing were held in Onslow County which has a
population that is approximately 20 percent African-American. Before Robert’s 1987
trial, trial counsel filed a motion to prohibit the prosecutor from dismissing African-
American jurors. Robert’s attorneys argued in their motion that the District Attorney had
shown “a pattern of discrimination against black jurors” by excusing them in death
penalty cases. The trial judge denied the motion.
Forty-two citizens were called and questioned for jury service in the 1987 trial.
Of these, only four were African-American. The trial judge found two of these were not
qualified to serve and dismissed them. Over defense objection, the State dismissed the
other two. The prosecutor gave as reasons for dismissing the two jurors the criminal
record of one juror and the jurors’ views on the death penalty. The defense pointed out
that there was no evidence of the juror’s criminal record and disputed the prosecutor’s
characterization of the jurors’ views on the death penalty. In addition, defense counsel
stated that the prosecutor’s manner of questioning with one of the African-American
jurors was different from his questioning of white jurors.

On appeal, counsel assigned error to the prosecutor’s use of peremptory
challenges to remove African-American jurors. However, counsel did not brief the issue.

During jury selection in the 1991 resentencing hearing, 48 jurors were called and
questioned. Another 20 jurors were questioned during the selection of alternates. Of
these, the trial court found that there were three qualified minority jurors: an Affican-
American man, a Hispanic man, and a Hispanic woman. The State dismissed all three
people of color. The defense objected to the dismissal of the African-American juror and
the prosecutor stated that he excused this juror because of his criminal record. Defense
counsel did not object to the dismissal of the two Hispanic jurors.

On appeal, counsel assigned error and briefly argued that the prosecutor
improperly removed the African-American juror because of his race. The Supreme Court
of North Carolina summarily denied relief. In state post-conviction proceedings, counsel
argued that the State’s dismissal of all persons of color in both capital proceedings
constituted a pattern of purposeful discrimination under Swain v. Alabama, 380 U.S. 202
(1965). This claim was summarily denied by the state and federal courts.

Regardless of whether the State was within its legal rights in removing jurors of
color, the fact remains that Robert Bacon, Jr. was never judged by a jury of his peers.
Not one of 24 jurors who convicted or sentenced him had a personal understanding of
what it meant or how it felt to be called a “nigger” by an angry, drunk white man in the
confines of a small automobile.

Even more troubling than the racial make-up of the jury is the fact that racial bias
infected the deliberations on whether Robert Bacon, Jr. should live or die. In interviews
conducted by post-conviction counsel, jurors admitted that they improperly considered
race. At trial, jurors made racial jokes. During deliberations at the resentencing hearing,
jurors held it against Robert that he was romantically involved with a white woman. And
because the State had excluded all jurors of color, there was not one African-American
juror to object to these improper racial comments.

Jurors were reluctant to discuss these matters. On one occasion, a juror initially
denied that racial comments. were made during the penalty phase deliberations, but then
admitted that, in fact, such comments had been made. No jurors were willing to sign
affidavits attesting to the facts they described to counsel. Nevertheless, counsel presented
this claim to the courts. Unfortunately, the State successfully opposed Robert’s efforts to
obtain an evidentiary hearing on these allegations, and the courts denied relief on this
claim.

Legislation pending before the N.C. General Assembly provides that no person
“shall be subject to or given a sentence of death that was sought or obtained on the basis
of race.” This legislation, which would apply retroactively, would permit a defendant to
establish that race was a basis for the death sentence by presenting testimony of members
of the criminal justice system.

However, in this case, all of the courts refused to conduct an evidentiary hearing.
The courts ruled that testimony from jurors concerning their improper consideration of
race in determining punishment was inadmissible.

The fact that racial prejudice played a part in determining Robert’s punishment is
an inescapable conclusion when one considers that the white codefendant who
masterminded the murder and pushed Robert to do it was sentenced to life.

Numerous studies have shown that the statistical likelihood of being sentenced to
death is much greater if the victim is white. A study by researchers at the University of
North Carolina in Chapel Hill entitled “Race and the Death Penalty in North Carolina, An
Empirical Analysis: 1993-1997” was released on April 16, 2001, and reported in The
New York Times, The Washington Post, Chicago Tribune, national wire services, and
newspapers throughout North Carolina. The study shows that when a homicide victim is
white, the risk of a death sentence is increased 3.5 times. In addition, the study showed
that, when minorities murdered whites, the death sentencing rate was 6.4 percent. When
whites murdered whites, the rate fell to 2.6 percent. Thus, the chances that a minority
defendant who kills a white victim will receive the death penalty are nearly two and one
half times greater than the chances that a white defendant who kills a white victim will
face execution. After reviewing the study, former Chief Justice Exum stated that the
study constituted powerful evidence that race does play a part in the administration of the
death penalty that the legislature never intended.

In a report requested by the General Assembly’s Legislative Research
Commission, and prepared by the N.C. Academy of Trial Lawyers, Robert’s case was
highlighted as an example of the pernicious effect of racial prejudice on the
administration of the death penalty in North Carolina. This report was made part of the
record of the Legislative Research Commission.

A recent examination of the role race plays in the application of the death penalty
also featured Robert’s case. Wissink, Stephen, “Race and the Big Needle,” Spectator,
March 7-13, 2001 {also reprinted on AlterNet.org). The Spectator story noted that Robert
was.sentenced to death for killing a white person and then said that if the victim had been
black, the “odds were extremely good that [Robert] would have been sentenced to live.”
North Carolina has executed 17 prisoners. Twenty-two of the twenty-four victims were
white.
Concerns about the effect of racial bias on this prosecution have prompted the
NAACP to call for clemency in this case. The Chairman of the Board of Directors of the
NAACP, Julian Bond, has written, “The disparity in the punishment of Bonnie Clark and
Bacon shows that capital punishment in the United States has not yet overcome its history
of racism and inequality.” The Onslow County Branch of the NAACP has also called for
clemency in this case on the grounds that equal justice under the law must not be
compromised. Similar concerns have prompted the N.C. Legislative Black Caucus to
urge clemency for Robert.

The Inter-American Commission on Human Rights, an agency under the auspices
of the Organization of American States, has also urged a stay of execution. The
Commission has requested a stay in order to conduct a full review of Robert’s claims of
racial bias.

In this case, Bonnie Clark hatched the plot to kill her husband. Jurors found that
Bonnie Clark dominated Robert and manipulated him into committing the killing. Yet,
Bonnie received a life sentence. Racism is one explanation for the disparity in
punishment.

The people of North Carolina have declared that “they will not tolerate the
corruption of their juries by racism, sexism and similar forms of irrational prejudice.”
State v. Cofield, 320 N.C. 297, 302, 357 S.E.2d 622, 625 (1987). We cannot be assured
in this case that racial prejudice did not infect the jury’s decision to sentence Robert
Bacon, Jr. to die. The Governor now has the opportunity and obligation to demonstrate
the truth of axiom proclaimed in Cofield, and to commute the death sentence to life
imprisonment without parole.
LAW ENFORCEMENT OFFICERS SUPPORT CLEMENCY IN THIS CASE

Three officers involved in the investigation of this case believe that the execution
of Robert Bacon, Jr. would be unfair. Two of the officers, Dennis Dinota and J.J.
Phillips, have given affidavits attesting to their view that Robert’s death sentence is unfair
in light of Bonnie Clark’s life sentence. A third officer, who has requested not to be
identified publicly, recently told counsel with regard to Robert’s execution, “I just don’t
see that as fair.” This officer also noted that Bonnie Clark was the reason for the murder
because the crime “wouldn’t have happened without her.”

Dennis Dinota is retired from the Jacksonville Police Department. Mr. Dinota is a
20-year veteran of the United States Marine Corps and worked in law enforcement for
more than two decades. He was awarded the Silver Star, the Bronze Star for Heroic
Achievement, a Battle Field Commission, and two Purple Hearts. Mr. Dinota is a
proponent of the death penalty. As part of the homicide investigation in this case, Mr.
Dinota interviewed Bonnie Clark. He thinks that it is unfair to execute Robert because
Bonnie Clark was at least as guilty as Robert and she received a life sentence.

J.J. Phillips has been with the Jacksonville Police Department since 1976, and is
still on the force. He found the body of Glennie Clark and testified at the Bacon and
Clark trials. Officer Phillips believes that Bonnie Clark pushed Robert to commit the
crime and that it is not fair to execute Robert.

The third officer has agreed to speak privately with the Governor’s representative
concerning this case.

Counsel knows of no other N.C. capital case since reinstatement of the death
penalty in which law enforcement authorities involved in the investigation of the capital
offense have voiced support for clemency.
ROBERT BACON, JR.’S DEATH SENTENCE IS UNFAIR
BECAUSE THE JURY DID NOT HEAR ALL OF THE
RELEVANT EVIDENCE CONCERNING ROBERT’S MOTIVE

Glennie Clark’s emotional and physical abuse of his wife Bonnie Clark was the
impetus leading to the capital offense in this case. The police officer in charge of the
investigation of the crime put it this way, at the conclusion of his interview with Robert:

I know you regret it’s happened, too. Like I say, you know, I know
Bonnie had a lot of ill feelings for this man because he caused a lot of
heartache in her life and I’m sure you love her like you told us you did,
and we talked about that at the house. Sometimes what a man will do for
a woman, and I know I regret that it had to come to this. I never met her
husband, but from what she told me, it was a very sordid affair. Sad
affair. It is. It is sad.

Evidence at Bonnie Clark’s trial documented her husband’s substantial and
sustained abuse and the alcoholism that precipitated it. Moreover, the worse things got
between Bonnie Clark and her husband, the more she confided in Robert. According to
testimony introduced at the Bonnie Clark trial, Robert hated Glennie Clark as much as
Bonnie Clark did. Evidence showing that the killing of Glennie Clark was not simply a
cold-blooded murder for money meant the difference between a death sentence and life
imprisonment for Bonnie Clark. However, at the resentencing hearing in this case, the
jury learned very little about the relationships between Bonnie and Glennie Clark,
between Bonnie Clark and Robert, and, ultimately, between Robert and Glennie Clark.
These relationships were clearly relevant and helped to explain what led Robert to
commit the offense. In addition, these relationships mitigated Robert’s actions.

The State read into the record Robert’s testimony from the first sentencing
hearing. That testimony contained a single reference to the fact that Bonnie Clark had
told Robert that her husband was always drinking and abused her and the children. Little
evidence was presented showing that Robert killed for reasons other than money. The
jury learned from Robert’s testimony that Glennie Clark had called him a “nigger” before
the stabbing. The only other evidence related to motive came from a psychiatrist. This
psychiatrist was not certified in forensic psychiatry, a fact capitalized on by the
prosecutor. See State v. Bacon, 337 N.C. 66, 95-96, 446 S.E.2d 542, 557 (1994)
(discussing prosecutor’s impeachment of defense expert).

The psychiatrist had reviewed Bonnie Clark’s testimony but had very little
information about Robert’s background. Even more importantly, following an objection
from the prosecutor, the trial judge instructed the jury not to consider what little
testimony there was about Robert’s history as substantive evidence. This instruction also
applied to the testimony about Bonnie Clark’s problems with her husband. Thus,
although the psychiatrist told the jury that Robert had a history of “becoming involved in
[sic] people that were in need of assistance” and that Robert presented a “picture of trying
to help rescue Ms. Clark from her reported abuse by her husband,” there was no evidence
before the jury documenting the history of Glennie Clark’s abuse.

Resentencing counsel promised in his opening statement to present evidence
showing that Glennie Clark was a severe alcoholic, that when he drank he became
extremely abusive, and that he had a .31 blood-alcohol-level on the night of the offense.
However, counsel never even attempted to present that evidence to the resentencing jury.

In addition, counsel promised in his opening statement to present evidence that
the last thing Robert told Bonnie Clark after he killed Glennie Clark was that he loved
her. This evidence was never presented to the jury either. The failure to deliver on this
promise served only to highlight the significant absence of evidence about Glennie
Clark’s alcoholism and abuse and the role that these factors had on Bonnie Clark’s ability
to dominate and manipulate Robert.

At the resentencing hearing, the prosecution argued strongly that Robert’s sole
motivation was pecuniary gain. In addition, the prosecutor belittled the notion that
Glennie Clark harassed or otherwise bothered Robert and Bonnie Clark. Elsewhere,
however, the State has acknowledged that Robert’s motive was not solely monetary. At
Bonnie Clark’s trial, District Attorney William H. Andrews argued this in opening
statement:

The idea originated in her mind. She had more reasons to have him killed
than Robert Bacon. Robert Bacon had what he wanted X her. Money was
the main reason she wanted him dead.

The jury’s failure to consider the plentiful evidence that Robert killed Glennie
Clark for reasons other than money was plainly prejudicial. The jury that heard this
evidence X Bonnie Clark’s jury X rejected the pecuniary gain aggravating circumstance,
despite the fact that the insurance policies were in Bonnie Clark’s name. That same jury
also rejected the death penalty.

At the resentencing hearing, the State presented Robert’s testimony from the
previous sentencing hearing. At that time, Robert testified that he did not love Bonnie
Clark. He also stated that he had no affection for the children. These statements were
not credible. The night Robert was arrested, and at the end of his interrogation, Robert
asked to see Bonnie and told law enforcement officers that he loved Bonnie. In addition,
Bonnie Clark testified at her trial that Robert “always treated the kids really good, like he
was their father.” She went on to say that he used to tuck them into bed at night and got
along with them “real well.” Elsewhere in her testimony, Bonnie Clark attempted to
place responsibility for the murder on Robert. It is obvious in her testimony that she was
trying to help herself and was decidedly not trying to help Robert. Consequently, her
statements about Robert’s good relationship with her children have added weight.

Prior to meeting Bonnie Clark, Robert had never been in trouble before. Had he
never met Bonnie Clark, Robert would not have faced capital murder charges.
Consequently, it is understandable how, at the time of his trial, he would feel angry and
bitter about ever being involved romantically with Bonnie Clark. It is telling that Bonnie
Clark also downplayed her feelings for Robert. Shortly after her arrest, Bonnie sent a
note to Robert saying that the situation they were in was her fault. She also sent a
message to Robert saying, “I still love you with all my heart.” Nonetheless, at trial, when
asked whether she had loved Robert, Bonnie Clark stated, “possibly.” To the question of
whether she loved him then, she said she didn’t know. The jury that heard all of the
evidence concerning Glennie Clark’s abuse of Bonnie Clark and how that abuse drove
Robert and Bonnie Clark together was able to see that, in fact, the murder of Glennie
Clark was not simply a cash proposition. Robert’s jury did not have that same
opportunity.

In addition, if the jury had heard this evidence but nonetheless imposed a death
sentence X because of Robert’s race, for example X this evidence would have made a
significant difference on appeal. The faimess and proportionality of Robert’s death
sentence was hotly contested in the Supreme Court of North Carolina. A four-two
majority declined to find Robert’s death sentence disproportionate because it believed
that Robert killed for money and was not motivated by reports of continuing physical
abuse and threats against his lover by her husband. See State v. Bacon, 337 N.C. 66, 114,
446 SE.2d 542, 568-69 (1994) (distinguishing State v. Gladden in proportionality
analysis). Had the substantial, available evidence of Robert’s knowledge of Glennie
Clark’s abuse of his wife and their children been presented at his resentencing hearing, it
is very likely that the Supreme Court of North Carolina would have vacated Robert’s
death sentence as disproportionate.

The following chart illustrates the wealth of evidence the resentencing jury never
heard about the circumstances of the crime.
Evidence the Jury Never Heard Showing that Glennie Clark’s Abuse
of Bonnie Clark and Their Children Motivated the Crime

Bonnie Clark felt she could talk to Robert about anything and she confided in him about
all the problems she was having. For Bonnie Clark, the worse things got with Glennie
Clark, the better things were with Robert.

Robert knew how miserable Bonnie Clark was and he hated Glennie Clark for the things
Glennie Clark did to Bonnie Clark.

Robert was the only one Bonnie Clark told about her problems with Glennie Clark. She
was too ashamed to tell her family.

Robert was aware of numerous instances when Glennie Clark had physically abused
Bonnie Clark.

For example, Robert knew that, on one occasion, Glennie Clark smashed Bonnie Clark’s
head against a kitchen cabinet and held a knife to her throat.

Another time, while Glennie Clark was supposed to be watching his son, he passed out
and the little boy injured himself so badly that he had to go to the hospital and received
six stitches in his head.

When he was drinking, Glennie Clark was violent and he would be mean to the children.
As a result of the way he acted when he was drinking, the children were afraid of Glennie
Clark and Bonnie Clark did not trust Glennie Clark with the children.

There were times when Glennie Clark forced himself sexually on Bonnie Clark.

On a number of occasions, Glennie Clark threatened to kill Bonnie Clark. Glennie Clark
told Bonnie Clark that, if she ever went with another man, he would kill her.

‘When Glennie Clark was drunk, he was violent and physically abusive, on the night of
the offense, Glennie Clark’s blood-alcohol-level was .31

Shortly after her arrest, Bonnie Clark sent a note to Robert saying that the situation they
were in was her fault.

ROBERT BACON, JR.’S DEATH SENTENCE IS UNFAIR
BECAUSE THE JURY NEVER HEARD COMPELLING MITIGATING
EVIDENCE ABOUT ROBERT’S BACKGROUND

Robert was charged with first degree murder in February of 1987. Three months

later, the case went to trial. Trial counsel’s investigation of Robert’s background and
history consisted of a single weekend trip to Ayer, Massachusetts, where Robert spent
many of his growing up years. After the Supreme Court of North Carolina ordered a new
sentencing hearing, the same attorneys were appointed to represent Robert. They
conducted no new investigation of Robert’s background. That bears repeating: counsel
conducted no new investigation for sentencing despite the fact that the only issue was
whether Robert would live or die. The presentation by defense counsel the first time was
obviously not enough to persuade a jury to return a life sentence, yet counsel conducted
no new investigation. The result is that Robert’s defense at resentencing was based on
investigation plagued by the following problems:

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Counsel devoted one weekend prior to trial to investigating Robert’s family
history.

Counsel interviewed potential witnesses in the presence of the assistant district
attorney charged with seeking Robert’s execution.

Counsel interviewed friends and family members for about five minutes each.

the only time counsel met with potential witnesses outside the presence of the
prosecutor was in a group setting.

Counsel did not go to Robert’s schools because they were closed over the
weekend.

Counsel never interviewed any of Robert’s teachers and never obtained any of his
educational records.

Although counsel had secured Robert’s prison records for the resentencing
hearing, and although these records showed that Robert was a model inmate,
counsel failed to use these records to rebut the State’s argument of future
dangerousness.

Counsel did not contact Robert’s family concerning the need to testify at
resentencing.

Other than securing funds for a psychiatrist who was not certified in forensic
psychiatry, counsel did nothing more to prepare. At resentencing, following an
objection from the State that was sustained by the trial judge, the psychiatrist’s
testimony about Robert’s family history was not admitted as substantive evidence.
Counsel presented no substantive evidence from lay witnesses concerning
Robert’s background and history; instead, counsel presented four-year-old
videotaped interviews of witnesses in Massachusetts rather than bringing live
witnesses to court.

Significantly, counsel admitted to Robert’s post-conviction attorneys that he had
no informed strategic or tactical reason for not contacting Robert’s family regarding the
resentencing hearing, for not interviewing teachers or securing educational records, and
for not presenting evidence of Robert’s positive adaptation to incarceration.
Unfortunately, as a consequence of these deficiencies, the jury that sentenced Robert
Bacon, Jr. to death was ignorant of many vital facts.

One of the three Fourth Circuit judges who reviewed this case questioned the
constitutionality of Robert’s death sentence in light of the fact that counsel did not
present substantial, available mitigating evidence to the jury. Judge King was
particularly concerned that no court had ever allowed Robert’s post-conviction attorneys
to present this evidence at a hearing.

At the resentencing hearing, defense counsel presented a videotape consisting of
several interviews with neighbors in Ayer. These interviews are brief and superficial.
One gathers that the participants, although well-meaning, did not know Robert very well.
Even those witnesses who did know Robert well appear as if they did not. Overall, the
videotape is hardly compelling. Supplementing the videotape, counsel presented the
testimony of a psychiatrist. As mentioned in the previous section, this psychiatrist also
had little information about Robert. In addition, the jury was told not to treat the
psychiatrist’s limited testimony about Robert’s background as substantive evidence. The
State did a masterful job cross-examining the psychiatrist, revealing among other things
that he had failed the examination to be licensed as a forensic psychiatrist. Then the
defense presented brief testimony from Robert’s sister. All told, the defense did not
present a strong case for life. The jury nevertheless found some substantial mitigating
factors. Importantly, these were supported by the prosecution’s evidence.

Resentencing counsels’ failure to develop mitigating evidence is particularly
troubling in this case because there was substantial evidence that could have been
presented. As described in Judge King’s dissent and other documents attached to this
Petition, the evidence included:

S Robert was eight months old when he first saw his father, a member of the armed
services who was frequently stationed overseas. Until Robert was nine years old,
he had very little contact with his father.

IA

Economic circumstances compelled Robert’s mother to work when he was a
child. Robert was left in the care of his older half-brothers, who often inflicted
physical pain on their younger siblings. Robert and his sibling were often forced
to fight each other for the entertainment of these old boys, one of whom was
ultimately sent to reform school.

IA

IA

IA

IA

IA

IA

IA

IA

IA

IA

Robert’s father was an alcoholic. His children rarely saw him without his pint of
alcohol. Robert’s father would leave his children in the car while he went to bars.

Robert’s parents had an extremely unhappy and tense marriage. The bitterness in
the marriage affected Robert, who became a chronic nail-biter.

Robert’s father engaged in numerous adulterous affairs.

When Robert was still quite young, his mother sought his advice on family
problems, including his father’s adultery and other sensitive subjects.

Robert’s mother encouraged him to eavesdrop on his father’s telephone calls and
she informed Robert of her plan to investigate his father’s adultery. Robert’s
mother also encouraged Robert to listen in on conversations in which his father’s
girlfriends would berate and curse Robert’s mother.

These family problems were a source of anxiety for Robert, who experienced bed-
wetting until he was fourteen years old. Robert’s bed-wetting, which occurred
almost nightly, was a significant source of shame. Robert’s school performance
also took a dramatic downturn after he first learned of his father’s affairs.

Robert saw various incidents of his father’s physical abuse of his mother. For
example; on one occasion, when Robert’s mother confronted his father, Robert’s
father drove his car down the driveway, dragging Robert’s mother behind him.

Robert’s teachers recalled how he once intervened to stop a fight in the school
cafeteria and how he did not like it when kids picked on other kids.

Like Robert’s mother, Bonnie Clark confessed her marital problems to Robert and
sought his help. Robert knew of numerous incidents when Glennie Clark
physically abused Bonnie, including a time when he smashed her head against a
cabinet and held a knife to her throat.

Robert was good to Bonnie Clark’s children and she trusted him to watch them.
He did things with the children and tucked them into bed at night.

These circumstances of Robert’s background “uniquely mirror[ed] the

circumstances surrounding the crime.” Bacon v. Lee, 225 F.3d 470, 493 (4" Cir. 2000)
(King, J., dissenting). This evidence showed that in his own family and in his
relationship with Bonnie Clark, Robert served as the confidant for an abused woman.
Further, this evidence showed that, when faced with these circumstances, Robert “was
manipulated to take steps he otherwise might not have taken.” Jd.

There was a substantial difference between this evidence and the general

character evidence presented at the resentencing hearing. The jury deliberated for close
to six hours in this close case. Had it been presented, the jury likely would have imposed
a life sentence.

The evidence presented in support of the death penalty in this case was weak.
The sole aggravating factor submitted in this case was that the murder was committed for
pecuniary gain, N.C.G.S. 315A-2000(e)(6). Prior to the Supreme Court of North
Carolina’s 1994 decision in Robert’s case, no death sentence based on this single
aggravating circumstance had been sustained in North Carolina. In the previous 14 cases
in which pecuniary gain was the sole aggravating factor, juries had returned life sentences
in 12 cases and the Supreme Court of North Carolina had found the other two death
sentences to be disproportionate. State v. Bacon, 337 N.C. at 66, 128, 546 S.E.2d 542,
577 (1994) (Exum, C.J., and Frye, J., dissenting).

Legislation pending before the N.C. General Assembly would eliminate the
pecuniary gain aggravating circumstance.

The evidence of pecuniary gain was weaker in this case than in many of the 14
cases where juries found (e)(6) but imposed a life sentence. See eg., State v.
Quesinberry, 325 N.C. 125, 381 S.E.2d 681 (1989) (defendant bludgeoned shop clerk to
death by striking him with a hammer in order to steal $545 from a country store); State v.
Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988) (defendant repeatedly stated his intention
to “kill that son-of-a-bitch and rob him”); State v. Murphy, 321 N.C. 738, 365 S.E.2d 615
(1988) (defendant broke into home of 69-year-old woman for whom he had done odd
jobs, struck her in the head fracturing her skull, and stole her checks, one of which he
cashed for $475).

The State’s theory at trial was that Robert committed the offense in order to share
in the proceeds of the victim’s life insurance policy. The theory was based on the
following admission Robert made at 7:14 a.m., after Robert had been up all night and had
been interrogated for nearly six hours:

Did she at any time offer you any money?

A. No.

Q. How about insurance money?

A. Together.

Q. In other words, O.K., but together you all finally would have a life
together and the money would have been both [sic] of you?

A. Yes.

The evidence of Robert’s monetary motive was undeniably weak. In fact, the
State argued at Bonnie Clark’s trial that, while Bonnie Clark wanted the money, “Robert
Bacon had what he wanted X her.” Even more troubling is the fact that the jury did not
hear other, substantial evidence that would have further weakened the State’s case for
death. The following chart illustrates the weakness of the State’s evidence in

aggravation.

Evidence Presented at Robert’s Trial
Concerning the Life Insurance Policy

Evidence the Jury Never Heard about
the Life Insurance Policy

Glennie Clark had a life insurance policy
worth $50,000, with Bonnie Clark named
as the beneficiary.

Robert testified that he knew there was an
insurance policy but denied that there was
a plan to kill Glennie in order to receive the
insurance proceeds.

Robert admitted that he had told the police
that the insurance money “would have
been ours.” He also admitted that the
police had next asked him whether -he
meant his and Bonnie Clark’s and he said
yes. (No details of the circumstances
under which Robert made __ this
admission were before the jury.)

The only time Bonnie ever discussed the
insurance policy in Robert’s presence was
when she was joking with her housemates
about how, if Glennie never came back
from overseas, she would be rich

Bonnie Clark testified at trial that she did
not know if the life insurance premiums
had been paid or whether the policy had
lapsed and, in fact, she assumed that the
policy had been cancelled.

Bonnie did not know the amount on the
policy and learned only after she was
arrested that it was for $50,000.

Bonnie emphatically denied ever talking
with Robert about the insurance money.
She was equally emphatic in denying that
Robert had ever talked about the insurance
money.

Bonnie Clark’s jury heard that Bonnie Clark had admitted to law enforcement

authorities that the subject of Glennie Clark’s life insurance had come up in conversation
with Robert. Her jury also heard other evidence related to the insurance policy.
Nonetheless, Bonnie Clark’s jury did not find the pecuniary gain aggravating
circumstance and Bonnie Clark received a life sentence.

Resentencing counsels’ failure to investigate their case made the difference
between life and death. The jury did not have before it all of the evidence relevant to
punishment. The Governor is in a unique position to decide the appropriate sentence in
this case, based on all of the relevant evidence. An examination of all of that evidence
clearly tips the scale in favor of life imprisonment without parole.
When Robert was asked about insurance
he admitted it would be his and Bonnie’s

< Robert was emotionally abused and
neglected by his alcoholic father
<Robert’s father’s infidelity had a
devastating effect on Robert
< Robert witnessed acts of physical
violence between his parents
< Tension at home led to Robert’s
bed-wetting and poor school performance
< Robert’s relationship with Bonnie and Glennie
Clark mirrored the relationship between
Robert and his parents
< Bonnie Clark was able to manipulate
Robert the same way his mother did
< Robert knew of and hated Glennie Clark’s
abuse of Bonnie Clark and her children
< At the time of the offense, Glennie Clark
was drunk and called Robert a “nigger”
< As a student, Robert had a strong
sense of faimess and acted to protect
others, even in the face of danger
< Robert’s behavior while incarcerated
demonstrates that he responds positively
to a structured environment
< Robert aided the police in apprehending
another capital felon, Bonnie Clark
C Robert has no significant history of
prior criminal history
O Robert acted under the domination of
Bonnie Clark
OU Robert has no history of violent behavior
0 Robert’s character, habits, mentality,
propensities, and activities indicate he is
unlikely to commit another violent crime
1 Robert’s criminal conduct was the result
of circumstances unlikely to recur
Gi The initial idea for the plan that resulted in
the death of the victim was Bonnie Clark’s
0 Robert’s codefendant, Bonnie Clark, was
convicted of the same offense and was given a
life sentence
C Robert has shown remorse since his arrest
CO Robert’s family loves him and has con-
tinued to visit him while incarcerated and
will continue to do so

~

n

(A < indicates a mitigating circumstance not presented to the jury while a [1 indicates mitigating
circumstances submitted and found by the resentencing jury.)
THE DEATH SENTENCE IS UNFAIR BECAUSE THE JURY NEVER
LEARNED THAT ROBERT BACON, JR. PROVIDED VITAL ASSISTANCE TO
THE AUTHORITIES IN APPREHENDING BONNIE CLARK

The Supreme Court of North Carolina unanimously vacated Robert’s first death
sentence because the jury was precluded from considering constitutionally mitigating
evidence of a statutory mitigating factor. State v. Bacon, 326 N.C. 404, 390 S.E.2d 327
(1990). This factor, N.C.G.S. 315A-2000(f(8), provides that if the evidence shows that
the defendant aided in the apprehension of another capital felon, the jury must give that
circumstance weight in determining punishment. In Bacon I, the court held that the
evidence in the record supported submission of this mitigating factor and that the jury’s
failure to consider this factor prejudiced Robert. The evidence presented at the trials of
Robert and Bonnie Clark established the following facts:

According to testimony from the State’s witnesses, the police found the body of
the victim in his car shortly after 11 p.m. on February 1, 1987. Bonnie was seated next to
her deceased husband. Bonnie Clark awoke and told an Officer Phillips that two
unknown assailants had attacked her and her husband. She repeated this story at least
once at the scene. She told the story again to an Officer Waters, who transported her to
the hospital. She continued to tell the story to an Officer Dinota, who questioned her at
the police station. Asked to provide a written statement, Bonnie Clark wrote down this
false story. All of these officers believed Bonnie Clark and thought she was the victim of
a crime, and not a suspect.

Meanwhile, the police went to Bonnie Clark’s home around 1:20 a.m. that same
night to check on her children. Robert answered the door and, shortly thereafter, he
freely and voluntarily gave police a statement admitting that he had stabbed the victim
while Bonnie Clark drove the car. Robert also showed the officers the bloody clothes he
had been wearing during the offense. Law enforcement authorities immediately
telephoned the station. At approximately 3:05, after she had consistently lied for about
four hours, Bonnie Clark was arrested. Shortly thereafter, she confessed

Thus, the Supreme Court of North Carolina concluded in Bacon I:

The record reveals that on the night of the murder Bonnie Sue Clark told
the police that mysterious assailants had opened her car door and slammed
her head against the steering wheel thus rendering her unconscious. She
was unable to provide further information as to her assailants. After being
examined at the hospital, she reiterated her exculpatory statements and
reduced them to writing at the police station. See State v. Clark, 324 N.C.
146, 377 S.E.2d 54 (1989). At approximately the same time, defendant
told police officers that: He had been in the automobile with Bonnie Sue
Clark and the victim, Glennie Leroy Clark; the victim called him a
“nigger” and pulled a knife on him; he grabbed the knife from the victim
and stabbed him; and, all of this took place while Bonnie Sue Clark was in
the vehicle. It was at this point that the investigators first began to focus
on Bonnie Sue Clark as a possible accomplice in the murder.

State v. Bacon, 326 N.C. 404, 418-19, 390 S.E.2d 327, 335 (1990). The court went on to
conclude that the trial court had erred by not instructing the jury on the statutory
mitigating circumstance that Robert had aided in the apprehension of another capital
felon, N.C.G.S. 315A-2000(f)(8). The court then vacated Robert’s death sentence and
remanded so that this constitutionally mitigating evidence could be presented to the jury.

At resentencing, despite a “road map” from the state’s highest court, Robert’s
attorneys X the same lawyers who had represented him the first time X failed to present
available evidence supporting (£)(8). State v. Bacon, 337 N.C. 66, 100-101, 446 S.E.2d
542, 560 (1994).

In state post-conviction proceedings, Robert’s attorneys argued that counsels’
failure to present evidence of (f)(8) constituted ineffective assistance of counsel. Counsel
asked for an opportunity to present evidence of this violation of the Sixth Amendment
and Strickland v. Washington, 466 U.S. 668 (1984). The State argued that no hearing
was necessary and urged the court to deny relief summarily. In one sentence that
mentioned neither the Sixth Amendment nor Strickland, the post-conviction judge
concluded that Robert’s claim had no merit.

In federal court, the State continued to urge summary dismissal of the (f(8)
claim. However, United States District Judge W. Earl Britt ordered an evidentiary
hearing on the issue. At the hearing, two former officers of the Jacksonville Police
Department testified about the circumstances of Bonnie Clark’s arrest. In addition,
attorney Harold J. Bender of Charlotte testified as an expert witness. Mr. Bender
expressed his view that trial counsels’ failure to investigate and present the (f)(8)
evidence constituted ineffective assistance of counsel.

The State presented testimony from former District Attorney William H. Andrews
and three police officers. These witnesses attempted to ridicule the defense evidence of

O@®).

After conducting a hearing and taking evidence, the United States District Court
granted a writ of habeas corpus in this case. The court concluded that Robert’s attorneys
had rendered ineffective assistance of counsel in his resentencing hearing. Judge Britt
found that the testimony from the State’s witnesses “did not belittle the facts” supporting
(f(8). In addition, Judge Britt emphasized that the Supreme Court of North Carolina in
Bacon I had found that the evidence supported (f)(8). Judge Britt also noted the many
decisions by the state supreme court finding prejudicial error where the jury was not
required to consider a statutory mitigating circumstance supported by the evidence.

The importance of the evidence that Robert assisted the police in apprehending
Bonnie Clark cannot be overstated. The United States Supreme Court has observed with
regard to a criminal defendant’s cooperation with law enforcement authorities that:
Few facts available to [the sentencer] are more relevant to the likelihood
that a defendant will transgress no more, the hope that he may respond to
rehabilitative efforts to assist with a lawful future career, and the degree to
which he does or does not deem himself at war with his society. ~

Roberts v. United States, 445 U.S. 552, 558 (1980). A century before the decision
in Roberts, the Supreme Court expressed the view that, if an accomplice “behaves fairly
and discloses the whole truth, he may, by a recommendation to mercy, save himself.”
United States v. Ford, 99 U.S. 594, 599-600 (1878) (The Whiskey Cases). More recently,
the Supreme Court noted with regard to the federal court practice of giving lighter
sentences to those who provide substantial assistance in the investigation or prosecution
of another criminal that this factor is among the “most important offense and offender
characteristics” in determining punishment. Mistretta v. United States, 488 U.S. 361, 377
(1989).

As suggested in the Supreme Court case, the “judicial practice of sentencing more
leniently defendants who evidence contrition and cooperate with law enforcement
authorities” is well-established. U.S. v. Frazier, 971 F.2d 1076, 1084 (4th Cir. 1992).
Frazier forcefully explains that the longstanding practice of affording leniency to
cooperating defendants serves “legitimate societal interests.” Jd. When a defendant acts
on the “deeply rooted social obligation” to cooperate with authorities and aids in
apprehending other criminals, as Robert did, that defendant is “appropriately” given a
lesser punishment. Jd.

A recent death penalty case in Onslow County illustrates the point. Keith Cole
was convicted of capital murder in April of this year. The State’s evidence showed that
Mr. Cole and a codefendant planned the murder and that Mr. Cole actually carried it out.
A strong component of the case for life was Mr. Cole’s cooperation with law
enforcement authorities. As in this case, police officers met Mr. Cole by chance.
Authorities noticed a stain that looked like blood and asked about it. Mr. Cole
immediately confessed and implicated his cohorts. The trial judge submitted and the jury
found as a mitigating circumstance that Mr. Cole had aided in the apprehension of
another capital felon. Significantly, Mr. Cole was sentenced to life imprisonment. The
same result likely would have occurred had counsel in Robert’s case presented the
available evidence of (f)(8).

Clearly it was a mistake for Robert’s resentencing attorneys not to investigate and
present this vital evidence. Robert’s is the only North Carolina death penalty case in
more than a decade in which a federal court has found constitutionally inadequate
representation. See Brown v. Dixon, 891 F.2d 490 (4" Cir. 1989) (reversing district
court’s finding of ineffective assistance of counsel). The findings of Judge Britt were
fully supported by the evidence. As detailed elsewhere in this petition, by distorting facts
and ignoring North Carolina law, the United States Court of Appeals for the Fourth
Circuit reversed, thus maintaining its nine-year record of reversing every grant of relief in
every capital case from Maryland, Virginia, North Carolina and South Carolina.
Careful study of the record demonstrates that the district court’s finding of
ineffective assistance of counsel was accurate. The Governor should not allow Robert
Bacon, Jr.’s execution to proceed.

THE DEATH SENTENCE IN THIS CASE IS UNFAIR
BECAUSE COUNSEL MADE NUMEROUS GRAVE ERRORS

Counsel did not thoroughly investigate Robert’s case prior to the resentencing
hearing. Previous sections have set forth the plethora of evidence that went undiscovered
by counsel and was never presented to the jury that sentenced Robert Bacon, Jr. to death.
Counsel made several other serious errors at the resentencing hearing. No court has
heard evidence concerning these errors, which include:

< In jury selection for the resentencing hearing, counsel asked potential jurors about
their knowledge of the case and exercised peremptory challenges to remove jurors
who were familiar with the case. However, in closing argument at resentencing,
counsel needlessly and inexplicably told the jury that Robert had previously been
sentenced to death.

< Counsel interviewed potential witnesses for about five minutes each in the
presence of the assistant district attorney charged with seeking Robert’s
execution.

< Counsel assisted the State in its presentation by reading testimony to the jury.

Ss Counsel elicited testimony from several of the videotaped witnesses concerning

Robert’s possible release from prison if he were sentenced to life imprisonment.

Judge King of the Fourth Circuit dissented and wrote that Robert was entitled to
an evidentiary hearing on a number of his claims of ineffective assistance of counsel.

Judge King was particularly troubled by counsels’ action in informing the jury of
Robert’s prior death sentence. “I can conjure no possible legitimate reason why Bacon’s
own lawyer would believe it necessary to reveal this fact . . . to the jury,” wrote Judge
King, adding, “Certainly there were several more appropriate ways to explain his
mother’s absence.” Bacon v. Lee, 225 F.3d 470, 491 a@ Cir. 2000) (King, J., dissenting).

The district court also had “grave questions about the competence of any attorney
who would mention the prior death penalty of his client in any context.” The Supreme
Court of North Carolina has held that telling a jury that the defendant has previously
received the death penalty in the very same case is one of the few “transgressions” that is
“so gross” and its “effect so highly prejudicial that no curative instruction will suffice to
remove the adverse impression from the minds of the jurors.” State v. Britt, 288 N.C.
699, 713, 220 S.E.2d 283, 292 (1975).

Judge King also noted counsels’ “unusual manner of interviewing witnesses” and
argued that Robert was entitled to a hearing on the adequacy of his legal representation
given the “cursory” and “perfunctory” interviews conducted in the presence of the
prosecutor. 225 F.3d at 492-93. The evidence that resentencing counsel did not discover
was of a sensitive and personal nature; witnesses cannot be expected to open up and
discuss such issues in a five-minute interview in the presence of the person whose interest
is in seeing the loved one executed.

At the resentencing hearing, the State presented only five witnesses. The first two
witnesses, taxi driver Buffalo Smith and police officer J.J. Phillips, testified briefly about
their discovery of Bonnie Clark and the deceased. The heart of the State’s case was the
testimony of the next three witnesses, none of whom testified live before the jury. Karen
Rosser, Robert and Bonnie Clark’s former roommate, and Charles Bilderback, who
explained that Bonnie was the beneficiary of a $50,000 life insurance policy, could not be
found to testify. The State therefore asked that their testimony be read into the record.
The prosecution also asked to read into the record testimony Robert had given at the first
sentencing hearing.

Defense counsel inexplicably participated in the presentation of this evidence.
Not only did defense counsel favor the prosecutor by reenacting the cross-examination of
Rosser and Bilderback, but they also recreated their direct examination of their own
client. In closing argument, District Attorney Andrews bolstered the credibility of the
State’s case by drawing the jury’s attention to defense counsels’ personal participation in
the presentation of the State’s evidence. Repeatedly the prosecutor asked the jury to give
credence to the State’s case because the testimony was introduced “by his own lawyer.”
Ironically, defense counsel commented to the jury that the clerk of court who assisted in
reading prior testimony into the record was the “State’s hired gun,” apparently failing to
recognize that the defense too had served as a “hired gun” for the prosecutor.

The Sixth Amendment requires the assistance of counsel for the defense of the
accused. “If no actual assistance for the accused’s defense is provided, then the
constitutional guarantee has been violated.” United States v. Cronic, 466 U.S. 648, 654
(1984) (internal quotation marks omitted). The cornerstone of the Supreme Court’s
holding in Cronic was the notion that the adversarial process protected by the Sixth
Amendment requires that the accused have “counsel acting in the role of an advocate.”
Anders v. California, 386 U.S. 738, 743 (1967)(emphasis added). In this case, counsel
abandoned their role as advocates and served instead as adjuncts to the prosecution.
There can be no reasonable explanation for counsels’ willingness to aid the State in its
efforts to secure the death penalty against the very man they had a sworn duty to defend.

Defense counsel presented the videotaped depositions of several witnesses at the
resentencing hearing. In response to defense questioning, a number of these witnesses
explicitly or implicitly referred to the possibility that Robert might be released on parole,
if sentenced to life imprisonment. In his closing argument, the prosecutor capitalized on
this testimony and emphasized that Robert might be a danger in the future.

The North Carolina Supreme Court has consistently held that information
concerning parole should not be placed before capital sentencing juries, because
consideration of a defendant’s possible release “is calculated to prejudice the jury and
influence them against a recommendation of life imprisonment.” State v. Conner, 238
N.C. 468, 470, 85 S.E.2d 584 (1955). Moreover, “it is entirely reasonable for a
sentencing jury to view a defendant who is eligible for parole as a greater threat to society
than a defendant who is not.” Simmons v. South Carolina, 512 U.S. 154, 163 (1994).

Certainly there were other ways of conveying to the jury that many people still
considered Robert a valuable member of society. No reasonable tactical judgment can
justify the presentation of evidence that had the effect of pushing jurors away from a vote
for life imprisonment and towards a death sentence.

Counsels’ errors in this case were numerous and substantial. They made the
difference between life and death. Whether the State takes a life should not depend on
the quality of counsel afforded by the State. The Governor should grant clemency in this
case.
THE DEATH SENTENCE IN THIS CASE IS UNFAIR BECAUSE THE STATE
HAS TAKEN INCONSISTENT POSITIONS ON VITAL ISSUES

On four vital issues, the State has taken inconsistent positions during the litigation
of this case. The first concerns the relative culpability of Robert and his codefendant,
Bonnie Clark. The second concerns Robert’s motive. The third concerns whether Robert
aided the police in apprehending Bonnie Clark. The fourth concerns the relative strength
of the mitigating evidence presented by the defense at resentencing. The Governor
should grant clemency in this case because the integrity of the judicial process has been
undermined by the State’s adoption of inconsistent positions.

Concerning the relative culpability of Robert and Bonnie Clark, newspaper
reports show that the State argued at Bonnie Clark’s trial, “Who was the brains? Robert
Bacon was only a pawn.” However, at Robert’s resentencing hearing, the prosecutor
argued, “Says he acted under the domination of another person. That’s not what the
evidence shows. . . .That’s exactly what he was in this case, a leader and an organizer.”

The State also flip-flopped on the question of Robert’s motive. At the
resentencing hearing, District Attorney William H. Andrews argued that Robert killed
“purely and simply for the money.” The prosecutor told the jury that there was “no other
reason why he killed him.”

Yet, at Bonnie Clark’s trial, the State argued to the jury that the monetary motive
was exclusively Bonnie Clark’s:

The idea originated in her mind. She had more reasons to have him killed
than Robert Bacon. Rebert Bacon had what he wanted X her. Money
was the main reason she wanted him dead.

After Bonnie Clark’s trial, assistant prosecutor Dewey Hudson told the Jacksonville
Daily News, “We felt she deserved the same sentence as he received.”

Bonnie Clark was sentenced to life and Robert was sentenced to die. On appeal,
the State abandoned its position that Bonnie Clark and Robert deserved the same
punishment and, instead, vigorously defended Robert’s death sentence. | When the
question was the proportionality of Robert’s sentence of death, the State argued that the
death sentence was justified because “Bonnie Sue Clark did not wield the knife.” In
addition, after acknowledging that Bonnie Clark wanted money while Robert wanted
Bonnie Clark, the State argued in the Supreme Court of North Carolina that Robert killed
“for money, not for love nor even for hate.”

The court reporter at Bonnie Clark’s trial did not transcribe the jury arguments
and the only record of what the prosecutor argued to the jury comes from newspaper
reports and the recollections of trial counsel. Consequently, the issue of the inconsistent
positions taken by the State in the Bacon and Clark trials has never been presented in
court.
The third critical issue on which the State has taken an inconsistent position
concerns the evidence of (f)(8). At trial, the State’s witnesses clearly acknowledged
Robert’s purposeful assistance to them in apprehending Bonnie Clark. At the
suppression hearing in the Clark case, police admitted telling Bonnie Clark, “Robert ain’t
stupid. He was the one that turned on you.”

At Bonnie Clark’s trial, the prosecutor even gave Robert credit for helping the
police to obtain a confession from Bonnie Clark. The district attorney put the following
question to Bonnie Clark on cross-examination:

You told them the truth when they confronted you with the bloody clothes
and they told you what Robert had told them, that’s when you knew the jig
was up?

At Robert’s first sentencing hearing, the jury did not have before it the mitigating
circumstance that Robert’s cooperation with the police had aided in the apprehension of
another capital felon. On appeal, Robert’s counsel argued this omission as a reason why
Robert should be resentenced. Significantly, the State did not argue that there was
insufficient evidence of this mitigating circumstance. Indeed, the State conceded that the
trial court had “reviewed the evidence which, if believed, supported this mitigator.”

Again on resentencing, the jury was precluded from considering evidence of
((8). Defense counsel raised this issue on appeal. Again, the State did not argue that
there was insufficient evidence of this statutory mitigating factor. Instead, the State
argued that the evidence at resentencing was different from the evidence presented at
trial. The State’s brief noted that, unlike the earlier proceeding, “the State here
introduced less testimony and the defendant chose not to present the additional evidence
which would have mandated submission of the apprehension mitigating circumstance.”

In federal habeas proceedings, the question before the court was whether
resentencing counsels’ representation was inadequate because counsel did not introduce
sufficient evidence to require submission of (f)(8). It was at this point that the State
switched horses. Having earlier maintained that “the jig was up” for Bonnie Clark when
Robert confessed, now the State took the position that:

. . . Bacon was not assisting law enforcement officers before Mrs. Clark
was apprehended. . . before Mrs. Clark’s apprehension Bacon was nothing
but a lying murderer trying witlessly to tell a Big Lie that would somehow
incredibly save his skin. (emphasis in original)

The State also argued to the federal district court that the police “apprehended
Bonnie before Bacon decided to come clean with us.” Further, despite previously
arguing that Robert was not stupid but had deliberately turned on Bonnie Clark, the State
contended that Robert did not intend to assist the police in apprehending Bonnie Clark.
After many years and numerous proceedings in which the State never once
challenged the existence of evidence in the record sufficient to mandate submission of
(£)(8), the State now presented this testimony from one of the investigating officers:

Chief, if you were asked at the time of the resentencing hearing to describe
to the jury what your reaction would be to an allegation that Mr. Bacon
assisted you in the apprehension of a capital felon, that is Bonnie Sue
Clark, how would you respond?

That’s ridiculous.

The federal district court did not buy this argument and ordered resentencing. In
fact, Judge Britt expressly rejected the officer’s testimony and found it did “not belittle
the facts.”

However, the State pressed the point in the Fourth Circuit, a friendly forum for
prosecutors arguing against death row prisoners. The Fourth Circuit accepted the State’s
argument and reversed after concluding that Robert’s “inadvertent” assistance would
have carried “slight weight” with the jury. Bacon v. Lee, 225 F.3d 470, 479 (2000).

The fourth critical issue on which the State has vacillated is the strength of the
defense evidence in mitigation. At trial, the prosecutor denigrated the defense evidence,
arguing to the jury that the mitigating circumstances presented by the defense “simply
border on the ridiculous.” Elsewhere, the district attorney told jurors they “ought not to
put much weight” in the defense evidence.

On direct appeal in Bacon IT, the State continued to belittle as “insignificant” the
evidence resentencing counsel presented in their effort to save Robert’s life. According
to the State, Robert’s “pleasant, middle class childhood, playing high school sports and
enjoying a close family relationship with his parents and siblings” failed to mitigate his
actions. The State cast doubt on the scant testimony before the resentencing jury
conceming any problems in Robert’s family, noting that the only one to testify about
Robert’s father’s “purported absence and womanizing” was a psychiatrist retained by the
defense. The State went on to note that the psychiatrist’s opinions carried “little force.”

The State took a markedly different position when the question was whether
Robert had received effective assistance of counsel at his resentencing hearing. Post-
conviction counsel argued that Robert’s resentencing lawyers had failed to uncover
significant evidence about Robert’s background and history. The defense argued further
that this evidence would likely have made the difference between life and death.

In response, the State cited the “ample” and “plenary” evidence” resentencing
counsel had presented concerning Robert’s childhood and background. The State then
recounted facts about Robert’s background testified to by the psychiatrist. The State did
not mention that none of this evidence was before the jury as substantive evidence, nor
did the State say that this evidence “carries little force.” Of course, this was the same
evidence that the State had previously denominated as “insignificant.”

The State’s argument prevailed. The Fourth Circuit refused to order an
evidentiary hearing on the adequacy of Robert’s counsel. The Fourth Circuit accepted
the State’s position that counsel had presented ample evidence of Robert’s background
and that the evidence the jury never heard was merely “cumulative.” Bacon v. Lee, 225
F.3d 460, 482 (4" Cir. 2000).

In an adversarial system, each side has a duty to give zealous representation and
to argue the facts persuasively. In this case, the State has argued a number of positions
that are inconsistent, thus leaving the Governor with these questions: Was Robert Bonnie
Clark’s pawn or was he the leader? Did Robert simply want to be with Bonnie Clark or
did he kill for money? Did Robert deliberately help the police or witlessly lie? Did
Robert’s attorneys put up a ridiculous defense or an ample one? It is now up to the
Governor to sift through the record and to determine the truth as best he can. The truth is
that it would be manifestly unfair to execute Robert Bacon, Jr.
MANY OF THE STATE AND FEDERAL JUDGES WHO HAVE REVIEWED
THIS CASE HAVE FOUND FUNDAMENTAL UNFAIRNESS

Two juries have returned the death sentence in this case. This fact has no bearing
on whether the Governor should grant clemency. As noted in previous sections, the
juries never heard critical evidence related to Robert’s motive, evidence relevant to the
State’s sole aggravating circumstance, and evidence of compelling mitigation. In
addition, the resentencing jury improperly considered Robert’s race when deciding his
punishment. Absent all relevant evidence, and operating on racial prejudice, it would not
matter if 100 juries returned the death penalty in this case X the death sentence would
still be manifestly unfair.

Significantly, many of the state and federal judges who have reviewed this case
have voted to vacate the death sentence. At nearly every stage of the proceedings in this
case, judges have found serious constitutional error and unfairness:

Proceeding Judges Voting to Grant Relief Judges Voting Against
Granting Relief
Bacon I Direct Appeal 7 0
Bacon I Direct Appeal 2 4
State Post-Conviction 0 1
Federal District Court 1 0
Fourth Circuit 1 2

In Bacon I, the court unanimously concluded that the Robert’s first jury was
precluded from considering constitutionally mitigating evidence. The court found that
there was “a reasonable possibility that had this mitigating circumstance been submitted
to the jury, a different result would have been reached at the sentencing hearing.”

The failure of the jury to consider this evidence “created too great a ‘risk that the
death penalty will be imposed in spite of factors which may call for a less severe
penalty.”” Citing the United States Supreme Court’s decision in Lockett v. Ohio, 438
U.S. 586, 605 (1978), the court ordered resentencing after concluding, ““When the choice
is between life and death, that risk is unacceptable and incompatible with the commands
of the Eighth and Fourteenth Amendments.” State v. Bacon, 326 N.C. 404, 420, 390
S.E.2d 327, 336 (1990).

In Bacon II, Former Chief Justices Exum and Frye said that this case was a
“misfit” among cases in which a death sentence was returned. The dissenting justices
noted that Robert’s was the only case in which.a defendant who was under the
inspiration, direction, and domination of a confederate was condemned to death while the
confederate was sentenced to life. State v. Bacon, 337 N.C. 66, 128 and 131, 546 S.E.2d
542, 577-78 (Exum, C.J., and Frye, J., dissenting). Significantly, in the near-quarter
century since reinstatement of the death penalty, members of the Supreme Court of North
Carolina have questioned the proportionality of a death sentence only 15 times.

In federal district court, U.S. District Judge W. Earl Britt found that Robert’s
resentencing counsel had failed to provide constitutionally effective assistance. The court
noted that the jury’s decision was a close one and that the introduction of additional
mitigating evidence “could have resulted in a life sentence.” Thus, the result of the
sentencing hearing in this case was “fundamentally unfair, or at the very least,
unreliable.” Again, the significance of the district court’s finding of unfairness cannot be
overstated. Only once in more than a decade has a federal district court judge found
ineffective assistance of counsel in a North Carolina death penalty case.

In the Fourth Circuit, Judge King wrote, “We are delving into the realm of legal
fiction when we assert that Bacon received a full measure of fair procedure” in state
court. Judge King despaired that the Fourth Circuit had “compounded the lack of fair
procedure” by denying an evidentiary hearing on the adequacy of resentencing counsels’
representation. Judge King concluded, “In a case such as this — where a life hangs in the
balance — it is more important than ever that justice not only be done, but that justice
also be seen to be done.” 225 F.3d 470, 495 (4" Cir. 2000) (King, J. dissenting).
THE SUPREME COURT OF NORTH CAROLINA’S
CONCLUSION THAT ROBERT BACON JR.’S DEATH SENTENCE
WAS NOT DISPROPORTIONATE IS UNRELIABLE

Since reinstatement of the death penalty, North Carolina juries have sentenced
more than 300 people to death. At present there are more than 200 men and women on
death row. In only 15 cases have members of the Supreme Court of North Carolina
questioned the proportionality of the death sentence duly imposed by a jury. In seven
cases, the Court vacated the death sentence and imposed a life sentence. In eight other
cases, one or more justices dissented on the grounds of proportionality. Since 1988, no
death sentence has been vacated as disproportionate.

On June 30, 1993, the Supreme Court of North Carolina issued an opinion finding
that Robert Bacon, Jr.’s sentencing hearing was free of prejudicial error and that the death
sentence was not excessive. Former Chief Justices Exum and Frye dissented and argued
that Robert’s death sentence was disproportionate and that the court should impose a
sentence of life imprisonment.

On August 17, 1993, the court withdrew its June 30 opinion. Nearly a year later,
on July 29, 1994, the court reissued its opinion. Again, the court divided four-two on the
issue of proportionality. A comparison of the two opinions, and an understanding of the
surrounding litigation, demonstrates that the majority’s conclusion that Robert’s death
sentence was fair and proportionate was not the result of an impartial analysis expected of
courts in a democracy. Unfortunately, the facts reveal a result-oriented jurisprudence
unworthy of deference by the Chief Executive.

The sole aggravating circumstance submitted and found by the jury was that the
murder was committed for pecuniary gain, N.C.G.S. 315A-2000(e)(6). As the dissent
pointed out in both opinions, in the previous 14 cases in which pecuniary gain was the
sole aggravating factor, juries had returned life sentences in 12 cases and the Supreme
Court of North Carolina had found the other two death sentences disproportionate.

In the court’s opinion from June of 1993, the majority justified its finding of
proportionality by comparing Robert’s case to State v. Gladden, 315 N.C. 398, 340
S.E.2d 673 (1986), which the majority treated as a “death-affirmed” case. The majority
said that Robert’s case appeared “comparable in many respects” to Gladden, which
involved the “brutal killing of a Marine sergeant.” The majority summarized the facts of
Gladden as follows:

The defendant in Gladden was having an affair with the victim’s wife at
the time of the murder. Six months prior to the actual murder, defendant
attempted to hire someone to kill the victim. When this failed, defendant
planned and participated in a scheme with the victim’s wife whereby they
lured the victim to a secluded area by telling the victim that his wife’s car
had broken down. When the victim arrived at the scene, the defendant
slashed the victim’s throat, shot him twice, dragged him into a ditch, and
then shot him two more times in the face. After the attack, the defendant
went back to his apartment and changed clothes. He then returned to the
scene, dragged the victim’s body into the woods, and took the victim’s
wallet and watch in order to make it appear as though a robbery had
occurred.

Tn the case at bar, defendant and Bonnie Sue Clark, the victim’s wife, with
whom the defendant was having an affair, planned to kill the victim weeks
prior to the actual murder so that they could obtain insurance money.
Defendant and Bonnie Sue Clark enticed the defendant into Bonnie Sue
Clark’s car under the pretense of going to see a movie. Defendant then
reached over the back seat and stabbed the victim sixteen times. After
stabbing Glennie Clark to death, defendant tried to conceal the crime by
setting up the scene to look as if a botched robbery had occurred.

Gladden was the only case the majority likened to Bacon and it was on the basis of the
similarity between Bacon and Gladden that the majority concluded that Robert’s death
sentence was not disproportionate.

Robert’s appellate attorney Samuel J. Ervin, IV, promptly filed a motion for
reconsideration in the Supreme Court of North Carolina. Unbeknownst to the court, the
defendant in Gladden had obtained relief in state post-conviction proceedings and had
been, thereafter, sentenced to life imprisonment. Therefore, Mr. Ervin argued, since the
majority had concluded that the cases of Bacon and Gladden were similar, then Robert
too should be sentenced to life imprisonment. “A failure to find Mr. Bacon’s death
sentence disproportionate in light of the majority’s conclusion that the most similar case
in the ‘proportionality pool’ is State v. Gladden, would be completely arbitrary and
capricious,” wrote Mr. Ervin.

. The court responded by withdrawing its June 1993 opinion. A little more than a
year later, the court issued a new opinion. This is what the court had to say about
Gladden in July of 1994:

Defendant contends there are two other cases in the pool in which the jury
recommended a life sentence which are most similar to the present case,
that of his codefendant, Bonnie Sue Clark, State v. Clark, 324 N.C. 146,
377 S.E.2d 54 (1989), and State v. Gladden, 315 N.C. 398, 340 SE2d
673, cert. denied, 479 U.S. 871, 93 L.Ed.2d 166 (1986).

In Gladden, the defendant was having an affair with the victim’s wife at
_ the time of the murder. Six months prior to the actual murder, defendant
attempted to hire someone to kill the victim. When this failed, defendant
planned and participated in a scheme with the victim’s wife whereby they
lured the victim to a secluded area by telling the victim that his wife’s car
had broken down. There the defendant slashed the victim’s throat, shot
him twice, dragged him into a ditch, and then shot him two more times in
the face. After the attack, the defendant went back to his apartment,
changed clothes, and returned to the scene. He dragged the victim’s body
into the woods and took the victim’s wallet and watch to make it appear as
though a robbery had occurred. Gladden, 315 N.C. at 404-06, 340 S.E.2d
at 677-79.

While Gladden is similar to the present case X for example, both victims
were Marine noncommissioned officers, and both defendants planned the
murders, in advance, with their lovers X the distinguishing circumstance is
that the defendant in Gladden, unlike defendant here, did not commit the
murder for pecuniary gain. Rather, he was apparently motivated by reports
of continuing physical abuse against his lover by her husband and by
threats by her husband that he would kill both his wife and the defendant.

State v, Bacon, 337 N.C. 66, 114, 446 S.E.2d 542, 568-69 (1994). Missing from the
court’s opinion is the fact that Gladden involved a “brutal and especially torturous
murder.” State v. Gladden, 315 N.C. 398, 340 S.E.2d 673 (1986). In addition, evidence
presented at trial showed that, after shooting the victim the last two times, Gladden
laughed for several seconds. 315 N.C. at 434. There was also evidence that Gladden
stated after the murder that he was glad he did it and would do so again “for the pleasure
of it.” Jd. The court concluded on the basis of this evidence that Gladden had exhibited
an “unusual depravity of mind.” Id.

These facts are significant because they show that, in fact, there was a stronger
case for death in Gladden than there was in this case. Robert promptly accepted
responsibility for his actions and expressed remorse at trial. In addition, the jury in
Bacon I rejected the State’s argument that the murder of Glennie Clark was “especially
heinous, atrocious, or cruel,” N.C.G.S. 315A-2000(e)(9), and this aggravating
circumstance was not before the resentencing jury.

Noted earlier was the fact that, at the time of Robert’s direct appeal, the Supreme
Court of North Carolina had reviewed 14 cases in which the only aggravating
circumstance was pecuniary gain. In these 14 cases, juries returned life sentences in 12
and the Court imposed life in the other two. It is significant to note that the evidence of
pecuniary gain was stronger in many of these cases than in this one. Additionally, it is
significant that life sentences were imposed despite the fact that, in all but two of the
cases, the defendant personally killed the victim. The following chart illustrates these
points:
‘Case Name Did 0 Personally Kill? Evidence of Pecuniary Gain

State v. Stager Yes O made numerous statements to
different people about victim’s
life insurance policy

State v. Weddington Yes O was beneficiary of victim’s life
insurance policy

State v. Payne Yes O told police he killed wife for
insurance money

State v. Quesinberry ‘Yes O told friend he was going to rob
victim; after killing stole $545

State v. Hogan Yes O planned with wife to rob store
for money for cocaine; stole
$1500-$2000

State v. Locklear Yes 0 planned robbery to obtain
money to pay off drug debts

State v. Murphy Yes Ci robbed elderly victim and
forged check for $475

State v. Bauguss Yes O robbed gas station of $80

State v. Woods No 0 offered another money from
life insurance proceeds to kill her
husband

State v. Hawkins Yes U beat victim to death and stole
$60-$80

State v. Moore Yes C killed victim in apparent
robbery of grocery store

State v. Weimer No (assisted in apparent robbery of
grocery store

State v. Benson Yes O waited more than two hours for
victim to make night deposit;
after killing, stole moneybag.

State v. Jackson Yes O killed after victim refused to
give him money; after killing,
tobbed victim

i The Supreme Court of North Carolina has a statutory obligation to ensure that no

death sentence be imposed and affirmed “under the influence of passion, prejudice, or

any other arbitrary factor.” N.C.G.S. 915A-2000(d)(2). In terms of aggravation and

personal culpability, Robert clearly falls within the other 14 cases in which pecuniary

gain was the only aggravating circumstance. In addition, the mitigating evidence X that

presented to the jury and that not found until post-conviction proceedings X weighs in

favor of a life sentence.

When the court thought that Gladden was a death affirmed case, the court
concluded that Bacon and Gladden were very similar and that the two defendants should
receive the same punishment. Yet, when the court found that Gladden was a life case,
suddenly the court found that Bacon and Gladden were very different. The facts of the
two cases did not change between June of 1993 and July of 1994. The court said Robert
and Willie Gladden deserved the same punishment. Willie Gladden’s punishment was
life imprisonment; so too should Robert’s punishment be life imprisonment. Only the
Governor can ensure a fair and just punishment in this case.

THE CONVICTION AND DEATH SENTENCE IN THIS CASE ARE
UNRELIABLE BECAUSE THE STATE’S EVIDENCE HAS NOT BEEN
SUBJECTED TO FULL ADVERSARIAL TESTING

Tn 1996, the legislature enacted a statute requiring full discovery in all capital
cases. The discovery provision, codified at N.C.G.S. 915A-1415(f), reads as follows:

In the case of a defendant who has been convicted of a capital offense and
sentenced to death . . . . [t]he State, to the extent allowed by law, shall
make available to the capital defendant=s counsel the complete files of all
law enforcement and prosecutorial agencies involved in the investigation
of the crimes committed or the prosecution of the defendant.

A great deal of litigation ensued concerning the scope of this new provision. One
question concerned the applicability of this provision to cases in which the superior court
had denied the defendant’s motion for appropriate relief (MAR) prior to June 21, 1996,
the effective date of 31415(f). In State v. Green, 350 N.C. 400, 514 S.E.2d 724 (1999),
the court held that 31415(f) applied to cases in which, as of June 21, 1996, either (a) the
defendant’s motion for appropriate relief had not yet been denied by the superior court; or
(b) the defendant’s petition for writ of certiorari from the denial of the MAR had been
filed but not yet denied by the Supreme Court of North Carolina.

Robert’s case is one of a small number of cases in which the court denied
discovery under 31415(f) because his petition for writ of certiorari was not pending on
June 21, 1996. Rather, Robert’s petition was filed and denied after June 21, 1996, and,
under the terms of Green, fell outside the ambit of the discovery provision.

Robert’s motion for appropriate relief was denied by the Superior Court of
Onslow County on May 10, 1996. On April 15, 1998, a week after the Supreme Court of
North Carolina decided State v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998), and held that
315A-1415(f) applied to work product materials, counsel moved for full discovery in this
case. The State opposed the defense motion and the superior court refused to order
discovery. Defense counsel moved for reconsideration and again the superior court
declined to order discovery. Robert’s post-conviction counsel then filed a petition for
writ of certiorari in the Supreme Court of North Carolina. In this petition, filed on
August 11, 1998, counsel again requested discovery under 315A-1415(f). The State
opposed the petition. On August 24, 1999, after it decided Green, the court denied
certiorari review in Robert’s case.

On June 21, 1996, Robert’s attorneys were awaiting the production of a transcript
of two oral arguments that had been held during state post-conviction proceedings.
Under the law, the transcript was required before Robert could petition for review of the
superior court’s denial of his MAR. N.C. Rules App. P. 21(f). See also Miller v. State,
237 N.C. 29, 74 S.E.2d 513 (1953) (in capital post-conviction case where petitioner’s life
hangs in the balance, court must examine entire record with meticulous and painstaking
care).
On May 15, 1996, after learning that Robert’s MAR had been denied, counsel
contacted the State and the court and requested that a transcript be prepared. The court,
after finding the transcript was “necessary for further proceedings in this case,” issued an
order for the transcript’s production on May 16, 1996. That transcript, prepared by a
court reporter employed by the State, was delivered to counsel more than three months
later, on August 23, 1996. Thereafter, Robert timely filed a petition for writ of certiorari.
Nevertheless, because his petition was not pending in the appellate division on June 21,
1996, the court refused to order the State of North Carolina to provide to Robert’s
counsel the complete investigative and prosecutorial files in this case. ,

The arbitrariness of the court’s ruling is patent. Consider the case of a defendant
whose MAR was denied in the trial court on June 20, 1996. Assuming there was no
transcript to be prepared, the defendant had 60 days in which to file a petition for
discretionary review. N.C. Rules App. P. 21(f). Assume this defendant filed a certiorari
petition on June 22, 1996, 58 days ahead of time. Under Green, this exceedingly diligent
defendant is barred from obtaining discovery under 315A-1415(f) because, on June 21,
1996, he had no pleading filed in any court.

Consider also the case of State v. Ward. Ward’s MAR was denied by the superior
court on April 1, 1996, more than a month before the superior court denied Robert’s
MAR. There was no transcript to prepare and Ward’s attorneys timely filed a petition for
writ of certiorari on May 30, 1996. On June 21, 1996, although well within his right to
file for discretionary review, Robert was not able to petition the court because he was
waiting for the State to provide him with a necessary transcript. On that same date,
Ward’s petition was still pending in the appellate division. The court denied Ward’s
petition for writ of on July 31, 1996, and Ward thereafter initiated federal habeas corpus
proceedings. After Green was decided, Ward received discovery under 31415(f) even
though Ward was the older of the two cases.

The Supreme Court held in State v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998),
that, by enacting 21415(f), the General Assembly had expressed its judgment that post-
conviction discovery is essential to “thorough and complete review” in death penalty
cases. By virtue of a technicality, discovery has not been provided in this case. As a
result, this case has not been subjected to thorough and complete review.

The failure of the courts to order full discovery in this case is even more
disturbing when one considers the record of the prosecutor in this case. The courts
ordered discovery in State v. Basden and State v. Levon Jones, two cases prosecuted by
the same district attorney that prosecuted Robert. Attached to this petition is a letter from
counsel for Basden, outlining the extensive evidence not turned over to the defense at
trial. Also included is an excerpt from the N.C. Academy of Trial Lawyers’ report on
capital cases. The Levon Jones case was one highlighted by the Academy, because
critical evidence was not turned over to the defense by the prosecutor. These attachments
document the prosecutor’s pattern of withholding evidence favorable to the defense.
In evaluating a case for clemency, the Chief Executive must assess how much
confidence to place in the court process afforded the prisoner. By enacting the discovery
provision, North Carolina has increased the level of confidence the Chief Executive may
have in the court proceedings. In this case, through no fault of Robert Bacon, Jr., there
can be no confidence in the legal proceedings because the case has not been subjected to
the rigorous procedural protections accorded other death-sentenced prisoners. Taken
together with the many injustices in this case, the lack of fair process constitutes yet one
more reason why Robert’s death sentence should be commuted to life imprisonment
without parole.
IF ROBERT BACON, JR.’S APPEAL HAD BEEN HEARD IN ANY APPEALS
COURT OTHER THAN THE FOURTH CIRCUIT, THE ORDER GRANTING A
WRIT OF HABEAS CORPUS WOULD HAVE BEEN AFFIRMED

In the last decade, the federal courts in North Carolina have found ineffective
assistance of counsel in only one capital case, that of Robert Bacon, Jr. Convinced that
the death penalty should not be carried out in this case, and aware of the extreme
likelihood that the Fourth Circuit would, as it always does, reverse, counsel requested that
the State not appeal. The State appealed. The Fourth Circuit reversed. An examination
of the facts presented in federal district court, relevant law, and the decision of the Fourth
Circuit, should persuade the Governor that Robert’s case did not receive fair review. It
falls to the Governor to impose the appropriate sentence in this case.

The last death penalty case in which the Fourth Circuit granted relief was
Williams v. Dixon, 961 F.2d 448 (1992). Since that time, the court has reviewed more
than 100 capital cases. The court has denied relief in every single one. More than that, in
close to a quarter of the cases, either the district court or the three judge panel granted
relief. In all of those cases, the three judge panel or the en banc court has reversed.
Robert’s was the 22™ death penalty case in a row in which the court reversed a grant of
relief. No North Carolina judges sit on the Fourth Circuit. No person of color has ever
been named to a permanent position on the Fourth Circuit, despite the nomination of a
number of prominent and respected African-American jurists. In all other federal circuits
across the country, habeas relief is granted in about 40 percent of the cases. These facts
have led to questions about the fairness of review afforded capital defendants in the
Fourth Circuit. It is certainly difficult to understand how the courts in the Fourth Circuit
can be 100 percent wrong in the 20 percent of the cases in which they grant relief, and
meanwhile be 100 percent right in the 80 percent of the cases in which they deny relief.
Capital defendants would seem to have better odds of winning at three-card monte than at
winning relief in the Fourth Circuit.

The Fourth Circuit’s disposition in this case was manifestly unfair. In order to
prevail on a claim of ineffective assistance of counsel, a defendant must show two things:
that his attorneys rendered deficient performance and counsels’ errors prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668 (1984). In order for counsels’
performance to be adjudged deficient, counsels’ actions must have been unreasonable. If
the challenged action was the product of a tactical or strategic decision on the part of trial
counsel, there can be no finding of deficient performance.

In this case, Judge Britt found both prongs of the Strickland test. Judge Britt
concluded that the Supreme Court of North Carolina had laid out a “roadmap” of the
(6(8) mitigating evidence and counsels’ failure to present this evidence rendered
Robert’s death sentence fundamentally unreliable. In finding that counsels’
representation fell well below the standard of reasonableness, and in finding that
counsels’ performance prejudiced Robert, Judge Britt placed substantial reliance on the
facts found by the Supreme Court of North Carolina in Bacon I. In addition, the district
court emphasized the numerous decisions by the Supreme Court of North Carolina
concerning the vital importance of statutory mitigating circumstances.

The Fourth Circuit reversed after determining that the defense had failed to show
that resentencing counsels’ performance was deficient. According to the Fourth Circuit,
counsel “could have” made a tactical decision not to present the (f)(8) evidence. 225
F.3d 470, 479 (4" Cir. 2000). The court’s decision was flatly contradicted by the record
developed in the district court hearing. Before Judge Britt, attorney L. Robert Coxe
testified unequivocally as follows:

Q. Did you have a conversation with Mr. Merritt in which he advocated as a
tactical strategy not presenting evidence of this [(f)(8)] mitigator?

A. No

Q. Okay. Do you recall having any disagreements with [co-counsel] Mr.
Merritt about the defense strategy in this case?

A. No.
Q. I asked you earlier if you had made a conscious decision not to present
evidence [of (f)(8)]?

A. No, we did not. Did we make a decision not to pursue this as a mitigator;
no, we did not.

Other evidence presented at the district court hearing corroborated Mr. Coxe’s
testimony concerning the absence of a strategic decision to forego (f)(8) evidence. The
evidence supporting (f(8) could only come from the officers who were with Bonnie
Clark prior to Robert’s confession. These officers testified only in Clark and did not
testify at Robert’s trial. Robert’s attorneys did not attend Bonnie Clark’s trial or
suppression hearing. Prior to the resentencing hearing, Robert’s lawyers did not read the
Clark opinion and did not interview these officers. Having failed to interview the
officers and having never seen them testify, resentencing counsel were unaware of the
potentially beneficial (f(8) evidence. Consequently, counsel were hardly in a position to
make, as Strickland requires, a reasoned, informed assessment of the value of the
officers’ testimony.

It is clear that the very foundation of the Fourth Circuit’s reversal of the grant of
relief is untrue. There can be no justice in this case unless the Governor intervenes.

The Fourth Circuit also ignored the Supreme Court of North Carolina’s judgment
that “substantial” evidence was available to support (f)(8) in this case, and that statutory
mitigating circumstances play a uniquely significant role in capital sentencing in North
Carolina. According to the Fourth Circuit, there was no constitutional claim of
ineffective assistance of counsel because the evidence of (f)(8) would have carried “little
weight” and provided “only a slight benefit.” This conclusion is directly contrary to the
holding of the Supreme Court of North Carolina in Bacon I. There, the court held that
that the record contained sufficient evidence of the (f)(8) mitigating circumstance. State
v. Bacon, 326 N.C. 404, 419, 390 S.E.2d 327, 335-36 (1990). Under North Carolina law,
evidence must be “substantial” in order to support submission of a mitigating
circumstance to the jury. State v. Laws, 325 N.C. 81, 109, 381 S.E.2d 609, 627 (1989).
Moreover, the Supreme Court of North Carolina found that the absence of jury
consideration of the (f)(8) mitigating circumstance resulted in “ascertainable prejudice.”
State v. Bacon, 326 N.C. 404, 419, 390 S.E.2d 327, 335-36 (1990).

In addition, the Supreme Court of North Carolina has consistently found that the
failure to submit a statutory mitigating factor supported by the evidence is prejudicial
error. In no case has the Court found the failure to submit a statutory mitigating
circumstance supported by the evidence to be harmless error. Thus, only by eschewing
more than twenty years of North Carolina case law was the Fourth Circuit able to
conclude that substantial evidence of the (f)(8) statutory mitigating circumstance would
have proved of only “slight benefit” at the resentencing hearing in this case.

North Carolina’s legislature fared little better than her courts in the Fourth
Circuit’s view. The General Assembly has determined that jurors in North Carolina
death penalty cases must give mitigating value to only eight aspects of a capital
defendant’s character or the circumstances of the offense. Among these eight features is
the question of whether the defendant aided in the apprehension of another capital felon.
The General Assembly did not include an intent requirement when drafting the (f)(8)
mitigating circumstance. Rather, the General Assembly decided that the critical question
for the jury is whether the defendant “gave any assistance which in any way advanced the
time or reduced the difficulty of taking that person into custody.” N.C.P.I.XCrim. 150.10
(8A). Yet, the Fourth Circuit’s conclusion that the evidence of (f)(8) would have carried
“Jittle weight” turned significantly on the Fourth Circuit’s view that Robert had provided
“inadvertent” assistance to law enforcement authorities in the apprehension of the
mendacious and manipulative Bonnie Clark. As noted earlier, the facts do not support
the Fourth Circuit’s view on this issue. In addition, however, the Fourth Circuit’s
opinion simply ignores the North Carolina Legislature’s decision to draft statutory
mitigating circumstances as it saw fit. It is certainly not the Fourth Circuit’s place, least
of all without any North Carolina representation, to second-guess the General Assembly
on what constitutes a mitigating factor.

A fundamental principle of habeas jurisprudence is that federal habeas courts
must respect the state’s “dignitary interest in seeing that their state law decisions are not
ignored.” Coleman v. Thompson, 501 U.S. 722, 738 (1991). This is precisely what the
Fourth Circuit did in this case. The Governor now has an opportunity not only to restore
respect for North Carolina’s law and institutions, but to do justice by imposing a fair and
just sentence in this case: life imprisonment without parole.
LIFE WITHOUT PAROLE IS SUFFICIENT PUNISHMENT IN THIS CASE

Robert Bacon, Jr. is on death row for his first and only crime. Robert adapted
well to incarceration in the four years prior to resentencing, and he has continued to do so
since. He has not had an infraction in the last six years. Prior to that time, his infractions
consisted of disobeying orders concerning such things as the placement of a t-shirt and
playing his radio too loud. Robert has had only two infractions involving fighting. In the
first, another inmate shoved him first. The report of the incident states that there were
“no injuries’ and “no force” involved. The second incident, involving a
“misunderstanding” between Robert and another inmate, was so minor that Robert
received a suspended punishment for it.

Prior to arrest for this crime, Robert promptly took responsibility for his actions.
While Bonnie Clark prevaricated with the police, Robert was very cooperative and
confessed. As noted earlier, the practice of giving more lenient sentences to defendants
who show contrition and cooperate with law enforcement authorities is well-established.

Robert is remorseful for his actions. He told the officers who first interviewed
him that he regretted what he had done, he expressed remorse at trial, and he continues to
do so today.

Robert understands that the alternative to execution is life imprisonment without
parole and he is reconciled to a life of incarceration. He desires to make restitution to the
children of Glennie Clark and to otherwise make a positive contribution while behind
prison walls.
DECLARATION

I, Pamela Bloom Smith, swear or affirm that the following facts are true, to the

best of my knowledge:

1.

2.

Tam over the age of 18 and am a resident of Jacksonville, North Carolina.
I served as a juror at the 1991 resentencing hearing of Robert Bacon, Jr.

In June of 1995, I moved to Hawaii, where I lived until I returned to Jacksonville
in August of 1998. On May 8, 2001, I had lunch with my sister and her former
co-worker. My sister’s former co-worker currently works for L. Robert Coxe.
Mr. Coxe represented Bacon at the resentencing hearing. After talking with Mr.
Coxe’s employee, I asked her to get in touch with Mr. Bacon’s current lawyers
and ask them to contact me. On May 9, 2001, I talked with Bacon’s attorney,
Gretchen M. Engel on the telephone. This declaration documents statements I
made to Ms. Engel.

During deliberations we took three votes. The first two votes were ten to two in
favor of the death penalty. I voted for life both times. The other jurors thought
that the two of us who wanted life were crazy. They complained that this should
be an easy decision and that we were taking too long. The other jurors
emphasized that Bacon had received the death penalty the first time, a fact we
knew because Bacon’s attorney had told it to us in closing argument. I felt I
could never convince the other ten to change their minds. I knew the ten jurors
who wanted the death penalty were getting frustrated with me and that is why,
eventually on the third vote, I gave in.

I wanted to ask someone what would happen if all twelve of us could not agree on
a verdict. But I didn’t know who to ask.. I wish I had stood my ground and had
told the judge that we could not all agree on the death penalty and that I wanted to
sentence Bacon te life.

I do not believe Bacon got a fair shake. He and Bonnie Clark both committed
murder. Even though he was the one who actually killed the victim, I think
Bonnie Clark was more responsible for the murder than he was. I do not believe
his life should be taken when hers will be spared. I understand that the Governor
has the power to change Bacon’s sentence to life without parole. I believe that is
fair punishment in this case.

I remember that during our deliberations there was a discussion of the fact that
Bacon was dating a white woman. This topic came up after the first vote; a
female juror first brought up the issue.

Some jurors felt that it was wrong for a black man to date a white woman. Jurors
also felt that black people commit more crime and that it is typical of blacks to be
involved in crime. We talked about this for at least ten to fifteen minutes and
some jurors were adamant in their feeling that Bacon was a black man and “he
deserved what he got.” I understood this to mean that those jurors believed that
Bacon should receive the death penalty again.

5 I felt that the jurors who expressed these attitudes about race believed that these
views justified the death penalty. I was offended by this discussion. I strongly
believe that race should not play a part in whether someone lives or dies.

FURTHER AFFIANT SAYETH NOT:

Pamela Bloom Smith

Sworn and subscribed to before me, a Notary Public for the County of Onslow,
State of North Carolina on this, the day of May, 2001.