One killing, two theories, zero justice

DURHAM -- Today in North Carolina, a man sits in prison for a murder he may not have committed. In 1991, he was convicted in state court of killing a man in Fayetteville, but evidence introduced in a federal court drug trial four years later suggests another man committed the murder.

State authorities seem to think they have it right, but the federal authorities do also -- and they cannot both be right. Some prosecutor, some judge or some other official of the state or federal government should now work to determine which one is.

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ON JAN. 26, 1990, POLICE FOUND MYRON HAILEY DEAD in a blue Honda Accord near the intersection of Bragg Boulevard and Rowan Street in Fayetteville. Although the car had run off the road into a tree, investigators determined that Hailey's death resulted not from the impact of the crash, but from a gunshot wound. Evidence showed that two bullets had been fired into his car. One bullet passed all the way through Hailey's body, causing him to bleed to death.

About 15 months later, Lamont McKoy, who was 19 at the time, was convicted of the murder in state court. The prosecution's theory was that he shot at the fleeing vehicle after a drug deal went bad. The conviction was based almost entirely on the confused testimony of a known drug user. All the while, McKoy proclaimed his innocence.

Four years later, a trial commenced in federal court in Elizabeth City. Three men -- members of a Fayetteville drug gang called the "Court Boys" -- were charged with a number of federal drug and weapons offenses. Although none of the men had been charged with murder, the prosecutor put witnesses on the stand who testified to having seen one of them shoot at a car in Grove View Terrace in Fayetteville. After the shooting, according to testimony, the car lurched out of the neighborhood and crashed against a tree down an embankment about a mile from the shooting.

The prosecutor argued that the gang member shot the driver dead and later sought a longer sentence for him because of the murder. Yet the prosecutor and a number of others had reason to believe that the murder to which he and the witnesses were referring was Hailey's, the one for which Lamont McKoy was already serving time.

When the gang members appealed their convictions, the appellate judges asked the federal prosecutor why he accused the gang member of murder when he knew McKoy had already been convicted in state court. The prosecutor repeatedly replied, "We believed our witnesses."

The judges' opinion also noted that the federal government did not think McKoy was involved in the murder in any way -- the government's position was that the gang member was the "only shooter."

In early 1998, McKoy filed a motion in state court based on this new evidence from the federal case, that the gang member committed the murder. After a hearing held more than two years later, the court denied the motion, apparently misunderstanding the motion's main argument -- that the evidence introduced in the federal trial supported the conclusion that the gang member, not McKoy, committed the murder, and in an entirely different Fayetteville neighborhood.

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INEXPLICABLY, THE JUDGE CONCLUDED that this new information "did not constitute any evidence that would be beneficial to the defendant." McKoy's subsequent petition to the state Supreme Court was denied without comment. Unfortunately, we know of no further official action that has been taken to clarify who killed Hailey -- and to determine whether Lamont McKoy was in fact wrongfully convicted.

McKoy and his family then looked for help outside the justice system. They continued their own investigation into the case, eventually petitioning the N.C. Center on Actual Innocence, a nonprofit organization that works with law schools in the state to investigate inmates' claims of innocence. Law students at Duke University are currently investigating McKoy's claim.

Even with the involvement of the Center and student investigators, McKoy and his family are wondering, as we all should be, why no official has been motivated to establish conclusively, in the interest of justice, who killed Hailey. Not the federal prosecutor, not the state prosecutor, not the members of the investigative task force -- all of whom knew McKoy was convicted in state court and was serving time in state prison for a murder that evidence introduced in federal court showed someone else committed. No one did anything -- and they all knew that their two theories of the crime could not both be right.

(Theresa A Newman teaches Wrongful Convictions at Duke Law School and is a board member of the N.C. Center on Actual Innocence.)