Evidence withholding could send cops to jail

A proposed law would put blame on investigators or lab techs when all notes in an investigation aren't turned over. The change is cheered by prosecutors.

Staff WritersJanuary 23, 2011 

  • Prosecutors and police are required to share evidence with criminal defendants, allowing those accused to examine evidence favorable to them and to have a fair chance at defending themselves. A brief recap:

    1963: The U.S. Supreme Court rules that prosecutors must share evidence that could show the defendant's innocence. The prosecutor decides which evidence is helpful.

    1996: The N.C. General Assembly passes a law giving Death Row inmates access to the complete files of prosecutors and police to speed up the appeals process and ensure the innocent are not executed.

    2004: After several death sentences are thrown out because prosecutors withheld favorable evidence, the N.C. General Assembly orders prosecutors to share their entire files in all felony cases, a practice known as "open file discovery."

    2010: The exoneration of Greg Taylor, who was wrongly convicted of murder, and an independent audit show the SBI crime lab had withheld favorable test results in more than 200 cases.

A proposal from a group working to fix problems at the State Bureau of Investigation could reach much further: Law-enforcement officers and forensic lab analysts could end up on the wrong side of the law if they fail to give prosecutors all of their notes from an investigation.

Legislators will be asked to consider a new law that would allow prosecutors to charge cops with obstructing justice if they knowingly withhold or misrepresent evidence that discovery laws require to be turned over to defendants.

The proposal is one of a broad set of reforms recommended last week by a committee asked to find ways to set right an embattled SBI. Pushed by prosecutors tired of being blamed for not providing evidence favorable to defendants, it would bring a heightened sense of responsibility to police and lab analysts to turn over all their notes. Failure could bring a stiff penalty.

"We wanted something to shift the burden to where it ought to be ..." said Tom Keith, a retired district attorney from Forsyth County who voted for the change Tuesday. "Right now, there's no onus on them, and they think it's a DA's problem, not theirs."

Since September, the joint legislative committee has been debating how to fix problems at the SBI. The agency has been under the microscope for nearly a year, amid disclosures that lab analysts failed to turn over blood test results favorable to defendants.

The News & Observer reported last August that problems went deeper; some agents bullied the vulnerable and some lab analysts pushed past the bounds of accepted science to deliver results that bolstered prosecutors' cases. And an audit ordered by Attorney General Roy Cooper, who oversees the SBI, cited 229 cases where lab analysts withheld test results that could be favorable to defendants.

While the changes recommended Tuesday were mostly aimed to address issues at the SBI, some will reverberate through the entire criminal justice system. Putting police in the hot seat for failing to turn over discovery will affect every police and sheriff's department from Manteo to Robbinsville.

In theory, police could be prosecuted for obstruction of justice under common law, but such charges have rarely, if ever, been used against officers who withhold evidence.

Police don't mind

Police and sheriff's groups also welcomed the heightened responsibility that the proposed law would bring.

"It will help with the rare case in which it's not being done right," said Eddie Caldwell, executive vice president and general counsel of the N.C. Sheriff's Association. "Is it going to have a dramatic change over the way folks do business? No, because 99.9 percent of the time, it's being done correctly."

If passed, the proposal could have a significant impact on the justice system, said Duke Law School professor James Coleman.

"The possibility of an obstruction of justice charge should have a deterrent effect on a police officer who has written something down that he doesn't want to turn over," Coleman said.

Keith, the retired DA, said he sometimes has been caught in a bad situation in court because a police officer hadn't turned over all the evidence. Now, many prosecutors have a form or some sort of process by which they ask law enforcement officers to certify that they've turned over all of their material. Keith said he put officers on the stand and made them swear under oath that they had adhered to discovery requirements.

Shortly before he retired, Keith said, he had a police officer not turn over a critical piece of information, and when confronted, say the information didn't exist.

"He's lucky that I retired because I would have found a way to hold him accountable," Keith said. "It's our license on the line."

Now, it will also be prosecutors' liberty, too. The obstruction of justice charge would apply to district attorneys and their assistants who knowingly fail to comply with discovery laws.

"If that's what it takes for our assistant district attorneys to wake up, do it. This is serious stuff," Keith said.

Prosecutors' burden

In several high-profile cases over the past seven years, the N.C. State Bar has charged prosecutors with violating the discovery laws that require them to share evidence with defendants.

Those cases can end in the ultimate penalty on a prosecutor - taking a law license, as the bar did to former Durham District Attorney Mike Nifong in 2007 for withholding evidence and other violations in the Duke lacrosse case.

Some prosecutors on trial at the State Bar have defended themselves by pointing fingers at police, as did David Hoke and Debra Graves, whose work landed Alan Gell on death row in 1998 for a Bertie County murder. Hoke and Graves failed to give Gell and his lawyers witness statements showing that Gell had been jailed before the murder occurred. As one of their defenses, they blamed SBI agent Dwight Ransome for not producing the statements.

In a 2008 murder case, former Johnston County prosecutor Greg Butler repeatedly told the defendant's lawyers that he had shared all evidence from the SBI and the sheriff. Just before trial, Butler discovered more than 400 pages of evidence that the sheriff's department hadn't given him.

The bar panel that tried Butler had harsh words for Butler and his colleagues, saying the prosecutor's office had failed in its duty to collect all evidence from the sheriff's office.

The proposal, if passed, would increase the burden on police to produce such files.

Private labs included

The law would also apply to private entities working for the state. One example would be the Burlington laboratory that did DNA work for Nifong in the Duke lacrosse case, where a Durham woman falsely accused three Duke students of rape. Brian Meehan of DNA Security failed to report test results showing that DNA from several unidentified men had been found in the rape kit taken from the complainant.

Noelle Talley, spokeswoman for Attorney General Roy Cooper, said in a statement that Cooper's office looked forward to working with the legislature to make sure discovery laws are properly enforced. Cooper and SBIDirector Greg McLeod would not comment.

Coleman, the Duke professor, said the law change wouldn't address a thorny situation: police who don't make notes or records of what they learn. Coleman and his colleagues have been trying for years to free Calvin Michael Smith from prison for a brutal 1996 assault. Coleman, who believes Smith is innocent, said the detective consciously avoiding collecting or writing down any evidence favorable to Smith.

"He basically said he didn't write things down because he didn't work for the defense," Coleman said.

mandy.locke@newsobserver.com or 919-829-8927

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