hhttp://www.nytimes.com/2016/08/06/us/chris-costner-sizemore-the-real-patient-behind-the-three-faces-of-eve-dies-at-89.html?smid=fb-share&_r=0

Chris Costner Sizemore, the Real Patient Behind ‘The Three Faces of Eve,’ Dies at 89

By BRUCE WEBER AUG. 5, 2016

At the start of the 1957 movie “The Three Faces of Eve,” the British-born journalist Alistair Cooke, who narrates the film, appears on camera to tell viewers that the incredible tale they are about to see is a true story — not suggested by or based on something that happened, but a facsimile of actual events.

Adapted from a book by two psychiatrists, Corbett H. Thigpen and Hervey M. Cleckley, the movie starred Joanne Woodward, who won an Academy Award for portraying an unassuming housewife who suffers from what is now called dissociative identity disorder, the psychological malady that manifests itself in the display of multiple personalities.

At the end of the book, and of the film, the title character, whose three distinct personalities were known as Eve White, Eve Black and Jane, was cured; the Eve personalities had dissolved. She was living as Jane, happily married and reunited with a young daughter from a previous marriage that had been irreparably rent by her illness.

In spite of Mr. Cooke’s assurances, however, the happy ending was premature. The patient whose story the book and movie purported to tell, Chris Costner Sizemore, actually had a much grimmer time of it. Her new marriage turned out to be not an ending at all; she endured a fragmented identity until the mid-1970s, seeing several psychiatrists after Thigpen and Cleckley, until, in the care of a Virginia doctor, Tony Tsitos, her personalities — not three but more than 20, it turned out — were unified.

“You don’t know how wonderful it is to go to bed at night and know that it will be you that wakes up the next day,” Mrs. Sizemore said in an interview in The New York Post in 1975.

By most accounts, for the last four decades or so, Mrs. Sizemore lived a productive and relatively serene life as a mental health advocate and painter. She died on July 24 in Ocala, Fla. She was 89. Her son, Bobby Sizemore, said she had a heart attack.

Mrs. Sizemore was born Christine Costner on April 4, 1927, in Edgefield, S.C., near the Georgia border. Her father was Doctor Acie Costner, a farmer who later worked in a lumber mill; her mother, the former Zuline Hastings.

Psychiatrists believe that dissociation is a defense mechanism: a reaction to severe childhood trauma or prolonged physical, emotional or sexual abuse. In Mrs. Sizemore’s case, the fragmentation in her mind began when she was as young as 2, after she had witnessed a series of gruesome incidents, including her mother being bloodily injured in a kitchen accident, the funeral of an infant, the dragging of a corpse from a ditch and a man being “cut in half by a saw at a lumber mill,” she told The Post.

As she grew older, she would be punished for acts of disobedience or cruelty that she could not remember committing, she said. She would be baffled by a test in school that a different personality had prepared for. She never finished high school. According to her 1977 memoir, “I’m Eve,” written with a relative, Elen Sain Pittillo, she was scarred further by an early romance with a sadistic man, who beat her.

A severe headache would announce the emergence of a different personality. She began seeing Dr. Thigpen in Augusta, Ga., after her first marriage, when she began alternating between the demure and depressed Eve White and the self-indulgent party girl Eve Black, perplexing her husband with her bizarrely shifting behavior. In one episode depicted in the film, she wrapped the cord of a venetian blind around the neck of her young daughter, Taffy, when the child would not stop crying.

The personality Jane, a pleasant and sensible young woman, became manifest during her therapy. Her marriage ended. The second, to Don Sizemore, an electrician, began.

The two Eves and Jane proved evanescent, but as those personalities faded, others appeared, usually in groups of three. As doctors learned more about dissociation, the presumption that its main manifestation was multiple personalities with vastly different traits gave way to an understanding that the divides in a person’s identity could be far more subtle.

Even so, the way her divided self presented itself was remarkable; some of her personalities knew how to drive, for instance, but others did not. She opened a cloth store in Manassas, Va., her son said, “because one of the personalities was an accomplished seamstress.”

In the Post interview, Mrs. Sizemore said her personalities dressed differently, talked differently, ate differently.

“I once weighed 175 pounds because I was feeding three different people in the same body different meals,” she said.

Dr. Tsitos began treating her in 1970, and by 1974 she was no longer dissociating.

Attempts to reach Dr. Tsitos were unsuccessful, but another psychiatrist, Richard Kluft, who knew him as well as Mrs. Sizemore during his treatment of her, said in a phone interview that her previous therapy “had been all over the place and she felt betrayed.”

Dr. Tsitos, he said, “was a very savvy clinician who could see that more was going on than the typical picture of different personalities, that not all of them were apparent, and that the differences were sometimes very subtle.”

“Chris Sizemore was a lady,” Dr. Kluft said, “truly a beautiful human being. She did a lot of good. My hat’s off to Tony.”

Don Sizemore died in 1992. In addition to her son, a high school guidance counselor, Mrs. Sizemore is survived by two sisters, Louise Edwards, known as Tiny, and Becky Walton; her daughter, Taffy Fecteau; two grandchildren and three great-grandchildren.

Mrs. Sizemore wrote a follow-up to her memoir, “A Mind of My Own” (1989), in which she recounted the integration of her personalities and her life afterward. In later years she was a frequent speaker on behalf of people with mental illness and an accomplished figurative painter.

The actress Sissy Spacek attempted to buy the film rights to “A Mind of My Own,” but 20th Century Fox, the studio that produced “The Three Faces of Eve,” stood in the way, claiming it owned the rights to her life story in perpetuity. Mrs. Sizemore had earned $7,000 from the earlier movie; a settlement was reached with Fox, and the second movie was never made.

The sunny narrative of Mrs. Sizemore’s triumphant second act was called into some question in 2012, when Colin A. Ross, a psychiatrist specializing in dissociation, published a book, “The Rape of Eve,” in which he accused Dr. Thigpen of having exercised an unethical, Svengali-like influence over Mrs. Sizemore and manipulating her for nefarious purposes during and after his treatment of her ended. Dr. Thigpen died in 1999.

“At different times he functioned as her psychotherapist, publicist, literary agent, film agent, book editor, contracts negotiator and legal adviser,” Dr. Ross wrote. “He attended her husband’s funeral uninvited, was her son’s godfather and engaged in sexual misconduct with her. He arranged for her to have an abortion, and during the procedure she was sterilized without her or her husband’s consent.”

Dr. Ross and Mrs. Sizemore had worked together on a documentary film about dissociation. In a phone interview, he said she had been a collaborator on the book, which portrayed her as still under Dr. Thigpen’s control in some ways until his death.

“I want to give Dr. Thigpen and Dr. Cleckley their due, because they were the first to diagnose Mom,” Bobby Sizemore said in response to a question about Dr. Ross’s assertions. Mr. Sizemore knew about Dr. Ross’s book but had not read it, he said, adding that, yes, his mother had participated in it.

“There is some truth there,” he said.

http://www.newsobserver.com/news/local/crime/article78669477.html

MAY 19, 2016 4:27 PM

NC Gov. McCrory pardons Scotland County man

Edward McInnis spent 27 years in prison

Retesting of DNA evidence freed him in 2015

McInnis was exonerated after the N.C. Innocence Inquiry Commission took up the case

BY ANNE BLYTHE

Gov. Pat McCrory issued a pardon of innocence on Thursday for a Scotland County man who spent 27 years in prison before DNA evidence cleared him.

Edward Charles McInnis, 54, was wrongfully convicted of a sexual assault that took place in February 1988 at the Laurinburg home of an 81-year-old woman.

After his arrest in March 1988, McInnis told investigators he did not commit the assault and provided an alibi that checked out with several family members. He had a history of run-ins with the law, including a conviction for peeping and indecent exposure, and became an early focus of the police investigation.

In the fall of 1988, McInnis pleaded guilty to rape and other felonies that brought him a sentence of life in prison. Nonetheless, he continued to maintain his innocence through the years and reached out to the N.C. Innocence Inquiry Commission in March 2015.

The commission, a state agency unique to North Carolina that “is charged with providing an independent and balanced truth-seeking forum for credible post-conviction claims of innocence,” pursued old DNA evidence with tests that were unavailable almost three decades ago.

The results, which did not implicate McInnis, were used by Kristy Newton, the district attorney of Scotland and Hoke counties, to seek relief for McInnis.

Judge Tanya T. Wallace vacated the verdict in August 2015 and ordered that McInnis be freed immediately.

In the court hearing seeking that freedom, the district attorney noted that McInnis told police, in their third interview of him, that he was responsible for the attack. But police files showed that not only was McInnis never able to recount his version of events, his statement was wildly inconsistent with the victim’s and with the physical evidence, including the method of entry to the house and the location of the attack.

He also was unable to describe the nature of the attack.

The district attorney dismissed all charges against McInnis.

McCrory met with McInnis this week at the Executive Mansion in Raleigh.

“On behalf of the State of North Carolina, I apologize to Mr. McInnis for the 27 years he had to spend behind bars for crimes he did not commit,” McCrory said in a statement announcing the pardon. “While we cannot give him back those years of his life, I wish him well as he resumes his life as a free man.”

McInnis is eligible to file a claim under a North Carolina law that allows compensation of up to $750,000 to persons wrongly convicted of felonies.

http://www.charlotteobserver.com/news/local/crime/article70914697.html

April 9, 2016 1:00 PM

New questions raised in slaying case of Michael Jordan’s father

Attorneys: Wrong man convicted as gunman

Juror confirms she did her own investigation during trial

Blood evidence in case was ordered destroyed

BY MICHAEL GORDON AND MARK WASHBURN

charlotteobserver.com

A North Carolina judge could decide as soon as next month whether new evidence in the murder of Michael Jordan’s father will earn the convicted triggerman a new trial.

Robeson County teenagers Daniel Green and Larry Demery were convicted 20 years ago of fatally shooting James Jordan during a late-night carjacking along U.S. 74.

Based in part on Demery’s eyewitness testimony and the findings of a state forensics expert, a jury found that Green fired the shot that killed the 56-year-old Jordan as he awoke from a roadside nap on an overnight drive to Charlotte.

Green’s attorneys – Scott Holmes, an N.C. Central University law professor, and Ian Mance of the Southern Coalition for Social Justice – have long argued that Green was not present when James Jordan died. They say Demery shot Jordan, then persuaded Green, his friend, to help get rid of the body. The lawyers say that makes their client an accessory after the crime, not a murderer.

Now, the Durham-based defense team says it has new evidence that challenges major parts of the prosecution’s case, while bolstering their request for a new trial. They claim that misleading testimony and misconduct by the prosecutor and jury helped send Green to prison for a murder he did not commit.

The evidence outlined in court documents include:

▪  A sworn statement from the trial’s former jury forewoman who admits she did her own investigation of Jordan’s murder, which violated a judge’s order. Paula Locklear says that during the trial, she visited the South Carolina creekside where the body was found and developed her own theory on how the killing occurred. A Charlotte legal expert says her action amounts to a “tremendous problem” for the original case and could get Green’s conviction overturned.

▪  A defense attorney’s affidavit that appears to show that a state forensics expert has recanted pivotal testimony that she found James Jordan’s blood in his car. Jennifer Elwell, a veteran serologist with the State Bureau of Investigation, is quoted in Mance’s declaration that her tests were far more inconclusive than what she described in court. She also admits withholding results of four inconclusive tests that could have undermined the prosecution’s theory of how Jordan died, the affidavit says.

Green’s attorneys say in their motions that Robeson County District Attorney Johnson Britt intentionally exaggerated Elwell’s findings during the trial and failed to share her notes from the inconclusive tests, which appears to have violated the trial judge’s order on the exchange of evidence.

In another twist, the defense documents also claim that Elwell will say she was ordered by a supervisor to destroy the only known sample of Jordan’s blood shortly after the trial. The documents quote Elwell in saying that in more than 20 years with the state, she had never been asked to dispose of blood evidence from a murder trial before. She did so after testifying that the sample would be preserved “for years and years and years.” Green’s defense attorneys at the time were never told that the evidence had been destroyed, documents say.

▪  An affidavit from a former Robeson County newspaper editor who says Demery told her he killed Jordan after the victim witnessed a drug transaction. In her November declaration, the editor says she never reported the confession in her paper nor told anyone about it.

▪ A defense allegation that Britt and the Robeson County Sheriff’s Department conspired to hide a secret from the jury. They alleged that Sheriff Hubert Stone, whose office helped run the Jordan investigation, had an out-of-wedlock son who was a known cocaine dealer and the first person called on James Jordan’s car phone in the aftermath of the murder. Green’s defense team believes Demery, who knew the dealer, made that call.

The judge at Green’s trial blocked jurors from hearing about that relationship between the sheriff and the drug trafficker, who defense documents claim was also friends with many of Stone’s deputies. Green’s lawyers contend the connections could challenge the credibility of Demery, Stone and his deputies, and “the entire Jordan investigation.”

Holmes and Mance have asked Robeson County Superior Court Judge Robert Floyd to hold a hearing on their evidence. The state’s next filing is due by the end of the month. Floyd could rule at any time after that.

The attorney general’s office, which has taken over the case during the recent appeals, declined to comment last week. But in a 200-page response filed late last year, special deputy attorneys general Jonathan Babb and Danielle Elder dismissed the defense findings as mostly irrelevant and inadmissible.

They say Green was convicted as the killer based on an imposing amount of evidence, and that the verdict has been upheld on several appeals. They say the case should not be reopened.

Britt could not be reached for comment last week. In court documents, he says he did nothing improper in his handling of the case.

Retired SBI agent Tony Underwood of Charlotte, who helped find Green and Demery, told the Observer last week he remains “100 percent” convinced of Green’s guilt.

“The physical evidence was overwhelming,” Underwood said. “If he’s not guilty, nobody’s guilty.”

The crime

Much of the country first met James Jordan in 1991, after son Michael, now owner of the Charlotte Hornets, had just led the Chicago Bulls to their first NBA championship. While his teammates celebrated in their locker room, the best basketball player in the world hugged the trophy and cried while his father patted his back.

James Jordan disappeared in the early morning hours of July 23, 1993, while returning to Charlotte from the funeral of a Wilmington friend.

Three weeks later, his body was found among the branches of a tree in Gum Swamp, about 120 miles southeast of Charlotte, and just across the South Carolina line from Robeson County.

Green and Emery were arrested two days later. Investigators said the pair decided to rob Jordan when they found him napping in his Lexus beside U.S. 74. According to court documents, Demery said Green pulled the trigger when Jordan awoke as Green approached.

Green’s attorneys say Demery shot Jordan by himself, then drove to a nearby backyard cook-out to get Green.

No one disputes that the teenagers took Jordan’s jewelry – including an NBA championship ring that was a gift from Michael – his wallet, shoes and other items. They also stripped the Lexus of its vanity plate that honored Michael Jordan’s signature collegiate jersey: “UNC0023.”

Authorities said they drove into South Carolina, dumped Jordan’s body off Pea Bridge, then spent the next three days joyriding in the Lexus to impress girlfriends and chums. They used Jordan’s then-novel car phone to call family, friends and a 1-900 sex line.

Underwood, the retired SBI agent, says records from those calls proved instrumental in leading authorities to Demery and Green.

With Demery’s help, investigators said they found what they believed to be the murder weapon – a .38-caliber Smith & Wesson, which they said Green and Demery stole during a convenience store robbery a week earlier. After the killing, it was found hidden in a vacuum cleaner in Green’s bedroom.

Authorities also said they found a video recording taken with a stolen camera that showed Green wearing James Jordan’s jewelry. Green, according to documents, eventually led investigators to the NBA ring that Green had buried outside his grandmother’s home.

District Attorney Britt sought the death penalty. At Green’s three-month trial, Demery, who had signed a plea agreement, became the state’s key witness and identified Green as the killer. Both were convicted of first-degree murder and sentenced in March 1996 to life after the jury later declined to put them on death row.

Under sentencing laws of the time, they were eligible for parole from the murder charge in 20 years. Green, now 41, was given an additional 10 years for conspiracy. Demery, 40, is up for parole consideration this year.

The expert

In his closing argument, Britt drew jurors’ attention to a key piece of evidence.

“Blood. Blood from the wound,” Britt said at the time. “Blood that came off that shirt, smeared on the back of that seat. Blood that puddled … while the body laid there. Blood that Larry Demery tried to clean off.”

Elwell, the veteran serologist with the SBI, had testified that James Jordan’s blood caused the stains found in the dead man’s Lexus. Her testimony corroborated the prosecution’s theory of a fatal carjacking. The former forewoman of the jury says in defense documents that Elwell’s blood testimony was key in the jury’s verdict.

Now, Green’s attorneys question whether there was any blood at all. And their source, according to court filings, is Elwell herself.

In an affidavit, Mance said he met with the special agent at SBI headquarters in 2011. He says that Elwell told him she would change her testimony if she could.

Elwell said she “couldn’t confirm the presence of blood” and that the stains on the car seat “could have been anything,” the affidavit states. The defense believes the absence of blood undermines the prosecution’s theory that Green shot Jordan in his car.

[Read a 6-part series on questions in another murder case: “Death by the river: The fisherman’s defense]

Mance’s affidavit says the serologist also told him that she had withheld the results and notes from four tests that failed to test positively for blood. That information was never disclosed despite an order by trial judge Greg Weeks that any SBI lab evidence favorable to the defense was to be shared with Green’s attorneys.

Weeks, now a retired Cumberland County judge, declined last week to talk with the Observer. But in an affidavit included with the 2015 filings, he said if Elwell withheld notes, she violated his order about evidence. If she knowingly misrepresented the stains as blood, she submitted “false and misleading testimony on a material fact.”

Elwell still works with the SBI. Last week, the Observer emailed her a series of questions about her testimony in the Jordan case. She referred them to an attorney general’s spokeswoman, who said Friday that prosecutors can’t comment on an ongoing case.

In its reply to the 2015 defense filings, the attorney general’s office said allegations that Elwell would change her testimony were hearsay, and thus inadmissible in court.

The alleged confession

According to court documents, Demery cooperated with the investigation from the start. He was 18 at the time but had a history of violence across Robeson County, including several robberies that authorities said he committed with Daniel Green in the weeks leading up to Jordan’s murder.

“These two guys were on a violent crime spree. No one else was at the killing but them,” former SBI agent Tony Underwood says. “By the evidence, they were partners in these matters. As to who fired the shot (that killed Jordan), who knows?”

Green’s attorneys allege in their documents that though Demery identified Green as the gunman, he has admitted on several occasions to killing James Jordan himself. Most of those assertions swing on the word of prison inmates who said they talked with Demery.

The most recent account does not. Shortly after Demery’s arrest, Connee Brayboy says she went to speak with the teenager at the Robeson County Jail. She was the editor of the Carolina Indian Voice, a local Native American newspaper that has since closed.

During their jail conversation, “Mr. Demery stated to me that he was the person who had shot and killed Mr. James Jordan,” Brayboy said in a November sworn statement. Demery also told her the killing had taken place outside of the Lexus, contrary to what his testimony against Green would be.

Brayboy says she did not write or talk about the interview out of concern for Demery’s mother, who was a friend and had been “traumatized by his arrest.”

Reached last week by the Observer, Brayboy, 68, said she suffers from health and memory problems and didn’t remember giving the affidavit. She also said Robeson County has a lot of unsolved murders, and to talk about them can be a dangerous thing to do.

Demery sent word through the prison officials that he would not talk to the Observer for this story.

The juror

According to the defense team’s filings, several jurors in Green’s trial may have violated the trial judge’s order by watching or reading news accounts about the case.

Former jury forewoman Paula Locklear did one better. In an affidavit last month, Locklear said that during the trial, she “conducted my own investigation” by visiting the swamp site where Jordan’s body was found.

“This visit influenced my interpretation of the evidence and played a role in my deliberations,” she said in her affidavit. Contrary to the state’s assertion that Jordan died in his car along a Robeson County highway, Locklear said she came to believe that he had been killed in South Carolina, where his body was discovered. Efforts by the Observer to reach Locklear last week were unsuccessful.

Green’s attorneys say Locklear’s admission amounts to grounds for a new trial. Jim Cooney, a prominent Charlotte defense attorney who has handled several appeals of high-profile murder cases, says juror misconduct is a serious offense with potentially significant ramifications.

“As a juror, you decide the case on what’s introduced in the courtroom,” he said.

Charlotte School of Law professor Brian Clarke says a rogue juror investigation “is pretty darn serious.”

“That’s a tremendous problem … a tremendous no-no for a juror,” he said.

STAFF WRITER ELIZABETH LELAND AND STAFF RESEARCHER MARIA DAVID CONTRIBUTED TO THIS REPORT.

http://www.blueridgenow.com/article/20160324/NEWS/160329883?p=1&tc=pg

Questions Of Innocence
NAACP: Attorney general should review wrongful convictions

MARTHA WAGGONER, Associated Press
Published: Thursday, March 24, 2016 at 3:35 p.m.

RALEIGH — North Carolina’s attorney general should set up a group to investigate claims of wrongful convictions to prevent more innocent people from being in prison, the head of the state NAACP said Thursday.

The Rev. William Barber also called on Gov. Pat McCrory to establish a task force to recommend ways to strengthen protections against wrongful convictions. At a news conference Thursday morning, he said both the governor and Attorney General Roy Cooper — running against each for governor in the 2016 election — should come together to support a moratorium on the death penalty.

“Put down being competitors for the season of Easter,” Barber said. “Come together and do what’s right.”

Lawyers in the attorney general’s office said Thursday afternoon that they met with the civil rights group. Cooper’s spokeswoman Noelle Talley said Cooper wants to work with the NACCP to address problems in the criminal justice system.

Talley says Cooper also wants more money for N.C. Innocence Inquiry Commission, which has been involved in releasing eight innocent men.

Barber held the news conference to focus on two murder cases — one in Winston-Salem and another in Greenville — where defense attorneys say innocent men have been in prison since the 1990s. Both men rejected plea deals for lesser sentences because they refused to admit to murders they didn’t commit, Barber said.

“This is what happens when a system is infected and infested with racial class bias,” Barber said. “And the only way to stop it is to deal with it, have grown-up conversations, free the innocent people” and a create a system that prevents wrongful convictions.

Conviction integrity units such as ones in Harris County, Texas, and Brooklyn, New York, are one reason a record number of people falsely convicted of crimes — 149 — were exonerated in 2015, Sam Gross, editor of the National Registry of Exonerations, has said. The registry is a project of the University of Michigan Law School that has documented more than 1,740 such cases in the U.S.

After the news conference, participants delivered letters to the offices of McCrory and Cooper, calling for the release of the two men — Kalvin Michael Smith in Winston-Salem and Dontae Sharpe in Greenville. Their families and supporters also attended the news conference.

McCrory’s office didn’t immediately respond to Barber’s comments.

http://www.austinchronicle.com/news/2016-03-11/learning-from-our-mistakes/

Learning From Our Mistakes

Fran and Dan Keller were prosecuted wrongly and unjustly. It’s long past time for their complete exoneration.

BY MICHAEL KING, FRI., MARCH 11, 2016

“Sometimes, it feels like we’re still in prison.”

In late December, Fran and Dan Keller were talking to a reporter in their small rent-house near New Braunfels, and quietly describing how it feels to have been released from prison after 21 years, yet still have so little freedom of movement or circumstance, or even quality of life. Their 1992 conviction on multiple counts of “sexual assault of a minor” – in the now notorious Fran’s Day Care case – has effectively been overturned by a May 2015 Court of Criminal Appeals ruling “granting relief” to the Kellers on a single question of retracted medical testimony. But the ruling was not accompanied by actual exoneration from the allegedly heinous crimes.

Only a single appeals court judge – Cheryl Johnson – was willing to admit no crime had in fact occurred. “This was a witch hunt from the beginning,” wrote Johnson, in her opinion concurring with the opaque ruling of the full court. Johnson would have granted relief on all the Kellers’ claims, and would have acknowledged that the entire prosecution had been an egregious folly.

The limited ruling, while welcome in itself, left the Kellers in a legal limbo – permanently accused but not cleared, and never to be tried. Their felony convictions have been “vacated,” but they’re technically on bonded status, and their daily lives are substantially restricted. “We still have a felony on us,” Fran said, because the absence of an explicit exoneration leaves her and Dan at the mercy of any online background search. Without a clearing of their names, not only can they not live openly without fear of disgrace or retribution, they can’t readily find employment adequate to their needs, any rental process is a minefield, and they can’t hope to buy a home of their own. For fear of another accusation, they avoid being in the company of their 11 grandchildren or 24 great-grandchildren outside the presence of another adult. Even their lives prior to their arrest do not fully belong to them: Fran reports that family photo albums and other keepsakes seized by police during the original investigation – which provided no evidence of any wrongdoing – have never been returned.

“It’s as though we’re still considered criminals,” said Dan. “We didn’t do anything. We still respect the law. And we’re still being punished. Sometimes it feels like we’re still locked up.”

In the absence of an exoneration from the court, there remains one person who can act upon the complete absence of evidence against the Kellers, and can publicly acknowledge once and for all that the crimes the Kellers were accused and convicted of did not happen.

“It’s me,” said Travis County District Attor­ney Rosemary Lehmberg in January. But while sympathetic to the Kellers’ strained circumstances – when it became clear that the original prosecution had collapsed, she agreed to their release from prison – the district attorney told the Chronicle she found herself still unable to “find a path to innocence.” In previous local exonerations, Lehmberg recalled, DNA evidence eventually led away from the person convicted. In this case, the absence of any physical evidence that a crime had actually been committed has had a perverse result: It has thus far prevented Lehmberg from further action.

“I have never done an exoneration where I wasn’t sure,” Lehmberg said. “I must be, myself, assured either that this person didn’t do it, somebody else did, or, that person is actually innocent. I’m not gonna tell you I don’t still think about it.”

In late February, the district attorney reiterated her position. “I’ve really, really given it a lot of thought,” she insisted. “And I just don’t see a way to agree to actual innocence for them.”

No Happy Ending

Although the court’s ruling and the prosecutor’s decision not to retry the case have removed the Kellers’ immediate legal jeopardy, after so many years in prison (Fran is now 66, Dan is 74), their financial circumstances are quite difficult. They live on their limited Social Security payments – after more than two decades out of the workforce – and support from family, all of whom stood by them from the beginning of their ordeal, firmly convinced that they had done nothing wrong. They don’t know how permanent their current home is – their landlord is an elderly relative – and without it, they would likely be imposing (as they see it) on their children. (In recent weeks, Fran has wondered uncertainly if she and Dan should try to create some sort of personal fundraising effort.)

In justice, the Kellers should be eligible for financial compensation from the state of Texas, for having been wrongly incarcerated for 21 years (the family counts 23, dating from their 1992 conviction through their continuing legal purgatory). No longer convicted of any crime, they remain under a permanent cloud of accusation, required to somehow further demonstrate their innocence – of crimes that never happened.

“Everyone thinks this story had a happy ending,” says Keith Hampton. “But it still hasn’t ended, and it isn’t happy.”

Hampton is the Kellers’ (pro bono) attorney, who successfully represented them before the lower and appeals courts and finally persuaded the judicial system to grudgingly, incompletely acknowledge that incarcerating two innocent people for decades was unjust. In the course of that defense, which began in 2012, Hampton has become an encyclopedic authority on the crimes that never happened at Fran’s Oak Hill Day Care center. As he wrote in an unsuccessful request that the Court of Appeals reconsider its limited 2015 ruling, “This case has a legal, historic significance. Applicants’ convictions were the clear product of a period of hysteria now identified as the ‘Daycare Panic’ or the ‘Satanic Panic.'” The most notorious relic of that period was the McMartin Preschool case in California, which involved more children, more alleged abusers, and equally fantastic tales. But the Fran’s Day Care case is Travis County’s own miniature McMartin case, an unremoved stain on our local justice system, with similarly devastating effects on the accused – the Kellers and others – as well as on the alleged child victims and their families.

Hampton’s various briefs recount the incredible, absurd lengths investigators pursued in trying to confirm elaborate, impossible tales imagined by young children, under constant pressure from their credulous parents and investigators: ritual murders of children and animals, shark and tiger attacks, secret burials in various cemeteries, multiplying accusations against randomly selected adults, and so on. John­son, aptly citing the 17th-century Salem witch trials as historical precedent for the Keller investigation and prosecution, recounted the utterly spurious claims of two children who had been most persistently suborned by adults into telling frankly unbelievable tales, and wrote: “In spite of such fantastical claims, which should have produced total incredulity in the police investigators and prosecutors, charges were filed.”

The whole story was told here by former Chronicle reporter Jordan Smith, starting with her March 27, 2009, feature, “Believing the Children,” and concluding with her December 6, 2013, account of their release, “Freedom for the Kellers.” By the time Smith’s first article was published, the Kellers had been imprisoned 17 years.

In 1992, after months of elaborate and futile investigations and pressurized interviews, three children had claimed Fran, Dan, and several other adults had abused them – including several police officers and various neighbors randomly implicated by the children or their parents. (Some were subsequently sued in a civil action that came to nothing.)

Although the children’s tales, if remotely accurate, should have been able to be confirmed by voluminous physical evidence, all the prosecution provided was testimony from a young emergency doctor, Michael Mouw, who said he had examined one child for signs of sexual abuse, and that small deformities on her hymen might have been caused by abuse. In the absence of any other physical evidence, some jurors later said they were persuaded by Mouw’s testimony.

http://www.newsobserver.com/news/local/article64064432.html

MARCH 4, 2016 3:59 PM

Howard Dudley’s new life: restaurants, cellphones and a cemetery visit

‘Awesome, awesome, awesome’

Dudley was freed by a judge Wednesday

Awaiting a prosecutor’s decision

BY JOSEPH NEFF

[email protected]

KINSTON

After spending 23 years in prison, Howard Dudley rendered a verdict on his first 48 hours of freedom.

“Awesome, awesome, awesome,” he said in a telephone interview. One could hear Dudley’s smile over the telephone.

On Wednesday, a judge threw out Dudley’s 1992 conviction, saying he had no confidence in the trial in which the Kinston man was convicted of sexually assaulting his 9-year-old daughter.

So much has changed during the 23 years Dudley spent in prison. He’s relearning how to order in restaurants. He thinks he’s mastered the art of dialing a cellphone and is ready to get one of his own. He’s been shopping with family for clothes, dining at the Golden Corral and visiting the cemetery where his wife and mother are buried.

He looks forward to meeting soon with his daughter, Amy Moore, whose false testimony as a 9-year-old at the 1992 trial sent him to prison. Moore, who struggles with mental retardation and several other mental health issues, testified this week that the allegations were a lie. Dudley testified that he loved his daughter and forgave her.

“I’m ready,” Dudley said. “I would like to go out with my mother-in-law and see Amy.”

Dudley was the subject of a 2005 News & Observer series, Caught in a Lie, which chronicled the problems with his case. The series prompted lawyers at Duke’s Clinic on Wrongful Convictions to take up his case. They succeeded in winning his freedom Wednesday.

Since then, Dudley has enjoyed some basic pleasures.

“It felt good to cut the lights out and sleep in the dark in a real bed,” Dudley said.

What is the status of Dudley’s case?

Superior Court Judge Doug Parsons vacated Dudley’s conviction. Dudley is still charged with a crime. District Attorney Matthew Delbridge can make one of three decisions: appeal Parsons’ decision; retry Dudley; or dismiss the charges.

Pursuing an appeal or retrial faces huge obstacles. Under direct questioning by the judge, Moore testified that she lied and that her father had never raped or touched her inappropriately. Dismissal seems the likeliest next step.

Delbridge did not return phone calls for comment Friday.

What is Howard Dudley’s next step?

Once charges are dismissed, Dudley will seek a pardon of innocence from Gov. Pat McCrory, according to Theresa Newman, one of Dudley’s lawyers. Parsons’ order strongly supports a pardon, she said.

A pardon of innocence would allow Dudley to collect $50,000 for each year he spent wrongfully imprisoned, up to a maximum of $750,000.

The money pales in importance next to the pardon itself, Newman said: “The most important thing to Howard is the Dudley family name and his honor.”

Other exonerees, like Greg Taylor, Dwayne Dail and Alan Gell, have received substantial settlements after filing lawsuits. Can Dudley file a similar lawsuit?

Newman said such a lawsuit would be difficult to win. The false allegations were brought by Dudley’s daughter. Dudley won’t sue her.

Parsons ruled that Nick Harvey, Dudley’s trial lawyer, did not provide adequate legal representation, but the statute of limitations has run its course and Dudley wouldn’t sue the lawyer anyway. Prosecutors did not hand over favorable evidence at trial, evidence that ultimately freed Dudley. But the prosecutors did not have the evidence in their files. Further cutting off that avenue is the fact that prosecutors enjoy absolute immunity for their official acts.

The Kinston Police Department could be the target of a lawsuit, but the police would likely put all the blame on the performance of Dudley’s trial lawyer.

“It seems to be a bit of a long shot,” said Spencer Parris, one of Dudley’s lawyers who has filed similar lawsuits in the past.

Parsons, in his ruling, said the injustice was a failure of the entire system.

“I’m not blaming any individual; from the District Attorney’s Office, certainly not; police department, Social Services, or Mr. Harvey,” Parsons said. “Our system of justice failed Mr. Dudley, period.”​

Why did it take so long?

The News & Observer wrote about Dudley’s case in 2005. Duke’s Wrongful Conviction Clinic accepted the case in 2008. Newman, one of the clinic’s lawyers, said Dudley’s case was extremely complicated. It did not involve DNA, and the main task was to prove a crime did not occur. The clinic and its law students reinvestigated the entire case and developed the expert evidence on Amy Moore’s mental state and why her recantation was more believable than her original testimony.

And the lawyers had to get over a very high hurdle: Dudley had already gone to court three times to try to overturn his conviction. Prosecutors argued he did not deserve another bite at the apple.

“When it’s your client’s last chance, it has to be an A+ job,” Newman said. “It has to be perfect.”

Duke filed its motion in 2013. In 2015, a judge ordered a hearing with evidence and testimony. That hearing took place this week, and Dudley walked free.

Does the system need fixing?

Parsons pointed out in his ruling that reforms have changed the system since 1992. Changes in state law mandate that defendants receive all the evidence in the possession of police and prosecutors. The office of Indigent Defense Services, established after Dudley’s conviction, would appoint an experienced lawyer to a case involving a life sentence. Dudley’s lawyer was a rookie with a year of law practice under his belt. Police and social workers have overhauled and improved the practice of interviewing children about allegations of sexual abuse.

Still, Newman said it would be helpful for the justice system to examine what went wrong, in a similar way that the aviation industry learns from investigations into plane crashes by the National Transportation Safety Board.

“It would be good to put Howard Dudley’s case on the table so everyone can talk about it,” Newman said.

Have any public officials apologized to Dudley?

No.

http://www.newsobserver.com/news/local/crime/article63564927.html

MARCH 2, 2016 12:05 PM

After 23 years in NC prison, Howard Dudley embraces his freedom

The Kinston man had turned down earlier offers that required guilty plea

Dudley: ‘The only thing I had to fight with was the truth’

Judge: ‘This cries out as an injustice to Mr. Dudley’

BY JOSEPH NEFF

[email protected]

KINSTON

Before leaving the Lenoir County jail on Wednesday afternoon, Howard Dudley threw his prison uniform on the floor, raised his arms and walked over the clothes.

These were his first steps as a free man in 23 years.

A judge had just freed Dudley, ruling that he had no confidence in the 1992 trial in which the Kinston man was convicted of sexually assaulting his 9-year-old daughter.

Outside the jail, in the crush of family, friends, lawyers and cameras, Dudley smiled broadly and thanked God, his family and his lawyers.

“The only thing I had to fight with was the truth,” he said.

Then Dudley faltered as he remembered his wife and mother, both of whom died while he languished in prison. A sister and sister-in-law struggled to hold Dudley up as his knees buckled.

Dudley, 59, served nearly 24 years for the alleged assault. On Wednesday, he testified that he turned down a plea deal that would have freed him in 1992 because he refused to admit to any wrongdoing when he was innocent.

“I want my name cleared,” Dudley said. “These type of charges are very bad charges. I didn’t commit any of these acts. I need healing, and so does Amy.”

Dudley’s daughter, Amy Moore, had testified at his trial that he had sexually abused her, the only evidence against him. She was 9 at the time. But on Tuesday, Moore told Superior Court Judge W. Douglas Parsons that her previous story was false.

Mental health experts testified that Moore suffers from a host of mental health issues: depression, mental retardation, anxiety disorder and psychotic episodes. Moore is easily led, and her statements to police and social service workers were unreliable, the witnesses testified.

Dudley’s lawyers said she is wracked with guilt from the lies she told that locked up her father for more than two decades.

“Howard Dudley and Amy Moore have been in different prisons for 23 years,” said Spencer Parris, a lawyer for Dudley. “We request freedom for Howard, and by that, freedom for Amy.”

Assistant District Attorney John Newby said the judge should respect the original guilty verdict.

“This case came down to credibility,” Newby said. “In April 1992, 12 jurors were selected. They listened to all the evidence, deliberated and found the defendant guilty. They were in a better position than this court to decide the case.”

An ‘outrageous’ violation

In throwing out Dudley’s conviction, Parsons focused on three flaws in his trial.

▪ Dudley never received copies of social services and court records showing that Amy Moore had given wildly inconsistent and improbable versions of the alleged assault.

“I found this to be an egregious, possibly outrageous … violation,” Parsons said. “This cries out as an injustice to Mr. Dudley.”

▪ Parsons said he was convinced that Moore’s 1992 testimony was false.

▪ And he said Dudley’s trial lawyer failed his client. Nick Harvey had been practicing law full time for just one year. Harvey spent just 27 hours preparing for a trial that carried two potential life sentences. He filed no motions and did not consult any expert witnesses.

“We basically went into trial naked,” Parsons said. “The result is not surprising to me.”

A family reunion

Earlier in the day, Dudley shuffled to the witness stand in ankle chains and testified in a soft voice.

He said that he turned down several chances for freedom – a plea deal in 1992, prison programs that allowed early release – for a simple reason.

“I am not a child molester. I have never been one, and I will never be one,” Dudley said.

Dudley’s plight was the subject of a 2005 News & Observer series, “Caught in a Lie.” The stories revealed problems with the case and explored Dudley’s life in prison.

The Wrongful Convictions Clinic at Duke took up Dudley’s case, and in June, Superior Court Judge Paul Jones ordered the hearing that started Tuesday.

Dudley was the final witness at his evidentiary hearing, a minitrial of sorts where his lawyers aimed to prove that he was wrongly convicted.

“I love my daughter Amy,” he said. “I hope that soon I will be able to hug her neck and tell her I love and forgive her.”

Moore, however, was not in court Wednesday, so their reunion would wait. Dudley’s first stop: Bojangles’, for fried chicken covered with Texas Pete.

“Wow,” Dudley said. He stared at the menu board, almost paralyzed by the dozens of choices.

The woman running the counter asked: Would you like a Supreme?

“Yeah, that will work,” Dudley said. “Whatever it is.”

After Dudley sat down to eat, three dozen family members launched a a pop-up party.

“I just want to go home and sleep in a bed,” Dudley said. “And not look at a fence.”

http://www.newsobserver.com/news/local/crime/article63342732.html

MARCH 1, 2016 1:58 PM

Howard Dudley’s daughter says she lied about sexual assault

Amy Moore says she was raped ‘By two different guys. Not my daddy.’

Dudley, 59, has served nearly 25 years in prison

Prosecutor cautions against viewing case through ‘distorted lens’ of time

Read more here: http://www.newsobserver.com/news/local/crime/article63342732.html#storylink=cpy

BY JOSEPH NEFF

[email protected]

On Tuesday, Amy Moore returned to the courthouse where, 23 years ago, she testified that her father sexually assaulted her.

In a soft-spoken, often stumbling voice, she told the court that her testimony had been a lie.

Her father, Howard Dudley, did not rape her, she said. He never touched her inappropriately.

Dudley, 59, has served nearly 24 years for the alleged assault, and once turned down a plea deal that would have let him walk away without prison time. The only evidence against him was the testimony of his daughter, who soon after the trial admitted that her testimony was a fabrication.

Tuesday’s proceedings opened an evidentiary hearing, a mini-trial of sorts where his lawyers will present evidence and witnesses in an attempt to prove that Dudley was wrongly convicted. At its end, he could be ordered released by Superior Court Judge W. Douglas Parsons.

Jamie Lau, a lawyer for Dudley, said the hearing was a big moment for both Dudley and Amy Moore.

“We are here to end this nightmare for Howard and Amy,” Lau said. “Amy has had a terrible time as an adult. Over and over people have refused to believe her as an adult now.”

Dudley, an inmate at Greene Correctional Institution, wore a grey t-shirt and white dungarees and watched the proceedings intently. His family and friends filled six rows in the small courtroom.

‘Not my daddy’

Dudley’s plight was the subject of a 2005 News & Observer series, “Caught in a Lie.” The stories revealed problems with the case and explored Dudley’s life in prison.

Eventually, the Wrongful Convictions Clinic at Duke took up Dudley’s case, and in June, Superior Court Judge Paul Jones ordered the hearing that started Tuesday.

Moore, now 33, was at center stage. She struggled to explain herself, first as she was questioned by lawyers trying to free her father, then by an assistant district attorney seeking to uphold the conviction. At the end of her testimony, Parsons turned to ask questions.

“I’m sitting up here all by myself, just like you are,” Parsons said.

Motioning to the two teams of lawyers, the judge said he wasn’t on either side. He wanted the truth.

Parsons: “I want you to answer in your heart.”

Moore: “I was raped when I was younger.”

The rape happened before she was 9, she said. Her late mother never knew of the rape.

Parsons asked: Were you raped by your father?

“By two different guys,” she said. “Not my daddy.”

An inexperienced lawyer

Lau said Dudley’s lawyer at his 1992 trial, Nicholas Harvey, did not have access to records from the Department of Social Services and his daughter’s court-appointed guardian.

The guardian closely interviewed Amy Moore and concluded that 9-year-old girl was lying. The babysitter who first reported Moore’s allegations told social workers before trial that Moore might be lying.

Social service records showed that Moore’s allegations were physically impossible, inconsistent, and embellished over time. She said was raped while wearing her pajamas and panties. She said she was bleeding. She said there was no blood. She said she was stabbed in the back with a knife, screamed and that a neighbor broke up the alleged attack.

“These are impossible,” Lau said. “Harvey did not have the DSS and guardian ad litem statements showing how inconsistent and fantastically embellished Amy’s statements were.”

Assistant district attorney John Newby argued that Dudley was entitled to a fair trial, not a perfect trial. Newby cautioned Judge Parsons about overturning the jury verdict.

“We are looking backwards through a hazy, distorted lens,” Newby said. “Witnesses are no longer available, memories fade, witnesses are influenced by family members. Recanted testimony is exceedingly unreliable.”

Harvey testified Tuesday that Dudley’s 1992 trial was his first serious felony case. At the time, he had only recently started the full-time practice of law. Harvey said he did not receive any of the social service or guardian files, which would have been critical for revealing the flaws and inconsistencies in the testimony of Moore and other witnesses.

Dudley’s lawyers called an expert witness, Jeffrey Miller, a Greenville lawyer with extensive experience in child sex abuse cases. Miller spent several years on the controversial Little Rascals case. The main defendant, Robert Kelly, was convicted in the neighboring county of 99 counts and sentenced to 12 life sentences the day before Dudley’s trial began. Kelly’s convictions were later overturned.

Miller testified that Harvey did not do a competent job at the 1992 trial. He filed no motions for evidence and did not request an expert witness or psychological evaluation to determine if Moore was competent to testify. And he spent just 12 hours working on the case before trial.

“That falls far short of competent reasonable practice in Eastern North Carolina for anyone charged with a life sentence,” Miller said.

http://www.buckscountycouriertimes.com/opinion/editorial/sound-judgment-too-soon-to-retire/article_73ee2774-0bbd-57b6-811f-79698e5a6ad2.html

Sound judgment: Too soon to retire

An editorial in the Bucks County Courier Times

Posted: Tuesday, February 23, 2016 12:15 am | Updated: 1:14 am, Tue Feb 23, 2016.

What a waste it would be to force Bucks County Judge Alan Rubenstein from the bench. At 70, he remains sharp and vibrant, a jurist of impeccable credentials with vast institutional knowledge of Bucks County, not to mention historic accomplishments.

As district attorney, Rubenstein tried more cases than any prosecutor in county history. And he was the only county DA to be elected four times, a measure of how well he did the job and how much voters trusted and appreciated him. Indeed, they rewarded him with a seat on the county bench, a post Rubenstein continues to relish and is in no hurry to relinquish.

Given the chance, Rubenstein said he’d “stick around forever.”

Yet, Rubenstein and every judge across the state faces mandatory retirement at age 70. In Rubenstein’s case, this would be a travesty of justice — unless voters extend the mandatory retirement age. They will be given that chance on April 26, when the primary election ballot will include a referendum asking if judges should be allowed to stay on the job until age 75.

They should.

There’s no question that most judges remain capable of serving far longer. In fact, the state’s senior judge system allows retired judges to work on a limited basis until they’re 78. They are paid a daily rate of about $600 in that capacity versus an annual salary of $176,000, a bargain for taxpayers. Their availability also helps reduce backlogs and enhance just outcomes. Problem is, the restrictions imposed on senior judges make it difficult for them to follow cases through. And so the courts don’t get all that senior judges have to offer: comprehensive knowledge of the law and a perspective and temperament honed by years of experience.

This is how reporter James O’Mally described Rubenstein, whose work ethic includes moonlighting as a boxing judge: “The prosecutor-turned-judge, whose career has spanned a storied 43 years in Bucks County, comes across as a jurist in his prime — on point, thoughtful and confident, yet mellowed by the deepening of age.”

This is not a man ready to hang up his robes. Nor should he. And so we call on voters to pass the referendum.

That said, we also call on lawmakers to pursue another reform: ending judicial elections for state courts. Anybody who’s attempted to make an informed choice for seats on the state bench knows what a near-impossible task that is. Faced with a sometimes long list of mostly unknown candidates, many voters turn to the eeny, meeny, miny, moe method of selecting candidates. Or they pick names on the basis of ethnicity, sex or ballot position — thus the highly coveted top of the ballot.

Some voters perform their due diligence, of course, and read what they can about the candidates, which isn’t much. State law bars judicial candidates from speaking to issues. So we’re left to review credentials and experience, and bar recommendations.

That “informed” choice is not part of the formula for naming judges is both an irony and a scandal — something we’re quite used to here in Pennsylvania.

http://www.newsobserver.com/news/local/crime/article58916553.html

FEBRUARY 6, 2016 7:46 PM

NC State Bar dismisses complaints against prosecutors in racially divisive case

Duke law professor says prosecutors used ‘false’ affidavit to discredit his client

Records show victim in Winston-Salem case never identified assailant as a black male

Prosecutors, including candidate for attorney general, are silent

BY JOSEPH NEFF

[email protected]

For most of 2015, the North Carolina State Bar vigorously and publicly pressed ethics charges against two anti-death penalty lawyers for what were eventually judged to be unimportant inaccuracies in two sworn affidavits.

During the same time, the bar privately dismissed complaints that three prominent prosecutors – one running for attorney general, another now a Superior Court judge – used a false affidavit in a racially divisive case that has roiled Winston-Salem for more than a decade.

Former Forsyth County assistant district attorney David Hall, now a Superior Court judge. Kalvin Michael Smith listens to testimony in January 2009, in the hearing for his request for a retrial of his 1997 conviction in the beating of Jill Marker at the Silk Plant Forest in 1995. Former Forsyth County District Attorney Tom Keith. Forsyth County District Attorney Jim O’Neill in Forsyth Superior Court in 2010. Former Forsyth County assistant district attorney David Hall, now a Superior Court judge. Kalvin Michael Smith listens to testimony in January 2009, in the hearing for his request for a retrial of his 1997 conviction in the beating of Jill Marker at the Silk Plant Forest in 1995.

A city-funded investigation concluded that it had no confidence in the verdict in what is known as the Silk Plant Forest case. So did a veteran FBI agent, who called it the sloppiest investigation he had ever seen, and called the affidavit “ludicrous.”

The State Bar is silent on this case, saying the law prevents them from even acknowledging a complaint was filed.

Duke law professor James Coleman, who filed the complaints, was silent as the bar prosecuted Cassandra Stubbs of the ACLU and Gretchen Engel of the Center for Death Penalty Litigation. But now Coleman is talking about the complaints he filed against the prosecutors. He provided The News & Observer with his correspondence with the state bar, giving a rare glimpse into a closed world.

Coleman said the three Forsyth County prosecutors – former District Attorney Tom Keith, current District Attorney Jim O’Neill, now a candidate for attorney general, and Assistant District Attorney David Hall, now a Superior Court judge – used the affidavits to discredit his client, Kalvin Michael Smith, and impugn Coleman’s integrity and that of his colleagues at the Duke Wrongful Convictions Clinic.

“The decisions are indefensible,” Coleman wrote to the state bar’s Grievance Committee after it dismissed the complaints. “A criminal justice system in which prosecutors are free to procure and secretly use false evidence for any purpose is unlikely to be one in which justice prevails.”

The grievance committee works in secret, much like a grand jury. The public can see the cases where the bar elects to pursue charges but has no insight into the cases that the committee declines to pursue.

“I can’t even confirm that Mr. Coleman filed a grievance,” said Katherine Jean, chief counsel for the State Bar.

The three prosecutors declined to be interviewed. David Freedman, a Winston-Salem defense attorney who defended them before the bar committee, said Coleman’s assertions were wrong.

“The baseless claims of Mr. James Coleman … have been reviewed by and determined to be without merit by two experienced and respected Superior Court Judges, The North Carolina Court of Appeals, a Federal Judge in the Middle District of North Carolina, The Fourth Circuit Court of Appeals and The North Carolina State Bar,” Freedman said in a statement.

Coleman said those judges, courts and State Bar never forced the prosecutors to answer the basic question: How did they use the affidavit?

A divisive case

In December 1995, Jill Marker was five months pregnant and working at Silk Plant Forest, a store that sold artificial plants, when at the close of business an assailant beat her severely, nearly killing her. Marker gave birth months later while still in a coma. Today she is blind, brain-damaged, physically disabled and requires 24-hour care.

For months, Winston-Salem police focused on Kenneth Lamoureux, a white man with a history of domestic violence. Marker had told a friend that Lamoureux became angry when she refused to go on a date with him. Witnesses saw him in the store the night of the attack.

After Lamoureux moved from Winston-Salem, the case detective dropped him as a suspect; he died in 2011. Police finally charged Smith, who was convicted in 1997 and sentenced to 29 years in prison.

Doubts about the case soon spread. The Duke Wrongful Convictions Clinic took up Smith’s case in 2003. In 2004, The Winston-Salem Journal ran a five-part series questioning the handling of the case.

In 2009, the Silk Plant Forest Citizens Review Committee, an investigative body set up by the Winston-Salem City Council, concluded that it had no confidence in the police investigation. In 2012, retired FBI agent Chris Swecker concluded after a 15-month investigation that the police investigation was so flawed and incomplete that Smith deserved a new trial.

“It was the sloppiest investigation I have ever seen,” Swecker said in a recent email.

‘It was false’

The path to Coleman’s complaint began in January 2008, 11 years after Smith’s conviction and as Smith’s lawyers were arguing for a hearing to examine evidence not heard at trial. Duke law professor Theresa Newman, who directs the Duke Wrongful Convictions Clinic along with Coleman, received an email from Arnita Miles, who identified herself as a former Winston-Salem police officer.

Miles said she was the first officer to interview Jill Marker at the store after the assault. According to Miles, Marker said her attacker was a black male. She also said Marker dictated a letter that night, as a last message to her husband, and asked Miles to give it to him. Miles said she passed it on that night to the lead detective.

Newman was surprised. She knew the court and police files contained no references to Marker identifying her attacker as a black male or to a letter dictated that night. She immediately wrote to two of the prosecutors – Keith and Hall – saying that Miles’ claims were odd, even unbelievable.

“There is nothing in the file that indicates that Jill said that,” Newman wrote. “If Jill did say that, it is particularly hard (actually impossible) to understand why the investigation pursued white male suspects for some time before turning to blacks.”

Hall replied the next day, saying he knew Arnita Miles as “a straight shooter” who would make a “VERY reliable witness.”

Because of the push for a new hearing, the SBI assigned an agent to assist prosecutors. Following the emails between Newman and Hall, the agent interviewed Miles. The agent turned up problems which he shared in a report to the prosecutors.

Miles did file a report following the attack. In it, she wrote that she was not the first officer at the scene. She wrote that Marker was incoherent and did not describe her attacker. Miles told the SBI she could not explain the discrepancy between what she wrote in 1995 hours after the assault and her 2008 claims.

The SBI agent also obtained the letter from Miles to Marker’s husband. Miles said she wrote it the night of the attack, but the letter was dated five months later and congratulated Mr. Marker on the birth of his son. It does not mention any details about the assailant.

Hall, the assistant district attorney, used parts of the SBI agent’s report as the foundation for an affidavit to be signed by Miles. The draft affidavit said Marker had identified a black assailant minutes after the attack, but did not mention that the SBI had noted that this contradicted Miles’ 1995 reports. Hall attached the letter to Marker’s husband as an exhibit.

In March 2008, Hall sent Smith’s lawyers an unsigned draft of that affidavit.

Coleman said he ignored the document, knowing the prosecutors could never use it in court: “We had already told Hall it was false.”

They never received a signed and sworn affidavit. Coleman and Newman said they forgot about Arnita Miles for the next four years.

But the affidavit was still in play, as they would find out later.

A prosecutor’s push

In December 2008, a Winston-Salem police detective assigned to the Silk Plant Forest Citizens Review Committee interviewed Miles and confronted her with the contradictions between her 2008 statements and her own records from 1995.

Miles conceded that after all these years, her memory might not be correct. She told the detective they should go by what she wrote in her original report, which said there was no description of the suspect. If Marker had mentioned a black assailant, Miles said she would have put it in the report.

District Attorney Tom Keith apparently didn’t know about that interview, because three days later he wrote to the chairmain of the Silk Plant Forest Citizens Review Committee complaining that “no effort has been made … to interview former Detective Arnita Miles.” Keith wrote that ethical rules prevented him from revealing details but her observations were significant.

The Duke lawyers learned of the signed and sworn affidavit in June 2012, following a meeting between District Attorney Jim O’Neill and Swecker, the retired FBI agent with experience auditing criminal investigations, including a critical 2010 audit of the SBI crime lab.

Swecker came to the same conclusion as the Silk Plant Forest Citizens Review Committee: The investigation was deeply flawed and incomplete. Swecker did not conclude that Smith was innocent, but said he deserved a new trial.

At the meeting with Swecker and in a followup email, O’Neill cited the Miles affidavit as proof that Marker had identified her attacker as a black male.

“I am holding in my hand a sworn affidavit by Arnita Miles, who was one of the first officers at the scene and the person who spoke with Jill while she lay on the floor of Silk Plant Forest,” O’Neill wrote. “Despite this evidence, the Duke Innocence Project continued to parade the name of Kenneth Lamoureaux as the person who likely committed this crime, knowing full well that Jill Marker said her attacker was a black man.”

Swecker was shocked.

“I was taken aback that he attached any credibility to that affidavit,” Swecker said in a recent interview. “The affidavit was not even remotely credible to anyone who looked at the evidence in the case.”

Freedman, the lawyer for the prosecutors, said Swecker’s response is immaterial to the case.

“Different people are shocked by different things,” Freedman said.

The prosecutors never used the affidavit in court or introduced it into evidence, so there was no misconduct, Freedman said.

Legal misconduct can occur inside and outside of court, Coleman said.

“I can think of no situation where it is ethical for a lawyer to obtain a sworn affidavit that is false and use it for any purpose,” he said.

At the State Bar, Coleman’s complaint was assigned to Patrick Murphy, a retired career prosecutor with the Attorney General’s office. Murphy made his recommendation to the Grievance Committee: no rule violations occurred and the complaint should be dismissed.

John Silverstein, the chair of the Grievance Committee, said he relied on the recommendation of staff lawyers. When they recommended dismissals, which occur about 100 times a month, he said his policy was to review the letter and sign off.

Joseph Neff: 919-829-4516, @josephcneff