Two weeks ago, we wrote about Charles McNeair, who was arrested at 16 for allegedly breaking into the home of a 57-year-old white woman and raping her in November 1979.
McNeair maintained his innocence but pleaded guilty to second-degree rape because he feared he would get the death penalty if convicted at trial. He received a life sentence with the possibility of parole; he remains behind bars.
But as our story documented, there are lingering questions about how Lexington police and local prosecutors handled his case. We filed a motion seeking the release of the criminal investigative file from 1979. That file could, for example, tell us what steps police took in their investigation, whether they collected a rape kit, or if there was any other evidence from the scene.
We encountered a problem: The file is gone, and Lexington police officials don’t know what happened to it.
The N.C. Innocence Inquiry Commission, a state agency that investigates wrongful conviction claims, picked up McNeair’s case in 2021 and closed its inquiry a year later. The commission also didn’t have that file—which raises questions about what exactly its inquiry included.
Lindsey G. Smith, the commission’s executive director, told The Assembly she could not comment on why the commission closed its inquiry into McNeair’s claims. Smith did not immediately respond to a question about how the commission handles cases in which crucial evidence such as an investigative file is missing.
Jamie Lau, McNeair’s attorney, said he has successfully exonerated people where the investigative file was thin. But in those cases, he could also rely on trial transcripts. McNeair’s case is different.
“The absence of a file in Charles’ case is particularly troubling because it was a potentially coercive plea, and there is no record at all of the investigation that forms the basis of his alleged guilt,” said Lau, the supervising attorney at Duke Law’s Wrongful Convictions Clinic.
Lexington Police Chief Robby Rummage said it’s possible his office destroyed the file—most likely in either 1989 or 1999, based on state-mandated retention schedules. But no one documented the file’s destruction.
Lau said he’d never heard of a criminal investigative file being destroyed based on a retention schedule—particularly if the person is still incarcerated. Lau added that if the file was destroyed, the police should at least be able to say when it happened.
Without the file, McNeair faces a steep climb to prove his innocence.
His supporters want the Juvenile Sentence Review Board—which Gov. Roy Cooper created in 2021 to reevaluate the cases of people sentenced to long prison terms as teenagers—to take up McNeair’s case. They’ve also lobbied Cooper’s office and sought help from local officials to draw attention to McNeair’s clemency petition, which he filed in September 2022.
On Monday night, Lexington City Council unanimously passed a resolution asking Cooper to commute McNeair’s sentence, arguing that “institutional and systemic racism has often led to harsher criminal sentences for people of color, including Black males.” The resolution says residents are concerned about “racism’s potential role” in McNeair’s conviction.
City Councilmember Garrett Holloway called McNeair’s case “a severe miscarriage of justice.” (One of McNeair’s late sisters, Barbara, was Holloway’s godmother.) “He has lost so much in the 40 years since he’s been incarcerated,” Holloway said.
But even if the council gets Cooper’s attention, it’s not clear how the governor’s office will evaluate his petition.
Sam Chan, Cooper’s press secretary, said petitions for commutations and pardons undergo an intensive review of the circumstances of the crime and other factors. She did not say how the circumstances of a 44-year-old crime can be reviewed when the police file has been destroyed.
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Cross-Examination
Gary Settle, an inmate at the Federal Correctional Complex in Butner, has helped at least 42 other inmates win compassionate release, which federal prison officials rarely grant. A 57-year-old serving a 177-year sentence for armed bank robberies he committed in the early 1990s, Settle has terminal cancer, but his own requests for compassionate relief have been denied.
Writer Anna Altman profiled Settle in The Atavist after finding him through a lawyer associated with Families Against Mandatory Minimums (FAMM). The Assembly spoke with Altman about her article. This interview has been edited for clarity and length.
The Assembly: Tell us about the federal medical center in Butner.
Altman: It has several different buildings or institutions within one complex. There’s a couple of different regular prisons. There’s also the Federal Medical Center (FMC). It’s one of six or seven designated places around the country where federal prisoners can be sent for a higher level of care. Essentially, it’s kind of like a hybrid hospital/prison. Butner is one of the places where people are sent for cancer treatment. [Editor’s note: Ted Kaczynski, the Unabomber, died at FMC Butner last weekend at age 81, where he was transferred after being diagnosed with cancer.]
The Assembly: How did Gary Settle end up in Butner?
Altman: He was transferred there in 2018. He was found to have a high prostate-specific antigen, or PSA, which is one of the key indicators for prostate cancer. The first blood test he had that showed a high PSA was in 2016, but they did not tell him for a long time.
The Assembly: What are the obstacles to getting compassionate release?
Altman: It’s really hard to find reliable numbers about how many people are released, because the Bureau of Prisons is not required to keep track. But we do know that a very small number of people [who apply] go home every year.
In 2018, the First Step Act passed in Congress, which changed the process by which prisoners could ask for compassionate release. Before, you had to ask the Bureau of Prisons, and if they say no, there’s nothing else that a prisoner can do. After the First Step Act, you could find legal representation to ask—and even if you couldn’t, you could also ask a judge yourself.
The Assembly: This is where Gary Settle got involved.
Altman: There was one man who Settle heard telling his family that although he had been given a prognosis of less than 12 months to live—he was dependent on a feeding tube, he had stage-four lung cancer—that they were saying he was not eligible to go home. So, Gary wrote [to FAMM] and said, “Can we do something to help this man? Can you put him in touch with the lawyer?” That was the beginning of Gary’s work.
The Assembly: And yet he couldn’t get it himself.
Altman: The compassionate release system mirrors a lot of what goes on in the justice system writ large, in the sense that every district and every judge does things differently, and those things have political dimensions.
There have been studies showing that judges in states that tend to vote Democratic or places where judges were appointed by Democratic presidents are more amenable to granting release. Gary was tried in Florida for his crimes. Even though this new system allows judges to revisit cases that they otherwise wouldn’t have been able to, you still have to stay in the same district.
The Assembly: How is Gary today?
Altman: It’s been almost nine months since he was denied compassionate release. He has outlived his prognosis. He waits a very long time for things like PET and CAT scans to see the state of things. And he doesn’t always get straight answers from the medical staff.
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On Our Radar
>> Allen v. Milligan
In the next few weeks, the U.S. Supreme Court will likely ban affirmative action in college admissions in Students for Fair Admissions v. University of North Carolina and possibly endorse the North Carolina General Assembly’s independent state legislature theory in Harper v. Moore.
But as much as these North Carolina-based decisions will affect the rest of the country, SCOTUS’s ruling in the Alabama-based Allen v. Milligan last week will directly affect North Carolina—specifically in the northeast, where Democratic U.S. Rep. Don Davis now has a fighting chance at re-election.
The 5-4 Allen majority—the court’s three liberals plus Brett Kavanaugh and John Roberts—ruled that Alabama had violated the Voting Rights Act by packing Black voters into one of its seven congressional districts. The decision, surprising given Roberts’ historic antipathy toward the VRA, will prevent states from diluting Black voting power. And that probably means the North Carolina General Assembly will have to create a Black-majority district in the rural northeast when they redraw congressional lines later this year.
After Republicans on the N.C. Supreme Court reversed an earlier decision banning partisan gerrymandering—the impetus for Harper v. Moore—at least three and as many as five of the state’s seven Democratic members of Congress seemed destined to lose their jobs. That included Davis, a freshman elected by 5 points in 2022.
Davis had a few things going for him before Allen. The GOP establishment doesn’t care for his likely opponent, Sandy Smith, a conspiracy theorist with a checkered past. And Davis, a moderate former state senator, seems to get along with the legislative Republicans who will decide his fate. After the ruling, the Cook Political Report shifted Davis’ seat from “tossup” to “lean D.”
Cook’s prognosticators also moved four seats in other states into the blue—which is notable, as Democrats need to net five in 2024 to retake the House of Representatives.
>> SB 749
North Carolina Republicans first tried to overhaul the State Board of Elections after Democrat Roy Cooper defeated Gov. Pat McCrory in 2016. Under the law they passed in a lame-duck session that December, the governor’s party no longer controlled state and county election boards; instead, the boards were evenly divided, which critics called a recipe for gridlock.
Cooper sued, and in 2018 the state Supreme Court declared the law unconstitutional. (In dissent, Paul Newby, now the Republican chief justice, accused his Democratic colleagues of creating “a novel and sweeping constitutional power in the office of Governor.”) So Republicans turned their proposal into a constitutional amendment and placed it on the 2018 ballot. Voters overwhelmingly rejected it.
Now Republicans are trying a third time. On Monday, Sen. Phil Berger introduced Senate Bill 749, which gives the governor’s appointments to the state elections board to the General Assembly. A direct challenge to SCONC’s 2018 decision, the bill would also require that elections boards be equally split among Democrats and Republicans.
SB 749 reflects Republicans’ confidence not only that their veto-proof supermajorities will hold—i.e., that party-flipper Rep. Tricia Cotham will toe the line—but also, and more importantly, that the state Supreme Court’s 5-2 Republican majority will again overturn precedent to hand them a win.
Questions? Tips? Email us at courts@theassemblync.com.
A Black Teen. A White Woman. A Life Sentence.
Charles McNeair was 16 when a white woman accused him of rape. His advocates say the case deserves another look.
Paul Newton’s Rapid Rise in Raleigh
The former Duke Energy NC president has quickly ascended in the state Senate, where he’s had to maneuver in an intensely partisan environment.
Phil Berger Sr.’s Plan for N.C. Courts
The budget Senate leaders released this week proposes several major changes to the courts and criminal justice system.
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