Families of deceased Wilmington 10 members want compensation

by Scott Mooneyham, The Insider, February 13, 2014.

The families of the four deceased members of the civil rights protesters known as the Wilmington 10 are seeking compensation, but the state attorney general’s office is trying to block the claim.

The case, which is pending before the N.C. Industrial Commission, comes after compensation was awarded to the living members of the Wilmington 10, including former national NAACP head Benjamin Chavis.

State law allows those who receive pardons of innocence to be granted payments based on the time that they were wrongfully imprisoned. But lawyers in the office of Attorney General Roy Cooper argue that the law makes no provision for compensation to the estates of the deceased.

Claims approved by the Industrial Commission, and signed off on by Cooper’s office last May, provided a total of $1,113,605 to Chavis, Reginald Epps, James McKoy, Wayne Moore, Marvin Patrick and Willie Earl Vereen. Chavis received $244,470, and Patrick received $187,984. Most of the other awards were about $175,000. The law calls for payments of $50,000 for each year that someone was wrongfully imprisoned, with total compensation not to exceed $750,000.

Department of Justice spokeswoman Noelle Talley said the role of department attorneys in the settlements is primarily to ensure that those who seek them are qualified and that the calculations are correct.

“These issues are statutorily driven, and the parties and Industrial Commissions are pretty well guided by the specific language of the pertinent statutes,” Talley said in an emailed statement.

Could set expensive precedent

But in the cases of the four deceased members of the Wilmington 10 – Jerry Jacobs, Ann Shepard, Connie Tindall and Joe Wright – Cooper’s office concluded that the families did not meet the qualifications under the law.

When lawyers for the families filed claims with the Industrial Commission, Cooper’s office sought to have them dismissed, according to filings. Industrial Commission Deputy Commissioner Brad Donovan denied the motion to dismiss the claims in late October, and Cooper’s office is now appealing the ruling to the full commission.

Filings with the Industrial Commission show attorneys from Cooper’s office argue that the state law that allows the compensation refers specifically to a “person” being eligible for the payments.

“The plain meaning of this statute is clear and unambiguous, and does not require speculative construction or interpretation,” an October memo filed by Cooper’s office states.

Other filings by the Department of Justice argue that, because governors could issue pardons of innocence decades after the person died, a different reading of the law could subject the state to payments to descendants for any period of time into the future, something not intended by the legislature.

State attorneys also say the principle of sovereign immunity, that the state is immune from lawsuits unless it consents to being sued under defined circumstances, requires a narrow reading of the law.

Harm lives on

Lawyers for the families argue that the Wilmington 10 should be granted compensation together, as former Gov. Bev Perdue made no distinctions between them when granting the pardons of innocence. They also point out that the state law does not say “living person” when speaking to the compensation.

“When an innocent person has had his or her liberty and a portion of their life stolen from them as they are incarcerated for crimes they did not commit, justice demands acknowledgment of that wrong and compensation for the harm suffered. The harm lives on after death – especially in the lives of impacted loved ones,” states an October filing from attorneys James Ferguson II and Irving Joyner, who are representing the families. Attempts to reach Ferguson and Joyner were unsuccessful.

Donovan, in denying the motion to dismiss the claims, rejected the idea that the statute is clear, calling the language ambiguous. He pointed out that the law is meant to compensate the wrongly convicted for any earnings while they were imprisoned, and those earnings could have ultimately benefited the person’s family.

The lawyers for the families are scheduled to file a brief further outlining their arguments, this time to the full Industrial Commission, later this week.

The Wilmington 10 were convicted in 1972 of firebombing a store. Supporters of the group immediately attacked the credibility of the case. Former Gov. Jim Hunt commuted their sentences in 1978 but declined to pardon them. In 1980, citing misconduct by prosecutors, a federal appeals court overturned the convictions. Perdue issued the pardons just before leaving office.