Author Jerry Bledsoe, lawyer Seth Cohen and Rhinoceros Times Editor John Hammer leave a Guilford County courtroom on Tuesday.
Judge Edgar Gregory of Wilkes County said yesterday he will take about three weeks to decide whether to grant a motion to compel filed by two black Greensboro police officers seeking to obtain recordings, transcripts and other documents made by Officer Scott Sanders over a seven-year period.
Capt. Brian James and Officer Julius Fulmore are seeking the documents as part of a defamation lawsuit against author Jerry Bledsoe and The Rhinoceros Times.
The hearing yesterday in Guilford County Court was notable in that it featured lawyers for The Rhinoceros Times and the city arguing on the same side. Bledsoe’s “Cops In Black and White” series, whose publication in the weekly newspaper began more than three years ago, has taken a critical stance against city administration.
The newspaper and the city have found themselves making common cause in that the city is also a defendant in separate lawsuits filed by James and Fulmore related to Sanders’ activities as an investigator in special intelligence during the administration of former Chief David Wray. Arguing for the city on Tuesday were Assistant City Attorney Jim Clark and outside counsel Alan Duncan.
Bledsoe and The Rhinoceros Times are represented by lawyer Seth Cohen, who also represented Sanders during a criminal trial earlier this year that resulted in his acquittal.
Sanders listened to the proceedings from the gallery, and conferred with Cohen, Bledsoe and Rhinoceros Times Editor John Hammer during a break from the hearing.
“Mr. Sanders is the investigator who at the behest of Wray and [former Deputy Chief Randall] Brady, targeted my clients by following them, recording them, and secretly getting into a computer,” plaintiff lawyer Amiel Rossabi told Judge Gregory.
James and Fulmore subpoenaed the city in March 2008 for all recordings and transcriptions made by Sanders from 2003 to the present, including any that include statements made by or about the plaintiffs. They also asked for all recordings made by Sanders that were seized from the Guilford Building in downtown Greensboro.
On Monday, the city filed an affidavit by Officer David Stewart, a detective who is assigned to internal affairs. Stewart’s affidavit states that the department reviewed and transcribed more than 144 hours of recordings that could be relevant to the subpoena.” The city handed over an accordion file of documents to Rossabi on Tuesday. Stewart stated that the documents produced by the department did not include personnel records or records containing criminal intelligence.
To appreciate the morass of documents in the police department’s possession, consider that Sgt. Nathaniel Davis, one of the internal affairs officers responsible for the administrative investigation, reported to his commander in October 2008 that the criminal investigations division advised that it has a terabyte of data on a computer, 55 boxes, five 3” binders and 5 2” inch binders accumulated in the department’s criminal investigation of Sanders’ activities during the Wray administration. The professional standards division, which holds administrative documents from the investigation, has 111 gigabytes and 4,668 pages of documentation relevant to the request.
The city contends it has no documents responsive to one aspect of the request.
An affidavit by Sgt. Davis, states that he was one of the officers who entered the Guilford Building, and that no recordings, documents or other information were seized from that location.
In September, the city requested a protective order, asking the courts to limit what it was required to release, arguing that some of the documents include protected personnel information, and material from criminal investigations and criminal intelligence activities.
“I can tell you that confidential informants are identified,” Clark argued before Judge Gregory. “There’s also an overarching federal concern. A lot of the criminal matters have to do with OCDETF [organized crime drug enforcement task force] matters. I don’t even want to get anywhere near releasing that. I have no desire to spend any time in federal prison.”
Rossabi recapped the central themes of his argument for Judge Gregory’s benefit.
“Bledsoe says, ‘The reason I wrote these article is to restore Wray’s reputation, get [former City Manager] Mitch Johnson fired and to show that political correctness is the order of the day in Guilford County,” Rossabi said, adding that he believes the author’s motive was something other than to get to the truth.
Rossabi told the judge that in contrast to a claim by the city that it would take a year to transcribe the relevant tapes, he believes the city had been working on them “for quite awhile” before receiving the subpoena. He further argued that the city was trying to get around releasing the documents to avoid embarrassment, considering that it had commissioned an outside agency to conduct an investigation into allegations of discrimination, which was sustained by the Equal Employment Opportunity Commission, and provided the basis for lawsuits against the city by both clients.
“The city is trying to do as much damage control as possible, and they’re doing it on the backs of my clients,” Rossabi said.
James and Fulmore had previously attempted to obtain Bledsoe’s reporting notes. Earlier this year, the NC Court of Appeals upheld a trial court ruling by Judge Brad Long that the reporting notes were privileged documents that were protected.
“I have to prove actual malice,” Rossabi said. “I have to prove knowledge that the statements were false or reckless disregard of the truth in these published statements. Judge Long said, ‘You’ve got other places where you can get this information.’ I went to other places to get the information.”
Cohen argued that the plaintiffs were taking a “backdoor” approach to obtain the same material Judge Bradford Long told them they couldn’t have.
“They have to do something to get over the ‘privilege hump,’” Cohen said. “It’s the same request in a different outfit.”
Arguing for the city, Duncan said, “As to the plaintiffs’ claims that Wray and Brady are quoted extensively in these articles, depose them. That’s your alternative.”
Rossabi acknowledged that the materials sought by his client would probably be too cumbersome and time-consuming for a superior court judge to review to determine what documents might be relevant to his clients’ lawsuit, so he suggested that he could do it himself.
“I’ll listen to these tapes,” he said. “I’ll go through these folders and binders. I’m an officer of the court.”
Rossabi also suggested that the city is being disingenuous in its claim that the materials include protected information about criminal investigations.
“Scott Sanders, who’s in court today, he’s one of two defendants who were indicted,” Rossabi said. “A jury acquitted him of one of the charges, and the other was dismissed by the state…. His criminal charges are gone.”
Rossabi also countered the city’s argument that the documents contain protected personnel information, noting that some of the other black officers investigated by Sanders are plaintiffs in a discrimination lawsuit involving 39 or 40 plaintiffs against the city. John Bloss, a lawyer for the 39 or 40 black officers handed Rossabi a note at one point, after which Rossabi announced that the officers had agreed to waive their confidentiality.
Rossabi said he believes the Sanders recordings will show that Bledsoe’s reporting was inaccurate.
“The strange thing is that Mr. Cohen, because of his defense of Mr. Sanders, already has this,” Rossabi said. “And he’s also representing Mr. Bledsoe and The Rhino Times…. When the defendants’ lawyer has it and it’s able to get in the hands of a weekly newspaper, then they can publish it all over again, and I can’t have it.”
Cohen responded by denying that he has provided any privileged material from Sanders’ criminal trial to Bledsoe and The Rhinoceros Times.
In a preview of his arguments if the case goes to trial, Rossabi showed Judge Gregory a transcript of a recorded conversation between Sanders and Brady as an example of the kind of material the city might have and its relevance to the black officers’ complaint.
“The recordings shows that Chief Wray had trouble with a neighbor,” Rossabi said. “Chief Brady tells Scott Sanders to do something about it. Brady says Chief Wray knows about it, but if anyone asks, don’t implicate Wray.” Rossabi went on to read some of the allegedly defamatory statements in Bledsoe’s series, and then to contend that the author would likely tell the court that Wray and Brady were his primary sources for much of the material. Relying on such sources, Rossabi contended, could be considered a reckless disregard for the truth.
“Mr. Rossabi has made unsubstantiated allegations that Mr. Bledsoe must have known that everything he wrote was a lie, that John Hammer knew that what he was publishing was a lie,” Cohen retorted. “He has everything in his possession that Mr. Bledsoe relied on to write his articles. He has to show actual malice. He thinks he’s going to listen to all these recordings, and then say, ‘Oh, here it is, judge. Here’s what I’ve been looking for.’ This is a quintessential fishing expedition.”
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