Clemency Granted: Life in Prision

Honorable Michael F. Easley
Office of the Governor
20301 Mail Service Center
Raleigh, NC 27699-0301 

Re: Charlie Alston

Dear Governor Easley:

On behalf of the American Civil Liberties Union, we urge you to exercise your discretionary power in favor of staying the execution of Charlie Alston now scheduled for January 11, 2002. We base our request for this extraordinary relief on the grounds that we have grave concerns that unless the execution is stayed and a new trial granted, a potentially innocent man will be put to death. Because of serious errors in the police investigation and very inexperienced defense attorneys, Mr. Alston did not receive a fair trial, undermining the reliability of the outcome. These errors include clearly insufficient factual evidence and legal arguments to demonstrate guilt, loss or destruction of potentially exonerating DNA evidence and ineffective assistance of counsel at both the trial and post-conviction levels.

INSUFFICIENT FACTUAL EVIDENCE

Mr. Alston was convicted on October 30, 1992 in Warren County Superior Court in the State of North Carolina in the murder of Pamela Renee Perry and sentenced to death on November 2, 1992. Ms. Perry was murdered in the bedroom of her home on the night of November 30, 1990. She was beaten with a hammer and suffocated with a pillow.

Mr. Alston was convicted on the basis of circumstantial evidence only, all of which was either tainted or indirectly material at best. There was no direct physical or testimonial evidence placing Alston at the crime scene, no evidence linking him to the murder weapon, no confession or admission, no fingerprints, no direct eyewitness testimony, and no DNA evidence. Further, Mr. Alston's appointed trial attorneys lacked the expertise to defend a person on trial for murder and failed to bring in relevant testimony to challenge even this evidence and the related legal arguments presented by the State.

The State's case was based entirely on a combination of innuendo, hearsay and tainted testimony. The main proof of motive was the testimony of several witnesses that Perry had reported to them that Alston had telephoned Perry before the murder and threatened her with serious harm. Even the most reliable of these witnesses acknowledged that Perry was not certain of the identity of the caller. The only other proof of motive was the fact that Alston had been convicted of assaulting Perry six weeks earlier. Other persons not called by the State acknowledged that Perry had been threatened by another boyfriend.

Only two pieces of evidence remotely connect Alston with the crime scene, both pieces of dubious value. First, there was testimony that he was seen in Perry's neighborhood on the night of the murder. Alston, however, lived in the neighborhood and was visiting Ms. Esteen Hymon, another resident of the neighborhood that evening. Second, two crack house operators testified that Alston had purchased $40.00 worth of crack with quarters within a week of Perry's death. Ms. Perry kept change she received as tips from her job as a waitress in a jar beside her bed. About $100.00 of coins from the jar was stolen on the night Perry was murdered. This testimony was given in exchange for agreement by the State not to indict one of them and not to request prison time for drug trafficking offenses for the other. Mr. Alston's trial attorneys failed to inform the jury of this deal. Further, the fingerprints found on the jar do not match Mr. Alston's nor do they match any member of the Perry household. Again, Mr. Alston's trial attorneys failed to inform the jury that a third person's, not Alston's fingerprints were found at the crime scene on this jar.

Besides this weak or unreliable factual evidence, there are several facts that would serve to exonerate Mr. Alston that did not come out during his trial.

First, despite the bloodiness of the crime scene, the clothes that Mr. Alston was seen wearing both before and after the death of Ms. Perry revealed no evidence of blood. The State claims that Mr. Alston probably washed his clothes but the highly sensitive tests the crime labs use to test for blood can detect blood in minute quantities. His clothes also tested negative for the presence of any fibers from the crime scene. Further, a state trooper who picked up Mr. Alston along with Ms. Hymon at 12:30 am after they had run out of gas did not notice the presence of blood on Alston's clothing, did not notice $100.00 in coins nor anything else unusual about his appearance or behavior. His trial attorneys failed to call this state trooper as a witness during the trial.

Second, the police interviewed a Mr. Thurmond Hargrove who claimed to have been on the telephone with Ms. Perry on the night of November 30, 1990 from 7:45 pm until 11:45 pm when he claimed that Perry abruptly said "hold on a minute" and then "oh shit, oh shit" after which he heard no more over the telephone. Mr. Alston has an alibi for 11:45 pm of that evening: he was with Ms. Hymon on their way to a mutual friend's house, having left her house around 11:00 or 11:30 pm. The police never disclosed the Hargrove interview notes to Alston's trial attorneys.

The State did, however, call to testify Mr. Lawrence Boyd, another boyfriend of Ms. Perry's. Mr. Boyd, who happened to be at the crime scene when Ms. Arlen Coleman, the EMT who was the first person to arrive at the crime scene in response to a 911 emergency call, arrived, testified that he was on the phone with Ms. Perry around 9:00 pm on the evening of November 30, 1990. During this call, he claims that Ms. Perry told him of threats from Mr. Alston. This evidence is clearly inconsistent with Mr. Hargrove's claim; neither the State nor the defense attorneys checked phone records to determine whether Ms. Perry was talking on the phone with Mr. Boyd or Mr. Hargrove at 9:00 pm.

Third, Ms. Coleman, the EMT testified that she was at the Perry home, where other people were presented including Mr. Boyd, for an hour before the police arrived and that the lead investigator for the police appeared disheveled and intoxicated. In this hour, forensic clues could have been destroyed either intentionally or inadvertently before the police investigation even began. Once again, Mr. Alston's trial attorneys failed to interview Ms. Coleman.

DNA EVIDENCE

Under North Carolina law (2001 N.C. Sess. Laws 282), a defendant such as Mr. Alston is entitled to bring in DNA even after his conviction to prove his innocence. In this case, the victim apparently fought with her attacker. Fingernail scrapings taken from the victim by the medical examiner during the autopsy, which could have been dispositive physical evidence, were never sent to the lab for DNA testing by the State. Yet again, Alston's trial attorneys failed to request DNA testing of the fingernail scrapings. The State now claims that this evidence is lost.

INEFFECTIVE ASSISTANCE OF COUNSEL

We have noted above a number of significant errors made by Mr. Alston's inexperienced trial attorneys. In addition, one of Mr. Alston's appointed post-conviction attorneys suffered a mental breakdown, lapsed into substance abuse, was eventually jailed for contempt of court and subsequently disbarred. During the summer of this attorney's mental collapse, he missed a critical filing deadline in federal court. Mr. Alston learned of this failure only when received the dismissal order, two years too late to correct the error. As a result, Alston was denied full federal review of his conviction.

The ACLU opposed capital punishment in all cases as a barbarous anachronism and in violation of the US Constitution. In Mr. Alston's case, as a result of the insufficient factual evidence, failure to conduct DNA testing which could provide evidence of innocence and the ineffective assistance of counsel, we request that you grant Mr. Alston a stay of execution, order a new trial and order DNA testing or a comparable remedy if the DNA is lost.

Sincerely,

Diann Rust-Tierney
ACLU Capital Punishment Project

Deborah Ross
ACLU of North Carolina

James V. Dick
Pro Bono Counsel
Squire, Sanders & Dempsey LLP