When the state Supreme Court reconsiders a previous ruling in the 30-year-old Leandro case this week, Justice Phil Berger Jr. will take part in the hearing and deliberations even though his father, the powerful leader of the state Senate, is one of the legislative intervenors who asked for the unusual proceeding.
Berger Jr.’s colleagues (he did not participate in the vote) split along party lines on whether he needed to recuse himself from a hearing that could decide whether the state has to comply with a previous Supreme Court order on K-12 education spending.
The court’s four Republican justices–Trey Allen, Tamara Barringer, Richard Dietz, and Paul Newby–ruled that because the request for recusal from Hoke County school board representatives and others involved with the long-running case cited “no new grounds for recusal” from a similar motion several years ago, the current one “amounts to an impermissible challenge.”
The Democratic justices disagreed, and their dissent gives another glimpse of friction among justices.
In August 2022, Berger Jr. decided he did not have a conflict of interest even though his father, one of the most powerful Republicans in the state, was an “intervenor-defendant” in the suit.
In their February 16 order, the Republican majority reiterated Berger Jr.’s previous arguments, noting that his father was a party to the litigation only in his official capacity as president pro tempore of the Senate and was acting as an “agent of the State.” “[A] reasonable person would understand that a suit against a government official in his or her official capacity is not a suit against the individual,” Allen wrote.
“Impartiality—maintained in fact as well as for appearances—is central to the functioning of our state’s courts,” Justice Allison Riggs responded in the dissent.
Riggs took issue with wording in Berger Jr.’s February 5 order in which he stated members of the court “should strive to fortify public trust, and unilateral action in this matter could undermine public confidence.” Though Berger Jr. did not specify, Riggs described it as a slight against fellow Democratic Justice Anita Earls, who also faced a recusal request in the case and decided herself that she did not have a conflict of interest..
“In my view, this unnecessary commentary itself undermines public confidence in the Court,” Riggs wrote. Nearly three years ago, the court decided individual justices held the ultimate choice of whether they should recuse themselves. Suggesting otherwise, Riggs added, “can only serve to fuel public attacks on a Justice who followed the proscribed administrative rules for addressing recusal motions.”
Earls was briefly involved in the case in 2005, as one of several attorneys representing a group of students, parents and representatives of the Charlotte NAACP. Her January 31 order rejecting recusal reflected the stance she took in 2022, citing her confidence that her limited role in the case previously would not impair her ability to “impartially decide this appeal.”
Riggs further pointed out that Berger Jr. had taken “unilateral action on recusal motions in at least three matters” since the 2021 administrative order allowing justices to make their own decisions. “Why would it ‘undermine public confidence’ here and not in those cases?,” Riggs stated in her order.
Riggs criticized Berger Jr. for suggesting “the substance of this motion has already been decided” and that the motion for his recusal was frivolous. By signalling such sentiments, Riggs stated, Berger Jr.’s action seemed “performative rather than substantive.” “And Justice Berger has clearly found a receptive audience in the majority, which dismisses the recusal motion without even purporting to independently decide the question presented.”
The request to rehear the case came from Berger Sr. and other legislative leaders within months of a Democratic majority decision ordering the legislature to fund two years of a $1.7 billion comprehensive K-12 spending plan. Berger Sr. and other Republicans contend that the state constitution puts the legislative branch in charge of the budgetary purse strings, not the courts.
Riggs wrote that Berger Sr. would benefit from a reversal of that order because the lawmaker had campaigned on maintaining a “multi-billion dollar” budgetary surplus and his aim to redistribute those savings through tax cuts for the people and corporations of North Carolina.
“Put bluntly,” Riggs wrote, “a son’s vote to deliver his father a campaign ‘win’ in an election year substantially affects the latter’s personal and financial interests.”
–Anne Blythe
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A Matter of Intent
In court proceedings over the last four months, federal prosecutors have insisted that Cye Frasier and Carlisa Allen intentionally sold fentanyl-laced cocaine to college students. Frasier and Allen were so reckless, they said, that it eventually led to the deaths of UNC student Elizabeth Grace Burton and former UNC-Wilmington student Josh Zinner last March.
While Frasier entered a guilty plea last fall, Allen went to trial in November, resulting in her conviction on five charges, including distribution that led to Zinner’s death.
One of the key pieces of evidence prosecutors used to show that the dealers intentionally cut cocaine with fentanyl was a note found on Allen’s phone. It said, “28 raw can add 14 cut.”
DEA agent Stephen Razik testified at Allen’s trial that “raw” referred to coke and “cut” referred to fentanyl. He based that opinion in part on thousands of text messages between Allen and Frasier. Prosecutors accepted Razik’s testimony as fact, and the defense did not contest it–until Frasier’s sentencing last week.
It was an accident, Frasier said, not intentional mixing of coke and fentanyl. As Charlotte Kramon and Michael Hewlett report, the judge again delayed sentencing while he weighs this new version of events.
A judge weighs whether drug dealers intentionally mixed coke with fentanyl. Federal prosecutors said yes, but one of the dealers now says it was all an accident.
Cooper Clemency Watch
On April 13, 2008, three masked men walked into Mitchell County’s Ridgeview Presbyterian Church, where 16 congregants were attending services. One of the men carried duct tape, while the other two brandished handguns.
They took cell phones, keys, wallets, and $370 cash from the offering plate. At one point, one of the guns was accidentally discharged into the ground, inches from a teenage girl.
“If you leave the church before 30 minutes or call the police, we’ll come back and blow your fucking heads off,” one of the masked men told terrified congregants.
Josiah Deyton was 18 at the time, and his brother, Andrew, was 19. The third man, Jonathan Koniak, was 20. They were quickly arrested and admitted what they’d done. Given the circumstances, their lawyers told them they would likely spend 10, maybe 15 years in prison.
But Superior Court Judge James L. Baker took issue with the fact they had robbed a church and handed down sentences of between 53 years and four months to 71 years and eight months behind bars, depending on their conduct—a “de facto life sentence,” as an attorney put it.
As they approach middle age, and as our understanding of young brains continues to develop, their lawyers are now appealing to Gov. Roy Cooper to give their case another look.
They were barely adults when they committed a senseless crime in 2008. Given what we’ve learned about young brains, should Gov. Roy Cooper give their clemency bid another look?
“In all my years of practice, I cannot recall ever seeing anyone sentenced as harshly as the defendants in this case for a crime of this nature,” wrote Koniak’s lawyer.
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Around the State
The Race to be NC’s Least-Powerful Elected Official
Fifteen candidates are running to become the next lieutenant governor. Why do so many want a job that doesn’t actually have much authority?
Prosecutorial Discretion
Satana Deberry became Durham’s DA on progressive promises. Her bid for attorney general tests how far that can take her.
The Democrats’ Shrinking Tent
Four state House Democrats who voted with Republicans on key bills face primary challenges.
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