We should all be using the Duke hoax to hammer our legislators about

[pnwmom]

the importance of "open discovery" laws -- for ALL defendants.

A true open discovery law requires the prosecution to open its complete files to the defense, and in a timely manner. It is because of North Carolina's open discovery law, passed after a gross miscarriage of justice left a man on death row for years, that the Duke students were finally freed. The Duke prosecutor turned over 1800 pages of evidence but failed to provide the defense with crucial exculpatory evidence -- i.e., the DNA lab results from the unidentified men were not included in the report. The D.A. argued that he didn't think that those results were truly exculpatory, but it didn't matter -- because in North Carolina the prosecutor is not allowed to hand over only evidence that he thinks might prove the accused's innocence. The prosecutor must open its complete file and give the defense everything.

A strict open discovery law (not leaving the decision to a prosecutor) is ESPECIALLY CRITICAL FOR POOR DEFENDANTS, who can't afford to hire their own private investigators or pay for their own lab testing. If you have been among the DUers claiming that you have too much sympathy for the poor and falsely accused to have any sympathy left over for the Duke students, then this is your chance to put your money where your mouth is.

Don't assume your state or county has an open discovery law like North Carolina. From what I understand, most don't. California doesn't. In Santa Clara County, for example, they have what they call an "open discovery" law, but they leave the decision on what evidence must be turned over to the prosecutor -- who often doesn't know what information the defense will find useful.

If you really care about poor defendants, and aren't just using them as an excuse to bash the Dukies, then look into your own states' laws and get in touch with your legislators, if need be.

Here's a good article from a California newspaper about the situation.

http://www.mercurynews.com/taintedtrials/ci_5168880

SNIP

Last month, the office adopted a new policy to discourage prosecutors from withholding the kind of evidence that Martin created. But even as experts applaud the change, they note that it does not fix an inherent conflict: It is up to prosecutors to decide what information needs to be shared with their adversaries.

``It defies logic to expect prosecutors to be the ones to make the judgments about what evidence might be exculpatory,'' said Mary Pollard, a North Carolina defense attorney who represented Alan Gell, whose wrongful conviction in a death penalty case helped spur a sweeping reform there. ``It is a question not only of their integrity but also their judgments: Will prosecutors see the evidence in the same way?''

Withheld evidence has become a matter of nationwide concern after being linked to a series of wrongful convictions. As a result, state commissions have urged changes to reduce such problems. The most dramatic change has been in North Carolina, where any decision to withhold evidence has been taken from prosecutors and made the responsibility of judges.

The process of turning over evidence before trial, known as discovery, has long been contentious. Santa Clara County enacted its new policy last month after Public Defender Mary Greenwood questioned several cases in which evidence was withheld -- a complaint that mirrored questions raised by the Mercury News in interviews with high-ranking prosecutors.

SNIP

[ChairmanAgnostic]

1. another major point

yes, North Carolina's nitwit was a headline grabbing shyteheel.

and Abu Gonzales' US attorneys are federal.

BUT, it also teaches us how lives are destroyed when any prosecutor, state or federal, becomes politicized. The Duke cases, the Wisconsin fiasco, the failure to follow up on Lam's findings in California? it is all bad, and all we need to discuss.

[pnwmom]

5. That's right. I agree that it's all connected.

We ALL are losers when the system is politicized.

[Captain Hilts]

2. Yes - that's what one of the Duke kids said also. He knew he was lucky to have rich parents. nt

[Blackhatjack]

3. Other points being overlooked by many peoople about N.C. 'open file discovery' law

Prior to the enactment of the 'open file' discovery law, the prosecutor could fence off 'possible exculpatory evidence' by not calling a witness at trial who could trigger disclosure of that evidence --and Defense Counsel would never know it existed.

However, the big point to be made here is that the 'open file' discovery law is not a cure-all remedy, as demonstrated by the Duke Lacrosse Rape case.

As defense counsel, you have to fully investigate your case and analyze everything you receive from the prosecution TO KNOW WHAT HAS NOT BEEN TURNED OVER TO YOU BY THE PROSECUTION. These attorneys went to court numerous times, filed numerous motions, and kept pushing to get the evidence that had been withheld by Nifong.

Court appointed defense counsel and/or overloaded public defender's office attorneys are unlikely to have the time and resources to make several successive attempts to discover and obtain the evidence that has been withheld improperly. It is a time and resources problem, which affects poor defendants disproportionately.

Finally, every defendant deserves to know exactly what evidence the prosecutors have in their possession when considering a plea offer from the prosecutors. Over 90% of all criminal cases end in plea arrangements. If there is no disclosure of exculpatory evidence by the prosecution before the plea offer is made, the defendant CANNOT MAKE AN INFORMED DECISION as to the plea offer.

In the Duke case, each of these defendants was facing a possible prison sentence of 30 yrs. If they had not obtained the evidence withheld and had to decide whether to go to trial or accept an offer of 3 yrs in prison on lesser charges --it would have been a difficult choice regardless of the fact that they knew they were innocent.

Wake County, home to the capital city Raleigh, has had an 'open file' discovery policy for years, because our District Attorney Colon Willoughby believed it was the right thing to do when he took office. It makes all the cases brought to trial stronger because the prosecutors and the law enforcement officials know that everything passing through their hands will be available to Defense Counsel. It improves the efficiency of the system because defendants 'know' what they are facing at trial, and trials are more efficient since both sides know the full extent of the evidence before it starts.

[pnwmom]

4. Thank you, blackhatjack, for all your good information.

And l have a question for you. One of the Duke lawyers said he was impressed that bloggers had noticed something about a piece of evidence -- a photograph of the accuser -- that the defense had already noticed but had decided to withhold from the public. The picture showed the accuser smiling on the back porch, which the prosecution claimed had been taken prior to her entering the house. But it was obvious to the defense and the blogger that the picture had been taken AFTER the performance, because she was wearing only one of her high heels. And the A.G. specifically commented on that picture, saying that it would have been awfully hard for the prosecution to explain that smiling picture to a jury.

If you were the overworked attorney of a poor defendant, how would you feel about sharing the full case file with the defendant and/or members of his family? Though this certainly isn't as good as having a staff of lawyers to help you, could a family member with some time and common sense help make sure something important wasn't overlooked?

[pnwmom]

6. North Carolinians, take note.

There are two bills in your legislature right now that would affect your open discovery law.

One would gut it. If I lived in N.C., I would call my legislators and ask them to OPPOSE this bill:

http://www.ncga.state.nc.us/Sessions/2007/Bills/Senate/HTML/S1009v0.html



The other proposed law would broaden open discovery. I would ask my legislators to PASS this one:

http://www.ncga.state.nc.us/Sessions/2007/Bills/Senate/HTML/S1130v0.html

[Blackhatjack]

7. Look at who filed this bill (RAND) and this portion of the bill proposed...

".....or of records, correspondence, reports, memoranda, or trial preparation interview notes prepared by the prosecuting attorney or by members of the prosecuting attorney's legal staff to the extent they contain the opinions, theories, strategies, or conclusions of the prosecuting attorney or the prosecuting attorney's legal staff.

(a1) The State is not required to disclose the identity of a confidential informant unless the disclosure is otherwise required by law."
*****************

RAND is the prosecutors best friend in the NC Legislature.

This bill is entirely unnecessary for the stated purpose of protecting prosecutorial workproduct from exposure. They are not presently required to release any 'workproduct'. However, the individual classifying items as 'workproduct' to avoid proper disclosure should not be allowed.

The portion of the bill set out above gets at something entirely different.

If the prosecution consults with and/or submits evidence for examination or review by experts, and they discuss the conclusions of that examination but no report or analysis is reduced to a report or writing, then the prosecutor would say there is nothing to disclose.

Apply this to the Duke Case. If Nifong had secretly submitted evidence to the DNA lab, or any other item to another possible expert, and the DNA lab tech 'left out' or just failed to provide a written report or writing, if this bill had been in place there would have been a loophole that would have protected the prosecutor if they failed to disclose this information to the Defense Counsel. Likely the only place the information would show up would be in trial preparation notes, which would have been claimed to be 'workproduct' and not subject to disclosure.

Another possible example. If a witness either gives them information that does not back up a key element in the crime, or information that could disprove an element of the crime, then if that witness is granted status as a 'confidential informant' the prosecution would not have to even 'identify' the witness to the Defense Counsel.

Just a bad bill proposed to allegedly fix a problem that does not need fixing, but which accomplishes something entirely different.

Thanks for highlighting this pnwmom!

[pnwmom]

8. You're welcome. It seems as if someone designed this

specifically to enable prosecutors to cheat like Nifong. Scary.

[Bronyraurus]

9. Hear hear, Mom.