[Deathpenalty]death penalty news-----N.C., FLA., ALA., MISS., DEL.

[Rick Halperin]

Dec. 19


NORTH CAROLINA:

N.C. prosecutors stifled evidence--Lawyer now retreats from testimony


In September, the state's senior prosecutor was in an unusual place: the
witness stand. And what he said has caused quite a stir among lawyers
around the state.

Jim Coman said under oath that the state Attorney General's Office had a
policy of withholding a certain type of evidence helpful to defendants. As
he described it, the policy would violate 30 years of U.S. Supreme Court
rulings.

Coman now says, however, that his testimony was incorrect. Even so, one
prominent law professor said that the prosecutor's September statements
may open the door to challenges of numerous convictions in cases tried by
the attorney general's staff.

Coman was testifying at the State Bar about the character of 2 proteges,
David Hoke and Debra Graves. They were charged with breaking ethical rules
by withholding favorable evidence from former death row inmate Alan Gell.
The evidence included a taped telephone call in which the state's star
witness said she had to "make up a story" for police.

Hoke and Graves didn't have to turn over the tape, Coman said, because it
wasn't "exculpatory"; it didn't prove Gell's innocence.

The tape could have been used to "impeach" the witness, or undercut her
credibility, Coman acknowledged. But he said case law didn't require
impeachment evidence to be turned over to the defense.

Handing over impeachment evidence has been law since a 1972 U.S. Supreme
Court decision. But Coman went on to say it wasn't just his opinion, it
was the policy of the Attorney General's Office.

An odd policy

"The prevailing view when I was there the first time, both under Judge
[Lacy] Thornburg and Attorney General [Mike] Easley and now Governor
Easley," Coman said, "was that just because something embarrassed a
witness or might be impeaching to them, did not in and of itself, unless
it went to being exculpatory, was not something we had to turn over."

In a recent interview, however, Coman backed away from that description of
policy and said his September statements were not correct -- not on the
case law, and not on the attorney general's policy.

"I was not very precise," he said. "My use of the term 'impeaching' or
'impeachment' ... would have not been accurate."

It's impossible to know how many times the Attorney General's Office has
failed to turn over impeachment evidence, because the material would be in
closed files. Coman and Attorney General Roy Cooper said that the
department's policy was to obey the law, and that there was no written
policy on impeachment evidence.

But in several known cases, lawyers for the attorney general did not hand
over impeachment evidence or resisted opening files as the law required:

* In 1993, Hoke, the lead prosecutor in Gell's 1998 trial, was admonished
by a trial judge for not turning over impeachment evidence at a murder
trial. Hoke told the judge he didn't turn it over because it was
"impeachment evidence, not exculpatory evidence."

Questioned by the State Bar under oath, Hoke testified that leading up to
Gell's 1st trial, he thought the tape was impeaching. He did not hand over
the tape, he said, because he didn't know impeachment evidence must be
produced, despite the previous courtroom lecture.

* While Gell was on death row, the attorney general continued to fight his
bid for a new trial long after the withheld evidence surfaced. Those
claims of withheld evidence had no merit, the attorney general argued, and
Gell should proceed to execution.

* Charles Munsey got off death row in 1999 because the Wilkes County
prosecutor withheld impeachment evidence that the state's star witness, a
jailhouse informant, was never in Central Prison, where Munsey supposedly
confessed to him.

During the trial, a deputy attorney general, Dale Talbert, advised the
local prosecutor that prison officials said it was nearly impossible for
the witness to have been in Central. Talbert told the local district
attorney that the prison officials said it was virtually impossible that
he was at Central because there was no record showing that.

* From 1996 to 1998, the Attorney General's Office vehemently fought a new
law giving death row inmates access to the complete case files of
prosecutors and police. Special Deputy Attorney General Barry McNeill --
the state's leading death-penalty lawyer -- said at a statewide meeting of
prosecutors that there was no need to open all law enforcement files, and
that his office would help prosecutors ward off attempts to do so.

The state Supreme Court upheld the law, leading to new trials for at least
six death row inmates.

Bad news for AG?

Rich Rosen, a law professor at UNC-Chapel Hill and a death-penalty
opponent, predicted that Coman's testimony would cause trouble for the
Attorney General's Office. "We've got a statement under oath," Rosen said.
"I think anyone prosecuted by them in the last 20 years has a right to ask
to reopen their files."

Beginning in 1963, the U.S. Supreme Court has repeatedly ruled that
prosecutors must hand over evidence that is favorable to defendants. That
first decision involved evidence of the defendant's innocence. Later
decisions included impeachment evidence.

Gell was convicted in 1998 of murdering a retired truck driver in Bertie
County. The withheld evidence led to a new trial; in February a jury
quickly acquitted him.

Among other evidence, prosecutors withheld the taped phone conversation,
in which the state's alleged eyewitness to the murder talked about how she
had to "make up a story" for police, evidence that she was prone to lie to
law enforcement.

A formidable witness

Once Gell won a new trial, Coman became deeply familiar with the case. He
led the reinvestigation and advised Attorney General Roy Cooper to retry
Gell. He was the lead prosecutor at the retrial.

When Hoke and Graves were first investigated for misconduct, Coman filed a
sworn affidavit with the State Bar in support of them. In that written
statement, he said he wouldn't have given the evidence to the defense,
either.

Coman was a formidable witness: a career prosecutor, former head of the
State Bureau of Investigation and the state's senior deputy attorney
general for law enforcement and prosecutions.

Hoke and Graves were reprimanded for withholding the evidence and bringing
the judicial system into disrepute.

Coman said he was using the word "impeaching" as "embarrassing." The legal
definition of impeach is the same as in Webster's dictionary: "to
discredit."

Coman said he was thinking about how the tape from the Gell trial was
embarrassing and humiliating for the state's witnesses.

"I wasn't thinking in terms of how it was defined in the case law," Coman
said. "I was thinking only in terms of this transcript, this tape, and
that it portrayed the girls in an embarrassing, humiliating position."

Coman's testimony, and Hoke's, will likely be fodder for the special State
Bar committee set up to review the Hoke and Graves matter.

The N.C. Academy of Trial Lawyers labeled their testimony "misleading" and
a "blanket misstatement" of the law. Brad Bannon, one of Gell's lawyers at
his retrial, wrote that Coman and Hoke gave a patently false recitation of
the law as a defense for the prosecutors' misconduct.

Gov. Mike Easley was attorney general from 1993 to 2001, when his staff
tried and convicted Gell. He declined to be interviewed. So did Lacy
Thornburg, who was attorney general from 1985 to 1993 and is now a federal
judge in Asheville.

Coman said the Gell case is the only one in his 20 years at the Attorney
General's Office where evidence was not handed over as required.

Roy Cooper, who currently holds the office, said he has insisted on a very
open policy.

"Attorneys have been instructed to be as open as possible and turn over as
much evidence as possible to the defense," Cooper said. "It is in the best
interest of a fair trial and helps criminals from getting guilty verdicts
overturned."

Cooper said his lawyers would review cases prosecuted by the Attorney
General's Office before his term only if challenged in court. He said his
staff had no intention of independently going through files to see whether
impeachment evidence had been withheld.

--

THE COURT AND COMAN

In Oct. 2003, Jim Coman gave the State Bar sworn written testimony for its
investigation into David Hoke and Debra Graves, the prosecutors who
withheld evidence in the death-penalty case of Alan Gell. In the passage
below, Coman gave his opinion about whether the prosecutors should have
handed over a taped telephone conversation of the state's key witness
talking about having to "make up a story" for police.

"Brady material" is legal shorthand for material that must be handed over
because it helps prove innocence or provides the defense with information
that a state witness might not be telling the truth.

COMAN: "Had I been prosecuting the case, I do not believe that I would
have turned those materials over because I did not believe they were
exculpatory and certainly did not feel that they were Brady material."

THREE KEY U.S. SUPREME COURT CASES:

1963: BRADY V. MARYLAND "The suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution."

1972: GIGLIO V. UNITED STATES "Brady v. Maryland held that suppression of
material evidence justifies a new trial 'irrespective of the good faith or
bad faith of the prosecution.' When the 'reliability of a given witness
may well be determinative of guilt or innocence,' nondisclosure of
evidence affecting credibility falls within this general rule."

1985: U.S. V. BAGLEY "Impeachment evidence ... as well as exculpatory
evidence, falls within the Brady rule. Such evidence is 'evidence
favorable to an accused' so that, if disclosed and used effectively, it
may make the difference between conviction and acquittal."

UNDER OATH, AND ON THE PHONE

SEPT. 23, 2004: Jim Coman testified under oath before the State Bar about
the witnesses' telephone conversation. He was questioned by State Bar
attorney David Johnson:

Q: As you read the transcript of that particular telephone conversation,
in your opinion as head of the Special Prosecutions Division, is that
Brady material that would be required to be turned over?

COMAN: No, I did not believe that it was. I felt that it was information
that they could impeach them with, but I did not believe that there was
anything on there that was exculpatory.

Q: To be fair on that particular point, would it be fair to say that there
are members, respected, experienced members of the defense bar, who would
disagree with your interpretation of what Brady is required.

COMAN: Absolutely. ... There's an inherent tension between prosecutors and
defense attorneys about whether or not impeaching information actually
means it's Brady material. ... It's my point of view that if it doesn't
rise to the level that it's exculpatory, then it's not Brady material.

DEC. 8, 2004: Coman in a telephone interview on the policy of the Attorney
General's Office for the past 20 years.

"If it was exculpatory it should be turned over. ... If it was
impeachment, it would be turned over. That's not something just lately
come up with; that's the way it was."

(source: The News & Observer)






FLORIDA:

Death-row inmate gets help


Supporters of Florida death-row inmate William Thomas Zeigler have a pair
of events planned around his scheduled court hearing Monday and Tuesday.

Zeigler was convicted of the 1975 murders of his wife, his in-laws and a
customer on Christmas Eve in Winter Garden. Zeigler has long maintained
that he is innocent. His case has attracted international attention.

On Monday and Tuesday, an Orange Circuit Court judge will determine
whether new DNA and blood evidence is strong enough to grant Zeigler, 59,
a new trial. The hearing is seen as Zeigler's last chance to avoid
execution.

Supporters today will have a film screening and a case update from 7:15 to
9:30 p.m. at St. Margaret Mary Catholic Church in Winter Park. The program
will include a screening of A Matter of Life & Death, which details the
Zeigler case. Also, one of Zeigler's original trial lawyers, Vernon
Davids, and others will give a case update.

At 9 a.m. Monday, Zeigler's supporters will rally outside the Orange
County Courthouse. Zeigler's hearing is scheduled to start at 10 a.m.

--

(For more information about Zeigler go to :
http://www.fadp.org/Zeigler/zeiglerisinnocent.html

(source: The Orlando Sentinel)






ALABAMA----foreign national re-sentenced

Bui resentenced to life without parole


A Vietnamese man who was convicted twice for the 1986 butcher knife
slayings of his 3 children in Montgomery was re-sentenced Friday to life
in prison without parole.

Quang Bui was originally convicted in 1986 and spent 18 years on death
row, but a federal appeals court later overturned the conviction on a jury
selection issue. He was convicted a 2nd time in October, but his
sentencing was delayed until Friday.

Bui, 52, had no comment during his sentencing. Montgomery Circuit Judge
Charles Price said the sentence would guarantee that Bui would "live out
his natural life in prison."

The 2nd jury had already voted 6-6 on the issue of whether to send Bui to
death row. At least 10 votes are required for a death sentence.

"If ever a case deserved the death penalty for killing 3 innocent babies,
this was it, plus there was a total lack of remorse," District Attorney
Ellen Brooks said.

Brooks said the staleness of the case and the deaths of some witnesses,
including Bui's wife, Jeannie Bui Mitchell, hampered the 2nd trial.

Mitchell died of natural causes this past August.

A Vietnam refugee, who fought on the U.S. side in the South Vietnamese
navy, Bui left Saigon when communist insurgents took over the city in
1975. Forced to leave his family behind in Vietnam, he eventually settled
in Montgomery, married and fathered 3 children.

(source: Associated Press)






MISSISSIPPI:

Justice demands swift punishment


Having read the progress of the Baton Rouge serial killer case with
interest, particularly since it involved at least 1 and perhaps 2
Mississippi victims, I was heartened to see that the killer received the
death penalty.

After DNA evidence was connected to 6 or more victims, this is justice,
pure and simple, or maybe not.

For some reason, Americans have grown soft on crime, thinking of new and
ever more curious reasons and excuses why a person needs to avoid justice,
even when the crime is heinous and shows total lack of morals, feelings
for the victim(s) or remorse for the crimes committed.

A recent rash of outrageous crimes in our state should arouse the public's
attention - particularly law enforcement officers, prosecutors and
justices of criminal courts.

People called up for jury duty should take their tasks seriously and not
give criminals charged with serious violations of the law the so-called
jury nullification verdicts we so often read about in certain Mississippi
counties. Setting modern-day murderers free because of any past injustices
done due to racial discord is dangerous and stupid regarding public
safety.

The famous line, "Don't do the crime if you can't do the time," also
applies to those sitting on death row.

If we were a fair and just society, as we often claim, then the flowers on
murder victims' graves would not be wilted before the criminal was buried
also, if apprehended, tried, convicted and executed rather expeditiously
as true justice requires.

Robert Barnett, Brandon

(source: Hattiesburg American)



DELAWARE:

Officers blast work conditions


Gov. Ruth Ann Minner's prison task force got what it asked for Friday as
Delaware correctional officers, one after another, came to the microphone
to air deep-seeded complaints about the Department of Correction and the
administration that runs it.

Although the panel offered anonymity, most of the officers did not
hesitate to give their names as they spoke of critical understaffing,
morale and procedural problems throughout the statewide prison system.

"You have to get us an administration that allows us to do our jobs," Sgt.
David W. Phillips said. "You have to get us an administration that cares
about its staff, because now we are just numbers. If we keep going like
this, I don't know what you're going to do to guard the inmates because we
won't be here."

The task force, created by executive order, is charged with reviewing the
July 12 incident at the Delaware Correctional Center near Smyrna in which
inmate Scott A. Miller abducted and raped prison counselor Cassandra
Arnold.

Miller was shot and killed by a correctional officer after a seven-hour
standoff. An initial report by DOC found security doors had been left open
and that some security equipment did not work. The report did not affix
blame or include major recommendations for improved security.

Ms. Arnold, 27, attended Friday's session at the Dover Downs Hotel and
Conference Center with her attorneys. She sued Gov. Minner and top
correction officials in federal court after the incident, claiming lax
security, inadequate staffing and poor supervision contributed directly to
her ordeal.

Members of the task force say they want to interview Ms. Arnold but
acknowledged they have not done so yet.

The panel, which usually meets in Wilmington, arranged Friday's session
Downstate to accommodate correctional officers who live here.

Mike Lenigan is secretary of the Correctional Officers' Association of
Delaware and works at DCC. He said overtime - volunteered and forced - is
taking a tremendous toll. He said that as many as 400 or more overtime
positions are normal each week at DCC because of short staffing.

"It just keeps growing every week, that is the cycle we are in," Mr.
Lenigan said. "Our staff is tired and our staff is worn out."

According to DOC, there were 342 correctional officer vacancies, including
49 on military leave, as of Dec. 14. COAD insists the number is higher.

Sgt. Dino Garrnett works at DCC in maximum security, where death row
inmates and offenders considered most dangerous are housed. He said
approximately 20 officers work each shift in the unit and that last week
14 overtime positions had to be filled, including 5 that were involuntary.

"I see it only getting worse, to a point where a fatality is going to
occur," he said. "I don't know how many times we can take chances before
we come out to a final run."

Among the most outspoken officers was George Coventry. He works at DCC in
the area where Ms. Arnold was abducted and said he knew Miller.

Mr. Coventry said DCC administrators had knowledge that Miller was upset
and possibly more dangerous at least a week before Ms. Arnold was
assaulted.

Mr. Coventry said Miller had written three lengthy letters and given them
to another officer for delivery to administrators. He said Miller told him
he wanted Mr. Coventry to know about the letters "in case anything
happened."

"They were aware he was upset but they failed to move him to higher
security," Mr. Coventry said. "One of the letters was addressed to Warden
Tom Carroll, another was to Deputy Warden Betty Burris and the other was
to the security chief.

"We have a warden who was never a correctional officer and we have a
deputy warden who started as a secretary. They have not walked in our
shoes."

Sonja Rios works in the secure housing unit at DCC. She said she's been
ordered to work involuntary overtime so often, including back-to-back,
16-hour shifts with only eight hours off, that she feels she can no longer
do her job properly.

"People are tired," she said. "They're falling asleep. I'm one of the ones
that's looking elsewhere (for a job.)"

Ms. Rios said she was on duty when the task force toured DCC in early
November. She said administrators "dressed things up" for the panel to
give the impression of a more secure prison environment and larger
workforce.

"A lot of us were afraid to talk that day," she said. "They added more
people. There was more administration popping up, trying to make it look
nice. You don't hardly ever see those people. You need to see what our
world is like when they don't know you're coming."

Sgt. Kennard Demby agreed. He said the Maximum Housing Unit was
overstaffed by at least 10 officers the day of the visit.

"You got a dog and pony show when you came," he said. "The MHU was very
overstaffed when you came."

Ms. Rios said morale is poor and slipping. She said supervisors are to
blame.

"I want to be respected when I come to work," she said. "I want to be
proud of that badge but I'm not. It's an embarrassment. Sometimes I'm
embarrassed to say what I do for a living."

Sgt. Phillips spoke of the void between top supervisors and rank-and-file.

"This administration is nowhere to be found," he said. "You don't see them
in the tiers. You don't see them in the buildings. You don't see them
anywhere. They do not care.

"DCC and the Department of Correction is a ticking time bomb. I just hope
that we don't go off first, but if things don't change, we will."

Panel members thanked the officers for their input and said they hope to
wrap up interviews in the next couple of weeks because a final report with
recommendations to Gov. Minner is due by Jan. 31.

Chairman Grover C. Brown said the task force still needs to interview Ms.
Arnold and would spend the latter part of January drafting the report.

(source: Delaware State News)