Sunday, December 19, 2004

When Lawyers Misspeak

Last September David Hoke and Debra Graves were brought before the North Carolina Bar to answer to their performance (or lack of it) as prosecutors in the initial trial of Alan Gell. The facts surrounding the Gell case have become almost self evident because of the extensive coverage from the Raleigh News and Observer. For those that missed it, evidence was withheld in the first Gell trial and as a result of that and new interpretations of physical (forensic) evidence by medical examiners, the case was subsequently retried and resulted in an eventual acquittal.

Today’s “digression” being offered up by N&O staff reporters (Joseph Neff) is related to some statements made by the state’s senior prosecutor, Jim Coman during a hearing where the NC Bar Association considered what punishment was appropriate for prosecutors Graves and Hoke. At issue is whether or not state prosecutors are intentionally withholding evidence that should be presented to defense attorneys when appeals are considered or prior to trial. It should be noted that recent legislation has been passed (that was inspired by the case in question) that now requires full disclosure of evidence against the accused prior to trial.

Anyone familiar with the Gell case already understands that established disclosure procedures allowed defense attorneys to uncover the questionable statements that were withheld at first trial. Eventually this information was used to impeach or undermine the testimony of witnesses who implicated Gell in the murder of Allen Ray Jenkins. Now media reporters and lawyers for condemned inmates believe they’ve discovered an “odd policy”.

It’s understandable that lawyers (or media persons?) representing condemned inmates should question why prosecutors might not divulge all witness statements before trial. Even still, some testimony or witness statements may seem more relevant to the case at hand than others or some statements resemble “trash”. Sometimes during interrogation or questioning witnesses become agitated or sarcastic and say things that they might later regret. Are prosecutors required to provide evidence or testimony to other lawyers that they believe is not true or just stupid things that angry 15-year-old girls say when they are implicated in a murder? What happened then is now a moot issue. The law now says even when those witnesses “talked trash” it should be shared prior to trial. The lawyers in the Gell trial have since been admonished (or publicly spanked?) for their indiscretions.

None of the statements that impeached witnesses for the state were permanently hidden. All the evidence that existed prior to trial was eventually turned over by the same prosecutors who were eventually admonished. Some would argue that Alan Gell got more consideration in the courts because his case was considered in a “capital way” and that this worked in his favor. Even those who know and love Alan Gell, knew he was no “choir boy” before Jenkins was murdered. If law enforcement and prosecutors were eager to believe in Gell’s guilt it might have been because he’d already impeached himself. These facts or Gell’s history as a felon prior to being accused of murdering Jenkins escapes acknowledgement in the pages of the N&O. Now, who is withholding more or more often?

Missing in the pages of the Raleigh News and Observer is any reference to who (other than Alan Gell) might have murdered Allen Ray Jenkins. In their search for a “story” (not truth?), they’ve focused on attacking officers of the court or faults they think they see in procedure. Suddenly (or not so suddenly) it has become more important to reference information (or digressions) about other unrelated cases (Munsey) instead of the case at hand (Gell). If there is “new news” on the Jenkins murder, when will readers hear about it? Or is it more important to focus on misstatements by state prosecutors?

The courts have spoken on the Gell case (acquittal). The North Carolina Bar Association has admonished the lawyers involved in withholding evidence in the first Gell trial. If defense attorneys suspect that evidence has been wrongfully withheld in individual cases, arguments should be presented in our courts and decided “one by one” based on evidence, testimony, logic and facts, not en-masse or supported only by rumor, hearsay or speculation. If the Attorney General’s office has ever engaged in any “odd policies”, past or present, on other cases, that remains to be seen.

Is the Raleigh News and Observer "reporting" news (as it happens) or manufacturing it? Or is it in the business of creating fear, uncertainty and doubt where there really doesn’t need to be? More importantly, where’s justice for the family of Allen Ray Jenkins? If this really is more than “just another story” to the N&O, maybe they can do more than poke at prosecutors who happen to misspeak.