Judge remarks on meager case

Judge remarks on meager case as Easley's attorney lashes out at N&O.

Staff WritersNovember 24, 2010 

The high-paying state job for his wife. The deep discount on a prime coastal lot. The waived fees from an exclusive golf club.

Those and other perks became fodder for a lengthy state and federal criminal investigation into former Gov. Mike Easley's activities while in office. But not a hint of them entered into the proceedings Tuesday that culminated in Easley's plea on a single felony charge of failing to report a campaign expense.

Even the man who accepted the plea, Superior Court Judge W. Osmond Smith III, couldn't help but note the lack of heft to the state's case.

"So this prosecution before the court today involves one flight to a fundraiser for another candidate at a time this defendant was not a candidate?" Smith asked.

"Yes sir, that's correct," said state prosecutor William Kenerly of Salisbury.

Easley's plea ended a sprawling, 22-month investigation into his public and personal life. Aside from a former top aide who admitted to using his office to profit on a real estate development, no one else will be charged.

"If there ever was an example of [a case] not ending with a bang but a whimper, this is a perfect example of that," said Joseph B. Cheshire V, a veteran Raleigh criminal defense attorney who represented Easley.

Cheshire chastised the media - and The News & Observer in particular - for whipping up a frenzy with reports that he said were full of smoke but very little fire. But statements made by state and federal prosecutors suggest recent legal decisions and interpretations also worked in Easley's favor.

This summer, the nation's highest court found that a criminal law often used by federal prosecutors to go after political corruption - the "honest services" law - was too vague for use in many cases. Before the ruling, prosecutors could bring cases alleging that a public official had not acted in the public's interest without proving that the official had taken a bribe. Now, they will be hard-pressed to move forward without that evidence.

While Easley and his family received perks, little hard evidence emerged to show that the benefits were directly connected to government action.

Holding's concern

U.S. Attorney George Holding did not cite the court decision in a statement issued after Easley's plea, but in an interview he said he was disappointed in the Supreme Court's decision. He said in general it has limited his office's ability to prosecute political corruption.

"That Supreme Court ruling dealt a severe blow to our ability to bring public corruption charges, but I cannot and won't comment on this case," he said.

Meanwhile, Kenerly and Easley's attorneys had reviewed the state's 37-year-old law pertaining to witnesses subpoenaed to appear before the State Board of Elections. It raised questions as to whether those required to testify could have their testimony used against them.

Kenerly, in court and in a news release, said the law appeared to give Easley immunity from anything he said during the hours of testimony he gave during an elections board hearing in October 2009.

"We have spent weeks sort of arguing back and forth about the impact of the immunity statute, and the best I can say [is] it is part of the reason that the state's agreed to enter this" plea agreement, Kenerly said.

The law changes

The legal landscape also changed during the time of the events in question. It wasn't a crime in 2005 when Easley's campaign paid for $11,000 in home repairs. A year later, lawmakers passed a ban on the personal use of campaign funds. The ban was in response to the scandals surrounding the legislative activities of House Speaker Jim Black, who was later convicted of political corruption.

While trials are often the public face of the American criminal justice system, many more cases end in plea agreements. Defendants weigh the risk of a conviction by trial followed by a hefty sentence, while prosecutors have to consider the possibility that a defendant could be acquitted.

"Plea bargains are compromises. That's what they are," Kenerly said after the hearing.

Cheshire acknowledged that. during plea negotiations, prosecutors talked about other charges they might seek against Easley. A letter released by the U.S. Attorney's Office indicates Easley was willing to plead to a different, unidentified charge earlier.

But Cheshire suggested the cost of mounting a trial defense in such a high-profile case was a big factor in Easley's guilty plea to a charge that will require a $1,000 fine but no jail time, probation or community service.

He said even with the assets of all of the two dozen people in the room, "We couldn't afford to defend a criminal case like this, and nobody can."

The plea, he said, is simply an admission that campaign finance laws should be followed precisely.

UNC law professor Richard Myers, a former federal prosecutor, was inclined to agree. He said one of the most telling aspects of the deal is that Easley did not have to admit any guilt by offering an Alford plea. That means Easley acknowledges only that he would be unlikely to succeed in fighting the charge if the case went to trial.

"That suggests that prosecutors think they may have some problems with the case," Myers said.

dan.kane@newsobserver.com or 919-829-4861

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