- A convicted person who asserts “actual innocence” of a felony conviction (and has credible, verifiable evidence of innocence not already raised in another post-conviction proceeding) can ask the Innocence Commission to review his or her case.
- If the commission finds the claim is meritorious, it will refer the case for a contested hearing held before a three-judge panel.
- If the panel unanimously finds that the claimant has proven his innocence by clear and convincing evidence, the criminal charge will be dismissed.
Origin and Overview
The North Carolina Innocence Inquiry Commission was created by statute in 2006, and began reviewing cases in 2007. See N.C.G.S., Chapter 15A, Article 92. The commission is an independent body within the Administrative Office of the Courts, and it is comprised of eight members (along with staff) who serve terms ranging from one to three years: one superior court judge (who acts as chair); one prosecutor, one defense attorney, one victim advocate, one member of the public who is not an attorney or a member of the Judicial Department, one sheriff (who must be holding office at the time of appointment), and two additional members of any vocation within the discretion of the Chief Justice of the North Carolina Supreme Court. See G.S. 15A-1462, 15A-1464. The Chief Justice of the North Carolina Supreme Court appoints five members, and the Chief Judge of the Court of Appeals appoints three members. See G.S. 15A-1463 - 1465. The appointed members receive compensation for subsistence and travel, but otherwise receive no salary for their service. See G.S. 15A-1464.
The commission is charged with reviewing and investigating post-conviction claims of “actual innocence.” See G.S. 15A-1460(1). To qualify for consideration and review, a claim must meet the following criteria:
- Made on behalf of a living person;
- Convicted of a felony in a North Carolina court;
- Asserting complete (“actual”) innocence of not only the felony of conviction, but also any lesser or related offense;
- There is credible, verifiable evidence of actual innocence; and
- The evidence has not already been presented at trial or considered at another hearing granted through post-conviction relief (appeal, MAR, etc.).
Review, Investigation, and Hearing
In addition to the authorizing and enabling statutes found in G.S. 15A-1460 through 1475, the commission operates pursuant to a set of internal rules and procedures for evaluating claims and conducting hearings (available here). A quick reference guide to the different steps in the commission’s review process is available here.
The claimant starts the process by giving written consent and filling out a questionnaire. The commission staff may be able to dispose of the claim based on their “initial review” of public documents, or it may determine that further review, investigation, or a formal inquiry is needed. In order to complete its investigation, the commission is empowered to issue subpoenas, obtain court orders, place witnesses under oath, etc. See G.S. 15A-1467; see also State v. Neal, 216 N.C. App. 183 (2011) (unpublished) (DNA testing ordered as part of an innocence investigation led to match and charges against a different defendant). The claimant is entitled to counsel during a formal inquiry, but must waive his or her rights to certain other procedural safeguards and agree to cooperate with the inquiry (even if this leads to the discovery of other evidence of wrongdoing, which may be referred to the appropriate authorities). See G.S. 15A-1467. All discovery laws requiring disclosure of evidence by the state are considered to be in effect, and are enforceable as if the convicted person were being actively prosecuted for the offense. Id.
Once the investigation and formal inquiry are completed, the case is presented to the full commission for a vote on whether the claim is meritorious. See G.S. 15A-1468(c). The standard of proof is “sufficient evidence of factual innocence to merit judicial review.” If the defendant was convicted by a guilty plea, all 8 members must agree that the innocence claim is meritorious; if the defendant was convicted at trial, at least 5 of the 8 members must find the claim to be meritorious.
If the commission decides that the claim is meritorious, then it issues an “opinion” and refers the case (along with all records and transcripts) for a special hearing before a three-judge panel. See G.S. 15A-1469. The panel must not include any judge who had substantial involvement in the previous case. After a hearing date is set, the district attorney has 90 days to file a response to the commission’s opinion, and then he or she (or a designee) represents the state at the hearing. The panel may compel the testimony of any witness, including the defendant. See also G.S. 15A-1468(a1) (regarding limited immunity for witnesses testifying at an innocence hearing).
If, after an evidentiary hearing, the panel unanimously finds that the convicted person has proven his or her innocence by clear and convincing evidence, then the panel must dismiss the charges. See G.S. 15A-1469(h). If the decision is anything other than unanimity in favor of innocence, there is no relief. The person declared innocent may not be retried for the same crime. The decision of the panel is final, and is not subject to any further appellate review. See G.S. 15A-1470(a).
Review of the numbers
According to the commission’s website, they have reviewed roughly 2,500 cases since the creation of the commission in 2006 through December 31, 2018. From those submissions, the commission has obtained 10 exonerations for actual innocence, either through a formal hearing before a panel of judges or by other means such as a consent MAR based on the evidence obtained.
Cases submitted to the commission are confidential unless they are presented at a commission hearing or released pursuant to an MAR, so victims will initially have no way of knowing that their case has been submitted for review. See G.S. 15A-1468. However, if the commission elects to undertake a “formal inquiry” into the case, the director must use due diligence to attempt to notify the victim (or next of kin, if deceased) and explain the process. The victim has the right to express his or her views and concerns throughout the investigation, and to be present at hearings that would otherwise be closed to the public. See G.S. 15A-1467(c); 1468(b). The victim is also entitled to notice if the case is found to be non-meritorious and closed. See G.S. 15A-1468(c). Alternatively, if the case is referred for a hearing before a three-judge panel, the victim has the right to receive notice of that hearing and to be present (but the victim must give timely notice to the commission of his or her intent to attend). See G.S. 15A-1468(b); 1469(f).