Politics

'Unusable evidence' led to quick dismissal of abuse charges, Newman told Bar

By Bill Moss, Published: April 11, 2021

District Attorney Greg Newman acted like his “hair was on fire” to dismiss felony sexual assault charges and offered the defendant a plea bargain that outraged the victim and her family, a member of the state Bar’s disciplinary board said last November.

Newman’s actions in the case of James Franklin Sapp and a charge that he pursued a “vindictive prosecution” in a separate case are the subject of a hearing in Henderson County Superior Court on Monday to decide whether the district attorney is removed from office. Newman’s actions in the Sapp case were explored at length last Nov. 11-12 by the state Bar’s Disciplinary Hearing Commission, which ruled that Newman failed to notify the alleged victim in Sapp’s case of his plea-agreement hearing and that he had made a false statement to the District Court judge who approved the plea agreement.
Sapp faced a long prison sentence had he been convicted of the five felony charges a Henderson County grand jury handed down in May 2015. Six months earlier, Valerie Marie Owenby and her mother met with a Henderson County sheriff’s deputy at the Upward Road Waffle House to report Sapp, a next door neighbor, had abused her from the time she was 5 years old until she was 12.

In an interview last week, Sapp, 66, denied the allegations contained in the felony charges that were dropped.

“It’s all a buncha bullcrap,” he said. “My lawyer (Chris Stepp) told me not to do something (to contest the charges) until after the 12^th. I do want to put my word out there."

The Owenby case is among those a group of people — made up of victims of crimes or their families — cite in a campaign to remove Newman from office. The filing of an affidavit by Peggy McDowell with Clerk of Superior Court J. Tyler Ray on Feb. 11 set off a process under state law requiring a Superior Court judge to convene a formal inquiry into the allegations. McDowell, whose daughter fled to Toronto after Newman charged her with child abduction in her custody case with her son’s father, listed numerous reasons why a judge should remove Newman. Henderson County’s resident senior Superior Court judge, Peter Knight, referred the matter to Superior Court Judge Robert C. Ervin of Morganton.

In an order filed on March 17, Ervin ruled that there was adequate evidence for a hearing on charges involving the Sapp case and in a separate case in which a defendant charged with domestic violence has accused Newman of vindictive prosecution. The vindictive prosecution lawsuit, which the defendant won at the state Court of Appeals level, is pending before the state Supreme Court.
The court file in the complaint against Newman contains a 201-page transcript of the Bar grievance hearing last November that covered in detail the Sapp case and Newman’s explanation for why he dropped the serious child sex abuse charges and offered the misdemeanor plea.

'The evidence was essentially unusable'

After the grand jury indictment in May 2015, Newman initially assigned the case to Doug Mundy, a trusted assistant D.A. that he often called on as second chair in many major cases. At the time, Newman and the prosecutors were coordinating the end-of-year calendar and planning to try a second-degree murder case that Newman had made a high priority. Because Newman wanted Mundy to join him in the second-degree murder trial, he reassigned the Sapp file to another assistant district attorney, Michael Bender.
The case started to fall apart, Newman told the Bar commission, when Bender “came to me with the file and expressed very strong concerns,” Newman told the Bar’s Disciplinary Hearing Commission during more than three hours of sworn testimony last Nov. 11.
A key to the case against Sapp, the prosecutors thought, was Valerie’s statements that Sapp had identifying marks around his groin that she would be able to describe to a jury. After Henderson County sheriff’s detective Tonya Reeves obtained a search warrant, a deputy made a photo of Sapp unclothed from the waist down. Valerie’s description of an identifying mark or scar, prosecutors reasoned, would strongly support her testimony about sexual abuse.
Now, Bender was pointing to the Sapp photo, Newman told the panel.
“The concern was raised by Mr. Bender that the evidence that we were relying upon as the corroborative proof was essentially, in his opinion, unusable,” he said. “It had very little evidentiary value that he could see, and he wanted me to look at it and see if I could point out something different to him.”
When he looked at the photo, Newman told the panel, “I couldn’t identify any kind of prominent marks that we were supposed to be relying on apparently.” Newman said he then picked up the phone to call Reeves, the case detective, who was on maternity leave. He contacted another detective from Reeves’s unit, Dottie Parker, who pulled up a copy of the photo on her computer screen.
“So I walked over to Ms. Parker’s office, looked at what she had pulled up on the computer screen, it was no different from what I had in hand,” he testified. “And so I know that we had a problem with the evidence.”
But for “a separate report that was added to the file,” Newman said, he might have dropped the charges altogether. The second report involved “a complaint against Mr. Sapp by another young lady” and included a lab report that he did not further describe. “I kept thinking there was something maybe going on here, maybe this man was doing, saying, or touching, or doing something that was inappropriate,” he told the Bar commission. “So I didn’t want to just completely dismiss the matter.”

Plea agreement fact tracked

Newman told the Bar that he decided he had to tell Sapp’s attorney, Chris Stepp, about this turn of events. Stepp was located somewhere in the courthouse and summoned to D.A.’s office, where Newman told him that he was willing to dismiss the felony indictments and refile a misdemeanor assault charge in District Court.
“Mr. Stepp took that offer and we discussed it for a while,” Newman testified.
Then came a bizarre coincidence. “He took that, and for some reason apparently his client was there in the courthouse building. Neither one of us know why … He wasn’t on any docket, he wasn’t on the Superior Court docket …”
Stepp met with Sapp and explained the plea offer.
“It was Mr. Stepp that came back to me and said, ‘My client would like to do that. Can we do it today?’” Newman told the Bar commission.
Newman said that he later asked Stepp if he had any idea why Sapp had been in the courthouse that day. “And Mr. Stepp went back and looked at his file, he said he had no notation, nothing to show why.”

Once he had the defendant’s agreement, Newman proceeded on a fast track. Newman said he directed someone in his office to prepare “a statement of charges” — in the Bar hearing he testified that he did not remember which lawyer carried out the order — and that he and Stepp were able to wedge in a time before District Court Judge Athena Brooks, who was presiding in court at the time. At the end of the docket Brooks was handling that day, in “an essentially empty” courtroom, Stepp and Newman resolved the case that had started six months earlier with five felony indictments. “And it was — it went smoothly, it went fairly quickly.”
Later, during cross examination, G. Patrick Murphy, the Bar’s deputy counsel, asked Newman about his decision to drop the felony charges and offer to settle for a guilty plea to one misdemeanor charge.
Murphy said: “Did you think about maybe calling up Valerie and bringing her in and letting somebody talk to her and see, you know, what she would say about this? Let her look at the picture and point out the area where it (an identifying mark) was?”
“No, I didn’t,” Newman responded, “because the picture, as I looked at it, I didn’t see anything that would be pointed out as anything prominent or unusual… I didn’t think that would be helpful.”

Plea deal in 'bang bang fashion'

Earlier in the hearing, Judge Brooks had testified via Zoom about her question as to whether the D.A.’s office had notified Valerie and her mother and father of Sapp’s court appearance, as required under the state’s Victims’ Rights Act. Brooks confirmed that she made the hand-written note on the case file that said, “State said victim had been advised of the plea and did not wish to be heard.”
When the Bar counsel asked Newman about Brooks’s recollection of the plea hearing that day, he said he thought at the time his office had contacted the victim’s mother. When he asked for the charging document to be made, he testified, he would have also asked that Valerie’s mother be contacted because “she was our contact.”
Newman said he had met with Valerie and her mother, Carol Siebert, one time. He denied that he had met alone with Valerie to go over her story and show her the photo of Sapp — as both Valerie and her mother had told the panel in earlier testimony before the Bar commission.
“No, I would never do that,” he said. “I will not meet with a female victim or person by myself … I’ll have another female in with me typically, just to avoid any type of complaint or allegation … I would never have them in my office by myself.”
He told the panel that within a few days of Sapp’s plea agreement, “I did find out that no one had spoken to the mother.”
Newman’s attorney, F. Lane Williamson, a former Disciplinary Hearing Commission chairman and a former Superior Court judge, told the Bar that Newman is not denying that his office failed to notify the victim of the Sapp hearing.
“You will not hear us dispute that apparently no one notified Valerie or her parents,” he said. “The question is what was done intentionally and was there intentional misrepresentation.”
When the Bar counsel asked about inaccurate statements he made in a deposition before the disciplinary commission hearing, Newman responded that “I was relying too much on my memory” and that “I think I was a little too confident in my memory.” Among the statements that the disciplinary commission called false were Newman’s assertion that he handled the Sapp plea in District Court and not Superior Court because a jury trial was under way in Superior Court and another that he had directed Lisa Buckner, his office’s victim advocate, to contact Valerie’s mother. There was no Superior Court jury trial in Henderson County that week.

As the hearing was winding down, Commission Chair Donald C. Prentiss, an attorney from Elizabeth City, described the quick process that led a major felony case to collapse.
“The way this looks to me, looks like this plea deal came together in kind of a bang-bang fashion,” he said. “I mean, really, but for the stars aligning and happenstance that Mr. Sapp happens to be in the court that day, this plea never even takes place.”
“On that day, you’re right,” Newman responded. “That’s right.”
“And that leads me to wonder how possibly your office could possibly have gotten notice to the family when it came together like that,” Prentiss said, snapping his fingers.
After seven witnesses and more than eight hours of evidence — including three hours of testimony from Newman in his own defense — commission member Ronald C. Brinson remained puzzled about the urgency of the case. It was unclear, he said, whether the photo of Sapp was of poor quality and thus unusable or whether it failed to show a scar or some other distinguishing mark that would corroborate Valerie’s testimony.
“So what was it in particular that had you running to get, my phrase, like your hair was on fire, to get this thing dismissed that day, within two days?”
“Yes, sir,” Newman responded. “The picture did not show what it purported to show.”