RALEIGH — Two men sat with their attorney this week at a Wake County courtroom table, each facing the same district court judge on charges from the same summer protest at the legislature.
Ben Leo, a Habitat for Humanity deconstruction superintendent from Raleigh, and Michael Gross, an East Carolina University history professor from Greenville, each had been arrested on July 22 inside the N.C. Legislative Building.
Their arrests were days before the close of the historic North Carolina legislative session in which Republicans, for the first time in more than a century, had control of both General Assembly chambers and the governor’s office.
Each was charged with the same crimes.
But on Wednesday, with the same lawyer representing them, the same prosecutor presenting evidence and the same judge presiding over their simultaneous trials, Leo was found guilty of second-degree trespass and Gross was not.
Though the demonstrators participating in what organizers called “Moral Monday” protests were united in opposition to many of the new laws and policies from the 2013 General Assembly session, the varied verdicts from the early trials offer a portrait of a justice system where legal strategies, personalities and the slightest difference in evidence can have a major impact on the outcome of a case.
Saladin Muhammad, 68, a labor organizer from Rocky Mount, was the first of the protesters to be tried in Wake County District Court and the first convicted.
A week later, the same judge, Joy Hamilton, a former Wake County district court judge appointed by the state to preside over the cases, dismissed the same charges against a Durham couple arrested during a May 6 demonstration.
William Lawton, a former Wake County district court judge who also was appointed by the N.C. Administrative Office of the Courts to preside over the trials, addressed the issue from the bench before handing down different verdicts for Leo and Gross.
“There will be a variety of results,” Lawton said.
Each case is fact-driven, he said, and “out of all of these protests, each day is going to be different.”
Justice system nuances
In North Carolina, district court judges are not obligated to provide their reasons for rulings because the lower courts are not courts of record.
Neither Lawton nor Hamilton has shared their grounds for rulings, leaving a legal quandary for the assistant district attorney assigned to prosecute the hundreds of cases yet to be heard and the defense attorneys whose clients have not had their day in court.
In the cases of Leo and Gross, one difference that could have brought the varied verdicts was their proximity to General Assembly Chief Jeff Weaver when he raised his bullhorn on July 22 and told the crowd inside the Legislative Building to disperse.
Leo was about a foot-and-a-half away from the chief and would have been able to hear the command to disperse despite the singing and chanting.
Gross was farther away.
Leo, who appealed his verdict to Wake County Superior Court in keeping with those found guilty before him, said after his conviction that he did not regret the outcome nor did he regret opting to go to trial instead of taking a plea deal offered to the more than 920 protestesrs arrested.
The 35-year-old Raleigh man said he went to the Legislative Building to raise awareness to a host of issues troubling him – what he described as an assault of voting rights and tougher regulations for abortion providers that could close down clinics across the state.
“The whole point wasn’t to just show up and protest,” Leo said. “It’s a mix of calling attention to the issues continuously and also the issues being challenged in court.”
Before any of the demonstrators went to trial, Wake County District Attorney Colon Willoughby offered all a plea deal in which they could perform 25 hours of community service, pay $180 in court costs and have the charges dismissed.
Though nearly two dozen people accepted those deals, most of the protesters opted for trials, which have proceeded slowly since the first took place Oct. 4.
The Rev. William Barber, head of the state chapter of the NAACP and a chief architect of the weekly demonstrations, was on trial Oct. 25 with several others, but there was no verdict by the end of the day and they were scheduled to return in December.
Dr. Charles van der Horst, an AIDS researcher at UNC-Chapel Hill, and Tye Hunter, a lawyer who recently stepped down as director of the North Carolina Center for Death Penalty Litigation, were on trial part of Wednesday and all day Thursday. With no verdicts by the end of Thursday, the two were scheduled to return in December.
Lawton, the judge presiding over their cases, harangued the prosecutor and defense attorney on Thursday in a pointed speech highlighting the complexity of the cases and the unprecedented number of trials expected from the weekly demonstrations.
Some have questioned why protesters who engaged in civil disobedience are challenging the charges in court.
Scott Holmes, a longtime Durham defense lawyer and director of The Civil Litigation Law Clinic at N.C. Central University, represents some of the protesters, including the two whose cases were dismissed last month by Judge Hamilton.
Though he declined to speak in specifics, he talked broadly about why the 924 protesters arrested this summer, or others such as those in the Occupy movement, might want a day in court.
“Why would a protester in general want a trial?” Holmes said. “Because their civil disobedience not only brings light to their political issues, but it also is an opportunity to preserve the freedom of speech in a court of law, because if we don’t fight for it, it disappears.”
‘Trial by ambush’
Defense attorneys challenging the Moral Monday arrests have fought the charges on constitutional grounds that are rarely part of district court hearings.
Lawton mentioned that in his pointed remarks this week as Geeta Kapur, a Durham defense lawyer, and Mary Elizabeth Wilson, the assistant Wake County district attorney, were mid-trial.
The women had handed up numerous cases for the judge to review to bolster their arguments.
“You have thrown up – and I use the term as descriptively as I can – dozens of cases in constitutional law,” Lawton told the attorneys. “You’ve thrown these things up, arguing piecemeal case to case. That’s trial by ambush.”
Lawton told the attorneys he thought they were trying the cases “like they are Brown vs. the Board of Education,” the landmark education case.
Though he apologized later to the attorneys, Lawton told them they were being disrespectful by not preparing briefs that could quickly point him to the cases and associated legal arguments they wanted him to consider as he weighed constitutional and other broad tenets of the law.
“We’re not judges for life,” Lawton said. “We don’t have two clerks, I’m doing this solo. …I’m trying to do a job, a very difficult job and you all throw this stuff at me. For the benefit of a grossly underpaid trier of fact in district court, show the respect of putting together a …brief.”
During his two days presiding over the trials, Lawton repeatedly spoke about growing up during the Civil Rights era and seeing the protests in Washington, D.C., over the Vietnam war. He said he was aware of the political divide in the state and had told his friends that however he ruled he knew he would upset half the general public.
Lawton acknowledged that the impact today of a criminal conviction on a person’s record, even if it is for an act of civil disobedience, could have a greater impact than it would have several decades ago.
With hundreds of cases not yet scheduled for trial, Lawton suggested a shift. He suggested that the defense lawyers and prosecutor, who during a typical day in district court would have handled 260 cases during the same time-frame, get together before the trial to decide on the facts of the case.
“If people’s livelihoods are going to be put at risk,” Lawton said, “put the trier of fact in the best possible position.”
Holmes said the legislative protest cases highlight a trend in the justice system that troubles him.
“The number of people asking for a trial in these cases is unprecedented in Wake County and it really shows how our system of criminal justice is built around people pleading guilty,” Holmes said. “If a majority of people asked for a trial, it would be like a government shutdown.”