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Defense witnesses attest to Newman's character

By Bill Moss & Amy McCraw, Published: April 13, 2021

A parade of witnesses attested to the character and integrity of District Attorney Greg Newman during the second day of a hearing to determine whether the prosecutor remains in office.

The hearing, set in motion by an affidavit filed with the Henderson County clerk of Superior Court on Feb. 11, has included dramatic testimony from a victim of child sexual assault charges who did not get an opportunity to testify at the defendant's plea bargaining proceeding, state Bar counsel who investigated a complaint against Newman, the district court judge who accepted the child sex abuse plea and many others. The proceeding is expected to wrap up today with closing arguments.

Present to testify in Newman's defense were two retired Superior Court judges, law officers, including Sheriff Lowell Griffin; the Rev. Greg Mathis, senior minister of Mud Creek Baptist Church, and other community members.

Superior Court Judge Robert C. Ervin, who is presiding in the case at the request of Senior Resident Superior Court Judge Peter Knight, ruled on March 17 that probable cause exists to hear evidence in three separate actions that could potentially be grounds for Newman's removal:

• A plea deal Newman made that allowed James F. Sapp, a defendant charged with five child sexual abuse felonies to plead guilty to one misdemeanor in a brief proceeding that the victim was not made aware of.
• The successful charge of vindictive prosecution by a defendant, Leonard Schalow, who has been jailed for eight and a half years. The case currently is on appeal before the state Supreme Court.
• Newman's dismissal of drug charges, while district attorney, in an unusual motion involving a former client, known only as CB, when he was a defense attorney. That case resulted in a Bar grievance and reprimand.

Judge Ervin appointed James Cooney III of Charlotte and Isaac N. "Ike" Northrup to present the case against Newman. Newman is represented by David Freedman and Stuart L. Brooks of Winston-Salem.

Testifying on Newman's behalf, Asheville attorney Sean Devereaux defended Newman's work both in private practice and as the elected prosecutor for Henderson, Polk and Transylvania counties.

"I see that as an outlier," he said of the case involving Valerie Owenby, the victim in the Sapp case.

Devereaux described a D.A.'s role as an almost impossible job whipsawed by victim demands, politics, new laws from the state Legislature and other challenges.

"I think there's a general agreement among those of us who have toiled in the criminal law vineyard for a long time that the system is malfunctioning badly if not broken and politics is a major part of it," he said. "Mr. Newman unlike almost every other prosecutor actually tries cases and at the same time in the district he's in the political demands are very difficult. So he's answering to those people all the time, making those decisions and hoping to get re-elected. This is more about keeping score than it is about achieving justice. This is about statistics. ... If I had to pick out 50 prosecutors (for disciplinary proceedings) he'd be way down at the bottom of the list."

“In the criminal defense community, he is highly regarded,” Devereux said.

A long-time defense attorney in the mountains, Devereux testified that he based his opinion on his experience with the District 29B prosecutor. He described Newman as a district attorney who never manipulates the court calendar to his advantage or who tries to hide exculpatory evidence from defense attorneys. Devereux testified that he and others in the area’s criminal defense community continue to hold Newman in high regard even after learning of the commission’s findings.

  He said he was perplexed by the commission’s findings in the Owenby case and called Newman’s actions an aberration and inexplicable. Devereux also questioned why Newman was brought before the commission when other district attorneys who made questionable decisions were not.

“There is a feeling that the media have seized on a thesis here,” Devereux testified. “They’ve seized upon it and are seeking evidence to support it.”

Under cross examination by Cooney, Devereux testified that Newman told him privately that he regretted his actions in the Owenby case. Cooney then read to Devereux public statements Newman made saying he did not regret his actions in the case. Devereux described Newman as a politician. Newman “by opinion and reputation is a skillful and natural politician," Devereaux responded. "He will tell people what he thinks they want to hear. He’s a people pleaser. I think he says things — come on, every politician says things that may be different from what they truly believe. It’s regrettable that’s where we are these days, but that’s where we are.”

  Cooney also asked Devereux about Newman suggesting in court and in public comments that the bar case against him was politically motivated. Devereux responded that he knows of prosecutors who hid DNA evidence from defense attorneys but did not face discipline from the bar. “Until the bar goes after those people, I remain perplexed,” he said.

  In other testimony Tuesday, the leader of an advocacy organization for the victims of sexual assault testified before the independent counsel rested that it is important for survivors to be given the chance to speak in court. Angelica Wind, the executive director of Our Voice in Asheville, testified that part of seeking justice for survivors of sexual assault is having their day in court. “Sexual assault takes power away from you,” she said. “When survivors are stripped of the right to be heard that power is taken away again. It can be retraumatizing.”

Also before resting the special counsel’s case Tuesday, Cooney called Dennis Maxwell, an assistant public defender in the 29B Judicial District. Maxwell represents Schalow. Cooney questioned Maxwell about the flawed attempted first-degree murder indictment signed by Newman that led to the case being dismissed. He also questioned Maxwell about Newman’s decision to reindict Schalow on the attempted first-degree murder charge despite suggestions that he could have pursued attempted manslaughter in the case. A guilty verdict on the second indictment was eventually overturned on the grounds of double jeopardy, Maxwell testified. Maxwell testified Newman has continued to pursue indictments against his client in the case even after the double jeopardy rule. Schalow has remained in jail for more than seven years despite not being convicted in the case.

Newman has described the victim in the Schalow case as having been beaten "from head to toe" and as having sustained serious internal injuries.

Maxwell testified he believed Newman acted inappropriately in the case.

“I believe that the way this prosecution unfolded clearly violated the fundamental guarantees” against double jeopardy, he said.

Among those testifying for the defense was James U. "Jud" Downs, a colorful retired judge who was first licensed to practice in law in his native Louisiana in 1966 before serving in the Judge Advocate General Corps for two years. In 1968, he began to practice law as a solo practitioner. After moving to Franklin in 1971, he passed the state Bar and practiced law in the mountains until Gov. Jim Hunt appointed him to the bench in 1983. "I stayed there some would say too long and others would say not long enough," he said. "I retired (in 2013) due to age, sat out, got bored and went back to practicing law."

What was Judge Downs's opinion of Newman's character?

"Excellent," he said, "based on my observation of him, my actions with him. I've never known him to be untruthful to me. As a judge, you've got to rely on your community to be truthful with you. Otherwise, they lead you into a deep hole."

Sheriff Lowell Griffin chronicled his 29 years in law enforcement, including supervising investigations from property crimes to homicide, and his respect for Newman.

"My relationship has always been very professional," he said. "My interactions with Mr. Newman have always been professional, always cordial." At a recent lunch with other sheriffs and police chiefs from District 29B, "We all agree we work well with the district attorney's office."

Griffin said his perception of the hearing on Newman's removal was that "we've heard nothing about bribery, we've heard nothing about being drunk on duty. What we've heard about is a district attorney that has cases in three different counties. My agency alone can keep his entire staff busy." Law officers in general think it's wrong that "we're taking up time sitting here."

Asked about the state Bar cases against Newman, Griffin said in general he doesn't pay much attention to the Bar.

"I think there's a difference between a mistake that's made and something that's corrupt that's an intentional lie," he said.

The Rev. Mathis said he had known Newman for 15-20 years. "When we have special occasions, he visits, like when we honor law enforcement, and he's always warmly received and of course I hear what our people say. ... I have confidence in him and I think he has integrity."

Ellen Pitt, a retired registered nurse, testified that she does volunteer work in 19 counties for Mothers Against Drunk Driving and also volunteers as a crime victims' advocate. She works with Newman's office to set up meetings with victims of drunk driving. "We've relied on him on many occasions to help us," she said.

"Mr. Newman has over the years done some things that don't always make the news, spent some very special time with crime victims," Pitt said. He always participates in MADD memorials for victims of drunk driving, she said, escorting family members to light candles.

When independent counsel James Cooney asked Pitt whether it was important that the court system notify crime victims of proceedings and be given the opportunity to be heard, she responded, yes, it was.

Also present to support Newman but not called to testify were Anthony McMinn, Lynn Bryson, Joey Bryson, Sheriff David Mahoney, Kim Wright, Webb Cortell, Scott Handy, former Hendersonville police chief and current Buncombe County Chief Deputy Herbert Blake, sheriff's Maj. Eric Summey, retired Superior Court Judge Zorro Guice, First Baptist Church minister Steve Scoggins, Mark Williams, sheriff's Maj. Frank Stout and several others.

A former Brevard College student testified that she was raped by two basketball players at 2 or 3 a.m. on campus in the spring of 2015. Cooney asked about the process of the police investigation. She was told that he would have a meeting with Newman, followed by a possible grand jury.

She received a phone call from Greg Newman that dismayed her.

"It was a very brief conversation to explain that he was not going to prosecute my case," she said. "I basically begged him for meeting to go over the facts of my case." When the in-person meeting happened, "he gave me five reasons why he wouldn't prosecute my case," including that she was not a virgin and that she was wearing a crop top and leggings.

"I thought maybe it was a joke," she said of her reaction. "I knew it wasn't a joke but a part of me was in shock that that would matter when I got raped."

When she learned later that she could file misdemeanor charges against the two men, she went to a magistrate and swore one out.

"I thought everything was fine until I got a call from Mr. Newman stating how mad he was that I did that," she said. As for the new charges, Newman told her "that they would be dropped and I would never be able to prosecute them in criminal court if he was around. I felt like I had hit rock bottom. I felt like I had another shovel and was going right under."

In rebuttal testimony, Newman described the investigation of the rape allegations in the Brevard student's case.  The officers called him because they weren't sure there was sufficient evidence to file the rape charges, he said. "I told them that I did not believe there would be enough evidence to support charges," he said. "While there was sexual activity that occurred, there was not evidence to support charging and certainly not enough to convict beyond a reasonable doubt."

Newman denied the student's allegation that he told her he could not prosecute because she was a virgin.

"I would never say something like that," he said. He found out that she "had sex with an assistant basketball coach, smoked pot and consumed alcohol, all while she was under age. Her behavior was such that her recollection was somewhat compromised."

Newman met with the student in the fall after the alleged rape the previous spring and explained, with the case detective present, why the charges fell short of what he could prove. "There are some harsh realities in this business and it comes down what kind of evidence we have and that's the bottom line," he said. "I was not mad at her, I did not raise my voice, I did not accuse her of anything."

The mother of a 14-year-old girl who was raped 2017 testified that law officers charged the perpetrator with felony first-degree rape. Once out of jail, the defendant ran and never showed up for court. Eventually, the defendant was caught. Then the victim's mother found Newman's office was reducing the charge to assault on a female. She said she and her daughter made it clear they wanted to take the rape case to trial.

"I kept telling him I don't want this plea deal, please don't do this plea deal," she said. "It's not right. ... My daughter was devastated. He revictimized her and that's exactly how she felt."