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Episode #1807
Equal Justice
Brown: Natalie Bullock Brown,
Host
Muma: Chris Muma, Attorney, North Carolina Center on Actual
Innocence
Powell: Rev. Elton Powell, Interim President, National Action
Network
Bryant: Judge Wanda Bryant, North Carolina Court of Appeals.
M:
If
we’re going to get equal justice, you have to have someone
in place that will look at everybody, you know, treat everybody
across the board as one, and treat each case as an individual
case.
Voiceover:
Equal justice—does it exist for blacks in North
Carolina? We address the question next on Black Issues
Forum.
Voiceover:
This program was made possible by contributions to UNC-TV
from viewers like you. Thank you.
[THEME
MUSIC]
Brown:
Good evening everyone. I’m Natalie Bullock Brown, your
host tonight. Thank you for joining us. Last fall, a high-profile
case of injustice in Johnston County captured the attention
of many viewers, and caused many to question the system of
justice here in North Carolina, particularly for African-Americans.
The case was profiled in the PBS Frontline documentary
“An Ordinary Crime.” For those of you who are
not familiar with the case, here’s a recap of the story
from producer-reporter Chip Muller.
Wise:
…he just shot me in the chest.
Muller:
Alice Wise was working at the Quality Finance Company in Johnston
County in April of 1997, when at least three men burst inside.
In this PBS Frontline documentary, Wise describes how
a man shot her once, then again, at close range.
Wise:
Since I had my hands up like this, it went through both
wrists before it entered my head.
Muller:
Wise lost her left eye and, she says, her sense of safety
in the world. She was a key witness against Terence Garner,
and helped send him to prison. Terence was sentenced to 32
to 43 years in prison. His two accomplices were given time
too. A day after the three men were sentenced, Wayne County
Sheriff’s Department got a tip that the real shooter
may be in Dudley. The Frontline documentary shows that
within hours, sheriff’s deputies interviewed a second
“Terence”—Terrance Deloach. Deloach confessed
to the shooting.
Lock:
I was taken aback and I was surprised.
Muller:
Tom Lock was the prosecuting attorney in the case. That
day, he made an extraordinary reversal. He announced it to
the press.
Lock:
Terrance Deloach confessed to the robbery and to shooting
Alice Wise.
Muller:
Terence Garner was shocked, but not surprised. He has
maintained his innocence since his arrest. According to the
Frontline documentary, another man was not surprised
either. Kendrick Henderson, the second man sentenced for the
armed robbery—he also already believed that Terence
Garner was the wrong guy.
Henderson:
One of the jailers made a mistake and put us in the visitation
room at the same time. So now I'm sitting right beside him
and don't even know it. And my girlfriend at the time, she
was, like, "That's the guy they got for shooting that
woman in your case." And I looked at him. I looked to
my side. I looked at him, and I'm, like, "Hold up."
So, at that point right there, I just—you know, I really
just—I looked at him, I told him, I said, "What
are you locked up for?" When he looked at me, he just
looked like he was about to cry.
Muller:
Henderson had told this to the jury, though the jury did
not apparently give his testimony much weight. Now that Deloach
was in custody and had confessed, perhaps history would agree.
But history was about to take another dramatic turn.
M:
When Deloach was brought back over to Johnston County,
and then later that night, he was sat down and interviewed
by the Johnston County officers and the State Bureau of Investigation
agents, who were armed with the knowledge of what had occurred
inside the business, Deloach’s statements simply did
not hold water. And I maintain that he couldn’t describe
what happened inside because he was not inside. He didn’t
know.
Muller:
Deloach recanted his confession. According to court documents,
he had just told Wayne County sheriff’s deputies that
he had held the gun that went off. Now, he told Johnston County
officials that he did not know what happened, despite pages
of detailed knowledge of the crime. He said he had made up
his confession to keep the state from taking his girlfriend’s
baby. Terrance Deloach was released. Terence Garner’s
lawyer asked Judge Knox Jenkins for a new trial.
Jenkins:
…Is the state ready to proceed in this matter?
Muller:
Judge Jenkins rejected the request. Garner decided to
continue his legal battle. In 1999, he appealed the guilty
verdict to the three-judge panel of the North Carolina Court
of Appeals. Mark Montgomery became Garner’s attorney.
He tells North Carolina Now that he based part of his
case on two new pieces of evidence: first, Deloach’s
confession.
Montgomery:
You know that people lie, but they don’t tend to
lie to get into trouble. They tend to lie to get out of trouble.
So when you’re thinking about Deloach, you know, you
can understand why somebody would lie by saying that he didn’t
commit a crime.
Muller:
Another piece of evidence emerged after sentencing. Keith
Riddick, the third robber, switched his story. Now, he said
that Deloach was the gunman. He told Frontline that
he was coerced into testifying against Garner to get a lighter
sentence.
Riddick:
He put it to me like, "They're not letting Garner
go, so you need to decide either go down with Garner or go
home, or get the least bit amount of time." "Which
is?" "I can get you some parole—I mean, probation.”
Muller:
Montgomery also tried to discredit Alice Wise’s
identification of Garner.
Montgomery:
It’s a pretty well-documented phenomenon that in
the midst of violent crimes like this, particularly when there
are weapons involved, particularly when we’re talking
about cross-racial identifications, it’s real hard for
an eyewitness to make a good, accurate identification.
Muller:
The judges heard these arguments in August of 1999. Four
months later, they returned their verdict. They said the guilty
verdict must stand.
Brown:
But that’s not the end of the story. And I have
a guest here who can tell us about the happy ending. Chris
Muma is an attorney with the North Carolina Center on Actual
Innocence that assisted Mark Montgomery on Terence Garner’s
legal defense team. Now Chris, can you tell us briefly what
happened in the end?
Muma:
It’s a great ending to repeat. I’d love to
tell it over and over again, because there was a complete
investigation by the State Bureau of Investigators. They interviewed
all witnesses, did their own independent investigation, and,
in the end, determined there was insufficient evidence to
retry, recharge Terence. And all charges were dismissed. Terence
is doing great, has an unbelievably positive attitude, considering
the things he has been through, and is moving on with his
life.
Brown:
Thank you. I also would like to welcome to our program our
remaining guests: Reverend Elton Powell, the interim president
of the National Action Network in Raleigh; and Judge Wanda
Bryant, who sits on the North Carolina Court of Appeals. We’ll
hear from both of you in a moment. Well, actually, we’re
actually going to talk about Terence Garner in a moment, but
I want to read some quotes from letters and from calls that
Black Issues Forum has received from people who have
seen our coverage of the Terence Garner case and have basically
called asking for help. Here’s an example from someone
in Dudley, North Carolina, and we’re going to omit the
names, for privacy.
“My
brother is serving two life terms as a result of a system
of Southern justice that places greater emphasis on the color
of one’s skin than on the substance of the evidence
presented at trial. Through skillful maneuvering of a person
who was young at the time, characterized by intimidation and
trickery, they—law officials—were able to convince
my brother that his statement would help them establish that
his co-defendant was principally responsible for the crime.”
Another
person in Smithfield said, “Please, Black Issues
Forum, help me. I’m totally innocent—a black
male. A probable cause record will prove 100% perjured testimony
from an alleged witness. Both the prosecutor and defense lawyer
knew, and did not notify the judge or jury.”
Now, this
is just a few examples of the many letters and calls we’ve
gotten, but Judge Bryant, I want to know how much—I
guess what does the public need to know about these sort of
confessions of innocence, and how often do they end up being
true?
Bryant:
Well, I think there are statistics that indicate to some extent
the system and how many people say that they are innocent.
But proving innocence can be tough in a criminal justice system.
From the Court of Appeals standpoint, most of the cases we
have have already gone—when we’re talking about
criminal justice cases, they’ve already gone through
the trial court system, and they’re on appeal to the
Court of Appeals. And we’re looking at whether or not
any errors of law were committed during the trial. And we
have a very, sort of strict standard of review most of the
time in those cases. So for us, our look is a very narrow
one. But from a societal standpoint—and again, as a
prosecutor, because I was there in the thick of the action
in the criminal justice system for many years, at the state
level and the federal level—but from a prosecutorial
standpoint, we have discretion, or did have discretion, as
prosecutors, to determine whether or not there was sufficient
evidence to go to trial. And I think all prosecutors have
to make that call. Perhaps sometimes, depending on your background
and experience, you might call it or you might see it in a
different way. For me, it was very important that identity
evidence was clear and strong, that any other circumstantial
evidence was clear and strong. And, incidentally, as a prosecutor,
I have to say many times the best cases were circumstantial,
because that evidence normally doesn’t lie.
Brown:
Okay. I appreciate that. One thing, though, that just
seems to be a glaring contradiction to—or actually supports
some of the things that I just read, is the disproportionate
number of African-Americans that end up in the penal system,
and that end up on death row or have life sentences, but—that
are just in jail. I have some national statistics. I have
that only 37% of the nation’s jail inmates were white
in 1994. So we do the math, and we see how many African-Americans
and other minorities were in the prison system. Reverend Powell,
in the work that you do with National Action Network, what
kinds of cases, if any, are you guys working on that sort
of, you know—trying to address this issue of the disproportionate
number?
Powell:
Well, a lot of the cases that we have that have come before
us, or cases similar to some of the information that you read—one
of the most important things that we’re finding, that
in the state of North Carolina, there’s 32,000 men locked
up. Out of that 32,000, 21,000 or more black males. That’s
13% and—which is our population as a black race in North
Carolina. And 21,000 of black males who are incarcerated,
that’s 65% of that 32% population. That’s an alarming
rate. That’s a rate that everyone ought to be concerned
about, because I don’t think that everything that is
happening is really actually associated with blacks. It seems
like everything that is negative, when it comes to murder,
rape, sex offense, or whatever that is taking place in North
Carolina, they’re coming down on black males. And we’re
not saying that black males are not committing crimes, but
we have to be concerned about: are they committing crimes
at this high alarming rate? That’ the concern that we
have as a national organization. Not only that, we’re
concerned because of the fact that when it comes right down
to it, there are some injustices that are taking place in
the state of North Carolina among black males. There are some
racial profiling that are still taking place. There are situations
that when young black males are subject to arrest, that they
are taken into incarceration—before they’re taken
into the incarceration, they’re taken into interrogation,
where they are forced to give testimonial, false testimony
based on the fact that there’s other information that
law enforcement agencies might even be asking for.
Brown:
Well, Chris, I’d like to ask you about the Terence
Garner case, in light of what Reverend Powell said. With Terence
Garner, what would you say was at the heart of his arrest
in the first place, especially since we know that, now, that
he is innocent? Why did he get in this mess in the first place?
Muma:
Well, unfortunately, he has the name “Terence,”
which happened to be the same name as Terrance Deloach, which
is really where the whole thing began. But then, as things
developed, what became the major issue was eyewitness identification.
Alice Wise was convinced that Terence Garner was the man who
shot her. There’s substantial evidence that someone’s
who’s going through the trauma of a robbery and a shooting
cannot make a valid ID. We have the Cotton case, which is
another example of someone who was raped and was convinced,
150%, that she knew who the rapist was, had memorized his
features and could describe him in detail, and when she saw
the man who was accused of raping her, she was convinced it
was him. DNA later proved that it was not. So, between cross-racial
identification issues, and then the problems that come into
play with IDs after you’ve gone through trauma, eyewitness
ID is not always reliable.
Brown:
Well, there’s another case, and I’m sure there
are many cases in North Carolina, but there’s another
case that we’re aware of—the Darryl Hunt case,
in which eyewitness testimony actually helped to put another
African-American male in jail in Winston-Salem. His crime,
or alleged crime, took place in 1984. He’s still in
jail today. Terence Garner’s case was a special case,
but Judge Bryant, what usually happens in cases like, I guess,
Darryl Hunt’s and just in general, from your experience?
Bryant:
Well, I’m not really familiar with the Darryl Hunt
case, except for what you’ve just indicated. I did know
some about the Terence Garner case. But in a case where you’re
using witness identification versus some other method—again,
I have to go back to being a prosecutor, because that’s
where most of my experience in this area comes from—it
was always very important to me to have strong evidence of
a defendant’s identification as being the person who
committed the crime. In Washington D.C., in 1990, I was the
prosecutor there who put on the first DNA admissibility case.
The admissibility hearing, it lasted for 30 days. But at the
end of that hearing, we had put forth a case such that DNA
evidence was admissible in the District of Columbia. It was
a rape case, US vs. Kevin Porter. I was one of five prosecutors
who were specially-trained to try sex offense cases, and so
for us it was very important to have DNA evidence, because
that, in a rape case, is sufficient evidence of identification.
If you have someone like Kevin Porter, who was one in 30 million,
the chances of anyone else committing the crime of rape in
that case, being one in 30 million, when you have that kind
of odds, that’s strong. You would rather have that than
an eyewitness who might have a problem, whose identification
might be challenged otherwise.
Muma:
There are the issues that have been identified with eyewitness
IDs, and there are reforms that some states are putting in
place to try and address those issues. Things like: New Jersey
is now requiring arrays of photo IDs, rather than putting
a lineup in front of somebody and saying, “Does somebody
look familiar from this lineup?” Showing one picture
at a time has increased the accuracy of identification. Things
like taping interrogations, where you—everyone can be
sure of what’s being said and what’s being offered,
and what way it’s being offered, before someone agrees
to testify against somebody. So there are areas of reform
that can be put in place in this state to help with some of
the issues we’re seeing.
Brown:
Well, you brought up the issue of interrogation, and we
know in Terence Garner’s case there were some issues
surrounding that. I know in the Darryl Hunt case, there were
also issues. Now, Reverend Powell, you were telling us before
we began that there is a case that National Action Network
is currently working on, in which there might have been some
sort of manipulation during the interrogation. Talk about
that.
Powell
Yes, in 1984 there was a murder that took place in the
city of Rocky Mount. Rodney L. Moore of Rocky Mount was the
lone gunman in this particular incident, but after about a
month, Jimmy Earl Harris of Nash County was picked up, was
taken for a ride in the patrol car, went downtown with a couple
of detectives that he knew, just from being on the streets,
and was asked some questions, not about the murder, but about
a gentleman whom they were looking for information on who
was doing some money laundering and some illegal gun dealing.
And yet, in this particular situation, he was not willing
to give up any information on this gentleman, so he was beginning
to be interrogated about this murder that took place in July
of 1984, and was something he had no knowledge about, and
he was given the opportunity to call his relatives, to verify—an
aunt did verify at that moment that he was with them, was
at home at that hour, asleep in the same room with his father.
And yet that was ignored by the chief detective, Horace Winstead,
who is now deceased, and the book was thrown at Jimmy Earl.
Harris, because of the fact that he was named, at the discretion
of the detectives, a partner in this crime.
Brown:
Well, let me jump in here. Now, it seems that there are
instances where, you know, just like the letters that I read
to you, and I’m sure that there are other examples,
where people who may or may not be innocent—we’ll
just say that—but people are being victimized, it seems,
by the process. And because they don’t know their rights,
they don’t know how to respond. Now, Judge Bryant, I
see you have something to say.
Bryant:
Yeah, I just want to address it in a different way. I
was thinking back to being a prosecutor in D.C., and in D.C.
it’s predominantly black, or was—it seems to be
shifting some now—but the majority of defendants coming
before the D.C. Superior Court, which is where I prosecuted
a lot, were young, black males. And there were drive-by shootings.
There were drug deals. The whole gamut of crime seemed to
be basically black in the District of Columbia at that time.
Well, what we had then was a wave of jury nullification in
cases, from murder down to your lowest drug dealing-type of
case, misdemeanor case. The juries would simply, when the
prosecutors brought the cases, whatever they were, the juries
would say, “Not guilty.” They didn’t convict.
They would say, “We’re not going to send another
young, black man to prison, regardless.” They took a
stand, as a community, rightly or wrongly. However, as a prosecutor,
then I had to try cases in that atmosphere, which was very
hard. But what I always did, which is what I usually do, is
state it up front to the jury: “Are there any of you
who can’t find this person guilty simply because he
is black?” And if so, then they were disqualified. But
that was an issue, and was a result that many jurors in the
District of Columbia used to protest what they determined
to be an injustice and a disproportionate arrest rate and
conviction rate.
Brown:
Well, I would think that what you just said would be very
interesting to our viewers, I mean, given the fact that I
think a lot of people feel like in North Carolina and maybe
other Southern states, it’s difficult to be African-American,
trying to go through the criminal justice system. But I want
to—one of the things we’re trying to do is to
empower our viewers and to help inform them of what they need
to do, what they need to know if they get into a situation—now,
if they’re guilty, that’s another thing, but if
they’re innocent and they are somehow accused of a crime
and then convicted of it—Chris, I’d like for you
to tell what the Center on Actual Innocence does. And Reverend
Powell, what does the National Action Network do?
Muma:
Well, the Center on Actual Innocence actually comes into
the picture after the appeal process has been exhausted. So
if someone’s been through trial and been through appeal
and maintains their innocence, they can contact the Center
on Actual Innocence. And we get probably 300 or 400 letters
a year and use the high energy of law students at Duke Law
School and UNC Law School—and Campbell’s now joined
our group—to review cases and take them forward to investigation.
So we have probably 400 active cases now, where we’re
working with inmates, and try and move some of those forward.
We are a pro bono organization, so that can be difficult,
in getting investigators and getting the kind of testing that
we need to have done. But I would say that the front end is
where a lot of the problems need to be addressed. We’re
doing what we can on the back end, but certainly forces in
North Carolina recognize that there are issues in access to
justice and are trying to do something about that. There are
a lot of ways our hands are tied. The judicial budget in North
Carolina, the funding in North Carolina for the state courts
is 2.4% of the entire state budget. The funds that are available
for all of the state courts is less than half of just the
Wake County Public School budget. So certainly, public—trying
to get more funding for the judicial system, so that people
can have equal access to justice, is important.
Brown:
Thank you. Let me get Reverend Powell in here real quick.
Powell:
The National Action Network of the Triangle—what we’re
doing at this point in time, we’re setting up a judicial
oversight committee to look at cases that are coming to us.
Not only in that we need help, because we also are a non-profit
organization, but we are looking for corporate—not corporate
funds, but we’re looking for individual funding that
people might help us to set up a legal defense fund to help
pay for the defense for these people who are going through
these type channels. We need to understand something and make
it perfectly clear: we’re not saying that every black
male that is locked up in the state of North Carolina is innocent.
We’re not saying that by all means. But we realize that
there’s some injustices here, and we want to see justice
served. We’re not asking for a piece of the pie—we
want whole equal pie, because, until there’s justice,
North Carolina will not see any peace. We will march, we will
rally, we will protest, we will even go to jail if that’s
what it takes, to make people realize that there are some
sleeping giants in North Carolina. And those sleeping giants
are the black communities, as well as the white communities
who are sitting by, not realizing this is happening. And we
need to do something about it and we need to do it quick.
Brown:
Thank you Reverend Powell. And thank you Ms. Muma and Judge
Bryant for your insights tonight. If you’d like more
information on tonight’s program and guests, please
log on to the Black Issues Forum website at www.unctv.org/bif.
And when you visit, be sure to send us your comments and program
suggestions. You can also call us on the BIF line at 919-549-7167.
Join us again next Friday night at 9:30 for another edition
of Black Issues Forum. I’m Natalie Bullock Brown reminding
you to be encouraged, no matter what. Have a good night.
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Voiceover:
This program is made possible in part by contributions from
UNC-TV viewers like you.
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