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.

Feb. 20, 2015

“Exonerations, which were once exceedingly rare, have become regular features of the American justice system. The National Registry of Exonerations records 1,535 exonerations nationwide (including Bob Kelly and Dawn Wilson) since records began in 1989….

“The 125 wrongful convictions thrown out in 2014… might seem paltry compared to the estimated 1 million felony convictions per year, but the number of wrongful convictions is likely far higher. Many jurisdictions don’t devote the same level of resources towards exonerations that North Carolina does (with its Innocence Inquiry Commission), and even then the process can be achingly slow.

“For a justice system that exalts due process and the presumption of innocence, any wrongful conviction represents a serious breakdown of justice. Even a handful of high-profile wrongful convictions can ripple throughout the public consciousness, undermining confidence in the system. ‘The country is having to psychically cope with conclusive evidence that we make, with some regularity, errors in criminal trial outcomes,’  said (Mary Kelly Tate, director of the University of Richmond law school’s Institute for Actual Innocence).”

– From “Guilty, Then Proven Innocent” by Matt Ford at The Atlantic (Feb. 9)

July 5, 2013

“RALEIGH – During a hearing at the state Court of Appeals, Chief Judge Gerald Arnold repeatedly asked a state prosecutor about the fairness of testimony by (Bob) Kelly’s former attorney in Edenton. Arnold said the attorney had, in effect, testified that he believed in Kelly’s innocence until he learned his child had been abused.

“ ‘How can you argue that it was not extremely prejudicial?’ the judge asked.

“Associate Attorney General Ellen Scouten argued that Chris Bean did not divulge confidential information and did not violate an attorney-client relationship with Kelly. She said Bean testified as a parent and a crime victim.

“Arnold said Bean, now a district court judge, had gone beyond describing what he had seen and witnessed as a parent.

“ ‘This boils down to the most fundamental questions of fairness,’ Arnold said. ‘When you have an attorney testifying that “I was Mr. Kelly’s attorney and I believed in him very strongly until I learned the truth, that is to say that he’s guilty, and then I was shattered.” How can there be more prejudicial, stronger evidence put before a jury than to have a former attorney, the defendant’s attorney say that?’

“Scouten said that because the defense had contended that accusers in Edenton were hysterical people on a witch hunt it was fair to allow the state to show the type of people involved.

“ ‘Mr. Bean and his wife were reputable, respected thoughtful, educated people – not the type of people that would be swept up by community hysteria,’ she said.”

– From “Appeal of 2 defendants in Little Rascals case draws a crowd” in the News & Observer (Jan. 10, 1995)

Given this line of questioning, it came as no great surprise when four months later the Court of Appeals overturned the convictions of both Kelly and Dawn Wilson.

Bean’s unfettered opinionating was only one of three major defects cited by the court, the others being the withholding of exculpatory evidence by prosecutors and the testimony of parents as expert witnesses.

The prosecution got off light – the brief filed by appellate defender Mark Montgomery claimed no fewer than 222 potentially reversible errors.

Oct. 5, 2012

Because today’s North Carolina Supreme Court decision on Junior Chandler’s appeal comprised three separate parts, I didn’t fully comprehend it.

“Is this good news or bad?” I emailed Mark Montgomery, Junior’s appellate lawyer.

“The worst,” he replied. “We’re out of court.”

Yes, this is the worst – the absolute, inexcusable, shameful worst.

The justices have denied Junior Chandler, probably the last still-imprisoned victim of the multiple-offender, multiple-victim ritual-abuse day-care panic, his final chance for a new trial. After 25 years behind bars – more than all the Little Rascals defendants combined! – he faces only more of the same.

If I were a lawyer, maybe I could understand how the North Carolina Supreme Court arrived at its decision.

How it was unmoved by Junior’s feeble representation early on.

How it was uninterested in the epochal progress made in limiting expert testimony.

How it was all too eager to find petty justifications for validating a prosecution rotten at the core.

But probably not.