Freeman urges 4th Circuit to reject Stein’s emergency motion in campaign ad dispute

Wake County District Attorney Lorrin Freeman addresses a John Locke Foundation audience in March 2017.

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  • Wake County District Attorney Lorrin Freeman urges the 4th U.S. Circuit of Appeals to reject an emergency motion from N.C. Attorney General Josh Stein.
  • Without help from the 4th Circuit, Stein or his associates could face criminal charges in connection with a 2020 television campaign ad.

Wake County District Attorney Lorrin Freeman is asking the 4th U.S. Circuit Court of Appeals to reject an emergency plea from N.C. Attorney General Josh Stein. Stein wants the Appeals Court to block the Wake D.A. from pursuing criminal charges linked to a Stein campaign ad.

Stein has urged 4th Circuit judges to rule by Friday. Without a ruling favoring Stein, the D.A.’s office could present charges to a grand jury as early as Monday.

The attorney general and two other plaintiffs filed a federal lawsuit on July 21. It asks the courts to declare a state law unconstitutional. The law prohibits lying about political candidates. It can produce misdemeanor criminal charges.

U.S. District Judge Catherine Eagles rejected Stein’s request for an injunction on Aug. 9. Six days later, Eagles rejected a second request to put her initial ruling on hold during Stein’s appeal.

“Despite this result, Plaintiffs now recycle their same arguments, and ask this Court to issue the same now-denied injunction against the District Attorney’s Office while they pursue an appeal — a ruling that would effectively give Plaintiffs and those associated with them a back-door win on the merits, given the looming expiration of the relevant criminal statute of limitations,” wrote attorney Joseph Zeszotarski, who represents Freeman. “Plaintiffs cannot meet the standard for this extraordinary relief, and the motion should be denied.”

The statute of limitations for misdemeanor charges in North Carolina is two years. Time is running out for charges in Stein’s case. Any criminal charges would be linked to a television ad from his re-election campaign that stopped airing in October 2020.

The ad, titled “Survivor,” featured Juliette Grimmett, a sexual assault survivor and employee of Stein’s N.C. Justice Department. Grimmett criticized Stein’s Republican challenger, Forsyth County District Attorney Jim O’Neill.

“When I learned that Jim O’Neill left 1,500 rape kits on a shelf leaving rapists on the streets, I had to speak out,” Grimmett said in the ad.

Freeman’s brief details N.C. rules regarding rape kits, officially known as sexual assault evidence collection kits.

“[A] total of 1,509 untested SAECKs were in the possession of five law enforcement agencies in Forsyth County at that time,” Zeszotarski wrote. “Approximately 1/3 of these 1,509 untested SAECKs were matters wherein the subject admitted the sexual encounter, meaning that the SAECKs were not eligible for submission to the State Crime Lab prior to 15 October 2018 without approved deviation from policy by the Lab. Notably, these SAECKs were in possession of the law enforcement agencies in Forsyth County, not the District Attorney’s office. There is no provision in North Carolina law giving an elected district attorney authority to order a law enforcement agency to do anything.”

A criminal investigation showed “the Stein Political Ad was false, because an elected district attorney does not possess any untested SAECKs in North Carolina and could not submit all untested SAECKs to the State Crime Lab at one time, because of the protocol for submission in batches that had been put in place by the Crime Lab itself; … Stein and others in his campaign were aware of and/or recklessly indifferent to that falsity, given their positions as lawyers and elected officials intricately involved in the legislation creating the SAECK initiative,” Zeszotarski wrote.

“Given this substantial evidence of violation N.C.G.S. §163- 274(a)(9), the prosecutor handling the investigation determined that the appropriate course of action would be to submit a presentment … to the grand jury, to permit the citizens of Wake County through the grand jury to determine whether or not criminal charges would be appropriate against any person associated with the Stein Political Ad,” Zeszotarski added.

Freeman’s brief takes aim at Stein’s arguments that the challenged state law threatens First Amendment free-speech protections. “[T]he investigation of the Stein Political Ad at issue in this case cannot reasonably be considered as a blanket ‘threat of criminal enforcement against anyone’ who runs a rape kit ad — this hyperbole by Plaintiffs should be rejected out of hand,” Zeszotarski wrote. “The Statute does not prohibit the treatment of rape kits from being debated in a political ad; it only bars someone from knowingly lying about it.”

N.C.G.S. Sec. 163-274(a)(9) is the law Stein challenges in his lawsuit. It creates a Class 2 misdemeanor for those who make false derogatory statements about election candidates.