On the heels of having exonerated several inmates in North Carolina, prosecutors are challenging the laws establishing and setting the standards for North Carolina’s Innocence Inquiry Commission. Prosecutors want the burden for inmates to obtain relief raised from “clear and convincing” evidence of innocence to proof of innocence “beyond a reasonable doubt.” They also want a chance to cross-examine defense witnesses at an earlier stage in the investigative process, rather than at the 3-judge panel hearing that occurs after initial investigation. A law to make these changes passed the House last year, but died in the Senate. Prosecutors are beating the drum again this year, after the Innocence Inquiry Commission exonerated two men a few months ago.
Christine Mumma, director of the North Carolina Center on Actual Innocence opposes the changes. So does attorney Brad Bannon, who serves on the board of N.C. Legal Prisoner Services. He says, “Simply put, these changes would make it more difficult for innocent, wrongly convicted people to gain their freedom. That turns the entire idea of the Innocence Commission, if not justice itself, upside down.”
Indeed, why anyone would want an inmate to remain in prison–or on death row–when there is clear and convincing evidence of his innocence, is hard to fathom. Changing the law to require proof of innocence “beyond a reasonable doubt” would make exonerations extremely difficult to attain. Proving that someone committed a crime “beyond a reasonable doubt,” which is what prosecutors face at trial, is easier than proving innocence “beyond a reasonable doubt.” We all know that proving a negative (that he didn’t do it) is nearly impossible to do, and is much more difficult than proving a positive (that he did it).
In Ohio, even though our DNA testing law allows for DNA testing whenever the results of the test would raise reasonable doubt (the defined standard for “outcome determinative”), it is clear from negotiating with prosecutors that most of them (and many judges) improperly read the law to mean that DNA testing can only be allowed when the results would 100%, conclusively proves innocence. If these prosecutors can dream up some far-fetched theory that the inmate might still be guilty despite exclusionary DNA results (such as the male DNA on the vaginal swab coming from a male juror who may have opened the plastic bag during trial when no one was looking and sneezed on it), then they will often oppose testing. Thus, given that they read the law to require proof beyond a reasonable doubt even when the law does not require such a high standard, one can only imagine how they would try to interpret a legal standard that actual states that innocence must be proven beyond a reasonable doubt.