When did you get involved in this case?
... Our office was appointed by Judge Jenkins to represent Terence on appeal.
It was just my turn to get a new case, so it came on to my desk. By that time,
of course, Deloach had confessed, and Riddick was out there saying that he had
perjured himself. So it was obviously an unusual case. ...
Why did it become so important to you?
... Whether this case came at just the wrong time or the right time, I'm not
sure which. But it was the straw that broke the camel's back. I just said, "I
can't do it any more. I can't take one more case of an innocent person being in
prison and there's just nothing I can do about it." And I remember telling
Terence early on, "If I can't get you out of prison, I'm not going to be a
lawyer anymore. And I mean that." And I meant it at the time.
Why are you so sure he's innocent?
Part of it is having talked with him. Part of it is just the overwhelming
objective evidence that he is innocent. And it's just made it abundantly clear
to me that he's an innocent kid.
And what's the evidence indicating this?
The fact that somebody else confessed to the crime was the big thing. And then
the fact that Keith Riddick admitted that he perjured himself about who the
"Terence" was at the crime, and said that it wasn't Terence Garner, my client
[who did it]; it was Terrance Deloach, his cousin from New York, who was living
with Kim at just the apartment that Henderson said he would be.The fact that Henderson has said from the start that Garner was not the one...
You stack it up, and it's just hard to believe that Terence Garner really did
this and all these people are lying for him. I just don't believe that. I
believe that Terence Garner is innocent, and that the eyewitnesses who say he
was there are mistaken. ...
What was the basis of your appeal?
As with any appeal, the first thing you do is look at what happened at the
trial itself, and argue that some of the rulings that Judge Jenkins made during
the trial itself were unfair. There were several of those. The most significant
one, I believe, is that Judge Jenkins turned us down for an eyewitness
identification expert. We wanted to show the jury the problems with eyewitness
identification.So there are rulings that the judge makes that we don't like; that is the basis
of any appeal. In this case, we also had the Motion for Appropriate Relief, a
hearing that we got after Deloach confessed, and after Riddick admitted his
perjury.All of that was presented to Judge Jenkins, and the judge had to decide whether
or not to grant us a new trial. The judge heard the evidence, [and] said, "I
don't believe Deloach's confession. I don't believe Riddick's admission to
perjury. What I believe is Alice Wise and what I believe is Charles Woodard."
And therefore he turned us down for a new trial. That was one of the things we
appealed.
Why did he deny a new trial?
The judge claims to be very persuaded by the eyewitness identification of Alice
Wise particularly, and also of Charles Woodard. It appears that no matter what
else he hears, he's going to insist that Terence Garner is guilty because Alice
Wise says he is.It was difficult for me to believe that he could maintain that belief in the
face of Riddick's admission that he perjured himself, of Deloach's confession,
Henderson's statements, testimony that Garner was not involved. ... It's hard
for me to believe that he could continue to believe Alice Wise and Charles
Woodard, but he claims to.
What is your theory?
We have a written confession, about five or six pages from Deloach. We don't
have any record of what happened once Deloach was taken back to Johnston
County. We do know that he was questioned for four-and-a-half hours. We know
that for most of that time, he continued to say that he was guilty. He must
have been confused. Toward the end of the interrogation -- we're talking 11
o'clock at night, after he had been in custody at Johnston County for several
hours -- he is supposed to have said, "OK, you got the right guy after all. It
was Garner. I didn't have anything to do with it."I don't know what happened. I know that when the Wayne County detectives
brought Deloach to Johnston County, they were not overjoyed that Deloach had
confessed. ... The comments I got were that they were concerned about the
upcoming election, they were concerned about what this might mean to their job
if they had gotten the wrong person convicted and so forth. So they weren't
embracing Deloach's confession. And sure enough, four-and-a-half hours later,
Deloach took that confession back.
Trying to reverse his own judgment?
Yes. And that's one of the things that we're going to complain in state court
and also go to federal court, to say it's just not fair to have to go back to
the same judge that you've been tried by and try to convince that judge ...
that you're entitled to a new trial. Many judges -- and Judge Jenkins being one
of them -- form an opinion about the guilt of the defendant during the course
of that trial. And then to ask that same judge to essentially reverse his own
beliefs is very difficult, and at least, we're going to argue, is
unconstitutional.
Isn't that the system?
That is the system, yes. The system is that a motion for a new trial like this
goes back, and the chief resident Superior Court judge assigns the case to an
appropriate judge. Well, in this case, the chief resident Superior Court judge
is Judge Jenkins. So he assigned himself to hear this trial. ... He could have
assigned it to another judge; he may in the future assign it to another judge.
But for now, he assigned it to himself.
What happened in Court of Appeals?
It's usual for the Court of Appeals to defer to the trial judge on most things.
I was disappointed that the Court of Appeals deferred to Judge Jenkins in this
case. I argued that Judge Jenkins' ruling was just not reasonable; that given
the amount of evidence we had that Garner is innocent, we would at least be
entitled to a jury trial. Let a jury hear it all, let them hear Alice Wise and
Charles Woodard. Let them also hear Deloach and Riddick and Henderson and
Bertha Miller. Let's let them hear everything and decide. I think a jury
hearing all the evidence would acquit Terence Garner. And that's where we are
now -- trying to get in front of a jury. We have to go through a judge to get
to the jury.
The jury never heard of Terrance Deloach.
... The jury at the trial never heard about Terrance Deloach, and of course
they never heard Riddick say that he perjured himself, either. They did hear
from Henderson that Terence Garner was not the right Terence. ...
What is still open?
Two things are open to us. There are some federal issues that can be taken into
federal district court. It's called "a petition for writ of habeas corpus," and
I expect that we'll be doing that in the near future. The other is to do yet
another motion for appropriate relief in state court to present yet more new
evidence of Terence's innocence in order to get a Superior Court judge to order
a new trial.
Have you ever seen a case like this?
... I've never had a case like this. I've had a case where I believe my client
to be innocent, and my client tells me that they're innocent. That's not
unusual. I have cases where I believe that the client's innocent, and their
mother calls me up and says that they're innocent. I've had cases where their
defense lawyer believes that they're innocent, and so forth.But I've never had a case where this many people have said that my client is
innocent, and they're people who, if they have an interest at all, have an
interest in saying he's guilty. They don't have an interest in saying he's
innocent. Keith Riddick doesn't have anything to gain by saying Terence Garner
is innocent, and potentially things to lose; he has all along. Henderson -- why
should he care whether it's Terence Garner or Terrance Deloach? Yet he
continues to say it's Terence Garner. ...
Deloach confessed and then he took it back, but people... So he lied, either
lied when he confessed or lied when he took his confession back. But we know
that people don't lie to get themselves into trouble; they lie to get
themselves out of trouble. Why would Terrance Deloach say that Terence Garner
was innocent if that weren't true? So, no, I've never had another case where
there are that many people saying that my client is innocent.
Why are you putting in so much work on this?
... I'm a volunteer lawyer now -- I don't know how many hundreds of hours. I
haven't bothered to keep track of them, because there's nobody to bill them
for, so why I do it? It's hard to say. There's something about this case that
stuck with me and said, "This is the one. This is the case that I'm going to go
to the mat on. This is the case that is going to define whether I continue to
be a lawyer or not."I don't know why it's Terence rather than somebody else. Maybe it's the time
that I got the case. Maybe it's something about him. Maybe it's something about
the whole atmosphere of this case in the appearance at least of terrible
impropriety in Johnston County. Maybe it's some combination of that.But it became very important for me to get Terence Garner out of prison, and if
I couldn't do it, I didn't want to be a lawyer any more. So I want to be a
lawyer some more, so I'm going to have to get him out of prison. ...
What bothered you most?
What bothered me is that the only thing standing between my client and freedom
is eyewitness identification. And it's weak. It sounds good; juries eat it up,
but it's very weak. We know that eyewitness is not good testimony, not good
evidence.We know that's particularly true if you've got two different races involved. We
know that's particularly true if there's a gun involved. The experts tell us
that, when there's a gun involved, the witness is focusing on the tip of that
barrel, not the eyes of the person holding the pistol. So the fact troubled me
that everything depended on eyewitness identification, and that the
identification itself was weak.We know that Alice Wise first saw Terence and first identified him when he was
in an orange jumpsuit, shackled to Kendrick Henderson, going into the
courtroom. She hadn't been able to identify him before that. But now that she
saw him with Henderson, she was relieved, apparently, that the prosecution had
arrested him. And she had seen his picture in the paper, by that time
incidentally, as being one of the suspects. So we knew her identification was
not very strong. But she made a terrific witness, and I'm sure that the jury
was very willing to believe her. ...
How easy is the road ahead?
It's difficult. Once somebody has been convicted, once their appeals are over,
there is an enormous burden placed upon him to go back into court and to get
another trial. And in this case, there's already been one motion for
appropriate relief hearing in addition to the trial. We presented that to the
Court of Appeals, and that wasn't good enough. So the burden gets progressively
heavier the longer this goes on.There are things we can do. We'll have to come up with additional new evidence
to make another motion, but it'll be difficult. We'll have to ask whoever
reviews this to consider not only the evidence that we're able to come up with
that nobody has heard yet, but to go back and revisit all the evidence that has
already been heard.
You're an investigator now?
Yes, for a long time. We got a couple of volunteers to do a little bit for us
early on, and we haven't had a defense fund to pay some investigators, and then
Bob Emerson came along. Bob [is a] retired FBI lawman, tough guy, forever. [He]
read about the case in the newspaper, got interested in the case, and has been
donating hundreds of hours to look over old police reports, to interview
witnesses. We'll get in the car and drive down to Goldsboro and try to talk to
folks and so forth.So yes, most of what we're doing now is investigation. Once we feel that we
have enough new evidence -- however we define that -- we'll go back into court.
But for the time being, we're sort of getting our hands dirty by doing some
real live investigations.
You have facts; it's a question of getting someone to believe?
... We've had enough new evidence for four new trials. It just hasn't been
enough to convince the one person that matters that we've got enough. And to
this point, that person has been Judge Jenkins.
Why is the judge so determined?
I have to believe that he believes that he has convicted and presided over
somebody being convicted who is really guilty, who did a horrible thing, who
shot Alice Wise in the face and dragged people around and hit them over the
head and robbed them and so forth.I feel that judges generally want to believe that they've given criminal
defendants a fair trial, and once the trial is over, that's the end of it. And
certainly once the appeal is over, that should be the end of it. So I
suppose that any judge, Judge Jenkins no less, believes that the book is closed
on Terence Garner, and it's a waste of everybody's time and money and energy to
try to reopen that book. ...
Going back to eyewitness identification why do you feel it was so important
to have been able to have an identification expert testify in the
trial--something the judge disallowed?
What we're learning about eyewitness identification is that, first of all, the
certainty of the witness has absolutely nothing to do with their reliability as
a witness. Judge Jenkins was very impressed with Alice Wise's certainty, with
Charles Woodard's certainty. The judge said, "Well, they're that certain; it
must be true."We know that that's not what the science tells us about eyewitness
identification. So we know that's one of the problems, and that's one of the
things that an eyewitness identification expert could have explained to the
jury, talked about with the jury -- the cross-racial identification. Alice Wise
and Charles Woodard are both white. All of the perpetrators were black. Science
will tell us that it's very difficult for white people to make reliable
identifications of black people and vice versa. We know that when there's a
weapon involved, an eyewitness is less likely to make an accurate
identification of the person holding the gun, because it's not the person
holding the gun they're looking at. It's the end of that barrel that they're
looking at. So an eyewitness identification expert could have explained to the jury things
that the jurors would not understand otherwise, but think that they do
understand. In other words, the jury is probably sitting there thinking, "If
Alice Wise is that certain, she must be right." An eyewitness identification
expert would have been able to come in and say, "No, that's not right. The fact
she's so certain has nothing to do with whether she's reliable or not."
Shouldn't the State Court of Appeals know that?
I argued that very strenuously, that we were put at an unfair disadvantage in
this case by not having our eyewitness identification expert. That didn't go.
The Court of Appeals said we didn't make a strong enough request to Judge
Jenkins, and dismissed our appeal on that basis. It is a potential federal
issue. We might be able to go into federal court and argue to a federal judge
that the state court judges apply the law incorrectly.
What are your possibilities?
The two things that are in front of us are federal court and another motion in
state court. Federal court would be a matter of arguing to a federal judge just
as I argued to the Court of Appeals -- that Judge Jenkins made mistakes at the
trial and at the hearing that violated Terence's constitutional rights. The state motion would be another motion like the ones that have already been
made, presenting yet more newly discovered evidence before the Superior Court
of Johnston County -- which is where it would have to be made -- and arguing
that certainly this new evidence, in combination with Deloach's confession and
Riddick's perjury and so forth, that surely that's enough to say that Terence
Garner needs to go back for another trial in front of a jury.
How often does that happen?
Based on my experience, it is a long shot. There are hundreds of motions like
this made, and I can only think of a handful that have resulted in a new
trial.
...
Is there a chance for parole?
We don't have parole in North Carolina any more. Terence was sentenced under a
sentencing scheme that imposes a minimum and a maximum. And that minimum, I
think, is 399 months; I could be wrong. It's a long time. That's the minimum.
There's no parole from that. There's no reduction of his sentence below that.
There's a maximum, which I think is 500-and-some months. He can work down that
maximum down to the minimum. But he can never serve less than that minimum
unless he gets a new trial, or unless the governor were to award clemency.
What can the DA do?
... If I make a motion for a new trial, the district attorney has the choice of
opposing that motion, or joining in the motion, or doing nothing. As long as he
doesn't oppose the motion, I feel confident that that motion would be granted
and Terence would get a new trial. So all I would ask for Mr. Lock to do would
be to not oppose my motion, my next motion for a new trial.
And from Judge Jenkins?
There's a question about which judge would be hearing the case. It may be that
we would be able to convince Judge Jenkins that the appearance of justice would
be better served by some other judge presiding over any other hearings in the
case. It would be in front of a Superior Court judge; whether it would be Judge
Jenkins or somebody else, if I make a motion for a new trial, it would be in
the Superior Court for Johnston County. Mr. Lock would have the decision to
either oppose or join or ignore that motion. If he doesn't oppose it, the judge
would likely grant that motion. So all I would ask from Mr. Lock would be not
to oppose the motion.
Could you appear before Judge Jenkins?
... It would be possible for a new motion for a new trial to end up in front of
Judge Jenkins. I would hope that didn't happen. I think that the judge has not
been persuaded by evidence up to this point, evidence that has persuaded a lot
of other people that Terence Garner is innocent.I think at this point for him to preside over yet another hearing in this case
would create the impression that he is personally trying to keep Terence Garner
in prison. I don't think that's the appearance that he would want to be
conveying. So I think it would be in everybody's interest for another judge to
hear any more motions in this case but by the statute, it would be up to Judge
Jenkins to make that decision.
The four-person theory?
There has been a theory that maybe all four were involved, that Terrance
Deloach was there, Terence Garner was there, Keith Riddick and Kendrick
Henderson. And that's a very convenient theory. It's very helpful to the people
who are trying to decide, "Well, is Alice Wise right? Or is Kendrick Henderson
right? Maybe they're all right. Maybe everybody was there."That would explain Alice Wise's testimony. That would explain Deloach's
confession. That would explain Riddick's perjury. Everything gets explained if
there were four robbers. Both Terence Garner and Terrance Deloach were there --
but they weren't. And one of the easiest ways of proving that they weren't
there is to look at what Mr. Lock did.Mr. Lock did not prosecute Terrance Deloach for being involved in this robbery.
He actually had warrants issued against him, and then asked for those warrants
to be returned, and said there is not enough evidence to convict Terrance
Deloach of any participation in this robbery. So the state doesn't believe
really that there are four robbers. They believe apparently that there are
three robbers, and that Terence Garner was one of them.
Any other thoughts on this case?
One of the things I argued in the Court of Appeals was that this case just
looks bad. And one of the things that looks bad about this case is that if you
line up all the people that say Terence Garner is innocent, they're black; if
you line up the people that think that Terence Garner is guilty, they're white.
And what I argued in the Court of Appeals is that not granting us a new trial
under these circumstances creates and sort of furthers the impression that
black witnesses just aren't as credible as white witnesses -- at least not in
Johnston County.
According to the Court, the two reputable people were Miss Wise and Mr.
Woodard. By implication, everybody else is not reputable. At the end of the
trial, there were, of course, three victims. There was Bertha Miller, who is
black. There is Alice Wise and Charles Woodard, both of whom are white. And
Judge Jenkins made a great point of congratulating Miss Wise and Mr. Woodard,
sympathizing with them for the pain that they've suffered and thanking them for
their courage of coming forward. Nothing -- not a word about Bertha Miller.
She wasn't credible?
Not a word.
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