Ghost of the Innocent Man

by Benjamin Rachlin

He met with a psychologist, who determined he was doing better now that he was nearer his home, and could receive visits. “He presented w/ a broad affect + spontaneous smiling.”

  In 1997 his sister Gladys found a lawyer out of Greensboro, who agreed to look over Willie’s case for a fee of $1,400. So she paid him and forwarded her brother’s transcript, which the lawyer read before agreeing to take on the case for another $2,800. Again she paid. Now every time she called she got his receptionist, who told her the lawyer couldn’t discuss the case with anyone but Willie, since Willie was his client. From her brother’s letters, however, Gladys knew the lawyer wasn’t discussing the case with him, either. For months the two of them waited, into the new year. Then Gladys got a letter from the firm with news that the lawyer had been disbarred. Another partner in his office was willing to take on Willie’s case, for a new fee. Gladys refused. The lawyer hadn’t accomplished a thing, so she wasn’t about to pay some partner of his simply so he wouldn’t accomplish a thing, either. More than four thousand dollars was gone, and her brother was back to where he’d started.

  In fact, this wasn’t quite true. Before the lawyer was disbarred, he’d filed a motion for appropriate relief on Willie’s behalf, alleging ineffective assistance of counsel. He simply had never told Willie or Gladys about the filing. This oversight turned out not to matter. In July 1998, the MAR was denied.

  Willie had spent a decade in prison.

  His case manager asked him once more if he wanted to serve as a peer counselor in the DART program. This time he agreed. Since now he was near Lawndale again, he hoped to remain at Lincoln for as long as he could, and he liked the idea of helping other inmates even a fraction as much as Jehovah had helped him. A DART classroom held twenty or so students, two teachers, and two inmate counselors, who passed around handouts and shared their own experiences. Willie guessed inmates might listen to him before some teacher coming in from the outside, so in class he explained as best he could how drugs harmed a person’s body and how he personally had learned to avoid them. When the program was through he met again with his case manager, who decided Willie had done so well in DART he would refer him to a second program, called SOAR, specifically for sex offenders. Enrolling was the first step toward promotion to minimum custody, then parole. To be eligible, however, Willie needed to show he had taken responsibility for his crime, which he could do by signing a form expressing remorse for the rape he’d committed. Willie declined. He hadn’t committed any rape, he pointed out. A staff psychologist in turn filled out a form rejecting Willie from the program.

  SEX OFFENDER ACCOUNTABILITY AND RESPONSIBILITY PROGRAM CLINICAL ASSESSMENT REPORT

  Directions: This report is to be completed by a designated member of the referring area/Institution’s mental health staff after interviewing the inmate being referred.

  Inmate’s Name: Willie Grimes Inmate #: 0158046

  Location: Lincoln Date of Report: 5 – 29 – 98

  Report Completed By: Melanie Morgan, MA

  1. Desire to Participate: Low ____Moderate _____High

  2. Intellectual level: ____ MR Borderline ____Normal ____Above Normal

  3. History of psychosis: ____ Yes No

  Admits to crime: ____ Yes No

  4. Accepts personal responsibility for crime: ____ Yes No

  5. Empathy for victim: Low ____Moderate ____High

  6. Has received treatment for sexual offense in the past. ____Yes No Comments: _________________________ _________________________________________________________

  7. Is currently participating in treatment for sex offense. ____ Yes No Comments: _________________________ _________________________________________________________

  8. Has participated in mental health treatment or counseling in the past. ____ Yes No Comments: _________________________ _________________________________________________________

  9. Is this person sufficiently stable to handle an intensive confrontational program? Yes ____No

  10. Do you recommend this inmate be accepted in the SOAR program? No ____ Some Misgivings ____ Recommended ____ Strongly Recommended

  Comments: Does not admit to crime.

  ______________________________________________

  Release: I do not wish to be considered for treatment in the SOAR Program at this time. If I wish to be considered in the future, I understand that I can contact any mental health staff with that request.

  Inmate Signature: Willie j. Grimes Date: 5/29/98

  18

  An Extraordinary Procedure

  Before and after meetings, splitting her time between the center and her home office, Chris wrote a preliminary draft of legislation, anticipating the commission would spend the next several months amending it. She e-mailed her draft to fellow commissioners and arrived optimistically at the bar center in January 2005, with spare copies in her briefcase.

  But she never had a chance to bring them out. Instead, Colon Willoughby spoke up. For more than twenty years, Willoughby, a Democrat, had been the district attorney there in Wake County; before that, he’d served as president of its local Academy of Criminal Trial Lawyers, then as president of the statewide conference of DAs, and then on the board of directors of the National District Attorneys Association. Meanwhile he’d been a member of the commission from its very beginning at Chris’s house. Already the law provided safeguards against wrongful convictions, Willoughby pointed out. He agreed with the others that MARs were flawed. He just didn’t see how this premise had led them to abandon the process entirely. Why hadn’t the commission tried at all to improve MARs, if everyone agreed they needed to be? Wasn’t that a better idea?

  Anyway, commissioners had never voted on this, Willoughby added. They’d voted initially only on whether to take up the issue at all, not on this new model, which undermined the whole nature of their adversarial system—the premise, he reminded them, of American jurisprudence in the first place. Consider the message that would send. They might as well hang a banner saying the justice system couldn’t be trusted.

  Mel Chilton agreed with Willoughby. Chilton had replaced Donna Pygott as the newest director of NCVAN. Revisiting jury verdicts would do nothing but cast doubt on the system, thereby crippling it, Chilton remarked. Eventually this would make it impossible to convict anyone.

  Willoughby and Chilton were right, some commissioners murmured. In fact, their new model might be a terrible idea. Why hadn’t they discussed MARs more seriously? They all knew what a mess it was to start rethinking jury verdicts, and yet here the commission was, rethinking them. Whose idea had it been to invent a totally foreign procedure? How exactly had they ended up here?

  Chris felt dumbfounded. How had they ended up here? Read the fucking minutes, she thought. At every meeting she recorded these minutes herself, then e-mailed them to everyone afterward. They’d had this conversation, two months earlier, in this exact same room, while seated at these exact same conference tables. If you people are against revisiting verdicts, she thought, let’s not revisit this one.

  She felt a flush of anger toward Willoughby, who she believed had opposed this idea from the start, for the same reasons most prosecutors did. A DA’s job was to seek convictions, and now he was supposed to help overturn them? That verdict had been his own work, or his colleague’s, or his predecessor’s. The harm this could do to his reputation was obvious.

  In addition to that, DAs, perhaps more than defense attorneys, who regularly filed appeals, were trained to defer to a jury’s decision. If twelve men and women had been presented evidence at trial, and determined a man was guilty, then who was anyone to overrule them? The prospect made DAs uneasy. So did calling a man innocent, as a finding in a court of law. The term hadn’t come up in law school; it didn’t appear in their vocabulary. A trial found someone either guilty or not guilty. It didn’t find anyone innocent.

  Still, all these were poor excuses for protecting a wrong verdict, Chris felt. And even among DAs, Willoughby from the beginning had been most
outspoken. Now he was staging a coup, she thought.

  While Chris fumed, her colleagues spoke up. No one had thrown this model together hastily, over cocktails, Newman insisted. The commission had been discussing it for months, as everyone in the room well knew. They’d all been present the entire time.

  MARs were not isolating valid claims of innocence, Coleman added. They’d grown into a bureaucratic nightmare. Commissioners could spend a lifetime disentangling that process, or they could form something better.

  If the others wanted, they could put aside the moral argument, Rosen offered. If that didn’t compel them enough—and it disappointed him to consider it might not, he admitted—then what about the financial problem? Wrongful convictions, combined with a dysfunctional appeals process, was reckless moral policy, and reckless legal policy, but it was also reckless fiscal policy. Needless prison time, plus needless appeals, plus needless compensation once the inmate was exonerated—all three of those cost taxpayers more than this review model they were proposing.

  Finally, Beverly Lake had heard enough. Often Lake was content simply to listen at commission meetings, and sometimes he even let Chris shepherd the proceedings. No longer. “This isn’t your meeting to run,” he told Willoughby. Then he addressed the room.

  It was a mistake to cite the public’s trust as a reason to do nothing, Lake declared. That trust had already been harmed; the problem was out there, people knew of it. He didn’t see how responsible legislation would make anyone trust the courts less.

  That problem was twofold, Lake continued. He hadn’t formed the commission solely to free the wrongly convicted. He had also formed it to convict the wrongly free. Every mistaken verdict meant a criminal remained on the streets. A broken appeals process meant he stayed there. This needed to change, and MARs weren’t getting it done. That was why the review model had gained traction. That was how they’d ended up here.

  Privately, Lake had been dealing with criticism from Willoughby and others for as long as the commission had existed—not just against its policies but against himself personally, and not only from commissioners but among his closest friends. Those who knew him had once considered him a reliable conservative. Now they felt he’d betrayed them. What was Lake doing, leading a bunch of liberals? For months between meetings, he’d also been phoning reluctant commissioners, persuading them not to abandon the effort. Not once had he asked anyone to temper where he or she stood. He knew this strategy might lead to friction during meetings, but he also believed it was the only way that meetings would continue at all.

  And he’d had an especially difficult time with Colon Willoughby. The two men knew each other, but only barely. Nearly from the start, Lake felt he had watched Willoughby obstruct the commission from within, at every opportunity. Even when consensus finally emerged, Willoughby’s tactics meant this always took longer. And now Lake himself was under time pressure. By North Carolina law, he faced mandatory retirement at the age of seventy-two. He was seventy-one. His birthday was in eleven months; if he wanted legislation on this new appeals model, that was how long he had to propose it.

  Willoughby was right about one thing, Lake granted him; they’d never voted. It was time they did, at least on the concept. If commissioners agreed this model was worth doing, they would know what they had to work on. If not, they would find something else.

  One commissioner, from the attorney general’s office, voted nay. Three others abstained, among them Mel Chilton from NCVAN.

  Everyone else voted yea. Including Colon Willoughby.

  The January vote was the turning point Chris had hoped for. For more than seven hours that February, over two separate meetings, commissioners negotiated final details—the first time they’d met more than once in the same month. Because the review body would be essentially judicial, they agreed that the chief justice would appoint its members. It would include seven positions, representing every conceivable perspective on the law, including a prosecutor, a defense attorney, a victims’ advocate, at least one judge, and a regular citizen. In a private hearing, this body would determine whether a particular case included “sufficient evidence of factual innocence to merit judicial review.” If it did, the case would be forwarded to a panel of judges, who would decide whether there was “clear and convincing evidence of innocence.” That proceeding would be public, and amounted nearly to a new trial, though with a pair of important differences. At trial, the burden of proof ordinarily fell on the state; a defendant was innocent until proven guilty. At the panel, this would be reversed. The inmate would be guilty until proven innocent. And at trial, obviously, this decision came to a jury. At the panel, three judges would make this decision themselves.

  It had taken weeks to agree on language—“sufficient evidence of factual innocence to merit judicial review,” “clear and convincing evidence of innocence”—and on a name for the review body: the North Carolina Innocence Inquiry Commission. A synopsis of its purpose had come more easily: “This Article establishes an extraordinary procedure to investigate and determine credible claims of factual innocence,” the proposed statute read.

  Soon, more compromises. For a case to proceed to the three-judge panel, five of seven IIC members would need to vote this way at a hearing. Then, for an inmate to be exonerated, all three judges on the panel would need to agree.

  At last, in March 2005, the commission voted on whether to submit its bill to the general assembly. Two commissioners abstained. Twelve voted nay.

  Beverly Lake, Chris Mumma, Rich Rosen, Theresa Newman, Jim Coleman, Jennifer Thompson, Mike Gauldin, Tom Ross, Don Stephens, Bob Orr, and six others voted yea.

  “I think whatever we got is going to the General Assembly without any broad base of support from victims, law enforcement, or the district attorneys,” Colon Willoughby told the Raleigh News and Observer that spring. “Should we be trying to do this fast or should we be trying to do this right?”

  Obviously no one opposed justice for the wrongly convicted, unnamed “law enforcement officials” promised the newspaper. Their concern was only that they hadn’t been allowed enough time to discuss the issue. “When we introduce this bill, let’s make sure we have the support we need,” cautioned a representative from the state’s bureau of investigation. “I’m afraid at this point we don’t.”

  Other police officials responded more warmly. “I can hold my head up and say I’ve done what I think is right,” Chief Mike Gauldin told reporters.

  “It’s the right thing to do,” added Tom Ross.

  Another commissioner, Bill Hart, who worked in the attorney general’s office, wrote Chris and the commission an eleven-page open letter explaining his reasons for opposing the IIC bill. When he didn’t hear back, he sent a seven-page follow-up. Obviously he was in favor of an improved justice system, and of the improved public trust that would be its result, he wrote. But he didn’t see how the IIC would lead to either. A defendant deserved an “open, public trial,” which the IIC did not provide. Also, he had financial concerns. Already the courts offered plenty of avenues for someone who’d been wrongly convicted, without some brand-new agency. “In fact, the cases often cited as examples of innocent people wrongly convicted have had their convictions set aside and have been granted new trials or have had their cases dismissed based on claims contained in motions for appropriate relief.” Ronald Cotton, Darryl Hunt, Charles Munsey, Terence Garner, James Bernard Parker—all these men had ultimately been freed, or at least offered new trials. Didn’t this show the system was working?

  “I am in receipt of your memorandum of March 3, 2005, much of which seems to be taken directly from your memorandum of February 17, 2005,” Chris finally replied. “I can only assume that you did not think Commission members read or understood your previous memo.” In fact, she’d chosen not to respond for the simple reason that several of Hart’s concerns had been addressed already at commission meetings, and because she’d noticed that both his letters had been shared publicly, rather than
with the commission alone. “Perhaps your most recent memo was actually written for the benefit of a different audience,” she suggested. Or perhaps Hart failed to understand what had occurred at the commission’s many meetings and votes. As for his suggestion that innocence claims were being handled properly, she found this hard to take seriously. Hunt, Garner, and Munsey had combined for eighteen MARs. Parker had been freed not by court initiative but by investigative reporting by journalists. And to hold up Ronald Cotton as an example of the courts functioning as they were meant to—well, this was hard to fathom. “The distribution of your memorandum to non-members of the Commission has called into question your motivations and your commitment to being a member,” Chris wrote in closing. “I would appreciate an explanation.”

  It never came.

  “The bill’s prospects are uncertain,” read another News and Observer article, in April. “Crime victims are opposed and want to study the idea further. Prosecutors support the concept but want changes. Law enforcement officials appear undecided and are conferring with the district attorneys.”

  That summer, however, at nearly nine on a Thursday evening, the bill passed the House of Representatives, 80 to 23.

  The victory had required further compromise: the addition of an eighth position on the IIC, to be held by a county sheriff, and a decision that the chief judge of the court of appeals, not only the chief justice, could appoint its members. The legislature also wanted annual reports, so that representatives could keep abreast of the IIC’s progress.

  Chris and Lake could live with those concessions, they decided, as long as they meant the bill now could be forwarded on to the state senate, which in turn could codify it into law. This needed to happen by the earliest hours of 2006. By the close of that January, Lake would turn seventy-two. Without him in office, Chris couldn’t predict what might happen. The longer the bill remained in limbo, the longer its opponents would have to organize. Chris and Lake needed the legislature to act now, while they had momentum.