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.

June 29, 2016

“Compensation is intended in part as a deterrent: a municipality that has to pay heavily for police or prosecutorial misconduct ought to be less likely to allow it to happen again. But it is taxpayers, not police or prosecutors, who bear the costs of litigation and compensation. Prosecutors enjoy almost total immunity in cases of misconduct, even if they deliberately withhold exculpatory evidence from a jury. A 2011 Supreme Court ruling also made it virtually impossible to sue a prosecutor’s office for such violations….”

– From “The Price of a Life: What’s the right way to compensate someone for decades of lost freedom?” by Ariel Levy in the New Yorker (April 13, 2015)

To “deliberately withhold exculpatory evidence” seems all too neatly illustrated in Bob Kelly’s trial. Here’s how the North Carolina Court of Appeals described the prosecution’s actions:

“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 (Marsh) 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…. Defendant argues that the files contained undisclosed information that would have been material to the defense.”

To wit, the withheld files were bulging with exculpation – conflicting claims, evidence of hysteria, eyewitness testimony that nothing happened.

Prosecutors H.P. Williams Jr., Bill Hart and Nancy Lamb walked away rebuked by the Appeals Court but otherwise unpenalized. How differently might the Little Rascals case have unfolded had they known their recklessness wouldn’t be shielded by prosecutorial immunity?

Jan. 25, 2013

“With regard to recovered memories, ritual abuse charges and multiple personalities, the tide seems to have turned. Courts are continuing to reverse decisions…The Edenton Seven have been released from prison…. Yet many of these people’s lives have been wrecked by false allegations….

“If, as some polls claim, millions of Americans believe in alien abduction, we have a long way still to go before credulity, superstition and hysterical epidemics are on the wane…”

– From “Hystories: Hysterical Epidemics and Modern Media” by Elaine Showalter (1998)

May 8, 2015

“A new investigation by the governor into ‘culpability’ has some concerned that he may be caving to the political pressure inherent in the pardon process – particularly given the exhaustive review and judicial imprimatur that the (Henry) McCollum and (Leon) Brown cases have already received.

“The original prosecutor, Joe Freeman Britt, has publicly opposed any pardon for the men. ‘There is no doubt in my mind that they’re not entitled to a pardon, and there in no doubt in my mind that they’re not entitled to compensation for the taxpayers,’ he said in the March (16) New York Times story.

“But attorneys involved in the case and other who work in this area say that the governor’s work has already been done for him.

“ ‘A district attorney would not have consented to their innocence, and a judge would not have put innocence in their order, if there was any level of culpability,’ said Chris Mumma, executive director of the North Carolina Center on Actual Innocence….”

– From “Begging for a pardon: Why some of the wrongfully convicted could go penniless” by Sharon McCloskey at NC Policy Watch (May 6)

Now that Gov. McCrory has returned from the Global Gourmet Games, perhaps he is at last bringing his ‘culpability’ investigation to an end. But the question remains: Why did he open it in the first place? Why was it appropriate to add eight months to North Carolina’s brutal mistreatment of McCollum and Brown? Surely, it wasn’t an effort to satisfy the notorious Joe Freeman Britt!