ALAN GELL IS AQUITTED
David Hoke, center, and Debra Graves, whose prosecution of Alan Gell is under scrutiny, confer with lawyer Jim Maxwell at their State Bar hearing.
Published: Sep 25, 2004
Modified: Sep 30, 2004 11:16 AM
Reprimands in Gell case
JOSEPH NEFF, Staff Writer
RALEIGH -- The
N.C. State Bar on Friday reprimanded two former assistant attorney generals
for withholding evidence at trial that pointed to the innocence of former
death row inmate Alan Gell.
A three-member Bar panel concluded that David Hoke and Debra Graves broke
three rules of the State Bar:
* They failed to turn over evidence favorable to Gell.
* They failed to supervise the conduct of their chief investigator.
* They brought the judicial system into disrepute by their conduct.
The panel then imposed the least discipline possible in this case, a reprimand
-- a formal written scolding. Panel chairman Steven Culbreth of
Wilmington said the members thought Hoke and Graves did not act intentionally.
The panel's options for more severe punishment included ordering suspension
of Hoke's and Graves' licenses to practice law or disbarment. The choice
of the reprimand, however, was consistent with previous cases involving
prosecutorial misconduct that was not found to be deliberate.
"This panel believes this was a mistake," Culbreth said. "But
this happened in a murder case, to a man on death row."
Gell spent nine years behind bars, half on death row, for the 1995 murder
of Allen Ray Jenkins, a retired truck driver, in Jenkins' home in Aulander,
Bertie County. Gell won a new trial in December 2002 because of the withheld
evidence -- statements of people who saw Jenkins alive after Gell had
been jailed for vehicle theft, and a taped conversation of the star witness
saying she had to "make up a story" for police. Gell's retrial
in February resulted in a quick acquittal.
Hoke and Graves sat impassively as the panel cited them for misconduct.
They declined to speak to reporters afterward, as they have since the
case came to light in 2002.
"We are finally glad that they had an opportunity in public to tell
their story, and they had a full hearing by a panel that took a great
interest in the case," said their lawyer, James Maxwell of Durham.
Maxwell started his defense by admitting that Hoke and Graves made a mistake,
but argued that it was unintentional. Lawyers from the State Bar did not
present evidence or contend that Hoke and Graves intentionally broke rules.
"It is a novel case where you are asked to impose discipline for
an unintentional, neglectful, no controversy, honest mistake," Maxwell
said.
Maxwell also produced a succession of distinguished character witnesses
for Hoke and Graves: active and retired judges from the state Supreme
Court and Court of Appeals, federal and state trial judges, the former
director of the State Bureau Investigation and the federal public defender.
Graves now works as an assistant federal public defender; Hoke is the
No. 2 administrator in the state court system.
Hoke and Graves "are not the type of individuals who ought to be
poster children for what may be wrong with the prosecutorial system in
our state, if there is anything wrong with it," Maxwell said.
One trial judge, Superior Court Judge Erwin Spainhour of Cabarrus County,
said the ethics charges against Hoke were the talk among the state's 105
Superior Court judges. Judges know Hoke because he sets their court schedules
and determines when they will sit in court at home or travel to other
counties.
"Everyone is appalled that he has to go through this," Spainhour
testified Friday.
Crowd divided
The crowd at the hearing room was split evenly between supporters of Hoke
and Graves and supporters of Gell.
Gell and his supporters criticized the State Bar for what they characterized
as an anemic prosecution: The bar called no witnesses, and did not contact
Gell or any of his defense lawyers from two trials, including Maynard
Harrell of Plymouth, who had specifically asked for the statements of
witnesses who saw Jenkins alive after Gell had been jailed.
In addition, the Bar did not contact then-District Attorney David Beard,
who handed off the case to Hoke and the Attorney General's Office because
of a conflict of interest that arose several months after Gell was indicted
in 1995.
David Johnson, the Bar's lead lawyer at the hearing, said all the evidence
he needed was in the case files, and in the transcripts of sworn question-and-answer
sessions he conducted with Hoke and Graves.
Argument disputed
Gell, who attended Friday's proceedings, disputed Maxwell's argument that
Hoke and Graves should not be punished because they didn't intend to break
the rules.
"They're arguing it's OK to run a stop sign and kill someone because
you didn't see the stop sign," Gell said. "That's what they're
saying: They didn't see the witness statements."
Hoke obtained the complete case file early in 1996. He testified that
he either didn't read or didn't appreciate the significance of the withheld
witness statements. When a trial judge specifically ordered the statements
produced, Hoke said he relied on his chief investigator, SBI agent Dwight
Ransome, to locate the documents.
Gell remained skeptical of this explanation, especially after hearing
the character witnesses.
"If they are as intelligent and as good as these witnesses testified
today, why didn't they read their file?" Gell asked.
Gell also took issue with the panel's finding that Hoke and Graves have
shown remorse.
"I haven't ever heard from them, and they won't even look at me,"
he said. "They slapped high fives and hugged each other when I was
sentenced to death. Is that professional conduct?"
Staff writer Joseph Neff can be reached at 829-4516 or jneff@newsobserver.com.
© Copyright 2004, The News & Observer Publishing Company,
a subsidiary of The McClatchy Company
Lapse
called 'honest mistake'
Gell trial prompts State Bar hearing
By JOSEPH NEFF, Staff Writer
RALEIGH -- The prosecutors who helped put Alan Gell on death row testified
Thursday that they made an "honest mistake" when they withheld
evidence that pointed to Gell's innocence.
David Hoke and Debra Graves face charges before the State Bar that they
withheld evidence and made false statements to a judge at Gell's 1998
murder trial.
Gell won a new trial in 2002 when the withheld evidence became public.
The retrial took place in February this year. Gell was quickly acquitted.
Gell was aided by the evidence he didn't have at the first trial -- statements
of people who saw the victim, Allen Ray Jenkins, alive after Gell had
been jailed, and a taped conversation of the star witness saying she had
to "make up a story" for police.
"It was an honest mistake on our part," Hoke said in sworn testimony
read at the hearing Thursday. "Nobody is more sorry about that than
Debra and I."
The State Bar hearing resembles a civil trial. The three-person panel
hearing the case could hand down punishment ranging from a reprimand to
taking away Hoke's and Graves' law licenses. The proceeding is expected
to conclude today.
The State Bar's lawyers did not call witnesses Thursday. Instead, they
read excerpts from testimony they took from Hoke and Graves in recent
weeks.
The case started with the April 1995 slaying of Jenkins, a retired truck
driver, in his home in Aulander in Bertie County.
Two 15-year-old girls admitted to a role in the crime and identified Gell
as the triggerman.
Hoke was assigned the case in February 1996 when the attorney general's
office took over the case from David Beard, the local district attorney.
Beard was compelled to withdraw from the case when one of Gell's lawyers
accepted a job on his staff.
Hoke first received a copy of the case file from Beard. Hoke then requested
a copy of the complete SBI file, which he received in May 1996.
The SBI file contained the statements of the 17 witnesses, who said they
had seen Jenkins alive after the only date Gell could have committed the
killing. Hoke said he never looked through it. He said he assumed the
new files duplicated what he had already received from Beard and that
he never saw the statements when reading Beard's files.
Graves joined the case in January 1997.
As the trial began in February 1998, Hoke and Graves had not handed over
any evidence beneficial to the defense to Gell's lawyers, as required
by law. Hoke said he thought Gell's lawyers would have gotten all they
needed from Beard's files.
At the start of the trial, Gell's lawyers asked for statements from witnesses
who had seen Jenkins alive after Gell was jailed. The judge ordered Hoke
and Graves to hand over all such statements.
The two prosecutors turned to the lead investigator, SBI agent Dwight
Ransome.
Ransome produced statements from nine people who he said had changed their
stories in a second round of interviews.
'This is all of them'
Hoke said he never looked through the files himself. It was more efficient
to rely on Ransome, who had a tremendous grasp of the files, Hoke said.
When another statement surfaced two days later, Hoke said he again asked
Ransome if there were any more witness statements.
"He forcefully said, 'David, this is all of them,' " Hoke testified.
With hindsight, Graves admitted that she was operating with tunnel vision
at that critical point in the trial.
"I couldn't think outside the little box I was in," she said
in her previous testimony to the Bar. "Maybe I just put the blinders
on. ... When you're an advocate for one side, you're truly an advocate
for one side. You don't see it, or maybe that's a shortcoming that I have."
Hoke, for his part, pointed to his reliance on Beard's open-file policy
and to his trust in Ransome.
"We wanted them to have everything we had," Hoke said. "We
would never hide anything away from them."
Hoke acknowledged that he and Graves intentionally withheld a secretly
taped phone conversation of the state's two main witnesses, Crystal Morris
and Shanna Hall, both 15 at the time. On the tape, Morris rehearses her
story with her boyfriend and talks about how she had to "make up
a story" for police.
The taped conversation did not help to prove Gell's innocence, Hoke said,
so he didn't give it to Gell's lawyers.
The U.S. Supreme Court has ruled that prosecutors must hand over any evidence
beneficial to the defense as well as evidence that could undermine state
witnesses. Jurors at Gell's second trial said the withheld evidence was
powerful in acquitting Gell.
David Johnson, a State Bar lawyer, reminded Hoke that he had been in a
similar situation before. In a 1993 murder trial in Halifax County, Superior
Court Judge Howard Greeson admonished Hoke and a colleague for not producing
police statements that could have undermined a state witness. Greeson
considered dismissing the case but instead gave Hoke a brief lecture,
according to a transcript of the trial.
"I don't know how long you will stay in the business of prosecution,
Mr. Assistant Attorney General," Greeson said, "but you will
always be able to say that you came within a little bit of having a first-degree
murder case ripped out from under you."
The State Bar panel also heard from character witnesses praising Hoke
and Graves for their integrity and professional ethics, including former
SBI director Jim Coman, former State Supreme Court Justice Bob Orr and
Chief Judge of the State Court of Appeals John Martin.Staff writer Joseph
Neff can be reached at 829-4516 or jneff@newsobserver.com.
Tuesday, February
17, 2004 6:11AM EST
Dream team defends Gell in murder retrial
Lawyers level odds in murder retrial
By JOSEPH NEFF, Staff Writer
WINDSOR -- On the surface, the retrial of Alan Gell looks a lot like the
1998 trial that sent him to death row.
It's the same peculiar Bertie County courtroom, where the jury sits in
the first two rows of the courtroom, facing the judge, and where the prosecutors
and defense lawyers sit at tables facing each other.
The state's team looks a lot like the one that put Gell on death row:
two prosecutors from the Attorney General's Office, backed by agents from
the State Bureau of Investigation and its crime lab.
But the defense team has changed drastically.
At Gell's first trial, his two court-appointed lawyers scrambled to put
on a last-minute defense against prosecutors who withheld evidence that
could have acquitted Gell.
This time around, Gell has a North Carolina legal dream team.
"The playing field is hardly ever level," said lead attorney
Joseph Cheshire V of Raleigh. "This time it's close."
Lawyers are to make their closing arguments to the jury today after the
winter storm canceled court Monday.
Cheshire is one of the state's highest-profile defense lawyers. Gell also
has Jim Cooney, a noted defense attorney and partner in the state's biggest
law firm, Womble Carlyle Sandridge & Rice. Also at the defense table
is Mary Pollard, who left Womble Carlyle to practice death penalty work
full time.
"What Mary and Jim and I have tried to do is make sure Alan Gell
gets as good a defense as a rich person," Cheshire said.
At Gell's first trial, his lawyers hired no expert witnesses to rebut
or analyze the state's case. They never asked a forensic pathologist to
determine when Allen Ray Jenkins died.
Time of death is crucial. Prosecutors contend Gell murdered Jenkins on
April 3, 1995. But Gell's new lawyers say Jenkins wasn't killed until
April 8 at the earliest. For that date, Gell has a rock-solid alibi --
he was out of state or in jail from April 4 until after Jenkins' body
was found.
Interpreting the clues at the crime scene was essential because the state's
main witness, Crystal Morris, has given widely differing accounts. A crime
scene expert could have analyzed blood spatter and the pattern of the
shotgun pellets to determine how Jenkins was shot and where the shooter
was standing, but none was hired.
For this trial, Gell's team consulted a parade of experts: a forensic
entomologist who studied the maggots at the crime scene to determine the
time of death; a forensic anthropologist who studies human decomposition;
two engineers to model the temperatures in Jenkins' house; and a crime
scene expert from the Connecticut State Forensic Science Laboratory.
The state has its own expert witnesses from the SBI, who testify about
blood spatter or fingerprints or DNA or firearms. They are on the state
payroll, unlike the defense expert witnesses, who bill for their time.
The state's Office of Indigent Services has paid about a third of the
expert fees submitted by Gell's lawyers. Cooney said that Womble Carlyle
will pay the difference.
Cooney is handling the trial for free. He estimates that he and other
Womble Carlyle lawyers and staff have put in 1,000 hours for the trial.
Womble Carlyle would normally bill about $300,000 for that work.
"When we took the case, we told Alan and his mother we'd do what's
necessary," he said.
Cheshire is working for $85 an hour, a fraction of what wealthy clients
would pay him. Cheshire is also using an associate, Brad Bannon, who will
not be paid by the state. Cheshire estimates he will lose between $25,000
and $30,000 on this case.
"This is a much more vigorous defense," said Tye Hunter, the
director of the Office of Indigent Services. "The defense has taken
the time and money to challenge the state's case."
According to Hunter's records, Cooney, Pollard and their investigators
spent more than 1,000 hours just winning Gell a new trial. Cheshire and
Pollard have not submitted invoices yet for the pretrial preparation,
let alone the trial. They will each total hundreds of hours in pretrial
work.
By contrast, Chuck Moore of Ahoskie worked on Gell's case from Gell's
arrest in 1995 through his trial in 1998. According to court records,
Moore billed a total of 85 hours on the case before it went to trial.Staff
writer Joseph Neff can be reached at 829-4516 or jneff@newsobserver.com.
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