Asheville plea negotiations fail for man accused in officer assault; new lawyer granted
ASHEVILLE — A request for a new lawyer was granted Aug. 29 for Devon Whitmire, a Black man whose May 13 violent arrest by three white city police offers was caught on video, sparking cries of concern from onlooking residents in the Erskine-Walton neighborhood.
Upon Whitmire’s request, Public Defender Brooks Kamczik asked Superior Court Judge David Strickland to appoint a new attorney for Whitmire. Strickland asked Whitmire why he was seeking new counsel.
“I feel like he’s not in my best interests. I’ve been up here about four or five months with no bond reduction, no pretrial, nothing. He’s not trying to work with me,” Whitmire responded.
Whitmire appeared Aug. 29 in Buncombe County Superior Court on nine charges: two felony counts of assault on a law enforcement officer, inflicting physical injury; three felony counts of malicious conduct by a prisoner, spitting on law enforcement officers; one misdemeanor count of resisting an law enforcement officer; and three misdemeanor counts of assaulting a law enforcement officer.
These came after APD officers recognized Whitmire, who had an open warrant for communicating threats, in the neighborhood, according to bystander and police video. Whitmire initially gave his identity of that as his twin brother. When officers said they planned to take him to jail, Whitmire said he had a gun, police body camera videos showed. Officers asked where the weapon was but he refused to say and they grabbed him. During the ensuing struggle Whitmire and his fiancé said he did not have gun, something born out by a police search after a struggle.
Whitmire said in court Aug. 29 that he was not shown the discovery for his case. In response, Kamczik told the judge that he informed Whitmire he was entitled to his discovery, but based on their conversations, Whitmire did not wish to see it.
“We did show the video in those bond hearings that we’ve had in this matter, and Mr. Whitmire indicated at that time he did not wish to see those videos,” Kamczik told the court. He added that he had an evaluation performed, which indicated that Whitmire can proceed to trial. Kamczik has some concerns, he said, over Whitmire’s understanding about how the plea-bargaining process works and his capacity to proceed.
Strickland asked Whitmire if he has continued to take his medication while in custody.
“The meds that I take aren’t allowed in jail, but yes I am taking medication,” Whitmire said.
During the Aug. 29 proceedings, Assistant District Attorney Katie Kurdys told the court that Whitmire and his lawyer declined the plea deal that was announced July 3 with a deadline of Aug. 28. A counteroffer was proposed by the defense last week, Kurdys said, adding that the state could not accept what was offered.
“This offer was set to expire this week, although in light of Mr. Whitmire needing new counsel, I will hold this offer open,” Kurdys stated before describing the terms of the deal. “It’s a mitigated active sentence first, followed by two probationary sentences. It would only be three years total.”
More: Mother of Asheville man in violent arrest criticizes APD actions; asked for medical help
The terms of the deal, based on court proceedings, are as follows:
Whitmire would receive a mitigated active sentence in the range of 15 to 27 months for one of his malicious conduct charges, upon the court approving the mitigating factors.
Regarding the two other malicious conduct charges, Whitmire would receive a suspended sentence of 36 months supervised probation with no additional active jail time.
Whitmire’s other charges, namely the Class I assaults on a law enforcement officer inflicting physical injury, would be consolidated into a suspended sentence of 36 months supervised probation.
His supervised probations wound be under the conditions that Whitmire receives a comprehensive clinical assessment within 45 days of his release, complies with all treatment recommendations including taking prescribed medications and follows any other conditions prescribed by the court.
The judge confirmed with the state that the original plea offer will remain the same regardless of Whitmire obtaining a new lawyer. Addressing Whitmire’s grievances with his previous lawyer ― particularly that his bond hasn’t been reduced and his offer isn’t probation ― Strickland said, “The same thing is going to happen with the next lawyer because the state has made it very clear what their offer is, which involves some active time.”
Although Strickland told Whitmire he is “in capable hands right now with who your lawyer is,” Strickland granted his motion and appointed Jim Rice as his new lawyer.
Whitmire remains in the county jail on an $85,000 bond that judges have declined to reduce. One, though, District Court Judge Edwin Clontz, said police were wrong to lay hands on Whitmire before asking him to submit. Clontz declined to state an opinion on whether Whitmire was choked.
Whitmire has a court date Aug. 31 for his misdemeanor communicating threats charge, the same one he had an open warrant for when his violent arrest ensued May 13.
Ryley Ober is the Public Safety Reporter for Asheville Citizen Times, part of the USA Today Network. News tips? Email Ryley at [email protected]. Please support local, daily journalism with a subscription to the Citizen Times.
This article originally appeared on Asheville Citizen Times: Plea deal standstill, new lawyer for Asheville man in violent arrest