Still, journalists and entertainers, in their “thirst for drama,” focused on “the rare case in which an innocent man or woman is sent to prison.” Their audience read books like To Kill a Mockingbird, watched off-Broadway plays like The Exonerated, and believed those cases were a majority. In real life, the criminal justice system was “a work in progress,” Marquis agreed. “But nothing is gained by deluding the public… Americans should be far more worried about the wrongfully freed than the wrongfully convicted.”
The same week of that op-ed, Beverly Lake retired, and nearly a year after Democrats’ stalling, the state senate finally took up his IIC bill—and passed it, without much suspense, 48 to 1. Now the senate bill just had to be reconciled with the version the house had approved a year earlier. Then it could be voted on again in both chambers. “I have no doubt that we’ll resolve the differences and there will be an innocence commission by the end of the session,” Rick Glazier, a local Democrat who’d sponsored the legislation in the house, told reporters. “It’s already in the budget, and I think both sides have indicated by their overwhelming votes it’s a high priority.” Only one senator disagreed—Hugh Webster, from Burlington, incidentally the same town where Ronald Cotton had been convicted. It was Webster who had cast the senate’s single dissenting vote. “I would much prefer that we fix what’s wrong with the system,” he complained to WRAL, a local TV news outlet. He disliked the notion of creating something new rather than reforming what they already had, as he worried about the message this sent. “We’re saying it’s not working. So we have to have this commission to catch and correct errors.”
“We have flotation devices on airplanes,” Chris retorted, when WRAL phoned her to ask for comment. “We have seat belts in cars. We have built-in protections. The justice system should not be the exception.”
By month’s end, the North Carolina house and senate had reconciled. Until now, no one had been able to settle on how many judges would need to agree in order to exonerate someone—two of the panel, or all three?—nor had anyone answered whether an inmate who’d initially pleaded guilty should be entitled to apply to the IIC at all. Finally legislators compromised: The judges’ decision would need to be unanimous. In exchange, however, an inmate who’d pleaded guilty could still apply.
The deal also inserted a further wrinkle. This was a sunset provision; unless the legislature voted to renew it, the IIC would dissolve at the close of December 2010—four years from now.
On the final Wednesday in July 2006, the house passed this newest version of the bill 86 to 28. On Thursday, the Senate followed, 46 to 2. A week later the governor signed it into law. “Its creation gives our criminal justice system yet another safeguard by helping ensure that the people in our prisons in fact belong there,” he announced in a statement.
“It’s a whole different kind of animal,” he added to WRAL.
Passage of the law made news as far away as California. NORTH CAROLINA TO WEIGH CLAIMS OF INNOCENCE, read a headline in the Los Angeles Times. Because of the sunset provision, several news outlets described the agency as a “four-year pilot program,” though still the first of its kind in the country. Two days after the Times article, National Public Radio ran a feature on All Things Considered describing the IIC as a statewide agency “to review the cases of inmates who say they can prove they were wrongfully convicted.” For balance, producers also reached out to opponents of the idea, including the newest director of NCVAN, Mel Chilton. “No one wants an innocent person to serve one minute in jail,” Chilton agreed on air. “But we do not feel that there are these numbers of people that are wrongfully convicted. And this just undermines the whole system that we have lived under for two hundred years.” Chilton worried that her state had simply added more bureaucracy, and more protections for criminals, both of which meant “a step backward for victim’s rights,” all because of what she regarded as “disproportionate focus” on a tiny number of wrongful convictions. “It’s very concerning to those of us who have experienced a very violent crime, and fear that our safety is going to be jeopardized, that someone will get out on some technicality, and we will not be safe in our homes.”
Chilton wasn’t the only one who thought so. The courts already worked, one local DA complained to the Winston-Salem Journal. “It is not necessary to create another level of red tape and bureaucracy such that victims will never get closure now.”
Even defense attorneys weren’t uniformly enthusiastic about the new agency, though for the opposite reason—not because they predicted it would be too disruptive, but because they predicted it wouldn’t be disruptive enough. “I don’t know who’s going to get relief,” one told reporters. “I hope to be proven wrong, but I’m afraid that the innocence commission is more symbolic than practical.”
It didn’t take long for Chris, who was reading the deluge of columns from her nearby home in Durham, to exhaust her limited patience. She penned an incensed letter to the editor of Raleigh’s News and Observer. “It mystifies me when people take the time to compose a written uninformed opinion. Why not make a phone call or send an e-mail to those who are informed on a subject and ask a question or two before expressing an opinion? And, in this case, why not read the Bill establishing the Commission?” She listed several of the complaints she’d seen in recent weeks—that the new agency would be flooded with meritless claims (in fact claims would be “heavily screened,” and the IIC would turn any evidence of guilt over to police, thus providing a disincentive for guilty inmates to apply) and that DAs across the state had uniformly opposed the idea (in fact the conference of district attorneys had publicly endorsed it). Then she named personally two critics whose letters she’d read, including a local judge who’d claimed the agency would “abrogate the responsibility of the judiciary” (the reverse was true) and a local radio host who’d made so many bogus claims that Chris had space to respond to “just a few.” One of these was “laughable,” and another was answered already in the legislation itself. “Reading the Bill would have shown you that,” she pointed out. If the radio host was interested in the truth, Chris invited him to phone her—“which is what you should have done in the first place.”
Then she opened a bottle of wine.
She didn’t rest for long. Those purple binders she’d stacked atop the center file cabinet still nauseated her each time she walked past them. She’d read Willie Grimes’s file enough times to believe he was innocent, to feel exasperated that evidence in his case had simply been trashed. How could that possibly be an office’s policy? So, back while the IIC legislation had slogged through the general assembly, she’d begun phoning and writing restless letters to the offices of clerks and DAs and sheriffs around the state, asking how they stored their evidence, hoping Catawba County was an exception. It wasn’t. None of the hundred counties in North Carolina had been appropriated much of a budget, or enough storage space, and each followed its own distinct policies. Some didn’t even have log-in or log-out forms for evidence.
Which seemed to Chris like a task for the commission. To its next meeting she invited clerks from eight different counties, all of whom agreed they’d never been trained to preserve evidence and that no one had given them the time, space, or resources to be “evidence police,” as they called it. All eight were open to reform, since it didn’t do them any good, either, when things went missing.
The problem was Beverly Lake—or, rather, the absence of him, following his retirement. Now the few commissioners who’d always bristled at their work recognized an opportunity. With Lake gone, maybe it was wisest to disband, these commissioners suggested. The IIC was about to become law—once that happened, what was left for their commission to accomplish?
Plenty, Chris snapped. Even once it passed, the IIC didn’t study legal issues, or recommend policy, either. She didn’t see what one had to do with the other.
But that same month, half a year after Lake had retired, the IIC did become law, and even Chris could see the commission
sputtering. To avoid confusion with the new IIC, commissioners decided they needed a new name; it took them three separate meetings, over five months, to agree on one. Uneasy still with that term innocence, several commissioners hoped to avoid it in their title entirely. But the next most sensible word, reliability, as in the Commission on Reliability in Criminal Procedure, didn’t work either, as this suggested the criminal justice system wasn’t fully reliable already. At last they settled on the North Carolina Chief Justice’s Criminal Justice Study Commission.
But the truth was, the commission’s energy had dissipated. The IIC fight had been its apex—or, to some, its nadir—and with Lake gone, it was now under his successor, Chief Justice Sarah Parker, who had never shared Lake’s enthusiasm. Technically the commission had been established by court order, meaning a court order was necessary to end it. But by the end of 2006 it had ceased meeting at all.
By January 2007 all eight positions on the new IIC had been filled, though still the organization lacked any staff; those eight commissioners would hear cases that proceeded to a hearing, but employees were necessary to screen and investigate claims in the first place, and to determine which would make it to a hearing. As soon as the director position opened, Chris Mumma had applied, but the IIC hadn’t given her the job—a choice that initially rankled but that she finally admitted made sense. For an agency she’d championed to make her its director looked too much like a conflict of interest. And to be credible the IIC had to be neutral. Politically, Chris’s loyalties were too obvious.
Who, though, if not Chris? The agency’s initial proposal had asked for an annual budget of nearly five hundred thousand dollars, but the legislature had appropriated less than half; combined with the fact of the sunset provision, this had made the position less appealing for prospective candidates. What attorney wanted to uproot himself and move to Raleigh for a job that might vanish in four years? And if she couldn’t be director herself, Chris wanted someone she approved of. She recalled a law student she’d worked with at Duke, a protégée of Newman and Coleman’s who’d helped run the Innocence Project there, Kendra Montgomery-Blinn. Chris had been impressed with her. Better still, Chris thought she remembered that, after Duke, Kendra had gone to work as a prosecutor, at the DA’s office there in Wake County. A prosecutor would be perfect, Chris realized, in terms of credibility—the same way it had been useful that Beverly Lake was a Republican.
She looked up the number for the Wake County DA’s office and phoned. Was Kendra interested? She understood the risk to a recent graduate in leaving her steady job, Chris allowed. But she and Newman and Coleman and Rosen all were committed to the IIC becoming permanent. Together they would see it didn’t vanish after four years. Ignore the sunset provision, she urged.
By spring Kendra was hired. By summer she’d designed a suite of rules and procedures for the new agency, with the help of her eight commissioners but otherwise nearly from scratch; legislation had established what the IIC could do, but given no particular method for how to do it, so her first two months Kendra had spent turning a vague statute into material policies, all without the luxury of an office. Since the building that legislators had planned for her agency was still being renovated, Kendra had been forced to rent two empty rooms in a local judge’s office until autumn. Fortunately she hadn’t needed much space, just one desk for herself and another for a case coordinator, the only two positions that anyone had hired for.
The bylaws she designed looked sensible enough on paper, her eight commissioners agreed. But no one had tried anything like them before, one pointed out—they couldn’t be certain before seeing them in action. Why not practice them on a mock case, in a sort of dress rehearsal?
Kendra liked the idea. Without a full staff, however, she hadn’t yet begun processing claims, so she didn’t have one ready. She phoned to ask if Chris had a case available. To avoid any conflict of interest, she wanted one the IIC was unlikely to see down the road in an actual referral, ideally a known dead end, where Chris suspected an inmate innocent but it was impossible to know. Kendra could even mask names. Did Chris have one like that?
Willie Grimes, Chris answered without hesitation. Then she paused to reconsider. Is the Grimes case too obvious? The point was to challenge Kendra’s procedure with a claim that included some doubt—Willie might be too obviously innocent to make for great training, she realized. No, that will be good. They’ll see how clear a case can be. She brought his purple binders to Kendra’s rented office and laid out the facts and names.
Soon Kendra summoned her eight commissioners to an empty conference room near Greensboro, where a community college had agreed to lend her more space. They were there to consider the case of Billy Times, she explained.
Kendra had grown up Kendra Ashcroft Montgomery, a tall, gangly, chestnut-haired girl from Indiana. In high school she’d watched a favorite teacher be fired for trivial reasons—he’d taught summer-school classes, then neglected to fill out some form. In fact, school administrators only wanted to cut their agriculture program, which her teacher directed, young Kendra realized. This was wrong. She organized fellow students to protest, which caught the attention of the Indiana teachers’ union, and finally a hearing was held. Kendra was called to testify. He was a good teacher, she promised nervously; he ran the ecology club, had begun the school’s recycling program, and periodically took students on field trips, camping. Who cared about some form? He hadn’t done a thing to get fired.
In the end it made no difference; his firing stood. Still, the impression the hearing made on her lasted. Look at this one person up against a giant school district, she’d thought. The hearing gave him a chance to be heard. She decided then and there to become a lawyer.
But first she’d gone to Purdue and graduated as a member of Phi Beta Kappa; the following summer she’d gotten married and became Kendra Montgomery-Blinn. Then she’d continued straight on to Duke Law School, where her very first week she volunteered for the Innocence Project. It was there she met Theresa Newman and Jim Coleman and, eventually, Chris Mumma. Here were people who got it—one defendant, up against a system, with a chance to be heard. Everything else about the law she found tedious. Who cared how much money one company made by merging with some other company? That wasn’t why she’d wanted to become a lawyer.
By her third year she was student director of Duke’s Innocence Project. When she graduated cum laude in 2003 she applied to be an assistant DA there in Durham. She saw no conflict at all between this and what she’d done at the Innocence Project. A good DA looked not to convict, but rather to do justice. Sometimes this meant dismissing a case that lacked evidence. Sometimes it meant negotiating a plea deal, so a defendant could get medical treatment. Sometimes, yes, it meant prosecuting for as long a sentence as possible.
For three years she worked mostly on child abuse and domestic violence cases, and meanwhile she kept in touch with Newman and Coleman and Chris, following the IIC battle excitedly in newspapers, hoping their legislation would pass. Criminal justice was an evolving field, whose culture and technology both developed over time, Kendra knew. This meant even smart, ethical lawyers were necessarily imperfect, and judges too, since the context they worked in was. DAs like her had once believed that hair comparison, and eyewitness testimony, and blood-spatter evidence were each infallible. Now they knew better. That wasn’t anyone’s fault, since you couldn’t blame a person for not predicting the science of a decade later. But it meant that, over time, mistakes happened, even with a good DA, even with a good defense attorney, even if everyone everywhere was perfectly competent and principled. It was a human system that convicted defendants, and humans were constantly learning. So it seemed obvious that someone ought to be able to review old cases, and the appeals process wasn’t built for that. Nothing was, until the IIC.
When she saw the IIC had finally succeeded into law, she wondered who would lead the agency. Then her phone rang. It was Chris. “You should apply for this,” Chris told her
.
“Me?” Kendra asked, startled. She was twenty-eight, she protested, only three years out of law school. She wasn’t qualified to be anyone’s executive director. Besides, she liked her job as a DA.
“Think about this,” Chris insisted. “It would be good for everyone.”
So Kendra hung up and thought about it. Then she phoned Jim Coleman, her mentor from Duke. “You should really do this,” Coleman told her. She phoned Chris back, to ask what the job entailed. No one was certain, Chris admitted, since there had never been anything like it.
The sunset provision made her nervous. Wasn’t it reckless to abandon a steady job for some experiment? But she was making only thirty-something-thousand a year as an assistant DA, and, even working weekends, could barely repay her student loans. She and her husband had adopted a son, and now they couldn’t afford day care. And, intimidating as it was, the prospect of being director thrilled her to imagine. She had assumed the job would naturally go to someone experienced, who would get things in order—maybe by the time that person stepped down, Kendra would be better qualified, and would dare apply. Now she recalled what Chris had told her on the phone: no one was certain what the job entailed, because there had never been anything like it. If she applied now, she could be the person who got things in order. She could help build the agency from scratch.
She submitted her application and interviewed with the eight new commissioners. In March, they told her she was hired. “It’s clear from both her work history and our discussions with her, Ms. Montgomery-Blinn has neither a political agenda nor an axe to grind,” one of them, a superior court judge up in Nash County, announced in a press release. “She’s seen and experienced how criminal law works from both sides of the fence.”
Ghost of the Innocent Man Page 23
