16 states have made reporting duty mandatory for prosecutors
By Martha Waggoner
Associated Press
RALEIGH, N.C. (AP) — North Carolina has become the first state in the nation to require not only prosecutors but also attorneys in private practice to reveal any evidence of innocence they become aware of after a conviction.
Sixteen other states have made this reporting duty mandatory for prosecutors as more innocent people are exonerated after spending years behind bars. North Carolina is the first to apply the rule to all attorneys, said Bruce Green, a Fordham University law professor who wrote the model rule for prosecutors for the American Bar Association.
“We’re leading the country again,” said Chris Mumma, who directs the N.C. Center on Actual Innocence. North Carolina also is alone in establishing an Innocence Inquiry Commission to investigate claims of innocence.
She said she expects other states to follow suit.
The North Carolina State Bar’s ethics subcommittee began debating the reporting rule for prosecutors about a year ago, then added defense attorneys. The state Supreme Court, the last stop for the rules, approved them earlier this month.
“I just thought as officers of the court, all lawyers would feel some obligation to try to correct an injustice if they had seen one,” said Colon Willoughby, a former prosecutor who suggested adding a rule for defense attorneys. Without such a rule, some lawyers may feel constrained from coming forward, he said.
“There were a number of defense lawyers who felt the same way,” he added.
Exonerations have only increased since 2009, when the State Bar last considered the idea. Prosecutors and police are more likely to cooperate and DNA evidence has helped reverse convictions, according to The National Registry of Exonerations. The registry has tallied more than 2,000 exonerations since it began keeping records in 1989, and 166 found innocent last year, six more than in 2015.
“The sheer number of exonerations has proved this is a crisis,” said attorney Brad Bannon, who sought reconsideration last year by the State Bar. “People in prison for things they did not do is a very real part of the criminal justice system now.”
The North Carolina rule has exceptions for private practice attorneys, including that they need not disclose information that would harm a client’s interests or violate attorney-client privilege.
“It’s mandatory, but then it carves out so much that it’s hard to know when it will apply,” Green said.
North Carolina’s prosecutors first opposed the rule, citing their workloads and saying that lawyers are already obligated to turn over innocence evidence, whenever it appears. In response, the subcommittee dropped a requirement that prosecutors investigate the evidence.
“Ideally, what you’re seeing is an evolution in the manner in which prosecutors look at their responsibilities and their duties,” said Wake County District Attorney Lorrin Freeman. “And this really is not inconsistent with an overarching duty to pursue justice and not just try to get a conviction.”
The rules are effective immediately. Breaking them could result in discipline imposed by the State Bar.
The rules help people who have been convicted in way that the U.S. Supreme Court’s 1963 Brady ruling does not. The Brady doctrine requires prosecutors to disclose material exculpatory or mitigating evidence to the defense, but in 2009, the court held that Brady didn’t apply after a defendant has been convicted.
Advocates point to a Buncombe County murder case as a prime example of why these rules matter.
Five innocent men went to prison for a home invasion murder in 2000 that 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 never saw the DNA evidence, although the report from the State Bureau of Investigation indicated it was copied to the DA.
A defense attorney representing the last man sentenced also received the confession as pretrial evidence, but didn’t turn it over to the others, said David Rudolf, an attorney for one of those men.
The state’s Innocence Inquiry Commission began reviewing their cases in 2011. Eventually, all five were exonerated, and the state payed them a total of $8 million for their wrongful imprisonment.
