By Kelan Lyons
After two Asheville journalists were convicted of trespassing last month, their lawyer, Ben Scales, said he would get a bevy of documents and records before his clients appealed to Buncombe County Superior Court.
On May 1, Scales attempted to make good on that promise, subpoenaing a long list of items from the Asheville Police Department.
The City of Asheville and the Buncombe County District Attorney’s Office, however, have each indicated they have “no intention of complying,” according to a motion Scales filed in court last week.
A judge found Scales’ clients, Matilda Bliss and Veronica Coit, two reporters for the leftist news outlet The Asheville Blade, guilty of trespassing in district court on April 19. The journalists had been arrested while reporting on police presence in Asheville’s Aston Park on Christmas night 2021, as officers removed protestors and at least one homeless person from the park after it had closed for the evening. Bliss and Coit were the first of six people arrested that night; 16 were ultimately charged with felony littering in connection with the protest at the park.
During that trial Scales argued Bliss and Coit were targeted because of their publication’s police abolitionist views and because police did not want any witnesses to their actions that night. Scales’ motion for discovery makes clear he will try to make that argument in Bliss and Coit’s appeal, at a jury trial in Superior Court scheduled for next month.
On May 1, Scales submitted a long list of items for subpoena from the Asheville Police Department. Among the items he requested:
- “Any information” that shows bias or hostility toward Bliss or Coit exhibited by prospective witnesses for the state,
- Facts surrounding the Asheville Police Department’s pretrial identification procedure in connection with the case, where an alleged witness did not identify Coit or Bliss,
- Any statements made by witnesses for the state that are inconsistent with what they are anticipated to testify at trial,
- The complete prior criminal and juvenile records of all witnesses who might testify for the state,
- Disclosure of all investigations ongoing or completed within the last seven years that deal with alleged misconduct of any type committed by police or civilian personnel who handled or dealt with custody in this case,
- Copies of all things within the possession of the Asheville Police Department and City of Asheville that pertain to the case,
- All documents, emails and text messages relating to the relationship between the Asheville Police, the City of Asheville and the media that are related to the city’s handling of issues related to protests, poverty, mental health, illegal camping and “other related issues,”
- All documents, emails and text messages relating to a “Reimagining Public Safety” initiative and the survey related to it that officials released in 2020,
- All documents, emails and text messages involving any Asheville Police Department employees relating to the events that transpired at Aston Park on Christmas night, 2021,
- An array of information about a laboratory scientific testing facility, including the names and addresses of all personnel employed there and a description of each proficiency testing program and testing results in which the lab has participated in the past year, and
- All discovery released “and/or should have been released” to any of the defendants in the felony littering cases.
The city pushes back
The City of Asheville objected to Scales’ subpoena in writing three days after he filed it.
“The City fully supports any criminal defendants’ right to a fair judicial process, and, therefore, will continue to provide the District Attorney’s Office with whatever records or other assistance it may need to comply with the State’s obligations” under applicable law, wrote John B. Maddux, Asheville’s deputy city attorney. “The City must, however, object to this patently improper subpoena, and insist that it be immediately withdrawn.”
Maddux wrote that Scales was seeking discovery from the City of Asheville, but it was the state – meaning the Buncombe County District Attorney’s Office – and not the city’s responsibility to turn over the documents in its possession. Maddux wrote that Scales’ subpoena “subjects the City and its personnel to an undue burden or expense, is procedurally defective, and is otherwise unreasonable.”
Central to Maddux’s argument is that Scales’ clients are not entitled to such broad-ranging discovery because the case originated in district court. There is no statutory right to discovery in district court “that overcomes the confidential nature of these documents despite your clients’ appeal to Superior Court,” Maddux wrote.
Plus, Maddux said, the documents and information Scales requested contained plans on preventing or responding to “criminal, gang, or organized illegal activity.”
(At a district court trial of one of the protestors held earlier this year, a prosecutor with the Buncombe County District Attorney’s Office argued that the people at the park were engaged in a large, planned protest to draw attention to homelessness in the city.)
What’s more, Maddux wrote, Scales’ subpoena asked the city to turn over whole categories of records, not specific items relevant to the case. He accused Scales of casting a wide net so he can look through the records for evidence to help his case, a “fishing expedition” that is an improper use of a subpoena.
Maddux warned Scales in his court filing that if he asked the court to compel compliance with the subpoena then “the City will be forced to ask that the Court not only quash it, but also, given the degree to which this subpoena deviates from acceptable legal standards, ask that it issue sanctions … for costs incurred by the City in responding to this subpoena.”
Scales did just that on May 11, asking the court to order the state to comply with his discovery requests “in a timely manner,” and that the court allow him the broader right of discovery as if the case had originated in Superior Court.
Were the journalists wrongfully targeted?
The Buncombe County District Attorney’s Office is not required to follow such procedures in misdemeanor appeal cases, but Scales asked the court to impose rules on the discovery procedures in the case so that his clients could be treated fairly.
“Some form of intervention and/or guidance by this Court is necessary to avert the injustice of forcing these Defendants to trial without having advance access to evidence within the possession and control of the State and/or the prosecuting witnesses and/or their employers,” Scales wrote.
In that motion Scales accused the state of having “has no intention of complying” with his discovery request. He claimed prosecutors had only turned over two pages of discovery, one of which details a discussion over a search warrant to search Bliss’s cell phone that underscores the need for more information.
Bliss tried to get her backpack and cell phone back from police in the weeks after her arrest, but to no avail. Scales wrote an email to the Buncombe County District Attorney’s Office on Jan. 14, 2022, asking when Bliss could retrieve her belongings and why they had been seized in the first place.
“I sent an email to the reporting officer to verify whether the property is needed for any further further investigation (I don’t expect that it is needed, this is just something we have to do before we authorize release),” Meredith Mercera, a senior assistant district attorney, wrote back that same day.
Five days later, police applied for and received a search warrant on Bliss’s cell phone, according to an Asheville Police incident detail.
On Jan. 24, 2022, another assistant district attorney, Kathleen M. Kurdys, wrote Scales to tell him she had been assigned all the cases related to the incident at Aston Park. Kurdys said she hadn’t yet received an answer as to whether Bliss’s phone could be released, but wanted to acknowledge that she knows Bliss wanted her phone back.
It took more than another month for police to give Bliss her possessions. Scales filed a motion to retrieve Bliss’ items on March 8, 2022. Later that day, the prosecutor emailed the police to authorize the release of Bliss’s property.
“It is clear from the actions of the police and by extension, the District Attorney, that they were investigating Ms. Bliss personally, and that they considered her not as a reporter or journalist, but rather as an accomplice of others arrested because of events culminating on Christmas night in Aston Park,” Scales wrote in the discovery motion. “Disclosure of information surrounding the police’s investigation of Ms. Bliss, and in particular, the police’s handling of Ms. Bliss’s phone, would likely lead to exculpatory information that could support Defendants’ theory of the case.”
Scales also explained one of the items in his subpoena. In September 2020 officials released a report titled “Reimagine Public Safety in the City of Asheville.” Contained within were Asheville Police officers’ responses to a survey question, “What does safety mean to you?” Among the answers were “no scrutiny from media” and “knowing your decisions will not be scrutinized.”
Bliss and Coit’s purpose at the park that night, Scales wrote, was to subject the police to media scrutiny.
“They were applying press scrutiny to the press, contrary to what the survey indicated to be a top priority of the police department,” Scales wrote. “Accordingly, all information regarding that report and the survey described therein should be disclosed to Defendants, as it is crucial to establishing their defense.”
Not the attorneys’ first conflict
This isn’t the first roadblock Scales has run into while preparing for the jury trial. Prosecutors asked a judge to reprimand Scales for speaking publicly about the case, and brought it up in court in a hearing held on May 11.
“Although no order was entered regarding my speaking to the press, and there was no finding that anything I said was in violation of the Rules of Professional Conduct, I still feel like my words and actions are under heightened scrutiny as a result of the District Attorney’s filing,” Scales said in an email. “Put another way, the District Attorney has achieved what it was going for, which was to chill my speech. For that reason, I have no further comment at this time.”
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I was a journalist for 25+ years. This should not be a first Amendment case