WILMINGTON — A review by the District Attorney’s office found that three Wilmington police officers fired for making racist statements will not be charged with crimes under local or state law. However, the District Attorney and the Wilmington Chief of Police have respectively called on the U.S. Attorney’s Office and the Federal Bureau of Investigation to see if any federal charges are warranted.
On Thursday, District Attorney Ben David said he had completed a review of a three-point request from WPD Chief Donny Williams. David reviewed the ‘Giglio’ status (or ability to testify in court), pending cases, and criminal culpability under North Carolina law for former WPD officers Michael ‘Kevin’ Piner, James ‘Brian’ Gilmore, and Jessie E. Moore II.
David committed a significant portion of his comments to explaining why the officers would not be prosecuted by his office — but suggested that federal law could offer ‘broader’ standards of hate speech and misconduct by officers of the law that could be charged and prosecuted by the FBI and U.S. Attorney’s Office, resulting in serious sentences.
Giglio impariment, ‘death letters’
For the issue of Giglio status or ‘impairment,’ David’s office reviewed whether the officers’ misconduct was severe enough that prosecutors would have to disclose it to the defense in any case those officers were called to testify. This disclosure is required to uphold the Constitutional rights enshrined in a pair of U.S. Supreme Court cases known as Brady-Giglio. The disclosure of this evidence could easily ‘impeach’ their testimony, making it suspect (and likely worthless).
Read all about how Brady-Giglio works here: Yes, the District Attorney’s office has a list of untrustworthy officers. No, you can’t read it.
David found that all three of the officers had demonstrated more than enough racial bias to prevent them from testifying in cases involving minority suspects. David said their misconduct was so extreme that he had elected to send a “death letter,’ barring them from ever again testifying in the Sixth District, which includes Pender and New Hanover counties.
David took the further step of sending this letter to the North Carolina Law Enforcement Training and Standards Commission, in an effort to ensure that the officers “lose not only their jobs but their careers,” according to David.
Pending and past cases
While the District Attorney’s office initially identified 89 pending cases that involving the three officers, it was later determined that ten cases had already been resolved into probation, a show-cause order, or in other ways not leading to a criminal conviction.
An additional 70 cases, where Piner, Moore, or Gilmore were set to give primary testimony, were thrown out completely. Dismissal proceedings for all but two cases were filed on June 25, with the remainder filed Wednesday.
For the remaining nine cases, including three assaults (two on a female), the District Attorney’s office believes that other officers who responded to the scene can testify and that the cases can be tried without testimony from Piner, Moore, and Gilmore. While David did not address specifics, it’s likely most prosecutors, in general, would express concern that the Giglio impairment of a bad officer should not leave a victim of a violent crime exposed to their assailant.
For past cases, David noted there was no time-bar for the reopening of cases, pointing to several cases — including the overturning of the Wilmington 10 convictions by a federal appeals court — that happened years, or decades, after an initial trial.
David’s office has also reached out to the North Carolina Defense Attorney Bar, as well as the general public, to ask anyone who is aware of a case involving these three officers that might require review to contact his office.
At the end of his remarks, David focused on a question that has reverberated around social media: why have the officers not been charged for communicating threats, inciting to riot, ethnic intimidation, or other criminal offenses (all of which are misdemeanors in North Carolina).
David’s essential point was that these racist comments were made in private and were not intended to be heard by the victim of their slurs and threats. While David acknowledged that this made the officers “cowards,” it also shields them from prosecution under state laws which require a public threat, often paired with “discernable actions” to back that threat up.
In a new piece of information, David revealed that “[Officer] Piner immediately shut off the video when [Officer] Moore inquired about whether their conversations were being accidentally recorded.” For David, this demonstrated that the conversation was intended as private, not a public threat.
“This is not a close legal call,” David noted.
David noted that while it can seem to the aggrieved that the First Amendment often exists to protect hate speech, he pointed out the legal history of free speech — which is to protect voices of minority dissent. The dangers of giving the government the power to silence whichsoever minority it chooses has, again and again, outweighed the desire to silence particular groups, even when they are deemed hateful.
In closing, David noted while he was not a federal prosecutor it was his sense that ‘broader’ federal statutes could allow charges to be brought against the officers.
In particular, David cited the federal crime of ‘depriving liberty under color of law’ (or deprivation of rights under color of law).
David did not go into detail, but such a crime — which includes actions taken by law enforcement officers on and off duty — is a federal felony. The offense carries a range of punishments, from fines and imprisonment up to a year, to life sentences and death, depending on the severity of the crime. The statute of limitations also varies. For cases involving death or torture resulting in serious injury, there is no limitation. In other cases, the limit ranges from five to eight years.
Send comments and tips to Benjamin Schachtman at email@example.com, @pcdben on Twitter, and (910) 538-2001.