It’s not clear whether a person in North Carolina who has pleaded guilty to murder can later turn to DNA evidence to win his freedom.

But at least one candidate on the ballot for N.C Supreme Court this fall has staked out a definite position on the issue. Republican Phil Berger Jr. contends the answer is no.

Berger offered that assessment in an April 21 opinion from his seat on the N.C Court of Appeals. A concurrence in State v. Alexander distinguished Berger from two other judges hearing the case.

The dispute dates back to 1992, when the robbery of a Norlina gas station led to the shooting death of a station attendant. A witness identified Kelvin Alphonso Alexander as one of two men who fled the crime scene.

Indicted on first-degree murder and armed robbery charges, Alexander struck a deal with prosecutors. He agreed to plead guilty to second-degree murder, and authorities dropped the robbery charge.

More than 20 years later, Alexander hoped to revisit the case. A 2016 motion sought DNA testing of evidence found at the shooting scene. Alexander presented allegations of a 2004 confession involving another man. No other evidence supported Alexander’s claim. Some testimony at a hearing disputed Alexander’s allegations.

A trial judge denied Alexander’s motion in October 2018. A three-judge Appeals Court panel heard the case last September.

Seven months after that hearing, all three judges agreed that Alexander will get no DNA testing. But Berger split from his colleagues on the legal basis for the decision.

The two other Appeals Court judges agreed that Alexander had not demonstrated that DNA evidence would support his defense. Without meeting that burden, the defendant cannot compel authorities to move forward with testing.

But Judges Chris Dillon and Christopher Brook would not shut the door completely on DNA testing for a defendant who had pleaded guilty.

“[S]uppose that an innocent person is charged with a murder based on the statements of several (mistaken) eyewitnesses,” Dillon wrote in the majority opinion. “It may be that this innocent defendant will plead guilty to second-degree murder rather than risk being found guilty of first-degree murder and sentenced to death.”

“However, suppose further that certain DNA found at the scene conclusively belonged to the actual killer,” Dillon continued. “In that situation, there is a reasonable probability that the outcome would have been different had the results of DNA testing been available to the innocent defendant before he decided to plead guilty. There is a reasonable probability that he would have pleaded not guilty and that the DNA would point to someone who merely looked like him, leading to his acquittal or to the charges being dropped.”

The majority also explained away a relevant passage in state law. It says a defendant can seek DNA testing only if that evidence would likely lead to a more favorable “verdict” in the case. There is no verdict in a case involving a guilty plea.

“But there is a strong counterargument that the General Assembly did not intend for the word ‘verdict’ to be construed in such a strict, legal sense,” Dillon argued. “Rather, the General Assembly intended for ‘verdict”’ to be construed more broadly, to mean ‘resolution,’ ‘judgment,’ or ‘outcome’ in a particular matter. To read ‘verdict’ in a strict, legal sense would lead to an absurd result.”

Berger disagreed.

“[A] defendant who pleads guilty is not entitled to post-conviction DNA testing.” That declaration led Berger’s concurring opinion in the case.

The concurrence notes that Alexander acknowledged in court that he was “in fact guilty” of murder. The defendant entered his plea “freely, voluntarily, and understandingly.” He pleaded guilty rather than entering an Alford plea. That type of plea would have allowed him to maintain his innocence, while acknowledging that he would be likely to lose the case at trial.

Nor does Berger accept his colleagues’ broad reading of a well-defined legal term. “The majority finds no ambiguity in the term ‘verdict’; it simply laments the plain meaning of the statute.”

Berger sees clarity in existing state law. “Use of the term ‘verdict’ obviously has a ‘single, definite, and sensible meaning,’” he wrote. “The majority should be faithful to the plain language of the statute, and not rewrite it with its own definition.”

The defendant Alexander’s pursuit of DNA testing required him to file an affidavit of innocence. To Berger, this action created a clear contradiction. “A defendant who, under oath, admits guilt to a charged offense, cannot thereafter provide a truthful affidavit of innocence,” the judge wrote. “Allowing sham affidavits makes a mockery of the procedure established by the General Assembly.”

Alexander swore under oath in the 1990s that he was guilty of murder. “Twenty-three years later he signed a document and swore that he was innocent. It cannot be both,” Berger concluded.

Judicial candidates face self-imposed limits on the types of issues they can discuss on the campaign trail. It’s unlikely that Berger or any other candidate running for three available N.C. Supreme Court seats this year will spend much time talking about new DNA testing evidence for convicted murderers.

But State v. Alexander offers a strong clue about one candidate’s stance.

Mitch Kokai is senior political analyst for the John Locke Foundation.