Noise case could spawn contempt-of-court action

Mar. 27, 2013 @ 07:33 PM

A judge is mulling the possibility of launching a contempt-of-court proceeding over the way the prosecution of a city noise-ordinance ticket against a south Durham church fell apart.

District Judge Pat Evans on Monday signed a court order saying that she wants to determine “whether any false information was provided to” her about why a witness for the prosecution wasn’t in court to testify against newhope church.

She directed the district attorney’s office to subpoena newhope neighbor Aleida Alvarez and a lawyer for some of the church’s neighbors, David McKenzie, in time for them to testify at an April 9 hearing.

The order said Evans was initiating the inquiry on her own authority, rather than at the request of any party to the case, and she wants to question Alvarez and McKenzie before deciding whether to “proceed further” under the state’s criminal contempt-of-court law.

The judge’s move follows up on a March 12 hearing that saw her dismiss charges alleging that newhope and its pastor, Benji Kelley, violated the city’s noise ordinance. The charges stemmed from a long-running dispute between the south Durham church and some residents of the Hills at Southpoint subdivision.

The dismissal came after Assistant District Attorney Jonathan Jones told Evans that Alvarez, in his words “a necessary witness,” was not available that day to testify against the church.

Jones sought a continuance, but Evans refused. The prosecutor then requested a voluntary dismissal of the charge, a motion that Evans converted into a dismissal “with prejudice” that barred the DA’s office from resurrecting the case.

Separate orders filed Monday by Evans indicated that she deemed prosecutors to have violated the speedy-trial rights of Kelley and the church.

It was not clear, from the orders Evans signed, who exactly she considers a target of any potential contempt-of-court action.

Jones on March 12 told the judge that Alvarez was pregnant and due soon to deliver her child.

He also told Evans that he’d requested a subpoena for Alvarez to testify against the church, but had been unable to obtain confirmation from the Durham County Sheriff’s Office that it had been served.

But Evans in her various orders said McKenzie had attended the March 12 hearing, signaled “that he desired to assist in the prosecution” and “at no time” told either her or the church’s lawyers that Alvarez was unavailable.

She said it was clear McKenzie, lawyer for Alvarez and several other neighbors, “had actual notice of the scheduled trial date.” Jones may have been relying on information from McKenzie when he said Alvarez was unavailable, she said.

The judge also said a local television station had reported interviewing Alvarez and being told by her that “she did not know to come to court because no one had contacted her and informed her to be present.”

Evans’ comment was an apparent allusion to a WNCN report that quoted Alvarez as saying she hadn’t been subpoenaed.

There were questions raised in court on March 12 about why Alvarez was needed at all, because the case against Kelley and the church rested on noise measurements taken by Durham police. Officers were on hand to testify.

The church’s lawyer, Bill Thomas, said during the March 12 that he didn’t see that prosecutors had to wait on Alvarez. Contrary to Jones’ opinion, she was “not a necessary witness,” he told Evans.

Evans signaled, in orders formally dismissing the noise cases against Kelley and newhope, that she wasn’t happy with Jones’ handling of them.

She accused the prosecutor of trying to go behind her back in late February in hopes of having the March 12 hearing rescheduled, to a date when another judge would end up presiding.

If Evans opts to invoke the contempt of court statute, she’d be deploying a weapon used in Durham most famously in 2007.

That year saw a visiting judge sentence former District Attorney Mike Nifong to a day in jail for having lied in court about the Duke lacrosse case.

McKenzie and Thomas both declined comment Wednesday on Evans’ move. Jones’ boss, former judge and Acting District Attorney Leon Stanback, couldn’t be reached for comment.

State law requires judges who invoke the contempt-of-court rule to hold a hearing giving its target or targets a chance to offer a defense.

It also bars judges from forcing targets to testify against themselves.