Charlotte News-Observer

N.C. man acquitted of murder
Gell spent nearly a decade on death row
Charolette Observer By Estes Thompson;Associated Press
February 18, 2004

WINDSOR, N.C. - Alan Gell, who was removed from death row and given a new trial after a judge ruled that prosecutors withheld key evidence in his case, was acquitted Wednesday of the 1995 murder of Allen Ray Jenkins.

Jurors deliberated just 2 1/2 hours before returning the verdict in Bertie County Superior Court.

The Gell case has been a cornerstone of arguments that North Carolina needs to impose a moratorium on executions while lawmakers study the criminal justice system and Wednesday's verdict is certain to fuel that debate.

As jurors left the courtroom, Gell, 28, hugged his lawyers. His mother, Jeanette Johnson, wept as she held the hand of Gell's sister, Frankie Johnson.

Once court was dismissed, Gell was asked what he was going to do.

"Go home, where I should have been years ago," he said.

Prosecutors from the state Attorney General's office, who handled Gell's retrial, were not seeking the death penalty, but Gell did face an automatic life prison sentence if he was convicted.

The prosecutors left shortly after the verdict was read, without making comment. The office of Attorney General Roy Cooper did not immediately return a phone message seeking reaction.

Gell's stepfather, Joel Johnson of Lewiston, was jubilant.

"We finally got the truth," Johnson said. "We have felt sure he was not guilty most of the time. It was a hard fight. You can't win a fight when the other side makes up the evidence."

Asked whether he harbors hard feelings against the state for nearly a decade of imprisonment, Gell replied, "No comment. As you all know, there was some misconduct."

Gell was acquitted on all four counts that he faced: first-degree murder; conspiracy to commit first degree murder; conspiracy to commit robbery with a firearm; and robbery with a firearm.

The body of Jenkins, a 56-year-old retired truck driver, was found on April 14, 1995, inside his home in Aulander. He had been shot twice with a shotgun.

Prosecutors built a case against Gell based on the testimony of two teenagers, Crystal Morris and Shanna Hall, Gell's former girlfriend, who testified that they saw Gell pull the trigger and kill Jenkins during a robbery on April 3, 1995

But prosecutors in Gell's original trial withheld from defense lawyers a secretly taped phone call in which Morris, who was then 15 years old, did not answer when her boyfriend asked her twice whether Gell killed Jenkins.

She also told her boyfriend she had to "make up a story" about Jenkins' death.

Also withheld by prosecutors were statements from witnesses who said they saw Jenkins alive after April 3.

Gell was either out of state or in jail on a car-theft charge from April 4 until after Jenkins' body was found April 14, and 17 witnesses told investigators that they saw Jenkins alive between April 7 and 10.

Defense lawyers James Cooney and Joseph Cheshire V argued during the retrial that jurors should listen to those witnesses and to three scientific experts who either train police investigators or typically testify on behalf of state prosecutors. Those defense witnesses told jurors Jenkins' corpse and the scene of his killing were not consistent with the prosecution's argument that he was killed 11 days before his body was found.

Defense lawyers also argued that investigators also found no physical evidence such as hair, blood, fingerprints or fibers linking Gell to Jenkins' death. Police found the shotgun and other items in July 1995 after Morris and Hall told them where they had been hidden.

Both Hall and Morris reached plea bargains with prosecutors in which they promised to testify truthfully in return for being allowed to plead guilty to second-degree murder and receive sentences of nearly 10 years in prison.

The acquittal of Gell came less than two weeks after Darryl Hunt was cleared of all charges in a 1984 rape and killing in Winston-Salem. Hunt, who was found guilty of the murder of Deborah Sykes at two jury trials, was freed in December after a DNA test pinned the crime on another man, who has since confessed.

On that same day, Feb. 6, the N.C. Supreme Court overturned two death sentences, ordering a new trial in one case and a new sentencing in the other.

The state Senate approved a death penalty moratorium bill last year, but the bill was never taken up by the state House.

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