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JUDGE ORDERS DISTRICT ATTORNEY REMOVED FROM OFFICE

District Attorney Greg Newman testifies during a hearing on whether he is removed from office. [AMY McCRAW/Hendersonville Lightning]

By Bill Moss, Published: April 27, 2021

A Superior Court judge on Tuesday ordered District Attorney Greg Newman removed from office, finding grounds for his ouster in separate cases of misconduct presented in a three-day hearing two weeks ago.

In a 30-page order filed with the Henderson County Clerk of Superior Court, Judge Robert C. Ervin of Burke County spelled out 378 points from the inquiry and concluded that Newman’s action warranted his removal under a state law governing a complaint filed with the Clerk of Superior Court to oust an elected prosecutor for misconduct.

“Based on the foregoing finding of fact and conclusions of law, it is hereby ordered, adjudged and decreed that Gregory A. Newman is hereby permanently removed from office as district attorney and his salary shall be terminated as of the date of the filing of this order,” Ervin wrote.

The inquiry covered three separate matters in which an independent counsel presented facts before Ervin April 12-14 in Henderson County Superior Court:

• A plea deal Newman made that allowed James Sapp, a defendant charged with five child sexual abuse felonies, to plead guilty to a single misdemeanor in a brief proceeding that the victim was not made aware of. A complaint to the North Carolina Bar by the victim and her family resulted in a stayed order suspending Newman’s law license for three years.
• A 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 when Newman was a defense attorney in private practice. A complaint arising from that case resulted in a Bar grievance and reprimand.

Citing state law and the removal of a district in the Wilmington area in 1995 that set state Supreme Court precedent, Ervin wrote that if “the superior court judge (presiding over the inquiry) finds that one of the enumerated grounds for removal of a district attorney exists, he shall enter an order permanently removing the district attorney from office and terminating his salary.” State law “compels removal upon a finding of one of the enumerated grounds and leaves no discretion in this regard with the superior court,” Ervin added, citing the ruling by the state Supreme Court that upheld the ouster of District Attorney Jerry Spivey. “Removal is the only sanction available and is mandatory.”

Ervin appointed James P. Cooney III and Emily Doll of Charlotte and Isaac N. Northup Jr. of Asheville as independent counsel. Newman was represented by David B. Freedman and Stuart L. Brooks.

“Mr. Newman is honored to have served the people of Henderson, Polk and Transylvania since 2013,” Freedman said. “His office has done great things to ensure the safety of the people of the community and he looks forward to being able to help them in the future.” As for an appeal, “We have not discussed that.”

Under state law, the judge’s order removed Newman from office immediately. “Even if he appeals, he’s removed this minute,” Freedman said. “If you appeal, you can try to get reinstated.”

Gov. Roy Cooper is expected to appoint a new district attorney for Judicial District 29B.

In his order, Ervin presented findings of fact and conclusions of law in the three cases he had ruled in March found warranted investigation by the independent counsel and subject of a hearing.

In a March 17 order, Ervin limited the scope of the hearing to determine whether Newman had engaged in “willful misconduct in office” and whether he had engaged in “conduct prejudicial to the administration of justice which brings the office into disrepute.” Citing a court precedent that defined willful misconduct by a jurist, the judge said, “Willful misconduct in office denotes improper and wrong conduct of a judge acting in his official capacity done intentionally, knowingly and generally, in bad faith. It is more than a mere error of judgment or an act of negligence.”

In May 2015, a Henderson County grand jury returned indictments charging Sapp with rape of a child by an adult, sex offense with a child by an adult, and three counts of taking indecent liberties with a child. Citing what he described later as “unusable evidence,” Newman reduced the charge to one misdemeanor count of assault on a female, allowing Sapp to go free with no jail time and without registering as a sex offender. Evidence at the removal inquiry and last November at the state Bar’s Disciplinary Hearing Commission showed that Newman failed to notify the victim, Valerie Owenby, or her parents of the Sapp plea, depriving them of the opportunity to be heard.

“Judge (Athena) Brooks would not have accepted that plea on that date if she had been advised that the victim wanted to be heard,” Ervin wrote, citing the judge’s testimony at the inquiry. “The court would not have accepted Sapp’s plea if the judge had been aware that the victim had not been notified of the hearing and wished to be heard by the court. Judge Brooks indicated that honesty and candor are very important and that judges assume that the information provided by court officials is truthful. Brooks noted that judges rely on attorneys appearing before the court to be truthful.”

In addition to falsely telling Judge Brooks that his office had notified the Owenby family of the Sapp hearing and telling her that that they did not wish to be heard, Newman made false statements to the Disciplinary Hearing Commission in his response to the complaint filed by Oppie Owenby, Valerie’s father.

“In connection with the Sapp case,” Ervin said, “Newman committed three separate acts each of which constitutes an independent ground for removal from the office of district attorney.”

In the conflict of interest case, which resulted in a state Bar reprimand of Newman, Judge Ervin did not “conclude by clear, cogent and convincing evidence that Newman’s action in handling the motion for appropriate relief constituted willful misconduct.” But he concluded that the district attorney’s “misrepresentations ... to the State Bar in connection with the investigation into the grievance” did constitute willful misconduct and a fourth ground for removal under state law.

In the Schalow case, which involves a defense lawyer’s years long appeals based on double jeopardy and vindictive prosecution, Ervin cited legal errors Newman made in the filing of charges, alleged “secret indictments” Newman obtained in January 2017 and did not serve on Schalow for 14 months, a new round of indictments against Schalow that Newman obtained despite an appeals court order barring “all further trial court proceedings” while the case remained on appeal and “extrajudicial statements” made Newman made to the Hendersonville Times-News. Those facts notwithstanding, Ervin ruled that Newman’s actions in the Schalow case did not constitute grounds for his removal.

Newman’s attorneys argued during the inquiry that the complaint should be dismissed because voters had re-elected the D.A. in 2018, after some of the acts of misconduct had occurred. Ervin said that didn’t matter because voters had no way of knowing about the state Bar outcomes.

“No public records would have been available to the voters or Newman’s opponent prior to the May 2018 primary to advise them that a false representation had been made to Judge Brooks, that Newman had failed to correct the false statement or that Newman had made false representations to the State Bar,” he wrote. “The voters of Newman’s district should not be deemed to have condoned conduct of which they were unaware at the time of the May 2018 primary.”

A district attorney, Ervin noted, serves as a “servant of the law,” who “exemplifies fairness and equal justice under the law.”

“Newman, as district attorney, has on four separate occasions made false representations to the trial court or the State Bar,” Ervin wrote at the tail end of his order. Testifiying on Newman’s behalf, “Sheriff (Lowell) Griffin admitted that if a law enforcement officer lied to the Court, his career would be over. It is difficult to see why Newman, pursuant to (state law) and the facts of this case, should be held to a lower standard.”