Pleading ignorance | Bob Burtman | Indy Week
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Pleading ignorance 

Bandwagon-jumping is a favorite sport of the elected set, especially when the bandwagon takes the form of a cause celebre that has captured the popular imagination. Former non-entities Clay Aiken, Jessica Lynch and Erin Brockovich found themselves the toast of officialdom after their fortunes changed. The longest coattails in the country still belong to Rudy Giuliani, an object of ridicule as mayor of New York until 9/11 immemorialized him as a symbol of resilience. Opportunistic politicians love to associate themselves with these heroes of the moment, arranging photo ops and issuing proclamations that have all the sincerity of Bre'r Rabbit.

So it's hardly a shock that two advocates of recently exonerated death-row inmate Alan Gell should emerge from the upper echelons of state government. First, Attorney General Roy Cooper pronounced that Gell's first trial had been a "travesty," and that he supported the principal of opening the files of police and prosecutors to the defense in capital cases in order to prevent a replay of the Gell fiasco. Then, Gov. Mike Easley (who had pronounced himself an "official fan" of Aiken's last May) weighed in via his legal counsel, Reuben Young. In a letter to The News & Observer, Young claimed that as Attorney General, Easley had "championed the law that led to Gell's ultimate acquittal."

It took less than 24 hours for N&O reporter Joe Neff to put the lie to Young's assertion. In fact, Easley had vigorously opposed the provision in the 1996 bill that would have opened Gell's files to his post-conviction lawyers. For the next two years, Easley's office fought the provision and helped prosecutors avoid turning over their files until a state Supreme Court ruling forced them to comply.

It's not clear if Young wrote the letter on his own initiative or was asked to do so, nor is it clear how he feels about the egg on his face--he did not return phone calls seeking comment. What is obvious, on the other hand, is that Easley wanted to position himself on the winning side of the issue, especially after the media called on him to take a more proactive position on Gell and the opening of files.

Cooper's sudden transformation from Attack Dog to Evenhanded Arbiter of Justice is even more suspect. After steadfastly refusing to comment on the Gell case or similar instances of prosecutorial misconduct uncovered by Neff and other journalists, he decided to break his silence in the wake of Gell's retrial--but only after seeing his name muddied in editorials across the state, such as the one in the Wilmington Star-News headlined "Does Roy Cooper care about decency?"

Only a gullible chump would swallow the notion that Cooper's soundbites were inspired by some epiphany he had during the Gell experience, rather than by the jury's inevitable not-guilty verdict and the media firestorm that followed. After all, even the most headstrong politician knows that brutally negative coverage doesn't play very well in an election year.

But Cooper seems willing to assume that chumps constitute the majority in North Carolina, and that they have short memories. Question: If Gell's first trial was such a travesty, why did Cooper's office oppose a new trial in the first place? After defense lawyers filed a motion in 2002 for a new trial following the revelations about withheld evidence that dramatically tilted the facts in Gell's favor, Cooper's henchmen responded by stating that the new evidence wouldn't have made any difference in the outcome of the case--an absurd assertion by any standard, as the jury demonstrated. And this from a guy who defended his decision to retry Gell by stating in a letter to The N&O that "

Evidence in a case as important as murder deserves consideration by a jury, not single-handed dismissal by me or anyone else."

Cooper offers an explanation for this seeming hypocrisy: He pleads ignorance. Blaming his underlings for their blind pursuit of Gell's execution, Cooper says that after a judge rejected the motion and ordered the retrial, he generously decided to let it go. " When this matter came to my personal attention," Cooper told The N&O, "I directed that the order not be appealed, and that there be a full reinvestigation in this case."

It's hard to know how the matter could possibly have escaped his attention in the first place--sources say that concerted efforts were indeed made to apprise him of Gell's situation. Regardless, the new trial was ordered in the midst of Neff's five-part expose of the case, and Cooper knows full well that even if he'd wanted to appeal, any efforts to further obstruct justice would have been publicly shredded.

Another question: What happened to all the "new evidence" Cooper kept promising would emerge at the retrial? In the end, the only new evidence was actually old evidence with a few insignificant tweaks. Certainly nothing that made any difference in the outcome, to borrow Cooper's favorite line.

And lest we succumb to Cooper's bromides, one need only look at his actions in other cases to divine his true sentiments. In January his office filed an objection to a retrial for Jonathan Hoffman, a death-row inmate whose innocence claim was detailed in Neff's November series on prosecutorial misconduct. Hoffman's lawyers uncovered evidence withheld by the prosecution that the state's star witness had worked four undisclosed deals with federal and state authorities in exchange for his testimony at trial. They discovered that prosecutors had altered documents given to the trial judge that showed evidence of the deals. And they found a page of a witness statement, again not turned over to the defense, that discredited other state's witnesses.

Cooper's response? Reprising the Gell reasoning, he told the courts that the missing evidence was either irrelevant or immaterial to the outcome.

So much for his alleged belief that a jury should make such a determination.

In fact, Cooper's office always proffers the same arguments in cases involving claims of prosecutorial misconduct: The evidence would have made no difference; prosecutors didn't know it was there, or if they did, they made an honest mistake. "I think they've got a form they use, and they just change the name at the top," criminal defense attorney Jim Craven observes wryly.

Craven represents a death-row inmate whose case was similarly tainted by withheld evidence. Johnny Parker was convicted of a 1994 double murder in Sampson County and prosecutors contended that Parker was the sole perpetrator. But they failed to turn over documents that indicated the crimes were the work of at least several people, including a statement by a man whose best friend confessed his participation. One of the state's most damaging pieces of evidence was an almost-perfect bloody shoeprint (which matched Parker's shoes) on a piece of newspaper that investigators had supposedly found at the top of a staircase. But the shoeprint didn't appear until several days after the crime, and detailed crime-scene photos of the area show no such print or piece of newspaper. "It's not as grievous as the Gell case," says Craven, "but I'd be hard-pressed to write a fictional account more grievous than that."

Thus far, Parker's appeals have failed to sway the courts. Cooper knows that the courts have historically viewed allegations of prosecutorial misconduct with skepticism. Even when they find in favor of the defendant, they often bend over backwards to note that withheld evidence was probably an oversight, or an honest mistake. And since the State Bar rarely goes after prosecutors who cheat, what's the harm in bending or breaking the rules to get a guy they know is guilty?

The new evidence in Parker's case wouldn't have made any difference, wrote Cooper's minions. That was also their spiel in the case of Glen Chapman, who will soon get a hearing on his claim that prosecutors withheld exculpatory evidence in his Catawba County case, including several documents submitted to the defense that were altered to remove information favorable to Chapman.

Post-Gell, Cooper promises to take a zero-tolerance position against similar abuses of the justice system. But to truly change his tune, he'd first have to retool the orchestra, because the attorney general's office is stacked with true believers who seem to think their primary objective is to protect guilty verdicts and death sentences at all costs. Many have been actively involved in cases attended by charges of withheld evidence or other prosecutorial misconduct.

Bill Farrell, for example, who heads the criminal division, was a central figure in the case of Robert McDowell, whose death sentence was overturned in 1988 by the conservative Federal Fourth Circuit Court of Appeals. Farrell helped prosecute McDowell while an assistant district attorney. Later, after he'd moved to the AG's office, he contended that withheld evidence in the case--a victim's statement that her assailant was white, when McDowell is black--wouldn't have mattered.

And Jim Coman, one of Cooper's top prosecutors and the architect of the "thorough investigation" of Gell's case that convinced prosecutors Gell was still guilty, defended his decision not to question the medical examiner whose testimony helped win Gell's freedom. The witness had "gone over to the other side," he said, and he therefore saw nothing to be gained from talking to her. How about the truth, Jim?

Pontificating about the Gell case, Cooper told The N&O that "we need to do everything we can do now to prevent such a thing from happening in the future." A whistlestop campaign tour with Clay Aiken would be more convincing. EndBlock

Contact Burtman at burtman@indyweek.com

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