In North Carolina, An Obscure Law Helps Bring Down DA

By Andrew Strickler | May 16, 2021, 8:02 PM EDT

Greg Newman was recently ousted as a North Carolina district attorney via an obscure state ethics statute. For some, the law is a necessary oversight tool. For others, the statute raises concerns about it being used for revenge against prosecutors.

An obscure North Carolina statute meant to plug an ethics oversight hole in the state constitution set the stage for a group of people outside the legal and political systems to force a local district attorney out of office.

The law, N.C. General Statute 7A-66, is getting new attention in the state after it was used to unseat an elected district attorney, Greg Newman, who had held his seat as chief prosecutor for three counties south of Asheville since 2013.

Newman's critics cheered the utility of the law in holding him accountable for ethical breaches that included lying to the family of a teenage rape victim about her attacker's plea deal.

But others in the legal system have concerns that the unusual statute and the attention brought by the Newman case could prompt some to see the law as a tool of revenge for a justified criminal prosecution or an unpopular decision that rightly falls under a DA's discretion.

Durham attorney Kerry Sutton, who herself invoked the law nearly a decade ago and played a central role in the ouster of another DA, said the Newman case illustrates the need for some kind of disciplinary backstop for line-crossing district attorneys.

But the brief statute and scant case law surrounding the measure give little guidance on running what amounts to a fast-track impeachment proceeding for an elected official.

And if a county judge does find a single instance of willful misconduct, the court has no choice but to order the DA out of office permanently. Some say there should be more discretion — and more of a middle ground — built into the law.

"I'm familiar with what I call 'civilian' cases, pro hac cases, and I know from working with clients who are not trained legal professionals that they sometimes have their own perceptions of what the law is or should be, and what should happen to DAs" with whom they have a grievance, Sutton said. "So I do think there are opportunities here for misuse."

But Joanne McDowell, who backed the removal proceeding against Newman, had nothing but praise for the law.

"It's a beautifully succinct statue, and efficient as all get out," McDowell told Law360 Pulse. Upon hearing of Newman's removal, "my first thought was that the next legislature is going to try to change that law because a bunch of nonlawyers ... used it against one of their own and got a powerful person ejected from office in spectacular fashion."

Bar Charges and a Stayed Suspension for Newman

The law, which has been used only twice previously to unseat an elected DA, was at the center of the April 27 decision by Superior Court Judge Robert C. Ervin that ordered Newman's permanent removal from an office to which he was twice reelected.

The case that led to Newman's downfall involved a 2015 multicount felony indictment of a Henderson County man named James Sapp, who was accused of raping a child. The victim and her family later informed Newman that she wanted to be present at all of Sapp's criminal hearings and would read a victim impact statement.

But after Newman reached a misdemeanor plea deal with Sapp and his attorney, the DA falsely told Judge Athena Brooks that Sapp's victim had been informed of the deal and the sentencing hearing and had decided not to participate.

Judge Brooks later testified that she would not have signed off on the plea bargain if she had known the victim had wanted to speak in court.

In the rape case and during the related bar action that followed, Newman committed three separate acts that each constituted grounds for removal under Statute 7A-66, Judge Ervin said. The judge described Newman's conduct in some other matters "troubling," but not grounds for removal.

Judge Ervin noted that the last time voters reelected Newman as DA, in 2018, the prosecutor was already facing the bar ethics charges, but the proceeding was confidential at that time. Judge Ervin rejected Newman's position that Statute 7A-66 did not apply to a sitting DA for a conduct breach that occurred in a prior term.

"If this proposed interpretation were adopted, a district attorney ... would have an incentive to conceal or cover up his or her misconduct until their current term expired so that the wrongful conduct could not be used to justify their removal," Judge Ervin said.

The decision, which surprised even some of Newman's most ardent critics, came after an unusual three-day "inquiry" hearing that was not quite an impeachment trial and not quite a criminal hearing. The inquiry focused largely on findings by attorney oversight officials that Newman had lied both to a judge and a victim's family and about his decision to offer a misdemeanor plea deal.

Early this year, a disciplinary hearing commission issued a disciplinary order that found Newman had committed more than half a dozen ethics violations, including the rule on candor with the court, and violated the state Crime Victims' Rights Act. The act guarantees the right of a crime victim or a family member to be "reasonably heard" at court proceedings involving a plea deal for the defendant.

But the commission stopped well short of a disbarment or suspension that could have forced Newman from office, opting instead for a fully stayed suspension that allowed Newman to keep his seat and $137,000 annual salary.

The commission's decision further fired up a loose coalition of people who have publicly urged the bar and other officials to investigate what they have described as a pattern of bad prosecutorial decisions and corruption by Newman. The group included two women who said Newman had withheld evidence or failed to pursue certain criminal cases and a former Brevard College student who said Newman improperly declined to prosecute her rapists.

In February, Peggy McDowell of south Florida hired a service processor to hand-deliver an affidavit to a court clerk in Henderson County calling for Newman's removal under 7A-66 for "chronic and unrepentant" misconduct.

The petition was filed on behalf of McDowell's daughter Joanne McDowell. McDowell was involved in a highly contentious fight with the father of her son several years ago, and says she moved to Canada before Newman vindictively charged her with felony child abduction.

Joanne McDowell, who briefly attended the University of North Carolina law school, said she has followed Newman's career and his bar troubles closely since leaving the state.

She acknowledged that the basis of her removal petition was Newman's misconduct in the Sapp case, not her own dispute with Newman, a legally allowable disconnect under 7A-66, which puts no limits on who can seek a DA's removal.

McDowell, who said she has no plans ever to return to North Carolina and wasn't invited to testify, credited the law and the hearing with keeping a public spotlight on Newman and the misconduct already established in the bar case.

She also noted that, despite his expulsion from office, Newman can still return to private practice and may even be able to run again for another elected office, an issue on which the removal statute is silent.

"Just to be clear, filing the petition was not revenge," she said. "It was not something I wanted to do, and I wouldn't have had to do it if the bar and the courts had just done their job."

A Constitutional Flaw

The statue, which makes a DA's permanent removal the only sanction available for one of seven removal grounds, has been on the books in North Carolina since 1967.

It was passed in order to account for the fact that North Carolina regional prosecutors are empowered directly through the state constitution but were somehow omitted from the list of officials deemed impeachable, according to attorneys involved in the Newman matter. That flaw left all of the state's DAs without an ultimate oversight authority.

In the limited amount of state case law involving 7A-66, a state appeals court in 2004 described the removal mechanism as "neither a civil suit nor a criminal prosecution," but rather an "inquiry" in which the civil and criminal rules of procedure "do not apply."

Legal ethics expert Bruce Green of Fordham University School of Law described the statute as "populist" because it puts no limits on who can file a removal petition or when. It also allows for a public hearing on questions of attorney conduct and discipline that are often adjudicated confidentially.

The "direct petition" also raises interesting due process questions, Green said, because it allows a judge to appoint "independent" counsel for a prosecutorial role focused on presenting evidence of a district attorney's willful misconduct or failure to fulfill his official duties.

"The victims who initiated this might have felt the prosecutor was executing his power abusively in their matters, but I don't think in the end that's what this case is really about," he said. "It's about this DA and lawbreaking, not an abuse of prosecutorial discretion."

Before Newman, the law had been used successfully just twice to remove a sitting district attorney. In 1997, a DA in southeast North Carolina, Jerry L. Spivey, was removed after he hurled abusive racial epithets while drunk at a Black bar patron.

In 2012, Durham District Attorney Tracey Cline was also removed under 7A-66 after she falsely accused a sitting judge of corruption and conspiring with a newspaper reporter to discredit her. Her bar license was later suspended and then returned.

Illustrating the vagaries of 7A-66, during the Cline removal proceeding, a judge asked Sutton, the Durham attorney, to act as "independent" counsel, despite the fact that Sutton had filed the removal affidavit after Cline attacked the judge in motions filed in two of Sutton's own criminal defense cases.

"It was very weird, unprecedented really, and I can tell you that I didn't make any friends by doing this across the whole criminal justice system," she said. Sutton later transitioned from criminal defense to Title IX work and licensing cases, largely because of the professional rifts caused by her role in ousting Cline, she said.

"Obviously, today the nation's trust in law enforcement has been rocked, and people realize that police and prosecutors are not all good guys," she said. "If it takes a law like this, and the threat of things going public to help stop a DA from doing the wrong things, I say great."

Following Newman's ouster, the North Carolina State Bar issued a lengthy statement detailing Newman's ethical violations and emphasizing the independence of the hearing commission's sanction from the bar itself.

"In the discipline phase of the hearing, the State Bar argued that Mr. Newman's conduct warranted disbarment and asked the Disciplinary Hearing Commission to disbar Mr. Newman or to impose a lengthy active suspension of his law license," the group said.

But the commission opted for the stayed suspension.

A Quasi-Prosecutor

Charlotte attorney James Cooney III of Womble Bond Dickinson, one of three private lawyers tapped by Judge Ervin to present evidence as outside counsel for the Newman matter, called the case "cleaner" because none of the attorneys had a connection to the criminal cases at issue.

But Cooney also called the counsel position "weird," and a prosecutorial-type role tasked with calling witnesses and meeting a burden of proof. Cooney noted, however, that he had no authority to do an independent investigation, come up with settlement options or otherwise do the job of a prosecutor.

"At the end of the day, my only concern was putting on that evidence and whatever the judge decided was fine with me," he said. "While I believe the evidence did call for removal, I didn't actually represent a party advocating for that."

David Freedman of Freedman Thompson Witt Ceberio & Byrd PLLC, who represented Newman at the removal hearing, said he was unaware of a similar statute for ousting a district attorney anywhere else in the country. Newman is "keeping all options open" regarding a potential appeal, Freedman said.

"One thing that concerns me about the statute is there is almost no case law to explain what 'willful misconduct' is under the law, and that can be interpreted in lots of ways," Freedman said. A 30-day statutory timeline also gave little time to prepare a defense or fully consider the evidence.

If the court had based Newman's removal on witness testimony or allegations not already affirmed in the bar proceeding, "it would be a field day on sitting DAs across the state," he said. "It's a powerful statue. If a judge finds even one instance of willful misconduct, it's a done deal and they're out."

--Editing by Jill Coffey.

--Correction: A previous version of this story incorrectly characterized Joanne McDowell's move to Canada. The error has been corrected. 

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