Nearly a month after he helped secure a $1 million fine and the threat of additional prison time for former N.C. House Speaker Jim Black, Wake County’s district attorney assigns much of the credit to a federal investigation tool.
“I don’t think we would have been able to have made the case without the federal investigative grand jury process,” said Colon Willoughby, the county’s district attorney since 1983. “I think the cooperation of [former Rep. Michael] Decker, of the chiropractors who came forward once they got grand jury subpoenas and told of giving the cash — those kinds of things I don’t think would have happened but for the grand jury process. I don’t think we would have been able to successfully prosecute him.”
The corruption scandal that toppled Black from power offers a good example of the benefits linked to investigative grand juries, Willoughby told participants of a Raleigh forum sponsored Aug. 22 by the N.C. Institute for Constitutional Law and the Federalist Society. State prosecutors armed with greater powers to convene investigative grand juries could root out more problems in government, he said.
“On the state level, our grand juries have the power to indict, but we don’t have investigative grand juries except under limited circumstances in drug trafficking cases,” Willoughby said. “Our grand juries typically hear a few minutes’ synopsis from a law enforcement officer and decide whether or not probable cause exists and whether or not to return an indictment.
“But they don’t summon in civilian witnesses and people to gain more information about the case, which I think is a shortcoming on our part. I think we need some reform of the grand jury process to modernize it.”
Investigative grand juries could prove especially helpful in dealing with corruption cases and other crimes that have no cooperative victim helping authorities, Willoughby said. “Many of those [crimes] — they’re committed in secret, between consenting adults,” he said. “And there’s no one to come forward as a witness. We’re having more and more of that in state courts just because the federal courts can’t handle the volume that’s being generated.”
Willoughby’s arguments found support from forum panelist Kieran Shanahan, a former federal prosecutor and former Raleigh City Council member. “If you’re going to empower the local district attorneys in a meaningful way to go after corruption cases and financial cases, they’re going to have to have more tools at their disposal,” Shanahan said. “If you don’t get it, then you get what you have, which is ultimately that the level of corruption — in my opinion — became so overwhelming that the federal government stepped in.”
The Raleigh forum took place just blocks from the site of Black’s sentencing July 31 on state corruption charges. Black had pleaded to bribing Decker in return for Decker’s pledge to help Black keep the speaker’s job in 2003.
Black’s $1 million state fine and the prospect of up to 23 months in state prison time followed a 63-month sentence on federal charges involving illegal cash payments from chiropractors. Black has started his federal sentence at a Pennsylvania prison camp.
The push for state investigative grand juries is not new. N.C. Attorney General Roy Cooper touted them in January 2006, as part of a package of anti-corruption tools he sought from the General Assembly. Cooper included the expansion of investigative grand juries on his legislative wish list again this year.
Senate Majority Leader Tony Rand, D-Cumberland, and Rep. John Blust, R-Guilford, filed separate stand-alone bills to expand prosecutors’ investigative grand jury authority. A sexual-predator bill from Sen. Walter Dalton, D-Rutherford, also included similar language dealing with investigative grand juries.
“The new process was not only to expand to allow for crimes other than drug trafficking — to expand it into some corruption and even murders, child abuse, those kinds of things — but it was to allow the prosecutor to file that request directly with the chief justice,” Willoughby said. “The chief justice would empanel a permanent three-judge panel, and that panel would consider all of the petitions from across the state that came in. They would review them and determine if they thought that it was warranted. I think that’s a much better process.”
The process would have plenty of oversight, Willoughby said. “It takes a lot of resources to run a grand jury,” he said. “Most people aren’t going to do it unless that’s the only way they can get the information.”
Despite the interest among some legislators, none of those investigative grand jury bills became law this year. “I think the policymakers are more concerned — or at least focused on — a bigger picture in terms of what do we want those people who are prosecutors to have in the way of power,” said Senate Minority Leader Phil Berger, R-Rockingham, another forum panelist. “Even though Democrats control both houses of the General Assembly, there continues to be a conservative streak in North Carolina legislators when it comes to the issue of expansion of government.”
Former Durham District Attorney Mike Nifong’s handling of the 2006 rape allegations against Duke University lacrosse players likely affected all legislation focused on prosecutors’ powers, Berger said. “I don’t think you can overemphasize the impact of Mike Nifong on the perception of prosecutors across the state.”
Berger and Willoughby also point to another factor. “Part of the problem is we’ve had pretty active and vigorous investigation of public corruption,” Willoughby said. “You could start ticking off the legislators who’ve been indicted. You can see why they would be reluctant. We’re down here trying to keep the squirrels out of the bird feeder, and you can understand why they’re reluctant to give us some additional tools to do that.”
Mitch Kokai is an associate editor of Carolina Journal.