NC State Bar panel approves rules for evidence of innocence

By Martha Waggoner - Associated Press

RALEIGH — North Carolina prosecutors would have to reveal evidence of innocence obtained after a person is convicted under a rule that a State Bar approved Tuesday.

Previously, prosecutors only had to reveal the evidence of innocence before a conviction. After agreeing to that rule, the panel went a step further and tentatively signed off on another new rule that requires all attorneys, including criminal defense attorneys, to reveal post-conviction evidence of innocence, provided they’re not violating rules including attorney client-privilege.

“A clear decision was made by the subcommittee today that it was not comfortable making years ago,” said defense attorney Brad Bannon, referring to a decision several years not to send the prosecutors’ rule to the full committee. “We have seen these wrongful conviction cases increase in the years since, and we need to be sure that the people most able to correct that injustice — prosecutors and other lawyers — take steps to do so.”

The proposal from the ethics subcommittee now goes to the full ethics committee, which meets in October. If it is approved, it’s then sent to attorneys for comment.

The five-member subcommittee had met several times previously to discuss the rule and discussion Tuesday was brief and mostly concentrated on language to tell prosecutors that they must consider the evidence they receive and not just focus on the credibility of the source.

The American Bar Association says 14 states have a rule about prosecutors and post-conviction evidence of innocence and recommends that each state approve such a rule.

For the proposal involving all attorneys, the subcommittee discussed whether to allow attorneys to ignore attorney-client privilege. Eventually, the panel said the importance of protecting that relationship was greater.

“This is the classic example of a clash of values,” said Alice Mine, the State Bar’s assistant executive director and ethics counsel. “We’ve got this value of preventing wrongful convictions. But we also have this value of protecting the interest of our clients. And the duty of confidentiality is really core to the attorney-client relationship.”

Advocates cited a Buncombe County murder case as a prime example of why North Carolina needed the rule for prosecutors. Five innocent men served prison terms in connection with a 2000 home-invasion murder 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 that he never saw the DNA evidence, although the report from the State Bureau of Investigation showed it was copied to the DA.

The five received a total $8 million for their wrongful convictions. Some of them had pleaded guilty to avoid the threat of the death penalty.

By Martha Waggoner

Associated Press

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