June 22, 2012

“Teen-age Holocaust victims had no trouble looking their abusers straight in the face and saying, ‘You did this to me, you monster.’ None of them, when they were younger, had to have any of their memories elicited. Nor were there embellishments of clowns throwing fire around the room.

“The author of a book on Holocaust survivors, ‘New Lives,’ had this to say: ‘I interviewed hundreds of Holocaust survivors. Would that they could forget anything. At age 4, at age 5 they remembered everything on the SS officers’ uniforms.’ ”

“The author is the Wall Street Journal’s Dorothy Rabinowitz, the first journalist to provide the same in-depth reportage about Fells Acres that ‘Frontline’ provided about Little Rascals and Abby Mann did for the McMartin trial in an HBO movie.”

– From “Abusing Justice, in the Name of Children” by Ed Siegel in the Boston Globe (September 8, 1995)

Sept. 5, 2016

“Police say they are doing extra patrols in a Winston-Salem neighborhood after two children reported seeing a clown trying to lure kids into the woods with treats…. and one adult reported hearing the clown.

“Officers say they found no evidence of a clown in the woods.

“About four hours later, a caller who refused to give a name reported seeing a clown about 2 miles away. Police say again they found no evidence of a clown.

“Several unverified clown sightings in northern South Carolina have been in the news recently.”

– From “Winston-Salem police increase patrols after clown sightings” in the News & Observer (Sept. 5)

“The rumor has traveled like a Halloween ghost – from Wilson to Coats to Apex to Raleigh.

“Perplexed law enforcement agencies statewide have been fielding inquiries for weeks about stubborn – but unfounded – rumors of a plan by unidentified Satan worshipers to kidnap and sacrifice children….between the ages of 2 and 5 for a human sacrifice on Halloween.

“Sheriff Freddy W. Narron of Johnston County said rumors seem to have started after a local newspaper printed articles about Satanic cults.”

– From “Rumors of satanists kidnapping children are tough to snuff out” in the News & Observer (Oct. 28, 1989)

What fertile ground North Carolina, circa 1989, provided for hysteria about 2- to 5-year-olds. The sheriff of Johnston County seems to have summoned considerably more skepticism about farfetched rumors than the Little Rascals prosecutors. Within three months of the Halloween panic all of the Edenton Seven had been arrested.

What sequela might we expect from the Great Clown Panic of 2016? Prosecutors, line up your child witnesses!

April 13, 2015

D. Marsh McLelland, judge in the trials of Little Rascals defendants Bob Kelly and Dawn Wilson, died last month in Burlington. He was 94.

This laudatory obituary in the Greensboro News & Record barely mentions the most consequential case in McLelland’s career – “He was brought out of retirement by the state’s chief justice to hear the Little Rascals Day Care child sex abuse case….” – and this one in the Burlington Times-News mentions it not at all.

Had McLelland stayed retired, the prosecution of the Edenton Seven might well have been derailed early on.

The judge originally assigned to the case, L. Bradford Tillery, stepped down under pressure from Deputy Attorney General Bill Hart. Mark Montgomery, Bob Kelly’s appellate attorney, explains why:

“Hart did not like the way Tillery was handling the case.  The final straw was when Tillery ordered Hart to turn over the State’s interviews of those kids who were not the subject of indictments.  He did not order them given to the defense, as he should have done, but Tillery was going to look through them himself.  If he had, he would have seen that most of the kids at the day care, including Hart’s adoptive daughter, had said nothing happened and the jury would have heard about that.

“To prevent that, Hart filed motions accusing Tillery of being biased against the State. Rather than punishing Hart, Tillery took himself out of the case to avoid any appearance of partiality.  Enter McLelland.

“Because Tillery had already ordered the interviews turned over to the court, that was a done deal.  But McLelland never looked at them.  I stumbled across them in the exhibit room of the courthouse and informed the Court of Appeals in my brief.  The failure of the State to turn over to the defense the interviews of kids who said nothing happened was one of the grounds for a new trial for Bob.”

Tillery clearly was stung by Hart’s ploy: “I have served as a judge of Superior Court for over 20 years, and I never found it necessary to take such a step…. Neither have I ever been made to feel before that one side or the other considered me to be not only an adversary but also fair game …. for reckless assertions.”

If only Tillery had responded not by resigning but by sanctioning Hart for withholding evidence.

Aug. 27, 2012

“Prosecutors are the most powerful officials in the criminal justice system. They decide whether criminal charges should be brought and what those charges should be, and they exercise almost boundless discretion in making those decisions. Prosecutors alone decide whether to offer the defendant the option of pleading guilty to reduced charges….

“Equally problematic is that the charging and plea-bargaining decisions are made behind closed doors, and prosecutors are not required to justify or explain these decisions to anyone…. The lack of transparency also leads to misconduct, like the failure to turn over exculpatory evidence – a common occurrence made famous by the prosecutors in the Duke lacrosse and Senator Ted Stevens cases.”

– From “Prosecutors’ Overreaching Goes Unchecked” by Angela J. Davis in the New York Times (Aug. 19)

Prosecutors plea-bargained cruelly though futilely with the Edenton Seven. And while the evidence-withholding in the Duke and Stevens cases may have made bigger headlines, it was no more flagrant than in Little Rascals.

One example from the North Carolina Court of Appeals order overturning Bob Kelly’s conviction (May 2, 1995):

“Judge L. Bradford Tillery, a pretrial Judge, directed the State to file and present for in camera review identifying information, medical and psychotherapeutic files and DSS files with respect to the ‘indictment children’….

“In apparent compliance with Judge Tillery’s order… the State turned over a box of files to the trial court, Judge McLelland presiding. The box contained, inter alia, complete medical notes and therapy notes on the 29 indictment children, 12 of whom testified at defendant’s trial and 17 of whom did not….

“After trial, defendant’s appellate counsel went to the Office of the Clerk of Court for Pitt County to view the exhibits. He opened several boxes containing trial exhibits, none of which were sealed. One of the boxes contained 29 files labeled with the names of the indictment children. Appellate counsel reviewed some of the documents contained in the files before requesting the box to be sealed and transmitted to the Court of Appeals…. Defendant argues that the files contained undisclosed information that would have been material to the defense.”

In fact, the withheld files were bulging with exculpation – conflicting claims, evidence of hysteria, eyewitness testimony that nothing happened. Countless other examples are documented in Bob Kelly’s appeal brief.

Attorney General Mike Easley bridled at the appeals court’s concern over such “small areas… none of which are very significant.” And, after all, as prosecutor Bill Hart had asked smirkingly during the trial, “If you were playing poker, would you be playing with your full hand showing?”