The saga continues: After sheriff’s removal, attorneys discuss lessons learned and upcoming appeal
District Attorney Ashley Welch questions Hoxit on the stand.
Kyle Perrotti photo
Brad Hoxit made history last month, but not in a way he’d ever have hoped.
Hoxit appeared in Graham County Superior Court from March 24-27 for a hearing to determine whether he would be permanently removed as sheriff of the small Western North Carolina county. Last week, Superior Court Judge William T. Stetzer did indeed bar Hoxit from returning to office, and now his attorneys say an appeal is imminent.
District Attorney Ashley Welch filed the petition for Hoxit’s removal on Jan. 29, alleging he abused his power as his office built the case against Graham County Commissioner Jacob Nelms, whose ex-wife Adarian Nelms had been in an on-and-off relationship with Hoxit since before he took office. That same day, Superior Court Judge Tessa Sellers signed an order suspending Hoxit from office pending a hearing.
The contentious four-day session in a Robbinsville courthouse featured a parade of witnesses and led to some unusual moments, including former Graham County Sheriff’s Office Attorney David Wijewickrama testifying against a former client and Superior Court Judge Tommy Davis discussing his thought process when rejecting a search warrant tied to the Nelms case.
On March 27, both Welch and Hoxit’s attorney, Stephen Lindsay, used their closing arguments to pose different answers to the same question — what message do we want to send to law enforcement and the greater community? Welch said that by removing Hoxit, the judge would uphold the public’s faith in the justice system. In a case this rare and important, the precedent would echo well into the future.
“It’s not for his punishment,” Welch said. “It’s for protection, because if we don’t set an example, and we don’t stand up and say, ‘You can’t do this; you are not allowed to get away with this,’ then what are we doing? Why do we have a Constitution?”
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Lindsay highlighted the great power vested in the sheriff’s office. Deputies serve at the pleasure of the sheriff, and the sheriff can hire or fire at will in a way he thinks best serves his office’s mission. Loyalty is necessary, Lindsay posited, adding that the claims against Nelms were strong enough that not investigating would have itself been an injustice.
“This type of thing has been ignored for too long in this county,” he said.
The order
Stetzer promised he’d issue his order by April 10. On the afternoon of April 7, it was published. In his findings of fact, it was clear that he believed Hoxit should have stayed out of the case due to the conflict caused by his relationship with Adarian Nelms. The judge, on multiple occasions, noted that Hoxit had intentionally misled others in his quest against Jacob Nelms, including failing to disclose to Welch that he’d gotten married to the ex-wife of the man he was investigating.
Stetzer also noted that Hoxit’s “insistence on secrecy” throughout the investigation indicates that he knew what he was doing was wrong.
“These repeated bouts of dishonesty amount to willful misconduct,” Stetzer wrote.
“The undersigned is of the opinion that Hoxit’s conduct also warrants a Giglio letter and notification to the Criminal Justice Standards Division,” he added. A Giglio letter requires a prosecutor to disclose when a law enforcement officer has had credibility issues before calling them as a witness in a criminal case, essentially rendering them useless in criminal investigation.
In an interview with The Smoky Mountain News, Welch agreed with Stetzer’s conclusions and said the order reaffirms that people in positions of power need to be held to the “highest standard.” When such a person uses their position of trust and abuses their power for personal gain, “no one in the community is safe.”
“I think that the judge in his findings was pretty clear that this was atrocious behavior,” she said. “This was not one mistake. This was something being done behind closed doors and in secrecy. It was betraying the trust of the people that had put him in office. He was using the power of his office to intimidate, frighten, abuse the system.”
The appeal
Some speculated following Stetzer’s order that Hoxit would forego an appeal, considering such proceedings can easily cross the $100,000 threshold and can take enough time that even if he won, it would likely be after his term in office is up. However, in a conversation with SMN late last week, Lindsay made it clear that an appeal is coming soon, perhaps even this week.
Along with alleged procedural issues tied to the unprecedented hearing, Lindsay believes that Stetzer’s findings of fact were misguided. While the order cites case law and evidence throughout, the attorney argued that it amounted to more of a moral judgment regarding infidelity than a legal one. He asked, if you take Adarian Nelms out of the case, “where does that leave us?” Answering his own question, Lindsay said it leaves the county with a legitimate case against an elected official. Lindsay noted that in pursuit of the case, Graham County investigators presented enough probable cause to Buncombe County Superior Court Judge Alan Thornburg. However, in his order, Stetzer drew attention to the fact that when signing the order, Thornburg was not told about Hoxit’s conflict.
Still, Lindsay insists that the Nelms case would have stood on its merits and said that other than the fact that Hoxit married Adarian Nelms, there’s still a “valid investigation.”
“That leaves us in a situation where it appears that for whatever reason somebody got a pass here, just because of a marital relationship that went south,” Lindsay said.
“It would have been one thing if Sheriff Hoxit had manufactured a crime, made it up, planted evidence on the commissioner or something like that … Here you have a conflict of interest. That’s it,” he added.
On Feb. 11, Lindsay filed a motion to dismiss Welch’s petition in which he argued the court didn’t have jurisdiction over the case because Hoxit was not served a summons. The motion notes that when Sellers filed her Jan. 29 ex parte order suspending Hoxit, she included language saying the “clerk of superior court shall serve a copy of this order on all parties.”
According to court records, the summons for Hoxit was initially served on a GCSO property and evidence technician by an SBI special agent that Lindsay claimed “was never authorized” to serve it. Lindsay ultimately argued that “proper process” wasn’t followed. While Stetzer dismissed that motion in February, Lindsay said the matter will be resurrected on appeal.
“We think that’s a very, very strong issue,” he told SMN.
Lindsay said a question he’s heard from “a lot of people” is, if a sheriff’s removal can be pursued as Hoxit’s was, are other elected officials at similar risk? Can this mechanism for accountability be abused for political ends? While Lindsay acknowledges that there must be an administrative procedure by which district attorneys, judges, clerks of court and sheriffs can be removed, he thinks those decisions are best left to the voters.
“They’re just concerned about the manner in which the system can go after elected officials,” he said.
Former Graham County Sheriff Brad Hoxit will appeal his removal from office, said attorney Stephen Lindsay. Kyle Perrotti photo
In an April 13 email to SMN, Welch provided a brief statement in response to the news that Hoxit would appeal the ruling.
“The Court made specific findings of fact and conclusions of law that found the evidence was strong showing Hoxit used his office for personal interests,” the email read. “The affair is not the issue — it’s that he used the power and resources of the office of high Sheriff to harass, stalk and keep tabs on his competition.”
The statute that dictates the removal process for a sheriff requires that the matter is expedited by prioritizing it above other cases that may come before the court. From the time an appeal is filed to receiving a ruling can be over six months, which would likely put Hoxit near the end of his elected term. Lindsay said he hopes his clients appeal will likewise be dealt with rapidly.
“It may be that the court will want to take it up more quickly, because it has to do with a public official whose term in office is set to expire at the end of the year,” he said. “Sometimes the courts will expedite things. You’ve seen the United States Supreme Court do that several times for the President.”
Examining the process
Both parties and the judge were aware that conducting the hearing was sort of like being the first people to summit a mountain. They had to blaze their own path.
“We are in a statutory and case law framework that is almost entirely uncharted,” Stetzer noted at one point during the hearing.
In writing his 12-page order, Stetzer notes that while there is a lack of case law regarding sheriff removals, there are “instructive” cases of judges being removed.
When preparing for the filing of the petition and the hearing itself, Welch also turned her attention to prior removals of judges, as well as district attorneys and clerks of court. She also sought opinions from former and current district attorneys who’d filed removal petitions, the conference of district attorneys and lawyers in her own office.
“It felt like I was in law school again,” she said.
Attorney Stephen Lindsay addresses Superior Court Judge William T. Stetzer. Kyle Perrotti photo
Of anyone involved in the hearing, Lindsay had the most experience with similar procedures, as he assisted in arguing the 2012 case for the removal of Durham County District Attorney Tracey Cline and was “tangentially involved” in the 2021 removal of Henderson County District Attorney Greg Newman. Along with leaning on that experience, Lindsay said he and his staff amassed about 200 man-hours when preparing and arguing Hoxit’s case.
A challenge for Welch — and Stetzer — was to navigate a motion by the defense to disqualify Welch from representing the state. The motion was first brought before the court during a Feb. 20 hearing. Attorney Mary Ann Hollocker, who works in Lindsay’s office, told Stetzer that because the district attorney was the petitioner, she had “inserted herself as a witness.” That motion to disqualify was dismissed.
During last month’s removal hearing, Lindsay renewed the motion to disqualify Welch. Welch argued that she would not be an essential witness, adding that she also felt it was her job as the elected district attorney to argue the case on behalf of the people of Graham County. Stetzer again dismissed the motion.
Only the district attorney or county attorney can bring a sheriff removal case before a court. While Welch didn’t testify, Graham County Attorney Jay Coward did, meaning if Stetzer had disqualified Welch, the court would have been in a bind. This highlights a problem with the current statute, which does not include language specifying whether an outside prosecutor can be appointed to step in.
While Welch hasn’t been approached by anyone seeking to change the law, she expects to be. Lindsay said the apparently problematic statute is the kind the North Carolina Sheriffs’ Association may try to change through legislation. He questions whether the law is even constitutional. Now that it’s been tested, he said, changes can be based off more than theory and speculation.
Eddie Caldwell is the Executive Vice President and General Counsel for the North Carolina Sheriffs’ Association. He has considered potential statutory changes, although he said those considerations are independent of the Hoxit case. Caldwell noted that the statute isn’t even clear when the district attorney and/or county attorney should be recused.
“Then, under what authority can someone else be appointed to handle the case?” he pondered in an interview with SMN.
Caldwell also said that Hoxit not being served his summons was “contrary to everything else we do in our entire court system, whether it’s civil or criminal.” However, a sheriff removal hearing is technically neither civil nor criminal, and how and when a sheriff must be served with the petition for removal isn’t stated.
“It can be served in person. It can be served on their lawyer. There are procedures in civil cases for them to be served by publication,” Caldwell said. “But this statute does not seem to address that. The person whose removal is being sought, we feel, needs to be personally notified that the action has been filed against them.”
Welch said she is used to the clear ground rules that dictate criminal proceedings — rules for evidence, admission of hearsay and burden of proof. But this was different. This required a paradigm shift, something that was difficult to achieve since she was in entirely uncharted territory not just for her, but for the court. Caldwell called the current statute “bare bones.” Echoing Welch’s sentiment, he noted that criminal and civil cases have a clear framework that’s clearly documented, something that “works to the benefit of all parties involved, regardless of the issue.”
He plans on briefing the Sheriffs’
Association’s executive committee, which will then decide whether to pursue legislative changes. He hopes that one way or another, the state will seek a “smoother, simpler, more straightforward” process.
“The framework is just non-existent here, and so the association is … talking about potential changes that we might ask the legislature to make,” Caldwell said. “We are not in pursuit of any at this time, but we might be by the time they get back to Raleigh, sometime later this session or next session.”
The hard road
In just the last year, Welch has pushed two other sheriffs out of office amid serious allegations.
Last June, then-Swain County Sheriff Curtis Cochran was arrested on several charges filed in both Eastern Band of Cherokee Indians and Swain County courts related to the alleged sexual assault of two women. Cochran subsequently retired. On Feb. 5 of this year, Cherokee County Sheriff Dustin Smith left office after Welch sent him a letter demanding his resignation following a series of serious problems that began on Dec. 12, 2022, when an unarmed man was shot in the doorway of his own home.
Welch told SMN that Smith’s removal was “a long time coming” but that the other two sheriffs she filed petitions against were more surprising.
“Cochran broke my heart … and with Brad Hoxit I was blindsided,” she said.
The Hoxit hearing became “allconsuming” and had Welch working nights, weekends and holidays. She said that even when she wasn’t researching or crafting her argument, her mind would quickly drift to the case.
“Even when I tried to put it down, I couldn’t put it down,” she said.
Welch said the case was stressful for her office, as it has been widely publicized and was of great interest to the community. It also stretched resources since she had to delegate some tasks she would normally handle to clear the runway for the high-profile hearing.
Hoxit is still popular among a large contingent of Graham County residents. As district attorney, Welch knows there are often people who won’t be happy about cases her office does and doesn’t prosecute. Nonetheless, she acknowledged this matter was different given Hoxit’s position as an elected official, and she feels that despite not being from Graham County, she was well-received.
“I knew that they understood why I was doing what I was doing,” she said.
Repeating a key theme of her closing argument, Welch told SMN that because the sheriff is the most powerful person in any county, it’s paramount that the mechanism to remove them from office is strong and functional. The smaller the county, the more powerful the sheriff, she said. She believes Hoxit’s behavior was becoming “more erratic,” like he was “obsessed.” When he hid his conflict and began misleading people is when he stepped out of the gray area and was committing acts that necessitated his removal, she said.
“If you turn a blind eye to sheriffs doing something wrong that rises to the level of corruption or being dishonest, then you’re complicit in it,” she said.
During her closing arguments, she opined that law enforcement — perhaps only behind military service — is the most honorable career there is. More practically, she has to work with officers in seven counties day in and day out. She admitted that she was worried that she would be perceived as “one of those district attorneys that was declaring war on law enforcement.”
“That’s not who I am,” she said.
A dark tension
This process hasn’t been easy on anyone. Along with the tension that comes with a contentious, high-profile hearing, there was a heavy law enforcement presence throughout, purportedly in response to a credible threat. Both Lindsay and Welch were unaccustomed to such a presence, and the dozens of armed law enforcement officers created an uneasy vibe. Every time someone walked in the door to the courtroom during the hearing, eyes at both tables and in the gallery would dart back to see who it was.
“I was surprised that you had law enforcement agencies from seven different counties that were there at the courthouse,” Lindsay said. “I’ve never seen so many Highway Patrol officers in one place at one time.”
“I’ve never experienced the level of security that I had the week before and then during that week, and even the following weeks, and even to today,” Welch said. “I’m really introverted, so that was hard.”
Lindsay said tensions were heightened for his client the night before the hearing began when seven unmarked vehicles from the Haywood County Sheriff’s Office showed up unannounced at Hoxit’s home to deliver some personal property he’d had at GCSO, a mounted deer head.
The week of the hearing, Welch was escorted to and from the courthouse in a black SUV with two law enforcement vehicles in front and two behind. Some of the only peace she found was during lunch breaks at the law enforcement command center set up a half-mile away. But one day, the illusion was shattered. When she stepped out into the warm spring air and readied to jump back into the fray, she noticed officers lining up in a curious way.
An officer walked backward toward her, drawing close.
“Ma’am, don’t turn around,” he said. “I need you to stay still.”
After a few moments, without turning around, he told her Brad Hoxit was up on a nearby hill “watching.”
“I was sort of saying, I think y’all are overreacting,” Welch recalled. “And they just kept saying, ‘No, ma’am, we’re not.’”
Welch had never met the officer before that week. The night of the odd encounter, she realized just what the deputy was doing standing so close to her. His job was to protect her, and that’s what he did.
