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The Nifong Protection Act 

Do we want to go there?

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."

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