As a federal investigation and a potential lawsuit involving misconduct at the Harnett County Sheriff’s Office continue to develop, the battle over records in the underlying cases is starting to erupt.
On Monday in Superior Court, lawyers for six people who say they were harmed by sheriff’s deputies and one who was killed by a deputy asked Judge Gale M. Adams to order release of investigative files from their cases, arguing that transparency could start to rebuild trust in county law enforcement.
Lawyers for the county, the sheriff’s office and District Attorney Vernon Stewart said, however, that some of the documents and information sought are not public records and that their release could have a chilling effect on criminal investigations.
The arguments came against the backdrop of a sheriff’s office under siege. A News & Observer series, Deadly Force, earlier this year revealed new information about officers’ involvements in the deaths of John Livingston and Brandon Bethea and reported complaints about a small group of deputies causing injuries and spreading fear in rural parts of the county. As a result, the U.S. Department of Justice opened an investigation into several cases.
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Edgar R. Bain, a Lillington lawyer representing the district attorney, said the attempts by lawyers for the family of Livingston to obtain the State Bureau of Investigation report on its probe into the shooting – along with other investigative records – stemmed from reporters and residents “just being nosy.”
“The public is quite that way,” Bain said.
Bain also provided a letter from the U.S. Attorney’s office that said public release of the records could “adversely impact” the ongoing federal investigation.
Robert Zaytoun, a Raleigh lawyer who represents Livingston’s estate, said releasing all records involved in the case was necessary because the sheriff’s office had misrepresented facts in cases that include the death of Bethea, who was shot repeatedly with a Taser and died after being left alone in his cell for about 20 minutes.
“Certainly the public is going to be nosy,” Zaytoun said. “The public has a right to know what’s going on in a law enforcement agency that’s impaneled to protect the public, not protect itself.”
A plan to appeal
Livingston was shot to death last November by Deputy Nicholas Kehagias. Kehagias, investigating an assault that didn’t involve Livingston, went to Livingston’s home at 3:40 in the morning seeking another suspect. Denied entry to the home, Kehagias forced his way in, saying Livingston assaulted him when he attempted to close the door and hit the deputy’s foot.
A 10-minute fight ensued. It ended with Kehagias shooting Livingston three times. He later said he feared for his life after Livingston gained control of the deputy’s Taser. A county grand jury declined Stewart’s request to indict Kehagias for second-degree murder, but he resigned from the sheriff’s office in late June.
Judge Mary Ann Tally in June ordered Stewart, the district attorney, to release the SBI report and other investigative files in the Livingston case to his estate’s lawyers. She rejected a request for a protective order that would have barred the lawyers from making the documents public.
Stewart filed notice of appeal, but he did not at the time ask for a stay of the judge’s order. “You’ve got to remember he’s a DA, not a civil lawyer,” Bain told Judge Adams on Monday.
Livingston’s lawyers quickly asked the judge for an order to compel Stewart to release the records, leading Stewart to ask for a stay of Tally’s order and to strenuous arguments from Stewart’s lawyer that he was being denied his right to appeal.
Judge Adams said she would review the SBI file and other parts of the investigative record and likely rule within two weeks. It appears likely that the case will go to the state Court of Appeals.
Several Harnett residents who say they have been victims of violent acts at the hands of county deputies – most of them allegedly involving Kehagias – attended the hearing to buttress their lawyers’ arguments.
Zaytoun and lawyers Jesse Jones and Matthew Ballew argued that the investigative files were public records – and if they weren’t, the judge had the power to release them anyway.
“The deadliest disease of our government is corruption,” said Jones, a Lillington lawyer. “The vaccine for that disease is transparency.”
Dan Hartzog Jr., a Raleigh lawyer representing Harnett County, and Monica Jackson, the county attorney, said they were ready to release records that are public but that some of the records being sought weren’t public under the law and that witnesses could be harmed by public disclosure. They said the records possibly could be obtained after a federal lawsuit is filed, but that they would argue for a protective order to avoid public distribution
“It’s not that we don’t like transparency,” Jackson said. “There are just things that aren’t public records.”
Steve Riley: 919-836-4940 @SRileyNandO