One view on the long, twisted road to making the APD evidence room audit public, and how it changed Asheville
Above: District Attorney Ron Moore talking to press June 19, beside the 15-volume audit of the APD evidence room.
Honestly, I never expected the day would come.
There, on a large table in the Buncombe County Courthouse were 15 binders — over 4,000 pages in all — detailing the state of the Asheville Police Department evidence room.
District Attorney Ron Moore was also there. As reporters from an array of local media outlets leafed through the pages of a document, made copies, and compared notes, the usually reticent Moore answered questions for about an hour. While written in dry, technical language and laying out such an abundance of details that even Moore himself admitted it was “confusing as hell,” it still revealed far more about an evidence room in deep disarray than the public had previously known.
It was June 19, 2014, about two-and-a-half years since I faxed over an open-records request to Moore’s office and more than three since news that guns, drugs and money were missing from the APD evidence room rocked the city and the local justice system. In that time, the quest for these technical documents had taken me, and many other local reporters, on a long road, even into court to fight a lawsuit with Moore and the city of Asheville.
Now, at long last, the APD evidence room audit is in public hands, where it belonged all the time. You can read the whole thing on Carolina Public Press’ website, and a copy is also in the North Carolina room at Pack Memorial Library.
It was a long, long haul. The audit arrives before the public eye in a very different city, one changed in many ways by the fight to get it there.
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“Oh, he never checks his email,” the receptionist at the District Attorney’s office told me in January 2012. Any open records request, she said, would have to be faxed. I was, at the time a reporter for the Mountain Xpress.
It was unusual, but Moore had occupied the office for two decades. To put it mildly, he wasn’t exactly known for his openness with the public, let alone the media. I faxed the request over, and heard nothing for weeks.
Under North Carolina open records law, public officials are supposed to respond to requests, even if they believe they have a legal reason to deny it, “as promptly as possible.”
The only thing I got from Moore was silence. In March, the request was repeated in another fax, also signed by Xpress‘ editor and publisher. As the months wore by, we still received nothing. I asked the legal advisors from the North Carolina Press Association if Moore was violating open records law. They said he was. As attorney Mike Tadych put it, “you could find the copying machine in two months time.”
Public records requests are one of those canary in the coal mine duties of journalists. If we — people who are trained and paid to navigate bureaucracies and make information public — can’t get a document that should be available, what about the average citizen? Enforcing records requests doesn’t just get important information, it reinforces scrutiny and reminds officials of their duty to provide relevant information to anyone who requires it.
Also, while memories may have faded a bit, it’s important to remember how big a scandal the missing evidence was at the time. News broke in April 2011 that guns, drugs and cash — maybe a lot of guns, drugs and cash — were missing from the evidence room following the departure of former manager Lee Smith. APD Chief Bill Hogan quickly resigned, the room was sealed, the State Bureau of Investigation swooped in, City Council commissioned an audit and numerous cases were suddenly thrown into doubt. Rightly, a lot of people in Asheville were wondering what the hell was going on.
Then there was silence. The audit, by contractor Mike Wright, formerly of the Buncombe County Sheriff’s Office, proceeded, and was completed in January 2012. According to the terms of its contract, the city should have received a copy, but Moore didn’t give them one, and they didn’t press for it.
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As I made my requests over the first three months of 2012, I wasn’t alone. Reporters from outlets including the Asheville Citizen-Times, WCQS, WLOS, Clear Channel Asheville and Carolina Public Press also pressed for the documents.
By the time late April rolled around, an unusual step was necessary. Belief in public transparency cut across the political spectrum of Asheville’s local media, and an array of representatives agreed to a joint statement with Xpress that “as members of the local media who believe in a free press and open government, we call on Moore to turn over the results of the evidence room audit and help restore public trust.” The Sunlight Foundation, a national non-profit that pushes for increased government transparency, also featured the issue.
Carolina Public Press had extensively covered the evidence room issues, especially in a series of articles by editor Jon Elliston. As public pressure built, they started to coordinate with other local news outlets and took the lead in researching the case and putting together an alliance to sue Moore and the city of Asheville to get the audit.
That June, that’s what happened, as the Citizen-Times, WLOS, WCQS, Xpress and Carolina Public Press joined together to sue for the audit, alleging “the issue represents a matter of substantial public importance because it involves not only the conduct and procedures of the Asheville Police Department, but also impacts the integrity of the cases investigated by the police department…defendants have failed and refused, and continue to fail and refuse, to provide Plaintiffs with access to the audit report.”
The public, based on nearly every conversation I had and comment I heard about the case, remained deeply skeptical about the state of the evidence room, how the situation got so bad in the first place and the obfuscation with which the audit issue was being addressed. Local musicians Jr. James and the Last Guitar even made a ballad about the whole mess.
In early September 2012 attorneys for both sides laid out their arguments before Judge Bradley Letts. Charles Coble represented the alliance of local media, and asserted that Moore’ defense amounted to “because I say so,” and could set a disturbing precedent, allowing law enforcement to hide any document that might at some point come up in a criminal investigation.
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Later that month, however, there was bad news. Letts, citing a technicality, dismissed the complaint with no explanation. I received the news from Elliston while covering the Democratic convention in Charlotte. At the time, I admit that I wondered if the audit would ever be public, or if the city would simply forget a matter this important, no matter how many serious issues it raised.
However, while a bit of the furor died down, the evidence room mess periodically emerged again over the years, most recently as an issue in the hard-fought Democratic primary between Moore and challenger Todd Williams, who made Moore’s refusal to release the audit a major point of criticism. The district attorney defended his actions as appropriate and promised to release the audit after Smith, who pled guilty to stealing drugs from the evidence room in March 2013, was sentenced, but Williams ended up winning by a large margin.
By the time I walked back into the courthouse to finally get a copy of the audit, the city as a whole was also drastically different from the day the news of the missing evidence broke. We had a police chief resign, a multitude of cases were thrown into doubt, the APD had to overhaul the entire way it dealt with evidence and for the first time in 24 years there’s a new D.A. on the way (though who that will be depends on the results of the November election). Fairly or otherwise, the fallout of the evidence room mess has shifted the city and its politics considerably.
On June 17, Smith was finally sentenced to ten months in federal prison for stealing drugs from the evidence room. Judge Martin Reidinger noted the evidence room theft “undermined the integrity of the criminal justice system” and cited the major public doubt and scandal caused by the matter.
As for the release of the audit justice was, in the end, done. Moore delivered on his promise and took a much more open attitude with reporters when the audit was released, answering extensive questions about the background and findings.
A few months before, Xpress had fired me in the midst of a union organizing drive, so I ended up seeing the end of this chapter of the evidence room mess working with Carolina Public Press and intern Chase Erickson instead. Still, I saw it, and I couldn’t help but smile as I walked out of the courthouse. I don’t know if I’ve ever been happier to tote hundreds of pages of documents.
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Not everyone, it should be noted, agrees with this interpretation of events. Rather than a necessary fight for open government, some Asheville City Council members, such as Cecil Bothwell — a former Xpress journalist who fought his own share of public transparency battles back in the day — declared that the system worked in this case, that the audit would reveal little and that local media were wrong to pursue their lawsuit. There was some debate within Council about the matter.
Moore asserted during the recent campaign that he did the right thing to withhold the audit until Smith was sentenced, and that any D.A. would and should have done the same.
Obviously, I feel differently, and I’ve made that plain over the years. A D.A. that can’t be bothered to answer records requests isn’t fulfilling a key part of their duties. Members of city government that declined to plainly and publicly address the evidence audit situation for far too long didn’t give the people the level of transparency they deserved in a time of crisis.
In the case of the evidence room, public confidence was rocked enough that both offices should have done far better. Sunlight is the best disinfectant; simple reassurances that everything’s being taken care of don’t cut it.
Institutions don’t correct themselves. Even in the cases where there’s no ill intended, and the people involved genuinely believe they’re doing the right thing, human beings naturally want to defend their own turf and power. They want to look good to the public, and they want to shy away from difficult or complicated situations when it’s more convenient to let things lie.
The role of the press is to not give them that option, even if in some cases it means hauling everyone involved before a judge. Goodwill is fickle; power is, in the end, only checked by other power.
In over a decade of journalism, I’ve never seen organizations — public, non-profit or business — with problems change their behavior more quickly than when they were called to account or publicly embarrassed. Even when they’ve called for the reporter’s head, they’ve often made at least some steps to correct the problem. Even in cases where they don’t change, the ensuing controversy still hits their public reputation; and sends a warning to the next politician or organization that actions have consequences.
In this case, local media did its job, cooperating extensively and going to considerable lengths to fight for the audit’s release. Media continued to stay on the case over the course of several years, right up until that Thursday a few weeks ago when they worked hard to get the long-awaited information out to the public as quickly as possible. This is an example of why a multitude of local media outlets matter, and are more sorely needed than ever.
I hope that the multi-year fight over the evidence room audit stands as a reminder of the importance of transparency — and an active media and public to enforce it. Ashevillains are paying more attention to the conduct of local law enforcement and government than three years ago. Their eye is more skeptical, and they’re just a bit more likely to care about things like open records requests or audit histories. That’s a more complicated situation — it’s also far better than where we began.
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