The election of Republican Ed Brady to the North Carolina Supreme Court has caused much hand-wringing among members of the legal community and the Democratic Party. Brady, a Fayetteville defense lawyer, had no judicial or appellate experience. Yet he narrowly defeated respected Republican appeals court judge Ralph Walker in the primary, then whipped incumbent G.K. Butterfield in the general election - despite the fact that both Walker and Butterfield had the endorsement of every major legal group and newspaper in the state.
The public laments have included the ineptitude of the Democratic party, the state system of electing judges, Brady's conservative agenda and inclination to take ideological positions on issues he might have face in office, his lack of qualifications and a host of other perceived failings.
But the issue that most agitates observers is one that never saw the light of day--Brady's alleged role in a 20-year-old murder case.
In 1981, Stephen Henry was shot to death and dumped in the Cape Fear River, his body weighed down by cinder blocks. Authorities charged Anson Maynard with the crime, saying he killed Henry to prevent him from testifying against Maynard in a theft case. Maynard had an alibi, but witnesses at trial fingered Maynard as the killer; another defendant, Gary Bullard, was granted immunity in exchange for testifying against him. The jury sentenced Maynard to death.
Maynard, who has always proclaimed his innocence, was scheduled to die in January 1992. But an investigation by his appeals lawyers, Ann Petersen and Jim Glover, began to unearth new twists to the case, and they offered a startling alternative scenario in court filings: The murder was committed by Bullard and another man, Lee Wayne Hunt, at the suggestion of Fayetteville attorney Ed Brady.
According to the court documents, which included a motion for a new trial, the three men were involved in drug deals and feared Henry would turn them in. Brady, who also represented Maynard on the theft charges, is said to have suggested at a meeting that Henry ought to be eliminated. Maynard's lawyers also stated their belief that Hunt, who is currently in prison for an unrelated murder, followed through. News accounts reported the allegations, but the evidence had not been raised at trial and could not be properly substantiated, and the courts rejected it.
The case eventually moved to the clemency phase: In its clemency petition, the defense included affidavits from people who claimed to have knowledge of the case and backed many of the assertions, including some involving Brady. Sources familiar with the case say that a few of the statements came from relatives of Maynard or characters with legal troubles of their own and could not be trusted. But others were more credible, including one from a former employee in Brady's office and another from a Cumberland County assistant district attorney, according to the sources.
The details are secret, however, because the records are under wraps. In order to convince witnesses to participate in the clemency process on Maynard's behalf, the lawyers had to guarantee absolute confidentiality, which meant the petition--and the lips of the everyone involved--would have to remain permanently sealed. Gov. Martin agreed. So just what they said about Ed Brady isn't available for review.
Whatever information Martin received, however, was compelling enough for him to grant clemency. Later, the governor said whoever killed Henry deserved the death penalty, but he doubted that Maynard was the guy. Nor, however, was he convinced of Maynard's innocence.
After the death sentence was commuted, attorneys William Simpson and Tom McNamara continued the investigation in the hopes of gaining a pardon from Martin's successor, Jim Hunt. Though neither would comment for this column, sources say that the investigation stalled as witnesses died, left town or clammed up. The SBI and Cumberland County District Attorney Ed Grannis pursued a parallel investigation, though the focus of their efforts is also a mystery, as is the result. Whatever the case, the accusations against Brady have never resulted in additional action.
Brady did not return phone calls or respond to a faxed list of questions. Nothing new there--during the campaign he avoided candidate forums and ignored newspaper questionnaires. No doubt he's consistently denied any involvement in shady dealings, and the state has always argued that Maynard's lawyers raised bogus issues in a last-minute attempt to spare their client.
The matter gathered dust until Brady decided to run for the Supreme Court seat. Since few expected Brady to beat Walker, the Brady buzz stayed at a low level in legal circles. "No one I know gave serious thought to Brady as a candidate," says Charlotte lawyer Henderson Hill, who assisted in Maynard's clemency campaign. "I'm not sure I was even aware that Walker had opposition."
When Walker went down, the buzz, while still furtive, grew considerably louder.
Political consultant Thomas Mills, who worked on the Butterfield campaign, found old newspaper clips about the allegations in late September and tried to obtain the clemency petition, but was rebuffed. By the time he began calling reporters, liberal advocacy groups and anyone else who might listen, several weeks had passed.
Few reporters had time to chase down the facts at the 11th hour, as most were swamped by election-story deadlines and the all-consuming demands of the Dole-Bowles Senate race. A reporter for The News & Observer gave it a shot-- he called most of the protagonists, including Hill, but could not sufficiently penetrate the wall of silence to run with a story. Hill says that even if the clemency petition hadn't been off-limits, he had too many concerns to offer much of substance. "Whatever we had was strongest at the time we presented it to the governor," he says. Furthermore, Hill hadn't talked to Maynard in 10 years and didn't feel comfortable saying anything that might affect the potential for a pardon. "It struck me as irresponsible as former counsel to enter into that discussion," he says.
The Butterfield campaign was likewise unable to vault the informational hurdles. Lawyers in Fayetteville and other sources fed the campaign the Maynard charges and other allegations, but they were all anecdotal. Campaign manager Darryl Smith says a lack of time and funds hamstrung his ability to get any closer to the facts. "We could not get any more specific information [about Brady], and thought there was really nothing else we could do with it."
Democratic Party executive director Scott Falmlen echoes those sentiments. "We kinda heard the rumors," he says. But they floated in too late to take action. When you only have a week, Falmlen says, "It makes it tough to try and substantiate anything and then do something with it."
That leaves the lawyers who know details of the Maynard affair to bemoan their impotence. "You can't say the clemency petition was bullshit," says an attorney familiar with the case. "You can't say it was untrue."
That argument may have swayed Martin, but it doesn't go very far in a political campaign. Lawyers generally avoid saying anything bad about judicial candidates, because they might end up facing those candidates in court. "Any time you get involved in a judicial election, you're always concerned about pissing off the other side," says one appellate attorney.
Not that criticism is without precedent. In 1998, Democrats distanced themselves from Supreme Court candidate Jim Martin, who beat respected Court of Appeals judge Joe John in the primary largely by distributing campaign materials that fostered the impression he was former Gov. Jim Martin. And in this year's Republican primary, state GOP chairman Bill Cobey attacked Court of Appeals candidate Nate Pendley, an attorney who had been disciplined three times by the State Bar and had his own history of campaign shenanigans. "Nate Pendley would be an absolute embarrassment to the Republican Party," Cobey wrote in a message to party activists. Both Martin and Pendley lost their races.
But Republican Party leaders declined to weigh in during the Brady-Walker primary, despite Walker's superior experience and Brady's checkered reputation. "That issue never came up," says state party spokesman Jonathan Jordan. "In ordinary circumstances, the party does not take a position."
Now that Brady has won the election, the odds of anyone in the legal community pursuing or even mentioning the old allegations are practically nil. "I don't see anybody, unless they're retired, going on record to say this guy's a bum," says a lawyer who has represented clients before the Supreme Court.
Of course, despite his ideological pronouncements about upholding a conservative agenda, Brady insists he'll take every case as it comes and make decisions based strictly on the merits. As with everything else he says, we'll just have to take him at his word.
Contact Bob Burtman at firstname.lastname@example.org.