A One- Man Justice Crusade in North Carolina

The Hon. I. Beverly “Bev” Lake, Jr., a former chief justice of the North Carolina Supreme Court, is not the likeliest of criminal justice reformers. As a reliably tough-on-crime trial judge, he wore a pistol in court and once had a defendant’s mouth duct-taped shut. A longtime friend and colleague on the Supreme Court, Robert Orr, calls him “a hard-line North Carolina justice of yesteryear.” In his previous career as a legislator, he fought tooth-and-nail for the death penalty and for the passage of a sweeping anti-crime bill.

And because his father in 1960 ran an ardently segregationist primary campaign for governor, 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, Justice Lake convinced an increasingly right-wing legislature to pass what experts say are the strongest protections for defendants anywhere in the nation.

“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.”

Lake’s victories in improving his state’s justice system — which many around the country are now trying to figure out how to do — were not won overnight.

He began the work in 2002, at a time when the brand-new science of DNA evidence was making it clear that innocent people were being tried, convicted, and sentenced to prison. Questioning his longtime faith in the system’s fairness, North Carolina’s top-ranking jurist reached out to the legal community to help him rewrite the rules.

By leveraging his political power and his reputation as a conservative, Lake brought to the table the state’s law-and-order leaders — the police and prosecutors whom he knew would ultimately be tasked with putting reforms into effect. And he made them share the table with their liberal adversaries — defense attorneys and law professors.

Lake is 81 years old now and retired, but over a plate of crab cakes at a café near Raleigh, he recently described how he managed so many changes in such a red state. 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.”

In 2015, public confidence in the justice system has been shaken again by a year of high-profile police shootings and increased attention on “mass incarceration.” Lake says that North Carolina’s efforts over a decade ago — bringing the real stakeholders of the criminal justice system together to achieve concrete, sustainable change — could serve as a “fine example for other states” as they consider their own options.

The process took place from 2002 to 2006, during Lake’s tenure as chief justice. Over regular lunches and many tumultuous meetings, the ACTUAL INNOCENCE COMMISSION1 — essentially a criminal justice reform commission convened on Lake’s say-so — wrote new rules for the justice system and presented them to the legislature for approval.

At least ten other states have since followed with commissions of their own.

Lake’s 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 INNOCENCE COMMISSION2 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.

In a state like North Carolina, it’s likely that only Isaac Beverly Lake, Jr. 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.

He was also the namesake of Dr. I. Beverly Lake, Sr., who 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 was telling 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,” says Ferrel Guillory, a longtime reporter and editor for the News & Observer and 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 recalls “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 says that 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 young lawyer who became Lake’s clerk of court, Christine Mumma, says the victory marked a turning point for Lake. He wanted to step out from behind his father, she says. “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. In one case that Lake had read about and was particularly affected by, a man named Ronald Cotton had served over 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,” says Lake.

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’ advocates, 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 Lake’s out-of-the-blue 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 says, “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,” says Theresa Newman, a defense attorney and professor at Duke, and one of the original members of the commission. “We’re so used to battling.”

Justice Lake says he told them, “Now people, this won’t do.” His advice: “Step outside your usual roles.”

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,” says Newman, “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.”

“What we got done,” says Mumma, “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.

He also required all the participants to eat lunch together and sit at square tables, facing each other.

“It was like kindergarten,” says Newman, “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” that’s overburdened and underfunded but expected to deliver finality anyway.

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. (For example, how would they get cops in rural counties, whose culture was resistant to change and who likely were not aware of the science of eyewitness identification, to understand the need for SEQUENTIAL, DOUBLE-BLIND PHOTO LINEUPS3?)

“The degree of specificity with which they discussed these reforms bore out later on in the actual language of the laws they got passed,” says Brown of the Innocence Project. “Because they actually thought through potential roadblocks and chokepoints, 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 national experts say the verdict is resounding.

The AIC’s statute requiring the recording of interrogations in all major felony cases is especially robust, says 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,” says Drizin. The law is also unique, he says, because it enables defendants to challenge unrecorded statements before trial (rather than before the jury), and on the grounds of unreliability, not just involuntariness.

Meanwhile, defense lawyers across the state say that the reforms have, for the most part, been a great help.

James Williams, a public defender, says he now has at his disposal an arsenal of legal mechanisms for challenging the once-unassailable word of police officers. Many of the AIC’s reforms, he says, have especially benefited black defendants, who are most likely to be misidentified by witnesses, bullied by cops 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 LOOPHOLES4 in 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 DEFENDERS5, 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, says Richard Rosen, a retired professor of law at UNC and one of the original members of the innocence commission. “Before our eyes,” Rosen says, “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.”

 

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