File video: Will South Carolina right an apparent wrongful conviction?
The song of justice sometimes starts with a whisper and a whimper, from the darkest reaches of a maximum security prison and the voices inside a man’s head who has been branded a killer forever.
But in Chester the chorus for justice is rising into shouts from police, lawyers and families who are all saying that two black men convicted of a 1973 killing of a 73-year-old white man named Claude Killian - based solely on the testimony of a snitch, career criminal out to save his own skin, are innocent and have wrongly spent the past 40 years in jail.
More, the families and lawyers want more than just parole for James Robert McClurkin and Ray Charles Degraffenreid. They want the justice that appears to have been denied to the men so long ago, based solely on the testimony of another black man who was a killer and a criminal who later admitted that he made the whole thing up.
A law professor says that if the men are exonerated - and it seems clear to him that they should be - each should receive damages from the State of South Carolina for their four decades in prison.
“There seems to be no way - none - from what appears to be known now - that this case would ever be brought to trial today and shouldn’t have been brought back then,” said Kenneth Gaines, a University of South Carolina law professor and expert in criminal procedure. “Their fate was decided before the trial ever started.”
Gaines was asked if that fate was likely because McClurkin and Degraffenreid are black, and were in 1970s Chester when the judges and police and prosecutors and jurors and the victim were all white and the crime had gone unsolved for four years.
“It appears so,” Gaines said. “That was the racial dynamics of those days.”
Joshua Kendrick, the lawyer appointed to represent Degraffenreid who has “severely deteriorated” mentally over 40 years of steel bars and cages, was plain in his words: “Mr. Degraffenreid is innocent.”
Lawyer Jeffrey Bloom, appointed to represent McClurkin, was equally as blunt.
“James McClurkin is innocent,” Bloom said.
Chester County Sheriff Alex Underwood, who re-opened the case and assigned a detective who found enough “discrepancies” - including alibis for both that put them in other towns at the time of the crime in 1973 - said this: “They were not even in Chester where victim was killed.”
Dennis Bolt, a lawyer who fought 25 years ago to free both men, was just as blunt: “They both should be exonerated. The evidence that they did not do it is overwhelming.”
Linda Hardy, sister of McClurkin, said this: “My brother and Ray Charles went to prison for one reason - the man who died was white and they were black. That was Chester.”
Degraffenreid could not even hold a conversation earlier this week and was so incoherent that he could not get to a parole hearing. He is all alone, in body and mind, on a metal cot where the State of South Carolina put him 39 years ago.
Chester in 1973 was still mainly segregated. James Robert McClurkin, 61, black, has been in prison since November 1973. He had committed before this killing what white Chester said in those days was an unpardonable sin - he took down a Confederate Flag from a school as whites fought integration. He was beaten and jailed.
Just three months after Claude Killian was killed on the hottest of hot August days in 1973 at the building that contained the Highlander launry and Bonnie Mist car wash, McClurkin was sentenced to 25 years in prison for unrelated armed robbery and house break-ins McClurkin said he did not commit.
Ray Charles Degraffenreid, also 61, has been in prison since 1977.
Court records show the killing of Claude Killian in August 1973 went unsolved until Harris, who grew up with both McClurkin and Degraffenreid and admittedly was friends with both men, was charged with two unrelated armed robberies. Harris immediately, to save himself, did apparently what what friends who are career criminals facing life in prison do.
He ratted on his friends to save himself.
“McClurkin and Degraffenreid,” Harris told the cops as loud as he could yell.
McClurkin was arrested for murder while in prison. Degraffenreid was rousted from his job, held in a solitary confinement for five days without a lawyer and almost no water or food and no heat and suffering from bleeding hemorrhoids.
“I was treated like an animal,” Degraffenreid said, but he signed a confession to get out of solitary. Even a magistrate in 1977 South Carolina wrote that the only way Degraffenreid could get out of that solitary cell was to confess to murder.
Degraffenreid immediately after getting out of solitary got a lawyer and said the confession was coerced and false but said he gave it to save his own life in that cell.
A trial in the summer of 1977 where the confession was not allowed in ended in a hung jury - 11 to 1 for the men not guilty. A retrial arrived in November 1977. A judge name John Moss who the York Moss Justice Center is named for - a former S.C. Supreme Court Chief Justice - allowed in the confession. Both McClurkin and Degraffenreid had lawyers fighting for them and alibi witnesses, saying that McClurkin was 20 miles away in Great Falls and Degraffenreid 15 miles away in the country getting his car fixed by a mechanic who testified to it all.
Arthur Lee Gaston of Chester, McClurkin’s lawyer in 1977, still practices in Chester but said that he cannot comment on the old case although he is happy that McClurkin is finally being paroled. Jim Wells, who represented Degraffenreid, is retired but could not be reached for comment. But both, documents show, argued in 1977 that neither man was in Chester at the time of the crime, let alone responsible for the killing.
More, the stolen money had been found in woods behind the store but Harris in the 1977 trial claimed that McClurkin and Degraffenreid made the getaway in a car. It remains unclear how police and prosecutors could link a getaway car to woods with no roads, when the only person on foot at the crime scene was Smokey Harris, the snitch.
With the disputed confession in the trial, a jury in 1977 needed just 41 minutes to find both guilty.
The “key” witness, the star witness, the only one pointing at McClurkin and Degraffenreid, facing life in prison himself, was Melvin “Smokey” Harris.
Harris, after all in the courtroom smoked a cigarette on Nov. 5, 1977 , just 15 minutes later pleaded guilty to the two unrelated armed robberies and was given the minimum sentence of 10 years. Police and prosecutors told the judge to take into consideration that Harris had just been the star witness that put two killers in prison forever.
The police officers in the 1977 case, along with the prosecutor and judge, are all deceased.
After the conviction, both McClurkin and Degraffenreid repeatedly at parole hearings, and in appeals lawsuits, denied guilt and asked for justice. Then Harris, the witness for the convictions, was arrested again in 1992 for a killing and robbery of a clerk that was similar to the 1973 crime. Facing a possible death penalty, Harris pleaded guilty to that crime and was sentenced to life in prison.
But Harris then told police that he lied in 1977 when he fingered McClurkin and Degraffenreid. He told cops he was home mowing the lawn when Killian was robbed and killed 15 years before. Then he gave up the whopper.
“I did it,” Harris told McClurkin and Degraffenreid’s appeals lawyer, Dennis Bolt. “I killed Claude Killian.”
Bolt asked for the convictions to be thrown out but another judge, Don Rushing, ruled that Harris could not be believed because Harris changed his story three times.
McClurkin and Degraffenreid went back to prison. They waited there until Alex Underwood, Sheriff of Chester County, agreed last year to re-open the case at the request of McClurkin’s family. He re-opened the case almost at the same time that Harris died in prison.
A judge in Chester, Brian Gibbons, in June ordered both men receive new lawyers for possible “new” evidence that might exonerate them after Underwood went to prosecutors with what he found.
Underwood and his detective, Randy St. Clair, in an unprecedented move - police rarely if ever speak for prisoners in parole hearings - told the South Carolina parole board not only did they not oppose parole, but the officers laid out all they had found.
“There is just no evidence linking them to this case,” Underwood said of McClurkin and Degraffenreid. “Except Smokey Harris - who later confessed that he did it. And Harris was the only person on foot in the whole thing when the money was found in the woods where somebody on foot had to put it.”
McClurkin was paroled Tuesday, and will be released in coming weeks after required counseling that parolees must go through. His sister, Linda Hardy, said that she wants his name cleared, too.
“I want all injustices reversed,” Hardy said. “My brother deserves everything that he has coming to him. He has been in prison 43 years and now so many people say he shouldn’t have been there in the first place. We been saying that for 40 years.”
Gaines, the law professor, said “no prosecutor” would take to trial in 2016 a murder case where the only evidence is a snitch criminal and the confession of a defendant seems to be coerced after five days in solitary confinement with no lawyer.
“Without some other evidence besides the tainted snitch who was facing charges, and a confession that any lawyer would fight to say was bogus after the defendant was in solitary for five days, this case would never see a courtroom,” Gaines said., “No solicitor would put all their eggs in one basket belonging to a tainted snitch. Top to bottom, it appears this trial was unfair. The fix was in, it appears.”
Gaines said that the state should be responsible for civil damages if the convictions are vacated.
“No question,” Gaines said. “They have been in prison 40 years. If it is shown that they should not have been convicted, they sure should receive damages.”
Bloom, the new lawyer for McClurkin, is is determined to seek all avenues of redress.
Degraffenreid’s path to freedom appears to be different. He was mentally incapable of appearing at his parole hearing Tuesday, so it was postponed until November, said Kendrick, his appointed lawyer. Kendrick and his law partner, Chris Leonard, are working to find a mental health and treatment facility where Degraffenreid could go.
“We expect him to be paroled for the same reason Mr. McClurkin was – he is innocent,” Kendrick said.
The push for not just parole, but to exonerate and clear both men, remains. Prosecutors in Chester have not yet seen any documents from all the sides to determine how to proceed - but hearings are imminent when the lawyers have a chance to finalize what has been found.
“This is an incredibly tragic situation,” Kendrick said. “Mr. Degraffenreid spent decades in prison for a crime he did not commit. You can imagine the horror of severe mental health decline while serving a prison sentence for a crime you did not commit. Even if he is paroled, we intend to continue working on this case. The State cannot give Mr. Degraffenreid back the last four decades of his life, but we expect it to at least give him back his name and reputation.”
Kendrick and Bloom, and Gaines and Bolt, praised Underwood, the sheriff for his courage in looking into the case and publicly telling the parole board his findings.
“Despite the tragedy of this situation, there is a bright spot — Sheriff Underwood’s actions should be commended,” said Kendrick, Degraffenreid’s lawyer. “Without any real benefit to him or his office, he elected to not only do the right thing, but publicly declare it at Mr. McClurkin’s parole hearing. I am proud that he is a sheriff in our state and hope other law enforcement agents look at him as a model for policing.”
Underwood said he has done what he did for one reason - it is the right thing to do.
Until these two men both are paroled and released, the clock ticks — even faster for Degraffenreid. His health is poor.
The question now is simple, but huge. The police and lawyers and a law professor and the family all say the conviction is wrong.
Will the State of South Carolina do all in its power to quickly re-examine this case, and make as much right as possible what seems to be the wrongful conviction of two black men in a southern small town?