Judge won't say why aide won't testify

Staff WriterOctober 29, 2009 

— There is a reason Ruffin Poole, a counsel to former Gov. Mike Easley, can avoid testifying before the State Board of Elections.

The reason is a secret.

In an order issued Wednesday, Superior Court Judge Henry Barnette Jr. quashed the election board's attempt to compel Poole, one of Easley's closest legal and political advisers, to take the stand.

Barnette held the hearings behind closed doors and ordered the reasons be kept under seal.

The News & Observer and the John Locke Foundation, publisher of Carolina Journal, filed a motion Wednesday seeking access to records of the court hearings.

"A citizen watching the proceedings would have no way of understanding why Ruffin Poole shouldn't have to come forward and give testimony, like every other witness," said Amanda Martin, a lawyer for The N&O and the Carolina Journal. "It leaves the entire process shrouded in mystery."

The State Board of Elections subpoenaed Poole to testify at the inquiry into Easley's campaign finances. Poole asked a judge to quash the subpoena, citing attorney-client privilege and a second privilege that Poole outlined in a sealed affidavit.

Barnette agreed Monday to quash the subpoena, but a dispute over the wording of the order delayed the signing of the order until Wednesday.

Barnette wrote that he based the order on the privilege asserted in "paragraphs 4 through 7" of Poole's sealed affidavit. Barnette said he was not relying on lawyer-client privilege to quash the subpoena. Other forms of privilege include the marital privilege (spouses don't have to testify against each other), the clergy-penitent privilege and the doctor-patient privilege.

Joseph Zeszotarski Jr., Poole's lawyer, declined to answer questions Wednesday.

Law profs puzzled

Some law professors were puzzled by Barnette's ruling.

"I have never heard of this procedure before," said Kenneth Broun, a law professor at UNC-Chapel Hill and expert in the area of privilege.

But citing the type of privilege could reveal the underlying facts that a party is trying to protect, said Richard Myers, a UNC law professor and former federal prosecutor.

"The whole point of a privilege is not to reveal [information] in open court," Myers said.

The State Board of Elections has said it will appeal the order to the state Court of Appeals, but no documents had been filed when the Court of Appeals closed at 5 p.m. Wednesday.

joseph.neff@newsobserver.com or 919-829-4516

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