Sunday, March 7, 2004
Attorney General Roy Cooper did the right thing last week when he called on all North Carolina prosecutors to open their files on first-degree murder cases to defense attorneys to avoid wrongful convictions. It's a start at fixing a criminal justice system badly in need of overhaul.
Cooper made that call in the wake of the Alan Gell case. Gell spent more than four years on Death Row for a first-degree murder conviction in Bertie County that he was acquitted of last month - after a second trial in which prosecutors under Cooper continued to maintain Gell was guilty. At his first trial in 1998, prosecutors withheld witness statements, according to The News & Observer of Raleigh.
Cooper took office after the first trial, and the prosecutors who handled the first case have long since left his office. Those prosecutors worked under Gov. Mike Easley when he was attorney general, although Easley was not directly involved in the case.
Cooper allowed new prosecutors to proceed with the second trial on weak evidence. Now he's making a welcome stab at curbing wrongful convictions. He needs the legislature to make "open-file discovery" law, or the agreement of the state's 39 district attorneys to make it statewide policy. Some prosecutors resist sharing their files with defense attorneys before trials.
But many others already have open-file policies, including Forsyth County District Attorney Tom Keith. Yet that policy didn't help get Darryl Hunt out of prison after he was wrongfully convicted in the murder of Deborah Sykes.
In that case and others, there are logistics that sometimes mean files aren't all the way open. Hunt's attorneys couldn't see most of the file on an SBI investigation that might have helped them get their client exonerated sooner than last month. State law says SBI files on pending cases are closed, Keith says. Defense objections failed.
If Cooper is successful with his push for open files, there's no guarantee that some police or prosecutors wouldn't practice selective inclusion. But if open files were statewide policy or law, there could be stiffer penalties for those who withhold information. There should also be stiff penalties for the few defense attorneys and private investigators who might use the policy to intimidate state witnesses.
Keith says his office follows an open-file policy for all cases, not just murder ones. The policy encourages guilty pleas and reduces the chances for appeal, he says.
Such policies are practical and right. Cooper's not asking prosecutors to agree to a similar policy in all felony cases, only ones of first-degree murder. They should do so. If they don't, legislators should make it law, and Easley should support them in that effort.