UPDATE (7/28): RESPONSE FROM THE NC STATE BAR:
Good afternoon, Mr. Pickey. Tom Lunsford asked me to respond to your email.
The materials you sent indicate that you are investigating concerns your news organization has about the preparedness and effectiveness of a particular assistant district attorney.
You have asked the State Bar to help you “understand more about these cases.”
27 NCAC 1B .0129 provides that any grievance is confidential unless and until one of several things happens, most commonly either that the State Bar’s Grievance Committee imposes public discipline or that the Office of Counsel files a complaint in the Disciplinary Hearing Commission. Because neither of these things has happened, the State Bar is prohibited by 27 NCAC 1B .0129 from indicating whether any grievance file has been opened or whether any investigation is underway in connection with the cases that are the subject of your inquiry.
If you are asking more broadly for the State Bar to express an opinion about the cases that are the subject of your inquiry, I am afraid it would not be appropriate for the State Bar to do that. The State Bar is a state agency charged with the duty of enforcing the Rules of Professional Conduct. The State Bar is not empowered to express an opinion about what could or should have happened in a case. The State Bar does have an Ethics Counsel who issues opinions only about how an inquiring lawyer should conduct himself or herself in the future. The Ethics Counsel does not issue opinions about whether any lawyer’s past conduct (including the past conduct of the inquiring lawyer) violates the Rules of Professional Conduct and does not issue opinions about how a lawyer other than the inquiring lawyer should conduct himself or herself in the future. The reason the State Bar cannot issue an opinion in response to such an inquiry is that the inquiry includes only one side of the story and the lawyer whose conduct is being called into question has not had an opportunity to present his or her view of the matter or to present any facts he or she might believe are pertinent to the inquiry.
I hope this information about the State Bar will be helpful to you.
Katherine E. Jean
North Carolina State Bar
P.O. Box 25908
Raleigh, North Carolina 27611-5908
UPDATE (7/26): Since we haven't heard from Mr. Gore after emailing him this letter on the 21st, we've now contacted the North Carolina State Bar for help understanding what's going on in Brunswick County. We'll keep you posted on its response.
July 21, 2010
Mr. Rex Gore
North Carolina District 13
310 Government Center Drive
Bolivia, NC 28422
RE: An open letter request for interview
Dear Mr. Gore:
Over the past two months, this TV station has reported a number of stories highlighting the questionable performance of Assistant District Attorney Erin Holden.
For example, as we understand thus far:
> In June, Ms. Holden was not prepared for a hearing involving a DWI conviction appeal from Oak Island Fire Chief John House. The Highway Patrol says House blew a .14 at a checkpoint, almost twice the legal limit of .08. Holden tried to call in sick the morning of the hearing, but a judge ordered her to come in anyway. At the hearing, she told the court she subpoenaed the wrong trooper to testify but could call the correct trooper and that he could be in court that afternoon. Later, however, we talked with the trooper she said she meant to subpoena. He told us he was never contacted by your office. She then asked Judge Ola Lewis for a continuance, but Judge Lewis dismissed the case because Ms. Holden wasn't ready to go - causing your office to have to file an appeal with the state. The dismissal also cleared Chief House of his DWI conviction to date.
Afterwards, you issued the following statement, "“Erin [Holden] made a mistake in obtaining a needed witness for the hearing that was calendared for the morning session of court. She took actions to cure her error and would have been in position to proceed in the afternoon. The court was made aware of this situation. The court called the case for hearing at approximately 12:30 p.m. When the state was not able to proceed, the motion to suppress was granted prior to that time. This is an unfortunate happenstance. However, I am sure everyone involved made decisions they felt were appropriate under the circumstances and at the time."
> A few weeks later, Ms. Holden represented the state in a case against Mark Twain Patrick, II. Court papers show he was drinking and driving a stolen motorcycle and when an officer went to pull him over, Mr. Patrick tried to run. He was charged with a DWI (he blew .04), reckless driving, stealing the bike and trying to run from police. First Ms. Holden went to present evidence for the DWI charge. The officer who pulled him over reported that Mr. Patrick was driving on the wrong side of the road, wouldn't stop for blue lights and sirens, smelled like he'd been drinking and admitted he was on Percocet, but the charge got thrown out for lack of evidence.
On the other felony charges, paperwork shows Ms. Holden voluntarily dismissed the reckless driving charge from the lower District Court, because, according to legal experts we talked with, she thought she had a stronger case with the other charges in Superior Court. To convict Mr. Patrick on fleeing from the officer, Ms. Holden had to prove two things: first that he was driving recklessly and second that he was driving with a revoked license. Ms. Holden requested Mr. Patrick's driving record from the state, which does show it had been revoked. But for some reason Ms. Holden couldn't satisfy the court with enough evidence that it had been revoked, even though the paperwork clearly shows it is, so that charge got dropped down to a misdemeanor.
All in all, when this hearing started Mr. Patrick faced his fifth DWI charge and two other felony charges. But after the dust settled, all he got was a traffic ticket, three days in jail and he's now on probation.
> And finally, Ms. Holden chose to dismiss strangling charges against Gary Ray Jones last week during a probable cause hearing after her request for a continuance was denied. Mr. Jones was then released from jail a free man. Less than a week later, a grand jury indicted him on the charges, but now, Jones is no where to be found.
Mr. Gore, these are just examples from the past two months! Why did Ms. Holden let Jones out of jail instead of attempting to keep him there for a matter of a few days until the grand jury met? Why was Ms. Holden so unprepared for the House hearing that the case had to be dismissed and your office had to file a rare appeal with the state? Why did Ms. Holden allow Mr. Patrick to leave the courtroom with only a traffic ticket and three days in jail?
We have concerns about Ms. Holden's ability to be a effective ADA and would like to request - again - that you and she sit down with us and help us understand what led to these outcomes. Multiple officers of the court in Brunswick County have told us repeatedly she's inept, bordering on incompetent (those are their words) - and they're concerned she's not getting the job done. Can you guarantee us 100% that she's effectively serving the people of your district and that she has your full support? Our viewers and the people who voted for you to be D.A. would like to know.