Can a protester charged with assaulting a popular sheriff get a fair trial on the lawman's home turf? That question is being raised by a court case in Alamance County, where Sheriff Terry Johnson says he was assaulted by a Durham man counterprotesting a Confederate Memorial Day rally in Graham earlier this year.
An attorney representing Durham activist Rann Bar-On is seeking a change of venue, arguing that an Alamance jury would be biased toward the county's elected sheriff and that Johnson and District Attorney Pat Nadolski have too close of a relationship for Nadolski's office to fairly prosecute the case.
Further, Scott Holmes, a Durham civil rights attorney, questions the sheriff's credibility as the main witness, citing a now-dismissed Department of Justice lawsuit alleging racial discrimination at the Alamance County Sheriff's Office and photographs that show Johnson with people Holmes describes as "members of far-right and racist groups" who participated in the May 20 rally.
"If it turns out there is a relationship or a good relationship there, that may be some evidence—if we get more support for that—that he would be biased against the counterprotesters for which he brought charges," Holmes says.
Bar-On and William Hood, who is charged with assaulting two other officers at the same rally, are due in court on Monday.
Johnson declined to be interviewed for this story, saying it would be inappropriate for him to comment on a pending case. Nadolski couldn't be reached by deadline.
Johnson has served as sheriff of Alamance County since 2002, and, according to the Burlington Times-News, he was the first Republican to hold that office since 1954. He won 60 percent of the vote in 2010, ran unopposed in 2014, and plans to seek another term next year. In his position, Johnson has gained a reputation as an immigration hardliner. In 2012—the same year the Department of Justice, citing racial discrimination, booted his agency from a federal immigration-enforcement program referred to as 287(g)—The New Yorker compared him to Joe Arpaio, the notorious former Arizona sheriff pardoned by President Trump earlier this year after being convicted of violating a judge's order to stop detaining people on suspicion of being illegal immigrants.
"They both have the kind of bold rhetorical style that has launched many careers in reality television—Johnson, for example, often refers to his Latino constituents as 'taco eaters,'" the magazine's Jessica Weisburg wrote. "They both won their most recent elections by more than ten percentage points. And they are both under investigation by the Department of Justice for racial discrimination."
The Justice Department's two-year investigation into the allegations of racial discrimination at the Sheriff's Office found "reasonable cause to believe that ACSO engages in a pattern or practice of unconstitutional policing" and engaged in "a culture of discrimination against Latinos" that allegedly included Johnson telling deputies at a checkpoint to "go out there and get me some of those taco eaters." Johnson denied at the time that he or his office discriminates, painting the DOJ's case as politically motivated.
A judge later dismissed the case, questioning the soundness of the feds' allegations. But traffic stop data, analyzed by the DOJ and the INDY, showed that Latino drivers were being arrested during traffic stops at disproportionate rates.
The DOJ appealed, and, last year, Johnson settled the case. Under the agreement, the ACSO said it would implement a bias-free policing policy and track, analyze, and submit traffic-stop data to the Justice Department. Earlier this year, after Jeff Sessions took over the Justice Department, the DOJ asked the Sheriff's Office to rejoin the 287(g) program.
Holmes has requested an immense amount of evidence from the discovery portion of the case, including any documents in the state's possession related to the DOJ lawsuit, racial slurs used by Johnson or his deputies, and racially discriminatory policing. He's also seeking any video taken at the Confederate Memorial Day rally, the sheriff's medical records, and documents concerning protesters or the ACSO's relationship to groups Holmes says were "represented at or associated with" the Confederate Memorial Day rally.
Present at the rally were Alamance County Taking Back Alamance County, or ACTBAC, a group the Southern Poverty Law Center identifies as "a fledgling neo-Confederate group" but bills itself as a collective "willing and wanting to preserve our Southern rights," and the Alamance County Regulators militia.
In photos taken at the event, Johnson is pictured with men displaying a "Don't Tread on Me" flag and throwing up the insignia of the Three Percenters militia, which provided security at the Unite the Right in Charlottesville but has since tried to distance itself from the white supremacist gathering.
After the rally, Johnson described the alleged assault to the Times-News (another reason Holmes is seeking a change of venue). According to the paper, Johnson said a protester tried to grab a Confederate or Christian flag—it's not clear which—and was "struggling to get a water bottle open," leading deputies to believe he was trying to douse it with lighter fluid and set it aflame. But they never got their hands on the bottle, the paper reports.
Law enforcement, including Johnson, tried to wrest control of the flag, and that's when Johnson says Bar-On struck him on the left shin with the flagpole, causing "broken skin and bruising," according to an indictment, and aggravating an existing injury.
Hood, of Chapel Hill, is accused of assaulting two Graham police officers in the struggle. According to indictments against him, B.F. Hicks suffered a "scraped knee and damaged uniform pants from falling on concrete," and C.S. Swink was pushed to the ground.
Both face felony charges of assaulting a law enforcement officer, inflicting physical injury. A conviction could mean anything from three months of community service to two years of probation or even jail time.
Bar-On, who teaches math at Duke, has been arrested protesting before. He was one of five people taken into custody after interrupting a Durham County commissioners meeting in March by reading letters from inmates at the Durham jail. Those charges were dismissed; according to the N.C. Department of Public Safety, Bar-On has no prior convictions.
In addition, Hood is charged with having a weapon at a public assembly (a pocket knife), and Bar-On is charged with damaging two flags, which a police report describes as a Christian flag and a First National Confederate flag, valued at $12 each.
Two marines were also arrested at the rally for trespassing on the roof of a nearby business and unfurling a banner reading, "He who controls the past controls the future" (a quote from George Orwell's 1984), "YWNRU," which stands for "you will not replace us" and is a popular refrain among white supremacists, and the symbol of the Identitarian movement, basically Europe's alt-right. One pleaded guilty and was kicked out of the Marine Corps; the other took an Alford plea.
Also at issue in the case is a billboard that towers over Interstate 40 near Burlington. It features Johnson and Nadolski standing back to back with the words "working side-by-side to protect Alamance County."
It isn't unusual for a district attorney and a sheriff to work together closely. But Holmes says the billboard is evidence the two officials have a political relationship, not just a professional one. Text on the billboard says it was paid for by campaign committees for each man, but the INDY was unable to identify the expense in campaign finance reports.
Nadolski was appointed to his position in 2009 and was elected twice as a Democrat in 2010 and 2014. In 2015, he switched to the Republican Party, citing criticism from Democrats that he was too tough on crime. (Two years earlier, a Durham County superior court judge said she would no longer hear cases in Alamance County because Nadolski's office was too harsh.)
During the DOJ investigation, Johnson said he meets with Nadolski weekly. They are seen together at places you'd expect—parades, ceremonies honoring veterans—and they give joint press conferences. Last month, Johnson attended a campaign kickoff event for Nadolski (both are up for reelection next year).
In general, a prosecutor should "not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests," the American Bar Association's ethics standards say.
Neither the North Carolina State Bar Association nor the ABA offers ethics opinions specifically requiring a prosecutor to recuse himself based on a relationship with a victim. An assistant district attorney, Corey Santos, is prosecuting this case, but Holmes's concerns about his connection to Johnson still stand. (Santos says he will file a response to Holmes's motion Monday but declined to comment beforehand.)
"He's the boss. Any conflict the district attorney would have would also affect anyone working under his supervision," Holmes says.