Charlotte News & Observer

False actions charged in trial
Hoke is now No. 2 official in state court system.
Gell spent nine years behind bars after arrest in slaying.
News and Observer By Joseph Neff
April 9, 2004

The N.C. State Bar has charged that two former prosecutors in the Attorney General's Office withheld evidence and made false statements to a judge in the 1998 murder trial that put Alan Gell on death row.

The prosecutors, David Hoke and Debra Graves, withheld a tape recording of the state's star witness saying she had to "make up a story" about the murder for police.

They also withheld eight witness statements that indicated the slaying occurred while Gell was in jail. Still, the prosecutors told the trial judge they had handed over all such witness statements.

The bar's seven-page complaint, obtained Thursday, said: "This representation was false." Hoke and Graves "knew, or should have known from a reasonable examination of the SBI investigatory file in their possession and control, that the representation was false."

Gell spent nine years behind bars, half of it on death row, after his arrest in the murder of Allen Ray Jenkins. He was acquitted at a second trial in February; the withheld evidence played a central role in the outcome of that trial.

A three-member panel of the State Bar's disciplinary committee will schedule a hearing within two to three months. The outcomes could range from dismissal of the bar's charges to revocation of Hoke's and Graves' law licenses.

In four decades of disciplining lawyers, the State Bar has punished only two prosecutors for withholding evidence. Both were put on a form of probation, in which they could continue to practice law as long as they broke no more laws and consulted with a mentor.

Hoke is the No. 2 administrator in the state court system, as assistant director of the Administrative Office of the Courts. Graves is a federal public defender in Raleigh.

Neither could be reached Thursday evening.

Jim Maxwell, a Durham lawyer, is representing both Hoke and Graves before the State Bar. Maxwell declined to comment Thursday. He said he planned to answer the State Bar's charges in a written response next week.

At Gell's 1998 trial, Hoke and Graves argued that Gell used a shotgun to ambush and kill Jenkins, a retired truck driver who lived in the small Bertie County town of Aulander.

Hoke and Graves built their case on the testimony of two girls, Crystal Morris and Shanna Hall. Both 15 at the time, Morris and Hall struck plea bargains; they received 10-year sentences for murder in return for testifying against Gell.

At trial, Hoke and Graves possessed a secretly recorded phone conversation in which Morris is heard talking about how she had to make up a story for police. Hoke and Graves knew about the tape and its contents but didn't turn it over to Gell's lawyers, the bar complaint alleged.

The tape was a central piece of evidence at Gell's retrial. Jurors played it during their deliberation and later said it was strong evidence of the girls' deceit and lack of remorse.

The other part of the bar complaint concerns interviews police conducted with 17 people who said they saw Jenkins alive after Gell had been jailed for car theft. Jenkins' time of death was the central point in Gell's trials, since he was either out of state or in jail for the 11 days before Jenkins' body was found.

The trial judge ordered Hoke and Graves to hand over all such statements to Gell's lawyers. The burden was on them as prosecutors to hand over these materials.

But according to the bar complaint, Hoke and Graves did not check their files but relied on SBI agent Dwight Ransome, whom they supervised, to provide them. Ransome produced statements from nine people who Ransome said had changed their stories in a second round of interviews.

Ransome did not produce statements from people he did not re-interview, the complaint said. Taken in the first hours after Jenkins' body was found, those statements were made by Jenkins' brother, his across-the-street neighbor, a lifelong friend and five others, all of whom said they saw Jenkins alive when Gell was in jail.

Ransome did not return phone calls Thursday.

Police/Prosecutor Misconduct
Truth in Justice