Judge’s ruling could shed light on deputies’ actions before NC inmate’s death

A Forsyth County judge on Friday dissolved an order sealing public records that could shed light on the actions of deputies in Winston-Salem accused in an inmate’s death.

Last summer, The News & Observer asked the N.C. Department of Health and Human Services for public records regarding the death of 56-year-old John Neville.

But the Forsyth County District Attorney’s Office asked a judge to seal the records without notifying The N&O or its attorney, Mike Tadych. On Jan. 29, the judge granted the request, leading to more secrecy in the case.

Five deputies and a nurse face involuntary manslaughter charges in Neville’s death on Dec. 4, 2019, three days after he was held down in the Forsyth County jail. Deputies had placed Neville on his stomach with his arms in handcuffs and his legs raised to his wrists.

Prone position, as it is known, is a controversial hold because it can lead to suffocation and death. An autopsy report states that being held in that position led to positional and compressional asphyxiation, causing a brain injury after Neville’s heart stopped.

The N&O formed a coalition with eight other media outlets to file a motion to dismiss the judge’s order. He heard arguments from prosecutors and the coalition Monday.

“After an exhaustive review of all relevant case law, statutory authority and legislative history, I conclude that existing law requires the Temporary Protective Order be dissolved, and the Coalition’s Motion to Dismiss be allowed,” Judge David Hall wrote in Friday’s ruling

Tadych thanked Hall for his order.

“We appreciate Judge Hall’s thoughtful review of the applicable case law which makes clear that the public — not the government — has the power to enforce North Carolina’s Public Records Law and that once records are made public, the bell cannot be unrung,” Tadych said.

The district attorney’s office has appealed the decision and filed a motion asking the judge to keep the records sealed during the appeal process.

Tadych has requested to be heard by the judge on the latter.

Meanwhile, Chris Clifton, the Neville family’s attorney, said, “The Neville family continues to support (District Attorney) Jim (O’Neill) in his efforts to ensure the integrity of the criminal investigation and the defendants’ right to a fair trial, while at the same time trying to protect the victim’s family from the additional stress of potentially private and confidential records of their loved one from being publicly scrutinized.”

The family said through Clifton last summer that they worried about the emotional impact of another judge’s decision to release videos of what happened to their father at the jail, but ultimately decided to support the release so their father’s death would not be in vain and could result in positive change.

The hearing

O’Neill asked Hall during Monday’s hearing for the records to be sealed to protect the criminal case and the defendants’ rights to a fair trial. That could be compromised if information got out to the public, he said.

Assistant District Attorney Elisabeth Dresel said the files include a 723-page State Bureau of Investigation report on Neville’s death. Hall cited that report in his initial order sealing the records.

Normally, reports on SBI investigations are not public record.

But Tadych said a 1992 court ruling in The News & Observer v. Poole set a precedent for what happens once the SBI gives its report to a third party.

“By virtue, when the SBI handed the report over to DHHS it became a public record,” Tadych said.

Hall said he was surprised and that he had never seen the Poole case before.

“This may be public record,” Hall said while reviewing the case file. At that, attorney David Freedman, who represents one of the charged deputies, shook his head.

O’Neill asked Hall, if it was a public record, what would compel investigators and DHHS to work hand-in-hand?

“That is an excellent public policy question,” Hall replied. He then said he needed a few days to review the Poole case before making his decision.

Death investigation records

Lawmakers last summer tried to change public policy regarding death investigation records in DHHS custody.

In late June, just 10 days after The N&O first requested Neville’s records from DHHS, the Senate passed a bill in the middle of the night that declared DHHS’ death investigation records to no longer be public.

Senate Bill 168, first filed in 2019, changed several times through the course of its existence. The bill’s contents were gutted and replaced two days before it passed to include that clause.

After a public outcry, Gov. Roy Cooper vetoed the bill. His veto meant that DHHS’ death investigation records remain public, The N&O argues.

Six months passed before Neville’s death became public, which happened only after The N&O learned about the SBI probe and the deputies’ alleged involvement.

This story was originally published February 12, 2021 at 11:37 AM with the headline "Judge’s ruling could shed light on deputies’ actions before NC inmate’s death."