Leech Tishman

Just in time for Monday Night Football, this article brings tales of beer, bribes and illicit text messages. On Friday, October 21, a North Carolina Superior Court Judge was found guilty of three corruption charges for bribing an officer working with the FBI.

The caper started last Fall when, suspecting his new wife was having an affair, the Judge sought access to his wife’s text messages. Ordinarily, cell phone carriers will not provide the content of text messages absent a search warrant supported by probable cause. Understanding that there was insufficient evidence to support such a finding that criminal activity was afoot, the Judge sought assistance from a local law enforcement officer detailed to work on a FBI task force. In text messages, the Judge asked the officer how he could repay him for his services and the officer responded that it would only cost him a couple of cases of beer – and that he was a King of Beers kind of guy.

The officer informed his supervisors from the start and the Judge was arrested following his payment of $100 to the officer. In court documents filed shortly before the trial, the defense noted that the Judge, “asked a sheriff’s deputy who he wrongly believed to be a friend whether the deputy could access his wife’s text messages. The deputy said yes when he should have just said no.”

The defense contended that the Judge was never told by the officer that what the Judge had asked for would require a search warrant. [While I have not reviewed the trial transcripts, no doubt the prosecutors argued that we presume our judges understand basic principles of the criminal law – such as the right to be free from unreasonable warrantless search and seizures]. By way of motive, the defense suggested that the officer led the Judge along because of his position as Chairman of the North Carolina Innocence Inquiry Commission (“Innocence Commission”). The Innocence Commission is a state agency established by the General Assembly to investigate and evaluate post conviction claims of factual innocence.

The Judge appears to have raised at least two defenses at trial. First, that those being bribed have an obligation to say no first. Presumably, under this theory, if the person offering the bribe persists, then the prosecution may move forward. Given that entrapment is hardly a viable defense these days, this defense was doomed from the start. The second defense appears to be the stronger of the two. The Judge claimed that he was investigated and prosecuted as retaliation for his position on the Innocence Commission. Public corruption investigations are often attacked as being the product of improper political influence or an act of vengeance. Unfortunately, sometimes they are.

If the Judge was targeted for the noble position he held – pursuing justice for the wrongly convicted – his conviction should not stand. Proving such an improper motive, however, is another story. Armed with the power of their office, prosecutors enjoy vast discretion. If they exist, the very records, to prove claims of improper motive are often outside the reach of defendants and their counsel because of statutes designed to protect grand jury secrecy and/or records relating to criminal investigations.

As a final thought, far too often law enforcement appears to lose perspective during the prosecution of public figures. In response to the verdict, U.S. Attorney John Stuart Bruce stated, “The jury’s verdict affirms a bedrock principle of the rule of law. No person holding a position of public trust in our legal system is permitted to subvert that system for his own personal objectives.” In even more dramatic fashion, Special Agent John Strong remarked, “Corruption will not be tolerated, no matter the level of government, the complexity of the scheme, or the names of those committing the fraud. Rooting out public corruption is the FBI’s top criminal investigative priority and we rely on our law enforcement partners and citizens to help us identify those offenders who put our democracy at risk.” Our democracy is on shaky ground if a couple of cases of Bud Light place it at risk.

 

 

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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, health & safety, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, internal investigations, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York and Wilmington, DE.

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