The Legal Burden

As she tries to help a man gain his freedom, a law student struggles to find her place in the justice system.
April 29, 2015
Image courtesy Theresa Newman

The eleven witness statements, written in black ink on white paper, all told different stories of the night Jeremy Rankin was killed in the fall of 1995 in Rockingham, North Carolina. They differed in the exact time and place of the murder, the identity of the shooter, and the motive behind the crime. Mismatched as the statements appeared to be, together they anchored the case against Derrick McRae, who was sentenced to life in prison for the crime in 1998.

Sixteen years later, the statements have passed over the desks of police officers, prosecuting attorneys, and defense lawyers, until recently landing in the hands of second-year Duke law student Jyoti Jindal. In addition to the statements, she also has inherited shelves of notebooks, files, and binders, thousands of pages that describe why the case is flawed and why McRae is innocent.

It’s late November 2014. Most students have gone home for Thanksgiving, but Jindal is spending the break here, in the depths of the law school, examining the statements and noting their specifics in a spreadsheet on her laptop. The brightness of a streetlamp, the exact caliber of a handgun, the red color of a truck—she knows that any minor detail may tip the scales in the defense’s favor.

“All of these statements came forth in a period of about ten days, and they all inculpate Derrick,” Jindal says. “We speculate that the police went out and canvassed the neighborhood. These inconsistencies are ones we would expect the police to follow up on.

“As an attorney, you want to give the jury a coherent narrative,” she adds. “The stories aren’t lining up together, and if they’re not lining up, then maybe they’re not the truth.”

Jindal is enrolled in the Wrongful Convictions Clinic, one of the law school’s ten legal clinics. Each semester, about ten students help clinical faculty investigate real-life wrongful convictions cases. For the past eight months, Jindal has been helping build McRae’s defense. Today, she’s focused on preparing for the evidentiary hearing, which is set for the first three days of December.

Persuading a judge to overturn a life sentence for first-degree murder is extremely rare, and Jindal knows that. Despite the odds, she’s thrown herself wholly into winning freedom for McRae. As the case unfolds, it takes a toll on her psyche, prompting questions about whether she’d be able to handle this work in the long-term.

Jindal is petite and brown-eyed. From a chain around her neck, a gold pendant floats over the crewneck of her Duke Law sweatshirt, like a small minnow in a blue sea. A gift from her mother, the pendant depicts the Hindu goddess Durga, protector of the weak. This afternoon, she’s settled in the modest clinic space, at an oval table dotted with three-ring binders stuffed with case files. Across the room, a poster shows five beaming men who’ve been released from prison—the clinic’s success stories. In the opposite corner, beside a ticking clock, a police lineup of young black men slump gloomily in a black-and-white photo—one of them has been incarcerated since 1976. The clinic lost his case last year.

One hundred and forty-one miles east of where Jindal sits in the law school, in a cell at Alexander Correctional Institution, Derrick McRae is waiting.

Jindal in the law school's moot court room. (Photo by Les Todd)

Jindal was born in the winter of 1990 in northern India to a doctor father who served the indigent and a mother who taught math to local children. Her memories of India are fragmentary, dreamlike: a collection of peacock feathers; sleeping on the rooftop during hot Punjabi summer nights. When she was no more than six years old, she had to memorize the multiplication tables and recite them backwards at school. One day, she made a mistake while reciting multiples of seven. The principal, who happened to be visiting class, swiftly slapped her.

“I was so upset,” she remembers. “I went home and told my mom, and she was so upset that she didn’t send me back to the school.”

Not long after this early run-in with injustice, a seven-year-old Jindal immigrated to the United States. As a second-grader in Reston, Virginia, she latched on to lessons about the American Revolution and the civil rights movement, the ideals of freedom, equality, and justice making an impression even then. In the following years, she continued flying back to India to visit family, and she began to take more notice of the contrasts between the two countries, including the degree of opportunities available to women.

Jindal attended the University of Virginia, majored in biology and art history, and planned to become a doctor. She liked science, but eventually she decided health care wasn’t a good fit. She shifted her focus to the law and politics, particularly enamored with Thomas Jefferson’s stress on civic participation. After graduating, she worked for President Obama’s re-election campaign and interned for a congressman. In August 2012, she arrived at Duke Law with plans to become a campaign-finance lawyer.

During orientation, she and several hundred other rookie law students watched The Trials of Darryl Hunt, a documentary about a man’s decades-long fight for justice in Winston-Salem. Afterward, the students directed questions at Darryl Hunt and LaMonte Armstrong. Both men had been ripped away from their lives, from families and bright futures, for crimes they had nothing to do with. Since his release in 2004, Hunt had devoted himself to working with other people who were wrongfully convicted. Armstrong was newer to freedom, as the Wrongful Convictions Clinic had just won his case earlier that summer. They talked about how it felt to be in prison and to know they were innocent, and how it felt to finally be released.

Jindal was one of many students who cried. The men’s stories hit her so strongly, the glaring injustice was so overwhelming, that she ruled out signing up for Duke’s Innocence Project, the student-led group that screens cases before referring them to the clinic. I can’t do that, she thought. I’m going to be so emotionally distraught. She doubted herself in other areas, too. A voice within told her she didn’t belong at law school, that she wasn’t smart enough. She was sure she would fail her exams. However, when she received her grades, she was pleasantly surprised: She had done well. Maybe she was supposed to be here after all.

By the end of her first year, she felt better prepared by her legal education, and the Wrongful Convictions Clinic didn’t seem quite as daunting. “I wasn’t just going to be a bystander. I wasn’t just watching the injustices happen, I was going to help change them,” she recalls. She applied for a summer internship with the clinic, and she was assigned to State of North Carolina v. Derrick Jovan McRae.

In 1995, halfway around the world from where Jindal was committing multiplication tables to memory in India, a young white man named Jeremy Rankin was found dead on the front porch of a house in Rockingham, a small former mill town seventy miles southeast of Charlotte. There was a close-range bullet wound to his head, a crack pipe and spent shell casing at his side.

Four months later, police arrested Derrick McRae, a black sixteen-year-old from the nearby projects, and sent him to the Richmond County Jail. People in the community knew McRae to be shy, quiet, and a little odd, but not everyone understood that his antisocial behavior was a sign of emerging mental illness. As he awaited trial over the next two and a half years in jail, the stressful environment caused his mental health to worsen. He was repeatedly shuttled to and from Dorothea Dix Hospital, the psychiatric hospital in Raleigh, where his treating psychiatrist observed his repetitive hand gestures, hallucinations, abysmal hygiene, delayed response to outside stimuli, and difficulty separating reality from the chaos reigning inside his head. She rated him in the lowest range of functioning and described him as one of the most severely mentally ill people she had ever evaluated.

By the time of his trial in 1998, McRae had been diagnosed as paranoid schizophrenic and psychotic. He was found incompetent to stand trial three times, until he was forcibly medicated and then ruled competent. At his first trial, the jury deadlocked 8 to 4 in favor of acquittal. At his second trial, McRae was sentenced to life in prison without the possibility of parole. He was nineteen.

Last summer, Jindal lived and breathed the case. From the windowless clinic room at Duke, powered by cup after cup of unsweetened black coffee with cream, she tracked down health records, interviewed witnesses, and studied old memos from students who had worked on the case before her. She also assembled the witness binders— containing all the exhibits, information, and notes relevant to a particular witness—which she organized meticulously and memorized.

Jamie Lau (left) and Theresa Newman direct the wrongful convictions clinic, along with James Coleman. (Photo by Jeremy Lange)

She and other students worked alongside Theresa Newman J.D. ’88, James Coleman, and Jamie Lau J.D. ’09, clinical faculty members who supervise the Wrongful Convictions Clinic. Newman had been leading the work on McRae’s defense since 2006, when it was referred to her by the North Carolina Center on Actual Innocence, a nonprofit that screens cases and refers them to innocence projects at North Carolina universities. When Jindal joined the team, Lau had taken the co-lead on the case, and the lawyers were in the final stretch leading to the hearing. As she familiarized herself with the case, a disturbing picture emerged.

Back in the 1990s, the state’s prosecutors had relied almost entirely on two witnesses: Edward Tender and Thurman Nelson. Tender met McRae while they were both in jail. Upon agreeing to testify against McRae, Tender had the bulk of his charges reduced or dismissed. At trial, Tender said McRae had confessed to being the shooter; that he was a book-smart follower of black revolutionaries Malcolm X and Stokely Carmichael; and that McRae had told him “all white people needed to die.” Tender’s vanishing charges, as well as his divergent description of McRae, indicated to Newman that he might be a classic jailhouse informant—a person who offers incriminating testimony to the police in exchange for favorable treatment.

(Newman confirmed her suspicions in 2009, when she and a then-law student, Leigh Llewelyn J.D. ’12, met Tender for lunch in Rockingham. Tender volunteered that he had lied about McRae’s involvement in the murder, and that the state had “framed that guy.” According to Llewelyn’s subsequent affidavit, before leaving the restaurant Tender leaned across the table and asked Newman, “Is there anything you can do to help this boy?”)

Newman found the second key witness equally troubling. Thurman Nelson was a childhood friend of McRae’s. After Rankin’s murder, an eyewitness claimed he’d seen both McRae and Nelson approach the house with handguns, shoot Rankin, and walk away. Both men were initially charged with the murder.

Unlike McRae, whose family could not afford a private lawyer, Nelson recently had come into some money after his mother died in a fire at the poultry processing plant where she worked. The settlement allowed him to post bond and hire one of the area’s foremost attorneys. At trial, he testified that McRae had killed Rankin for cheating him in a drug deal. Afterward, several of Nelson’s pending charges, including the one for first-degree murder, were dismissed.

Then there were the eight people who came forward months after the murder, apparently with no prompting and all in a short period of time, to give statements to the police.

“What that signals to me, as a post-conviction lawyer, is that someone is giving them Derrick’s name,” Newman says. Like Tender and Nelson, all of these people had pending charges that were reduced or dismissed after they named McRae as the shooter.

“Take all of the statements and lay them out, even the ones that name Derrick,” Newman continues. “They can’t all be true. So how do you pick one? What makes one true and the rest not? Nobody did any follow-up investigation.” The state had no other evidence linking McRae to the crime scene—no DNA, no fingerprints, no murder weapon, and no viable motive.

Despite all the obvious cracks in the state’s case, Jindal quickly learned that the cards were stacked against McRae.

“What people like about the law is that it’s rational, it doesn’t pick sides, it treats everyone fairly. But then you get a case like this, you see that isn’t really the case,” she says. “There are a lot of people who are disadvantaged. In this case, it appeared Derrick was preyed upon because of his disadvantages to ensure his conviction.”

According to Coleman, the system is naturally slanted toward the state. Judges often are reluctant to disturb a jury verdict, especially in a criminal case, because it implicitly criticizes the system of which they’re a part.

“There’s no stand-alone claim of innocence,” says Lau, supervising attorney for the clinic and head litigator for the McRae case. “Innocence is not enough. You have to prove more. You have to prove that there was some flaw in his conviction that would make it be overturned.” Even when it’s painfully obvious to them that their client is innocent, the attorneys still have to jump through all the proper legal hoops, often waiting years to see any movement in the court system.

Last summer, however, McRae’s case appeared to be inching forward when the defense team attended a preliminary hearing in Rockingham in July. It was the first time Jindal met McRae in person. She felt a maternal instinct to protect the shy, stocky man in an orange jumpsuit, who kept his head down during the proceedings. Although he was now thirty-five years old, “he was almost sixteen in the way he carried himself and spoke,” she says. At that moment, she finally understood what Newman had been saying: It was like McRae was stuck in 1995, when it all began.

At summer’s end, Lau asked Jindal to continue working on the case. It would be a rare opportunity to be so heavily involved in a hearing. Still, she hesitated: It was a tremendous responsibility, and she already had a lot of other involvements. For about a week, she weighed the pros and cons carefully.

Then she thought about McRae and the handwritten letters he frequently sent to the clinic. The carefully printed words spelled his naiveté about the corruption involved in his case (he’d ask the team to say hello to “my best friend Thurman Nelson”), as well as his unconditional gratitude toward the Duke lawyers (“I love y’all,” he wrote, “even if I don’t get out.”). At the thought of those letters, her decision was suddenly clear. She told them she was in.

The date for the official hearing was set for December. After eight years of preparation, the attorneys would have three days to prove their case and enter evidence into the record. By then, McRae would have spent eighteen years behind bars. Jindal’s schedule was packed with classes and activities, including her roles as representative to the Women Law Student Association, staff editor for the Duke Law Journal, coordinator for the moot court competition, and a mentor to first-year law students. Yet she felt compelled to make the case her priority. While some students were content to put in their few hours with the clinic each week, for Jindal that wasn’t enough. “I’m just not able to do that cursory, minimum commitment,” she says.

Some of her other commitments fell by the wayside, and occasionally she missed class to do work for the clinic. During visits home in Virginia, she’d inevitably end up working on the case all weekend, to the irritation of her family. At school, she often was so absorbed in the case that she’d forget to finish eating her lunch. Newman began to joke that a pile of cold fries meant Jindal must be close by, hunkered over the case. As the hearing approached, some nights she stayed working in the clinic classroom until 3:00 in the morning, long after the others had gone home.

Other students have struggled to balance their cases with the rest of their lives. Brianna Strange, a third-year law student, worked on the case of Kalvin Michael Smith, also known as the Silk Plant Forest Case.

It’s a harrowing tale: In Winston-Salem in 1995, a young white woman was brutally beaten in the artificial-flower shop where she worked, leaving her with lifelong brain damage. A white man with a history of domestic violence was linked to the victim and to the scene, but shortly after the attack he moved to a different town and police dropped him as a suspect. Instead, they arrested Smith, a young black man, though no physical evidence ever placed him at the crime scene. He has been incarcerated ever since.

When Strange began working on the case, she talked and thought about it incessantly. “It was really hard to get over the fact that I couldn’t work on this case 24/7,” she says. “This person is in jail. It was hard to do homework for other classes when this felt so much more pressing.” Every visit to see Smith in prison, every legal dead end, was a fresh heartbreak.

“It’s very psychologically taxing work,” agrees Ana Apostoleris, a second-year law student, who says she hasn’t yet figured out how to deal with the anger and frustration of knowing that her two clients have lost decades of their lives. “They were young men in their early twenties—my age—when they went to prison, and now they’re in their forties. And no matter what you do, you can’t give that back to them,” she says.

Every conviction, whether the person is guilty or not, reverberates through families and communities, leaving marks that can’t be erased, holes that can’t be filled. With his father locked away, especially for something he seemingly didn’t do, Kalvin Michael Smith’s son grew up defiant of police, according to his grandfather. He recently was sentenced to nine to twelve years in prison for armed robbery. “It’s not just that this individual’s life has been ruined by this failure in the criminal-justice system. It’s generations of this man’s family that have been ruined by this failure,” says Apostoleris. “It’s never isolated.”

The lawyers and law students who work on these cases are not spared, either. With practice, they build up immunity to the high-voltage emotions, both for the sake of the case and their own sanity. “It’s always a wrestling match between indifference and bowing under the weight of the thing,” says Leigh Llewelyn, who helped investigate the McRae case when he was a law student.

Jindal freely admits that the case has been difficult for her. Often when she talks about it, her large brown eyes blink back tears. “I feel injustices very deeply. I feel them as if they are my own, even if I don’t feel them to the same degree,” she says.

Though most Wrongful Convictions Clinic students do not end up in criminal justice, they still will go on to occupy a place in the legal universe. “Some of our law students will go on to be judges, some will go on to be academics, some may become lawmakers themselves, and others will work in corporate law firms that have pro bono opportunities where they can become involved potentially in the criminal-justice system,” says Lau. What they learn in the clinic may shape the way they choose to practice, whatever form that practice takes.

While it’s been hard on Jindal to witness the destructive side of the law, it has also presented her with a choice—and a responsibility. The system, after all, is made up of individuals, whose job it is “to stand in the gap between the way things are and the way things should be,” says Llewelyn. He thinks the business of being a lawyer is built on shouldering some of your client’s weight. “You’re going to them, often in the worst moment in their life, and you say, ‘I know this is difficult for you, and now it’s my difficulty. You don’t have to worry about this anymore.’ ”

The defense would like to call Mr. Edward Tender,” says Lau. A short, elderly man with salt-and-pepper hair hurries down the center of the courtroom toward the witness stand with a crooked stride.

The December hearing finally has arrived, after years of work for the attorneys and months of work for Jindal. She sits on the left side of the courtroom, wearing a fitted black suit and the gold pendant from her mother. At the table in front of her, the three attorneys sit with McRae, who wears a brown argyle sweater and shoes brought by his family. His hair is frayed and twisted into braids, his head angled down toward the spaceships he’s doodling on a yellow legal pad.

While outwardly, Jindal appears collected and focused, her mind is racing to interpret what’s happening, to register whether the defense team is winning or losing points. Sometimes the witnesses dodge questions, claim loss of memory, or otherwise don’t cooperate in the way she envisioned they would. In those moments, she smolders silently: Come on, we all know what happened here. You’re under oath. You need to tell the truth.

Amid exasperation are flashes of affirmation. Several cardboard boxes containing case files surround her; Jindal knows their contents so intimately she can often predict which document the lawyers will need next. From time to time, she gets an idea of her own, scribbles it on a scrap of paper, hands it to Lau, and quietly glows as he puts it to use before the judge. In those moments, when her own knowledge of the law is put into play, she feels convinced that this is what she wants to do: become the best possible advocate for others.

After lunch, Lau calls Edward Tender, one of the state’s two main witnesses at the 1998 trial. Tender has told Lau he’s going to recant his original testimony before the judge, admitting he lied about McRae so many years ago.

“Mr. Tender, do you understand that you are still under oath?” asks Judge W. David Lee, gazing down through black squareframed glasses from his elevated bench.

“Yes, sir,” nods Tender, taking the witness stand.

“Mr. Tender, was your testimony at Mr. McRae’s first and second trial true?” asks Lau.

“You know what, I can’t even remember that far back,” says Tender, shaking his head. A murmur ripples through the room, especially among McRae’s family members.

Lau reaches for Tender’s signed affidavit, in which he’d recanted his testimony. “Do you have your glasses today?” Lau asks.

“No, it’ll be fourteen days before I get them,” says Tender. He seems to have conveniently forgotten his glasses and Lau can’t ask him to read the written transcript without them. Lau is trying to weave a crucial thread, but it seems to be unraveling. A feeling of dread and deflation comes over Jindal; Tender is burying McRae all over again.

They have one weapon: an audio recording of Tender admitting to two private investigators that he’d lied back in 1998. No one in the defense team had thought they’d need the recording at the hearing—they had the written transcript, after all—but Jindal had insisted on bringing it. Because Tender is refusing to read, this is their best way to reveal the truth.

Lau positions a laptop containing the disc along with two speakers on the witness stand. The scratchy voices of Tender and a private investigator fill the courtroom. The investigator refers to Tender’s testimony from the 1998 trial, in which he’d said McRae was the shooter.

Investigator: Was that true?

Tender: No, it wasn’t. We were told by the police, they wanted to get Derrick. And so, we were told, you know, that if we told them that they would suspend our sentence.

I: So in other words, are you saying the police made up a statement for you?

T: Yes, yes they did.

I: Why did you do this?

T: They had promised us that—matter of fact, I think I was under about $150,000 bond for a bunch of stuff.... They promised me a lenient sentence, which I ended up getting.

Tender wears a dour expression as his own voice blares loudly in his ear. The recording continues.

I: Now, did you know Derrick McRae?

T: I just met him at the jail, but I didn’t know him personally, no...There was something wrong with him, mentally….

I: So actually, your testimony was false?

T: Yes. Yes, it was.

A heavy silence hangs over the room. McRae’s sister is weeping; his brother storms out of the courtroom, visibly shaken, his cheeks shining with tears. Moments later, in the women’s restroom, Jindal is crying, too.

For two months after the hearing, Jindal and the others felt hopeful about how it had gone. To them, the case was open-and-shut; there was no doubt that McRae was innocent, and surely Judge Lee would see this. She imagined how, if the result was favorable, she and Lau would drive out to the prison in Taylorsville and reunite McRae with his family in time for Christmas.

Disappointingly, the holidays came and went with no word from the judge, and Jindal wondered if that was a bad sign. Even when she tried to distract herself with school and her many other commitments, the case was always lurking in the back of her mind.

On the last day in January, Jindal was named editor-in-chief of the Duke Law Journal, which reviews and publishes new legal scholarship. The following Wednesday, she arrived at class a few minutes early and went to check her e-mail. There was a message from Newman, copied to everyone on the defense team. It began, “Tragically, we lost the McRae case....”

Jindal felt a mix of shock, fury, and devastation. She quickly opened the attachment containing the judge’s opinion and started to read through his reasoning. But a long day of classes stretched ahead, so she closed the attachment and put up a mental barrier. It wasn’t until that night when Jindal got home that she let herself break into tears.

The days that followed were bizarre in their normalcy. She went about her life, attending classes, joking with friends. Her own resiliency struck her as unjust—how could her life go forward while McRae’s was still frozen in time? “It was upsetting that it wasn’t the end of my world. I needed that to happen because it was the only way I could properly mourn what had been lost for Derrick,” she said a few weeks later. “I feel like the system failed him. And it failed him twice. He just didn’t matter, twice. I don’t understand why I’m here and he’s in there.”

Newman noticed Jindal’s silence after receiving the news, and it worried her. “Jyoti is very smart and knew this case cold. She knows every piece of evidence and every fact and every shenanigan that the state pulled at their trial. And she knows that [McRae] deserves freedom and justice, and that is very difficult to bear,” says Newman. She is considering bringing in a trauma specialist to talk with her clinic students, “not just when we’re unsuccessful, but when we have to walk away.”

Despite their years of experience, Newman, Lau, and Coleman are not immune to grief in the face of setback. But Newman says she keeps a guard in place, a barrier that keeps her “from suffering to an incapacitating degree or even a limiting degree.” And when they do win, the same barrier holds her back from celebrating too much, because she knows she can never restore what her clients have lost.

Still, the attorneys plan to keep fighting for McRae. “Not only do we believe he’s innocent, but I am ashamed of how this state convicted him,” says Newman. The attorneys are awaiting a U.S. Supreme Court decision that deems it cruel and unusual punishment to sentence juveniles to life in prison without the possibility of parole. If the Supreme Court decides this ruling applies retroactively, it would apply to McRae. Now thirty-six years old, McRae has been incarcerated for more than half his life.

At 36 years old, McRae is currently imprisoned in Raleigh. (Photo by Jeremy Lange)

“There’s always one more thing to try. We tell our clients that we’re not going away, that we will keep trying,” says Newman. “If the three of us don’t keep going, then these people we care about and believe to be innocent will likely not get out. There are very few people doing this work.” Six black-and- white photographs are pinned above Newman’s desk. She believes each face to be a wrongfully convicted man— all cases in progress. “I’m not leaving Duke until they all get out, but it’s becoming more difficult to do that,” she says.

Jindal was not as convinced that she should keep fighting. With all her other commitments, she didn’t have enough time to devote herself to it entirely. And despite all her work, they hadn’t won; McRae was in no better shape than he was before she’d gotten involved. She thought maybe it was best that she step down and let another student take the lead. “I need time to be able to think things through,” she said a few weeks after the verdict. “I carry things with me.”

“But see, it’s hard, because I feel like I’m…” she falters, clearly torn. “It feels like I’m walking away from Derrick, and I can just shake it off because it’s not me who, you know, is in prison. But, you know, I have been changed. I’m not the same person.”

Months after the hearing, Jindal attended a luncheon for newly admitted law students in Cameron Indoor Stadium. Professor Coleman was giving a keynote speech. He spoke about his career, how he’d found a way to do civil rights law, and then he mentioned that one of the things that can hold people back from doing what they want to do is futility.

That word—futility—unlocked something within her, giving name to the real demon she didn’t even know she’d been fighting. She realized that for the past two years, she had been trying to protect herself from futility, from the dark possibility that she would never be able to change anything, that she wouldn’t make a difference in McRae’s life or anyone else’s. All along, she thought she’d been scared that the emotional weight would be too much, when really she’d been terrified of something worse: that her efforts wouldn’t be enough.

“I had one set back, and I’m going to give up? That’s just not okay,” she says. “That’s not good enough. That’s not good enough for Derrick, that’s not good enough for me, and that’s not good enough for the people I could potentially help.”

Hearing Coleman’s speech filled her with a renewed sense of determination. Immediately afterward, she began clearing out her many commitments to make room for what she’s decided matters most. When she comes back to school next fall, she will spend her last year in law school working with the student-led Innocence Project. For as long as she can, she’ll stay on the McRae case.

  • Elizabeth '11 is a writer in New York. She previously worked as a senior editorial fellow for The Trace and a staff writer for Duke Magazine.