Wrongful Convictions Clinic secures modification of client’s sentence, pursues exoneration

November 2, 2017Duke Law News

The Wrongful Convictions Clinic has secured the modification of client Derrick McRae’s murder sentence to life with the possibility of parole from one of life without the possibility of parole. The clinic is continuing to pursue McRae’s full exoneration for the 1995 murder of Jeremy Lee Rankin in Rockingham, N.C.

Arrested in 1996 at the age of 16 and convicted in 1998, McRae will now be eligible for parole in 2022, pursuant to a Sept. 28 order by Superior Court Judge David Lee. By that time McRae, who suffers from schizophrenia, will have been incarcerated for 25 years.

Lee based his order modifying McRae’s sentence on the 2012 ruling by the U.S. Supreme Court in Miller v. Alabama, which found mandatory life sentences without parole for juveniles to be unconstitutional. The court further held in 2016 that its Miller ruling applied retroactively. After hearing testimony from McRae’s prison psychologist, family members, and others, the judge found that McRae met every criteria for resentencing outlined by North Carolina statutes.

Associate Clinical Professor Jamie Lau ’09, the clinic’s supervising attorney, served as lead counsel during the three-day September hearing, where the clinic also sought to have McRae’s conviction vacated based on ineffective representation by counsel at trial. Lee deferred hearing evidence on that claim to a later date.

Lau, who was joined at the counsel table by Clinical Professor Theresa Newman ’88, the clinic’s co-director, and advanced clinic student Mason Roberts ’18, views Lee’s orders as positive steps in the clinic’s broader goals of overturning McRae’s conviction and securing his full exoneration or, alternatively, a new trial. A 2014 attempt to do so failed when the jailhouse informant whose testimony was pivotal in securing McRae’s conviction declined to recant it in court, although he had done so in both a recorded statement and a sworn affidavit.

Conflicting testimony, no physical evidence, life without parole

The clinic received McRae’s file from the North Carolina Center on Actual Innocence in 2006, after a psychiatrist who had treated him over a two-year period when prosecutors were seeking to have him declared competent to stand trial expressed her concern with his conviction. The clinic has since found numerous reasons to believe McRae is innocent and wrongfully convicted, said Lau, who has worked on the case since returning to Duke Law in 2011. Among these:

  • that two witnesses offered conflicting testimony regarding motive, with one later admitting to a private investigator that he lied during his testimony because prosecutors reduced charges against him in exchange for his statement, while the other, a co-defendant, had murder charges dropped after testifying against McRae while maintaining his innocence;
  •  that the law enforcement investigation produced several statements implicating McRae that on their face raise serious questions about the investigation, as each contains contradicting detail regarding the location of the crime, the time it occurred, and the number of participants;
  • and that the first four and a half months of investigation records related to the murder, as well as any investigation occurring after the contradictory statements described above, where inexplicably purged and have never been produced to the clinic or McRae’s trial counsel.

At the 2014 hearing, Lau argued, among other things, that the contradictory statements, which prosecutors failed to disclose to McRae’s trial counsel in the absence of open-file discovery rules, entitled him to a new trial. “The statements really don’t make sense, which explains why none of the individuals who gave them were called to testify at trial,” he said. McRae was tried twice, with the first jury hung by an 8-4 vote in favor of acquittal. “The first jury could not reconcile the version of events told by the prosecution with the facts of this case. I imagine that the remaining four panelists who wanted to find McRae guilty may have changed their mind if they knew that more than four months of investigation records were missing and that, the records available, contradicted key aspects of the prosecutors’ case,” said Newman.

The clinic’s efforts at the 2014 hearing were also undermined when the informant who recanted his trial testimony in a sworn statement prior to the hearing said he could not recall whether he testified falsely or not at McRae’s trial while testifying in 2014. Although the request for a new trial was declined, the clinic continued to work on McRae’s case, finding a new opportunity in the Supreme Court’s rulings on juvenile sentencing.

New evidence and a new sentence

While preparing for the hearing before Judge Lee, which was initially scheduled for May, Lau was told by a representative for a mental health agency that had previously denied having any notes relating to its treatment of McRae prior to his incarceration, that some had, in fact, surfaced. The clinic was granted a continuance in order to review their contents, which Lau said included helpful new information.

The clinic learned that McRae had attended an appointment with his mental health provider on the day of the murder, with notes indicating that he was doing well and expressing an interest in securing a job. There was no mention of a friend accompanying him to the appointment, undermining the testimony of one critical trial witness who said that he and McRae had spent that entire day together during which they conducted a botched drug deal that later motivated Rankin’s murder. Neither was there mention in the records of McRae’s fascination with the works of Stokely Carmichael and Malcolm X, or any belief that white people should be harmed, the murder motive alleged by the jailhouse informant who later recanted his testimony.

The fact that McRae’s original defense lawyer never contacted the mental health provider after receiving a small subset of records led the clinic to amend the Motion for Appropriate relief to include an additional claim of ineffective assistance of counsel. “Obviously you want to know who is with your client, and what his activities were on the day he has supposedly committed a murder,” Lau said. “Had Derrick’s lawyer spoken with the mental health provider or tried to get these records, he would have learned some things that undermined the testimony of the two witnesses who already had questionable credibility.”

With Judge Lee’s decision to defer a hearing on the new claim to a later date, the September hearing focused on factors mitigating against a sentence of life without parole, and how McRae might be reintegrated into the community after any eventual release. Family members, including McRae’s mother, testified about the “significant abuse” he received from his father during childhood, and mental health professionals discussed his schizophrenia, behavior in prison, and the possibility of successful treatment in a community setting. A psychologist who has worked with McRae in prison was a particularly strong witness, Lau said.

“He testified that Derrick was not aggressive, he was nonviolent, he got along well with everyone, he respected authority, and, in fact, felt like he had let people down whenever he received an infraction while incarcerated,” said Lau. “One of the symptoms of his schizophrenia is a compulsion to take things apart, which he sometimes couldn’t put back together, resulting in infractions for what’s called ‘no-threat contraband.’ The psychologist testified that he would feel like he let his doctors down following these infractions.”

In pursuing the claim of ineffective assistance of counsel, the clinic team will have to prove that McRae’s original attorney didn’t perform to a basic standard, resulting in prejudice to his client’s defense.

“I think we have strong arguments that McRae’s counsel was ineffective,” Lau said. “And in the meantime we will keep working to find more information to exonerate McRae.”