Dwayne Davis often wonders what would have happened if he hadn’t fled the country just as his February 2019 trial began. Could he have convinced Vance County jurors that the heroin police found in his grandmother’s house wasn’t his, and that his confession that it was had been coerced?
Other what-ifs haunt the 40-year-old: What if he hadn’t entrusted his fortunes to a celebrity lawyer whose brash style irritated the judge? And what if he hadn’t blown up a plea deal that would have secured his release in as little as two years—a promising, if unusual, offer that would have required him to buy the Henderson police a luxury car?
He has a lot of time to think as he serves a 21-to 27-year sentence.
“Sometimes I ask myself, should I have never said anything?” Davis told The Assembly in a phone call from the Roanoke River Correctional Institution.
Dwayne Davis says he was given the chance to buy his way out of a long prison sentence. Then the deal blew up.
As Jeffrey Billman reports, the case is full of bizarre details that raise troubling questions, not least of which is this: Were prosecutors really willing to let Davis buy his way out of prison?
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Back in the News
In August, Duke Law professor Jim Coleman demanded that the State Bar establish a task force to review its disciplinary process. Coleman argued that the bar has failed to hold prosecutors accountable for misconduct.
He got his wish: The $30 million budget the General Assembly recently passed created a grievance review committee.
The change came too late to help his client, Kalvin Michael Smith, who spent 20 years in prison for the 1995 assault of a store manager in Winston-Salem. Smith, 52, had spent years fighting to prove his innocence, both during his incarceration and after he won release in 2016. But police found his body in a car outside of a Winston-Salem apartment complex on September 13. No cause of death has been released, though police ruled out foul play.
Though Smith was freed after a judge ruled that his trial attorney failed to submit evidence that might have reduced his sentence, he was never exonerated. A 2004 Winston-Salem Journal series highlighted numerous problems with the police investigation and prosecution, including that the lead detective withheld evidence and lied about the victim’s identification of Smith. His case was also featured in an MTV documentary.
Coleman, director of Duke’s Wrongful Convictions Clinic, filed a complaint in 2014 against three Forsyth County prosecutors, including Jim O’Neill, the current district attorney. Coleman alleged that they used a false affidavit from a former officer to undermine Smith’s innocence claims.
Coleman called the grievance review committee “overdue.”
“The bar has not shown the ability or willingness to police itself,” he said. “I hope the new committee will be independent and transparent and will hold the bar accountable for policing its members fairly and without favor.”
On Our Radar
>> Miall et al. v. City of Asheville
Last Thursday, five white residents of Asheville sued the city, alleging that they were illegally denied appointments to its Human Relations Commission because of their race. They were backed by the conservative Pacific Legal Foundation, which has filed reverse discrimination cases across the country.
When Asheville created the commission in 2018, the city council established a number of criteria for its 15 members: Six must be Black and two Latinx. Two must live in public housing. Two must be between the ages of 18 and 25. Two must be LGBTQ, and two must have disabilities.
Individual members could cover more than one of those criteria, so nearly half of the commission could, in theory, still be made up of straight white people. But state and federal laws frown on quotas, so in 2022, the city ditched the numbers and made the requirements suggestions: “Membership should reflect the groups of individuals that the human relations program is intended to assist and protect,” and the commission “shall include” members of those groups. The city council also shrunk the commission from 15 members to nine.
The five plaintiffs applied this year but weren’t selected. Instead, city officials decided to re-advertise four of the commission’s six vacancies. The two applicants the committee approved were both white women.
On September 21, the city attorney recommended tweaking the ordinance language yet again from “membership should reflect” to “shall provide equal access and opportunity … to all historically disadvantaged groups,” including those it had previously described.
The city council is scheduled to vote on the change on October 10.
>> Epic Games v. Apple
Last week, Cary-based Epic Games asked the U.S. Supreme Court to weigh in on its long-running dispute against Apple. The Fortnite maker, which just laid off 16 percent of its workforce, argued that Apple illegally requires app makers to use its in-house store to distribute their products on iOS devices. Apple also forces developers to use its payment processor and restricts what they can tell users about alternative payment options.
In August, the Ninth Circuit Court of Appeals mostly upheld a lower court ruling in Apple’s favor, which found that while Apple had engaged in unfair practices, Epic hadn’t proposed a viable alternative. It also said that Epic breached its contract by circumventing Apple’s rules, but blocked Apple from curtailing what app makers can say about other payment options.
In its petition to the Supreme Court, Epic asks the justices to define the vague language in anti-monopoly Sherman Act case law that requires plaintiffs to propose a “less-restrictive alternative.” The appeals court rejected the IP licensing program Epic suggested because it would have imposed additional costs on Apple.
Epic asked the court to decide whether “the fact that the alternative would impose an additional cost or burden [is] disqualifying, even if that alternative is dramatically better for competition.”
Apple has until the end of the month to file its response, but it’s unclear whether the Supreme Court will take up the case.
>> Chaplin v. Rowe
More than seven months after eCourts launched in four counties, two prosecutors are calling for an independent review of the $100 million system, The News & Observer reported in a series last week. Unsurprisingly, Mecklenburg County officials said they were worried about the system’s planned expansion into North Carolina’s busiest court, which is supposed to launch on October 9.
N.C. Administrative Office of the Courts officials still maintain that everything is fine, despite the wrongful arrests and false imprisonments chronicled in a federal class-action lawsuit.
Texas-based Tyler Technologies, which has faced similar claims in several other states, said in a recent motion to dismiss the class-action suit that it has “no legal duty to protect plaintiffs from their alleged injuries.”
NCAOC officials want to roll out eCourts in all 100 counties by 2025.
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