The following is commentary by Elizabeth Simpson about the trial of Lester Kearney, and Emancipate NC’s role in shifting the narrative in the case, in the face of unethical prosecution tactics.
Lester Kearney is an innocent man. Or, at least, he’s absolutely innocent of murdering Dr. Nancy Alford.
But under the circumstances, pleading in October 2022 to a gruesome murder and home invasion that he did not commit was a rational choice and what passes as a defense victory in our system of (in)justice.
The deal reflects a devastating concession by a prosecutor whose conduct during the case was both unethical and racist. District Attorney Mike Waters offered Lester 164-209 months, with credit for time served, as part of an agreement that permitted Lester to maintain his innocence, while also having a batch of out-of-county charges — charges that could have carried a longer term in prison — dismissed outright. This, after Waters spent four years gunning to kill Lester in a capital trial. The deal also reflects a dazzling victory by a defense team that poured its heart into proving that Lester was never near the scene of the crime and had nothing to do with the tragedy that occurred.
Arguably, Waters ought to have recused himself from the case at the outset due to his former representation of Lester when Waters was a defense attorney. The defense team made a motion to disqualify Waters on this basis, but it was denied. Prosecuting one’s former client is a practice that the American Bar Association discourages due to potential conflicts of interest. The idea of exchanging the duty of loyalty that an attorney owes a client for a professional duty to kill him is particularly stark. It is a graphic reminder of the childish binary morality that underlies our criminal legal bureaucracy.
“The District Attorney’s Office must seek justice to make sure that wrongs are righted,” proclaims Waters’ campaign website. This catchphrase is revealing. It assumes that when something “wrong” happens, such as a homicide, there is a clear methodology to make it “right” again. The path for accomplishing the transformation of “wrong” into “right” is labeled “seeking justice” — and the definition of how to undertake this activity is “to prosecute a bad guy and send him to prison.”
This simplistic way of thinking about “justice” is endemic in our legal system. Despite rhetoric about “equal justice under law,” bureaucracies that administer huge-scale decision-making projects are not well-suited to nuance. Instead, for the sake of volume, they force otherwise-intelligent actors to become cogs, performing singular functions on repeat, according to blunt rules. In this kind of schema, Waters’ singular obsession with prosecuting Lester — in the face of overwhelming evidence of his actual innocence — makes sense. Once the system decided there were two culprits who did the “wrong,” it was essential that two culprits be convicted in order to restore “right.”
Additionally, Waters may have assumed that this case — a home invasion and brutal murder of an elderly white woman — could be a career-maker for him. Many lawyers harbor dreams of higher offices, ranks, and stations. Waters certainly appeared on camera enough times to make himself a household name in the 9th judicial district, a 5-county rural area in the north-central region of North Carolina. Waters played the outrage game in the press for strategic advantage for three long years, all while Lester was locked up on no bond, away from his family, including a young son.
Waters began this media blitz with the release of Lester’s name and photo prior to any formal lineup. This practice is unethical. North Carolina Rules of Professional Responsibility expressly prohibit lawyers who are participating in the investigation or litigation of a matter from making extrajudicial statements that have a substantial likelihood of materially prejudicing an adjudicative proceeding. While a prosecutor is entitled to share the name and photo of a suspect, this information should have been embargoed until after Rev. Alford, the victim’s widower, could participate in a proper line-up that comported with the Eyewitness Identification Reform Act.
Instead, Waters, the Sheriff, and the SBI Agent-in-Charge held a joint press conference with the Alford family to announce arrests of Kevin Munn, a white man who has confessed to the crime, and Lester. The TV and news published photographs of Lester. Rev. Alford saw Lester’s picture in the news before he made an identification. Cross-racial identification is a leading cause of wrongful convictions in the United States. According to the Innocence Project, they are implicated in 69% of DNA exonerations. Numerous empirical studies demonstrate that suspect misidentification is greatest when white persons attempt to identify Black faces. Here, the alleged culprit was wearing camouflage paint on his face at the time of the crime, and was initially described by Mr. Alford as a Black man with no visible tattoos or piercings.
Yet, Lester had prominent tattoos on his neck and hands, two areas of skin that were supposedly visible, and evidence at the trial ultimately made it unclear whether there was actually a second man in the house beyond Kevin Munn.
Rev. Alford suffered a head injury during the home invasion, a crime that was quickly linked to Munn, a person addicted to drugs who had worked inside the Alfords’ home and was familiar with the victims. Was Rev. Alford’s claim that the intruder who found him asleep in his bed was a “Black man” a racial mirage? Criminality in the United States is racialized, with popular narratives seeding white brains to assume both that Black people are criminals and that criminals are Black. In the news media, Black men are overrepresented as criminal suspects yet underrepresented as victims. These story-lines pervade the subconscious, producing psychological effects that shape perceptions and influence white individuals to erroneously assume that criminal activity is a Black activity.
The source of Lester’s name, in the first instance, was the SBI agents’ repeated suggestion to Munn during interrogation. Police had located Munn easily after the crime. For one thing, he had kept the GPS in the Mercedes he stole from Dr. Alford. When asked why, he could only admit that he was “a dumbass.” Given that Munn’s whiteness did not fit with Rev. Alford’s claim that the camo-painted assailant was “Black,” agents were on the lookout for a Black culprit. Lester, a local Black man with a record, was a ready victim. As Lester’s mom later said, “Because of who Lester is, they feel like Lester don’t have no support or people behind him and they can take him away and do what they want.”
Agents dropped Lester’s name at least three times into the interrogation before Munn finally assented in a non-verbal nod.
SBI agent: “Is it Kearney? Did Kearney drop the car off to you? Because I need to know that.
Munn: “That’s the person you guys asked me, [wasn’t] it?”
SBI agent: “So he’s the one that dropped the car off to you?”
Munn: (Nods)
Threatened with the death penalty, Munn was poised to save his own life by testifying against Lester. But, his story about what happened changed day-to-day and none of the stories made much sense. Ultimately, Munn could not go through with it. He asked the court to let him out of the agreement to testify, claiming he made the deal in haste because he wanted to avoid the death penalty and save his sister from going to prison on accessory-after-the-fact charges. Judge Hight refused to let him out of the deal.
Later, Munn was captured on a recorded jail phone line telling his girlfriend, “Another man going away for life for some shit that you know he had nothing to do with.” Munn overdosed in a local jail a week before Lester’s trial, rendering himself useless as a witness.
Mike Waters was litigating the case in the press aggressively right up to May 2021. Then, Emancipate NC publicized a publicly-filed bond motion that argued Lester was innocent. The press release queried, “Has Lester Kearney been tried in the media?” and invited supporters to come to the bond hearing, which was held in open court.
At the hearing, Waters cried foul. He did not like Emancipate NC engaging in publicity tactics — even though he had been doing so, regularly, himself. He asked Judge Hight to ban Emancipate NC — even though a major news outlet, WRAL, was livestreaming proceedings to the world with Waters’ blessing. After the hearing, Waters, who normally gave a statement to WRAL after each hearing, left out the back door and avoided questions. Emancipate NC gave a statement to the press, urging reporters to take Lester’s claim of innocence seriously and not to rush to judgment.
Lester spent another year in jail before he finally got a trial. Prior to jury selection, Emancipate NC’s Cierra Cobb gathered Lester’s family for a press conference to share stories to humanize him as a victim of the system – not the cold-blooded murderer that Waters had painted to the press. His mother shared that the experience of having her son locked up for a crime he did not do left an empty feeling, as though she had “miscarried or lost a child.”
“I do a lot of praying and a lot of crying in silence,” she said.
Lester’s family was clear that the case was all about race.
“This is a Black and white thing. We are not free. No Black person is free. We are only as free as the white man will let us. You’re life ain’t yours. You are only as free as the white man gonna let you. If you mess anything up, you’ll see you’re still a slave,” said his mother. Other family members agreed.
At the end of the trial, the jury hung, 7-5, in favor of acquittal. Race was a clear factor, as Black jurors unanimously sided with Lester. Waters vowed to prosecute again, and asked the judge for a change of venue because Emancipate NC was allegedly using “media and pressure tactics” to impact the jury pool. Though his motion to change venue was granted, Waters was done. He offered Lester a plea deal that was too good to turn down.
Media narratives are powerful things in cases like these. The way that the public understands an issue depends on the stories that the press tells them. For this reason, Emancipate NC is dedicated to shifting these narratives to make sure the public sees all sides of major stories about crime and punishment – not just what law enforcement wants people to believe.