Updated: A judge on Tuesday denied Coffey’s attorneys’ motion to dismiss the charges against him and remove Freeman from the case. The judge could rule on whether Freeman’s communications with Waters amount to a conflict of interest at a later date. 

In her nearly decade in office, Wake County district attorney Lorrin Freeman hasn’t earned a reputation for taking a hard line against cops who abuse their power.

Freeman could have her chance to show she’s tough on bad-apple officers in the case of a former Granville County sheriff’s deputy, Chad Coffey, the onetime head of that county’s drug unit whom Freeman is prosecuting on numerous felony charges related to embezzlement, a drug conspiracy, and obstructing justice—that is, if Freeman hasn’t jeopardized the case by behaving unethically herself.

In a motion filed last week, Coffey’s attorneys are asking a state court to dismiss the case against their client following what they characterize as Freeman’s being subject to “influences that undermine confidence that a prosecution can be conducted in disinterested fashion,” per the motion.

Coffey faces 11 felony charges in Granville County for obstructing justice, conspiring to deliver cocaine, and embezzlement, plus another 24 charges in Wake County related to falsifying training documents and qualification requirements for a former Granville County sheriff and a former chief deputy between 2013 and 2018.

Freeman took up the case against Coffey after Granville County district attorney Mike Waters recused himself, citing a conflict of interest. Waters had, in his capacity as a private criminal defense attorney before he was elected DA, represented a sheriff’s deputy, Joshua Freeman, who was fired from the sheriff’s department for misconduct following an investigation in which Coffey implicated Joshua Freeman in a DWI and cocaine possession.

When Coffey was originally charged with obstructing justice, falsifying documents, and participating in a cocaine-dealing conspiracy in Granville County, Waters personally asked Lorrin Freeman (no relation to Joshua) to prosecute the case and Freeman agreed. The motion from Coffey’s lawyers suggests that the admitted conflict of interest on Waters’s part should have prohibited him from further involving himself in the case. But after Freeman agreed to prosecute Coffey, she and Waters exchanged text messages that Coffey’s lawyers, who obtained the messages through a court order, say unduly influenced Freeman’s handling of the case and that she now has a conflict of interest, too.

“Specifically, Mr. Waters repeatedly suggested avenues for investigation through one-on-one text messages with Ms. Freeman,” states the motion from attorneys Hart Miles, Collin P. Cook, and Elliot Abrams from Raleigh firm Cheshire Parker Schneider, PLLC.

Furthermore, Waters remained copied on investigative reports in Coffey’s case, and, the motion states, Waters “instigated ill-will toward Mr. Coffey through private text messages with Freeman.”

The texts aren’t flattering. In one exchange, Waters sends Freeman a screenshot of a Facebook post from Coffey’s wife criticizing Freeman’s prosecution of the case. Freeman responds by asking Waters to “keep sending me stuff like this.” 

Five days later, Freeman charged Coffey with an additional 10 felonies, per the motion.

“These charges were based almost entirely on uncorroborated statements of informants—statements that would likely fail to establish probable cause if utilized in support of a search warrant,” the motion states. “Moreover, the allegations by these informants are seriously undermined by contemporaneous witness statements, police reports, and evidence submission reports … documents the prosecution team largely did not obtain until after bringing the charges.”

In another series of texts, Waters makes suggestions as to how Freeman should proceed with the case, calling her “a bad ass” and writing that she could obtain training and standards records to help her make the case against Coffey.

Freeman and her prosecution team did obtain those records, the motion states, and “would then indict Mr. Coffey for 28 felonies—14 of which were based on a theory never-before utilized that, by putting allegedly false or misleading records into his bosses’ personnel folders at their insistence, Mr. Coffey committed the ‘infamous’ felony offense of common law obstruction of justice,” according to the motion.

Freeman has drawn criticism in the past for not charging law enforcement officers who have assaulted or shot civilians, sometimes fatally, and for declining to bring charges against Raleigh detective Omar Abdullah who framed more than a dozen men in a fake heroin scheme. On Monday, Freeman filed a response to Coffey’s motion to have the case dismissed but told the INDY she had no further comment.

Carissa Byrne Hessick, a professor at UNC Law School, says that Freeman’s actions don’t rise to the level of violating ethics rules that bind prosecutors by state statute that could subject Freeman to any sort of professional discipline. Hessick says she also doesn’t see how the texts are grounds for dismissal of the case.

“I understand that [Coffey’s lawyers] don’t like the fact that [Freeman] was texting with [Waters], that they don’t want her to do that,” Hessick says. “But I’m having a hard time understanding how her having any sort of contact with this [DA] has any bearing on her ability to prosecute the case.”

But Jim Coleman, a law professor at Duke University and director of the university’s Center for Criminal Justice and Professional Responsibility as well as its Wrongful Convictions Clinic, says he isn’t surprised when he hears allegations of prosecutors behaving in ways that give an appearance of impropriety.

“Prosecutors are supposed to be … pursuing justice, not just a win,” Coleman says. “But when they are doing things that are inappropriate to advance their case, the conclusion from that is they must be motivated more by winning than the pursuit of justice. The [NC Bar] that is supposed to monitor this kind of conduct [is] basically sitting on the sidelines when prosecutors openly engage in this kind of behavior. So the lesson [prosecutors] take from that is that there are no consequences.”

A hearing in the case is scheduled for Tuesday in Wake County, after the INDY’s publishing deadline. 

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