LUMBERTON — Robeson County District Attorney Johnson Britt says a proposal being considered by a North Carolina State Bar panel requiring prosecutors to make known post-conviction evidence of innocence is necessary.
“As a prosecutor, you have a duty to turn over any favorable evidence to a defendant,” Britt said.
The State Bar’s ethics subcommittee agreed on language last month directing prosecutors on how to disclose evidence that is obtained after a defendant is convicted. As of late July, no meeting had been scheduled to revisit the matter.
North Carolina prosecutors are required to turn over exculpatory evidence before and during a trial; however, only 14 states have a rule about prosecutors and post-conviction evidence of innocence, according to the American Bar Association, which is recommending that such a rule be approved.
The subcommittee also discussed how attorneys could disclose evidence without violating attorney-client privilege. The proposed rule for prosecutors would instruct them on what to do when they find “new, credible evidence or information creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted.”
The proposal was met with some hesitation. In a letter to the North Carolina State Bar, the president of the North Carolina Conference of District Attorneys said the rule is redundant and could be “subject to abuse.”
A clause is included 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.
“I believe the ethical standard remains even after someone has been tried and convicted,” Britt said.
For example, Britt said that if someone has been convicted of a rape when DNA testing wasn’t available, there may be evidence preserved from that case. The results would have to be made known if someone else is found to be the perpetrator.
“That’s information that a defendant or defense attorney might want as grounds for a new trial,” Britt said. “You don’t just stick it in a drawer and move on.”
Britt said in the case of Henry McCollum and Leon Brown, who were were wrongfully convicted of raping and killing an 11-year-old Red Springs girl and given a rare pardon of innocence by Gov. Pat McCrory in 2015, “that was the result of the work of the N.C. Innocence Inquiry Commission.”
“That’s an organization that is devoted to determining someone’s claim of innocence,” Britt said. “One of the things that stood out to me was that, if the state of North Carolina would put those types of resources available to us at the front end, there is a greater opportunity to eliminating those kinds of situations.”
Britt said it’s too soon to determine how the proposed rule might affect prosecutors’ workloads.
According to the Associated Press, the final draft of the rule would still need to go through the full ethics committee, public comment, the State Bar Council and the state Supreme Court.
Reach Juanita Lagrone at [email protected] or call 910-416-5865.