The duty to speak up

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North Carolina established itself as a leader in the effort to right wrongful convictions more than a decade ago, when it created the first Innocence Inquiry Commission in the nation.

Now, the state is poised to step ahead of the curve again and adopt a rule that would require all lawyers — not just prosecutors — to disclose information about a possible wrongful conviction.

Only one other state in the country, Arizona, has enacted a similar all-lawyer rule, though several other jurisdictions impose obligations on prosecutors to come forward with potentially exculpatory evidence, according to a report from the North Carolina State Bar.

A subcommittee of the State Bar’s Ethics Committee first proposed the rule eight years ago, but it stalled in the face of opposition from prosecutors, according to Raleigh criminal defense lawyer Brad Bannon, a member of the subcommittee.

“Prosecutors, state and federal, were the ones who pushed back and stopped it from happening at the time,” said Bannon, a partner at Patterson Harkavy. “But the rest of the committee members, in light of the concerns voiced by the prosecutors, said, ‘This is fairly new, let’s see how other jurisdictions treat this.’”

At the time, the American Bar Association had just amended Rule 3.8 of its Model Rules of Professional Conduct by saddling prosecutors with an ethical obligation to notify the court and defendant about credible info on potentially bad convictions. Most states base their professional conduct rules on the ABA’s models, though they are not required to follow the ABA’s lead.

So far, at least 15 states have adopted some form of the the disclosure rule. North Carolina took a wait-and-see approach, said Bannon. During that time, he said it became clear that the rule had “not created enforcement problems or logjams that outweigh the importance of making sure people who are wrongly incarcerated don’t stay in prison.”

Under the proposed rule, lawyers would have to share evidence of a defendant’s innocence with North Carolina Indigent Defense Services or the federal public defender, regardless of whether they also contacted the defendant’s lawyer. Tom Maher, executive director of IDS, said his agency could handle the extra responsibility and did not expect to be overloaded with information.

Bannon revived discussions about the rule in January 2016, and the effort resulted in the State Bar Council unanimously approving the proposal, which now must get a thumbs up from the North Carolina Supreme Court before it can be adopted.

While disclosure is discretionary in some of the jurisdictions that have adopted a version of the ABA’s model rule, the Tar Heel State’s version creates a duty to disclose “credible” information “creating a reasonable likelihood” that an innocent defendant was convicted, with a few exceptions pertaining to privileged communication between a lawyer and client.

The rule also states that a “prosecutor who concludes in good faith that evidence or information is not subject to disclosure … does not violate this rule even if the prosecutor’s conclusion is subsequently determined to be erroneous.”

That language was meant to “assuage concerns that this was a trap being set for prosecutors,” Bannon said.

“But they must still articulate why they felt this wasn’t exculpatory evidence,” he added. “This isn’t just window dressing. This is a professional responsibility. If you violate that responsibility you’re going to face consequences.”

Durham lawyer William Mills, who chaired the bar’s ethics subcommittee that studied the proposal, said the rule is meant to expose wrongful convictions, “not to give us a way to file grievances against prosecutors.”

“One of the issues they raised is that they handle an awful lot of cases,” he said. “They can have information come across their desks in a case that was prosecuted three years ago and they may not make that connection. We don’t want to grieve DAs who have made an honest, good faith error in judgment.”

Former Wake County district attorney Colon Willoughby, who also served on the subcommittee, was behind the idea of expanding the rule to include all bar members. He said, “It’s important that we as lawyers recognize when an injustice has been done and take the lead in trying to correct it.”

“We’re all officers of the court. We all have taken an oath to uphold the constitution and the laws of our state and country,” added Willoughby, a partner at McGuireWoods in Raleigh. “I struggle to think of a greater burden than trying to correct the injustice of an innocent person being convicted and incarcerated.”

Follow Phillip Bantz on Twitter @NCLWBantz

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