Derrick Allen was wrongly convicted of sexually assaulting and killing a child and spent nearly 13 years in prison for the horrific crimes. And while it has been seven years since Allen was last behind bars, he’s still imprisoned by his past.
Although Allen’s criminal record was expunged, he says he hasn’t been able to find a job, nor can he find a place to live. He says local housing authority records indicated he was a sex offender. Most nights, he says, he sleeps in his car.
“I haven’t had an apartment since I was released in 2016,” Allen says.
Allen says he thinks his only recourse is a pardon of innocence from the governor.
Allen first filed for a pardon in 2016 with former governor Pat McCrory’s office.
He then renewed the petition in 2017, after Gov. Roy Cooper was elected. He says he’s owed in excess of $600,000 for the nearly 13 years in prison and another $750,000 from the governor’s office.
“I need the money to relocate and move far away,” he says. The thought of continuing to live in Durham, indeed even the state, Allen says, is unbearable.
The governor’s spokesperson Sam Chan would not comment on Allen’s petition. Chan told the INDY that Cooper, the Office of Executive Clemency, and the Office of General Counsel “carefully review all applications for clemency.”
Chan added that Cooper has granted nine pardons of innocence while in office.
But in July 2020, a News & Observer editorial penned by a trio of Duke University law professors—Jamie Lau, Theresa Newman, and James E. Coleman Jr.—criticized Cooper, arguing that he was on track “to become the first North Carolina governor in more than 40 years to complete a term without granting clemency to a single person, which includes sentence commutations and pardons of forgiveness or innocence.”
The concerns of the three faculty members with the Duke Law Center for Criminal Justice and Professional Responsibility mirrored Allen’s daily struggle to survive, sometimes from one moment to the next.
“These North Carolinians spent time in prison before a court overturned their convictions,” the law professors wrote. “Now they need a gubernatorial pardon to achieve full freedom. Without that, their arrests and years in prison remain barriers to finding employment and housing.”
The faculty members also took aim at what they described as the governor’s lack of transparency with the process, stating that his “office recently stopped releasing updated information on who and how many are seeking clemency.”
That was nearly three years ago.
A cursory online check of the governor’s clemency office at the state Department of Public Safety website indicates the “page is currently under construction,” and visitors are asked to “please check back later for updates.”
On December 17, 2020, months after the law school faculty members’ editorial appeared in the N&O, Cooper’s office announced that the governor had granted five pardons of innocence: to Teddy Isbell, Damian Mills, Kenneth Kagonyera, Larry Williams Jr., and Ronnie Long.
The next year, Cooper announced pardons of innocence to Dontae Sharpe, Howard Dudley, and Darrell Howard.
Today Allen is bitter. The stocky, bearded man is wary of strangers. For him, a pardon from the governor is paramount.
He has laminated the news stories about his case and has hundreds of documents in folders and envelopes or bound together with heavy black and silver metal clamps. His favorite phrase when talking about the law is “not guilty.”
In early 1998, Allen was attending night classes at Hillside High School when his judicial nightmare began to take shape.
He says he had been dating Diane Jones for a few months. On February 9, Allen was watching his girlfriend’s two-year-old daughter, Adesha Jones, when she died from shaken baby syndrome.
Allen called 911 and paramedics who arrived found the child dead with blood on the side of her clothing.
According to the National Registry of Exonerations, the paramedics also reported that what appeared to be blood on the inside leg of her pants.
Allen reportedly told the emergency workers that Adesha had complained of leg pain and became unresponsive when he took her out of the bathtub. Allen was arrested hours after Adesha’s death.
The paramedics took Adesha to the hospital, but medical providers were unable to revive her, and an attending physician who examined the child reported there was a “fresh noticeable scar” in her vagina, “with some blood found inside the vagina and on the clothes [Adesha] wore to the hospital,” Ken Otterbourg wrote in the National Registry account of the case.
Allen told the police he did not assault the child. Still he was arrested the same day on one count each of first-degree murder, first-degree sexual offense, and felony child abuse.
Allen says he couldn’t believe he was in jail.
“I was a little discombobulated,” he adds. “I was there for, like, 16 months. It was horrible, man. They treated me like I was a child molester, and I wasn’t.
They treated me worse in prison.”
Allen doesn’t like to talk about what happened.
“I was targeted because I called the police,” he says. “I didn’t do anything to anyone. I was at the wrong place at the wrong time.”
Allen says police first took him to a hospital where his hands were swabbed for DNA and he submitted to a rape test.
“It all came back negative,” he says.
But his court-appointed attorneys, including the county’s former chief public defender Robert Brown, told him that unless he accepted a plea deal, he would face the death penalty and die in the electric chair.
Otterbourg wrote that Allen was not the only person in the home with Adesha on the day she died. Diane Jones’s cousin Kia Ward had slept over the night before and had helped care for Adesha the day she died.
Ward told police that she noticed Adesha was “shaking—almost like she was having a seizure,” and when she asked Allen what was wrong with the child, he said he had been giving her a piggyback ride and she had fallen off.
Ward also told police that she saw Allen changing the child’s underwear and asked him if he noticed the child was limping.
On February 29, Special Agent Mike Wilson with the NC State Bureau of Investigation (SBI) administered a lie detector test to Ward and determined that she was “not deceptive” in her responses to him and Durham police detective Dwight Gilliam.
But Gilliam asked additional questions, and Ward told the detective that she had had sex with Allen two summers before, and they had since become “kind of like enemies,” Otterbourg wrote.
On March 2, 1998, a Durham grand jury indicted Allen on charges of first-degree murder and felony child abuse.
In 1999, Allen entered an Alford plea to second-degree murder and first-degree sexual offense to presiding superior court judge Leon Stanback. With the Alford plea, Allen did not admit actual guilt but acknowledged that prosecutors had enough evidence for a jury to find him guilty of the charges.
Stanback sentenced Allen to 43 to 54 years in prison, but the 19-year-old escaped a death sentence.
Soon after going to prison, Allen began to fight his conviction.
In 2004, Michael Dilworth, a jailhouse attorney who is now deceased, filed an appeal on Allen’s behalf that argued that his court-appointed attorneys failed to adequately represent him and that his sentence was overly severe.
In 2009, Allen’s appeal was granted by the NC Court of Appeals in March 2009 and allowed for a retrial of his case.
“[Dilworth] told me to get my Constitution down pat because when I got out [of prison], no one would touch my case. So I want to become an attorney, or a paralegal,” Allen says.
While awaiting retrial, Allen’s new attorney Lisa A. Williams discovered that prosecutors had withheld important information, including the child’s medical records and lab tests conducted by the SBI that countered claims of blood in the child’s underwear.
Meanwhile, Durham superior court judge Orlando Hudson vacated Allen’s sentence in 2010.
But the Durham District Attorney’s Office appealed Hudson’s decision.
The NC Court of Appeals overturned Hudson’s decision and remanded the case back to Durham’s superior court, where Allen would face another trial.
He was released from prison on April 14, 2009, and held in custody at the Durham County jail before he was released on an unsecured bond on September 9, 2010.
While Allen awaited a potential retrial, the N&O chronicled his case in its series “Agents’ Secrets.”
The paper reported that SBI agents in over 200 cases had “cut corners, bullied the vulnerable, and twisted reports and court testimony when the truth threatened to undermine their cases.”
Reporters J. Andrew Curliss and Joe Neff wrote that Hudson vacated Allen’s 44-year sentence due to “widespread violations” of his rights.
Hudson laid much of the blame on Freda Black, the county’s district attorney who prosecuted the case, and Jennifer Elwell, an SBI analyst.
Hudson stated that Elwell had not adequately disclosed written reports that a positive test indicated blood in the underwear the child was wearing when she died.
In August 2010, one month before Allen was released from prison, Cooper, then the state’s attorney general, commissioned an independent review of the SBI crime lab and “found that the lab’s analysts had routinely filed misleading reports that failed to adequately disclose negative results, often burying those contradictory findings in cryptically written lab notes,” Otterbourg wrote.
Otterbourg added that “the independent review found 230 cases, including Allen’s, where analysts didn’t adequately disclose the results of lab work.”
“I was targeted because I called the police. I didn’t do anything to anyone. I was at the wrong place at the wrong time.”
Hudson stated that Black had misled the court about the SBI lab test and withheld other evidence that would have been favorable to Allen, including statements from key witnesses, and the lie detector tests of those witnesses.
The prosecution’s case further blew all to hell when Hudson said assistant district attorney Tracey Cline, who worked alongside Black, was also found culpable in the withholding of evidence.
Black attracted national attention in 2003 as the prosecutor who convicted Michael Peterson in one of the biggest trials in the state’s history.
She died in 2018 of end-stage liver disease aggravated by chronic alcoholism. She denied any wrongdoing in the Allen case.
Cline, on the other hand, would be removed as the county’s district attorney in March 2012, after a judge found she “made statements about Hudson with malice and reckless disregard for the truth.” Cline had filed court documents seeking to have Hudson removed from several cases, the N&O reported.
In June 2015 the NC State Bar suspended Cline’s law license for five years but also ruled the suspension would be active for two years and she could reapply to practice law after three years. Cline’s license was reinstated in 2018. Cline did not respond to the INDY’s requests for comment.
In 2016, prosecutors dismissed all of the charges against Allen.
In 2019, Allen, again representing himself, filed a complaint in the U.S. District Court of North Carolina against Black, Elwell, the SBI, and others involved in his prosecution.
On October 6, 2021, federal judge Thomas Schroeder “dismissed most of the complaint, except for claims against Elwell,” Otterbourg reported.
On December 5, federal court records show that Schroeder dismissed Allen’s claim that Elwell fabricated evidence against him. Allen has continued the lawsuit by filing it with the federal court of claims and the U.S. Court of Appeals.
“They think I got off because I’m smart, like I got away with something,” Allen says. “There’s still no justice, and unless the governor steps in, I’m not going to get a fair shake.”
Allen enrolled at Durham Tech but was permanently suspended from the campus following an altercation with the police after another local news outlet aired his story.
He says that, from the time he was a 19-year-old going to night school to earn his diploma,
Durham and the state of North Carolina has heaped injustice after injustice on his shoulders.
Allen says he doesn’t want a relationship with his 10-year-old son until he’s pardoned and relieved of accusations that he raped and killed a child.
“I don’t want to saddle him with that,” Allen says.
Allen supports himself by working part-time, Sunday through Thursday. He picks up trash and transports it to a dumpster.
He earns $17 an hour and supplements his income by selling body oils and soaps out of his car. The $600 he earns each month wouldn’t even begin to cover the cost of an apartment, utilities, and food.
“No,” he says. “That’s not enough.""
https://indyweek.com/news/durham/for-a-durham-man-a-pardon-of-innocence-is-the-only-way-he-can-escape-his-past/
Paramedics arrived at the apartment in Durham, North Carolina, where Allen lived with Adesha and Diane Jones, Adesha’s mother. They found Adesha had no pulse. They also noticed what appeared to be a small amount of blood on the inside left leg of her pantsuit. Allen told the paramedics that Adesha had complained of leg pain and become unresponsive after he took her out of the bathtub.
The paramedics took Adesha to the hospital, but she was unable to be revived. The attending physician who examined the girl said there was a “fresh noticeable tear” in the girl’s vagina, with “some blood [being] found inside the vagina and on the clothes [Adesha] wore to the hospital." An emergency-room nurse said that Allen was looking at Adesha’s vaginal area in the moments after the girl was pronounced dead.
Later that day, police charged Allen with a statutory sex offense. A medical examiner performed an autopsy. The examiner’s report said that there were cuts and abrasions on Adesha’s vagina. It also said the girl had subdural and subarachnoid hemorrhaging of the brain, moderate swelling of the brain, bleeding in her spinal column, and bleeding in her retinas. The medical examiner said that Adesha's death was the result of shaken baby syndrome.
Allen had not been the only adult looking after Adesha on the day she died. Jones’s cousin, Kia Ward, had slept over the night before and helped care for Adesha on February 9.
Ward gave investigators a statement on February 10. She said that she cared for Adesha by herself until around 11 a.m., when Allen woke up. She said that Allen became frustrated with Adesha because the toddler wet her clothes. He took her into the bathroom, where he bathed her and spanked her. He then dressed the girl.
Later, Ward said, she noticed that Adesha was “shaking – almost like she was having a seizure.” She asked Allen what was wrong, and he said that he had been giving Adesha a piggy-back ride, and she had fallen off. Ward said she then saw Allen changing Adesha’s underwear. Ward said that Allen then asked her whether she noticed that Adesha was limping, and Ward said she had. Ward said Allen then picked up the girl and placed her on the bed in Jones’s room. Ward said she left the apartment at around 2 p.m., about a half hour before the 911 call.
On February 29, 1998, Special Agent Mike Wilson with the North Carolina State Bureau of Investigation administered a polygraph test to Ward. He asked Ward a series of questions, including whether Ward had harmed Adesha and whether Ward had been truthful with him and with Detective Dwight Gilliam of the Durham Police Department. Wilson would write in a report that Ward was “not deceptive” in her responses.
After the polygraph test, Gilliam asked Ward some additional questions. She admitted to smoking marijuana but said she didn’t smoke on the day Adesha died or the day before. She also told Gilliam that she had sex with Allen two summers earlier but had not had much contact with him since then, and that they had become “kind of like enemies.”
On March 2, 1998, a Durham County grand jury indicted Allen for two additional crimes, first-degree murder and felony child abuse. A judge granted prosecutors approval on July 6, 1998 to seek the death penalty against Allen, who denied any involvement in Adesha’s death.
The police submitted several pieces of Adesha’s clothing to the SBI crime laboratory for testing. Jennifer Elwell, a forensic scientist, conducted the testing on August 17-18, 1998. First, Elwell performed a preliminary test on Adesha’s training pants and two of her sleepers. She said in her report that these items “exhibited chemical properties consistent with what [she] would see in a bloodstain.”
Elwell then moved to perform a confirmatory test on the samples. This test, known as a Takayama test, came back negative. There was no mention of these results in Elwell’s report, but in her lab notes she placed a small dash next to the word “Takayama” for each tested item.
As the case moved to trial, Allen’s attorneys – Robert Brown with the Durham County Public Defender’s Office and Stephen Freedman with the Center for Death Penalty Litigation – began filing discovery motions with the Durham County District Attorney’s Office. The state provided Allen’s team with Elwell’s report and her lab notes. Part of another motion asked for any evidence of drug use by potential state’s witnesses during the relevant time period. Prosecutors said they had no such reports.
A judge hearing the discovery motions denied Allen’s request for prior witness statements, and prosecutors did not provide the results of Ward’s polygraph test or her responses to the subsequent questions asked by Gilliam.
On August 18, 1999, Assistant District Attorney Freda Black wrote to Brown to discuss a plea deal, urging him to get Allen to accept what was their “bottom line” offer. She said it was in Allen’s best interest, and she provided several statements made by Ward that inculpated Allen.
Allen entered an Alford plea to second-degree murder and first-degree sexual offense before Judge Leon Stanback of Durham County Superior Court on August 26, 1999. Under an Alford plea, a defendant doesn’t admit guilt but acknowledges the state has sufficient evidence to convict.
Because Allen didn’t admit guilt, the state had to present a factual basis for the plea. Black told Stanback that the blood on Adesha’s clothing was one of the state’s most important pieces of evidence. She also mentioned the emergency-room nurse’s statement and one of Ward’s statements to the police. Stanback sentenced Allen to between 43 years and nine months and 54 years and one month in prison.
Allen filed a pro se petition on January 27, 2004, challenging his conviction, arguing that Stanback had sentenced him too harshly given the absence of aggravating factors or proof of criminal history.
Five years later, on March 19, 2009, Judge Orlando Hudson of Durham County Superior Court vacated Stanback’s judgments, allowing Allen to withdraw his Alford plea. He was released from prison on April 14, 2009, and placed in the Durham County Jail, and then released on bond September 9, 2010.
Durham prosecutors intended to retry Allen, and his new attorney, Lisa Williams, began filing her own series of discovery requests in early 2010. She inspected the state’s files in April 2010, and then requested 23 pages missing from Gilliam’s report, which included the results of Ward’s polygraph test and Gilliam’s subsequent interview with Ward.
Separately, an independent review of the SBI crime lab released in August 2010 found that the lab’s analysts had routinely filed misleading reports that failed to adequately disclose negative results, often burying those contradictory findings in cryptically written lab notes.
Then-Attorney General Roy Cooper commissioned the review after the exoneration of Gregory Taylor. As with Allen’s case, a lab chemist had reported the presence of blood in his report linking Taylor to a murder but had not included further tests that were either negative or inconclusive. The review found 230 cases, including Allen’s, where analysts didn’t adequately disclose the results of lab work.
On October 12, 2010, Williams filed a motion to dismiss the charges against Allen. She argued that the state “knew or should have known that the written conclusion contained in [Elwell’s] lab report contained false, misleading and incomplete information;” that the state had failed to disclose information about Ward’s polygraph results in a timely manner; that the state failed to treat Ward as a possible suspect or pursue alternate suspects; and that numerous pieces of evidence had been lost, including all specimens and samples taken from Adesha’s body.
Judge Hudson held a hearing on December 9-10, 2010. He heard from several witnesses, including Black, the prosecutor, and Elwell, the lab chemist. Elwell said it was SBI practice in cases with negative Takayama results to report the last “valid” test without comment. Black said she had no knowledge prior to Allen’s plea that Ward considered Allen an enemy or that Elwell’s reported test was inconsistent with a later test mentioned in her lab notes.
After hearing from the witnesses, Hudson dismissed the charges against Allen on December 10, 2010. He followed up the bench ruling with an order filed March 9, 2011, that harshly criticized the SBI and prosecutors for their actions and failure to turn over evidence to Allen’s attorneys. He said the state had used the threat of the death penalty as leverage to secure a plea from Allen, while at the same time withholding evidence to which he was entitled. Hudson called the SBI lab results “deceptively written” and “designed to obscure the fact that confirmatory testing was performed … and yielded negative results.”
Hudson also said he didn’t believe Black’s testimony that she didn’t know about the inconclusive test when she presented the factual basis for Allen’s plea. He noted that Elwell’s phone log said she spoke with Black on August 18, 1998. Hudson also said Black had misled Stanback, when she said there was no evidence suggesting a state witness had used illegal drugs. Hudson said that this misconduct, combined with the loss of evidence and the inability of police to locate Kia Ward, made it impossible for Allen to receive a fair trial.
The state appealed Hudson’s ruling dismissing the charges with prejudice. On September 4, 2012, the North Carolina Court of Appeals reversed and sent the case back to Durham County. The opinion, written by Justice Samuel J. Ervin IV, said Hudson had misapplied the law in dismissing the case. It noted that because Allen’s case had never gone to trial, the state’s failure to disclose exculpatory evidence wasn’t a violation of Allen’s rights.
“Although we agree with the trial court that the polygraph report and Ms. Ward’s statement tended to undermine her credibility and did, for that reason, have impeachment value, the State is not constitutionally required to disclose material impeachment evidence prior to the defendant’s decision to enter a guilty plea,” the ruling said.
The appellate court noted that the state had turned over Elwell’s report and lab notes before Allen entered his plea. While the documents were hard to decipher, a more thorough investigation could have uncovered the meaning of the dash marks next to the Takayama tests, the court said.
“We share the trial court’s displeasure with the manner in which the blood testing results were disclosed to Defendant and the manner in which aspects of the prosecution of this case have been handled. Even so, given our inability to discern any legal basis for the sanction imposed in the trial court’s order, we are obligated to reverse it,” the court wrote.
More than four years later, on October 25, 2016, prosecutors dismissed the charges against Allen.
“After significant investigation by law enforcement and the District Attorney’s Office, witnesses essential to the prosecution of this case either cannot be located or are uncooperative and refuse to assist in the prosecution,” wrote Assistant District Attorney Luke Bumm. “As a result, the State cannot meet the burden of proving every element of the offense beyond a reasonable doubt and therefore cannot proceed with the prosecution of this case.”
In 2019, Allen filed a pro se lawsuit in U.S. District Court for the Middle District of North Carolina against Elwell, Black, the SBI and other officials involved in his prosecution. On October 6, 2021, Judge Thomas Schroeder dismissed most of the complaint, except for the claims against Elwell.
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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Christina Swarns: Executive Director: The Innocence Project;
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