Forsyth’s DA and the state’s attorney general still battling over campaign ad. A judge put the legal fight on hold. | Crime

O’Neill and Stein were running for N.C. Attorney General in 2020, and O’Neill claimed Stein defamed him in a campaign ad that suggested O’Neill mishandled untested rape kits in Forsyth County. O’Neill filed a complaint and requested a criminal investigation under a never-used 1931 state law that prohibits people from publishing or circulating false and “derogatory” information that could hurt a candidate’s chances at election.

In an order issued after a two-hour hearing Monday, U.S. District Judge Catherine C. Eagles said that Stein’s campaign is likely to win on claims that the state law is outdated and violates First Amendment protections of political free speech. She also found that not issuing a temporary restraining order could expose Stein’s campaign and others to “potential criminal prosecution for violating an overbroad criminal libel statute before a hearing on a motion for preliminary injunction can be heard.”

The ruling comes after Stein’s campaign filed a lawsuit July 21 in U.S. District Court, seeking to declare the state law unconstitutional and stop the Wake County District Attorney’s Office from pursuing a criminal charge over an alleged violation of the law. This all started when O’Neill filed the complaint with the State Board of Elections in September 2020 over the campaign ad and requested the criminal investigation. The State Board of Elections conducted an investigation and turned over its findings to Wake County District Attorney Lorrin Freeman, who recused herself and handed over the case to a senior prosecutor in her office, David Saacks.

Pressley Millen, an attorney representing Stein’s campaign, said at the hearing Monday that he was told by Freeman’s office that prosecutors were going to a grand jury on the case Monday afternoon, raising the stakes for a temporary restraining order.

Joseph Zeszotarski, an attorney representing Freeman, confirmed Monday in court that Wake County prosecutors had planned to go to the grand jury to obtain what is called a presentment. A presentment is not an indictment, he explained. In the case of a presentment, a grand jury has three options after hearing testimony from a law-enforcement officer (in this case, an agent with the State Bureau of Investigation) — agree that the investigation is complete; ask for further investigation; or determine the investigation is closed and then ask prosecutors to come back to seek an indictment.

A grand jury cannot issue a presentment and an indictment on the same case on the same day. Prosecutors would have to go back to the grand jury, at the earliest, in two weeks to seek an indictment.

With Eagles’ order Monday, everything is on hold for up to 10 days until she makes a decision on a preliminary injunction.

Stein’s campaign issued a statement late Monday: “Attorney General Stein’s campaign is gratified that the Court issued a temporary injunction and concluded that the statute is likely unconstitutional. We look forward to this issue being resolved soon once and for all.”

O’Neill maintains that Stein lied in his campaign ad.

“Now, at the 11th hour, in order to avoid criminal prosecution, Stein is seeking to have the pertinent statute ruled unconstitutional, so that politicians like himself can routinely lie to the public without repercussion or punishment,” he said in a statement Monday. “Let that sink in a moment and then ask yourself if North Carolina moving forward deserves better than Josh Stein.”

Freeman couldn’t be reached Monday.

In 2020, O’Neill, a Republican who is currently running to keep his job as Forsyth County district attorney, was running a fierce campaign for N.C. Attorney General against Stein, the Democratic incumbent. The two fought heatedly over how each handled a backlog of untested rape kits. In the lawsuit, Stein’s campaign alleged that O’Neill made false statements about Stein’s record. To hit back at O’Neill, Stein’s campaign said it had Ralston Lapp Guinn Media Group, a plaintiff in the lawsuit, produce an ad.

That ad featured a woman who is referred to only as Juliette. Juliette says in the ad that she is a sexual-assault survivor and that she was upset to learn that O’Neill had 1,500 untested rape kits “on a shelf leaving rapists on the streets.” In his complaint, O’Neill said that was false because prosecutors had no control over submitting rape kits to the State Crime Lab. He also called for a criminal investigation under a law that prohibits people from knowingly publishing or circulating “derogatory reports” that they know to be false and that would affect a candidate’s chances for nomination or election. Violation of the law is a misdemeanor with a maximum punishment of 60 days in jail and criminal fines.

Stein’s campaign stands by the ad, saying it was accurate and that it had fact-checked the ad.

At the hearing, Millen said North Carolina established the law in 1931 and there is no record that the law has ever been used or that anyone has been convicted under that law. He argued that the law is a clear violation of the First Amendment and serves no compelling public interest. This is not, Millen said, about making sure that elections are fair but about the “hurt feelings” of a political candidate.

Millen said in court that continued enforcement of the state law could chill future political speech. He pointed out that O’Neill is running against Denise Hartsfield, a former district court judge, for Forsyth County district attorney.

“His opponent would have to be brave to raise the issue of rape kits” in the campaign, Millen said.

The campaign ad that Stein’s campaign ran in 2020 was core political speech that should be protected by the First Amendment, he said. In his complaint, O’Neill claims the ad was defamatory.

If that is the case, Millen argued, O’Neill could have easily sued Stein or his campaign in civil court for defamation back in 2020. He never did, Millen said. And he can’t now because the one-year statute of limitations for such a lawsuit has expired, he said.

Zeszotarski expressed concern Monday about the timing of the litigation, pointing out that the lawsuit was filed just as the statute of limitations under the state law are close to expiring. He said that Stein’s campaign has known about the complaint and the criminal investigation since 2020 but only filed the lawsuit in July.

The statutes of limitations run out at the end of October, Zeszotarski said. That means if a temporary restraining order or a preliminary injunction is issued and then is later reversed months later, prosecutors will have lost their chance to pursue criminal charges. He suggested that the timing could have been tactical.

Millen objected to that argument, saying that he has had conversations with the Wake County District Attorney’s Office, and it was not until early July that he got any sense about what prosecutors were planning to do with the case. And it was only late last week, he said, that he found out that prosecutors were planning to go to the grand jury.

It made no sense, Millen said, to file a lawsuit before it was clear that Wake County prosecutors were close to doing something that could expose his clients to criminal liability, such as going to the grand jury.

Eagles tentatively scheduled another hearing in U.S. District Court for Aug. 4.