Hendersonville man's conviction for nearly killing wife vacated; new trial now likely

A Hendersonville man's conviction for nearly beating his wife to death was erased after a prosecutorial mistake, but more than eight years later, the state's top courts say he can be tried again on different charges. 

Those charges include felony child abuse, strangulation, and assault inflicting serious injury.

Leonard Paul Schalow, 54, was charged in 2014 with attempted first-degree murder for beating Erin Schalow so badly that it left her unrecognizable and in the hospital for more than a month, she has said.

The abuse, which lasted from December 2013 to February 2014, often occurred multiple times a day and with the couple's 10-year-old son in an adjoining room, according to now-former District Attorney Greg Newman, who gave the details after Leonard Schalow's arrest more than eight years ago.

But Newman, who called the domestic abuse case the worst he had seen in at least 25 years of practicing law, realized in 2014 after the empaneling of a jury that the indictment was faulty. That was because it was missing the words "malice aforethought," as required to charge attempted first-degree murder. 

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The error set off years of courtroom battles and six appeals, including two to the North Carolina Supreme Court. It also saw Newman charge Schalow three different times. 

Now a December 2021 decision by the state Supreme Court and another Aug. 2 ruling by N.C. Court of Appeals changed that after the two courts said Newman did not engage in vindictive prosecution and that Schalow was not being unconstitutionally prosecuted for the same offense, known as double jeopardy.

"Because the current charges are not the same offense as any for which Defendant has previously been placed in jeopardy, the trial court did not err by denying Defendant’s motion to dismiss these charges," Appeals Court Judge Allegra Collins wrote in the 3-0 Aug. 2 decision. She was joined by Judges Jeffery Carpenter and Fred Gore.

Asked about the next steps, Andrew Murray, the current district attorney for Henderson, Transylvania, and Polk counties said on Aug. 11, "It’s back in our court. It is back for us to proceed." 

Murray declined further comment because of what he said was the "pending case."

Erin Schalow, who spoke publicly about her ordeal during a 2015 domestic violence forum, did not respond to messages seeking comment.

Leonard Schalow is facing 14 charges of felony child abuse, three counts of assault with a deadly weapon with intent to kill inflicting serious injury, two counts of inflicting serious injury and one count of assault by strangulation. He is currently in the Henderson County Detention Center.

Schalow's attorney, N.C. Assistant Appellate Defender Daniel Shatz, did not return an Aug. 11 message.

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During April 2021 oral arguments before the state Supreme Court, Shatz said prosecutors should not be allowed to trample a defendant's constitutional rights because of their own error.

"They had a chance to prosecute and hold him responsible for his criminal conduct," he said during the arguments. "What we would suggest is ever since then, the state has been trying to avoid the consequence of its own litigation mistake."

Newman did not respond to a message seeking comment.

In an unusual and historic move, the Republican former DA was removed from office April 27, 2021, for “willful misconduct in office” and “conduct prejudicial to the administration of justice which brings the office into disrepute,” under N.C. General Statute 7A-66.

While Newman's handling of the case was discussed in the legal proceeding that ended with his removal, Superior Court Judge Robert C. Ervin found that Schalow's prosecution was not among those involving willful or prejudicial misconduct. 

Mistrial

Rather than proceed with the 2014 trial on the lesser charge of attempted voluntary manslaughter, Newman moved for a mistrial. The Henderson County court granted that over arguments by the defense, which unsuccessfully petitioned the Court of Appeals to intervene.

A new indictment was brought, a new trial was held, and Schalow was convicted in November 2015.

He was sentenced to 13-17 years in prison.

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But in December 2016, the Court of Appeals vacated the conviction based on double jeopardy with the state Supreme Court later upholding that ruling.

In 2017 and 2018 Newman got indictments on the new child abuse and assault charges.

A Superior Court judge denied Shatz's motion to dismiss based on double jeopardy and vindictive prosecution. He appealed, and in January 2020, the Court of Appeals ruled in favor of Schalow.

The N.C. Supreme Court agreed in April 2020 to a motion by the state to review that opinion and ruled in December 2021 against the lower court's presumption of prosecutorial vindictiveness. It remanded the decision on double jeopardy back to the appeals court, which made its decision this month.

Joel Burgess has lived in WNC for more than 20 years, covering politics, government and other news. He's written award-winning stories on topics ranging from gerrymandering to police use of force. Got a tip? Contact Burgess at jburgess@citizentimes.com, 828-713-1095 or on Twitter @AVLreporter. Please help support this type of journalism with a subscription to the Citizen Times.