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Public officials rarely charged in botched cases

By Fred Clasen-Kelly
frkelly@charlotteobserver.com

A grand jury indictment against a Boone hotel executive – and not the authorities accused of mishandling the investigation of three deaths – shows how complicated it is to hold public officials accountable for their work, legal experts say.

The Watauga County district attorney’s office announced charges of involuntary manslaughter and assault against Damon Mallatere, president of Appalachian Hospitality Management.

But there were no charges against the Watauga County former medical examiner, building inspectors, fire officials and others responsible for protecting citizens.

Mallatere’s attorney said the businessman is “extremely disappointed” authorities charged him and questioned why they did not focus on the actions of others who worked the cases.

State and local officials have been blamed for failing to act more urgently after Daryl and Shirley Jenkins of Washington state died in April from carbon monoxide poisoning in Boone. Two months later, 11-year-old Jeffrey Williams died, and his mother, Jeannie, suffered severe injuries after staying in the same room at the Best Western.

An Observer investigation last year found that a faster response after the Jenkinses died could have prevented Jeffrey’s death.

Authorities did not immediately test the room for carbon monoxide. Toxicology testing can take as little as 15 minutes. After the Jenkinses died, it took the state 40 days to complete the first test.

But legal experts said they did not anticipate public officials would face charges because it would be difficult to prove their negligence met the standard for criminal conduct. To convict them of gross criminal negligence or failure to carry the duties of public office, prosecutors would need to show they acted with intent.

“There’s an old legal saying that goes, ‘Intent is a mental element that is seldom proved with direct evidence,’ ” said George Laughrun II, a prominent Charlotte attorney.

Experts said the Williams and Jenkins families have better chances filing civil lawsuits, where the standard for negligence is lower. But even that won’t be easy, said Carol Turowski, professor and director of clinical programs at the Charlotte School of Law.

“Whose responsibility was it to make sure that room was shut down?” Turowski said. “There’s going to be unbelievable finger-pointing.”

Dr. Brent Hall, the local medical examiner, has been criticized for his handling of the investigation. In June, after the second deadly incident, he resigned his post.

“There’s a question about whether he acted quickly enough,” said Turowski. “That’s more of a system policy question.”

She said she believes the North Carolina attorney general should look at procedures at the state medical examiner’s office

Hall has refused to comment on his resignation. He was the medical examiner in the area for 20 years.

Clasen-Kelly: 704-358-5027
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