Bar OKs rule requiring evidence disclosure

Martha Waggoner - Associated Press

RALEIGH — A North Carolina State Bar panel agreed Thursday on language requiring prosecutors to disclose evidence of innocence obtained after someone is convicted of a crime, advancing on a proposal to address wrongful convictions like rules adopted in a handful of other states.

The State Bar’s ethics subcommittee, at a meeting in Chetola, agreed unanimously on wording for a proposed rule for what prosecutors should do with post-conviction evidence of innocence. The subcommittee is expected to meet later on a full draft proposal though no meeting date has been set.

Existing rules and law in North Carolina already address evidence obtained before and during a trial, but just 14 states have a rule about prosecutors and post-conviction evidence of innocence, according to the American Bar Association. It is recommending that the state approve such a rule.

The subcommittee also discussed how attorneys could disclose evidence without violating attorney-client privilege.

“The unanimous vote in support of the (prosecutor) rule is indicative of the times we’re in — that people recognize that wrongful convictions happen,” said attorney Chris Mumma, executive director of the N.C. Center on Actual Innocence, speaking by phone after the meeting.

The proposed rule for prosecutors would direct them on what to do when they learn of “new, credible evidence or information creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted.” It includes a clause that would protect prosecutors who act in good faith even if their decision that the evidence didn’t have to be disclosed proves to be incorrect.

Alice Mine, the State Bar’s assistant executive director and ethics counsel, will write a formal proposal for the subcommittee to consider at its next meeting.

The five-member subcommittee agreed in principle that any attorney who discovers post-conviction evidence of innocence must turn over that evidence as long as it doesn’t breach attorney-client privilege or substantially harm the client’s interest.

Members also discussed modifying language to another proposed rule that would allow a lawyer to reveal information relating to the representation of a client if that’s necessary to prevent death or substantial bodily harm. The proposed language would define bodily harm to include wrongful imprisonment.

Such a rule “would put us ahead of other states in recognizing the obligation to ensure that an innocent person is not in prison when there is evidence to the contrary,” Mumma said.

Advocates cite a murder case in Buncombe County at a prime example of why North Carolina needs the rule for prosecutors. Five innocent men served prison time 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.

One defense attorney — the one representing the last man sentenced — also received the confession as pretrial evidence but didn’t turn it over to the other men, who had already been sentenced, or their attorneys, said David Rudolf, an attorney for one of those men.

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 rules are approved at each step — involves the full ethics committee, public comment, the full State Bar Council and finally, the state Supreme Court.

Martha Waggoner

Associated Press

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