A Forsyth County judge came close Thursday morning to keeping sealed records connected to the death of John Neville, who died in December 2019 after being held at the Forsyth County Jail.
But Judge David Hall of Forsyth Superior Court ultimately held off on a decision until next week.
The records include a 723-page report from the State Bureau of Investigation and an internal investigation conducted by the Forsyth County Sheriff’s Office. The News & Observer initially requested the records in June and July 2020 from the N.C. Department of Health and Human Services. The Office of the Chief Medical Examiner had the records as part of an investigation into Neville’s cause of death.
In late January, an attorney for DHHS notified Forsyth County prosecutors that the agency would be releasing those documents. The next day, Assistant District Attorney Elisabeth Dresel filed an objection and Hall issued an order temporarily sealing the documents.
Attorneys for the N&O and a media coalition that includes the Winston-Salem Journal were not notified that the records were being released or that prosecutors had filed an objection.
After a hearing earlier this month, Hall ordered the records released, concluding that law-enforcement records, which aren’t normally public records, become public when turned over to another public agency such as DHHS. Dresel filed notice of appeal to the N.C. Court of Appeals and requested that Hall stay his decision.
John Neville, 56, died on Dec. 4, 2019. His death came just days after the Greensboro man was arrested by Kernersville police on an outstanding arrest warrant for assault on a woman. He was placed in the Forsyth County Jail on Dec. 1, 2019. Twenty-four hours later, he had some kind of medical emergency while he slept in his cell, causing him to fall from his top bunk to the floor.
He was taken to another cell where detention officers piled on top of him in an attempt to remove handcuffs. Video released last year show Neville saying, “I can’t breathe,” 28 times over a three-minute period while he lay on his stomach with his arms behind his back and his legs folded toward his buttocks in a position informally known as a “hog-tie” position.
Five former detention officers and a nurse are now facing involuntary manslaughter charges in Neville’s death. Forsyth County Sheriff Bobby Kimbrough Jr. did not publicly acknowledge Neville’s death for six months. It was only on June 26, 2020, prompted by questions from the Winston-Salem Journal, that he provided limited information about Neville’s death.
Neville’s death sparked protests and a 49-day occupation at Bailey Park that was led by Triad Abolition Project.
Hugh Stevens, one of the attorneys for the media coalition, said that the Forsyth County District Attorney’s Office had created a “procedural morass.” He said prosecutors can’t technically appeal Hall’s decision. And at the appeals court, the media coalition and DHHS aren’t parties to the litigation.
At a hearing earlier this month, Mike Tadych, also an attorney for the coalition, cited an N.C. Supreme Court case that he said clearly established that even though law-enforcement documents are not ordinarily public, they become public when they are given to a public agency.
Forsyth County Jim O’Neill, who was not at Thursday’s hearing, has argued that the release of these documents could jeopardize the right of the defendants to a fair and impartial trial.
Dresel argued Thursday that it would make an appeal moot if the records were released and prosecutors won at the N.C. Court of Appeals.
Hall said he believes he was right in the decision he made but he also is concerned about making sure the defendants’ rights are protected. He said the appellate court should make an exception in cases that involve pending felony charges.
“I would like for the matter to go before the appellate court because there are substantial rights involved, the rights of the accused, the rights of the state,” he said.
If he issued a stay, he said he would want the N.C. Court of Appeals to act quickly on the case.
Another hearing is tentatively scheduled for March 3.