Rule targets prosecutors who don't reveal innocence evidence

RALEIGH, N.C. -- As four men sat in prison for a murder they didn't commit, records show state investigators sent proof of their innocence to a North Carolina prosecutor, but he never revealed it to the convicted men.

He didn't have to. Nothing in North Carolina's legal standards requires a prosecutor to turn over evidence of innocence after a conviction.

The four, along with a fifth who was convicted, eventually were cleared through the work of a commission that investigates innocence, but not until they'd served years in prison, including several years when a judge said the prosecutor and sheriff "did nothing to follow up on" another man's confession.

Some people are calling for change.

"If prosecutors have an ethical duty to avoid wrongful convictions, then they should have some sort of ethical duty to remedy wrongful convictions," said lawyer Brad Bannon of the North Carolina Bar's ethics committee.

He wants North Carolina to adopt a rule recommended by the American Bar Association requiring prosecutors to come forward if they find "new, credible and material evidence" an innocent person is serving time.

Thirteen states have adopted the post-conviction rule. North Carolina isn't among them.

The state Bar rejected the rule several years ago but recently appointed a committee to reconsider.

Advocates call the Buncombe County case a prime example of why North Carolina needs the rule. The innocent men said the district attorney at the time, Ron Moore, could have helped but didn't. Some of them had pleaded guilty to avoid the threat of the death penalty in a home-invasion murder in 2000.

"There were so many things he could have done to make this right, and he continued not to do that," one of the men, Larry Williams Jr., 32, said.

Another man confessed in 2003 and implicated an accomplice whose DNA eventually was found on masks and bandanas near the scene. A judge last year wrote the sheriff's office and district attorney "did nothing to follow up on" the confession.

Two of the men were exonerated in 2011 through the work of the state's Innocence Inquiry Commission.

A judge, citing the commission's work, declared two others innocent last year -- along with a fifth co-defendant, sentenced in 2003, who served less time than the others -- and the county agreed to pay the five a total of nearly $8 million.

The co-defendant sentenced in 2003 had been informed about the confession before he pleaded guilty, but the others, already convicted, were left out in the cold.

"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, the commission wrote in its brief.

"It's about as egregious a situation in post-conviction as I can imagine," said lawyer David Rudolf, who represented one of the men in a lawsuit. "I can't imagine anything worse."

Moore, who lost a primary bid for re-election in 2014, didn't return messages from the AP.

But in a December 2014 deposition, Moore said he didn't believe the 2003 confession.

"... I felt like the right people had pled guilty or been charged at that point," he said.

He said he didn't learn of the DNA match -- obtained in 2007 -- until an Innocence Inquiry Commission investigator told him about it in 2011. The commission report, however, states the SBI issued the report Oct. 1, 2007, and copied it to Moore.

"There is no indication in the SBI files, the sheriff's office files or the DA's files that any further action was taken" on the DNA match, the report stated.

Robert Wilcoxson, who got a 15-year sentence in the case, said a prosecutor should turn over such evidence, even if it's not required.

"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."

When the Conference of District Attorneys in North Carolina opposed the rule in 2009, its members said it was too broad and burdensome.

People who think the rule makes common sense may imagine cases with clear-cut evidence such as DNA, said Orange County District Attorney Jim Woodall. More typical are phone calls from people saying they heard from a friend a witness said he or she lied on the stand, Woodall said.

"It can be very hard for a prosecutor, even the person who handled the case, to filter through," he said.

In addition to North Carolina, Michigan has rejected the model post-conviction rule, the ABA said. Two states approved it; 11 approved a modified version.

An ex-federal prosecutor who drafted the rule, Bruce Green, said in some states, "prosecutors argue the world will come to an end if we have these provisions."

But there's no evidence it's caused harm, he said.

"I think over time other states will do the same thing," he said.

While no one knows how often post-conviction evidence of innocence remains buried, advocates said any preventable cases are too many.

"There's no number that's acceptable if there are things we can do to avoid it," said Chris Mumma, executive director of the North Carolina Center on Actual Innocence, a nonprofit that identifies, investigates and advances credible claims of innocence. "Innocence should be an issue supported by prosecutors and defense attorneys. If prosecutors would step out of their adversarial roles and into their roles as ministers of justice, there wouldn't be any question about this."

A prosecutor in one of two states that adopted the rule as written said he doesn't understand any opposition.

"I don't want anybody in prison who didn't do what they were convicted of," said Philip Morrison, director of the West Virginia Prosecuting Attorneys Institute. "That flies in the face of everything we were brought up to believe in."

Meanwhile, the Buncombe County defendants are trying to remake their lives.

Williams said he pleaded guilty under pressure from his attorney and his mother. At 16, he was too young to be threatened with the death penalty but could have faced life without parole.

"She didn't know what to believe," he said of his mother. "I'm telling her I'm innocent and it's like, she wants to believe me, but these professional people in suits and ties are telling her something different so now she believes them. ... It was devastating."