PUBLISHED:August 31, 2012

Newman, students, and alums persuade judge to free another Wrongful Convictions Clinic client

A judge overturned the conviction of Noe Moreno, a client of the Duke Law Wrongful Convictions Clinic who had been incarcerated since 2006, on Aug. 31.  North Carolina Superior Court Judge Richard Boner vacated Moreno’s conviction and ordered charges against him dismissed, based on evidence of his innocence developed by students and presented by Theresa Newman ’88, co-director of the clinic, and David Pishko ’77, who worked pro bono on the case.

Moreno was arrested in 2006 following a two-car collision in Mecklenburg County that killed one person and injured five. Police mistakenly identified Moreno as the driver who caused the accident because of how the crash pushed him toward the left of the vehicle and pushed his brother, Jorge Moreno, who was driving, to the right.  Newman, Pishko, and Jamie Lau ’09, Moreno’s current lawyers, said neither police nor Moreno’s trial lawyer ever adequately investigated who, in fact, was driving. 

 “The weight of the evidence on that first night strongly indicated that Jorge Moreno was the driver and not his brother, the defendant,” they wrote in a Motion for Appropriate Relief on behalf of their client and filed in Superior Court.

Following the advice of his lawyer at the time, Moreno pled guilty in 2007 to second-degree murder, assault with a deadly weapon, assault with a deadly weapon inflicting serious injury, and driving while impaired. He was sentenced to 18 to 22 years in prison. At the time of his guilty plea, he was barely literate and spoke only Spanish.

Moreno’s case was first reviewed by a team of Duke Law Innocence Project students, including Joshua Mayer '10, who later persuaded Newman and clinic co-director James Coleman to transfer it to the Wrongful Convictions Clinic, where Mayer and 2010 classmate Zach Oseland  conducted an extensive investigation.  More recently,  Lau, Barrett Johnson ’13, and visiting Irish barrister Alicia Hayes worked on the case, helping to prepare it for the evidentiary hearing that was set for the last week of October.

In late August, however, the District Attorney’s Office decided to forgo that full hearing and agree to Moreno’s release.  An abbreviated hearing was set for Aug. 31. 

“This case is really a testament to hard work, perseverance, and creativity,” Newman said. “Guilty pleas are particularly difficult to overcome.  But the facts of the case made it so clear that Mr. Moreno should never have been charged, that we believed we could get his conviction overturned.”

Coleman thinks the Moreno exoneration is particularly important to the work of the clinic and Innocence Project. "We recognize that freeing a person who pleads guilty to murder or one who is an undocumented immigrant may appear to be asking a lot of elected judges and prosecutors. But if the person is innocent, as Noe was, an exoneration is what justice demands. We are fortunate in North Carolina that there are prosecutors and judges who put justice before politics in such cases."

The motion filed by the clinic on Moreno’s behalf argues that Moreno was failed twice over, by “a constitutionally inadequate investigation,” in which police failed to take basic steps to determine who was driving on the night of the accident, and by his own counsel, who failed to conduct his own investigation and urged Moreno to plead guilty, telling him he could not win at trial and would fare much better by pleading guilty.  

Moreno has always insisted he was not driving on the night of the accident.  That same night, his brother Jorge admitted he was driving, but, after Noe was arrested, Jorge  insisted he couldn’t remember.

At the Aug. 31 hearing, Assistant District Attorney Bill Stetzer said the District Attorney’s Office was persuaded by the accident reconstructionist who submitted a report on Moreno’s behalf.  The reconstructionist analyzed the EMT and police reports and the dynamics of the crash, and decisively concluded that Moreno was the front-seat passenger, not the driver.  Stetzer said the District Attorney’s Office hired its own expert, who conducted an independent analysis and agreed Moreno was the passenger. 

Moreno, with Johnson serving as interpreter, told the clinic team that he was grateful for their efforts when he learned of his impending release during a prison visit on Aug. 27. “He said it was very tough in the beginning, when people thought he might have been the driver,” Newman recounted.

Moreno is the second wrongfully convicted person released in the past two months due to the work of the clinic, the Innocence Project, and the Duke alumni community—notably Pishko, a partner at Elliot Pishko Morgan in Winston-Salem—and the fourth in two years.

In July, Greensboro native LaMonte Armstrong was released after serving 17 years of a life sentence after another dramatic development – when the homicide detective preparing for the evidentiary hearing in that case re-ran some prints left at the scene of the 1988 murder and got a match to the person now believed to be the assailant.  In 2010, Shawn Massey and Scott Pierpoint were released after serving 12 and nearly 18 years, respectively, for crimes they didn’t commit.

Duke Law School’s Wrongful Convictions Clinic investigates and, where appropriate, litigates claims of innocence made by incarcerated felons. Under the direction of Newman and Coleman, clinic students study the causes of wrongful convictions, manage cases and perform a wide range of duties, including interviewing inmates and witnesses, gathering documentation, writing legal documents and working with experts. The Duke Law Innocence Project is a student-run volunteer organization similarly dedicated to investigating claims of actual innocence.