- Associated Press - Thursday, April 21, 2016

RALEIGH, N.C. (AP) - A North Carolina State Bar panel seemed to make progress Thursday on the issue of whether prosecutors should be required to turn over evidence of innocence after a person is convicted.

At issue is a model rule recommended by the American Bar Association that requires prosecutors to turn over such evidence. In 2009, North Carolina’s State Bar rejected the rule, which the ABA says has been adopted in some form in 13 states.

The five-member ethics subcommittee took no votes but appeared to reach a majority consensus that all attorneys, not just prosecutors, should be required to turn over evidence of innocence.

“If we have evidence that someone is innocent, I think that’s a pretty strong indictment of our system if we don’t try to do something about that,” said defense attorney Colon Willoughby, a former prosecutor who advises the subcommittee.

Acting U.S. Attorney John Bruce took the strongest stance against the rule, saying he didn’t think it was the job of the ethics commitment to micromanage the actions of prosecutors.

“We all believe that innocent people should be free,” said Bruce, who said he was not on the subcommittee in his official capacity. “I don’t think we need to draft a rule to send a message.”

Defense attorney Brad Bannon asked the State Bar in January to reconsider the ABA rule, which requires prosecutors to come forward if they find “new, credible and material evidence” that an innocent person is serving time.

“These rules are about protecting the public, including the most vulnerable members of the public, who are people in prison who shouldn’t be there,” Bannon said.

He and several other attorneys proposed specific language for North Carolina that differs from the ABA rule, including a “safe harbor” provision that protects prosecutors who conclude “in good faith” that the evidence isn’t new “even if this conclusion is later determined to have been erroneous.”

It also requires only that prosecutors disclose new evidence, not that they investigate it or remedy the situation.

Advocates call a Buncombe County murder case a prime example of why North Carolina needs the rule. Five innocent men served prison terms in connection with a murder they didn’t commit.

Another man confessed in 2003 and implicated an accomplice whose DNA was eventually found on masks and bandanas near the scene. The district attorney said in a deposition that he didn’t believe the confession and he never saw the DNA evidence, although the report from the State Bureau of Investigation indicated it was copied to the DA.

The five recently received a total $8 million for their wrongful convictions. Some of them had pleaded guilty to avoid the threat of the death penalty in a home invasion murder in 2000.

“I honestly don’t see any moral, ethical grounds to say ‘I’m going to sit on information even though an innocent person may be in prison even though all I have to do is send it to IDS (Indigent Defense Services) or send it to the defense lawyer,” David Rudolf, who represented one of the five Buncombe County men in a civil lawsuit, told the subcommittee.

The subcommittee didn’t set a date for its next meeting. The panel is just the first step in a lengthy process that - if the rule is approved at each step - involves the full ethics committee, public comment, the full State Bar Council and finally, the State Supreme Court.

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Martha Waggoner can be reached at https://twitter.com/mjwaggonernc. Her work can be found at https://bigstory.ap.org/content/martha-waggoner

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