STATE OF NORTH CAROLINA PENDER COUNTY BEFORE THE GOVERNOR IN THE MATTER OF THE PARDON ) PETITION OF: ) Dr. Benjamin Chavis, Connie ) Tindall, Willie Earl Vereen, ) Marvin Patrick, Anne Sheppard ) Turner, William Dallas Joe ) Wright, Wayne Moore, Reginald ) Epps, Jerry Jacobs and James ) McKoy, AKA The Wilmington Ten.) PETITION FOR PARDONS OF INNOCENCE Pursuant to Article III, Section 5(6) of the North Carolina Constitution, living members of the Wilmington Ten and the designated family representatives of deceased members, through their next of kin, do hereby petition the Governor of North Carolina to issue its Pardons of Innocence in order to declare each Wilmington Ten member 1 innocent of the offenses for which they were wrongfully prosecuted and convicted in the Pender County Superior Court in September 1972. These convictions were reversed by the Fourth Circuit Court of Appeals in December 4, 1980 as a result of that Court s studied determinations that prosecutorial misconduct and other constitutional violations occurred during the Wilmington Ten prosecutions and trials. This opinion followed independent conclusions which were rendered by the United States Justice Department, a coalition of fifty-five (55) members of the United States House of Representatives and the world renowned and recognized Amnesty International which also concluded that members of the Wilmington Ten were the victims of prosecutorial misconduct and were wrongfully convicted. In support of this Petition, the Wilmington Ten members and/or the family representatives of deceased members, through their Attorney, Irving Joyner, present the following facts. 1 Members of the Wilmington Ten consist of Dr. Benjamin Chavis, Connie Tindall, Willie Earl Vereen, Marvin Patrick, Anne Sheppard Turner, William Dallas Joe Wright, Wayne Moore, Reginald Epps, Jerry Jacobs and James McKoy. Of these individuals, Anne Sheppard Turner, William Dallas Joe Wright and Jerry Jacobs are deceased. 1
The plight of the Wilmington Ten arose from efforts by African-American students, who were enrolled in New Hanover County school system, to confront institutional resistant by school officials to court-ordered desegregation of that County s schools. In New Hanover County, the desegregation process began in 1968 when the previously all-black segregated Williston High School was down-graded to a middle school and its students were disbursed to previously all-white schools in the County. Because some school administrators and teachers actively hindered the full inclusion of the African-American students into school activities, the students launched and engaged in a series of protests which were designed to press the students demands for equal access to and full participation in student affairs and activities at the various schools. As a result of the students efforts, racial tensions within Wilmington s schools and the local community increased. The protests, which the African-American students organized and conducted independently, resulted in a full-scale walk-out and boycott of the schools during the first week of February 1971. This boycott resulted from the refusal of school officials and administrators to consider any of the students proposals or to acknowledge that the students presented meritorious issues and grievances. Following the students walk-out on February 3, 1971, the students convened a community meeting at the Gregory Congregational United Church of Christ (UCC) where they sought to mobilize community support for their actions and to develop strategies for the continuation of their protests. The pastor of Gregory Congregational UCC, Rev. Eugene Templeton, successfully sought the assistance of the United Church of Christ s Commission for Racial Justice which sent the Rev. Benjamin Chavis to Wilmington in an effort to assist the boycotting students, parents and local community in their efforts to confront the denial of equal protection, effective access into the New Hanover County educational institutions and full participation in its activities by the African-American students and local community. The boycott of the schools by students continued on February 4 th as they launched efforts to meet with the New Hanover County Board of Education and its Superintendent Heyward 2
Bellamy. After an unsuccessful attempt to reach agreement regarding the discrimination and bias which the students were confronted with, students returned to Gregory Congregational UCC where a community rally and strategy sessions were conducted. During this program, the church was attacked by car-loads of Whites who drove past and fired weapons into the church s sanctuary along with a telephoned warning to church officials that the church would soon be bombed. These attacks on the church were attributed to efforts spearheaded by a Jacksonville based White racist organization the Rights of White People (ROWP) which sought to demonstrate White opposition to the students protests. In response to these escalating attacks and threats, some students and community residents went home, retrieved guns and returned to the church in an attempt to protect it against further attacks. Over the next three nights, the military style attacks upon the church continued and the City of Wilmington erupted in a series of fires and gun-fire during which several people were killed and millions of dollars of property damages occurred to Wilmington residence and businesses. Among the casualties were Steve Mitchell, one of the boycotting students, and Harvey Cumber, a White man who was shot as he was observed shooting in the direction of the Gregory Congregational church. In February 1972, fourteen (14) African-Americans and a White woman were arrested and charged with a series of criminal offenses which resulted from the violence which occurred in the City during February 1971. The charges against the fifteen (15) included the conspiracy to murder, conspiracy to assault emergency personnel, conspiracy to burn property with incendiary devices and the actual burning of property. Initially ten individuals were arrested and included: Rev. Benjamin Chavis (24) Marvin Eugene Patrick (19) Connie Levinesky Tindall (21) Jerry Gerald Jacobs (19) Jerry Leon Jacobs (16) Willie Earl Vereen (19) James Matthew McKoy (18) James Edward Bunting (17) 3
Cornell Flowers (19) Anne Katherine Shepard (34) Later, five others were arrested and charged with some of the same offenses. William Joe Wright (18) Wayne Moore (18) Reginald Epps (17) Tommy Atwood (17) Michael Peterson (17) From this group of fifteen (15), ten were selected by New Hanover County Assistant District Attorney Jay Stroud to be tried jointly on the above charges. Because of the notoriety of the case, widespread media and community attention and massive protests throughout North Carolina and around the country, the trial was moved to Burgaw, Pender County, North Carolina. The initial trial of the Wilmington Ten began on June 5, 1972. After a week of jury selection and the seating of a tentative jury panel which was composed of ten African-Americans and two Whites, the Assistant District Attorney suddenly and mysteriously became ill and was briefly hospitalized during the weekend. This feigned illness resulted in a mistrial being declared and the trial being aborted on June 12, 1972. The second trial of the Wilmington Ten began on September 11, 1972 with jury selection as the first order of business. Since the end of the aborted trial, the jury selection method in North Carolina was legislatively changed. This change in the jury selection process and the Prosecutor s race-based use of peremptory challenges resulted in the seating of a trial jury which was composed of ten Whites and two African-Americans. The only substantial witness that the State presented a trial was a convicted felon, Allen Hall, who testified that he along with other students allegedly engaged in a series of firebombings and fire-arm assaults upon police officers following a training session which Rev. Chavis conducted in the sanctuary at Gregory Congregational UCC. Hall s testimony, which was given during a week of heated and contentious testimony, was the only alleged eyewitness account of criminal conduct by any Wilmington 4
Ten member during the events from February 4 th through February 7 th when the students used and then vacated the Church s sanctuary. Hall s testimony was peripherally supported by Jerome Mitchell, a convicted felon and seventeen year old high school drop-out, and Eric Junius, a twelve year old Junior High School drop-out. As recognized by the Fourth Circuit Court of Appeals: When the trial record is examined, it is readily apparent that North Carolina s case depended entirely on Hall s credibility. Chavis, et al. v. State of North Carolina, 637 F.2d 213, fn 6, (4 th Circuit Court of Appeals, 1980) During Hall s trial testimony, he was repeatedly and vigorously cross-examined by defense attorneys who confronted Hall with numerous significant contradictions between his trial testimony and statements which he made in prior written statements to the Prosecutor. When repeatedly asked by defense attorneys to reconcile the discrepancies, Hall testified that he had amended the earlier statements with the State s Prosecutor. Efforts by defense attorneys to obtain copies of the amended statements were resisted by the Prosecutor and upheld by the Trial Judge. At one point during Hall s cross-examination, he became so enraged at the insistent and grueling questioning by Defense Attorney James Ferguson that he rushed from the witness stand and attempted to physically attack Ferguson in open Court. Jerome Mitchell, another felon who was serving a 32 year sentence, and Eric Junius, a twelve year old school drop-out, also testified on behalf of the State. Their testimonies corroborated portions of Hall s statements, but they did not testify that they witnessed any efforts by any Wilmington Ten member which involved the use of violence. Nevertheless, defense attorney efforts to show that their testimonies were rehearsed and not credible were prohibited by the Presiding Judge. Relying primarily on the testimonies of Hall, Mitchell and Junius, the jury convicted the Wilmington Ten of each of the offenses for which they had been charged. Thereafter, the Trial Judge sentenced them to active prison terms which ranged from nineteen (19) to twenty-eight (28) years. Of these sentences, each of the Petitioners spent lengthy, but varied, periods in active confinement. 5
Sentences imposed by the Presiding Judge as a result of these convictions were: Benjamin Chavis - 34 years Connie Tindall -- 31 years Marvin Chili Patrick -- 29 years Wayne Moore -- 29 years Reginald Epps 28 years Jerry Jacobs -- 29 years James Bun McKoy -- 29 years Willie Earl Vereen - 29 years William Joe Wright - 29 years Ann Shepard -- 15 years In 1974, the North Carolina Court of Appeals affirmed the Wilmington Ten convictions. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555 (1974) By the time that this Court of Appeals decision was rendered, the Presiding Judge, Robert Martin, was then a member of that Court and in his subsequent election campaigns for re-election to that Court, he used the fact that he was the Wilmington Ten Trial Judge as a part of his campaign. Defense Attorneys Petition for a Writ of Certiorari to the North Carolina Supreme Court was summarily denied in 1975. State v. Chavis, 287 N.C. 261, 214 S.E.2d 434 (1975) In 1975, soon after the Supreme Court refusal to grant certiorari to review the convictions, Allen Hall recanted his trial testimony and publically admitted that he lied as a result of inducements and promises which were made to him by the State Prosecutor. Following Hall s recantation, Jerome Mitchell and Eric Junius also recanted their testimonies. These recantations resulted in the filing of a Motion for Appropriate Relief which was vigorously resisted by the State. After a week-long hearing, the Pender County Superior Court refused to reverse the convictions and grant a new trial based upon the Trial Judge s conclusion that the recantations were not credible. On December 4, 1980, the Fourth Circuit Court of Appeals issued an opinion in which the Wilmington Ten convictions were reversed based upon the failure and refusal of the State s Prosecutor to provide the defense team with the discovery of evidence to which they were entitled under the Sixth Amendment to the United States Constitution. Because the factual evidence 6
regarding these violations was uncontroverted, the Appeals Court did not address other claims of prosecutorial misconduct which were presented on behalf of the Wilmington Ten. Misconduct claims presented to the Fourth Circuit Court of Appeals by Wilmington Ten Attorneys tended to show that the State Prosecutor: 1. purposely refused to provide discoverable evidence which contained crucial impeachment material and this evidence was falsely described by Allen Hall to the jury; 2. deliberately concealed evidence of inducements, special favors, lenient treatment for unrelated charges, an expense-paid trip for Allen Hall s girlfriend and a gift of a mini-bike in exchange for the tainted testimony of Eric Junius; 3. the use of evidence which the State s Prosecutor knew or should have known was perjured. In addition, defense attorneys presented evidence to that Court which tended to show that the Trial Judge: 1. improperly prevented defense attorneys from crossexamining the three main State witnesses regarding favorable living conditions at a beach house during the trial even though they were supposed to be incarcerated within the North Carolina department of Corrections; 2. refused to allow defense attorneys to effectively examine members of the jury panel regarding the presumption of innocence and their racial attitudes and experiences; In response to these claims, the Fourth Circuit Court of Appeals determined that Hall s claims that he corrected the inconsistencies between his trial testimony and written statements were not true and that the State s Prosecutor knew or should have known of these perjured statements. The Court found that Hall was allowed to misrepresent to the jury that these contested statements were contained within or on the written statement which the State Prosecutor successful fought to hide from defense attorneys. These claims that Hall amended his statements were analyzed by the United States Department of Justice which concluded that of the seventeen (17) assertions 7
made by Hall, thirteen (13) of them did not exist on any of Hall s statements. The Fourth Circuit Court of Appeals also concluded that Hall perjured himself regarding his hospitalization at a mental institution in October, 1971. The report of this hospitalization, which the State Prosecutor possessed, showed that Hall had an IQ of 82, which placed Hall in a borderline defective range, and that he denied to examining psychiatrist doctors many of the claims and testimony that he asserted during the trial. Despite a timely motion from defense attorneys for all exculpatory evidence regarding Hall s medical and psychiatric history, the State s Prosecutor refused to furnish it as was required by a pre-trial court order. Summarizing the conclusions of the Fourth Circuit Court of Appeals, the Court concluded: Indeed, the conclusion is inescapable that Hall perjured himself in his repeated, unfounded testimony that his February 18 statement had been amended to make it conform to his testimony at trial, and this fact was bound to be known to the prosecutor who possessed the corrected statement so that the any reasonable likelihood test for the knowing use of perjured testimony would be applicable even if production of the amended statement had not been specifically requested. Chavis, at 223 The Fourth Circuit Court of Appeals opinion also found fault with the actions of the Presiding Trial Judge, Robert Martin and determined that his rulings were constitutionally flawed. In addition to allowing the State s Prosecutor to engage in improper and illegal conduct, the Trial Judge denied defense attorneys efforts to expose the presence of impeaching evidence regarding the State s three key witnesses. The Court concluded: We think that the trial court s limitation on the crossexamination of [Allen] Hall and [Jerome] Mitchell to uncover the special treatment that they undisputedly received constituted error of constitutional magnitude. Chavis at 225. The same conclusion could have been made about Eric Junius, the teenage 8
witness who received a mini-bike in exchange for his perjured testimony. As the Fourth Circuit Court of Appeals concluded, the Trial Judge knowingly assisted the Prosecutor in hiding this misconduct by prohibiting defense attorneys from eliciting evidence that Hall, while incarcerated, was allowed to visit his home and to have special visits with his girl-friend at a New Hanover County beach cottage, and that he was not arrested and charged after he assaulted a law enforcement officer with a knife during the trial. While Hall was being cross-examined during the trial regarding his many inconsistent statements, the Trial Judge reviewed the Prosecutor s statements and notes, but prevented defense attorneys from doing so and hindered the exposing of the perjury which Allen Hall was committing. The Trial Judge also prevented similar questioning by defense attorneys of Jerome Mitchell during his crossexamination. Chavis at 225. The disclosure of this information was constitutionally required by the Sixth Amendment to the United States constitution in order to test the witness credibility and present the jury with bias, incentives and favors to which this witness also received. In this case, Hall, Mitchell and Junius received an abundance of favors and incentives in order to commit perjury on the witness stand. As a result of the State Prosecutor s knowing use of perjured testimony, the State of North Carolina fraudulently procured the convictions of ten innocent North Carolina citizens. This misconduct was aided and abetted by the actions of the Trial Judge which improperly prevented relevant facts from being presented to the jury. These wrongful convictions resulted in each Wilmington Ten member spending significant periods of time incarcerated in the North Carolina Department of Corrections where they lost critical developmental years. The times which they spent in prison can t be replaced and those experiences and history remains as a blot of their life s story. The injustices and misconduct which were publically exposed in the Wilmington Ten case were fairly obvious. Investigations of the facts surrounding this politically inspired prosecution 9
resulted in the filing of an amicus brief in the Fourth Circuit Court of Appeals by fifty-five (55) members of the United States House of Representatives. In addition, the United States Justice Department intervened in the case on behalf of the Wilmington Ten after its investigation revealed that gross misconduct had occurred in this prosecution. Both interventions by these impartial governmental observers were historic. In addition, these individuals suffered the devastating effects from the collateral consequences of these wrongful convictions. All of them suffered employment discrimination, diminution of their characters and reputations, inability to pursue educational and business opportunities and other unknown detriments as a direct result of their wrongful convictions. Today, each of the living members of this group has not had their names and self respect judicially cleared as a result of the false charges which were lodged against them and of the unlawful convictions for which they suffered. Forty-one (41) years since the events of February, 1971 and forty (40) years after their wrongful convictions, Wilmington Ten members and their families continue to bear the scars of these wrongful prosecutions and convictions. Not only have they been continually tainted and stifled in their life s pursuits by the consequences of these events, but the integrity and image of North Carolina as being a fair and just State is tarnished by this State s failure to acknowledge, remedy and remove these wrongful prosecutions and convictions from the public records. Only the granting of Pardons of Innocence can remove this deeply engrained tarnish which continues to hang over this State. This the day of May, 2012 Irving Joyner, ESQ. James Ferguson, II State Bar # 7830 Ferguson Stein Chambers P.O. Box 374 741 Kenilworth Avenue Cary, North Carolina 27512 Charlotte, North Carolina 28204 Telephone: (919)319-8353 Telephone:(704)375-8461 ACKNOWLEDGEMENTS AND AUTHORIZATIONS 10
The following members of the Wilmington Ten and/or the designated family representatives of the deceased members of this group do hereby certify, acknowledge, and authorize the filing of the attached Petition For Pardons Of Innocence on their behalf by Attorney Irving Joyner. 1. Dr. Benjamin F. Chavis. 2. Reginald Reggie Epps 3. Jerry Jacobs by Mrs. Margaret Jacobs (Mother) 4. James Bun McKoy 5. Wayne Moore 6. Marvin Chili Patrick 7. Connie Tindall 8. Ann Shepard by Ms. Judy Mack (Daughter) 9. William Joe Wright by Mr. William Gibbs (Brother) 10. Willie Earl Vereen 11