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The recent acquittal of a former death row inmate whose case was overturned because evidence was withheld has prompted North Carolina’s attorney general to call for a statewide open-file discovery process in capital cases. Under current state law, the prosecution is required to turn over its entire file to the defense, but only after death-row inmates have exhausted all appeals. [NLJ, 11-10-03.] Now, North Carolina Attorney General Roy Cooper is saying that defense lawyers should have access to all evidence from the very beginning. “Instead of catching mistakes afterward, we should work toward getting it right the first time,” Cooper wrote in a Feb. 26 letter to district attorneys. “That will result in a fair trial and ensure that guilty verdicts for murderers will be upheld on appeal. It also gives the people of our state more confidence in our justice system.” Two-way street Prosecutors, meanwhile, say this information-sharing should go both ways: If they have to hand over everything, then defense lawyers should reciprocate. “That’s where the biggest rub comes in because there’s just no free exchange of information,” said attorney Robert McCulloch, president of the National District Attorneys Association. “It’s just a one-way street. I think most prosecutors don’t mind giving up information as long as we’re getting the same information back.” A big concern for prosecutors is protecting witnesses and confidential informants under an open-file policy. “I’m not opposed to open file if it could be done in a way that would guarantee [witness] protection,” said Jeff Hunt, president of the North Carolina Conference of District Attorneys. “I do know that we’ve got to continue to protect the integrity of an investigation and if we lost that ability then we’re really screwed.” The push for discovery reform in North Carolina comes in the wake of last month’s acquittal of former death row inmate Alan Gell, who after nine years in prison was granted a new trial upon discovery that prosecutors withheld exculpatory evidence. According to Gell’s lawyer, Joseph B. Cheshire V, of Raleigh, N.C.’s Cheshire Parker, that evidence included statements from witnesses who said they saw the victim alive after Gell was in jail on another charge, and a taped phone conversation in which the state’s main witnesses talked about having to “make up a story” for police. “I think [the Gell case] points out quite dramatically that what is and what isn’t exculpatory shouldn’t be left up to the whim of the prosecutor,” Cheshire asserted. As for the request that defense lawyers do the same, Cheshire argues it’s not the defense’s job to help the prosecution seal a conviction. “That’s their burden,” he said. “The defense’s job is not to assist the prosecutors in prosecuting their clients.” According to McCulloch, Florida has the most liberal statewide open-file policy. He said most states have some sort of discovery laws, but prosecutors still have some discretion in deciding what evidence is helpful. That’s been a major sticking point for defense lawyers. “It’s a constant fight to get all the evidence that the government has. And so often-so often-after a person is convicted we find that there are statements that were misfiled, or lost, or in someone else’s file, that in fact exonerate or exculpate the convicted person,” said defense attorney James Feinberg, president of the American Board of Criminal Lawyers. Feinberg is calling on prosecutors nationwide to adopt mandatory open-file policies. “The second a defendant is in fact charged, everything that is in possession of the prosecutors, police, investigators, anybody, should be turned over to the defense attorney,” Feinberg said. “Most prosecutors are honest in their attempt to comply with the discovery requirements, but there are some that wouldn’t know compliance if it were written on their foreheads.”

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