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Legal experts: Pardon Wilmington Ten
Prosecution bias resulted in activists' convictions
Published Tuesday, November 6, 2012 9:48 am
by Cash Michaels, Wilmington Journal

WILMINGTON – Revelations about former Assistant New Hanover County district attorney James “Jay” Stroud Jr.’s racial jury gerrymandering, and his plot to cause a mistrial to impanel a “KKK” type jury in the Wilmington Ten case forty years ago were “stunning and beyond outrage,” say two veteran civil rights attorneys.

Those facts alone, they add, justify individual pardons of innocence from N.C. Gov. Beverly Perdue for the Wilmington Ten.

“It is stunning, and beyond outrage, to learn the level of prosecutorial abuse that dominated, infected, and ultimately drove the outcome in the Wilmington Ten trials,” says Gene R. Nichol, Boyd Tinsley distinguished professor at the UNC School of Law at UNC Chapel Hill, after reviewing portions of what is now known as “the Stroud files.”
“This intense abuse of governmental authority, prosecutorial misconduct — both professional and racial — casts a long shadow over the North Carolina system of justice, Nichol continued. “It also, of course, worked massive and unforgivable constitutional injury on the lives of 10 North Carolinians.”

“The prosecutor made mockery of his high office by knowingly, intentionally, and purposefully placing perjured testimony at the heart of the trial. It is also clear now, in ways not demonstrated by documentary evidence before, that he tainted the trial initiation process and vital jury selection through patent, overt, and outcome-determinative racism.”

“It is crucial that North Carolina act to admit and concede such a potent and defining abuse of power,” Nichol maintains. “To allow public servants to behave in such a fashion, without remedy, is literally intolerable.”

Al McSurely, a veteran Chapel Hill civil rights attorney and NCNAACP Executive Committee member, also expressed his “outrage.”
“The prosecutor’s notes are clear and convincing evidence that race was not just a factor in his selection of the 10 whites and two blacks on the Pender jury that convicted the Wilmington Ten,” McSurely said. “Race was the only factor.  Forty years later, we know his real motives. I believe when the governor studies this evidence, she will do the right thing and sign the pardons.”

“I can barely contain my outrage at the blatant racism of an officer of the court,” McSurely added.

This stinging legal analysis comes after the fortieth anniversary of the convictions of the ten civil rights activists for crimes they maintain they did not commit.

On Oct. 17, 1972, nine young black males and one white female – all led by the Rev. Benjamin Chavis of the United Church of Christ – were convicted during their second trial of conspiracy in connection with racial violence that gripped Wilmington in February 1971.
The Stroud files now cast a large shadow over those convictions.

“The Ten,” as some call them, were sentenced collectively to 282 years in prison, some of which they all served before worldwide public pressure forced early releases. In 1976, Amnesty International, a respected international social justice agency, labeled the Wilmington Ten “political prisoners” because they were targeted only after they protested racial discrimination in their local public school system five years earlier.

In 1977, the three witnesses on whose testimony the activists were convicted recanted their testimonies before a grand jury, saying that state prosecutor Jay Stroud paid them to lie with gifts and privileges. The CBS News program “60 Minutes” broadcast an expose’ on the fabrication of evidence in the case, strongly suggesting a false prosecution.

And in 1980, the U.S. Fourth Circuit Court of Appeals, citing prosecutorial misconduct on Stroud’s part, among other issues, overturned all ten convictions. But the state of North Carolina has upheld those convictions for the past 32 years.

It was not until 2011, when the National Newspaper Publishers Association – an association of over 200 African-American newspapers across the nation – voted to officially seek pardons of innocence for the Wilmington Ten, did the effort to legally address the issue begin in earnest, and the Wilmington Ten Pardons of Innocence Project was born.

On May 17, a legal petition of pardons of actual innocence was formally submitted to Gov. Beverly Perdue’s Office of Executive Clemency on behalf of Chavis; Wayne Moore; Marvin “Chili” Patrick; Reginald Epps; James “Bun” McKoy; Willie Earl Vereen; William “Joe” Wright; Jerry Jacobs; Ann Shepard and Connie Tindall.

Wright, Jacobs, Shepard and Tindall are deceased. Tindall, 62, died in August.

During the course of researching the case, the original files of state prosecutor Jay Stroud were found, and evidence of extraordinary prosecutorial misconduct uncovered. North Carolina Central University School of Law Professor Irving Joyner and Charlotte attorney James Ferguson, the original lead defense attorney – both of whom filed the petition papers with the state – spent last summer researching and authenticating handwritten jury selection notes by Stroud which indicated during the first trial in June 1972 in Pender County how he sought to impanel a “KKK”-type jury to guarantee convictions.

Stroud’s notes also document how he plotted to cause a mistrial in the first June 1972 Wilmington Ten trial because there were 10 blacks and two whites on the jury, his star witness, Allen Hall, was not cooperating, and it looked very unlikely that Stroud could win the case given the lack of evidence.

History shows that Stroud told the presiding judge in the first June 1972 trial that he had become “ill,” and could not continue.
A mistrial was ultimately declared.

It was during the second trial in Pender County, which began Sept. 11, 1972, that Stroud got a jury more to his liking – 10 whites and two black domestic workers – and a different judge who was arguably biased against the defense.

This time, the Wilmington Ten were convicted, sentenced, and sent away to prison.

It was during a Sept. 5 forum at NCCU’s School of Law, that defense attorney James Ferguson said his examination of the Stroud files was revealing.

“There was a fair amount of confirmation of things we suspected at the time that race was the central strategy of the prosecution,” attorney Ferguson maintained, singling out a legal pad that prosecutor Stroud used during jury selection of the first trial to track Ferguson’s questioning of potential jurors in Pender County, a neighboring county the case had been moved to in June 1972.

Stroud’s handwritten notes on his legal pad revealed how he wanted to “stay away from black men” in jury selection; didn’t want to impanel blacks from certain parts of the county; placed a “B” in front of the names of potential black jurors, would scribble remarks like “no,” “stay away from” and “leave off.”

If it was a black whom he thought he could convince the Wilmington Ten were guilty, however, Stroud wrote, “knows; sensible; Uncle Tom type.”
And Stroud had unmistakable codes for white jurors he felt he had to have.
On that same legal pad sheet tracking juror interviews, when Stroud was impressed with a white interviewee’s answers, he’d write down the three letters of the alphabet most commonly associated with the most fear white supremacist group in the South at the time – the Ku Klux Klan.

“KKK?…good” is what Stroud wrote for juror Number 1 known as “Pridgen.” For Number 6 named “Heath,” the reverse, “O.K.” then “KKK?”. Number 75 on a subsequent page was “Fine – probably KKK!!” and on Number 99 Stroud writes, “does not have a record – KKK!!”
Stroud was apparently also concerned if potential black jurors in the June trial read about the case in The Wilmington Journal, the local African-American newspaper and NNPA member. Stroud considered the Journal a subversive publication that supported the activists.

“Blacks – you get Wilmington Journal or read it – view sympathetic to letters from Chavis,” Stroud wrote in the column of his legal pad, making note of a question he would ask of potential black jurors.

The notation is chilling because the following year, The Journal was firebombed by a white supremacist. Historically, another Wilmington black newspaper, The Daily Record, was burned to the ground by white supremacists during the November 10, 1898 racial uprising, demonstrating a long-held fear of the black press in Wilmington.

“Race infused the jury selection strategy in that June trial,” Ferguson said of Stroud’s jury selection notes.

The sheer number of prospective Pender County black jurors for the first Wilmington Ten trial resulted in a panel of ten African-Americans, and two whites.

“We were able to position ourselves in a way that we were headed towards getting what appeared to be a jury that might be fair,” defense attorney Ferguson said.

“But at that time, as they say, a funny thing happened on the way to the forum.”

On the cardboard back of that jury selection legal pad Stroud used, the Stroud files show, the prosecutor listed the advantages and disadvantages of mistrial, seemingly to devise some sort of strategy as to what his next move should be.

Among Stroud’s “Advantages of Mistrial,” the prosecutor listed, “1 – different judge; 2 – better prepared to select jury and to handle motions/more organized,” as his top reasons.

Stroud apparently decided to cause the mistrial, attorney Ferguson says.

“The main prosecutor in the case (Stroud) suddenly became ill,” Ferguson recalls. “For what reason I do not know. [Perhaps] sitting there looking at that many black folks serving on the jury. But he became ill, sort of speak, and decided that he could not proceed with the trial. So that trial was aborted.”

After reviewing the same materials, UNC law professor Nichol was deeply concerned.

“The Stroud memo reveals that the most cynical and stunning use of racial antagonism and hostility drove the prosecutor’s decisions in launching, and re-launching the Wilmington Ten trials,” Nichol says.  “No justification exists, or could exist, for such bald constitutional transgression. It is vital that the state officially declare, as it would through a pardon of innocence, the flat rejection of the use of racial hatred in the exercise of criminal prosecution. Ignoring such outrageous misbehavior, once revealed, would be a fundamental breach of duty.”

In reaction to the Stroud Files prior to Election Day, Barbara Howe, a Libertarian candidate for N.C. governor, said in a press release: “The evidence that has been revealed over the years since the [Wilmington Ten] convictions paints a very gloomy picture of the North Carolina judicial system. The recanting of witness statements and the prosecutorial misconduct that has come to light with the release of the Stroud files clearly demonstrate the need for action [by Gov. Perdue]. A pardon of innocence for the Wilmington Ten would show a renewed commitment by the State of North Carolina to the cause of justice.”

Howe added that until those pardons of innocence are granted, the Wilmington Ten remain convicted felons.

Nichol, who has also written a letter of support directly to Gov. Perdue for the Wilmington Ten Pardons of Innocence Project, wrote, “I am confident that the prosecutor’s rank, grotesque, abuse of authority merits a pardon of innocence. There are surely no circumstances to seek a ‘pardon of forgiveness’. It would be stunning to say to a group of defendants subjected to such breathtaking misconduct that we now ‘forgive’ you.”

“The only acceptable response from the State of North Carolina,” Nichol concluded, “…is to concede that its power was exercised in the Wilmington Ten prosecutions in a tyrannical rejection of honesty and constitutionalism.”

Meanwhile, the North Carolina chapter of the Southern Christian Leadership Conference announced in Greenville last week that it was formally supporting the pardons effort.

To support NNPA’s Wilmington Ten Pardons of Innocence Project can sign the Change.Org petition at https://www.change.org/petitions/nc-governor-bev-perdue-pardon-the-wilmington-ten.


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