A retired judge who’s overseeing the 2020 protest trials in Alamance County district court earlier this week granted a motion to quash a subpoena to compel Graham police chief Kristy Cole to turn over all written, audio, and video communications between her department and the Alamance county sheriff’s office regarding a protest that ended with pepper spray in downtown Graham on Halloween day last year (see related story, this edition).
See story on the first day of Rev. Gregory Drumwright’s trial which won’t resume until Sept.: https://alamancenews.com/drumwright-trial-underway-but-not-finished-to-be-continued-sept-8/
The attorney for the Graham police department scored a win with his motion to quash the “evidentiary subpoenas,” as they were termed during an online hearing Monday afternoon.
But the city’s attorney was less successful in convincing retired district court judge Lunsford Long, III, of Orange County this week to quash subpoenas directing Cole and three of her subordinates to testify at the trial for one of the highest-profile defendants arrested during the “I Am Change Legacy March to the Polls” on October 31 – even though Graham police officers didn’t make the arrest.
The organizer of the march and rally in downtown Graham on October 31, Rev. Greg Drumwright, 41, black male, of 4 Clubview Court, Greensboro, is currently charged with misdemeanor failure to disperse on command, resisting a public officer, and creating a public disturbance. His trial began Wednesday in Alamance County district court.
In general, the police were responsible for the streets and sidewalks surrounding the courthouse; and the sheriff’s office had jurisdiction over the courthouse grounds that day.
Drumwright’s defense attorneys were also unsuccessful in subpoenaing Cole to produce all communications between the two law enforcement agencies pertaining to the October 31 event.
Long agreed to quash a subpoena directing Cole to produce all video and audio recordings, as well as police body cam footage and recordings of all radio communications between the Graham police department and Alamance County sheriff’s office on the day of the protest. Noting that he had viewed extensive video footage during earlier trials for defendants who were also arrested on October 31, Long pointed out Monday, “there were cameras on top of the courthouse, also from the city of Graham,” urging Drumwright’s attorneys to get with Alamance County assistant district attorney Kevin Harrison, who is handling the 2020 protest cases, to make sure they have everything they need.
Greensboro attorney Jason L. Keith, who is representing Drumwright for his trial in Alamance County district court, had subpoenaed Cole and two of her subordinates in the Graham police department to appear and testify on Monday, July 26. An objection and motion to quash filed by the attorney for the Graham police department, Anthony Biller of Raleigh, highlighted the fact that the subpoenas directed Cole and her subordinates to appear and testify on July 26, though neither the trial nor any evidentiary proceedings were scheduled on that date.
“The first issue is the date; I don’t know if you’re trying to subpoena documents before trial,” Long told Drumwright’s defense team Monday afternoon, during a hearing on the city’s objection and motion to quash the subpoenas. Monday’s hearing was conducted via WebEx, a platform that the state’s Administrative Office of the Courts has used to conduct remote hearings since the coronavirus pandemic began in the spring of 2020.
Keith acknowledged during the hearing Monday afternoon that the subpoenas inadvertently listed the wrong date for Cole and her subordinates to appear and testify. He said he’d intended to subpoena Cole, along with assistant police chief Rodney King and two Graham police officers to testify at Drumwright’s trial in district court, which was scheduled to begin later in the week – Wednesday, July 28.
That detail could be rectified later, Long said, before granting the city’s motion to quash the evidentiary subpoenas, which he concluded were overly-broad.
Judge: No fishing expedition allowed
“It sounds like you want them to bring everything, which is what I would term a fishing expedition,” Long said during the 35-minute online hearing. While state laws provide several avenues to obtain evidence, it doesn’t give the attorneys, or any other parties, the right to go digging through all of an agency’s files, he explained. “I think the state has given you everything it has to offer throughout,” he told Drumwright’s defense attorneys, directing them to get with Harrison to make sure they have everything they need before the trial begins.
Biller objected to any attempt to “conduct pretrial discovery in a district court criminal proceeding,” based on the objection and motion to quash he filed for the police department, as well as a July 20 letter to Keith, which are included in Drumwright’s court file.
In his objection for the Graham police department, Biller also contended that the defense’s team’s subpoenas are “unreasonable and oppressive,” particularly due to the time that Cole would need to gather the materials – though, he said, the department had already provided all of its video footage from October 31 to the D.A.’s office. As for the police body cam footage sought by Drumwright’s attorneys, state law prohibits Cole from releasing those without a court order, Biller stated in the objection and motion to quash he filed for the Graham police department last week.
The release of body cam footage that both Graham police officers and Alamance County sheriff’s deputies on October 31 is the basis for a separate court dispute that appears headed for the North Carolina Court of Appeals. The pending appeal pertains to a petition filed earlier this year by The McClatchy Company, which owns The (Raleigh) News & Observer, and several other media outlets to obtain police bodycam footage recorded on October 31. A separate portion of state law governs the process by which police bodycam footage may be released to third parties.
In the meantime, several protests have been held in downtown Graham this month demanding that the police department and sheriff’s office release the bodycam recordings.
“What we’re doing is covering ourselves to ensure we have everything so we’re not bamboozled going to court,” Keith told Long Monday afternoon. “We just want to make sure we have everything the state intends to offer. We’re concerned about discoverable evidence that may be out there.”
Christopher Knight, who was described as “another co-counsel with Keith’s firm,” explained during the online hearing that the defense team is looking for all of the recordings in order to lay out the chain of events on October 31. “We understand the court’s concern about the breadth of the subpoena,” Knight said. “We believe it’s important that we be able to document the events of the march; it is important we be able to track the movement of Rev. Drumwright from start to finish.”
Assistant D.A. Harrison, who listened in on the hearing to determine how it might affect the trial scheduled in Drumwright’s case, confirmed for the judge that he previously provided Keith with a flash drive containing all of the evidence relevant to the case that he’d been given.
Judge denies motion to quash police chief’s testimony
Long, however, denied the city’s motion to quash what was termed during the hearing as “testimonial subpoenas,” directing Cole, assistant chief King, and two Graham police officers to testify at Drumwright’s trial.
Biller contended that the Graham police department wasn’t involved in Drumwright’s arrest; hadn’t charged him with a crime; and is a small department that doesn’t have enough manpower for three officers, including its two highest-ranking officers, to be absent at the same time. The objection he filed last Wednesday noted, “It is unclear what purpose, if any attorney Keith has subpoenaed Cole, King, and [a Graham police officer listed as “J. Payne”] to appear.” It was noted during the online hearing Monday afternoon that King was unavailable to testify this week due to a prior obligation.
“I don’t want to make anybody come back from a training or vacation,” Long said in denying the city’s motion to quash the testimonial subpoenas for Cole and her subordinates. “Let’s just hold that one open,” he said, referring to the subpoena for King, “and work on that as a trial logistics matter. I know there was some talk this might be a multi-date trial – is that still the case, Mr. Harrison?”
Harrison said he’s not sure if the trial would need to be carried over to a future date, adding that he planned to call at least eight witnesses, none of whom are employed with the Graham police department.
Alamance County sheriff’s deputies arrested Drumwright on the grounds of the Alamance County Historic Court House. The sheriff’s office also shut down a rally that Drumwright held on the courthouse grounds that afternoon, after discovering that a gas-powered generator and two gas cans had been brought onto the property, violating a permit that Drumwright had been granted for the event.
Alamance County sheriff’s corporal Barbara Tomey was injured in a scuffle while trying to confiscate the generator, which was concealed inside a cloth beach wagon.
Drumwright was among the total of 23 people who were arrested that afternoon.
However, his defense team had not subpoenaed the Alamance County sheriff’s office to produce or permit inspection of video or any other evidence from October 31, according to Drumwright’s court file. No lawyers appeared on behalf of the sheriff’s office during the online hearing Monday afternoon.