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In late January, North Carolina Supreme Court Justice Anita Earls, a Democrat, said the court’s new Republican majority planned to strip the Court of Appeals of the ability to determine which of its rulings set precedents.   

The Rules of Appellate Procedure, which govern such things, haven’t changed. But in one of the N.C. Supreme Court’s first rulings this year, the five Republican justices declared that the appellate decision in Molé v. City of Durham “stands without precedential value.” They also determined—in a two-sentence, unsigned opinion—that the state Supreme Court had “improvidently” agreed to review the case in March 2022, when Democrats held a 4-3 majority. 

Justice Richard Dietz wrote in a concurring opinion that the court has done both things many times before, though he acknowledged that it usually “unpublishes” appellate rulings only when recusals leave justices unable to form majorities to decide cases. 

That sparked angry dissents from Democrats Earls and Michael Morgan. Both noted that the court has never taken both steps at the same time. They also pointed out that Molé had no recusals. Instead, Dietz suggested the justices wanted to avoid a “messy” ruling. 

“Insinuations that this was a complicated case that divided the court do not distinguish it from the many complicated issues the court faces that often involve multiple possible outcomes,” Earls said. 

There’s no question Molé is complex. 

The case centers on Durham Police Sgt. Michael Molé, who in his first assignment as a hostage negotiator in 2016 promised an armed, unstable man barricaded in a home that he could smoke a blunt after he surrendered. The man did, Molé kept his word, and the Durham Police Department fired him for it

Molé sued, arguing that the DPD had wrongfully terminated him, subjected him to harsher punishment than other cops who had done far worse, and gave him only one day’s notice before a pre-disciplinary hearing instead of the three DPD procedures required. 

The superior and appeals courts rejected the first claim out of hand. In an at-will employment state, the department didn’t need a reason to fire Molé. The appeals court seemed sympathetic to his second argument but found that nothing in the state’s discrimination laws applied. 

“We urge the Supreme Court to address this issue,” the appellate judges wrote. 

But the appeals court ruled that by violating its own procedure, the DPD ran afoul of a 2018 state Supreme Court opinion that “protects public employees from unreasonable violations of employment policies.”  

Both sides appealed. Molé wanted the Supreme Court to further expand protections for public employees; Durham argued that the appeals court had expanded those protections too far. The Supreme Court punted—and wiped the appeals court’s decision from the books. 

Very few states allow supreme courts to arbitrarily unpublish lower court decisions, Earls wrote. By doing so with Molé, “this Court has chosen to sweep this case under the rug never to be seen again without so much as an explanation.” 

Molé’s case now returns to Durham County Superior Court.

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Back in the News

Irving et. al v. City of Raleigh

On Sunday, Rolling Stone published a long feature on former Raleigh vice detective Omar Abdullah’s “reign of terror.” The RPD’s fake-heroin scandal has only gotten worse since The Assembly reported on it last month.

On March 13, Judge Terrence W. Boyle granted qualified immunity to the 10 SWAT officers who, acting on a faulty search warrant, burst into the homes of Yolanda Irving and her neighbor on May 21, 2020. Boyle said cops “do not violate any clearly established rights when they point their firearms at the unknown occupants of a residence.”

Boyle also removed Emancipate NC as a co-plaintiff in Irving’s lawsuit, saying the activist group lacked standing. 

Then, on March 31, attorneys for three RPD vice detectives attached more than 1,300 pages of testimony from the detectives, their supervisor, Abdullah, and SWAT officers to a court filing – previously undisclosed depositions that provide insight into not only what went wrong but also how the RPD handles informants. 

Read our six takeaways from the new documents. 

Cross Examination

In February 2022, the N.C. Supreme Court made history when, for the first time, it overturned a conviction based on a claim of racial discrimination in jury selection. 

But with a new 5-2 Republican majority, legal experts fear the N.C. Supreme Court will backslide on whatever progress it may have made toward enforcing the 1986 U.S. Supreme Court decision in Batson v. Kentucky that was supposed to outlaw such discrimination. 

As The Assembly reported last month, the N.C. Supreme Court took up four cases on alleged Batson violations this session. One was the case of Russell William Tucker, who alleges Forsyth County prosecutors used a training document to fabricate non-racial reasons for striking all five Black potential jurors. A decision in Tucker’s case has not yet been issued. 

Last Thursday, the court released decisions in two others: State v. Cedric Theodis Hobbs and State v. Antwuan Tyrez Campbell. In both, the court denied the Batson claims and deferred greatly to the trial court findings. Hobbs’ case had previously come before the court in 2020, which at the time ruled the trial judge had failed to make sufficient findings on the defendant’s Batson claim and sent it back to Cumberland County for a new hearing. The trial judge denied Hobbs’ Batson claim a second time, which is what sent it back to the highest court. 

Emily Coward, director of the Inclusive Juries Project at Duke University School of Law, told The Assembly that the two rulings indicate that this court might be less likely to overturn convictions due to Batson violations.

This interview has been edited for length and clarity.

The Assembly: The state Supreme Court took several months to issue their first decisions of the year, and two of them involve Batson. What do you think that shows?

Coward: We now have some indication of how this newly constituted North Carolina Supreme Court is going to approach [these] issues. The majority opinions in Hobbs and Campbell reflect a return to the approach the court took for three decades to Batson cases, which was, I would characterize, a high level of deference to Batson rejections at the trial court level. 

For 35-plus years, the approach of deference on Batson cases resulted in zero findings of juror discrimination against jurors of color in many, many cases – over 100. It looks as though the newly constituted court is going to be returning to an approach that really leaves it to trial judges to determine whether or not there was juror discrimination and is very hesitant to overturn anything that has been decided by a trial judge in that context.

The Assembly: Is there any difference between the two cases in terms of approach?

Coward: One thing that is different is that in Hobbs, even though it is written by Chief Justice Newby, who wrote the dissent in the 2020 Hobbs case, it doesn’t reflect an abandonment of the primary holdings in that verdict, wherein the court made it clear in language and in an approach that hadn’t been evident in past opinions. The first Hobbs case, as authored by Associate Justice Earls, stands for the proposition that trial court judges must show their work when they’re reviewing claims of juror discrimination to enable appellate court review, that they must carefully consider comparative juror analysis and historical evidence.

State v. Campbell is a great illustration of why some states have abandoned “step one” of the Batson framework altogether: the presentation of a prima facie case. Essentially this step serves a gatekeeping function, preventing complete Batson hearings where a court determines that the objecting party has not raised an inference of discrimination. Ending a Batson inquiry at step one means that courts can, and do, avoid evaluating evidence of race-related strikes. 

For example, in this case, the prosecutor stated that he struck one of the jurors, in part, because of her involvement in Black Lives Matter. But the N.C. Supreme Court didn’t even consider this evidence, because it found that it was not part of the step one determination. In states like Washington and California, where there is no longer a requirement to present a prima facie case, courts conduct a merits analysis of a jury discrimination challenge every time one is raised. The best way to ensure that the prima facie case actually operates as a “low bar” is to remove the bar altogether. 

The Assembly: There are two other pending Batson cases, State v. Russell William Tucker and State v. Jonathan Douglas Richardson. What should we be looking for when those decisions are issued? 

Coward: Tucker in particular is a case where there is evidence in front of the court that indicates that prosecutors may have been substituting a training manual or cheat sheet for their actual reasons for the strikes. So in that case, we’ll be waiting to see whether or not the court will tolerate that sort of response to a Batson challenge. 

We’ll need to see whether or not this court is going to deal with that issue when there is evidence of potential racial discrimination in front of it. Will deference always be the answer, or will the court, when appropriate, guard against juror discrimination? It’s unclear right now. 

A $100 Million Mess

The rollout of North Carolina’s long-delayed attempt to digitize court records has been a catastrophe. Can it be salvaged?

A Jury Of One’s Peers

A case before the N.C. Supreme Court questions whether a training document on jury selection was used to help remove Black jurors.

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