GREENSBORO, N.C. (AP) — Prosecutors should have to disclose evidence of innocence obtained after a person is convicted, a North Carolina State Bar panel agreed Wednesday.
The ethics subcommittee voted 3-2 at a meeting in Greensboro to support the general principle that a prosecutor’s duty to disclose innocence evidence continues after a defendant is sentenced, although the members didn’t settle on specific language. A federal prosecutor and a former district attorney opposed the motion, while three attorneys in private practice supported it.
“We came really close to adopting it in 2008-2009, and said all we wanted to was hold off on adopting this standard until we had a chance to see if other people adopted it and whether they had any problems enforcing it,” defense attorney Brad Bannon of Raleigh said. “They adopted it; they haven’t had any problems enforcing it. So I think in order for this committee to move past constant dialogue, we should probably begin to take votes on basic issues of whether we believe there should be a rule or not.”
After that first vote, acting U.S. Attorney John Bruce, who opposed the first motion, recommended draft language for the panel to use in future discussion. The draft, which the panel accepted as a working copy, includes wording provided by the State Bar staff and from the American Bar Association, which recommends the rule.
The subcommittee seemed to only disagree on two words in the working copy: whether the phrasing should include “new and credible evidence and information” or not include the words “credible” and “information.” They also must decide who is notified of such evidence: the convicted person, a defense attorney, the Office of Indigent Defense Services or, in federal cases, a public defender.
The North Carolina Conference of District Attorneys had said in a letter to the State Bar that prosecutors say that the rule is unnecessary because prosecutors already believe evidence of innocence should be turned over at any point, including post-conviction. The letter also said that another rule already applies to post-conviction evidence of innocence, but State Bar officials and most of the panel, including Bruce, disagreed.
“I think if the consensus among the district attorneys of this state is that this rule already requires disclosure, then there should be utterly no objection to spelling that out in the rules of professional conduct because the DAs now aren’t going to be the DAs in the future,” Bannon said.
The panel also agreed that all attorneys, not just prosecutors, should have to disclose evidence of innocence but the members got bogged down in a discussion about how and when defense attorneys can do that without violating professional rules regarding confidentiality and privilege.
Advocates call a Buncombe County murder case a prime example of why North Carolina needs the rule for prosecutors. Five innocent men served prison terms in connection with a 2000 home invasion murder they didn’t commit.
Another man confessed in 2003 and implicated an accomplice whose DNA was eventually found on masks and bandanas near the scene. The district attorney said in a deposition that he didn’t believe the confession and that he never saw the DNA evidence, although the report from the State Bureau of Investigation showed it was copied to the DA.
The five received a total $8 million for their wrongful convictions. Some of them had pleaded guilty to avoid the threat of the death penalty.
The panel is just the first step in a lengthy process that — if the rule is approved at each step — involves the full ethics committee, public comment, the full State Bar Council and finally, the state Supreme Court.
The subcommittee next meets July 21 in Chetola.