News & Observer | newsobserver.com | When prosecutors say, 'My bad'

Columns by Steve Ford (2004)

Published: Oct 31, 2004 12:30 AM
Modified: Oct 24, 2005 11:37 AM

When prosecutors say, 'My bad'

When prosecutors say, 'My bad'

 

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Not that it's likely to haunt me to my grave, but a sound I heard the other day has been hard to get out of my mind.

It was the sound of a ballroom full of lawyers, snorting. With laughter.

No, I hadn't wandered into some comic's after-dinner routine at a lawyers' confab in Wrightsville Beach. The humor was being provided by other members of the profession -- the very ones responsible for making sure North Carolina's lawyers walk the straight and narrow when it comes to ethical conduct. And they weren't being laughed with. They were being laughed at.

The N.C. State Bar, which regulates our noble tribe of attorneys, had convened the session at the downtown Raleigh Sheraton to explain its handling of a delicate matter. Or, to put it another way, to try to extinguish the outrage among lawyers themselves at what they saw as a failure to properly discipline two prosecutors who, it could be argued, had railroaded an innocent man onto death row.

Alan Gell, as most will recall, was granted a new trial after it came to light that the two prosecutors who originally won his conviction in the murder of a Bertie County man had withheld evidence that would have worked in Gell's favor.

The speed with which the second trial yielded a not-guilty verdict merely underscored how weak the state's original case against Gell would have been if it hadn't relied on cheating.

Meanwhile, the State Bar had gotten involved, initiating what it calls a grievance proceeding against the two offending prosecutors from the state Attorney General's Office, then headed by one Mike Easley.

David Hoke, now a top administrator in the state court system, and Debra Graves, who's gone on to become a federal public defender, didn't dispute that the evidence in question had not been turned over to Gell's lawyers before his first trial, in compliance with a judge's order.

Their defense, once the Bar got around to asking, boiled down to a lack of malicious intent. Yes, they had messed up, but not on purpose. If they had known about the evidence (some of which indicated people had seen Allen Ray Jenkins alive after the last date on which Gell could have killed him; some of which cast doubt on the veracity of a key witness who fingered Gell), they surely would have passed it along.

The requisite lashing ensued, applied by the dreaded wet noodle. Hoke and Graves were reprimanded. They could have had their law licenses suspended, or yanked.

No doubt the Bar's disciplinary chiefs intended that to be the end of the matter. But attorneys who perceived a whitewash -- and who thought the affair put the whole profession in a bad light -- demanded to know why the Bar hadn't been tougher in challenging the prosecutors' version of events, or in penalizing them.

That's when the Bar decided to respond publicly to all the grief it was catching. General Custer would have felt right at home.

John McMillan, the Raleigh attorney who heads the Bar's grievance committee, took an hour walking the attentive Sheraton ballroom crowd through the steps leading up to the two reprimands. The denial by Hoke and Graves that they had intentionally done anything wrong was the crux of the issue, he said.

Then came the grilling. Lawyers took microphone in hand to question McMillan and the Bar's staff as to why there had not been a more vigorous effort, in proceedings before a disciplinary hearing panel, to challenge the prosecutors' version of events. Why had the staff relied on a "paper" case against them instead of calling witnesses? Why didn't penalties take into account the harm done to Gell?

In fact, from the Bar's perspective what had happened to Gell seemed almost beside the point. "The victim in this case was the system," intoned the Bar's president, Dudley Humphrey, during one exchange -- eliciting a chorus of snorts and giggles.

Clearly it was Gell, who happened to be in the audience that day, who had paid the highest price. Then there were the family members of Allen Ray Jenkins, who thought they knew who the murderer was but now have to cope with being on the wrong end of a mystery.

Yet Humphrey made a valid point. The state's justice system had taken a hit. And the Bar's response -- pursuing grievances against the errant prosecutors, and then opening its own conduct to scrutiny -- was necessary, if perhaps not sufficient, as a remedy.

There are of course no grounds to conclude with any certainty that either Hoke or Graves was more culpable in the Gell fiasco than they have admitted. Busy professionals can make inadvertent mistakes.

What's important is that there be no sense that mistakes can be too easily explained away without having to fully answer for them. If the criminal justice system is to function fairly, those in charge have to be driven by a sense of honor, and they have to be willing to be held to account. That's one more thing to keep in mind this week as we choose officials and judges who can become our last defense against abuses of the state's power.

Editorial page editor Steve Ford can be reached at 829-4512 or at sford@newsobserver.com
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