Month: September 2015

Wendy Terry, attorney, ada, lexington, davidson county, NC, assistant district attorney, felony, buying election, false pretense, obstruction of justice

The Indictment of Wendy Terry: Davidson County District Attorneys’ Secrets

Wendy Terry may have kept many secrets about her professional conduct for more than a decade. But one, once hinted at, appears to have lasted less than a day. On Tuesday afternoon, an indictment was returned alleging that, in late July, Terry, an assistant district attorney in Davidson County, sent a text message to a district judge, offering $20,000 for a superior court judicial seat, the Winston Salem Journal reports.

The offer was allegedly made on a Thursday. And come Monday, the SBI was involved, and Terry was placed on administrative leave, the county’s district attorney, Garry Frank, told WXII12.

Quid pro quo indictment

The six-count indictment alleges that Terry promised to contribute $20,000 to Davidson County District Court Judge April Wood’s campaign, with strings attached: Wood would need to persuade her husband, Jeffrey Berg, to bow out of the race for a superior court seat that Terry wanted to fill. (Judge Theodore “Ted” Royster’s Davidson County Superior Court seat is up for grabs in 2016.) The indictment also alleges that Terry offered to front Berg’s filing fee if he would run for a district court seat instead, according to WXII12’s report.

Judge Wood announced through Facebook on July 22 that her husband would be running for the District 22B superior court seat, the Lexington Dispatch reported. Terry allegedly propositioned Wood by text message the next day.

Terry was indicted by the Davidson Count Grand Jury on the following counts:

  • two counts of felony buying and selling offices;
  • felony obstructing justice;
  • misdemeanor primary/election violation;
  • attempt to violate campaign contribution limits; and
  • attempt to obtain property by false pretenses.

Under North Carolina law, permissible campaign contributions are capped at $5,100.

Lack of integrity in Davidson County District Attorney’s office

“Former Assistant District Attorney Accused of Corruption,” WFMY News 2 reported, summing up the scoop in a single sentence: “The word ‘unlawful’ is being associated with someone trusted with upholding the law.”

But allegations of corruption in the Davidson County DA’s office, while newsworthy, are not new. We just recently covered several stories on Jamie LaPrad, North Carolina’s “Candy Cane Prosecutor” who was fired from her Davidson County post last year after word got out that LaPrad’s colleague had obtained a restraining order against her.

And while LaPrad never faced criminal charges, an added irony for Terry is she likely sought indictments as a prosecutor from the very grand jury that ultimately indicted her. (It’s also worth mentioning that Terry is married to Davidson County District Court Judge Carlton Terry, who was publicly reprimanded in 2008 by the Judicial Standards Commission for ex parte communications on Facebook.)

Both LaPrad and Terry appear to have considered themselves above the law.

An editorial in the Lexington Dispatch touched on this, commenting on the lack of integrity in the Davidson County DA’s office:

For the second time in a year, a prosecutor has left the Davidson County District Attorney’s Office under dubious circumstances.
. . . [T]he personnel issues are troubling in an office charged with prosecuting those who violate the law.

But calling them “troubling” stops short of the issues’ actual import. With the integrity of our criminal justice system depending, as it does, on the integrity of the actors involved, the latest news out of North Carolina’s District 22B again poses serious questions about the caliber of justice that district is doling out.

Moreover, that LaPrad and Terry both worked as prosecutors in the district for so many years before having their character revealed to the public only accentuates these concerns.

According to the Center for Prosecutor Integrity, over two-fifths (42.8%) of Americans consider prosecutorial misconduct widespread, a strong majority (71.4%) thinks most cases of prosecutorial misconduct are kept hidden from the public, and a similarly strong majority (73.5%) believes prosecutors who commit misconduct are almost never punished. So, even though it certainly took far too long in both instances for LaPrad and Terry to be exposed, the public can perhaps take some solace in knowing that it did finally happen.

Potential consequences for Terry

Wendy Terry resigned this week from the Davidson County District Attorney’s office, where she worked as an assistant district attorney for over ten years. But losing her job is likely the least of Terry’s worries. If convicted, she could face jail time.

Felony common law obstruction of justice is a Class H felony under section 14-3(b) of the North Carolina General Statutes. North Carolina law requires that Class H felons be sentenced to between four and twenty-five months, depending on their prior convictions. And while no prior convictions can mean community or intermediate punishment, anyone convicted of a Class H felony can be sentenced to active jail time.

The charges for buying and selling offices are Class I felonies. Each carries a presumptive sentence of four to six months community punishment.

Last but certainly not least, the attempted obtaining property by false pretenses charge also is a Class I H felony,* if the value is less than $100,000. But if the value is $100,000 or more, it becomes a Class D C felony,* which carries a mandatory minimum sentence of thirty-eight forty-four months active jail time.

Terry’s annual salary was $62,000, the Winston-Salem Journal reports. And with the average salary for superior court judges—who all serve eight-year terms—currently hovering around $135,000, it appears the superior court seat was worth well over $100,000 to Terry, which means this could end up being her most serious offense.

Think Terry can make friends behind bars with the criminals she put there?

The former prosecutor turned criminal defendant has an October 5, 2015 court date in Davidson County Superior Court.

*CORRECTION: Post edited December 13, 2015 to correct errors in the classification of the attempted obtaining property by false pretenses felony offense. Because N.C. Gen. Stat. § 14-100(a)

  1. includes attempt as part of the substantive offense (“obtain or attempt to obtain”), and
  2. expressly states that a commission of the offense is either a Class C or a Class H felony (depending on “the value of the money, goods, property, services, chose in action, or other things of value”),

N.C. Gen. Stat. § 14-2.5 should not apply.

Other sources:

Interesting note: The Master Calendar of Superior Courts shows Judge Ted Royster (who Terry sought to unseat) and Judge Julia Lynn Gullett presiding in Davidson County Superior Court on October 5, 2015. If the case goes before Judge Royster, he will presumably recuse himself based on the conflict of interest.
Advertisements

Encougaging Misconduct: Prosecutor shields Sumter deputies in shooting

How in the H-E-double-hockey-stick did two Sumter County sheriff’s deputies who opened fire on an unarmed man “act properly”? Oh, that’s right, later they justified their conduct by concocting a tale straight out of Alice in Wonderland. And in the eyes of Third Circuit Solicitor Ernest A. “Chip” Finney III, that apparently made everything proper.

Sumter County deputies cleared in July shooting

Sumter County Sheriff Anthony Dennis announced yesterday that his two deputies involved in the July shooting, Cpl. Symeon Graham and Senior Deputy Desmond Sabb, were cleared of wrongdoing in an investigation by the South Carolina Law Enforcement Division, according to WBTV News.

The State newspaper reported that Solicitor Finney reviewed the SLED report and opted not to seek criminal charges against the deputies. “We find that both Sumter County Deputies involved with the shooting acted reasonably when faced with violent and unprovoked action by the subject,” Finney wrote in a letter to SLED investigators.

A spokesman for the sheriff’s office reported that both officers have returned to normal duty.

Numbskulls believing other numbskulls

The SLED investigation stems from events that unfolded on July 18 when Graham and Sabb responded to a domestic dispute near Dalzell, South Carolina. It was a Saturday morning. Upon arriving at the suspect’s home, the deputies claim 39-year-old Michael Deshawn Dinkins “became physically aggressive” with them.

The deputies reacted by trying to subdue Dinkins with their Tasers. (And that’s no typo—both deputies deployed their Tasers.) But, according to their tale of events, Dinkins was unfazed.

In fact, the deputies say that Dinkins—despite having two separate currents running through his body—still had enough wits about him to reach for one of their guns. (It’s worth mentioning that Tasers’ critics “have implicated [them] in hundreds of deaths nationwide,” according to The New York Times. Amnesty International reported in 2012 that more than 500 people have been killed in the U.S. by stun gun shocks.)

And because Dinkins reached for “one of their guns,” that of course justified what came next, when both deputies opened fire on him. Again, not one, but both. Neither officer was injured.

Luckily, Dinkins survived the onslaught. For Finney, that means he can move forward with the resisting arrest and assaulting a law enforcement officer charges the deputies brought against him.

This comes on the heels of a March 21, 2015 report by The State that South Carolina police “have fired their weapons at 209 suspects in the past five years, and a handful of officers have been accused of pulling the trigger illegally – but none has being [sic] convicted.” This is our criminal justice system.

Prosecutor Rules of Professional Conduct – South Carolina

Prosecutors’ conduct in the southern half of the Carolinas is governed by a slightly different set of rules than those up north.

This post begins with the text and comments of South Carolina’s rule regulating prosecutor conduct. It then explains how that language differs from its North Carolina counterpart.

Special Responsibilities of a Prosecutor

Rule 3.8 of the South Carolina Rules of Professional Conduct,* entitled “Special Responsibilities of a Prosecutor,” provides:

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Comment

[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

[2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons. Paragraph (c) does not apply, however, to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence.

[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.

[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client lawyer relationship.

[5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).

[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals.

* The South Carolina Rules of Professional Conduct are listed under Rule 407 of the South Carolina Appellate Court Rules.

Rule differences

While substantial overlap exists between the North Carolina and South Carolina rules regulating prosecutors’ conduct, here are places where they diverge:

3.8(d)

NC’s rule says that a prosecutor in a criminal case shall “after reasonably diligent inquiry” timely disclose to the defense “all evidence or information required to be disclosed by applicable law, rules of procedure, or court opinions including all evidence or information known to the prosecutor . . . .”

SC’s rule includes neither the “reasonably diligent inquiry” provision, nor the language discussing evidence that must be disclosed under applicable law, rules of procedure, or court opinions.

3.8(e)

NC’s rule forbids prosecutors from participating “in the application for the issuance of a search warrant to a lawyer for the seizure of information of a past or present client in connection with an investigation of someone other than the lawyer,” unless the requirements of Rule 3.8(e)(1)-(3) are met.

SC’s rule only proscribes a prosecutor’s subpoenaing a lawyer in a grand jury or other criminal proceeding to present evidence about a former or current client, unless the prosecutor “reasonably believes” the requirements of Rule 3.8(e)(1)-(3).

Comment differences

There are five notable differences between each state’s Rule 3.8 commentary:

First, NC’s comment [1] says that “the prosecutor’s duty is to seek justice, not merely to convict.” This language is not included in SC’s comments.

Second, while both states’ comment [1] cites to the ABA Standards of Criminal Justice Relating to the Prosecution Function, SC’s comment provides the following:

Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

Third, NC’s comment [2], which states that

The prosecutor represents the sovereign and, therefore, should use restraint in the discretionary exercise of government powers, such as in the selection of cases to prosecute. During trial, the prosecutor is not only an advocate, but he or she also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all. In our system of criminal justice, the accused is to be given the benefit of all reasonable doubt. With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice; the prosecutor should make timely disclosure to the defense of available evidence known to him or her that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.

is not included in SC’s comments. Instead, SC’s comment [2] mirrors NC’s comment [3], while adding the following language:

In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons.

Fourth, the first two sentences (including the citation string) of NC’s comment [4] are similarly absent from SC’s comments. But the final sentence of that comment is identical to SC’s comment [3].

Finally, the language of SC comments [4], [5], and [6] tracks the language of NC comments [5], [6], and [7], respectively, with the following minor exceptions:

  • SC’s comment [4] does not include either the “and search warrants for client information” clause found in the first sentence of NC comment [5] or the final sentence of that comment (i.e., “The provision applies only when someone other than the lawyer is the target of a criminal investigation.”).
  •  The word “that” in the final sentence of NC comment [6] is replaced by “which” in SC comment [5].