There's not been much to smile about in the newspapers lately, so when Alan Gell came into our kitchen on the front page of The News & Observer last month, acquitted at last of the murder charges that landed him on death row six years ago, it was hard not to grin right along with him. Hard not to celebrate with his mother and sister, marching arm-in-arm with him out of the Bertie County Courthouse. Hard not to feel the hope that shone down on them with the pale February sun.
Gell's acquittal is good news for a lot of people, most especially his family and the lawyers who fought so hard to prove that he did not kill Allen Ray Jenkins in April 1995. It's also good news for the men and women who sit on North Carolina's death row, and for the large network of death penalty opponents who have watched Gell's story unfold. Glad as they are for Gell's private victory--an innocent man's future reclaimed--these activists, along with a growing number of death penalty supporters who are troubled by the system's flaws, also see the broader implications. From Gell's legal and personal triumph they hope to extract momentum for a death penalty moratorium.
Of course, not everyone reads the same message in Gell's exoneration, or in the recent overturned convictions of death-row inmates Jerry Lee Hamilton and Charles Munsey. Soon after the Gell verdict I saw a homemade poster in the back window of a burgundy Oldsmobile. The poster showed a picture of Gell cut out from the newspapers and the stenciled message: THE SYSTEM WORKS!!!! NO MORITORIUM (sic) FOR MURDERERS. And, in smaller letters along the bottom: He got his justice.
It's been almost five years since Sen. Ellie Kinnaird introduced a bill to halt executions for a two-year period, a temporary moratorium that would allow an examination of when and how we practice capital punishment in North Carolina. In this heavily pro-death penalty state, the bill has garnered a surprising amount of support. It passed the Senate last April with the backing of death penalty supporters like Marc Basnight and Charlotte's Dan Clodfelter, and is endorsed by hundreds of municipalities, churches and businesses. The legislation now waits for a vote in the House, where moratorium advocates face an uphill battle. At the center of the debate are two issues: inequities in how the death penalty is meted out, and the procedural and ethical flaws showcased by Alan Gell's case.
Of course, the bill also has its critics--right up to the governor, the attorney general and the state's chief justice--and if moratorium supporters have spun the Gell case to their advantage, its opponents have spun it right back. Arguing against a bill they say is the first step toward permanent abolition, these people argue that if Gell--or Hamilton, or Munsey--prove anything, it is that the system works to protect defendants and to ensure that errors in capital cases are caught and rectified.
Speaking to various media, these moratorium opponents have vigorously defended the capital punishment system as it stands. Wake County District Attorney Colon Willoughby, for instance, announced in the aftermath of the Senate vote that there's not a single documented case of an innocent person being put to death in this state. (Willoughby also remarked that we don't close hospitals just because thousands of people die from medical mistakes.) And state Supreme Court Justice I. Beverly Lake Jr. praised the state's death-penalty review system, saying it was "as accomplished as any human endeavor."
Among House representatives, too, the moratorium has numerous critics who insist that sufficient safeguards are in effect and that legislators ought not intervene in the decisions of judges and juries. "I think the system definitely leans over backward to protect these people," said Davidson County Rep. Hugh Holliman. And Rick Eddins, the Raleigh representative who heads opposition to the bill in the House, has declared that "the system is working fine as it is." Anytime Eddins needs to re-kindle his passion for the death penalty, he said, he pulls out the autopsy photo of his murdered uncle, an item he keeps in his office at the legislature. The criminals who sit on death row, he has said, are the worst of the worst. "These are people's nightmares," he said, "like you see in the movies."
In a way, of course, the critics have a point. The atrocities Alan Gell endured--his quick and dirty arrest, the overwhelmed and unprepared defense lawyers who saw him from arrest to conviction, the prosecutors who withheld evidence--all came to light in the last two years of his ordeal. The truth, so goes the platitude, will set you free, and in the end Gell got the truth. Just how much justice you find in the march toward that truth depends on what you make of Gell's years on death row. It also depends on your faith in the system--your belief that, somehow or another, in the crapshoot of criminal justice, the truth always prevails.
"Many things happen between the lip and the cup," Robert Burton wrote in Anatomy of Melancholy. In Gell's case, three extraordinary things happened. First, in the aftermath of his conviction and failed direct appeal, he was assigned two post-conviction attorneys who took their jobs seriously. Searching for chinks in the prosecution's armor and knowing their client had an airtight alibi for certain days close to the murder, Mary Pollard and Jim Cooney quickly zeroed in on the question of when, exactly, Allen Ray Jenkins died. They uncovered, in the prosecutors' files, 17 witnesses who said they saw Jenkins after the day prosecutors said he died; they also found a taped conversation in which the state's key witness contradicted earlier stories told to the police and implicated herself in the murder.
That evidence alone--and the fact that prosecutors hid it during trial--was significant, but not, perhaps, enough to exonerate Gell. Pollard went further. She hired several different experts to look closely at photos of Jenkins' decomposing body, to determine the temperature inside Jenkins' house, and to gauge the development of the maggots found at the site. Those experts' conclusions, plus the testimony from witnesses who saw Jenkins before he was killed and the taped conversation of the state's star witness, were strong evidence that Jenkins had died days later than prosecutors alleged, at a time when Gell was either out of the state or in jail on separate charges.
Though many people thought Gell should have been freed on the basis of his lawyers' findings, the state decided to try him again. Still, Gell's good fortune held. Joining Pollard and Cooney for the re-trial was Raleigh lawyer Joe Cheshire, a respected veteran criminal defense attorney. It was quite a bench for a poor kid from Bertie County, but Cheshire, Cooney and Pollard were determined to prove their client's innocence--even if it meant losing money in the process. Facing state prosecutors with virtually unlimited resources, Cheshire committed to work for a fraction of his usual fee, and Cooney's law firm, Womble, Carlyle, Sandridge and Rice, agreed to absorb any costs not reimbursed by the state's office of Indigent Services. Alan Gell was not a rich man, but had a rich man's defense.
The final piece of Gell's good fortune came in the form of News & Observer reporter Joe Neff. Two years ago, Neff wrote a series of articles about Allen Jenkins' murder, the state's case against Gell, his 1998 trial and conviction, and the evidence Gell's post-conviction lawyers had unearthed.
Neff is a remarkable reporter with a history of groundbreaking criminal justice investigations and an unsentimental eye for the truth. He's smart, meticulous, fearless, and he has a great eye for the kind of details that make an article a story. Neff didn't just write up Gell's legal history, he gave us succinct portraits: of small-town Bertie County, of the "body farm" where scientists study human decomposition, of Gell himself as a punk kid destined for trouble. The particulars were fabulous; from Neff we learned that Allen Ray Jenkins liked young girls and loud parties, and that his favorite drink was gin and Mountain Dew. We learned that state investigators visited people who saw Jenkins before his death and tried to alter their recollections. We got a blow-by-blow of the mutable testimony of the state's key witness, a young woman whose story shifted like the sands of Arabia. And we got a primer in the life cycle of the blowfly.
Once the re-trial began, Neff sent daily reports from the Bertie County Courthouse, describing the lawyers, the judge, the testimony and the scene that followed the verdict. Without veering for an instant from the facts or sounding a single ideological note, the leitmotif of Neff's story was clear: The state had sent a man to his death while withholding crucial exculpatory evidence.
Three days after the Gell verdict, The N&O ran a follow-up article in which Neff scrutinized N.C. Attorney General Roy Cooper's handling of the case, in particular his decision to order a full re-investigation and re-trial of a man whose innocence, many believed, was incontrovertible. Cooper declined Neff's request for an interview.
Whatever your take on capital punishment, it seems clear that Alan Gell's deliverance from death row was neither inevitable nor routine. It rested not on safeguards in the system, but on the thin ledge of happenstance. Every capital defendant gets post-conviction representation, but not all lawyers are as dogged as Jim Cooney and Mary Pollard. Every defendant gets a lawyer at re-trial, but not many get Joe Cheshire and Jim Cooney, willing essentially to donate services that clients, usually poor and usually in prison, could not otherwise afford. And every defendant has a story, but most don't catch the attention of reporters like Joe Neff or benefit from media attention that, for better or worse, makes an enormous difference, not only in public opinion, but in the minds of judges, witnesses and lawyers.
And even, in the end, to the Attorney General. Just last week, Roy Cooper finally went on the record with Neff. Responding to what he called the "travesty" of Gell's original trial, Cooper announced that he would encourage state prosecutors to open their files to defense attorneys in all first-degree murder cases. Should the state's district attorneys have the courage to sign off on this policy, it will be a first step in the rehabilitation of prosecutors who set their sights on a verdict rather than on justice.
As the death penalty moratorium bill sits waiting for a vote in the state House, here's hoping our representatives will follow Cooper's grudging lead and recognize the very real and potentially devastating flaws in our system of capital punishment. Cooper hasn't budged in his opposition to a moratorium, but surely he would be hard pressed to see Gell as anything but a rebuke to that system. He got his justice, read the poster in the back of the burgundy Oldsmobile; the view, presumably, of Cooper and Hugh Holliman and Rick Eddins and countless others. By the grace of God, the luck of the draw and the kindness of strangers he got his justice--in other words, by the skin of his teeth. If there are other innocent men and women on death row, will they be so lucky?