Judge will not reconsider complaints against D.A.
There was a little drama and some awkwardness in Pasquotank County Superior Court Wednesday as local attorney Kathryn Fagan tried to revive complaints against the district attorney before Judge Alma Hinton.
Fagan has filed several citizen affidavits in Superior Court seeking removal of District Attorney Frank Parrish. In March, Hinton dismissed six of the eight affidavits, saying there was no probable cause to pursue them further.
Hinton is the senior resident Superior Court judge for North Carolina’s First Division Court, which encompasses seven judicial districts and 20 counties, including the 1st District, where Parrish serves as the D.A.
After the complaints were dismissed, Fagan then filed two motions – one that with Hinton recuse herself and the second asking for reconsideration of the dismissed complaints in front of a different judge.
Hinton elected to handle the recusal hearing first. Fagan maintained that Hinton and Parrish’s attorney, Jim Maxwell had engaged in ex-parte discussions in writing and by telephone before Hinton ruled to dismiss the complaints.
Maxwell countered that at the time, he sent a letter to Hinton on behalf of Parrish addressing the complaints and why they should be dismissed. “There was “no official court file number or case,” he said, adding that he was unaware Fagan was involved.
Maxwell also said that all correspondence sent to Hinton was filed with the Clerk of Court and part of the public record.
Fagan responded that Maxwell was indeed aware of her involvement in the case, citing his references to Fagan in the disputed correspondence. Fagan also argued that even if the communications did not technically constitute an illegal ex-parte discussion it still gave the appearance of impropriety and Hinton should recuse herself.
Fagan then addressed the judge directly stating that while Hinton responded to Maxwell’s communications, the judge had never responded to any of Fagan’s numerous communications or requests for information.
Fagan concluded by forcefully addressing Judge Hinton and stating “I am sure there was ex-parte communication” between Judge Hinton and Maxwell.
Maxwell relied on state law, which allows the Senior Resident Superior Court Judge, in this case, Judge Jerry Tillett, to either handle those complaints himself or assign them to another judge in a different district.
Maxwell noted Tillett had elected to assign the case to Hinton and had not expressed any opinion that Hinton recuse herself. Maxwell further noted that Hinton had full discretion to handle the complaints as she did.
Hinton also weighed in, informing counsel she had consulted with the judicial standards division after Fagan filed her recusal motion and was advised she had acted correctly and had not taken part in ex parte discussion.
She also declined to describe Maxwell’s communications as improper or ex parte.
Hinton then denied the motion to recuse herself and moved on to Fagan’s motion to reconsider the six dismissed complaints.
Two of the original six affiants accompanied Fagan to court and were prepared to testify under oath. But Hinton made it clear she was only interested in discussing the motion.
Fagan cited the “barrage of complaints” she had handled from the public and other citizens once attorney Dennis Rose referred to her the first two complaints.
Fagan also said that other elected and appointed public officials had expressed concerns with Parrish’s execution of his duties and their “voice has not been heard.”
Fagan recounted some of the affiant complaints and said that some public officials were reluctant to file affidavits but had told her that under oath, they would testify truthfully to what they had told her.
Hinton responded that if these elected and other officials would not file affidavits she saw no need to conduct a hearing to bring them forward.
Fagan also cited the large number of backlogged cases the District Attorney had dismissed from court calendars once news of the complaints became public. She pointed to the dismissals as evidence the affiants had made valid complaints about languishing cases and a lack of action on the part of the District Attorney.
Maxwell opened by reciting a story he was told by a more experienced attorney when he first began to practice law. “I was told that a client’s case is never better than the first time he tells his story.”
Maxwell argued Parrish had done the same thing with the affiants. When first approached, the complaints seemed valid. However, once Parrish dug into the issue, he often found the cases did not merit prosecution.
Maxwell argued that Parrish used his prosecutorial discretion correctly and wisely, seeking justice over merely trying cases.
Fagan reiterated, both before the court and afterwards in statements to the media, that prosecutorial “discretion is not the same thing as ignoring” evidence her clients had supplied to the D.A. concerning the commission of crimes.
Maxwell concluded by noting if there was a huge public outcry concerning the manner in which Parrish handled his job there existed a remedy — “the ballot box.” A few complaints from citizens unhappy with decisions Parrish made, he said, “was not a basis for his removal.”
Hinton asked Fagan if she had anything new to present other than what had been provided in the previous complaints. Fagan told Hinton she felt the original complaints were sufficient.
Hinton then denied the motion, saying that “to simply ask me to change my mind” was not sufficient grounds to reconsider.
While Hinton has yet to rule on two remaining complaints, Fagan said after the hearing she had no future plans to pursue the matter.
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