Aug. 27, 2012
“Prosecutors are the most powerful officials in the criminal justice system. They decide whether criminal charges should be brought and what those charges should be, and they exercise almost boundless discretion in making those decisions. Prosecutors alone decide whether to offer the defendant the option of pleading guilty to reduced charges….
“Equally problematic is that the charging and plea-bargaining decisions are made behind closed doors, and prosecutors are not required to justify or explain these decisions to anyone…. The lack of transparency also leads to misconduct, like the failure to turn over exculpatory evidence – a common occurrence made famous by the prosecutors in the Duke lacrosse and Senator Ted Stevens cases.”
– From “Prosecutors’ Overreaching Goes Unchecked” by Angela J. Davis in the New York Times (Aug. 19)
Prosecutors plea-bargained cruelly though futilely with the Edenton Seven. And while the evidence-withholding in the Duke and Stevens cases may have made bigger headlines, it was no more flagrant than in Little Rascals.
One example from the North Carolina Court of Appeals order overturning Bob Kelly’s conviction (May 2, 1995):
“Judge L. Bradford Tillery, a pretrial Judge, directed the State to file and present for in camera review identifying information, medical and psychotherapeutic files and DSS files with respect to the ‘indictment children’….
“In apparent compliance with Judge Tillery’s order… the State turned over a box of files to the trial court, Judge McLelland presiding. The box contained, inter alia, complete medical notes and therapy notes on the 29 indictment children, 12 of whom testified at defendant’s trial and 17 of whom did not….
“After trial, defendant’s appellate counsel went to the Office of the Clerk of Court for Pitt County to view the exhibits. He opened several boxes containing trial exhibits, none of which were sealed. One of the boxes contained 29 files labeled with the names of the indictment children. Appellate counsel reviewed some of the documents contained in the files before requesting the box to be sealed and transmitted to the Court of Appeals…. Defendant argues that the files contained undisclosed information that would have been material to the defense.”
In fact, the withheld files were bulging with exculpation – conflicting claims, evidence of hysteria, eyewitness testimony that nothing happened. Countless other examples are documented in Bob Kelly’s appeal brief.
Attorney General Mike Easley bridled at the appeals court’s concern over such “small areas… none of which are very significant.” And, after all, as prosecutor Bill Hart had asked smirkingly during the trial, “If you were playing poker, would you be playing with your full hand showing?”