Opponent Ken Spaulding open to excessive force database and other proposed reforms

by Jordan Green

The banner hanging from the stage in Dillard Auditorium on the campus of Winston-Salem State University on Feb. 18 said everything: “NC Attorney General Roy Cooper: Kalvin Michael Smith’s Black Life Matters.”

About 125 college students from Winston-Salem State University, a historically black institution that is part of the UNC System, gathered with peers from Wake Forest University and Salem College for a rally demanding that Cooper file a motion to vacate Smith’s sentence.

Cooper is a moderate Democrat running for governor this year on a law-and-order image burnished through 12 years serving as the state’s attorney general. Smith is a 44-year-old black man who was convicted of brutally beating a white store clerk in Winston-Salem in 1995. Subsequently, a review by the Silk Plant Forest Citizen Review Committee, which was empaneled by the city, found there was no evidence that Smith was even at the scene of the crime and stated that they did not have confidence in the police investigation leading to his conviction. A second review by retired Assistant FBI Director Chris Swecker gave credence to the Silk Plant Forest Citizen Review Committee’s findings and took the position that Smith deserves a new trial.

Corrine Sugino, a Wake Forest University student, suggested during the rally that Cooper’s unwillingness to get involved with Smith’s case revealed a racial double standard, considering his intervention in the Duke lacrosse case, in which he dropped charges against three white athletes falsely accused of rape by a black woman in 2007. Cooper highlights the saga on the bio page of the website for the attorney general’s office, which lists among his “initiatives”: “Taking on tough cases, including the Duke lacrosse case.”

“If he’s willing to intervene for the three white Duke lacrosse players, he must be willing to intervene for Kalvin,” Sugino said. “And if he’s not, then we will make him care because he should not be a leader in this society if he’s not willing to intervene for the people who are most disenfranchised by this society.”

Widely regarded as the frontrunner in the Democratic primary and likely challenger to Republican incumbent Pat McCrory in the November general election, Cooper has run a low-profile campaign since declaring last fall. His campaign website hasn’t been updated since October, when he officially announced his election bid, and includes no information about his platform or position on the issues. And he has stated that he will not participate in a March 1 debate with opponent Ken Spaulding hosted by the League of Women Voters at High Point University.

Jaylon Herbin, a junior majoring in political science at Winston-Salem State, made an even more explicit connection between the Smith case and Cooper’s political aspirations at the rally.

“We will get Attorney General Roy Cooper’s attention,” he said. “We need him to know that we are growing in numbers. We are concerned students. Mr. Cooper wants us to vote for him. But he is not doing his job right now to earn our vote. He has the power right now to give Kalvin his freedom. His life is in his hands.”

Roy Cooper

Noelle Talley, Cooper’s public information officer, said in an emailed statement in response to the students’ demands last week: “We understand the community’s concerns and we want to work with them on systemic issues in the criminal justice system but at this point in the legal process only a court of law can overturn Kalvin Smith’s conviction and release him from prison.”

Ron Wright, a professor at Wake Forest University School of Law in Winston-Salem, said Cooper’s hands are not bound in this case.

“It is true that at the end of the day it is a judge’s decision as to whether to grant relief,” said Wright, who is a former federal prosecutor who specializes in the rules of sentencing and post-conviction relief. “But it’s also true that the attorney general can join the defendant and ask for the relief. If the prosecutor and the defendant come together and ask a judge for a stay that’s often very powerful and persuasive.”

Stephen Boyd, a professor of religion at Wake Forest University who serves on the Silk Plant Forest Truth Committee — not to be confused with the citizens review committee — said Cooper has thus far rebuffed entreaties from the Silk Plant Forest Truth Committee to discuss the Smith case with Lt. Joseph Ferrelli and Sgt. Chuck Byrom, the two Winston-Salem police officers who staffed the city’s review of the original investigation, and has likewise declined to meet with retired Assistant FBI Director Chris Swecker about the case.

Beyond the Smith case, Cooper’s track record as attorney general has left many African-American leaders across North Carolina less than enthusiastic about his candidacy.

“Many of us are very, very concerned about the positions he’s taken with a number of issues recently,” said the Rev. Anthony Spearman, a Greensboro pastor who is the third vice chair of the state NAACP. Spearman cited Cooper’s refusal to retry Charlotte-Mecklenburg police Officer Randall Kerrick, whose prosecution in the death of Jonathan Ferrell ended in a mistrial. Kerrick fatally shot Ferrell, a black former Florida A&M University football player, in 2013 after Ferrell staggered from a car accident and attempted to get help, prompting a confused and frightened resident to call 911 and report an attempted break-in. The jury deadlocked and a judge declared a mistrial in Kerrick’s case last year. Georgia Ferrell, the mother of the slain football player, expressed dismay about Cooper’s decision to not retry the case in an interview with WBTV News in Charlotte last August.

“Cooper did not care one way or the other about my child or about me, or about his family,” she said.

Spearman also expressed displeasure in Cooper’s decision to defend North Carolina’s voter ID law, which plaintiffs, including the US Justice Department, characterize as an unconstitutional effort to suppress the black and Latino vote.

“That’s a pretty good representation of the sentiment of the African-American community,” Spearman said.

A perception of not being responsive to the needs to African-American residents could prove to be politically touchy for Cooper in the run-up to the March 15 Democratic primary. African Americans comprise 41.4 percent of registered Democrats in North Carolina. But assuming his name recognition as attorney general for the past 12 years allows him to prevail in the primary, Cooper will face an entirely different political dynamic in his effort to peel conservative Democrats and independents away from McCrory in November.

Smith alluded to the racial politics surrounding his case in a videotaped interview screened at the rally last week.

“When you have organizations and ex-FBI directors investigate and bring forth information, and they don’t do anything, it’s frightening,” he said.

“Politics plays a big role in my case,” he added. “When politics supersedes what’s right, then we have a serious problem.”

Cooper did not respond to requests for comment for this story.

Opponent Ken Spaulding, a lawyer and former state lawmaker in Durham, leveled a blistering critique of his primary opponent’s handling of the Smith case.

“I think the attorney general’s office should take a review and should have already taken a review of the circumstances based on the investigation that has already been done by your local government,” Spaulding said. “It’s my understanding that if you’re seeking justice, it doesn’t always mean it’s always going to be on the side of the prosecution. Justice should be blindfolded.”

While Cooper has largely remained silent on matters of racial justice, Democratic politicians in other states have embraced a criminal-justice reform agenda, or at least have been forced to entertain proposals for change.

Most notably, before dropping out of the Democratic presidential primary following a disappointing performance in Iowa, Martin O’Malley adopted an extensive platform to reform policing and the courts. O’Malley served as governor of Maryland and, before that, as mayor of Baltimore, where riots erupted last year after Freddie Gray died in police custody. Hillary Clinton and Bernie Sanders, the remaining candidates in the Democratic primary, have also made racial fairness and reform of the justice system of mainstay of their respective campaigns in response to prodding from the Black Lives Matter movement.

O’Malley called for national legislation requiring “law enforcement agencies to report data on all police-involved shootings, custodial deaths, discourtesy complaints and use of excessive force” in a universal database accessible to the public.

The Ferguson Commission, appointed by Democratic Gov. Jay Nixon, similarly recommended a statewide database on police use-of-force incidents for the state of Missouri. Nixon appointed the commission in the wake of the fatal shooting of Mike Brown by a Ferguson police officer in 2014. The governor sustained criticism for responding slowly to the crisis and, according to some, for abiding the police’s militarized response to protests that erupted after Brown’s death.

Ken Spaulding


Spaulding, one of the two Democratic candidates for governor, said he would support a database of police use-of-force incidents in North Carolina.

“I think that’s a constructive idea,” he said. “The more accurate information we have the more we do know what we’re dealing with and what has to be addressed.” The candidate added that it’s important for all citizens and elected officials to support the law-enforcement community.

Bishop Todd Fulton, president of the Ministers Conference of Winston-Salem and Vicinity, said he led a delegation to meet with Cooper in mid-February. In addition to asking Cooper to meet with former Assistant FBI Director Chris Swecker on the Kalvin Michael Smith case, Fulton said he and the pastors asked the candidate for his position on public access to police body cameras. They’re still waiting for a response from Cooper on both counts.

Before he dropped out of the Democratic presidential primary, O’Malley pledged on his campaign website “to work with law enforcement, advocates and other stakeholders to establish national standards for deploying and developing technology, while protecting privacy and community access to data provided by body cameras or similar tools.”

Spaulding said he would support something similar on a statewide level.

“The overwhelming majority of law enforcement officers are doing their job and doing it well,” said Spaulding, who noted that he has represented law enforcement officers in his law practice. “When we have situations with excessive force being use then the public and press needs to be factored into that. It’s not anti-police. We have to make it clear to my community and the white community that misconduct is in the minority. But when incidents do occur, we cannot run away from them, because it ruins the reputation of our very good police officers.”

While North Carolina cities have avoided the unrest that overtook the St. Louis area and Baltimore in the wake of the police-involved deaths of unarmed black men, patterns of racially disparate policing in North Carolina are not dissimilar.

Black drivers in North Carolina are 75 percent more likely to be searched than whites and 43 percent more likely to be arrested, according to a report by UNC-Chapel Hill Professor Frank R. Baumgartner that was co-authored with Bayard Love, Kelsey Shoub and Derek A. Epp. The public data that formed the basis of the report is maintained by the state Justice Department, headed by Attorney General Cooper, as a requirement of state law.

The US Justice Department’s Ferguson Report, which found that the city’s police department violated the constitutional rights of African-American residents, noted that blacks were twice as likely as white drivers to be searched during vehicle stops, but were “found in possession of contraband 26 percent less than white drivers, suggesting officers are impermissibly considering race as a factor when determining whether to search.”

The Baumgartner report noted a troubling parallel in North Carolina.

“Officers appear less likely to find contraband on black drivers after conducting searches based on consent or probable cause,” the report said. “This suggests that the disproportionate use of these searches on black motorists is unjustified. Indeed it is just such a disparity that the US Department of Justice points to as evidence of racial bias in the Ferguson report.”

Spaulding said the findings in the Baumgartner report are nothing new.

“There was a disparity in the arrests and also searches and seizures,” he said. “I raised issues about it back in the ’70s, and now it’s far more symptomatic. As governor, I would have sensitivity with this because I’ve dealt with it directly. A governor that’s had some experience can address what we need to do while recognizing there’s some bad people out there who need to be punished.”

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