Charlotte Lawyer Helps to Free Wrongly Convicted Man Through Unique N.C. Agency

Article Date: Tuesday, November 08, 2011

Written By: Charles Harmon

After 11 years in prison for second degree murder, Kenneth Kagonyera and Robert Wilcoxson challenged their convictions by petitioning the North Carolina Innocence Inquiry Commission ("Commission"). In late September, a three-judge panel overturned the convictions of Kagonyera and Wilcoxson, and released them from prison. I interviewed Chris Fialko, who represented Wilcoxson.

Background on Case and North Carolina Innocence Inquiry
The Commission is a unique state agency that was founded in 2006 to investigate and evaluate post-conviction claims of factual innocence. Convicted individuals, governmental bodies, and agents can initiate claims. Once it receives a claim, the Commission performs an initial investigation and decides whether the case merits a formal inquiry. Fewer than two percent of claims are moved into the formal inquiry stage. After a case is moved in the formal inquiry stage, the convicted person's right to counsel becomes effective. Significantly, the convicted person must sign an agreement agreeing to cooperate with the Commission, agreeing to provide full disclosure regarding all inquiry requirements to the Commission, and waiving his or her procedural safeguards and privileges (including attorney-client privilege).

After evidence has been collected during the formal inquiry stage and the Commission's staff has prepared a written report, cases that have not been rejected are referred to the eight members of the Commission, which decides whether there is sufficient evidence of factual innocence to merit judicial review. If a case is recommended for judicial review, the Commission asks the Chief Justice of the North Carolina Supreme Court to commission a three-judge panel to hear evidence relevant to the Commission's recommendation. A unanimous vote is required for the three-judge panel to overturn convictions.

After seven days of testimony, on Thursday, Sept. 22, 2011, the three-judge panel commissioned to hear Kagonyera and Wilcoxson's claims of innocence voted unanimously to overturn their convictions for the murder of Walter Bowman. The two men had spent over 10 years in prison. Kagonyera and Wilcoxson have maintained that they only pled guilty to avoid being charged with first degree murder and facing the death penalty or a life-long prison sentence.

Interview with Chris Fialko
Q: How did you get involved with this case and Mr. Wilcoxson?
A: I got a call from Indigent Defense Services, which is the entity that pays for appointed lawyers. The Commission had already been investigating the case. Mr. Kagonyera was represented by Noell Tin. Mr. Wilcoxson ended up my client. The case was going to go to a Commission hearing, which was not adversarial. The Commission's staff presents evidence to an eight person Commission and if the Commission votes that there is substantial evidence of innocence then it gets to go to a three-judge panel, which is an adversarial hearing. All of which I didn't know back then.

In January they asked me to represent Wilcoxson, I guess represent him is a strong word. I had to advise him, because in order for the Commission to take anybody's case the defendant is required to give up much of his or her criminal procedural constitutional rights. For example, his right to remain silent, his attorney-client privilege. The Commission gets to see everything in his prior lawyers' files. My role at that point was just to explain to him a three page document about how he was waiving all of his rights if he wanted to have the Commission proceed with the investigation and hearing. So that is how I got in the case. Then on April 29 and 30 of this year they had the hearing, where Commission staff presented their evidence to the Commission, which then voted eight to zero to send the case to the three-judge panel. That's when I was re-appointed to represent and then be a "real lawyer." He had his attorney-client privilege back and I had the task of preparing the evidence to be presented to the three-judge panel. The statute says that the defendants have the burden of proof, which was quite an unusual circumstance for me. The burden of proof is to prove innocence by clear and convincing evidence. So, not only was it strange to have the burden of proof but it was also strange because clear and convincing evidence was not a burden I was familiar with.

Q: What was your role in the process?
A: My role was to represent Wilcoxson and to figure out how to present the evidence. And to find the evidence - most of it was already found by the Commission staff, but we did find some additional evidence, and then present it to the three-judge panel. Essentially, I was a trial lawyer for him, it just happened to be in an unusual trial.

Q: How long did you work on the case?
A: Well I worked on it in earnest from early May to last week, so it was a very compressed time period. But the good news is that the Commission's staff had done an amazing investigation. And they handed all of their materials over to us. So we did not have to re-invent the wheel. But we did have to re-interview all of the witnesses because you never want to put a witness up that you have not met in person.

Q: During the three-judge panel did you have to argue in front of the judges?
A: No - this was an evidentiary hearing. So we had to put on witnesses. I think we put up 22 witnesses. It was a trial essentially. The only difference being that we had the burden of proof and there was no jury.

Q: What were the particular challenges that this case presented?
A: Well the first challenge was to read and digest the huge investigation. We got a hard drive from the Commission that had hundreds of hours of audio and video interviews and thousands of pages of documents. I did my own chronology of the case and I think I had 81 potential witnesses, which is insane. So the first challenge was to learn about the case. And then the second challenge for me was logistics. I have a new-found respect for prosecutors, and how they have to marshal all the evidence into court. So logistically it was a whole new endeavor for me to have all the witnesses subpoenaed, to get them to court on particular days, to compile exhibits - I think we had 115 exhibits that we put into evidence. So the logistics of it were a challenge to me, but a challenge which I ended up enjoying. Most of the time as a criminal defense attorney you are simply cross-examining the State's witnesses and they magically appear because the State has does all this hard work that I had to do in this case.
The other challenge for me was that the case was in Asheville and I am in Charlotte. The strategy I forced myself to adopt was that for the entire summer every Thursday morning I drove to Asheville and spent the day there interviewing witnesses and investigating. Then I would stay the night there and spend Friday doing the same, and then drive back to Charlotte. Although I enjoy Asheville, that was a long time away from the family. I spent essentially from July 15 to September 22 basically working only on this case.

Q: Do you have any views on the process? Did you find it adequate?
A: I found the whole process exhausting, but rewarding. I have to get a little deep on you here. I think that the Commission is an amazing tool for establishing innocence. And I am very glad my client had that tool to work with. But, for the much of the case it is an inquisitorial procedure, which gives me great pause, being a criminal defense lawyer and knowing that our judicial system is based on an adversarial system with procedural rights. I sometimes worry in the long run - if the Commission exists for a long time, which I hope it does - I really do not want it to set a precedent for other inquisitorial courts to be set up. So I do have that misgiving. On the other hand, North Carolina would not have found out that these guys were innocent without the Commission and without its staff, specifically the main investigator Jamie Lau. Jamie did a phenomenal and tireless job investigating this case in a hostile environment in Buncombe County.

Q: Do you see other states creating agencies like the North Carolina Innocence Inquiry Commission?
A: I do not know. What I hope will happen is that North Carolina and other states will learn lessons like identification procedures being biased, DNA evidence leading to exonerations, and so forth. And use those lessons in our current Superior Court procedures. And if that would happen more often there would be less of a need for innocence inquiry commissions. As far as other states having innocence inquiry commissions, we have now shown that this model works. So if other states are looking for a model, ours seems to be a good one.

Q: Do you think the defendants pleading guilty made it harder for their convictions to get overturned, compared to if they had a trial?
A: Because there was no trial in this case, the evidence was not tested. For example, at the time these charges were pending there was an SBI report of DNA excluding all six of the defendants from the DNA found on the bandanas and gloves. It does not appear that the report was given to the defense lawyers for the defendants. If there had been a trial, I would hope that the defendants' lawyers would have found out about this DNA evidence and who knows what would have happened at trial. But things would have come to light sooner. So, I think the fact that the defendants pled guilty kept the defense lawyers and the judges from really examining the evidence.

And the other main problem with the evidence in this case was that there were false confessions by the defendants - my client never confessed - but four others did. If you look very closely at those confessions, they seem all very shaky. There is great conflict between the confessions. For example, there were three different versions of who the shooter was, which is impossible because there was only one shooter. And among the confessions there are different versions of how many people were in the house. The eyewitnesses of the murder uniformly said that only three guys came in the home. So there were numerous avenues that the evidence could have been tested if there was a trial. The defense lawyers in the case did not do the greatest job and three of them testified and agreed with that. If we want to keep innocent people from getting convicted, much of the obligation is on defense lawyers to do better - as well as on the State to turn over exculpatory evidence. Also, in this case the detectives needed to be, well, a little more industrious.

In this case a lot of rare events happened. The first one was that, a day and a half after the killing, the first Crime Stoppers report comes in and it names Bradford Summey, Lacy Pickens, and Robert Rutherford as the killers. It turns out that those men are likely the real killers. What happened is that one of the detectives wrote on that Crime Stoppers form that Lacy Pickens had to gone to jail on September 1, and therefore he was in jail at the time of the homicide. That was not true. He was serving weekends only, so he was out during the time of the murder. So it appears that the detective discredited that lead entirely and focused on other suspects. So that is the first rare thing that happened.

The second rare event was that Larry Williams, who was sixteen at the time, was interrogated a couple of times, and denied any involvement in the murder. But then he was brought down from jail and put in room with the elected District Attorney and the elected Sheriff, and without detectives in the room, which was a very odd thing. Then the Sheriff walked out and said that Williams would confess now, which is strange as well. And that Sheriff is now serving fifteen years in federal prison for unrelated offenses.
The other rare thing is that the exculpatory DNA evidence did not end up with the defendants' lawyers.
There were confluences of weird and rare things that caused these false convictions.

Q: Do you think the issue of innocent defendants pleading guilty to avoid harsher sentences is a problem in the justice system?
A: I think it is an unavoidable consequence of three things. One is the adversarial system, where prosecutors are supposed to charge hard. Two is the trend of consistently increasing punishment for offenses. The third is that North Carolina has the felony murder rule, which says that if you are engaged in a felony and then someone gets killed, regardless of whether you intended to kill them, you can be convicted of first degree murder. Those three things combine to cause defendants to sometimes to have to make a horrible choice: to roll the dice and go to trial and risk getting life in prison or death, or take a plea deal to something they are innocent of and spend ten to twenty years in prison to avoid life in prison or death. Unfortunately, I do not think that is going to change much.

Q: How did it make you feel to see your client get his conviction overturned and see his family after over 10 years in prison?
A: It was a once in a career event. It was amazing and fun. After the judges made their decision they brought the defendants back to the jail and they were going to release them from there. Then the Department of Corrections said they could not release them until they finished their paperwork, and we struggled with that for two hours. When I finally walked Robert out of the jail that afternoon, it was an amazing, rewarding experience.

Q: How do you feel about the proposed law that would bar defendants who have pled guilty to a crime from having their claims reviewed by the Commission?
A: Well, I think this case is clear evidence that it is a bad idea. These were three judges who know nothing about the case before it was started and they found that our clients were innocent by clear and convincing evidence. So, that Bill does not make sense to me. If you got one example of it clearly happening why would you shut off other folks? If North Carolina wants to have confidence that people that are convicted are guilty than this review mechanism is a good thing. I hope that Bill does not go anywhere. I know the district attorneys do not like the Commission. I do not blame them. But I hope district attorneys realize that the Commission is not out to get district attorneys. They are out to figure out the rare times where the system has made a mistake and someone been incarnated even though they are innocent.

Q: What was the biggest hurdle you faced?
A: Actually, there was not one hurdle I can think of. I think it was the part that they never show on the Law and Order television shows, where you have to logistically learn the case, read everything, interview the witnesses, get them to court, and have them testify in a fashion that is understandable to the judges.

Q: Were you confident throughout the process that Mr. Wilcoxson's conviction would be overturned?
A: I was not skeptical. Once I had spent the time reading everything, it became pretty clear that these three other guys were the real murderers and that my client was innocent. I was confident that we had enough evidence to prove my client's innocence, but I was still apprehensive because I never have the burden of proof. And we had to translate everything we knew from the investigation into live witnesses. It is a lot harder than it looks to get evidence you know exists into the courtroom and have it come out in an understandable fashion. So, I was confident throughout, but you never know.

Q: Do you any other thoughts on the case?
A: I do have one thought. I learned from this case is that it is not healthy for any county to have a district attorney as powerful as the district attorney was in Buncombe. Almost every witness we interviewed was very wary of our case largely because they feared the district attorney. •

End Notes
1. Most of these facts are taken from the Commission's brief available at http://www.innocencecommission-nc.gov/kagonyera.html. For a more comprehensive discussion of the facts of this case, please see the Commission's brief.

Fialko is a criminal defense attorney in Charlotte, and a partner at the firm of Rudolf, Widenhouse & Fialko.

Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.