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Foye case emphasizes full disclosure need

Don't gut law requiring DAs to ensure defendants get all files.

Here we go again. Less than a week after the state's district attorneys announced there were no questions about the guilt of defendants in an audit of hundreds of blood cases last summer by a former FBI agent, reporters Joseph Neff and Mandy Locke wrote about the disturbing case of Chris Foye.

Foye has spent 19 years behind bars for a murder he says he did not commit and for which he accepted a prison sentence because he was told his only other option was execution. What neither Foye nor his lawyers knew was that the State Bureau of Investigation had found another man's DNA in the victim's panties and that there were other suspects law enforcement agencies did not pursue.

Had Foye's lawyers known about the other man's DNA on Bobbie Jean Morgan's underwear in 1991, they say, they would not have allowed him to enter a plea that acknowledged there was evidence that could convict him.

This is just the latest indication of how out of whack the state's justice system is. After news reports last year about mishandled blood work at the SBI crime lab and about agents concealing test results that might have helped defendants, N.C. Attorney General Roy Cooper asked former FBI agent Chris Swecker to audit the lab's work. His report concluded that the crime lab had either not reported or failed to disclose accurately the results of blood tests in 229 cases. Since then the SBI has identified dozens more such cases.

Morgan was found in a pool of blood and tests showed that footprints left by a socked foot in Morgan's apartment could have been Foye's. But, the reporters wrote, "the SBI failed to report that a confirmatory test for blood was inconclusive." The audit also took note of the DNA evidence belonging to another man, which had not been given to Foye's lawyers.

The district attorney in the case, now retired, insists the DNA report was in the case file. He said all his files after 1975 were open to defense lawyers. Foye's lawyers say they never saw the DNA report and that if they had, they would not have allowed Foye to accept a deal that has kept him in prison for nearly two decades.

This case obviously cries out for further investigation. It's not a matter of legal procedure and hair-splitting. It's a matter of right and wrong, and it appears that Chris Foye was wronged when law enforcement officials did not ensure that he was informed of all the evidence. Foye was convicted long before a 2004 full disclosure law was adopted, but his case underscores its importance.

That's all the more reason for state legislators to reject a House bill that would relieve prosecutors of the duty to make sure defense attorneys have all investigative files, including police reports. The 2004 open discovery law - adopted after news reports exposed misconduct and illegal withholding of evidence - made prosecutors responsible for providing that information, but now prosecutors want to be relieved of that duty.

Prosecutors evidently worry they'll be hauled up on charges before the State Bar if they miss the existence of police reports they knew nothing about. Yet defense attorneys say there's no known case of the bar sanctioning a prosecutor for failing to get that information into defense attorneys' hands.

Granting defendants full access to investigative and prosecutorial files is all about fairness. As we have too often seen in North Carolina's criminal justice system the right information doesn't always get where it belongs. Leave the law alone.


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