By SYLVIA ADCOCK, Staff Writer
The first few candidates for the N.C. Court of Appeals got five minutes to plead their case before members of the N.C. Association of Defense Attorneys in Greensboro Oct. 1.
But the candidates for the seat now held by Judge Cressie Thigpen Jr. got only three minutes each. It’s not that they’re any less important. But it’s part of the deal when you’re running in a race with 13 other people.
And the forum held by the NCADA as part of its fall seminar may have been the first time a judicial candidate asked to be second choice. “If you don’t make me first choice, I hope I’ll rate No. 2,” said Daniel Garner, counsel to the N.C. Commissioner of Banks. “Or No. 3,” he added.
The 13 candidates for the seat – currently held by Thigpen but vacated in August when Judge James A. Wynn Jr. was appointed to the Fourth Circuit – are running in an instant-runoff election. Voters will pick their first, second and third choice from among the 13 candidates on the ballot.
If no candidate receives a majority – and that’s expected to the case – the second and third choice votes will be added to the votes of the top two vote-getters to determine the winner. The method had not been tested statewide and will involve hand counting in some counties.
The three minutes proved barely enough for the nine candidates who showed up to get through their résumés.
The nine in attendance in addition to Garner were J. Wesley Casteen, attorney and CPA in Wilmington; Chris Dillon, vice president of CapStone Bank; Stanley Hammer, partner at Wyatt Early Harris Wheeler in Burlington; Mark Klass, superior court judge in Lexington; Doug McCullough, attorney with Stubbs & Perdue in New Bern; Anne Middleton, appellate attorney with the N.C. Attorney General’s office; Harry Payne, manager of compliance, N.C. Office of Economic Recovery and Investment; and Thigpen, formerly a partner at Thigpen, Blue, Stephens & Fellers in Raleigh.
Below are a selection of questions and answers posed to some of the other candidates. Questions have been edited for space.
• If you could change one aspect of the appellate process, what would it be?
Judge Rick Elmore said he would like to see cases involving sentences of life without parole sent directly to the Supreme Court. Currently capital cases that end in a death sentence bypass the Court of Appeals and get an automatic Supreme Court review, but those that end in life without parole sentences do not.
The difference in the severity of punishment is “a fine line,” Elmore said, whether one “dies by lethal injection or in a 6-by-8 foot cell. … It’s worthy of the same scrutiny.” And, Elmore said, “as a practical matter, it would reduce our caseload.”
Elmore’s opponent, Steven Walker, a clerk for Supreme Court Justice Edward Thomas Brady, did not attend.
• The NCADA has lobbied for years for increased pay for judges. What needs to be done to motivate the public to get behind the efforts? Given that many law firms pay first-year associates higher salaries than the chief justice gets, what are the implications?
Judge Ann Marie Calabria urged the association to keep trying to get more resources for the judicial branch. “None of us are in this job for the money,” she said. She also said more attorneys are needed in the legislature.
Judge Jane Gray, a Wake County district court judge who is challenging Calabria, said the General Assembly needs to review Senate Bill 292, a measure that would perform a salary review of elected officials in all branches of government and would require that private-sector salaries be taken into account.
“It’s not particularly popular to go to the General Assembly and say we need raises for judges,” she said, but the issue needs to be addressed.
• The N.C. Supreme Court in Howerton v. Arai Helmet Ltd. held that trial courts should decide preliminary questions on qualifications of experts or admissibility of expert testimony. The 2004 decision gave the trial courts wide latitude when determining admissibility of expert testimony. What evidence would you look for to determine if a trial court abused its discretion on this issue?
Judge Martha Geer said she believed issues raised in the wake of questions about the competence of the SBI lab will bring increased focus to this issue.
“I think criminal defense attorneys are going to be litigating” issues involving expert testimony, she said. The issues will have implications for both criminal and civil attorneys, she said, noting that although Howerton was a civil case, prosecutors and defense attorneys filed amicus briefs knowing the case would affect them as well.
Dean Poirier, an appeals referee with the N.C. Employment Security Commission, said that although experts such as UNC law professor Ken Broun have said that Howerton creates a “presumption of admissibility,” he believes that depends on what the experts are testifying to.
If it’s to establish a fact or explain a process, Poirier said, then that presumption exists. But if an expert is expressing an option or something more speculative, that may not be the case, he said, and the trial judge may have more responsibility to look into the expert’s qualifications.
• How do we restore the public’s confidence in the judicial system given recent cases of police and prosecutorial misconduct? In some cases trial judges have responded with sanctions that include limiting sentencing options. What is the best way to ensure public confidence in the verdict while deferring misconduct?
Judge Sanford Steelman Jr. said, “It’s going to take a lot of work to get that confidence back.” The public, he said, doesn’t always understand that the remedy may involve letting a guilty party go free.
Ultimately, he said, “we need to keep the discretion in the hands of the trial judge. … We’re going to have to rely on the trial bench to craft remedies.” Steelman is running unopposed.