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‘Defiant ones’ case sent back to trial court

Two brothers who have spent more than seven years in jail for defying a court’s order to abandon what they allege is their family’s land will get a new day in court, thanks to a unanimous Sept. 21 North Carolina Supreme Court opinion sending their case back down for more consideration.

The Supreme Court remanded the case of Melvin Davis and Licurtis Reels to the Carteret County Superior Court for a ruling on whether the brothers are capable of complying with the court order that prompted the 2011 civil contempt order that led to their incarceration.

“This struck us as a really outrageous situation,” said Frank Goldsmith of Goldsmith, Goldsmith & Dews in Fairview. Goldsmith wrote an amicus brief on behalf of the North Carolina Advocates for Justice, which took an interest in the brothers’ case after receiving a request for review from their attorney, James Hairston Jr. of Hairston Lane in Raleigh.

“You have two fairly elderly men with no money, incarcerated for seven years for not doing something they’re incapable of doing, or failing to utter the words the court wanted them to say,” Goldsmith said. “We thought this cried out for a remedy to end the injustice being done to these men.”

The case dates back many years, even before 2011, when the two brothers were held in contempt of court for refusing to comply with a court order requiring them to abandon a tract of land near Beaufort which they say has belonged to their family for many generations. The same order also required that the brothers remove buildings from the property, an act which their attorneys say they are incapable of doing.

“We had an expert in home moving and excavation from the home movers association say he looked at their equipment, and determined it is in unusable condition,” Hairston said. “They have no financial wherewithal to do anything to remove the structures. They just don’t have it.”

Hairston said the issue dates back to the trial court’s decision in 2011 to hold the men in contempt after they testified that even if they could comply with the court order, they would not. As a result, Superior Court Judge Jack Jenkins found that it was unnecessary to consider evidence that the brothers could not afford to raze the structures.

On appeal, the brothers argued that Jenkins erred in doing this, because contempt orders must be for the purpose of obtaining compliance with a court order, Goldsmith said.

“If that could no longer be achieved, then the court shouldn’t require that they be incarcerated,” Goldsmith said.

Beyond their inability to comply with the order, the brothers’ attorney also argued that their refusal to sign a statement to obey trespassing laws didn’t justify their continued incarceration because it doesn’t solve the problem of getting the structures removed, essentially amounts to punitive measures for the anticipated crime of trespassing, and amounts to incarcerating someone for exercising their right to free speech.

“After seven years of imprisonment without the situation being remedied by the removal of the property, it’s become clear that incarcerating the men has lost its coercive effect and it’s become punitive, which is beyond the ability of the court to control through civil contempt,” Goldsmith said.

Lamar Armstrong Jr., of Armstrong Law Firm in Smithfield, represents Adams Creek Associates, the company which legally possesses the land from the original dispute. He said that he still cannot conceive “why someone would stay in jail seven and a half years when they don’t have to.”

“We just argued that they still haven’t done what they can do,” he said in an interview. “They shouldn’t be able to argue what they can’t do, which is remove the building … when they haven’t done what they can do, which is signing the statement saying they won’t go back on the property.”

Armstrong said that while he understands and respects the court’s opinion, one of the most important issues of the case has not yet been decided.

“That’s the stalemate that the court didn’t take on is whether or not they ever have to sign it,” Armstrong said. “The question is, if they’ve proved it and the judge finds they can’t [remove the structures], how will the court weigh their refusal to [sign the statement saying they won’t go back on the property]? The court doesn’t expressly say.”

Once the Supreme Court decision becomes final, attorneys said the case will head back to the trial court in Carteret County. A hearing is expected to take place later this year. In the meantime, Hairston said he’s open to mediation.

“I’m holding out hope that maybe there’s something between now and the next court appearance that can be worked out,” he said.

In the meantime, the brothers remain incarcerated. But Hairston said they’re in a much better position than they were a year ago.

“At the end of the day, we’re in the best legal position we can be in,” said Hairston. “I take it as a victory.”

The two-page decision is Adams Creek Associates v. Davis (Lawyers Weekly No. 010-075-18). The full text of the opinion is available online at nclawyersweekly.com.

Follow Matthew Chaney on Twitter @NCLWChaney

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