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CNN LARRY KING LIVE
Clarence Elkins Falsely Imprisoned For Murder, Rape
Aired December 26, 2005 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LARRY KING, CNN HOST: Tonight, Clarence Elkins was freed from prison just days ago and has spent Christmas with his family for the first time in years. And now, meet the wife who tore her family apart by fighting to clear him of the brutal rape and murder of her own mother. Plus, the niece he was also wrongly convicted of assaulting, her testimony was key to giving him life in prison.
And then, Alan Gell, he spent more than four years on death row for a murder he did not commit. Hear how the death penalty actually saved his life. He's here to tell his incredible story and they're all next on LARRY KING LIVE.
Two cases, extraordinary cases to discuss tonight; we begin in Cleveland, Ohio with Melinda Elkins, the wife of Clarence Elkins, the man wrongly convicted of brutally raping and murdering her mother Judy Johnson and assaulting her young niece Brooke.
Also in Cleveland is Brooke Sutton, Melinda Elkins' 14-year-old niece, I assume we're going to show them, a victim of assault in the 1998 crime that left her grandmother Judy dead. Her testimony was key to the 1999 conviction of her uncle. She recanted that testimony three years later.
In Cincinnati is Mark Godsey, Elkins' attorney. He is associate professor University of Cincinnati School of Law and faculty director for the Ohio Innocence Project; and, in Omaha, Nebraska, an old friend, Cynthia Alksne, the former prosecutor.
All right, Melinda, let's get the story from the top. This was a special Christmas for you with your husband home. What happened on June 7th, 1998?
MELINDA ELKINS, FOUGHT TO CLEAR HUSBAND OF HER MOM'S RAPE AND MURDER, ASSAULTING NIECE: Well, what happened on June 7th was my mom was brutally murdered and raped and my niece was attacked and raped and the same day Clarence was arrested on suspicion.
KING: Where were you?
M. ELKINS: Home.
KING: And this occurred...
M. ELKINS: As well as...
KING: Where did this occur in your house or your mom's house?
M. ELKINS: No, in my mom's house. She lived in Barberton.
KING: That's like a suburb?
M. ELKINS: Yes, a different county, different area.
KING: Why was your husband even a suspect?
M. ELKINS: My niece had said that it looked like him and sounded like him.
KING: Where was he when he was arrested?
M. ELKINS: He was at home.
KING: With you?
M. ELKINS: Yes.
KING: You must have been shocked.
M. ELKINS: Shocked, devastated.
KING: What did he say to you?
M. ELKINS: He didn't say -- he didn't say anything to me. They actually had stormed our home and took him into custody immediately and I -- I wasn't able to talk to him at all.
KING: And then about a year later he's convicted of murder, attempted aggravated murder, three counts of rape and felonious assault. Did you go to the trial?
M. ELKINS: Yes, I did. I was there every day.
KING: There was no physical evidence connecting him to the crime is that right?
M. ELKINS: That is correct.
KING: So, the key was the testimony of Brooke Sutton, the 14- year-old niece, right?
M. ELKINS: That's correct.
KING: All right, Brooke is with us. What happened? How did you go wrong, Brooke?
UNIDENTIFIED FEMALE: How did you go wrong? I mean what...
KING: Do you hear me Brooke?
BROOKE SUTTON, EYEWITNESS TESTIMONY WAS KEY TO CONVICTING HER UNCLE, LATER RECANTED: Yes.
KING: All right what happened? Why were you -- how did you happen to be wrong about who raped you and murdered your mother -- the mother of Melinda?
SUTTON: Well, the morning that I found -- I woke up and I found my grandma dead, I went to a next door neighbor's house and I told her that it looked like my uncle Clarence and it sounded like him. So, she took me home and she told my mom that -- what I told her and then everyone just started freaking out. And then my mom and dad called the police and my mom and dad told the police that it was my uncle Clarence who did it.
KING: Huh, all right you were raped too?
KING: Did you see your grandmother killed?
SUTTON: No, I didn't see her get killed but -- no, I didn't.
KING: All right. How can you misidentify? What went wrong that you had the wrong man accused when you had to come in such close contact with him?
SUTTON: Well, I told people that it looked like him and they just went like it was him. They didn't even listen to what I was saying.
KING: What was it like when you testified in court?
SUTTON: It was hard because I had a feeling like it wasn't him, it wasn't my uncle who committed the crime but then it was this feeling like well maybe he did do it and then I was like maybe he didn't, so I didn't know what to do.
KING: I understand. Mark, how on earth was he convicted on not only just this one witness but a witness who wasn't sure?
MARK GODSEY, ATTORNEY FOR ELKINS FAMILY: Yes, not only she wasn't sure but she was six years old at the time. You know, surprisingly this sort of thing happens all the time across the country.
And, you know, you take all the cases and there's been hundreds now where people have been exonerated through DNA testing and you go back and you study why they were wrongfully convicted and faulty eyewitness identification is the biggest problem that leads to this sort of thing.
And, you know, we tend to think that our minds are sort of tape recorders and they perfectly record what we see but, in fact, that's not the case and, you know, these studies have demonstrated that eyewitness identification is not as reliable as we tend to believe.
KING: And a 6-year-old can be the key to a conviction?
GODSEY: The 6-year-old was the only direct evidence connecting Clarence Elkins to this crime and at the time the state sought the death penalty against him based on that testimony and thankfully the jury rejected that charge and brought back a charge that resulted in a life in prison sentence so that we could be here today to see him be set free.
KING: Did he take the stand, Mark?
GODSEY: Yes. He took the stand at the time and Melinda was his alibi and said, "Look, he was with me the entire time" but the prosecution at the time sort of dismissed her as, you know, she's lying because she's just trying to protect her husband. You can't believe her. But now, you know, years later we've done the DNA testing. We've proven that she was the one who was telling the truth all along.
KING: Was the assailant ever caught?
GODSEY: Has been identified now and we hope will be charged very soon. Through Melinda's efforts, I mean, let me just back up a moment, this is a situation where she had her mother murdered and her niece raped and her husband taken away from her and arrested all in the same day and her husband was charged with this crime and she knew he didn't do it.
And then he was taken away for life and she was put in a position where she had to solve this crime and so in many ways, you know, Clarence is the hero here for -- for fighting through this all these years but so is Melinda.
And she set out and identified alternate suspects and did her own police investigation and ultimately got the -- identified an individual named Earl Mann (ph) and he was in prison with Clarence Elkins because he had been convicted for raping other children and Clarence Elkins was able to pick up his cigarette butt and mail it to the lab and it came back and matched the DNA from the crime scene showing that he was the actual perpetrator.
GODSEY: So, we expect him to be charged shortly.
KING: Melinda, you're in the wrong business. You solve crimes. Cynthia, how on earth could this happen?
CYNTHIA ALKSNE, FORMER FEDERAL PROSECUTOR: Well, one of the reasons why it happened was because there was DNA evidence and the prosecutor did not have the money to test it and that can't happen in our country.
We have plenty of money to spend on bridges to nowhere. We have plenty of money to work on courts in Iraq. We have plenty of money for golf trips for fancy Congressmen. And we do not have money for DNA tests and it's outrageous.
It's not only outrageous for this poor man who was convicted. It's also outrageous that the person who committed the crime wasn't convicted. I mean it's two sides of the coin. The victims deserve better than that from this society. And, when politicians stand up and beat their breasts and say "We're really tough on crime" and then waste the money spending it like drunken sailors on things that don't matter people should be outraged and should demand that they put the money into this DNA evidence.
KING: We'll take a break. We'll be right back with more and then the extraordinary case of Alan Gell. Don't go away.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: The judge gave Elkins the maximum possible sentence life in prison.
CLARENCE ELKINS: The whole thing was a nightmare and still is and I'm -- I'm -- I still have to pinch myself and wonder if I'm really awake.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
"AMERICAN JUSTICE" COURTESY A&E
CALLER: June, I'm sorry to tell you this but my grandma died and I need somebody to get my mom for me. I'm all alone. Somebody killed my grandma. Now please would you get a hold of me as soon as you can? Bye.
(END VIDEO CLIP)
KING: That was Brooke Sutton. She is now 14. She was six years old at the time of that 911 call. Melinda, it had to unnerve you, now your mother's dead, your niece is saying your husband did it, you know your husband was home with you, you had to go whacked.
M. ELKINS: I didn't have time to even react actually. I -- I knew very on early in the stages of all of this that I was going to have to do something. I knew there was a mistake being made.
KING: Mark Godsey, as soon as Brooke recanted her identification and her statement why wasn't he let out of jail right away?
GODSEY: Well, yes, they went to court at that time with the recantation and the court rejected it and said that's not enough and that's pretty much par for the course. Judges are very reluctant to overturn these convictions and prosecutors stand by their convictions and, you know, they sort of jealously guard them and they don't let anything stand in their way.
In fact, you know, to take it even beyond that she recanted in 2002 and he wasn't let out of prison but then we did DNA testing and had results showing that he didn't commit this crime in 2004 and it wasn't until we actually went out and proved who the true perpetrator was in December of 2005 that he was let go. So, even once we had DNA evidence proving that he didn't do it, he remained in prison for another year and a half.
KING: Cynthia, how's that possible?
ALKSNE: It shouldn't happen that way. I mean the system broke down. There's no question. I'm not going to make an apology for something that should not have happened and we can do better. We have to constantly work at these cases.
But the answer isn't to give up because we have these victims and we have a compact with victims that we will work hard to find who committed these crimes and prosecute them.
And we have to give our prosecutors the tools to do that and we have to make sure that we hire really ethical prosecutors who are willing to admit when they make a mistake and keep working at it. It's a work in progress.
KING: Melinda, did you work on Brooke to try to get her to change her testimony since you knew your husband was home with you?
M. ELKINS: Absolutely not. No I did not.
KING: Why not?
M. ELKINS: I wasn't going to put her in that position. You know her mind was fragile, you know, from the very beginning and years later I'm not going to come into the picture and try to get her to change her mind. I needed the truth. I didn't want just anybody to be convicted for this.
M. ELKINS: I want the person who did it to be punished.
KING: But you knew your husband didn't do it.
M. ELKINS: I knew absolutely 100 percent that he was innocent.
KING: Brooke, what made you change your mind?
SUTTON: Well, I was having this feeling like he didn't do it and then I was -- I don't know.
KING: Did the defense, Mark, do a poor job of cross-examining Brooke?
GODSEY: Well, it's very tough when you've got a 6-year-old. It's not like that's a sort of witness that you can rip apart or the jury is not going to be on your side anyway as a defense attorney.
And, to be honest with you, her testimony was not that strong to begin with. Her testimony was very short. It was very clear that she saw the attacker in the dark in the dead of night with the lights off and they did a good job on cross-examination of pointing that out and drawing that out.
It was also very clear that she saw the assailant for only a brief period of time, so you have a combination of a 6-year-old who saw her assailant in the dark for a very short period of time and they still were able to get a conviction in that case and I know that sounds very shocking to the average person out there.
GODSEY: It's the sort of thing that happens quite frequently. And, in the Innocence Project here at the University of Cincinnati we see these sort of cases all the time.
KING: Melinda, when did Clarence get out?
M. ELKINS: December 15th.
KING: Were you there?
M. ELKINS: Yes, I was there.
KING: Is he angry at Brooke?
M. ELKINS: Not at all.
KING: He forgives her or understands?
M. ELKINS: Never (INAUDIBLE). He understands. I mean in the very beginning we knew that somehow there was a seed planted with her that his name somehow came up and I believe that it initially started with the person she went to help her that didn't call the police or an ambulance.
KING: Is he -- Melinda, is he bitter?
M. ELKINS: Well, Larry, you have to remember he's been through a horrifying experience. I wouldn't say he's bitter but I think that he's definitely been affected and it's going to take him a while to get back to normal, as we all have. And, it's certainly not over for me. I mean I -- this isn't -- this was one goal that I had and that was to prove his innocence but also to prove someone else guilty and so I...
KING: And here's a statement from the -- here's a statement from the prosecutor's office for Summit County, Ohio. "We regret that Mr. Elkins was prosecuted by a prior administration. This office reopened Mr. Elkins' case and a suspect has recently come to light. Our goal is to bring to justice the person or persons who committed this crime." Great work, Melinda, and thank you all very much.
GODSEY: Thank you, Larry.
M. ELKINS: Thank you, Larry.
KING: Cynthia Alksne will remain with us as we discuss the Alan Gell matter. He's next. Don't go away. (BEGIN VIDEO CLIP)
"AMERICAN JUSTICE" COURTESY A&E
UNIDENTIFIED MALE: Once the verdict was given they first said not guilty of aggravated murder and you had thought almost like you were at a football game because of the cheering.
UNIDENTIFIED MALE: The shouts of Elkins' supporters were quickly silenced. The jury it turned out had compromised.
UNIDENTIFIED MALE: And then when there was guilty on murder it was just the most piercing scream that I've ever heard.
UNIDENTIFIED FEMALE: Clarence looked at me and he -- he shook his head and he put his head down on the table but he was crying.
(END VIDEO CLIP)
KING: Another extraordinary matter to discuss the matter of Alan Gell. Alan spent nine years in prison, half of it on North Carolina's death row for a murder he did not commit. He's with us here at our studios in Los Angeles, as is his mother Jeanette Johnson (ph), who believed in his innocence throughout this ordeal.
In Charlotte, North Carolina is Jim Cooney, one of Alan Gell's post conviction defense attorneys who helped represent Alan at the 2004 murder retrial that ended in his acquittal and release from prison.
In New York is Joseph Neff, staff writer for the News and Observer in North Carolina who has reported extensively on the Alan Gell case.
And, remaining with us in Omaha, Nebraska is the former federal prosecutor Cynthia Alksne.
A little background, Alan was convicted and sentenced to death in 1998 for the 1995 murder of retired truck driver Allen Ray Jenkins. Gell spent nine years in prison, half of it on death row.
In 2002, a judge ordered a new trial because prosecutors had failed to give Gell's defense team exculpatory evidence. Gell's retrial in February of last year resulted in his acquittal.
How did you happen to be the accused, Alan?
ALAN GELL, FREED AFTER NINE YEARS IN PRISON, MORE THAN FOUR ON DEATH ROW: I think my lifestyle contributed to it a lot at that time but it mainly came from two co-defendants, as they were called, during my first trial bearing false witness against me.
KING: Your lifestyle was what? GELL: At the time in 1995 I was a drug dealer, drug user and it left me really, really vulnerable to be accused of a crime, especially a violent crime.
KING: Was this a drug-related crime?
GELL: No, sir.
KING: Do you know why Allen Ray Jenkins was killed?
GELL: There's only speculation. There has been testimony that he was robbed and that he was killed for his money. The actual truth of what occurred nobody has ever found out.
KING: His body turned up much later right?
GELL: My understanding is his body was found in a badly decomposed state.
KING: Sometime after his murder then?
GELL: Some time.
KING: Were the other co-defendants convicted?
GELL: The other co-defendants basically manipulated our justice system by having plea bargains given to them in exchange for testifying against me, so they were never really convicted by a jury. They more or less was convicted of a lesser charge.
KING: Are they serving time for it?
GELL: They are not.
KING: They're out already?
GELL: They're out already.
KING: Did you know them?
GELL: I did. One was my ex-girlfriend. Another one was her very best friend.
KING: So it was a woman and a man?
GELL: It was a woman and -- it was two young ladies.
KING: Two women?
GELL: Yes, sir.
KING: Jeanette how did you know that your son despite the fact that he was in some nefarious things didn't do it?
UNIDENTIFIED FEMALE: I knew where he was at and what he was doing and I just knew him. KING: What was your alibi?
GELL: It was probably one of the most bizarre cases in the world. My alibi was that I was in jail when the murder occurred.
KING: The system in jail for drugs?
GELL: It was a non-related larceny of a motor vehicle.
KING: Would you explain to me then how you could be convicted if there were jail records showing you in jail at the time of the crime? How could that be?
GELL: There was no physical evidence to say that I committed the murder. Time of death was a question in this murder but it wasn't learned until later. The two co-defendants gave a date during a time period that I was not in jail and it ultimately ended up being the day that they said the victim had passed or was murdered.
KING: I'll get in a while to the exculpatory evidence. Joe Neff, the staff writer for the News and Observer in North Carolina, was this a bad case in your opinion from the get-go?
JOSEPH NEFF, NEWS AND OBSERVER REPORTER: It was a bad case from the very beginning. You had two -- the two 15-year-old girls who had told a long series of stories that changed all the time. There was no physical evidence against Alan, as he said, and he had pretty dismal representation in the run up to the trial. It was -- and the prosecutors played keep away with the evidence. All in all it was -- when Alan Gell went to trial in 1998 he walked into a perfect storm, bad lawyers -- go ahead.
KING: Jim Cooney, one of the post conviction attorneys, will you agree with that?
JIM COONEY, DEFENSE ATTORNEY FOR ALAN GELL IN 2004 RETRIAL: I think that's a fairly accurate assessment. I think the problem was the investigation really went off track at a very early stage and then people got locked in to one view of the case and that was Alan did it and they refused to consider anything to the contrary and, in fact, went out and tried to change evidence to make it fit the theory.
KING: All right, Cynthia, how common is that that the prosecutor goes a certain track and it becomes tunnel vision?
ALSKNE: Well, I don't think it's as often as -- this is as bad as it gets this case. There's no question about it. The prosecutor was making a deal with people he shouldn't have been making a deal with. He had no corroborating evidence. He didn't bother to read his file. He didn't follow the rules about turning over evidence. It's everything that could be wrong with the criminal justice system went wrong in this case and it's the prosecutor's fault in this case.
KING: We're going to take a break. When we come back we're going to hear a phone conversation that prosecutors should have turned over to the defense. We'll also be including your calls, two mistakes of justice, if it can be called that, we're looking at that tonight and we'll be right back.
KING: One of the keys in turning this case around was the prosecution's failure to turn over exculpatory evidence to the defense. We're going to play for you portions of a conversation recorded by the North Carolina State Bureau of Investigation on May 17th, 1995.
The conversation is between Crystal Morris, her boyfriend Gary Scott, and Shayna Hall, her friend and Alan Gell's one-time girlfriend. Gary Scott consented to the taping of the call. The call was placed to Shayna Hall's home. Listen.
GARY SCOTT, CRYSTAL MORRIS' BOYFRIEND: Don't you know I ain't got nothing to do with it?
CRYSTAL MORRIS, WITNESS: I know you didn't have anything to do with it. But I'll tell them that I was there if it will keep you out of trouble.
SCOTT: Well you're the only one, Crys, that can get me out of this (EXPLETIVE DELETED).
MORRIS: I'm not the only one.
SCOTT: Yes you are.
SCOTT: Yes you are. You drug me in.
MORRIS: I didn't drag you in (EXPLETIVE DELETED).
All you had to tell them was "Crys is my girlfriend, but I don't know. Why don't y'all talk to her?"
So you had to tell them this little story about me overhearing the conversation, so therefore I had to make up a story to elaborate with yours.
SCOTT: Well, that's what you told me.
MORRIS: OK, Gary. That's what I told you.
KING: Why was this a key, Jim Cooney?
JIM COONEY, DEFENSE ATTORNEY: Here you have the main prosecution witness who is actually admitting on the telephone that she's having to make up her story to kind of keep up with what other witnesses are telling the police. And it goes to the heart of the credibility of this particular young girl. Remember, there's no physical evidence connecting Alan Gell to the case. There's no physical evidence he was even at the crime scene. There's no evidence that he even knew Allen Ray Jenkins.
And the sole connection between Alan Gell and this dead person is Crystal Morris who now is making up statements as she's going along and plumbing Gary Scott for information so she can change her story to make it fit what the police are learning from other people.
KING: Joe Neff, why on earth wouldn't the prosecution immediately be alerted to something like that and look other ways?
JOSEPH NEFF, "NEWS & OBSERVER": That is a great question. The prosecution had in their files 17 statements from 17 witnesses who had seen Allen Ray Jenkins alive driving a car, walking down the street, while Alan Gell was in jail. So it boggles the mind. I wish I knew.
KING: Cynthia, do you have any thought as to how that could have happened?
CYNTHIA ALKSNE, FORMER FEDERAL PROSECUTOR: Here's what I think happened. I think the homicide detectives were terrible. They took a bunch of statements. They put them in their file. They didn't give them to the prosecutor. The prosecutor was weak and lazy and didn't demand them and take control of the case.
In a murder or rape investigation or any serious investigation, the prosecutor has to be in charge. The buck stops with us. Because we're the ones who have the commitment to do what we can to help the victims and to right those wrongs. And this prosecutor didn't feel that way. And he shouldn't have been a prosecutor.
KING: How does all this make you feel, Jeanette?
JEANETTE JOHNSON, MOTHER OF ALAN GELL: Angry at the state and not understanding how our system could work like it worked. You only get out of it what you put into it. And if you don't read your file and you don't know what's in your file, how can you charge someone with first degree murder and prosecute him and send him to death row?
KING: Did you get involved in trying to prove Alan's innocence?
JOHNSON: I did. I did. I did everything I could. I followed it, I chased it, I run with it. I talked to people, anything I could find, anything I could do that I thought would help prove the case. I tried.
KING: We're talking today, next to losing a child, the worst thing in the world would be to be in prison for something you didn't do, right?
ALAN GELL, FREED AFTER SENTENCED TO DEATH: Most definitely.
KING: What was that like for you?
GELL: It's really, really hard to put into words.
KING: I mean, you're on death row, right?
GELL: And I used to think about it a lot. A lot of the people that were there could wake up some mornings and say, man, I wish I really wouldn't have done this, or man, I really wish I wouldn't have done that. And I just - I didn't have that.
KING: In the open we said that possible death row helped save you. How?
GELL: I'm working now to try and bring about some change to our justice system because of some of the little laws that we have that don't make sense. But had I been sentenced to life in prison, the discovery material that was turned over would have never been turned over.
We have a statute in North Carolina that says once convicted of capital murder, that the full files can be disclosed. And if not -- had I got a life sentence, them files would have never been turned over.
KING: Jim, that's a catch 22 isn't it?
COONEY: Absolutely. Which is one of the great ironies of this case. Because if Alan's life had been saved at trial, he would have been doing life without parole claiming he's innocent and everybody would have been laughing at him. The fact that he was sentenced to death saved his life. We had a young attorney in our Raleigh office named Mary Pollard (ph) who had gotten all this information together. And together with Brad Bannon (ph) and Joe Cheshire (ph) in Raleigh, we were able to really effectively prove that there is no physical way that Alan Gell could have committed the murder.
KING: So Cynthia, the jury can then use the famous Mel Brooks line, where did we go right?
ALKSNE: It is amazing, because the information that the prosecutor was obligated to turn over by -- every prosecutor knows this information in this file should have gone to the defense attorney. That information was just sitting right in the file. And they were so dumb that they hadn't bothered to read it. And then they Xeroxed it and gave to it the appellate lawyers. And they would not have had to do that had he not been convicted and gotten the death penalty.
KING: Joe Neff, as you were reporting this, it had to turn incredulous to you.
NEFF: I couldn't believe this. When I was first called, a longtime source called me and told me that there was an innocent person on death row. I had covered prison for 10 years, and I just didn't believe it. Until I saw the witness statements. And I saw all the forensic evidence that Jim Cooney and Mary Pollard put together.
Alan's is a very interesting case because there's no DNA since he was in jail at the time of the murder. But they used the sort of forensic science that you see on CSI using a witness from the body farm where they study human decomposition and a forensic entomologist who dated the time of death through the age of the maggots on the body. I mean, it's absolutely amazing, both the science that they put together, and hiding -- playing keep away with the evidence.
KING: Jim, how would the state have been redressed grievance had Alan been executed?
COONEY: Well, there's no way you can do it. And that's the problem with the death penalty. Is it a final penalty. Now what has happened, fortunately, because of Alan's case, we have a new law that requires prosecutors to turn over their entire file before the trial. They don't have to make any decisions about what's exculpatory or what shows innocence or what shows guilt. They're just supposed to give it all over to the defense and that way there aren't going to be any more secrets. Is it called an open file discovery law. And hopefully there won't be any more Alan Gells because of this.
KING: It should be called the Gell Law.
COONEY: That's exactly what it is.
KING: We'll take a break and go to your phone calls right after these words.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: Until a few months ago, Gell himself was scheduled for execution. He spent nine years behind bars, half of them on death row. Then in a retrial that exposed new evidence, Gell was exonerated.
GELL: I could have been executed or had I got a light sentence, none of this would have been corrected.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
JOHNSON: The judge said they showed remorse. But they've never showed remorse because they've never told my son they were sorry for taking ten years of his life. And they never told us they were sorry. So where did is the remorse? Where did he feel remorse?
They're sorry, yeah. Because they got caught.
(END VIDEO CLIP)
KING: A couple of notes. The former prosecutor Cynthia Alksne is missing part of her mother-in-law's birthday celebration to be a guest with us tonight. So therefore we wish Mary McMahon (ph) a happy birthday and thank her for saying it was okay for Cynthia to do the program. Without her approval, she would not have been here. I understand there will be a civil lawsuit, is that right, Alan?
GELL: There will be.
KING: You're suing who, the state?
GELL: I'm suing those that acted inappropriately that had dealings with my case. It's just been really, really hard having people held accountable for the misconducts that were done.
KING: By the way, LARRY KING LIVE has repeatedly sought comment on Alan Gell's cases from individuals who were cited in his lawsuit or their attorneys. We've been unsuccessful. Those we tried to contact either declined comment or did not respond to our efforts.
And the video clips you've been seeing are from the A&E program "American Justice: What the Girl Saw," which will air tomorrow night. "American Justice" has been covering the Elkins case since 2003 and many credit it with prompting the outporing of public support that helped underwrite efforts to prove Clarence Elkins' innocence and free him from prison.
Let's go to some calls. Wichita Falls, Texas. Hello.
CALLER: Yes, after being imprisoned, what kind of resentment do have you for the system and how has this affected your mentality for you to go on with your life?
GELL: It's just really, really hard to adjust back. There's a lot of things that had changed in society that I had to readjust to. It was really, really hard experiencing some of the things that I experienced while on death row ...
KING: Did you make a lot of buddies on death row?
GELL: I did. And a lot of friends were executed. And it's just ...
KING: What's that like the night of an execution?
GELL: It's really, really sad, and for me, it was a reminder of where I was and sometimes I'd be sad for me and a lot of times I'd be sad for them because I'd meet the people and get to know them as human beings instead of monsters as they were called.
KING: What are you doing with your life now?
GELL: I was up until this past semester a fulltime student in college trying to become a social worker. I had to take some time off for work. I try as hard as I can to bring about some change in our justice system, lobbying at legislative buildings and all, asking legislators to impose a moratorium on our death penalty in North Carolina. Just try my best to make sure that nobody else has to go through and endure the things that I have.
KING: Well said. Louisville, Kentucky. Hello.
CALLER: Good evening. I was wondering -- Alan, by the way, congratulations. GELL: Thanks.
CALLER: I was wondering how this changed your views of people such as individuals, other people that might be in prison and cops and the justice system in general?
KING: You're down on the system?
GELL: Well, from the very, very start, my advice from my mom, who has been by my side always, was to believe in the justice system, that one day it would work for me.
I've ultimately ended up here. I still want to see a justice system that's flawless, but I know that it's ran by humans and we're going to have flaws. To me, in my opinion, that speaks for the reason to not have a death penalty because the death penalty is so irreversible.
My belief in the justice system has been torn. However, I'm not going to say that all prosecutors or all police are horrible people. There are just a few bad apples.
KING: Joe Neff, what has it done as a reporter to your thoughts about the justice system?
NEFF: Well, it really opened my eyes to how the justice system is -- I don't even know if it's systematic. You think that it's a machine out there working and everyone gets treated fairly, but Alan's case was so eye opening, as I've mentioned before, the poor representation he had at trial, the prosecutors misbehaving. And actually, what it took to get him the new trial, Jim works at the largest law firm in North Carolina. And once they went on Alan's side, they committed their full resources and it took a lot for Alan to get to where he is now.
KING: Pro bono, Jim?
COONEY: Yes, we represented Alan at his retrial on a pro bono basis. And we paid for most of the forensic and expert testimony out of the resources of my law firm, Wamble Carlisle (ph). We just, as a firm, made a commitment that we were going to do what it took to help this young man.
KING: Cynthia, does all this give you pause?
ALSKNE: Well, first thing is I have a couple of thoughts that I'd like to share with you.
The first is, which is a sad one, is that this-- whoever committed this crime is now going to be almost impossible to convict. So whoever went in and shot Mr. Jenkins, a retired truck driver and left him for dead so the bugs could eat him, that person may never be convicted because of the prosecutorial error in this case. And I find that very disquieting.
The second though is that one of the reasons why sometimes these things happen, and I'm sad about it, but I might as well be honest with you about what happens in the criminal justice system, is this young man, Mr. Gell, at the time was having problems in his life. He was a drug addict, as he told you. He was in and out of jail. And the defense attorneys didn't care enough, the prosecutor didn't care enough because he was a drug addict. And that's what happens in this system.
And it's one of the effects, it's yet another reason why people with drug problems have continual problems, because they don't get a fair shake. And I understand that, but it's also something you want to think about when you talk to your family members that have drug problems, that this is one of the side effects. Yet another side effect to their problem.
And the third thought is that there was no law required to fix this problem. Because the lawyers were required to turn over the information that they didn't. They were required to tell the defense attorney about these witnesses, about the statements of Mr. Gell, about how these women had been lying and that they had tapes of it. So it isn't a question of we need to legislate something. This is a human question. We need to be careful about who we pick a prosecutors.
KING: We'll take a break and be back with more. Don't go away.
KING: Triangle, Virginia. Hello.
CALLER: Yes, sir, how are you doing?
CALLER: I'm Mr. Charles Collins (ph). And my initial statement that I talked to the person taking the call, I'm very angry so I'm probably talking angrily here right now, but I had -- my case is just so unusual and it's just, what do they say, truth is stranger than fiction. But over the past 17 years I've committed no crime, I've been hauled into jail something like 20 times. I've had -- the first time this happened, my lawyer forced me to plea. So if I didn't take the plea, he would make sure I went to jail. OK? I've reported this and reported it do the police and everybody. It has been a major battle the last 17 years.
KING: Why You?
CALLER: Including - let me finish. I'm almost done. Including the chief of police who deliberately forged the record. Chief Dean (ph) over here.
KING: But why you?
KING: Why you? CALLER: Well, because I'm the one -- you can tell I'm pretty combative. Somebody tries to railroad me, I'm going at them. The question I told the caller is this. Where are we going to be putting these people that have been proven railroaders in jail where they belong?
KING: Joe Neff what do you think in.
NEFF: Well, the two prosecutors in Alan's case were given a written reprimand by the state bar, but they've moved on. The lead prosecutor David Hoke is now the number two administrator in the state court system in North Carolina.
When you -- It's hard to discipline a prosecutor. And Alan's lawsuit that he's suing them, they have absolute immunity against lawsuit for actions undertaken as a prosecutor. So it's difficult.
KING: Cynthia, that's wrong, isn't it?
ALSKNE: The prosecutors need to have some form of immunity as a prosecuter. Because I was a federal prosecutor, I had qualified immunity which is a lower standard. As long as I behaved as a reasonable prosecutor would, I was protected. And I was comfortable with that level of immunity because you are going after people who hate you. I mean, you are going and pushing people who are very angry and they're mad when they're convicted. They don't like it, to be convicted. And you don't need to be harassed. So I do think a prosecutor needs some form of immunity. I'm comfortable with a more qualified immunity instead of the absolute immunity.
KING: Back with more moments right after these words.
KING: Dundas, Ontario, hello.
CALLER: Yes. Good evening, Mr. King. My wife and I love your show.
KING: Thank you.
CALLER: We'd like to know if DNA evidence is present, why is it not mandatory that it's tested?
KING: Jim Cooney, why?
COONEY: Well, in many states, it now is mandatory that it gets tested. The problem with the Elkins' case, as I was listening to it, if the prosecutors are not going to test the DNA, then by God the defense attorneys ought to test the DNA.
I mean, it's just -- DNA wasn't all that new in 1998. And I think it's something that everybody is aware of now.
The real problem is in some states after somebody's been convicted the evidence is being destroyed. And DNA that we have now is a lot more sensitive than it was five years earlier. And you can pick up a valid DNA sample now and get a profile, whereas you couldn't five or six years ago. And if the states continue to destroy evidence after a conviction, you're depriving potentially innocent people of the way in which they need to prove their innocence.
KING: Coeur d'Alene, Idaho. Hello.
CALLER: Hi, Alan. I was just wondering, I realize that you have civil lawsuits pending, but I'm wondering if the state gave you any type of compensation when you were released. And how do you obtain employment?
GELL: That's a really good question. And up until today, I've had no compensation from the state, no apology from the state. And it really is a struggle employment-wise. I have to list myself as being charged with murder and convicted of the felony because if I don't, then I'd be punished for not being truthful on the application. And unless somebody digs deeper and sees that I was later exonerated, it's held against me.
KING: You can write that down, though, can't you?
GELL: Usually on most forms that you fill out for employment, it's either yes or no and that's all the space you have.
KING: Jim, couldn't we change that?
COONEY: Well, I think it's important that we change it. In fact, the central prison Web site for six or seven months after Alan was exonerated continued to list him as having been convicted of first degree murder, but having received a new trial. Even now they won't put on the Web site that he was acquitted. They just say he was released after a new trial.
So you've got this vast machine machinery once a conviction takes place that's very difficult to overturn.
KING: Cynthia, you think we'll see improvements?
ALKSNE: I think we see improvements all the time. I really think if we continue to force our people in Washington, I think we can get the money so the DNA testing, the money is available, not only to prove people who are innocent but also prove people are guilty. I mean, the person who did this murder is walking around free.
And we need to have that kind of information. Not just for these cases but to vindicate the rights of the victims and prove people guilty.
KING: And Jeanette, there was never a motive, right?
JOHNSON: Never a motive.
KING: And you never saw or met the victim?
GELL: I had never seen him in my life. It's really odd to lose that much time for ...
KING: Incredible. Thank you all very much.
Alan Gell, who spent nine years in prison, half of it on death row, for a crime he did not commit. His mother, Jeanette Johnson.
Jim Cooney, one of the post conviction defense attorneys, Joe Neff of the "News & Observer" who has covered this case and Cynthia Alksne, the former federal prosecutor, she came to us tonight from Omaha, Nebraska.
Tomorrow night we'll take a look at the life and times of the late Ricky Nelson. That will be quite a memorabilia show.
We turn things over now to AC 360. That's normally Anderson Cooper, but tonight it's "HC 360." Heidi Collins sits in on 360 and that is next.
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