Justice Withheld Series

The News & Observer / North Carolina

Presented here as a public-educational service by

Bonnie M. Wells



A Deal That Cut

Joseph Neff, Staff Writer

Porter took the stand and told the jury how Hoffman had confessed to him in the Mecklenburg County jail. He said he and Hoffman had teamed up on some robberies in the past. And he admitted acting alone in crimes that could have put him in prison for several decades: armed robberies, attempted robberies, possession of a firearm by a felon, sale of crack cocaine, credit card theft and credit card fraud.

During closing arguments, the prosecutors argued that Porter should be believed because he had spilled all his crimes at risk to himself. Porter "told you things he hasn't been charged with," Brewer told the jury. "That which he had no deals on, no deals of any sort. Why would he do that and not tell you the truth about what Mr. Hoffman did? There is no reason, no reason."

Honeycutt re-emphasized the point: In exchange for testifying against Hoffman and confessing to uncharged crimes, all Porter could gain was a letter from Honeycutt urging a lesser federal sentence.

Honeycutt did not disclose the nonprosecution deal in federal court or Mecklenburg County. He did not disclose that he said he would write a letter urging a reward for Porter.

Hoffman was sentenced to death.

Several weeks later, a federal judge reduced Porter's federal sentence from the 15- to 20-year range to less than eight years. The judge scheduled that sentence concurrently with a seven- to 20-year sentence in South Carolina.

Porter was not prosecuted for the crimes he admitted to at trial. And after Honeycutt wrote a letter to the reward fund, Porter received several thousand dollars. Brewer, the assistant prosecutor, declined to discuss the case, referring questions to Honeycutt.

Hoffman received a fair trial, Honeycutt said. He said ethical guidelines prevented him from discussing the case and said he's not surprised by the accusations of wrongdoing.

"They always accuse us of lying, cheating and stealing," Honeycutt said. "There are pictures of Abraham Lincoln and naked women in the library. They're just not together. That's the sort of thing we're dealing with here."

The evidence of Porter's treatment by Honeycutt was unearthed by Hoffman's lawyers, Rob Hale of Raleigh and Mike Howell of Durham. Hoffman has always maintained his innocence, Hale said.

"My personal belief, based on a review of all the files and trial testimony, is that he's innocent," Hale said. "There is absolutely no evidence that connects him to the crime."

Hoffman is on death row at Central Prison while his lawyers pursue his appeals.

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The Price And The Pain

For the wrongfully convicted, prosecutorial misconduct means years in prison. For the victims' families and the public, there is the pain and cost of a second trial. For the prosecutors, there are rarely any consequences.

An example: David Hoke, who prosecuted Alan Gell, is now the No. 2 administrator in the state court system. Debra Graves, his co-counsel, is a federal public defender. Both declined to talk about the case.

The law has a remedy when helpful evidence is withheld; the defendant can win a new trial. However, the law doesn't levy any punishment for withholding such evidence.

Punishment would come from the N.C. State Bar, the agency that oversees and disciplines lawyers. But that has happened only twice in the history of the State Bar.

When it comes to misconduct in court, many lawyers see a double standard. Most believe that prosecutors are not disciplined as strictly as defense attorneys, according to Rick Gammon, a Raleigh lawyer who is chairman of the State Bar's Disciplinary Hearing Committee.

"If I, a defense attorney, lie to the court, they will take my license," Gammon said. "History has shown that they are less likely to do that with prosecutors."

The State Bar has suspended or revoked the licenses of hundreds of lawyers over the years, for offenses that include stealing a client's money and failing to do the work promised. In 2002, the bar disciplined 37 lawyers.

The only two times the organization took action against prosecutors for withholding evidence, it put the discipline on hold, saying there would be no penalty if there were no further violations.

In March 2001, the State Bar sanctioned former Guilford County prosecutor Gary B. Goodman for his misbehavior in three murder cases. The bar found that Goodman had withheld exculpatory evidence in two murder cases. In one, a capital case, a judge overturned the conviction of Steven Bishop and ordered a new trial. In a third case, Goodman refused to comply with two court orders to hand over material from his files.

The other lawyer disciplined for withholding evidence is Kingsley C. Dozier, an assistant district attorney in Randolph County.

Shirley Faye Andrews was charged with a 1997 murder; two acquaintances were charged with helping her. Dozier told the acquaintances he would dismiss their charges if they testified against Andrews. Dozier did not commit the deal to writing.

Dozier did not disclose the deals when asked. After Andrews was convicted of second-degree murder, Dozier dropped the charges against the two acquaintances, as promised.

Andrews' lawyer read about the deals in the newspaper and challenged the convictions. Superior Court Judge Catherine Eagles tossed out Andrews' conviction, saying the jury needed to know that the state had given leniency to its star witnesses in return for their testimony.

The State Bar suspended Goodman's and Dozier's licenses for two years but immediately put the suspensions on hold. They could continue to practice law during this warning period as long as they had no further problems.

Goodman, who now works as a defense lawyer, declined to discuss his cases.

Dozier, still an assistant district attorney, said he was unsure whether he had to disclose oral plea deals the same as written deals.

"Clearly I made a mistake, and I own up to it," Dozier said. "I hate I was the test case."

So far, the State Bar has not suspended or revoked a prosecutor's law license, the most severe punishment it can exact. Shame has been the only punishment.

"They don't have to suffer anything except the embarrassment of publicity," Gammon said.


Withheld Information Leads To New Trial For Inmate:

Joseph Neff, Staff Writer

MONROE -- Death row inmate Jonathan Hoffman will receive a new trial after the prosecutor who put him in prison admitted in court Monday that critical evidence had been withheld at Hoffman's 1996 trial.

Hoffman is the sixth North Carolina death row inmate in recent years to win a new trial because prosecutors failed to hand over helpful evidence as required by state law and U.S. Supreme Court rulings.

During a hearing that lasted less than 15 minutes, Union County District Attorney Kenneth Honeycutt said Hoffman and his trial lawyers should have been informed about a federal immunity deal struck with the state's star witness. The trial judge had ordered Honeycutt to disclose all favors and deals.

Honeycutt said neither he nor his assistant, Scott Brewer, knew of the immunity deal the witness struck with a federal prosecutor on the opening day of Hoffman's trial. Honeycutt said he learned about the immunity deal two years after Hoffman was put on death row.

"I assure this court, upon my oath as an officer of the court, no information of that order was ever given to the state of North Carolina," Honeycutt said. "I think due process, fairness and justice require that Mr. Hoffman be given a new trial."

By agreeing to a new trial on the basis of the withheld federal immunity deal, Honeycutt and Brewer, now a District Court judge, avoided discussion of more serious allegations. Hoffman's lawyers have charged in court filings that Honeycutt and Brewer knowingly used false evidence at trial -- and altered documents before submitting them to a judge for review.

"We strongly protest and contest [their] other spurious allegations," Honeycutt said.

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Wording Will Be Crucial

While Hoffman's new trial is not in doubt, the wording of the order to be issued by Superior Court Judge Ervin Spainhour has not been determined. Hoffman's lawyers, Rob Hale of Raleigh and Michael Howell of Durham, have argued against an order stating that Honeycutt and Brewer were unaware of the immunity deal given to their star witness. Honeycutt has asked for that wording.

Spainhour said he would issue his order by Friday.

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

The key witness against Hoffman was one of his cousins, Johnell Porter. Like Hoffman, Porter had a lengthy criminal record.

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

Porter and his lawyer entered into a series of meetings with Honeycutt, Brewer, assistant U.S. Attorney Brian Whisler and various investigators, according to court documents. The key meeting took place Oct. 17, 1996, at the Mecklenburg County jail.

"The meeting lasted one to one and a half hours and Mr. Honeycutt did the vast majority of the talking," Aaron Michel, Porter's lawyer, said in a sworn affidavit. "Mr. Honeycutt said, in so many words, that Mr. Porter could rely on him to reward him for his cooperation."

Honeycutt was under a judge's order to tell Hoffman's lawyers about any concessions or immunity given to Porter. That information would help a jury gauge Porter's truthfulness: Was he telling the truth or was he trading testimony for favors?

At trial, Honeycutt did say that he would write a letter asking for Porter's federal sentence to be reduced.

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Numerous Concessions

But according to Michel's affidavit, there were four additional concessions to Porter: help with reducing his South Carolina sentence; immunity from state charges in Mecklenburg County; immunity from federal charges; and reward money.

Several weeks after Hoffman was sentenced to death, a federal judge reduced Porter's federal sentence from the 20-year range to less than eight years. The judge ordered it to run at the same time as Porter's seven- to 20-year sentence in South Carolina. And Porter was not prosecuted for crimes he admitted to at Hoffman's trial: a string of robberies, attempted robberies, theft, fraud and drug charges that could have imprisoned him for decades.

The jury that sentenced Hoffman to death knew nothing about Porter's immunity deals with federal and Mecklenburg County officials or several thousand dollars in reward money that Honeycutt helped Porter obtain.

Whisler, the former assistant U.S. attorney, couldn't be reached for comment Monday about whether Honeycutt knew of the federal plea deal.

Hale, one of Hoffman's lawyers on appeals, said he stands by his evidence that shows Honeycutt knew of the concessions and should have disclosed them.

Honeycutt "said our allegations are spurious, but he's never submitted any evidence to disprove it," Hale said. "We're glad that Mr. Hoffman has a new trial."

Honeycutt was not pleased with the latest twist in the Hoffman case, which was the subject of a lengthy News & Observer article in November. He declined to answer questions and cursed a reporter and The News & Observer.

Twenty minutes later, Honeycutt approached the reporter and apologized, saying his outburst was unprofessional and out of character.

Staff writer Joseph Neff can be reached at 829-4516 or jneff@newsobserver.com.


Former State Lawyers Cleared

2 Prosecutors Were Accused Of Lying

By Joseph Neff, Staff Writer

* In September 2004, prosecutors David Hoke and Debra Graves received a written reprimand for withholding evidence of innocence from Alan Gell during a 1998 trial. Gell, who spent nine years in prison -- half on death row -- was acquitted during a retrial in 2004. Hoke is an administrator in the court system; Graves is a federal public defender.

* In March 2001, the bar sanctioned former Guilford County prosecutor Gary B. Goodman for withholding exculpatory evidence in two murder cases and refusing to comply with court orders to hand over material from his file in a third case.

* In January 2002, Kingsley C. Dozier, an assistant district attorney in Randolph County, was disciplined for failing to disclose a deal made with a witness in a murder trial, despite being asked if he had made any such deal.

The bar suspended Goodman's and Dozier's licenses for two years but immediately put the suspensions on hold. They could continue to practice law during this warning period as long as they had no further problems.

The panel responsible for disciplining North Carolina lawyers dismissed charges of misconduct against two former Union County prosecutors Friday, saying defense lawyers in the case did not file a complaint in time.

The State Bar had charged Kenneth Honeycutt and Scott Brewer with lying, cheating and withholding evidence in a 1996 murder trial that ended in a death sentence. Honeycutt, the former District Attorney in Union County, has since retired to private practice; Brewer is now a District Court judge in Richmond County.

Friday's ruling did not address whether Honeycutt and Brewer had committed misconduct. Instead, it hinged on interpreting the state bar's rule on deadlines for filing grievances against lawyers.

Lane Williamson, a Charlotte lawyer who chaired the disciplinary panel hearing the case, called the rule "hopelessly ambiguous" and suggested strongly that the rules be rewritten.

The case stems from the trial of Jonathan Hoffman, who was sentenced to death for the robbery and murder of Danny Cook, a jewelry store owner in Marshville, southeast of Charlotte. Hoffman's case was the subject of a November 2003 article in The News & Observer.

In April 2004, Hoffman won a new trial after 7 1/2 years on death row. 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. The bar said that Honeycutt agreed to reward Porter for his testimony at trial with immunity from state and federal prosecutions, money and a reduction in his federal sentence.

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A Shady Deal?

Honeycutt delivered on his promise, according to the 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. Porter said in a recent interview that he made up the testimony about Hoffman in order to get the deal.

The bar had also charged that Honeycutt and Brewer hid the deal from the jury, the trial judge and Hoffman's lawyers -- and that they altered documents concerning the deal when submitting material to a judge.

State bar counsel Carolin Bakewell had argued that the one-year clock should start ticking on the day the bar found out about the alleged misconduct -- when The N&O's article was published in November 2003. On its own initiative, the bar opened a grievance file on Honeycutt and Brewer soon afterward.

The panel chose to adopt Honeycutt and Brewer's interpretation of the rule. They argued that the complaint had to be filed by November 2002, six years after the end of Hoffman's trial, when the alleged misconduct took place, or the complaint had to be filed one year after Hoffman and his lawyers learned about the alleged violation. The panel determined that to be February 2002, one year after Hoffman's lawyer filed documents in court alleging withheld evidence.

Mike Howell, one of Hoffman's lawyers, said he was disappointed by the ruling.

"It is one of the worst cases of prosecutorial misconduct I've ever heard of," Howell said. "They lied to try to put a man to death, and then lied to cover it up, and they still won't admit it."

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Defense Explains Delay

Howell said he and his co-counsel, Rob Hale of Raleigh, didn't have enough evidence to file a grievance until late summer 2003, after they found witnesses and documents to corroborate the charges of prosecutorial misconduct.

Howell said they held off complaining until May 2004, after Honeycutt agreed that Hoffman deserved a new trial. Filing a grievance earlier would have put Honeycutt on the defensive, and the prosecutor would never have agreed to a new trial, Howell said.

"A grievance was not in Mr. Hoffman's interest before then," Howell said. "Still, I'm glad Jonathan Hoffman is alive. He might be dead if we didn't find the evidence."

Honeycutt, Brewer and their lawyers did not return telephone calls for comment Friday.

Williamson, the panel's chairman, asked the state bar to submit a memo on the deadline issue next week, before the panel issues its written order, indicating a slight possibility that the panel could change the ruling.

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

Jneff@newsobserver.com


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CORRECTION

A headline Saturday on Page 1B inaccurately described the resolution of a complaint of misconduct against two former Union County prosecutors in a 1996 death penalty case. The charges were dismissed because the complaint was not filed in time; the State Bar panel reviewing the case did not address the merits of the case.

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