news
Wilmington 10 Defense Attorney,
James Ferguson, Supports Pardon
‘Case illustrates a criminal justice system nightmare’
By Brian Stimson
of The Skanner News
T
he National Newspaper Publisher’s
Association announced this week that
it will be leading a push to formally
pardon the Wilmington 10.
In 1972 in Wilmington, NC, 10 young
people, nine of whom were Black, were
convicted of arson and conspiracy after a
trial bereft with recanting witnesses, a pros-
ecution that withheld evidence and tam-
pered with witnesses and jurors who were
openly prejudiced against not only Blacks,
but the very people they would be judging.
The convictions were overturned in 1980,
three years after Amnesty International
declared the 10 to be political prisoners.
The attorney who defended the 1972
Wilmington 10 case, James Ferguson, II,
spoke with The Skanner News from his law
offices in Charlotte, NC. Ferguson is an
accomplished criminal defense and person-
al injury lawyer who has been recognized as
one of the nation’s “top ten litigators” by the
National Law Journal.
the Skanner news: Do you see a value
in a pardon of innocence, despite the fact
that the convictions were thrown out by an
appellate court in 1980?
James ferguson, ii: I always think
there’s a value in a pardon anytime you
have a conviction under the circumstances
like the Wilmington 10 and when you have
court such as the Fourth Circuit that over-
turned that conviction because of prosecu-
torial misconduct and withholding evidence
and the nature of the witnesses involved
who had multiple recantations. So you
never had a conviction that anyone can rely
upon. And a felony convic-
tion affects a person for the
rest of their life.
tSn: Do you think this is
something that is politically
feasible at this time in North
Carolina?
Jf: Well, who knows?
You go for what’s the right
thing do whether it’s politi-
cally feasible or not. The decision makers
need the opportunity to consider the facts
and when you have facts that point to an
injustice that has taken place, and the injus-
tice can still be addressed, I don’t think the
justice should be decided by political feasi-
bility.
tSn: I lived in Durham, NC for several
years in the 1990s when I was a youth. I
know that even then, racial tensions in that
city ran high.
Jf: I’m sure they did. They have for
years. I attended undergraduate school in
Durham in the 1960s and they were high
then. But sometimes results can be achieved
when it appears unlikely they will be. I
know that things are politically difficult, but
I do feel that given the circumstances of this
case, and with this being a period around
the 40th anniversary of the case and with
renewed attention, it’s doable. Sometimes
even in conservative circles you can get
folks to look at the facts that point to an
injustice.
tSn: Does this case stick out as one of
great importance among all the cases you
have represented?
Jf: I think this case is symbolic of a trans-
formative racial moment in the history of
North Carolina and the nation and the
world. In a number of ways it is because it’s
symbolic of what can happen when
young people decide to speak out
and stand their ground. This is relat-
ed to school desegregation effort in
Wilmington and certain African
Americans in the community want-
ed to see the desegregation process
be more sensitive to the African
American students and their needs,
they wanted equally spread on the
community, and they wanted to take
a stand and let the community know
they wouldn’t be intimidated by
whites. When I talk about it being
an important racial moment in the history of
North Carolina, one of the things that gets
overlooked in this is that this case had
worldwide
implications.
Amnesty
International took the position that the
Wilmington 10 were political prisoners of
conscience in America. That case was the
first time and I believe it may be the only
time that AI determine that there were pris-
oners of conscience in the U.S. Around the
time, I believe it was 1977, there were 14
political prisoners of conscience under
Amnesty’s criteria. It’s significant that 13 of
the 14 were North Carolinians. There was
the Wilmington 10 and the Charlotte 3. So,
the world wide attention that the case gar-
nered, the international action, speaks to the
significance that this case had. It was more
than 13 young people being unjustly con-
victed.
tSn: Looking back on the case, is there
anything that could have been done differ-
ently that could have affected the outcome
of the case?
Jf: That’s a hard thing to say, considering
the fact that among the jurors was at least
one juror that stated in court that she was
prejudice against Ben Chavis and stated that
her son was in the National Guard and she
was concerned for his safety, and had taken
it upon herself to go down and look at the
scene, she was so concerned what had taken
place … but when asked the question by the
judge, can you put all those feelings aside,
then she answered yes. The judge let her sit.
I don’t know that the facts made much dif-
ference to her, I don’t know that there was
anything much that could have been done to
change the outcome with her, and I suspect
the others had same sentiments but weren’t
as vocal. So it’s hard to second-guess.
tSn: Do you think there needs to be an
investigation into the prosecutorial miscon-
duct or the opinions of the judge at the
time?
Jf: Well, I hadn’t really considered that at
this time. I think a pardon of innocence
would require some investigation into the
case. I’m not sure what purpose would be
served at this late date to investigate the
prosecutorial misconduct.
tSn: How did this case affect you per-
sonally and professionally through the
years?
Jf: I came to this case fairly early in my
career. I was four years out of law school
when I came to this case. So this case was
part of my development as a lawyer, my
introduction to the many challenges of
unjust prosecutions that arose. So I think I
learned in this case just to what lengths
prosecution would go to obtain a convic-
tion. I learned we can’t always rely on judi-
‘I learned not so much
what impact the case had
on me and my career, but
the impact a criminal
prosecution can have on
the lives of young people’
Page 6 The Portland Skanner march 23, 2011
cial impartiality we can hope for it but it’s
not always there. I learned not so much
what impact the case had on me and my
career, but the impact a criminal prosecu-
tion can have on the lives of young people.
Bearing in mind that all of these young peo-
ple, with the exception of two or three, were
in high school. And their lives were devas-
tated by this prosecution and this convic-
tion. And even now, many of them are still
affected by it. Some of them are deceased
and their lives were lived under the cloud of
this case even though the court ultimately
overturned the conviction. So the criminal
justice system is used as it was in this case,
to suppress efforts of folks seeking to
change their community, it’s important to
remember, just the conviction itself, not to
mention the years spent behind bars is a ter-
rible weight. I’ve seen our society become
more and more over-criminalized and peo-
ple don’t think about the tremendous impact
that a criminal conviction has on a person’s
life, particularly those that have been
unjustly convicted. As we know now some
of the things that have been uncovered by
DNA, not in this case, but other cases, peo-
ple come out having been unjustly convict-
ed. As for me, it has made me always con-
cerned about how the criminal justice sys-
tem is too often misdirected with the way it
is used. One time is too many times.