DWI cases sought by N&O sealed

A judge orders dozens of Johnston County cases sealed. A professor says they are on the public record

SMITHFIELD -- Less than 24 hours after a News & Observer reporter asked to review dozens of DWI cases being held in a safe in the Johnston County Courthouse, a judge heeded a request from the state Attorney General's Office to seal the records.

Patrick Murphy, a prosecutor from the Attorney General's Office, asked a judge to keep the records out of the public's view while agents from the State Bureau of Investigation examined the files. Johnston County District Attorney Susan Doyle asked the SBI to launch a criminal investigation this spring; she declined to elaborate on the nature of the investigation.

According to state law, public records can't be withheld just because they are being used as part of a criminal investigation. Criminal court records are considered public in North Carolina.

"There's nothing in the state statute to allow that," said David M. Lawrence, a professor and public records expert with the UNC-Chapel Hill School of Government.

The records were hidden as The N&O sought to investigate allegations that driving while impaired cases might have been improperly dismissed.

North Carolina Attorney General Roy Cooper defended the secrecy of the public records. Cooper was away at a conference, and his spokeswoman issued this statement when a reporter asked to speak with him: "Our investigators and prosecutors believe this step is necessary to help them pursue leads during a critical phase of this criminal investigation. This case questions the integrity of the criminal justice system, and a thorough investigation is vital."

Superior Court Judge James Ammons, based in Fayetteville, came to Johnston County to sign the order early Tuesday, a half-hour before an N&O reporter expected to examine the files. Ammons had no other business to attend to Tuesday; he signed the order in judge's chambers and was gone within an hour.

Tom Lock, the resident Superior Court judge, was on duty Tuesday morning and available to deal with the request.

Ammons called the state Administrative Office of the Courts early Tuesday, to alert them that he needed a commission to hold court so that he could sign an order, said Beryle Talton, administrative assistant to the AOC's assistant director.

In an order sealing the records, Ammons said that he concluded that "the immediate release of information ... would undermine the ongoing investigation and would jeopardize the potential success of the investigation to determine whether any unlawful actions took place related to said cases, the identify of any individual who may have acted unlawfully, and the existence of sufficient evidence to convict any individual who may have violated the law." Ammons also sealed the prosecutor's motion asking for the secrecy.

Ammons could not be reached Wednesday.

Attorneys for The N&O are reviewing Ammons' order.

On Tuesday, the SBI did release some of the DWI cases it had been reviewing as part of its query. The 30 or so court cases returned to the public filing cabinets in the Johnston County Clerk's Office were all DWI dismissals, nearly all signed by former Johnston County Assistant District Attorney Cindy Jaeger.

Jaeger, who left the District Attorney's Office in September to work as a prosecutor in Forsyth County, was contacted by the SBI a few months ago, her attorney, David Freedman, said.

"She's been completely cooperative and candid and wants to help [the SBI] resolve this matter," Freedman said. Jaeger has since left the Forsyth District Attorney's Office and is in private practice in Winston-Salem, Freedman said.

Dismissal rates of DWI cases have been of concern in Johnston for a few years. In 2006, county prosecutors voluntarily dismissed about 43 percent of all impaired-driving charges, according to court records; statewide, 14 percent of cases were dismissed in 2006.

In 2007, county prosecutors dismissed 39 percent of DWI cases; in the first half of 2008, the dismissal rate dropped to less than 20 percent.

Sgt. C.A. White, head of the state Highway Patrol office in Johnston County, said this spring he had noticed something amiss in several of the DWI cases his troopers had handled.

"Some of the reasons we saw on the dismissals didn't jibe with what we knew," White said.