The for­mer death row inmate con­tends the state vio­lat­ed his civ­il rights by with­hold­ing evi­dence

Joseph Neff, Staff Writer

May 3, 2005

The News and Observer

Former death row inmate Alan Gell on Monday sued five state pros­e­cu­tors and inves­ti­ga­tors in fed­er­al court, charg­ing that they vio­lat­ed his civ­il rights by with­hold­ing help­ful evi­dence from him at his 1998 trial.

“Gell’s ordeal was not an acci­dent,” the com­plaint says. ​“It result­ed from the con­cert­ed effort of vet­er­an law enforce­ment offi­cers of the North Carolina State Bureau of Investigation … as well as pros­e­cu­tors from the elite Special Prosecutions Unit of the North Carolina Attorney General’s office.”

The law­suit names SBI agent Dwight Ransome; for­mer Aulander Police Chief Gordon Godwin; David Hoke and Debra Graves, for­mer pros­e­cu­tors in the Attorney General’s Office; and William Ferrell, Hoke and Graves’ super­vi­sor at the time.

Gell spent nine years behind bars, half of it on death row, for mur­der in the 1995 death of Allen Ray Jenkins, a retired truck dri­ver in the small town of Aulander in Bertie County. A judge ordered a new tri­al for Gell in 2002 because the pros­e­cu­tors had with­held evi­dence favor­able to Gell. That evi­dence includ­ed state­ments from wit­ness­es who saw the vic­tim alive while Gell was in jail on a theft charge and a taped phone con­ver­sa­tion of the state’s two star wit­ness­es say­ing they had to ​“make up a sto­ry” for investigators.

A Bertie County jury quick­ly acquit­ted Gell at a tri­al in February 2004.

“To this day, no one from the state has apol­o­gized or made any amends for what was done to me,” Gell said Monday. ​“Maybe I’ll find out who abused their pow­ers. Right now every­one is stand­ing in a cir­cle and point­ing their fin­gers at each other.”

The com­plaint charges that Hoke, Graves, Ransome and Godwin act­ed togeth­er to ensure Gell’s false arrest, unfair tri­al and wrong­ful con­vic­tion by ignor­ing a judge’s order to give Gell’s attor­neys wit­ness state­ments that point­ed to Gell’s inno­cence. It alleges that the four ignored evi­dence that did­n’t fit their case and fab­ri­cat­ed evi­dence when Ransome and Godwin re-inter­viewed eight oth­er wit­ness­es who had seen the vic­tim alive while Gell was in jail.

“Ransome’s and Godwin’s pri­ma­ry goal in these ​‘rein­ter­views’ was not legit­i­mate inves­ti­ga­tion to deter­mine the truth, but rather to ​‘undo’ the wit­ness­es’ ini­tial excul­pa­to­ry state­ments and to replace them with false state­ments and/​or mem­o­ries that would be con­sis­tent with the pros­e­cu­tion’s the­o­ry against Gell,” the complaint said.

Gell has not request­ed a par­don from Gov. Mike Easley, who was attor­ney gen­er­al when his office prosecuted Gell.

Gell has retained an aggres­sive legal team to press his case. David Rudolf of Chapel Hill is most recent­ly known for his defense of Durham nov­el­ist Mike Peterson, who was con­vict­ed of mur­der. Barry Scheck is a founder of the Innocence Project in New York City and was one of O.J. Simpson’s defense attorneys.

Most lawyers in the field pre­dict the case will be defend­ed vig­or­ous­ly and could take years to get to trial.

“Most peo­ple don’t take kind­ly to charges that they vio­lat­ed some­one’s con­sti­tu­tion­al rights, par­tic­u­lar­ly in a high-pro­file case like this,” said Mark Davis, a Raleigh lawyer who spe­cial­izes in defend­ing civ­il rights lawsuits.

Hoke and Graves, like all pros­e­cu­tors, are pro­tect­ed by absolute immu­ni­ty. Courts have estab­lished this immu­ni­ty so a dis­trict attor­ney can’t be sued for bring­ing a weak case or sim­ply mak­ing a mistake.

“Absolute immu­ni­ty may not apply if the pros­e­cu­tor act­ed with mal­ice or intent to harm, but shy of that, it is hard to get around,” said Rick Glazier, a Fayetteville lawyer who has filed sev­er­al civ­il rights lawsuits.

In past cas­es, plain­tiffs such as Gell have been more suc­cess­ful in suing police offi­cers or inves­ti­ga­tors, who enjoy what is known as ​“qual­i­fied immu­ni­ty.” That means the police offi­cers can be held liable if they did some­thing that a rea­son­ably informed offi­cer would have known was ille­gal or unconstitutional.

None of the defen­dants could be reached for com­ment Monday after­noon. Noelle Talley, a spokes­woman for Attorney General Roy Cooper, said her office had not yet seen the com­plaint and could not comment.

Staff writer Joseph Neff can be reached at 829‑4516 or jneff@​newsobserver.​com.