Justice Withheld Series
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.