Open File Discovery, Grand Jury System on Trial

by: Sharon K. Swanson

Exclusive Interview With Duke Lacrosse Case Lawyers Joe Cheshire and Brad Bannon

In January 2007, Metro Magazine published an interview with the family of Collin Finnerty, one of the three Duke lacrosse defendants. In that far-ranging discussion, held in their New York home, Collin’s parents, Kevin and Mary Ellen Finnerty, talked about the impact of this experience on them and their five children. The Finnertys also talked about the lack of safeguards in North Carolina law that allowed this injustice to go unchecked for far too long.

Since that time, Collin Finnerty, and his co-defendants, Reade Seligmann and David Evans, have been cleared of all charges. In a widely publicized press conference held in April 2007, North Carolina Attorney General Roy Cooper declared the Duke Three “innocent,” a step beyond the “not guilty” the public and the defendants expected. Cooper further stated that the young men had been the targets of “a rogue prosecutor” — Durham District Attorney Michael Nifong, who was disbarred in State Bar proceedings in June and forced to leave office.

The state legislature has responded to the gaps in the system of checks and balances identified by the Duke lacrosse case by approving several bills addressing criminal procedures — most notably establishing new processes for police lineups. But this begs the question of how it was possible that a case without foundation could drag on for over a year in the country’s 10th most populous state — and in one of its most literate regions. Why couldn’t Nifong be stopped? And even more importantly, why would the North Carolina Conference of District Attorneys introduce legislation limiting Open File Discovery only one day after the Attorney General’s press conference?

For answers, I met with Raleigh’s Joe Cheshire, the lead attorney for Duke lacrosse defendant David Evans. Cheshire, a fifth generation lawyer, was selected by his professional peers in 2006 as one of the top 100 lawyers in the state. That same year, he was inducted into the American College of Trial Lawyers. Joining us was Brad Bannon, now best known by the national press as the “DNA buster,” the young attorney who spent days deciphering the tangled DNA evidence that exonerated Finnerty, Seligmann and Evans, while catching DA Nifong in his own net.

The law offices of Cheshire Parker Schneider Bryan & Vitale are housed on Raleigh’s downtown Fayetteville Street in a worn structure with nice bones and a cache of memories. The reception area is decorated with personal plaques that recognize The Best Lawyers in America, and a campaign poster that reads: “For President, Franklin D. Roosevelt.” On the coffee table, a children’s book, Just Say Thank You is mixed in with the magazines.

Cheshire, Bannon and I met in Cheshire’s office, wallpapered in green linen and the personal artifacts of a successful career and marriage. For Cheshire and company, the Duke lacrosse case isn’t just about issues with the NC grand jury system or rogue prosecutors or tainted identification procedures — it is about the far more fundamental issue of open discovery.

Open File Discovery

In October 2004, the NC legislature passed an Open File Discovery law that required prosecutors to give defense attorneys everything they had in their case files — DAs no longer had the right to decide what the defense would receive. Police officers were also obligated to give what they had to prosecutors. And that information too was passed on to defense attorneys. Cheshire and Bannon were part of a small team of defense lawyers that wrote that law and managed it through the legislature.

Before 2004, an earlier compromise on the issue of open files was reached in death penalty cases, requiring prosecutors to share evidence before a defendant could be executed. “That gave a small window into prosecutor’s files,” said Cheshire, “and it was shown dramatically that prosecutors in death penalty cases were not giving defense lawyers evidence that the clients were innocent, couldn’t have committed the crime, or that the crime happened in a way that would not have qualified for the death penalty.” In other words, said Cheshire, “They were abrogating their responsibility to see that justice was done. DAs were putting winning ahead of justice.”

The Gell Case

Over the next seven years, this peek into the files of prosecutors would lead to the overturning of an average of one death penalty case a year. The most dramatic was the case of Alan Gell. Cheshire was appointed Gell’s lead attorney after Jim Cooney and Mary Pollard of the Death Penalty Resource Center contacted him with witness statements not seen by the defense.

It was this case that further cemented the professional bond between Cheshire and Bannon, the intense, boyish-looking younger attorney. Bannon was first introduced to the firm as a Campbell University Law School research assistant and clerk in 1997. Cheshire — casually comfortable in his persona of the bearded Southern lawyer, camouflaging an innate intelligence and a strong interest in defending the rights of the accused with a just-sitting-on-the-porch-sipping-iced tea friendliness — teases the younger lawyer about his resemblance to actor George Clooney. But observing the two together is like watching a well-played doubles match:

“How many statements did they find in that Gell file, Brad?”

Bannon: “Seventeen.”

Cheshire: “Yes, 17 statements that had never been turned over to the defense that showed that these 17 people had seen the deceased alive at a time when Alan Gell was in jail, and so he could have not killed the deceased…”

Bannon: “And he remained in jail until the body was found…”

Cheshire: “So it was impossible that he killed the deceased, and yet Alan Gell spent nine years on death row.”

The original prosecutors in that case said in their own defense that they hadn’t read the case files. The State Bar accepted their explanation, and Gell was acquitted in his second trial. The case was tracked in a series by News & Observer reporter Joe Neff, which gave rise to the Open File Discovery bill in the legislature.

This new law led to “a transparency in the system of justice, which is what you are supposed to have,” said Cheshire. “It’s an important doctrine that the Duke case has finally shown to people: It is a prosecutor’s job to see that justice is done.” This causes a real dilemma as the political system tends to re-elect a winning prosecutor, or in the case of Durham DA Nifong, a district attorney who steadfastly defended false charges in a case that was receiving national headlines.

“The playing field is still not level (even with the Open Discovery Law) because prosecutors still get to pick the judge they want to try a case in front of. It’s like Mike Krzyzewski or Roy Williams picking what officials they want and what day they want to play the game. We are the only state in the US that has DA calendaring,” said Cheshire. “They have enormous power.”

An Arrogance Of Power

The latest effort by the North Carolina Conference of District Attorneys to roll back Open File Discovery took place in this year’s legislative session in a move that Bannon labels “an arrogance of power.”

Cheshire explained: “You talk about a strange moment. Brad and I were at the press conference on April 11 watching three young men — who were, and always were palpably innocent — who were finally being recognized as innocent because a prosecutor cheated. On the next day, Thursday, Brad and I were at a meeting at the Bar Association with the executive committee of the DAs — seven or eight of them sitting across from us telling us how they were going to roll back open file discovery because they should be the one who determines what we should get and what we shouldn’t.” Cheshire shook his head in disbelief. “And the next day, Friday, I was in Union County defending Jonathan Hoffman who was put on death row because the prosecutors cheated in every way they could possibly cheat. … It’s astonishing.”

“They sold it as some necessary endeavor to protect confidential informants,” said Bannon. “That’s not what it was at all.”

The two have been influential in working out the compromise that has now been signed into law. Ultimately, both sides agreed that prosecutors would disclose to defense attorneys any contradictory statements made by witnesses. In this draft, the defense attorneys also agreed to the prosecution’s shielding of witness social security numbers and the identities of confidential informants, unless the court ordered the prosecutor to release them. Otherwise, Open File Discovery remains intact.

“It was a Trojan horse, is what it was,” said Bannon.

“Yeah, a Trojan horse,” said Cheshire.

Prosecutors Respond

Peg Dorer, the director of the North Carolina Conference of District Attorneys, acknowledged that the timing of the proposed amendment to Open File Discovery was unfortunate. “We’d been working on it for a while before that.” According to Dorer, district attorneys had seen issues early on with the 2004 legislation. For example, the lack of protection for witnesses had led to a reduction in tips to Crimestoppers. And even casual hallway conversations by prosecutors had to be recorded and given to defense attorneys, making it “nearly impossible” to maintain full compliance.

Dorer also said that the DAs’ association had attempted to intercede early on in the Duke lacrosse case. Within a week after charges were brought, “every DA was saying the Durham DA was talking too much,” said Dorer. On a couple of occasions, according to Dorer, senior DAs talked privately to Nifong about options for resolving the case. “Nifong wasn’t listening.”

Willoughby — A Notable Exception

Cheshire can get worked up talking about prosecutorial hijinks. He’s spent his career working with defendants in cases at all levels of the justice system, including the Supreme Court. Cheshire recognizes that not all district attorneys put winning re-election above seeing that the legal system works fairly and efficiently. He’s quick to point out that Wake County DA Colon Willoughby has always been open and transparent in his dealings with defense attorneys.

Willoughby’s take on Open File Discovery is pragmatic: “If each side knew what evidence the other had, two good lawyers should be able to assess that evidence, and in some cases, save the time and expense of going to trial.”

The Wake County DA also recognizes how expensive and time-consuming Open File Discovery is to his office. He mentioned a recent case where the file included 19,000 pages of discovery. “We had to pay somebody to copy and number every page. Still, something could be missing and you wouldn’t know it. We’re still working with 1980s technology,” Willoughby said, his frustration showing.

“We should just be able to scan the file and put it on disk,” he said. “The technology is out there — it is efficient and cost effective.” The money has been appropriated for the upgrades, yet the DA’s office has yet to receive the funds from the Administrative Office of the Courts (AOC).

Grand Jury Issues

In addition, as Kevin Finnerty, father of Duke defendant Collin Finnerty, pointed out nearly a year ago, there is no written record of what is said in North Carolina’s grand jury proceedings.

“The grand jury system in this state is a joke,” said Bannon. “The day of the lacrosse indictments, there were 82 indictments in 96 minutes. And there is no duty to provide exculpatory evidence.” Clearly, with that kind of time crunch, coupled with no pressure to produce evidence, and no written records of the proceedings, there exists the possibility that anyone could be indicted in this state.

Willoughby feels that providing transcripts for grand jury proceedings would not fix the problem. “That’s like saying you have the measles, so let’s take a picture and put it in the file. … You’re still going to have the measles.” Willoughby suggested that a more thorough review by the legislature may be needed to look at how the grand jury process could be improved.

Another concern of the Finnerty family was the fact that there was no oversight, no accountability — no chain of command for a wayward prosecutor. Yet, there is a statute in this state that allows any citizen to file a complaint against a district attorney. The Senior Resident Superior Court Judge must hear the case or assign it.

And there was a citizen complaint filed in the Duke lacrosse case. The judge, Orlando Hudson, chose to continue the case, deciding to let it play out, rather than immediately complying with the applicable statute.

And where was the State Bar, the governing body for all attorneys, when this case was languishing without momentum?

“The State Bar doesn’t want to be the referee in an ongoing case,” said Cheshire. “They rightly held their fire. The State Bar acted the fastest in their history in this case.”

In his press conference, Attorney General Cooper mentioned proposing legislation that would give power to the state Supreme Court when it is clear that a DA is out of bounds. The only legislation passed this session on this issue, however, has fewer teeth than Cooper’s proposal. The new law allows legislators to remove a district attorney or judge only after they have been disbarred.

“There are bad and misguided people in all professions,” said Dorer. “He (Nifong) wasn’t following the rules we had to begin with.”



As the Durham DA’s own legal troubles began, the former Duke lacrosse defendants and their families began to rebuild their lives. David Evans, who graduated from Duke just before he was indicted, went to work on Wall Street. Reade Seligmann announced his plans to attend Brown University, where he will play lacrosse. In July, Collin Finnerty announced that he would be joining the lacrosse team at Loyola University in Maryland where the coach can request that Finnerty be granted an extra year of eligibility. (The entire Duke team was granted an extra year of eligibility due to the loss of their 2006 season.)

Duke University, surprisingly, was on Collin’s short list for the fall school term. It is now common knowledge that Duke made a financial settlement with the young men and their families, as well as their fired former coach, Mike Pressler. According to Kevin Finnerty, where would Collin continue his education, and will you be suing Mike Nifong? Were the top two questions he was asked.

“As many as 10 schools called to say, ‘We’d like to have you here,’ to offer a scholarship, something like that,” Kevin said of his son’s choices. Collin had always maintained that he’d prefer to return to play lacrosse with his friends at Duke. After the disbarment of Mike Nifong, and Durham Mayor Bill Bell’s public commitment to delve more deeply into the actions of the Durham police department, his parents were somewhat reassured about their son’s safety at Duke — a major concern for them.

This past lacrosse season, Collin volunteered as an assistant coach at his old high school in Long Island. “The coach actually wrote me a letter,” said Kevin, “and said he should do this professionally, he’s so good.” The coach told Collin’s parents “how much the kids look up to him, and how good he was with them.”

“We are very proud of Collin,” said Kevin. “He’s a great kid.”

Lingering Questions Require Leadership

Kevin and his family have lingering questions about how their son became entangled in one of the nation’s most high profile cases of the year — and why Police Chief Steve Chalmers was missing in action the entire year. “The Durham police department needs radical changes in leadership and protocol,” said Kevin. “Just like you have a rogue prosecutor, I think you can have rogue policemen, and that can happen anywhere.”

And about Durham’s internal review of their police department, Kevin said, “I think it is a farce. They are giving themselves their own report card.

“We are not being judgmental on the people of Durham,” Kevin continued. “My guess is that the majority of people in Durham are embarrassed by how the district attorney conducted himself and how the police continue to conduct themselves. This shouldn’t reflect poorly on the people of Durham, but it certainly reflects poorly on the leadership. For the mayor to stand up and ask for an objective review of what has gone on here, that is a great first start,” Kevin said. “Finally someone is stepping up and showing leadership, and it is long overdue.”

On July 19, just one day before the Durham Police Department would be called on to answer for their actions in the Duke lacrosse case, Jose Lopez, assistant police chief in Hartford, CT, was named the new police chief of Durham. He will replace retiring Police Chief Chalmers.

Growing Up Fast

Despite the seriousness of the allegations, Kevin said that many people supported the Finnertys and the other families throughout their ordeal. Collin’s girlfriend of four years remained steadfastly committed to his innocence, as has her family. “To have a college-aged daughter, and to have her boyfriend become a national headline. … There are a lot of people who would shy away from that and not want their daughter to be associated. Yet, they know Collin, and they never wavered that he couldn’t, and wouldn’t, do something like this.

“Collin is a gentle giant. He’s not a fighter; he’s never been in trouble his entire life. Obviously,” said his father, “that is not the way he’s been portrayed.”

The Finnertys have learned far more about the North Carolina justice system and its limitations than they ever wanted to know. They have also learned who they can trust. As for Collin, his father says: “A year ago, Collin was 19 going on 17. Now he’s 20 going on 30.”