The first murder trial in Haywood County since 2013 was brought to an abrupt halt last week right in the middle of jury selection.
The trial of Michael Clint Browning was delayed after a key state expert witness violated a court order by omitting information attorneys from both sides considered vital to the trial. There is a possibility that sanctions could be imposed against Dr. Nicole Wolfe, who has performed forensic psychological evaluations of defendants for about a decade at Central Regional Hospital, one of three state psychological hospitals in north Carolina.
Almost two years ago, the court ordered Wolfe to provide a report on her psychological evaluation of Browning as well as all source documents. She followed the order but neglected to provide any of her records or raw data. This is especially important, considering the defendant gave notice in 2018 that he intended on using defenses of insanity and diminished mental capacity.
Although the state determined a couple of months after the alleged murder it would not pursue capital charges, Browning still faces life in prison.
Browning was arrested on Oct. 2, 2016 and was held on $3 million bond. Less than a month later, he was formally indicted on charges of first-degree murder, discharging a firearm into an occupied dwelling and manufacturing marijuana.
Five days after Browning’s arrest, an order for his safekeeping was signed by District Court Judge Donna Forga after Dr. George Corvin, who was later commissioned by the defense to evaluate Browning for a potential insanity defense, determined he was a risk to others.
“It is unrefuted from the 911 call that defendant killed his father out of paranoia,” the order for safekeeping reads.
“Defendant has been in custody since Oct. 2, 2016, at the Haywood County Detention Center,” it later reads. “During that time, defendant has not hurt himself or others, nor has he been verbally abusive to others. He has not broken any lights, doors, or sprinkler heads. He has not peed himself or used his feces in any inappropriate manner. He has, however, made statements which appear to be from some level of paranoia.”
Insanity defense triggers evaluation
The report from Corvin’s full evaluation of Browning was completed on Jan. 2, 2018, and given to the state on Feb. 1, 2018, at which time the defense gave the notice of its insanity defense. Another court document reveals Corvin’s conclusion that Browning is clinically insane.
“Dr. Corvin concludes that, ‘Mr. Browning demonstrated no evidence suggestive of symptom exaggeration/feigning symptoms during the current evaluation,’” that document reads.
Once the state was served with notice of defenses of insanity, diminished capacity and mental infirmity, it could legally commission its own examination of Browning, the motion for which was filed March 5, 2018 and heard April 9, 2018. That motion cites Dr. Corvin’s report.
“In this report Dr. Corvin opines that defendant was legally insane at the time of the commission of the crime of first-degree murder, and he outlines the collateral sources upon which he reviewed and relied in forming his opinion, along with other sources of information, including interviews with defendant and defendant’s counsel,” it reads.
An April 10, 2018 order, signed by Judge Brad Letts calls upon Dr. Wolfe to perform the evaluation.
“Dr. Wolfe shall provide to the state a written report of her findings and conclusions, including the underlying basis for any opinions and her raw data and other documents relied upon in forming said opinion, if she in fact forms an opinion,” that order reads.
Like Wolfe, while performing his evaluation earlier in the year, Corvin was ordered to provide all records and data used in his analysis. Although there are no documents indicating he violated this order, the state filed a motion on Sept. 13, 2018, which sought the production of specific records. That motion came when Wolfe specifically requested certain documents relevant to an interview with Browning she was conducting that Corvin had never provided and actually wasn’t obligated to since he didn’t make any citations in his report that would necessitate it.
That motion argues that Corvin appeared to rely almost entirely on his interview with Browning to make his determination.
“Dr. Corvin has made a number of assertions and conclusions which appear to be solely based upon defendant’s rendition of historical events without further attempt to verify or dispel such statements by reviewing collateral records beyond the State’s discovery production to defense counsel,” the motion reads.
The notes the collateral sources referred to came from state-produced discovery evidence, a couple of Browning’s letters, an item from the report on Browning’s capacity to proceed performed earlier, media reports and one that “appears to be statements provided to Dr. Corvin based upon (defense attorney) Mr. Bill Jones’ personal experience with and observations of defendant.”
The motion continues to provide specific examples of records that the District Attorney’s office thought could be relevant, including probation records, education records, medical records and even DSS records.
“Defendant claimed that his father was ‘very abusive’ and that on one occasion ‘DSS came around’ because his dad had been abusive. However, upon information and belief, Dr. Corvin failed to obtain and review any DSS records which could support this contention,” one example reads.
Defense attorney Jones said in court that in February 2019, he received Dr. Wolfe’s report. However, it wasn’t until the day before the trial, Jan. 12, 2020, he told Assistant District Attorney Jeff Jones, who is prosecuting the case, that he noticed that Dr. Wolfe didn’t provide the sources she relied on to write the report.
“They arguably could be exculpatory,” Bill Jones argued in court.
Both attorneys agreed that they did not want Wolfe’s violation of the existing order to delay the trial, so they went on to jury selection. Jeff Jones admitted that both he and Bill Jones “were pretty fired up” over the mistake and even called it “horrible.”
“It does not appear that Dr. Wolfe has ever tendered any of the raw data or documents supporting her opinion to the defendant, or to be quite frank, any documents other than her report itself,” Bill Jones’ motion to continue and compel the missing documents reads.
“[Dr. Wolfe] cites, or appears to cite, notes from a psychologist while in Central Regional Hospital on a safekeeping order, and further references a ‘social worker assessment’ conducted on Oct. 18, 2016, neither of which are produced,” one example reads.
“That the report of Dr. Wolfe is replete with references to medical records at CRH (Central Regional Hospital), all of which occurred after his arrest for the above captioned charges; however, no Central Regional Hospital documents were provided,” another example reads.
Defense to blame?
An email sent to Jeff Jones from Dr. Wolfe on the afternoon of Jan. 12, seems to place blame on the defense for not noticing the lack of supporting documents.
“I completed this MSO (Mental State at the time of the Offense) report almost a year ago, and this is the first I have heard about non-production of collateral records,” she said in that email. “Typically the defense teams obtain these jail and prison records long before Central Regional, and I assumed that the defense already had prison and jail records, so it never occurred to me that these were needed.”
Because the volume and substance of the records wasn’t known at that time, Judge Letts determined in the order compelling Dr. Wolfe to provide the documents that a continuance was not yet warranted.
While Judge Letts didn’t show any outward signs of frustration, he used strong language in the order, noting that Wolfe “intentionally, knowingly and with conscious thought failed to comply with courts order.”
He further stated that possible sanctions against Wolfe were prohibiting her testimony or possibly holding her in contempt. However, in his order, he also discussed that the state and defense perhaps should have taken note of the omission.
“The parties knew about the existence of these records since February of 2019 and could have sought them sooner,” the order reads. “There is no evidence of bad faith by the prosecutors or unfair surprise by the defendant.”
He ordered Dr. Wolfe to provide the records no later than 4 p.m. the next day.
Jury pool returns
That next morning, before the jury pool was brought up, Jeff Jones told Judge Letts that over the course of about an hour that prior evening, he got 13 emails with documents attached from Dr. Wolfe. But with those records came more questions, questions that could only be answered by other doctors who’d had contact with Browning, and so began the quest to track them down.
While the slow, deliberate process of questioning potential jurors resumed, Assistant District Attorney Kate Wrenn typed up the order for the production of the additional records from Central Hospital’s mental health unit by 11 a.m. the following day.
The next morning, Jeff Jones told Judge Letts first thing that he had additional information for the court that Browning needed to hear. Just minutes earlier, he had received a phone call from the director of medical records at Central Prison and the deputy general counsel for the NCDPS stating that there were about 234 additional pages of records from previously unnamed sources. Jeff Jones conceded that it would be a “laborious task” to review the records.
Bill Jones spoke with Browning about his options while Jeff Jones conferred with the detectives from the Haywood County Sheriff’s Office who handled the case, then the two attorneys talked.
When they came back, they presented a joint case to Judge Letts that the trial should be continued, considering how much there was to review.
“While it was known that there may be other records, there was no way to know these other names based on Dr. Wolfe’s report,” Jeff Jones told Judge Letts.
“The state is very disappointed in the way this has played out,” he added before consenting to the previously filed motion to continue.
Judge Letts signed orders requiring Dr. Wolfe and a fellow doctor with Central Regional Hospital, LaVonne Fox, and NCDPS to preserve all evidence, computer files, documentation and data “without amending altering or destroying.”
The order granting the preexisting motion noted that the volume of documents received over a mere 36-hour period — 412 pages — simply couldn’t be thoroughly reviewed in time to proceed with the trial.
“The failure to grant a continuance would likely result in a miscarriage of justice,” the order reads.
The order made clear that “at all times,” Jeff Jones, Wrenn and the district attorney’s office acted in good faith and added that “This failure to produce the aforementioned documents is attributable solely to the inactions of Dr. Wolfe, a non-party to this case.”
Had a jury been sworn in and empaneled, the court would have reached the point of no return, and to attempt to continue or retry the case thereafter would result in double-jeopardy.
The court is still holding open the issue of whether to prohibit Wolfe’s testimony and whether to hold her in contempt. Should she be held in contempt, state law dictates that she could face 30 days in jail and/or a $500 fine.
The date for Browning’s trial was not determined.