Bill would let DAs sit on some records

They say key law in Duke case too strict

North Carolina prosecutors hope to roll back parts of the 2004 law that helped defense lawyers show the innocence of the three men charged in the Duke lacrosse case.

A bill proposed in the legislature would give district attorneys and their staffs greater leeway to withhold details from some interviews with witnesses and investigators. If the interviews were considered legal strategy talks -- or "work product" in lawyer jargon -- then notes taken from the meetings might not have to be shared with the defense.

Defense lawyers are fighting the proposal, saying the changes would turn the clock back to a time when many prosecutors routinely sat on information that could help an accused person prove his innocence.

The N.C. Conference of District Attorneys is pushing for the amendment not quite three years after the law took effect requiring prosecutors to open their entire case files to defendants. A series of wrongful convictions sparked the October 2004 "open discovery law."

Prosecutors say their intention is to tweak a relatively new law that sometimes handcuffs them.

The 2004 law requires prosecutors to disclose the identity of confidential informants and hand over Social Security numbers and other key personal data that witnesses might not want made public.

The director of the state's district attorneys association acknowledged that Durham District Attorney Mike Nifong's widely criticized behavior in the Duke lacrosse case makes their proposal a tougher sell.

"We are hoping that the General Assembly will not take the acts of one prosecutor and hold the rest of them accountable for it," said Peg Dorer, director of the North Carolina Conference of District Attorneys. "Timing could not be any worse. But if we don't address this, it's going to shut the prosecutors down."

What further worries prosecutors is a recent N.C. Court of Appeals ruling affirming that prosecutors need to make a record of all meetings with witnesses and provide notes to defendants.

"You're setting the prosecutor up to fail," said Colon Willoughby, Wake County District Attorney.

Willoughby said he interprets this to mean that if a prosecutor were to speak with an investigator or other witness in a hallway and find out nothing new, the law would still require a memorandum from that meeting.

"This happens all the time," Willoughby said.

Not only would such reports be cumbersome for the prosecutor and his staff, Willoughby said, it could create an atmosphere where anyone who forgot to mention a hallway meeting could be accused of violating ethics and professional conduct rules.

Defense lawyers say it should not be left to the discretion of a prosecutor to determine what might help a defendant fight charges.

They say Nifong's actions in the sexual assault case against the three former Duke lacrosse players show how a prosecutor can interpret information in a very different way from the defense.

Crystal Gail Mangum, a stripper, told police she was gang-raped at a lacrosse team party.

In that case, Nifong withheld evidence that DNA from four men who were not lacrosse players was on or in the accuser around the time she claimed the players gang-raped her.

Nifong said in a letter earlier this year to the State Bar, a letter he wrote to protest ethics and misconduct charges against him, that he had not considered the evidence of DNA from the four men anything that would have helped the three former Duke lacrosse players.

Lacrosse case fallout

Nifong said he was basing his case on the accuser's identification of the three men. Last month, State Attorney General Roy Cooper dismissed the sexual assault and kidnapping charges and sharply criticized Nifong for his rush to prosecute.

Prosecutors worry that publicity from the lacrosse case could cause legislators to give short shrift to their legislative proposal. In recent weeks, a negotiating team from the N.C. Academy of Trial lawyers has been working with the N.C. Conference of District Attorneys to develop a compromise that would take into account concerns about the disclosure of confidential informants and witnesses' personal data.

'Nifong protection act'

Under the legislative proposal, for example, Nifong could have withheld notes from interviews done by Linwood Wilson, his chief investigator in the lacrosse case. Wilson's December interview with Crystal Gail Mangum, the accuser in the case, led to the dismissal of rape charges. During that interview, Mangum changed her version of what happened from an earlier telling, saying she longer was certain she had been raped.

Defense lawyers say the bill proposals as worded now are unacceptable.

"I call this the Nifong protection act," said Mary Ann Tally, a representative of the N.C. Academy of Trial Lawyers working on the negotiating team. "You're protecting Nifong. You're not protecting the public from Mike Nifong. I'm more concerned about protecting the public from Mike Nifong than protecting him."