For executed men, audit's too late

Staff writersAugust 19, 2010 

In December 2002, a judge ordered Alan Gell off death row because prosecutors had withheld favorable evidence at his trial.

Amid the courtroom celebration, Gell turned to his lawyers, Jim Cooney and Mary Pollard, and asked a favor. Desmond Carter, a close friend on death row, was scheduled to be executed that night.

Can't you do something about Desmond? Gell implored. Can't you help him?

"We can't save him," Cooney recalled telling Gell. "He's going to die."

Gell burst into tears. Carter was executed by lethal injection that night.

While Gell received the evidence that freed him, Carter was one of three executed inmates who had test results withheld by the SBI crime laboratory.

In Carter's case, SBI analyst Duane Deaver issued a lab report saying blood was found on one item of evidence even though the test result was negative for blood.

Ken Rose, Carter's last lawyer, said he didn't know how the withheld evidence would have affected Carter, who confessed to stabbing to death his 71-year-old neighbor in Eden, north of Greensboro. Carter killed Helen Moore Purdy in March 1992 when she refused to lend him $5 to buy drugs. He then stole $15.

Carter's trial attorneys were inexperienced and unqualified to handle a capital case, Rose said. They never evaluated or challenged the SBI evidence.

"They took it at face value, assuming the evidence was true," Rose said. "No one examined it to see how it affected his case."

John Hardy Rose

Rose also represented John Hardy Rose, no relation, who was convicted of stabbing a neighbor and strangling her with a nylon strap, and then sexually violating her. He torched the body and buried her in a shallow grave in Graham County, in the western tip of the state. He was executed in 2001.

Rose, the lawyer, said there was no doubt his client had killed the woman, but there was a question of whether the killing was premeditated or impulsive.

The SBI did not disclose the negative results of a test for blood. Rose said the evidence could have been used to give him a life sentence or a second-degree murder conviction.

"There was testimony that there was blood all over the apartment, but also testimony he cleaned up the apartment," Rose said. "So, what was it the agents were actually looking at?"

Joseph Timothy Keel

Joseph Timothy Keel was executed in November 2003 for the 1990 shooting death of his father-in-law, John Simmons, on an Edgecombe County hog farm where Keel worked.

Jay Ferguson, Keel's lawyer, said he will not know how or whether the withheld evidence affected the case until he pulls the case files out of storage.

"This is the whole problem, there are no do-overs with the death penalty," Ferguson said. "We can't go back and fix these errors."

Still on death row

Four inmates on death row were mentioned in Wednesday's report as having test results withheld.

Patricia Jennings was convicted of killing her husband, an elderly retired businessman, in a Wilson hotel room in 1989. Five SBI agents testified at her trial, including two serologists. Jennings' lawyer argued her husband had dementia, a host of medical problems and fell. The blood evidence influenced the decisions both to convict and to impose the death penalty, said Gretchen Engel, Jenning's current lawyer.

John Robert Elliott was convicted of the 1993 murder of his live-in girlfriend's child in Davidson County.

In 1993, Terry Lee Ball broke into a minister's house, stabbed him and then killed his wife by stabbing her 20 times. He was convicted of murder.

Chris Roseboro was convicted of the 1992 rape and murder of a 72-year-old widow in Gaston County. Roseboro has maintained a friend, who pleaded guilty to burglary, committed the murder.

joseph.neff@newsobserver.com or 919-829-4516

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