Over several days last spring, Irvin Broussard started giving away the belongings he had accumulated in his cell at Caledonia Correctional Institution in Tillery, N.C., one of the state's oldest prisons. He doled out toothpaste and valued brand-name toiletries. He gave away his radio. He parted with a most rare commodity in the medium-security lockup: a new dictionary. He presented it to his best friend, another inmate, and counted down the days on his calendar.
Broussard was ready to go home to Durham. Two years earlier, he had been convicted for being a repeat felon and having a shotgun. However, in March, the N.C. Court of Appeals overturned the conviction because Durham police had illegally searched his house. Broussard could get a new trial, but without any useable evidence, prosecutors lacked a viable case and would likely set him free.
"I didn't think I was going to go anywhere right away, because nothing comes that easy," said Broussard, 37.
March soon turned into May, yet Broussard was still stuck in his cell. Due to an apparent oversight by Durham prosecutor Stormy Ellis, who initially put him behind bars, Broussard sat in prison about two months longer than he had to. He was finally released on June 1, his birthday.
"I took that as a birthday present from God," he said.
But a lawyer who has represented Broussard in the past was outraged. Attorney Geeta Kapur, who is now representing Broussard in a child custody case, says Ellis deliberately delayed sending paperwork to a state prison to set Broussard free. Ellis says she was waiting for a final judgment from the appeals court. Although the final judgment was issued April 5 and was sitting in the obvious place—the case file just a floor below Ellis' own office—Ellis said she didn't get the document until almost two months later, on May 24. She dismissed the charges four days later.
As Durham Superior Court Judge Ronald Stephens pointed out earlier this month, the incident highlighted more than just one error by one prosecutor. It revealed that a lack of policy or procedure at the Durham district attorney's office may have contributed to the delay. It also points to communication failures between state offices, which could lead to more people like Broussard being held in prison for longer than necessary, at unknown cost to taxpayers.
Kapur recently filed a complaint against Ellis in court. Stephens heard Kapur's claim June 2 and scolded Ellis, who has six years' experience, for failing to check the case file for the essential document.
"It is in this file, and the bothersome thing to me is that it was in this file all along," Stephens told Ellis in court, brandishing the file folder from the bench. "And I would think that everybody in this courtroom who is a lawyer would know it is in this file."
Ellis told the judge that she corrected the matter as soon as she realized the oversight. In an interview with the Indy, Ellis also said she didn't have an organized system of tracking cases that had been appealed, and this case got lost in the shuffle.
"The simple fact of the matter is, I forgot about the guy," Ellis told the Indy.
Ellis became the county's primary prosecutor of gang-related crimes soon after she began working in Durham's courthouse five years ago. Previously, she worked as a Wake County prosecutor for about a year. In her current role, Ellis prosecutes about 100 open cases a year. Most defendants plead to charges, and about one in five cases go to trial.
Ellis told the Indy nearly every case she has tried in superior court has been appealed. Yet, as Ellis testified before the judge, she has no system for tracking appeals on her cases, nor is there a formal procedure or policy at the district attorney's office that mandates how soon prosecutors must respond after an appeal has been granted. (The Indy called District Attorney Tracey Cline for clarification on what policies she has in place to ensure granted appeals are handled swiftly, but Cline didn't return our calls.)
Anyone may track appeals simply by visiting the N.C. Court of Appeals website and checking for new opinions every other Tuesday. But Ellis does not regularly check the website, she said. Attorneys across the state, including Ellis, also receive summaries on new opinions via e-mail, a service provided by UNC School of Government. But those e-mails stacked up in Ellis's inbox, unopened, she admitted in court.
In the past, Ellis had relied on others—an attorney, the court, a prison clerk, even the media—to alert her that an appeal had been granted.
But in Broussard's case, the court clerk, prison clerk and attorneys were waiting on Ellis to schedule a new trial date or dismiss the charges. Until Ellis did so, the clerk's office didn't notify the state prison system that Broussard should be returned to Durham for a new trial or to be released, according to testimony by Angela Kelly, assistant clerk for superior court. Because Durham's clerk had not sent official notice to the state prison system, clerks at the Department of Correction didn't know there was a delay and thus didn't call to check on the case.
To complicate matters, Broussard didn't have a lawyer actively working on his case. Kapur had represented him in 2008, when he pleaded guilty to charges of possession of a firearm by a felon and of being a habitual felon, a charge prosecutors may add once a defendant has three felony convictions on his rap sheet. But when Broussard appealed his case, he was assigned to another public defender, Constance Widenhouse. Once the state granted Broussard his appeal, Widenhouse's duties were officially over, she said. She had no responsibility to follow up to see if Broussard would be granted a new trial or released.
"I might on occasion choose to do that, but I'm not responsible for doing that," Widenhouse said. "I just assumed that he had gone back [to Durham] and was appointed a new lawyer."
It appears that Kapur was responsible for getting Broussard's charges dismissed quickly once it became evident he was still in prison. Kapur said that on the morning of May 27 she wandered to her computer, unable to sleep. Out of curiosity, she checked the N.C. Department of Correction website and saw that Broussard was still sitting at Caledonia. Kapur went to the Durham courthouse to inquire with a court clerk and Ellis' office about the holdup. She didn't see Ellis personally but left a message with an assistant, she said. The next day, Ellis dismissed the charges. Kapur immediately asked a judge to order Broussard's release and to sanction Ellis for her alleged negligence.
Kapur has also raised two discrepancies in Ellis' paper trail. Although Ellis said she signed and filed dismissal forms on May 28, the documents bear two dates. An earlier date of March 22 is crossed out and May 28 is hand-written above it. Kapur suggests that Ellis was ready to dismiss the charges as early as March, immediately after the appeal was granted.
But Ellis testified that the old date was a typo caused by careless copying and pasting on her computer. Ellis also testified under oath that she hand-delivered the dismissals to Kelly, the superior court clerk. But after the hearing, Kelly told Kapur and the Indy that she was not at work that afternoon, and Ellis gave them to a different clerk. Kapur sent the judge a letter about the discrepancy.
Ellis and even Stephens have suggested that Kapur also could have followed up earlier if she was concerned about Broussard's outcome, but Kapur, like Widenhouse, had no obligation to do so. She also was busy last semester teaching at UNC, she told Stephens during the hearing.
As far as Kapur was concerned, the responsibility was on Ellis to make sure Broussard's case was resolved in a reasonable amount of time.
"She was the only person who had the keys to his cell," Kapur said.
Broussard, who has lived in Durham most of his adult life, is a stocky man with thick, curly black eyelashes and brown eyes. Wiry white strays poke out of his full head of black hair.
Broussard said he pleaded guilty to the felony charges two years ago because it meant less prison time. He didn't want to miss more of the lives of his two children. He had already spent some of their childhoods in prison for dealing drugs and had led an even more dangerous life before they were born, once being named a co-defendant in a murder case (he was acquitted) and surviving an attack 10 years ago in which he was shot nine times.
"Back then, I was a child. But now I'm grown," Broussard said. "I'm not doing all that crazy stuff. I grew up a lot. And I don't live my life like that no more."
Broussard may be one of many inmates whose releases have been unnecessarily delayed. A prison records clerk testified at Ellis' hearing that paperwork is often delayed or lost. Although Kapur says the district attorney is responsible for staying in touch with the prison system, Teresa O'Brien, a sentencing auditor for the N.C. Department of Correction, said district attorneys are rarely the party that calls to find out about a delay in release; it's usually a family member or an attorney. Situations such as Broussard's, in which the prosecutor and court clerk had not sent over final paperwork, are common, she told Stephens under oath.
"We've had cases up to a year that they could've gone and someone inquired, such as the attorney again," O'Brien said. "I wouldn't say this happens every day, but it's not unusual."
"You mean somebody could sit in jail for a year and you would not have been notified, and that would not be unusual?" Stephens asked her.
" ... It's not like we have 10 a month or anything," O'Brien continued. "We may get one or two in a month's time. And there again, we may get only one." After consulting her supervisor, O'Brien declined to speak to the Indy about lost paperwork or processing delays she referred to in her testimony.
N.C. Department of Correction spokesman Keith Acree said the DOC cannot produce any data that would quantify such administrative lapses.
"I don't know that we keep specific records on when we don't get things," Acree said. "We can't take any action until we receive proper paperwork from the courts. Some clerk's offices are consistently on top of things and get us things on time, others take a little longer."
Widenhouse, the attorney who handled Broussard's appeal, said she experienced a similar situation years ago, in which a client was supposed to be freed from prison but paperwork had been delayed.
"There's supposed to be this paper trail from the court of appeals to the clerk's office, back up to combined records (a prison records department)," Widenhouse said. "Sometimes that breaks down in the local clerk's office."
No date for Stephens' order has been determined. It's unclear what, if any, repercussions Ellis could face. As of last week, she already planned to leave Durham at the end of July to work as a staff attorney for the N.C. Innocence Inquiry Commission. The group, formed in 2006, investigates possible wrongful convictions.
As he concluded his hearing, Stephens said he observed bigger problems in the system, not just Broussard's case. It's possible he could address some of those issues in a final written order.
"I want to make sure there is a procedure in place so that this cannot happen," Stephens said in his hearing. "The procedure is an issue for me, too, right now, not just sanctions, as to, one, why this happened, how we can make sure it will never happen again, and who carries the responsibility of ensuring that besides the court."