Viral NC Dem Charles Graham Rethinks HB 2

3 things for Wed., Oct. 6: He was for it before he got famous + SCONC takes up Batson + NCCOA lets Durham cop sue over dubious dismissal

Before we begin: I’d like to apologize for the confusion caused by the dumb mistake I made yesterday—and for sending a second email to clean it up. I try to keep track of several municipal elections, and it seems my brain jumbled their different processes. That’s not a good excuse for basing an item on Durham’s elections on the errant premise that candidates who garnered a majority would evade a November runoff. I don’t have a good excuse. I can offer only a mea culpa.

Since we’re on the subject of Durham’s primaries, here’s how things played out:

As expected, Nov. 2 will look like this:

  • Elaine O’Neal vs. Javiera Caballero for mayor.

  • DeDreana Freeman vs. Marion T. Johnson in Ward 1.

  • Mark-Anthony Middleton vs. [checks notes] Sylvester Williams in Ward 2.

  • Though they weren’t on the ballot yesterday, Leo Williams vs. AJ Williams in Ward 3.

What I didn’t expect were the margins:

  • Everyone thought Middleton would dominate. But no one (I knew) expected O’Neal to win 68–25 and Freeman 70–27. The candidates backed by Friends of Durham and the Durham Committee on the Affairs of Black People won in every part of the city. It was an absolute ass-kicking.

  • The primary is a dress rehearsal. But that’s a hell of a hole for the People’s Alliance crew to start from.

  • I asked a few PA sources what happened. One replied with a shrug emoji.

Quick hot take: The council’s plan to eliminate vacant police positions may have hit a snag.

Quick thought bubble: Is the PA’s clout waning?

Worth pointing out: Turnout was atrociously low. As in, what’s-the-point-of-holding-an-election-in-October-of-an-odd-year low. Just 10%. Fewer than 20,000 people voted.


+3 THINGS

1. Charles Graham Goes Viral, Apologizes for HB 2

A week ago, I couldn’t have picked state Rep. Charles Graham out of a lineup. He is, I’ve since learned—or remembered—a Lumbee Democratic from Robeson County, a once-blue county that turned into a Republican stronghold during the Trump years.

But then, at 7 p.m. on Monday, he dropped this ad introducing his campaign for Congress—specifically, Congressional District 9, home to the far-right Rep. Dan Bishop (and also the site of the election fraud shenanigans of 2018). As of noon Tuesday, it had been viewed more than 3.2 million times.

It’s a good ad. And it did what it was supposed to do: It went viral, attracting the attention of a national audience and the money it can send.

But attention proved to be a double-edged sword. The new progressive darling had people combing through his record and discovering that he’s not all that progressive. In fact, in 2016, he voted for HB 2, the anti-LGBTQ bathroom bill. His reasons for doing so weren’t great. After the bill passed, I had the INDY’s news team call the 11 Democrats who voted with Republicans and ask why.

Graham said this, verbatim:

Uhhhh ... well ... uhhhh ... HB 2 ... uhhhh .... I voted in favor of that, uh, HB 2, because I was concerned about the safety of our citizens in, um, restrooms. Um, I think it, um, certainly opened the door of opportunity for individuals to, uh, of, uh, of the ordinance, um ... and, meaning that, you know, predators, and ... folks that had, uh ... uhmmm ... other intentions would have been allowed to take advantage of that ordinance and certainly wanted to, take care of the, my number one concern was taking care of the safety of our children, ummm, and our citizens in, in, in, in ... in public restrooms or private, uh, for that matter. Uhhhm. Well ... in this case, public. Um. I wanted to, uh ... I felt that the constituents that I represent would want me to vote that way, and of course, uhhhh, I’m, uh, um ... you know, a representative of the people of Robeson County, and, umm, I certainly had a lot of, um, folks who encouraged me to not support, support that ordinance, because it would, could have had statewide implications. Of course ... uh... that’s why, um, I voted the way I did.

As his vote started making the social media rounds on Monday night, Graham’s team sensed its potential to curb Democrats’ enthusiasm for their new crush. By Tuesday morning, Graham was out with a strong statement repudiating himself:

I believe human dignity is a human right. It’s a value I hold dear—but five years ago I failed to uphold my own value when I voted for HB2, and it was a mistake. It was a bill written and voted on within 24 hours, with the conversation surrounding protecting children and women, but I should have done more research to completely understand the impact of the bill. After the hurried vote, I spent the following days talking with colleagues and transgender-rights activists about the impacts of the bill—I became a full supporter of recalling the bill and worked across the aisle to fully repeal it. To the LGBTQ+ community, and specifically to the transgender community who suffered real pain from this bill and the rhetoric that surrounded it, I am sorry.

I have always tried to do what is right, but I am not perfect. I’m running for Congress to stand up against hatred and ignorance, and I expect to be held accountable when I fail to live up to my own principles.

Good enough? Maybe. Next, though, Graham might have to explain his more recent vote in favor of anti-abortion legislation.

  • He was one of six Dems to support HB 453, which Gov. Roy Cooper vetoed. The bill would require providers to ask patients whether they were seeking an abortion on account of the fetus’s race, sex, or because it had Down syndrome, and ban them from performing the procedure if the patient says yes.

  • In 2019, Graham also voted with Republicans on the Born-Alive Abortion Survivors Protection Act, which would have required medical practitioners to try to resuscitate fetuses that survive an abortion procedure. Critics say this legislation—which makes redundant a variety of existing regulations—serves primarily as messaging that casts abortion providers as infanticidal killers.

However: Graham voted against the Women and Children's Protection Act of 2015, which made it illegal for women to receive abortions after 20 weeks of pregnancy.

  • A federal appeals court recently ruled that law unconstitutional, but its fate ultimately hinges on whether the Supreme Court overturns Roe v. Wade.

Here’s the thing: Democrats can have a pure progressive in CD 9, or someone who might beat Dan Bishop. They probably can’t have both.


2. NC Courts Take Up Batson, Slap Down McCrory

This morning, North Carolina’s Supreme Court will hear oral arguments in State of North Carolina v. Christopher Anthony Clegg, a case that could have big ramifications for the state’s justice system.

The backstory:

  • In April 2014, a Wake County grand jury indicted Clegg for armed robbery and possession of a firearm by a felon, charging him with holding up a Garner sweepstakes business for $80. His case went to trial in April 2016; a jury convicted him of robbery but acquitted him of the firearms count. He was sentenced to 66–92 months in prison, with credit for the two years he’d served while awaiting trial.

  • Clegg appealed his conviction, arguing that the prosecutor had unconstitutionally used peremptory challenges to remove Black women from the jury. In 2017, the Court of Appeals rejected his claim.

  • A year later, the N.C. Supreme Court kicked the case back to the Wake County Superior Court for reconsideration; the trial judge again rejected Clegg’s appeal.

  • Now, the SCONC has taken up the case for the final time, though Clegg was released from prison last August and completed his parole about six weeks ago.

Why it’s a big deal:

  • As Common Cause and Democracy NC point out in an amicus brief, “North Carolina remains the only state in the South whose appellate courts have never found race discrimination against a juror of color.”

  • The key legal question arises from a 1986 case called Batson v. Kentucky, in which the U.S. Supreme Court ruled that prosecutors can’t strike jurors because of their race. But prosecutors throughout North Carolina are notoriously adept at circumventing this standard, as the INDY, in partnership with The Appeal, reported three years ago.

A Michigan State University legal study found that from 1990–2010, prosecutors from Forsyth County were more than twice as likely to strike black jurors from capital cases as whites. Another study conducted by Wake Forest University found the disparity in strikes of black versus white jurors was even wider when researchers analyzed data from all types of trials that occurred in 2011.

Batson should, in theory, change this by forcing prosecutors to openly justify each peremptory strike with a race-neutral reason if challenged. Yet, in practice, it has proved relatively ineffective because it's not that difficult for prosecutors to come up with reasons that sound race-neutral. Since Batson, eligible black potential jurors have been struck for stated reasons that border on the absurd: a pierced left ear, a hyphenated last name, or not seeking counseling after their car stereo was stolen.

  • In Clegg’s case, the state used its four peremptory strikes to remove the only two Black women in the jury pool, though the prosecutor kept a male juror who identified as half-Chinese and half-Black. The jury ended up with 11 whites and the mixed-race man.

  • Clegg’s attorney challenged the prosecution’s strikes as racially motivated. The prosecutor said he was bothered by their body language: “What I can tell you is that both the potential jurors in Seat No. 5, body language to me, they would not look at me.”

  • He went on to say that one potential juror responded “I suppose” to a question about whether she could be impartial. Based on the transcript, however, that wasn’t true.

  • According to the amicus filing: “In these circumstances, where a prosecutor is asked to provide verifiable, race-neutral reasons for removing a Black juror, but is unable to identify even one, it should not be difficult for this Court to hold there is an impermissible risk of discrimination.”

  • Yet the trial judge accepted the prosecutor’s explanation, as did the Court of Appeals, ruling that Clegg had not shown evidence of “purposeful discrimination.”

Clegg’s appeal argues that prosecutors’ justifications for striking Black jurors “must be based on true facts, not mere chimera. The courts cannot credit a patent falsehood or the conjuring of the prosecutor’s imagination as a ‘legitimate’ or ‘facially valid’ reason, because such a reason is based on nothing.”

According to David Weiss, a co-counsel on the amicus brief (writing for the North Carolina Advocates for Justice):

The question in Clegg is whether a North Carolina prosecutor should be permitted to bar a Black citizen from jury service even when the prosecutor can’t point to any valid reason for keeping that person off the jury. Of course, the answer is no.

The legal context makes this answer even more clear. The law in North Carolina is that a prosecutor’s peremptory strike is not allowed when race is a significant factor. To prove that race was a factor, the defendant need only make this showing by a preponderance of the evidence, meaning, the risk that race was a factor need only tip just over the 50% mark for the peremptory strike to be disallowed. It should not be difficult for the court to find this threshold satisfied in Clegg, where the prosecutor could not point to a single valid reason for excluding the juror.

Our state supreme court has every reason to apply this law and reverse Mr. Clegg’s conviction. Although the court last year finally, and admirably, acknowledged the state’s history of race discrimination in jury selection, it still has never actually enforced the law and reversed a conviction because of it.

RELATED, SORT OF: If anyone can tell me who’s behind this Lorrin Freeman slam site—or the mobile billboard that was apparently outside of the Wake County Courthouse yesterday—I’ll buy you a beer (or coffee). I’d also like to know who’s publishing this Substack.

IN OTHER COURT NEWS

Until yesterday, when the Court of Appeals released a decision in Bouvier v. Porter, I didn’t realize the 2016 governor’s race was still being litigated.

  • In 2017, Louis Bouvier and three others filed a lawsuit against the Pat McCrory Legal Defense Fund, its law firm and lawyers, and Guilford County voter William Clark Porter IV alleging that they were defamed when the defendants falsely accused them of double-voting.

  • A Guilford County court found in favor of the plaintiffs, rejecting the defendants’ claims that they had immunity.

  • The defendants appealed, asking the Court of Appeals “whether the trial court erred in concluding none of the Defendants was entitled to the protection of absolute privilege from this defamation suit arising from allegations made in the election protests before County Boards of Elections.”

  • The COA ruled that Porter, whose name appears on a protest filed in Guilford County, is immune—though he admitted that he affixed his name to a bogus challenge about which he knew nothing. Everyone else is still on the hook.


3. DPD Hostage Negotiator Can Sue Over Controversial Firing

Since we’re hanging out at the Court of Appeals, let me introduce you to Michael Mole’ v. City of Durham, another NCCOA decision that came down yesterday.

The legal arguments are sort of interesting But the more interesting part is why Durham Police Sergeant Mole’ (the apostrophe is part of his name), a hostage negotiator, was fired in the first place.

Here’s how ABC 11 described the incident contemporaneously, on June 28, 2016:

Durham police were involved in an armed standoff early Tuesday morning as they searched for a suspect.

Officers were seen around 5:30 a.m. with their weapons drawn, surrounding an apartment building at Colonial Townhouse Apartments at 2920 Chapel Hill Road.

Police said when they approached the man, he ran into a bathroom. He told officers he had a gun and threatened suicide, according to authorities. Officers heard a shot but no one was injured.

The incident ended after 6 a.m. with the suspect's arrest after he eventually gave himself up.

The man, Julius Smoot, 29, was charged with possession of a firearm by a convicted felon and discharging a firearm within the city limits. [Note: Smoot was later sentenced to 34 months in prison.]

He was also served warrants for numerous counts including breaking and entering, failure to register as a sex offender, possession of stolen goods, and larceny of a motor vehicle.

According to the NCCOA decision, the situation was a bit more harrowing, at least for Mole’.

In his first experience negotiating the surrender of an armed and barricaded suspect, without another negotiator backing him up, Durham Police Sergeant Michael Mole’ might have given up when the suspect’s gun discharged at close range. He didn’t, and two hours later he had persuaded the suspect to drop his weapon and surrender. The suspect, other citizens, and law enforcement officers were safe.

So why did DPD fire a negotiator who successfully talked down a suicidal man?

Sergeant Mole’ was fired because he had secured the suspect’s surrender by promising to allow him to smoke a marijuana cigarette once in custody, and he made good on the promise immediately following the arrest.

You read that correctly.

Sergeant Mole’ continued to negotiate with Smoot for approximately two hours. During this time, Smoot said he planned to smoke a “blunt,” a marijuana cigarette. Sergeant Mole’, reluctant to allow an armed and barricaded subject to impair his mental state, asked Smoot to refrain. Sergeant Mole’ promised Smoot that if he disarmed and peacefully surrendered, he would be allowed to smoke the blunt.

Smoot then dropped his gun, handcuffed himself, and surrendered to Sergeant Mole’ in the apartment. Still in handcuffs, Smoot asked for his pack of legal tobacco cigarettes and lighter, which were on a nearby table, and Sergeant Mole’ handed those items to him. Smoot then pulled a marijuana blunt from behind his ear, lit it with the lighter, and smoked approximately half of it.

In October 2017, Mole’ was informed that a pre-disciplinary hearing would take place the next day, though DPD’d policy requires 72 hours’ notice. His captain recommended demotion, but then-chief CJ Davis fired him for unbecoming conduct.

  • A year later, he sued. A Durham County court dismissed his case on the grounds that civil servants are at-will employees, meaning the city can fire them for almost any reason.

  • For the most part, the NCCOA agreed, ruling that the city didn’t violate his rights to due process or equal protection. But the court said Mole’ was entitled to make a case that his termination ran afoul of Article 1, Section 1 of the state constitution:

We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.

The key part is in italics. The NCCOA explains:

The “fruits of their own labor” clause was added to our state constitution in 1868. It was adopted the same year the Fourteenth Amendment to the United States Constitution was ratified, at a time when formerly enslaved persons were newly able to work for their own benefit.

Our appellate courts did not consider the clause until the 20th century, when it was applied to check the State’s professional licensing powers. These decisions recognized a person’s ability to earn a livelihood as a protected constitutional right …. In recent years, our Supreme Court has extended application of the fruits of one’s labor clause beyond licensing restrictions to other state actions that interfere with one’s right to earn a livelihood.

With that in mind, the appeals court said Mole’ can argue to a jury that the city injured his right to enjoy the fruits of his own labor by violating its own policy (by not giving him 72 hours’ notice before his pre-disciplinary hearing) and, consequently, that its decision to fire him was arbitrary and capricious.

Mole’ will also get to tell a jury that he was subject to disparate treatment, and the evidence he offers might not reflect well on the DPD’s internal affairs division.

Per his brief:

Durham’s practice in employee discipline discriminatorily punished Mole’ much more severely, by termination, when compared to other office conduct that was in violation of criminal law, intentional and not in good faith.

Like what? you ask.

I HAVE QUESTIONS.