North Carolina creates a new route to exoneration

Eighty-five percent of all executions in the US take place in the South.

For that reason alone, anti-death penalty activists claimed a major victory when North Carolina last week became the first state in the union to establish a government commission that will review evidence and, if warranted, send a recommendation of innocence to a three-judge panel.

The creation of the North Carolina Innocence Inquiry Commission fits in with a broader national inquiry into the moral responsibility of legal executions. In North Carolina, it was primarily those who work inside the justice system who helped bring about the commission.

It's an idea with appeal: Lawmakers in at least 12 other states – including Texas, where nearly half of all executions take place each year – are considering filing similar legislation next year, according to the National Coalition to Abolish the Death Penalty.

"North Carolina is now the center of gravity in the death penalty debate," says David Elliot of the coalition. "That's significant because the death penalty increasingly is a Southern phenomenon."

There are 188 convicts in North Carolina on death row. After the high-profile exonerations of death row inmate Alan Gell and "lifer" Darryl Hunt in the state, a judicial review committee found a proliferation of both large and small mistakes that cast a shadow on the state's justice system. For one: 80 percent of freed prisoners were exonerated because of faulty eyewitness accounts. That opened some eyes, including those of then-Supreme Court Chief Justice I. Beverly Lake.

"We realized we had a problem and that we needed to take a look at what was causing these wrongful convictions and how we might correct the mistakes that were being made," says Judge Lake, a conservative jurist and death penalty supporter who led the reform effort.

The commission, signed into law by Gov. Mike Easley (D) last Thursday, is expected to convene in November.

The state's two top justices – the chiefs of the state Supreme Court and state Appeals Court – will appoint a panel that the law says must include a member of the general public, a sheriff, a victims' advocate, a criminal defense lawyer, a prosecutor, and a state Superior Court judge. The commission will also have a full staff, including two investigators, who will pore through applications.

Judge Lake says perhaps 30 percent of cases will have enough merit to warrant further investigation. Perhaps 10 percent will receive a commission hearing.

"Certainly there will be a flood, but most of them will be screened out immediately," says state Rep. Joe Hackney (D), an architect of the committee that led to the commission's creation. "There'll be a few that get investigated, even fewer where there's relief granted. Maybe even none."

Five of eight commissioners must agree to pass it on to a three-judge panel, which has to vote unanimously to exonerate a convicted inmate. The commission will look at new evidence that's come to light since the trial, but will not consider legal technicalities. It can take years of appeals in many states before the appellate system looks at evidence that was not introduced to the jury at trial.

"The innocence commission is a response to the fact that our system doesn't have a process for reevaluating the innocence or guilt of somebody who has been convicted," says Sam Gross, a law professor at the University of Michigan Law School. "There's a hole in the middle of the process."

But critics say that many states – including Texas – have laws that allow such "actual innocence" claims to be litigated early on in the appeals process. Many death penalty proponents – and critics – agree that there's no irrefutable proof that any innocent person has been executed in the US since the death penalty was reinstated in 1976. Proponents say this proves the system works.

Prosecutors, too, wonder whether the commission will work. An early proposal, which would have allowed those who pleaded guilty in court to claim innocence, was changed so that they will have to wait two years to apply.

"Everybody in prison says they're innocent, so our concern was that if you open it up to all guilty pleas, it would swamp the commission before it ever got started," says Peg Dorer, director of the North Carolina Conference of District Attorneys in Raleigh.

Some see the innocence commission as a victory for activists in one of the busiest death penalty states among the 37 that allow capital punishment. Dozens of communities and hundreds of businesses and churches have called for a moratorium on the death penalty.

The Raleigh-Durham-Chapel Hill "Triangle," a politically left-leaning part of the state, has become a wellspring for activists. At North Carolina's Central Prison in Raleigh – the site of death row and the execution chamber – protesters have engaged in acts of civil disobedience in the driveway to the prison.

Yet even some activists who oppose the death penalty have concerns about the motivations behind the new commission.

"[Commission members] all have their own biases, so how fair is it going to be?" says Scott Langley, an activist in Raleigh. "Time will tell."

For some, the new law offers renewed hope. Roberta and Elmer McNeill have been fighting for 13 years to free their son, Elmer Ray McNeill Jr., who they say is innocent despite his conviction for the murder of two grocery store clerks in an armed robbery.

At a recent gathering at a Raleigh church, the McNeills told a small group of activists that the prosecutor tricked the judge and later met jurors for lunch during the trial. If so, that would be grounds for an appeal.

Said John Strange, of the People of Faith Against the Death Penalty: "I imagine that when you tell friends or you tell strangers this story, they don't believe you."

"No, they don't," said Ms. McNeill.

Perhaps now somebody will. The McNeills say they will be among the first to file papers when the commission opens.

• Jesse DeConto in Chapel Hill, N.C., contributed to this report.