By By BETTY MITCHELL GRAY
Staff Writer
Lawyers for the state acknowledged in a special session of Beaufort County Superior Court on Tuesday that the state archeologist did not follow proper procedure in 1986 when the archeologist unearthed the remains of a man believed to be a member of Blackbeard’s pirate crew.
Karen A. Blum, an assistant attorney general, told Superior Court Judge Wayland Sermons that the state had not published notice of the excavation of the remains, as required by state law to determine the identity or next of kin — or both — of the deceased.
State Archeologist Stephen R. Claggett said, under questioning by Sermons, that the state’s oversight should not affect the court’s decision regarding the estate of Edward Salter.
“There was a tremendous amount of statewide publicity about what we were doing,” he said.
Sermons said he will file a written decision in the case. He asked the public not to contact him about the case before he rules in the matter.
“A long time has passed since 1986,” Sermons said at the conclusion of the hearing. “The court is not going to decide this case today.”
The hearing — an appeal of a May 2009 ruling by Clerk of Court Marty Paramore — to determine whether Salter’s estate should be reopened was heard before a crowd of some 40 onlookers. It was scheduled after J. Erik Groves, a lawyer for Kevin P. Duffus, appealed Paramore’s ruling denying the request to reopen Salter’s estate and appoint Duffus, a Raleigh researcher and author, its executor.
For more than two hours, lawyers for Duffus and the state first argued whether Sermons should allow new evidence to be presented in the case and, later, whether the estate should be reopened.
During the hearing, Sermons allowed into evidence to pieces of information that, he said, could play a role in his decision-making process.
He allowed Groves to admit evidence, stipulated to by the state’s lawyers, that the state archeologist had not properly advertised its discovery of the remains in order to find descendants of the man believed to be Salter. State law requires the state archeologist to “publish notice that excavation of the remains has occurred, at least once per week for four successive weeks in a newspaper of general circulation in the county where the burials or skeletal remains were situated.”
Groves told the court that “the state archeologist shouldn’t be allowed to come into the court room with unclean hands.”
Sermons also allowed into evidence a memorandum from the state stating that the older of two burial sites uncovered in the 1986 excavation is “thought to be that of Edward Salter Sr.”
“Having these two items on the record changes the playing field slightly,” he said from the bench.
Sermons called for testimony from Claggett, questioning him about the procedures the state follows when unidentified remains are uncovered and the state’s interest in preserving the remains of the man believed to be Salter.
“Does the state have an interest in preserving the remains?” Sermons asked.
The state could gain “a tremendous amount of information from studying the remains,” Claggett said. “We have looked as these remains with an eye to applying new techniques up to and including DNA analysis.”
Sermons asked Claggett about possible DNA tests that could be performed on the remains.
“If this sort of analysis is done, it would have to be done very carefully,” Claggett said.
Sermons asked, “Is DNA necessary to determine whether the next of kin are entitled to the body?”
“No,” Claggett replied.
Sermons then asked, “Is there an interest by the state such that the state would fight to keep the bones against the wishes of the next of kin?”
“No,” Claggett replied.
Under questioning, Claggett told Sermons that he believes the state is keeping the remains in a public location with the proper acknowledgement of their historical importance
“Obviously, that doesn’t return whoever was slumbering on the banks of Bath Creek to a decent internment,” he said.
According to court documents, Duffus wants to be the Salter estate’s executor, in part, so that genetic testing can be done by East Carolina University on the skeletal remains, which are currently housed by the Office of State Archaeology in Raleigh and which he believes to be those of Salter.
During questioning by Groves, Claggett said that DNA testing would not positively confirm the identity of the remains.
“There is always margin for error,” Claggett said.
Sermons asked Groves if he and Duffus had taken the wrong legal approach by trying to open Salter’s estate if their ultimate goal was to gain possession of the bones believed to be those of Salter.
“If you allow us to open up the estate of Edward Salter, you give us a vehicle to go after the bones,” Groves said. “You give us legal standing.”
He said that in the years since Salter’s death, the number of people claiming to be next of kin would be unmanageable for the state to deal with in the matter and that Duffus should be appointed a personal representative of those next of kin who have come forward to date.
Blum said the Department of Cultural Resources, which oversees the state archeologist, is not trying to interfere with the reopening of the estate but “is the proper custodian of these remains.”
Sermons asked Blum, “Would the state require every possible next of kin to deal the state archeologist” in the disposition of Salter’s remains?
Blum said, “No.”
Sermons then asked, “300 years is a long time to create progeny. Would not a personal representative of the heirs be helpful” in the matter?
Blum said the statute requires the state archeologist to work with “the next of kin.”
Duffus believes that this Edward Salter, a barrel-maker who died in 1735, may have been a member of Blackbeard’s pirate crew who escaped the noose and returned to settle in Bath. Salter went on to become a warden of St. Thomas Parish and an assemblyman representing Beaufort County in 1731.
The bones of the man believed to be Salter ended up in Raleigh after what was then Texasgulf (now PotashCorp Aurora) asked for permission to install a bulkhead on the west bank of Bath Creek. Archeological examinations before the work was done yielded the remains in 1986.
In an interview after the hearing, Duffus said he was pleased that Sermons allowed the new evidence to be entered into the court record.
“I’m very satisfied that the court allowed us to supplement the evidence, and I’m please that it was allowed into evidence that the state has believed these remains to be Edward Salter since 1986,” he said. “Unfortunately, we don’t yet know the conclusion of the court.”
Sermons could rule to grant Duffus’ appeal and reopen the estate or he could stay Duffus’ appeal while the state advertises for Salter’s heirs to come forward.