NC Appeals Court Judge: Racism Doesn’t Exist

Fri., Sept. 24: "The law is color blind” + Wake DA Lorrin Freeman sticks her head in the lion's mouth + homicides (and maybe council member salaries) spike in Durham


1. COA Judge Says There’s No Racial Bias in Justice System, Attacks Cheri Beasley

Last year, as every Republican operative you encounter will happily point out, Republicans swept the statewide judicial races, sometimes winning narrowly, but winnowing the Dems’ advantage on the state Supreme Court to 4–3 and claiming 10 of the 15 seats on the Court of Appeals.

Two of the newcomers are:

  • Jeff Carpenter, an ex-state trooper and defense attorney first appointed to the Union County Superior Court bench by former Gov. Pat McCrory; and

  • Jefferson Griffin, who graduated from the NC Central School of Law, then became a Wake County prosecutor.

  • They won their elections 52-48 (Carpenter) and 51-49 (Griffin).

Along with Democrat Toby Hampson, from Wake County, they comprised the panel that heard and, on Sept. 21, reached a unanimous decision on State v. Kevin Lee Johnson. (Of note: Hampson beat Griffin for a spot on the Court of Appeals in 2018.)

Here’s a quick rundown of the case: In December 2017, Iredell County Sheriff’s Office Lieutenant Chris Stone pulled over Johnson as he was leaving a convenience store. According to the court ruling, Stone told Johnson that he was going to give him a warning for not wearing a seatbelt “if that’s all that was wrong.”

But then Stone asked Johnson to get out of his vehicle and come toward Stone’s car. He then asked if Johnson had anything illegal in his possession. Johnson said no. Stone asked Johnson if he could search him. Johnson, walking toward Stone’s car, stopped and raised his hands above his head. Stone reached into Johnson’s sweatshirt and trouser pockets and found a bag of cocaine.

  • “Video evidence reflects Lieutenant Stone never conducted an external pat-down of [Johnson’s] person before instructing Defendant to get in the front passenger seat of the patrol vehicle.”

  • Stone then told Johnson that he wouldn’t charge him if Johnson reached out to narcotics detectives and became an informant. A “short time later,” Stone learned that Johnson hadn’t called the detectives, so he went and arrested him.

  • In March 2018, a grand jury charged Johnson with felony possession of cocaine, felony possession of paraphernalia, and habitual-felon status.

Johnson tried to have the cocaine suppressed, arguing the search was illegal because Stone didn’t have reasonable grounds to stop him and, even if the stop was OK, “going through the Defendant’s pockets for a violation of a seatbelt was excessive, unconstitutional, and unlawful.” He said he’d never given Stone permission to search his pockets; he thought Stone was going to search him for weapons.

  • Stone told the court: “I asked him if he had anything illegal in his possession. That’s what I always ask people. … I teach new deputies … [always] ask to search [people.]” He said he did so “for safety reasons.”

  • When the trial court rejected his motion, Johnson pled guilty, with the proviso that he could appeal the search.

That brings us to the Court of Appeals, which ruled that Stone’s search was indeed unconstitutional. Case law in North Carolina holds that “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission,” and searching someone for not wearing a seatbelt clearly did so, the judges said.

  • “Lieutenant Stone did not articulate any reasonable suspicion of other criminal activity to support his asking for Defendant’s consent to search. … Certainly, a full search of Defendant’s person for any illegal contraband was not related to the traffic stop based on a seatbelt infraction.”

  • The judges found that Stone’s claim to search for weapons was bogus: He didn’t. He never frisked Johnson; he searched Johnson’s pockets.

It’s an interesting case, to be sure (and someone in Iredell County might want to take a closer look at Lieutenant Stone and his “always search everyone” mindset). But that’s not what grabbed my attention. I was drawn to the two concurring opinions that Carpenter and Griffin offered to chastise assistant appellate defender Michele Goldman for “interjecting race” into the case in her brief.

  • Did I not mention that Johnson is Black? Or that Carpenter and Griffin are white? Did you guess that already?

Carpenter’s was short, just a page:

  • “Choosing to inject arguments of disparate treatment due to race into matters before the Court where such treatment is not at issue and does not further the goal of the equal application of the law to everyone.”

Griffin—the NC Central law grad and former prosecutor—had much, much more to say on the subject.

The Defendant’s brief also raises a question of impartiality in traffic stops, and our justice system generally, based on the color of a person’s skin and their gender. This appeal to an emotion, and to nothing before us in the Record, must be addressed, as the law applies equally to everyone. …

Defendant’s brief implies that U.S. citizens are treated differently under our laws based on the color of their skin. I reject this argument. The law is color blind and applies equally to every citizen in the United States of America. This argument in Defendant’s brief is inflammatory and unnecessary.

I’ll come back to that. Griffin goes on to excoriate former chief justice and now U.S. Senate candidate Cheri Beasley, whom Goldman’s brief quoted. (Beasley was chief justice when the brief was filed).

It is hard to blame Defendant for raising this argument. The brief quoted former North Carolina Chief Justice Beasley, who also implied in a speech on 2 June 2020 that our justice system does not treat people equally in the courtroom based on the color of their skin. …

This statement from the former Chief Justice has motivated Defendant in this case to assert that “[o]ur Constitution gives this Court the legal authority to carry out our Chief Justice’s pledge.” Defendant’s statement highlights the problem with the judiciary becoming involved in public policy. The speech by the former Chief Justice states our justice system does not treat people equally based on the color of their skin. It also encourages and charges the courts to become an active body by involving our judicial branch in policy decisions. The judiciary should at all times practice judicial restraint. Here, this Court reaches the correct legal outcome regardless of the color of Defendant.

We are fortunate to live in the United States of America where the law is applied the same to all citizens.

What did Goldman say that offended Griffin? She asked the court to not give law enforcement “unfettered discretion” in traffic stops—which are often pretexts for drug searches—because doing so disproportionately affects people of color.

  • Arguing for the COA to strictly apply the North Carolina Constitution’s prohibition against “general warrants,” or searches without evidence of a crime, Goldman says recent U.S. Supreme Court and N.C. Supreme Court decisions have diluted “North Carolinians’ privacy and security against arbitrary government invasion” by enabling police “to use traffic stops as drug interdiction programs, largely with impunity.”

  • “This unfettered discretion has led to growing racial disparity in how law enforcement officers conduct traffic stops,” the brief says, citing research from UNC-Chapel Hill professor Frank Baumgartner and other scholars that found that “Black male drivers stopped for a seatbelt violation were nearly 250% more likely to be searched than were white male drivers stopped for the same infraction.”

  • “Given the disparate impact officers’ unbridled discretion to expand the scope of a traffic stop has in particular on young Black male drivers, it is imperative that our courts act to protect our citizens from what amounts to a general warrant,” Goldman argues.

  • She then quotes Beasley’s speech, made after the murder of George Floyd: “The work of improving justice is never truly done. Justice is not an achievement. It is a practice. As we change and grow as a society, our understanding of justice changes and grows and expands. And our courts must do the same.”

It’s perhaps notable that Goldman didn’t quote this part of Beasley’s speech, but Griffin did.

The data also overwhelmingly bears out the truth of those lived experiences. In our courts, African-Americans are more harshly treated, more severely punished, and more likely to be presumed guilty. There are many ways to create change in the world, but one thing is apparent: the young people who are protesting everyday have made clear that they do not intend to live in a world in which they are denied justice and equality like the generations before them.

We must develop a plan for accountability in our courts. Judges work hard and are committed to serving the public. But even the best judges must be trained to recognize our own biases. We have to be experts not just in the law, but in equity, equity that recognizes the difficult truths about our shared past. We must openly acknowledge the disparities that exist and are too often perpetuated by our justice system.

As for Griffin’s claim that everyone is treated equally under the law:

  • Black men are incarcerated at 5 times the rate of white men.

  • In North Carolina, 52% of the people incarcerated in state or federal prisons in 2018 were Black.

  • 28% of the people arrested multiple times in a year are Black, though African Americans account for 13% of the U.S. population.

  • One-fifth of the people on who experience police use of force are Black, though only 11.5% of Black people have any police contact in a year.

  • African Americans comprise 42% of those on Death Row and 48% of those serving prison sentences of 50 years or longer.

  • The juvenile justice system confines Black youth at more than 4 times the rate of white youth.

2. Lorrin Freeman, on Defense

Last night, Emancipate NC held a forum on criminal justice reform at the Chavis Community Center moderated by executive director Dawn Blagrove. On the panel were activist Kerwin Pittman, Kimberly Muktarian from the group Save Our Sons, and Wake County District Attorney candidate Damon Chetson—all outspoken reform advocates, and critics of current DA Lorrin Freeman.

Freeman muddled through the hostile terrain, fielding pointed questions about, for example, whether she should dismiss cases that stem from pretextual traffic stops:

  • “There is a growing recognition that, you know, law enforcement does not need to be enforcing what is commonly called these days poverty offenses. And I think this is something that, you know, even lots of law enforcement agencies across this country are changing their approach to and so, you know, yes. Should law enforcement have a valid reason for stopping someone? Absolutely.”

  • But, ultimately, the answer was no.

  • Dismiss low-level marijuana cases? No, she said, emphasizing her office’s diversion efforts. “To give up on the opportunity to connect people to treatment is a bad idea.”

  • Eliminate sentencing enhancements such as habitual-felon status? No, Freeman said. “They are rarely used in actuality.” (Blagrove begged to differ.) She called them important tools.

  • Establish an automatic review process for old errors and excessive sentences? They review old cases when they learn of errors, but Freeman opposed revisiting sentences without a specific reason, saying that would second-guess a judge and jury.

  • End cash bail? No. “The reason I say that is in California, where this happened, more people actually ended up being detained than under the cash bail system.” But, she said, her office has been working on alternatives to cash bail to make sure that people aren’t held in custody for no reason other than they don’t have money.

  • Establish a special, walled-off group of prosecutors who handle police misconduct cases? No. There aren’t enough resources. “I think that resources and making sure we have sufficient people looking at these things really would be a huge step in the right direction. Unfortunately, the legislature controls that.”

Chetson, meanwhile, mostly preached to the choir:

  • Pretextual stops are “offensive.” No low-level weed cases. No sentencing enhancements. Review old prosecutions. “Maybe” end cash bail.

  • He definitely thinks the DA’s Office needs prosecutors who focus on the cops. “I represented Kyron Hinton back when I was in law school at the public defender’s office,” he said. “The prosecution of the individuals who were responsible for that, in my mind, was very inadequate.”

  • Hinton won an $83,000 settlement from the Sheriff’s Office after being beaten by deputies, then died a day later with cocaine in his system, though the death was ruled a homicide. Freeman didn’t prosecute the deputies who beat him or anyone for his death.

  • Chetson encouraged everyone to Google Raleigh Detective Omar Abdullah. (I’ll save you the trouble.)

For Freeman, that was the easy part. The last 15 or so minutes were set aside for audience questions, of which there were only a few. They were all directed at Freeman, and none were friendly.

The first came from a woman (whose name I didn’t catch) who said, “I’ve been trying to reach you for the past three weeks [to discuss getting warrants removed for people with traffic offenses]. And I was told by your office that I’m not allowed to have your email address to contact you. And I'm wondering why as a public official, I don’t have access to you.”

  • Freeman said she’d be happy to meet with her, and didn’t know why her office had said that. (Her email address—which is a public record—is I’ve found her pretty responsive.)

Question 2 was from Aisha Flood, whose two brothers were both killed by Raleigh police—one when a cop car clipped the scooter he was riding on, the other after being shot. (Read their story here.) After saying she’d been told by the DA’s Office that her brother did not have a gun when he was killed—that would contradict the RPD’s five-day report, which said he had a gun and shot an officer in the leg—Flood said, “Lorrin Freeman, I have met with you several times. … You have brushed my family to the side. My mother has still yet to get an apology.”

  • Freeman responded: “Miss Flood, with all due respect, in your case, your brother did have a gun. We came in, we met with you, and we did our job. … When we have evidence that there is wrongdoing, we take action. But we cannot barge and prosecute people when there is not evidence to support prosecution.”

The third and final question—less a question than the outburst of an angry mother, really—came from Robin Mills, whose son was jailed for 18 days after Detective Abdullah accused him of trafficking heroin that turned out to be brown sugar. Here’s where things got wild.

Pointing out that Dennis Williams came to RPD’s notice by selling fake cocaine to an undercover officer, she asked, “How can you say there’s no way that Officer Omar Abdullah had no idea that CI had it within himself to do what he did? If he got duped, if he got fooled, what does that say for RPD?”

In fairness, Freeman hasn’t said—to me or to anyone else, so far as I know—that Abdullah had no idea what Williams was doing. From what we know of the case, that seems unlikely. According to the federal lawsuit, Abdullah claimed to have searched Abdullah for contraband before and after the fake drug buys; if he did that, he should have found the brown sugar Williams allegedly passed off as the heroin he purchased from the dealers Abdullah then arrested.

  • That Williams “bought” fake drugs at least 15 times would seem to indicate that Abdullah either wasn’t searching Williams and lied about it or that he knew Williams had fake drugs on him going into the buys.

There was no good answer Freeman could give, as she tried to explain.

“Let me say first and foremost that for anybody to be wrongfully charged is a nightmare. It is never our intent that people be charged wrongfully. Secondly, as I’ve said before, this is an ongoing investigation. … The Rules of Professional Conduct for attorneys prevent me from being able to talk about a case in detail.”

That’s true. It also went over like a fart in an elevator.

“How can you say the cop should not be indicted?” Mills said, her voice rising. “… They nicknamed the CI ‘Aspirin,’ That’s the same CI that had my son—that had my son behind bars, that had my nerves tore up. … I almost lost my son for a minimum of seven and a half years!”

Freeman said that’s why she sought an independent investigation. “But let me be very clear about something about this. Even if we cannot criminally prosecute—”

“What do you mean, if?” Mills shot back.

“Just because we may not end up with evidence in a case sufficient to prosecute someone does not mean it is not the same thing as me saying that everything happened the way that it should have been,” Freeman said, pointing to the ongoing federal lawsuit, which goes to mediation on Tuesday.

That response failed to mollify her critics. Nothing that hinted that Abdullah might get away scot-free would.

“This is shameful. This is disgusting. This is bizarre,” Pittman interjected. “And there’s no reason that you shouldn’t at least call for the process to be expedited for the charges to be brought against all of these officers who participated in this. The buck stops with you when it comes to things of that nature.”

Freeman remained stoic, never appearing to get rattled. But her attempts to empathize often failed, and her explanations sometimes came across as hollow—like she was lawyer-splaining the way things were, while they wanted to know why things weren’t better.

  • That’s not to say she didn’t empathize or that her explanations were hollow. But that’s how it read in the room. This was an away game for her, and it showed.

  • It was harder to tell how well Chetson connected. He said more of what Emancipate wanted to hear, but he hasn’t gotten his sea legs as a politician.

I left thinking that Freeman was courageous for walking into the lion’s den. Later, I wondered if she’d been foolish for exposing herself to such a hostile audience in front of news cameras. (ABC 11 was there.) I’m not sure, to be honest.

  • So here’s the question: Is Freeman in trouble? She last faced a primary opponent during her first DA run in 2014; she won 58–42. She faced only token Republican opposition in 2018.

  • But Wake is much more Democratic than it was eight years ago, and its Democratic Party is much more liberal. Still, Wake isn’t Durham, which elected reformer DA Satana Deberry in 2018.

  • Ask me today, and I’m skeptical that reform advocates have the presence to overcome Freelon’s institutional support. But a lot can happen over the next six months.

3. Durham Homicides Up 44%

The Durham Police Department delivered its second-quarter crime report to the city council at yesterday’s work session. This graph jumped out:

Homicides are up—in keeping with the national spike in homicides I mentioned yesterday—as are sexual assaults, while robberies and aggravated assaults have fallen. Property crimes are also down across the board.

  • So there’s less crime, except for the most heinous crimes.

Also troubling: The DPD has cleared just 39% of those homicides—an improvement from the 32% cleared in Q2 2020—compared with the FBI’s 2019 national average for similar-size cities of 51.5%.

  • It has cleared just 22% of sexual assaults, though that’s closer to the FBI’s average.

On a brighter note: The DPD’s misdemeanor diversion program seems to be working.

  • “There have been 374 participants enrolled to date with a 100% completion rate. There are seven participants still enrolled with two intakes pending and all are on track to complete. There have been 368 participants who have completed the program and only 16 participants re-offended within one year of completion.”

The DPD’s never-ending quest to fill its 60-odd vacancies landed 26 applicants in Q2, of whom seven live in Durham. Eight of the 26 applicants, and three of the seven Durhamites, failed the written or physical test.

Fun(ish) fact: This year, the DPD has arrested (or filed juvenile petitions for) two 16-year-olds for possessing “obscene materials.”

RELATED: A recent city audit found that “Durham police officers uploaded body-camera footage late and in some cases mislabeled it, potentially jeopardizing evidence,” the N&O reported.

OTHER COUNCIL ACTION: The city council also discussed extending its low-income property tax break to Walltown. There are some legal issues to overcome, but the idea is to help homeowners in booming neighborhoods keep their property taxes affordable.

  • Anyway, during the conversation, council member DeDreana Freeman thanked Charlie Reece for meeting with Walltown residents the day before.

  • Evidently, Reece jumped in after Freeman, whose ward includes Walltown, didn’t make it.

  • Freeman is up for reelection next month; all Durham voters cast ballots in the three ward elections. Reece’s term runs through 2023.

Finally, the council considered giving itself a raise, from about $25,000 to about $35,000, while hiking the mayor’s salary from about $30,000 to about $41,500. In short, the council would deem these positions full-time and tie their salaries to the living wage standard.

  • If you’ve read this newsletter long enough, you know I think this is a good idea. These jobs are full-time, and paying council members peanuts makes it so that only well-off folks can play.

  • As Reece put it: “Limiting council pay artificially excludes a number of supremely qualified individuals.” But increasing pay wouldn’t guarantee diversity. “Getting elected to the city council is also hella expensive,” Reece added.

  • But Reece said he was torn because everyone knew what they were getting into when they signed up and because he’d have a hard time justifying the extra $78,000 in taxpayer funds. Freeman echoed his concerns, saying she was leaning against the proposal.

  • Whip count: Steve Schewel, Pierce Freelon, and Javiera Caballero (who is running for mayor) are in favor; Middleton and Reece say they’re undecided but seem to be leaning in that direction, too.

  • The council decided to hold a public hearing before voting.