An Agenda for the General Assembly

The North Carolina General Assembly opens its 2007 session later this week. I would like to think that legislators would learn from the misconduct of Mike Nifong, and consider reforms to address some of the problems in the state’s legal system that the lacrosse case has brought to light.

To that end, here are seven proposals for reform in the 2007 session.

1.) Broaden the Open Discovery law—I.

This idea could be called the “Brian Meehan” amendment. The legislature should ensure that district attorneys don’t learn from Nifong that one way to get around the law is to farm out work to private labs and have them prepare half-baked reports that exclude exculpatory evidence. The legislature, therefore, should amend the law to ensure that it includes all arms of the prosecution, including private labs. Not all defendants will have lawyers as talented as Brad Bannon, who cracked the conspiracy to withhold evidence.

2.) Broaden the Open Discovery law—II.

Though now many months removed, it’s worth remembering the travesty of Sgt. Mark Gottlieb’s “straight-from-memory” notes. Police officers should be required by the legislature to retain their handwritten notes and to include those notes as part of the material turned over to the defense. Judges should have the right to disallow material uncorroborated by personal contemporaneous notes and contradicting the contemporaneous notes of many other officers as a de facto violation of the Open Discovery law.

3.) Grand jury reform—I.

North Carolina should enter the modern era and require transcripts of all grand jury proceedings. Also, the state’s current statute appears to prevent grand jurors from coming forward on their own if they believe that the police or prosecutor has behaved improperly. Surely, at the very least, they should have the right to bring this information to the attention of federal law enforcement officials.

4.) Grand jury reform—II.

Grand juries exist, of course, as a check on prosecutorial misconduct, not to assist it. Yet North Carolina is one of the few states with the odd provision denying defendants the right to a probable cause hearing if the grand jury indicts before an arrest is made. This case showed how easily prosecutors can abuse this loophole to bring and then maintain an indictment when they have little or no evidence. Probable cause isn’t a very high threshold, but it’s clearly more of a check than a grand jury.

5.) Establish a procedure to restrain runaway prosecutors.

Standard 3-2.10 of the ABA’s suggested guidelines suggests:

(a) Procedures should be established by appropriate legislation to the end that the governor or other elected state official is empowered by law to suspend and supersede a local prosecutor upon making a public finding, after reasonable notice and hearing, that the prosecutor is incapable of fulfilling the duties of office.

(b) The governor or other elected official should be empowered by law to substitute special counsel in the place of the local prosecutor in a particular case, or category of cases, upon making a public finding that this is required for the protection of the public interest.

The idea that the only person who can request recusal of an unethical district attorney is the unethical district attorney himself is perverse. Yet North Carolina’s current law establishes such a standard. The state should adopt the ABA guideline, as the Wilmington Star, Nifong's hometown newspaper, recommended last week.

6.) Modify rape law to ensure that actual innocence is a defense.

The relevant section from the North Carolina general statutes is § 15-144.1 of the criminal procedure code, “Essentials of bill for rape.” Its section (a) states the following:

In indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment “with force and arms,” as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.

This provision lays out a minimum standard, stating that (a) grand juries can indict and (b) juries can (not must) convict a defendant in rape cases solely on the basis of the accuser’s claims and her identification of the defendant. In the era before widespread use of DNA, many, if not most, rape cases amounted to the accuser’s word against that of the accused.

Until Nifong abruptly dismissed the rape charges, his defenders argued—perhaps correctly—that a judge could not, as a matter of law, dismiss the rape charges against Reade Seligmann, even though Seligmann could prove, through unimpeachable electronic evidence, he was innocent. What other crime doesn’t allow a judge to dismiss the charges if a defendant can prove he or she is innocent?

It makes no sense that a judge could be legally constrained from dismissing charges against a demonstrably innocent person.

7.) Reconsider the practice of electing judges.

The lacrosse case has featured three judges. Two—Ron Stephens and Kenneth Titus—were responsible to the same electorate that voted Mike Nifong into office. One—Osmond Smith—did not have to go before Durham voters.

Other reasons probably exist why Stephens and Titus issued rulings that seemed so one-sided in favor of the prosecution. But surely the fact that restraining Nifong entailed considerable political risks to their future tenure, while enabling him was the politically safest course to go, did nothing to encourage the judges to act in an impartial manner.

In general, I am deeply skeptical of the practice of electing judges. I’m fully aware that this proposal is a pipe dream: there are too many vested interests—political, personal, bureaucratic—to retaining the status quo.

It would be nice to see something positive come out of this affair, and if the General Assembly could act in constructive ways to make it less likely that any future defendants would have to go through what Reade Seligmann, Collin Finnerty, and Dave Evans experienced, that would be a positive development.