Three black defendants who had been arrested at racial justice protests in downtown Graham on September 26 and October 31 of last year had their trials in Alamance County district court on Wednesday.
Two were found not guilty; one voluntarily pleaded guilty to misdemeanor assault on a government official/employee, while a second offense he was charged with on October 31 was dismissed as part of a plea arrangement with the Alamance County district attorney’s office.
Devin Lee Vaughn, 36, black male, of 923 Turrentine Street, Burlington, was found not guilty of engaging in misdemeanor disorderly conduct at a protest in downtown Graham on September 26 during a brief trial in Alamance County district court Wednesday.
A self-described independent photojournalist who also works as a supervisor for Flexaust, an industrial hose manufacturer that has a plant in Burlington, Vaughn, who goes by his middle name Lee, testified Wednesday that he had been photographing a protest in downtown Graham when he was arrested on September 26, 2020.
Vaughn was found not guilty following testimony by Jackie Fortner, major of operations for the Alamance County’s sheriff’s department, and after repeated viewings of video footage captured by sheriff’s deputies who were stationed on the rooftop of the Alamance County Historic Court House, as well as footage captured by a stationary camera near the northwest corner of Court Square.
Fortner recalled on the witness stand that he had been stationed in a grassy area – which he said at the time had been designated as a “free speech zone” – between the north and west entrances of the Alamance County Historic Court House. The north entrance faces the Confederate monument; the west entrance faces West Elm Street, the sheriff’s major explained during his testimony.
Fortner testified that he’d told Vaughn he was being arrested for disorderly conduct as a group of 20 to 30 pro-Confederate monument protesters, whom he called “ACTBAC” [Alamance County Taking Back Alamance County], who had gathered in a free speech zone between the north and west sides of the Historic Court House, appeared to be moving in toward Vaughn. At the same time, counter-protesters were hurling profanities at the pro-monument protesters, based on the scene Fortner recalled Wednesday.
Vaughn’s defense attorney, Patrick Morgan of Carrboro, asked Fortner several times if he could identify the defendant from footage captured by sheriff’s deputies who had been positioned on the courthouse rooftop, or from aerial footage recorded by a stationary camera at the northwest corner of Court Square, several hundred feet from the site of the arrest. The sheriff’s major said he was unable to pick Vaughn out from the dozens of protesters and counter-protesters who had converged on downtown Graham the night of September 26.
Fortner recalled he’d had on utility pants, a polo shirt with the sheriff’s department logo embroidered to the side of the lapel, a tactical vest, and his service weapon at his side – but said he hadn’t been carrying a rifle, as the defense claimed. Morgan contended that Vaughn had been rushed by an officer carrying a rifle before being taken down, and his camera and lenses thrown to the ground.
Vaughn later testified that he’d come to downtown Graham that night to document the protest – as he had on many prior occasions over the last year – and that while he usually came alone, his 11-year-old son was with him on September 26, who he said “does BMX” and was riding his bike nearby. Vaughn explained that he had gone to the base of the courthouse steps after seeing Carey Griffin and two other protesters being arrested to ask her, “What actions do we need to take to get y’all out of jail?”
“As I get up on the sidewalk, a man fully suited – [it] looks like he’s from the Army – comes running at me with an AR-15 in his hands,” Vaughn testified Wednesday. The man ran from his right “at me,” he said, “wielding the gun. At that point, fear turns to anger; I ask why do you think what you just [did] to me is okay?” He was upset about the way he had been arrested, Vaughn testified, adding, “I was just shooting pictures with my son. I knew I had a right to be there.”
After viewing the same recordings of the September 26 protest several times, retired visiting district court judge Lunsford Long, III, of Orange County, who is presiding over the 2020 protest trials, concluded that the evidence and testimony had failed to substantiate the allegation that Vaughn had engaged in disorderly conduct, declaring him not guilty.
Vaughn was also in court Wednesday for sentencing in his earlier conviction of assaulting a counter-protester in downtown Graham on September 4 of last year. Long, who also presided over that trial on March 31, agreed this week to enter a prayer for judgment in that case and ordered Vaughn to pay court costs.
Two cases stemming from October 31 march and rally resolved Wednesday
Olivia Cabral Davis, 20, black female, 1515 South Mebane Street, Apartment 94, Burlington, was also found not guilty Wednesday of allegedly resisting an officer by interfering with an arrest during the “I am Change Legacy March to the Polls” that ended with pepper spray on October 31, 2020.
Davis had been accused of attempting to interfere with the arrest of Julius Jaleel Walton, black male, 24, of U.S. Highway in Mebane, that afternoon. Davis allegedly tried to prevent Graham police officers from arresting Walton – who was described during her trial as her boyfriend – by “wrapping herself around him.”
The couple was walking away from the grounds of the Alamance County Historic Courthouse, hand in hand, based on video captured on Graham police officers’ body-worn cameras and testimony given at her trial in district court. Within a matter of seconds, a Graham police officer touched Davis; Walton attempted to defend her from the “unlawful touching”; and the couple were taken to the ground and placed under arrest, Davis’ defense attorney argued Wednesday while presenting video and audio that Graham police captured before and during the arrest.
Graham police sergeant John Way testified that, though he had “dealt more with Mr. Walton,” he had instructed the couple “to go to the sidewalk, to get out of the street” that afternoon.
Way’s body-worn camera showed Davis “walking with her partner [Walton] across the road when the officer approaches them and says ‘move along,’” her defense attorney Scott Holmes of Durham argued. “She turns around and says, ‘why?’
Defense: ‘This charge makes no sense’
“They were trying to move away when officers converged on them,” Holmes contended. This charge makes no sense. She walked and complied with the officers…they were both trying to leave the area that had just been gassed. When she asked why, that officer got angry.”
Davis’ boyfriend had just been arrested for defending her from “unlawful touching” by one of the officers, said Holmes. Graham police officers had no probable cause to touch, detain, or arrest his client, the defense attorney argued. “When an officer touches someone, there has to be probable cause. They had no right to put hands on her.”
So that means a traffic control officer can’t do it to direct someone to where they need to go? Long asked.
“They can,” the defense attorney conceded, but in this context, “that is a seizure,” Holmes said.
Alamance County assistant district attorney Kevin Harrison acknowledged that “officers did direct Miss Davis and others where to go” and that an “officer did place his hand to guide her” to a designated protest area that had been cordoned off at Sesquicentennial Park. “There was no grabbing,” Harrison countered. “The defendant clung on to Mr. Walton as they were being arrested.”
“I never touched her; I touched Mr. Walton,” Way testified.
A subsequent viewing of a lengthier portion of the body-cam footage Way captured on October 31 revealed that Davis and Walton were arrested before a sheriff’s deputy gave three dispersal orders via a bullhorn. At one point, a Graham police officer is overheard on the officer’s radio, saying, “Close traffic off; close traffic off,” followed by, “The sheriff’s department is gassing.”
“By gassing, you mean pepper spray and fogger?” Holmes asked Way, who responded affirmatively.
The police sergeant testified under cross-examination by Holmes that, “I was going for his arm,” referring to Walton, whom he said he had intended to guide toward the designated protest area in Sesquicentennial Park. When the bodycam footage showed what appeared to be Way’s hand near Davis’ shoulder, he told the defense attorney, “I suppose my thumb may have touched her shoulder.” He nonetheless insisted that he “felt like he [Walton] was in charge of that situation” and was trying to guide the couple toward the designated area.
“At this point, what reasonable, articulable suspicion did you have to believe she had committed a crime?” Holmes pressed. “You felt like you were trying to guide them?”
“You can’t be in the city streets,” Way responded.
“At this point, he [Walton] says don’t touch her and swats your hand away?” the defense attorney asked.
Walton pushed him in the chest, Way recalled on the witness stand Wednesday.
“His back is to you,” Holmes argued. “He’s moving away, and this is when you and the other officers collapse on him and take him into custody?”
Way confirmed that sequence of events, adding that the lens of his body-cam was obscured seconds later “because he tore my vest off.” Seconds later, Davis tells the officers, “Don’t touch me,” before screaming out, “Juu-li-us Walton!”— extenuating each syllable of his name, in apparent alarm – at the 3-minute, 43-second mark in the video.
“Actually, it was after this you hear the first order to disperse,” Holmes told the judge.
Subsequent footage recorded by the officers’ body-worn cameras captured a radio transmission, which Way confirmed “came from a Graham police department employee,” in which the speaker said, “It has now been ruled an unlawful assembly; start ordering everybody to disperse.”
“It was a radio transmission,” Long pointed out, “not the man on the bullhorn.” [Alamance County sheriff’s deputy Pete Triolo has previously testified at several other protesters’ trials that he gave three dispersal orders, with a five-minute interval between each of the orders, on October 31.]
“At this point, there’s not been an order to disperse in evidence,” Holmes said, in arguing that he believed the arrest was unlawful and Davis was not guilty. That entire courthouse is surrounded by crosswalks and sidewalks that would lead – “other than meandering in the middle of the road” – to a pedestrian crosswalk.
Long noted that he had asked during an earlier trial whether there’s a jaywalking ordinance and had been told no, meaning “it isn’t illegal to be jaywalking in the city of Graham.”
Graham police corporal Keith Scoggins testified, “I came in just to get them separated” following what Harrison described as “the altercation” with Way.
Body-cam footage contains time stamp set to ‘Zulu time’
Scoggins clarified that the time stamp on the body-cam footage, which he said is based on a combination of military time and standard time, which he termed “Zulu time.” The encounter with Walton and Davis occurred at 1:02 p.m. October 31, he confirmed.
Once the couple is told, “Out of the road, out of the road,” Davis was “hanging on to him for dear life,” Scoggins testified.
Long asked to see the footage again, in slow motion, saying, “I want to see Mr. Walton shove officer Way.” A separate recording, recorded at a 45-degree angle between the Historic Court House and the northwest corner of Court Square, prompted the judge to point out, “This warrant says you were arresting another person when she interfered, but you weren’t arresting. What were you arresting for?”
“For obstructing the arrest of Mr. Walton,” Scoggins replied, adding that this information was passed to another officer who was ultimately responsible for taking out the charges.
“You see they’re walking and that’s when you see they’re directed specifically where to go,” Harrison explained. “Mr. Walton was directed to go back to the protest area. Other people were where the officers were directing, to an area that was barricaded off.”
“I understand that, but the document does not match the charges,” Long told Harrison.
“What does the warrant state the interference to have been? He just testified he wasn’t arresting anyone else; she couldn’t interfere with her arrest.”
“The charge, we would submit, is interfering with the arrest of Mr. Walton,” the assistant D.A. said.
Reading a portion of the warrant, which alleged that Davis, “willfully did resist, delay, and obstruct” Scoggins “by interfering in an arrest,” Long said, “He just told me he didn’t arrest anyone else. This just doesn’t compute.”
“I can only speak to what I can speak to,” Harrison responded, before Long granted Holmes’ motion to dismiss the charge.
Walton voluntarily pleads guilty to one charge; another dismissed Walton had been charged with two misdemeanor offenses on October 31, resisting a public officer and assault on a government official. He voluntarily pleaded guilty to the assault charge as part of a plea arrangement. Walton was scheduled to go to trial next week but his case was added to the docket Wednesday, Harrison said at the outset of the morning court session.
Walton was scheduled to go to trial on his October 31 charges next week but his case was added to the docket after his defense attorney, Brad Buchanan, negotiated a plea arrangement with the D.A.’s office.
Walton was arrested “following multiple dispersal orders,” and he and others had been ordered out of the roadway, Harrison told the judge Wednesday morning. Yet he was “staying in the roadway still” when one of the Graham police officers “lightly touched” the person with him, Harrison said, referring to Davis. “Mr. Walton turned around and shoved him,” the assistant D.A. added.
Buchanan assured the judge that Walton was “remorseful and apologetic” and ready to take responsibility for his action.
Long subsequently agreed to enter a prayer for judgment and ordered Walton to pay $183 in court costs.
Harrison told The Alamance News Wednesday afternoon that the second offense Walton had been charged with on October 31, misdemeanor resisting a public officer, had been dismissed as part of the plea arrangement.
Meanwhile, trials for five other defendants whose cases were scheduled for trial on Wednesday – all involving arrests during the march and rally in downtown Graham on October 31 – have been rescheduled for next month, Harrison confirmed for the newspaper.
In other demonstration-related news: One of most frequent protesters indicted on felony drug charge: https://alamancenews.com/avery-harvey-frequent-protester-indicted-on-felony-drug-charge/