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North Carolina Charges Prosecutor With Concealing DNA Evidence

The case is North Carolina State Bar v. Paul T. Jackson, 14 DHC 20.

The case is part of a growing trend to bring disciplinary charges against prosecutors who fail to disclose exculpatory evidence.

The important facts, as set forth in the complaint, are alleged to be as follows:

1. On June 12, 2011 Elio Santos De La Cruz was arrested on drug charges and “second degree rape of a mentally disabled woman.”

2. On June 17, 2011, a rape kit was collected from the victim and sent for testing to the North Carolina State Bureau of Investigation Crime Laboratory.

3. On July 11, 2011, the Grand Jury returned an indictment against De La Cruz.

4. On July 14, 2011, De La Cruz’s attorney made a request for discovery.

5. De La Cruz remained in custody throughout this time, eventually totaling more than 580 days.

6. De La Cruz’s attorney filed three motions to dismiss arguing that De La Cruz’s right to a speedy trial was violated. The basis for the motion was the unexplained delay by the State Crime Lab in testing the rape kit.

7. In December 2012, the court gave the prosecutor time to make an inquiry at the Crime Lab.

8. On January 10, 2013, the prosecutor said he had talked to the lab and that the results were not back yet. At the conclusion of the hearing the court ordered the lab to explain why the test had not been completed.

9. On January 23, 2013, the Lab informed the prosecutor that the test was completed on or about September 12, 2012 and that the results had been available since that time. Moreover, the report excluded De La Cruz as the “contributor of the sperm fraction from the vaginal swabs of [the victim].”

10. On January 24, 2013, the prosecutor dismissed the rape charge.

The alleged ethics violations include the following:

A. failing to make a “reasonably diligent inquiry to learn of the availability of [the Crime Lab’s] report.

B. Falsely informing the court on January 10, 2013 that the prosecutor had talked to the Crime Lab.

Comment: If true, the allegations illustrate a lack of diligence and then foolish statements to the court to cover-up the lack of diligence.

Finally, even if the prosecutor had immediately turned over the  DNA test in September 2012, De La Cruz would still have spent a year and three months in jail awaiting trial on a rape case in which he was innocent. A sad tale all around.

Edward X. Clinton, Jr.