UNC legal expert says pardons deserved in Wilmington 10 case
BY CASH MICHAELS OF THE WILMINGTON JOURNAL
Saying that revelations about Assistant New Hanover County District Attorney James “Jay” Stroud Jr.’s racial jury gerrymandering, and his plot to cause a mistrial to impanel a “KKK” type jury in the Wilmington Ten case were “stunning and beyond outrage,” a UNC legal expert tells The Wilmington Journal that those facts alone justify individual pardons of innocence from Gov. Beverly Perdue for the Wilmington Ten.
Meanwhile, the Libertarian candidate for NC governor announced her support Wednesday for pardons of innocence for the Wilmington Ten, citing the documented actions of prosecutor Stroud in saying, “A pardon of innocence by [Gov.] Perdue would grant some closure for the surviving members of the Ten, and must come before Perdue’s term ends December 31st.”
In another development, the North Carolina chapter of the Southern Christian Leadership Conference announced in Greenville Sunday that it was formally supporting the pardons of innocence effort for the Wilmington Ten.
Dr. Benjamin Chavis, leader of the Ten, was on hand for the announcement.
“It is stunning, and beyond outrage, to learn the level of prosecutorial abuse that dominated, infected, and ultimately drove the outcome in the Wilmington Ten trials,” says Gene R. Nichol, Boyd Tinsley Distinguished professor at the UNC School of Law at UNC – Chapel Hill, after reviewing portions of what is now known as “the Stroud file.”
“This intense abuse of governmental authority, prosecutorial misconduct — both professional and racial — casts a long shadow over the North Carolina system of justice, Prof. Nichol continued. “It also, of course, worked massive and unforgivable constitutional injury on the lives of ten North Carolinians.”
“The prosecutor made mockery of his high office by knowingly, intentionally, and purposefully placing perjured testimony at the heart of the trial. It is also clear now, in ways not demonstrated by documentary evidence before, that he tainted the trial initiation process and vital jury selection through patent, overt, and outcome-determinative racism.”
“It is crucial that North Carolina act to admit and concede such a potent and defining abuse of power,” Prof. Nichol maintains. “To allow public servants to behave in such a fashion, without remedy, is literally intolerable.”
Prof. Nichol’s legal analysis comes after the fortieth anniversary of the convictions of the ten civil rights activists for crimes they did not commit. On Oct. 17th, 1972, nine young black males and one white female – all led by the Rev. Benjamin Chavis of the United Church of Christ – were falsely convicted during their second trial of conspiracy in connection with racial violence that gripped Wilmington in February 1971.
The Stroud files now cast a large shadow over those convictions.
“The Ten,” as some call them, were all sentenced collectively to 282 years in prison, some of which they all served before worldwide public pressure forced early releases. In 1976, Amnesty International, a respected international social justice agency, labeled the Wilmington Ten “political prisoners” because they were targeted only after they protested racial discrimination in their local public school system five years earlier.
In 1977, the three witnesses on whose testimony the Wilmington Ten were convicted recanted their testimonies before a grand jury, saying that state prosecutor Jay Stroud paid them to lie with gifts and privileges. The CBS News program “60 Minutes” broadcast an expose’ on the fabrication of evidence in the case, strongly suggesting a false prosecution.
And in 1980, the US Fourth Circuit Court of Appeals, citing prosecutorial misconduct on Stroud’s part, among other issues, overturned all ten convictions. But the state of North Carolina has upheld those convictions for the past 32 years.
It was not until 2011, when the National Newspaper Publishers Association (NNPA) – an association of over 200 African-American newspapers across the nation – voted to officially seek pardons of innocence for the Wilmington Ten, did the effort to legally address the issue begin in earnest, and the Wilmington Ten Pardons of Innocence Project was born.
On May 17 of this year, a legal petition of pardons of actual innocence was formally submitted to Gov. Beverly Perdue’s Office of Executive Clemency on behalf of Dr. Benjamin Chavis; Wayne Moore; Marvin “Chili” Patrick; Reginald Epps; James “Bun” McKoy; Willie Earl Vereen; William “Joe” Wright; Jerry Jacobs; Ann Shepard and Connie Tindall.
Wright, Jacobs, Shepard and Tindall are deceased. Tindall, 62, died in August.
During the course of researching the case, the original files of Wilmington Ten state prosecutor Jay Stroud were found, and evidence of extraordinary prosecutorial misconduct uncovered. North Carolina Central University School of Law Professor Irving Joyner, and James Ferguson, original lead defense attorney forty years ago for the Wilmington Ten – both of whom filed the petition papers with the state – spent last summer researching and authenticating handwritten jury selection notes by prosecutor Stroud which indicated during the first trial in June 1972 in Pender County how he sought to impanel a “KKK” type jury to guarantee convictions.
Stroud’s notes also document how he plotted to cause a mistrial in the first June 1972 Wilmington Ten trial because there were ten blacks and two whites on the jury, his star false witness against the Ten, Allen Hall, was not cooperating, and it looked very unlikely that Stroud could win the case given the lack of evidence.
History shows that prosecutor Stroud told the presiding judge in the first June 1972 trial that he had become “ill,” and could not continue.
A mistrial was ultimately declared.
It was during the second trial in Pender County, which began Sept. 11, 1972, that Stroud got a jury more to his liking – ten whites and two black domestic workers – and a different judge who was arguably biased against the defense.
This time, the Wilmington Ten were convicted, sentenced, and sent away to prison.
As The Wilmington Journal exclusively reported in September, it was during a Sept. 5th forum at NCCU’s School of Law, that defense attorney James Ferguson said his examination of the Stroud files was revealing.
“There was a fair amount of confirmation of things we suspected at the time that race was the central strategy of the prosecution,” attorney Ferguson maintained, singling out a legal pad that prosecutor Stroud used during jury selection of the first trial to track Ferguson’s questioning of potential jurors in Pender County, a neighboring county the case had been moved to in June 1972.
Pender had a larger African-American population than New Hanover County, where the Wilmington Ten had been charged, thus, more black candidates for jury service.
Ferguson detailed how Stroud wrote on the top of one page of his jury selection legal pad,” Stay away from black men.” Next to that on the top of that same sheet, Stroud wrote, “Leave off Rocky [Point], Maple Hill. Put on Burgaw, Long Creek Atkinson Blacks.”
In Stroud’s mind, Ferguson said, blacks from the more rural towns of Burgaw, Long Creek and Atkinson, would probably be less likely to identify with “radical” civil rights leaders like Ben Chavis, than African-Americans from the more urbane towns of Rocky Point and Maple Hill.
Indeed, the 29th prospective juror on that same page named “Randolph” has a capital “B” in front of his name in the margin, and in parentheses the word “no,” and written afterwards, “on basis Maple Hill.”
In contrast, per another possible juror, number 9 with a “B” named “Murphy,” Stroud has written in parentheses, “Worth chance because from Atkinson.”
There are several prospective jurors listed by name, and if not, certainly by number, who have the capital letter “B” written in the margin. If there was any doubt about the “B” indicating “black” – which was attached to many names the words “leave off” were written next too, that is dispelled by what Stroud writes in addition to some of them.
On prospective “B” juror number eleven named “Graham,” Stroud writes, “knows; sensible; Uncle Tom type.”
On Number 27 named “Stringfield,” Stroud writes, “no named black on jury.”
On Number 19 named “James” Stroud writes, “stay away from,” apparently indicating that the potential juror is a black male he doesn’t want.
And prosecutor Stroud had unmistakable codes for white jurors he felt he had to have.
On that same legal pad sheet tracking juror interviews, when Stroud was impressed with a white interviewee’s answers, he’d write down the three letters of the alphabet most commonly associated with the most fear white supremacist group in the South at the time – the Ku Klux Klan.
“KKK?…good” is what Stroud wrote for juror Number 1 known as “Pridgen.” For Number 6 named “Heath,” the reverse, “O.K.” then “KKK?”. Number 75 on a subsequent page was “Fine – probably KKK!!” and on Number 99 Stroud writes, “does not have a record – KKK!!”
Stroud apparently was also concerned if potential black jurors in the June trial read about the case in The Wilmington Journal, the local African-American newspaper. Stroud considered the Journal a subversive publication that supported the Wilmington Ten.
“Blacks – you get Wilmington Journal or read it – view sympathetic to letters from Chavis,” Stroud wrote in the column of his legal pad, making note of question would ask of potential black jurors.
The notation is chilling because the following year, The Journal was firebombed by a white supremacist on June 1973, and historically, another black newspaper, The Daily Record, was burned to the ground by white supremacists during the November 10, 1898 racial uprising, demonstrating a long held fear of the Black Press in Wilmington.
“Race infused the jury selection strategy in that June trial,” attorney Ferguson said of Stroud’s jury selection notes.
As indicated earlier, the sheer number of prospective black jurors for the first Wilmington Ten trial resulted in a panel of ten African-Americans, and two whites.
“We were able to position ourselves in a way that we were headed towards getting what appeared to be a jury that might be fair,” defense attorney Ferguson said.
“But at that time, as they say, a funny thing happened on the way to the forum.”
Ferguson and Prof. Irving Joyner note that on the cardboard back of that jury selection legal pad Stroud used, the prosecutor literally drew a line down the middle.
On the left he titled it, “Disadvantages of Mistrial.”
On the right, “Advantages of Mistrial.”
“Most people don’t list the pros and cons of getting sick,” quipped Ferguson.
Stroud then proceeded to list reasons for both, seemingly to devise some sort of strategy as to what his next move should be.
For disadvantages, the prosecutor wrote, “1 – waste of a week; 2- could affect Hall’s attitude and other witnesses (referring to star state’s witness Allen Hall, who was being paid by the prosecution to deliver false testimony) 3 – possibly waste of 2 weeks unless Allen can set up quick docket; 4 – inconvenience to all concerned; 5 – possibly get Judges Chess, Godwin or Copeland on new trial; and 6 – delaying getting cases over with.”
On the other side of Stroud’s list for “Advantages of Mistrial’ in the first Wilmington Ten trial, the prosecutor listed, “1 – different judge; 2 – better prepared to select jury and to handle motions/more organized; 3 – avoid longer jury selection and hung jury in Pender because of their concern about retaliation; 4- fresh start [with] new jury from another county; 5- avoid reversible error [and] new trial on lack of [defense] witness interviews; 6 – can enlist Dan Johnson’s help; 7 – opportunity to separate [white Wilmington Ten member Ann] Shephard (sic) from others to keep out [Allen] Hall’s letter; and 8 – time to have case well prepared and organized.”
Stroud apparently decided to cause the mistrial as a result of his deliberations.
“The main prosecutor in the case (Stroud) suddenly became ill,” Ferguson recalls. “For what reason I do not know. [Perhaps] sitting there looking at that many black folks serving on the jury. But he became ill, sort of speak, and decided that he could not proceed with the trial. So that trial was aborted.”
After reviewing the same materials, UNC law Professor Gene Nichol was deeply concerned.
“The Stroud memo reveals that the most cynical and stunning use of racial antagonism and hostility drove the prosecutor’s decisions in launching, and re-launching the Wilmington Ten trials,” Prof. Nichol says. “No justification exists, or could exist, for such bald constitutional transgression. It is vital that the state officially declare, as it would through a pardon of innocence, the flat rejection of the use of racial hatred in the exercise of criminal prosecution. Ignoring such outrageous misbehavior, once revealed, would be a fundamental breach of duty.”
In reaction to the Stroud Files, Barbara Howe, Libertarian candidate for governor, said in a press release Wednesday, “This September, the files of the prosecutor in the case, Jay Stroud, were released, providing further insight into the depth of the misconduct. The notes from jury selection reveal an active pursuit of jurors with possible KKK ties and attempts to have black jurors removed.”
Howe continued, “The evidence that has been revealed over the years since the convictions paints a very gloomy picture of the North Carolina judicial system. The recanting of witness statements and the prosecutorial misconduct that has come to light with the release of the Stroud files clearly demonstrate the need for action [by Perdue]. A pardon of innocence for the Wilmington Ten would show a renewed commitment by the State of North Carolina to the cause of justice.”
Ms. Howe added that until those pardons of innocence are granted, the Wilmington Ten remain convicted felons in the state of North Carolina.
Prof. Nichol, who has also written a letter of support directly to Gov. Perdue for the Wilmington Ten Pardons of Innocence, continued, “I am confident that the prosecutor’s rank, grotesque, abuse of authority merits a pardon of innocence. There are surely no circumstances to seek a ‘pardon of forgiveness’. It would be stunning to say to a group of defendants subjected to such breathtaking misconduct that we now ‘forgive’ you.”
“The only acceptable response from the State of North Carolina,” Prof. Nichol concluded, “…is to concede that its power was exercised in the Wilmington Ten prosecutions in a tyrannical rejection of honesty and constitutionalism.”