In two weeks, five people charged with murder in Durham signed paperwork and walked out of the Durham County jail.
The five men had spent from 144 to 936 days within the white-brick detention center downtown. They remain charged with killing five men ages 22 to 42.
Chief Resident Superior Court Judge Orlando Hudson unsecured the men’s bonds after hearings in January outlining evidence in what he called weak cases. An unsecured bond requires a signature promising to pay an amount of money if the defendant fails to return to court.
The attorney for one of the men said surveillance video proves her client has an alibi. Another said his client was defending himself against a man trying to rob him. Other cases had evidence or eyewitness testimony that raised concerns.
One of the five cases involved Elijah Everett, one of three men charged with killing Usha Chatman, 22, on Christmas Eve 2016 on Rochelle Street. Everett has been linked to shootings between two gangs since 2012, Assistant District Attorney Stormy Ellis said.
Ellis argued for keeping a $350,000 secured bond, urging the judge to consider the safety of the community and those involved in the case. “Whether they are going to be retaliators or they are going to be victims of retaliation,” she said.
Everett’s attorney argued there was no evidence linking her client to Chatman’s shooting. Ellis points to a Dollar General surveillance video where Everett is standing in line next to man directly linked to the shooting through a GPS tracking device he was wearing on probation.
“It is a weak case against Mr. Everett,” Hudson said before he unsecured the $350,000 bond and denied Ellis’ requests for electronic house arrest or GPS monitoring.
The five bond hearings highlight the possible stakes as judges balance defendants’ presumption of innocence and releasing suspects in cases that involve murders, gangs and illegal possession of guns.
“If I am the judge, I don’t want my name on a bond letting someone out of jail that goes and does the same thing that they are accused of,” said Phil Dixon, a former defense attorney in eastern North Carolina and a UNC School of Government expert in evidence and criminal law procedure. “On the other hand, I am required as a judge to consider each person individually, and consider what the evidence is and how they are situated.”
The hearings also show the challenges prosecutors face in cases where witness testimony is key evidence in fatal street crimes, as well as concerns defense attorneys have about prosecutors holding onto weak cases.
In general, it is unusual for judges to unsecure bonds in murder cases. Not for Hudson, 64, who has served as a Durham County Superior Court judge for 29 years and a district court judge for four years. Before that, he worked as an assistant district attorney.
Hudson said he considers the evidence.
“Out of the cases that you hear, some cases are going to end up in front of a jury, and the jury is going to make a decision,” Hudson said. “But if I lower bond, I got a pretty good idea what I think the jury is going to do. I might not be right. But, you know, I got a good idea, I believe, how it is going to turn out.”
The bail system, Hudson said, is “somewhat inconsistent” with the presumption of innocence.
“A person who hasn’t been convicted still has the presumption of innocence, but our legislature and our courts have said that person can still be held, deprived of his or her freedom upon the accumulation of evidence against them,” Hudson explained.
“One of the main reasons for having a person remain under the bond, I would say, is the strength of evidence against that person,” he said. “It may not matter a whole lot to other judges that look at the same facts I do, but that is important to me.”
‘History has shown me different’
Durham County District Attorney Roger Echols, however, said Hudson unsecuring a bond doesn’t always mean a case is too weak for a conviction.
Hudson unsecured bonds for two people whom Echols was prosecuting for murder when he first started as an assistant district attorney, Echols said.
A jury found one person guilty of second-degree murder, and the other pleaded guilty to second-degree murder.
“[A judge unsecuring a bond] doesn’t necessarily mean that we should plea out the case or that we are not going to win the case, because history has shown me different,” Echols said.
Echols said he isn’t aware of any people currently charged with murder being out on bond – unsecured or not – and being charged with additional violent crimes.
Michael Stephens, who was charged in a 2009 homicide, absconded while on pretrial release with an unsecured bond and electronic monitoring conditions. He was arrested within a few months and eventually pleaded guilty to second-degree murder, Echols said.
How the process works
People charged with murder first see a magistrate, who usually sets no bond, keeping a suspect in jail. A District Court judge typically maintains no bond in a hearing just after an arrest.
Felony charges usually move to Superior Court after a probable cause hearing or a grand jury indictment. Grand juries determine whether cases meet a probable-cause threshold. As cases progress toward trial, prosecutors generally work to prove the much higher standard of beyond reasonable doubt needed for a conviction.
Murder cases have status hearings every three months. Throughout the process a diligent attorney will ask – and “keep asking” – a judge to lower their client’s bond, said Dixon, the UNC expert.
When determining pre-trial release, judges consider factors such as the defendant’s charges, criminal record, evidence, connections to the community, financial resources and history of flight. In addition to cash bail, judges can impose restrictions, such as a curfew and GPS monitoring.
State law requires judicial districts to suggest amounts for bail bonds, which Hudson and then Chief District Judge Marcia Morey, now a state representative, did in 2011.
The suggested bail for someone charged with a Class A felony, which includes first-degree murder, is no bond. The suggestion for a Class B1 felony, which includes second-degree murder, is $750,000.
“The circumstances of each individual case will govern each decision,” the 2011 policy states. “However, as a general guideline only, and as a mere suggestion, and not to be blindly followed, these criteria may be considered by the magistrate and other judicial officials in setting amounts in a secured bond situations.”
For secured bail, a defendant pays cash or puts up property, or cash deposited by a third party, such as a bail bondsman. In those cases, the bail bond company can charge up to 15 percent of the bail amount.
In practice, judges typically set high secured bail amounts in murder cases, $100,000 and more, once prosecutors say they won’t seek the death penalty.
The amounts often fall over time.
“I think the longer they sit, the more compelling the argument is that they are being punished pre-trial or [that the] the bond is unreasonable,” Dixon said. “It could also be unreasonable even if you have only been there a short while if the state doesn’t really have strong evidence, or (the case) is falling apart or the defense has produced evidence that someone else is the shooter.”
‘I was shocked’
Opponents of cash bail say it punishes people who haven’t been convicted of a crime by keeping them in jail and increases pressure on them to take a plea deal just to get out. Most of the people charged with murder in Durham have been declared indigent, which means the state provides or pays for attorneys.
Proponents of higher, secured bonds say they motivate suspects to return to court and to stay out of trouble because they have to put money up before they get out of jail.
“I was just shocked,” said Michelle Chatman, 54, the mother of Chatman, whom Everett and two others are charged with killing. “I didn’t expect it, and I didn’t understand it.”
Annette Love, 61, attended the bond hearing for Chris Wiggins, one of two people charged with killing Shawn Cade-Oree just before midnight Dec. 1, 2015, on Concord Street.
Love is a friend of Cade-Oree’s family, who lives out of town.
Love struggled to understand how Wiggins’ could walk out of jail after he was charged with murder and being a convicted felon with a gun. He was on probation when he was charged with murder, she said.
“When you are out and about you have to be concerned about guns being on the street,” she said. “What is going to protect me? Not a thing because felons can have a gun and get off.”
Attorney Allyn Sharp represents four of the five men whose bonds Hudson unsecured. She now has six clients charged with murder in Durham out on unsecured bonds.
The unsecured bonds show the justice system both working and not working, Sharp said.
“Cases are being sent to the grand jury system for indictment that should probably not be sent,” she said. “On the other hand, having a judge who is willing to see that and acknowledge it, and do the right thing when it comes to bond, is a sign of a working justice system.”
Difficult to prove
Killings that involve drugs or gangs can be hard to prove.
Witnesses may be involved in a drug deal, or the robbery of a drug dealer. They may not want to be seen as a snitch or fear for their safety.
“There are ways of doing an investigation more or less diligently,” Dixon said. “There is a tendency at times for law enforcement to just sweep up as many folks as they can, and hope somebody starts giving them the information they are missing.”
Defense Attorney Mark Edwards said unsecured bonds means “law enforcement either hasn’t done a thorough enough investigation,” or maybe that they have exhausted their options.
In general, police often try to bolster eyewitness testimony with physical evidence, and a lot of times they just can’t, said defense attorney Daniel Meier. “DNA doesn’t come back. Fingerprints don’t necessarily match.”
In gang disputes, investigators may have difficulty getting witnesses to provide a consistent narrative.
“Hudson has been around enough to know if it is a gang shooting, if it is a drive-by, one gang shooting at another gang, it really doesn’t matter what people say early on, the odds of those witnesses actually coming forward later on to say, ‘Hey, yeah it was him,’ gets very slim,’ ” Meier said.
In some cases, prosecutors don’t acknowledge weak cases or fully investigating the holes in them, he said. Hudson often unsecures those cases, Meier said.
Some may argue that it is better to keep people believed to be a danger to the community in jail, he said. That’s not how the justice system is supposed to work, he said.
“We don’t lock them up because they are a bad guy,” Meier said. “We lock them up because we convict them of a crime.”
Does it mean that guilty people sometimes walk?
“There are people walking the streets that we all know have bodies behind them, but no one can ever prove it,” he said. “And so there is not a whole lot you can do.”
Defendants released on unsecured bond
▪ Nyreese Cole, 30, is charged with murder and assault with a deadly weapon with intent to kill inflicting serious injury. He is charged with killing Christopher Hughes, 19, of Fayetteville, who died Sept. 9, 2017, from a gunshot on West Markham Avenue. His attorney says Cole was defending himself after Hughes and two others tried to rob him at his apartment. His bond was changed from no bond to $50,000 unsecured. His bond conditions include no contact with witness, electronic monitoring with curfew, random drug test and no possession of weapons. He spent about 144 days in jail.
▪ Elijah Everett, 21, is one of three people charged in the Christmas Eve 2016 killing of Usha Chatman. The fatal shooting was one of two that night, part of a gang dispute that stretches back to 2012. His attorney says none of the evidence connects him to the killing. Everett’s bond was changed from $350,000 secured to $350,000 unsecured. His bond conditions include no contact with witnesses or co-defendants, and no weapon possession. He spent about 267 days in jail.
▪ Ledarius Rumsey Samuel, 19, is charged with murder, assault with a deadly weapon inflicting serious injury and four counts of robbery with a dangerous weapon in the Jan. 12, 2017, shooting of Felipe Aleman Perez, 42, on South Roxboro Street. Samuel is also charged in the shooting of Perez’s then 18-year-old son. His attorney says her client was picking up his mother and buying shoes during the robberies and shooting. Samuel’s bond was changed from $750,000 secured to $750,000 unsecured. His bond conditions include no contact with witnesses, report to probation officer and no weapon possession. He spent about 376 days in jail.
▪ Christopher Emmanuel Wiggins, 22, is charged with murder and possession of a firearm by a convicted felon. He and his cousin, Eric Gershon Wiggins, are charged with killing Shawn Cade-Oree, 29, on Concord Street on Dec. 1, 2015. His attorney says the evidence doesn’t show that he was involved in the fatal shooting. Wiggins’ bond was changed from $1 million secured to $250,000 unsecured. His bond conditions include no contact with potential witnesses and no weapons possession. He spent about 758 days in jail.
▪ Christopher Lee Allen, 21, is charged with the June 26, 2015, murder of Anthony Glenn, 36, near the intersection of Holloway Street and Raynor Street. The shooting apparently happened after an argument in a car at the AutoZone on Holloway Street. His attorney argued the evidence doesn’t connect her client to the case, and that, regardless of whoever did kill Glenn, it appeared to be self defense. Allen’s bond was changed from no bond to an unsecured bond of $500,000. His bond conditions include no contact with potential witnesses and no weapons possession. He spent about 936 days in jail.