Family of Black man who died in NC jail deserves more as court cases stall, attorney says
A year has passed since five deputies and a nurse were charged in the death of a Black man at the Forsyth County jail but since then the case has stalled and the family’s attorney said he’s not satisfied with how his clients have been treated.
John Elliott Neville was 56 when he died on Dec. 4, 2019, from positional and compressional asphyxiation after being held down on his stomach with his hands behind his back and his legs raised to his wrists, according to a medical examiner report.
The position is controversial in law enforcement because holding someone in that position, known as prone restraint, stretches a person’s chest muscles in a way that makes it difficult to breathe and can lead to death.
In deputies’ body camera footage, released to The News & Observer by a Superior Court judge, Neville shouts at least 30 times that he can’t breathe while deputies ignore his distress.
“I’m going to die,” he says in the video.
He died three days later.
Nearly eight months passed before the public learned about Neville’s death.
On July 8, 2020, Forsyth County District Attorney Jim O’Neill announced he would charge the five deputies and a nurse from Wellpath, a healthcare company that contracted with the county to provide medical service to the jail, with involuntary manslaughter.
Since then, the case has stalled, public records have been withheld and the family has not received any compensation.
“You know the squeaky wheel gets rewarded,” said Mike Grace, a Winston-Salem attorney representing the Neville estate. “The squeaky wheel all over the country in cases similar to this, and in cases not nearly as egregious as this case, got rewarded.
“And these folks who did not choose to make this a battle of good versus evil or Black versus white or any other struggles we’ve had, they got nothing.”
The death of John Neville
Government officials did not notify the public of Neville’s death.
News releases weren’t issued, Forsyth County Sheriff Bobby Kimbrough didn’t tell his constituents and the State Bureau of Investigations looked into the death without the public’s knowledge.
The News & Observer first learned that Neville died from a spreadsheet of in-custody deaths released by the NC Department of Health and Human Services. After further inquiry, The N&O was told Neville did not actually die in custody.
That part was true.
The Forsyth County Sheriff’s Office had Neville’s bail dropped while he was being treated at Wake Forest Baptist Medical Center for injuries sustained at the jail that caused his death.
Deputies took Neville into custody on Dec. 1, 2019, after a woman went to a magistrate and took out a warrant against him for assault.
Neville had been in the jail a few hours when he fell from his top bunk in the middle of the night.
The body-camera footage shows the responding nurse, Michelle Heughins, telling Neville he was having a seizure.
Seemingly unaware of his surroundings, Neville became combative and started yelling at deputies to let him up.
Instead, they took him to another cell where they placed him into prone restraint.
For three minutes, Neville begged deputies to help him breathe.
After a fourth minute, he stopped moving.
The video shows deputies eventually trying to free Neville from the handcuffs but their keys and a bolt cutter broke in the process.
Twelve minutes into Neville being held down, deputies realized his heart had stopped and he wasn’t breathing, according to the autopsy and the video.
At 19 minutes CPR began.
Neville fell into a coma and never recovered.
The murder of George Floyd
Neville’s children have been present during court hearings for their father and have been working with the law firm Grace, Tisdale & Clifton in Winston-Salem, which represents Neville’s estate.
“I’m disappointed in all the actors except for Jim O’Neill,” Grace, the Winston-Salem attorney said. “It just shows you where we are in this country. Every DA in every similar case had to be forced to do the right thing, had to be threatened by the public who were going out and demonstrating and sometimes worse.”
O’Neill filed charges against the five deputies and the nurse at the height of the nationwide demonstrations in response to the death of George Floyd.
Floyd, a Black man, was murdered May 25, 2020 while in Minneapolis police custody after he was placed in prone restraint and Derek Chauvin, an officer at the time, knelt on his neck.
Floyd’s death led to protests and riots around the country, including in Raleigh, as people begged for police accountability.
That didn’t happen with Neville’s death, though his name has been chanted occasionally during protests for other Black people who have been killed by police.
Grace said because O’Neill charged the nurse and deputies in Neville’s death and the sheriff issued a public apology to the family, they didn’t incite demonstrations.
“We didn’t want to whip the community up into a frenzy with this thing, thinking that the powers would understand, especially after the sheriff admitted that mistakes were made, that they would treat this family well and resolve the case, but they have done nothing,” Grace said. “The people with the city, and the county, and the insurance and the sheriff — they have done nothing.”
Kimbrough, the Forsyth County sheriff, disagreed with Grace.
In response to Grace, the sheriff’s office released a statement to The N&O Monday that said before Neville’s death became public he had talked with the family and had offered support to Neville’s children.
The statement said the sheriff’s office honored requests and decisions by the Neville family as they were legally able.
The sheriff’s office told The N&O said they can’t comment further on the case because the Neville family is pursuing “compensation for their loss through the judicial system.”
“As it relates to compensation I have no control or legal standing to make a determination,” Kimbrough said, in the statement. “My prayers and condolences have been and will always be with the Neville family. In due time, may God grant them peace.”
Wellpath declined to comment to The N&O when asked about Grace’s comments.
“Wellpath has a policy of not commenting on pending litigation, and out of respect for both the Neville family and the legal process, we believe that further comment would be inappropriate at this time,” Judy Lilley, spokeswoman for Wellpath, told The N&O.
Grace said the Neville family should at least be compensated because of Neville’s death, but added that nothing will make his death OK.
“They tried to set a different tone and tenor and not whip their community up into a frenzy and this is how they were rewarded,” Grace said about Neville’s family.
The family has not yet filed a lawsuit but Grace said another law firm has been hired to do so. Grace said despite representing Neville’s estate he did not feel as if his firm could ethically sue Forsyth County Sheriff Bobby Kimbrough because they have a personal and professional relationship, including Grace being the one who introduced Kimbrough to constituents during the sheriff’s campaign.
Charges filed in John Neville’s death
The N&O first learned the actual details about Neville’s death in late 2020 but could not get confirmation.
The newspaper filed in June 2020, a court petition for the release of the body-camera footage. The N.C. Office of the Chief Medical Examiner, on July 7, 2020, released its autopsy report, before a hearing could be scheduled.
A day later, O’Neill announced the charges against deputies Sara E. Poole, 36; Lavette Williams, 47; Edward Roussel, 50; Christopher Stamper, 42; Antonio Woodley, 26; and Michelle Heughins, a nurse for Wellpath, which provided medical assistance to the jail.
Since then, the cases haven’t moved forward.
“It’s been an enormous burden for Ed (Roussel) and we eagerly await our day in court,” Stuart Brooks, Roussel’s attorney, said.
Brooks said the charges have had an economic and personal impact on Roussel’s life but he remains in good spirits and wants “his day in court.”
“It’s a tragic situation and our hearts go out to the Neville family,” Brooks said.
Cases delayed due to COVID-19
Getting a criminal case to trial is a long process but COVID-19 has increased the wait times.
Former NC Supreme Court Chief Justice Cheri Beasley stopped jury trials shortly after the pandemic reached North Carolina in March 2020.
In mid-January, just weeks after taking office, Chief Superior Court Judge Paul Newby gave authority to local judicial officials to decide whether to resume jury trials, with the senior resident Superior Court judge left to make the final decision.
In Forsyth’s case, that falls to Superior Court Judge Todd Burke.
O’Neill said that he’s still waiting for those trials to resume.
“With our court system in Forsyth getting ready to fully reopen, we’ll be able to move forward with some of our Superior Court cases,” O’Neill told The N&O last week.
But he added that just because Neville’s case has become a national story does not mean it gets to move to the top of his list for prosecution.
“You know, there are other victims and other cases that have been waiting for their day in court as well,” O’Neill said.
Legal battle over public records
The N&O and a handful of other media outlets are caught in a legal battle against O’Neill and the N.C. Department of Health and Human Services for the release of public records in Neville’s death.
The N&O filed a series of public records requests on June 16, 2020, July 13, 2020 and July 31, 2020, requesting the release of death investigation records held by the N.C. Department of Health and Human Services.
The records requests included all documentation on Neville’s death, any investigation by DHHS and its Construction Section and all electronic and written correspondence with Forsyth County officials.
On June 26, 2020, 10 days after the newspaper filed its first public records request with DHHS, the N.C. General Assembly passed Senate Bill 168 that would have prevented DHHS’ death investigation records from being public records going forward.
After a public outcry, Gov. Roy Cooper vetoed the bill.
The News & Observer did not hear from DHHS until Feb. 1 when Forsyth County prosecutors emailed reporters to say they had Judge David Hall seal DHHS’ records on Neville and there would be a court hearing later that month.
The crux of prosecutors’ concerns is that those public records include the entirety of the SBI report, a document not normally available to the public. However, Mike Tadych, an attorney representing The N&O, told Hall that past case law states that if the record was given over to a governmental agency it becomes public.
After reviewing the public records laws, Hall agreed with Tadych.
O’Neill put Hall on notice that he planned to appeal his decision.
O’Neill argued that having the documents released could hurt the criminal defendant’s right to a fair trial.
Brooks, Roussel’s attorney, told The N&O he appreciated O’Neill looking out for his client.
“We’re not interested in having anything hidden from the public and believe in transparency,” Brooks said. “He certainly doesn’t have anything to hide.”
Grace agreed.
“We will need them in our lawsuit, I guess the criminal defendants are asking for them and you need them to do your job,” Grace told The N&O. “In this case, we come down in favor of the documents being released, but you know, we don’t have legal standing.
In late June, the Appellate Court stayed the release of the records.
The case is more complex than some because Forsyth County prosecutors didn’t have legal authority to bring the case forward.
The documents belong to DHHS, headquartered in Raleigh, meaning that the case should have been heard in the state capital and that it could only be filed by The N&O.
Because of that, Hall strongly encouraged The News & Observer and several other media outlets who joined forces to fight for the records, to file a lawsuit for the records in Raleigh against DHHS.
Last week, DHHS filed a motion to stay that lawsuit, which would prevent the lawsuit from going forward on the argument that there are two simultaneous cases on the matter.
Tadych said he does not believe DHHS’ motion is appropriate and they should have moved to dismiss the case or responded to the media coalition’s complaint.
“It’s frustrating that the sideshow created in Forsyth County has stalled the production of the records,” Tadych said.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at link.chtbl.com/underthedomenc or wherever you get your podcasts.
This story was originally published July 20, 2021 at 3:58 PM with the headline "Family of Black man who died in NC jail deserves more as court cases stall, attorney says."
