DA hopefuls respond to Report questions

A new district attorney for Iredell and Alexander counties will be named on Tuesday.

Though the general election is still six months away, three Republicans – Sarah Kirkman, Alan Martin and Michael Van Buren – are vying for the DA position. And since a Democrat is not running in that race, the May 6 primary will decide the winner, said Iredell County Elections Director Becky Galliher.

Last Friday, I submitted (y)our questions to the three DA candidates, asking that they respond by 5 p.m. today. Two candidates – Kirkman and Van Buren – responded within two days. Martin has not responded.

(The candidates for county commission were asked to respond to their list of questions by tomorrow evening. I will post their responses by the end of this week.)

In the meantime, for more information on the three DA candidates, visit their websites:

Sarah Kirkman www.kirkman2008.com
Michael Van Buren www.vanburenforda.com
Alan Martin www.alanmartinforda.org

And without further ado, here are (y)our questions of the DA candidates ... and their answers:

Question #1
In September 2005 – amid awake and involved citizens in our community asking repeated questions about the finances of the Mooresville Municipal Golf Course – the Mooresville Tribune reported that District Attorney Garry Frank was reviewing the State Bureau of Investigation’s report detailing the findings from its investigation into the finances of the golf course.

Mooresville commissioners in May 2005 requested the SBI investigation after an independent audit of the golf course pro shop turned up nearly $9,300 in missing golf merchandise over an 8-month period during fiscal year 2005. During a follow-up inventory count, $4,545 worth of that merchandise was “discovered.”

Mr. Frank said in a September 2005 Tribune article: “I have received the report, and I’m in the process of reading it. Upon concluding the studying of the report, I will decide whether there are any further investigative activities I would request of the SBI, and at the conclusion of the investigation, I will make a decision on what, if anything, will be pursued for prosecution.”

To this day, the details of that investigation or Frank’s decision have not been divulged to the town’s taxpayers and, to the best of anyone’s knowledge, any town officials.

Whose desk has that report been sitting on for more than two years? Do you feel that this is acceptable? Would you have handled it differently? How so? If you are elected DA, will you make a commitment to the Mooresville public to release the results, or at least update us on that investigation?

Kirkman: I do not know what, if anything, was done in regards to that investigation. If I am elected district attorney, I will make a commitment to update concerned citizens as to the progress of a criminal investigation where appropriate.

Van Buren: Some of what you are asking I cannot comment on because I do not work in the Iredell County District Attorney’s Office. I can only answer as to my experiences and to the policies I would adopt as your District Attorney.

When I worked in Caldwell County as an Assistant District Attorney, we had a policy that every felony case summary that was turned into the District Attorney’s Office was either accepted or rejected for felony prosecution within 10 days. When that ten day time period expired, either an indictment was submitted to the grand jury or a letter was sent to law enforcement explaining why the case was not accepted for felony prosecution.

In Rowan County, where I currently work as an Assistant District Attorney, we have a probable cause system where every case goes through District Court for a judge to make a determination as to whether there is sufficient merit for felony prosecution. Once a felony case is sent to Superior Court by either being bound over by a hearing where a judge finds probable cause, or by waiver where the defense attorney does not contest probable cause, the case is sent to the next grand jury for indictment. In Rowan County our Grand Jury meets about one time per month.

In either of the systems I worked in, things would have been done differently. There are some rare cases that do not follow either of the paths indicated above; however, I am not aware of any case in either district I worked that has taken more than two years to decide on whether or not to prosecute. Most decisions are made in days not years.

If elected as your District Attorney, I would adopt the probable cause system similar to Rowan County in screening cases and, absent extraordinary circumstances, make a decision about prosecuting a case in just a few days.

I have been taught by the elected District Attorney in Rowan County William Kenerly to never ignore the media. If elected District Attorney, I will not ignore the media. When it is appropriate and the law allows, I will keep interested media members up to date and in situations when it is inappropriate to make comments or the law prevents me from making comments, I will articulate this fact to interested media members.

Martin did not respond.

Question #2
What is the new district attorney going to do about cases being continued? Also, what are you going to do about one of the government’s most important duties: putting criminals in jail and keeping them there to protect the public?

Kirkman: Which cases? And for what reason? Unfortunately, there is no one formula that will work for determining when cases get continued, as each case is different, with different underlying facts and circumstances. And, ultimately, the judge decides whether a case may be continued or not. There are numerous reasons a case may get continued, but as district attorney, I will work to make sure that the State is ready to proceed on its cases. Part of the process of determining when cases will be continued will be communicating with law enforcement agencies about turning in reports in a timely manner and communicating with other officers of the court to develop procedures and guidelines for continuances in criminal court.

As district attorney, I will seek appropriate punishment for all defendants. The legislature and the judges have more to do with whether defendants go to jail than the district attorney’s office, but in cases where the defendant is a repeat offender or a sexual predator of children, I would certainly try to get a prison sentence where appropriate to protect the public. My job as a prosecutor is to do justice – and when that means that a defendant belongs in prison, I would certainly do all in my power to see that that happens.

Van Buren: It is an unfortunate fact of our court system that cases are going to get continued for various reasons. In my experience, more cases get continued because the defense is asking for a continuance rather than the State. When appropriate, I will ask my assistants to object to continuances by the defense and limit the continuances that they request. I had a murder case scheduled in March of this year, but the defense attorney’s wife had to undergo surgery to remove tumors inside her head. The defense attorney asked for a continuance because the trial was set to start the day prior to her scheduled surgery. This is an appropriate situation to consent to a continuance. On the other hand there are going to be times when the State is going to have legitimate reasons to ask for a continuance when witnesses become unavailable for hospitalization, military service and like problems. Absent these extraordinary circumstances, I will expect my staff to be prepared and ready to prosecute.

Sometimes continuances occur because of time restraints; there are not enough hours in the day to handle every case on a large docket. Some continuances can be resolved by how court is organized. Please see my answer to question 6 for organization of court and solutions as a way that, under my management as your District Attorney, continuances would be lessened and more criminals prosecuted.

Martin did not respond.

Question #3
How can the judicial system ensure that violent criminals be punished to the fullest extent of the law, especially as the state has difficulty with providing adequate prison space?

Kirkman: I can only speak for one part of the judicial system – the district attorney’s office. As district attorney, I will work to see that violent criminals be punished to the fullest extent of the law where appropriate, regardless of the issue of prison space. As I have said before, the legislature and the judges have more control over sentencing than the district attorney, but as prosecutors, we can work to present the best case possible in these instances of violent crime.

We can expend more time and resources on these types of crime, as these defendants are the ones who threaten the very safety of our community.

Van Buren: The District Attorney cannot ensure that violent criminals are punished to the fullest extent of the law because punishment is up to the judge hearing a case. The District Attorney can, however, prosecute violent criminals to the fullest extent of the law by using aggravating factors to attempt to motivate a judge to give a greater sentence than normally given for that same crime.

According to a recent conference that Rowan County District Attorney William Kenerly attended, North Carolina has the second lowest incarceration rate in the South. Space in the North Carolina Department of Corrections (prison) is a problem, but the greater problem is space in our jails. Prison is where a person goes when convicted of a crime and jail is where one stays awaiting for trial or to enter a plea. When a District Attorney allows overcrowding in our jails to factor into plea-bargaining, then the criminals have taken over our justice system. If that strain causes the District Attorney to make decisions that may allow violent offenders to receive probation as opposed to an active sentence, then the public becomes at risk.

If elected District Attorney, I will not allow jail overcrowding to motivate me to resort to irresponsible plea-bargaining, thus more likely putting a judge in a situation to give a sufficient active sentence based on the sentencing guidelines that all judges must follow. When appropriate, I will seek and motivate my staff to seek aggravating circumstances against violent offenders to attempt to get maximum sentences.

Martin did not respond.

Question #4
How do you propose that your tenure as District Attorney will provide the most effective deterrent to crime in our district?

Kirkman: Probably the best deterrent to crime is to send criminals to prison when appropriate so that they are not out in society committing other crimes. A way to do this is to target repeat offenders, sexual predators of children and violent criminals by expending more resources and time on the aggressive and timely prosecution of these offenders.

Our office must also work with the federal authorities to obtain harsher penalties where possible and deport illegal aliens who commit crimes. Having a good relationship with law enforcement officers will also help in this regard because officers will know that their cases will not be taken lightly and that if they have any questions or need assistance, our office is there to help them.

Van Buren: I am the only candidate to publicly bring to light some of the problems with the District Attorney’s Office. At times, I am the only candidate that seems to believe that problems exist in the District Attorney’s Office. In order to be effective in the deterrence of crime, you must be tough on crime. Dismissing twice as many cases than taking guilty pleas in District Court is not being tough on crime. Accepting only about 35% of the felony cases being submitted by law enforcement for prosecution at the felony level is not being tough on crime. Fostering a dismissal rate in Superior Court of almost 1/3 after you have dismissed or pled out as misdemeanors half of the felony cases submitted for prosecution is not being tough on crime. Averaging less than 1 murder trial per year for the last 8 fiscal years is not being tough on crime when you have 22 pending murder cases as an accumulation of those last eight years. Having less weeks of court than many counties surrounding Iredell County limits how tough you can be on crime. I recognize that the Iredell County District Attorney’s Office has not been tough enough on crime.

To be a deterrence on crime I will be tougher on crime by: 1) reducing the number of dismissals in both district court and superior court; 2) accepting more felony cases for prosecution than is currently being accepted; and 3) advocating for more court time to try more cases—including murder cases. I have worked in two different prosecutorial districts, neither being perfect, but both tougher on crime than Iredell County’s District Attorney’s Office. Iredell County needs to learn that being tough on crime works.

Martin did not respond.

Question #5
Would you reinstate the death penalty?

Kirkman: The death penalty is in effect now under North Carolina law. I do support the death penalty, and as district attorney, I would seek the death penalty when possible. By law, every murder case is not eligible to be a death penalty case, but I would seek the death penalty in those cases that qualify.

Van Buren: I am guessing that your question is a little tongue and cheek since we still have the death penalty in North Carolina, although it has not been sought in Iredell County in a long time. I will seek the death penalty when appropriate aggravating circumstances exist to warrant the imposition of the death penalty. I have capital case trial experience and capital case trial training.

I am surprised by my experiences in Rowan and Caldwell Counties that more capital cases have not been tried in Iredell County. I realize that not all first degree murder cases warrant the death penalty under North Carolina law, but with the number and frequency of murders in Iredell County, you would think that some of those murder cases throughout the years would have warranted the death penalty.

Martin did not respond.

Question #6 to Van Buren only
Mr. Van Buren: Some accuse you of being “all problems” and “no solutions.” And responding to the statistics that you are sharing while campaigning, your opponent(s) say that statistics don’t tell the whole story. What’s your response?

Van Buren: Since the beginning of my campaign, I have provided in detail the ways in which I would do things different. I have not only pointed out the problems of this District Attorney’s Office, but have given examples of how things are being done better in other places. Often times I use Caldwell County as an example of how to organize Superior Court and Rowan County as how to organize District Court. Neither County is perfect, but they gave a good guide as to how some things can be done different and how we in Iredell County can get better results.

Statistics may or may not give the whole story, but are very helpful in trying to understand the whole story. My opponents have now adopted the buzzword “dangerous” in dealing with statistics. The only thing dangerous about the statistics of the Iredell County District Attorney’s Office is to the citizens of Iredell County and the campaigns of my opponents who bear responsibility for the statistics.

If not for the alarming information I provided by statistics, many would think that things are going well in the Iredell County Criminal Court System. One of my opponents has even commented that the system in Iredell County is a good system. One thing that the statistics demonstrate is that Iredell County is soft on crime. Thus, who is the Iredell County system good for? I have published my solutions on my website www.vanburenforda.com under the solutions tab, on the Record and Landmark website and the Charlotte Observer Iredell Neighbors website. Although I call the way I would do things solutions, they are not actually solutions; our court problems will always exist, it is just a different way of doing things to get better results than what we are currently getting.

Here is my proposal on how to change the current system in Iredell County:

I will reorganize court by first establishing a modern case docketing plan in Superior Court that will allow for: 1) more weeks of Superior Court, forty (40) if possible, twelve (12) of which will be non-jury administrative court; 2) setting clear principles for the expectations of the District Attorney’s Office for plea bargaining and complying with certain laws such as Discovery; and 3) allowing assistants to commit to the aggressive prosecution of felony cases and not accept a culture of indifference.

I would then establish a case docketing plan in District Court that will: 1) segregate law enforcement initiated cases from private warrants and from probation violations, so assistant district attorneys can concentrate more effectively on similar cases and law enforcement is not wasting time sitting in court rather than policing; 2) advocate for H and I felony pleas to be done in District Court to help resolve victims cases quicker; 3) establish probable cause court in District Court for all felony cases to go through in order to have a judicial official determine if probable cause exists for felony prosecution; 4) commit to prosecuting cases that probable cause is found in District Court as felonies, absent extraordinary circumstances. Provide ongoing training and support to agencies involved in the prosecution of cases in order to strengthen relationships and have mutual understanding about job responsibilities. Get involved with grant writing and other ways to raise monies and awareness of the current limitations in our court system by drawing attention and revenue for attacking ongoing problems.

Question #7 to Martin only
Mr. Martin: You have been lauded as being the assistant DA who successfully prosecuted a cop killer, Misty Witherspoon. But I don’t believe I’ve ever seen your response on the record as to why you offered her a 7-year plea deal.

Many in the Mooresville community believe it’s because the Mooresville Police Department mishandled key evidence in the case, including allowing the Witherspoon family to dispose of the couch where Quinn Witherspoon was murdered within a day or two after he was killed.

You tried to strike a 7-year plea deal with a murderer, and there’s no getting around that. Either the DAs office was willing to let a murderer walk after only seven years, or for some reason, you didn’t feel – at the moment you offered her that deal – that you had sufficient evidence to fully, successfully prosecute.

Also, the DAs office was interestingly silent about the fact that our police chief, John Crone, was on television within hours after that murder basically calling it an accident [about three hours after Witherspoon’s murder on Sept. 13, 2005, Crone was on the 5 p.m. news, stating that police had “no reason to believe there is any foul play.” He repeated that in a press conference later that afternoon], which potentially could have tainted the jury pool. Crone also issued a statement once Misty Witherspoon was indicted, publicly expressing his sympathy for the accused, asking us to remember she’s innocent until proven guilty [specifically, he asked the general public to "not pre-judge Misty until she has had a chance to defend herself in a courtroom"], and asking us to keep the Witherspoon family in our prayers. The DAs office was also interestingly silent when our police chief and a few officers, in an interrogation room [on Oct. 5, 2005], hugged Misty Witherspoon after she had apparently changed her story. [The video of that particular interrogation was played in the courtroom during Witherspoon's trial.]

Is this typically the way that police officers treat murder suspects? Would this be the treatment that an African-American or a poor, “unconnected” person would have received? Why did the DAs office try to strike a 7-year plea deal with a murderer? Why did the DAs office not take a public stance against what appears to be negligence on the part of our police department? And why did the DAs office not denounce the police department’s clear preferential treatment of Misty Witherspoon, an act that could have put our community at a great risk by releasing a cold-blooded murderer into our midst?

Martin did not respond

Question #8 to Martin only
Mr. Martin: Many people in Mooresville believe that you mishandled the investigation of Interim Town Manager Erskine Smith in 2002. As you will recall, a Mooresville citizen blew the whistle on our library director, who – thanks to the efforts of that citizen – was later indicted on embezzlement charges.

The day that the library director, Karen Khan, was dismissed from her employment with the town (on a Friday), it had been made clear to Erskine Smith (the assistant town manager at that time) that a criminal investigation by the Mooresville Police Department was underway. Yet bright and early on Monday, Smith (who has never been known to frequent our public library) showed up at the library and disappeared into Khan’s office. According to eyewitness accounts, he reappeared some time later, carrying full trash bags. What’s more, this happened before the investigative officer, Carl Robbins, went through Khan’s office for investigative purposes. Smith was fully aware that Carl Robbins was the investigative officer in the case, and Smith could have – and SHOULD have – called Robbins to go through that office first.

As I understood it from my predecessor at the Tribune, who extensively covered the library scandal, one source told him that eyewitnesses told you that Erskine Smith was in the library office for several hours and left with full trash bags. But when you asked Smith about it, apparently Smith – Khan’s boss – said he was merely “cleaning old magazines” out of Khan’s office. Smith also admitted to you that he was aware that a criminal investigation was underway at the time and that he knew he was going through her office even before the criminal investigator had.

To this day, no one – arguably, except for you – knows exactly what Smith carried out of that office and why he was allowed to do it. Yet you absolved Smith by saying that there wasn’t enough evidence to pursue it. And later, you apparently attempted to justify your actions to a Tribune source, saying that you “attended Lunch Rotary with Smith,” basically suggesting that your relationship with him trumped your duties as a public prosecutor.

Many people in the Mooresville community feel like Erskine Smith committed obstruction of justice and that you treated him preferentially. They believe that had you handled that situation correctly and more courageously, this town would have been saved a great deal of money and heartache. You had the power at that point to make sure Erskine Smith was properly held accountable, but you did not exercise that power because reportedly, you were in “Lunch Rotary” with Erskine Smith. And now, our town is stuck with him as an interim town manager making more than $100,000 a year while he is wasting our tax dollars by throwing business, to the tune of a-quarter-of-a-million dollars, to his undeserving friends.

Many people conclude that we’re in such a situation with Smith because of your single failure and inaction.

What is your response? Did your relationship with Erskine Smith influence your decision to absolve him? Do you feel you treated him preferentially? What will you do as DA to restore the Mooresville public’s confidence that you’re willing to investigate and potentially prosecute white-collar crime?

Martin did not respond.

Question #9 to Kirkman and Van Buren only
Mrs. Kirkman and Mr. Van Buren: Your opponent, Alan Martin, is clearly under fire for the strong perception among the citizens of the Town of Mooresville that he has been soft on white-collar crime, and for apparently doling out preferential treatment to people in positions of power. If you are elected, what assurances can you give to the citizens of Mooresville that you will investigate and fully prosecute white-collar crime in Mooresville, whether it is committed by a citizen or a public official?

Kirkman: I think it goes without saying that it is the duty of whoever is elected district attorney to “investigate and fully prosecute” any crime committed anywhere in our district, whether it be committed by a citizen or a public official. The fact that a crime is committed by a public official should have no bearing on the attention it receives. It may require special agencies to investigate it to prevent the appearance of any conflict of interest, but if elected, I will see to it that crimes are prosecuted regardless of the status of the alleged offender.

Van Buren: If elected District Attorney, I will prosecute all crimes whether misdemeanor, felony, violent or white collar. I have tried embezzlement cases and insurance fraud cases as an Assistant District Attorney. A person’s status will not be a barrier to prosecution in my office. I was the Assistant District Attorney who prepared the presentment and signed the Indictment of the former District Attorney in Burke, Caldwell and Catawba Counties, who came from a very strong Republican family known throughout North Carolina, to the Grand Jury of Caldwell County. No criminals will be safe under my administration.