Attorney involved in ECU scandal reprimanded by North Carolina State Bar

A Hillsborough lawyer with ties to members of the UNC Board of Governors and high level GOP officials in North Carolina has been reprimanded by the North Carolina State Bar.

The action stems from a 2019 episode in which Peter Romary claimed he was working with members of the UNC Board of Governors and leaders of the North Carolina legislature when trying to obtain video that led to the resignation of former Interim ECU Chancellor Dan Gerlach.

The video, from Greenville traffic and security cameras, appeared to show Gerlach stumbling and weaving down a sidewalk after a September night that included drinking and dancing with ECU students at a popular bar. The video showed Gerlach then getting into his car and driving away.

The UNC System investigated the incident. But Tom Fetzer, then a member of the UNC Board of Governors, decided to conduct a parallel and in some instances conflicting investigation of his own for which he enlisted Romary. E-mails and text messages showed Romary and Fetzer – a lobbyist, former mayor of Raleigh and one-time chairman of the North Carolina Republican Party –  applied pressure and referenced powerful state lawmakers in seeking the video and not cooperating with the official investigation. They kept this work hidden from the full board of governors, then-UNC System President Bill Roper and the international law firm the system had hired to officially investigate the matter.

In the state bar’s reprimand, summarized in the its Fall 2021 journal, the group said Romary’s actions crossed the line of its code of professional conduct.

“[R]omary asserted that he was representing members of the UNC Board of Governors and the ECU Board of Trustees, members of the North Carolina General Assembly, and the State (and National) Police Benevolent Association,” the group wrote in its summary. “These assertions were misrepresentations in that a reasonable lawyer under the circumstances would not have formed the opinion that these individuals and entities were his clients. During these communications, Romary also alleged without basis in fact that the law firm investigating the matter for the UNC system had potentially engaged in misconduct.”

“Romary later filed a petition with the court to obtain the video footage in which he purported to represent an organization that was not his client,” the group wrote. “Romary was reprimanded by the Grievance Committee for, among other things, making false statements of material fact to a third party and to a tribunal. In determining that reprimand was the appropriate discipline, the committee took into consideration Romary’s lack of prior discipline and the isolated nature of this incident.”

All licensed lawyers in North Carolina must be members of the state bar, a government agency, and adhere to its code.

Romary misrepresented himself in the ECU episode, the state bar concluded, including in e-mails to the Greenville City Attorney’s office.

“I have been retained by some private parties, including a couple members of the ECU Board of Trustees and UNC Board of Governors,” Romary wrote. “This in response to an ever changing story from Dan Gerlach and an allegation of a ‘set up’ by him and some who support him.”

“I have also spoken to a Judge, friend of 25 years, and they are quite annoyed about this,” Romary wrote. “So, I am writing, requesting access to or copies of GPD surveillance camera footage.”

Fetzer also applied pressure, contacting Rep. John Bell (R-Wayne), the House majority leader, to enlist his help in obtaining the footage through Romary.

In text messages obtained by Policy Watch, Fetzer informed Bell of Romary’s work.

“John—Don Phillips is the Asst City Atty for Greenville overseeing the police Dept,” Fetzer texted Bell. “Please call him and tell him you are aware that Peter Romary (Ro’maree w emphasis on the first syllable), an attorney representing me as a BOG member, the Fraternal Order of Police and the Police Benevolent Assoc, has requested the preservation and release of video tapes showing Interim Chancellor Gerlach getting in his car and driving away around 2:20 am on 26 September.”

“Tell him the General Assembly has an oversight role and that you would like the tapes released,” Fetzer wrote in a text to Bell about getting in touch with the Greenville city attorney. “Please do this today if possible.”

“It goes without saying, but keeping this QUIET is essential,” Fetzer said in the text.

“I’ll try to work out something,” Bell texted back.

After that exchange, Romary began representing himself as connected to Bell and the legislature.

“I was informed that House Majority Leader John Bell will be retaining me in support of PBA // FoP and as part of legislature oversight,” Romary wrote in an Oct. 21 text to the assistant city attorney overseeing the Greenville Police Department. “Of course legislature folks want them yesterday.”

After the episode was made public, the Police Benevolent Association and members of the General Assembly denied Fetzer or Romary were working on their behalf.

The ECU incident was not the only controversy in which Romary and Fetzer were involved during Fetzer’s tenure on the board from 2017 to 2020.

In 2018, Fetzer and Romary were also involved in the scuttled search for a new chancellor at Western Carolina University. Fetzer gave confidential candidate information to Romary, who suggested the final candidate had lied on their application. Other board members said that wasn’t true. The candidate ultimately withdrew their application amid concerns about confidentiality.

Fetzer’s fellow board members — and then-UNC President Margaret Spellings — criticized Fetzer for stepping outside of the board’s process and compromising the confidentiality of the selection process.

Fetzer later admitted he had spoken to Spellings about becoming interim chancellor at Western Carolina but was denied when she said she’d chosen someone else.

Fetzer abruptly resigned from the UNC Board of Governors last year, saying he needed to spend more time helping to homeschool his five children in Wilmington. That led some on the board to speculate he would pursue a chancellorship at one of the system’s schools. The UNC Board of Governors appoints chancellors and members of its board can apply, though they have to resign their positions on the board first. Earlier this year then-board member Darrel Allison resigned to pursue the chancellorship at Fayetteville State University. His lack of qualifications for the job, in relation to other candidates in the nationwide search, made his eventual appointment by his former colleagues highly controversial.

UNC-Wilmington, based in Fetzer’s hometown, is now searching for a new chancellor. Fetzer is expected to apply, members of the UNC Board of Governors and UNC-Wilmington’s board of trustees told Policy Watch this week.

Those members asked not to be identified so that they could discuss a confidential search process and characterize discussions among board members, some in closed session.

“I would be surprised if he wasn’t interested and surprised if he didn’t end up applying,” a UNC Board of Governors member said of Fetzer. “That doesn’t mean that he would ultimately be the choice. There’s a lot of history to deal with when you’re talking about Tom.”

Fetzer’s resignation from the board of governors came as the board was finalizing changes to its policies and procedures that would more strictly outline its members’ responsibilities. The policy changes included the ability to censure and recommend the removal of board members who overstep their roles. The changes were instigated by repeated problems with Fetzer acting in ways his colleagues said were inappropriate and possibly legally dangerous for the UNC System.

After his resignation last year, board members told Policy Watch Fetzer could “read the room” and tell it was time for him to go.

“I think the writing was on the wall for him that the board wasn’t going to put up with the kinds of things he was involved in,” one board member said. “We are putting some teeth into our policies and he is not stupid. He’s a very intelligent man. He knows if he continues to operate the way he has, he’s going to end up in trouble.”

“His personality is just not going to allow him to be on the board without going beyond the lines that most of us observe,” the board member said. “He just has the kind of nature where he’s going to do what he wants to do and he likes to get into it with people, and I think our board is trying to move beyond that. We’ve had too much of it in the last few years.”

New prisons study confirms harmful impacts of solitary confinement, value of mental health treatment and care

A solitary cell in an NC prison. Image: Disability Rights NC

Advocates call for appropriations to fund essential reforms

In some ways, it seems kind of silly that we even had to conduct a study to confirm something so obvious, but in the modern world in which so many basic facts underlying public policy are constantly up for debate, new research conducted by the state prison system is welcome news. The finding: there’s a big payoff to providing treatment and care to incarcerated people with mental health disabilities. What’s more, the practice of using solitary confinement for such individuals is ineffective and harmful.

This is from a statement issued by a coalition of North Carolina mental health advocacy organizations, including Disability Rights NC, NAMI NC, the NC Psychiatric Association, the NC chapter of the National Association of Social Workers, and the NC Psychological Association:

…[the] study recently published in the American Journal of Preventative Health lays bare the harmful, too often deadly, effects of prison solitary confinement on people with mental health disabilities. The findings confirm what has been known for years – solitary confinement is harmful to people and results in life-long trauma, suicide and self-injurious behavior. According to the Study, care and treatment of people with mental illness in prison leads to safer prison environments for those who work and live in the prison as well as for our communities that will receive the more than 20,000 people who return every year. The Study confirms that care and treatment while in prison produce better outcomes for everyone.

The statement, which notes that advocates have been calling for years for such a study, also highlights the obvious conclusion that follows: the need for state lawmakers to appropriate funds to provide necessary services and end the barbaric practice of solitary confinement.

We advocated for the 2015 appropriation establishing Therapeutic Diversion Units in NC DPS after the tragic death of Mr. Michael Kerr, who died of dehydration while in full restraints in solitary confinement during a psychiatric crisis.

The Study confirms what has been known for years: our prisons will be safer and people will return to our communities healthier if prison mental health treatment is fully funded. “This study provides clear evidence that North Carolina should invest more in best practices like TDUs and funding behavioral health staff including social workers that result in better outcomes for North Carolinians,” said Valerie Arendt, Executive Direction of NASW-NC.

“We will continue to advocate for more funding for services and staff in North Carolina prisons, and urge the end of the dangerous and harmful practice of long-term solitary confinement,” said Susan H. Pollitt, Supervising Attorney with DRNC.

Click:

  • here to read the full press statement,
  • here to read a release from the Department of Public Safety,
  • here to explore the study, and
  • here to read powerful op-ed by Disability Rights NC attorney Luke Woollard that describes the human torture that is solitary confinement.

Gov. Cooper should delay no longer in pardoning exonerated man

Image: Screenshot from BBC documentary

Dontae Sharpe’s supporters will gather this afternoon outside the Governor’s Mansion to renew their pleas for justice

In 2019, after having been wrongfully convicted and imprisoned for more than a quarter century for a murder he didn’t commit, a Greenville man named Dontae Sharpe was released from prison by a North Carolina judge.

Click here to watch a powerful BBC documentary that tells the story of Sharpe’s wrongful conviction at age 19 and ultimate exoneration.

As the documentary also explains, since his release, Sharpe has sought a state pardon so that he can have his record cleared and get on with what’s left of the rest of his life.

This shouldn’t even be necessary. When the state is found to have erred so egregiously and wrongfully stolen the best years of a person’s life, such pardons – along with financial compensation – ought to be automatic. This is actually the case in some jurisdictions.

Unfortunately, North Carolina law makes no such provision and so the matter is left exclusively up to Gov. Roy Cooper.

Reverends Barber and Spearman at Thursday’s press conference

Yesterday, at press event outside the Governor’s office, advocates — including national Poor People’s Campaign leader Rev. William Barber, state NAACP president Rev. T. Anthony Spearman, Diana Powell of the group Justice Served NC and Dennis Gaddy of the Community Success Initiative — revealed that, after years of pleas from Sharpe’s family, lawyers, civil rights advocates and others, a Cooper assistant had recently indicated that a pardon might be in the offing, but probably not until the end of the year.

This is simply wrong. As all the speakers yesterday repeatedly and persuasively explained, a deserving person like Sharpe who’s been so horrendously and wrongfully punished for so long should not have to wait another day for justice.

Indeed, they said, it is offensive and smells of politics that Sharpe’s pardon might be “batched” with a group of holiday season pardons when it could be granted now.

The bottom line: Gov. Roy Cooper has been an extraordinary chief executive for North Carolina over the last nearly five years. On issue after issue, he’s battled the forces of reaction and prejudice and done his best to move our state forward.

In the case of Dontae Sharpe, however, he’s making a big and inexplicable mistake. The Governor should come address protesters at this afternoon’s “freedom vigil” and issue the pardon immediately. Click here to watch the vigil online.

‘Must read’ from Duke criminal justice experts: Everything you need to know about clemency in NC

Ben Finholt

Jamie Lau

Most North Carolinians probably have a vague notion of what “clemency” and “pardons” are and the fact that the Governor has some power to grant them to people convicted of criminal offenses. What most probably don’t know, however, is that there have been some important developments in this realm of late, or that the practical reality of how the system works sometimes differs from what one can glean from merely reading the state statute books.

It’s thus an extremely helpful and timely development that a pair of criminal justice experts at Duke University — Ben Finholt the Director of  the Just Sentencing Project at Duke’s Wilson Center for Science and Justice and Prof. Jamie Lau, the Supervising Attorney for Duke Law School’s Center for Criminal Justice and Professional Responsibility — have put together a new and extremely thorough compilation of the rules that also explains how the system works in the real world.

They’ve entitled their article “Everything you need to know about clemency in North Carolina,” and it’s definitely worth the time it takes to review — especially during this era in which even large swaths of the political right have come to grasp the futility of mass incarceration and the need for dramatically enhanced systems and structures to assisted the formerly incarcerated. One of their central, if unsurprising conclusions: “First, despite continued attempts to increase ‘truth’ in sentencing, there is clear racial bias in North Carolina prison terms.”

After highlighting the fact that Gov. Cooper established a new Juvenile Sentence Review Board earlier this year — something that could, they say, revive an important but long neglected area of executive power in our state given that “there have been no sentence commutations or pardons of forgiveness granted since 2002” — the authors tackle the issue this way:

“The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses (except in cases of impeachment), upon such conditions as he may think proper, subject to regulations prescribed by law relative to the manner of applying for pardons.  The terms reprieves, commutations, and pardons shall not include paroles.”

With this statement in Article III, § 5(6), the drafters of the 1971 North Carolina Constitution gave the right to grant clemency from a criminal conviction to the Governor. This was not a new concept. English monarchs had the power, as has every Tar Heel governor since the first state constitution in 1776.

The North Carolina General Assembly has very limited authority in the clemency process, as the 1971 Constitution limits the Assembly’s power to providing the manner of applying for a pardon. Given the bare-bones nature of guidance from both the executive and legislative branches, we will attempt to answer the following questions using what is officially and unofficially known about the process in North Carolina:

  1. What is executive clemency?
  2. Who can receive clemency?
  3. How does one petition for clemency?
  4. How are clemency petitions evaluated?
  5. What information is available about pending clemency petitions?
  6. Can clemency be revoked?
  7. Who gets clemency?

We will then abandon the attempt at official answers to address two additional questions:

  1. Who should get clemency?
  2. What about the Juvenile Sentence Review Board?

What is executive clemency?

Officially: Read more

Recently elected Appeals Court judge fires troubling broadside at former Chief Justice Cheri Beasley

Judge Jefferson Griffin (pictured at left) hasn’t served on the North Carolina Court of Appeals very long — he was only first elected last November along with several other Republicans swept in on Donald Trump’s coattails — but that doesn’t appear to be dissuading him from using his new platform to issue assertive statements that venture into politics and public policy.

Consider, for example, Griffin’s concurring opinion in the case of State of North Carolina v. Kevin Lee Johnson, that was issued yesterday. The case involved a search by an Iredell County Sheriff’s office lieutenant who found cocaine on an individual he stopped for allegedly failing to wear his seat belt. The defendant appealed his trial court conviction on the grounds that the bodily search the officer conducted was unlawful. By all indications, the officer was white and the suspect was Black.

In yesterday’s opinion, all three judges on the panel (including Griffin and fellow recently elected Republican Jeffery Carpenter) agreed that the search was unlawful and that the evidence obtained as a result of it should be suppressed.

What stood out from Griffin’s concurring opinion, however, was not his vote in the case, but a broadside on the issue of racially-biased law enforcement that Griffin decided to launch in the direction of former state Chief Justice Cheri Beasley.

Former Chief Justice Cheri Beasley

Beasley, you may recall, spoke publicly, courageously and quite accurately last year in the aftermath of the murder of George Floyd about the horrific and undeniable reality that has long confronted Americans of color — and, in particular, young Black men — when it comes to policing and criminal justice. As Raleigh’s News & Observer reported on June 3 in the aftermath of protests that rocked the nation:

“We must do better,” she said. “We must be better. Too many people believe that there are two kinds of justice. … In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty.”

Beasley later established a commission to examine the blatant racism that has long permeated the state’s criminal justice system.

Griffin it seems, however, was none to happy with this fact and has apparently been spoiling to vent about if for some time. And when the lawyers for the defendant in the illegal search case raised the issue of race, he seized on that as grounds to attack Beasley.

Indeed, in his concurring opinion — a locale usually reserved for fine legal distinctions — Griffin decided to republish several paragraphs of a speech Beasley delivered last June in which, among other things, she called for “a plan for accountability in our courts” and training judges to “recognize our biases.”

Weirdly and disturbingly, Griffin was and is bothered by such talk, and by the fact that lawyers for a Black defendant would raise it in his case. We know this because he then used the remainder of his opinion to attack Beasley for wrongfully venturing into public policy.

“The speech by the former Chief Justice states our justice system does not treat people equally based on the color of their skin. It also encourages and charges the courts to become an active body by involving our judicial branch in policy decisions. The judiciary should at all times practice judicial restraint….We are fortunate to live in the United States of America where the law is applied the same to all citizens.

To which all a body can say in reply is “what planet did this man grow up on?”

The bottom line: Word on the street is that Griffin is an ambitious politician who, despite being one of the youngest and least experienced judges on the Court of Appeals, is already planning a run for a Supreme Court seat in the near future.

Sadly, it appears we already have a strong inkling as to what his campaign will look like.