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
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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. Womble, No. 93 CRS 1992- ments and the taped conversation figured been so pervasive within the criminal jus- 1993 (Columbus County, July 22, 1998) prominently in the second trial. Indeed, the tice system that as recently as February —new trial ordered for due process vio- jury specifically requested the tape before 2004, the U.S. Supreme Court eloquently lation where State failed to disclose rendering a verdict of “not guilty” after less summarized the issue with the following Brady material—evidence concerning than three hours of deliberations. Alan Gell statement in Banks v. Dretke, yet another victim’s time of death inconsistent with spent nearly 10 years in prison—over five case involving withheld Brady material: evidence presented at trial. of them on death row awaiting his own ex- A rule thus declaring “prosecutor may ecution and watching many of his fellow • State v. Munsey, No. 93 CRS 4078 hide, defendant must seek,” is not ten- inmates walk to their deaths. Ironically, (Wilkes County, May 14, 1999)—new able in a system constitutionally bound had Gell not received that death sentence trial ordered for due process violation
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ADVOCATING FOR THOSE LEFT BEHIND
to accord defendants due process. “Or- Q: You didn’t believe that you had a held that prosecutors have a pre-trial duty dinarily we presume that public officials duty to provide that information, to disclose Brady material, which includes have properly discharged their official regardless of whether a motion impeachment material, even without a spe- duties.” We have several times under- was filed or not? cific or general request.10 In 1985, the scored the “special role played by the A: I did not believe the information United States Supreme Court specifically American prosecutor in the search for that I reviewed on the transcript rejected any distinction between impeach- truth in criminal trials.” Courts, litigants, qualified as Brady material. ment evidence and exculpatory evidence and juries properly anticipate that “oblig- for Brady purposes and reiterated that Q: Did you believe that Brady mater- ations to refrain from improper methods when the reliability of a witness may de- ial included impeachment material? to secure a conviction . . . plainly rest- termine guilt or innocence, Brady requires A: I did not believe that that was— ing upon the prosecuting attorney, will disclosure of evidence affecting the credi- my understanding of Brady was be faithfully observed.” Prosecutors’ dis- bility of that witness.11 that it applied to exculpatory ma- honest conduct or unwarranted conceal- In 1992, the North Carolina Supreme terial and that there had been some ment should attract no judicial appro- Court summarized those principles in State discussion of Brady in subsequent bation. The prudence of the careful v. Soyars.12 A year later, David Hoke was re- cases, such that impeaching mate- prosecutor should not be discouraged.7 minded of all of those principles under cir- rial was discussed, but in terms of cumstances very similar to those he would Along with the other named cases, State making a Brady disclosure, that face later in his prosecution of Alan Gell. v. Gell and the resulting disciplinary pro- that would rely primarily—that ceedings against the original prosecutors would relate primarily to exculpa- Another Brady Lesson in that case provide one of the clearest ex- tory material.8 In 1993, with 10 years of experience as an amples of the systemic nature of Brady- In 1972, the United States Supreme attorney and five years of experience in the type prosecutorial misconduct in our state. Court specifically stated that Brady mate- Special Prosecutions Unit of the Attorney In the disciplinary proceeding against rial includes impeachment material.9 In General’s Office, Hoke was one of two David Hoke and Debra Graves (the two 1976, the United States Supreme Court prosecutors involved in the first-degree prosecutors who obtained a death sentence against Alan Gell at his first trial), David Hoke testified in his deposition that the tape and transcript of the secretly recorded conversation of the testifying co-defen- dants were withheld from the defense be- cause they represented only “impeachment material,” not “exculpatory” material. Part of Hoke’s deposition reads as follows: Q: At the time, what did you believe Brady material to include? A: Exculpatory material that would tend to exonerate the defendant and would point to the guilt of an- other. In a nutshell, that’s what I believe Brady to encompass. Q: You didn’t believe Brady encom- passed impeachment material? *** A: I really did not. I believed that, you know, the statements would have been available to the defense un- der certain motions filed in some of the cases following Brady and interpreting Brady had those types of motions under Giglio and other cases been filed, but no such mo- tions had been filed. ***
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ADVOCATING FOR THOSE LEFT BEHIND murder trial of Charles Ray Smith. Smith to Hoke directly from State v. Soyars:13 “De- in our state’s top criminal prosecution unit. was charged with shooting an individual fendant has a constitutional right to the dis- At the disciplinary hearing of Hoke and whom Smith claimed had been threatening closure of exculpatory evidence or favor- Graves, North Carolina’s Senior Deputy him (Smith) with a knife shortly before the able evidence. Impeachment evidence as Attorney General for Law Enforcement shooting. well as exculpatory evidence falls within and Prosecutions at the Department of Jus- Grady Jefferson, a prosecution witness, the Brady rule.”14 Later, Judge Greeson tice, James J. Coman, testified that the false testified at Smith’s trial that he had seen continued: “I see nothing to indicate to me distinction operated as discovery policy at Smith get a knife from his truck during the that you did this purposely, willfully, or in the Department of Justice for many years.18 altercation; that he had not seen the vic- any way to harm the defense, but as Mr. Testifying about that policy and the se- tim with a knife until after the altercation; Manning pointed out, it has been done, and cretly taped conversation of the testifying and that he had previously seen Smith with [Soyars] says you have to give it to them co-defendants in State v. Gell, Coman had the knife found in the victim’s hand after if it’s impeachment.”15 the following exchange with State Bar the shooting. The obvious implication of While Judge Greeson did not dismiss prosecutor David Johnson: Jefferson’s testimony was that Smith the case or grant a mistrial, he did allow a Johnson: Was there any policy within planted the knife on the victim after the postponement of the trial for the defense the Attorney General’s Office in regard shooting and then lied about the victim be- team to conduct further investigation about to Brady material, specifically that im- ing armed during the altercation to bolster the matter. Also, in granting the relief, peachment material was required to be his claim of self-defense. Judge Greeson specifically told Hoke, “I turned over? However, in the hours following the don’t know how long you will stay in the shooting, Jefferson had given a statement business of prosecution, Mr. Assistant At- Coman: Well, I think you know, the to law enforcement about the altercation in torney General, but you will always be able standard policy would be that anything which he did not mention seeing Smith go to say you came within a very little bit of that was Brady material, there was no to his truck to get a knife during the alter- a first-degree murder case jerked out from question that you should turn it over. cation, and in which he affirmatively said under you.”16 I—I would say that it was, you know— he did not recognize the knife found in the Although Hoke stayed in “the business I think it was up to the individual pros- victim’s hand after the altercation. of prosecution” for the Attorney General’s The substance of Jefferson’s initial Office, he continued for years to follow the statement to law enforcement in the hours unconstitutional practice that Judge Gree- following the shooting was not provided to son warned him against in State v. Smith. the defense before trial or after Jefferson Thus, the systemic nature of Brady- related testified at trial, and was only inadvertently prosecutorial misconduct is perfectly illus- discovered by Smith’s defense counsel dur- trated by the fact that Hoke was directly ing cross-examination of a law enforce- educated by Judge Greeson during a first- ment officer after Jefferson had testified in degree murder trial under circumstances the State’s case. Citing the pre-trial Brady legally indistinguishable from State v. Gell motion and the obvious impeachment about the false distinction between “im- value of Jefferson’s first statement, defense peachment” and “exculpatory” evidence; attorney Thomas C. Manning immediately nevertheless, only a few years later, he per- sought relief from the court in the form of sisted in the exact same course of miscon- a dismissal of the charges or a mistrial. duct, rationalized by the exact same false When the trial court gave Hoke the op- distinction, which led to Alan Gell receiv- portunity to respond to the defense’s mo- ing the death sentence. tion, Hoke said that he was unaware of Jef- Moreover, in his 2004 deposition and ferson’s initial statement but that, in any testimony at the disciplinary hearing, event, he did not believe that impeachment Hoke, who is now second-in-command in material was exculpatory within the mean- North Carolina’s court system and the chief ing of Brady: “This is in the nature of im- legal advisor to the chief justice of the peachement,” Hoke responded, “not ex- North Carolina Supreme Court, continued, culpatory evidence, and under Brady, in error, to identify a distinction between which is all the defendant has cited to you, “impeachment” and “exculpatory” mater- that deals with exculpatory evidence, Your ial for Brady disclosure purposes.17 Honor.” And Hoke is not alone. An even greater The trial court, Judge Howard R. Gree- example of the systemic nature of Brady- son, then disabused Hoke of the legal rele- related prosecutorial misconduct is the fact vancy of any distinction between “exculpa- that Hoke’s erroneous distinction was pop- tory” and “impeachment” material, reading ular among many of his fellow prosecutors
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ADVOCATING FOR THOSE LEFT BEHIND
ecutor to determine in their case covery-related prosecutorial misconduct is In the case of a defendant who has been whether or not they thought something occurring in the most highly scrutinized convicted of a capital offense and sen- was Brady material. But I would say cases within the criminal justice system, tenced to death, the defendant’s prior that the prevailing view when I was then what type of misconduct has occurred trial or appellate counsel shall make there the first time, both under Judge in non-capital cases, where such high-level available to the capital defendant’s Thornburg and Attorney General Easley scrutiny, including the post-conviction dis- counsel their complete files relating to and now Governor Easley, was that just covery statute, does not exist? the case of the defendant. The State, to because something embarrassed a wit- the extent allowed by law, shall make ness or might be impeaching to them The Current System for Non-capital available to the capital defendant’s did not in and of itself, unless it went to Post-conviction Relief counsel the complete files of all law en- being exculpatory, was not something The current statutory scheme for non- forcement and prosecutorial agencies that we had to turn over. Minus a Hardy capital post-conviction relief in North Car- involved in the investigation of the motion being made. Now obviously, if olina is found within Article 89 of the N.C. crimes committed or the prosecution of after the person testifies, and the de- General Statutes—N.C. Gen. Stat. § 15A- the defendant. If the State has a reason- fense attorney says, “I want any mate- 1411 through 1422—and relates primarily able belief that allowing inspection of rials that you’ve got that might allow me to a particular device for post-conviction any portion of the files by counsel for to,” then I think absolutely you have an relief known as the Motion for Appropri- the capital defendant would not be in obligation to turn it over, and I think ate Relief. There are two types of Motions the interest of justice, the State may that was—if you went back or brought for Appropriate Relief (MARs): one which submit for inspection by the court those everybody in here that was handling must be filed after a verdict but within 10 portions of the files so identified. If upon cases in the A.G.’s office at that time, days before the entry of judgment;21 and examination of the files, the court finds that’s what the prevailing view would one which may be filed, in non-capital that the files could not assist the capi- be.19 cases, at any time after the verdict.22 For tal defendant in investigating, prepar- purposes of this article, the writers refer to ing, or presenting a motion for appro- As Coman’s testimony makes clear, the the Motion for Appropriate Relief in which priate relief, the court in its discretion issue of Brady-related prosecutorial mis- there is no limitation as to time, unless oth- may allow the State to withhold that conduct is not limited to a few isolated erwise specified. portion of the files.24 prosecutorial districts within North Car- For both types of MARs, there are cer- olina. Such misconduct has been a policy By enacting this procedure, the North tain circumstances and conditions that of the lead prosecutorial agency of this Carolina General Assembly recognized the must be present in order for a defendant state for many years, and Coman’s admis- inherent need for complete and effective to file a motion under either statutory sec- sion in that regard is testament to the fact review of all the materials contained in a tion. By passing N.C. Gen. Stat. § 1415 and that the withholding of Brady information prosecutorial or law enforcement file to en- providing for a post-conviction device that in North Carolina’s prosecutions has not sure that those who received the death sen- is unlimited as to the time for filing, the been inadvertent or limited. Whether in- tence were not convicted or sentenced legislature recognized that under certain tentional or based on an honest but clearly based on the misconduct or mistakes of the circumstances, there are errors at trial that erroneous belief about the law, such mis- prosecution or law enforcement. In creat- are so basic to the principles of due process conduct has been widespread. ing the capital post-conviction discovery and fundamental fairness that one should State v. Gell and the cases mentioned at statute, the legislature took a giant leap to- be able to go back into court at any time, the beginning of this article involved de- ward ensuring that the rights of the accused even many years after conviction, and seek fendants sentenced to death, all of whom were protected and preserved—even in relief.23 received the benefit of the capital post-con- situations where those rights could not be The withholding of Brady information viction discovery statute. But the lessons asserted at the trial level due to prosecu- by the prosecution is encompassed within learned from capital post-conviction litiga- torial misconduct. N.C. Gen. Stat. § 1415(b)(3), which provides tion under that statute are applicable with The result of this enactment was the ex- for appropriate relief when “[t]he conviction equal force to the pursuit of open-file dis- posure of prosecutorial misconduct in cap- was obtained in violation of the Constitu- covery in non-capital cases. The cases of ital cases, in the form of withheld Brady tion of the United States or the Constitution Munsey, Hamilton, Bishop, and Gell were material, which affected some of the most of the State of North Carolina.” death penalty cases where prosecutorial basic rights held by citizens of this state. Yet, the primary difference in post-con- misconduct came to light. Death penalty As a result of the exposure of that prose- viction MAR procedure between defen- cases are the most highly scrutinized cases cutorial misconduct, our governor and at- dants who receive a death sentence and within our system of justice, a fact that is torney general both proclaimed publicly those who do not is the fact that capital de- not forgotten by prosecutors.20 the need for a statutory scheme of open file fendants have the added benefit of N.C. Thus, in taking a further look into the discovery in criminal cases. Senator Tony Gen. Stat. § 1415(f), which provides for criminal justice system for purposes of re- Rand was instrumental in working with the complete post-conviction discovery in cap- form, we have to ask: If this type of dis- Academy and the Conference of District ital cases:
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ADVOCATING FOR THOSE LEFT BEHIND
Attorneys to craft the new laws that are 1 N.C. Gen. Stat. § 903, et. seq. 10 United States v. Agurs, 427 U.S. 97, 96 S.Ct. now in effect. 2 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 2392, 49 L.Ed.2d 342 (1976). (1963). 11 United States v. Bagley, 473 U.S. 667, 105 What is required now—a post-convic- 3 See, e.g., Joseph Neff, Justice Withheld, S.Ct. 3375, 87 L.Ed.2d 481 (1985); reaffirmed in tion open file statute in non-capital cases— Raleigh News & Observer, Nov. 2, 2003 (espe- Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 will close the gap in discovery and ensure cially Part I: “Cheating prosecutors ruin lives, go L.Ed.2d 490 (1995). unpunished; Law opens files for those on Death 12 332 N.C. 47, 418 S.E.2d 480 (1992). that all felony defendants, whether capi- Row, but other inmates are in the dark when the 13 332 N.C. 47, 418 S.E.2d 480 (1992). tal or non-capital, pre- or post-conviction, state keeps vital evidence secret”
Post-conviction Open-file Discovery: Now Is the Time
n what is becoming a more and more common occurrence, Thus, the jury that sentenced Jonathan Hoffman to die did I yet another death row inmate has been granted a new trial not have a chance to assess Porter’s truthfulness given the based on the state’s post-conviction open-file discovery law concessions he received for his testimony—they knew noth- that requires prosecutors to share helpful information with ing about the immunity deals or the reward money. defense lawyers. When the North Carolina General Assembly enacted the Death row inmate Jonathan Hoffman was convicted of post-conviction open-file discovery statute for capital cases, murdering a jewelry store owner in Marshville, North Car- they recognized the need for a complete review of all the ma- olina, during a robbery in November 1995. The key witness terials in a prosecutorial or law enforcement file to ensure that against Hoffman was his cousin, Johnell Porter, who, like those who received the death sentence were not convicted Hoffman, had a lengthy criminal record and, at the time, was or sentenced based on the misconduct or mistakes of the pros- looking at 20 to 40 years in prison. ecution or law enforcement. What was not shared with defense attorneys was that The question is, if discovery-related error is occurring in Porter apparently made a deal with the district attorney and the most highly scrutinized cases within the criminal justice federal officials in which he would receive a substantial re- system, what’s going on in non-capital cases? The files of in- duction in prison time, immunity from some state and federal dividuals convicted of non-capital crimes should be opened
charges, and reward money for testifying against his cousin. and examined. n
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