Justice Withheld Series

The News & Observer / North Carolina

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Bonnie M. Wells

Multiple Misdeeds

By Joseph Neff, Staff Writer

District Attorney Marcellus Buchanan and others in law enforcement withheld evidence and intimidated witnesses in the murder trials of Donna Justice, Elliott "Peppy" Rowe III and Mitch Pakulski, whose convictions were overturned:

* Buchanan did not disclose that his star witness, David Hugh Chambers, had been promised "first-class treatment" by investigators. Chambers' mother delivered home-cooked meals, and Chambers had unlimited phone contact with his attorney. Buchanan took his own television, a 9-inch black-and-white set, to the jail and gave it to Chambers, along with a table to set it on.

* Waynesville Assistant Police Chief Coleman Swanger drove by the scene about the time of break-in. His observations contradicted Chambers' testimony. Swanger relayed this to investigators several times, but police and prosecutors never told the defense attorneys. Swanger came forward after he retired.

* During the first trial of Pakulski and Rowe, Buchanan announced that he would arrest the 19 alibi witnesses from Toledo, Ohio, who testified for Justice. Buchanan said he would charge each with multiple counts of perjury if they returned to North Carolina.

* To rebut the alibi witnesses, Buchanan used John Holcombe, a part-owner of a nightclub who said he had seen Justice and Pakulski in town one day before the murder. Days after he told this to investigators, the Waynesville police hired him despite Holcombe's felony record. State law forbids felons from police work. Holcombe testified in uniform at the trial.

* After Justice was convicted, Buchanan engineered a gubernatorial pardon for Holcombe. As the first trial of Rowe and Pakulski got under way. Buchanan wrote to Gov. Jim Hunt in May 1984 and asked him to wipe away the felony record of Holcombe, who was to testify at retrials. Others also wrote, among them seven law enforcement and court officials, including Robert Burroughs, the trial judge. Gov. Jim Martin eventually pardoned Holcombe.

Should The DA Have To Tell All?

Withheld Evidence And Overturned Verdicts In Death Row Cases Spur Demands For Prosecutors To Open Their Files To The Defense:

By Joseph Neff, Staff Writer

If you file a lawsuit in civil court after slipping at the Piggly Wiggly, you can gather reams of information about your opponent before trial, including witness statements, the store's insurance coverage, prior claims and more. You'll be able to question store employees under oath. And the other side will be able to find out just as much about you.

But if the state of North Carolina charges you with a crime -- and your life or liberty, not just money, is at stake --your access evidence is much more restricted: only your statements to police, lab reports and any evidence the prosecution has that might prove your innocence.

"The law doesn't even entitle you to the evidence of your guilt," said Mark Rabil, a Winston-Salem lawyer with 23 years of experience in civil and criminal courts.

The debate over pretrial disclosure of evidence, and whether criminal prosecutors should be required to share everything in their files, has intensified following the reversal of verdicts in a series of death row cases.

In the past five years, judges have overturned the convictions of five death row inmates and ordered new trials because prosecutors broke the law by withholding evidence helpful to defendants -- evidence such as witness statements or deals cut with jailhouse informants.


Changing The Law

These cases surfaced because of a 1996 state law that gives death row inmates full access to police and prosecution files on appeal, but not during trial. While this law has helped a handful of death row inmates, what about the more than 33,800 North Carolina inmates who are not on death row? How many of them would find helpful information in law enforcement files if they had access?

No one knows, but there are likely enough to warrant a change in the law, says the author of the 1996 law, state Sen. Wib Gulley, a lawyer and Durham Democrat.

"Everyone cares about a fair process," he said. "If you can't have a fair and credible process, what are we doing there?"

Gulley and some other legislators think that a law opening police and prosecution files to the defense, a process known as open file discovery, would make trials fairer.

But changing the law may not be possible in the upcoming short legislative session, according to state Sen. Tony Rand, a Fayetteville Democrat. Under House and Senate rules, May's session is supposed to focus on unfinished business from 2003.

"I don't know what the difficulty about the [open discovery] policy would be," Rand said. "Whatever the state knows about the case should be made known."

A growing number of prosecutors agree with Rand, but such a mandate would undoubtedly draw opposition from prosecutors and law enforcement officials.

Attorney General Roy Cooper, for one, said open file discovery can open up a Pandora's box.

"Steps you take that may protect against the wrong person being punished may let guilty criminals go unpunished," he said. "You have to be very careful in this area of the law."

Cooper, who could not cite any examples of guilty people going free because of open discovery, said the General Assembly should not make any changes in the discovery law without the consensus of the state's 39 elected district attorneys.

James Coleman, a Duke law professor who is an expert on wrongful convictions, said he has never heard of a case where open file discovery led to a guilty person escaping conviction.

"If there is evidence sufficient to convict someone beyond a reasonable doubt, there is nothing to fear about opening the file to the defense," Coleman said.


Trial By Ambush

Just decades ago, prosecutors in North Carolina were not required to hand over any evidence in criminal trials. In 1963, the U.S. Supreme Court first ordered prosecutors to give defendants any evidence in their files that could point to innocence, lessen punishment or undercut the credibility of state witnesses.

Still, it was largely trial by ambush in North Carolina, with defense attorneys often surprised by witnesses or evidence that popped up mid-trial. That began to change in the 1970s when the General Assembly set minimum discovery standards.

Under state law, prosecutors must now hand over lab reports and the statements of co-defendants before trial. At trial, prosecutors must hand over prior statements by a witness -- but only after the witness has testified under direct examination. That can leave the defense only minutes to prepare for cross-examination.

In recent years, there has been a slow shift among prosecutors to share everything in their files with defense lawyers.

The sharing is voluntary, but a number of prosecutors are adopting policies such as that of Robeson County District Attorney Johnson Britt, who hands over a copy of his entire file to all defendants.

"If it's in my file, the defense attorneys get it," he said. "If it's in the law enforcement file, they get it."

The case of death row inmate Curtis Ray Womble led Britt to start disclosing more than state or federal law required. As an assistant district attorney in Columbus County, Britt handled the 1994 case.

The case against Womble was strong. Two accomplices secretly recorded a conversation in which Womble recounted how the victim begged for his life as Womble beat him. The tape captured Womble laughing as he described the victim choking on his own blood.

Womble pleaded guilty to first-degree murder. He gambled that the jury would not sentence an 18-year-old to death, and lost.

On appeal, Womble's attorneys found five statements in the prosecution's file from neighbors who said they saw the victim alive the day after Womble said he beat him to death.

The statements raised questions: Did Womble just injure the man? Did someone else kill him a day later?

One of Womble's trial attorneys filed a sworn affidavit saying he had never seen the witness statements. Britt said he had provided the statements before the trial.

The judge ruled for Womble and threw out his conviction. Womble then promptly pleaded guilty to second-degree murder. He is to spend the rest of his life in prison.

But he's not on death row.

"I was accused in a capital murder case of withholding evidence," Britt said. "This was not a comfortable place."

As a result, Britt put open file discovery in place in the late 1990s. A past president of the N.C. Conference of District Attorneys, Britt said many of his colleagues are taking similar precautions.

"No one wants to try a case more than once," he said.


Practical Steps

More openness has practical benefits, according to Wake County District Attorney C. Colon Willoughby.

By laying their cards on the table early on, he said, prosecutors can move cases faster and avoid the expense of trials. This is important in Wake County and other urban centers with long court dockets.

"Our philosophy is that it is more likely to generate guilty pleas," Willoughby said. "If you have good evidence, the lawyer tells the client to plead guilty."

Orange County District Attorney Carl Fox said providing more evidence ahead of time means more efficient trials. He hands over all prior witness statements before trial, even though the law allows him to hold on to the statements until after the witness testifies on direct examination. Fox wants to avoid a break in the trial or recess while the defense lawyer studies the statements.

"I don't believe in delaying the process. Giving statements ahead of time makes the trial run smoother," he said, adding, "I don't see how it would cause any problems. If there is anything out there that shows innocence, I want to know it as much as anyone else does."

Defense lawyers, prosecutors and legislators agree that some circumstances justify the withholding of some evidence.

For instance, prosecutors shouldn't prematurely reveal sensitive information that may hurt an ongoing investigation. They should be able to protect the identities of some informants who won't testify at trial.

"If a neighbor sees traffic in and out of a house and suspects drug dealing, we might not share that," Willoughby said. "Sometimes, in cases involving child victims of sexual assault, we might be concerned if the defendant knows who the witnesses are and might try to manipulate the process."


'A Huge Quagmire'

Some former prosecutors, such as James Dellinger of Wilkes County, think that the General Assembly should revisit the discovery laws.

"The legislature has passed the right discovery law at the wrong stage of the trial," said Dellinger, now a lawyer in private practice. "We have what I call a reverse discovery statute in this state."

At a death penalty trial, defense lawyers are limited in what they can get. But on appeal, under the 1996 law, death row inmates and their attorneys get access to all files -- which can be years after the trial.

As a result, death row inmates are uncovering evidence that should have been discussed and disposed of years ago, Dellinger said.

"It's a huge quagmire," he said. "I may have to testify in a case from 13 years ago. I've got no notes, no file, the witnesses forget what they said. You wait 13 years, you are going to have a problem."

Although Attorney General Cooper said he hopes lawmakers will move carefully on the issue, he acknowledged that open file discovery could make life easier for his office, which handles virtually all criminal cases on appeal in state courts.

"There is a greater chance of upholding the conviction on appeal if all prosecutors handled this in the same way," Cooper said. "If you have to provide open file discovery post-conviction, you might as well do it at trial in order to reduce the chance of a conviction being overturned."

Staff writer Joseph Neff can be reached at 829-4516 or



Ye have plowed wickedness, ye have reaped iniquity; ye have eaten the fruit of lies: because thou didst trust in thy way, in the multitude of thy mighty men. (Hosea 10:13)

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