North Carolina Mulls Requiring Prosecutors to Share Exonerating Evidence Even After Conviction

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April 16, 2016; Associated Press, “Big Story”

North Carolina is considering adopting a rule that would require prosecutors to hand over credible evidence that proves an inmate’s innocence after trial or seriously calls into question a conviction. Only 13 states currently have the post-conviction policy in place. North Carolina is not yet one of them, but some activists, attorneys, and exonerees are trying to change that.

“If prosecutors have an ethical duty to avoid wrongful convictions, then they should have some sort of ethical duty to remedy wrongful convictions,” said attorney Brad Bannon of the North Carolina State Bar’s ethics committee. Bannon is part of a group of individuals calling on North Carolina to adopt the rule, which the American Bar Association also recommends.

One case from North Carolina’s past that highlights the need for such a rule involved the 2000 home invasion and murder in Buncombe County, which led five men, including Robert Wilcoxson and Kenneth Kagonyera, to plead guilty out of pressure to avoid the death penalty. Wilcoxson and Kagonyera have both since been exonerated. Many, including the presiding judge in the exoneration, indicated that the district attorney who prosecuted the case, Ron Moore, and the sheriff’s office knew about post-conviction evidence that could have exonerated Wilcoxson and Kagonyera but did nothing. (One of the five men confessed and implicated another accomplice. DNA evidence confirmed that the accomplice was involved, but both Wilcoxson’s and Kagonyera’s DNA were absent, and neither was informed.)

“There is no evidence in the file that any action was taken in regards to this confession other than providing it in discovery” to the one man whose DNA had been identified, wrote the North Carolina Innocence Inquiry Commission in a brief. The commission is an independent agency set up in 2006 to review claims of wrongful convictions. North Carolina was the first state to establish such a commission.

“There’s a lot to be said for agencies like the NCIIC—but there are no other agencies like the NCIIC in the United States,” said the National Registry of Wrongful Convictions in its 2015 report. “To create one would require legislative action and substantial funding by a legislature and a governor. Outside North Carolina, no state has been interested.”

Moore has since retired as district attorney, and the sheriff at the time, Bobby Lee Medford, is serving a 15-year federal sentence for misconduct in another case, which also resulted in a wrongful conviction.

It’s hard to believe that a rule like this isn’t in place everywhere, or that any competent prosecutor with good intentions would not reveal evidence in hand that indicated the wrong person was convicted. Wilcoxson, who was convicted for the 2000 home invasion, served nine years, and was ultimately exonerated in 2011, said prosecutors should be ethical and proactive, regardless of whether there’s a rule mandating it.

“It’s your professional duty to correct a wrong when you’ve got the power to do it,” he said. “Your standard has got to be higher than the average person.”

For the past two years, North Carolina has been among the top ten states with the most exonerations. According to the National Registry of Exonerations, in 2014, North Carolina had four exonerations and, in 2015 it saw five. In 2014, two of the exonerations were for inmates sitting on death row. While the NCIIC and other innocence agencies and nonprofits across the country are attempting to wrong rights, prosecutorial and police misconduct is a persistent and systematic stumbling block.—Shafaq Hasan