Wake DA closes investigation of Stein in case tied to challenged NC criminal libel law

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 has closed an investigation into possible criminal libel charges against N.C. Attorney General Josh Stein.
  • Freeman announced that decision one day after the 4th U.S. Circuit Court of Appeals issued a unanimous decision favoring Stein. He had challenged the state's criminal libel law as unconstitutional.

The potential prosecution of N.C. Attorney General Josh Stein on misdemeanor criminal libel charges linked to the 2020 election campaign is over. Wake County District Attorney Lorrin Freeman delivered that news Thursday afternoon.

“The Wake County District Attorney’s Office announced today that the ongoing investigation and prosecution of violations of misdemeanor campaign violations by Attorney General Josh Stein and others connected to his campaign has been closed,” according to a news release from Freeman’s office.

Freeman announced the decision one day after a unanimous three-judge panel of the 4th U.S. Circuit Court of Appeals ruled in Stein’s favor in a federal lawsuit. Stein had challenged the 1931 state criminal libel law as unconstitutional. Appellate judges agreed Stein was likely to win his case.

“This decision prevents the State from moving forward within the prescribed statutory statute of limitations for the case,” according to Freeman’s release. Misdemeanor charges in North Carolina have a two-year statute of limitations.

“Understanding that the case was one of intense public interest, it has been the assigned prosecutor’s intent to exercise due diligence and to evaluate the evidence and apply the law without partiality from the beginning of this matter,” Freeman said in the release. “As prosecutors, we respect the role of the court in determining the constitutionality of a duly enacted state law.”

The case against Stein and colleagues stemmed from a dispute between the candidates in the 2020 election for N.C. attorney general. Stein, an incumbent Democrat, and Wake Forest District Attorney Jim O’Neill, the Republican challenger, sparred over responsibility for untested rape kits.

Freeman’s release addressed that issue. She cited the 2019 state Survivor’s Act, which “called for the submission of previously untested sexual assault kits from across the State.”

“Every day law enforcement and prosecutors across this State work tirelessly to seek justice for sexual assault victims,” Freeman said. “Following the enactment of the Survivor’s Act, they identified and prepared for submission untested kits as directed by the law. Many of those kits continue to go untested because of significant backlogs at the State Crime Lab. As recently as the end of this past year, the time from submission to final analysis of a sexual assault kit was 19 months. It would be my hope that the General Assembly and the Attorney General would take steps to fix these delays so that the promises of the Survivor’s Act become a reality.”

Stein’s lawsuit, now titled Grimmett v. Freeman, asked federal courts to declare N.C. Gen. Stat. § 163-274(a)(9) unconstitutional. The state law declares it unlawful, as a Class 2 misdemeanor, “For any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.”

A 2-1 ruling from the 4th Circuit on Aug. 23 gave Stein an injunction against the law. The injunction blocked Freeman’s office from pursuing criminal charges against Stein and two colleagues. Wednesday’s unanimous decision from the same three-judge panel determined that Stein was likely to win his legal challenge.

The original 4th Circuit injunction arrived one day after the Wake grand jury asked the D.A.’s office to present indictments against Stein, chief of staff Seth Dearmin, and 2020 campaign manager Eric Stern.

In 2020 Stein’s winning margin over O’Neill was just 13,622 votes out of 5.4 million ballots cast.

The candidates criticized each other during the campaign over the issue of untested rape kits. After O’Neill accused Stein of allowing thousands of rape kits to remain untested and “sitting on a shelf,” Stein responded with a TV ad titled “Survivor.”

The ad featured Juliette Grimmett, a sexual assault survivor who worked for Stein in the N.C. Justice Department. At one point in the ad, Grimmett said, “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.”

O’Neill filed a complaint with the State Board of Elections, calling the ad false and defamatory. O’Neill cited the now-disputed state law. A state elections board investigator looked into the case and turned over findings to the Wake D.A. in 2021.

Freeman had recused herself from the case, turning it over to prosecutor David Saacks. Saacks sought a more thorough investigation from the SBI. Based on that work, the Wake D.A.’s office proceeded to the grand jury last summer with possible charges connected to the ad.

Stein initially won a temporary restraining order in the case from U.S. District Judge Catherine Eagles on July 25. But Eagles later reassessed her ruling and refused to grant Stein an injunction.

The ”Survivor” ad aired from August through October 2020.