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Rowan's top prosecutor on panel looking at convictions

By Scott Jenkins

Salisbury Post

A commission to evaluate the innocence claims of convicted felons will meet for the first time this week and Rowan County’s chief prosecutor is among its members.

District Attorney Bill Kenerly will meet Wednesday in Raleigh with seven other appointees to the N.C. Innocence Inquiry Commission. Signed into law by Gov. Mike Easley in August, the commission is the first such panel created by a state government.

Kenerly also served on a committee formed by retired N.C. Chief Justice Beverly Lake Jr. to study issues related to wrongful conviction claims after several highly publicized cases around the state of convicted and imprisoned people being exonerated by new evidence.

After studying those issues for a couple of years, that group recommended to the General Assembly establishing the inquiry commission.

“There was a sense that there was some concern that the public’s confidence in the criminal justice system is not as strong as it should be and the public needs to know that the state has no interest in convicting innocent people,” Kenerly said.

For a case to be considered, a felon must present new evidence that was not heard and rejected by a trial jury and cannot be presented as part of the normal appeals process. And the felon must not only claim to be innocent of the crime for which he or she was convicted, but of all other lesser or included crimes.

In December, at least 75 people convicted of crimes including murder, kidnapping, rape and other felonies had already submitted claims. But Kenerly said the commission won’t consider any of those cases at its first meeting, which will deal mainly with administrative issues such as hiring a director and staff.

In fact, Kenerly said he doesn’t expect most of the innocence claims submitted to reach the commission. They will first be evaluated by the staff, to be headed by an experienced attorney, to determine whether they fit the criteria laid out in the new law.

“I would expect the staff to get a lot” of claims, Kenerly said. “My guess would be that the commission, in fact, is going to get very few.”

Along with Kenerly, the commission includes a Superior Court judge, a defense attorney, a victims’ advocate, a sheriff, a police chief and a community college administrator. They are appointed by the chief justice of the N.C. Supreme Court and chief judge of the N.C. Court of Appeals. Initially, two will serve one-year terms, three will serve two-year terms and three will serve three year terms. After those initial terms, all members will serve three-year terms and may serve a second three-year term.

When a case reaches the committee, at least five of its eight members must agree that the convicted person deserves further judicial review. At that point, the case goes to a specially appointed three-judge panel, which must unanimously agree that the applicant has presented “clear and convincing evidence” of innocence. If that happens, the conviction is overturned.

“This is not about new trials,” Kenerly said. “We’re talking about new evidence that points unequivocally to the innocence of the person and if they’re deemed to be innocent, that’s the end of it. They’re set free.”

Kenerly said how high the bar is set for convincing evidence will probably vary among commission members according to their background and experience. For him, he said, it will be fairly high.

“There is a huge presumption that a jury got it right and it would take unequivocal, overwhelming new evidence before I would vote that a person lawfully convicted were in fact innocent,” he said. “… I think I feel that way because I’m a lawyer and a human being. I’m sure there are other people who would say I feel that way because I’m a prosecutor.”

Even so, Kenerly said, he broke with some other district attorneys in his support of the commission. As a group, the state’s prosecutors voted to support the legislation, but some argued that convicted people already have sufficient redress in the courts.

“As a lawyer, it’s not clear to me that there is already a mechanism in place in North Carolina for presenting a legitimate claim that you just did not commit the crime after a trial,” he said. “I think if this commission provides that forum, then it will have provided a public service. But if it gets off mission and becomes either a group that never considers innocence, or that goes the other way and doesn’t understand it’s job, then it won’t serve a public function.”

Kenerly noted that the legislation creating the commission contains a sunset clause and said if it fails to do the job for which it was established, “then I just hope it disappears from the legal landscape of North Carolina and is never heard from again.”

Kenerly said he became interested in the concept of innocence commissions after attending a national conference in 2003 on the subject sponsored by the American Judicature Society. The conference included a presentation about Great Britain’s innocence commission, created after the 1990s exonerations of 60 percent of the people the government had jailed decades earlier as Irish Republican Army terrorists.

In this country, DNA evidence has gotten the most publicity, but Kenerly said such scientific evidence can already be presented in other forums and new evidence considered by the commission could be “almost anything,” including witnesses who emerge after conviction, though Kenerly said he would be highly critical of a new witness without corroborating evidence.

“For me, there would have to be some major, major support of that, because the obvious question is ‘Why didn’t you come forward when this person was convicted?’ ” he said. “That would automatically be suspect to me.”

Unlike the normal appeals process, the person requesting consideration by the commission must agree to testify and to open his or her attorney’s files. Kenerly said that removes “legal gaming” from the process and allows the commission to get at the truth.

And getting at the truth, he said, is the ultimate goal.

“Personally, I think being in prison for something you didn’t do is one of life’s horrors,” he said. “As a prosecutor, for every innocent person that’s in prison, there is a guilty one on the streets, so we need to get the right one.”

Contact Scott Jenkins at 704-797-4248 or sjenkins@salisburypost.com.

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