Friday, February 07, 2014 10:23 PM
Murder convict's innocence claim proceeds
Both sides file documents as supporters wage 4-decade freedom fight
By Olivia Neeley | Times Staff Writer
For nearly four decades, Helen Dew remained by her cousin’s side, vowing to never give up on her cousin who she hopes will be released from prison and return home.
Dew’s cousin, Charles Ray Finch, has spent nearly 38 years in prison for a 1976 Wilson County killing he has always maintained he didn’t commit.
"Ray wouldn’t kill nobody,” the 72-year-old said. "He’s not that kind of person.”
While Finch’s attorneys continue to fight for Finch’s release, the Wilson County District Attorney’s office continues to fight to keep him behind bars. Both sides have battled the case through motions, court filings and court hearings in the past year after the Duke Wrongful Convictions Clinic filed a Motion for Appropriate Relief.
That motion lists several claims, based on what his lawyers contend is newly discovered evidence uncovered after a decade-long investigation into the case by the Duke Law Innocence Project, which is not a state innocence commission.
Recently, both parties filed court briefs laying out their case. Those briefs were ordered by a newly appointed judge who will decide Finch’s fate.
On Friday, both sides filed responses to each other’s arguments. Friday’s filing is the last step before a judge will review all materials related to the case before making a decision. Officials say they don’t know when a decision will be made, but the judge could decide to hear oral arguments.
"I’m not going to give up, whatever happens,” she said about the judge’s decision. While Dew relies on her faith to stay strong, the fight to free her cousin, whom she thinks of as a brother has been difficult.
"It’s a hard fight,” she said. "I ask the Lord to help me and to help him.”
The fight has taken a toll on the 72-year-old who has visited her cousin in every prison he moved to throughout the years.
"I’m strong, but I’m getting weak,” she said. "He’s been in there so long. And we’ve been fighting and fighting. I ask the Lord to bring him home because he’s in there for something he didn’t do.”
Dew had hoped she and others were nearing the end of that fight in November when an evidentiary hearing was held in Wilson County. But the hearing came to an abrupt halt after Wilson County Resident Superior Court Judge Milton F. Fitch Jr. recused himself from the case.
Finch is currently serving a life sentence in the killing of Richard "Shadow” Holloman, who was gunned down during a failed robbery attempt inside his country store in Black Creek in 1976.
Friday will mark 38 years in the killing as well as the arrest of Finch, whose birthday is on the same day. He will turn 76.
Finch’s attorneys contend prosecutors got the wrong man back in 1976. Not only did Finch have a solid alibi on the night of the killing, but he was nowhere near the murder scene, according to his new attorneys and testimony by defense witnesses at the original trial. Finch was gambling in downtown Wilson with several other people when the killing occurred around 9 p.m., according to trial transcripts. One witness, who Finch was playing poker with that night, testified Finch was still in the game between 9 and 10 p.m. "because somebody spoke about the liquor store being closed,” according to trial transcripts.
Finch’s lawyers contend in these filings his arrest was due to several factors, which include sloppy investigation by the sheriff’s office at that time. Other factors, they said, include a deputy sheriff who pinpointed Finch as a suspect before talking to the eyewitness, a subsequent flawed lineup, ineffective counsel during the original trial by his attorney and a trove of favorable evidence, which includes an eyewitness identification of an alternate suspect they say was withheld from Finch during his 1976 trial.
But prosecutors argue that the evidence Duke points to in the case isn’t new at all and contend the case is not one of actual innocence. They also contend Finch not only received a fair trial in 1976, but received adequate counsel from his then-attorney, Vernon Daughtridge. Prosecutors also argue that Finch’s attorneys haven’t proven any material related to the 1976 case was withheld from Finch’s defense at the time.
"The suppressed reports refute the state’s theory of how Mr. Holloman died and who killed him,” according to the defense’s court documents. "All of the state-prepared reports were suppressed by the state; none of the reports could have been discovered through the exercise of due diligence.”
But the prosecution’s brief states that Finch did not offer evidence that material was "improperly withheld or not accessible.”
"During the evidentiary hearing, the majority of what was offered included material which the record supports was in defendant’s possession at the trial of this matter,” according to the state’s filed brief.
Finch’s defense says that is simply not true and believe they’ve proven that point by uncovering various documents, including a State Bureau of Investigation ballistics report, which was not uncovered until just before Finch’s evidentiary hearing. That report revealed the shotgun shell found in Finch’s Cadillac did not match the projectile allegedly removed from Holloman’s body.
Finch’s defense said the evidence withheld is a direct violation of Brady vs. Maryland, a 1963 landmark U.S. Supreme Court case, which requires prosecutors to disclose any favorable evidence to the defense, whether or not the defense specifically requests it.
Dew said shortly after her cousin’s arrest in 1976, she went to see him in jail.
"Helen, I ain’t shot nobody,” Dew said Finch told her. "I didn’t do that.”
And Dew believes him.
Dew said her cousin’s 1976 capital murder trial was difficult.
And after a jury found Finch guilty, a judge sentenced him to die in the gas chamber in October 1976. But on the same day he was sentenced to death, the U.S. Supreme Court ruled North Carolina’s mandatory death penalty law was unconstitutional.
Dew said God answered her prayer. She said her cousin could have died for a murder he didn’t commit.
"I was just thanking the Lord he did that,” she said about U.S. Supreme Court decision.
Finch’s sentence was commuted to life.
Dew said every time she goes to visit Finch she tries not to cry in front of him. She remains strong.
"It just tears my heart up that he’s in there,” she said.
"I’m going to get out one day,” Finch assures her.
LINEUPS, INVESTIGATOR’S TESTIMONY
What largely led to Finch’s 1976 conviction was a flawed lineup, his attorneys and experts said. On the night Finch was arrested in Holloman’s killing, the sheriff’s office placed him in a live lineup with several other black men. Finch stood out among the other men due to the fact he was the only suspect wearing a three-quarter-length coat, according to the new filing.
The fact that Finch was the only one wearing a coat in all three lineups suggested he was the man the sole eyewitness to the killing, Lester Floyd Jones, should or could identify, according to court documents. The coat, his attorney’s contend, was a "cue” for Jones to pick out Finch as the killer. Experts have said that the evidence of "strong cues,” such as Finch being the only one wearing a dark coat in the lineup, could mislead a witness in making a positive identification. And repeated attempts in the lineups, which in Finch’s case were three times, would also build confidence in the witness’ identification, experts have said. During Finch’s Nov. 13 evidentiary hearing, Tony Owens, former Wilson County sheriff’s chief deputy and lead investigator in the murder case, admitted the lineups he staged were unfair.
"... If a man recognizes you, he recognizes you by your facial features, not what you got on,” Owens testified without viewing the original photographs of the live lineups. "Ray Finch didn’t have that coat on. The man identified him without the coat on.”
But when Finch’s defense attorney showed Owens those photographs depicting Finch as the only one wearing a dark coat, Owens told the court he didn’t think he had put the coat on Finch. He told the court he no idea why he did it, according to court documents.
But prosecutors argue in their January court brief that the cross-examination of Owens during the November hearing is not considered new evidence.
"… all that occurred was a more skillful use of trial exhibits 34 years after the fact,” prosecutors’ court documents stated.
Prosecutors also contend Owens’ opinion to fairness of the lineups doesn’t equate to new evidence either.
IN OR OUT?
Finch’s attorneys also argue that Finch’s defense counsel failed at the 1976 trial when Daughtridge didn’t challenge the suggestiveness in Finch’s lineups. And that he should have known to challenge that particular part, citing in their court filing that as early as 1969 the U.S. Supreme Court "condemned” a lineup procedure "unduly suggestive” and it would be a "violation of a defendant’s due process rights” under the Constitution.
Raleigh attorney Joseph B. Cheshire V, part of the team that cleared former Duke University lacrosse players, testified on behalf of the defense in November that Daughtridge fell "below the standard of a competent criminal defense lawyer in 1976,” according to court documents. Cheshire told the court the state’s case in 1976 was based "almost all or entirely” on the eyewitness’ identification.
But prosecutors argue that Daughtridge "fell within the range of acceptable performance” under the law, according to filed briefs. And that failing to suppress the lineup identification of Finch during the trial could have been a part of his strategy. Prosecutors also cited an excerpt from Cheshire’s testimony in November, saying that Finch’s counsel didn’t do a bad job for how lawyers did back then.
"… What the court should do is consider the representation in the context of the norms prevailing in 1976,” prosecutor’s filed brief stated. "This type of analysis leads one to exactly the same conclusion as that of defendant’s expert: Trial counsel did not do a bad job for the way lawyers did back then.”
Prosecutors said the 1976 trial transcripts support that conclusion.
But Cheshire also testified he didn’t think the identification would withstand appellate scrutiny. And if the identification had been ruled as suggestible, Cheshire testified the case against Finch would not have survived a motion to dismiss.
‘IT OPENED THE DOOR’
Through the years, several motions for appropriate relief were filed. All were denied. Finch also reached out to anyone who would listen to him regarding his case. He previously contacted the American Civil Liberties Union and the NAACP. No one responded. But Dew continued to pray for someone to help her cousin’s case. She always knew God would make a way, she said.
The Duke Innocence Project responded to Finch’s letter he wrote to them seeking help. Duke got involved in 2001 and the effort continues. Finch was their first case and major investigation.
"It opened the door,” Dew said about Duke. "I prayed to the Lord to help him and send somebody who could help. I couldn’t help. I couldn’t do nothing.”
She’s grateful they stepped in to help.
And Dew said the team, who stays in close contact with her about her cousin’s case, faced many roadblocks throughout the years.
NEVER GIVING UP ON EACH OTHER
Dew recalled many times she and her cousin shared together, especially when they were younger. Sometimes they would drive out in the country on a dirt road. He would push the gas pedal while she learned how to steer.
"I’m going to teach you how to drive a car,” Finch told her. "I’m going to teach you how to get your license.”
She was nervous learning and made a few mistakes. But eventually, Finch’s persistence and patience paid off. He never gave up.
"I got my driver’s license,” she said with smile.
Dew said Finch is a good person who always tried to help others. And if she was in his position, he would fight for her.
"I would do anything in the world for him, cause he’d do anything in the world for me,” the 72-year-old said. "I will never give up.”
Coming next week: More details in the filing.
©The Wilson Times, Wilson, North Carolina.
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