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Advocating for Those Left Behind: the Need for Discovery Reform in Non-Capital Post-Conviction Cases by Maitri “Mike” Klinkosum and Brad Bannon

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Advocating for Those Left Behind: the Need for Discovery Reform in Non-Capital Post-Conviction Cases by Maitri “Mike” Klinkosum and Brad Bannon MANAGED CARE LIABILITY ADVOCACY Advocating for Those Left Behind: The Need for Discovery Reform in Non-capital Post-conviction Cases by Maitri “Mike” Klinkosum and Brad Bannon n October 1, 2004, the new pre- In each of these cases, as well as nu- Mike Klinkosum trial discovery laws for felony merous others, the prosecution failed to is an assistant Ocriminal cases went into effect. By disclose evidence that would have aided capital defender enacting the new discovery rules in crimi- these individuals in asserting their rights to for the Forsyth nal cases,1 the North Carolina General As- due process, cross-examination, and a fair County Regional sembly recognized the problems of evi- trial. Yet the prosecutorial misconduct in Office of the dence being withheld in violation of Brady these cases only surfaced because each of Capital Defender v. Maryland 2 and the prosecutorial mis- the convicted individuals received a sen- where his work conduct plaguing the criminal justice sys- tence of death. If any of the individuals in concentrates tem in North Carolina. the named cases had been sentenced to life exclusively on The legislature was moved to action in in prison without parole, the misconduct first-degree this area of the law not through rhetoric re- committed against them by prosecutors murder cases. He obtained his BA from garding due process and equal protection, likely never would have come to light. UNC-Chapel Hill in 1992 and his JD from but because, for the first time, they were the University of Miami in 1995. Klinkosum presented with concrete evidence of inno- State v. James Alan Gell was formerly an assistant public defender cent citizens being sent to death row through The case of James Alan Gell provides the with the Cook County Public Defender’s prosecutorial misconduct in the semblance most recent and compelling example of the Office in Chicago, Illinois. He is a board of withheld exculpatory evidence.3 And the irony created by the current post-convic- certified specialist in state criminal law and reason for the discovery of this evidence tion discovery system in this state. Were is currently the chair of the Criminal was the capital post-conviction discovery it not for having received the death penalty, Defense Section of the Academy. statute enacted in 1996.4 Gell would still reside in prison under a Before 1996, defendants and their sentence of life without parole, and the Brad Bannon is lawyers, judges, and the public were forced misconduct of his prosecutors would still a member of to rely on the presumption that prosecu- be a secret. the law firm tors, as officers of the court, would adhere Alan Gell was indicted in Bertie County Cheshire Parker to prosecutorial ethics and constitutional in 1995 for the shotgun murder of Allen Schneider mandates and disclose relevant informa- Ray Jenkins. The indictment was based Bryan & Vitale tion that could assist a defendant in a crim- largely on accusations made by Crystal in Raleigh. inal case. In 1996, the General Assembly Morris and Shanna Hall, who lied to police He practices enacted N.C. Gen. Stat. § 1415(f), which on numerous occasions about their knowl- criminal specifically provides defendants sentenced edge of the murder before finally admitting defense in state to death with the complete files of all law their involvement, but then implicated and federal enforcement and prosecutorial agencies, Alan Gell as the shooter. There was no court and is a member of the Criminal including the work product of prosecutors.5 physical evidence linking Gell to the mur- Defense Section of the Academy. Bannon The enactment of the capital post- der, and he consistently denied any in- received his BA from the University of conviction discovery statute revealed the volvement after waiving his right to coun- South Carolina in 1993 and his JD from flaws of a criminal justice system riddled sel and voluntarily talking to the police. Campbell University in 1997. Along with with prosecutorial discovery violations and In the days and weeks following the Jim Cooney, Mary Pollard, and his senior procedures that allowed the prosecutors to murder, police interviewed 17 disinterested partner, Joe Cheshire, Bannon represented control the dissemination of discovery. With witnesses who reported that they saw Allen Alan Gell in the retrial that resulted in the enactment of the statute, the names of Ray Jenkins alive after April 3, 1995, the Gell’s acquittal last year. Charles Wayne Munsey, Jerry Lee Hamilton, night when Hall and Morris said the mur- Steven Mark Bishop, and recently, James der occurred, and the last point in time Alan Gell, became known to this state as the when Gell could have committed it (i.e., unfortunate victims of a system of pre-trial Gell was indisputably out of the state or in discovery tilted against the accused. custody on an unrelated felony larceny 8 Trial Briefs n FEBRUARY 2005 ADVOCATING FOR THOSE LEFT BEHIND charge from April 4 until April 17, when and come so close to being wrongfully ex- where State failed to disclose Brady ma- Jenkins’ body was discovered). ecuted, he would remain in prison today, terial—evidence that key witness against Alan Gell’s case went to trial in Febru- for the rest of his life, and the misconduct defendant had fabricated his story. ary 1998, and he was convicted and sen- of the prosecution would not be known. • State v. Bishop, No. 93 CRS 20410- tenced to die. Based upon the sentence of 20423 (Guilford County, January 10, death, Gell’s post-conviction attorneys The Systemic Nature of Prosecutorial 2000)—new trial ordered for due process were able to use the capital post-conviction Misconduct and a Lesson for violation where State failed to disclose discovery statute to find that the prosecu- Non-capital Cases Brady material—evidence that key wit- tors had withheld the statements of nu- The enactment of the capital post-convic- ness against defendant had fabricated his merous witnesses who saw Jenkins alive tion statute has given the rest of the legal story. after the last point in time when Alan Gell world and the public a much-needed • State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (Robeson County, 2002)— The legislature was moved to action . because, for the new trial ordered because State failed to first time, they were presented with concrete evidence of disclose Brady material—the name of innocent citizens being sent to death row . the confidential informant who impli- cated persons other than the defendant in the murders. could have killed him. The prosecution also glimpse inside the inner workings of North • State v. Gell, No. 95 CRS 1884 withheld the tape recording and transcript Carolina’s criminal justice system and into (Bertie County, December 9, 2002)— of a conversation secretly recorded by the the questionable prosecutorial philosophies conviction and death sentence summarily lead investigator, SBI Agent Dwight Ran- of some of those individuals chosen by vacated where State failed to disclose some, in which the co-defendants and chief popular vote to prosecute its criminal ac- Brady material—evidence that victim accusers, Crystal Morris and Shanna Hall, tions. The overriding factor in all of the was seen alive at times such that it was profanely discussed their involvement in cases in which a defendant has received impossible that defendant murdered him, Jenkins’ murder, sought information from some form of relief due to withheld Brady and evidence of a secretly recorded con- another person in the conversation about material is that prosecutorial misconduct versation wherein co-defendants dis- his knowledge of the ongoing criminal in- has been, and continues to be, a systemic cussed their involvement in the murder vestigation, and conceded that they had to problem. and about having to “make up a story” to “make up a story” to evolve with the course The systemic nature of this problem in evolve with the investigation. of the investigation. the United States is illustrated by the fact In December 2003, over the objection of that the United States Supreme Court, • State v. Hamilton, No. 95 CRS 1670 the Attorney General’s Office, the Honor- which grants certiorari in only one percent (Richmond County, April 23, 2003)— able Cy Grant summarily granted Alan of petitions filed,6 has granted certiorari new trial ordered because State failed to Gell’s Motion for Appropriate Relief and and rendered opinions in cases centering disclose Brady material—evidence that ordered a new trial. He based his decision upon withheld Brady evidence in each sole witness against defendant testified in solely on the prosecution’s Brady violation decade following 1963, when Brady was hope of receiving a deal from the State. in failing to disclose the witness statements decided. • State v. Hoffman, No 95 CRS and the taped conversation, especially in The systemic nature of this problem in 15695 (Union County, April 30, 2004)— light of two court orders requiring them to North Carolina is illustrated by the fact conviction and death sentence vacated do so: one entered by Judge Grant himself that since the enactment of the capital post- and new trial ordered because State in September 1997, and another entered by conviction discovery statute in 1996, seven failed to disclose Brady material— the trial judge in February 1998, after the individuals sentenced to death have re- evidence that key State witness received trial had commenced. ceived relief from the North Carolina a deal for his testimony. Alan Gell’s second trial began in Feb- courts because of withheld Brady material: ruary 2004. The withheld witness state- The withholding of Brady material has • State v.
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