I respectfully dissent
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Letter to N.C. State Bar

This is the text of a letter attorney Brad Bannon sent to the N.C. State Bar about the bar prosecution of the prosecutors who handled the Alan Gell trial:

As North Carolina State Bar Member 24106, as an officer of the various North Carolina courts in which I have appeared, as an attorney for Alan Gell, and as a deeply concerned citizen of this State, I am writing to you about what I can only describe, at best, as frustration regarding the prosecution of the above-referenced case by the Office of the Staff Liaison to the Grievance Committee of the State Bar.

 

            As I am sure you all know, the defendants in the above-referenced action, David Hoke and Debra Graves, were members of the Special Prosecutions Section of the Attorney General’s Office in 1996, when that section assumed exclusive responsibility of prosecuting State v. James Alan Gell from the office of local Bertie County District Attorney David Beard. Mr. Gell had been indicted in Bertie County the previous year for the shotgun murder of Allen Ray Jenkins, based largely on accusations made by Crystal Morris and Shanna Hall, who lied to police on numerous occasions about their knowledge of the murder before finally admitting their involvement but then implicating Mr. Gell as the shooter. There was absolutely no physical evidence linking Mr. Gell to the murder, and he consistently denied involvement after waiving his right to counsel and voluntarily speaking to police. In the days and weeks following the murder, in fact, police interviewed 17 disinterested witnesses who reported that they saw Mr. Jenkins alive after the last point in time when Mr. Gell could have killed him (i.e., Mr. Gell was indisputably out of the state or in custody on an unrelated felony larceny charge).

            By the time Mr. Gell’s case went to trial in February 1998, Mr. Hoke had been a judicial clerk, research attorney for the Administrative Office of the Courts, and a member of the Special Prosecutions Section of the AG’s Office for ten years. Ms. Graves had been a judicial clerk and a member of the Appellate Section and Special Prosecutions Section of the AG’s Office for the preceding ten years and had taught appellate advocacy as a law professor. They were not fresh out of law school, and they were not strangers to criminal litigation. Each had been a lawyer in North Carolina for over ten years, and, between them, they had 15 years of experience in Special Prosecutions, widely regarded as the top criminal prosecution unit in state government. By contrast, Alan Gell was an indigent defendant who had been shuffled among five different court-appointed attorneys and whose final lead counsel at the time of trial had only been involved in the case for three months. At the conclusion of the trial, Mr. Gell was convicted and sentenced to die, and Mr. Hoke and Ms. Graves sent a letter to Mr. James J. Coman, then director of the SBI, celebrating the death verdict and praising the work of the SBI team, led by Agent Dwight Ransome, which helped them achieve that verdict.[1] Mr. Gell’s direct appeal to the North Carolina Supreme Court was unsuccessful.

 

During post-conviction proceedings, while Mr. Gell resided on death row awaiting his execution, his appointed post-conviction counsel discovered that the State of North Carolina had withheld the statements of numerous witnesses who saw the victim, Mr. Jenkins, alive after the last point in time when Mr. Gell could have killed him, and the State also withheld the tape recording and transcript of a conversation secretly recorded by the lead investigator, Agent Ransome, in which Alan’s co-defendants and chief accusers, Crystal Morris and Shanna Hall, profanely discussed their involvement in Mr. Jenkins’ murder, sought information from another person in the conversation about his knowledge of the ongoing criminal investigation, and conceded that they had to “make up a story” to evolve with the course of the investigation.

 

In December 2003, over the objection of the Attorney General’s Office, the Honorable Cy Grant summarily granted Mr. Gell’s Motion for Appropriate Relief and ordered a new trial based on the State’s blatant violation of Brady v. Maryland in failing to disclose the witness statements and the taped conversation, especially in light of two court orders requiring them to do so: one entered by Judge Grant himself in September 1997, and one entered by the trial judge in February 1998, after the trial had started.

 

After Alan Gell was granted a new trial, my senior partner, Joe Cheshire, was appointed first chair to represent Mr. Gell at the re-trial. I worked with Joe, Mary Pollard, and Jim Cooney on preparing and trying the second trial. In that capacity, I saw everything in every file that ever existed in Alan Gell’s case. The case went to its second trial in February 2004. The witness statements and the taped conversation figured prominently in the defense (indeed, they were certainly not the type of evidence the second trial prosecutors wanted to present to the jury, even after a full re-investigation of the crime), and the jury specifically requested the tape before rendering a verdict of not guilty after less than three hours of deliberations. Mr. Gell had spent nearly ten years in prison, over five of those years on death row, awaiting his own execution and watching many of his fellow inmates (the only friends he had at the time) walk to their deaths.

 

Before I go any further in this letter, I want to make a few more things clear. First, I am not an expert in State Bar prosecutions and had, until this past week, attended only one such prosecution in the past for a client of my firm who was a defense attorney against whom the State Bar vigorously sought disbarment for allegedly shoplifting a garment from a local mall and then testifying at his misdemeanor criminal trial that he was innocent. I have rarely seen a capital murder prosecution in criminal court be more competently or vigorously pursued than the State Bar pursued the disbarment of that attorney before the DHC. Second, I met Debra Graves in 2001, when she (on behalf of the Federal Public Defender for the Eastern District of North Carolina) and I (on behalf of my senior partner, Joe Cheshire) represented co-defendants in a federal FEMA fraud case in the Eastern District. I found Ms. Graves to be an excellent lawyer and advocate. I benefited from working with her and reviewing her work in that case, and I was extremely impressed with how she managed to obtain a dismissal of charges against her client. Third, I have never met David Hoke; however, I was aware that he is the number two person in North Carolina’s court system and, in that capacity, assigns Superior Court judges to try cases, including death penalty cases. The reason I knew that is because he in fact assigned the judge who presided over the retrial of Alan Gell: a retrial which was only necessary because Mr. Hoke himself had withheld evidence of Mr. Gell’s innocence at the first trial. Finally, I am not writing this letter on behalf of anyone but myself, and no one is responsible for the content of this letter but me.

 

This past Thursday and Friday, I watched as the North Carolina State Bar prosecuted Mr. Hoke and Ms. Graves for their conduct, which led to Alan’s wrongful imprisonment and near execution and, ultimately, to the grievance against them. The grievance alleged that they had knowingly made misrepresentations to the court, failed to turn over exculpatory evidence as ethically required of prosecutors, failed to adequately supervise non-lawyer conduct upon which they relied to meet their legal obligations, and engaged in conduct prejudicial to the administration of justice.

 

I have been a criminal defense lawyer for seven years now. It is all I have done. In that role, I have seen many prosecutions in many courtrooms about many alleged wrongdoings, ranging from traffic offenses to capital murder. I have never seen a case as weakly prosecuted as I saw at the State Bar on Thursday and Friday. In fact, it made me wonder why the Bar bothered to file a grievance in the first place: not because I thought the grievance lacked merit, of course, but because I saw very little effort to actually prosecute it.

 

The Bar’s entire case was in the form of exhibits entered under a consent agreement after opening statements and then about 20-30 minutes worth of excerpts read into the record from two of those exhibits, the depositions of Mr. Hoke and Ms. Graves. The excerpts read by the State Bar prosecutors seemed to raise a number of factual issues relevant to the prosecution, including the contentions of Mr. Hoke and Ms. Graves that:

 

1.         They understood District Attorney David Beard, whose office was in charge of the prosecution during the initial investigation but ultimately referred the case to Special Prosecutions because of a conflict of interest, to have an open file policy, which, in turn, absolved them from responsibility to respond to the first court order to produce exculpatory materials or verify that it had been complied with;

 

2.         After entry of the second court order to produce specific exculpatory evidence, they again did not review their entire file but instead relied upon Agent Ransome to do so; and

 

3.         The secretly recorded conversation—in which the State’s star witnesses, who had already lied to police about the case and would continue to lie to police about the case, profanely talk about making up stories to go along with the evolving law enforcement investigation—was not “exculpatory,” although it may have been “impeaching,” but impeachment material is not exculpatory within the meaning of Brady.

 

Nevertheless, the Bar called no live witnesses. They did not call Dwight Ransome either to acknowledge his failure to produce the statements or to refute the defendants’ contention—critical to their defense of negligent rather than intentional misrepresentation—that he failed to do so. They did not call David Beard to testify about his communications, if any, with Mr. Hoke and Ms. Graves regarding discovery and the existence of (hence reasonableness of Mr. Hoke’s and Ms. Graves’ reliance upon) an open-file discovery policy in Beard’s office at the time.[2] They did not call a criminal law practitioner or expert in criminal procedure to establish that impeachment material is indeed exculpatory within the meaning of Brady and that prosecutors have a duty to disclose such exculpatory material to the defendant even without a specific request.[3]

 

And, of course, they did not call Mr. Hoke or Ms. Graves to confront them under oath before the panel about a number of unanswered questions and contradictions raised by the very excerpts the prosecutors read into the record. Again, as a criminal lawyer, I cannot imagine any case I have ever tried where the prosecutor would not have jumped at the opportunity to compel the defendant to testify and confront the defendant with previous contradictory or demonstrably disprovable statements on the subject matter of the prosecution. Moreover, the prosecutors knew that the hearing room was packed with highly reputable character witnesses prepared to testify on behalf of the defendants, from Superior, Appeals, and Supreme Court judges to the top trial prosecutor in the Attorney General’s Office.

 

Under those circumstances, I was stunned when I heard the State Bar rest its case after introducing some exhibits and reading 20-30 minutes worth of excerpts from depositions. No word from Dwight Ransome about whether he was, in fact, to blame for the failure to disclose the statements after the second court order. No word from David Beard about whether, in fact, it was reasonable for Mr. Hoke and Ms. Graves to presume he had an open file discovery policy and therefore abandon their duty to review the file once it came to Special Prosecutions and Judge Grant issued the first court order to disclose exculpatory evidence. No word from Maynard Harrell, Mr. Gell’s lead defense counsel at the first trial, about Mr. Hoke’s deposition assertion that he “knew” Alan’s lawyers had the benefit of open-file discovery. No word from anyone on Alan’s second defense team, particularly Mary Pollard, who first obtained the full files in post-conviction and discovered the withheld evidence. No word from anyone in the legal community or general public to testify about the impact that Mr. Hoke’s and Ms. Graves’ failures have had on the legal community and the perception of the legal profession by the public. No word from Alan Gell—whom the State Bar never once even contacted about the prosecution—to talk about the very real impact of the alleged misconduct in the case. Nothing.

 

It is therefore not surprising to me that the panel had to leave the room and confer for a while before denying the routinely (and ordinarily quickly) denied motion to dismiss that always comes from the defense at the end of the prosecution’s case.

 

Then, by contrast, Jim Maxwell, a very talented advocate, put on a formidable case. Although he certainly didn’t need to, given the failure of the prosecution to put on a case at the hearing, Mr. Maxwell called his clients. Ms. Graves presented the first live glimpse of the defense for her and Mr. Hoke. It was basically this:

 

1.         When the case was referred by District Attorney David Beard to the Special Prosecutions Section of the AG’s Office, Mr. Hoke was assigned first chair, and Ms. Graves was later assigned second chair;

2.         When Mr. Hoke was first assigned the case, he received a file from David Beard’s office which he, and later Ms. Graves, used as their “working file”;

3.         At some point, Mr. Hoke learned of a witness whose name he didn’t recognize from his “working”/Beard file, which prompted him to order the entire SBI file from the SBI records department; however, when that file arrived, Mr. Hoke never made an effort to compare the two files;

4.         When Judge Grant entered the first order for the State to produce Brady material in September 1997, Mr. Hoke and Ms. Graves took absolutely no action to comply with the order or verify that it had been complied with; instead, they just assumed that the defense already had everything in the prosecution file, because they assumed David Beard had an open file discovery policy, and they assumed that David Beard’s file had everything from law enforcement in it, and they assumed Mr. Gell’s attorneys had taken advantage of the open-file policy;

5.         When Judge Meyer entered the second order for the State to produce Brady material in February 1998 (as the trial began, and after Mr. Gell’s first trial lawyer renewed the Brady motion because of an eve-of-trial newspaper article quoting a witness who claimed to have told police that he saw the victim alive after the last point when Mr. Gell could have killed him), they again failed to review their entire file and instead relied on Agent Ransome to review it, after which he gave them the statements of only 8 of the 17 witnesses who saw the victim alive after the State’s alleged date of death, 4-3-95, the only time when Mr. Gell could have committed the murder[4];

6.         Two days later, as jury selection was under way, Agent Ransome gave Mr. Hoke and Ms. Graves the statement of a ninth witness who saw the victim alive after the last point when Alan could have killed him; however, Mr. Hoke and Ms. Graves again did not comply with their legal and ethical duties to personally review the file to make sure that Agent Ransome had given them all of such statements; and

7.         Regarding the secretly recorded conversation among the State’s two star witnesses and the initially suspected shooter in the case, Ms. Graves stated their opinion that the tape was not exculpatory; that it might have been impeaching; but that they were not required to turn it over under Brady, because impeachment material is not exculpatory within the meaning of Brady.

 

In addition to that testimony, Ms. Graves also quite honestly, honorably, and candidly admitted in both her deposition and her live testimony that it was wrong for prosecutors to be expected to put on a defense lawyer’s hat to define “exculpatory” and that it was ultimately her responsibility to make sure the entire file was reviewed and the material was turned over. Still, she did not offer any kind of apology to Alan Gell for the years of his life that were obliterated because of her and Mr. Hoke’s failure in that regard. At the conclusion of her direct testimony, she was barely cross examined. I think maybe five questions were asked of her.

 

Mr. Hoke was then called to testify. He repeated many of the points listed above. Although generally stating that “no one” was “more sorry” than he and Ms. Graves for their failures to disclose the witness statements, he never acknowledged (nor was he challenged by the fact) that Alan Gell and his family might be more sorry, and he never once offered an apology to Alan Gell for that failure. He stated a number of times that he “knew” David Beard had an open-file discovery policy, and he “knew” that Alan’s attorneys (all five of them over the course of the nearly three years leading up to trial) had taken advantage of it. He admitted that Agent Ransome had failed on at least two occasions to give him all of the statements of witnesses who had seen the victim alive after 4-3-95, but he stated his absolute confidence in Agent Ransome’s abilities, even today. He stated multiple times that impeachment material for the prosecution’s star witnesses is not exculpatory within the meaning of the Brady rule. With great conviction, he testified that he and Ms. Graves would “never” seek to hide information from the defense, yet he acknowledged that he did not turn over the transcript of the secretly recorded conversation of the co-defendants even after they testified at the trial, because Alan’s first trial defense lawyer did not ask him to (again quite a bizarre assertion, given that Mr. Hoke’s and Ms. Graves’ concealment of the taped conversation and transcript meant that Mr. Gell’s attorney could not have known about it). Again, the cross-examination of Mr. Hoke was minimal, and by far the toughest questions (which is to say, tough at all) posed to Mr. Hoke were posed by the panel chair, Stephen Culbreth.

 

At the conclusion of Mr. Hoke’s testimony, a number of character witnesses were called for Mr. Hoke and Ms. Graves. Among the first were Court of Appeals Chief Judge John Martin and recently retired Supreme Court Justice Robert Orr, who now runs the North Carolina Institute for Constitutional Law. Despite the fact that Mr. Hoke had repeatedly stated that impeachment material is not exculpatory within the meaning of Brady and that he and Ms. Graves did not turn over the tape because no one specifically asked them to, the State Bar prosecutors did not take the opportunity to ask Chief Judge Martin or Justice Orr, both of whom have served for years on appellate court benches presiding over innumerable criminal cases and the latter of whom is now in charge of an institute for Constitutional Law, about Mr. Hoke’s erroneous testimony that impeachment material of a prosecution’s star witness is not exculpatory within the meaning of Brady. Nor was such a question asked of character witness (and top North Carolina trial prosecutor) James J. Coman when Mr. Coman made similar assertions about Brady, even referring to State v. Soyars in the process. Nor were Mr. Hoke’s and Mr. Coman’s representations about the degree of impeachment value of the taped conversation challenged by simply playing the tape in the hearing, even after Mr. Coman acknowledged that hearing the tape was much worse for Ms. Morris’ and Ms. Hall’s credibility than reading a cold transcript of it.

 

Thankfully, the State Bar prosecutor at least read language from State v. Soyars in his closing, which clearly states that (1) impeachment material is exculpatory within the meaning of Brady; and (2) such exculpatory evidence must be disclosed by the prosecutor even without a specific request.[5] Brady was decided in 1963. Giglio was decided in 1972. Agurs was decided in 1976. Bagley was decided in 1985. State v. Wise was decided in 1990. State v. Soyars was decided in 1992. Thirty years of precedent. The laws, duties, and responsibilities of prosecutors regarding identification and disclosure of exculpatory evidence were not novel or ill-defined concepts when Mr. Hoke and Ms. Graves attended law school. Nor were they novel or ill-defined concepts during the collective 15 years they worked in Special Prosecutions before the first Gell trial. So it was baffling for me as a criminal lawyer to watch the number two person in charge of North Carolina’s court system, who worked in the Appellate Section and Special Prosecutions Section of the AG’s Office for over a decade preceding his prosecution of Alan Gell, and the top criminal trial prosecutor in the AG’s Office state repeatedly under oath in 2004 that impeachment material of a prosecution witness is not exculpatory within the meaning of Brady, and the State had no duty to disclose it absent a specific request. I was even more baffled by the State Bar prosecutor’s utter failure to cross examine anyone about those erroneous assertions of law or, as I will mention later, the suggestion by Mr. Maxwell throughout the hearing that the defendants should somehow be excused from knowing those fundamental rules of criminal procedure because the first Gell trial was one of the first capital cases they had ever tried.

 

After the testimony of Justice Orr and Mr. Coman (who was Agent Ransome’s boss and head of the SBI during the first trial of Alan Gell, and who did a very honest and honorable job as lead prosecutor in the  second trial of Mr. Gell), Mr. Maxwell called a number of equally highly respected members of the judiciary as character witnesses. One of those members, a Superior Court judge, told the panel that “everyone” on the Superior Court bench was appalled that Mr. Hoke had been put through the grievance process.

 

In the face of that, the State Bar put on no evidence in rebuttal. They put on no evidence whatsoever to support the complaint’s allegation that Mr. Hoke and Ms. Graves had knowingly made misrepresentations to the court in 1998 when they handed over only 8 of the 17 witness statements. In fact, in closing argument, the Bar conceded that no such evidence existed, which essentially stripped the panel of authority to make such a finding.

 

After deliberating, the Disciplinary Hearing Commission panel understandably determined that Mr. Hoke and Ms. Graves had not knowingly made false statements to the court; after all, there had been no evidence or argument to that effect presented at the hearing by the State Bar prosecutors. However, for their “honest mistakes” of intentionally failing to turn over the secretly recorded conversation; unknowingly failing to turn over the other witness statements; and failing to adequately supervise a non-lawyer (Agent Ransome) upon whom they relied to comply with court orders, they were found responsible for violating the Rules of Professional Conduct. The panel then asked the lawyers representing the State Bar and the defendants for sentencing arguments. The lead State Bar prosecutor was barely on his feet for a minute. He basically said that there wasn’t a lot of precedent for this type of case and that the punishment should be somewhere between a censure and a stayed suspension. That was it. There was absolutely no evidence or argument presented regarding aggravating circumstances, despite the obvious existence of evidence from which the panel could have found them.

 

As I am sure you all know, Section .0014 of the Rules and Regulations of the North Carolina State Bar governs Formal Hearing in DHC matters. Subsection (w) clearly states: “If the charges of misconduct are established, the hearing committee will then consider any evidence relevant to the discipline to be imposed, including … evidence in aggravation … of the offense.” Subsection (w)(1) lists such evidence, including:

 

(G)            Refusal to acknowledge wrongful nature of conduct;

(H)            Vulnerability of victim;

(I)            Substantial experience in the practice of law.

 

Of course, the panel could only “consider … evidence” if it was submitted. Even after the charges of misconduct had been established, and even after the panel chair asked the lead State Bar prosecutor for a punishment argument, he made no effort to argue any aggravation.

 

Regarding the acknowledgment of the wrongful nature of their conduct, by my observation of the defendants’ testimonies, only Ms. Graves came close to acknowledging the wrongful nature of her conduct when she conceded that it was her responsibility to review her file in a death case. Beyond that, the defendants refused to acknowledge the true wrongful nature of their conduct, i.e., that they violated the Rules of Professional Conduct, and that their violation was responsible for putting an innocent man on death row.

 

Regarding the vulnerability of the victim, could anyone have been more vulnerable than Alan Gell? He was an indigent criminal defendant who had been incarcerated and shuffled among five appointed attorneys for three years, facing prosecution by the top prosecution unit in the State of North Carolina with the full support and resources of the top law enforcement agency in the State of North Carolina. (Again, see the enclosed letter.) As a criminal defendant, Alan Gell and his attorneys were completely at the mercy of Mr. Hoke and Ms. Graves in terms of looking at the prosecution’s file to identify and disclose exculpatory material, which included impeachment material. Indeed, although the law did not require a request to trigger the prosecutors’ duty, Mr. Gell’s attorneys had twice made such a request, and two different judges had twice ordered such disclosure. But Mr. Hoke and Ms. Graves either ignored or relied on an unreliable non-lawyer to comply with the orders, when they were the only ones who had the ability to make sure the order was satisfied. How much more vulnerable could the victim have been?

 

Finally, there was a near constant refrain by Mr. Maxwell that Mr. Hoke and Ms. Graves had only been involved in one or two capital cases at the time they prosecuted Mr. Gell. Without a doubt, Mr. Maxwell sang that refrain to suggest mitigation in the form of “inexperience in the practice of law,” Section .0014(w)(2)(F), or at least to refute aggravation in the form of “substantial experience in the practice of law,” Section .0014(w)(1)(I). But not once did the State Bar prosecutor remind the panel of testimony that had come from Mr. Hoke and Ms. Graves themselves: each had been practicing law for a decade at the time of the Gell trial (including judicial clerkships which had to have focused at some point on Brady issues), and they had, between them, 15 years of experience in Special Prosecutions of criminal cases. The number of capital trials was patently irrelevant. In every felony criminal case, Brady rules apply. How many capital cases does a prosecutor need under his belt before understanding the importance of reading his own case file, knowing fundamental criminal law concepts like the definition of exculpatory evidence, and appreciating his exclusive duty to identify it and disclose it to the defendant? Of course, the defendants and their learned character witnesses were never asked such questions, and the State Bar prosecutors did not pursue the issue at sentencing.

 

By contrast, as he had throughout the hearing, Jim Maxwell made a much more thorough and impassioned argument for his clients, citing law and facts. He then cited several mitigating factors under Section .0014(w)(2) that he believed to exist under the facts. Again, the State Bar prosecutors did not rise to rebut his argument or to raise an argument about aggravating factors. Not surprisingly, the panel then gave Ms. Graves and Mr. Hoke the lightest possible punishment that could be imposed under the circumstances. In handing down that punishment, the panel found all of the mitigating factors that Mr. Maxwell had listed, as well as the fact that the defendants had obviously “shown remorse” for their conduct.

 

With all due respect to the panel, I have no idea what they meant by the defendants showing remorse. In my mind, showing remorse would be accepting responsibility for one’s own conduct and apologizing to the victim of that conduct. Apart from Ms. Graves’ concession that it was her responsibility to review her entire case file in a capital murder prosecution (a concession Mr. Hoke never made), neither one of those things occurred at that hearing or ever. In his testimony, Mr. Hoke never once acknowledged that his failure to simply look at his entire file in a capital prosecution led to the wrongful incarceration and near execution of an innocent man. Neither Mr. Hoke nor Ms. Graves nor anyone on behalf of the State of North Carolina has ever apologized to Alan Gell or his family.

 

In fact, numerous times throughout the hearing and during breaks in the hearing, I heard Mr. Maxwell and supporters of Mr. Hoke and Ms. Graves insinuate (if not outright state) that the only reason Alan Gell is free is because of the attorneys and resources of the firms that represented him at the second trial. First of all, that belief is false. Alan Gell is free because he finally received a fair trial, the jury finally got to hear the entire truth, and his second trial prosecutors did not cheat. Second, that suggestion is insulting, not only to Alan Gell, but to the entire concept of our justice system. It is the type of belief one would expect from people uneducated in the law and ignorant of fundamental concepts of American justice, not respected members of the bench and bar who took an oath to uphold the United States and North Carolina constitutions when they became lawyers. And, of course, the sentiment went absolutely unchallenged by the State Bar prosecutors, who took the same oath.

 

After the decision was announced, Alan Gell immediately left the hearing room. I followed him. He was so overcome with emotion that he had to escape the media into the bathroom. I spent time in there with him as he struggled to compose himself. He said things to me in there that he later said to the media. He lamented the fact that the State Bar had never contacted him or his family to notify them about the hearing or discuss it in any way. He said that he tried to introduce himself in the hallway to the lead State Bar prosecutor, but he was basically dismissed. He said he didn’t understand why the panel found that Mr. Hoke and Ms. Graves had shown remorse, when neither one could look at him, let alone approach him and apologize to him.

 

I am not writing this letter to gratuitously insult any one person. I have no reason to doubt that Mr. Hoke and Ms. Graves earned every outstanding character endorsement they received during the hearing. As I wrote earlier, I don’t know Mr. Hoke, and what I knew of Ms. Graves before the Gell case is completely consistent with the outstanding character references she received from the witness stand on Thursday and Friday. Rather, I am writing this letter to memorialize how terribly wrong this whole case has been, and how bad this whole system can be, from beginning to end, especially for indigent defendants who are wronged by powerful people. I am also writing to express my frustration at the failure of the State Bar to really do anything about it.

 

It was all wrong from the beginning: from the initial scenario where Mr. Gell went through five court-appointed attorneys over three years and suffered a death penalty because of unethical prosecutorial conduct and reckless law enforcement conduct; to the post-conviction process where the Attorney General’s Office failed to concede obvious error by its own office and fought Mr. Gell’s request for a new, fair trial; to the State Bar prosecution, which appeared to lack even the most rudimentary commitment to success, especially when the challenged conduct put an innocent man on death row, threw North Carolina’s entire criminal justice system into question, and led to a fundamental change in the law of state criminal procedure to try to avoid such miscarriages of justice in the future.

 

            Practically speaking, Alan Gell had no real recourse regarding the years of his life that were taken from him, except for the State Bar’s investigation and prosecution of the people whose conduct took those years away. We as lawyers know that prosecutors enjoy absolute immunity from suit, and law enforcement officers enjoy qualified immunity, which is only slightly less bullet proof. The State Bar exists as a regulating body to protect the public from misconduct by lawyers. By my estimation, the State Bar failed miserably in that duty in this case. The reprimand, acknowledged by the panel chair to be the least possible punishment that could be rendered under the circumstances, sent the clearest of messages to the legal community and the citizens of our State, any of whom, at any time, could find themselves wrongfully charged with a crime: in the most serious of all criminal prosecutions, prosecutors can (a) fail to read their file, (b) rely on unreliable non-lawyers to comply with their own life-or-death, court-ordered, legally-prescribed duties in a case, and (c) perform life-or-death roles in cases (such as identifying and disclosing exculpatory information) under fundamental misunderstandings of criminal law that operate against the accused, and they will suffer only nominal punishment. And, in the case of one such prosecutor, he will get to continue running the State’s court system and assigning judges to preside over those very same types of cases.

 

            But it is not necessarily the result that bothers me, so much as the failure of the State Bar prosecutors to vigorously pursue any other result. After all, the panel can only make a decision based on the evidence and arguments before it. I am also appalled by the absolute failure of the State Bar to include—or even acknowledge—the victims in the process. I can only imagine what Alan Gell must have been feeling during deliberations when the lead State Bar prosecutor was socializing with character witnesses for Mr. Hoke and Ms. Graves without acknowledging the presence of Mr. Gell and his family. Cleary the lead State Bar prosecutor believed what Mr. Maxwell said in his opening statement: that this case had nothing to do with Alan Gell or his innocence.

 

            Well, nothing could be further from the truth. The Rules of Professional Conduct do not exist in a vacuum or in some theoretical universe where form is glorified over substance. They exist in the real world, because lawyers operate in the real world, and, when they operate unethically, they hurt real people in real ways. Sometimes a civil claim is lost or some money is misappropriated; here, a man was imprisoned for nearly a decade for a crime he did not commit and was forced to contemplate his execution for five years while watching his friends go to their deaths. His family was forced to visit him on death row. When the lawyers whose conduct resulted in all of that suffering were finally called to answer, I believe the victims deserved at least a phone call from the State Bar about that.

 

Throughout my experience in the Gell case, I always deferred comment about the prosecutorial and law enforcement misconduct that led to Mr. Gell’s first conviction until I got to hear their side of the story.

Now that I have heard it, and now that I have seen what little the State Bar did to challenge it, I am even more disheartened by the sad state of affairs in our system of justice, and I am committed to the concept of a death penalty moratorium, which is why I am sending copies of this letter and its enclosure to my representatives and leaders in the General Assembly in the hope that the moratorium issue will be reconsidered in the next session.

 

Prosecutors who don’t read their file and who fail to adequately supervise non-lawyers upon whom they rely to meet their life-or-death responsibilities. A senior SBI agent who twice failed to comply with prosecutors’ court-ordered requests to hand over all evidence of innocence in a death case (and who, as I understand it, has never himself been called to answer for that). Highly placed officials in our system of justice who recite fundamental misconceptions of criminal law which work to the detriment of the accused. And, now, a State Bar prosecution that appeared to take the path of least resistance to challenge any of it.

 

How in the world can anyone believe that we should be executing people under these circumstances?

 

 

Bradley Bannon

North Carolina State Bar No. 24106


[1] I have enclosed a copy of that letter.

[2] In fact, upon information and belief, Mr. Beard voluntarily contacted a staff liaison for the Bar after reading press accounts about the complaint and the defendants’ response regarding Mr. Beard’s conduct, but his comments were either not passed along to the actual prosecutors of the complaint or were ignored. When Mr. Beard contacted the lead prosecutor to follow up on that communication last Friday morning while the defendants were still presenting their case, he was told that what he had to say was not relevant to the State Bar’s prosecution and that the State Bar therefore did not want to bother him.

 

[3] See, e.g., Giglio v. United States, 405 U.S. 150 (1972); United States v. Bagley, 473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976); State of North Carolina v. Wise, 326 N.C. 421, 390 S.E.2d 142 (1990); and State of North Carolina v. Soyars, 332 N.C. 47, 418 S.E.2d 480 (1992), among many others.

 

Quoting Soyars directly: “Defendant has a constitutional right to the disclosure of exculpatory or favorable evidence. ‘Impeachment evidence, ... as well as exculpatory evidence, falls within the Brady rule.’ United States v. Bagley, 473 U.S. 667, 676 (1985); see also Brady v. Maryland, 373 U.S. 83 (1963). ‘This rule applies regardless of whether there has been a specific request for the evidence.’ State v. Wise, 326 N.C. 421, 429, 390 S.E.2d 142, 147 (citing United States v. Agurs, 427 U.S. 97 (1976), cert. denied, 498 U.S. 853  (1990)).”

[4] Coincidentally, although the SBI file contained the statements of all 17 witnesses, Agent Ransome only produced the statements of interviewees he had re-interviewed after the state settled on 4-3-95 as its theory regarding date of death and Agent Ransome had informed those interviewees of that “fact” before then asking them if they made a mistake in their earlier interviews.

[5] See Footnote 3.

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