Settlement reached in judge’s case against former DA

Peter Gilchrist
Peter Gilchrist tsumlin@charlotteobserver.com

In 2010, longtime Mecklenburg County District Attorney Peter Gilchrist fired assistant district attorney Sean Smith for insubordination. Smith, who was running for judge at the time, filed a federal civil rights lawsuit against Gilchrist because Smith believed he’d been fired inappropriately for comments made in a television interview related to his campaign.

On Tuesday morning, Gilchrist, a Democrat, and Smith, a Republican who has been a District Court judge since January 2011, agreed they would end the five-year lawsuit with a settlement.

The settlement, which is still being finalized, ended court proceedings just before Smith’s lawyer, Matt Arnold of the firm Arnold & Smith, would have cross-examined Gilchrist.

On the first day of testimony Monday, Smith and Gilchrist each took the witness stand and discussed Smith’s five years as an assistant district attorney. They disagreed about whether Smith ever learned to moderate his “intense” behavior with colleagues, defense lawyers and even an intern.

Gilchrist said Smith’s “insolent” comments in a meeting after the television interview were “the straw that broke the back.”

“Five years is a long time to be making similar mistakes,” Gilchrist said in court.

Gilchrist testified that the television interview was not why he fired Smith, but Arnold disagreed.

Arnold said the timeline of Smith’s firing – he gave the interview July 9, 2010, met with Gilchrist on July 14 and was fired July 15 – indicates that Smith was fired because of the interview, violating his First Amendment right to freedom of speech.

After 36 years in office, Gilchrist retired at the end of 2010. He was represented by the N.C. Attorney General’s office because he was sued as district attorney.

When Special Deputy Attorney General Grady Balentine cross-examined Smith, Balentine brought up several incidents when Smith’s “intensity” attracted attention from his colleagues and managers.

Smith corrected certain details, but he denied few incidents altogether.

Balentine asked Smith if he ever screamed at a defense attorney over the phone while Deputy District Attorney Bart Menser was in his office.

“I raised my voice,” but didn’t scream, Smith said. He described the incident as a misguided attempt, early in his career, to show off for Menser.

When Menser told him his behavior wasn’t okay, Smith said, he considered the situation part of his adjustment from the Philadelphia district attorney’s office, where he worked during law school, to Charlotte and the South in general. He said “intense” behavior was acceptable in Philadelphia.

Smith was born in Charlotte and testified that he has lived here his entire life except for college, at the University of Notre Dame, and law school, at Villanova University.

In 2006, Smith’s supervisor at the time, Bill Stetzer, confiscated his computer keyboard for a week and Smith spent that time filing paperwork. That was in response to what Smith called “the old reply-all mistake” in which Smith insulted a defense lawyer and accidentally emailed the message to the lawyer herself.

During cross-examination, Smith also said he had made “unprofessional comments” about police officers in emails. He once “sternly and authoritatively” told an intern to give up a seat so Smith could eat lunch. He told Balentine he had urinated into a bush at a 2005 district attorneys’ conference.

But when Balentine asked about comments Gilchrist said Smith made during their initial conversation about his campaign for judge, Smith firmly denied them.

Smith had decided to contest then-District Court Judge Tyyawdi Hands’ seat. Gilchrist testified that Smith said part of his reasoning was that Hands had “an African-sounding name” and had taken maternity leave.

On the witness stand, Smith said “no” when asked if he said either comment.

Smith said he decided to run against Hands because she was newly appointed to the bench and hadn’t faced an election yet.

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