Judge quietly seals death records of NC man that deputies are accused of killing

Forsyth County prosecutors asked a judge Friday to prevent state records on the death of Forsyth County jail inmate John Neville from being released to The News & Observer.

The N&O was not notified ahead of time about the request for the temporary restraining order.

The records belong to the N.C. Department of Health and Human Services, not the prosecution. Prosecutors did invite a state agency and the case’s defendants to be involved in getting the public documents sealed.

“I would say that it is peculiar that there are court proceedings going on about public records requests my clients made without the involvement of my clients or me,” said Mike Tadych, attorney for The N&O.

The N&O last summer requested a series of documents, audio recordings and visuals that law enforcement gave DHHS regarding Neville’s death on Dec. 4, 2019.

A week after The N&O filed its initial request, state lawmakers filed an overnight bill that immediately passed both legislative chambers to prevent law enforcement records in DHHS custody from being public.

The bill gained national attention after lawmakers, including Sen. Paul Lowe, a Forsyth County Democrat, waited until the middle of the night to file it. That caught the attention of rapper Ice Cube who urged Gov. Roy Cooper to veto the bill.

Cooper vetoed the bill, keeping those files public.

Tadych told Superior Court Judge Greg Horne in July 2020 about the peculiar timing of Senate Bill 168 when he argued for the release of videos in the Forsyth County Sheriff’s Office’s custody that showed what led up to Neville’s death.

Tadych will represent The N&O again in a hearing Monday on whether the records should stay sealed.

Neville’s death

It wasn’t until Tadych sued for the videos on behalf of The N&O in May 2020 that the Forsyth County District Attorney’s Office or the Forsyth County Sheriff’s Office acknowledged Neville’s December death.

Eleven other media outlets, including The New York Times, the Associated Press and TV stations in Raleigh, Charlotte and Winston-Salem, joined the lawsuit.

On July 7, 2020, the Office of the Chief Medical Examiner released an autopsy report that confirmed Neville, 56, died from a brain injury caused by cardiac arrest from positional and compressional asphyxiation three days after officers placed him in a prone position while he was suffering from a medical issue at the jail.

A day later, Forsyth County District Attorney Jim O’Neill charged five deputies and a nurse with involuntary manslaughter in Neville’s death.

Horne did grant the release of some body-worn camera footage from the jail.

The video showed deputies responding to Neville who had an unknown medical emergency, thought to be a possible seizure.

Deputies placed Neville onto his stomach with his legs raised to his ankles, known as prone restraint. His arms were in handcuffs and deputies knelt on his legs and back as they held him in place. The video shows deputies eventually trying to free Neville from the handcuffs but their keys and a bolt cutter broke in the process.

For three minutes Neville told deputies he couldn’t breathe and begged them to help. After a fourth minute he stopped moving.

It took another 12 minutes before deputies realized his heart had stopped and he wasn’t breathing, according to the autopsy and the video.

DHHS records

The N&O first learned about Neville’s death in March 2020 when he was listed in DHHS records as an in-custody death. After questioning DHHS, the newspaper learned it was mislabeled and that he died out of custody.

In May, The N&O learned about the SBI investigation and learned from agents that Neville had become unresponsive at the jail but deputies had a judge sign off on his release so when he died at Wake Forest Baptist Medical Center in Winston-Salem, the death was listed as out of custody.

When DHHS and O’Neill failed to answer requests from The N&O ahead of charges being filed, reporters began filing public records requests with various agencies including DHHS.

On June 16, 2020, The N&O filed a public records request with DHHS asking for all documentation on Neville’s death, including any investigation by DHHS and its Construction Section and all electronic and written correspondence with Forsyth County officials.

A second request filed July 13, 2020, asked for all law enforcement records submitted between July 13, 2019, and the present to the Office of the Chief Medical Examiner in relation to a death investigation.

A third request filed July 31, 2020, asked DHHS for law enforcement records including all video and audio recordings provided to the Office of the Chief Medical Examiner and/or Patrick E. Lantz, M.D. in Neville’s death.

The latter request was made on behalf of the media coalition seeking to get the deputies’ videos released.

None of the reporters heard anything other than acknowledgment of the requests until late Monday.

Public records sealed

The N&O received two emails, both from Assistant District Attorney Elisabeth Dresel, saying O’Neill’s office, DHHS and the defendants had gone before Judge David Hall on Friday to get the temporary restraining order on the records.

“Given the effort to get the videos released all of this comes as a surprise as we have not heard anything until now,” said Tadych, The N&O’s attorney.

Dresel emailed Tadych on Tuesday afternoon to say she had only learned about the public records requests a week earlier and had 24 hours to make a decision about getting a restraining order before the records were released to The N&O.

“Our office only recently became aware of the request for these records, and, as it appeared that at least some of them may be protected, we filed the objection and requested the temporary delay until a judge can sort out what is appropriate for release,” Dresel wrote. “It was my understanding, at least, that a request for a temporary protective order can be filed ex parte. Given the fact that we were told we had one business day before items might be ready to be released, we proceeded in that manner.”

In court documents, Dresel listed what she believes is included in those files including the complete SBI report, investigating notes, files and personnel reports, Neville’s medical records, the report on the internal investigation from the sheriff’s office and related statements from officers, among other things.

Chris Clifton, an attorney for the Neville family, declined to comment other than to say he trusts O’Neill’s judgment.

O’Neill told The N&O on Tuesday that he wanted to ensure that the defendants get a fair trial by a judge and jury and that it is not influenced by “the public lexicon.”

“Out of an abundance of caution we scheduled a public hearing to allow a Superior Court judge to determine whether or not the information contained in the files can or should be turned over to the media,” O’Neill said.

A hearing is scheduled for 1 p.m. Feb. 8 in Winston-Salem.