North Carolina doesn't seem to know what to do with Michael Edward Pinch.
It seemed clear enough in 1980, when a jury heard how Pinch killed two men at a bikers clubhouse in Greensboro on Oct. 10, 1979 (*see correction*). First, he leveled a shotgun at the chest of 19-year-old Freddie Pacheco and fired. Then he turned to Tommie Ausley and shot him as the 18-year-old begged for his life. As Pacheco lay moaning, Pinch shot him again, in the head.It took the jury less than four hours to come back with a verdict of death for 20-year-old Pinch. Few people were surprised, and few at the time questioned the decision.
``Pinch Execution: Yes,' proclaimed the city's afternoon paper at the time, The Greensboro Record. The newspaper said Pinch committed ``brutal, preconceived, cold-blooded murder' and that the state should execute him because ``he is both remorseless and incorrigible.'
That was more than 22 years ago. Pinch, who just turned 43, has been on death row longer than all but two of the 206 men and women awaiting execution in North Carolina, and longer than most of the more than 3,700 death row inmates in the United States. The average stay is about 11 years.
Pinch has not come close to the execution chamber so far. But if his current appeal fails, he knows he probably will be executed.
In his 22 years on death row, many have come to question the verdict in Pinch's case. The legal issues include inadequate representation, trial errors and suppression of evidence. But the most intriguing element of the case has nothing to do with the law. It has to do with the man he's become on death row, a person whom even representatives of the state have been reluctant to kill.
Many who have met him - including former Central Prison employees and a former state appeals prosecutor who was assigned to his case - say that Pinch is not the cold-blooded, remorseless monster portrayed at his trial.
Instead, they describe him as caring, compassionate and deeply remorseful for his crime. They marvel at his resolve to make his life awaiting execution mean something. They talk about how he befriends and counsels inmates, and even troubled youngsters.
``He has done more with his life on death row,' says cousin Tim Pinch, ``than many people do on the outside.'
Some contend Pinch's transformation is so profound that his life should be spared.
Not everyone feels this way, certainly not the grief-stricken parents of Tommie Ausley, who believe he should have been executed years ago. ``I'd be happy to pull the switch myself,' says Lottie Ausley, Tommie Ausley's mother. Freddie Pacheco's family could not be reached for comment.
Pinch, who has watched guards escort 22 men, some of them his close friends, to the death chamber, doesn't dwell on the likelihood of his own death. He'd rather commit himself to making his life count for something - even life on death row. ``It's the journey that's important,' he said, ``not what's at the end.'\
For Pinch, life has been two journeys. One led him to death row. The other began when he got there.
The Michael Pinch jurors saw in 1980 looked like a biker hoodlum. Covered with tattoos and sporting long hair and a mustache, he reminded some spectators of cult leader and convicted murderer Charles Manson.
The Pinch of today looks fit, though thin and a little pale. He pulls self-consciously at the sleeves of the red death row jumpsuit that mostly hide the tattoos covering his arms. His eyes are drawn from time to time to the patch of blue sky visible through the thick interview glass that separates him from his visitors.
Pinch speaks softly, and there's sadness in his eyes. ``The pain I have caused - it's with me all the time. Learning to live with it is the most difficult thing I have ever done.'
He shudders as he recalls his first night on death row at the old Central Prison, a forbidding, turreted, medieval fortress-like institution that has since been replaced by the current prison.
His macho persona dissolved as the door clanged shut and he was alone in his cell.
Pinch crawled under his bunk to be with the rats and cockroaches.
``I was one of them,' he says.
Pinch says he called out to God: ``Lord, if you're here, I need you. But if I'm not fit for you to have anything to do with, please let me die.' The pain remained, but ``a calmness' enveloped him, Pinch says, and he wanted to live.
His life up to that point had shown little promise.
A drifter and longtime drug and alcohol abuser, Pinch had moved to Greensboro in 1978 and joined the Strokers motorcycle club. Pinch had never been charged with a violent crime, but he had a record of drug arrests and minor crimes.
``Michael was high every day from the time he was 14 until 20,' says Beth McAllister, a social worker who compiled Pinch's history for the court.
Brokenhearted over a woman, Pinch had consumed at least 18 Budweisers and injected himself with the depressant Placydil on the night of the killings. He was tending bar that night at the Strokers clubhouse where, with no permanent home, Pinch spent most of his nights. A loaded 12-gauge shotgun leaned against the bar.
Freddie Pacheco was in the club that night with his friend, Tommy Ausley. Pacheco wore the colors of a rival biker club and had once come to blows with Pinch over a woman. Pinch was afraid of Pacheco, apparently with good reason.
Even within the violent, macho-oriented bikers' community, Pacheco had a reputation. He carried a 6-inch knife and was quick to use it. Police had information that Pacheco had stabbed at least four people, although it was not provided to Pinch's defense team at trial. One of his victims told police, ``Freddie had the attitude of being the biggest, baddest and meanest man in town,' who ``could not hold his liquor, had a terrible temper, and whenever he got mad, he wanted to fight or cut somebody.'
Also withheld from the defense team was police information that Ausley and Pacheco were small-time drug dealers, and that Ausley was with Pacheco during one of Pacheco's assaults.
The night of the killings, Pacheco got into a knife fight with one of Pinch's friends, Jimmy Eanes. When Pacheco got cut, Ausley moved toward Eanes.
Pinch picked up the shotgun and pointed it at Pacheco. Pacheco taunted him, saying he would ``go down laughing.' Pinch fired, striking Pacheco in the chest, and then turned toward Ausley. ``No, no, not me!' Ausley said, and Pinch fired again.
The case has haunted Greensboro lawyer Wayne Harrison since he and attorney Herman Enochs were appointed to defend Pinch in 1979. Harrison, now an experienced criminal trial lawyer, had never tried a capital case. Enochs was, and still is, a civil attorney, inexperienced in criminal law. They believed their hope of saving Pinch lay in showing the jury that he was, Harrison said, ``a child, bound by his abuse of drugs and alcohol and unable to communicate except within the parameters of the bikers' world.'
Jurors heard how Pinch's father once threw him through a glass window; how they lived in a motel where his father brought home women from the bar next door; how Michael left home at 15 after his father pointed a loaded pistol at him, embarking on a life of foraging for food, drugs and alcohol.
Most were unmoved as they watched Pinch himself, who sat emotionless throughout the trial. To many, he appeared devoid of feeling and remorse.
Pinch's case was hurt when a psychiatrist retained by the defense refused to testify whether he thought Pinch was too impaired by drugs and alcohol to form the intent necessary for first-degree murder. The psychiatrist, Dr. Alan Sherrow, said he would have to interview eyewitnesses to the killings before he could testify, and trial Judge Hal Walker refused the defense's request to allow Sherrow to conduct the interviews.
The case was dealt a further blow - as appeals lawyer Jim Cooney points out in his motion for a new trial - when Enochs, in arguing for second-degree murder, mistakenly conceded in his closing argument to the jury that Pinch ``killed two people intentionally with malice.'
Enochs declined to comment for this story.
All the while, Pinch remained stone-faced at the trial, even as the courtroom clerk read his sentence - the gas chamber. He lowered his head but showed no emotion as his mother, sister and stepsister wept uncontrollably.
Pinch says he was only able to unlock his emotions when he crawled under his bunk with the rats and cockroaches in the protective isolation of his death row cell. And that's when his second journey began.
There were 13 people on death row, counting Velma Barfield at Women's Prison, when Pinch arrived on Sept. 11, 1980. Of those 13, only Pinch, Larry Williams and Norris Taylor remain on death row. Seven have died natural deaths or had their sentences reduced to life in prison.
In March 1984, James Hutchins became the first person executed in the state since 1961. Eight months later, Barfield became the first woman executed in the United States since 1962. The state killed John Rook in 1986. He came to death row about six weeks after Pinch.
The executions signaled the end of the state's long hiatus from executions and struck fear in the hearts of death row residents. But nothing affected Pinch like the executions of Michael Van McDougall and John Sterling Gardner. McDougall was on death row for murdering a woman in Charlotte. Gardner killed three people as he robbed a Winston-Salem restaurant.
Pinch lowers his head and his eyes fill with tears when he thinks of McDougall. ``Mac was my best friend,' he says, almost in a whisper. McDougall, who came to death row about six weeks before Pinch, tried to comfort him during his first terrible nights on the row. As death row grew, they managed to stay on the same cell block.
Gardner came to the row in 1983, and the friendship became a three-way bond as the condemned men explored their lives together. They learned that with each of them drugs, along with abuse and rejection from parents, had played key roles in pushing them on the road to death row.
The three were together for eight years. McDougall was executed on Oct. 18, 1991. Pinch broke down when the guards came for his friend. ``They almost had to pry me off him,' he says. Reporters who covered McDougall's execution remember Pinch crying, ``No, no, please don't kill him!'
He relived the agony a year later when Gardner was executed Oct. 23, 1992.
Although his friends' executions devastated him, Pinch didn't withdraw into a shell, recalls Skip Pike, prison chaplain from 1984 to 2000. Instead, Pinch counseled and befriended other condemned men, just as McDougall and Gardner had helped him.
``Michael is a very stabilizing influence on the row,' Pike says. ``Living on death row is an unbelievably difficult way to live. These people literally have death hovering over them every minute of every day.
``Michael has the ability to weave through all those raw emotions.'
McAllister, the social worker, describes how Pinch comforted one inmate who was having a difficult time adjusting to the row. Pinch saw the man curled in a fetal position in his cell. ``Michael was able to find out that he was terrified of guards. He thought that every time a guard came to his cell it meant that they were coming to execute him.'
McAllister says the inmate, who was illiterate and a paranoid schizophrenic, was shunned by most of the inmates. Gradually, Pinch was able to reassure him that the guards were not going to hurt him. McAllister also says Pinch, who was the first death row inmate in the state to obtain a high school-equivalency diploma, taught the man to draw, and to read and write a little.
Ken Harris, former Central Prison associate warden, was so impressed with Pinch that he used him to counsel young men who had gotten into trouble with the law. ``Mike always had something intelligent and beneficial for them to hear,' Harris says. ``He'd tell them, 'Look, if you don't change now, if you don't get yourselves off drugs and alcohol, if you don't change your attitudes, you can end up right where I am.' '
Harris says Pinch even counseled relatives of Department of Correction employees.
``I'm old-school and hard to fool,' Harris says. ``I'm not going to say what ought to happen to Mike because the court and a jury said it. But Mike's above-board. I think the world of him.'
Pinch is almost self-effacing and doesn't volunteer stories about himself. He says only that since he called out to God, whom he calls ``the big guy,' from under his bunk 22 years ago, he has been trying to make his life worthwhile after causing so much pain to others.
``It's not what happens to me that matters,' he says. ``It's what I do in the meantime.'\
Joan Byers Erwin was one of the people impressed by Michael Pinch - so much so that she said publicly that Pinch should not be put to death.
That wouldn't be so unusual except that Erwin was a highly respected deputy state attorney general and one of the state's toughest prosecutors. It was her job to oppose Pinch's appeals and fight for his execution. She was assigned Pinch's case when he arrived on death row - and told the News & Record in 1996 that she was troubled by it from the beginning.
By then, Erwin had been hearing testimonials about Pinch from lawyers and others for 15 years. She said the case did not ``have the feel of a death case' and told the News & Record she was concerned that ``the person the jury saw is not the person he really is.'
Erwin said her feelings about the case did not affect her work on it, that changing case law contributed to the delay. But she admitted that at a court hearing in 1984, she purposely refrained from objecting to defense lawyer Wayne Harrison's lengthy testimony about how Pinch was incapable of presenting his true self to the jury, so that Harrison's testimony became part of the record that a future governor could consider during a possible clemency hearing. The record also shows that she waited four years, from January 1989 to February 1993, before filing an answer to a defense motion.
Erwin, who declined to comment for this story, was demoted by then-N.C. Attorney General Mike Easley and later resigned. If Pinch's appeals fail, it could be Easley, now the governor, deciding whether to grant clemency.
The case has moved little since Erwin's resignation. Deputy N.C. Attorney General Barry McNeill took over the prosecution of the case and represented the state at a hearing on Pinch's request for a new trial before Superior Court Judge Tom Ross in 1996. Ross left the bench in 1999 before ruling on Pinch's motion. Judge Melzer Morgan was assigned the case.
Cooney, Pinch's appeals lawyer, filed a motion in 2001 accusing the state of withholding evidence that he says shows that the killings of Pacheco and Ausley were not first-degree murders. It wasn't until 2001 that Cooney was allowed to see evidence showing that Pacheco had a history of commiting violent attacks and that he and Ausley were drug dealers.
Cooney said the new evidence ``not only corroborated Pinch's fear of Pacheco and Ausley but provides a basis to believe that the fight which led to the shootings was likely the result of a drunken brawl between violent people, rather than a sophisticated strategy to execute two innocent victims in a roomful of eyewitnesses.'
Cooney also argues that in the 22 years since Pinch was convicted, legal principles established in the case - including trial Judge Hal Walker's refusal to allow a psychiatrist to testify that Pinch could adjust to prison life - have been overruled on five separate occasions. ``Obviously, Michael has shown he can adjust to prison,' Cooney said.
McNeill declined to be interviewed. However, he argued at a previous hearing that the court decisions overruling Judge Walker are not retroactive and cannot benefit Pinch.
Cooney's motion also says it's cruel and unusual punishment, and unconstitutional, to imprison Pinch under a sentence of death for 22 years.
``I'd say 22 years would qualify as reasonable doubt,' Harrison says.
Beyond the legal questions lie the more troubling philosophical ones.
If someone like Pinch can be transformed by prison, should he still be executed?
``I don't know the Michael Pinch of 22 years ago,' Cooney says. ``But the actions of the Michael of today speak for themselves. The Michael of today worries and cares about other people. The Michael of today takes responsibility for his actions. He is profoundly sorry for the pain he has caused.
``The state can't kill the Michael Pinch who fired the shotgun 22 years ago. That Michael Pinch no longer exists.'
Killing him would serve no purpose, says Pike, the former Central Prison chaplain.
``The purpose of prison is to incarcerate and rehabilitate,' Pike says. ``Michael was rehabilitated long ago. If they execute him, I don't know if I could find words to express my sorrow.'
The Ausleys know all about sorrow.
George Ausley recalls how Tommie helped him in the family business and wonders what he would have made of himself. ``He was a good boy. I think of him every day.'
Lottie Ausley says when Pinch shot her son, he destroyed her family. She and George Ausley divorced, and she has had 12 heart attacks since her son was murdered.
Pinch wrote her a letter describing his remorse, but she refused to accept it or even have it read to her.
Lottie Ausley says it doesn't matter how remorseful Pinch is or how many good works he's done on death row. She doesn't care if he's a different person today.
``That doesn't change a thing,' she said. ``Why is he still living?'
\ Contact Stan Swofford at 373-7351 or firstname.lastname@example.org