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Judge delays decision on full release of Silk Plant Forest report

by Keith Barber

LAWYER FOR WSPD OFFICERS MAKES CASE FOR INTERVIEW MATERIALS TO REMAIN SEALED

It could be nearly a month before a judge rules on a request by the city of Winston-Salem to publicly release the full report of the Silk Plant Forest Citizens Review Committee. Superior Court Judge Richard W. Stone heard opposing arguments on Jan. 15 from Assistant City Attorney Al Andrews and Michael McGuinness — the lawyer representing eight current and former Winston-Salem police officers — regarding the release of materials related to interviews of those officers as part of the citizen committee’s investigation into police procedure in the 1995 Silk Plant Forest-Jill Marker assault case.

At the hearing’s conclusion, Judge Stone requested complete transcripts of the videotaped interviews conducted by committee investigators Lt. Joseph Ferrelli and Sgt. Chuck Byrom. City Attorney Angela Carmon estimated it would take two weeks for the city to have the interviews transcribed. Judge Stone also asked Andrews and McGuinness to submit legal briefs and proposed judicial orders. Judge Stone estimated it could take him three to four weeks to issue his ruling.

McGuinness, who represents current and former Winston-Salem police officers Michael N. Barker, Richard E. “Ted” Best, Robert G. Cozart, John Grismer, Bryan L. Macy, Michael C. Rowe, Michael L. Sharpe, Michael Poe, Randy Patterson, Randy Weavil, Lonnie Maines and Mary McNaught, opened the hearing by arguing that the city of Winston-Salem failed to present any evidence that it had met all the criteria included in the city council resolution that created the Silk Plant Forest Citizens Review Committee. McGuinness also argued the city failed to show a “compelling government interest,” and that the public interest in the case was largely based on media requests for the material.

“I suppose, your honor, that the news media would have us all live in a world where everything is completely open and in the sense of political debate, we hear arguments that everything should be transparent,” McGuinness said. “We also live in a society governed by the rule of law.”

Citing state law regarding privacy of city employee personnel records, McGuinness contended that release of the interviews would be a violation of the police officers’ right to privacy.

Judge Stone asked McGuinness why he considered an inquiry into a city employee’s job performance as a personnel privacy matter. McGuinness responded that the police officers were coerced to testify by the citizens committee due to its implementation of the “Garrity Rule.”

Based on a Supreme Court ruling from the 1960s, the Garrity Rule is a Fifth Amendment privilege that can be invoked by a police officer while testifying in an internal investigation about actions that could result in criminal prosecution. McGuinness said his clients were told that if they did not comply with the committee’s request, they could face disciplinary action, including dismissal.

McGuinness went on to say that the citizens review committee and its agents had no legal basis for using Garrity orders to obtain testimony from police officers.

“We have a number of serious objections about the process that was used,” McGuinness said.

Capt. Richard E. “Ted” Best testified that he was under the impression he could face disciplinary action if he did not agree to speak with Lt. Ferrelli and Sgt. Byrom about his role in the investigation of the Silk Plant Forest case. Best formerly supervised Donald R. Williams, the lead investigator in the case. Best said he was under the impression that the information he provided Lt.

Ferrelli and Sgt. Byrom would be used for the city’s internal review and not released publicly.

Best, a 25-year veteran of the police force, stated that he was very familiar with Garrity orders and understood the interview with Ferrelli and Byrom to be an internal review. Upon crossexamination by Andrews, however, Best acknowledged that the word “confidentiality” does not appear in a Garrity order.

Best also confirmed that he was never given any assurance by either Ferrelli or Byrom that his statement would not be released publicly.

Best complained that the scope of the questions asked by Ferrelli and Byrom were too narrow and the summary of his interview was not complete.

“By asking specific questions of me and not getting the full information or the full breadth of my knowledge of the case, I guess you could say it’s contaminated in that way,” Best said.

Andrews pointed out that Best’s interview was videotaped and that his concerns about the comprehensiveness of the summary could be alleviated by the release of the videotape. Best acknowledged that at no point during the interview did Ferrelli or Byrom cut him off while giving an answer. Best also said he was given the opportunity to expand on his answers.

Best discussed his role in the police department’s internal investigation into police procedure in the Silk Plant Forest case, which concluded in 2007. Best led the investigation, which was later thrown out by City Manager Lee Garrity after it was learned Best had served as Williams’ supervisor during the Jill Marker assault investigation. Best said he expressed a concern about a perceived conflict of interest regarding his investigation to his superiors, but “that concern was ignored.”

Best said the resulting media coverage of his internal investigation has damaged his personal reputation and that of the department.

“It’s been a travesty the way this thing has progressed,” Best said.

Michael C. Rowe, a 28-year department veteran, testified that was not informed by Ferrelli and Byrom that his statement regarding his role in the Silk Plant Forest case could be made public. Rowe also complained about the narrow scope of the investigators’ questions during the interview.

“It was apparent they had an agenda,” Rowe said.

Rowe said the media coverage of the Silk Plant Forest case has been unfair and has impugned his personal integrity while impairing his ability to perform his current duties. Poe testified that he was working off-duty at the Toys ‘R’ Us store adjacent to the Silk Plant Forest store on the night of the attack, and was the first officer to have contact with Jill Marker. Poe said Ferrelli and Byrom asked him about his first contact with Marker and a surveillance videotape from Toys ‘R’ Us, and they appeared to be overly focused on Williams’ role as lead investigator.

“I felt it was pointed to a particular end,” Poe said.

Poe added that he had misgivings about his statement to Ferrelli and Byrom, and that he felt that he was not allowed to share important details of his involvement in the case. Poe also said he wished he had been invited to speak directly with the Silk Plant Forest Committee.

On cross-examination, Poe acknowledged that he was never discouraged by any of his superior officers from attending committee meetings, but he would have felt uncomfortable doing so.

McGuinness also called former police officer Randy Patterson to the witness stand. Like his colleagues, Patterson said the summary of his interview with Ferrelli and Byrom was not a complete and accurate record of the conversation.

CityManager Lee Garrity took the stand and cited two state statutes as thebasis for the city’s formation of the citizen review committee and therelease of the interviews of police officers. State law, he said, givesmunicipalities the authority to investigate their own affairs, subpoenawitnesses, administer oaths and “compel the production of evidence.”

Statelaw also authorizes city managers to release personnel information ifit is determined that “the release is essential to maintaining publicconfidence in the administration of city services or to maintaining thelevel and quality of city services.”

McGuinnessthen entered into evidence interviews with committee chair Guy Blynnand committee member James Ferree. McGuinness called into question thecity’s selection process. He stated that Ferree had exhibited a biastoward Kalvin Michael Smith, the man convicted of the brutal assault onMarker, and should have been disquali fied from membership on thecommittee.

McGuinnessalso said that Blynn’s lack of knowledge about the criminal justicesystem should’ve disqualified him from serving as the committee’schairman.

Inclosing arguments, Andrews reiterated the city’s legal foundation forforming the citizen review committee as provided in state law and theauthority of the city manager to release personnel information incertain instances. Carmon expanded on Andrews’ point, saying that ifthe judge were to accept McGuinness’ argument, then state law regardinga city’s ability to investigate its own affairs would be renderedmeaningless.

“Ifeverything the city were to investigate as it relates to officerscharged with a particular duty were considered private and thereforeprotected and could not be released, the city would have no basis forreally conducting an investigation into its affairs,” Carmon said. “Thecity really has no purpose in conducting an investigation if it can’tshow to the citizens that an investigation was done and what itrevealed.”

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