AN INNOCENT MAN
They stood in line for Scott Sanders — friends, relatives and the cops who once worked by his side in the Special Intelligence Division and other branches of the force. They hugged him tenderly, crying. They clasped him roughly and thumped his back. Some laid their heads on his shoulder. Minutes before, a jury had declared him not guilty on a charge of “causing to be accessed a government computer, willfully and without consent” after a deliberation that began on Thursday at 3:45 p.m. and wended its way through Friday afternoon.
The verdict brought gasps and barely audible sighs, caused cascades of tears and loosened knitted brows among the dozens who had supported him all week in courtroom 4C, the ones who, with Sanders, had lived with the charge — a Class H felony — since he was indicted by a grand jury in September 2007 along with fellow officer William “Tom” Fox, who was named as a co-conspirator along with Sanders in another related charge. After the verdict was read, the other charges against Sanders and Fox, obstruction of justice and conspiracy to obstruct justice, were summarily dropped by Special Prosecutor Jim Coman, the senior deputy attorney general who came in from Raleigh to try the case. It was a cathartic moment for Sanders, his family and friends. And for a city that has been living with turmoil in its police department since City Manager Mitch Johnson locked former Greensboro Police Chief David Wray out of his office in January 2006, the verdict spelled an end — at least in the criminal courts — to the controversy. These were the only criminal charges to arise from allegations of racial profiling in the GPD, a saga that
featured high-volumecocaine dealers, secretly taped conversations, lascivious prostitutes,numerous civil suits, tracking devices, a “black book,” leakeddocuments and state and federal law-enforcement agencies, most of whichthe jury knew absolutely nothing about. For their purposes, the entirefiasco boiled down to the state’s Exhibit 1, officer Julius “Jay”Fulmore’s laptop.
It’sa Toshiba, ca. 1995, made of obsolete circuitry and creaky grayplastic, big as a phone book, bereft of USB. And when the jury passedit around the box on Day 3 of the trial, they turned it over in theirhands, ran their fingers across it, looked at the orange Housing andUrban Development sticker on top. This is the computer that Sandershanded over to a special agent from the State Bureau of Investigation,Gary R. Cullop, on Dec. 20, 2003. Then, at Sanders’ behest, Cullopremoved the hard drive, brought it to his Greensboro office andsearched it for anything that would incriminate Fulmore. Thisfact was not under dispute. Sanders never denied that he searchedFulmore’s computer. He had, in fact, already searched Fulmore’s officedesktop computer, and found what he considered evidence of association with prostitutes. Atissue here was whether the computer was the property of HUD, where itoriginally came from, or the GPD, where the man who used it worked. Orwas it Fulmore’s personal computer? He retained possession of it until2006 even through a nine-month suspension that ended in March 2005.Another matter for the jury to decide was if Sanders had receivedproper special agent who loaned Fulmore the computer in early 2000while working together on a multi-agency task force called “OperationHole Shot,” or if Sanders needed permission at all to search themachine during the course of a criminal investigation. Sorting outthese issues would take five full days.
Coman,the special prosecutor, and Seth Cohen, counsel for the defense,insisted from the beginning that jurors would only see this tiny sliceof the larger police controversy, and that anyone sitting on the juryhadn’t read the thousands upon thousands of words that have beenpublished locally about the overarching storyline.
“Newsaccounts, with all due respect to news outlets, are sometimesinaccurate,” Superior Court Judge Forrest Donald Bridges said to thejury pool on Day 1 of the trial. “News coverage is not testimony.” Both lawyers agreed on an inaccuracy that had appeared in the Greensboro News & Record thatvery day. On Day 2, Cohen fumed about a segment by Frank Mickens onWFMY the night before, about which he claimed bias and inaccuracy. Theoutburst prompted Coman to relay a synopsis of the entire story toJudge Bridges, who, like Coman, had been brought in from his bench inShelby specifically to adjudicate this case. When he got to the partabout the report compiled by Risk Management Associates, a lengthydocument chronicling a thirdparty investigation into the variousinterdepartmental machinations and their effects, he paused. “Thisreport, your honor, has actually ended up on the internet,” he said.“The bloggers had a field day with it — I only know that because I’vebeen told that.” “How many people read it?” the judge wanted to know.Coman could not quantify, but he could elaborate. “My concern is if we go into this, we’re really gonnaopen Pandora’s Box.” One potential juror during voir dire uttered thewords “black book,” which caused Judge Bridges to clear the rest of thejury pool from the courtroom. She was not chosen to sit on the jury.Another issue raised during jury selection on Day 2 concerned race,after Cohen attempted to use a peremptory challenge to strike his fifthAfrican- American juror in a row. Coman objected, but Cohen maintainedthat he wanted to eliminate the potential juror because, he said, “Idon’t like her attitude.” Judge Bridges considered thesituation. “What if it were being done in the reverse order, with ablack defendant, and the state had established a pattern?” he asked. “Idaresay that in that situation a judge would be hard-pressed not tohave some grave concerns about the challenge. “I have some graveconcerns about this matter,” he continued, “so much so that I am goingto sustain the objection.” The black juror was selected as thefirst alternate juror. The other alternate juror was also AfricanAmerican. But of the sitting jury, only two were black, both women,along with six white males and four white females. One thing they hadin common was near-total ignorance about the case and the greatercircumstances surrounding it. Judge Bridges declared that there wouldbe no cameras of any kind in the courtroom, and that witnesses,excluding the SBI agents seated at the prosecution table, would bebarred from hearing any other testimony. At one point during thediscovery process, Judge Bridges removed Special Agent Mark Heinbachfrom the courtroom after Cohen saw him walk in.
Inhis opening statements on Day 2 of the trial, Coman gave a history ofthe computer and the people connected to it, then succinctly outlinedhis case in a calm, deep voice. “The state position is thatthe defendant knew he had to have the permission of HUD to look at thatcomputer,” he said, alleging that Sanders had misled Cullop intopulling and searching the hard drive. He would use testimonyfrom key witnesses to support his burden of proof. Cohen, in hisopening statements, came with more brio. “There were serious, seriousallegations about Officer Fulmore coming out of Guilford County Jail,”he said. “Someone told [Guilford County Sheriff] BJ Barnes he wasprotecting Terry Bracken. [Bracken is] a major drug dealer. He’s in federal prison.” Heasserted that Sanders was investigating Fulmore under the auspices ofthe SBI, and in that context, Sanders had “all the authority in theworld” to inspect the computer. “Detectives detect,” he said.Irregardless of that, he maintained that Special Agent Heinbach had, infact, given Sanders permission to search the computer over the phone in2003. And that Sanders also had permission from then-Deputy ChiefRandall Brady, who was on the defense’s witness list. “That’s theevidence in this case,” he said. “It’s not a complicated case.”
HUDagent Mark Heinbach, a large man shaped like an exclamation point witha wavy mane of hair, took the stand as the state’s first witness. Underquestioning by Coman, Heinbach, who has been with HUD for 17 years andworks out of the North Piedmont Office in Greensboro, spoke aboutOperation Hole Shot. It was a special task forcecreated in 2000, he said, to tackle problems like violent crime, guns,gangs and narcotics in area public housing projects. The force gatheredfive law enforcement officers from the FBI, the Secret Service, theSBI, the Guilford County Sheriff’s Office and the GPD. Fulmore was thelone Greensboro police officer assigned to the task force; SBI SpecialAgent James Bowman, who sat behind the prosecution table and wouldlater be called upon to testify himself, supervised. Heinbachadmitted giving the computer to Fulmore in 2000 to aid in his policework. Of Fulmore, Heinbach testified: “We worked a lot of long hours.I’d trust him with my life.” When Sanders and Bowman met with him onDecember 2003 to request permission to search the computer, then inFulmore’s possession, Heinbach said he told them he would “look intoit.” “I wanted to get approval from my supervisor before I didsomething.” He said. He testified that Sanders and Bowman paid himanother visit with the same request “a couple months later,” and thathe told them to ask his supervisors in Atlanta. Both partiesagree on the request, but Heinbach’s testimony contradicted the SBIinvestigation’s timeline, which placed the second request only a coupleweeks after the first, on Dec. 17, something which Cohen would seizeupon during cross-examination. Sanders asked him about thecomputer a third time, he said, in the summer of 2007, just before hisindictment. Sanders, he testified, said something along the lines of“How can we make this go away?” Heinbach had heard that Sanders was inthe habit of tape-recording phone conversations without the otherparties’ knowledge, he testified, and that “I felt he was trying tomake me say that I gave him access to the computer.” “Andwould that be true?” Coman asked. “That would be false,” the federalagent said. In his cross-examination, Cohen pointed out the timelinediscrepancy, and accused Heinbach of changing his story to comply withBowman’s testimony in the SBI investigation. He also had questionsabout Fulmore’s use of the computer. Operation Hole Shot hadended in 2002, he said, yet “Julius Fulmore kept the computer for thewhole year 2002, 2003, 2004 — are you aware that in 2004 he wassuspended from the GPD?” By the time Heinbach got the computer back in2006, Cohen said, “Operation Hole Shot had been over for five years.” Cohenalso pointed out that while Heinbach had filled out a HUDchain-of-custody form when he got the computer back from Fulmore in2006, there was no documentation of the initial transfer of thecomputer from Heinbach to Fulmore. “You couldn’t spend 30seconds to fill out a form before you gave it to Jay Fulmore? … [Theform] existed,” Cohen charged, “you just decided not to use it.” “Yes,”Heinbach eventually admitted.
OnDay 3 of the trial, Special Agent Cullop, a mustachioed man who hasbeen with the SBI for more than 20 years, took the stand. He is theagent Sanders was alleged to have deceived in order to get at thecontents of Fulmore’s computer. Cullop has worked in thecomputer crimes division of the bureau’s North Piedmont office sinceJanuary 2003 in the forensic unit. He testified that Sanders asked himto come to the Special Intelligence Division’s office on YanceyvilleStreet, where Sanders shared a workspace with Fulmore, on a Saturdaymorning to procure the laptop. It was in the middle drawer of Fulmore’sdesk, he said, and he tried to swipe the hard drive right there, butthen removed the hard drive and brought it to his Greensboro office,made several copies of it and returned it within a couple hours. “Itried to put it back in the drawer so it looked like it hadn’t beenmoved,” he said. “He wanted it done surreptitiously so Fulmore wouldn’tbe aware.” Sanders informed him that Fulmore was under investigation,Cullop said, but that Sanders did not show him a search warrant for themachine. “We can only examine a computer with the owner’sconsent,” he said, “or with a search warrant or a court order. “I’msure I asked. ‘Do you have consent to do this?’ he continued, “and Iwas told that he did.” Cullop said he pulled some e-mails from thecomputer, but that “there was very little information I thought wouldbe useful” in an investigation. He said that he did not noticethat orange HUD sticker on the computer, that he thought it was a cityof Greensboro computer and that he was assisting in an internalcriminal investigation. When Cohen tried to exploit this in cross-examination, Cullop elaborated. “Over the years I have seenequipment in these police departments that come from a variety ofplaces: surplus military, property seizures… HUD did not even enter mymind until 2006.” The day also saw testimony by Darryl Jones,the city’s information technology director. Though he admitted he hadnever been asked to participate in a criminal investigation, he wasable to clarify the city’s internet use policy, which states that thoseusing city equipment should have no expectation of privacy whileonline. Anita McCoy, who is the network services manager forthe GPD, concurred with that policy on the witness stand and profferedthat the department had its own internet use policy.
“A request to accesssomeone’s e-mail account and access to a computer are two differentthings,” she said. “There is a process for obtaining e-mails or files;that comes through me.” Someone wishing to look at a police officer’se-mails, she said, should first call her to make the request, get therequest in writing and then e-mail a network engineer CC’d to Jones,the IT director. On cross-examination, Cohen wanted to know ifthe GPD policy affected officers using their home machines to accessthe GPD server. “All policies apply while they are in the mainframe,”she said, but that “once they are off the mainframe, their homecomputer is not subject to city policy.” “You did not writethis directive?” Cohen asked. “This directive?” she said. “Yes I did.”Cohen pointed out that the wording of the policy did not specify thisnuance. “Those words are not there, no, but that was the intent of thepolicy,” she said. “I have been asked that question by officers.”
The street cop
DetectiveJulius Fulmore has been on the Greensboro police force for 25 years. Hehas been named to numerous multiagency task forces in that time, and ispurported to have made the very first crack cocaine bust in North Carolina. Hehas had known associations with prostitutes and addicts, stood accusedof providing protection for large-scale drug dealers operating in thearea and been investigated by local, state and federal agencies. Healso was suspended from the GPD for nine months in 2004-’05 for aninappropriate and undocumented relationship with Brenda Weidman, aprostitute and police informant who he met during a routine trafficstop in 2002. This was the result of an investigation opened in 2003 bySpecial Agent Bowman of the SBI after a corrections officer at GuilfordCounty Jail relayed an accusation by inmate Pamela Williams: thatFulmore was protecting Bracken, the drug lord. Williams, who Fulmoredescribes as “a con artist who was investigated by the Secret Service,”had given reliable information before, about a prostitution ringoperating in the prison. So Bowman thought it prudent to check thesituation out. He enlisted Sanders to aid in the investigation. WhenSanders searched the computer on Fulmore’s desk in the office spacethey shared in December of that year, he found an e-mail from Weidmanin which she referred to Fulmore as “Sexy” and gave a link to herpersonal website. On this site, where Weidman describes herself as an“escort,” she had also posted pictures of herself in suggestive poses,clad in a small black bra and black boy shorts. Sanders would testifylater it was the impetus for his desire to search Fulmore’s laptop. Nocriminal charges have ever been filed against Fulmore, and he maintainsthat he has been unfairly persecuted by area journalists and officersin his own department in attempts to ruin his career and damage hisreputation. Fulmore has filed two lawsuits to that effect. One names as defendants the city of Greensboro, Wray,Brady, police hire-back Randy Gerringer, former Asst. Chief CraigHartley, Sgt. Craig McMinn and private investigator Art League. Thatsuit, seeking damages of $30,000 from each defendant, was dismissedlast year. Another lawsuit, naming as defendants true-crime writerJerry Bledsoe, the Rhinoceros Times and its editor andpublisher, brothers John and Willie Hammer and seeking $40,000 fromeach defendant, has yet to be resolved. Somewhat ironically, the lawyerrepresenting Bledsoe and the Hammers is the same one Sanders procuredfor his criminal trial: Seth Cohen. Cohen brought out theselawsuits during cross-examination, and Fulmore insisted that financialgain was not his motivation for any of them. “I wasn’t looking forthat,” he said. “I’m looking for justice.” Fulmore, a bull ofa man with bunches of muscle straining against his sportcoat, took thestand on Day 3 of the trial. It was a day in which he described thedemise of Operation Hole Shot as “sabotage” and offered a glimpse intothe world of a vice/narcotics detective, one in which drug-addictedinformants and women of ill repute are necessary elements. Fulmoresaid that after working as a teenager for the Guilford County Sheriff’sDepartment, he joined the military. Upon his return to Greensboro, hesaid, “I saw a great need for law enforcement. I have a passion for it.It’s all I wanted to do was stop drugs.” Under Coman’s directexamination, he recounted the tale of his laptop. “We borrowed thiscomputer from Special Agent Heinbach to do operational sheets,surveillance assignments,” he said. “I basically signed for it for myown personal use along with these.” He also testified he wasin sole possession of the laptop until he returned it to Heinbach in2006, but under Cohen’s cross-exam he admitted he kept the machine at acousin’s house for a period opf more than one year. “It’s aninterpretation,” he said. Fulmore said he and Sanders both worked inthe Special Intelligence Division’s office on Yanceyville Street. Hesaid he was “constantly on the defense” with Sanders, and the two had“not really established a working relationship.” ThoughFulmore said he changed his passwords regularly, Sanders had used a keycatcher to obtain access — legitimately, according to GPD policy — toFulmore’s office desktop computer, where he discovered the e-mails fromBrenda Weidman, which linked to the photos and resulted in Fulmore’ssuspension. “I get a lot of e-mails,” Fulmore testified. “Mye-mail is on my business card.” He said he was “stunned” that someonehad seen his e-mails and shrugged his shoulders when asked about theinternet use policies of the city and police department. Fulmore said he didn’t blame Bowman for conducting the investigation. “I never blame any lawenforcement agent for conducting an investigation,” he said. “Aninvestigation is an investigation, as long as it’s handled properly.Mine was sabotaged “I can respect an investigation,” he continued. “Ican’t respect a witch hunt.”
SpecialAgent James Bowman of the SBI, with avian features and natty clothes,has acted as both boss and accuser of Julius Fulmore. Testifying inflawless copspeak on Day 3, he described his opinion of the man as“favorable” when he took the stand for the prosecution. Bowmancame to prominence as the lead investigator in the 1988 murder ofJulian Pierce, a Lumbee Indian who was blasted with a shotgun during asuccessful run for a federal court judgeship. But he got his start inlaw enforcement with the Greensboro Police Department in 1982. And hewas in charge of Operation Hole Shot, the task force that brought downTerry Bracken. In his 2003 investigation of Fulmore, Bowmantestified he was informed that the con artist Williams might havesecurity tapes in her South Carolina clothing storecapturing Fulmore and Bracken “meeting for drug business.” Williamsrefused a polygraph, but Bowman took measures anyway. He sent some SBI agents down to the South Carolinaclothing store, where Williams’ teenage daughter lived. The agentsenlisted the daughter in the sting: She called Fulmore and told himsome Secret Service agent had been coming around asking about thetapes. “[Fulmore] basically told the daughter he did not know the Secret Service agent, that she could have the agent contact him.” ThenBowman took another measure, having Williams’ daughter call Fulmore andtell him her grandfather, tired of Secret Service agents crawlingaround, was threatening to destroy the tapes. “Fulmoreinstructed her not to do that,” Bowman said. “In my mind it wascompletely exculpatory to Fulmore.” There was one instance, Bowmansaid, when both he and Heinbach thought Operation Hole Shot might becompromised. It involved a court order for placing a tracking device onBracken’s car. The day the court order came through, Bowman said, thecar disappeared. Their fears were assuaged when the car was foundnearby with a flat tire. Bowman said that when he and Sanders comparedBracken and Fulmore’s phone records, they found “no significantinformation.” And when Williams made another allegation against Fulmore— that he had come to the jail to threaten her — Bowman found that herstory didn’t jibe with prison records. Then, Bowman testified,“I developed a concern… that Detective Sanders had what I would call‘tunnel vision’ as to this particular person we were investigating…. Hefelt that Fulmore was guilty of something, and despite contraryevidence he continued to see it in only one way.” On cross, Cohenreminded Bowman that he, himself had initiated the investigation ofFulmore and enlisted Sanders’ aid. And he accused Bowman of forcingWilliams’ teenage daughter to lie in hopes it would entrap Fulmore. “That’swhere we differ,” Bowman said. “I wanted the truth. I wasn’t hoping.”Bowman said he met with then-Chief Wray in the summer of 2004 andinformed him of Sanders’ “tunnel vision.” He also admittedthat, while he didn’t order the search of Fulmore’s computer, “At thetime I didn’t have a problem with it.” Then, during testimony by Sgt.Kevin Moore of the GPD, the jury asked to see the computer.
The defense mounts
SethCohen introduced the defense’s case on Day 3 with a swift succession ofsworn police officers who triangulated the defense attorney’s keypoint: that Scott Sanders had done nothing wrong. Testimony byJeff Flincham, a computer forensic examiner for the GPD, indicated hewas never asked to examine the laptop in question, but that he hadperformed searches on other GPD computers without reprimand. The otherremarkable turn of events during his cross-examination was that itafforded Cohen the opportunity to introduce printed pictures of thelingerieclad Weidman as defense Exhibits 6 and 7. On cross, Comanestablished that Flincham’s computer investigations had been orderedduring the departmentwide internal investigation amid the departure ofChief Wray, not a targeted criminal investigation years earlier. Nextcame Detective Mark Steed, another forensic examiner who swiped thehard drive from the laptop of officer Bobby Edwards during that generalinternal investigation in 2005 without repercussion. Edwards’ computerwas a loaner from the SBI — no small irony — and Cohen drew parallelsbetween this instance and the one being argued that day. Then AssistantChief Gary Hastings took the stand for the defense. UnderCohen’s questioning, he shakily acknowledged ordering the forensicexamination of Edwards’ laptop and said he neither asked for northought he needed permission from the SBI to examine it. Cohen pointedout another of the case’s many ironies: While Gary Hastings had beenpromoted to his current rank in the years following his action, Sandershad been suspended and indicted for his. After Hastings had chuffedfrom the room, Cohen asked the judge to clear the jury from courtroom4C. “With all due respect,” Cohen said with a touch of indignation, “Iask the prosecution to do the right thing and drop these charges rightnow.” Because Hastings and Steed had done essentially the same thing,Cohen argued, “[Coman] needs to indict these two men or drop thecharges against this one. “There should be no double standard to thelaw.” Coman, unmoved by the argument, declined.
Day 4 of the Scott Sanders trial saw an increase in spectators, many of them reading copies of that day’s issue of the Rhinoceros Times in the courtroom, one which bore a front-page headline: “Police Fiasco Results In Wrong Man On Trial.” Theday began with something of a surprise. Though former Deputy ChiefRandall Brady was named on the defense witness list, the morning beganwith testimony from GPD Officer Bobby Edwards, who had spent the firstthree days of the trial seated among Sanders’ support team in thecourtroom galley before being tapped by Cohen at 5:10, according toEdwards, the night before. Bobby Edwards was in the SpecialIntelligence Division when it was disbanded in 2005 following Wray’sresignation and the ensuing investigation, the reason behind theseizure and search of Edwards’ SBI laptop, which he said occurred threedays later. He had not given permission for his laptop to be searched,he said Edwards was also able to pinpoint the length of the internalinvestigation: “Two years, four months and 11 days.” These feats ofprecision set the stage for testimony by the defendant.
At9:51 a.m., Scott Sanders took the stand in a courtroom filled totwo-thirds capacity with reporters, cops, lawyers, courthouse employeesand trial buffs. Sanders’ family and friends formed a strongcontingent. Sanders graduated from rookie academy in 1988 and wasappointed to the Street Tactical coincided with Fulmore’s, and thenfound himself a member of the Special Intelligence Division. Hehad been suspended from the GPD on Oct. 10, 2006; he stopped collectingpay on Sept. 17, 2007. Sanders said the division tackled “manysensitive areas” including organized crime, gangs and the protection ofvisiting dignitaries. Much of Sanders’ work with the unit,though, dealt in what he called “internally sensitive matters that thechief directed us to look at. “Most of the matters were serious innature, criminal in nature,” he said. “Things that would not beresolved in an investigation or two or just be handed off.” TheSBI-initiated investigation of Fulmore, he said, had become one ofthose projects, and secrecy was required. “The policedepartment is just like any other big business,” he said. “You got thegossip and rumor mill at the drop of a hat.” That was why the onlypeople aware of his investigations during his time in SpecialIntelligence were Sgt. Craig McMinn, also in the unit, then-DeputyChief Brady and former Chief Wray. And when Cohen tried to delve intothe investigation of Fulmore, the line of questioning brought a flurryof objections from the state. Cohen took another tack. The defenseposited that Sanders did not need Hainbach’s permission to search thelaptop, that the machine fell under both city and police departmentinternet use policy, and as such its user should have no “expectationof privacy.” Sanders said he asked Heinbach permission only asa formality, and also to make the HUD agent aware that a computer thatoriginated from his agency was now part of an investigation . “[It was]more so as a courtesy than anything,” he said. “When you’re workingwith other agencies you don’t want to step on any toes.” Sanders agreedthat the first meeting took place on Dec. 3, 2003, and held that thesecond encounter with Heinbach was over the phone two weeks later, notthe two months Heinbach remembered. He also remembered thecontent of the conversation differently. When Sanders asked if Heinbachhad procured his supervisor’s permission to search the machine, Sanderstestified, “[Heinbach said] he had and to go ahead and do what we needto do.” Had Heinbach denied the request, Sanders said he would have“gone to his [GPD]supervisor, made him aware of the situation and askedhim what to do next.” Instead, he had Agent Cullop pull the hard driveon a Saturday to maintain secrecy, search for incriminating evidenceand report his findings. Sanders said he never saw a report.“He told me verbally there was nothing relevant to the case on thecomputer and that was it.” Then Cohen introduced relevant facts throughhis witness’ testimony: that Sanders could have done a basic e-mailsearch of the computer himself, without Cullop’s participation, had heso wished; that as an experienced detective Sanders knew that illegallyobtained evidence could not be used in court.
Heclosed his direct questioning with another fact: For his actions,Sanders was suspended from the GPD in Oct. 10, 2006 and stoppedcollecting pay on Sept. 17, 2007. During cross-examination, Comanwanted to know why Sanders never got Heinbach’s permission to searchthe HUD laptop in writing. “I can’t tell you how many casesI’ve taken to court based on verbal consent,” Sanders said, and, “It’shard to get him to sign [a form] over the phone.” “You chosenot to get one so you could ask this jury to believe you when you sayHeinbach gave you consent,” Coman charged. “If you had used that form,we wouldn’t be here…. You chose not to get that form.” “That iscorrect,” Sanders said. Sanders also offered a different version ofFulmore’s suspected compromise of Operation Hole Shot. According toAgent Bowman’s testimony, the drug dealer Terry Bracken’s cardisappeared before a tracker could be placed on it and was laterdiscovered nearby with a flat tire. “Heinbach was ready to put thetracer on the car,” Sanders said. “He got the court order and withintwo days the car never moved again…. It got a flat tire because it satthere so long.” Under questioning Sanders admitted this version was notevident in Heinbach’s report. Coman began to parse the chainof command within Special Intelligence. “You were fond of tellingpeople you reported directly to the deputy chief,” Coman had observedearlier. Sanders now intimated that Sgt. McMinn was also part ofcommand “to a point.” Under questioning, it came out that Brady was theofficer who generally supervised Sanders’ internal investigations, andthat there were 10 of them. Cohen then objected to the line ofquestioning. Coman explained to the judge, “I want to ask him, ‘Isn’tit a fact that every one of them is African American?’” “What he’strying to say is [Sanders is] only investigating African Americans,”Cohen said. “We would have to look at each one. James Hinson could takea long, long time.” “The ones that got handed off to him seemed to beAfrican American officers,” Coman said. “There’s a pattern.” “Theclear implication is that [Sanders is] a racist,” Cohen said. “Hedidn’t decide who he investigated. He’s assigned that. “This is notwhether Fulmore should or should not be investigated,” the fierydefense lawyer continued. “The SBI started the investigation.” Aftera recess, Coman utilized property of Sanders that could potentiallycast the defendant and his former superior Randall Brady inunflattering light: a CD case containing 67 discs of conversationsSanders had recorded during his time in Special Intelligence, one ofwhich that captured a troubling conversation between the two. Itconcerned Pamela Barker, a mentally ill senior citizen who lived in thesame apartment complex as Chief Wray and had been making complaintsabout the former chief. Cohen objected at the mention of her name, butwas overruled. Sanders acknowledged that Barker was making“spurious allegations” against Wray. “She had become a potentialnuisance?” Coman asked. Sanders agreed. Coman began reading from thetranscript of a tape Sanders had made of a conversation between him andthe former deputy chief. “I need a file kept on her if sheever shows up in the management office.” “I’m not sure what he wasafraid she’d do,” Sanders said, “but they were concerned, yes.” AgainComan read from the transcript: “I mean she’s freakin’ nuts, but she’sarticulate… yeah, just enough to start with where it will causeproblems.” Then the prosecutor asked, “When he’s implying toyou he wants you to cause problems for this woman to get her evicted,you picked up on that, didn’t you?” Sanders said, “Yes.” Coman readfrom the file again: “Even if we have to do something to make it looklike she’s done something…. She just needs to move on… It’s amazingwhat I get paid for, isn’t it?” Then he asked if Brady directed him to“manufacture” evidence about Barker. Sanders said, “No. Youhave to know Chief Brady and how he talks…. I knew he wasn’t serious. Iknow Brady.” “So we should just take this as some kind of joke?” Comanasked. “Those particular lines that he stated, yes sir,” wasSanders’ reply. Cohen addressed the Barker tape on redirect, andSanders said he handled her as a “DP,” or displaced person. “A lot ofthem are schizophrenic or bipolar,” he said. “The full moon’s out,they’re off their meds, a lot of times the police get called. “We’dbuild a rapport with these people,” he continued, “get them back ontheir meds and with their families.” Of the recordings in general,Sanders said he started making them amid the departure of Wray toprotect himself. “Why didn’t you tape the phone call withHeinbach when he gave you permission?” Cohen wanted to know. “I totallybelieved and trusted Mark Heinbach as a federal agent that he would notlie,” Sanders said. “Is that why you didn’t ask him to sign the[consent] form?” “Yes.” Before closing arguments, Cohen again made anattempt to have his clients’ charges dropped with a motion to JudgeBridges on the basis of Hastings’ earlier testimony. “He’s notreceiving due process,” Cohen said, his voice rising. “The man,ironically, who is investigating him did the exact same thing.” Themotion was denied.
Deputy AG Coman waived his right to begin the closingarguments, allowing Cohen to summarize his defense in earnest. “Theirony in this case is so thick you could cut it with a knife,” hebegan. “If you saw it on television you wouldn’t believe it. “ScottSanders has been suspended for more than two years; he hasn’t been paidin more than a year and a half. Now he sits here awaiting yourjudgment.” He recounted the many stories of Special AgentHeinbach, three by his count, and the curious absence of paperworkrelating to the computer Heinbach had given Fulmore. “Have you ever in your life dealt with the federal governmentwithout filling out a form?” he asked. “Heinbach gave his buddy afederal computer,” Cohen asserted. “He didn’t fill out a form becausehe didn’t have permission to give him the computer. He couldn’t ask hissuperiors [for consent to access it] because he’d get in trouble.” Cohenconsidered Heinbach a key witness for the prosecution, and he said, “Iwould submit to you that in order to convict Scott Sanders of thiscrime, the state has to prove to you that Heinbach is credible, honestand is telling the truth.” He reiterated that under GPDpolicy, Fulmore had no expectation of privacy on that laptop, and thatas such, “The truth of the matter is Scott Sanders didn’t needpermission.” And then he alleged that Sanders’ accusers werein league against him. “So what do they do?” he asks. “The say, ‘Let’sdestroy Scott Sanders. Let’s throw it against the wall and see if itsticks.’” That, he said, was why the Pamela Barker tape transcript cameinto evidence. “What does the taping have to do with anything, except to destroy him?” Cohen asked. “Desperate people do desperate things.” Heagain hammered on the parallels between Sanders’ actions and those ofHastings in the case of Edwards’ SBI computer, and then drove it home.“Send a message to this city and this community,” he said. “In Greensboro, North Carolina,it doesn’t matter if you’re chief of police or a lowly detective:You’re going to get treated the same.” And with that the defense didrest. Coman, who had orated in an even timbre throughout the trial,came alive during his close with a roar. “I must say I was offendedthis afternoon to hear it argued that for some reason the state of North Carolinahas set out on some course to destroy this individual,” he said. “Thereason we’re here today is not for some nefarious reason…. All of us inthe community have a right to expect that when [Sanders] engages in aninvestigation that he does it in a lawful manner. “That didn’thappen.” About the Barker tapes, Coman claimed Sanders used a“Nuremberg Defense,” and then then made an inquiry of the jury, “Whohas a reason or motive in this case to not be truthful?” Hecharacterized the defense’s case as the “shotgun approach,” an“absolute smokescreen” and accused Cohen of “light[ing] the confusionbomb, hoping to at least befuddle one juror.” He called them “spindoctors.” “The state of North CarolinaAttorney General’s Office doesn’t engage in selective prosecutions….The way [Sanders] went about it underscores that he knew what he wasdoing. Julius Fulmore had every reason to be concerned with thisindividual investigating him…. “What would you think of me if I calledyou on the phone and set you up?” That, he averred, was the motivebehind Sanders’ December 2007 phone call to Agent Heinbach. “Youthink [Sanders] stopped recording? Heinbach doesn’t take the bait.” IfHeinbach had given consent to search the laptop during that phone call,Coman said, “they’d have had a tape in court and played it for you.” Henoted the conspicuous absence of former Deputy Chief Brady’s testimonyon the record, even though he was on the defense witness list. “I’msure there’s some reasonable explanation,” Coman said. “We were goingto ask Brady about this.” He held the transcript of the Pamela Barkerconversation in his hand, which he said exemplified “that thisdefendant is disposed to go out and violate the rights of citizens. “Itspeaks volumes,” he said. He called Sanders a “rogue cop,” and said,“What do you think he was prepared to do with Officer Fulmore, who weknow he didn’t like?” He said that Assistant Chief Hastings “didn’t getsome Get Out Of Jail Free card,” that there was a difference betweenthe inventory Hastings conducted in the department and Sanders’criminal investigation of Fulmore. Then he addressed thedefense’s theory of conspiracy. In order to believe Sanders, he said,you would have to believe that law enforcement officers Heinbach,Cullop and Bowman were perjuring themselves in order to frame thedefendant, and that HUD, the SBI and the NC Attorney General’s Office“had some reason to get together and go after this particular officer.”
JudgeBridges told the 12 members of the jury that the state must prove twothings: that Sanders had “caused to be accessed a government computer,”and that he had done so. “willfully and without authorization.” Theseconditions must be met, he told the jury, without any reasonable doubtin order for them to convict Scott Sanders of a Class H felony, with apossible sentence of 16 months and the certainty that he’d never workin law enforcement in North Carolina again. Thejury then began a deliberation that would last until the nextafternoon. At 5:45 p.m., 45 minutes after the courthouse was locked forthe night, they requested to see the transcript of the SBI interviewwith Heinbach, the validity of which Cohen questioned undercross-examination, and the computer use policies for both the city of Greensboro and the GPD, which described the rules for city and police department employees while accessing the city server. Theyalso asked for transcripts of the week’s testimony by Heinbach, Cullopand Sanders. Judge Bridges allowed the SBI interview and the computeruse policies, but not the transcripts of testimony from this trial,which is allowed under NC law at the discretion of the judge inSuperior Court. At 6:25 p.m. the jury passed another note tothe judge. They wanted to se a copy of Bridges’ instructions to thejury and the wording of the law Sanders had been accused of violating.They also wanted to know, “Is a verbal agreement binding?” The judgeresponded by repeating his instructions to the jury, which he saidsatisfied all three inquiries. The night wore on as courtroomspectators roamed the halls of the fourth floor of the Guilford CountyCourthouse, canceling plans on cell phones and eating dinner from thevending machines. Sanders spent his time circulating among his supportgroup, which by now included various family members and personalfriends, officers of the court, journalists John Hammer and JerryBledsoe, Councilwoman Mary Rakestraw, bloggers Sam Spagnola and BenHolder, and various former and current officers in area law enforcementorganizations, a group which included Randall Brady, with parted hairthe color of cigar ash and a neatly clipped mustache. And at 8:05 p.m., with a jury still in deadlock, Bridges sent everybody home.
Day5 of the Scott Sanders trial began at 9 a.m., with the jury back indeliberation, and again the interested parties milled around thecourtroom. Someone had draped a lei of delicate white and violetflowers across the courtroom rail, a nod to the defendant’s SouthPacific heritage. By noon it became apparent that the vote hadstalled at 11-1, had in fact been 11-1 in every tally since they wentinto the jury room the day before. Judge Bridges took actionby addressing the jury one more time. The task before them, he said,was “difficult, but not impossible.” “Any time the majorityseeks to impose its will on the minority, that minority can become atyranny,” he said. “At the same time, a minority given absolute rightof veto power… that minority can likewise become a tyranny.” JurorNo. 7, a female, African-American registered nurse, held out for twomore hours. Jury Foreman John Irvin pronounced a verdict of not guiltyat 2:49 p.m., but before Sanders could rise from his chair, JudgeBridges addressed the jury one more time. “You have been handed a taskwhich is not easy,” he said from the bench. “You have done somethingwhich in many ways this community has been unable to these past fewyears.” After the cathartic courtroom release, the dismissalof the other pending charges against him and Fox, Scott Sanders leftCourtroom 4C with his lawyer Seth Cohen and they shared an elevatordown to the plaza level of the Melvin Municipal Building withCouncilwoman Rakestraw, where they disembarked. Sanders accepted a warmhug from a supporter while he waited for the television crew to set up.Rakestraw went to place a call to City Attorney TerryWood, after which she immediately offered Sanders and Fox their jobsback. They should be in uniform again by the time this issue hits thestreets.