Justice Withheld Series

News & Observer / North Carolina

Presented here as a public-educational service by

Bonnie M. Wells

Cheating Prosecutors Ruin Lives,

Go Unpunished

By Joseph Neff, Staff Writer

After Alan Gell got off death row last year because state prosecutors withheld evidence of his innocence, Attorney General Roy Cooper said the actions were unintentional. The misconduct was described as unusual, perhaps unique.

Yet prosecutorial misconduct has undone at least four other North Carolina death row sentences in recent years, and several similar cases are grinding their way through the appeals process.

In these cases where judges ordered new trials, prosecutors broke the law by withholding evidence helpful to defendants, such as witness statements or deals cut with jailhouse informants. The prosecutors have received no significant punishment.

Death row inmates now have complete access to the files of prosecutors and police because of a little-noticed 1996 change in state law that has thrown light into a dark corner of the criminal justice system.

By seeing the entire law enforcement files, convicts and their lawyers can determine whether prosecutors, at trial, turned over all evidence helpful to the defendants, as the U.S. Supreme Court has required since 1963.

In several cases, they did not. Inmates affected by the allegations of misconduct include:

* Gell, who was sentenced to death in 1998 for the murder of a retired truck driver in Bertie County. Late last year, a Superior Court judge ruled that David Hoke and Debra Graves of the state Attorney General's Office withheld witness statements indicating that the murder occurred while Gell was in jail. They also failed to reveal a tape recording of the state's star witness saying she had "to make up a story" to tell police.

* Jerry Lee Hamilton, who was sentenced to death in 1997 for the murder of a Richmond County woman raped and stabbed to death. He won a new trial in April because prosecutors and police withheld a document undermining the credibility of the state's sole witness, Hamilton's nephew, who had initially confessed to committing the murder alone.

* Jonathan Hoffman, whose lawyers have filed an appeal that shows that prosecutors in Union County hid deals with their star witness. The witness's testimony cut his prison time by at least 15 years and put several thousand dollars into his pocket.

* Charles Munsey of Wilkesboro, who won a new trial in 1999. In that case, Wilkes County District Attorney Randy Lyon withheld evidence that the state's star witness, a jailhouse informant, was never in the prison where Munsey supposedly confessed to him.

Former Superior Court Judge Tom Ross of Greensboro, who tossed out Munsey's conviction, said the case changed his view of the justice system.

"From my perspective as a lawyer and judge, the adversarial system has gotten to the point where winning is more important than justice," said Ross, who also worked as the court system's top administrator and now runs the Z. Smith Reynolds Foundation.

"There is an extra responsibility on the state to see that justice is done," he said. "You aren't representing victims of the crime but the people of the state, and the people are seeking justice."

Most prosecutors do follow the law and hand over evidence that might be helpful to the defense before trial. Many, such as Wake's Colon Willoughby, practice "open file discovery" and let the defense see all information, not just the evidence helpful to the defense.

But open file discovery is optional at the trial stage. State law and the U.S. Supreme Court place the burden on prosecutors to turn over what is required. Defendants have no way of knowing whether they're getting all evidence that might benefit them.

Only after convictions in death-penalty cases does state law require that defendants get the full files. Since the law was changed in 1996, judges have thrown out at least five death penalty convictions in which helpful evidence was withheld; in North Carolina, 198 people are on death row.

Death row inmates make up less than 1 percent of the prison population, meaning that the vast majority of inmates do not have automatic review of law enforcement files. Would inmates such as Gell or Hamilton have found the helpful evidence if a jury had sentenced them to life in prison instead of death?

"No," said state Sen. Wib Gulley, a Durham Democrat, a skeptic about the death penalty and author of the 1996 change. "We've avoided some serious miscarriages of justice in capital cases, but it raises the question: Why we don't have this approach in noncapital cases as well."

Legal Standard Set

The U.S. Supreme Court established the defendants' right of "exculpatory evidence" in 1963; prosecutors must hand over evidence that would help defendants prove their innocence, lessen their punishment, or undercut the credibility of state witnesses.

North Carolina's 1996 law went beyond that standard by opening all law enforcement files to death row inmates. The law was passed during a push to streamline the death-penalty process.

Defense lawyers argued that prosecutors and police were causing delays of executions because getting files or evidence from them could take years. Giving death row inmates the law enforcement files at the start of the appeals process, they contended, would eliminate some delays.

Gulley inserted that change into the bill. The General Assembly agreed, despite the vigorous objection of Mike Easley, then the attorney general and now governor.

Easley's office continued to fight the law even after it was passed. Soon after, Special Deputy Attorney General Barry McNeill -- the state's leading death-penalty lawyer -- discussed the new law at a meeting of prosecutors in Asheville. Defendants had not been having problems obtaining evidence helpful to them, McNeill contended. There was no need to open all law enforcement files, and his office would help prosecutors ward off attempts to do so, he said.

"In view of the problems created by [the new law], my office has taken an aggressive stance against such discovery requests and motions by" death row inmates, McNeill said.

The N.C. Supreme Court overruled that stance in 1998. The court said prosecutors and police must hand over their "complete files."

North Carolina may be the only state to open all law enforcement files during a death-penalty appeal, years after the trial. But before trial, experts say, North Carolina is among the most restrictive states for sharing evidence.

Some other states order prosecutors to provide witness statements before trial. In Florida, defendants have access to law enforcement files before trial, and defense lawyers can even question prosecution witnesses under oath before trial.

A Kick From His Kin

Under any state's standard, Jonathan Hoffman should have known more during his trial about the favors prosecutors were giving their star witness.

On Nov. 27, 1995, a masked man with a sawed-off shotgun entered Cook's Discount Jewelry in Marshville, about 30 miles southeast of Charlotte. The robber exchanged fire with the owner, Danny Cook, who was shot in the chest and killed. The robber took Cook's gun and jewelry.

Hoffman is on death row for the murder, put there by the testimony of his cousin.

The cousin, Johnell Porter, was essential to the conviction, and Union County District Attorney Kenneth Honeycutt was the first to admit it.

In letters written after the trial, Honeycutt wrote that the case was circumstantial. The witness identifications of the robber were weak. Before Hoffman's cousin took the stand, the case hung on the testimony of a 90-year-old man whose "roots" or "spells" were said to protect clients from arrest and other misfortunes.

"Porter made a forceful and compelling witness," Honeycutt wrote in a November 1996 letter to federal prosecutors. "A conviction in this case would probably not have been possible but for Johnell Porter's testimony."

Porter benefited from his testimony. Under a deal arranged by Honeycutt, Porter's prison sentences were reduced by at least 15 years, he was not prosecuted for at least a dozen serious crimes, and he pocketed several thousand dollars in rewards, according to recently filed court papers.

And, the court papers show, Honeycutt hid the deal from Hoffman's lawyers, the jury and the trial judge.

Under the Supreme Court standard, prosecutors must disclose any concessions or immunity they give to their witnesses. That information allows a jury to assess truthfulness: Is the witness trading testimony for favors?

In April 1996, Porter pleaded guilty in federal court to an October 1995 bank robbery in Huntersville, near Charlotte. He expected a sentence of six to eight years. But a federal probation officer discovered that Porter had avoided serving a seven- to 20- year sentence in South Carolina. Instead of looking at six to eight years, Porter, 45, was looking at 22 to 40 years behind bars.

A flurry of meetings ensued involving Porter; his lawyer, Aaron Michel; Honeycutt and his assistant, Scott Brewer; Assistant U.S. Attorney Brian Whisler; and various investigators. The culmination was a meeting Oct. 17, 1996, at the Mecklenburg County jail with Porter, Honeycutt, Brewer, Whisler and investigators, Michel said in a sworn affidavit.

"The meeting lasted one to one and one half-hours and Mr. Honeycutt did the vast majority of the talking. Mr. Honeycutt said, in so many words, that Mr. Porter could rely on them to reward him for his cooperation."

The reward had five parts, according to Michel: a reduced federal sentence, help for Porter to reduce his South Carolina sentence, reward money, immunity from other state charges, and immunity from other federal charges. Porter would not be prosecuted in federal or state court for any past crimes.

One week before this meeting, on Oct. 10, there was a pretrial hearing where Hoffman's lawyers had asked for any concessions or deals struck with state witnesses. Honeycutt said there was none yet.

"If there is one, disclose it to them so they will have that information," Superior Court Judge William Helms told Honeycutt at the hearing.

At trial, Honeycutt disclosed only one of five parts of the deal as outlined by Michel's affidavit: the letter Honeycutt promised to write asking that Porter's federal sentence be reduced.

On the day that Porter testified, Judge Helms ordered Honeycutt to hand over any statements Porter had made.

Honeycutt produced several documents, which Helms read during lunch. Satisfied there was no exculpatory or helpful evidence, he put the documents under seal in the case file.

What Helms did not know was that some of the documents had been altered. The records of an Oct. 5 jailhouse meeting, for example, contained a copy of Honeycutt's notes rather than the original, and several items were missing. The original notes, later discovered in Honeycutt's files by Hoffman's lawyers, said "Meet with US Att. and get some concessions made to Porter in the event he testifies for us."

Ex-Prosecutors Fight Sanctions

By Joseph Neff, Staff Writer

The State Bar is asked to dismiss charges that allege prosecutorial misbehavior in a '96 trial

Honeycutt says a judge has already held him blameless.

Two former prosecutors have asked the N.C. State Bar to dismiss charges that they lied and withheld evidence in a 1996 murder trial that ended with a penalty of death.

The two prosecutors -- Kenneth Honeycutt, the former district attorney in Union County, and Scott Brewer, now a District Court judge in Rockingham -- argued that the State Bar has no business pursuing the case because a Superior Court judge already held them blameless on several of the charges.

Honeycutt also explained why he removed a critical passage from a document he submitted to the trial judge: The missing portion was a part of a constantly changing "to-do list," Honeycutt said.

If Honeycutt and Brewer are found guilty, punishment could range from a written reprimand to the loss of their law licenses.

The charges stem from the case of Jonathan Hoffman, who was sentenced to death in 1996 in the robbery and murder of Danny Cook, a jewelry store owner in Marshville, southeast of Charlotte.

The key evidence against Hoffman was provided by a cousin, Johnell Porter, who was facing long prison terms in South Carolina and in federal prison for bank robbery.

According to the State Bar, Honeycutt agreed to reward Porter for his testimony at trial with immunity from state and federal prosecutions, money, a reduction in his federal sentence and help with a pending South Carolina sentence.

Honeycutt delivered on his promise, according to court papers and the bar's complaint. Porter's prison sentences were reduced by at least 15 years, he was not prosecuted for at least a dozen serious crimes in Charlotte, and he pocketed several thousand dollars in reward money.

Hoffman's attorneys alleged that Honeycutt and Brewer withheld information on the deal, even though case law and a judge's order required them to share the evidence.

In April 2004, Superior Court Judge W. Erwin Spainhour ordered a new trial because the federal immunity deal had been withheld. Hoffman's attorneys could have used the deal to undercut Porter's credibility on the stand.

Honeycutt and Brewer did not seek or participate in the federal immunity agreement, Spainhour ruled, and didn't know anything about it, a finding the two brandished in their official responses to the bar.

"The State Bar should not be allowed to file an action which seeks to either establish facts different than those already found by Judge Spainhour or impose discipline for matters that Judge Spainhour found were either unknown to or not the fault of Mr. Honeycutt," Honeycutt said.

Honeycutt also criticized what he called "a number of unsubstantiated, untrue and misleading allegations" in his reply.

The Bar has charged that Honeycutt had deleted information favorable to Hoffman from a document that prosecutors submitted to the trial judge. On the day that Porter testified, the judge ordered Honeycutt to give him any statements Porter had made. Honeycutt handed over several pages. Satisfied there was no evidence favorable to Hoffman, the judge sealed the documents.

The judge did not know that some of the documents had been changed. The records of an Oct. 5 jailhouse meeting, for example, contained a copy of Honeycutt's notes rather than the original, and several items were missing. The original notes, discovered years later in Honeycutt's files by Hoffman's attorneys, said, "Meet with US Att. and get some concessions made to Porter in the event he testifies for us."

The State Bar will likely argue that the deleted portions indicate the prosecutors knew about the federal immunity deal. Honeycutt, however, said the deletion had been in a "to-do list" that he changed during the trial.

"As these were a to do list and work product, this list could [be] and was changed at various times before and during the trial as an item was no longer needed or new items were added," Honeycutt's reply said. "Various copies of this to do list might have been printed at different points in time."

Attorneys for Honeycutt and Brewer did not return phone calls.

It's unclear what role, if any, Porter will play in the Bar hearing, which is scheduled for March.

Porter had testified at trial that Hoffman had admitted the robbery and murder when the two were jailed on the same cellblock in Charlotte. Porter,released from prison in September, said in a recent interview that Hoffman had never told him anything in jail about the robbery.

Porter said he agreed to testify because he believed Hoffman had stolen $20,000 from him while Porter was jailed. Porter also believed that Hoffman had ratted him out for an October 1995 bank robbery.

"He killed my dog, and they wanted me to kill his cat," Porter said. "They let me improvise on the stand."

Hoffman's new trial is expected next year.

Staff writer Joseph Neff can be reached at 829-4516 or


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