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There was a point when North Carolina attorney Jim Cooney’s client faced almost certain execution after receiving a death sentence for murder. But a unique North Carolina discovery law that allows defense counsel to see a prosecutor’s entire case file led to a reversal of that conviction in December 2002. The law only applies to capital cases where a defendant has been sentenced to death and has lost on direct appeal. In some cases, defense counsel say they have found a range of potentially exculpatory evidence, ranging from the withholding of witness statements that cast doubt on a prosecutor’s case, to the failure to disclose deals made in exchange for a witness’s testimony. “If it wasn’t for that statute, my client would be looking at a pretty certain execution,” said Cooney, lead defense counsel for Alan Gell and a member in Womble Carlyle Sandridge & Rice’s Charlotte, N.C., office. “If he hadn’t been given the death penalty we would never have known.” The Gell case is one of a handful-five since passage of the 1996 discovery law-that have been reversed because of information discovered in opened files. North Carolina is the only state with this type of statute, though Tennessee has one that is similar. Staples Hughes, the North Carolina state appellate defender, asserted that the “reversals make a strong argument for earlier-pretrial-open file discovery here and in every state for every case.” While confirming the reversals, Noelle Talley, a spokeswoman for North Carolina Attorney General Roy Cooper, said she “could not say that these were due to the open discovery law.” The AG’s office declined to comment on specific cases. Since Brady v. Maryland, 373 U.S. 83 (1963), prosecutors have been constitutionally bound to disclose all information and material known to the government that may be favorable to a defendant on the issues of guilt or punishment, without regard to materiality. The system is based on trust. It is presumed that the government, when seeking justice, will act for the benefit of all people-including a defendant. In addition, prosecutors are required to disclose the existence and substance of any payments, promises of immunity, leniency, preferential treatment or other inducements made to prospective witnesses. Giglio v. U.S., 405 U.S. 150 (1972). 17 crucial witnesses Cooney said the attorney general’s office handed him “17 witnesses’ statements from people who had seen the victim alive after my client was supposed to have killed him and when my client was in jail [on another matter].” Neither Gell’s trial nor appellate lawyers had ever seen the statements, said Cooney. The judge ruled from the bench at a December 2002 evidentiary hearing, reversing the conviction for Brady violations. Gell remains in jail, awaiting retrial, which is set for Feb. 2, 2004. The state is no longer seeking the death penalty. State v. Gell, No. 95 CRS 1884, 1339-40, 2322 (Bertie Co., N.C., Super. Ct. 1995). Some indigent death row inmates in North Carolina are represented by the Center for Death Penalty Litigation in Durham, N.C., which consults in the post-conviction cases it does not take. Ken Rose, its director, asserts the law is “necessary to prevent people from being executed who wouldn’t haven’t gotten relief otherwise.” But he alleges that in “at least as many cases where it was revealed that exculpatory evidence had been hidden from the defense, judges have brushed it under the rug and not granted evidentiary hearings.” Some of these people have already been executed, he alleged. It is left to judges to determine whether a failure to disclose was material and could in any reasonable likelihood have affected the judgment of the jury. Robert McCulloch, president of the National District Attorneys Association and the DA in St. Louis County, Mo., said his organization has not taken a position on open file discovery. In his state, though, he said that prosecutor’s files are opened in the earliest stages of the process in all criminal cases. Of the five cases overturned, said Talley, the spokeswoman for the North Carolina attorney general, one defendant pleaded to, and one was convicted of, second-degree murder, two are awaiting retrial and one died in prison while awaiting retrial. Post’s e-mail address is [email protected].

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