Posted: November 17th, 2016 | By: Michael Hewlett
Professor Mark Rabil, director of the Innocence and Justice Clinic, was featured in the Winston-Salem Journal article, “Winston-Salem man claiming wrongful conviction in murders is too late in filing federal appeal, Attorney General’s Office says,” published by Michael Hewlett on Nov. 15, 2016. The article discusses the latest in the case of Professor Rabil’s client, John Robert Hayes. A portion of the article follows.
Peter Regulski, a prosecutor with the state attorney general’s office, filed court papers asking a federal judge to dismiss Hayes’ appeal on procedural grounds. He said a judge doesn’t even have to consider the merits of Hayes’ appeal because Hayes and his attorney, Mark Rabil, should have filed his petition in April 2011, at the earliest. At the latest, they should have filed the appeal in April 2012.
Hayes’ petition was filed four years and five months too late, and “its gross untimeliness is fatal to Petitioner’s claims,” Regulski said in court papers.
Rabil alleges in the federal appeal that Forsyth County prosecutors failed to turn over evidence that three eyewitnesses — Cynthia Coleman, Mary Geter and Anita Jeter — gave inconsistent statements. For example, Coleman told Winston-Salem police that the shooter was between 5 feet 6 inches to 5 feet 8 inches tall and wore his hair in “plats” or “dreadlocks.” But Hayes is 6 feet 5 inches tall and had short unbraided hair at the time of his arrest, according to the appeal.
Among other things, prosecutors also did not disclose that there had been a third shooting victim, Kenneth Wade Evans, who was walking down East 22nd Street when he was shot in the left foot and that detectives at the time believed Evans, Bitting and Samuels were shot by the same person, Rabil alleges. No one was charged in Evans’ shooting.
Rabil said 10 other witnesses identified other shooters with possible motives.
But Regulski said Hayes had enough evidence given to him from the Forsyth County District Attorney’s Office to file an appeal in either 2011 or 2012.
And Hayes hasn’t presented compelling evidence of his innocence that would excuse the federal deadline, he said.
Rabil said Tuesday in an email that he will be filing a response to Regulski’s motion to dismiss. He said that state prosecutors have argued similar “hyper-technical points in federal court in the Kalvin Michael Smith and Darryl Hunt cases, two other innocent men from Forsyth County.” Hunt was exonerated in 2004 in the murder of Deborah Sykes, a copy editor at the now-closed afternoon newspaper, The Sentinel. Hunt died earlier this year. Rabil was Hunt’s longtime attorney.