I. Beverly “Bev” Lake Jr., a former chief justice of the N.C. Supreme Court, is not the likeliest of criminal justice reformers.
As a reliably tough-on-crime trial judge, Lake wore a pistol in court and once had a defendant’s mouth duct-taped shut. His longtime friend and former colleague on the Supreme Court, Robert Orr, calls him “a hard-line North Carolina justice of yesteryear.” In his previous career as a legislator, Lake fought for the death penalty and for the passage of a sweeping anti-crime bill.
And because his father I. Beverly Lake Sr. ran an ardently segregationist primary campaign for governor in 1960, the Lake name still evokes the racial politics of another era.
Yet fully a decade before the emergence of the current conservative movement to curb the excesses of law and order, Lake persuaded the then-state legislature to pass what experts say are the strongest protections for defendants anywhere in the nation.
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“With the groundswell we’re seeing now around criminal justice, it’s becoming a bipartisan, even conservative issue,” says Rebecca Brown of the Innocence Project, a leading expert on wrongful convictions. “But way before conservatives like him were focused on all of this, Beverly Lake was the leader.
“From a national perspective,” Brown says, “his work was monumental. The most robust, enduring innocence protections in the country.”
Today, public confidence in the justice system has been shaken by high-profile police shootings and increased attention on “mass incarceration,” and many states are trying to figure out how to improve their justice systems. Lake, now 81, says that North Carolina’s efforts over a decade ago could serve as a “fine example for other states” as they consider their own options.
My primary objective was to restore society’s confidence in justice.
I. Beverly Lake Jr.
Over a plate of crab cakes recently at a café near Raleigh, Lake described how he managed so many changes. His longtime conservative friends, he said, “believed I’d had a turnaround, a change-of-heart, but I just kept on trying to explain that this was an expansion, not a reversal. … We’ve always worked for victims, I told them, and people who are unfairly, wrongfully put in prison are victims, too.”
Throughout, he says, “My primary objective was to restore society’s confidence in justice.”
He began the work in 2002, while chief justice, leveraging his political power and his reputation as a conservative, to bring together police and prosecutors with defense attorneys and prosecutors. For four years, over regular lunches and many tumultuous meetings, the Actual Innocence Commission, as the criminal justice reform commission was called, wrote new rules for the justice system and presented them to the legislature for approval.
The commission drafted one of the nation’s first laws requiring the recording of interrogations; the nation’s first law imposing rigorous standards on the way police perform eyewitness identifications (lineups and photo arrays); and the nation’s first comprehensive guidelines for preserving DNA evidence and offering defendants access to post-conviction DNA testing.
The Commission also established the nation’s first panel for investigating claims of wrongful conviction and imprisonment, a process that has generated a dozen exonerations so far.
At least 10 other states have since followed with commissions of their own, but North Carolina’s was the first state-funded, state-operated innocence commission, armed with the power of subpoena.
Father’ s shadow
It’s likely that Isaac Beverly Lake Jr. was one of the few who possessed the personal and political skills to make many of these changes a reality: He was born into a well-known family long active in public service; he was well-respected as a legal mind, and his credentials as a law-and-order judge were sound enough that he would never be viewed as soft on crime.
His father Beverly Lake Sr. was (and remains) “a household name around the state,” says Tom Lambeth, who has been a top adviser and staffer in North Carolina Democratic politics since the 1960s.
“He was the face of the Great Resistance,” Lambeth says.
Among other memorable rhetorical flourishes, the elder Lake once avowed that North Carolina’s involvement in Brown v. Board of Education was “a diabolical scheme.” As late as 1987, he told an interviewer, “I also think it’s a disgrace to have a state holiday for a man of deplorable character like Martin Luther King. It bothers me.”
The younger Lake “followed in dad’s footsteps – or shadow, you might say – for most of his life,” said Ferrel Guillory, a former longtime reporter and editor for The News & Observer and now a professor of Southern politics and history at the University of North Carolina.
Like his father, Bev Jr. attended Wake Forest University then became a lawyer, handling utility-rates cases. In 1980, he, too, ran unsuccessfully for governor.
“I would never repudiate my father,’’ he said a few months before the election. “I am proud to have him up front in the campaign, and I’m proud of his public record.”
Lake Jr. became a Superior Court judge in 1985, was appointed to the Supreme Court briefly in 1992, then was elected in 1994. In 2000, he ran for chief justice against the incumbent, Henry Frye, the first African-American to hold that position.
Looking back on that campaign, Lake recalled “a cold grip on my stomach, a feeling of pure reluctance and dread.” He knew that he would be seen as the tough-on-urban-crime son of a famous segregationist trying to unseat the most prominent black jurist in North Carolina history.
Frye said he remembers jokingly telling Lake, “I won’t run against your father if you don’t run against mine.” But Lake ran as “Bev Lake,” rather than “I. Beverly Lake Jr.” as if to distance himself from his heritage.
The lawyer who became Lake’s clerk of court, Christine Mumma, said the victory marked a turning point for Lake. He wanted to step out from behind his father, she said. “He wanted to have a legacy.”
Mumma and Lake soon found themselves staying up late to discuss what they saw as the disgrace of wrongful convictions, many of which had recently been revealed only because of DNA. One case Lake was particularly affected by was that of Ronald Cotton, who had served more than a decade in prison for a rape that DNA later proved he did not commit.
“My faith in the criminal justice system, which had always been so steady, was shaken,” Lake said.
Late in 2002, he hatched a plan. In a letter to 30 key figures in the state’s court system – judges, prosecutors, defense attorneys, law enforcement officials, victims’ advocate, and law professors, as well as both Cotton’s prosecutor and his lawyer – Lake wrote that he wanted to have them all over for a meal at Mumma’s house.
There, he explained, they would discuss how to prevent wrongful convictions, rather than deal with injustice after-the-fact.
The reaction to his invitation was mixed. Some conservatives were hurt, even stunned, by what they saw as an out-of-character attempt to “go back on my values and start over fighting for the bad guys, the criminals,” as Lake puts it. “I got letters from longtime friends saying, ‘You’ve lost your mind, Bev,’” he says. “Some of them haven’t spoken to me ever since…”
For Lake, “It was very upsetting to risk the relationships of my father.” But, he said, “we had to keep going.”
At the first meeting, the participants were “all on one side of the room or the other, defense and prosecution, totally distrustful and not talking to each other,” said Theresa Newman, a defense attorney and professor at Duke, and one of the original members of the commission. “We’re so used to battling.”
Lake said he told them, “Now people, this won’t do.” His advice: “Step outside your usual roles.” He also required all the participants to eat lunch together and sit at square tables, facing each other.
It was the first of many decisions that Lake would make about process: To fix a human system, involve all the stakeholders who actually operate it.
“In the adversarial world of criminal justice,” Newman said, “we’re always surrounded by people from our own profession, who are ‘on our side.’ It’s not often we’re forced to sit around a table and get to the bottom of problems together.”
We achieved the legitimacy we needed only by involving all stakeholders and methodically convincing them that injustices exist and are fixable.
Christine Mumma, director, NC Center on Actual Innocence
“What we got done,” Mumma said, “was inextricably tied to how we did it. We achieved the legitimacy we needed only by involving all stakeholders and methodically convincing them that injustices exist and are fixable.”
When a debate over capital punishment threatened to cleave the commission in two, Lake insisted on “holding the union together” – by removing the issue from discussion altogether.
“It was like kindergarten,” Newman said, “but entirely necessary. We defense lawyers had to acknowledge the police’s legitimate interest in solving crimes, and they had to admit that mistakes do happen in a human system.”
In ways sometimes purely symbolic, Lake and Mumma continued to insist on process. They held meetings that were open to the public, “consistent with the goal of increasing public trust,” as the AIC’s mission statement puts it.
They also tried to discuss the issues in fine-grained detail, to an extent that’s impossible on the justice system’s normally jam-packed schedule – or during legislative hearings, which address policy areas only in very broad strokes. Research articles were distributed before each meeting, experts invited to attend. Questions of implementation were emphasized.
“The degree of specificity with which they discussed these reforms bore out later on in the actual language of the laws they got passed,” said Brown of the Innocence Project. “Because they actually thought through potential roadblocks and choke points, they were able to come up with statutes that have succeeded in a way that some seemingly major reforms sometimes do not.”
Throughout, Lake weighed in. Many of the commission’s members recall an episode in which a victims’ rights advocate (and longtime friend of the Lake family) was disrupting a session. Lake threw him out, saying, “I don’t want to see you here ever again.”
The reforms that Lake spearheaded have been around long enough to see whether they have worked, and experts say the verdict is resounding.
The AIC’s statute requiring the recording of interrogations in all major felony cases is especially robust, said Steven Drizin, a professor of law at Northwestern University and an expert on wrongful convictions. It’s the “strongest law in the country for juveniles, in that it requires all custodial interrogations to be recorded. …[which is] a clear recognition that juvenile suspects are more vulnerable to pressure and more likely to falsely confess,” Drizin said.
Meanwhile, defense lawyers across the state say that the reforms have, for the most part, helped.
James Williams, a public defender, said he now has at his disposal an arsenal of legal mechanisms for challenging police officers. Many of the reforms, he says, have especially benefited black defendants, who are most likely to be misidentified by witnesses, bullied by police during unrecorded interrogations, and wrongfully convicted.
All the work is not done, of course. Still on the agenda are restrictions on the use of testimony from so-called jailhouse informers, a leading cause of wrongful convictions and one of the only issues discussed by the AIC that has not been resolved. But the I. Beverly Lake Fair Trial Act, which has been stalled before the legislature for months, would attempt to deal with that and other loopholesin Lake’s original reforms.
There are more substantive concerns, too. Convicted persons seeking relief through the innocence panel are required to waive Constitutional protections against search and seizure and self-incrimination. They also must accept the burden of proof.
And Lake’s commission never addressed the fact that wrongful convictions – and all convictions that result from unfair trials, whether or not the defendant is guilty – are most often suffered by the poor, minorities, the mentally ill or intellectually disabled, and those otherwise without social and legal capital. The problem of overburdened and underfunded public defenders, perhaps the leading cause of bad convictions, was hardly mentioned.
Though Lake maintains that the AIC was totally consistent with his lifelong conservative values, he admits that in the process he’s realized “there are certain adverse economic factors” that make the legal system fundamentally unfair for some defendants. And “I’ve come to question whether we ought to keep the death penalty” given that unfairness, he says.
That shift in Lake’s mindset began during those meetings back in 2002 and 2003, said Richard Rosen, a retired professor of law at UNC and one of the original members of the innocence commission. “Before our eyes,” Rosen said, “we saw Lake becoming more sensitized to the plight of those failed by the criminal justice system. I think he was coming from a very conservative family, but he began to see the horrors that were possible in a system he revered.”
As Henry Frye, the first black chief justice, put it, “He, like most of us, has grown.”