Prosecutorial Misconduct in North Carolina

On Sunday, November 2, 2003, The News & Observer (Raleigh, Durham, Cary, Chapel Hill) began a series of in-depth articles on prosecutorial misconduct in North Carolina entitled "Justice Withheld." You can view the articles in the original series, as well as its continuing coverage of prosecutorial misconduct by clicking here.

In this issue of our Blog, we will highlight a single case which devastated a young man's life, "A rape case totters; a Marine's life falls apart" in the "Justice Withheld" series.

12 year-old Lesly Jean immigrated with his family from Haiti to New York. At 19 he joined the Marines, and was serving at Camp Lejeune when his nightmare began.

On a Monday night in July 1982, Jean was at a Dunkin Donuts store when an officer stopped him because he resembled a composite drawing provided by the victim of a rape five days earlier. Merely 3 months later, Jean was convicted of rape and sentenced to two consecutive life terms. Jean was 22 years old.

Jean had four other marines testify that he was in his barracks the night of the rape. So what convinced the jury that he was guilty? The testimony of two eye witnesses: the victim and a police officer who briefly stopped the rapist before he fled.

The prosecutorial misconduct in this case resulted from an improper hypnosis of the two witnesses for the State. The hypnosis was conducted by the Jacksonville chief of detectives, who had no training in psychiatry or psychology, used leading questions and focused on Jean's photograph, and did not make a record of their pre-hypnosis memory. Furthermore, the State did not provide the Defense with audiotapes or other records of the hypnosis sessions, even though the Defense specifically asked for them twice.

Paul Green, an attorney working with the N.C. Prisoner Legal Services, obtained the audiotapes and other records through a court order. The 4th U.S. Circuit Court of Appeals freed Jean in 1991, saying that "had prosecutors handed over the recordings and records of the hypnosis, Jean probably would not have been convicted.

At least one person feels remorse for his involvement in this wrongful conviction. Walter Vatcher, the assistant prosecutor who tried the case, says the police never gave him the materials, either. However, as prosecutor he knew about the hypnosis, and it was his responsiblity to be sure that it was conducted properly. That he failed to do.

As if that wasn't enough, Vatcher admits another act of prosecutorial misconduct -- intentionally prejudicing the jury. He "regrets his cross-examination of Jean, when he skewered Jean for watching a pornographic movie with a girlfriend."

"That was very prejudicial," Vatcher admits. "I think about it at night; I was responsible for this guy serving nine years."

Once released, Jean asked Governor Jim Martin for a pardon, but was denied. His disonhorable discharge from the Marines was upgraded to an honorable discharge. But it wasn't until 2001, when a DNA test fully exonerated him, that Governor Mike Easley granted his pardon. He was awarded $90,000 because North Carolina gives wrongfully convicted individuals $10,000 per year that they serve in prison.

How many other rapes did that rapist commit because the wrong person was charged, arrested, tried and convicted through prosecutorial misconduct?

What effect did it have on those two witnesses, the victim and the cop, to know that they were used to sentence an innocent man to two consecutive life terms?

Tell us what you think. Should prosecutorial misconduct go unpunished? Are these honest mistakes, or are they the product of arrogance and utter disregard for the truth -- the win at all cost mentality?