North Carolina Prosecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 120 North Carolina cases in which the defendant alleged prosecutorial error or misconduct. In 14, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In six, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant. Of all the defendants who alleged error or misconduct, two later proved their innocence. In 35 cases, defendants pointed to Biblical references made by prosecutors as grounds for reversal. The Supreme Court found Biblical references to be prejudicial in only two of the cases.

Of the cases in which judges ruled a prosecutor’s conduct prejudiced the defendant, eleven involved improper trial arguments and behavior, two involved the prosecution withholding evidence from the defense and one involved prosecutorial vindictiveness.

Joe Freeman Britt made it into the Guinness Book of World Records as the “world’s deadliest prosecutor� after he won 44 death penalty convictions during the 15 years he served as Robeson County’s District Attorney. What the record book does not mention is how he won.

“Now, listen to this,� Britt said to a jury in a 1984 murder trial, holding a Bible in his hands. “‘So these things shall be for a statute of judgment,’ – ladies and gentlemen of the jury, what is North Carolina Statute 15A-2000? It's simply a statute of judgment . . . ‘a statute of judgment unto you through your generations in all your dwellings. Whoso killeth any person, the murderer shall be put to death by the mouth of witnesses . . . Moreover, ye shall take no satisfaction for the life of a murderer, which is guilty of death, but he shall be surely put to death.’�

The jury sentenced the defendant, Roscoe Artis, to death. In 1989, the state Supreme Court warned that Britt’s Biblical readings swung “inappropriately close� to improper argument. Still, the court upheld Artis’ conviction and sentence.

“Such remarks are not only misguided, they are misleading, particularly in the context of the prosecutor's argument here, where the lack of audible punctuation would contribute to the jury's confusion as to which words were statutory and which inspirational,� wrote Justice Mark Martin.

Chief Justice James Exum dissented. He would have reversed Artis’ conviction and sentence, not because of the Biblical references. Exum cited numerous grounds, including Britt telling the jury that Artis had shown no remorse. “…[T]he prosecutor's remarks place defendant in the incongruous position of appearing unremorseful about a crime that he swears that he did not commit,� Exum wrote.

The Supreme Court of North Carolina has scrutinized Britt’s conduct in at least 10 of his death penalty convictions. In two, the Supreme Court held his trial tactics and arguments were so prejudicial that the death sentence could not stand. In another two, Supreme Court judges disagreed with the majority and thought Britt’s conduct warranted reversing the defendant’s death sentence. In all, Britt read Biblical scriptures to the jury in an effort to win at least five of his death penalty convictions.

But he wasn’t the only prosecutor citing scripture during trials—a method some say directly violates the first amendment.

In a 1982 murder trial, a prosecutor “argued in effect that the powers of public officials, including the police, prosecutors and judges are ordained by God as his representatives on earth and that to resist these powers is to resist God.�

In a murder case without the death penalty, a Robeson County prosecutor told the jury "there's maybe a higher law" than the court's law. “If any man defile the temple of God, him shall God destroy; for the temple of God is holy, which temple are ye,� he said.

In December 1995, Phyllis Cherry, a former Bertie County prosecutor, urged the jury to sentence Charles Phillips Bond to death, even though he didn’t actually commit the murder. He wasn’t even at the crime scene.

“Lynch mob activity has always been condemned by the Good Book, but justice under the law has always been upheld and supported by the Good Book,� Cherry said to the jury. They sentenced Bond to death.

In a 2003 dissenting opinion, state Supreme Court Justice James Exum said a prosecutor’s argument during a capital murder trial was “designed to persuade the jury that the Bible and Jesus sanctioned the imposition of the death penalty in this case.�

In a 1998 case, during which the prosecutor cited the Bible to persuade the jury to sentence James Alan Gell to death, the jury did not know the prosecutors, David Hoke and Debra Graves, withheld evidence pointing to the defendant’s actual innocence.

“From the Old Testament and the Book of Numbers anyone who kills a person is to be put to death as a murderer upon the testimony of witnesses,� one of the prosecutors said. “Cursed is the man who kills an innocent person for money, and all the people shall say amen. It's time to sentence this man, a murderer, to die and let the people of Bertie County say amen. Thank you.�

The jury sentenced Gell to death. The prosecutors convinced the jury that Gell and an accomplice shot and killed a man on April 3, 1995. April 3 was the only day Gell could have committed the murder—he was out of town on April 4 and 5, and in jail on car-theft charges from April 6 until the discovery of the victim’s body. Prosecutors Hoke and Graves didn’t disclose that 17 witnesses had seen the victim alive between April 6 and April 10. The state also withheld a secret tape recording of a phone call between two witnesses that showed they were fabricating their version of events. Also, forensic evidence indicated that Gell was in jail the day the actual murder occurred.

In December 2002, a Bertie County Superior Court judge threw out Gell’s conviction because the state withheld exculpatory evidence. Gell is waiting for the attorney general to decide whether to appeal the order for a new trial.
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