Monday, October 12, 2009

Fitzsimon File: The unapologetic Department of Justice

NC Policy Watch


Fitzsimon File

The unapologetic Department of Justice

A widely respected Raleigh lawyer and former judge was discussing the Alan Gell case recently and his startling comments were a reminder of one of the most troubling aspects of the criminal justice system, the unwillingness of prosecutors to admit they made a mistake, to halt a trial when they discover that they might be trying to convict, even execute the wrong person.


Gell spent nine years behind bars for a murder he did not commit, four of them on death row awaiting his execution. A judge threw out Gell's conviction n 2001 after his lawyers discovered that prosecutors had withheld statements  from 17 witnesses who said they had seen the victim alive after the time that Gell could have killed him.


The News & Observer reported this week that the state agreed to pay Gell $3.9 million to settle a lawsuit he filed against the State Bureau of Investigation. Another N&O story profiled the SBI agent who investigated the case and ignored the eyewitness accounts that cleared Gell of the murder and neglected to tell prosecutors about other evidence that pointed to Gell's innocence. He still works for the SBI.


The prominent Raleigh attorney was considering this week's news and said first that he wasn't so sure Gell was innocent and then defended the lawyers in the Attorney General's office who prosecuted the case, blaming the SBI agent and the state medical examiner for any problems.


The medical examiner later testified that she too had been misled by the prosecutors.  The N&O reports that the SBI agent is unrepentant, refusing in a deposition to even express regret about how he conducted his investigation.


But none of that is the most disturbing part of Alan Gell's wrongful conviction and imprisonment. After lawyers discovered the eyewitness accounts that proved Gell could not have committed the murder and asked a judge to throw out his conviction, the Attorney General's office argued that Gell should still be executed.


They admitted that defense lawyers had been denied evidence that pointed to Gell's innocence, but no matter, kill him anyway.  Good thing the judge didn't listen.  Instead he vacated Gell's conviction, leaving the case in the hands of Attorney General Roy Cooper, who unbelievably decided to try Gell again, but not seek the death penalty.


Jurors heard all the evidence at that second trial and found Gell not guilty after a short deliberation. Some of the jurors told interviewers later that they didn't understand why the state had tried again to convict Gell.


Nobody has explained that decision yet or more importantly, why the state tried to execute him even after admitting that previously hidden evidence indicated that he couldn't have committed the crime. That's a long way past reasonable doubt.


The N&O's reporting also found that the two original prosecutors in the case said in depositions that they still believed Gell was guilty of the murder despite the overwhelming evidence that he was innocent and that a jury confirmed it.


The prosecutors were reprimanded by the State Bar for their conduct in the case, but none it seems to matter to much of the criminal justice establishment.  Maybe they can't let themselves admit that the state was trying to kill an innocent man. 


And that's the most disconcerting problem, that it is so hard for them to acknowledge it when they make mistakes.


The criminal justice system is not perfect. No system administered by humans can ever be. But we have a right to expect that folks who for the department named Justice seek it tirelessly, even when it means admitting they are wrong.


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