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| Misconduct by prosecutors causing N.C. death row cases to unravel |
| By Sarasota Herald-Tribune |
| Published: 11/10/2003 |
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After Alan Gell got off death row last year because state prosecutors withheld evidence of his innocence, Attorney General Roy Cooper said the actions were unintentional. The misconduct was described as unusual, perhaps unique. Yet prosecutorial misconduct has undone at least four other North Carolina death row sentences in recent years, and several similar cases are grinding their way through the appeals process. In these cases where judges ordered new trials, prosecutors broke the law by withholding evidence helpful to defendants, such as witness statements or deals cut with jailhouse informants. The prosecutors have received no significant punishment. Death row inmates now have complete access to the files of prosecutors and police because of a 1996 change in state law that has thrown light into a dark corner of the criminal justice system. By seeing the entire law enforcement files, convicts and their lawyers can determine whether prosecutors, at trial, turned over all evidence helpful to the defendants, as the U.S. Supreme Court has required since 1963. In several cases, they did not. Most prosecutors do follow the law and hand over evidence that might be helpful to the defense before trial. Many practice "open file discovery" and let the defense see all information, not just the evidence helpful to the defense. But open file discovery is optional at the trial stage. State law and the U.S. Supreme Court place the burden on prosecutors to turn over what is required. Defendants have no way of knowing whether they're getting all evidence that might benefit them. Only after convictions in death-penalty cases does state law require that defendants get the full files. Since the law was changed in 1996, judges have thrown out at least five death penalty convictions in which helpful evidence was withheld; in North Carolina, 198 people are on death row. Death row inmates make up less than 1 percent of the prison population, meaning that the vast majority of inmates do not have automatic review of law enforcement files. The U.S. Supreme Court established the defendants' right of "exculpatory evidence" in 1963; prosecutors must hand over evidence that would help defendants prove their innocence, lessen their punishment, or undercut the credibility of state witnesses. North Carolina's 1996 law went beyond that standard by opening all law enforcement files to death row inmates. The law was passed during a push to streamline the death-penalty process. The law has a remedy when helpful evidence is withheld; the defendant can win a new trial. However, the law doesn't levy any punishment for withholding such evidence. Punishment would come from the N.C. State Bar, the agency that oversees and disciplines lawyers. But that has happened only twice in the history of the State Bar. The State Bar has suspended or revoked the licenses of hundreds of lawyers over the years, for offenses that include stealing a client's money and failing to do the work promised. In 2002, the bar disciplined 37 lawyers. The only two times the organization took action against prosecutors for withholding evidence, it put the discipline on hold, saying there would be no penalty if there were no further violations. |
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