By Anne Blythe

The News & Observer

When a Wake County jury decided late last month to spare the life of a man prosecutors described as a -"monster" and "cold-blooded serial killer," death penalty opponents quietly hugged one another.

Samuel J. Cooper, 33, whom defense -attorneys had portrayed as mentally scarred from years of physical and emotional abuse, would not join the 157 inmates on North Carolina's death row. The killer, convicted by the same jury of five first-degree murders, would spend the rest of his life in prison -without possibility of parole.

The sentence was a sign of changing times in North Carolina, one of 35 states where -capital punishment is allowed - but used less and less frequently.

"You look at that case as a prosecutor and say, 'If you can't get the death penalty in that case, gee, what case are you going to get the death penalty in?'" said Jim Woodall, the -district attorney in Orange and Chatham counties who also serves as president of the N.C. Conference of District Attorneys. "More and more, the climate is against trying capital cases; therefore, you have to have almost a perfect trial for it to be upheld."

The Cooper sentence came one day after federal prosecutors accepted a plea deal in the capital case of Demario Atwater, one of two men accused of murdering Eve Carson, who was student body president at UNC-Chapel Hill.

Atwater, one of the few in North Carolina charged both in state and federal court for the same crime, agreed April 19 to plead guilty to federal kidnapping and carjacking charges, crimes that could have resulted in a death penalty. In exchange for the guilty plea, Atwater was assured a sentence of life in prison without possibility of parole, not death by lethal injection.

Atwater still faces the possibility of capital punishment if he is convicted on state charges of murder and kidnapping. He is being tried in Orange County, where no jury has returned a death sentence in modern times.

Ken Rose, a staff attorney with the Center for Death Penalty Litigation in Durham, says the resolution of the Atwater and Cooper cases is evidence of a shifting -landscape in tolerance for the death penalty.

"It signals a sea change," Rose said.

One Sways 11

Only one juror held out against the death penalty for Cooper, so the case could -easily have ended at death row for him. But those types of cases are rare: Since 1996, the number of capital trials in North Carolina has dropped from dozens a year to single digits. Death sentences have become even rarer.

Statistics from the Center for Death Penalty Litigation show that 14 years ago, more than half of the 60 capital -trials in North Carolina resulted in death sentences.

Last year, there were nine capital trials, and two resulted in death sentences.

Several issues have factored into the decline of the death sentence. With advances in -science and the creation of an innocence inquiry commission, wrongful convictions have been exposed in many states, including North Carolina. Allegations of racial discrimination in jury selection and decisions by prosecutors to pursue death in some cases and not in others have triggered questions about fairness.

The higher costs of capital trials, too, have prompted calls for abolishment of the death penalty.

For roughly three years, a push to stop doctors from assisting in executions and a lawsuit filed by some death row inmates challenging the use of lethal injections as cruel and unusual punishment have led to a de facto moratorium on executions. Last year, the state legislature adopted the Racial Justice Act, which gives all death row inmates and anyone facing a death penalty trial an opportunity this year to challenge their case on racial biases.

A recent poll by Elon University showed that public support for the death penalty has dropped.

Better Defense

As the number of cases declines, the quality of defense for those exposed to the death penalty goes up, prosecutors and defense lawyers say.

In the Cooper case, defense attorneys acknowledged from the start that their client killed five men. Prosecutors played a taped confession to jurors early in the trial, with Cooper describing in a calm, emotionless voice how he killed Osama "Sam" Haj-Hussein, 43; LeRoy Jernigan, 41; Timothy Barnwell, 34; Ricky High, 48; and Tariq Hussain, 52.

All but High were killed -during robberies.

Though Cooper was described as having killed the men with cool indifference, the 12 jurors had a much more -difficult time deciding whether he should live or die.

Defense attorneys argued that Cooper suffered from -post-traumatic stress syndrome resulting from physical and emotional abuse by his father. Before the sentencing -deliberations began, defense attorneys urged jurors to consider Cooper's mental health troubles as reasons to spare his life.

A lone juror persuaded 11 others to settle for a sentence of life without parole instead of death by lethal injection. In their deliberations, several jurors who supported the idea of capital punishment said their speculation that the death penalty might be -abolished in North Carolina within the next decade made it easier for them to agree to a life sentence.

Woodall, the Orange-Chatham district attorney, says recent legislative actions and the three-year halt of -executions have made him question, too, whether leaders still strongly support a death penalty in this state.

Woodall said that he and other prosecutors believe "the will of the state is not clear."