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Newman's fate may ride on judge's interpretation of 'willful misconduct'

By Lightning Reports, Published: April 14, 2021

Attorneys sparred in closing arguments on Wednesday morning over whether  actions that resulted in discipline by the state Bar against District Attorney Greg Newman amounted to willful misconduct that warrants his removal from office.

Superior Court Judge Robert C. Ervin of Morganton is presiding over the hearing based on a complaint filed with the clerk of Superior Court in February that Newman had committed acts of misconduct that brought his office into disrepute. Under the state law governing the removal of a D.A., evidence must show by clear and convincing that the elected prosecutor engaged in willful misconduct. An independent counsel Erwin appointed said that the two days of testimony and evidence had proved that; Newman's defense said the case had fallen short.

"No doubt we’ve proved (the case) based on agreed facts, we proved it through our witnesses and we've proved it through their witnesses," Isaac N. "Ike" Northrup Jr. told Judge Ervin.

Northrup also said that Newman in public statements had mischaracterized the state Bar Disciplinary Hearing Commission decision to suspend his law license for three years, which is stayed provided Newman meets conditions the board spelled out.

"That was probably enough but what was extremely troubling to me was his public statement that this was politically motivated," Northrup said. "He showed no remorse." In testimony Monday, "He said, 'Yes, politics was involved, I said that to the newspaper, I still think it.' The reason I find that particularly troubling is because the rules of professional conduct speak to that."

Newman's attorneys, Stuart L. Brooks and David Freedman, emphasized that if the community believed Newman had acted improperly, they had the prerogative to fire him at the polls.

“If the citizens of the community were so offended by his conduct, certainly some type of opponent” would have the incentive to use that and “they would have voted him out of office,” Brooks said. “We’re talking about events that happened well earlier than those elections. People of this community supported Mr. Newman.”

Judge Ervin asked, “Is there any case law in North Carolina supporting that notion” that re-election immunizes Newman from sanction? Ervin, whose grandfather, U.S. Sen. Sam Ervin, made his mark in history in his leadership of the Watergate inquiry, brought up the misconduct of President Nixon as an example of wrongdoing that voters were unaware on Election Day of 1972. “It seems to me if you make that the rule that once you get elected, everything before that is protected” the state would create a “perverse incentive” for coverup, he said.

To justify removal, “the court must find that Mr. Newman engaged in willful misconduct by clear, cogent and convincing evidence.” That standard in state law is “quite a high bar (that is) not present in this particular case,” Brooks said. “If Mr. Newman might have made different decisions, he might very well have the (defendants) in those cases in here saying he’s taking cases that he knew he couldn’t prove beyond a reasonable doubt."
And he again emphasized the elections Newman won in 2014 and 2018 and the testimony of character witnesses who supported the D.A.
“There’s been no evidence that citizens of this county have lost the trust, confidence and respect of Mr. Newman,” Brooks said.
Newman may have made tactical mistakes by not hiring a lawyer initially in the 2019 bar investigation, Brooks acknowledged, and by relying on memory to respond to the inquiry without doing in-depth research. “Relying on his memory at the time is not engaging in willful misconduct,” he said.

Freedman, another of Newman's attorneys, said the bar for removing a district attorney must be high because the law provides no lesser penalty than removal. The state bar, on the other hand, has a menu of sanctions it can impose, from censure to disbarment.

Cooney told the judge that the proceeding has adhered to the letter of the law.

"Any citizen can file a petition," Cooney said. "They can file it for a bad motive, they can file it for good motive, they can provide it for no motive at all. It is being conducted without bias or prejudice or sympathy or passsion. It is being done precisely the way the General Assembly wanted it to be done under the law and in our fidelity to the law."

"This is not a forum for everyone with a bone to pick with the district attorney to come forward and pick that bone," he said. "We have three grounds for probable cause. We have not questioned his discretion to pick and choose his cases. That comes with the job. So he gets to decide."

In the conflict of interest case, "He refused to acknowledge that he did anything wrong because what Mr. Newman said was there was no conflict. He refuses to acknowledge that he was in a conflict position," Cooney said. "He refuses to recognize that's a problem. That is a persistent refusal. He also shows an utter absence of remorse about anything. He's just doing his job, he got hard pressed for time and this is all politically motivated ... Nothing to see here, move along folks."

In the closing minutes of his final argument, Cooney acknowledged that Judge Ervin would give some weight of the many character witnesses for Newman — a prominent defense attorney, two ministers, two Superior Court judges, all three sheriffs in the judicial district, fellow church members, a member of the Sunday school class Newman teaches.

“I would contend on the other side of the scale" is signficant weight, he said. "How about the tears of a 17-year-old who never got to face her abuser in court. How much does that weigh? How about the grief of a father whose daughter had been molested,” who sees the charges dropped “and loses complete confidence in the court system. How much does that weigh in the balance?” And there was Valerie Owenby, whose sexual abuse case is at the center of the charge that Newman failed to notify and family of a plea hearing and then lied to the judge about it. “Your honor was able to assess what kind of witness she would have been,” Cooney said. “It took a lot for her to get on a plane, sit in this courtroom and stare down the elected district attorney.”