Part 2 of 2. Read Part 1 here:
Democrat North Carolina State Supreme Court Justice Anita Earls, a well-known liberal activist before and during her time on the bench, appears to be actively ignoring and defying North Carolina’s Code of Judicial Conduct, the state’s ethical rule book for judges and Supreme Court justices.
Woodshed recently gave an update on Gov. Roy Cooper’s controversial Task Force for Racial Equity in Criminal Justice. Along with Attorney General Josh Stein, Earls is the co-chair of the task force, created in the summer of 2020 by Cooper.
CJ recounted how the task force made 125 recommendations that amount to a liberal soft-on-crime wish list. The three most high-profile North Carolina Democrats have continued to push for the task force’s recommendations, which make it “harder to catch criminals, collect evidence, convict criminals and keep them behind bars,” according to John Locke Foundation experts on crime and the law.
However, it is Justice Earl’s involvement with the task force’s advocacy efforts that are causing concern in the legal community over alleged conflicts of interests and possible violations of North Carolina’s Code of Judicial Conduct, the state’s rule book for judges.
It appears Earls has ignored rules that require she recuse herself from certain high-profile cases or seek written consent from parties on both sides of these cases to continue. Earls has done neither.
North Carolina’s Code of Judicial Conduct is 15 pages long and includes seven “canons” covering a wide range of practical, ethical, and administrative rules for judges. The code is adopted by members of the North Carolina Supreme Court, and it covers those same justices and all lower court judges. It was last amended in 2015.
The preamble states, “An independent and honorable judiciary is indispensable to justice in our society, and to this end and in furtherance thereof, this Code of Judicial Conduct is hereby established.”
The N.C. Supreme Court recently held a hearing on whether North Carolinians who have been convicted of felonies should have the right to vote before their sentences are complete, including while on probation or parole.
According to the National Conference of State Legislatures: “It has been common practice in the United States to make felons ineligible to vote, in some cases permanently.”
In fact in 11 states, felons lose their voting rights indefinitely, at least for some crimes. To regain them, it may require a governor’s pardon, or they may face an additional waiting period after completion of sentence (including parole and probation). North Carolina’s Constitution bans all felons from voting, unless the privilege is restored under conditions set by legislation passed by the General Assembly.
North Carolina is among 16 states where felons lose their voting rights during incarceration and while on parole and/or probation. Under a 1973 law passed by a legislature dominated by Democrats, felons must pay any outstanding fines, fees and/or restitution before their rights are restored.
The case, CSI vs. Moore, is a challenge to North Carolina’s felony re-enfranchisement law, which provides the process for felons to once again vote once they have completed their obligations to the state and their victims. Even though the 1973 law was praised by civil rights advocates at the time for making it easier for felons to once again vote, the plaintiffs now claim that making felons pay fines and restitution to victims is racist.
Earls is not a disinterested party in this dispute, as her task force urged the state to “expand voting rights to those on probation, parole, or post-release supervision for a felony conviction.”
Additionally, four different recommendations also attack the use and reliance on fines for convicted criminals as a racist practice.
Earls’ participation on the task force recently came up during a Supreme Court hearing over race and jury selection. The court is weighing the case of a black Forsyth County man on death row who alleges that a training document was used to keep potential black jurors off the jury that heard his case. Russell William Tucker, 56, was convicted in February 1996 of first-degree murder in the death of Maurice Travone Williams, 23.
Tucker’s case was among four heard by the court on Feb. 8 involving defendants convicted of murder. Attorneys for Tucker say that five potential black jurors were removed from the jury pool based on their race.
Based on the 1986 U.S Supreme Court Case Batson v. Kentucky, which determined that states are not permitted to use peremptory challenges to automatically exclude potential members of the jury because of their race, these challenges are known as Batson challenges. The result of a successful Batson may be a new trial.
However Tucker’s argument suffers procedural challenges including the establishment of a prima facie case that the peremptory challenge was exercised on the basis of race, which the trial court determined Tucker was unable to do, in part because the juror was sleeping through much of jury selection.
Much of the hearing focused on the existence of this procedural bar. However, Earls and the task force don’t believe the procedural limitations should exist and recommended “abolishing the prima facie case” requirement.
In court filings, Tucker’s attorney’s noted that this limitation contravenes the “position of the Attorney General,” Josh Stein.
When asked about this by Justice Phil Berber Jr., Tucker’s attorney said, “The Governor’s task force on racial equity has made some findings of fact about the problems of race discrimination in jury selection.”
Tuckers’ attorney noted that the attorney general is co-chair of the task force, as is Justice Earls.
Specifically, the Earls-endorsed report says the “implementation of these recommendations will strengthen the Batson standard.” Another recommendation is to “Amend Motion for Appropriate Relief statute to allow a judge to overcome technical defects in the interest of justice or where the petition raises a significant claim of race discrimination.”
What is quite stunning is that Earls acknowledges in other sections of the report that her work on the task force can be problematic for the administration of justice. In the section recommending the legislature re-adopt the controversial misnamed “Racial Justice Act,” which in effect ended capital punishment for monstrous killers of all races, footnote 105 states, “Justice Earls took no part in the discussion or vote on this recommendation.”
Several parts of the code appear to address Earls work on the task force.
Canon 4 states: A judge may participate in cultural or historical activities or engage in activities concerning the legal, economic, educational, or governmental system, or the administration of justice…. if in doing so the judge does not cast substantial doubt on the judge’s capacity to decide impartially any issue that may come before the judge.
Canon 5 adds: A judge may participate in civic and charitable activities that do not reflect adversely upon the judge’s impartiality or interfere with the performance of the judge’s judicial duties.
Canon 3 mandates that judges: should perform the duties of the judge’s office impartially and diligently. The judicial duties of a judge take precedence over all the judge’s other activities.
With those ground rules put in place, Earls’ behavior comes seriously into question under the administrative section of Canon 3 when it comes to disqualification.
This section lists several reasons that judges should recuse themselves on their own or a motion by the parties involved if the “judge’s impartiality may reasonably be questioned,” including:
“The judge has a personal bias or prejudice concerning a party; or an interest that could be substantially affected by the outcome of the proceeding;”
Should a judge not recuse under these circumstances, Canon 3 lays out what is necessary to continue to sit on the case:
“A judge potentially disqualified by the terms of Canon 3C may, instead of withdrawing from the proceeding, disclose on the record the basis of the judge’s potential disqualification. If, based on such disclosure, the parties and lawyers, on behalf of their clients and independently of the judge’s participation, all agree in writing that the judge’s basis for potential disqualification is immaterial or insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all lawyers, shall be incorporated in the record of the proceeding.”
However, Earls has never filed such a disclosure in the felon voting case, the jury race cases, or in past and upcoming redistricting cases where she served as counsel previously for interested/connected parties.
“Judges owe it to the people to avoid cases where they have an actual bias or are perceived to have a strong investment in the outcome,” said Jeanette Doran, president and general counsel for the N.C. Institute for Constitutional Law.
Doran pointed to Canon 1 of the Code of Judicial Conduct, which states: “A judge should participate in establishing, maintaining, and enforcing, and should personally observe, appropriate standards of conduct to ensure that the integrity and independence of the judiciary shall be preserved.”
Doran added, “Justice Earls’ work on the task force addresses or deals with the same subjects she is considering as a justice. Some people, maybe many people, will see that as a problem because it casts doubt on the independence of the court.”
Should a complaint be filed based on Earls’ conduct, the North Carolina Judicial Standards Commission would investigate, and if necessary would make confidential discipline recommendations to the State Supreme Court, on which Earls, of course, sits.
Doran questioned why Cooper, a lawyer and former attorney general, picked Earls for the task force.
“Putting a sitting justice on that kind of project is just asking for trouble,” said Doran. “The risk of bias or the appearance of bias is significant. The governor could have asked a retired justice if he wanted a judge’s perspective, but he tapped Earls for some reason.”
Perhaps the reason is that Earls is willing to push and/or cross the line of acceptable conduct for justices and is more than willing to compromise Lady Justice in the pursuit of dangerous soft-on-crime policies.