Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Mitch Kokai.
Gov. Roy Cooper has no personal stake in the outcome of Desmond v. News and Observer. But the recent N.C. Supreme Court case reminds us about two unflattering pieces of the governor's political past.
One suspects the governor has little interest in voters revisiting this history as he campaigns for a second term.
The high court's unanimous Aug. 14 ruling
returned the Desmond case to N.C. headlines. Seven justices agreed that SBI firearms analyst Beth Desmond had presented "clear and convincing evidence" that the Raleigh newspaper had libeled her in a 2010 article. The decision will cost the newspaper at least $1.5 million in actual damages. The only item yet to be resolved involves $4.5 million in punitive damages awarded after the original trial in 2016.
None of this affects Cooper directly. But the 75-page Supreme Court opinion in Desmond reminds us that the N&O's defamation took place in the context of a larger story. The newspaper told that story in 2010 in a series of articles focusing on government misconduct.
"John Drescher, the executive editor and senior vice president of the N&O, described the series in an email to the N&O's vice president in charge of marketing, stating: 'In August, we'll publish a four-part series, "Agents' Secrets," showing how practices by the [SBI] have led to wrongful convictions. The series ... reveals that the agency teaches its laboratory analysts and agents to line up with prosecutors' theories, sometimes with devastating results.'"
Two reporters and a senior editor worked on the series, with months of preparation and collaboration. The Desmond case raised serious questions about the accuracy of the fourth and final article. But all four had highlighted concerns about practices and procedures at the State Bureau of Investigation, an agency that reported to North Carolina's elected attorney general.
The AG overseeing conduct that generated high-profile scrutiny from a leading media investigative team? Roy Cooper. Having won three elections to the post, Cooper was serving his 10th year as state attorney general when "Agents' Secrets" hit newsstands in North Carolina.
It would be hard to argue that Cooper could pass the buck for dubious SBI conduct in 2010, especially after he had nearly a decade in office to root out problems.
The Supreme Court's Desmond v. News and Observer opinion says nothing about Cooper's role in overseeing the SBI. But the current governor's name does crop up more than once. Those appearances highlight a second piece of Cooper's record. It's an aspect of his political history that he's unlikely to trumpet on the campaign trail.
Legal citations in the Supreme Court opinion mention Boyce & Isley, PLLC v. Cooper. It's another N.C. case involving defamation. In this instance, the current governor was the defendant.
The suit sprang from Cooper's first run for statewide office in 2000. As the Democratic nominee for the open job of attorney general, Cooper faced Republican Dan Boyce.
A week before the election, Cooper's campaign ran a new television ad. It accused Boyce's law firm of suing the state and charging taxpayers $28,000 per hour in legal fees. The ad contained multiple false statements.
Dan Boyce did not work on the lawsuit referenced in the ad. His father, Gene, had worked on the suit before forming the Boyce & Isley law firm with Dan and two other partners. Gene Boyce, who was not the candidate for attorney general, also didn't charge taxpayers $28,000 per hour.
As Carolina Journal reported in 2013
, "The judge sets legal fees in class-action lawsuits, and the final payment to the attorneys was less than 10% of the amount Boyce initially requested and much lower than the amount alleged in the ad."
The Boyce & Isley law firm notified the Cooper campaign about the misstatements on the second day the ad aired. The firm asked for an immediate retraction. Cooper ignored the request. The ad "ran at least three times a day for seven days on more than 20 television stations,"
according to a legal complaint.
Cooper won the 2000 election by 136,000 votes. He got more good news five months later, when a Wake County judge dismissed a defamation lawsuit Boyce & Isley had filed against the newly installed attorney general.
But Gene Boyce didn't give up. He won a ruling against Cooper in the N.C. Court of Appeals in 2002, then watched the case travel through state and federal courts for more than a decade.
The case ended only in 2014 — after Cooper had won three re-elections as attorney general. That year Boyce secured a written apology from the future governor. Boyce and Cooper signed an agreement ending the civil action.
The agreement didn't end Boyce's pursuit of accountability for Cooper. In January 2016, Boyce filed a complaint
against the N.C. State Bar. It argued that the bar should have investigated Cooper for professional misconduct in connection with the false campaign ad. The state Appeals Court resolved that case
in 2018, nearly two years into Cooper's current term in the executive mansion.
Cooper is unlikely to spend much time during this year's campaign dwelling on either his 2000 election or the 2010 "Agents' Secrets" scandal. His response to COVID-19, public concerns about school reopening, and the state's ongoing economic struggles are likely to play a much larger role in voters' 2020 decisions.
But Desmond v. News and Observer reminds us of two prominent blemishes from the governor's political past. Both factors might interest voters who straddle the fence as they consider Cooper's re-election bid.
Mitch Kokai is senior political analyst for the John Locke Foundation.