WWW PC


(Alan Gell case) N.C. Bar gives ex-prosecutors "slight punishment"

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

Debra Graves did not act intentionally, State
Bar panel says. 
David Hoke, through his lawyer
in court, admitted his mistake.
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
==========================================================
http://www.charlotte.com/mld/observer/news/local/9756675.htm

Sat, Sep. 25, 2004 | Associated Press

N.C. Bar reprimands ex-prosecutors 
Lawyers withheld evidence that could have cleared suspect

Associated Press

The State Bar issued a formal reprimand Friday for two former prosecutors who withheld evidence that could have helped clear a man convicted of murder and sentenced to death.

Former convict Alan Gell attended the hearing and cried after the panel announced its decision.

"Here I am again with the system letting me down," Gell told WTVD-TV of Durham.

Gell won a new trial in 2002 when the withheld evidence became public. The retrial took place in February, and Gell was quickly acquitted.

The bar ruled that former prosecutors David Hoke and Debra Graves violated three ethical standards by withholding witness statements and a tape recording from the state's star witness, who implicated Gell in the April 1995 slaying of a retired Bertie County truck driver. On the tape, Crystal Morris said she had to "make up a story" about the killing for police.

Hoke and Graves failed during Gell's 1998 trial to turn over eight witness statements indicating the slaying occurred while Gell was in jail.

Hoke and Graves told the trial judge they had handed over all such statements.

A reprimand was the lightest punishment the lawyers could have received. The three-member panel of the bar could have stripped them of their law licenses.

Members of the panel didn't believe the lawyers intentionally misbehaved, said panel chairman Steven Culbreth.

"This panel believes this was a mistake," Culbreth said. "But this happened in a murder case, to a man on death row."

Hoke and Graves declined to comment on the case. Graves now works as an assistant federal public defender. Hoke is the No. 2 administrator in the state court system.

"It was an honest mistake on our part," Hoke said in sworn testimony read Thursday. "Nobody is more sorry about that than Debra and I."

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," said their defense attorney, James Maxwell.

A judge ordered a new trial in 2002 because of the withheld evidence.

Jurors in that trial said the taped conversation and witness statements were crucial evidence.

Since then, Gell has traveled the state lobbying against the death penalty.

In an April filing with the State Bar, Hoke and Graves said they hadn't read the complete case files and didn't know about statements from witnesses who said they saw Jenkins alive while Gell was in jail on unrelated charges.

The prosecutors said they relied on the lead investigator, State Bureau of Investigation Agent Dwight Ransome, to tell them what was in the file.

Hoke and Graves said that even if they had read the statements, they wouldn't have realized that time of death was an issue.

They contended the medical examiner had established that Jenkins was killed before Gell's arrest.

Hoke and Graves acknowledged they knowingly withheld the taped phone conversation.

Gell and his supporters criticized the bar for what they considered a poor prosecution. The bar called no witnesses and did not contact Gell nor any of his defense lawyers.

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 interviews he conducted with Hoke and Graves.


  • Back