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ProPublica Investigation Reveals How the NC Supreme Court’s Republican Majority is Playing Politics With the Judicial System

Source: ProPublica

One judge, without legal justification, arrested the parents of child sex assault victims for bringing them to court late. Another judge’s actions in court resulted in the fatal police shooting of a defendant – in the courtroom. Neither Republican judge was reprimanded despite the North Carolina Judicial Standards Commission’s (JSC) recommendation.

An investigation by ProPublica has revealed that the decisions made by the right-wing majority on Chief Justice Paul Newby’s court to ignore the JSC’s recommendations appear to be the only instances in more than a decade in which the state’s high court dismissed the commission’s instruction to issue punishment. The court has not provided any public explanation for the decision.

State law mandates that such decisions remain confidential because North Carolina is one of the most secretive states in America when it comes to disciplining judges, according to ProPublica and data from the National Center for State Courts’ Center for Judicial Ethics. More than half of the states in the U.S. make disciplinary proceedings against judges public once charges are filed with their judicial ethics commission. Another 12 states make them public if they reach the state’s supreme court. North Carolina is one of only three states, as well as Washington, D.C., to release information only at the last possible stage of the process – after the Supreme Court orders discipline.

Some parts of disciplinary cases against judges remain confidential to protect private or personal information, but experts say what North Carolina does goes beyond acceptable levels of secrecy.

“While secrecy has a place in judicial discipline, it can be used to conceal wrongdoing,” Stephen Gillers, a professor emeritus at New York University’s law school, told ProPublica. “Once there is a finding of wrongdoing by a disciplinary commission, the case should become public.”

Chief Justice Paul Newby’s tenure on the North Carolina Supreme Court has been marred by accusations of politicization and a disregard for judicial impartiality. 

So far in Newby’s relatively short tenure leading the bench, he has made numerous controversial and curious decisions that have led journalists and court watchers to question the integrity of the state Supreme Court, including:

  • Effective Jan. 1 of this year, Newby demoted Senior Appeals Court Judge Donna Stroud. Although she’s a Republican like Newby, Stroud has claimed the move was an act of retribution for her rulings in cases that went against the state Republican leadership’s interests. Newby replaced Stroud with Chris Dillon, a junior Appeals Court judge who was the chair of the state Judicial Standards Commission until late 2023.
  • In another secretive and corresponding move, Newby named Appeals Court Judge Jeffrey Carpenter to replace Dillon as the leader of the state JSC.
  • The appointment of Beth Freshwater Smith as a special Superior Court Judge. Smith was a former law clerk to Newby and had no prior experience as a judge. She also lost a primary to Stroud in 2020 despite support from Senate leader Phil Berger (who recommended Smith for this special position) and endorsements from Supreme Court Justice Phil Berger Jr. and Appeals Court Judge Jeffrey Carpenter.
  • Newby is accused of being personally behind the effort to investigate fellow Supreme Court Justice Anita Earls who, as the only Black woman on the court, spoke out against racial and gender biases within the state court system during an interview. Earls ended up suing the JSC to stop the investigation on the basis that it violated her First Amendment rights.
  • Newby has allowed Republican justices to make personal attacks against Democratic justices, such as the “sarcastic and personal attack” Republican Justice Richard Dietz made in a state Supreme Court order while addressing a dissent by Earls.
  • Newby has allowed Republican justices like Phil Berger Jr. to hear and rule on cases that are a conflict of interest, such as the long-running Leandro public school funding case. The high court ruled that Berger did not need to recuse himself even though his father, Republican N.C. Senate President Phil Berger Sr. is taking part in the case.

The two recent decisions to dismiss the JSC’s recommendation can be added to Newby’s list of obviously partisan moves he’s made since becoming chief justice.

As ProPublica points out, had Newby and the Republican majority followed the commission’s recommendations in the cases of the two GOP judges, it would have meant publicly reprimanding them in an election year in which they are both running. The two judges involved were Judge Lori Hamilton, a longtime Republican who had called herself “the ideal conservative” while campaigning, and Judge Caroline Burnette, who had previously been a Democrat but became a Republican before her case reached the Supreme Court.

The commission’s rulings were based on events that happened in 2021. In September of that year, Burnette was overseeing a trial when she got into a verbal altercation with the defendant, Christopher Vaughan. According to court recordings published by WRAL, Burnette and Vaughan were involved in a three-minute argument, which escalated after the judge told the defendant to “shut up.” When Burnette ordered the bailiff to “take him,” Vaughan rushed the judge but was blocked by the bailiff. The two men got into a scuffle and then the bailiff began shouting that Vaughan had his gun. A police officer who was in the courtroom to testify then shot Vaughan in the head, killing him right there in Burnette’s courtroom.

Anonymous sources within the commission told ProPublica that they began investigating Burnette for potentially violating multiple sections of the judicial code, including the requirements that a “judge should maintain order and decorum in proceedings” and a “judge should be patient, dignified and courteous.”

Just a few months after that incident, in November 2021, Hamilton was hearing the case of a man charged with sex crimes against children when, according to court transcripts, she accused the child victims’ mother of bringing them to court late and for being uncooperative with the state’s lawyers earlier during the investigation into the crime. “I’m going to take you into protective custody to ensure your appearance here at trial,” Hamilton told the mother. She then ordered the bailiff to handcuff the mother and detain her throughout the trial and also denied the mother an attorney. Hamilton also said that the victims should be turned over to Child Protective Services. According to ProPublica, “Court staff were so unsure of how to execute their orders that the bailiff explained to Hamilton that they ‘don’t know how to book’ the mother.”

The mother of the victims was jailed for four days, during which time she was worrying about her daughters, crying and asking court staff, “How can you hold me if I’m not charged with nothing?”

The commission began investigating Hamilton for potentially violating multiple judicial standards, including that “a judge should uphold the integrity and independence of the judiciary” and that a “judge should be faithful to the law and maintain professional competence in it.”

During the JSC’s investigations and hearings process, both judges admitted that they had violated the judicial code. The commission sent the cases to the Supreme Court for the final determination on discipline. In cases of minor violations, the commission often issues a letter of caution or a verbal warning, which is kept private. Most disciplinary action falls into that category. Discipline serious enough to be issued by the Supreme Court becomes public.

Since the Supreme Court decided in the fall of 2023, without the public’s knowledge, to let Hamilton and Burnette off without public reprimands, nobody had heard about the cases until now. Interestingly, the most recent public disciplinary order issued by the Supreme Court came in March, when the court punished Angela Foster, a Black Democratic judge, for pressuring a court official to reduce a bond for her son and for taking over a courtroom reserved for other court officials, leading to a delay in hearing other cases. Foster was suspended without pay for 120 days. It’s hard to fathom that Foster’s actions, while unacceptable, were more deserving of punishment than Hamilton or Burnette’s violations of judicial standards – one of which led to a mother being jailed for no reason and the other resulting in the death of a defendant.

Such politicization of the judiciary is increasingly becoming the norm in courthouses across the country, but it wasn’t always this way, especially not in North Carolina.

Asher Hildebrand, a professor of public policy at Duke University, told ProPublica that in the 2010s, the Tar Heel State had policies in place that were meant to “keep the judiciary above the political fray,” like holding nonpartisan judicial elections. The Republican-controlled legislature spent years gradually getting rid of these policies, thus creating a hyper-partisan state Supreme Court like we see today. 

“While we might long for the days when courts were perceived as being above politics, courts are very much a partisan battleground,” he said.

Bob Orr, who served on the state Supreme Court as a Republican, said partisan disagreements over the judicial standards process have only gotten worse over the years.

“The judicial standards process needs a major overhaul in that I don’t think it was set up to deal with the current political atmosphere that judges have been embroiled in,” Orr told ProPublica. “It’s important for all the decision-makers in the judicial standards process — the commission, its staff and the Supreme Court — to act in a nonpartisan way to increase trust in the judicial system.” 

In the early 2000s Orr himself was investigated and given a private warning from the then-Democratic-controlled JSC due to comments it said were an impermissible political endorsement. More recently, Orr has become very outspoken in his criticism of Donald Trump and he left the Republican Party in 2021. He is currently representing a group of voters who filed a lawsuit against North Carolina GOP leaders for gerrymandering the state’s voting maps in a way that they claim violates the state constitution’s guarantee of the right to fair elections.

Click here to read more of ProPublica’s reporting on how Republicans are playing politics with the state Supreme Court.

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