Did a prosecutor and police send an innocent teenager to prison for murder? | News Feature | Indy Week
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Did a prosecutor and police send an innocent teenager to prison for murder? 

Derrick McRae, 35, is serving a life sentence for a murder he insists he didn't commit. Two lawyers with Duke University's Wrongful Convictions Clinic are fighting to get him a new trial. New evidence suggests that McRae could be innocent.

Photo by Jeremy M. Lange

Derrick McRae, 35, is serving a life sentence for a murder he insists he didn't commit. Two lawyers with Duke University's Wrongful Convictions Clinic are fighting to get him a new trial. New evidence suggests that McRae could be innocent.

1. From the start, the case seemed destined to live or die with Edward Tender. In early December, the 62-year-old former volunteer fire chief hobbled to the witness stand. He wore a rumpled suit on his slight frame. His cheeks were hollow and weathered. A large, open collar sagged over his chest, as if suggesting defeat.

At the defense table sat Derrick McRae, a short 35-year-old with chubby cheeks layered with scruff. Hunched over and doodling on a legal pad, McRae seemed lost to the day's proceedings. But as Tender placed his hand on the Bible, the defendant's gaze turned upward, locking onto his star witness.

Seventeen years ago, McRae, who is black, was convicted and sentenced to life without parole for killing a white man in the small, hardscrabble city of Rockingham, 70 miles east of Charlotte. That might have been the end of it, if not for McRae's Durham attorneys. At a hearing last month, a judge considered new evidence, unearthed over seven years, that might set him free.

McRae and I had exchanged several letters before the hearing, and spoke during two face-to-face prison interviews. In his missives, which were rife with spelling and grammatical errors, McRae conveyed optimism he would be vindicated.

"I can see myself walking away from this," he said. "Freedom is still in my mind."

His hopes weren't completely outlandish. After all, he had found Edward Tender.

2. The body was discovered at 2:45 in the morning, slumped on a porch 400 yards from McRae's house near a woods. A crack pipe rested in the victim's hand; a bullet casing lay nearby. The 25-year-old man had been shot, point-blank, in the head.

It was the fall of 1995, when crime and drugs in Rockingham were so rampant that the U.S. Department of Justice had to intervene. Especially dangerous were the JFK housing projects, where McRae and several poor, black families lived in a series of low-slung brick buildings huddled together on a cul-de-sac. Nearby, barbed wire would soon surround the athletic fields at the county's lone public high school.

The dead man on the porch, Jerry Rankin, was not from the projects. The son of a TV repairman, he lived outside the city with his wife and two children. But Rankin had fallen into drugs, and he knew the JFK area was the place to score crack. Hours before the murder, he had met his mother in a vacant lot next to a tarot card business three miles away, where he pledged to begin a treatment program. He seemed clean and happy, his mother recalled, but also nervous.

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A dispatch call roused Detective Robert Voorhees from bed. A husky young sergeant, Voorhees had worked in the Rockingham Police Department's Criminal Investigation Detective Division for four years. His policing skills were so promising that in a few months he would lead the division, and by 2003 he would become police chief. "He was an excellent investigator," his former boss said.

Voorhees knew Rankin; they had attended Richmond Senior High together. After Rankin got hooked on drugs, the detective had arrested him at least once. That October night, seeing his former classmate lying in a pool of blood, Voorhees felt his heart tug, just as it did for every dead person he came upon. "Living in a community this small, chances are you're gonna know something about every victim," he told me recently.

Voorhees determined the fatal bullet came from either a .380 or 9-millimeter handgun. No weapon was discovered. Throughout the fall and mid-winter, Voorhees found few leads. That changed in February 1996, when several witnesses began pouring into the police station, each pointing to McRae as the prime suspect.

The police already knew McRae, a reclusive and jittery high school dropout with long braids and few friends. His abusive father, who'd been hospitalized for schizophrenia, wasn't around. McRae's erratic behavior led to run-ins with officers, who at one point slapped him with a disorderly conduct charge, leading to a conviction.

The most damning indictment against McRae for his role in the killing came from Marlin Dumas, just 15. Dumas knew McRae and other JFK teens from middle school. "We hung out at the skating rink, and at the black pool," Dumas told me. "We all sold drugs," he added. "Everybody sold drugs."

According to the investigator's notes, Dumas told police he had seen the murder, and his account offered the perfect foundation on which to build a case: Dumas had been walking down the street when he saw McRae and another neighborhood outcast, 17-year-old Thurman Nelson, under the glow of a streetlamp.

McRae appeared to be clutching a .380, and Nelson carried what looked like a .25, the notes said. Dumas hid behind a tree for 20 minutes, and saw McRae aim the gun at a man on a porch, saying, "I will shoot you, white boy." McRae fired a shot, and Nelson fired another. The next day McRae threatened to kill Dumas if he squealed. But Dumas said he went to the police because he couldn't shake the murder off his mind.

Over 10 days that February, seven more witnesses cycled through the police station. A neighborhood woman, Surinna Parker, said she looked through her window and saw McRae sell crack to Rankin, according to her witness report. Realizing Rankin's cash was counterfeit, McRae announced, "Naw, that motherfucker cheated me ... I'm going to blast him." Soon, Parker heard a gunshot.

The next morning, McRae told her, "Yeah bitch, I know you know what happened, and if you tell it I'll kill your ass," she told police. Later, McRae cut her window screens and set fire to her porch, she said.

Another resident recalled hearing McRae boast, "Yeah, I blasted that punk white motherfucker Jerry Rankin" with a .380 handgun. Another said McRae brandished his .380 every day.

Another remembered hearing a gunshot and seeing McRae and five other black men running down the street. "I decided to come forward because Jerry was a friend of mine and the person that killed him should be caught," he told detectives.

Three of the witnesses suggested that Nelson was also complicit in the killing.

After collecting the statements, the police quickly arrested McRae for first-degree murder; the following day, they arrested Nelson on the same charge.

click to enlarge PHOTO BY JEREMY M. LANGE
  • Photo by Jeremy M. Lange

3. The history of racial prejudice in the Rockingham area is well-documented. In 1991, Jesse Jackson was banned from a memorial service by the mayor and other elected officials in the adjacent town of Hamlet. Confederate flags weren't uncommon. At the time of Rankin's killing, prosecutors in Judicial District 20, which ran from the eastern Charlotte suburbs to Rockingham, disqualified 87 percent of eligible black jurists, but only 24 percent of whites. Capital murder trials with all-white juries were typical.

It was against this racially charged backdrop that McRae's case was assigned to Assistant District Attorney Scott Brewer. A tenacious lawyer, Brewer was a rising star. Only in his mid-30s at the time, he had one of the best trial records in District 20. Hard-charging and self-assured, Brewer was considered intense, fair and ambitious.

"He was tough and prepared," recalled a veteran defense attorney. "He viewed the world from the other side of where I viewed it, but he was trying to do the right thing for the public."

Brewer had joined the D.A.'s office under Carroll Lowder, who during his 30-year tenure faced accusations of prosecutorial misconduct and racism. After the murder conviction of a black man, lawyers discovered in Lowder's folder a handwritten note with the term "nigger." (The defendant was executed.) A judge once expressed "disgust" with Lowder's tactics, accusing him of running the courts like a "private fiefdom."

Lowder's successor, a former judge named Ken Honeycutt with an even greater reputation for ruthlessness, became Brewer's mentor. A one-time president of the N.C. Conference of District Attorneys, he lobbied against a state ban on executing mentally retarded defendants; his computer screensaver read "Attack attack always attack!"

Honeycutt often arrived to court wearing a lapel pin shaped like a noose, and awarded similar pins—"morale boosters," he called them—to assistant D.A.'s who secured capital convictions. During a closing argument in front of an all-white jury the year McRae was arrested, Honeycutt invoked the image of a rope in the case of a black defendant, a mentally ill man accused of a contract killing. He was sentenced to death, but the white man who hired him— testifying that he "had a nigger" pull the trigger—pleaded guilty to second-degree murder.

At the time of McRae's arrest, about 40 murder cases were pending in Honeycutt's office. "It was like an assembly line," one of his assistant prosecutors recalled. "The rule was that you were supposed to be handling a murder case every time the courthouse doors opened up." McRae's case was assigned to George E. Crump III, a veteran defense attorney who had been practicing law since the 1960s. A constant courthouse presence, Crump was overloaded. "I had so many murder cases, I don't know how many," he recalled.

Plea deals are an efficient way to churn through a heavy caseload, for both the defense and the prosecution. Crump often encouraged his clients to take a plea; at the time, he'd served as lead counsel for a murder trial just twice. When Brewer offered McRae a deal for second-degree murder, which carried a sentence of eight to 10 years, Crump advised his client to accept it. McRae declined.

In a pretrial memo addressed to McRae, Crump warned: "Unless he cuts his hair his appearance will hurt him very much in the eyes of conservative middle-class white jurors and greatly increase his chances of being found guilty."

When McRae's trial began in April 1998, he had already been in jail for two years. Nelson, who had more money than his friend, was out on bond. The two defendants were originally scheduled to be tried together, but, at the last minute, Brewer separated their cases. The jury hung, with eight members favoring acquittal. Brewer moved to retry the case immediately. He again offered McRae another plea deal, this time for voluntary manslaughter, which would require a maximum of only 13 more months in prison. McRae again declined. Ten days later, McRae, contending his innocence, went to a second trial.

4. Sometimes at night, McRae sees the shadows of demons. They curse in different languages, chomping their teeth and mashing their heads together. They call out to McRae, beckoning him into their world. But God is there to protect him.

Eventually, McRae comes to his senses. "Man," he thinks. "I gotta get out of here."

Here is Alexander Correctional Institution, a maximum-security prison in Taylorsville, in the foothills of the Blue Ridge Mountains. The demons are hallucinations—visions and voices McRae has seen and heard since he was a teenager.

McRae explained all of this during a visit last fall. His head barely poked above the ledge of the glass window of the small cinderblock room where we chatted. Clad in a stained T-shirt and baggy khakis, he spoke softly and at length about his childhood friendship with Nelson, who is a year older. They played kickball and rode bikes together. When they felt mischievous, they'd throw rocks at each other. On one occasion, Nelson accidently hit McRae's sister in the head with a rock, fracturing the boys' relationship.

In later years Nelson grew cocky, quick to show off new sneakers and clothes. McRae, in turn, withdrew, often burrowing in his room with his sketchpad, watching science fiction movies or playing Street Fighter on Nintendo. In the months leading up to the murder, however, McRae had rekindled his relationship with Nelson, tagging along with him everywhere.

"Derrick was a do-boy," recalled Marlin Dumas. "If Thurman tell you what to do, Derrick gonna follow."

The day of the murder, McRae recalled, he spent part of the morning listening to the Fugees on his cherished Walkman. That evening, at a cookout hosted by his brother's girlfriend, he got drunk on Tanqueray and grapefruit juice. (Though he enjoyed drinking, he never used or sold drugs, nor did he ever own a gun, he insisted.) After being escorted home, he said goodnight to his mother, vomited and passed out, he recalled.

The following day, he was hungover and hanging out on his porch, when a neighborhood gossip approached with news: Someone had been killed near the projects. "No way!" McRae recalled saying.

Four months later, after his arrest, McRae's mother visited him and gave him a shirt with a bunny on it. He continued to draw—"imaginary people," he explained, "like Toxic Waste Man." He told his family to have patience, declaring his innocence. "Wait till we go to court," he assured them.

To convict McRae in the second trial, Brewer needed to overcome two glaring obstacles. First, no physical evidence linked McRae to the murder. Second, Dumas, the lone eyewitness, had since been convicted for an unrelated murder in Virginia, and couldn't travel to Rockingham to testify. Brewer, however, was undeterred. He still had two key witnesses. The first was Nelson, who, unbeknownst to McRae until the trial, blamed the murder on his friend.

After his arrest, Nelson told police that on the night of the murder, Rankin drove into the JFK complex in a red truck, bought drugs from McRae and then peeled off, tires spinning. Realizing the money was fake, McRae declared, "I'm going to get that dude for giving me that bullshit," Nelson told detectives. He added that McRae confessed to the killing shortly afterward.

Nelson's statement set up an unusual and ethically dubious move for the prosecution: Even though Nelson had been charged with murder—and had yet to stand trial for it—he testified to his innocence at McRae's trial. On the witness stand, Nelson reiterated his police statement, adding that McRae always carried a .380. He said that he had received no deals for his testimony, and that the only thing Brewer had asked him to do was to tell the truth.

Brewer's second key witness was Edward Tender, a former volunteer fire chief for a nearby town. Tender, who'd fallen into petty crime, had met McRae while they were inmates at the Richmond County Jail.

Tender told police that he had information about the Rankin murder. During a jailhouse meeting with Voorhees and another detective, Tender said McRae had confessed to the murder several times. The motivation, Tender said, was racial: McRae believed white people must die.

On the witness stand, Tender reasserted his police statement. McRae, he said, was a book-smart revolutionary who studied the teachings of 1960s activist Stokely Carmichael. "Black against white. Malcolm X-style. A violent type. Militant," Tender testified. McRae's hatred of white people was so great, Tender said, that he had planned to kill several Rockingham police officers.

Like Nelson, Tender said he hadn't received any deals in exchange for his testimony, and that he'd never met Brewer before trial. "I just gave my honest statement," he said.

As for the defense, Crump called six witnesses—family members and acquaintances of McRae—who testified that on the day of the murder, McRae had been at the neighborhood cookout. Five of the witnesses said McRae got so drunk that he had to be escorted home, where he vomited and then passed out in his bed.

McRae didn't take the stand. Throughout the trial, he maintained a blank facial expression, with his eyes tilted downward. During closing arguments, Brewer noted McRae's demeanor, telling the jury that the defendant was just sitting there, staring into space, "uncaring, unfeeling, not paying attention and unremorseful."

The jury took little more than an hour to return a guilty verdict. McRae received life without parole. During sentencing, his face was blank. Three months later, Brewer dismissed the murder charge against Nelson.

5. Nicole Wolfe, a forensic psychiatrist at Dorothea Dix Hospital in Raleigh, couldn't shake something from her mind. In 2008, a decade after McRae's conviction, she called the director of the North Carolina Center on Actual Innocence, a Durham nonprofit that screens letters from inmates alleging miscarriages of justice. The psychiatrist wished to relay her grave concerns about a former patient.

Wolfe had met McRae in December 1996, nine months after his arrest. He had been sent to Dix after jail cameras caught him pacing the hallways during nearly all of his waking hours.

Something about the teenager struck Wolfe as "bizarre," she wrote in her notes. His speech was slow, at times he became mute, and at other times talked to himself. He made odd hand gestures, as if playing an air guitar. His smelled bad, and he refused to bathe. He often put his hand in his pants, rubbing his genitals.

When asked, the teenager couldn't name five cities. Asked how an apple and banana were alike, he responded, "You can eat that shit." He didn't know what month or season it was, couldn't remember certain objects he'd seen three minutes beforehand, and couldn't spell the word world. He often maintained a flat facial expression, but sometimes grew combative and wouldn't stop cursing.

Excerpt of Evaluation from Dorothea Dix Hospital in Raleigh. McRae was deemed incompetent to stand trial on these occasions.
  • Excerpt of Evaluation from Dorothea Dix Hospital in Raleigh. McRae was deemed incompetent to stand trial on these occasions.

Wolfe learned McRae's father had been hospitalized with schizophrenia. After several tests, she determined the teenager was plagued by the same disorder. "To this day, Mr. McRae is one of the most severely mentally ill people I've ever evaluated," Wolfe later testified.

In the two years leading to McRae's 1998 trial, Wolfe declared him incompetent on three occasions. Each time she put McRae on medications, he would stop taking them when he returned to jail, "cheeking" pills and spitting them out. Without his medication, Wolfe said, "you could barely have a conversation with him."

Psychiatrists eventually placed McRae on a regimen of monthly involuntary injections of Haldol, an antipsychotic that combats hallucinations, with effects lasting two to four weeks. The medication helped him, and Wolfe finally declared McRae competent to stand trial, which began one week after his most recent injection.

With a second trial pending, Wolfe was on vacation, so a few days beforehand, another Dix psychiatrist evaluated McRae for 45 minutes. McRae told the new doctor that he didn't have a mental illness, didn't need medicine and that he was confident about winning his case. The doctor deemed McRae competent, and Judge Sanford L. Steelman Jr. did not order a formal competency hearing.

However, when Wolfe returned from vacation, and heard McRae had rejected a plea deal for just 13 more months, she grew concerned. It worried her that on the day he was convicted, McRae was scheduled to receive his monthly Haldol injection. When Wolfe learned about Brewer's reference to McRae's blank facial expression, she thought it was likely caused by the combination of McRae's illness and his medication.

McRae appealed his conviction, arguing that he should have received a new competency hearing before the retrial. In 2000, the N.C. Court of Appeals agreed, and ordered Steelman to administer a competency hearing retroactively, provided that the judge considered himself up to the task. Steelman determined that he was.

The new competency hearing opened in 2001, but it had to be halted after McRae made inappropriate noises, swung his fist at a door and declared that he'd drunk beer and smoked weed outside the courtroom. In the following weeks McRae was found spraying Windex into his mouth in prison and, on another occasion, washing his body with Ajax tile scrub. When the hearing reconvened months later, a third Dix psychiatrist testified that McRae's 45-minute pretrial evaluation was "woefully inadequate." Considering that McRae was scheduled for a Haldol injection the day of his conviction, his condition could have worsened during trial, the psychiatrist said.

Steelman, now on the North Carolina Court of Appeals, disagreed, ruling that McRae was competent during his second trial, and that the conviction should stand. In an order written in 2002, Steelman justified his decision by noting that he had personally observed McRae's behavior from the bench, though he declined to describe it.

6. Throughout the 1990s, under Carroll Lowder and Ken Honeycutt's stewardship of the D.A.'s office, defense attorneys knew that if their clients testified for the prosecution, the favor would be repaid in the form of reduced or dropped charges. "It was not defined," recalled Southern Pines attorney James Van Camp. "It was just an understanding."

But in 1996, the year McRae was arrested, one particular case suggested that the D.A's office was cutting secret deals with defendants, which is illegal. In Union County, near Rockingham, Jonathan Hoffman was charged with the murder of a jeweler, who'd been shot by a masked robber. In similar circumstances to the McRae case, no physical evidence linked Hoffman to the crime.

In another parallel, Brewer, who prosecuted the case, found a key witness: Hoffman's cousin, Johnell Porter, a convict who testified on the witness stand that Hoffman confessed to the killing while they were jailed together. When asked by the judge, Brewer and Honeycutt affirmed they had revealed everything regarding their dealings with Porter. An all-white jury convicted and sentenced Hoffman to death.

But years later, while digging through Brewer's file, post-conviction lawyers for Hoffman discovered damning evidence. Shortly before the trial, a jailhouse meeting took place, attended by Porter, Brewer, Honeycutt and others. At some point—either during the meeting or around that time—Porter was offered major concessions for his testimony, including federal and state immunity, a sentence reduction for an out-of-state bank robbery and thousands of dollars in reward money. Lawyers also discovered a to-do list written by Honeycutt including the line: "Meet with US Att. and get some concessions made to Porter in the event he testifies"; that line did not appear in the copy Honeycutt disclosed to the judge.

In 2003, the State Bar opened an investigation into Honeycutt and Brewer. Although the prosecutors asserted they didn't know about Porter's immunity, Honeycutt resigned the next year. He did not attribute it to the investigation.

In 2005, the Bar sued Honeycutt and Brewer—a rare act against a prosecutor—alleging that Brewer (who, by then, had been elected as a district court judge) and Honeycutt lied, cheated, withheld evidence, altered documents, and failed to correct false testimony.

In 2006, the Bar's disciplinary committee dismissed the lawsuit on a technicality. In an apologetic memo, the committee chairman conceded the decision would please no one. If the allegations against Honeycutt and Brewer were true, he acknowledged, "That such conduct may go undisciplined is difficult to accept."

Following the dismissal, the Bar pursued criminal charges of obstruction of justice and perjury against both prosecutors. The disciplinary committee dismissed those charges as well, citing a clerical error by the N.C. Supreme Court. The following year a special prosecutor cleared Brewer and Honeycutt of all wrongdoing.

In 2007, after seven years on death row, Hoffman was freed from prison. Prosecutors declined to retry his case.

The same year, a federal judge cited a separate case—a 12-year-old capital trial, in which Brewer denied knowing about dubious statements made by the state's key witness. Years later, the witness' statements were discovered in Brewer's file.

In "lying about [the statements] to the court," the judge wrote, "the prosecution lost sight of what the American judicial system strives to guarantee—justice at the end of a fair trial."

7. In 2007, Theresa Newman, a lawyer with Duke University's Wrongful Convictions Clinic, received a referral from the North Carolina Center on Actual Innocence, which often forwarded interesting cases to her.

The defendant's name was Derrick McRae, but Newman wasn't immediately impressed. The clinic didn't have time to investigate every lead, and McRae's case seemed particularly complex.

In order for Newman to file a Motion for Appropriate Relief—a legal brief outlining claims to get a prisoner's case retried—she needed to do several things: analyze old evidence, identify at least one judicial mistake during trial and reinterview old witnesses, who were often difficult to find or unwilling to talk.

Still, when the Duke lawyer skimmed through some of McRae's files, the name Edward Tender kept entering her mind. She noticed that Tender's testimony—that McRae was a black revolutionary who believed all white people should die—contradicted the testimony of Nelson, who claimed McRae killed Rankin because of a botched drug deal.

"They didn't match. They didn't even overlap," Newman told me recently. She is upbeat and witty, with graying hair, prominent cheekbones and a pursed smile, giving her a slight resemblance to Diane Keaton. Prior to her appointment with the wrongful convictions clinic, the native New Yorker served as an associate dean for academic affairs at Duke.

Next, Newman noticed Tender's criminal history. At the time of McRae's arrest, Tender had been charged with 19 felonies, including breaking and entering, larceny and obtaining property by false pretense—none of which he had admitted to on the witness stand when asked.

Two days after Tender met with Detective Voorhees to implicate McRae, 17 of Tender's felonies were downgraded to misdemeanors, and the remaining two were dismissed. (Brewer participated in the arrangement.) Tender was released from jail. Two misdemeanors held over by Brewer were resolved two weeks after he testified at McRae's trial.

Despite Tender's testimony to the contrary, Newman believed he may have received a deal for his assistance. She also doubted his assertion that McRae was a "book-smart" disciple of Stokely Carmichael, considering the results of the teen's psychological and cognitive evaluation.

Turning her focus to Nelson, Newman was incredulous to learn that he was permitted to testify to his innocence in the very murder he'd been charged with. "That doesn't happen!" Newman exclaimed. "Either he's lying, or his indictment can't stand. You can't have it both ways."

The Duke professor then learned that while Nelson was out on bond, he was arrested on several other charges—including two counts of carrying a concealed weapon—but he was never jailed. One of Nelson's gun charges was postponed seven times prior to McRae's trial; both gun charges were dismissed shortly afterward.

Given her skepticism, Newman decided to reinvestigate the case.

The first step was to arrange a prison meeting with McRae. The soft-spoken inmate didn't strike Newman as a killer. "He seemed vulnerable, kind and distracted," she recalled. "He didn't seem capable of mounting much of his own defense."

During the meeting, McRae implored Newman to seek out Nelson, suggesting that his friend would recant his testimony. "I don't know why Thurman would lie on me," McRae mused. ("Derrick still loves him," his brother John McRae told me recently, shaking his head. "He says, 'How's Thurman doing?' ")

Newman next assigned students to track down Voorhees, who by then had been promoted to Rockingham police chief. Voorhees mentioned a police statement made by an eyewitness—a reference to 15-year-old Marlin Dumas. But when Newman scoured the official court records, she couldn't find any such statement.

The next step was to talk to Tender, whom students found through one of his relatives. Inside Fatz Café in Rockingham, Newman and a Duke law student, Leigh Llewelyn, sat across a table from him. After years of alcohol abuse and petty crime, the slight-framed ex-fire chief had sobered up and become a trustee at his church.

The following account comes from Newman and Llewelyn. Asked about cases in which he might have testified during the 1990s, Tender said his memory was hazy until he heard the name George Crump—McRae's trial lawyer. He explained that Crump always got bad cases, including a client who'd been "framed" by police and prosecutors.

Tender didn't recall the defendant's name; at one point during the restaurant interview, he suggested it was "McDonald." When Newman mentioned the name "McRae," Tender's eyes lit up.

"Derrick McRae," he exclaimed. "They framed him."

Tender remembered meeting McRae in jail, describing him as "disturbed."

Questioned by Newman, Tender conceded that McRae was not a black militant, nor did he ever admit to killing Rankin. Tender also said he had struck a deal with the D.A.'s office to testify in exchange for the favorable resolution of his charges; Brewer and Honeycutt, he said, coached him how to testify, according to Newman.

Before leaving the restaurant, Tender asked, "Is there anything you can do to help this boy?"

Theresa Newman and Jamie Lau, of the Duke Wrongful Convictions Clinic, are representing Derrick McRae in his efforts to get out of prison. - PHOTO BY JEREMY M. LANGE
  • Photo by Jeremy M. Lange
  • Theresa Newman and Jamie Lau, of the Duke Wrongful Convictions Clinic, are representing Derrick McRae in his efforts to get out of prison.

8. With Tender's recantation in hand, Newman's students re-approached Voorhees, and asked for the Rankin folder. The police department, however, was relocating to a new building, and Voorhees said he couldn't find it.

The students approached the new Richmond County D.A., Reece Saunders, who provided his copy. Poring through the documents, Newman discovered eight witness statements, including that of Marlin Dumas. Each statement was recorded over 10 days in February 1996, four months after the murder. None of the them had been disclosed to Crump.

The details varied, often contradicting one other. One witness said the murder weapon was discarded in a river; another said it was sold; yet another said it was hidden in some bushes.

As to the number of suspects, one witness claimed there were two; another said five; another said six. As to the time of the gunshot, one said 10:45; another said 11:30; another said 12:50.

One witness said the alleged drug deal occurred on a different street than the address Nelson cited. Three witnesses claimed the murder occurred the night before it actually did.

Newman and her colleagues feared that police had coerced the witnesses into making false statements. If the prosecution had provided those statements to Crump, she reasoned, he could have cast doubt over the entire investigation.

"The police had a low standard," Jaime Lau, McRae's lead attorney who joined the Duke clinic in 2012, told me recently. "They had two concerns: that Derrick's name was in the statement, and that Thurman's name was in the statement. Any details in between didn't matter to them."

Turning to the trial transcripts, Newman discovered other discrepancies. Though Nelson claimed Rankin drove a red truck into the JFK housing complex, Rankin's mother said that her son didn't have access to the family truck.

Nelson further testified that he saw McRae asleep the night of the murder, contradicting his police statement. During the first trial, Nelson testified that five other people had bragged about shooting Rankin, but he didn't mention that in the second trial. He gave different accounts of the timing of McRae's alleged confession.

Nelson has stood by his testimony, reaffirming in a sworn affidavit that McRae admitted to the murder and that he never cut a deal with prosecutors, even though his murder charges were dismissed shortly after McRae's trial. His lawyer, James Van Camp, counters that although he doesn't know if Nelson was offered a deal, "the expectation was that he'd receive benefit for his testimony."

Without Nelson's cooperation, Newman and Lau focused on Tender. In early 2013, they hired two private investigators to record an interview with him. Tender sat in the passenger seat of a Suburban parked in front of his house near Rockingham, while the two investigators questioned him.

Tender vividly remembered meeting McRae in jail. "Something was wrong with him, mentally," he recalled.

Tender also confirmed meeting with Voorhees to relay information about the Rankin murder, and that he'd been given a deal, ensuring that his 19 felony charges would be reduced.

One of Duke's private investigators asked Tender if his testimony was true.

"No, it wasn't," said Tender.

"Are you saying the police made up a statement for you?"

"Yes, yes they did."

Regarding McRae's racial motivations, Tender added, "That's what they told us to say."

"Which policeman told you that you would get a deal—or was it the D.A.?"

"The police went to the D.A."

"Did the D.A. talk to you right before you testified?""Uh-huh, and he gave us a deal."

"What was his name?""I think he's a judge now, if I remember correct."

"Is his name Scott Brewer?

"Yeah."

Brewer knew his testimony was false, Tender declared. "They wanted a conviction for this boy."

Shortly after Voorhees' retirement in 2012—the police chief cited health concerns—the Rankin file reemerged in the police department. However, several files—including all documents filed during the three months leading up to the witness statements—were missing.

Lau suspects the missing documents included interview reports that didn't jibe with the narrative later built around McRae. "Are they really saying there was no neighborhood canvass?" he said. "I think they had to have done it. The files had obviously been purged."

9. In late 2013—four years after meeting Tender at Fatz Café—Duke's lawyers filed a motion for appropriate relief on behalf of McRae. Accusing Brewer of prosecutorial misconduct, they outlined 10 claims, alleging that Brewer failed to disclose deals with Tender and Nelson, allowed them to lie on the witness stand, and failed to disclose exculpatory witness statements.

Arguing on behalf of the state, Special Deputy Attorney General Ryan Haigh says Brewer acted properly throughout the entire trial. Tender's testimony about his reduced charges, said Haigh in court, "may be vague, but it's not misrepresentation."

The undisclosed witness statements, he added, would only have further implicated McRae. "All these statements, at every turn, damn the defendant."

As his lawyers prepared for the December evidentiary hearing, McRae tried to remain upbeat in prison, where he works as an orderly, earning $9 a week grooming and bathing an inmate who has health problems. Now that he willingly takes his medications, his mental health has stabilized, and he can carry on a relatively normal conversation.

When I visited him, his face was expressive; when he laughed, which he did often, his eyebrows arched and his crescent eyes squinted toward his nose. He has taken up painting, keeping an art box inside his cell. He has studied mental illness. He prays, brooding on heaven and hell. He dreams of starting a career in telerobotics.

"I could work for NASA," he mused, twirling his short braids behind the glass prison pane.

Sometimes depression sets in. At its peak "I picture death in here," he conceded. "I think, 'My life got wasted for nothing.' "

Occasionally during his orderly rounds, he catches himself staring out the jail window, mesmerized by the wind blowing through the trees.

Before leaving the prison, I chatted with a correctional officer, who seemed interested in the article. "There are innocent people in here," the guard said. "You just don't know who they are."

A month later, I met Voorhees in Rockingham, where he offered me a warm handshake. The 44-year-old was tall and jowly, with short, graying hair, boyish looks and a drawl that hovers in the upper registers. He wore a gray sport coat with an American flag pin on the lapel.

Voorhees recalled little about the McRae case. He didn't remember why the eight witnesses suddenly came forward four months after the murder, though he said that isn't uncommon in felony cases. He shrugged off the inconsistencies in the witness statements, explaining that in cases with multiple witnesses, "It's consistent that they're inconsistent."

He said he is accustomed to witnesses lying to him. "Every statement you're making, even the one I'm making to you today, is self-serving," Voorhees explained. Voorhees also couldn't explain how the key documents from the Rankin folder disappeared. And he didn't recall interviewing Tender.

Responding to the claim by Dumas—the 15-year-old who told police McRae and Nelson each fired a shot—Voorhees brushed aside the fact that only one bullet casing was discovered at the scene. "This isn't CSI," he said, suggesting that Nelson's bullet could have landed in the woods.

The former chief seemed unfazed that lawyers question his honesty. "It's Defense 101," he reasoned. "When you have no evidence, you try the police."

Asked whether he was sure of McRae's guilt, Voorhees didn't flinch. "Oh, I'm positive," he said, smiling.

Nine months after retiring as police chief in 2012, Voorhees was on the defensive. City officials discovered a personal checking account in which he had illegally deposited $33,000 seized from crime scenes. After an SBI investigation, Voorhees was indicted for embezzlement. He pleaded guilty to four counts of larceny and was forced to surrender his law enforcement license.

10. Next to the Rockingham speedway, a Christmas billboard reading "Peace on Earth, Good Will toward men" welcomed visitors to town. Several of McRae's family members, including his mother, traveled to the Dec. 1 court hearing, ready to hear Edward Tender's testimony. McRae wore an argyle sweater his siblings had purchased for the occasion. It had been 13 years since he'd last traveled to his hometown, when he underwent his retroactive competency hearing.

McRae flashed thumbs-up signs at them—especially at his brother John, whom he considers his best friend. A big-bellied man with long braids, John has blamed himself for his brother's downfall. Their father absent, John always vowed to watch over McRae during childhood. "He was different," John recalled. "People saw his weakness. I tried to protect him." When he saw McRae at the defense table, John noted the effect that years of stress had done to his brother's face.

That morning, Tender was accompanied to the courthouse by a plainclothes State Bureau of Investigation agent, who remained in the building. When Tender was called to the witness stand, McRae stared at him. (I had met Tender once prior to the hearing, and arranged to meet him again for an on-the-record interview, but he never showed.)

After lobbing a few innocuous questions about Tender's alcoholism and church life, Lau asked his star witness about his recollection of the statement he gave police in 1996.

Lau did not expect the answer.

"It's been so long, I don't really remember," Tender muttered.

Lau asked Tender if McRae truly told him he killed Rankin.

"I can't remember," Tender said.

Raising his voice in frustration, Lau asked Tender to read his police statement. Tender said he'd lost his glasses.

"If I read your statement, would that refresh your recollection?" said Lau.

"I don't think it would."

Tender continued to dodge questions while gazing at the floor, his voice trailing off with each answer. He was hunched in the chair so deeply that his shoulder pads nearly reached his ears.

McRae began doodling again.

During cross-examination, Haigh asked Tender if his testimony during McRae's trial was true.

"Best I can remember," he said.

Two days later, Lau recalled Tender back to the witness stand so that he could play an audio recording of the conversation he had with private investigators—the one in which he recanted his 1998 testimony. After it concluded, Tender acknowledged that the voice "sounds like me," but he wouldn't say for sure.

Before leaving the stand, Tender thanked the state's legal team for its supportive attitude. "I appreciate that," he said. As he hobbled out of the courtroom, he grinned and waved. Shortly afterward, John McRae stood alone in the courthouse hallway, weeping.

click to enlarge A sketch made by McRae during his December evidentiary hearing.
  • A sketch made by McRae during his December evidentiary hearing.

Brewer declined to comment for this story, citing judicial ethics constraints, but he has refuted Newman's and Lau's claims, contending that he never met, nor offered a deal to, Nelson or Tender. He said he didn't know about Tender's reduced charges; and was unaware of undisclosed witness statements.

In 2010 and 2014, Brewer won re-election as district court judge. He ran unopposed. When he took the witness stand last month, he needed only to take one flight of stairs from his chambers, where he runs district court. "I had no information that anybody other than Mr. McRae was involved in the murder of Jerry Rankin," declared Brewer, wearing a pinstripe suit and red tie with a Windsor knot.

Judge W. David Lee is expected to rule on McRae's fate in the upcoming weeks. Even without Tender's recantation, Brewer's nondisclosure of the witness statements should be enough for a new trial, McRae's lawyers said.

McRae remains hopeful. "I must still have something good inside of me no matter where and what I've been through," he mused. Life isn't what he expected, "but no matter what, I don't give up."

If he ever gets out, he said, "I gotta be ready for the world. 'Cause there's a lot I done missed."

I recently spoke on the phone with Marlin Dumas, the purported eyewitness. Dumas, who is serving his own life sentence in a South Carolina prison for a murder he committed at 16, seemed savvy and energetic, busy with his own legal proceedings in hopes he'll be resentenced.

Dumas recalled several details of his meeting with police. One night, while riding his bike, an officer began chasing him. Dumas, who had crack in his pocket, was eventually caught. Inside the stationhouse, detectives kept him in an interview room for 13 hours, he said. They asked several questions about guns and drugs. When the topic turned to Rankin's murder, "I said, 'Murder?' I didn't know nothing about no murder,' " Dumas recalled.

At the end of the interrogation, the detective offered Dumas a paper to sign. The white sheet was completely blank, except for a small signature line on each side, Dumas recalled. "I did what he said. And that was it, he let me go home."

Dumas now says Rockingham detectives invented his police statement. They took pains to include several details—the type of gun McRae and Nelson carried, and the reason for Dumas' coming forward. Dumas said he could not have determined the make and model of a gun carried by someone across the street late at night. An NRA expert corroborates this. "Ain't no way I wrote that statement," Dumas said. (Detective Chris Brigman, who signed Dumas' statement, no longer works for the department and could not be reached.)

I tried tracking down the seven other witnesses who gave police statements, but failed to reach any of them. Nearly all have significant criminal records. One, who is in prison for an unrelated murder, declined to meet. Surinna Parker died at 27.

Lau said he reached all but one witness, each of whom disavowed their statements.

McRae said he still wouldn't have taken a plea bargain had he known of Nelson's and Tender's testimonies. "I asked God to let me forgive Thurman," McRae said shortly after the hearing. It's taken him years to offer up such a prayer. "I don't know what's going on through Thurman's mind. I wish he showed up at court."

(Duke's lawyers, it should be noted, do not accuse Nelson of the killing. "I believe there's a murderer who, unless he's been held accountable for another crime, is still roaming the streets," Lau said.)

During one of my visits to Rockingham, I knocked on Nelson's door. In front of the small house sat a child's bike. Hip-hop music played inside. The man who answered had long dreadlocks and wore baggy jeans and white sneakers.

When I explained I was writing an article on McRae, Nelson seemed perplexed. "For real, for real?" he said.

A silence hung over us for several seconds. Nelson, his eyes bloodshot, stared at the sky and tugged his beard. His stoic expression changed only when I asked about his childhood memories of McRae. At this, Nelson allowed a faint smile. "Derrick," he murmured. "Derrick."

Asked if his testimony against McRae was truthful, he simply said, "You got it."

As I backed my car out of the driveway, Nelson stood still on the deck. He stared at my business card, as if wondering what to do. Finally he opened the front door, returning to his life inside.

This article appeared in print with the headline "Hunt for justice"

  • Mentally ill. 16. Arrested for murder. Doing life. May be innocent.

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