- Associated Press - Saturday, June 3, 2017

RALEIGH, N.C. (AP) - As a man convicted of murder tries to prove to the North Carolina’s innocence commission that he didn’t commit the crime, his attorney says the commission has misled a judge in order to keep its files secret, causing delays in the case.

Attorney Chris Mumma represents Robert Bragg, who’s serving a sentence of life without parole for a 1994 slaying. Bragg contends he’s innocent. Last September his case came before the North Carolina Innocence Inquiry Commission, a state agency established to investigate and evaluate post-conviction innocence claims. The commission referred it to a three-judge panel, which is scheduled to hold a hearing in July - 10 months after the original commission hearing and two months after the original May hearing date.

The delay came, in part, as Bragg’s attorney fought a protective order that the commission said was necessary to shield a confidential investigative file. The commission said evidence in the file was obtained through methods that require it to be kept under a stricter level of judicial protection than other criminal investigative files.

But in a court filing, Mumma says the commission misrepresented the file’s contents. In fact, only one protective order was found in the documents, and defense attorneys already had received that file, Mumma said in the court filing last month in Bragg’s case.

While Mumma now has the full commission file and can use it in this appeal, the protective order means she can’t use it again in the future without seeking a judge’s permission.

The commission’s demand for secrecy “is contrary to how every other case in our justice system is treated,” Mumma said in an interview.

The state attorney general’s office, which is representing innocence commission in hearings about the protective order, disagrees with Mumma’s filing and will state its position in court, spokeswoman Laura Brewer said. The commission’s executive director, Lindsey Guice Smith, declined to comment.

Typically, defense attorneys have access to an investigative file that they can use time and time again. The evidence in the file isn’t public record until it’s released in court, but defense attorneys don’t have to seek permission each time they need to use the file.

Under the commission’s protective orders, the attorneys must return to the commission each time they want to use its file. In the past, the commission allowed its files to be used in any criminal or civil proceeding, said Mumma. But then it placed more restrictions, she said.

Last year, legislators revised the innocence commission law to say that its files will be turned over to attorneys without protective orders. The law allows two exceptions, including a hearing before the top judge of the three-judge panel that will hear the innocence case.

The files will remain under a protective order until after the three-judge hearing in July.

In the middle of the fight over files is Bragg, who was convicted of the 1994 slaying of 76-year-old Marvin Hartley in Boone, and sentenced to life in prison without parole.

Among the evidence in the case:

— The victim’s DNA evidence was found on the clothing of Kenneth Coffey, another person also convicted in the murder, but not on Bragg’s clothing.

— Coffey initially testified that he and Bragg committed the crime, but he has since said Bragg wasn’t involved.

— A 10-year-old and his mother testified that they saw Bragg and Coffey following the victim to his trailer. The 10-year-old, now an adult, recanted. The mother has stood by her testimony.

Bragg offered witnesses who testified he was elsewhere at the time of the murder.

The file at issue in Mumma’s complaint has multiple details, including:

— All defense attorney files, including the trial and post-conviction attorney and N.C. Prisoner Legal Services.

— Law enforcement records.

— Correction department files on Coffey and Bragg, which include both information that’s public record and information that Mumma says attorneys typically agree is protected until it’s used in court, such as the men’s medical records.

The fight over confidentiality, along with a related issue of finding a state attorney to represent the commission, means Bragg has lost months of potential freedom and the attorneys lost several months of investigative time, Mumma said.

“And this issue is still not resolved,” she said. “The way the judge ruled, we’ll readdress this … We’ll have to spend additional resources to get Bobby what he’s entitled to by law.”

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Follow Martha Waggoner on Twitter at https://twitter.com/mjwaggonernc

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