In Wake, backdating DWIs goes beyond Kristin Ruth’s cases

Experts say the practice far exceeds law’s intent

ablythe@newsobserver.comJuly 22, 2012 

  • The story so far In February, the State Bureau of Investigation began an inquiry into the handling of some DWI cases after Wake County District Attorney Colon Willoughby alerted Wake County Superior Court Judge Donald Stephens about suspect cases. In May, Kristin Ruth resigned as Wake County District Court judge after 13 years on the bench. In June, Ruth was charged with unlawfully and willfully omitting and neglecting to discharge the duties of her office, a misdemeanor. James Crouch, a lawyer with a big DWI practice, was charged with two counts of obstruction of justice, one count of altering documents, a felony, and one count of conspiring with Daniel, his legal aide, to obstruct justice. Elizabeth Daniel, Crouch’s paralegal, was charged with conspiracy to obstruct justice with Crouch. The charges focus on the backdating of DWI convictions in meetings outside the courtroom and without the consent of all parties.

— In DWI cases, the high drama typically is on the roadside, where blue lights are flashing and a driver is ordered out of the car for a battery of sobriety tests.

But in Wake County these days, the tension is in the courthouse.

Kristin Ruth, a former Wake County District Court judge, James Crouch, a Raleigh lawyer who handles a high volume of drunken-driving cases, and Elizabeth Daniel, a paralegal for Crouch, have been arrested on charges related to their handling of dozens of DWI cases over the past four years. They are scheduled to appear Monday in Wake County Superior Court.

Their arrests have cast a striking chill over a courthouse that once teemed with defense lawyers eager to talk about cases and highlighted the prominent use of an obscure area of law.

In each case listed in the indictments, there was a judge’s ruling with a “nunc pro tunc” – a Latin phrase meaning “now for then” that offers an opening to retroactively change the date of an order, judgment or document filing.

That procedure, legal experts say, was designed to fix benign clerical errors. But an analysis by The News & Observer shows that nunc pro tuncs have been used in at least 273 Wake County DWI cases during the past five years with numerous defense attorneys, prosecutors and judges agreeing to them. That’s far more cases than anywhere else in the state.

A review of some of those cases shows such judgments were entered for a variety of reasons with varying effects.

They have been used to give a break to an honor student, AIDS drug researcher, soldier and many others. Sometimes the backdating wiped out penalties entirely in a DWI case, other times only partially. Sometimes the only benefit seemed to be the length of insurance rate increases tied to a DWI conviction.

The orders were used to bring relief to a defendant who missed a court date for a DWI case because jailers had not brought her to the courthouse for a scheduled hearing. On one occasion, a defendant had been in the military and missed a court date while overseas.

“This has been going on for years,” said Debbie Jones, an assistant secretary with the state Division of Motor Vehicles. “It’s statewide.”

There have been 424 DWI cases across the state in the past five years in which nunc pro tunc orders were entered, according to a search of state Administrative Office of the Courts databases. But nearly two-thirds of those cases were in Wake County.

“We have all been using nunc pro tuncs for a long time,” said John McWilliam, a Wake County lawyer who does a high volume of DWI and traffic cases. “And when I say we, I mean defense lawyers, prosecutors and judges.”

Though the statute and limited case law suggest the process should be used to fix a clerical error, McWilliam, licensed in North Carolina almost 19 years ago, said that has not been the practice in Wake County. In essence, court officials have used the process as a loophole for equitable relief.

“The purpose for nunc pro tuncing is to avoid the (driver’s license) suspension that goes along with the DWI,” McWilliam said.

Wake County District Attorney Colon Willoughby acknowledged that his office agreed to some of the orders.

What separates the cases in the indictments from others, Willoughby said, was that in each it appears the changes to conviction dates were made out of court without prosecutors’ agreement or awareness. In each case, too, the judge changed another judge’s order, Willoughby said.

“The primary issue surrounding these cases, they’re about the unauthorized changing of judgments,” Willoughby said.

A defendant’s advantage

DWI convictions carry heavy penalties. Those convicted lose their driver’s license for a year. But if a defendant appeals his DWI conviction to Superior Court, that license suspension doesn’t kick in until the case is resolved.

Many DWI trials are held in Wake County Superior Court, but often defendants decide to give up their appeal there and head back to District Court for sentencing.

The year of license suspension is supposed to kick in when the defendant returns to District Court.

In the cases tied to the accusations against Crouch, Ruth and Daniel, the documents showed Ruth overruled another judge’s conviction dates. The new dates were many months, sometimes a year, prior. The effect of those decisions could have meant sparing a license suspension or a shortened time without a license.

The process, legal analysts say, is typically initiated when a defendant’s attorney files a motion for appropriate relief, a document that has a space for a prosecutor’s signature. And almost always, a judge corrects his own order, not that of another judge.

But in the 40-plus cases linked to the indictments against Crouch, Ruth and Daniel, there is no motion for appropriate relief. Ruth changed orders other judges entered and, according to investigators, did not alert prosecutors about plans to do so.

A review of nunc pro tunc rulings in Wake County DWI cases shows the maneuver was used widely by other lawyers to alter cases in ways experts say the law wasn’t intended to be used.

In one case, a North Raleigh man was charged with a DWI on Aug. 6, 2004, and was convicted in the lower-level District Court on April 11, 2005. He appealed to Superior Court. At one point in 2006, he failed to appear in court for his trial. Then, in late 2008, he reached a plea deal.

The judge, Paul Gessner, imposed the same decision as the district court judge did in 2005. “Judgment will be entered nunc pro tunc to February 27, 2006,” Gessner ordered on Sept. 3, 2008. That wiped away about 18 months and allowed the defendant to keep his license.

In some instances, the records reflect that an assistant district attorney agreed to the backdating.

In one case, Ruth entered a nunc pro tunc order to eliminate the results of a breath test that resulted in an alcohol reading that would have caused stiffer driving restrictions.

In another case, a university student from Garner who was convicted of a DWI in April 2009 had the judgment changed through a nunc pro tunc order to October 2008, six months prior than the actual resolution of the case. The judge, Gessner, took into account that she had no other convictions and had been on the chancellor’s list at East Carolina University. This allowed her to regain her license more quickly.

Gessner said in an interview that he did not recall specific cases where he had issued nunc pro tunc orders.

He said if a prosecutor and a defense attorney agreed about how a case would be resolved, including a nunc pro tunc provision, he likely would have agreed.

“If there was consent to it by the sides, then it could have happened,” he said. “But I have no independent recollection of these.”

Help for a researcher

In a case similar to some of the ones for which Crouch was indicted, Ruth signed a nunc pro tunc for defense attorney William Fay, who represented an AIDS drug researcher from Cary.

In that case, the 55-year-old scientist was arrested in May 2009. Court files show he told officers he had four beers in a span of five hours. On April 16, 2010, he was convicted in Wake County District Court before Judge Jennifer Knox and immediately appealed to Superior Court.

Because investigators contended his blood-alcohol content was at a level calling for stricter penalties, a steering wheel lock was installed in his car in July 2010 that would not allow ignition without a breath test for alcohol.

On Sept. 13, 2010, the drug researcher withdrew his appeal in Superior Court and Judge Allen Baddour remanded it to District Court. On that same day, Ruth signed a nunc pro tunc order that dated the conviction July 22, 2010, wiping out the automatic 45-day loss of license that would have come from the high blood alcohol reading.

Fay has declined to comment about the case.

Chilling effect

Lawyers who carry a heavy load of traffic and drunken-driving cases say privately that the charges against a colleague have had a chilling effect on their work, not only in the way they defend their clients but in what judges are willing to approve in open court.

McWilliam, though, refuses to back down from a process he argues was accepted widely throughout the Wake County courthouse. Prosecutors and defense lawyers often agreed in hallway meetings to head to courtroom 5C – common parlance for the place where DWI cases could be settled quickly.

McWilliam, a neighbor and friend of Crouch’s, questions why Willoughby chose to go first to Wake County Superior Court Judge Donald Stephens with his concerns about Crouch’s cases and then to the State Bureau of Investigation. In the past, he said, court officials huddled to correct troubling practices.

Joseph B. Cheshire V, a Raleigh lawyer who represents Crouch, said that is what historically has happened in Wake County.

“You have a DA who’s trying to criminalize what are professional and ethical questions,” he said.

Willoughby said he had not considered courthouse policy changes in these cases.

“I don’t know what procedural changes I can do to stop a judge from doing something outside of court without my knowledge,” he said. “I didn’t know this was going on.”

McWilliam said he has requested nunc pro tunc orders in some of his cases even after the indictments.

“Judges look at me like I have snakes crawling out of my head,” he said.

The court says no

Twice in the past six years, the state Court of Appeals has addressed cases involving nunc pro tunc orders. In each, the judges reversed decisions by a lower court and a state agency, citing improper use of the order.

In each, the appeals court cited the intended use of such orders: “Nunc pro tunc is merely descriptive of the inherent power of the court to make its records speak the truth, to record that which was actually done, but omitted to be recorded. A nunc pro tunc order is a correcting order. ... A nunc pro tunc entry may not be used to accomplish something which ought to have been done but was not done.”

Michael Crowell, who teaches judges about their powers at UNC-Chapel Hill’s School of Government, said “nunc pro tunc” is a misused order.

“It’s one of those things that I don’t think many lawyers or that many judges understand exactly what it’s supposed to be used for,” Crowell said. “Nunc pro tunc means that you’re backdating something. And they may think that it’s appropriate in situations other than when it’s correcting an error.”

It’s not, he said, but is used typically when all sides are in agreement and trying to achieve a particular result.

“It wouldn’t surprise me if it were misused,” Crowell said. “Technically, it is not the thing to do and there may not even be authority to do it but nobody is unhappy about it, so it just goes on. ... The question is: However it’s being done, is it something that’s OK to do? To go back and, in effect, change the date of a plea? And the answer generally would be no.”

James C. Drennan, a professor at UNC’s School of Government who teaches on court administration, said the order “was always designed as a correction device.”

“It has evolved into these other areas, which are different, and not the classic use of a nunc pro tunc,” he said.

He said the pressure of speed in disposing of cases often plays into the use of the order in ways other than to correct documents.

Some judges will go along in the name of justice, he said, while others will not if there is no process to do so.

“Basically, it boils down to what justice means,” he said. “It becomes a question of whether justice is following a process or justice is seeking a particular result.”

Staff writer Andrea Weigl contributed to this report.

Blythe: 919-836-4948

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