Open And Shut: North Carolina Strengthens Its Open Discovery Law

Back in 2004,

North Carolina Governor Mike Easley signed a bill into law that require[d] prosecutors to share their files in all felony cases. The bill was approved in the wake of allegations that prosecutors withheld evidence in the capital murder trial of Alan Gell, who was later exonerated and freed from death row. The new open discovery statute require[d] district attorneys to open their investigative files in felony cases to defense lawyers who request[ed] such access prior to trial. The law require[d] DAs to provide such things as police investigator notes, defendant and witness statements, test results and a list of probable witnesses for the trial. In return, defense attorneys will have to provide the state with witness lists and details about the grounds on which they plan to defend their client. 

That bill created G.S. § 15A-903, and you can read its text by clicking here. So, what besides the Gell case led to the passage of G.S. § 15A-903, what problems has the law encountered, and what did North Carolina recently do in connection with the bill? These are the subjects of this post.

It seems as if the Gell was merely the straw that broke the camel's back and led to open discovery in North Carolina. Previously,

an earlier compromise on the issue of open files [in North Carolina] was reached in death penalty cases, requiring prosecutors to share evidence before a defendant could be executed. "That gave a small window into prosecutor’s files...and it was shown dramatically that prosecutors in death penalty cases were not giving defense lawyers evidence that the clients were innocent, couldn’t have committed the crime, or that the crime happened in a way that would not have qualified for the death penalty.” In other words,..."They were abrogating their responsibility to see that justice was done. DAs were putting winning ahead of justice."

Thereafter, over the next seven years, this peek into the files of prosecutors would lead to the overturning of an average of one death penalty case a year. But it wasn't until the Gell case that the groundswell for change turned into a referendum on criminal discovery in North Carolina. Gell was convicted of murder and sentenced to die before the prosecution finally turned over 17 statements by witness indicating that they had seen the victim alive after Gell had already been incarcerated.

Thus, in 2004, North Carolina got G.S. § 15A-903. Three years later, it almost lost it. In 2007, in the wake of the Duke lacrosse scandal,

North Carolina prosecutors hope[d] to roll back parts of the 2004 law that helped defense lawyers show the innocence of the three men charged in the Duke lacrosse case.

"A bill proposed in the legislature would [have] give[n] district attorneys and their staffs greater leeway to withhold details from some interviews with witnesses and investigators. If the interviews were considered legal strategy talks -- or "work product" in lawyer jargon -- then notes taken from the meetings might not have to be shared with the defense.

"Defense lawyers [fought] the proposal, saying the changes would turn the clock back to a time when many prosecutors routinely sat on information that could help an accused person prove his innocence."

That roll back attempt ultimately failed, but it was revived four years later. The new Republican legislature initially proposed a version of House Bill 408 (which you can read by clicking here) that would have "gut[ted] open discovery in North Carolina" according to Mark Rabil, the Co-Director of the Innocence and Justice Clinic at the Wake Forest University School of Law. Among other things, the bill would have "ensure[d] prosecutors would no longer be held responsible for information withheld by police." For a story on the proposed legislation and a news clip of wrongfully convicted men speaking out against it, you can click here.

But then, a funny thing happened on the way to the courtroom. Rather than rolling back the open discovery law, North Carolina decided to bolster it. Specifically,

District attorneys and defense lawyers...agreed on changes that will require law enforcement officers, crime labs and other investigative agencies to turn over sooner any potential evidence that could help a suspect's case sooner. The proposed law would make clear that crime investigators are expected to turn over any evidence even without a request from prosecutors triggering that duty.

House Bill 408 was thus strengthened and recently passed into law. You can read it by clicking here. According to Rabil, some of the new law

makes the criminal discovery statute consistent with the recently passed Forensic Sciences Act (FSA), such as criminalizing the failure of law enforcement to disclose information to the DA and the requirement that the working papers (bench notes, preliminary tests, etc) be provided through discovery.  So those parts are not exactly new, but consistent with the new FSA. 

The new parts...with regard to expanding the definition of the types of agencies that must provide information to the DA so that he can provide it to the defense through discovery -- this is good because it helps insure that all investigative agencies are required to comply with producing discovery.  Also new is a protection for DAs -- there is a presumption that helps them:   courts and state agencies shall presume good faith on the part of prosecutors who conducted a "reasonably diligent inquiry" of those agencies and disclosed the responsive materials to the defendant.

Overall, this is an excellent example of both sides -- prosecutors and defense attorneys -- working together to propose legislation that will keep the system working toward fairness in the process.  The new amendments insure that we will not roll the clock back on discovery and openness.  This will help prevent wrongful convictions in the long run:  that is, this will help prevent some of the abuses and mistakes made made in such cases as Allan Gell, Darryl Hunt and Greg Taylor, and the recent failure to provide 1,800 pages of discovery in the Bellamy capital trial in Statesville.   Further, law enforcement will have a motivation to search for and produce all available relevant evidence -- if they don't, they could be charged with a felony.  And, the overwhelming majority of prosecutors who act in good faith to obtain information and provide it to the defense will be protected from unwarranted discipline. 

The Forensic Sciences Act referenced by Rabil can be found by clicking here (and here's an article about it), and, along with North Carolina's open discovery law, it represents two of a triumvirate of recent positive criminal justice efforts in the state, with the state's eyewitness identification reform law being the third (which, as with the open discovery law, came in the wake of a high profile case).

-CM