Bar Committee Begins Study Of Fallout From Hoke/Graves Case |

Michael Dayton, Editor//January 24, 2005//

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The State Bar Disciplinary Review Committee set up shop last week, forming subcommittees to study whether the Hoke/Graves case was effectively prosecuted and whether bias or improper influence played any part in the outcome.
Charlotte attorney Calvin Murphy, the committee’s chair, told members they would have a broad charge. He said they could explore the issues surrounding the Hoke/Graves matter but were not limited to that case and could head off in any direction that they saw fit.
“If there are other matters that are pertinent, you can go there,” he said. “You are not constrained to issues from Hoke/Graves.”
Murphy said the committee would have the full resources of the State Bar staff at its disposal and would be free to call witnesses. However, he said the committee would not issue subpoenas or hear testimony under oath.
“We don’t want to scare off anybody,” Murphy said.
The 17-member committee features several prominent figures with a broad range of legal and political experience, including: former Gov. Jim Martin; former Supreme Court Justice Willis Whichard, now the dean of Campbell University’s law school; and State Board of Education Chair Howard Lee (for a complete listing, see Jan. 17 issue).
Committee members received a packet of materials before the meeting, including transcripts of the Hoke/Graves DHC trial and the public hearing held afterwards. Murphy said he’d see that the committee got any other materials it needed.
“If they’d like to see more, we will get it,” Murphy said.
While the committee has free rein to explore various issues raised by the case, two subcommittees will focus on these questions:

Was the Hoke/Graves case “prosecuted within an acceptable range of effective lawyering?” A subcommittee chaired by Fred Moody, a Bryson City attorney and former Bar president, will examine that issue.

Was there any improper influence, corruption or bias in the Bar’s handling of the Hoke/Graves case? A second subcommittee, chaired by Raleigh criminal defense lawyer Wade Smith, will study that.
In its first official function last week, the committee heard two 15-minute presentations from lawyers with different takes on the case.
Raleigh criminal defense lawyer Joseph B. Cheshire V spoke on behalf of the North Carolina Academy of Trial Lawyers, which has been critical of the Bar’s prosecution of Hoke and Graves. Cheshire faulted the Bar for not calling or cross-examining key witnesses, and for allowing misrepresentations of federal constitutional law to go unchallenged.
Raleigh lawyer John McMillan, a Bar leader who has been active on disciplinary committees or boards for 24 years, said the agency had done a good job of self-regulation. He said the Bar had handled 30,000 grievances during his time there and had disciplined several of its own, including two past presidents and a former executive director.
The committee is expected to have a preliminary report ready by April. Its meetings will be open to the public.
Background
The committee’s work centers on the September 2004 Disciplinary Hearing Commission case of David F. Hoke and Debra C. Graves, two assistant attorneys general who formerly worked in the Special Prosecutions Division. Hoke is now the assistant director of the Administrative Office of the Courts. Graves is an assistant federal public defender in the U.S. Eastern District.
The disciplinary case stemmed from the 1998 Bertie County murder trial of Alan Gell. Hoke and Graves obtained a first-degree murder conviction against Gell, who spent nearly 10 years in prison, including five on death row.
When Gell’s appeals were exhausted, prosecutors turned over their complete file to defense attorneys, who discovered 17 exculpatory witness statements and an impeaching audiotape.
The Bar alleged Hoke and Graves acted unethically in failing to turn over those exculpatory and impeachment materials. Hoke and Graves had a constitutional duty to disclose them under the 1963 U.S. Supreme Court case of Brady v. Maryland and its progeny, the Bar alleged.
A three-member DHC panel cited Hoke and Graves for three ethical rules violations. But in imposing a reprimand, the lightest discipline available under the facts, the panel said the Bar’s evidence did not show that they had acted intentionally in withholding key evidence.
That outcome caused a deep rift of opinion among members of the Bar. At one end of the spectrum, lawyers and judges faulted the Bar for pressing charges against the two prosecutors. At the other end were those who said the punishment was too light. They sharply criticized the Bar for not pressing its case vigorously enough.
The DHC ruling proved to be a public relations fiasco for the profession, with newspaper columnists and letter writers saying the Bar’s sanction was little more than a slap on the wrist (see Oct. 18, 2004 story).
A public hearing held after the DHC case did little to calm the controversy, prompting Bar president Bud Siler to appoint a special committee.
Cheshire’s Remarks
At the meeting last week, Cheshire said the academy’s concerns about the Hoke/Graves prosecution was not an “attempt to punish anyone or to embarrass the State Bar, but instead to raise valid questions in an effort to make our system of self-regulation even better and in an effort to ensure that our system of justice functions fairly for all our citizens.”
Cheshire criticized the Bar for failing to clarify the constitutional duty that prosecutors have under Brady to turn over materials in their files. While Brady applied specifically to exculpatory information, a line of cases over the next three decades expanded that duty to impeachment materials, Cheshire said.
“It has been the law of this country and this state with no room to disagree that prosecutors have a constitutional duty to provide evidence in their files or evidence that by the use of due diligence should be known to them that would be favorable to the accused or that would affect the credibility of any witness against the accused,” Cheshire said.
Brady was at the centerpiece of the Bar’s case against Hoke and Graves and it was crucial that the DHC panel understand what the Brady ruling meant, Cheshire said.
At the 2004 DHC hearing, Hoke testified that he did not believe Brady required him to turn over impeachment materials. His testimony was consistent with that of James J. Coman, a senior deputy attorney general who heads the Law Enforcement and Prosecution Division. Coman testified the audiotape of a prosecution star witness was not Brady material even though he acknowledged it contained impeaching material.
After the hearing, Coman said he had intended “impeachment” to mean embarrassing and had not meant it as a legal term.
Wilmington attorney Stephen Culbreth, who chaired the Hoke/Graves panel, told Lawyers Weekly the testimony of Hoke and Coman created confusion in the panel’s mind as to whether impeachment materials fell under Brady. The panel did not find intentional misconduct regarding the audiotape, even though Hoke and Graves acknowledged they’d read a transcript of it and purposely withheld it.
Cheshire said the Bar fell short in clarifying the Brady issue by:

Failing to present live testimony to the panel about prosecutors’ duties under Brady.

Failing to cross-examine Hoke or Coman about their Brady testimony.

Failing to question judges and criminal practitioners who could have testified on Brady’s correct interpretation.

Failed to present any legal analysis of Brady until the DHC panel retired for deliberations.
“Accordingly, the DHC panel was left with unchallenged live sworn testimony from the self-described chief legal advisor to the chief justice of the North Carolina Supreme Court, Mr. Hoke, and the top criminal trial prosecutor in the North Carolina Justice Department, Mr. Coman, that was incorrect about one of the two most important issues in the case: the prosecutor’s duty to disclose impeachment material under Brady,” Cheshire said.
Cheshire said confusion over the meaning of Brady continued at the public hearing after the DHC trial. Cheshire cited this statement McMillan made last October at that hearing: “Now, there is a heated difference of opinion between the post-conviction counselors … and the Attorney General’s Office as to whether the tapes should have been produced. Jim Coman of the Attorney General’s Office is of the strong opinion that the tapes were not exculpatory, but that they could have been used to impeach the persons speaking on the tapes. Alan Gell’s post-conviction counsel says that the tapes should have been produced because there have been cases decided since Brady that require materials to be produced that could be used for impeachment.”
Said Cheshire: “Let me be clear there is no heated difference of opinion. The law is clear and unequivocal…. This commission must make a recommendation that makes the law of Brady clear and the consequences clear for its breach.”
Cheshire said the academy also wanted to see these changes in the Bar’s rules and procedures:

A method for appointing outside counsel. “When one or more senior prosecutors in the office of counsel are compelled to recuse themselves from prosecuting the case based on a conflict of interest, the entire office should be recused,” he said.
Given the quasi-governmental nature of the State Bar and its disciplinary process, recusal might also be considered in cases involving executive, legislative, or judicial branch officials and witnesses, Cheshire said.

State Bar training on Brady. “Given recent high-profile exonerations of people convicted based on Brady violations … the State Bar can realistically, if unfortunately, expect to see numerous cases like Hoke and Graves in the future,” Cheshire said. “It is imperative that the persons involved in the disciplinary process receive adequate education about Brady and its requirements.”

Ethics rules amendments. Cheshire recommended that the State Bar amend Rule 3.8(d) to clarify a more affirmative duty on prosecutors to review their entire file and ask investigating agents about other Brady materials. The Bar’s Ethics Committee is currently studying that issue.
McMillan’s Comments
In presenting the Bar’s case at the Jan. 18 meeting, McMillan said the State Bar had handled thousands of grievances in an even-handed fashion during his tenure.
“I have not seen or heard of any prejudice for or against domestic lawyers, real property lawyers, bankruptcy lawyers, criminal defense lawyers, prosecutors, or any other practice group,” he said. “Everyone has been fed out of the same spoon.”
The proof: The State Bar has disciplined several of its own, including two past presidents, a president-elect, and its former executive director of the State Bar, McMillan said.
“There are checks and balances designed to avoid even the appearance of impropriety,” McMillan said. “To my knowledge, these issues just haven’t come up.”
McMillan said that these procedural safeguards worked in the Hoke/Graves case:

The State Bar initiated the grievances in both cases.

The staff attorney recommended that the cases go to the Grievance Committee, and the Grievance Committee’s chair and vice-chair agreed.

The Grievance Committee sent both cases on to the DHC for trial.

The DHC found three ethics rules were violated and imposed discipline.
— Questions or comments may be directed to [email protected].