We're Watching You
NCAG Roy Cooper showed up today to confirm that, upon Defendant Nifong's recusal request, his office has agreed to take over the prosecution of the Duke Frame cases. He said all the right things, about the need to focus not on how the cases got to his office, but where they will ultimately go from here. He spoke of the need to conduct a full, fair, and thorough investigation of the Durham County D.A.'s case files, conduct interviews of Crystal Mangum, other witnesses, and investigators [Hi, Mark! Hi, Linwood! Hi, Ben!]. He pledged that the actions of his office will be spurred exclusively by what the facts show to be the truth, and that "blinders" will be worn to shield the investigation from taint by "external pressures" [Hi Whiners! Hi Blog Hooligans!]. He played Solomon [Did you watch, Mikey?], noting that the transfer does not necessarily mean, either, that there will be a trial or that the cases will be dismissed. Sound good so far?
Unfortunately, he went on to note that the matters have been assigned to the Special Prosecutions Section of his office, where two lawyers, Jim Coman and Mary Winstead, will have primary case management authority. Coman and Winstead. Hoo boy. Cooper's vesting chief prosecutorial authority in these two is potentially a bad thing. A VEH-ry bad thing.
To understand why Coman's appointment is most troubling, one must have a working knowledge of the case of Alan Gell, a man wrongly accused, tried, convicted and sentenced to die for the 1995 murder of Allen Ray Jenkins. Gell spent ten years in jail for the crime, much of it on death row. The only problem? He didn't do it.
Jenkins' rotting corpse was found on April 14, 1995. A troubled teenage girl, Crystal Annette Morris, who ultimately pled guilty to second degree murder for her role in the killing, claimed that she was present when Gell shot Jenkins to death on April 3, 1995. April 3d was the only date on which Gell could have committed the murder, since he was proven to have been out of state on April 4th and 5th, and incarcerated in a North Carolina jail on unrelated charges from April 6 through the 14th, the date on which Jenkins' dead body was found.
Morris' version of Gell's "involvement" changed eight times between her first police interview, on the day after Jenkins' body was discovered, and her testimony at trial in 1998. One such version was captured in a tape recorded telephone conversation with her boyfriend, in which she intimated both her involvement in Jenkins' killing and the plan to frame Alan Gell. Morris was corroborated by her best friend, Shanna Hall, who also ultimately pled guilty to second degree murder for her role in the crime.
Additionally, seventeen people, including the decedent's brother, neighbors, friends and town acquaintances, had given law enforcement personnel statements setting forth their recollections of having seen Jenkins alive between April 7th and 10th (while Gell was incarerated).
How could Gell have been convicted, you ask?
After SBI and Aulander police authority had decided to deem April 3d the date of the murder, based solely on the stories of Crystal Morris and Shanna Hall, the two lead investigtors re-interviewed those acquaintances who had claimed to have seen Jenkins' alive as much as a week later. As Joe Neff reported it,
Still, (SBI Agent) Ransome and (Aulander Police Chief) Godwin had a problem. In each of Crystal's versions, the murder occurred April 3. But the SBI and the district attorney files had statements from 17 people saying they had seen Jenkins alive after April 3.
The next day, July 28, Godwin and Ransome set out to clear up the discrepancies. They went to Ahoskie and re-interviewed four witnesses who had seen Jenkins buying gas, fish and a meal on April 10.
Ransome and Godwin informed each witness that Jenkins had died April 3. Each one then gave a new statement to the effect that they were not sure of the actual date, just that it was in early April.
Armed with the revised statements, Godwin and Ransome returned to Aulander to look for two key witnesses -- Jenkins' next-door neighbors, Bobby and Mary Hunt.
The two officers found Mary Hunt at her job at Farm and Home Gas Co. at the corner of Main and Commerce.
Ransome later dictated a report from this interview: "Hunt was re-interviewed because it was learned that Allen Ray Jenkins had been shot and killed on Monday, April 3, 1995. Hunt stated that she last saw Jenkins on Saturday morning, April 1, 1995."
Mary Hunt did not learn the contents of this report until a reporter showed her a copy in October 2002. The Hunts are clear on their story: She last saw Jenkins on Saturday, April 8, six days before his body was found. She was sitting in her office, waiting for the clock hands to hit noon so she could go to lunch, when she saw him stop at the traffic light outside her window.
"Oh, no," she thought. "He's getting ready for another party tonight."
The next day, April 9, Bobby Hunt saw Jenkins cooking fish in the back yard with some friends. Bobby Hunt went to bed early, as he did every Sunday. He needed to be at work at the Food Lion in Williamston at 5 a.m.
A grandson and his friend were playing when he went to bed. About 10 p.m., Bobby Hunt was awakened by a loud rumbling sound. He went out and told Mary to quiet the children down.
She told her husband she was the only one there. The children had left an hour ago.
All that week, the Hunts noticed that Jenkins' kitchen light was on constantly, shining into their bedroom.
The Hunts, who still live in the brick ranch house at 301 Lombardy St., are just as certain that the kitchen light was not on for two weeks, and that there were no quiet weekend evenings before Jenkins' body was found.
And the grass: Jenkins mowed his lawn twice a week, and the grass had not gone unmowed for two weeks. It would have been much higher.
Shown the SBI file stating she last saw Jenkins on April 1, Mary Hunt shook her head at Ransome's report.
"This is not right," she said. "That's wrong there. I didn't say April first. He must have put that down wrong."
Mary Hunt's comments came seven years too late for Alan Gell.
Between his arrest and first trial, four different attorneys were assigned to represent the indigent Alan Gell. Suffice to say, none of them did anything. Well, the first two did accept positions as prosecutors, one in the Bertie County D.A.'s office. Because of the conflict of interest created by Gell's former lawyer taking a job with the very office prosectuting him, the matter was transferred to the office of then-Attorney General, Mike Easley, and headed up by David Hoke and Debra Graves. Hoke and Graves ignored a 1997 Order to turn over all exculpatory evidence to defense counsel. Disturbingly, these two are still with the AG's Special Prosecutions Section, along with Coman and Winstead.
Shortly before the commencement of Gell's trial, on February 2, 1998, his fourth lawyer, assigned to the case but three months earlier, read a newspaper article speaking of the existence of witnesses who had seen Jenkins alive as late as April 10, 1995. The attorney, Maynard Harrell, immediately asked the trial judge to order Hoke and Graves to turn over any exculpatory witness statements contained in the prosecutors' files.
The prosecutors replied that there was none. Some witnesses had said they saw Jenkins after April 3, prosecutor Debra Graves said, but they were mistaken.
"Ransome talked to those witnesses a number of times, and the dates change from time to time," Graves said. "There was nothing exculpatory about that information, and consequently we did not provide it."
At Judge Meyer's insistence, however, prosecutors handed over statements by 10 people.
All had been re-interviewed after April 3 had been established as the date of death, Meyer said, and all said they were unsure when they last saw Jenkins.
But "out of an abundance of caution," Meyer let the defense lawyers read the statements.
So on the first day of trial, the state finally gave Gell's lawyers reports of people who said they saw Jenkins alive after April 3.
But only some. All but one of the statements were from people whom Police Chief Godwin and SBI agent Ransome had re-interviewed after telling them Jenkins was killed April 3.
Like all defendants, Gell had the constitutional right to evidence in law enforcement files that could prove his innocence or cast doubt on the truthfulness of witnesses such as Crystal and Shanna.
Whether intentionally or inadvertently, the prosecution team did not turn over the statements of Donald Hale, Jenkins' lifelong friend who said he chatted with him April 7. They also did not provide the account of Willie Hoggard, his across-the-street neighbor who said he saw him that same day; and that of Ricky Alan Odom, who told police he talked with Jenkins about roofing his home on April 7; and that of Jenkins' brother Sidney, who said he had honked at him in town on April 8; and Edward and Margaret Adams, who saw him April 9.
The state did not hand over the tape recording of a phone call involving Crystal Morris, the state's key witness -- a conversation with evidence that Crystal was fabricating her account of the murder. And the state didn't turn over its numerous reports of Jenkins' interest in young girls and payments for sex.
The late production of the witness reports put Harrell at a disadvantage. The trial had begun, and the lawyers were in court all day, with little time to chase down people who might help their case.
On February 25th, the jury took less than one hour to convict Alan Gell of first degree murder.
During the sentencing phase, Harrell put Gell's family and friends on the stand. Pleas for mercy, however, are best accompanied by remorse, and Gell continued to maintain his innocence.
Prosecutor David Hoke called for death in a powerful closing argument that was more sermon than summation. He hammered at Gell for ambushing Jenkins in the sanctity of his own home.
Hoke reminded jurors of the words of Gell's pastor, who testified that Gell had never acknowledged wrongdoing or shown remorse.
Gell interrupted Hoke. "I still deny the charges," he blurted out.
This gave more fuel to Hoke, who asked jurors to think about how important it was for them to feel safe in their own homes.
"Look at that feeling of peace, joy, comfort in your own home," he said. Contrast it to the act done "at the hands of this man who has not yet acknowledged any sorrow."
He addressed the jury, calling each member by name, and then:
"From the Old Testament and the Book of Numbers, anyone who kills a person is to be put to death as a murderer upon the testimony of witnesses. You've heard the testimony of witnesses. ... Now, they might argue to you the New Testament changes all that. No, it doesn't. Jesus didn't come to destroy the law or the prophecies of the Old Testament. He came to fulfill them.
"Listen to this in Deuteronomy. 'Cursed is the man who kills his neighbor secretly and all the people shall say amen. Cursed is the man who kills an innocent person for money, and all the people shall say amen.' It's time to sentence this man, a murderer, to die, and let the people of Bertie County say amen."
The jury needed just two hours to reach a conclusion: death.
As ironically noted by Mr. Neff, "getting sentenced to death was a lucky break for Alan Gell."
As a death row convict, Gell became entitled to two attorneys, paid by the state, to review the entire case -- both the conduct of the trial and the conduct of police and prosecutorial authority in building the investigation and the case against him. Enter Mary Pollard and Jim Cooney. To make this long, tortured story just a bit shorter, suffice to say that Pollard and Cooney undertook the admirable leg work work not even contemplated by any of Alan's prior counsel.
Pollard immediately realized that the date of death was the crucial issue in the case. She contacted Dr. M.G.F. Gilliland, the forensic pathologist who had testified for the prosecution at trial that Jenkins' was killed in a loosely framed window between April 3-8, 1995. Gilliland's testimony was, obviously, a linchpin on which the jury hung its hat in deciding the guilt of Alan Gell. Because ambient temperature, more than any other factor, determines the rate at which a corpse decomposes, and because there was no data given to her regarding the temperature of Jenkins' home in the time between his murder and the discovery of his body, Gilliland told Pollard that she could not more precisely estimate the date of his demise.
Pollard and Conney set out to get that data. A forensic anthropologist, mechanical engineer, and entomologist were retained. Their conjunctive work, which is nicely, if grisly, summarized by Mr. Neff, here, led to the conclusion that Jenkins was killed on either April 8, 9 or 10, 1995. The assumption, accepted by the trial jury, that he was killed on April 3, 1995, was "so unreasonable as to be nearly impossible."
Pollard and Cooney took their experts' test results and conclusions back to Gilliland. Mr. Neff:
For two decades, Gilliland, like Marks and Arends, has worked with the state, helping police and prosecutors. She still has the intensity and focus that cowed Gell's lawyers during trial. But now, in the case of N.C. v. Gell, she is no longer focused on the defense lawyers.
Sitting in her office recently at Pitt Memorial Hospital, surrounded by books, papers, microscopes and files, Gilliland recalled a pretrial conference in January 1998. The prosecution team was there: SBI agent Dwight Ransome, Aulander Police Chief Gordon Godwin, and David Hoke and Debra Graves from the Attorney General's Office.
Gilliland asked about the initial medical examiner's report, which noted that Jenkins was last seen alive on midmorning April 8 by a neighbor.
That person was mistaken, one of the team members said.
"That information had been withdrawn," recalled Gilliland.
Gilliland said she assumed this meant that the neighbor -- one neighbor -- had retracted the statement.
That assumption was demolished when Gilliland met with Gell's lawyers.
She learned that law enforcement had statements from 17 people who saw Jenkins alive after April 3 but had not shared that information with her.
"Seventeen people, that's a clue, that's valuable information," she said. "I would rely on that kind of information."
Gilliland has reviewed the work of Arends, the entomologist, and Marks, of the Body Farm. She is in full agreement with them about Jenkins' time of death.
She rifled briskly through her file folder, extracting some of the withheld statements.
She held up the one from Willie Hoggard, the across-the-street neighbor.
"He lived there 25 years, and he saw [Jenkins] in his truck, and he knows the man very well; he last saw him on the Friday, which is the seventh," she said, rattling the paper. "He's alive on the seventh; he's not decomposing in his house."
She moved on to the statement of Ricky Alan Odom, who told police he talked with Jenkins that same day about putting a roof on his house.
"A job, the man says, he looks at the roof on the seventh," Gilliland said. "That is not having maggots working on your remains."
Gilliland did not attend the trial and did not hear Crystal Morris testify that Gell stood in the bedroom and shot Jenkins in the hallway.
"No, no, no!" Clearly, she said, the killer shot from the hallway into the bedroom.
Crystal Morris "may have intimate knowledge of who was shooting," Gilliland said. "It may have been herself. It could have been somebody else, I don't know -- that's not something that I have information about. But with all of this together, I have better information to when it happened and when it did not happen.
"It did not happen April 3, 1995."
Gilliland is rock certain: The murder occurred while Gell was in jail, probably on April 8 or 9.
"That doesn't mean that poor Mr. Jenkins wasn't killed. It just means that this man didn't do it."
Once the Attorney General's Office was made aware of this frame, and the prosecutorial misconduct of Hoke and Graves, it immediately moved the court to set aside the guilty verdict and free Alan Gell, right?
Um, no. After a thorough reinvestigation, Jim Coman advised Cooper that the matter should be tried again! Coman tried the case himself. He lost. Joe Cheshire sat first chair for Alan Gell at the re-trial. He was assisted by Jim Cooney, Mary Pollard and Brad Bannon.
Hoke and Graves were ultimately tried by the Grievance Committee of the State Bar for their egregious prosecutorial misconduct in the failure to timely provide Mr. Gell's original defense counsel with exculpatory Brady material to which they were absolutely entitled -- conduct that directly resulted in Mr. Gell's wrongful conviction and near execution. In my next post I am going to set forth, in its entirety, Mr. Bannon's letter to the the State Bar regarding his observations of that proceeding. It is a must read. Apparently, this "trial" was nothing but a smoke-filled room, a pig circus, an "old boy" JOKE.
Jim Coman testified on behalf of his office mates at the Bar "trial." Under oath, he said, in direct contravention of precedent settled since 1972, that his pals weren't obligated to turn over impeachment evidence to the defense. (See, Hoke and Graves decided to deem the taped phone call of Crystal Morris, wherein she implicated herself and spoke of the need to frame Gell, merely "impeachment" material, as opposed to "exculpatory"material, because, while it might have "embarrassed" poor Ms. Morris, it did not directly prove Gell's innocence. Kinda like the Nifong-Meehan conspiracy. But different. Snakes, just the same.)
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.
Poster "KP" had this to say about Coman today, at FODU:
I just heard who they have picked to handle the case. One of the two AAG's I have spoken with and he is not a fan of the defense team and he made that pertectly clear to me in a call that lasted for more than an hour twenty, back on Sept 22.
I filed a complaint with them back on Sept 21, 2006 and they called me back on the 22. I still have his number on my cell phone at home. The only lawyer he didn't talk about was Mr. Smith for fear of being sued. It looks like we are not going anywhere, anytime soon.
By the way the AAG I'm speaking of is James Coman.
Mary Winstead, Coman's assistant on the Duke Frame assignment, used to work with Mikey at the Durham County D.A.'s office. In the course of her prosecution of one Timothy Malloy for a 1992 rape, Winstead "accidentally" voiced over portions of not one, but two casette tapes bearing recordings of telephone answering machine messages crucial to Mr. Malloy's defense, some time in the year and a half between their creation and pre-trial discovery, during which time the tapes were in the exclusive possession of the state. She was removed from the case. Mikey tried it. Without those pesky audio tapes.
Roy, buddy, you may have blinders on.