Wake judge dismisses toilet littering case against Durham woman

Genevieve “Gigi” Burkhalter was sitting at a defense table in a Wake County courtroom Monday, fighting allegations that she left a rainbow-colored toilet outside the governor’s mansion in April, when she received news she had been awaiting.

During the lull in her case, Burkhalter looked back at the dozen people in the courtroom gallery as her supporters mouthed: “The governor just conceded.”

A smile spread across Burkhalter’s face. Gov. Pat McCrory had just issued a YouTube message that included him calling Roy Cooper, his Democratic challenger, “the 75th governor of North Carolina.”

Less than an hour later, Burkhalter received more news she had waited to hear: District Court Judge Eric Chasse dismissed the case against her, citing a lack of evidence from prosecutors.

“It’s two victories,” Burkhalter said later outside the courtroom.

Burkhalter’s case raised questions about the measures taken by State Capitol police to bring a case against her.

The 36-year-old web designer and graphic artist was sitting in her Durham home on April 28 when several police officers arrested her on a misdemeanor littering charge. She was accused of being one of two people who removed a rainbow-colored porcelain toilet from a truck bed on April 15 and left it on the Blount Street sidewalk in front of the N.C. Executive Mansion with the sign “Gov. McCrory, your hands are not clean. Cut the Crap! #We Came 2 Slay HB2.”

The misdemeanor for which was arrested alleged that she recklessly left litter – exceeding 15 pounds but less than 500 pounds – on property that was not hers. Burkhalter disputed the charge.

After unsuccessfully arguing in early November that State Capitol police were outside their jurisdiction when they came to Durham and enlisted the help of Durham police officers to arrest Burkhalter, the defense made two additional arguments Monday.

Scott Holmes, a N.C. Central University law professor and supervising attorney of the school’s Civil Litigation Clinic, argued that not only did he think prosecutors had failed to meet their burden of proof, he suggested that leaving a toilet on a public sidewalk in front of the Executive Mansion was protected political speech.

Mandy Carter, a Durham resident who co-founded the National Black Justice Coalition, which advocates for the African-American LGBT community, and Southerners On New Ground, another LGBT advocacy group, testified in Burkhalter’s defense.

A rainbow-colored toilet, Carter said, “has tremendous political significance and importance.”

What the police allege, according to an arrest warrant issued April 19, is that State Highway Patrol Trooper G. Ingram observed a pickup truck on surveillance camera drive around the Executive Mansion at 6:38 a.m. on April 15. On the second pass around, the truck stopped in front of the main gate.

A person, not known by the trooper, was seen removing “an item from the bed of the truck,” according to the application for the warrant, and placing it down. The person was then seen going back to the truck, retrieving another “item” and placing it down.

That person then is seen parking the truck and walking across the street to take a photo of the toilet, according to State Capitol police.

The trooper ran from inside the mansion to the gate where the toilet was left, then went back inside to check surveillance footage and noted the license plate number on the truck. That’s what led police to Burkhalter.

Judge: ‘Not about HB2’

In court Monday, one of the troopers initially pointed to a woman sitting in the front of the courtroom as someone he recognized to be the driver of the truck. The trooper then backtracked on his certainty, saying he could not be 100 percent sure whether the driver was in the courtroom.

Though the troopers said they had seen Burkhalter on the surveillance footage, video showing that was not presented in court Monday.

In his closing argument, Holmes argued that prosecutors presented no evidence of how much the toilet weighed, nor had they convincingly showed that Burkhalter was the one who removed the item from the truck bed and left it in front of the governor’s home during a heightened period of protest against House Bill 2.

One of the state troopers who testified Monday said the toilet had been removed from the sidewalk “because it was an embarrassment.” It was stored in the Executive Mansion for at least six months, but not introduced as evidence in the courtroom Monday.

“This is not a case about House Bill 2,” Chasse said before issuing his ruling.

The case, Chasse said, was about meeting the standard of proof required by the U.S. Constitution. Chasse said as a “finder of fact,” he had not heard enough evidence for a conviction.

“I’m not condoning anything,” Chasse said. “I’m not not condoning. …This was simply a finder of fact issue.”

This story was originally published December 5, 2016 at 7:10 PM with the headline "Wake judge dismisses toilet littering case against Durham woman."