Derrick McRae loses appeal for freedom | News
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Thursday, February 5, 2015

Derrick McRae loses appeal for freedom

Posted by on Thu, Feb 5, 2015 at 4:24 PM

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

W. David Lee, senior resident superior court judge for Union County, yesterday issued an order 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.

We detailed the case in our Jan. 7 cover story, “Hunt for Justice.”

McRae, a 35-year-old African-American, was convicted of shooting a white victim in the head not far from his Rockingham home. There was no physical evidence linking 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 had 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.

Lee’s order was met with disappointment from McRae’s lawyers, who vowed to keep fighting to prove their client’s innocence until every step is exhausted.

“Our hearts break for Derrick McRae and his family today,” said his 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 the State.

“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 of 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 are being 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.

Coincidentally, Judge Lee found himself taking an opposite position in a wrongful conviction case not long ago. In 2012, as part of a three-judge panel, he delivered a decision overturning the conviction of a Catawba County man serving a life prison sentence for rape and kidnapping since 1987.

Lau said he fears that many more North Carolinians are living behind bars 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.”

Lau said he will review Lee’s order before deciding on a next step. One option is to petition the North Carolina Court of Appeals to review Lee’s order.

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