News: The Woodshed

Prosecutors fight calls to remove elected DAs from police shooting cases

(CJ photo by Maya Reagan)
(CJ photo by Maya Reagan)

Liberal activist the Rev. William Barber is loudly calling for a special prosecutor to take over the case of Andrew Brown, who was shot after Pasquotank County deputies tried to serve him with search and arrest warrants.

“Inept. Incompetent. Incapable of fixing this,” said Barber in a community protest, according to the News & Observer. “We need independent prosecutors now. Release the tape, the whole tape, to everybody.”

Barber attacked the locally elected district attorney, Andrew Womble, who is leading the investigation.

“Who is the D.A. who went into court and acted like he was the police’s lawyer and not the people’s lawyer?” Barber said.

Brown’s family and supporters have continued to protest the shooting, which happened April 21 in Elizabeth City. They’re also upset over North Carolina’s process for releasing police department videos, and they have turned their ire toward Womble.

In North Carolina, law enforcement agencies must petition a court and ask a judge to order the release of footage from body or dashboard cameras. Womble argued against releasing the footage until after the State Bureau of Investigation completes its investigation.

Womble has said Brown’s moving vehicle made contact with law enforcement officers twice before the deputies opened fire.

The district attorney

Womble is elected to serve the 1st Judicial District, which encompasses all of Dare, Gates, Pasquotank, Camden, Currituck, Perquimans, and Chowan Counties in northeast North Carolina.

The family has formally asked Womble to “recuse” himself from the investigation, citing “well-defined” conflicts between the prosecutor and the sheriff’s office.

“There is no doubt all seven officers involved, including the three shooters, have worked directly with you and your office for years in prosecuting various cases,” the family’s attorney wrote in a letter to Womble.

The letter, signed by family attorney Bakari Sellers, asked that “in the interest of fairness, transparency, and pursuit of the ends of justice,” Womble move the case to another jurisdiction and “immediately recuse yourself.”

Gov. Roy Cooper has asked that a special prosecutor be appointed to handle all matters relating to the shooting of Brown, a convicted felon with a history of resisting arrest

Going further, Governor Cooper, N.C. Attorney General Josh Stein, and Supreme Court Justice Anita Earls say local district attorneys should never investigate police shootings and use of force cases in their respective areas.

The Task Force for Racial Equity in Criminal Justice appointed Cooper and chaired by Stein and Earls addresses the matter in a small paragraph on page 55 of the 163-page report.

  • Enact a statute that requires appointment of a Special Prosecutor to handle all OIUFI cases, as defined above. The Special Prosecutor shall either be a member of the Attorney General’s Staff, pursuant to N.C.G.S. § 114-11.6, an ADA from a neighboring prosecutorial district, or an attorney from the North Carolina Conference of District Attorneys.

But now local DAs who have investigated numerous use of force cases are saying they should not be sidelined, citing politics for the efforts to do so.

“The only reason you would want to do it would be for political purposes, and that is the last thing these cases need,” said Tom Keith, Forsyth County’s elected DA for 19 years who later served as Rockingham County DA.

“This effort seems to be mixing politics and race, when there is no justification for the local district attorneys not to handle these cases. I see the state Attorney Generals’ office as far more political than local district attorneys,” Keith said.

In a statement, Cooper said: “In the interest of justice and confidence in the judicial system, I believe a special prosecutor should handle all matters regarding the shooting in Pasquotank County.

“This would help assure the community and Mr. Brown’s family that a decision on pursuing criminal charges is conducted without bias. This position is consistent with the change in the law recommended by our Task Force for Racial Equity in Criminal Justice, which calls for a special prosecutor in police shootings, and I believe the law should be changed to help ensure it.”

Like most states, North Carolina requires a local district to request a special prosecutor. Without that request, one can’t be appointed.

Cooper fails to explain why a special prosecutor would be “in the interest of justice and confidence in the judicial system.” Nor does he say why a local prosecutor, in this case Womble, is presumed to have a bias, and why unknown outside prosecutor would be free of said bias.

“We think an independent agency should come in to determine in what happened,” Stein told WRAL’S David Crabtree.’  “It is not that anyone thinks that District Attorney Womble would come to a different decision or not do his job appropriately. It’s just that the public wants to know, that whatever decision is made, whether it is to bring criminal charges or not bring criminal charges, it was made without bias.”

It’s about trust

Peg Dorer is director of the N.C. Conference of District Attorneys. “It’s about trust,” she said. “A lot of our district attorneys have concerns about what the governor and attorney general have done.”

Dorer runs the state agency created to assist DAs in their duties, and she is directly responsible to the 43 elected DAs. She has been hearing from DAs across the state about the actions of Cooper and Stein in the Brown case.

“It feels good and sounds good, but the attorney general [office] is a political animal and might have other reasons for wanting to enter the case,” said Dorer. “Most DAs feel like this is exactly what they are elected to do, and not doing so would be an abdication of responsibility. They feel like it is politically charged. Our DA’s know how to prosecute bad actors, whether they be members of law enforcement or members of the general public.”

Doer says elected district attorneys are seen as among the least partisan of all elected officials, even though they appear on the ballot with partisan labels.

“Our DAs strive to be seen as non-political; it comes with the high standards set by the North Carolina Bar, and their desire to inspire public confidence in their work.”

Democratic political consultant Brad Crone, who has worked on ten separate campaigns for DAs, agreed. He said the DA’s political efforts are unique and nonpartisan. “It has just always been that way,” said Crone. “DA candidates want us to focus on their experience, community service, and crime-fighting credentials, and that is what we do.”

Keith said he reviewed nearly three dozen police shootings with no public claims of unfairness or bias. Mandating special prosecutors in these cases would lose valuable experience unique to local prosecutors, he says.

“The genius of the law is certainty,” Keith said. “Consistency is important too and best delivered by a locally elected DA who can be replaced by the local electorate at the next election, whereas a bureaucrat is forever.

“You can’t be pushed by the media, by the survivors, you also can’t be rushed by the police. You have to push that aside and focus on the law. The more you do of them, the better you are at them. You have to gain the experience to see how they fit on the spectrum compared to other cases. I see no valid reasons to take these cases away from local prosecutors.”

Keith continued, “People who are elected in their local community build a trust and a bond with their communities. What trust would someone from Murphy have for someone coming from Raleigh? I believe the reverse would be the case.”

The Stein/Earls report offers no explanation, no data, and research to back up this position. They offer no proof, hypothesis of why — automatically — in every case appointing a special prosecutor is wise, necessary, and will result in better outcomes, however that’s defined.

Trey Robison has served as DA in Union County for the past decade.

“I have not heard any justification for making this move, and just the suggestion makes a presumption that locally elected district attorneys are incapable of trying these cases.”

Cooper’s quick call for a special prosecutor in the Brown case puzzles Robison.

Surprising

“I was a little surprised to see the governor call for a special prosecutor when there has not even been a determination of possible criminal liability,” he said. “I am not sure what the justification would be to remove the DA in that case.

“I am directly accountable to the citizens of Union County, at the ballot box. That is a pretty strong measure of accountability.

“It might be easier to pass these cases off, but we are elected by the people of our counties and districts to handle all cases, small ones and extremely high-profile ones,” Robison said. “That is what we are paid to do, to make these hard decisions, and I am accountable to the voters. Some assistant attorney general from the state is not.”

Democrat attorney Don Vaughn who served two terms — 2009-13 — in the state Senate representing Guilford County, one as deputy minority leader — 2011-12 — spoke to WNCN, in favor of requiring special prosecutors.

“What you don’t want to happen is get halfway through a trial and then find out that, for some reason, a local prosecutor has a conflict with some witness that you don’t even know about yet in the case and you have to go back and redo it,” Vaughan said.

But DAs often deal with conflicts, and they subsequently ask a neighboring DA to take over the case. There’ s also the matter of the N.C. Constitution granting to local district attorneys clear authority and responsibility.

Article IV section 19 reads: “The District Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district. ….”

Constitutional concerns aside, forcing local prosecutors to step aside in all police force cases would require legislative action. While Democrats and Republicans have found common ground on several areas of criminal justice reform, this isn’t one of them. Legislative Republicans appear to have little appetite or desire for the change.