QUOTE OF THE DAY: "The death penalty is lynching's stepson."
Bryan Stevenson, founder of the Equal Justice Initiative in Montgomery, Alabama.
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PASSAGE OF THE DAY: "Trump's death penalty dictate is a tragic step backward. "I'm not surprised that William Barr did this or the Trump administration wants to expedite federal executions," renowned anti-death penalty activist Sister Helen Prejean said on the "Democracy Now!" news hour. "It's their whole way of approaching everything: the way is through violence to try to solve social problems." Prejean is the Catholic nun who rose to global prominence in 1995 after her book "Dead Man Walking: An Eyewitness Account of the Death Penalty" was turned into an Oscar-winning film starring Susan Sarandon and Sean Penn."
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COMMENTARY: "The Ghastly Return of the Federal Death Penalty," by Amy Goodman and Denis Moynihan, published by Truthdig on August 15, 2109. (Amy Goodman is the host of "Democracy Now!," a daily international TV/radio news hour airing on 1,100 stations in North America. She was awarded the 2008 Right Livelihood Award, dubbed the “Alternative Nobel” prize, and received the award in the Swedish Parliament in December...Denis Moynihan is a writer and radio producer who writes a weekly column with Democracy Now's Amy Goodman.)
SUB-HEADING: "The
most significant factors in determining whether or not a person is
given the death penalty are the location where they are tried, whether
they are poor, and the race of the victim.
GIST: "On
July 25, in a surprise announcement, U.S. Attorney General William Barr
said that the federal government would be resuming executions, with
five scheduled in the coming months. This overturns an effective
moratorium on the federal death penalty that has lasted over 16 years.
"Punishment must be swift," Barr said. Just a week later, President Donald Trump exploited the mass killings in El Paso, Texas, and Dayton, Ohio, by demanding not an assault weapons ban, but that capital punishment "be delivered quickly, decisively and without years of needless delay." Needless delay? Since 1973, over 160 wrongfully convicted people have been freed from death row. Trump's death penalty dictate is a tragic step backward. In fact, the death penalty is rapidly losing favor in the United States. Twenty-one states and the District of Columbia have banned executions, while four more states have formal moratoriums in place. Around the world, 106 countries have outlawed capital punishment, and another 28 either have moratoriums or don't carry out the death sentences. Trump's death penalty dictate is a tragic step backward. "I'm not surprised that William Barr did this or the Trump administration wants to expedite federal executions," renowned anti-death penalty activist Sister Helen Prejean said on the "Democracy Now!" news hour. "It's their whole way of approaching everything: the way is through violence to try to solve social problems." Prejean is the Catholic nun who rose to global prominence in 1995 after her book "Dead Man Walking: An Eyewitness Account of the Death Penalty" was turned into an Oscar-winning film starring Susan Sarandon and Sean Penn.
In her new memoir, "River of Fire," Prejean eloquently describes the path that led her from a life as a semi-cloistered young nun in New Orleans in the 1960s to become one of the world's most celebrated and effective campaigners against capital punishment. In it, she writes, "From years on the road talking with people in every state of this nation I realized that most folks have never reflected deeply about capital punishment and have almost no information about how the penalty actually works—or doesn't work." Prejean co-founded a group, Survive, that works with the families of murder victims. Bud Welch lost his daughter Julie in the Oklahoma City bombing in 1995, which killed 168 people. Timothy McVeigh was later executed for the crime. Welch said on "Democracy Now!": "One cannot go through the healing process at all when you're living with revenge. And that's all the death penalty is, revenge. It is not a deterrent. It doesn't, as the media says, bring closure to family members."
The Death Penalty Information Center presents clear and compelling statistics on the 2,500 people currently on death row in the U.S., and how unjustly the death penalty is implemented. The most significant factors in determining whether or not a person is given the death penalty are the location where they are tried, whether they are poor, and the race of the victim. For example, over half of all death sentences are handed down in just 2% of U.S. counties. Similarly, over 75% of capital punishment cases involve murders where the victim was white. According to the DPIC, "In Louisiana, the odds of a death sentence were 97% higher for those whose victim was white than for those whose victim was black. Jurors in Washington state are three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case." Not only is the death penalty administered in an unjust, biased way, but it is also irreversible. Death is final. Clifford Williams Jr. and Charles Ray Finch became the 165th and 166th death row prisoners to be exonerated. Each of these innocent African American men spent over 40 years on death row. With the expedited execution schedule fancied by Trump and Barr, they would have been long dead.
Helen Prejean believes Trump and Barr "seem to have no understanding about how the courts work. They can claim all they want that they're going to fast-track this and speed up these executions, but there is the Constitution, and there are the appeals." While her focus remains on grassroots organizing, she also points to the importance of dedicated death penalty defense attorneys. One such lawyer is Bryan Stevenson, founder of the Equal Justice Initiative in Montgomery, Alabama. The group's Legacy Museum and the accompanying lynching memorial is deeply moving, documenting the 400-year history of African Americans, from enslavement to Jim Crow to the current crisis of mass incarceration. Said Stevenson on "Democracy Now!," "The death penalty is lynching's stepson.""
The entire post can be read at:
"Punishment must be swift," Barr said. Just a week later, President Donald Trump exploited the mass killings in El Paso, Texas, and Dayton, Ohio, by demanding not an assault weapons ban, but that capital punishment "be delivered quickly, decisively and without years of needless delay." Needless delay? Since 1973, over 160 wrongfully convicted people have been freed from death row. Trump's death penalty dictate is a tragic step backward. In fact, the death penalty is rapidly losing favor in the United States. Twenty-one states and the District of Columbia have banned executions, while four more states have formal moratoriums in place. Around the world, 106 countries have outlawed capital punishment, and another 28 either have moratoriums or don't carry out the death sentences. Trump's death penalty dictate is a tragic step backward. "I'm not surprised that William Barr did this or the Trump administration wants to expedite federal executions," renowned anti-death penalty activist Sister Helen Prejean said on the "Democracy Now!" news hour. "It's their whole way of approaching everything: the way is through violence to try to solve social problems." Prejean is the Catholic nun who rose to global prominence in 1995 after her book "Dead Man Walking: An Eyewitness Account of the Death Penalty" was turned into an Oscar-winning film starring Susan Sarandon and Sean Penn.
In her new memoir, "River of Fire," Prejean eloquently describes the path that led her from a life as a semi-cloistered young nun in New Orleans in the 1960s to become one of the world's most celebrated and effective campaigners against capital punishment. In it, she writes, "From years on the road talking with people in every state of this nation I realized that most folks have never reflected deeply about capital punishment and have almost no information about how the penalty actually works—or doesn't work." Prejean co-founded a group, Survive, that works with the families of murder victims. Bud Welch lost his daughter Julie in the Oklahoma City bombing in 1995, which killed 168 people. Timothy McVeigh was later executed for the crime. Welch said on "Democracy Now!": "One cannot go through the healing process at all when you're living with revenge. And that's all the death penalty is, revenge. It is not a deterrent. It doesn't, as the media says, bring closure to family members."
The Death Penalty Information Center presents clear and compelling statistics on the 2,500 people currently on death row in the U.S., and how unjustly the death penalty is implemented. The most significant factors in determining whether or not a person is given the death penalty are the location where they are tried, whether they are poor, and the race of the victim. For example, over half of all death sentences are handed down in just 2% of U.S. counties. Similarly, over 75% of capital punishment cases involve murders where the victim was white. According to the DPIC, "In Louisiana, the odds of a death sentence were 97% higher for those whose victim was white than for those whose victim was black. Jurors in Washington state are three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case." Not only is the death penalty administered in an unjust, biased way, but it is also irreversible. Death is final. Clifford Williams Jr. and Charles Ray Finch became the 165th and 166th death row prisoners to be exonerated. Each of these innocent African American men spent over 40 years on death row. With the expedited execution schedule fancied by Trump and Barr, they would have been long dead.
Helen Prejean believes Trump and Barr "seem to have no understanding about how the courts work. They can claim all they want that they're going to fast-track this and speed up these executions, but there is the Constitution, and there are the appeals." While her focus remains on grassroots organizing, she also points to the importance of dedicated death penalty defense attorneys. One such lawyer is Bryan Stevenson, founder of the Equal Justice Initiative in Montgomery, Alabama. The group's Legacy Museum and the accompanying lynching memorial is deeply moving, documenting the 400-year history of African Americans, from enslavement to Jim Crow to the current crisis of mass incarceration. Said Stevenson on "Democracy Now!," "The death penalty is lynching's stepson.""
The entire post can be read at:
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The Registry of Exonerations entry on Clifford Williams Jr., by Ken Otterbourg - important forensic issues - can be read in its entirety at the link below:
At about 2 a.m. on May 2, 1976, Jeanette Williams was shot to death in her apartment in the New Town neighborhood of Jacksonville, Florida. Her partner, 26-year-old Nina Marshall, was also shot. Marshall would tell police that she felt a stinging sensation in her neck. She then fell to the floor and pretended to be dead. Marshall said that the men who shot her stepped over her bleeding body as they left the bedroom, and then she waited a few minutes before leaving the apartment to get help.
Marshall flagged down a passing motorist and was taken to University Hospital and told police that Williams, who was 30, was still at the apartment. By the time police arrived, around 2:30, a crowd had gathered near the apartment. Many of these people had been at a party just up the street when they heard shots being fired, which was not unusual in the neighborhood. Police found Williams’s body inside the apartment and began canvassing the crowd for witnesses.
Hubert Nathan Myers, known as “Nate,” approached the officers. He said he had been at the party and lived in the second bedroom of the apartment. He went inside with the police, and when he saw the body, he cried out, “My God, it’s Baldie,” using a nickname for Williams.
Marshall had been shot twice in the neck and once in the left arm. While she was at the hospital, she told officers that she and Williams had been shot by two men who stood at the foot of the bed, and she identified one of her shooters as Clifford Williams Jr., who was not related to Jeanette Williams. He was 33, owned a pool hall and was a known heroin dealer. Marshall was an addict and an on-and-off customer, and she said Williams had shot them over a $100 debt for rent he paid on their apartment.
Clifford Williams was in the crowd while police worked the crime scene. He was quickly arrested at about 3 a.m. As he was being taken away, he yelled out for someone to call his attorney and get a list of the partygoers who could give him an alibi. Ten minutes later, the hospital radioed again. Marshall had named the second shooter, Nathan Myers, who was also Clifford Williams’s nephew and managed the pool hall. Marshall said she had then seen both of them on the street after she staggered outside. Myers, who was 18 and had no violent criminal record, was also arrested that evening. Both men were tested for gunshot residue a few hours later. The tests came back negative.
Many of the 40 or so attendees were lesbians, part of a tight-knit group that were close friends with Jeanette Williams. In statements to the police taken during the next month, all of them remembered Williams and Myers being at the party, and nearly all of them said the men had been there when the shots were fired.
The bedroom where the women were shot was very small, nine feet by twelve feet, with the bed taking up most of the space. The space at the foot of the bed was cramped and hard to get to. The initial investigation also found holes in the window curtains and screen, a deformation with a “carbonaceous material” in the frame, and broken glass on the bed, suggesting the shots came from outside. But the investigating officers dismissed that scenario because it clashed with Marshall’s statements. Instead, they wrote, “it appears as though the suspects in this case intended to make it look as though the victims had been shot by someone from the bedroom window.” The officers would also note in their report that the “physical evidence at the scene is entirely consistent with the … statements of the victim.”
In addition, although Marshall claimed there had been two shooters and two guns firing until their chambers were empty, only six fresh bullets were recovered from her and Williams. They were all .38 caliber. A .32 slug was also recovered from Williams, but it was covered in scar tissue, indicative of an old wound.
Myers and Williams were each charged with murder and attempted murder, with Williams facing the death penalty if convicted. Prosecutors tried to cut a deal with Myers, promising him either two years (his account) or five years (the prosecutor’s account) if he pleaded guilty and testified against his uncle. He declined.
Their first trial began in late July 1976 and ended in a mistrial. Their second trial began September 1, 1976. It lasted two days. The state had six witnesses and presented no forensic evidence, relying instead on the testimony of Marshall to place Williams and Myers in her bedroom during the shooting.
At the time, Florida courts allowed defense attorneys to make the final closing argument if they waived calling their own witnesses. The men’s attorneys used this strategy. The jury didn’t hear about the alibis, the glass fragments on the bed, the holes in the window screen, or the failure to find evidence of a second gun. When one of the defense attorneys recalled an evidence technician to discuss testing the defendants’ clothes for blood (and finding none), the technician also noted he had swabbed their hands to test for gunpowder. But the attorney never asked about the results of those tests.
Both men were convicted. Myers was sentenced to life in prison, with parole possible after 25 years. The jury recommended a life sentence for Williams, but the trial judge overruled the jury ‘s recommendation and sentenced him to death. In 1980, the Florida Supreme Court reduced his sentence to life, also with parole possible after 25 years.
Myers had challenged his conviction several times, first in 1987 and then later in 2014. Both appeals were denied.
In early 2017, Myers read a newspaper article about the formation of a Conviction Integrity Unit in the State Attorney’s Office for the Fourth Judicial Circuit, which includes Jacksonville and Duval County. He quickly wrote to State Attorney Melissa Nelson, asserting his and his uncle’s innocence based on four key points: First, were the numerous alibi witnesses who had not been called at trial; second were the results of the gunshot residue tests; third was the gunshot residue on the window frame and other forensic evidence suggesting the shooting had come from outside the bedroom; and fourth was the insufficiency of Marshall’s testimony.
In a follow-up letter, Myers included a copy of the ballistics report and a surprising piece of potential new evidence: A man named Nathaniel Lawson had confessed to the crime before he died in 1994.
The Fourth Circuit CIU began a re-investigation of the case. There were several complications. Marshall had died in 2001, as had several potential alibi witnesses. But the forensic evidence was powerful. Along with the apparent bullet holes in the window and the frame, a more thorough examination of the wounds on Williams and Marshall indicated they had been shot from the side, not from the foot of the bed, which also supported the theory of an outside shooter. The medical examiner’s report had noted a lack of gunpowder residue on Williams or the bed sheets. That would have been unlikely if the shots had come from close range in the tiny room. The CIU also did an audio test that revealed that only shots fired from outside the building would have been loud enough to have been heard at the party, approximately 150 feet down the street.
In the immediate days after the shooting, there was talk that a neighbor across Morgan Street had seen a man shooting from outside the women’s bedroom window. Police interviewed several people who told them what this man had said he had seen. They interviewed the man, who denied seeing the shooting. However, he failed a polygraph test that asked him whether he was telling the truth about his denials. According to the CIU’s report, prosecutors didn’t mention any of this in their discovery items.
The CIU investigators spoke to four people who said Lawson had confessed to shooting Williams and Marshall. One said that Lawson told him the shooting was at the behest of a drug dealer who was upset at Marshall’s failure to pay a debt. Another of the four was Frank Williams, the brother of Clifford Williams. He said that he reached out to Lawson after hearing rumors of his involvement. They met in the parking lot of a church, and Lawson said he had shot Williams and Marshall because “she was stealing from me and I had to send a message.” He didn’t say who he was referring to. After Lawson died, Frank Williams took this information to an attorney, who told him that there was little to be done.
The police report places Lawson near the apartments after the shooting. After Williams and Myers were arrested, Williams’s wife, Barbara, was stopped leaving the scene in a pickup, as police were concerned that the murder weapon might be in the vehicle. The report mentions Barbara Williams and a man named Rico Rivers in the truck but didn’t identify the other two passengers. But when Barbara Williams was deposed in 1976, she said Lawson was with her.
In its report, the CIU said that Myers and Williams had been convicted in part due to confirmation bias by the police. “While the police had probable cause to arrest the defendants,” the report said, “the inconsistencies in Victim Marshall’s accounts, the changes to and evolution of her testimony, and the evidence available over the course of this case was sufficiently significant to call the prosecution’s attention to the weakness of their premise.”
The men also were victims of ineffective counsel, the report said. Their attorneys failed to call any alibi witnesses or introduce physical or forensic evidence to challenge the state’s theory of the crime. While they cross-examined Marshall and suggested that she might have misidentified her shooters because she was starting Methadone treatment and had smoked marijuana a few hours earlier, they never challenged her essential version of events. “The reality was that Victim Marshall could not have seen the perpetrator who shot through the bedroom window,” the report said, “and would not have known that person’s identity. That was the crux of the case and yet it was never argued to the jury.” Importantly, Florida no longer allows defense attorneys to waive calling witnesses in exchange for getting the last word.
Florida law doesn’t allow prosecutors to directly vacate convictions. Krista Dolan and Seth Miller of the Innocence Project of Florida represented Myers, and Buddy Shultz of Holland & Knight represented Williams in their motions to vacate, which relied on the findings of the CIU report. Circuit Court Judge Angela Cox granted the motions on March 28, 2019, and after 42 years in prison for a crime they didn’t commit, Myers, now 61, and Williams, now 76, were released.
According to the Florida Times-Union, Myers said after the ruling, “I’m not bitter for what happened to me because the Lord Jesus Christ made me to be a man. I was a kid when I came to prison. I grew up on my own, so I understand the things a man (ought to) do. What I want to do now is have a chance to go out and be that man.”
Myers is eligible for compensation from the state of Florida. Williams, because of his previous felony convictions, is not.
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The Registry of Exonerations entry on Charles Ray Finch, by Ken Otterbourg - important forensic issues - can be read in its entirety at the link below:
It was 9 p.m. on February 13, 1976, and Richard Holloman had already
turned off the interior lights and locked his convenience store in a
rural area outside Wilson, N.C., when three men came up out of the
darkness. Two of the men went inside, and one of them asked for an
Alka-Seltzer. When Holloman asked the man if he needed some water to
wash down the medicine, the man said, “Yes, sir – and your money, too.”
The Registry of Exonerations entry on Charles Ray Finch, by Ken Otterbourg - important forensic issues - can be read in its entirety at the link below:
Holloman responded quickly, “Money, hell!” The man again demanded Holloman’s money, and Holloman wheeled around, pistol in his hand, and got off a shot. The second man fired his gun, hitting Holloman in the neck and shoulder and killing him. The men then left.
The only eyewitness to the shooting was Lester Floyd Jones, who helped Holloman at the store. Deputies with the Wilson County Sheriff’s Department, led by Chief Deputy Tony Owens, quickly arrived and took a statement from Jones. It was not very detailed. Jones wrote:
3 Black Males came up Walking and asked if They could get an alkaselsa and We Unlocked and Went in and The 1 Male With a Stocking over His Head said This is a Robery and drew a Sawed off Shoot Gun and Blasted at Mr. Hollowmon one Had a Black Cap on the other Had a Tobogen on They were Walking.
Along with those brief descriptions of the men, with their black cap and wool hat, Jones also said the car was a black Pontiac with a light out in the back.
Separately, a man named Noble Harris said he had seen a man named Charles Ray Finch at the store about three hours earlier. That would not have been unusual, as the 38-year-old Finch lived nearby and was a frequent customer. Owens would later say he had already been thinking about Finch as a suspect when he drove to the crime scene. Finch had been arrested for a grocery-store robbery a few months earlier, but the charges had been dropped when the victim said Finch wasn’t involved.
An APB was put out for Finch’s blue Cadillac. Just before midnight, officers with the Wilson Police Department arrested Finch and James Lee Lewis, a passenger in the Cadillac. Finch, who was wearing a hat and a three-quarters-length coat, consented to a search of his car, and police recovered a shotgun shell from the ashtray in the left rear door. Early on February 14, Jones was brought to the sheriff’s office to view a lineup with Lewis and Finch. Owens arranged three separate lineups, using fillers from the county jail. Each time, Jones picked Finch but not Lewis as the person he had seen shoot Holloman. Finch was then charged with capital murder.
Finch’s trial began in Wilson County Superior Court on June 28, 1976. The day before, there had been a hearing to suppress Jones’s testimony based on his identification at the sheriff’s office. Finch’s attorney, Vernon Daughtridge, argued for suppression because Finch had been denied counsel at this critical part of the investigation, but the hearing also delved into Jones’s description of the shooter. Now, it was no longer bare-bones. Instead, he described Holloman’s killer as being between five foot nine and six feet tall, 150 to 160 pounds, with a dark complexion, and wearing a light shirt, dark coat and dark pants. This was a much closer description of Finch. Jones said he had orally given the description to Owens, although Owens did not confirm or deny he had received that information.
During the trial, Jones went a step further. Although there were no statements that said that the man he saw shoot Holloman had facial hair, now Jones said that Finch looked like he did on the night of the lineup, except that he had shaved. Finch’s attorneys would argue post-conviction that Jones’s memory had been influenced by looking at photos prior to trial and that what he testified he saw and what he actually saw were vastly different.
Finch did not testify, but he had several alibi witnesses who said he was playing poker at Tom Smith’s Shoeshine Parlor in downtown Wilson. Three of the men at the game said Finch had left for a while, but they also were clear that he was playing cards at the time of the robbery.
Finch’s defense also argued that the police had the wrong man. In an interview with sheriff’s deputies on February 16, 1976, Finch had said that he had picked up Lewis on the night of the shooting and that Lewis had confessed to him that “he had done the job.” His attorneys would note that Lewis matched Jones’s description of the second man – light complexion, with a pencil mustache.
Jones testified that Finch used a shotgun to kill Holloman. The state’s physical and forensic evidence was designed to reinforce that testimony. First was the autopsy performed by Dr. Henry Haberyan on February 14, 1976, which appeared to say that Holloman had died from two shotgun wounds. It was not introduced by the state, but Daughtridge cross-examined Haberyan about the report. Separately, the deputy sheriff who found the shotgun shell in Finch’s car cut the shell open as he testified so that the jurors could examine the pellets. Assistant District Attorney Frank Brown would note that it was “just like or very similar to the one that was removed from the body of Mr. Holloman.”
The cause of death and the type of weapon were central to the jury instructions given by Judge Walter Crissman. He said in part, “the State must prove or must have proven beyond a reasonable doubt first, that in this case the defendant was in the store on this occasion and had a sawed off shotgun and that he shot that gun while attempting to commit the crime of robbery with a firearm, and second, that his act of shooting that gun proximately caused the death of Mr. Richard Holloman.”
After deliberating for less than two hours, the jury convicted Finch of capital murder on July 1, 1976. The next day, Crissman sentenced Finch to death, as required by North Carolina law at the time. The sentencing happened on the same day that the U.S. Supreme Court struck down North Carolina’s death-penalty statute as cruel and unusual punishment because it did not allow juries to consider the defendant’s character and overall record. Finch’s sentence was therefore commuted to life in prison. (The death penalty has since been reinstated in North Carolina, with a post-conviction sentencing hearing to allow jurors to consider that evidence.)
Finch, working with attorneys or acting pro se, sought to overturn his conviction over the next 43 years. Separately, in 1979, he had written to the new sheriff in Wilson County, alleging that his conviction was part of a conspiracy to cover up corruption in the county. That letter was turned over to the N.C. State Bureau of Investigation. Agents interviewed Finch and others but closed their investigation after three months.
In 2001, attorneys at the Wrongful Convictions Clinic at Duke University Law School began representing Finch. They were able to use a state law enacted in 1996 that required prosecutors and police to turn over all investigative records. One of the records they received was the 1979 SBI report.
In 2013, Finch’s attorneys filed a wide-ranging motion for appropriate relief in Wilson County Superior Court to overturn his conviction. The motion asserted that there were numerous deficiencies with the evidence used to convict Finch, that the state had failed to turn over vital exculpatory evidence, and that Daughtridge had been deficient in his representation.
First, the motion attacked Jones’s identification of Finch, noting that the crime scene would have been backlit from the lights at the gas pumps, making it difficult for him to see the faces of the robbers. In addition, according to Jones’s testimony, he had his back to the men before the shooting started, and then he quickly scrambled for safety. That suggested he didn’t get a good look at the assailants.
The lineup also came under attack. During the trial, Owens had testified that he had made Finch and the other men in the lineup switch clothing. But photos of the lineup presented at an evidentiary hearing showed that Finch was wearing the three-quarters-length coat in each lineup. When confronted with that evidence, Owens conceded that the arrangement was unfair.
Lewis had also been charged with murder in Holloman’s death, although the charges would be dropped for insufficient evidence in 1978. While Jones didn’t pick Lewis out of the live lineup, the SBI report said that Jones had picked him out of a photo lineup conducted on February 17, 1976. That wasn’t disclosed to Finch’s attorney. When Daughtridge had asked Owens during a cross-examination whether Jones had identified Lewis as being one of the people at the store, Owens had said “no,” and Brown didn’t correct him. Judge Wayland Sermons, Jr., who denied Finch’s motion for appropriate relief, said there was no evidence that prosecutors knew about the Lewis identification and that the discovery violation was “harmless.”
Prior to trial, the SBI had examined the shotgun shell found in Finch’s car. The agency told the state that they could not match the pellets in that type of shell with the bullet fragments taken from Holloman. That evidence was also not disclosed, although Sermons said that the SBI agent had never actually compared the contents of the actual shell seized from Finch’s car with the bullet fragments. When the jurors did their own comparison, Sermons said, they were in “as good a position to consider the similarity or the differences in the pellets as anyone.”
Haberyan’s autopsy had said in three places that Holloman had died from shotgun wounds. He had danced around this fact in his testimony, never actually stating the type of weapon used, but the use of a shotgun was brought up in the prosecution’s closing arguments and the judge’s jury instructions. But Haberyan’s autopsy had a critical error. He had transposed a key word, writing “shotgun” instead of “gunshot” in three places. A review of his autopsy by the Wilson County Medical Examiner on February 17, 1976 had stated plainly that Holloman was killed by gunshot, not a shotgun.
When confronted with this error in early 2002, Haberyan acknowledged the mistake. He also said that his use of the word “slug” in his autopsy would have been consistent with the phrasing he used to describe bullets rather than shotgun pellets. In an affidavit in 2003, he said simply: “The wounds suffered by Mr. Holloman were not caused by a shotgun.”
Sermons also discounted this new evidence. He said there was no proof that the state had failed to turn over the medical examiner’s report. He also noted that Haberyan had never specifically testified that Holloman had been killed by a shotgun. In addition, the state had now shifted its theory of the crime. It was possible, prosecutors argued, that Holloman was killed by a pistol, but Finch was still guilty because he was there.
Finch’s attorneys also said Daughtridge was ineffective in his representation. He had not properly challenged the manner in which Finch was arrested or the construction of the lineup where he was identified by Jones. Finch had raised many of these points in a previous motion, and Sermons rejected them again. His order denying Finch relief was issued October 20, 2014.
Finch filed for a petition for a writ of habeas corpus in U.S. District Court for North Carolina’s Eastern District on November 19, 2015. He was 77 years old. The petition centered on the way in which Finch was arrested and then identified in the lineup and at trial, and on the evidence that had been kept from him at trial.
Finch’s attorneys said there had not been sufficient probable cause for the arrest itself. Jones’s initial description of the robbers, they argued, could have fit thousands of African-American men in eastern North Carolina. Harris had recanted in 2003, stating that he had never been certain that he had seen Finch at the convenience store in the hours before the shooting. Moreover, he said, it was Owens who had mentioned Finch first and then proceeded to repeatedly question Harris about him. At Finch’s 2013 hearing for his motion for appropriate relief, Owens had claimed – for the first time – that a confidential informant had told him that Finch and two other men were planning a robbery.
Jones’s identifications were also more closely scrutinized. As time passed, his descriptions kept getting more detailed and crisper, despite a history of alcoholism and cognitive issues. An expert retained by Finch said that the consistent use of the coat during the lineups may have played an undue role in Jones’s identification.
Finch’s attorneys also continued to assert that the state’s failure to turn over the SBI ballistics comparison, the medical examiner’s report, and Jones’s pre-trial identification of Lewis were violations of the U.S. Supreme Court’s 1963 decision in Brady v. Maryland requiring prosecutors to turn over exculpatory materials to defense lawyers prior to trial. In particular, the medical examiner’s report, when combined with Haberyan’s acknowledgement of his error, cast significant doubt on Jones’s testimony. He had said a shotgun killed Holloman, but the evidence said the weapon had been a pistol. If Jones was wrong about that, Finch’s attorneys asked, what else had he been mistaken about in his testimony?
The state argued that Finch’s petition was time-barred, and that he didn’t meet the standards of showing actual innocence to get past the lack of timeliness. Judge James C. Dever III agreed, granting summary judgment for the state on March 17, 2017. Finch appealed to the U.S. Court of Appeals for the Fourth Circuit.
On January 25, 2019, the appellate court reversed Dever’s ruling and remanded the case back to U.S. District Court for a hearing on Finch’s petition. “Finch has overcome the exacting standard for actual innocence through sufficiently alleging and providing new evidence of a constitutional violation and through demonstrating that the totality of the evidence, both old and new, would likely fail to convince any reasonable juror of his guilt beyond a reasonable doubt,” the court wrote.
The court said that there was no physical evidence implicating Finch, that Jones was burdened with credibility issues, and that Owens’s ability to corroborate what Jones had told him had been undermined.
On May 23, 2019, Judge Terence Boyle granted Finch’s petition for a writ of habeas corpus, vacated his conviction, and ordered him released from prison. After nearly 43 years in prison, Finch was released from Greene Correctional Institution that afternoon. He was 81 and in a wheelchair. He said, “I’m just glad to be free. I feel good.”
One of Finch’s daughters, Katherine Jones-Bailey, who was two when Finch was arrested, said her family had prayed for this day to happen. “This has been a long time coming. It’s been worth the wait. It’s been worth the fight.” She also sympathized with Holloman’s family. “They still didn’t get justice,” she told The Wilson Times. “We all end up suffering at my dad’s expense.”
Under the terms of Boyle’s order, Wilson County District Attorney Robert Evans had a month to decide whether to retry Finch or dismiss the charges. On June 14, Evans filed a notice of dismissal in Wilson County Superior Court that said that retrial was impossible because witnesses were either "deceased, retired and/or relocated.""
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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
