A decade ago, Kenneth Kagonyera had two rotten choices: Face a jury that might decide to kill him, or plead guilty to something he insists he didn't do.
The jury was a big gamble. A Buncombe County man was dead. Many of Kagonyera's buddies who also had been charged in the botched home invasion had talked, telling detectives Kagonyera was in the middle of the mayhem.
Eventually, he took the plea deal and began counting down the 12 years until he could go home.
Now, Kagonyera has a chance to wipe that deal away and be declared innocent. Kagonyera and one of his co-defendants, Robert Wilcoxson, won unanimous approval late last month from eight members of the N.C. Innocence Inquiry Commission. After two days of hearing the case, members decided there was enough merit to the claim to advance the case to three judges.
Prosecutors across the state have mounted an effort to block defendants such as Wilcoxson and Kagonyera from appealing to the commission, a state agency established in 2006 to examine claims of innocence. A bill pending would prevent those who pleaded guilty from applying to the commission for help; since 2007, nearly 30 percent of applicants involved guilty pleas.
"The innocence commission is a very, very unique entity, and it should not be used as a fail-safe for all the other problems in our system," said Peg Dorer, executive director of the N.C. Conference of District Attorneys. "If they are just going to start picking up all the cases that fall through the cracks, well, that's not their purpose."
Wilcoxson and Kagonyera are two of more than 100 prisoners asking to have their guilty pleas revisited by the courts, saying an imperfect system and intense pressure led them to use one of the judicial system's most common mechanisms for clearing a case.
A few defendants of late have asked judges to reconsider their pleas, saying they were railroaded into a deal because they were terrified a jury would sentence them to death. Among them: Derrick Allen, whose case was highlighted among 229 others involving blood work misrepresented by the State Bureau of Investigation's crime lab.
The courts would grind to a halt without plea negotiations. More than half of murder charges were resolved by plea deals last year, for example, and less than 2 percent went to trial.
The mechanism is so vital to move cases through the courts that higher courts have sanctioned pleas in which the defendant never admits guilt. Alford pleas allow a defendant to say it's in his best interest to plead, even if he maintains innocence.
Dorer said prosecutors don't want those cases coming back up, saying defendants knew what they are getting into when they took the deal. When they really need help, she said, the defendants can apply directly to a judge for relief.
Defying an order
Kagonyera asked to take back his plea agreement soon after he entered it, but a judge wouldn't let him.
Over the years, he wrote dozens of letters to the court clerk, the judge, detectives, the district attorney and lawyers asking for help getting copies of evidence in his case.
At every turn, he hit a wall.
In 2008, he wrote a judge again, seeking help to get his case reopened. That time, Superior Court Judge Ronald Payne ordered Ron Moore, the district attorney in Buncombe County, to respond to Kagonyera's request.
Moore agreed to perform DNA testing on the three other men who were implicated after Kagonyera pleaded guilty.
But for the next two years, no DNA was collected. No tests were performed.
'Not my finest hour'
The murder of Walter Bowman prompted a game of musical chairs.
There was one trigger man. Five others were presumed to be just as guilty because they were said to have been together and at Bowman's house that night. Detectives charged them all with murder and waited for them to start turning on each other to curry the favor of the district attorney.
"We didn't want to be the ones without a chair when the music stopped," said Sean Devereux, Kagonyera's lawyer at the time.
Devereux admits he pressured Kagonyera to take the district attorney's offer.
"For a lawyer, it's sort of about the numbers. I told him that we could fight and have a trial," Devereux said by phone. "If you lose, you risk going to prison for life or even getting death. It's kind of like poker."
Devereux's role now wears on him.
"This was not my finest hour by any means," Devereux said. "I let an innocent kid plead guilty to murder; I'll always be uneasy about pleas now."
At the time, though, Devereux and other defense lawyers knew much less about how commonly innocent men plead guilty.
Nationally, nearly 25 percent of defendants later exonerated by DNA evidence initially pleaded guilty or offered police incriminating statements or a confession, according to the Innocence Project in New York, which has studied the cases.
One of those men lives in North Carolina: Keith Brown of Wilson was serving a prison sentence for a sex offense when Florida authorities tied the offense for which he'd been blamed to a serial rapist in their state. He was freed and, in 1999, pardoned by the governor.
Devereux also was partially blind to the evidence.
A month before Kagonyera entered his guilty plea, the SBI crime lab sent a report to the district attorney. The report said a saliva stain extracted from a bandana, thought to have been worn by one of the robbers, did not match any of the six suspects.
Devereux said he never saw that report. If he had, he said, he would have fought harder for Kagonyera.
Commission members last year found a copy of the report in the district attorney's file. A copy of the test was not in the files of the defense attorneys in the case.
Moore said in an interview he cannot explain why the lawyers wouldn't have had a copy. He said he has had an open file policy for defense attorneys since he took office in 1991, but that he relied on staff to distribute copies of information to defense lawyers.
More evidence that cast doubt on Kagonyera's role was collected by state and federal authorities in the years since his plea; none was shared with defense lawyers.
New information ignored
In 2003, Robert Rutherford, a convicted drug dealer from Buncombe County, called a federal drug agent from prison and told him he had information about a murder.
According to the agent's notes, Rutherford admitted to participating in a botched robbery in September 2000 that ended with Bowman's death. He implicated two friends: Bradford Summey and Lacy Pickens.
The agent typed a report and phoned the Buncombe sheriff's office. He also mailed a copy to Moore.
Rutherford had been considered a suspect early in the investigation when an anonymous tip to police suggested he was involved. But Moore, at the time and through the years, eliminated him because one of his supposed accomplices, Pickens, would have been in the local jail at the time of Bowman's death.
Commission lawyers discovered in the last year, though, that Pickens was just doing weekend stints at the jail. Bowman was killed on a Monday.
More evidence against Rutherford's group surfaced in 2007, six years after Kagonyera pleaded guilty.
As it tried to match unknown DNA profiles on evidence to a growing database of profiles of convicted criminals, the SBI got a perfect DNA hit on the saliva sample from the bandana. It matched Summey, the friend Rutherford implicated.
The SBI analyst phoned Buncombe sheriff's detectives. He left messages. He was bounced from person to person. No one ever followed up with him.
According to the analyst's records, he also mailed a copy of the information to Moore. Moore said he does not have a copy and does not recall seeing it.
This was a year before Kagonyera finally got the court's attention with his motion for relief.
'There was a snafu'
After Moore promised the judge in 2008 to collect DNA samples from Rutherford, Summey and Pickens to compare to the bandana, Rutherford was sent to the jail for testing.
Rutherford told the detective he wanted to talk to Moore and Moore only. Moore never came, according to the detective's notes.
For nine months, Rutherford sat in the Buncombe County jail. No one collected his DNA.
Moore said he assumed the detective had collected it and sent it to the SBI lab for testing. He can't fully explain the slip but did say that the detective was absent from work for many of those nine months.
"There was a snafu," Moore said. "I didn't realize it hadn't been done."
Database editor David Raynor contributed to this report.
mandy.locke@newsobserver.com or 919-829-8927
