Ghost of the Innocent Man

by Benjamin Rachlin

  In early January 1994, the same day nurses released Willie from medical observation, a superior court judge approved de Torres’s motion, and ordered that Willie’s sentence be amended.

  Willie, meanwhile, wrote to the governor, to ask that he be considered for clemency. “I am not guilty of these crimes,” he promised. “The fingerprints did not match my prints… Sir the Due Process forbids the judge from relying on materially false or unreliable information.” In the same envelope he enclosed copies of the 1988 affidavits de Torres had gotten from Betty and Carolyn Shuford, Rachel and Richard Wilson, Les Robinson, and Brenda Smith.

  To help Willie’s chances, de Torres agreed to add a letter on his behalf, free of charge, to accompany Willie’s own.

  Dear Governor Hunt,

  I was the attorney who represented Mr. Grimes. Throughout his trial, Mr. Grimes maintained his innocence of this crime. I am convinced that Mr. Grimes is innocent of the charges against him, and that he was convicted only because of the nature of the crime of rape and the sympathy towards an aged victim.

  Mr. Grimes is a gentle, mild-mannered and soft-spoken older man, and his character does not represent him as a man who is capable of such a crime as rape. It is clear to all who know him that he just could not have committed this crime, and had no previous record for violence.

  In fact, “the trial disclosed no physical evidence that directly tied Mr. Grimes to this crime,” de Torres pointed out, and “witness affidavits and testimony at trial clearly show that Mr. Grimes was at the home of Rachel Wilson during the hour in question.”

  In this case justice and fairness failed, and an innocent man was wrongfully convicted. Mr. Willie James Grimes has been incarcerated since October 28, 1987 and I urge you to take a close look at this case and grant the petition for clemency on behalf of Mr. Grimes in the interest of justice. I wholeheartedly feel that the State of North Carolina has nothing to fear from the release of Mr. Grimes, and that it can gain by correcting this injustice after nearly seven years of incarceration.

  Sincerely,

  E. X. de Torres

  Attorney at Law

  In summer Willie’s clemency petition was denied. He wrote to the ACLU, to ask if they could do anything at all to help him. “Unfortunately, the American Civil Liberties Union of North Carolina Legal Foundation is not able to assist you with this matter,” read their reply. “We have only one attorney and one paralegal.” Because of its “very small budget,” the ACLU only considered cases referred to them by a lawyer, or by another organization. Instead, the ACLU suggested Willie try Prisoner Legal Services, which had a larger staff, and whose “primary purpose is to represent prisoners with legal claims,” the ACLU promised. It hoped Willie would have better luck there.

  16

  The Elephant in the Room

  No one knew what a back-end solution might look like. It had been hard enough persuading the relevant authorities to adopt ID reform. Now to revisit convictions? This would be worse. At least they had air conditioning, one commissioner joked; it was barely eleven in the morning on a Friday in May 2004, and the temperature outside the bar center already soared near eighty.

  Different states offered different procedures, but an inmate in North Carolina had four available routes out of prison, and there were problems with all of them. First was a direct appeal, which didn’t consider new evidence and, even if it succeeded, provided only a retrial. Second was habeas corpus, in federal court, which didn’t consider new evidence, either, since it was designed to remedy constitutional violations. Third was clemency from the governor, which, for political reasons, was granted rarely. Fourth, and by far the most common, was a motion for appropriate relief.

  MARs considered a wider range of conditions than any other appeal, including certain bureaucratic errors—if “the trial court lacked jurisdiction,” for example—as well as a discovery of new evidence. It also offered a wider array of potential outcomes: a new sentence, a new trial, even a dismissal of charges. But all this had caused a different problem. Nearly every inmate statewide filed at least one MAR claim, so the courts were inundated with them. Even a well-meaning judge could read only so many before he grew skeptical and cursory. And the huge majority of MARs were easy for him to deny, since, despite the range of grievances MARs considered, the burden for proving any one of them was steep. To count as new evidence, for example, a particular fact had to be “unknown or unavailable to the defendant at the time of trial.” If a fact had been available at trial, then it did not count as new evidence, even if jurors had never seen it. If the fact passed this hurdle, an inmate still had to prove that his new evidence demonstrated “prejudice… by a preponderance of the evidence,” or that rejecting his claim would “result in a fundamental miscarriage of justice.” This meant a situation where “no reasonable juror would have found the defendant guilty.” It was a high standard. Terence Garner had filed three MARs before he was finally exonerated, in 2002; Charles Munsey had filed four before his death in 1999. An exoneree from 2004, Darryl Hunt, had filed eleven.

  Even if an MAR succeeded, the most it could offer an inmate was acquittal, another commissioner mentioned. This was a court’s way of saying, We no longer find you guilty of the crime we once found you guilty of. If commissioners were acknowledging this was possible, for an inmate to be wrongly convicted, wasn’t that a paltry gesture? The inmate’s guilt had been a finding of law. It wasn’t enough to now find him not guilty. The law ought to find him innocent. Those were different, both legally and in principle.

  Which meant an overhaul of the MAR statute, nearly everyone agreed. But how to do that? They’d just said the problem was twofold. On the one hand, an MAR’s criteria were too narrow. There were too many circumstances it didn’t account for. On the other hand, its criteria were also too broad. It allowed too many nonsense claims. The process had to be quicker, but it also had to be more sensitive. No one saw a way to do this. How was it possible to rule on motions both faster and more carefully?

  Were they pursuing the wrong strategy? one commissioner wondered. The fact was, MARs were procedural. They’d never been designed for innocence claims. Maybe what they were trying was impossible. Maybe what they needed was some new, separate process—not to replace the MAR but to function alongside it, for innocence claims exclusively.

  To learn about the possibilities, in June Chris invited David Kyle to join the commission at the bar center in Cary, a considerable trip from where Kyle lived in England. A former British prosecutor, Kyle now worked at something called the Criminal Cases Review Commission, an independent body in the United Kingdom that reviewed and investigated potential wrongful verdicts. Established by Parliament a decade earlier, today the CCRC had its own budget and fourteen salaried members, all of whom had been recommended by the prime minister, then appointed by the queen, to staggered three-year terms. There they could subpoena police or prosecutorial files in cases where new evidence had emerged, or where attorneys intended a new argument. The CCRC could then refer valid claims to nearby appeals courts, which, given enough evidence, could overturn convictions.

  Kyle spoke to a full room. By now the commission roster had swelled to more than thirty invited members, each of whom saw plainly what Kyle was proposing: an independent body, separate from MARs, grounded in inquisitorial rather than adversarial review—a collaborative model, not a competitive one, a philosophy more common in Europe than here.

  But how would a model like this work in North Carolina? Over four hours that day, then three more in August, commissioners listed every concern and question they could think of. Frivolous claims had flooded the MAR process; what made anyone think they wouldn’t flood some new process, too? And who would serve on an American version of the CCRC? Who would appoint these people, and for how long? What guarantee did anyone have that such an appointment process would work fairly?

  Each constituency could appoint its own representative, someone suggested.

  But how would people a
ppointed this way behave once they got there? Wouldn’t they feel beholden to whoever had sent them? Wouldn’t someone who represented prosecutors feel pressure to uphold convictions? Wouldn’t someone who represented defense attorneys feel similar pressure to topple them?

  Representative was the wrong word entirely, another commissioner offered. As soon as she arrived, a person in this position would need to be loyal to the facts, not to her colleagues. If she couldn’t evaluate a verdict empirically, there was no reason for her to be there.

  Perhaps members could be appointed by an independent third party, rather than by constituencies, another commissioner proposed.

  But who would that be? The governor? The Speaker of the House? And once members were appointed, what would qualify a case for review? How, for that matter, would investigators review it? To review the wrong cases was a waste of resources, but it was also a problem for another reason: appeals were important, but so was closure. The courts couldn’t be endlessly recursive. At some point, a verdict had to be final. “A system of justice is about resolving disputes,” Tom Ross, the former superior court judge, pointed out. “If there’s no end to those disputes, then we’re not doing our jobs.” A typewritten list of this and other obstacles ran for twelve single-spaced pages, in ten-point font, until, halfway down the last page, someone finally wrote, “Enough, already!”

  To regard a CCRC model seriously, commissioners needed two things, the group decided at last. The first was a high threshold for what counted as a credible claim. A felon had to provide more than his word. He needed additional evidence, beyond what had been presented at trial. Second, his claim had to be for complete, literal innocence, not just for reduced culpability or a lesser sentence.

  To guarantee both of these, commissioners invented a pair of novel requirements. To apply to this new body in the first place, an inmate had to agree to absolute transparency. This meant waiving every one of his constitutional protections and privileges, including his Fifth Amendment right against self-incrimination, his attorney-client privilege, and the privacy of anything relevant he’d ever told his doctor, priest, or spouse. Second, any evidence at all that investigators uncovered, they would be entitled to act on—no matter what it proved, no matter what case it related to. If an inmate was claiming he was innocent of murder, he’d better not have confessed otherwise to his therapist. And he’d better not have committed any other crimes. If he’d done either, investigators would learn of it and, because it counted as new evidence, would forward the information to police.

  Neither requirement thrilled defense attorneys, who nonetheless agreed both were necessary. “Look, we’re creating something new,” Rosen later told colleagues who phoned him to complain. “Completely new. We can’t do that and also keep all the rules from before. We’d just have another MAR.” Besides, the commission hadn’t been founded on behalf of the guilty. Rosen’s job wasn’t to shield clients like that, at least not during commission meetings. He and Newman and Coleman were focused on innocent clients.

  Once investigators accepted a claim, they would be uniquely empowered to pursue it, commissioners decided. If they were going to reopen cases, they would need the authority to do this correctly—to subpoena witnesses and evidence, to direct forensic tests and searches, to petition for affidavits and court orders, to administer their own oaths. After all that, if investigators still believed an inmate credible, they would bring his case to a hearing. Some verdict would be necessary, and then it would proceed to a panel of judges. There the entire case, including all its new evidence, would be argued anew, and judges would render a final decision.

  No one knew exactly how a case would proceed from the hearing to the panel. Clearly some threshold would need to be met, but commissioners couldn’t agree on what it was. That an inmate was “more likely innocent than not”? That he was innocent “beyond a reasonable doubt”? And what about the panel of judges? What requirements would need to be met there? For that matter, how many judges were they talking about? And how many of these would need to agree the threshold had been met? Every one of them? A majority? Would their votes be public or confidential?

  Unable to agree, they tabled these questions for later. Still, after a year discussing back-end solutions, look how far they’d come, commissioners murmured. Already they’d invented an entirely new model. In a few more meetings, it would be simple enough to complete. This wouldn’t be so hard, commissioners didn’t think, compared to what they’d accomplished already. The most challenging obstacles were behind them. All that remained were details.

  They were wrong.

  Two years earlier, shortly after Beverly Lake had summoned fifteen of his colleagues to the first meeting of his tentative commission, Chris had made a phone call of her own—to Donna Pygott, of the North Carolina Victim Assistance Network. NCVAN was the state’s largest advocacy organization for crime victims, an influential group in local politics that had long opposed any legal reforms that, interpreted narrowly, made criminals any harder to catch or punish. It was easy to predict what NCVAN would think of the commission’s proposal to revisit convictions, so Chris wanted to soften the ground before Pygott heard about the plan elsewhere. She invited Pygott to lunch. Both women happened to share backgrounds in accounting—Chris at Northern Telecom, and Pygott at various nonprofits—so for several minutes, the two swapped industry stories. Then Chris broached why she had phoned. How did Pygott think NCVAN would respond to the commission’s efforts?

  Not at all well, Pygott answered. The people she represented had been victims of crimes. Some of those crimes were unspeakable; Pygott still shuddered when she thought about them. The point of NCVAN was to support people like these, to walk them through the court process and help them heal in the aftermath of tragedy. The courts as they stood were often the only thing a victim felt he or she could rely on. And NCVAN was often the only access victims had to someone who understood them, as well as their only advocate with lawyers or police or in the legislature. In certain jurisdictions, no one even kept a crime victim informed about his or her assailant’s trial. Could Chris believe that? Pygott was wary of any legislation that trampled on people like these, or that made convicting perpetrators any harder. The last thing a crime victim wanted to hear was that the person who’d caused such harm would never be brought to justice.

  “I understand all that,” Chris told her, nodding. “But I need you to consider something. Let’s think about death row. Those people are scheduled to be executed. Do you believe it’s possible that one of them, a person on death row, could be innocent?”

  Pygott hadn’t thought much about this.

  She wasn’t asking rhetorically, Chris insisted. She really wanted to know. “Is it possible?”

  On her fingers, Pygott ticked off every stage a felon had to pass through before he was convicted. A police investigation; formal charges; a preliminary hearing and indictment; a jury trial, where he had a lawyer; appeals. To be found guilty at each of these hurdles, and still be innocent? “It would have to be near impossible,” she told Chris.

  “Define near impossible,” Chris urged. “Because near impossible means someone on death row could be innocent. The only way we know nobody there is innocent is if it’s fully, literally impossible.”

  Pygott considered this. “Well, no,” she finally conceded. She couldn’t say it was literally impossible.

  Chris nodded again. “That’s all we’re saying.”

  When she left lunch, Pygott phoned the board of directors at NCVAN to let them know what was happening. Not one of them was pleased. The very existence of Lake’s commission sent a message they opposed: that the criminal justice system in North Carolina was flawed. This was the system their constituents relied on! Why had Pygott afforded Chris Mumma any credibility at all? Why had she agreed to lunch, and, once she did, why hadn’t she answered yes? Yes, it was impossible for a person on death row to be innocent. The courts hardly rushed to verdicts. More than one NCVAN board member had ex
perienced firsthand all their bureaucratic foot-dragging. A person didn’t make it through that entire process and end up on death row accidentally. It happened because he was guilty.

  Nevertheless, if the commission was going to exist—and Lake had gone ahead and formed it, without their blessing—then NCVAN wanted someone at all its meetings, to report back and make sure the group didn’t do anything reckless.

  After her lunch with Chris, Donna Pygott thus began attending commission meetings, often bringing a crime victim along to sit quietly with her in the rear. Personally, she felt ambivalent. She had a responsibility to NCVAN, whose mission she believed in. Victims were the only ones in a criminal situation who’d gotten there involuntarily, Pygott knew. Everyone else had come by choice: the criminal, the police officer, the lawyer, the judge. Only victims had been put there without any say.

  But the question Chris had asked still tugged at her. Was it literally impossible that a convict might be innocent? No, she still thought. It isn’t impossible.

  NCVAN had never been thrilled with the commission’s eye-witness-ID reforms, but this proposal to revisit trial verdicts distressed them even more. The commission was hoping to free criminals. It planned to return felons to the streets. And it was reneging on the promise of closure that courts made to victims. Pygott’s home phone began ringing: Why was she wasting taxpayer dollars to scuttle their own judicial system? How many of those same dollars was anyone spending on victims? Didn’t Pygott understand why trials existed, and what harm this could do to them? How had she allowed any of this?

  To all these complaints, commissioners themselves felt sympathetic. To a point. Beneath NCVAN’s valid concerns lay another, subtler reason for its opposition, more than one commissioner suspected: not only anxiety that closure might unravel, or that criminals might be freed, but also an unspoken defensiveness. Say a felon turned out to be innocent. What did that mean? Suddenly there were two victims, weren’t there? And what if one had testified against the other? What did that mean? Didn’t it blemish her? Didn’t it change things?