RALEIGH — North Carolina’s district attorneys say a proposed rule that would require them to turn over evidence of innocence after a person is convicted is unnecessary because prosecutors already believe it should be turned over at any point, including post-conviction.
In a letter to the North Carolina State Bar, the president of the North Carolina Conference of District Attorneys said the rule recommended by the American Bar Association is redundant and could be “ineffectual and subject to abuse.”
A guide provided to prosecutors by the conference references a 1935 U.S. Supreme Court decision that says the prosecutor’s purpose is to make sure the guilty don’t escape and the innocent don’t suffer.
Another part of the ABA’s model rules, which is part of the State Bar’s rules for prosecutors, already addresses the issue, he wrote.
“Protecting the innocent includes those who have been wrongfully convicted,” Mecklenburg County District Attorney Andrew Murray wrote in the June 24 letter. “Therefore, we believe that new, material and credible evidence of innocence, whether pretrial, during the trial or post-conviction, should be disclosed.”
The letter was sent ahead of the second meeting of State Bar ethics subcommittee that’s considering the rule, which the American Bar Association recommends. In 2009, North Carolina’s State Bar rejected the rule, which the ABA says has been adopted in some form in 13 states.
At the first meeting of the five-member subcommittee in April, the members took no votes but appeared to reach a majority consensus that all attorneys, not just prosecutors, should be required to turn over evidence of innocence.
The subcommittee meets again today in Greensboro.
Former federal prosecutor Bruce Green, who wrote the model rule, praised North Carolina prosecutors for their stance but said a written version of their philosophy would be helpful.
“I think it’s terrific how progressive it shows the North Carolina prosecutors to be in taking the view that the current ethics rule requiring prosecutors to disclose exculpatory evidence applies even after a conviction is obtained,” wrote Green, who is director of Louis Stein Center for Law and Ethics Fordham University School of Law.
At their first meeting, the subcommittee members had discussed eliminating a second part of the proposed rule that requires prosecutors to rectify wrongful convictions. An amended proposal required only that prosecutors disclose the new evidence, not they investigate it or remedy the situation.
Attorney Chris Mumma, executive director of the N.C. Center on Actual Innocence, said if prosecutors already turn over evidence of innocence post-conviction, then they shouldn’t object to having that practice in writing.
“If all the rule does is raise confidence in the process, then it’s beneficial,” she wrote in an email.
Advocates call a Buncombe County murder case a prime example of why North Carolina needs the rule. Five innocent men served prison terms in connection with a 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 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 in a home invasion murder in 2000.
