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Two North Carolina prosecutors who were reprimanded by the state bar for withholding critical exculpatory evidence in a capital case have triggered an uproar among state attorneys, leading to an inquiry into the disciplinary process. The punishment, doled out by the North Carolina State Bar’s Disciplinary Hearing Commission, ignited a backlash among many of the state’s lawyers, who found it too lenient. In a rare action, the state bar held a meeting on Oct. 20 to air the controversy, which was attended by about 150 attorneys. On Oct. 22, at its quarterly meeting, the state bar’s governing council passed a resolution instructing the bar president to appoint a committee “to study and identify issues arising out of the . . . controversy” and to “recommend future actions and policies.” The report is due in January. The case of Alan Gell—the man who was wrongfully convicted and who spent about half of his more than nine years in prison on death row—has inspired widely divergent reactions among North Carolina lawyers. “The bar vigorously pursues its cases when it comes to clients’ property,” said Joseph Cheshire of Cheshire Parker Schneider Wells & Bryan of Raleigh, N.C., one of four attorneys who represented Gell in his retrial. “So our question is, why didn’t it happen when the admitted negligence of the attorneys caused someone to lose his freedom and almost lose his life?” But Tom Lunsford, a bar official, disagreed. “I have some familiarity with the case,” he said. “And from what I know, their presentation was appropriate and professionally responsible.” He noted that the bar had received criticism from some for prosecuting the attorneys for unintentional conduct. The Gell case has been a watershed legal event in North Carolina. Recent law-inspired by Gell and four other similar cases-requires that prosecutors’ files be open in all felony cases early in the proceedings. [NLJ, March 22; 11-10-03]. When Gell was prosecuted, only capital case files were opened after all appeals had been exhausted. Critics blame bar prosecutors for not calling any witnesses against David Hoke and Debra Graves, the two lawyers who were with a special prosecution section of the state attorney general’s office that prosecuted Gell in 1998 for the murder of of Allen Ray Jenkins three years earlier. At the disciplinary hearing, bar prosecutors David Johnson and Margaret Cloutier read aloud portions of Hoke’s and Graves’ depositions in which they asserted that their errors had been inadvertent. The only live testimony came from character witnesses for the accused lawyers, many of whom are judges. Cloutier and Johnson declined to comment. Hoke, who is now the assistant director of North Carolina’s Administrative Office of the Courts, referred calls to his attorney, James Maxwell of Durham, N.C.’s Maxwell Freeman & Bowman, who did not return calls seeking comment. Graves, now an assistant federal public defender, didn’t return calls for comment. Nine witness statements It is undisputed that prosecutors did not disclose the existence of nine witness statements in which each witness said she or he had seen the victim alive days after Gell had been jailed on unrelated charges. Prosecutors claimed they didn’t know the statements existed, although the witnesses were on the state’s witness list. Prosecutors also didn’t turn over a tape of their star witnesses-one a co-defendant of Gell’s-talking about the need to make up a story. Co-defendants subsequently named Gell as the triggerman. Hoke asserted in his deposition that the prosecutors did not turn over the tape because office policy dictated that impeachment evidence is not exculpatory within the meaning of Brady v. Maryland, 373 U.S. 83 (1963). The Supreme Court said otherwise in Giglio v. U.S, 405 U.S. 150 (1972). James Coman, the senior deputy attorney general, when testifying at the bar hearing, concurred that Hoke’s interpretation of “exculpatory” accurately reflected office policy. Also, in letters to Johnson and Lunsford, the state’s pathologist who testified at both Gell trials, M.G.F. Gilliland, asserted that Hoke and Graves had been “deceptive in the extreme” in their assertions that she had determined that the murder could only have occurred on April 3, 1995, prior to Gell’s incarceration. Gilliland was neither deposed nor called to testify at the disciplinary hearing.

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