Appeal raises death issues

Durham jury convicted man

Staff WriterJuly 26, 2005 

Donald Scanlon got off death row because a judge decided his attorneys didn't raise enough questions about how the victim actually died.

Scanlon's current attorneys think the questions about Claudine Harris' death are significant enough to get Scanlon out of prison.

From the time Scanlon was arrested and charged in Harris' 1996 death, he has said he did not murder her. At trial, his attorneys contended that she might have put a bag over her head and died accidentally in a erotic asphyxiation scene or from a heart attack during some sort of sexual activity. But the jury in that case did not hear other evidence that Scanlon's current attorneys think shows that Harris died either from a heart attack or suicide.

The state Court of Appeals will consider several issues in the trial, including whether Harris was actually murdered. Last week, the deputy attorney general handling the case for the state wrote that the original jury heard enough to consider whether Harris was killed.

"The Defendant received a fair and impartial trial, free of reversible error, and, therefore contrary to the Defendant's inflammatory and unnecessary rhetoric, his conviction and sentences should be affirmed," wrote Barry McNeill, a special deputy attorney general who signed the state's response to Scanlon's appeal.

Last week, when former prosecutor Freda Black announced her plans to run for Durham district attorney, she was introduced by Harris' sister, Barbara Breeden. Breeden talked of her sister's death and thanked Black for her role convicting Scanlon, who is now 46.

"As far as I'm concerned, it's over. He did it," Breeden said after Black's campaign event.

In 1995, Harris, a retired school teacher, hired Scanlon, a drifter from Syracuse, N.Y., to do carpentry work for her company. He lived with her for a time.

On Feb. 27, 1996, Harris' body was discovered in her bed. She had bruises and a plastic bag tied over her head. The doctor who determined that Harris was killed did not have her medical records or know that she had cocaine in her system when she died. She was 64 and a longtime smoker.

In the days after Harris' death, Scanlon drove her car to South Carolina and eventually New Orleans, using her credit cards along the way. He left the car and took a bus back to Syracuse.

In June 1998, Scanlon was convicted of first-degree murder and sentenced to die. He sat on death row for six years before a judge ordered a new sentence. Prosecutors chose not to seek the death penalty, leaving Scanlon with a life sentence.

Last year, the trial judge, Ronald Stephens, determined that after a jury found Scanlon guilty, his attorneys, Brian Aus and Lee Castle, should have used Harris' lengthy medical records to dispute the cause and manner of death. Stephens also criticized the lawyers' conduct during the trial itself, but he didn't find the mistakes serious enough to throw out the conviction.

But according to Scanlon's appeal, during the trial itself, the lawyers made only limited use of the medical records, which demonstrated a long history of serious heart problems and depression. They failed to show the records to their medical expert, who was called to the stand to dispute the state's claim that Harris was asphyxiated.

"The court found their failure to challenge the cause and manner of death prejudiced the jury's sentencing-phase decision," Scanlon's attorneys wrote in the appeal. "The court found the same omissions reasonable and/or nonprejudicial in the guilt phase."

Janet Moore, one of Scanlon's appellate attorneys, declined to comment on the case. Stephens could not be reached.

Since his conviction, Scanlon's attorneys have enlisted experts in psychiatry and pathology. Those experts have determined that before she died, Harris was at a high risk for suicide. Pathologists, including Dr. Richard Page Hudson Jr., former N.C. chief medical examiner, have said that they would not classify her death as a homicide and that a plastic bag over the head is most often used in suicide and rarely, if ever, in a homicide.

Staff writer Benjamin Niolet can be reached at 956-2404 or bniolet@newsobserver.com.

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