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North Carolina Prosecutors Reprimanded For Intentionally Withholding Crucial Exculpatory Evidence in

North Carolina Prosecutors Reprimanded For Intentionally Withholding Crucial Exculpatory Evidence in Capital Case

by Matthew T. Clarke

Alan Gell cried recently after a North Carolina State Bar panel issued a mere reprimand, the least discipline possible, to two former prosecutors who withheld evidence in his capital murder case. Here I am again and with the system letting me down again," said Gell.

How did the system let him down the first time? By sentencing him to death in 1998 and having him spend over four years on death row for a murder he did not commit. His conviction was reversed due to withheld evidence and he was acquitted in a second trial in February 2004.

Well, wrongful convictions happen all the time, you say. True, but it doesn't always happen that the alleged murderer was in jail when the murder occurred and that the prosecutors withheld evidence of their star witness fabricating accusations against the defendant, nor does it always happen that the prosecutors invent a new time of death contrary to a pathologist's findings because the defendant was in jail on other charges the actual day of the murder.

That is exactly what David Hokenow the second-highest administrator in the state court systemand Debra Graves now a federal public defenderdid. They hid a tape of Gell's co-defendant, Crystal Morris, saying that she would have to make up a story" for the cops. They hid sworn statements by eight witnesses who saw the victim alive after Gell was arrested on other charges. And they claimed that Dr. M.G.F. Gilliland, the state's pathologist, determined that the murder could only have occurred prior to Gell's arrest, a claim that Gilliland called deceptive in the extreme.

What do Hoke and Graves have to say to this? They admit to hiding the tape, but claimed it was office policy not to reveal impeachment evidence because the prosecutor's office didn't consider it exculpatory" despite a 1972 U.S. Supreme Court decision to the contrary. They further claim they were unaware of the eight witnesses' sworn statements even though the witnesses appeared on the prosecutors' witness list. They state they never read the case file in the capital murder case which contained the sworn statements. Instead, they say, they relied on the summary of the lead investigator. What about the time of death? They simply don't address it, claiming instead that the pathologist said the murder occurred prior to Gell's arrest.

Many blame the lame result in the disciplinary action on the State Bar prosecutors, David Johnson and Margaret Cloutier, who didn't call any live witnesses and merely read from the depositions of Hoke and Graves to present their case. In those depositions, Hoke and Graves claimed their errors had been inadvertent. The only live witnesses at the disciplinary hearing came from character witnesses, many of them judges, who testified as to the sterling character of the former prosecutors. Were the State Bar prosecutors unaware of the evidence? Hardly, because Gilliland wrote to them to ensure they knew that the ex-prosecutors had lied about her findings. Gilliland was neither deposed nor called as a witness at the disciplinary hearing.

On Dec. 2, 2004 the State Bar hearing members found that Hoke and Graves had violated three specific ethics rules: 1) They failed to turn over evidence favorable to Gell, 2) They failed to supervise the conduct of their chief investigator, and 3) They brought the judicial system into disrepute by their conduct. Regardless, James Maxwell, the attorney representing Hoke and Graves at the hearing, said his clients 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,

Did Gell and his family at least receive an apology for Gell's wrongful conviction and his having to live for years with the terror of knowing the state intended to execute him? Of course not.

I deserve one, but I don't expect one," Gell said. They're afraid to admit they're human and make mistakes." He also observed that the prosecutors slapped high fives and hugged each other when I was sentenced to death. Is that professional conduct?" No it's not professional conduct, just the typical conduct of professional prosecutors, apparently. As previously reported in PLN, while prosecutorial misconduct is very common throughout the US, discipline or negative consequences for such actions is extremely unusual and on the rare occasions when it occurs, like in this case, it tends to be the most minimal punishment available.

Sources: Associated Press, New York Times, National Law Journal.

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