Criminal charges dropped in Wilkes

A judge has dismissed criminal charges against a man involved in a $20 million federal civil-rights lawsuit against law-enforcement officers in Wilkes County because the county failed to preserve video evidence requested by the defense.

Paul Douglas Absher of Boomer had been charged with assault on a government official and with resisting and delaying a government official. He was convicted on both charges in Wilkes District Court on July 2, 2008, but appealed.

Superior Court Judge Carl Fox dismissed the criminal charges on Wednesday after Absher's attorneys argued that more than 22 minutes of digital video shot at the jail intake center was missing.

County officials say they tried to provide a copy of the requested footage, but that a digital recording system recorded over itself and the original is no longer available.

Both the lawsuit and the criminal charges stem from an incident in Boomer on Sept. 19, 2007. Absher said in his lawsuit that he was sitting in the grass waiting for his girlfriend, Georgia Lynn Minton, to pick him up near the intersection of N.C. 18, Russell Gap Road and Boomer Road about 10:30 p.m. when Wilkes County Sheriff's Deputy Harold Martin stopped and accused him of being drunk.

Martin's report said he was on patrol when he stopped because Absher was lying on the road.

Martin said that other officers were called because Absher resisted arrest, at one point trying to kick Martin in the head when the officer had been knocked to the ground.

Absher had not consumed any alcohol that day, according to the lawsuit. He had smoked "a small amount" of marijuana 8½ hours earlier, took a Xanax about 11 hours earlier and had another drug, Flexeril, in his system from taking it the day before.

Those were the three drugs later found in his system.

The lawsuit says that at least six officers were eventually at the scene and Absher was kicked, shocked with a Taser at least 10 times, and was beaten in the head and torso with flashlights and retractable batons, a beating that continued after his hands were cuffed behind his back.

Absher suffered injuries that included a fractured skull, and he spent 14 days in Wake Forest University Baptist Medical Center, including five days in a medically induced coma and on a ventilator, according to the lawsuit.

He was in Wilkes County Superior Court on Tuesday and Wednesday for a trial on the criminal charges. But before a jury could be seated, his attorneys, John Vermitsky and Ben Porter, asked the judge to dismiss the case because of the missing video.

"It's clear a substantial portion of this video was removed after it was viewed by a ranking member of the sheriff's department...," Vermitsky told the judge. "It's not there and it's something I should be able to use to defend my client."

Chief Deputy Chris Shew testified that he had viewed the video and asked the county's emergency management division, which is responsible for the video system, to make a copy of the requested evidence.

A contractor who manages the system created a copy of about 52 minutes of video, but excluded portions that county officials say was principally of Absher sitting by himself.

Vermitsky told the judge that the video of Absher could have shown if he was angry or acting dazed or incoherent. He also told the judge that the file size provided was only about 1/10th of what the defense had asked to be preserved.

Vermitsky said after court that the missing video did include scenes where Absher was with officers, such as when he was being brought into the intake center. He said that there is a missing section of more than two minutes when Absher was in a room with two or three deputies.

Fox dismissed the criminal charges against Absher, as well as a charge filed against his girlfriend connected to interfering with the arrest.

The judge said that potentially exculpatory evidence had been destroyed. Fox also said he was disturbed by a sheriff's radio communication played in court in which Martin said at the scene of the arrest that he had slammed the "expletive" five times and that Martin appeared to be laughing. At the time of the incident, the 5-foot, 8-inch Absher, then 25, weighed about 130 pounds.

The parties are still taking depositions in the civil case, which could go to trial next year if mediation doesn't reach a settlement.

Vermitsky said that the dismissal of the underlying criminal charges should send a message.

"I think it's a positive outcome for us, first and foremost, because my client is innocent," he said.

■ Monte Mitchell can be reached in Wilkesboro at 336-667-5691 or at mmitchell@wsjournal.com.