The state agency that disciplines lawyers has taken the unusual step of chastising the prosecutors' office in Johnston County for its mishandling of evidence in a first-degree murder case.
The N.C. State Bar had charged that Assistant District Attorney Gregory Butler violated ethics rules when he handed over a 437-page file to a defense attorney a week before the trial. State law and State Bar rules require prosecutors to be diligent in gathering and sharing all evidence with defendants before trial.
After a two-day hearing, the bar's Disciplinary Hearing Commission on Friday dismissed the charges against Butler, saying the violations had been committed by the office of the 11th Prosecutorial District, which comprises Johnston, Harnett and Lee counties.
North Carolina law doesn't allow the disciplinary panel to penalize a law firm or prosecutor's office.
But if the law allowed, the panel would reprimand the office for its failure to follow the state's open file discovery law, said Lane Williamson, the Disciplinary Hearing Commission chairman.
"We're sending a message to all the prosecutors of the state," Williamson said. "The game has changed. You need to have checks and balances in place to ensure that the mandate is complied with. It wasn't done here."
Williamson said the blame was shared by Butler, former District Attorney Tom Lock, who is now a Superior Court judge, District Attorney Susan Doyle and other law enforcement officials.
Friday's ruling signaled the State Bar's increasing scrutiny of prosecutors who fail to share evidence with defendants. In 2004, the bar reprimanded two former prosecutors who had failed to hand over favorable evidence to Alan Gell, who was wrongly convicted of a 1995 murder and spent nine years behind bars before he was exonerated.
The bar's tepid prosecution of Gell's prosecutors caused the bar to re-examine how it investigated and disciplined prosecutors. In 2007, the state bar made a vigorous prosecution of former Durham District Attorney Mike Nifong for withholding evidence that three Duke lacrosse players were falsely charged with rape. The disciplinary panel took Nifong's law license.
Butler was accused of failing to gather and hand over potentially favorable evidence in the murder case against Tiffany Ann Bassett, who was charged with the July 2006 slaying of her boyfriend.
Butler was the third prosecutor assigned to the case, following Locke and Doyle. Butler said he gave Bassett's defense attorney a 437-page report from the sheriff's office a week before trial because the prosecutor had just learned of the report's existence from investigators.
Bassett's lawyer had specifically asked for the notes of investigators and other evidence that was found in the 437 pages.
The judge delayed the trial and scolded Butler for the late production of evidence. Bassett, 29, pleaded guilty to second-degree murder in September 2008 and is serving an 18-year prison sentence.
Bassett's lawyer, Bob Denning, told the disciplinary panel that he believed the withheld evidence was an oversight and not intentional on Butler's part.
Butler's lawyer, Jim Maxwell of Durham, said his client was enormously relieved by the ruling.
"He thought all along he was doing what he was supposed to do," Maxwell said. "No one questioned that he did the right thing when he found the material."
Williamson acknowledged that District Attorney Doyle had made changes in her office's policies to make sure defendants receive all evidence required by law.
Doyle declined to discuss the ruling.
This failure to produce evidence happens in virtually all complicated cases, said Jim Woodall, district attorney for Orange and Chatham counties and the president of the N.C. Conference of District Attorneys.
Sometimes police don't understand they need to hand over all their documents and notes to prosecutors, Woodall said. Sometimes witnesses make additional statements or point to new evidence just before the trial.
Woodall said he was frustrated that prosecutors don't have automated document management systems routinely found in law firms. The General Assembly appropriated $3 million for an automated discovery system in 2005, but the Administrative Office of the Courts has yet to deliver anything, he said.
"Today we've got nothing," Woodall said. "I don't know what happened. We are doing it the same way we did it 30 years ago - with someone standing at a copy machine."
