Carolina Legal Report

An extraordinary story is developing in Henderson County where a superior court judge heard arguments Monday on whether District Attorney Greg Newman should be removed from office, primarily over his handling of sexual assault cases. Newman is the elected district attorney for Henderson, Polk and Transylvania counties.

A number of victims have come forward in recent months to complain that Newman failed to adequately prosecute their cases. In February several filed a petition with the superior court seeking his removal from office. The complaints have included a 2015 child rape case in which a defendant was allowed to plead guilty to a misdemeanor assault on a female charge, which does not require the defendant to be on the sex offender registry, and during which Newman lied to the court about having informed the victim of the plea bargain; a rape case in which a defendant was allowed to plead guilty to a misdemeanor charge of assault on a female; a case of a Brevard College student who said Newman refused to bring charges against two men the college expelled for assaulting her; and

Newman was suspended by the N.C. State Bar for three years in November 2020 for lying to the court in the 2015 child rape case. His suspension was stayed for three years as long as he complies with a number of conditions, largely consistent with those lawyers are expected to comply with anyway. Newman was previously reprimanded by the state bar in May 2019 after he agreed to a motion for appropriate relief as the district attorney on a case where he had originally represented the defendant in 2007 when he was in private practice.

Newman is also facing a second removal complaint filed by a disbarred Brevard attorney who claims he harassed her for years following a public statement she made accusing the prosecutor’s office of failing to act on elder abuse cases.

North Carolina General Statute § 7A-66 creates a process for removal of a district attorney under specific circumstances. Successful use of the statute is extremely rare, as are hearings on removal. Complaints under the statute are somewhat common, but typically get dismissed for lack of probable cause. In this case, Senior Resident Superior Court Judge Robert Ervin found probable cause to allow the proceeding to move forward on April 1 and he appointed prominent Charlotte lawyer James Cooney III as independent counsel to present the case against Newman.

Removal under 7A-66 has happened three times before. In 1995 New Hanover County District Attorney Jerry Spivey was removed after he was overheard at a bar using racial epithets. His removal was upheld by the North Carolina Supreme Court In re Spivey, 480 SE 2d 693, 345 NC 404 (1997). In 2007 Durham County District Attorney Michael Nifong was removed after being disbarred over his mishandling of the Duke lacrosse case. He announced his intention to resign, but removal was used to terminate his term in office prior to the effective date of his resignation. In 2012 Durham County District Attorney Tracey Cline was removed after filing motions in superior court with a number of unsupported allegations against the sitting senior resident superior court judge. (Full disclosure: I was a junior prosecutor in the Durham DA’s office during that time.) Cline’s removal was upheld by the N.C. Court of Appeals In re Cline, 749 SE 2d 91, 230 NC App 11, (2013), rev. denied 753 SE 2d 781 (2014).

Also, kudos to Asheville Citizen-Times reporter Karen Chavez who has done a phenomenal job reporting on this complex story over the last six months or so.

It’s an election year. Yay. Like many places around the country, Durham is in the full swing of a primary. One of our locally contested primary races is the Durham District Attorney’s Office. The incumbent, Roger Echols, is facing two challengers, criminal defense attorney Daniel Meier, and nonprofit executive Satana Deberry.

FULL DISCLOSURE: Echols used to be my boss and I think quite highly of him. Meier is someone I consider a friend and of whom I also have a high opinion. I’d like to see Echols stay in office, but would be happy for Meier if he won.

That brings us to our third candidate. I’ve met Deberry once. I like a lot of what she has to say, and appreciate her reformer spirit.

But I’ve got a big problem. I used to be a journalist. I teach in a school of communications. Plagiarism is a major sin in my household. You might as well tack it up right after “Thou shall not covet.”

So what’s that got to do with the race for prosecutor? Well, anyone who pays attention to legal matters across the country and who has listened to Deberry speak will hear echoes of newly elected Philadelphia District Attorney Larry Krasner in Deberry’s pitch. A longtime civil rights attorney, Krasner was elected on a platform of major reform of the criminal justice system. It’s a platform that progressives believe in. It helped propel him to office. It’s no surprise that other people aspiring to win a prosecutor’s office in a progressive city would adopt some pieces of it.

But there’s a difference between building on borrowed ideas and taking language word-for-word. The latter is plagiarism.

(Note: In the passages below some sentences are bolded. They’re presented as they appear on each candidate’s site. The bolding is not an attempt on my part to highlight particular pieces of the block quote.)

Here’s the opening paragraph of Krasner’s issues pitch on his website.

For far too long the Philadelphia District Attorney’s Office has been driven by a win-at-any-cost culture that prioritizes high conviction rates and harsh sentencing over more effective approaches that are proven to reduce crime. As District Attorney, Larry Krasner will fundamentally change that culture, from a culture of seeking victory for prosecutors to a culture of seeking justice for victims.

Compare that with the opening paragraph on Deberry’s landing page.

For too long the Durham District Attorney’s Office has been driven by a win-at-any-cost culture that prioritizes high conviction rates and harsh sentencing over more effective approaches that are proven to reduce crime. For too long, the priority has been to prosecute poverty in Durham County and to keep the jail full.  For too long, the priority has been to incarcerate rather than educate.  As District Attorney, I will fundamentally change that culture, from a culture of seeking victory for prosecutors to a culture of seeking justice for victims.

Ok, so maybe that was just an honest mistake. Let’s look at their platforms a little more in depth. Here’s Krasner’s section titled “Stop cash bail imprisonment.”

Thousands of the people held in Philadelphia prisons have not been convicted — they simply cannot afford bail and are awaiting trial. Because the courts are clogged with cases, they wait in jail for more than three months, on average. Under Philadelphia’s broken cash bail system, we pay about $40,000 per year per inmate holding those who can’t afford bail, which is sometimes less than $1,000. While suspects who are dangerous to others or who may not return for trial will still be held, Larry will implement alternatives to cash bail for those charged with nonviolent offenses, including monitoring and regular check-ins, an approach similar to the one used successfully in Washington D.C.

Here’s Deberry’s section titled “Stop Cash Bail Imprisonment.”

Ok, well maybe that’s just a coincidence. Here’s Krasner’s “Treat addiction as a medical problem, not a crime” section:

Last year Philadelphia had three times as many drug overdose deaths as deaths by homicide. Larry Krasner knows that the solution to drug addiction is treatment, not incarceration. Prisons are ill-equipped to treat addiction. As District Attorney, Larry will build up Philadelphia’s drug court capacity and increase opportunities for diversion, allowing those arrested for drug possession or for minor offenses due to addiction to get the treatment they need instead of incarceration.

Here’s Deberry’s “Treat Addiction and Mental Health Issues as Medical Problems, not Crimes” section:

Hmm, ok, so there are a couple of instances. What, it goes on? Here’s Krasner’s “Reject a return to failed drug wars of the past”:

The new Attorney General, Jeff Sessions, is enthusiastically discussing a return to the failed drug wars of the past, with increased prosecution of nonviolent drug offenses and use of mandatory minimum sentencing. As District Attorney, Larry will be our city’s first and best line of defense against this outdated and counterproductive approach, which wastes resources and does not make our city safer. Larry will instead seek to divert non-violent drug offenders into treatment and use discretion to avoid unduly harsh sentences, so that we can focus our criminal justice system on keeping us safe from the small number of criminals who commit the vast majority of violent crimes.

And here’s Deberry’s “Reject A Return To Failed Drug Wars Of The Past”:

Here’s Krasner’s “Target the crimes that matter most”:

Too many resources are being used to prosecute minor property crimes and minor drug offenses, often related to addiction. Just 6% of criminals commit 60% of our city’s serious crimes, but too many of these cases, notably homicide cases, do not end in a proper conviction. Larry will push for more proactive, intelligence-based policing and will shift prosecutorial resources to focus on the most serious crimes against people, including sexual assault, human trafficking, and homicide. Those who commit violent crimes against any of us must feel the full consequence of their actions.

And Deberry’s “Target The Crimes That Matter Most”:

Here’s Krasner’s “Stop prosecuting insufficient and insignificant cases”:

While other district attorney’s offices typically prosecute 80 to 85% of cases forwarded by the police, in Philadelphia the DA’s office prosecutes over 98% of them. It acts as an arm of the police rather than a guardian of the public trust in its own right. Not only does this clog the courts, delaying trials, but it contributes to Philadelphia’s high incarceration rate — the highest among major US cities. This over-prosecution results from a toxic culture that prizes prosecution over promoting justice and focuses on winning convictions at any cost, too often at the cost of justice itself. Larry Krasner will decline to prosecute cases forwarded by the police that lack support by sufficient and legally obtained evidence.

And Deberry’s “Stop Prosecuting Insufficient And Insignificant Cases”:

This is my most recent column distributed by the Elon Writers Syndicate

As the General Assembly concludes its business for the year, it is time to take stock of changes made to North Carolina’s sunshine laws.

So far lawmakers have approved and Gov. Pat McCrory has signed seven new exemptions to the Public Records Law. Three more lurk in the recently finalized budget bill.

What government records have been cloaked with secrecy in 2015?

Several relate to new government initiatives that have the Department of Health and Human Services collecting information about patients and abuse victims. These exemptions include a new child maltreatment registry, a new requirement for doctors to report information about abortions performed after the 16th week, and a new committee tasked with reviewing maternal deaths. Those are perhaps reasonable.

The other four are harder to justify.

In an effort to restart executions, the General Assembly passed an overhaul of death penalty procedures. That included a public record exemption for the names and manufacturers of the drugs involved in carrying out executions and for the names of the people who administer the lethal dose.

No information should be shrouded from public view when the state chooses to exercise the penultimate penalty. To withhold information undermines the confidence that the public must have that the killings are done as humanely as possible.

In an effort to protect undercover police officers, the General Assembly attempted to shield some personal information about law enforcement officers. They amended the municipal and county employee personnel statutes to exempt the home addresses and emergency contact information of police officers.

Except criminals don’t learn where cops live by making a public records request to the police department, and that information was already covered by the overly broad personnel exemption. The same change inexplicably removes from the public eye records of government-owned cell phones carried by first-responders. Phone records are some of the most important information that reveals what a government employee is actually doing. Maybe that was the point.

The General Assembly also created a new exemption for usage contracts with the Ports Authority. It’s now the only entity of government in the state that can enter contracts that are completely shielded from public scrutiny. The authority had $39.2 million in operating revenue in the fiscal year that ended June 30, 2014, according to the State Treasurer’s most recent audit.

In 2014 the city of Wilson began requiring people with alarm systems to get a permit. Then they found out those permits were public records. So what did they do about it? Ask and ye shall receive. The General Assembly created a new exemption for municipal alarm registration programs, all across the state.

The largest new exemption came at the very end of the session. During the budget process, the Senate tacked an expansion of the terrorism exemption into the bill. It would exclude “plans, schedules, or other documents” used with “executive protection and security,” which could exclude the governor’s calendar from public record. It would apply to every government executive with a security detail.

The terrorism exemption would also be expanded to cover security plans for prisons, as well as law enforcement’s “specific security information or detailed plans, patterns or practices to prevent or respond to criminal, gang, or organized illegal activity.” This latter piece appears to dramatically expand the already broad leeway that police have to withhold information about how they respond to crime.

The budget bill even expands exemptions for school security plans. In a rewrite of the law governing how schools prepare for emergencies, the General Assembly is requiring several state agencies to collaborate on the creation of a new “school risk and response management system,” which would be exempt from disclosure under the Public Records Law. The bill also requires the creation of an anonymous tip line application. Any information that comes in through the application would be removed from public scrutiny.

A third new exemption also hid in the budget with less dramatic effect. It is part of a section of the budget that makes significant changes to the Department of Information Technology and gives the department clearer guidance on what should and shouldn’t be released to the public. The exemption covers security plans, criminal background checks of employees, and information shared by other agencies that is already exempt from the public records law.

This year’s changes are in addition to the eight new exemptions implemented in 2014, which hid information about fracking chemicals, unpublished data collected by university researchers, and complaints about agricultural pollution.

There is one small bright spot this year. At the request of the Department of Cultural Resources, the General Assembly placed a 100-year cap on how long any exemption can last. That opens up a number of 19th and early 20th century records in the State Archives for public inspection.

Despite that small ray of sunshine, the forecast does not look good for government transparency in North Carolina. The Public Records Law is being dismantled, exemption by exemption.

In a mixed ruling for both parties, the N.C. Court of Appeals released an opinion Tuesday morning that preserves some of of SBI Analyst Beth Desmond’s libel claims against The News & Observer. The ruling also dismisses most of them.

Desmond is a firearms analyst. Her testimony in a Pitt County case was the subject of a 2010 article in the newspaper that raised doubts about the science of firearms and toolmark identification. In that case Desmond testified that eight cartridge cases found at the scene were fired from a High Point 9 mm pistol. She also testified that two bullets found at the scene were fired from the same type of gun, but that she could not say with certainty that it was the same gun. After the trial, a defense attorney in a co-defendant’s case had the bullets photographed under a microscope. They appeared different.The News & Observer story, in part relying on those photographs, quoted several experts who raised questions about the analysis. The SBI then asked a former FBI analyst to perform an independent analysis, which reaffirmed Desmond’s conclusions. Desmond sued the newspaper and several of its employees for libel in 2011 over several statements in the original article, as well as those made in a followup.

In March of 2014, Superior Court Judge Donald Stephens entered a ruling dismissing several of the defendants but allowing the libel case to move forward against the newspaper and investigative reporter Mandy Locke over 16 specific passages in the two articles. On Tuesday the Court of Appeals found that six of the passages are protected by the fair report privilege, that two of the statements are factually accurate and that two more are not libelous. Claims based on the remaining six passages, though, could move forward.

The court broke up the passages into four separate groups for analysis. The six that survived were all in a group dealing with statements attributed to experts by the newspaper. The newspaper argued that those passages were protected by opinion, and that the plaintiff had not offered any evidence of actual malice. Because Desmond is a public official, she must prove the the newspaper and its reporter acted with actual malice, which is a reckless disregard for the truth or falsity of a matter or knowledge of its falsity.

The opinion defense provides leeway for discussion of one’s own opinion without fear of it being libelous. The Supreme Court upheld the opinion defense in Milkovich v. Lorrain Journal but also set some limits on it.  Taking a statement that can be proved true or false and qualifying it with “in my opinion …” will not give rise to the defense. The court in this case said that separating opinion and fact in the passages at issue was difficult.

Some of the allegedly defamatory statements, though stated as expressions of opinion from experts, may be factually false because Locke reported that the experts expressed opinions regarding Desmond’s work that they actually did not express. In some instances, the evidence indicates that Locke asked the experts a hypothetical question, and they answered on the assumption that the facts of the hypothetical question were true, while the facts were actually false and Locke either knew the facts were false or she asked the question with reckless disregard for the actual facts. The experts’ opinions were then stated in the article as opinions which the experts gave about Desmond’s actual work, instead of in response to a hypothetical question. Thus, the statements, even as opinions, “imply a false assertion of fact” and may be actionable under Milkovich.

The court said that because there was some discrepancy in the depositions of the experts and Locke about how the quotes were used, that it was possible Desmond could prove actual malice at trial. That’s a question for the jury to decide, and so the court allowed those six passages to survive.

The next group of passages dealt with statements attributed to Desmond’s court testimony. North Carolina recognizes the fair report privilege, which allows reporters to report on statements made during official proceedings and in public documents as long as the reporting is substantially accurate, fair, complete and properly attributed. Quoting its own decision in Lacomb v. Jacksonville Daily News Co. in which it first recognized the fair report privilege in North Carolina, the court said:

The fair report privilege flows from the absolute privilege which attaches to statements made in the due course of a judicial proceeding. Official statements made in a judicial proceeding will not support a civil action for defamation. This privilege includes statements made in arrest warrants. Statements in pleadings and other papers filed in a judicial proceeding which are relevant or pertinent to the subject matter in controversy are cloaked with this absolute privilege

The court found that those passages were not actionable because Locke’s reporting on them was substantially accurate.

Finally, the court addressed four other passages. For two of them, including a statement about the bullets being photographed, the court said they were true. One of the statements “She scribbled down the measurements of the lands and grooves” the court said wasn’t libelous. For the last statement, which reads “Experts, therefore, can’t provide probability of error” the court said that the plaintiff had failed to show that it makes a false assertion of fact. The court noted that experts disagree on probability in this arena and found that it was a statement of opinion when looked at in context, therefore subject to the opinion defense.

In the first case to make it through the revised, secret N.C. Judicial Standards Commission process, the N.C. Supreme Court Friday upheld a public reprimand for Halifax Chief District Court Judge Brenda Branch.

The court found that Branch entered a divorce decree against an active duty soldier who was stationed in South Korea. The soldier had written to the court and asked for a continuance until his overseas tour would be up, in accord with the federal Servicemembers Civil Relief Act of 2003. Branch continued the case while investigating whether or not the soldier provided sufficient information to warrant a stay. After concluding he had not, she entered a default judgment against him without appointing an attorney. The SCRA prohibits courts from entering default judgments against active-duty soldiers, unless the court first appoints an attorney to represent the soldier’s interests.

Branch’s case is the first to work its way through the new N.C. Judicial Standards Commission process since the General Assembly made its proceedings secret in 2013. Prior to August 2013, Judicial Standards Commission complaints and hearings were public records. Without explanation during the 2013 session, the General Assembly re-wrote the rules for the commissions proceedings and made hearings, complaints and answers exempt from the public records law unless the N.C. Supreme Court decides to endorse a commission recommendation for punishment.

Branch first took the bench in Halifax County after being appointed by Gov. Mike Easley in 2007.

It’s the first rebuke of a lower court judge by the Supreme Court since 2012.

On Wednesday, a Florida-based blog that tracks instances of police officers attempting to curtail the free speech rights of citizens who record law enforcement in action reported that Henderson County, N.C., sheriff’s deputies attempted to seize the cellphone recordings several people made of the officers attempts to break up a pro-marijuana protest outside the courthouse.

The right of citizens to record the police while in public is fairly well established as a basic First Amendment principle. While the Supreme Court has not had to answer the question directly of whether there is a right to record in public, numerous lower courts, including the First Circuit Court of Appeals, Seventh Circuit Court of Appeals, Ninth Circuit Court of Appeals and Illinois Supreme Court, have found that it exists. The issue has not yet come up in North Carolina’s courts or the Fourth Circuit, though I’m confident in asserting that citizens here have a right to record police as long as the citizen isn’t interfering with an active investigation.

What captures my attention about this story, though, is not the officers attempt to seize the cellphone recordings. Rather, I’m interested in the law they were attempting to enforce.

The officers apparently asked protesters, a group of libertarian-minded folks who sought to encourage jury nullification in a particular marijuana case, to move to a spot 300 feet from the entrance to the courthouse. That’s in accord with a 1977 state law on obstruction of justice that bars protesting or picketing within 300 feet of a courthouse if the intent of the protest is “to interfere with, obstruct, or impede the administration of justice, or with intent to influence any justice or judge of the General Court of Justice, juror, witness, district attorney, assistant district attorney, or court officer, in the discharge of his duty …”

Within that 300 foot buffer zone at nearly every (I’m fairly confident that it is every, although I have only personally visited about 30) courthouse in the state are public streets and sidewalks. Public streets and sidewalks are considered traditional public forums in constitutional law, meaning that government attempts to restrict speech there must meet the time, place and manner test first announced by the Supreme Court in Grayned v. City of Rockford and later refined in Ward v. Rock Against Racism. For a time, place and manner restriction on speech in a public forum to be valid, the government must show that the limitation is 1) content-neutral, 2) is narrowly tailored to advance a substantial government interest and 3) leaves open alternative channels of communication. It is my opinion that North Carolina’s anti-picketing ban near courthouses cannot withstand the scrutiny of a time, place and manner test.

The law has only been noticed by our appellate courts twice since its passage. The first time was In re Kivett, a 1983 case, in which the N.C. Supreme Court mentions the picketing ban as one of the many possible ways a person could run afoul of the state’s obstruction of justice laws. The second time was in Crumpler v. Thornburg, a 1989 case, in which the N.C. Court of Appeals was asked to directly consider the constitutionality of the ban. The court chose not to answer the question because the underlying issue had become moot. William Crumpler was an attorney opposed to the death penalty who sought a permit from the City of Raleigh to protest outside the Wake County courthouse in advance of the state’s execution of John Rook. Superior Court Judge Donald Smith entered a temporary restraining order allowing Crumpler’s protest, and Rook was executed. On review, the Court of Appeals declined to rule on the merits since the issue was moot following Rook’s death.

The U.S. Supreme Court has continued to provide guidance on time, place and manner restrictions, though.

Most recently in 2014, the court struck down a Massachusetts ban on standing within 35 feet of an abortion clinic entrance in McCullen v. Coakley. In McCullen the court said: “The Act would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred.” It seems self-evident that the N.C. statute in question requires that sort of determination by an officer attempting to enforce the law because it is limited to speech that is intended to “influence” any justice, judge, witness, prosecutor or other central figure in a case before the courts. It appears content-based because by omission it excludes pickets that are not intended to influence potential actors in a particular court case.

For example, one could hold a general pro-cannabis protest outside a North Carolina courthouse, but if the picket references a particular defendant then it would be in clear violation of the obstruction statute. If the statute is viewpoint based, then it must pass the heightened strict scrutiny standard of being put in place to further a compelling government interest and being narrowly tailored to achieve that interest.

Even if one concludes that the statute’s intent to prevent an undue influence on the outcome of court cases is content-neutral, it is hard to reconcile the breadth of the N.C. statute against the limitations placed in McCullen and its predecessors. As the McCullen court noted: “For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.'” (citing Ward). The anti-picketing statute on its face appears to fail the narrow tailoring requirement. Three hundred feet is 100 yards, or the entire field of play in a football game. That is a tremendous amount of space within which protected speech cannot occur.

The Supreme Court has been somewhat skeptical of buffer zones, although it has upheld them in such cases as the 100-foot barrier that Tennessee put in place around polling areas. That buffer came before the court in Burson v. Freeman. In Burson, the court acknowledged that Tennessee’s statute failed the content-neutrality test, but the state was able to pass strict scrutiny by showing that the ban on campaign speech within 100 feet of a poll served a compelling government interest and that it was narrowly tailored to serve that interest. North Carolina’s ban on picketing near courthouses appears to fail that narrow tailoring based on the sheer distance it requires protesters to stay away from the court building. Wouldn’t 50 feet or 100 feet be less restrictive and more narrowly tailored? What about 25 feet? The 300 foot number appears arbitrary.

One of the reasons the Burson court found that the 100-foot buffer was narrowly tailored to achieve a compelling government interest was that the state of Tennessee was that under state law, law enforcement officers were generally barred from being present at the polls in order to prevent the appearance of coercion on the electoral process. No such prohibition exists outside N.C. courthouses. Deputies are readily able and available to monitor protests in the vicinity of judicial buildings.

And that’s why I think the state of North Carolina would have a difficult time showing that NCGS 14-225.1 is narrowly tailored sufficient to pass either a heightened strict scrutiny standard or a lessened time, place and manner test.

To come full-circle, the law is on the books and the deputies are tasked with enforcing it until it is either modified by the General Assembly or overturned by a court.