Challenger says Democratic incumbent is behind the times on issues like the death penalty and marijuana
For the first time since winning election in 2014, Wake County District Attorney Lorrin Freeman is facing a challenger in the 2022 Democratic primary: Damon Chetson, a criminal defense attorney who focuses on death penalty cases and high-level felonies in state and federal courts.
Policy Watch interviewed Chetson and Freeman about their stances on criminal justice reform in Wake County. Despite similar priorities for promoting diversity and reducing racial disparities, their approaches are different, especially regarding the death penalty, low-level marijuana cases and investigating police misconduct.
Although district attorneys must adhere to the structure of law and order, they nevertheless wield enormous power and “can reduce incarceration and more equitably enforce the law,” according to a study published in the Harvard Law & Policy Review.
Progressive district attorneys, the study says, tend to oppose the death penalty, reduce cash bail or refuse to impose it altogether. They might reduce the prison population and address racial discrimination in prosecutions, and try to eliminate police brutality and corruption. Rather than prosecution, these district attorneys often choose to pursue other routes for offenses historically targeting people of color, such as those related to marijuana possession.
Freeman’s office tried its last capital case in 2019. Seaga Gillard was sentenced to death for a double murder in a Raleigh motel near Crabtree Valley Mall, WRAL reported.
After the jury returned its verdict in the Gillard case, Executive Director of the Center for Death Penalty Litigation Gretchen Engel said in a statement that the death sentence was arbitrary and disproportionately affects Black men; Gillard is Black. The death penalty had not been imposed in some other double-murder cases, nor in a case involving the murder of five people.
“Since taking over as Wake district attorney, Lorrin Freeman has pursued the death penalty more than any other prosecutor in North Carolina, costing taxpayers millions of dollars,” Engel said. “That is a poor investment, even in this case.”
Freeman’s office is again pursuing the death penalty for Gillard’s co-defendant Brandon Hill, the only such instance among the approximately 100 murder cases awaiting trial.
“At this point, the death penalty continues to be the law in North Carolina,” Freeman said. “As I have discretion in what types of cases to seek it, we reserve it for the most egregious.”
Chetson said that if elected, he wouldn’t seek the death penalty.
Case law requires prosecutors to disclose and turn over evidence that could lead to the impeachment of a government witness, including law enforcement officers whose credibility is in question. This evidence is known as “Brady” or “Giglio” material.
At an Emancipate NC criminal justice reform discussion held last month, Chetson said that the one-page policy on Giglio material from Freeman’s office is not as detailed as those in other jurisdictions.
In response, Freeman told Policy Watch that her office turns over the evidence for the court to consider, rather than deciding whether to disqualify law enforcement officers from testifying, a practice adopted by other jurisdictions.
At the Emancipate NC forum, Robin Mills, whose son was wrongfully charged with heroin trafficking, confronted Freeman. Mills’ son was among 15 men against whom charges were dropped, according to a WRAL report. (Thirteen of the men settled a federal civil lawsuit with the City of Raleigh, which agreed to pay them $2 million, WRAL reported.)
Mills said Raleigh police detective Omar Abdullah should be held accountable because his informant falsified the drug reports. The informant was charged with obstruction of justice, and Abdullah remains on leave without a criminal charge, WRAL reported.
Freeman responded that her office has not received evidence that implicates Abdullah, therefore is not pressing charges against the detective.
At the forum, Chetson called for more police accountability. “There should be a walled-off group of prosecutors to investigate and prosecute police officers who commit abuses or are corrupt,” Chetson said.
Freeman disagreed. “To have the resources to have a specific unit to look at police misconduct is not where we are in reality.”
In the subsequent interview with Policy Watch, Freeman said local district attorneys can request independent investigations from the state Attorney General’s office. However, she argued that a district attorney accountable to their community can best handle police misconduct cases.
She stressed the importance of public trust in prosecutors, saying that her office sometimes solicits the help of the State Bureau of Investigation to meet with family members of victims in police-involved fatality cases to disclose findings from those probes.
“My hope is that in reviewing my records, the community believes that I can make those decisions appropriately,” Freeman said.
Low-level drug offenses
While both candidates stressed the need to divert low-level drug offenses, Chetson and Freeman suggested different solutions.
Chetson said he would not press charges in those types of cases.
Freeman said that marijuana cases should be handled on an individual basis, stressing that her office encourages eligible defendants who are first-time offenders — of either misdemeanor or felony possession — to participate in a diversion program. After the defendants go through a drug treatment program, they can ask for their charges to be dismissed. Those ineligible for the program will need to plead or go to trial, Freeman said.
However, she has publicly declined to stop prosecuting possession of substances, such as marijuana. “I do think that to give up on the opportunity … to connect people with treatment is a bad idea,” she said earlier at the forum.
Chetson argued that the treatment option is not available to everyone. These diversion programs still cost money and require defendants to admit wrongdoing in the deferral agreement, he said.
Chetson said he would not pursue low-level charges related to marijuana possession.
Freeman said her office is not dismissing marijuana possession cases outright, because it is still illegal. However, she acknowledged that the relaxation of marijuana laws in North Carolina makes enforcement more complicated.
“With the increased use of smokable hemp and the expected legalization of marijuana for medical reasons, law enforcement would be wise to prioritize other types of offenses when it comes to enforcement priorities,” Freeman said. “Our office will be taking that approach by continuing to stress education and treatment over more punitive outcomes.”
Some detainees charged with certain offenses are still legally required to post bail while awaiting trial. Defendants are refunded their bail if they appear in court, but some individuals can’t afford to pay upfront and must stay in jail until trial, which can be weeks or months later.
In North Carolina, magistrates normally set the pretrial release conditions, but prosecutors can influence them. According to Chetson, district attorneys can improve the bail system, which he called “broken” and “discriminatory along racial lines and class lines.”
“The DA is a very powerful advocate, standing before the judge and at a very early stage in the process has a lot of sway over whether the person gets detained or not,” Chetson said.
Chetson said the purpose of the bail system should be to protect the community and to ensure defendants show up to court.
However, he cautioned that before banning cash bail, its alternatives need to be studied more closely. Although the federal court system has eliminated cash bail, he said, the majority of defendants remain in custody, sometimes housed in private jails in other states without easy access to their lawyers.
Freeman said she’s been pushing the legislature for years to repeal a law that mandates those who have failed to appear in court at least once or who are charged again while on pre-trial release to pay double the amount of the bond set for the prior charge, or at least $1,000.
Both Freeman and Chetson stressed the importance of taking into custody only individuals who need to be detained, especially those who might threaten public safety while on pretrial release.
Freeman’s office has partnered with Advancing Pretrial Policy and Research to study pretrial policies. Starting in early 2022, her office plans to implement a screening tool that assesses individuals’ public safety risks to help magistrates determine pretrial release conditions.
Chetson criticized Freeman’s office for failing to reduce the number of people housed in the county jail during the pandemic, compared with other counties.
The Wake County jail experienced a 7% decrease in its population from 1,264 to 1,176 between February and November 2020, according to a UNC School of Government study.
Among similarly sized jails, in Guilford County, the population declined 31%, from 1,042 to 718. Mecklenburg County’s jail population, though only decreased, from 1,513 to 1,456, a mere 4% reduction.
However, Freeman contended that the Wake County jail population has a high percentage of individuals charged with violent offenses. She noted that Wake County historically uses citation rather than detention for low-level offenses.
Wake County does have a backlog in court cases, she said, because of an uptick in violent crimes and a suspension of in-person court proceedings during the pandemic.
Freeman said although her office has prosecuted some drug cases via jury trials this year, most of the cases have involved alleged murders and aggravated assaults. She said her office is prioritizing cases in which defendants have remained in custody the longest since the resumption of jury trials.
Chetson argued that murder cases in which defendants have been waiting for years should be prioritized. He said it’s a waste of taxpayer money to summon jurors for low-level offenses, such as possession of a few grams of marijuana.
Freeman neither confirmed nor denied doing so, saying that her office prosecutes marijuana possession as it violates the state law currently.
Chetson said, “Clearly in Wake County, a pattern for the last 30 years but particularly for the last six, has been to focus on prosecuting people who are less well-off.”
Chetson said he would ask the General Assembly to reduce incarceration. He said he would create a post-conviction team to review old cases to identify excessive sentencing. To do so, he would tap into a state procedure — motion for appropriate relief — that allows prosecutors and defense to reach an agreement.
Freeman is opposed to reviewing sentences post-conviction for the purpose of reducing them.
“Sentencing laws are set by our legislature,” Freeman said. “To go back to review and redo each one of the those [cases] absent some reasons to do that is really setting aside the will of the jury and the judge and the system at that time.”
Freeman said her office follows the state post-conviction law that allows an individual to file a motion for appropriate relief. “To do otherwise would circumvent the law and existing judicial process,” she said. She added that the state allows “truth in sentencing” as prosecutors promise victims that the defendant will serve the court-ordered sentence. “Revising these sentences without legal reasons would undermine public confidence in the system,” she said.
Chetson lamented the underuse of the advanced supervised release program, which requires a district attorney’s consent. In 2010, the Justice Reinvestment Act laid the groundwork for the program and allows those with lower-level charges to be released early after completing risk reduction incentives while in prison.
Freeman said as she believes her office and other district attorneys’ offices statewide need more training on the program.
Drivers’ license restoration
“The Republican-dominated legislature has tried to fund the criminal justice system on the backs of poor people and people who come to court by raising fines and fees, and by preventing judges from waiving or forgiving them,” Chetson said in an interview. He argued that the court system should be funded by the general tax revenue and the state budget.
Chetson said district attorneys can also lessen the financial burden on people by dismissing cases or asking the court to waive or remit court fines and fees.
Those who fail to pay outstanding traffic fines or criminal court fees, or fail to appear in court to resolve a traffic ticket could face the consequence of automatic drivers’ license suspension in North Carolina.
Chetson noted that missteps for someone involved in the punitive court system can lead to grave consequences. “Because you cannot afford to pay a traffic ticket or because you forgot to come to court, you did not have an attorney who could not afford to hire one,” he said. “And when they’ll come to court you don’t know about it, you forgot about it and it’s a simple mistake, or you had to take your kids to the doctor that day, or you had to get to work and work full time if you miss work again, they were going to fire you and you decided to keep your job, rather than go to a court hearing, therefore, you’re not going to have a suspended license.”
Chetson said that in these cases, it’s almost impossible to recover a suspended license, without hiring a lawyer, or without pleading guilty to an offense that people might not have committed.
Freeman said her office has worked with the Wake County Public Defender’s office and other attorneys to help reinstate individuals’ licenses. “In many instances, we work out resolutions that result in an individual taking responsibility and paying fees in one case while we dismiss or agree to waive fees in multiple others,” she said.
She added that her office is working with the Wake County Clerk of Superior Court and the North Carolina Pro Bono Resource Center on a mass drivers’ license restoration project and will submit cases to court for approval.
“I do think we can play an important role in making sure that those [waiver and remission] processes are in place that help alleviate that debt to the people who are hindered by it,” she said.
Chetson said he’d expand upon the Wake County drivers’ license restoration program and dismiss old low-level traffic cases, such as speeding and driving with a revoked license.
The 2022 primary is scheduled for March 8.