THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, January 10, 1995 TAG: 9501100322
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY PERRY PARKS, STAFF WRITER
DATELINE: RALEIGH LENGTH: Long : 109 lines
The appeal of former Edenton day care owner Robert F. Kelly Jr.'s sexual abuse convictions could hinge, in part, on the trial testimony of his former lawyer, now 1st District Judge C. Christopher Bean.
A three-judge panel of the N.C. Court of Appeals on Monday pressed state lawyers to explain why Bean - who excused himself from the case after becoming personally involved - had been allowed to testify against Kelly and identify himself as the defendant's former attorney.
``How can you argue that it was not an error, and how can you argue that it was not an extremely prejudicial error?'' Chief Judge Gerald Arnold asked Ellen B. Scouten, who heads the appellate section of the state Attorney General's Office.
``This is a particularly bothersome problem,'' Arnold said during arguments in Kelly's appeal. ``This boils down to the most fundamental question of fairness, it seems to me.''
Kelly is currently serving 12 life sentences after being convicted in April 1992 on 99 counts of sexually abusing children at his Little Rascals Day Care center.
Speaking for the state in the hearing, Scouten argued that Bean's testimony about his son being a victim was needed to show that accusations against Kelly were serious charges - not the result of community hysteria.
``It was necessary for the state to show the jury that these were reputable, respectable people,'' Scouten told the judges. She said Bean's disclosing that he had been Kelly's lawyer helped explain why his child had come forward late with abuse charges. Attorney-client privilege was not an issue in the arguments.
Scouten said after the hearing that the judges' intense questioning on Bean's testimony could not be read as taking sides.
``You can't say from that how they're going to rule,'' Scouten said. ``The court is enigmatic. It's hard to tell what their thinking is. It's obvious they were very familiar with the record.''
Judge Bean said in a telephone interview from his Edenton home that he did not want to comment on the hearings because he had not been present. But he did defend his testimony. Bean learned his son was an apparent victim shortly after he withdrew from the case when a close friend became involved.
``Just because you may have represented someone in the past . . . does that bar you from being able to pursue your normal legal rights?'' Bean said. ``I don't think it does.
``I don't believe it is improper to testify . . . concerning my own child.''
More than they usually do, judges in the hearing dictated the points they wanted to discuss from detailed briefs filed months earlier, said state appellate defender Mark Montgomery, who represented Kelly.
Kelly's appeal covers 20 points of alleged mistakes made by prosecutors during the trial, including Bean's testimony and several issues revolving around the exchange of information by prosecutors and defense attorneys.
Montgomery argued that child victims in the case had been subject to a ``subtle coercion'' by therapists who compelled the children to make abuse charges. Information withheld from the defense on children whose interviews did not lead to indictments might have helped prove the child witnesses were unreliable, Montgomery said.
Lawyers for the state argued that children went forward to parents on their own, and that proper information-sharing procedures were followed.
``It needs to be clear that there has never been any showing that the state in any way didn't follow the law,'' said William P. Hart, a deputy attorney general who argued for the state in the appeal of a second Little Rascals defendant Monday.
Attorney J. Kirk Osborne presented arguments for former Little Rascals cook Kathryn Dawn Wilson, convicted two years ago on five charges and sentenced to life in prison. She is currently out on bond.
Osborne argued that the defense did not have access to important information for Wilson's trial, either. And he said that Hart should have been removed from the prosecution after marrying the mother of an alleged victim. Charges involving that charged were dropped. Hart said there was no actual conflict of interest.
The court, which will not issue a decision for weeks or months, can uphold the convictions, order a new trial or set the defendants free.
Among those present at the hearing was Nancy Lamb, who recently returned to the District Attorney's Office in the 1st Judicial District after serving on the attorney general's staff and helping prosecute the Little Rascals cases. Lamb sat with Scouten during arguments over Kelly's case.
About 100 people filled the courtroom for the hearing, with a row of about 20 standing against the back wall. Kelly's wife, Elizabeth T. ``Betsy'' Kelly, sat in the front row amid a crowd of supporters.
Betsy Kelly pleaded no contest a year ago to 30 charges, 26 of which were for taking indecent liberties with minors. She was released in November, still maintaining her innocence.
Betsy Kelly said that she was ``very'' optimistic about Robert Kelly's appeal chances and that she was settling down in Raleigh: ``Getting back to life, visiting with my family at Christmas, seeking a place to live and just getting back into the real world.''
Some 25 people from about 10 states representing The Committee For Support of the Edenton Seven met in front of the courthouse building before the morning hearing, bearing signs that read ``Free Bob Kelly and Dawn Wilson.''
Four other people have been accused in the Little Rascals case. Willard Scott Privott pleaded no contest to charges last year and was released on probation. Three others have yet to face trial. ILLUSTRATION: ASSOCIATED PRESS
Elizabeth T. ``Betsy'' Kelly chats with spectators before the start
of arguments in the state Appeals Court in Raleigh Monday. She sat
in the front row amid a crowd supporting her husband's appeal of
sex-abuse convictions.
KEYWORDS: LITTLE RASCALS DAY CARE CHILD ABUSE SEXUAL ABUSE
APPEAL TRIAL by CNB