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APPEALS COURT MAY SETTLE DISPUTE OVER DHR PROBE

Nov 18, 1998

Appeals court may settle dispute over DHR probe

By Buster Kantrow

Register Staff Reporter

Judges on the Alabama Court of Criminal Appeals likely will be asked today to settle a dispute between District Attorney John M. Tyson Jr. and two Mobile County circuit judges over Tyson's continued role in a court-ordered investigation of local child protection services.

Attorneys for the circuit court judges and Tyson negotiated Tuesday toward a settlement, but the talks apparently broke down.

Two weeks ago, Judge Braxton Kittrell, presiding judge of Mobile County Circuit Court, ordered Tyson to relinquish his case files to a special prosecutor. Kittrell said he was dissatisfied with the progress of the probe into the state Department of Human Resources.

The presiding judge also ordered dissolved a special grand jury convened a year ago to consider evidence in the case and instructed Circuit Judge Chris Galanos to preside over a new one.

Tyson immediately challenged Kittrell's order as an abuse of power and said his investigation of DHR had not been abandoned. At his request, the appeals court suspended the order, and it set a hearing in the matter for 9:30 a.m. today in Montgomery.

A court clerk said late Tuesday that an attorney for Tyson had notified the court that he expected to reach an agreement with Kittrell and Galanos before today's hearing. Tyson, though, said Tuesday evening that no deal had been struck, and he expected to travel to Montgomery today.

If the judges do hear the case, their ruling may hinge on their technical interpretation of whether Kittrell has the authority, under state judicial rules, to intervene as he did in a grand jury investigation. A decision is not expected immediately.

Kittrell's Nov. 4 order was the latest turn in a bitter dispute between Tyson and the judges over the DHR investigation. Galanos ordered the district attorney to begin it in January 1997 to determine whether agency employees had been "reckless or criminally negligent" in handling complaints of child abuse involving four local infants who became homicide victims.

In November 1997, the special grand jury recommended the impeachment of Martha Nachman, the state Human Resources Commissioner, and reported to Kittrell that its investigation would continue. Mrs. Nachman later resigned.

The grand jury has released no findings since then, although Tyson maintains that it has continued to meet periodically.

Mobile lawyer David G. Wirtes Jr., representing Kittrell and Galanos, said in his motion to the appeals court that Tyson has "persistently failed or refused to demonstrate any tangible results" from his investigation. The grand jury has met only 10 or 11 days in the year since its formation, the filing said.

In Tyson's petition, attorney William Moore said the special grand jury had heard from 77 witnesses, including police, children's advocates, physicians and present and former DHR employees. The grand jury last met Oct. 30, the filing said.

Tyson had learned several days earlier that the judges were again raising questions about his handling of the probe.

And by then, it turns out, Kittrell had already selected a new grand jury - more than a week earlier, without notifying the district attorney, according to Tyson's petition. Galanos then apparently met with the grand jurors and told them to return to the courthouse Nov. 4, the day that Kittrell issued his order, Tyson's filing said.

Kittrell referred questions about the new grand jury this week to Wirtes. The lawyer said there was "no significance" to the interval between the jury's formation and Kittrell's order, which was issued on the morning following the Nov. 3 general election, when Tyson defeated David York in the district attorney's race.

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