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interviews: mark montgomery

Garner's appellate attorney, he practices law at Miles & Montgomery in Durham, N.C. Here, he discusses what bothered him most about this case, the Court of Appeals' decision to reject a new trial, the options left for Garner, and the racial aspects of the case that make it look "bad."

When did you get involved in this case?

... Our office was appointed by Judge Jenkins to represent Terence on appeal. It was just my turn to get a new case, so it came on to my desk. By that time, of course, Deloach had confessed, and Riddick was out there saying that he had perjured himself. So it was obviously an unusual case. ...

Why did it become so important to you?

... Whether this case came at just the wrong time or the right time, I'm not sure which. But it was the straw that broke the camel's back. I just said, "I can't do it any more. I can't take one more case of an innocent person being in prison and there's just nothing I can do about it." And I remember telling Terence early on, "If I can't get you out of prison, I'm not going to be a lawyer anymore. And I mean that." And I meant it at the time.

Why are you so sure he's innocent?

Part of it is having talked with him. Part of it is just the overwhelming objective evidence that he is innocent. And it's just made it abundantly clear to me that he's an innocent kid.

And what's the evidence indicating this?

The fact that somebody else confessed to the crime was the big thing. And then the fact that Keith Riddick admitted that he perjured himself about who the "Terence" was at the crime, and said that it wasn't Terence Garner, my client [who did it]; it was Terrance Deloach, his cousin from New York, who was living with Kim at just the apartment that Henderson said he would be.The fact that Henderson has said from the start that Garner was not the one... You stack it up, and it's just hard to believe that Terence Garner really did this and all these people are lying for him. I just don't believe that. I believe that Terence Garner is innocent, and that the eyewitnesses who say he was there are mistaken. ...

I've never had a case where this many people have said my client is innocent.

What was the basis of your appeal?

As with any appeal, the first thing you do is look at what happened at the trial itself, and argue that some of the rulings that Judge Jenkins made during the trial itself were unfair. There were several of those. The most significant one, I believe, is that Judge Jenkins turned us down for an eyewitness identification expert. We wanted to show the jury the problems with eyewitness identification.So there are rulings that the judge makes that we don't like; that is the basis of any appeal. In this case, we also had the Motion for Appropriate Relief, a hearing that we got after Deloach confessed, and after Riddick admitted his perjury.All of that was presented to Judge Jenkins, and the judge had to decide whether or not to grant us a new trial. The judge heard the evidence, [and] said, "I don't believe Deloach's confession. I don't believe Riddick's admission to perjury. What I believe is Alice Wise and what I believe is Charles Woodard." And therefore he turned us down for a new trial. That was one of the things we appealed.

Why did he deny a new trial?

The judge claims to be very persuaded by the eyewitness identification of Alice Wise particularly, and also of Charles Woodard. It appears that no matter what else he hears, he's going to insist that Terence Garner is guilty because Alice Wise says he is.It was difficult for me to believe that he could maintain that belief in the face of Riddick's admission that he perjured himself, of Deloach's confession, Henderson's statements, testimony that Garner was not involved. ... It's hard for me to believe that he could continue to believe Alice Wise and Charles Woodard, but he claims to.

What is your theory?

We have a written confession, about five or six pages from Deloach. We don't have any record of what happened once Deloach was taken back to Johnston County. We do know that he was questioned for four-and-a-half hours. We know that for most of that time, he continued to say that he was guilty. He must have been confused. Toward the end of the interrogation -- we're talking 11 o'clock at night, after he had been in custody at Johnston County for several hours -- he is supposed to have said, "OK, you got the right guy after all. It was Garner. I didn't have anything to do with it."I don't know what happened. I know that when the Wayne County detectives brought Deloach to Johnston County, they were not overjoyed that Deloach had confessed. ... The comments I got were that they were concerned about the upcoming election, they were concerned about what this might mean to their job if they had gotten the wrong person convicted and so forth. So they weren't embracing Deloach's confession. And sure enough, four-and-a-half hours later, Deloach took that confession back.

Trying to reverse his own judgment?

Yes. And that's one of the things that we're going to complain in state court and also go to federal court, to say it's just not fair to have to go back to the same judge that you've been tried by and try to convince that judge ... that you're entitled to a new trial. Many judges -- and Judge Jenkins being one of them -- form an opinion about the guilt of the defendant during the course of that trial. And then to ask that same judge to essentially reverse his own beliefs is very difficult, and at least, we're going to argue, is unconstitutional.

Isn't that the system?

That is the system, yes. The system is that a motion for a new trial like this goes back, and the chief resident Superior Court judge assigns the case to an appropriate judge. Well, in this case, the chief resident Superior Court judge is Judge Jenkins. So he assigned himself to hear this trial. ... He could have assigned it to another judge; he may in the future assign it to another judge. But for now, he assigned it to himself.

What happened in Court of Appeals?

It's usual for the Court of Appeals to defer to the trial judge on most things. I was disappointed that the Court of Appeals deferred to Judge Jenkins in this case. I argued that Judge Jenkins' ruling was just not reasonable; that given the amount of evidence we had that Garner is innocent, we would at least be entitled to a jury trial. Let a jury hear it all, let them hear Alice Wise and Charles Woodard. Let them also hear Deloach and Riddick and Henderson and Bertha Miller. Let's let them hear everything and decide. I think a jury hearing all the evidence would acquit Terence Garner. And that's where we are now -- trying to get in front of a jury. We have to go through a judge to get to the jury.

The jury never heard of Terrance Deloach.

... The jury at the trial never heard about Terrance Deloach, and of course they never heard Riddick say that he perjured himself, either. They did hear from Henderson that Terence Garner was not the right Terence. ...

What is still open?

Two things are open to us. There are some federal issues that can be taken into federal district court. It's called "a petition for writ of habeas corpus," and I expect that we'll be doing that in the near future. The other is to do yet another motion for appropriate relief in state court to present yet more new evidence of Terence's innocence in order to get a Superior Court judge to order a new trial.

Have you ever seen a case like this?

... I've never had a case like this. I've had a case where I believe my client to be innocent, and my client tells me that they're innocent. That's not unusual. I have cases where I believe that the client's innocent, and their mother calls me up and says that they're innocent. I've had cases where their defense lawyer believes that they're innocent, and so forth.But I've never had a case where this many people have said that my client is innocent, and they're people who, if they have an interest at all, have an interest in saying he's guilty. They don't have an interest in saying he's innocent. Keith Riddick doesn't have anything to gain by saying Terence Garner is innocent, and potentially things to lose; he has all along. Henderson -- why should he care whether it's Terence Garner or Terrance Deloach? Yet he continues to say it's Terence Garner. ...

Deloach confessed and then he took it back, but people... So he lied, either lied when he confessed or lied when he took his confession back. But we know that people don't lie to get themselves into trouble; they lie to get themselves out of trouble. Why would Terrance Deloach say that Terence Garner was innocent if that weren't true? So, no, I've never had another case where there are that many people saying that my client is innocent.

Why are you putting in so much work on this?

... I'm a volunteer lawyer now -- I don't know how many hundreds of hours. I haven't bothered to keep track of them, because there's nobody to bill them for, so why I do it? It's hard to say. There's something about this case that stuck with me and said, "This is the one. This is the case that I'm going to go to the mat on. This is the case that is going to define whether I continue to be a lawyer or not."I don't know why it's Terence rather than somebody else. Maybe it's the time that I got the case. Maybe it's something about him. Maybe it's something about the whole atmosphere of this case in the appearance at least of terrible impropriety in Johnston County. Maybe it's some combination of that.But it became very important for me to get Terence Garner out of prison, and if I couldn't do it, I didn't want to be a lawyer any more. So I want to be a lawyer some more, so I'm going to have to get him out of prison. ...

What bothered you most?

What bothered me is that the only thing standing between my client and freedom is eyewitness identification. And it's weak. It sounds good; juries eat it up, but it's very weak. We know that eyewitness is not good testimony, not good evidence.We know that's particularly true if you've got two different races involved. We know that's particularly true if there's a gun involved. The experts tell us that, when there's a gun involved, the witness is focusing on the tip of that barrel, not the eyes of the person holding the pistol. So the fact troubled me that everything depended on eyewitness identification, and that the identification itself was weak.We know that Alice Wise first saw Terence and first identified him when he was in an orange jumpsuit, shackled to Kendrick Henderson, going into the courtroom. She hadn't been able to identify him before that. But now that she saw him with Henderson, she was relieved, apparently, that the prosecution had arrested him. And she had seen his picture in the paper, by that time incidentally, as being one of the suspects. So we knew her identification was not very strong. But she made a terrific witness, and I'm sure that the jury was very willing to believe her. ...

How easy is the road ahead?

It's difficult. Once somebody has been convicted, once their appeals are over, there is an enormous burden placed upon him to go back into court and to get another trial. And in this case, there's already been one motion for appropriate relief hearing in addition to the trial. We presented that to the Court of Appeals, and that wasn't good enough. So the burden gets progressively heavier the longer this goes on.There are things we can do. We'll have to come up with additional new evidence to make another motion, but it'll be difficult. We'll have to ask whoever reviews this to consider not only the evidence that we're able to come up with that nobody has heard yet, but to go back and revisit all the evidence that has already been heard.

You're an investigator now?

Yes, for a long time. We got a couple of volunteers to do a little bit for us early on, and we haven't had a defense fund to pay some investigators, and then Bob Emerson came along. Bob [is a] retired FBI lawman, tough guy, forever. [He] read about the case in the newspaper, got interested in the case, and has been donating hundreds of hours to look over old police reports, to interview witnesses. We'll get in the car and drive down to Goldsboro and try to talk to folks and so forth.So yes, most of what we're doing now is investigation. Once we feel that we have enough new evidence -- however we define that -- we'll go back into court. But for the time being, we're sort of getting our hands dirty by doing some real live investigations.

You have facts; it's a question of getting someone to believe?

... We've had enough new evidence for four new trials. It just hasn't been enough to convince the one person that matters that we've got enough. And to this point, that person has been Judge Jenkins.

Why is the judge so determined?

I have to believe that he believes that he has convicted and presided over somebody being convicted who is really guilty, who did a horrible thing, who shot Alice Wise in the face and dragged people around and hit them over the head and robbed them and so forth.I feel that judges generally want to believe that they've given criminal defendants a fair trial, and once the trial is over, that's the end of it. And certainly once the appeal is over, that should be the end of it. So I suppose that any judge, Judge Jenkins no less, believes that the book is closed on Terence Garner, and it's a waste of everybody's time and money and energy to try to reopen that book. ...

Going back to eyewitness identification why do you feel it was so important to have been able to have an identification expert testify in the trial--something the judge disallowed?

What we're learning about eyewitness identification is that, first of all, the certainty of the witness has absolutely nothing to do with their reliability as a witness. Judge Jenkins was very impressed with Alice Wise's certainty, with Charles Woodard's certainty. The judge said, "Well, they're that certain; it must be true."We know that that's not what the science tells us about eyewitness identification. So we know that's one of the problems, and that's one of the things that an eyewitness identification expert could have explained to the jury, talked about with the jury -- the cross-racial identification. Alice Wise and Charles Woodard are both white. All of the perpetrators were black. Science will tell us that it's very difficult for white people to make reliable identifications of black people and vice versa. We know that when there's a weapon involved, an eyewitness is less likely to make an accurate identification of the person holding the gun, because it's not the person holding the gun they're looking at. It's the end of that barrel that they're looking at. So an eyewitness identification expert could have explained to the jury things that the jurors would not understand otherwise, but think that they do understand. In other words, the jury is probably sitting there thinking, "If Alice Wise is that certain, she must be right." An eyewitness identification expert would have been able to come in and say, "No, that's not right. The fact she's so certain has nothing to do with whether she's reliable or not."

Shouldn't the State Court of Appeals know that?

I argued that very strenuously, that we were put at an unfair disadvantage in this case by not having our eyewitness identification expert. That didn't go. The Court of Appeals said we didn't make a strong enough request to Judge Jenkins, and dismissed our appeal on that basis. It is a potential federal issue. We might be able to go into federal court and argue to a federal judge that the state court judges apply the law incorrectly.

What are your possibilities?

The two things that are in front of us are federal court and another motion in state court. Federal court would be a matter of arguing to a federal judge just as I argued to the Court of Appeals -- that Judge Jenkins made mistakes at the trial and at the hearing that violated Terence's constitutional rights. The state motion would be another motion like the ones that have already been made, presenting yet more newly discovered evidence before the Superior Court of Johnston County -- which is where it would have to be made -- and arguing that certainly this new evidence, in combination with Deloach's confession and Riddick's perjury and so forth, that surely that's enough to say that Terence Garner needs to go back for another trial in front of a jury.

How often does that happen?

Based on my experience, it is a long shot. There are hundreds of motions like this made, and I can only think of a handful that have resulted in a new trial.


Is there a chance for parole?

We don't have parole in North Carolina any more. Terence was sentenced under a sentencing scheme that imposes a minimum and a maximum. And that minimum, I think, is 399 months; I could be wrong. It's a long time. That's the minimum. There's no parole from that. There's no reduction of his sentence below that. There's a maximum, which I think is 500-and-some months. He can work down that maximum down to the minimum. But he can never serve less than that minimum unless he gets a new trial, or unless the governor were to award clemency.

What can the DA do?

... If I make a motion for a new trial, the district attorney has the choice of opposing that motion, or joining in the motion, or doing nothing. As long as he doesn't oppose the motion, I feel confident that that motion would be granted and Terence would get a new trial. So all I would ask for Mr. Lock to do would be to not oppose my motion, my next motion for a new trial.

And from Judge Jenkins?

There's a question about which judge would be hearing the case. It may be that we would be able to convince Judge Jenkins that the appearance of justice would be better served by some other judge presiding over any other hearings in the case. It would be in front of a Superior Court judge; whether it would be Judge Jenkins or somebody else, if I make a motion for a new trial, it would be in the Superior Court for Johnston County. Mr. Lock would have the decision to either oppose or join or ignore that motion. If he doesn't oppose it, the judge would likely grant that motion. So all I would ask from Mr. Lock would be not to oppose the motion.

Could you appear before Judge Jenkins?

... It would be possible for a new motion for a new trial to end up in front of Judge Jenkins. I would hope that didn't happen. I think that the judge has not been persuaded by evidence up to this point, evidence that has persuaded a lot of other people that Terence Garner is innocent.I think at this point for him to preside over yet another hearing in this case would create the impression that he is personally trying to keep Terence Garner in prison. I don't think that's the appearance that he would want to be conveying. So I think it would be in everybody's interest for another judge to hear any more motions in this case but by the statute, it would be up to Judge Jenkins to make that decision.

The four-person theory?

There has been a theory that maybe all four were involved, that Terrance Deloach was there, Terence Garner was there, Keith Riddick and Kendrick Henderson. And that's a very convenient theory. It's very helpful to the people who are trying to decide, "Well, is Alice Wise right? Or is Kendrick Henderson right? Maybe they're all right. Maybe everybody was there."That would explain Alice Wise's testimony. That would explain Deloach's confession. That would explain Riddick's perjury. Everything gets explained if there were four robbers. Both Terence Garner and Terrance Deloach were there -- but they weren't. And one of the easiest ways of proving that they weren't there is to look at what Mr. Lock did.Mr. Lock did not prosecute Terrance Deloach for being involved in this robbery. He actually had warrants issued against him, and then asked for those warrants to be returned, and said there is not enough evidence to convict Terrance Deloach of any participation in this robbery. So the state doesn't believe really that there are four robbers. They believe apparently that there are three robbers, and that Terence Garner was one of them.

Any other thoughts on this case?

One of the things I argued in the Court of Appeals was that this case just looks bad. And one of the things that looks bad about this case is that if you line up all the people that say Terence Garner is innocent, they're black; if you line up the people that think that Terence Garner is guilty, they're white. And what I argued in the Court of Appeals is that not granting us a new trial under these circumstances creates and sort of furthers the impression that black witnesses just aren't as credible as white witnesses -- at least not in Johnston County.

According to the Court, the two reputable people were Miss Wise and Mr. Woodard. By implication, everybody else is not reputable. At the end of the trial, there were, of course, three victims. There was Bertha Miller, who is black. There is Alice Wise and Charles Woodard, both of whom are white. And Judge Jenkins made a great point of congratulating Miss Wise and Mr. Woodard, sympathizing with them for the pain that they've suffered and thanking them for their courage of coming forward. Nothing -- not a word about Bertha Miller.

She wasn't credible?

Not a word.

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