Justice Withheld Series

The News & Observer / North Carolina

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Bonnie M. Wells

N.C. Prosecutors Stifled Evidence

By Joseph Neff, Staff Writer

In September, the state's senior prosecutor was in an unusual place: the witness stand. And what he said has caused quite a stir among lawyers around the state.

Jim Coman said under oath that the state Attorney General's Office had a policy of withholding a certain type of evidence helpful to defendants. As he described it, the policy would violate 30 years of U.S. Supreme Court rulings.

Coman now says, however, that his testimony was incorrect. Even so, one prominent law professor said that the prosecutor's September statements may open the door to challenges of numerous convictions in cases tried by the attorney general's staff.

Coman was testifying at the State Bar about the character of two proteges, David Hoke and Debra Graves. They were charged with breaking ethical rules by withholding favorable evidence from former death row inmate Alan Gell. The evidence included a taped telephone call in which the state's star witness said she had to "make up a story" for police.

Hoke and Graves didn't have to turn over the tape, Coman said, because it wasn't "exculpatory"; it didn't prove Gell's innocence.

The tape could have been used to "impeach" the witness, or undercut her credibility, Coman acknowledged. But he said case law didn't require impeachment evidence to be turned over to the defense.

Handing over impeachment evidence has been law since a 1972 U.S. Supreme Court decision. But Coman went on to say it wasn't just his opinion, it was the policy of the Attorney General's Office.

An Odd Policy

"The prevailing view when I was there the first time, both under Judge [Lacy] Thornburg and Attorney General [Mike] Easley and now Governor Easley," Coman said, "was that just because something embarrassed a witness or might be impeaching to them, did not in and of itself, unless it went to being exculpatory, was not something we had to turn over."

In a recent interview, however, Coman backed away from that description of policy and said his September statements were not correct -- not on the case law, and not on the attorney general's policy.

"I was not very precise," he said. "My use of the term 'impeaching' or 'impeachment' ... would have not been accurate."

It's impossible to know how many times the Attorney General's Office has failed to turn over impeachment evidence, because the material would be in closed files. Coman and Attorney General Roy Cooper said that the department's policy was to obey the law, and that there was no written policy on impeachment evidence.

But in several known cases, lawyers for the attorney general did not hand over impeachment evidence or resisted opening files as the law required:

* In 1993, Hoke, the lead prosecutor in Gell's 1998 trial, was admonished by a trial judge for not turning over impeachment evidence at a murder trial. Hoke told the judge he didn't turn it over because it was "impeachment evidence, not exculpatory evidence."

Questioned by the State Bar under oath, Hoke testified that leading up to Gell's first trial, he thought the tape was impeaching. He did not hand over the tape, he said, because he didn't know impeachment evidence must be produced, despite the previous courtroom lecture.

* While Gell was on death row, the attorney general continued to fight his bid for a new trial long after the withheld evidence surfaced. Those claims of withheld evidence had no merit, the attorney general argued, and Gell should proceed to execution.

* Charles Munsey got off death row in 1999 because the Wilkes County prosecutor withheld impeachment evidence that the state's star witness, a jailhouse informant, was never in Central Prison, where Munsey supposedly confessed to him.

During the trial, a deputy attorney general, Dale Talbert, advised the local prosecutor that prison officials said it was nearly impossible for the witness to have been in Central. Talbert told the local district attorney that the prison officials said it was virtually impossible that he was at Central because there was no record showing that.

* From 1996 to 1998, the Attorney General's Office vehemently fought a new law giving death row inmates access to the complete case files of prosecutors and police. Special Deputy Attorney General Barry McNeill -- the state's leading death-penalty lawyer -- said at a statewide meeting of prosecutors that there was no need to open all law enforcement files, and that his office would help prosecutors ward off attempts to do so.

The state Supreme Court upheld the law, leading to new trials for at least six death row inmates.

Bad News For AG?

Rich Rosen, a law professor at UNC-Chapel Hill and a death-penalty opponent, predicted that Coman's testimony would cause trouble for the Attorney General's Office. "We've got a statement under oath," Rosen said. "I think anyone prosecuted by them in the last 20 years has a right to ask to reopen their files."

Beginning in 1963, the U.S. Supreme Court has repeatedly ruled that prosecutors must hand over evidence that is favorable to defendants. That first decision involved evidence of the defendant's innocence. Later decisions included impeachment evidence.

Gell was convicted in 1998 of murdering a retired truck driver in Bertie County. The withheld evidence led to a new trial; in February a jury quickly acquitted him.

Among other evidence, prosecutors withheld the taped phone conversation, in which the state's alleged eyewitness to the murder talked about how she had to "make up a story" for police, evidence that she was prone to lie to law enforcement.

A Formidable Witness

Once Gell won a new trial, Coman became deeply familiar with the case. He led the reinvestigation and advised Attorney General Roy Cooper to retry Gell. He was the lead prosecutor at the retrial.

When Hoke and Graves were first investigated for misconduct, Coman filed a sworn affidavit with the State Bar in support of them. In that written statement, he said he wouldn't have given the evidence to the defense, either.

Coman was a formidable witness: a career prosecutor, former head of the State Bureau of Investigation and the state's senior deputy attorney general for law enforcement and prosecutions.

Hoke and Graves were reprimanded for withholding the evidence and bringing the judicial system into disrepute.

Coman said he was using the word "impeaching" as "embarrassing." The legal definition of impeach is the same as in Webster's dictionary: "to discredit."

Coman said he was thinking about how the tape from the Gell trial was embarrassing and humiliating for the state's witnesses.

"I wasn't thinking in terms of how it was defined in the case law," Coman said. "I was thinking only in terms of this transcript, this tape, and that it portrayed the girls in an embarrassing, humiliating position."

Coman's testimony, and Hoke's, will likely be fodder for the special State Bar committee set up to review the Hoke and Graves matter.

The N.C. Academy of Trial Lawyers labeled their testimony "misleading" and a "blanket misstatement" of the law. Brad Bannon, one of Gell's lawyers at his retrial, wrote that Coman and Hoke gave a patently false recitation of the law as a defense for the prosecutors' misconduct.

Gov. Mike Easley was attorney general from 1993 to 2001, when his staff tried and convicted Gell. He declined to be interviewed. So did Lacy Thornburg, who was attorney general from 1985 to 1993 and is now a federal judge in Asheville.

Coman said the Gell case is the only one in his 20 years at the Attorney General's Office where evidence was not handed over as required.

Roy Cooper, who currently holds the office, said he has insisted on a very open policy.

"Attorneys have been instructed to be as open as possible and turn over as much evidence as possible to the defense," Cooper said. "It is in the best interest of a fair trial and helps criminals from getting guilty verdicts overturned."

Cooper said his lawyers would review cases prosecuted by the Attorney General's Office before his term only if challenged in court. He said his staff had no intention of independently going through files to see whether impeachment evidence had been withheld.

Investigator In Gell Case Blames Prosecutors

By Joseph Neff, Staff Writer

A year after former death row inmate Alan Gell was retried and acquitted, the state's legal profession is still trying to figure out why didn't Gell get key witness statements that could have proved his innocence at his 1998 trial.

On Thursday, the chief investigator in the case spoke in public for the first time and put the blame squarely on the two prosecutors in the case.

Bristling with anger at times, SBI agent Dwight Ransome told a N.C. State Bar committee that he was upset with his former law enforcement colleagues, prosecutors David Hoke and Debra Graves.

"Was it your impression that Mr. Hoke and Ms. Graves were trying to put this off on you?" asked panel member Jim Cooney, a Charlotte lawyer who represented Gell at his second trial.

Ransome nodded: "And not by themselves."

The State Bar is reviewing whether it botched its investigation of Hoke and Graves. According to Ransome, it did, by embracing Hoke and Graves' erroneous version of events without talking to him. Other lawyers have criticized the Bar because it didn't call other key witnesses from the Gell case.

Gell was sentenced to death in 1998 for the murder of a retired truck driver, Allen Ray Jenkins, in Jenkins' Bertie County home. In 2002, a judge ordered Gell a new trial because Hoke and Graves, then with the Attorney General's Office, withheld helpful evidence from Gell, including witness statements showing the slaying occurred while Gell was in jail on other charges.

Gell, who spent nine years in prison, is now free. Hoke and Graves were reprimanded by the State Bar, which could have suspended their law licenses.

Why Hoke and Graves did not produce the statements helpful to Gell, despite a specific order from a judge, was a key part of the State Bar's disciplinary case against the two lawyers. Hoke and Graves have said they didn't read their files and relied on Ransome.

Ransome said he was upset at the attack on his integrity. He was even more upset, he said, when Hoke and Graves filed their formal response, repeating the same allegations of wrongdoing on Ransome's part.

"You have a complaint that is based on information from Debra Graves and David Hoke, and you have an answer from those same two people," Ransome said. "How do you do a complaint based on the information from the two people you claim to prosecute?"

Ransome said he began trying to fix the misrepresentations, and approached Jim Coman, a special deputy attorney general and former SBI director. Coman arranged a meeting in his office with Ransome, Hoke, Graves and their lawyer, Jim Maxwell of Durham.

Hoke and Graves later backtracked, acknowledging that Ransome delivered the entire file to Hoke nearly two years before Gell's trial. They also backed off on the assertion that Ransome had drawn up the witness list, which contained the names of everyone who had seen Jenkins alive while Gell was in jail. Ransome wouldn't say who drew up the list.

Giving the witnesses' statements to Gell's lawyers was the responsibility of the prosecutors, not the investigator, Ransome said.

"I forgot they even existed," Ransome said. Other agents took the statements early in the investigation, and he put them in his file and forgot about them, he said.

"If there is anything that is a fault of mine, that's it, and the only responsibility I'll claim in this."

Ransome was one of 23 witnesses who have spoken about the disciplinary proceedings over the past three days. Witnesses ranged from Gell and his lawyers to a series of judges who testified as character witnesses for Hoke, who is the number two administrator in the state court system and the chief legal adviser to Chief Justice I. Beverly Lake Jr. of the state Supreme Court.

Former Supreme Court Justice Robert Orr was a passionate advocate for Hoke and Graves. Orr complained about one-sided media coverage and blamed Ransome for not turning over the witnesses' statements. He said Hoke and Graves did not err by withholding tapes of key witnesses saying they had to make up a story for police.

"It is also my opinion that had this issue reached the N.C. Supreme Court, failure to turn it [the tape] over" would not have won Gell a new trial, Orr said.

Hoke, Graves and Maxwell, their lawyer, were the only witnesses who refused to speak with the committee.

Reprimands In Gell Case

Ex-assistant Prosecutors Get A Slight Punishment In The Case In Which A Man Could Have Been Executed:

By Joseph Neff, Staff Writer

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


None calleth for justice, nor any pleadeth for truth: they trust in vanity, and speak lies; they conceive mischief, and bring forth iniquity. (Isaiah 59:4)

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