GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2005

H                                                                                                                                                    2

HOUSE BILL 1323*

Committee Substitute Favorable 8/10/05

 

 

 

Short Title:     Establish NC Innocence Inquiry Commission.

(Public)

Sponsors:

 

Referred to:

 

April 20, 2005

A BILL TO BE ENTITLED

AN ACT to establish the North Carolina Innocence Inquiry Commission as recommended by the North Carolina Actual Innocence Commission.

Whereas, postconviction review of credible claims of factual innocence supported by verifiable evidence not previously presented at trial or at a hearing granted through postconviction relief should be addressed expeditiously to ensure the innocent as well as the guilty receive justice; and

Whereas, public confidence in the justice system is strengthened by thorough and timely inquiry into claims of factual innocence; and

Whereas, factual claims of innocence, which are determined to be credible, can most effectively and efficiently be evaluated through complete and independent investigation and review of the same; Now, therefore,

The General Assembly of North Carolina enacts:

SECTION 1.  Chapter 15A of the General Statutes is amended by adding a new article to read:

"Article 92.

"North Carolina Innocence Inquiry Commission.

" 15A-1460.  Definitions.

The following definitions apply in this Article:

(1)       "Claim of factual innocence" means a claim on behalf of a living person convicted of a felony in the General Court of Justice of the State of North Carolina, asserting the complete innocence of any criminal responsibility for the felony for which the person was convicted and for any other reduced level of criminal responsibility relating to the crime, and for which there is some credible, verifiable evidence of innocence that has not previously been presented at trial or considered at a hearing granted through postconviction relief.

(2)       "Commission" means the North Carolina Innocence Inquiry Commission established by this Article.

(3)       "Director" means the Director of the North Carolina Innocence Inquiry Commission.

(4)       "Victim" means the victim of the crime, or if the victim of the crime is deceased, the next of kin of the victim.

" 15A-1461.  Purpose of Article.

This Article establishes an extraordinary procedure to investigate and determine credible claims of factual innocence that shall require an individual to voluntarily waive rights and privileges as described in this Article.

" 15A-1462.  Commission established.

(a)       There is established the North Carolina Innocence Inquiry Commission. The North Carolina Innocence Inquiry Commission shall be an independent commission under the Judicial Department for administrative purposes.

(b)       The Administrative Office of the Courts shall provide administrative support to the Commission as needed. The Director of the Administrative Office of the Courts shall not reduce or modify the budget of the Commission or use funds appropriated to the Commission without the approval of the Commission.

" 15A-1463.  Membership; chair; meetings; quorum.

(a)       The Commission shall consist of eight voting members as follows:

(1)       One shall be a superior court judge.

(2)       One shall be a prosecuting attorney.

(3)       One shall be a victim advocate.

(4)       One shall be engaged in the practice of criminal defense law.

(5)       One shall be a public member who is not an attorney and who is not an officer or employee of the Judicial Department.

(6)       One shall be a sheriff holding office at the time of his or her appointment.

(7)       The vocations of the two remaining appointed voting members shall be at the discretion of the Chief Justice.

The Chief Justice of the North Carolina Supreme Court shall make the initial appointment for members identified in subdivisions (4) through (6) of this subsection. The Chief Judge of the Court of Appeals shall make the initial appointment for members identified in subdivisions (1) through (3) of this subsection. After an appointee has served his or her first three-year term, the subsequent appointment shall be by the Chief Justice or Chief Judge who did not make the previous appointment. Thereafter, the Chief Justice or Chief Judge shall rotate the appointing power, except for the two discretionary appointments identified by subdivision (7) of this subsection which shall be appointed by the Chief Justice.

(a1)     The appointing authority shall also appoint alternate Commission members for the Commission members he or she has appointed to serve in the event of scheduling conflicts, conflicts of interest, disability, or other disqualification arising in a particular case. The alternate members shall have the same qualifications for appointment as the original member. In making the appointments, the appointing authority shall make a good faith effort to appoint members with different perspectives of the justice system. The appointing authority shall also consider geographical location, gender, and racial diversity in making the appointments.

(b)       The superior court judge who is appointed as a member under subsection (a) of this section shall serve as Chair of the Commission. The Commission shall have its initial meeting no later than January 31, 2006, at the call of the Chair. The Commission shall meet a minimum of once every six months and may also meet more often at the call of the Chair. The Commission shall meet at such time and place as designated by the Chair. Notice of the meetings shall be given at such time and manner as provided by the rules of the Commission. A majority of the members shall constitute a quorum. All Commission votes shall be by majority vote.

" 15A-1464.  Terms of members; compensation; expenses.

(a)       The initial appointments shall be made within 30 days of the effective date of this act. Of the initial members, two appointments shall be for one-year terms, three appointments shall be for two-year terms, and three appointments shall be for three-year terms. Thereafter, all terms shall be for three years. Members of the Commission shall serve no more than two consecutive three-year terms plus any initial term of less than three years. Unless provided otherwise by this act, all terms of members shall begin on January 1 and end on December 31.

Members serving by virtue of elective or appointive office, except for the sheriff, may serve only so long as the officeholders hold those respective offices. The Chief Justice may remove members, with cause. Vacancies occurring before the expiration of a term shall be filled in the manner provided for the members first appointed.

(b)       The Commission members shall receive no salary for serving. All Commission members shall receive necessary subsistence and travel expenses in accordance with the provisions of G.S. 138-5 and G.S. 138-6, as applicable.

" 15A-1465.  Director and other staff.

(a)       The Commission shall employ a Director. The Director shall be an attorney licensed to practice in North Carolina at the time of appointment and at all times during service as Director. The Director shall assist the Commission in developing rules and standards for cases accepted for review, coordinate investigation of cases accepted for review, maintain records for all case investigations, prepare reports outlining Commission investigations and recommendations to the trial court, and apply for and accept on behalf of the Commission any funds that may become available from government grants, private gifts, donations, or bequests from any source.

Subject to the approval of the Chair, the Director shall employ such other staff and shall contract for services as is necessary to assist the Commission in the performance of its duties, and as funds permit.

The Commission may, with the approval of the Legislative Services Commission, meet in the State Legislative Building or the Legislative Office Building, or may meet in an area provided by the Director of the Administrative Office of the Courts. The Director of the Administrative Office of the Courts shall provide office space for the Commission and the Commission staff.

" 15A-1466.  Duties.

The Commission shall have the following duties and powers:

(1)       To establish the criteria and screening process to be used to determine which cases shall be accepted for review.

(2)       To conduct inquiries into claims of factual innocence, with priority to be given to those cases in which the convicted person is currently incarcerated solely for the crime for which he or she claims factual innocence.

(3)       To coordinate the investigation of cases accepted for review.

(4)       To maintain records for all case investigations.

(5)       To prepare written reports outlining Commission investigations and recommendations to the trial court at the completion of each inquiry.

(6)       To apply for and accept any funds that may become available for the Commission's work from government grants, private gifts, donations, or bequests from any source.

" 15A-1467.  Claims of innocence; waiver of defendant's procedural safeguards and privileges; formal inquiry; notification of the crime victim.

(a)       A claim of factual innocence may be referred to the Commission by any court, person, or agency. The determination of whether to grant a formal inquiry regarding a claim of factual innocence is in the discretion of the Commission. The Commission may informally screen and dismiss a case summarily at its discretion.

(b)       No formal inquiry into a claim of factual innocence shall be made by the Commission unless the Director or the Director's designee first obtains a signed agreement from the defendant in which the defendant agrees to waive his or her procedural safeguards and privileges to the extent necessary for inquiry into the defendant's claim of innocence, agrees to cooperate with the Commission, and agrees to provide full disclosure regarding all inquiry requirements of the Commission. The defendant shall have the right to advice of counsel prior to the execution of the agreement and, if a formal inquiry is granted, throughout the formal inquiry. If counsel represents the defendant, then the defendant's counsel must be present at the signing of the agreement. If counsel does not represent the defendant, the Commission Chair shall determine the defendant's indigency status and, if appropriate, enter an order for the appointment of counsel for the purpose of advising on the agreement.

(c)       If a formal inquiry regarding a claim of factual innocence is granted, the Director shall use all due diligence to notify the victim in the case and explain the inquiry process. The Commission shall give the victim notice that the victim has the right to present his or her views and concerns throughout the Commission's investigation.

(d)       The Commission may use any measure provided in Chapter 15A of the General Statutes and the Rules of Civil Procedure as set out in G.S. 1A-1 to obtain information necessary to its inquiry. The Commission may also do any of the following:  issue process to compel the attendance of witnesses and the production of evidence, administer oaths, petition the Superior Court of Wake County or of the original jurisdiction for enforcement of process or for other relief, and prescribe its own rules of procedure. All challenges with regard to the Commission's authority or the Commission's access to evidence shall be heard by the Commission Chair in the Chair's judicial capacity, including any in camera review required by G.S. 15A-908.

(e)       While performing duties for the Commission, the Director or the Director's designee may serve subpoenas or other process issued by the Commission throughout the State in the same manner and with the same effect as an officer authorized to serve process of the General Court of Justice.

(f)        All State discovery and disclosure statutes in effect at the time of formal inquiry shall be enforceable as if the defendant were currently being tried for the charge for which the defendant is claiming innocence.

(g)       If, at any point during an inquiry, the defendant refuses to comply with requests of the Commission or is otherwise deemed to be uncooperative by the Commission, the Commission shall discontinue the inquiry.

" 15A-1468.  Commission proceedings.

(a)       At the completion of a formal inquiry, all relevant evidence shall be presented to the full Commission. As part of its proceedings, the Commission may conduct public hearings. The determination as to whether to conduct public hearings is solely in the discretion of the Commission. Any public hearing held in accordance with this section shall be subject to the Commission's rules of operation.

(b)       The Director shall use all due diligence to notify the victim at least 30 days prior to any proceedings of the full Commission held in regard to the victim's case. The Commission shall notify the victim that the victim is permitted to attend proceedings otherwise closed to the public, subject to any limitations imposed by this Article. If the victim plans to attend proceedings otherwise closed to the public, the victim shall notify the Commission at least 10 days in advance of the proceedings of his or her intent to attend. If the Commission determines that the victim's presence may interfere with the investigation, the Commission may close any portion of the proceedings to the victim.

(c)       After hearing the evidence, the full Commission shall vote to establish further case disposition as provided by this subsection. All eight voting members of the Commission shall participate in that vote.

If five or more of the eight voting members of the Commission conclude there is sufficient evidence of factual innocence to merit judicial review, the case shall be referred to the senior resident superior court judge in the district of original jurisdiction by filing with the clerk of court the opinion of the Commission with supporting findings of fact, as well as the record in support of such opinion, with service on the district attorney in noncapital cases and service on both the district attorney and Attorney General in capital cases.

If less than five of the eight voting members of the Commission conclude there is sufficient evidence of factual innocence to merit judicial review, the Commission shall conclude there is insufficient evidence of factual innocence to merit judicial review. The Commission shall document that opinion, along with supporting findings of fact, and file those documents and supporting materials with the clerk of superior court in the district of original jurisdiction, with a copy to the district attorney and the senior resident superior court judge.

The Director of the Commission shall use all due diligence to notify immediately the victim of the Commission's conclusion in a case.

(d)       Evidence of criminal acts, professional misconduct, or other wrongdoing disclosed through formal inquiry or Commission proceedings shall be referred to the appropriate authority. Evidence favorable to the defendant disclosed through formal inquiry or Commission proceedings shall be disclosed to the defendant and the defendant's counsel, if the defendant has counsel.

(e)       All proceedings of the Commission shall be recorded and transcribed as part of the record. All Commission member votes shall be recorded in the record. All records and proceedings of the Commission are confidential and are exempt from public record and public meeting laws except that the supporting records for the Commission's conclusion that there is sufficient evidence of factual innocence to merit judicial review, including all files and materials considered by the Commission and a full transcript of the hearing before the Commission, shall become public at the time of referral to the superior court. Commission records for conclusions of insufficient evidence of factual innocence to merit judicial review shall remain confidential, except as provided in subsection (d) of this section.

" 15A-1469.  Postcommission three-judge panel.

(a)       If the Commission concludes there is sufficient evidence of factual innocence to merit judicial review, the senior resident superior court judge in the district of original jurisdiction shall request the Chief Justice to appoint a three-judge panel, not to include any trial judge that has had substantial previous involvement in the case, and issue commissions to the members of the three-judge panel to convene a special session of the superior court of the original jurisdiction to hear evidence relevant to the Commission's opinion. The Chief Justice shall then appoint the three-judge panel, and the senior judge of the panel shall preside.

(b)       The senior resident superior court judge shall enter an order setting the case for hearing at the special session of superior court for which the three-judge panel is commissioned and shall require the State to file a response to the Commission's opinion within 60 days of the date of the order.

(c)       The district attorney of the district of conviction, or the district attorney's designee, shall represent the State at the hearing before the three-judge panel. The district attorney or the district attorney's designee may request assistance from the State Bureau of Investigation. The extent of assistance shall be determined by the Attorney General.

(d)       The senior resident superior court judge shall determine the defendant's indigency status and, if appropriate, enter an order for the appointment of counsel. The court may also enter an order relieving an indigent defendant of all or a portion of the costs of the proceedings.

(e)       The three-judge panel shall, after reviewing the Commission's opinion and findings of fact and record, conduct an evidentiary hearing. At the hearing, the court may compel the testimony of any witness, including the defendant. The defendant may not assert any privilege or prevent a witness from testifying. The defendant has a right to be present at the evidentiary hearing and to be represented by counsel. A waiver of the right to be present shall be in writing.(f)    The clerk of court shall provide written notification to the victim 30 days prior to any case-related hearings.

(g)       Upon the motion of either party or upon the senior judge's own motion, the senior judge of the panel may direct the attorneys for the parties to appear before him or her for a conference on any matter in the case.

(h)       The three-judge panel shall determine whether the defendant has proved, by clear and convincing evidence, that the defendant is factually innocent of the charges. Such a determination shall require a unanimous vote. If the vote is unanimous, the panel shall enter dismissal of all or any of the charges. If the vote is not unanimous, the panel shall deny relief, however, if two of the judges have determined that the defendant is factually innocent of the charges, then the decision of the panel must be reviewed by the Supreme Court according to the procedures set out in subsections (i) and (j) of this section. Any decision of the three-judge panel must be accompanied by findings of fact and conclusions of law.

(i)        If only two of the judges have determined that the defendant is factually innocent of the charges, the case must be reviewed by the Supreme Court. In that event, the clerk of court in the district of original jurisdiction shall, within 30 days from the decision of the three-judge panel, forward to the Supreme Court the decision of the panel, together with the panel's findings of fact and conclusions of law and the record of proceedings before the panel, which shall include the Commission's opinion, supporting findings of fact, and supporting record.

(j)        The Supreme Court shall consider the record before it and may hear oral arguments on any issue it deems appropriate. The Court shall determine whether the defendant has established factual innocence before the three-judge panel by clear and convincing evidence and remand the case to the three-judge panel for action consistent with the Court's decision.

" 15A-1470.  No right to further review of decision by Commission or three-judge panel; defendant retains right to other postconviction relief.

(a)       Unless otherwise authorized by this Article, the decisions of the Commission and of the three-judge panel are final and are not subject to further review by appeal, certification, writ, motion, or otherwise.

(b)       A claim of factual innocence asserted through the Innocence Inquiry Commission shall not adversely affect the defendant's rights to other postconviction relief."

SECTION 2.  G.S. 15A-1401 reads as rewritten:

" 15A-1401.  Post-trial motions and appeal.

Relief from errors committed in criminal trials and proceedings and other post-trial relief may be sought by:

(1)       Motion for appropriate relief, as provided in Article 89.

(1a)     Motion for innocence claim inquiry as provided in Article 92 of Chapter 15A of the General Statutes.

(2)       Appeal and trial de novo in misdemeanor cases, as provided in Article 90.

(3)       Appeal, as provided in Article 91."

SECTION 3.  G.S. 15A-1417(a) reads as rewritten:

"(a)      The following relief is available when the court grants a motion for appropriate relief:

(1)       New trial on all or any of the charges.

(2)       Dismissal of all or any of the charges.

(3)       The relief sought by the State pursuant to G.S. 15A-1416.

(3a)     For claims of factual innocence, referral to the North Carolina Innocence Inquiry Commission established by Article 92 of Chapter 15A of the General Statutes.

(4)       Any other appropriate relief."

SECTION 4.  G.S. 15A-1411 reads as rewritten:

" 15A-1411.  Motion for appropriate relief.

(a)       Relief from errors committed in the trial division, or other post-trial relief, may be sought by a motion for appropriate relief. Procedure for the making of the motion is as set out in G.S. 15A-1420.

(b)       A motion for appropriate relief, whether made before or after the entry of judgment, is a motion in the original cause and not a new proceeding.

(c)       The relief formerly available by motion in arrest of judgment,  motion to set aside the verdict, motion for new trial, post-conviction proceedings, coram nobis and all other post-trial motions is available by motion for appropriate relief. The availability of relief by motion for appropriate relief is not a bar to relief by writ of habeas corpus.

(d)       A claim of factual innocence asserted through the North Carolina Innocence Inquiry Commission does not constitute a motion for appropriate relief and does not impact rights or relief provided for in this Article."

SECTION 5.  G.S. 15A-1418(b) reads as rewritten:

"(b)      When a motion for appropriate relief is made in the appellate division, the appellate court must decide whether the motion may be determined on the basis of the materials before it, or whether it is necessary to remand the case to the trial division for taking evidence or conducting other proceedings. proceedings, or, for claims of factual innocence, whether to refer the case for further investigation to the North Carolina Innocence Inquiry Commission established by Article 92 of Chapter 15A of the General Statutes. If the appellate court does not remand the case for proceedings on the motion, it may determine the motion in conjunction with the appeal and enter its ruling on the motion with its determination of the case."

SECTION 6.  G.S. 143-318.18 is amended by adding a new subdivision to read:

"(3a)    The North Carolina Innocence Inquiry Commission."

SECTION 7.  G.S. 132-1.4 reads as rewritten:

" 132-1.4.  Criminal investigations; intelligence information records.records; Innocence Inquiry Commission records.

(a)       Records of criminal investigations conducted by public law enforcement agencies oragencies, records of criminal intelligence information compiled by public law enforcement agenciesagencies, and records of investigations conducted by the North Carolina Innocence Inquiry Commission, are not public records as defined by G.S. 132-1. Records of criminal investigations conducted by public law enforcement agencies or records of criminal intelligence information may be released by order of a court of competent jurisdiction.

."

SECTION 8.  Beginning January 1, 2007, and annually thereafter, the North Carolina Innocence Inquiry Commission shall report on its activities to the Joint Legislative Corrections, Crime Control, and Juvenile Justice Oversight Committee and the State Judicial Council.  The report may contain recommendations of any needed legislative changes related to the activities of the Commission.  The report shall recommend the funding needed by the district attorney and the State Bureau of Investigation in order to meet their responsibilities under this act.

SECTION 9.  The State Judicial Council shall report to the General Assembly and the Chief Justice no later than December 31, 2008, regarding the implementation of this act and shall include in its report the statistics regarding inquiries and any recommendations for changes.

SECTION 10.  This act is effective when it becomes law.