Friday: Fenner Hearing in Rutherford County (video)

Before the hearing…
“The door is locked.” The crowd standing upstairs in the Rutherford County courthouse included the defendant, Brooke Covington, Kent Covington, Karel Reynolds with Jayne Caulder- who floated in and out of the area. Yes, add to this Word of Fellowship (WOFF) contingency; Matthew Fenner, a few of his family members, supporters and news media. (I was not ready to throw up the red awkward flag, but it was close.) After a few social charged moments mediated by a few laughs, a county official opened the door and we all cautiously entered the courtroom making sure not to touch or encounter any members of the other side.

Once inside the process of choosing your seat began. Strategy and some personal preference led me to sit three rows from the front on the right side with members of Matthew’s family. Before I landed there, I noticed Karel taking out her pen and pad dividing her page into sections as if she were taking attendance and notes for a report to her teacher. Realizing the note taking would be critical, I also began my efforts.

Already in the bar area was District Attorney Ted Bell with his Assistant, David Norris. Over the next few minutes, court employees filtered in and out as preparations were made for the long waited hearing. The highly anticipated Motion for a Change of Venue would be argued along with possible discussion on several other motions. I noticed the clock moving past 2:00PM and felt concerned until Assistant District Attorney Garland Byers enter with defense attorney David Teddy not far behind. Both looked stern as they took their places. Previously, Teddy had invited Brooke to the defense table so; the show was ready to begin.

Calling out the introduction, All rise…. The bailiff announced the Honorable Judge Gary Gavenus was set to preside- this court will now come to order! Be seated.

The defendant’s Motion for a Change of Venue was recently amended. The State’s Motion for Discovery and the Bill of Particulars were two other matters on the short list for today. After an introduction by Byers, the Judge allowed Teddy to start. [In reality, it would be very difficult and too lengthy to list each line of defense and counter argument from each side. I provide a summation of the main points. ]

During Teddy’s opening remarks, he motioned to what appeared to be a four inch high binder similar in appearance to some ancient religious manuscript. He explained this binder as containing example after example of articles about WOFF showing the media coverage as widespread, constant, and excessive with negative content. He put forth the notion of a coordinated effort of ex-members and press outlets accenting his plea with telling of two town hall meetings where ex-members spoke publicly of their time in WOFF.

By then, I was lost in the note-taking zone and only briefly recognized the subject of his pleas.

Teddy was far from done. He recited dates and sources of articles including the negative comments with each source. Some I remembered, but not all of them. As he took a pause to ask if this evidence could be submitted, the Judge asked Byers if he objected. With a clear, ‘No objection,’ Teddy lugged this huge binder/book/collection to the bench where it remained. Epic visual -at least for the moment.

Next Teddy called Alan Jackson. Mr. Jackson explained his experience was with customer and public awareness. He has conducted public awareness surveys to learn how much public knowledge there is about a particular criminal case in a given area. He recited a long list of clients, two of which included the city of Hickory and city of Charlotte. From here folks, the session evolved into a sea of numbers and hypotheticals during which even the Judge held his head in his hand to rest and one source told me they saw Brooke shut her eyes as if the barrage was overwhelming. Don’t get me wrong, there some vital numbers, claims and counterclaims made during this time.

My take away included these numbers and concepts. Jackson was paid $6,000 for his employees to attempt calls to over 5,000 landline numbers in Rutherford County. The dates of the survey ran from May 3rd to May 10th. There were eight primary questions which depending on the answers, could grow to 18 questions. After no answers, hang-ups and voice mails, 386 people passed the first hurdle of questions and had their results tabulated. Mr. Jackson said there was a 5% margin for error. The surveyors asked to speak to the youngest male in the home.

I am no survey expert and we know figures based on percentages can be confusing. Following the subsets of percentages and converting to hard numbers can be tough. Yes, in the avalanche of numbers, I could have missed some vital ones. However, these stuck out to me.

When David Teddy was asking Mr. Jackson the questions; the answers seemed to prove “72.2% of those aware of the case had a negative opinion.” “One third of those who had an opinion or were aware of the case- assigned some level of guilt to the defendants.” I must admit it sounded ominous in favor of moving the trial. (Because he used percentages! Also, restricting to landline numbers leaves out a LARGE segment of the population.)

Garland Byers began a different set of questions obviously not pre-screened by the defense. He asked if Mr. Jackson was a part of any professional association. No. He asked if the names of those 386 were included in the survey. No. Byers asked if Jackson knew if he had contacted any potential jurors. His answer, “We don’t know, we may or may not have.”

Byers went on, he recounted some of Mr. Jackson’s number back to him and said, “So, what you are saying is that 69% of the total population of this county has no opinion about the case, negative or positive?” Mr. Jackson affirmed. Wow, what just happened? Why the flip? The defense was drilling down on subsets of small groups making the numbers sound like they reflected overall population truths. Byers simply stated his questions differently and helped Mr. Jackson refocus on overall numbers.

Byers continued on with other efforts to dissuade the Judge from the validity of the survey. At one point, Teddy is seen rubbing his chin repeatedly and biting his nails. Obviously he was concerned. Among other evidence, Byers quoted case law stating the best way to test the knowledge of a jury pool about a case is during the selection process. To which he added an option for the Judge to consider a Change of Venire if the jury selection proves too difficult in Rutherford County. He pointed out with the overlapping media coverage areas, how do we know the conditions in Burke, Polk or Cleveland counties?

Soon thereafter, David Teddy began his lengthy closing arguments. At times during this dissertation, Teddy appeared to lose his train of thought and had inordinate pauses. I say this with deepest respect as I have never been in his position. He clearly was speaking from some notes, which works for me. The flow was rough, that’s all.

Teddy begins by admitting the court system is set-up for the defendants to face a jury of their peers in the county where the alleged crime took place. Even moving a trial out of the area does not guaranty a not guilty verdict. He again launched into a list of local news sources which covered the case all of which cannot be undone. He cited the frequency of the articles. He drew attention to recent coverage saying wherever you go; you can’t escape it, calling it a “mountain.” (great!)

Teddy argued the content was adversarial pointing out that Fenner himself had given media interviews and told his story. He argued social and geographical issues saying the smaller population would be saturated with the coverage as compared to a larger area. Next, he threw his hands up about shoulder height and waved them saying that an ex-member was on personal “campaign to taint the court!” Who could that be? With so much negative information, it is impossible to “rehabilitate” the area.

As a rerun, he pointed out the venomous comments on social media. He referenced an apparent affidavit from Brad Greenway giving his opinion that McDowell County would be suitable for a venue. I believe that document was worthless.

Somewhere in this verbal landslide, Teddy addresses the Judge, “You can do what you want, (and) you are the Boss.” I lost it inside. What a condescending statement. Was Teddy begging or whining or both? Like a child telling his mom, “You can send me to my room to stand in the corner because you are the Boss. But, I don’t want to….”

And if that were not enough, during his final, final close; he asks the Judge to consider after all the evidence in the survey, to consider Brooke’s perspective. How does she feel? Can she actually think in this court she “will get a fair shake?” He asked the Judge to do something for the defendant and eliminate her doubt by moving the case.

Wait there is more. He concludes by saying he is not sure she can get a fair trial here. “I see it, I feel it…!” This trial must be moved, go through “the books”, if we must start May 30th, I will do it, “You are the Boss.” Does he “feel” negative now the way Jane Whaley “feels” evil? Who has he been listening to? Do we feel sorry for Brooke, yet? Today was my first witness to a lengthy close by Teddy. He had a big task. We shall see how much of it sticks.

Judge Gavenus began his reply. “This survey concerns me.” He went on to remind Teddy of the rules against contacting potential jurors, a violation of professional conduct. Potential jurors will be asked if they were contacted by this survey and if so, “there will be serious consequences.” At which time, I am told Teddy exhibited a slight slump.

The Motion for Discovery was worked out between Byers and Teddy and the Bill of Particulars was abandoned. The Motion to View (WOFF) will be heard by the trial Judge at the beginning of the trial.

My close: Judge Gavenus did not rule on the Change of Venue. He may early next week. One source close to the investigation said there was a 95% chance of trial starting May 30th. I am not convinced of a May 30th start date-yet. Hope I am wrong. How soon will the BIG BOOK be available for public viewing?

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(Copyright © 1954, 1958, 1962, 1964, 1965, 1987 by The Lockman Foundation ) This is post number 601.

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