Charlotte Attorney Jim Cooney just got an up-close-and-personal look at what happens when a district attorney doesn’t turn over all the information he has about a case. Now Cooney, the defense attorney for Duke lacrosse player Reade Seligmann, is watching some in the state legislature try to strip away the state law that kept three Duke students who were innocent of the charges against them from being convicted of crimes they didn’t commit.
“I call them the ‘Let’s Legitimize What Mike Nifong Did,’ acts,” Cooney says of the parallel state house and senate bills that could once again block defendants and their attorneys from accessing prosecutor’s files — and evidence of their innocence contained within them.
The Supreme Court has ruled that defendants are entitled to any evidence prosecutors have that proves they’re innocent, called “exculpatory evidence.” But before North Carolina’s open file discovery law passed in 2004, defendants weren’t entitled to see a prosecutor’s files, so prosecutors decided what was “exculpatory” and thus whether defendants even knew the evidence existed.
Say the accused killer in an armed robbery was white, but a witness tells the prosecutor or his investigators that the person who pulled the trigger was black.
“Under this bill, the DA wouldn’t have to produce it [notes of the interview] unless the DA believed that was evidence of innocence,” says Cooney. “The DAs would always take the position ‘no such thing.'”
Then came the open file discovery law of 2004, which was passed after prosecutors withheld evidence that put innocent men on North Carolina’s death row. Without the 2004 law, much of the exculpatory evidence Durham County Prosecutor Mike Nifong illegally withheld in the Duke case would never have come to light because Nifong wouldn’t have been required to inform defense attorneys it existed.
But that could soon change. A line in both proposed bills reads: “Disclosure is also not required of legal research or of records, correspondence, reports, memoranda or trial preparation interview notes prepared by the prosecuting attorney or by members of the prosecuting attorney’s legal staff.”
When asked why he sponsored this legislation, Sen. Tony Rand initially claimed he was trying to protect witnesses and victims’ social security numbers and personal identification. If prosecutors have to turn over their whole files, he says, defendants could commit identity theft and have in some cases.
When I pointed out that the bill makes no mention of social security numbers or personal information, which could be redacted, and that the language in the bill would close prosecutors’ entire files to defendants again, he explained that he couldn’t discuss the bill with me because he’d “only seen it twice.” Rand says he isn’t very familiar with the language in the bill he sponsored and referred me to some prosecutors backing the bill for an explanation of what it meant. Rand also admitted that there wasn’t any language in the new bill about social security numbers, but promised to “get that worked out in committee.”
Rand then pointed out that defense attorneys don’t have to let prosecutors know if their clients confess to them, then insisted he supported open file discovery and said he sponsored the original 2004 bill.
State legislator Ray Warren, a former sheriff who sponsored the House version, was equally stumped when I asked him to explain why he’d sponsor a bill to roll back open file discovery. He too insisted he supported open file discovery and wanted to protect social security numbers from disclosure, but couldn’t explain how the language in the bill did either, even though he sponsored it. He said he got a copy of the bill from a North Carolina district attorney’s association, and that Wake County District Attorney Colin Willoughby could explain the intent behind the language in the bill to me.
Willoughby explained that part of the motive for the bill was to protect criminals from getting victims’ and witnesses personal information, which in several cases in Wake County had led to identity theft. That part hasn’t been put into the bill yet, he says.
As for the rest of the bill, Willoughby explained that it was unfair to expect prosecutors to take notes at every meeting they have with witnesses if witnesses just kept saying the same thing.
Again, I pointed out that the bill doesn’t allow prosecutors to withhold just repetitive notes, but all trial preparation notes, legal research, records, correspondence, reports and memoranda prepared by a prosecutor and his staff. Willoughby then got huffy and the interview ended. Before it did, he told me he didn’t know who wrote the language in the bill either, and declined to explain it.
“What they have proposed essentially undoes everything that has been done the last four or five years and again it’s going to mask the truth in these cases and all that leads us to is innocent people being convicted,” says Cooney. “For the life of me I cannot understand in view of what has played itself out in Durham why the district attorneys believe this is a good time to actually cut back on the open file discovery provisions. This bill isn’t written for DAs who follow the rules. The bill is written for DAs who aren’t following the rules.”
This article appears in Apr 25 – May 1, 2007.
is that the law went way too far. The 2004 law requires that everything be turned over, and it had no provisions for allowing the redaction of sensitive information. Also, the more serious issue is the fact that it does reveal work-product information. It is pretty easy to tell what someone’s trial strategy is just by looking at the types of questions the attorney asked. This can be figured out just by looking at the notes that were taken, and looking at they types of information I asked about. Let me ask you this: did this law, passed in 2004, stop Mike Nifong from doing what he did in 2006?
“did this law, passed in 2004, stop Mike Nifong from doing what he did in 2006?”
– No. It made what he did illegal. Immoral prosecutors are the biggest terrorist threat in this country. What ever happened to the saying “I’d rather see 9 guilty men go free than 1 innocent man go to jail?”?
If you are indeed an NC DA or ADA you should do the entire profession a servie and resign immediately. You have forgotten that the object is not winning, it is to use an open adversary processes to arrive at soemthing resembling the truth. Given that the bulk of the investigative resources and certainly the most powerful investrigative resources are held by the prosecution, that cannot be accompished if prosecutors are not subject to open discovery. That would be why, in 2004, NC joined the majority of states when it finally passed the open discovery law.
If you think it’s all about strategy and winning, you’ve unfortunately lost your moral compass.
I have no problem requiring the prosecutor laying out his case for the defendent. Do not get me wrong, I do not feel the need to be soft on crime. Before any kind of justice system can work, there needs to be transperency. The state usually has far more resources than a defendent. Even with presumption of innocence, preperation of a defense is a very difficult task. THe defense attorney has to be able to go over the evidence with fine tooth comb to look for holes. THis is a tedious job.
Criminal cases are not civil cases and should not be thought of as such where you have two parties in some sort of contract/injury/other dispute.
While an investigation is underway, the copy should be able to have some privacy. Once the case is proceeding to prosecution, all information should be on the table for the defendent to see.
Presentation of items like DNA evidence at trial is to late for a defense to have a reasonable chance to find and issues with the evidence. They deserve the right to be able to do their homework.
All of you have missed the point. Here is an example: your neighbor’s shed gets broken into, and you can identify the guy who did it. You do the right thing and cooperate with police, who take down information from you like your name, address, phone number, social security number or driver license number, so that the DA’s office can get in touch with you to tell you when the trial is. Under the current law, all of that information would go over to the defendant, unredacted. The man who broke into your neighbor’s shed now has all of your vital information. Now, if this is a big enough case, (say the defendant is a habitual felon facing stiff sentencing), he may hire a private attorney who, if they are worth their salt, will then instruct his investigator to go out and, “talk,” to you about the case. The, “talking,” part will boarder on harassment. Now, if that’s what the defense attorney will do, imagine what the defendant himself will do. I’m not saying that happens all the time, or even most of the time, but what about the person who it happens to once? What is wrong with me redacting out your phone number, birthday, social security number, etc… and telling the defense attorney I will arrange for a meeting between the attorney and you. Wouldn’t that be better?
As
(continuation)
As for the first reply, yes, what Mike Nifong did was already illegal. The case is Brady v. Maryland, and it was decided in 1963. That United States Supreme Court ruling says I have to turn over any exculpatory evidence I have, regardless of where it came from. I have no problems complying with Brady, and have been doing so my entire career. I even turn over information that is probably not considered Brady information just to be sure. A prosecutor can be disbarred for intentionally not turning over Brady material. (which is what Nifong did.)
As for “Resign Now,” you have this issue all wrong, and are clearly showing your ignorance with that comment. Most states with open file discovery only require that the investigative reports of the law enforcement agencies be turned over. I have no problem with that, and have, in fact, done that even before I was required to do so. North Carolina’s law goes way beyond that and requires me to turn over my own notes from when I talk to the same witnesses the police did. 99% of the time, those interviews provide no new information, but do show how I intend to conduct my case. If they give me information that would show the defendant is not guilty, I would then turn it over to the defense attorney in compliance with Brady v. Maryland. As for your baseless assertion that, “it is all about winning,” you are dead wrong. This job is not about winning for me. I have dismissed many cases when it becomes clear that the defendant is not guilty. I have also dismissed cases where it is clear to me that the defendant is guilty, but I did not feel I could prove that case beyond a reasonable doubt. I can confidently say that I have never convicted a person I did not believe was guilty.
As for the last comment above about not having any problem having the entire State’s case known to the defendant, your comment misses the point. How is telling the defense attorney what parts of the case I think are weak, or what witnesses I think will not be very good at testifying on the stand (not to say they are lying or wrong, they are just not good in front of other people, or are scared) , or what pieces of evidence I am going to focus on the most, going to somehow give me access to more investigative resources than the defense attorney. You’ve got to realize that in most situations, (and unlike the Nifong case), the investigation is over when the DA gets the case. Rarely is the DA involved in the investigation of a crime. When I get a case, the investigation is usually over. All I do is make sure that I can prove that case to a jury, that the officers did not violate any constitutional rights, and call all of the witnesses to get them ready to testify. On occasion I will try to look for new witnesses to see if they can add some more, but usually I don’t. And if those witnesses give me information that exculpates the defendant, then I turn it over immediately and decide whether I should still prosecute the case. (Not everything that is considered Brady material is believable, reliable, or even admissible at trial.) Your comment about DNA evidence completely misses my original comment. I have no problems turning over the DNA lab report in full, and would certainly not make arrangements with the lab director to doctor the results. My problem is, and always will be, that this law goes way beyond that.
After re-reading your comment, your method is exactly the way I would like to do it. I have no problem with giving over copies (redacted for victim/witness personal information) to the defendant and saying, “Here is everything I know about the case.” That way both sides know about every piece of evidence, every word of potential testimony, and every lab result that has anything to do with the case. Unfortunately for me, that is not North Carolina’s law. North Carolina requires me to go way beyond that and give the defense attorney everything I have, unredacted, including material that could reveal my thoughts and impressions of the case, and victim and witness personal information.
I also disagree with your sympathy for the defense attorney having to do his job and comb through the material. I am paid to comb through all that information, make sense of it, figure out what it means and what part of the case it proves, and decide how best to present it it to the jury, or if I should even continue to prosecute the case. Why not ask the defense attorney to do the same? That is what he is paid for, just like me. I completely disagree that I should have to turn over my interview notes if they 1. do not contain exculpatory material subject to Brady v. Maryland; and 2. show what my thoughts about how strong that evidence is and what it proves to the defense attorney. You make it sound as if the defense attorney has a very onerous job: he does not. He does not have to turn over all of his evidence and reports and statements to me, he does not have to share his interview notes with me. He is not under an obligation to turn over any evidence of guilt of his client to me regardless of whether it is credible, believable, or admissible. I have the burden to prove the case beyond a reasonable doubt. I have the burden to call all the witnesses and present all of the evidence to the jury. The defense attorney has to just sit there and occasionally poke holes in my case. He does not even have to call a single witness. (And I, of course, can make no mention of the fact that he did not to the jury.) So please, do not make it sound like the defense attorney is at such a disadvantage, he is not.
First of all I have to agree with the prosecutor. On average most of those people they take to trial are guilty. Don’t confuse Mike Nifong with the rest of the Courts system. He was up for re-election and wanted Al and Jesse behind him. And every DA knows what Al Sharpton is capable of doing to those who dont back his horse. (See Dutchess County Assistant District Attorney Steven Pagones/Tawana Brawley Case)
Secondly, we are also forgetting that most prosecutors just deal the case away in the first place. So we are talking about 2-4% of the overall cases in Meck County even going to a jury trial.
In Cabarrus County for instance, they only run 2 weeks of jury trials per YEAR. Simply because they can’t afford any more.
Open disclosure is a problem but only if they don’t deal you to a favorable crime or dismiss it all together. Lets focus on getting more people in front of there constitutional “jury of their peers” before we start arguing over the semantics of what one attorney is supposed to share with the other.
Step 1) don’t hire a drugged out black stripper for your next party.
Step 2) if you come to the aid of a victim, expect to be involved in the entire process
Step 3) If you engage bad people, even as just a witness, expect them to engage you.
If you’re not willing to accept the risk and responsibility..the cost of a free society, then just walk on by next time you see muggers beating their victim to the ground.