03/05/04 — Travesties: Some new rules needed in criminal justice system

View Archive

Travesties: Some new rules needed in criminal justice system

North Carolina needs a law requiring prosecutors to open their files to defense lawyers in all cases involving felonies.

Such a law has been proposed by Tony Rand, the Fayetteville Democrat who is the Senate majority leader.

Some prosecutors already open their files to the defense in capital cases. Attorney General Roy Cooper said in a newspaper interview this week that they all should.

Rand’s proposal would go further by extending the practice not just to capital cases but to all felony cases.

Some district attorneys oppose that because it could compromise agreements with confidential informants, but Rand offers a solution. Under his proposal, when the files contain such sensitive information, prosecutors could ask judges privately for permission to redact them.

What raised the issue was the recent acquittal in the retrial of Alan Gell. Gell had been convicted and sentenced to death in 1998 for the killing in Aulander of Allen Ray Jenkins.

There was considerable evidence against him, but the prosecution learned that one witness had seen Jenkins alive after Gell had been placed in jail on an unrelated charge, making it impossible for Gell to have killed him. The prosecutors did not tell Gell’s lawyers. They also withheld information that tended to undermine the credibility of key witnesses.

Gell sat on death row for six years awaiting execution. When finally he was granted a new trial, he was shown to be innocent.

The sharing of information before a criminal trial is key to our efforts to ensure due process.

The law already requires that district attorneys share evidence that might help defendants. This leaves the prosecutors room for error in deciding what to share and what to keep secret.

If they must share data that might help the defendant, what harm is there in sharing it all? What purpose is served by burdening prosecutors with the decision of what to glean out of the files?

The last few years have brought a dark veil over North Carolina’s criminal justice system. Just lately, there was the Gell case. Then there was the case in Winston-Salem in which a man was sentenced to life for rape and murder. Recently, after he had served 18 years in prison, DNA evidence proved that he was innocent. The real murderer had been walking around free all that time, committing heaven knows what other crimes.

Then there was the notorious Garner case in Johnston County, in which an innocent youth from Goldsboro spent several years in jail after being convicted of shooting and wounding a woman during a robbery.

Thankfully, no such problems have surfaced in Wayne County. In fact, Wayne authorities have gone out of their way to avoid them. There have been enough travesties in other counties, however, to warrant a thorough re-examination of our procedures.

This includes a moratorium on the death penalty until our rules for invoking it have been reviewed. The moratorium and the review have been approved by the House of Representatives and await action in the Senate.

Published in Editorials on March 5, 2004 11:54 AM