In NC, protected records shield wrongful convictions of the innocent

North Carolina’s pioneering efforts to right wrongful convictions had another benefit: revealing the justice system’s past mistakes to avoid repeating them.

But more than a decade after the formation of the North Carolina Innocence Inquiry Commission, many of the errors of police, prosecutors and judges remain secret.

The commission carefully guards records it collects while investigating claims of innocence. Even when commission officials find proof of a wrongful conviction, they still insist that their documents be shielded by protective orders.

Legislators amended the state law last year, saying that the commission’s files on an inmate whose case has been recommended for review by a panel of judges shall be “unencumbered.” Commission officials are resisting the change.

In a letter commission executive director Lindsey Guice Smith wrote to a judge last year, she noted that many of the files they receive have been turned over to them with orders they remain private; some of the files are police records, which typically aren’t considered public records while a case is under investigation. In an interview, Smith declined to elaborate.

She said that the commission will continue to argue against efforts to ease restrictions on the records.

But attorneys for innocent clients say the commission’s insistence on forcing claimants to limit distribution of their case files runs counter to the mission of undoing wrongful convictions. They say their rights to share the information are more limited than if they had pursued their claims in the courts.

“If we want to fix our criminal justice system and learn from our errors, the best thing we can do is let the public – including our elected officials, investigative journalists, criminal justice stakeholders, and everyday people – see anything and everything that may have led us to these atrocities,” said Drew Erteschik, a Raleigh attorney who argued for the release of one defendant’s records earlier this year.

Erteschik’s client, Robert Bragg, is waiting to argue for his exoneration before a three-judge panel. The commission voted in September that his claim merited further review by the courts.

But commission staff wants Bragg’s attorneys to agree to a protective order over the files they amassed during their investigation. Erteschik has said restricting Bragg’s access and distribution of material in his case protects no one but the state.

“These individuals, who have often suffered decades of wrongful incarceration, deserve much better,” Erteschik said.

Rick Glazier, a former state representative from Fayetteville who resigned last year, said in an affidavit that a bill he sponsored successfully last session was intended to forbid the commission from forcing defendants to sign such protective orders. He said the commission’s practice was “both improper and contrary to the original legislation.”

Another bill now under consideration would amend the law to say that the records can only be protected if one of the parties justifies to a judge that there is good cause to believe someone might suffer harm, risk or embarrassment if the records are not protected.

Nearly all of the records filed in a civil lawsuit brought by wrongly convicted Robeson County brothers have been filed under seal. Patrick Megaro, a Florida attorney who represents Henry McCollum and Leon Brown, said he had to request the judge seal the records because the commission obliged him to agree to a protective order when it provided its files in the case.

Ken Rose, a Durham lawyer who helped free McCollum, said while the commission’s job is to secure freedom for whose who have been wrongly convicted, it has another job: educate the public about the justice system’s flaws.

“If there is silence, if there is information they have that the public needs to know [and doesn’t hear], then that function does not get served,” Rose said.

Locke: 919-829-8927 or @MandyLockeNews

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