Winston-Salem Journal reports Professor Mark Rabil has filed appeal to overturn 1994 conviction of John Robert Hayes

Photo of Professor Mark Rabil outside the Worrell Professional Center

Professor Mark Rabil, director of the Wake Forest University School of Law Innocence and Justice Clinic

Professor Mark Rabil, director of Wake Forest Law’s Innocence and Justice Clinic, was quoted in the Winston-Salem Journal article, “Winston-Salem man appeals conviction in ’93 fatal shootings,” published by Michael Hewlett on July 16, 2016.

The article follows recent developments in the 1994 conviction of John Robert Hayes, Professor Rabil’s client.  Last Tuesday, Professor Rabil filed a petition with the N.C. Court of Appeals to overturn Hayes’ conviction and grant Hayes a new trial.  The original article follows.

A Winston-Salem man convicted of killing two men outside an illegal drink house in 1993 is asking the N.C. Court of Appeals for a new trial, alleging that Forsyth County prosecutors withheld evidence and presented misleading testimony.

John Robert Hayes, 44, was convicted July 19, 1994, of two counts of second-degree murder in the deaths of Waddell Lynn Bitting and Stephen Joel Samuels. The jury deliberated about 30 minutes. Bitting and Samuels were shot to death on July 25, 1993, as they were coming out of a drink house at 910 E. 22nd St., which was known as the “Deuce-Deuce.” Hayes was arrested three months later on Oct. 11, 1993.

Hayes is serving two consecutive life sentences. His attorney, Mark Rabil, filed a petition Tuesday with the N.C. Court of Appeals, asking the court to overturn Hayes’ conviction and to grant him a new trial.

Rabil, the director of the Innocence and Justice Clinic at Wake Forest University School of Law, is appealing a ruling in October 2014 from Judge William Z. Wood Jr. of Forsyth Superior Court. Wood rejected Hayes’ appeal after a two-day hearing in Forsyth Superior Court.

In the petition, Rabil said Forsyth County prosecutors withheld favorable evidence in Hayes’ 1994 trial, including the fact that a third person was shot and identified a different shooter and that 10 witnesses named someone else as the shooter, along with possible motives. They also failed to turn over evidence that could have been used to undermine the credibility of two eyewitnesses, Rabil said.

Prosecutors also allowed misleading testimony about the ballistics evidence, and Hayes’ trial attorney, Warren Sparrow, failed to provide adequate legal representation, according to the petition. According to the petition, Sparrow spent a total of 10 hours on the case.

“Mr. Hayes has maintained his innocence for these last 23 years,” Rabil writes in his petition. “The post-conviction discovery shows this to be a case with many of the risk factors for a wrongful conviction, including mistaken eyewitness testimony, the misrepresentation of forensic testing, the failure to disclose exculpatory law enforcement reports, and inadequate lawyering.”

Assistant District Attorney Matt Breeding, who defended Hayes’ conviction at the hearing in October 2014, said he was limited in what he could say publicly because the case is still pending.

“The state is confident in (Wood’s) ruling but we’re glad to let the criminal process work itself out and figure out what the higher courts say,” Breeding said. “That’s why we have an appellate process so that we can test the rulings of lower courts.”

During the hearing in 2014, Wood ruled that Rabil and Hayes’ other attorneys, Jay Kyler and Kelly Lantz, had failed to prove that Eric Saunders, who prosecuted the case and has since died, suppressed evidence or that the evidence would have significantly made a difference in Hayes’ case.

Wood also determined that Sparrow was not negligent in his representation of Hayes.

Excluded evidence

Prosecutors say that around 3:30 a.m. on July 25, 1993, Hayes was at the drink house when he heard gunshots outside. They allege that Hayes walked out, went to his blue car parked on the street in front of the house, and got a 9 mm semiautomatic handgun out of the trunk.

Then, prosecutors said, he started firing, hitting Bitting and Samuels.

Rabil said prosecutors didn’t tell the jury the whole story, and if they had, Hayes might never have been convicted.

Mary Geter and Anita Jeter were the state’s main eyewitnesses, but Rabil said in his petition that they gave conflicting statements to police, initially telling investigators that the murder weapon was a “large caliber” gun. Dr. Patrick Lantz, a Forsyth County medical examiner, testified at trial that the shell casings found at the scene belonged to a medium-sized firearms. Anita Jeter, Rabil said, also lied when she told authorities that she didn’t work at the drink house. She did work there and knew the owner, according to the petition.

Another eyewitness, Cynthia Coleman, couldn’t specifically identify Hayes but described the shooter to police, Rabil said. But her initial description of the shooter didn’t match Hayes. She said the shooter was a black man (Hayes is also black) with dreadlocks who stood between 5 feet 6 inches to 5 feet 8 inches tall. But Hayes wore his hair in an Afro in 1993 and is 6 feet tall, Rabil said. Coleman also told police that the shooter was wearing a dark or striped shirt but testified at trial that the shooter was wearing a light-colored shirt.

Prosecutors also never mentioned that two additional shell casings were found on the porch of the drink house, even though Jeter and Geter told investigators that Hayes started shooting beside his car on the street. The jury was only told about 12 shell casings found on the street and not the two found on the porch, Rabil said.

“The location of these shell casings disproves critical trial testimony and proves that the State’s story of the crime at trial was impossible,” Rabil said in the petition.

A lead detective on the case allowed the jury to believe that a bullet pulled from Bitting was “fairly consistent” with a 9 mm shell casings found near the blue car from where prosecutors say Hayes fired, Rabil said in his petition. But the State Bureau of Investigation, which analyzed the ballistics evidence, never said the bullet was a match to the shell casings, according to the petition.

The jury also never knew that 10 other witnesses named someone other than Hayes as the shooter and indicated possible motives, Rabil said. And the jury also never heard from Kenneth Evans, who was shot in the leg as he was walking along 22nd Street. He gave authorities a description of the shooter that contradicted the one given by Jeter and Geter, Rabil said. Evans also said the shooter was firing the gun from across the street by a white car, according to the petition. Prosecutors said Hayes fired from a blue car directly in front of the house.

The N.C. Attorney General’s Office will likely represent the Forsyth County District Attorney’s Office in the appeal.

The N.C. Court of Appeals will first have to decide whether to allow the petition. If the court decides to review the case, it could take up to a year before it issues a decision.