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Civil Rights – Due Process – State-Created Right – Post-Conviction Exculpatory Evidence

Civil Rights – Due Process – State-Created Right – Post-Conviction Exculpatory Evidence

North Carolina has created a constitutionally protected right to demonstrate one’s innocence post-conviction with new evidence and DNA testing. After plaintiff was convicted of two murders he did not commit, the DNA of another man was identified from evidence at the murder scene, and a court ordered further examination of the DNA evidence. When further examination of the DNA evidence revealed exculpatory evidence, plaintiff had a liberty interest in having such evidence turned over to him.

We affirm the district court’s grant of summary judgment to the City of Durham and affirm the jury verdict against defendant Dowdy, who was in charge of the investigation that led to plaintiff’s wrongful conviction. We reverse the grant of summary judgment to defendants Pennica and Soucie, who conducted the post-conviction investigation, and remand the case to the district court for further proceedings.


Doris Washington and her 13-year-old daughter, Nishonda, were sexually assaulted and murdered before their apartment was set on fire. Witnesses said they had seen plaintiff arguing with Doris earlier that day. Although DNA evidence from Nishonda’s body excluded defendant, defendant was convicted of the murders.

Subsequently, DNA evidence from Doris’s body was matched to Jermeck Jones via the FBI’s Combined DNA Index System (CODIS).

A court ordered further examination of the DNA evidence. The order was served on the Durham County DA. Prosecutor Morrill could not recall whether the forwarded the order to defendants Pennica and Soucie at the Durham Police Department (DPD), but they obtained a new DNA sample and interviewed Jones. Jones made incriminating statements. Although plaintiff was informed of the DNA match, he was not informed of Jones’ incriminating statements.


The duty of disclosure set out in Brady v. Maryland, 373 U.S. 83 (1963), does not extend post-conviction. But when a state enacts a law granting convicted individuals a right to evidence and a procedure for accessing such evidence, that state-created right can lead to due process rights.

North Carolina has created a constitutionally protected right to demonstrate one’s innocence post-conviction with new evidence and DNA testing. G.S. §§ 15A-269, 15A-1415(c).

Although a police officer generally does not owe a duty to disclose exculpatory evidence post-conviction, in this case, such a duty became essential to realizing plaintiff’s rights to demonstrate his innocence under state-created procedures. Both by statute and by court order, plaintiff had a right to access DPD’s files. And it would transgress “fundamental fairness” if a police officer could willfully ignore North Carolina’s state-created procedures and a court order by withholding evidence to which an inmate seeking post-conviction relief was entitled. As such, plaintiff’s rights are entitled to protection under the Due Process Clause.

Plaintiff must prove that the officers suppressed the evidence in bad faith. His evidence must negate any negligent or innocent explanation for the officers’ actions.

The key factual dispute is whether Pennica and Soucie knew about the court order. Although there is evidence to the contrary, portions of the record suggest that Pennica and Soucie understood both the significance of their interview with Jones and their obligation under the court order to disclose the recording and notes related to that interview.

The jury could conclude that prosecutor Morrill told Pennica and Soucie about the order. Though Morrill could not specifically remember whether he served the order on Pennica, he testified that it was his practice to notify DPD of any court-ordered disclosure obligations.

A jury could find that, by not turning over the video of an alternative suspect making incriminating statements or their notes related to that interview, Pennica and Soucie intentionally hid evidence from plaintiff in his innocence proceedings. Of course, a reasonable juror could also conclude that on this occasion, Morrill did not follow his general practice of informing DPD about its court obligations. But the weight to give this competing testimony is a credibility issue that should be left to the jury.

In support of his claim against the city, plaintiff presented evidence that the DPD’s Organized Crime Division had an express policy requiring that Brady material regarding confidential informants be kept secret, in violation of its constitutional obligations. We are not convinced that such a violation – followed by the captain of one police department division – can be laid at the city’s doorstep.

Affirmed in part, reversed and remanded in part.


(Quattlebaum, J.) I disagree that the district court erred in granting summary judgment to Pennica and Soucie. Morrill does not recall speaking to Pennica—his contact with the DPD on the post-conviction case—after the order was issued. Pennica and Soucie are unequivocal—they insist no one told them about the court order or the obligations of the police under it. I would affirm.

Howard v. City of Durham (Lawyers Weekly No. 001-065-23, 50 pp.) (James Wynn, J.) (Marvin Quattlebaum, J., concurring in part & dissenting in part) No. 22-1684. Appealed from USDC at Greensboro, N.C. (Thomas Schroeder, C.J.) Anna Benvenutti Hoffmann, Amelia Green, Bradley Bannon and Narendra Ghosh for appellant/cross-appellee; James Nicholas Ellis, Reginald Bernard Gillespie, Henry Sappenfield, Eric Stevens, Sarah Fritsch and Michele Livingstone for appellees/cross-appellants. United States Court of Appeals for the Fourth Circuit

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