State law may shield Easley in investigations

Lawyers says statute is untested

staff writerOctober 31, 2010 

  • From Article 22A - Regulating contributions and expenditures in political campaigns

    163-278.29. Compelling self-incriminating testimony; individual so testifying excused from prosecution.

    No individual shall be excused from attending or testifying or producing any books, papers, or other documents before any court upon any proceeding or trial of another for the violation of any of the provisions of this Article, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him, but such individual may be subpoenaed and required to testify by and for the State relative to any offense arising under the provisions of this Article; but such individual shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may be compelled to testify or produce evidence, documentary or otherwise, and no compelled testimony so given or produced shall be used against him upon any criminal proceeding, but such individual so compelled to testify with respect to any acts of his own shall be immune from prosecution on account thereof.

A state law may give former Gov. Mike Easley some cover from state investigations.

Last year, the State Board of Elections' inquiry into Easley's campaign produced testimony that showed Easley did not pay for more than $11,000 worth of repairs to his home in Raleigh in 2004 and 2005. An associate of Easley's alleged that the campaign picked up the bills but that the spending was disclosed to the public as covering the cost of flights.

Other testimony showed that Easley received roughly $60,000 worth of free air travel, that his campaign rented his home for $14,000 during an unspecified period, and that a vehicle was provided free for six years either to Easley's campaign or to his son.

Elections board members said they had heard evidence of possible crimes by Easley and others. The board referred the case to a state prosecutor.

Easley denied wrongdoing, but because of the statute, which applies to state elections law only, he could be immune from prosecution simply because he was subpoenaed and testified.

The prosecutor overseeing the criminal case, William Kenerly of Rowan County, confirmed that he is studying the immunity question.

"I am aware of the statute," he said, "and am considering it, along with other information."

Kenerly, a Republican, is not seeking re-election and plans to retire when he finishes this case. He declined to elaborate about the case, but he has previously said he expected to reach decisions soon.

Lawyers for Easley declined to comment. Easley, a Democrat, was a two-term governor who left office early last year.

The law in question is a single sentence running 165 words. A similar, longer version is in another section of the elections law. It was last updated in 1973 as part of Watergate-era campaign finance reforms.

A key point is whether a witness - such as Easley - subpoenaed by the elections board has any option to decline to testify.

The law appears to say that people subpoenaed:

Can't be excused from "attending or testifying" before "any court" because the testimony or evidence required may incriminate them.

Can't have that compelled testimony used against them in "any criminal proceeding."

And are "immune from prosecution" with respect to what they say under oath about their own actions.

Michael Crowell, an elections law expert who works at the UNC-Chapel Hill School of Government, said the law is "not as clear as one might like." He and others said lawmakers might have been striking a balance between getting information and prosecuting people.

He said there are valid questions about the law: Does the elections board qualify as a court? Does issuing a subpoena grant immunity?

Crowell said there are no precedent-setting court cases that help sort it out.

"As of now, it's for lawyers to debate," he said.

Past cases

Records and interviews show that state elections Chairman Larry Leake took steps in other recent cases before the board that likely removed the immunity issue. One instance was the inquiry that led to charges against former House Speaker Jim Black.

Leake made clear to witnesses in the Black case, and in another hearing since, that they were not being compelled to testify.

But Leake, a Democrat, didn't do that in the Easley hearing.

In an interview, Leake said that he couldn't discuss the issue in detail. Leake said the steps he took in past cases were "solely out of an abundance of caution." He said he didn't think it was necessary in the Easley case.

Willoughby's position

But Wake County District Attorney Colon Willoughby, a Democrat who has handled most of the cases the elections board has referred to a prosecutor in recent years, disagrees. He said his view has been that the law in question does grant immunity to someone who is subpoenaed and then called to testify before the elections board without any discussion of waiving immunity.

Willoughby said that he and Leake have discussed the issue over the years as various cases started with the elections board and ended up with prosecutors.

Willoughby recused himself from the Easley matter because of his ties to the former governor, including a previous appointment for Willoughby's wife to a state position. Willoughby said he played no part in the Easley case before or after the elections hearing.

Former state Agriculture Commissioner Meg Scott Phipps raised the immunity question before a lower-court judge after she was charged with state crimes related to perjury.

Willoughby said the immunity statute was a factor in deciding to bring charges that were not tied to the substance of Phipps' elections board testimony. And officials said Phipps' legal challenge did not prevail because she was charged with perjury and not offenses, such as fraud, that she had testified about.

Perjury charges generally require two witnesses.

Black, who was House speaker for a record-tying four terms until he resigned in 2007, ultimately pleaded guilty to state and federal charges, so the immunity issue wasn't contested.

Even so, Willoughby said, Leake had likely "side-stepped" the immunity issue when he affirmatively told witnesses in the Black hearing before questioning them that the elections board wasn't compelling them to talk.

Witnesses can be willing

In one exchange with a lawyer for multiple witnesses during the 2006 Black hearing, Leake said that "although this board has the authority to grant immunity and compel testimony, these witnesses will not be compelled."

In a 2007 hearing dealing with former state Rep. Thomas Wright, Leake made the same point with two witnesses. "Although we have compelled your presence," Leake said at the time, "you understand that we are not going to compel you to testify."

Leake said that the law gives the elections board wide-ranging authority to investigate "including the ability to immunize individuals and compel their testimony" but that it's not automatic.

Leake acknowledged that Willoughby and others might take a different position.

Experts disagree

Over the years Leake has allowed witnesses to assert their Fifth Amendment right against self-incrimination and then excused them. That included former Easley aide Ruffin Poole, who fought his subpoena in the Easley hearing and ultimately declined to testify.

But Jim Cooney, a prominent Charlotte lawyer who has represented the Democratic Party, said that a plain reading of the law doesn't appear to allow a witness such as Poole to back out on his own.

Richard Myers, a UNC law professor and former federal prosecutor, said his reading of the law is that the subpoena requires a witness to appear but doesn't automatically require the witness to testify.

"So if you're subpoenaed, that means show up and testify," he said. But he said a witness must still invoke his right against self-incrimination - and then be compelled to testify - to receive immunity.

In the Easley case, none of the witnesses were advised orally about whether their testimony was being compelled, transcripts show. But the law in question is printed on the subpoenas.

Irving Joyner, an N.C. Central law professor, said that prosecutors could still pursue charges based on information they developed outside the elections hearing and would have to exclude any testimony from Easley. He said his view is that it doesn't affect federal authorities who have repeatedly issued subpoenas related to Easley since last year.

Easley's testimony

Easley testified for about five hours on Oct. 28, 2009, and did not publicly raise any concerns about the immunity issue.

Easley and a former associate, McQueen Campbell, differed over the purpose of $11,000 in payments the Easley campaign made to Campbell. Easley said he thought the money was for flights on Campbell's plane, including flights that would be taken in the future. Campbell said he was being repaid for tree-trimming, water damage and other repairs he arranged and had paid for on Easley's home on Lake Drive in Raleigh.

Separately, Easley received a $5,400 insurance reimbursement check related to part of the repairs.

Two days later, the elections board members unanimously referred the case to the state prosecutor, saying in interviews that they did not believe all of what Easley had told them. They also fined the Easley campaign $100,000, an amount tied to unpaid air travel and the cost of the board's investigation. The fine has not been paid.

Easley's lawyer at the time, Thomas Hicks, had requested that the case be reviewed by a prosecutor, and he acknowledged that potential charges that could arise from the case included conspiracy, fraud or possibly perjury.

Hicks said that Easley wanted a prosecutor to decide on the possible charges.

"No matter what happens, the public is going to question, 'Did Mike Easley slip one over on the board?'" Hicks said at the time. "He's saying refer it. That's his position."

acurliss@newosbserver.com or 919-829-4840

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