In the wake of the exoneration of five North Carolina men, the state Supreme Court adopted a new ethics rule in March 2017 that requires any attorney who receives evidence suggesting the innocence of a convicted defendant to turn it over to local prosecutors.
At least sixteen other states require prosecutors to report post-conviction exculpatory evidence, according to the Associated Press, but North Carolina is the first to extend that requirement to attorneys in private practice.
“[T]he need to rectify a wrongful conviction and prevent or end the incarceration of an innocent person justifies extending the duty to disclose potentially exculpatory information to all members of the North Carolina State Bar,” a comment to the new rule states.
PLN reported the exoneration of Robert Wilcoxson, Kenneth Kagonyera, Damian M. Mills, Teddy Lamont Isbell, Sr. and Larry Jerome Williams, Jr. after a state innocence inquiry determined they had been wrongfully convicted based on DNA evidence and a 2003 confession from the real perpetrator. They had pleaded guilty to avoid the death penalty or life sentences for a fatal home invasion; exonerated in 2011, they received a settlement of nearly $8 million. [See: PLN, Feb. 2017, p.34].
As the five men sat in prison, agents with the State Bureau of Investigation (SBI) sent prosecutors a 2003 confession from a man who had admitted to the crime and implicated an accomplice. DNA testing in 2007 eventually matched the DNA on a bandana found near the crime scene to the accomplice.
“There is no evidence in the file that any action was taken in regards to this confession other than providing it in discovery” to a fifth co-defendant prior to his guilty plea in 2003, according to the state Innocence Inquiry Commission (ICC).
North Carolina is the only state with an ICC to investigate wrongful convictions; the agency was formed in 2006.
Prosecutor Ron Moore, who subsequently lost re-election after the exonerations, said he did not believe the confession. “I felt like the right people had pled guilty or been charged at that point,” he declared during a December 2013 deposition.
Moore also said he did not learn of the DNA match until 2011, but the ICC report indicated the SBI issued the DNA results on October 1, 2007 and had copied Moore.
“There is no indication in the SBI files, the sheriff’s office files or the DA’s files that any further action was taken” regarding the DNA match, the ICC stated.
In addition to Wilcoxson, Kagonyera, Mills, Isbell and Williams, two defendants in an unrelated case, Henry McCollum and his half-brother Leon Brown, were exonerated in 2014 after new DNA evidence surfaced that pointed to another man who had raped and murdered 11-year-old Sabrina Buie in 1983. At the time his conviction was reversed, McCollum was the state’s longest-serving death row prisoner. No physical evidence had connected McCollum or Brown to the crime.
“If prosecutors have an ethical duty to avoid wrongful convictions, then they should have some sort of ethical duty to remedy wrongful convictions,” said attorney Brad Bannon with the North Carolina State Bar’s ethics committee.
The rule change was opposed by the state’s Conference of District Attorneys. In 2009, the state bar rejected a proposal to adopt a similar American Bar Association rule that requires prosecutors to take action if they find “new, credible, and material evidence” of a wrongful conviction that resulted in incarceration.
Exonerations have only increased since 2009. Prosecutors and police are more likely to cooperate while DNA evidence has helped reverse a rising number of convictions, according to the National Registry of Exonerations. The registry has tallied more than 2,065 wrongful convictions since it began keeping records in 1989.
“The sheer number of exonerations has proved this is a crisis,” said Bannon, who sought reconsideration of the exculpatory evidence rule by the state bar. “People in prison for things they did not do is a very real part of the criminal justice system now.”
“We’re leading the country again,” added Chris Mumma, who directs the North Carolina Center on Actual Innocence, referring to the new ethics rule and the state’s unique ICC.
The new rule has exceptions for attorneys in private practice, including that they need not disclose information that would harm a client’s interests or violate attorney-client confidentiality.
Sources: Washington Post, Associated Press, www.lawyersmutualinc.com
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