For the first time, the two prosecutors who put Alan Gell on death row have explained why they didn't hand over evidence pointing to Gell's innocence at his 1998 trial.

David Hoke and Debra Graves did not intentionally withhold witness statements that indicated the murder occurred while Gell was in jail on other charges, according to papers filed on their behalf with the N.C. State Bar.

The two lawyers said they didn't know the statements existed because they did not read their entire file as they prepared for the trial. Instead, Hoke and Graves said, they relied on the lead investigator in the case, State Bureau of Investigation agent Dwight Ransome, to tell them what was in the file.

Hoke and Graves "have never knowingly made any false statements to any court. They were certainly not attempting to keep appropriate information from the court or Mr. Gell or his defense," according to the document, filed by James Maxwell, a Durham lawyer representing the pair.

Gell was sentenced to death for the April 1995 murder of Allen Ray Jenkins, a retired truck driver who was shot and killed in his home in Aulander in Bertie County.

In 2002, a judge ordered a new trial because Hoke and Graves withheld the witness statements and a secretly taped phone conversation in which the state's star witness said she had to "make up a story" to tell police.

At Gell's second trial in February, a jury acquitted him on its first vote. The taped conversation and witness statements were critical evidence for the jury. Gell is now traveling the state speaking against the death penalty.

The case against Hoke and Graves unfolds as the legislature debates a death penalty moratorium and a proposal to require prosecutors to share their entire file with defendants before trial. The State Bar is scheduled to hear the case June 16. The two lawyers face punishment ranging from a verbal reprimand to disbarment.

Hoke is now the No. 2 administrator in the state court system. Graves works as a federal public defender in Raleigh. Ransome remains an SBI agent. None returned phone calls for comment.

At the start of Gell's 1998 trial, the prosecutors' files held statements from 17 witnesses who said they saw the murder victim alive between April 7 and April 10, 1995. Gell was in jail from April 6 until after Jenkins' body was found.

As the trial opened, the judge ordered Hoke and Graves to produce all such statements. Hoke and Graves said in their State Bar filing that they were unaware of such statements and relied on Ransome, the SBI agent, who produced only some of them.

"They had every reason to rely on a trusted and senior level Special Agent who had been involved in the initial investigation of this case when he assured them that the statements he was turning over were all that there were," their filing says.

Maxwell said he doesn't know whether the State Bar will accept Ransome's alleged behavior as a defense for Hoke and Graves. Joseph Cheshire V, a Raleigh lawyer who helped represent Gell at the second trial, said that this would only work if Ransome had hidden the statements.

"But if they have access to it in their file, they are required to read it and analyze it themselves," Cheshire said.

Hoke and Graves said that even if they had read the 17 statements, they wouldn't have realized that time of death was an issue. They said in their filing that the medical examiner had established as fact that April 3 was the date of death.

That assertion may come under scrutiny at the bar hearing. Neither of the medical examiners involved in this case, Dr. M.G.F. Gilliland and Dr. Page Hudson, testified that Jenkins was killed April 3. Hudson said this year that Jenkins was killed "a week or two" before April 14; at the 1998 trial, Gilliland gave a range of days, from April 3 to April 8.

Phone conversation

Hoke and Graves admitted they knowingly withheld the taped phone conversation in which Crystal Morris, the state's star witness, is heard rehearsing her story and saying she "had to make up a story" for police. In the filing, they said they knew the taped conversation would help Gell but thought they didn't have to hand it over.

"Their interpretation was that there had to be a specific request for the material," Maxwell said.

Several defense lawyers said this interpretation of the law was wrong. Prosecutors have a constitutional and ethical obligation to turn over evidence that can prove innocence or undercut the credibility of the state's witnesses, said Mary Ann Tally, a death penalty lawyer in Durham and former public defender.

"It almost adds up to willful blindness," Tally said. "They're saying, 'I refuse to read my files, I refuse to know the law, I choose to remain willfully ignorant and blind; therefore I have no obligations to hand this material over.'"

Maxwell said the law being considered by legislators to mandate that prosecutors hand over their entire files could have spared his clients from the charges they face.

"If there was an open-file policy, in a capital case like this, it would have prevented this," Maxwell said.