Editorial – Bill could tip scales of justice too far in favor of the state

North Carolinians already have seen what can happen when prosecutors and law enforcement agencies withhold pertinent evidence: Innocent people go to prison; sometimes they even face a death sentence for something they didn’t do.

The stories of Alan Gell, Greg Taylor and Darryl Hunt are not hypothetical. They were convicted despite the existence of evidence that pointed to their innocence, evidence that was deliberately withheld from their attorneys. All three men were exonerated after serving years in prison – Gell on death row.

Republicans who control both chambers of the N.C. General Assembly seem to have short memories when it comes to cases of prosecutorial or law enforcement misconduct. They are sponsoring bills that would stack the deck in favor of the prosecution and law enforcement – and against the defendant.

One bill filed this session would repeal a the Racial Justice Act, which gives defendants in capital cases a tool to prove that race was a factor in the decision to seek or impose the death penalty. Never mind that the law still requires that the inmate provide convincing evidence that racial bias played into the decision.

Another proposal receiving attention of late is House Bill 408, which would water down a 2004 law requiring full disclosure of investigative files in criminal cases. The only information required would be “the prosecutor’s complete file,” which may or may not include all information gathered by law enforcement investigators or state crime labs.

As written, the proposed law could encourage unscrupulous prosecutors – and make no mistake, several have made headlines in recent years (does the name Mike Nifong ring a bell, anyone ?) – to look the other way or ask that law enforcement not turn over all significant evidence if it might weaken the case. Another provision of the bill would effectively limit indigent defendants’ access to expert witnesses and private investigators.

Prosecutors say the bill makes them responsible for another agency’s omission. But they are charged with pulling together the facts and presenting the state’s case. The buck, as Harry Truman would say, stops with them.

Defense lawyers and the N.C. Center on Actual Innocence, which has helped win freedom for wrongly convicted defendants, are willing to concede that prosecutors who try to do the right thing shouldn’t be held accountable if another agency deliberately withholds investigative records. To his credit, Rep. Tim Moore, R-Cleveland, one of the bill’s sponsors, has asked prosecutors and the defense bar to sit down and talk about compromises. Good.

Until the disclosure law was adopted in 2004, in part because of Gell’s case, prosecutors were allowed to decide what reports the defendant’s attorney got to see.

That isn’t justice.

It is, and was, a recipe for government-sponsored injustice.



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