Chapter 3: Gell defense left in dark

"Last Known to be Alive"

Joseph Neff, Staff Writer
December 10, 2002
The News and Observer

WINDSOR -- Until the moment police pressed his fingertips on an ink pad for his prints, Alan Gell didn't think that he would actually be charged with killing Allen Ray Jenkins.

He didn't even think he was a suspect. He never requested a lawyer. 

Figuring he had nothing to hide, he spoke freely with State Bureau of Investigation Agent Dwight Ransome and Aulander Police Chief Gordon Godwin. Told that Crystal Morris and Shanna Hall had named him as the murderer, he offered to help. Let me call the girls and you can listen to the conversation, he said. Listen to their answers.

No way, Ransome said. They believed the girls, not Gell.

Gell never changed his story: He didn't know Jenkins, never went to his house and had nothing to do with the murder. Jenkins' decomposing body was found in his home in the Bertie County town of Aulander on April 14, 1995. He had been shot to death.

In jail, charged with the crime, Gell felt confused, misunderstood, angry.

These feelings would not go away.

Respectful boy

James Alan Gell was 20 at the time of Jenkins' murder and is 28 now. Born in Columbus County, he moved around a lot as a child. Friends and family remember him as a respectful boy who did chores for neighbors -- cutting grass, fixing a mower -- but never wanted to be paid. He had a knack for drawing and art.

He dropped out of high school at age 16 and got his GED soon afterward at a community college. He worked at his mother's used car lot, or for his stepfather, a contractor who often worked at the sprawling Perdue chicken plant.

After he got his driver's license, Gell started dipping into drugs, first using, then selling. He became more secretive with his family and began hanging around with a different crowd. He had several arrests for minor drug possession that were dismissed.

While Gell has consistently denied any involvement in the slaying of Jenkins, his timing was terrible, because in the days surrounding Jenkins' murder, he was a one-man crime wave.

On April 2, 1995, he was arrested for stealing a tractor and released that night. On April 4, he took a truck belonging to the father of his friend, Dewayne Conner. Gell drove the truck to Virginia and Maryland with his girlfriend, Shanna Hall, to buy drugs. On his return, he was jailed for two weeks for the truck theft.

Soon after being released on house arrest, he stole some blank checks from his mother, cashed them and went to Florida with Conner. In Bradenton, Fla., on May 7, Gell and Conner ran out of a Pizza Hut without paying for their food or beer. Police arrested them and soon learned there was a warrant for Gell. They shipped him back to the Bertie-Martin Regional Jail in Windsor on June 25. He has been locked up ever since.

The charge against Gell rested on the premise that Jenkins was killed April 3 -- the only day Gell could have committed the crime. He was out of state April 4 and 5 and jailed from April 6 until April 20, six days after the body was found.

The two years Gell spent in jail waiting for trial had positive points. He sobered up, read a lot and drew, though the jailers would arbitrarily confiscate his artwork and pencils. His druggie friends didn't visit or write. His family rallied around him, though they didn't know what to do to help.

Still, Gell felt as if he had been rotting for two years. Nothing visible had happened in his case except a game of musical chairs among his lawyers.

His first lawyer, and then his second, had quit the case to work as prosecutors. His third was studying for a divinity degree at Duke University while practicing law in Windsor. In September 1997, several months before the start of the trial, she asked out, saying she couldn't take classes while facing the intense demands of a capital case.

That same month, Maynard Harrell became the fourth lawyer given the job of keeping Alan Gell off death row.

Gell's was the 20th capital case for Harrell, a veteran defense attorney from Plymouth. A Bertie County native, he has the ruddy, weather-beaten face of an avid hunter and fisherman.

Harrell opened Gell's court file and was appalled: Almost nothing had been done in two years.

No independent investigation had been conducted for the defense: no interviewing of witnesses, no spadework to challenge or rebut the state's case for Gell's guilt. Nor did Gell have a mitigation specialist, an investigator whose job is to prepare the case for why a jury, in the event of a guilty verdict, should reject the death penalty.

And, perhaps most telling, few motions had been filed.

Aptly named, motions move a court case along, driving the schedule, evidence, witnesses and legal issues. Of those that had been filed for the defense when Harrell took over, most were filed the day that Gell's third attorney asked out of the case.

With just a few months to investigate and prepare the case, Harrell was rowing upstream, with one arm tied behind his back.

Few files shared

Gell was thrilled with the appointment of the veteran defense lawyer. He thought Harrell was going to fix everything.

But Gell soon became disappointed, as Harrell made little progress.

Despite a 1997 order to do so, prosecutors had not turned over any material that could help exonerate Gell. And Gell's defense team turned up none of its own.

The pace had picked up in August 1997, when prosecutors dismissed first-degree murder and robbery charges against Crystal Morris and Shanna Hall and accepted guilty pleas to second-degree murder. The girls would face up to 10 years in prison, not life.

After the guilty pleas, the local prosecutors who had been handling the case handed it off to lawyers from then-Attorney General Mike Easley's office, because one of Gell's former lawyers now worked for the district attorney, creating a conflict of interest.

Alarmed that the case was finally moving ahead, Gell's mother paid $2,500 to Clifton Hardison, a private investigator. Despite repeated prodding, he produced no new evidence. Eight days into the trial, he faxed a report based entirely on a 4-month-old interview with Gell. Rather than gathering the information Harrell requested, he reported old or irrelevant facts about such things as Gell's sex life and his first meeting with Crystal and Shanna when buying marijuana.

Shortly before the trial began on Feb. 2, 1998, Harrell read a newspaper story saying that three people had seen Jenkins in Ahoskie on April 10 -- a full week after Gell had supposedly killed him.

This was important: Gell had an ironclad alibi from April 4 until after Jenkins' body was found April 14. He was out of state with Shanna on April 4 and 5, and in jail on the car-theft charge thereafter.

Harrell asked Superior Court Judge Louis Meyer to order prosecutors to hand over any exculpatory evidence -- material that could prove Gell's innocence.

The prosecutors replied that there was none. Some witnesses had said they saw Jenkins after April 3, prosecutor Debra Graves said, but they were mistaken.

"Ransome talked to those witnesses a number of times, and the dates change from time to time," Graves said. "There was nothing exculpatory about that information, and consequently we did not provide it."

At Judge Meyer's insistence, however, prosecutors handed over statements by 10 people.

All had been re-interviewed after April 3 had been established as the date of death, Meyer said, and all said they were unsure when they last saw Jenkins.

But "out of an abundance of caution," Meyer let the defense lawyers read the statements.

So on the first day of trial, the state finally gave Gell's lawyers reports of people who said they saw Jenkins alive after April 3.

But only some. All but one of the statements were from people whom Police Chief Godwin and SBI agent Ransome had re-interviewed after telling them Jenkins was killed April 3.

Like all defendants, Gell had the constitutional right to evidence in law enforcement files that could prove his innocence or cast doubt on the truthfulness of witnesses such as Crystal and Shanna.

Whether intentionally or inadvertently, the prosecution team did not turn over the statements of Donald Hale, Jenkins' lifelong friend who said he chatted with him April 7. They also did not provide the account of Willie Hoggard, his across-the-street neighbor who said he saw him that same day; and that of Ricky Alan Odom, who told police he talked with Jenkins about roofing his home on April 7; and that of Jenkins' brother Sidney, who said he had honked at him in town on April 8; and Edward and Margaret Adams, who saw him April 9.

The state did not hand over the tape recording of a phone call involving Crystal Morris, the state's key witness -- a conversation with evidence that Crystal was fabricating her account of the murder. And the state didn't turn over its numerous reports of Jenkins' interest in young girls and payments for sex.

The late production of the witness reports put Harrell at a disadvantage. The trial had begun, and the lawyers were in court all day, with little time to chase down people who might help their case.

Crystal on stand

The prosecution began its case by putting Crystal Morris on the stand. She was demure and soft-spoken, a far cry from the profane character heard on the taped phone call. The judge repeatedly urged her to speak up so jurors could hear her.

Crystal was the most important witness for the state. She testified that she saw Gell kill Jenkins. The state had no physical evidence tying Gell to the murder: no fingerprints, no footprints, no fibers, no DNA evidence. No one had seen Gell at Jenkins' home other than Crystal and Shanna.

In the weeks after the murder, Crystal had given six different versions of her role in the crime -- starting with not knowing anything about it and ending with an account that named Gell as the trigger man and acknowledged her own role as an accessory. She gave a seventh in August 1997 in the course of pleading guilty to second-degree murder.

Now, she provided Version Eight -- a rearrangement of the crime scene. Previously, she had said Jenkins was shot as he stood at the foot of his water bed. She later changed it, saying Jenkins was shot while standing in the doorway.

At trial, she moved the victim into the hallway and placed Gell in the bedroom, partly concealed behind the door. She and Jenkins were walking back to the bedroom, she said, when Gell fired the first shot. Jenkins stumbled into the bedroom and Gell shot him a second time. Jenkins fell on his back. Gell stole $400 in cash from a closet.

Harrell pressed Crystal during cross-examination, but not too much. He feared the jury would react badly if he seemed to be bullying a young woman.

Gell's mother, Jeanette Johnson, was a nervous wreck through the trial. She was desperate to help. After the SBI reports were handed over, she spent several days tracking down people so the recently hired mitigation specialist could interview them. At night, she went home and conducted her own amateur forensic experiments.

After Crystal testified that Gell had shot Jenkins after emerging from behind a door, Johnson and her husband Joel -- Gell's stepfather -- spent hours trying to re-create the scene. Joel Johnson, right-handed like Gell, took an unloaded shotgun and turned to his right around a door. It was awkward.

Later in the trial, an SBI crime scene investigator testified about a bloody pillow found next to Jenkins' body. The pillow had been ripped in places, apparently by pellets, but was still largely intact. The investigator speculated that Gell had held a pillow over the shotgun muzzle to muffle the blast.

That night, Jeanette Johnson made her husband act the scene out several times: left hand holding pillow over muzzle, right hand holding the loaded shotgun. Her husband refused to pull the trigger, fearing the recoil would smash his arm.

Jeanette Johnson hung the pillow on a swing set. She wanted to know what a shotgun would do to it. Joel shot a hole in it. White stuffing fluttered all over the yard.

The only medical evidence regarding the date of death was presented by Dr. M.G.F. Gilliland, a forensic pathologist at the medical school at East Carolina University. A tiny, intense woman with two decades of experience as a pathologist, Gilliland has testified in about 500 cases, most of them involving homicide. She is widely regarded as a precise, prepared and confident witness.

Gilliland explained that the rate of decomposition depends on temperature. The warmer it is, the faster the body rots. She also looked at the size of the maggots on the body. The age of the larvae would also help pinpoint time of death. She gave her opinion: Jenkins had been dead at least seven days when the autopsy took place April 15, and perhaps as many as 10 or 12 days. The murder could have occurred between April 3 and April 8.

No temperature data had been provided that would help her be more precise. "If the room was very nice and warm, then it would tend to be on the shorter" end of the range, she said. "If it took the flies awhile to get in ... the longer side would be as accurate."

Chuck Moore, a lawyer assisting Harrell with the defense, treated Gilliland cautiously during his cross examination, fearful that she would attack him if he pressed too hard.

He was also thrown off-guard. He had spoken with her in January and learned that she pegged the time since death at seven to 10 days, a range that would exonerate Gell given his rock-solid alibi from April 4 forward. When she offered a range of seven to 12 days on the stand, he was surprised and didn't regain his footing.

Moore did not ask the likelihood of death occurring on April 3, or whether Gilliland had seen the statements handed over at the start of the trial from witnesses who had once said they saw Jenkins alive after April 3.

The first page of the report by the Bertie County Medical Examiner said "LAST KNOWN TO BE ALIVE: April 8, 1995 mid-morning." Yet Moore did not ask her a single question about this.

But Moore's biggest problem was not lack of nerve. In hindsight, Harrell and Moore acknowledge, the trial was a litany of things not done, of evidence not provided, of questions not asked.

The jury did not hear from the Hunts, the next-door neighbors who said they saw Jenkins on the eighth. Ransome and Godwin had re-interviewed Mary Hunt and written a report saying she had been mistaken and had last seen Jenkins on the first.

The re-interview spoiled their usefulness. Harrell feared that putting these witnesses on the stand would undermine his case.

This was a murder case where time since death was paramount, yet the defense did not ask for money to hire an independent medical examiner to review the autopsy. Harrell and Moore didn't think the judge would allow it.

The defense lawyers knew that Crystal had given differing versions of the killing, and that her testimony was essential. Yet they did not hire a crime scene specialist to examine the shotgun pellets and trace their likely trajectory, or use the blood spatter and position of the body to map out where the shooter and the victim were standing.

Gell had no experts to rebut the state's version of the crime.

On Feb. 25, the jury took just over an hour to convict him of murder.

During the sentencing phase, Harrell put Gell's family and friends on the stand. Pleas for mercy, however, are best accompanied by remorse, and Gell continued to maintain his innocence.

Prosecutor David Hoke called for death in a powerful closing argument that was more sermon than summation. He hammered at Gell for ambushing Jenkins in the sanctity of his own home.

Hoke reminded jurors of the words of Gell's pastor, who testified that Gell had never acknowledged wrongdoing or shown remorse.

Gell interrupted Hoke. "I still deny the charges," he blurted out.

This gave more fuel to Hoke, who asked jurors to think about how important it was for them to feel safe in their own homes.

"Look at that feeling of peace, joy, comfort in your own home," he said. Contrast it to the act done "at the hands of this man who has not yet acknowledged any sorrow."

He addressed the jury, calling each member by name, and then:

"From the Old Testament and the Book of Numbers, anyone who kills a person is to be put to death as a murderer upon the testimony of witnesses. You've heard the testimony of witnesses. ... Now, they might argue to you the New Testament changes all that. No, it doesn't. Jesus didn't come to destroy the law or the prophecies of the Old Testament. He came to fulfill them.

"Listen to this in Deuteronomy. 'Cursed is the man who kills his neighbor secretly and all the people shall say amen. Cursed is the man who kills an innocent person for money, and all the people shall say amen.' It's time to sentence this man, a murderer, to die, and let the people of Bertie County say amen."

The jury needed just two hours to reach a conclusion: death.

Staff writer Joseph Neff can be reached at 829-4516 or [email protected]
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