Opinion: Daily Journal

Competitors for top court job take opposing sides in sex predator case

The N.C. Supreme Court hears oral arguments on Aug. 27, 2019. (WRAL.com screenshot)
The N.C. Supreme Court hears oral arguments on Aug. 27, 2019. (WRAL.com screenshot)

The two candidates for the top job on North Carolina’s highest court have squared off for the first time in more than a year. Their competing takes on a case involving a convicted sexual predator could offer voters valuable information this fall.

Democrat Cheri Beasley has served since February 2019 as chief justice of the N.C. Supreme Court. Appointed to the post, she’s asking voters this year to give her a full eight-year term. She’s running against colleague Paul Newby, the only Republican serving now on the seven-member court.

After Beasley took the chief’s gavel, she and Newby agreed in 43 of 57 cases the Supreme Court decided in 2019. That’s a 75% percent agreement rate. They’ve agreed in 56 of 71 decisions (79%) issued this year.

In a court where roughly two-thirds of the decisions have been unanimous, Beasley and Newby have been among the justices least likely to agree from case to case. (The only pair of justices more prone to disagreement are Newby and Democrat Anita Earls. They’ve reached the same conclusion in fewer than 70% of the high court’s cases.)

Despite multiple opportunities to address the state’s weightiest constitutional issues, the two candidates for chief justice have written opposing opinions just twice in the court’s current configuration.

Their first disagreement took place in May 2019. In State v. White, a 4-2 Supreme Court majority threw out an indictment against a man convicted of molesting a 7-year-old girl. Beasley wrote the majority opinion, reversing a unanimous ruling from the N.C. Court of Appeals. Beasley and the Supreme Court’s majority ruled that the indictment failed to meet legal requirements for identifying the alleged crime’s victim.

Newby objected. “Once again, a child victim must endure the emotional distress and indignities of another trial because of a purely legal technicality,” he wrote in dissent. “It is this type of legal gamesmanship which leads to cynicism about whether justice prevails in our criminal justice system.”

Now, more than a year later, Beasley and Newby have written opposing opinions in another case. Decided on June 8, State v. Keller once again addresses legal procedures involving sexual predators.

In a 5-2 decision, the high court ordered a new trial for a Lincoln County man. He had been convicted of online solicitation of sex from a teenage boy in 2015. Justices in the majority ruled that the original trial court had made a major mistake. The trial judge had failed to instruct the jury about the possible defense of entrapment.

Defendant David Alan Keller thought he was trading email messages about sex with a 15-year-old. Keller agreed to engage in both oral and anal sex with the underaged boy. But the “teen” was actually undercover Lincolnton police detective Brent Heavner.

Beasley’s majority opinion highlighted the defense’s argument that police had entrapped Keller. “[A]t least part of the jury’s deliberation focused on whether defendant had the requisite criminal intent, and the central inquiry for entrapment in this case is whether the criminal intent was originated by defendant or law enforcement,” the chief justice wrote.

”An entrapment instruction would have allowed the jury to determine whether that criminal intent originated in the mind of defendant or Detective Heavner,” she added. “[T]here is a reasonable possibility that a different result would have been reached had the jury been instructed on entrapment.”

Newby reached a different legal conclusion. Along with Democratic Justice Michael Morgan, the Republican Newby would not have ordered a new trial.

“The crucial event in this case is the moment defendant learned his prospective sexual partner was underage,” Newby wrote in dissent. “Once he learned that fact, he did not end his pursuit. Instead, he continued his undertaking to the point of driving to pick up his young victim. His actions demonstrate his predisposition to pursue such an illegal sexual encounter.”

The dissent rejected Keller’s entrapment claim. “The majority takes defendant at his word and blinds itself to the mountain of uncontested evidence that shows that defendant was predisposed to commit the offense,” Newby wrote. “The majority thus removes from our case law the requirement that a defendant must present sufficient credible evidence of entrapment.”

Neither the Keller case nor 2019’s State v. White offers a full picture of Beasley’s legal views. The same is true for Newby.

But these two electoral competitors are unlikely to spend much time between now and November debating their range of views on the campaign trail. Their records on the bench are likely to offer voters the best evidence about different approaches to important legal issues.

In these two cases, voters will see a clear contrast between the two people vying to lead North Carolina’s highest court.

Mitch Kokai is senior political analyst for the John Locke Foundation.