Judge denies appeal; McRae to remain in prison for crime he says he didn't commit | News Feature | Indy Week
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Judge denies appeal; McRae to remain in prison for crime he says he didn't commit 

File photo by Jeremy M. Lange

Derrick McRae

File photo by Jeremy M. Lange

Derrick McRae, a schizophrenic Richmond County man serving life in prison for a 1995 murder, has lost his appeal to have his case retried.

W. David Lee, senior resident superior court judge for Union County, issued an order last week denying McRae's 2013 motion for appropriate relief. The order followed a three-day evidentiary hearing last December, during which Lee heard the testimony of several witnesses involved in the 1998 trial.

The INDY detailed the case in the Jan. 7 cover story, "Hunt for Justice."

McRae, a 35-year-old African-American, was convicted of shooting a white man in the head near McRae's home in Rockingham. No physical evidence linked McRae to the crime, and several of the police files from the case had mysteriously gone missing. McRae was 16 at the time of the murder.

Lawyers with Duke University's Wrongful Convictions Clinic argued that McRae received an unfair trial. They alleged that Richmond County prosecutors failed to turn over exculpatory witness statements and made secret deals with witnesses. They also suggested that police coerced false witness testimony.

McRae's lawyers were disappointed with Lee's order, and vowed to keep fighting to prove their client's innocence until every legal avenue is exhausted. One option is to petition the North Carolina Court of Appeals to review Lee's order.

"Our hearts break for Derrick McRae and his family today," said lead attorney, Jamie Lau. "The citizens of North Carolina should be outraged at what passes for justice in North Carolina."

During McRae's original trial, prosecutors based their case on the testimony of two witnesses. One was a jailhouse informant named Edward Tender, who testified that McRae confessed to the murder because he hated white people. Tender, a petty thief, more recently recanted his testimony to private investigators. In a recorded conversation, Tender claimed that prosecutors offered to reduce his pending charges in exchange for favorable testimony. But Tender disavowed his recantation during last December's evidentiary hearing.

Judge Lee found that there was not enough evidence to prove that Tender made a deal with prosecutors.

"Tender's more recent departure from his sworn testimony was not under oath," Lee ruled in his 49-page order. "Tender's testimony under oath has been consistent and has served in no way to recant previous testimony."

In their motion for relief, Duke lawyers also cited eight witness statements that prosecutors didn't disclose to McRae's trial counsel. Those inconsistent statements amounted to exculpatory material, and the failure to disclose them denied McRae his right to a fair trial, his lawyers argued.

Lee disagreed, calling the statements immaterial. Each statement, said the judge, further harmed McRae, often by identifying him as the killer. Their inconsistencies were "outweighed" by their damning nature, Lee added.

One of the undisclosed witness statements came from Marlin Dumas, a teenager convicted for an unrelated murder shortly after he spoke to police about McRae. Dumas' police statement suggested that he was an eyewitness to the murder. But in an interview with the INDY, Dumas said that he neither witnessed the murder, nor made such a statement.

The McRae case was further shadowed by a backdrop of racial prejudice in Richmond County. At the time of his trial, prosecutors in Judicial District 20 disqualified 87 percent of eligible black jurists, but only 24 percent of whites.

Sadly, Ferguson, Cleveland, and Staten Island are not the only places where the lives of young black men are taken away with impunity and indifference," said James Coleman, McRae's co-counsel and co-director of Duke's Wrongful Convictions Clinic.

Lee's ruling comes at a time when several wrongful convictions have been exposed in North Carolina. Two weeks ago, a panel of judges exonerated Joseph Sledge, a Bladen County man who served 37 years in prison for a murder he did not commit. Last fall, judges overturned the convictions of two Robeson County men for rape and murder. Henry McCollum and Leon Brown had each spent 30 years behind bars.

In 2012, Judge Lee was part of a three-judge panel that overturned the wrongful conviction case of a Catawba County man serving a life prison sentence since 1987 for rape and kidnapping.

Lau said he fears many more North Carolinians are in prison for crimes they had nothing to do with. "Seemingly every month there is a new story about a horrific injustice stealing the life away from an innocent man or woman following a conviction for a crime they did not commit," he said. Of McRae, he added, "The State continues to defend convictions based on little more than the incentivized testimony of a jailhouse informant looking for a favorable outcome in his case."

This article appeared in print with the headline "Shadow of doubt"

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