Innocence commission pick draws ire of defense attorneys

Attorney representing defense lawyers on commission served as county’s chief ­prosecutor for 23 years

By Martha Waggoner
Associated Press

RALEIGH, N.C. (AP) — A former prosecutor has been appointed to a third term on a fact-finding commission that reviews claims of innocence from North Carolina residents convicted of crimes. But this time, he’ll be representing criminal defense attorneys, some of whom say he’s not qualified.

Johnson Britt represented district attorneys on the North Carolina Innocence Inquiry Commission until the end of the year, when he retired as the chief prosecutor for Robeson County after 23 years in that job and seven years before that as an assistant district attorney.

Britt also was a defense attorney for two years in the late 1980s, and resumed that work about six months ago. In an interview last week, he said he was currently representing four people on charges of driving while impaired and a fifth on a probation violation.

In May, the innocence commission’s executive director, Lindsey Guice Smith, advised that Britt was returning as an alternate representative for criminal defense attorneys. As such, he hears and votes on cases when the main representative isn’t available, as he did at a June hearing.

Some criminal defense attorneys are outraged.

“How does one sit as prosecutor member, retire, then immediately sit as defense member?” defense attorney Deb Newton, who has been an alternate commissioner since 2017 and has not yet voted on any cases, asked commissioners in an email that she later shared with The Associated Press.  In an interview, she said she had attended several commission hearings on her own to familiarize herself with the process.

“I am personally and professionally deeply offended that anyone, especially an appellate judge, would so devalue our contribution by placing a recently retired career prosecutor on this commission in a place specifically reserved for the wise counsel and professional perspective of a trained criminal defense attorney,” she wrote in the email.

When North Carolina’s legislature established the eight-member Innocence Inquiry Commission in 2006, lawmakers carefully delineated which professions the commissioners should hold. They are: one Superior Court judge, a prosecuting attorney, a sheriff, a victim’s advocate, a criminal defense lawyer and a member of the public. Two additional slots, including Newton’s, are described as discretionary.

“The idea is to have somebody who’s an experienced criminal defense lawyer to provide that perspective to the entire commission,” said David Rudolf, a defense attorney who obtained a $5.1 million settlement for a wrongfully convicted client from Buncombe County in 2015 after another attorney presented the case to the commission. “However well-intentioned Mr. Britt may be, he simply does not have the experience necessary to bring that perspective to the rest of the commission.”

Britt disagrees.

“I don’t look at it in the sense that each person wears a particular hat and protects that particular interest in the case,” said Britt, who in 1996 prosecuted the men convicted of killing NBA star Michael Jordan’s father. “I look at it as, we basically are a grand jury. We are presented with all the facts surrounding the case” and charged with reviewing trial transcripts, police reports and follow-up interviews conducted by commission staffers.

But a former senator who sponsored legislation in 2016 to make the commission more transparent, said lawmakers did intend for the commissioners to bring particular viewpoints to the hearings.

“It was our intent to find someone” who only did criminal defense work and who had done that work “for a long time” to put in the commissioner’s seat that Britt now holds, Leo Daughtry said. “We had in mind to get as much balance as we could get.”

Post-conviction claims of innocence are first investigated by commission staff members, who forward those they believe to have merit to the eight commissioners. The commissioners then vote whether to send the case to a three-judge panel. A person can only be found innocent by a unanimous decision of the judges.

Commissioners are appointed to three-year terms by either the state Supreme Court’s chief justice or the chief judge of the state Court of Appeals.

Britt was appointed by Chief Judge Linda McGee, who said in an email that she did so at the request of commission chairwoman and Superior Court Judge Anna Mills Wagoner. McGee said she appointed Britt when a defense attorney representative was needed in a hurry for a June hearing because the regular commissioner in that spot recused himself and the alternate resigned.

McGee said Britt was considered to be “fair, capable and very involved” as the commissioner representing district attorneys.

But fairness and ability are not the issue, said Attorney Chris Mumma, a defense attorney who has brought numerous cases to the commission and who is the executive director of the North Carolina Center on Actual Innocence, a nonprofit organization that represents poor defendants trying to prove their innocence.

“Having the perspective of a defense attorney who has been in the trenches ... is critically important and is not something you can pick up from months or even a few years of practice,” Mumma said.