In May 2019 former judge Randy Pool called a captain with the McDowell County Sheriff’s Office and reported that a woman he was communicating with on Facebook, Jennifer Tierce, was attempting to extort money from him. The investigation into the extortion allegation revealed communications by Pool with numerous other women. The extortion investigation then expanded into an investigation of Pool by the State Bureau of Investigation and the Federal Bureau of Investigation. These two agencies thoroughly investigated Pool’s actions and communications. I received the results of these investigations, and while the ultimate charging decision rested with me I consulted with the Special Prosecution division of the Attorney General’s Office in the analysis of this case. The following are the details of that analysis.
THE FACEBOOK RELATIONSHIP WITH TIERCE
Pool friended Tierce on Facebook just before Christmas 2018. They exchanged a couple of brief “Merry Christmas” messages that day and another message or two a few days later, but then stopped communicating until April 22, 2019. At that point Tierce initiated contact with Pool, and the two of them began an online relationship in which they sent hundreds of messages to each other. These messages started out innocuous, quickly became flirtatious, and eventually became extremely sexual. Both Tierce and Pool sent naked pictures of themselves to the other and both asked that the other send them naked pictures. About two weeks into this online relationship Tierce asked Pool for $120 to pay her car insurance. When Pool declined to give her the money Tierce became extremely angry and sent him an extortion demand stating that he if he didn’t pay her $5,000 she was going to send the naked pictures he had sent her to his family and the media. When Pool didn’t respond Tierce escalated her demands to $7,000, then $10,000. Receiving no response from Pool, Tierce sent the naked pictures of Pool to one of Pool’s daughters and demanded that she pay Tierce $10,000 or Tierce would send the pictures to others in her family and to the media. When that daughter didn’t respond, Tierce sent the naked pictures and an extortion demand for $10,000 to Pool’s other daughter. Tierce sent these extortion demands to Pool and his daughters on May 8, 2019, only two and a half weeks after Tierce and Pool’s sexting relationship began.
When Pool received the extortion demands from Tierce he called a captain with the McDowell County Sheriff’s Office and asked if he would go talk to Tierce and tell her it is wrong to try and extort money from a judge. Pool’s request to the captain was improper - Pool should have filed a proper complaint with law enforcement. However, it is not a crime in North Carolina to ask a law enforcement officer to explain to someone that what they are doing is a crime, regardless of whether the person making the request is a regular citizen or a judge. In fact, it is not uncommon for law enforcement to receive a request like this, usually in the context of a neighbor dispute where one neighbor wants the police to tell another neighbor what they are doing is wrong. Making such a request to law enforcement is not a crime.
POOL’S STATEMENT ABOUT NOT COMMUNICATING BY TEXT
The captain and another detective interviewed Pool the next morning to gather information about the alleged extortion. Pool stated in that interview that he and Tierce communicated via Facebook but falsely stated they had not communicated by text, when in fact they had.
There are three crimes that could be committed if someone makes a false statement to an officer. Filing a False Report, Resisting/Obstructing/Delaying an Officer, and Obstruction of Justice.
Filing a False Report
There is a crime in North Carolina called Filing a False Report (NCGS § 14-225). This statute makes it a crime to make or file a false or unfounded report to a law enforcement agency when done for the purpose of interfering with that agency’s operation or to hinder or obstruct an officer in the performance of his or her duties. However, this crime only deals with the filing of a report with law enforcement – not statements made in the course of an investigation. Pool did not violate this law because Pool’s initial report to law enforcement that Tierce was trying to extort money from him was true.
Resisting/Obstructing/Delaying an Officer and Obstruction of Justice
In North Carolina it is a crime to willfully resist, obstruct, or delay an officer in the performance of their official duties. (NCGS §14-223). With regards to false statements, making a false statement to an officer only violates this law if the false statement obstructed or delayed the officer’s investigation or actions. There is also a ‘common law’ offense (i.e., one that has been through decisions of the courts but has never been written into statute) called Obstruction of Justice. This offense makes it a crime “to willfully obstruct justice.” However, similar to Resisting/Obstructing/Delaying an Officer, making a false statement to law enforcement only constitutes obstruction of justice if that false statement has “changed [the investigator’s] “investigative path” or extended his investigation beyond what it would have ordinarily taken.” State v. Bradsher, 275 N.C. App. 715 (2020). Most people think that lying to the police is automatically a crime, but under North Carolina law it is only a crime if it sends the officer on a wild goose chase, so to speak. This is different than under Federal law –Federal law specifically makes it a crime to “make any materially false, fictitious, or fraudulent statement or representation” to a Federal Officer, regardless of the effect the false statement has on the federal agent. This is why people who lie to the FBI get charged with a crime. There is no equivalent North Carolina law.
Accordingly, Pool could only be charged with Resisting/ Obstructing/ Delaying an Officer or Obstruction of Justice if his false statement that he and Tierce did not communicate by text delayed or impeded the captain and detective’s actions. However, Pool’s statement about not communicating by text had no impact on their actions. In fact, the captain and detective did not even mention this statement or the methods Tierce and Pool used or did not use to communicate in their summary of the interview.
Because Pool did not file a false report, and because his false statement that he and Tierce did not text did not delay, obstruct, change, or extend the captain and detective’s actions in gathering basic information about the extortion attempt, the law says we cannot charge him with any of the crimes listed above for his false statement to the captain and detective about not texting.
THE SBI’s INVESTIGATION OF THE EXTORTION
The captain reported the extortion incident to the Sheriff’s Office and me and I then submitted a request to the State Bureau of Investigations (SBI) to investigate. The SBI interviewed Tierce, who stated she and Pool had been communicating about two weeks. This was a reasonably accurate recollection of the time frame of their whirlwind relationship. She also stated they had communicated through Facebook and by text, and admitted to sending the extortion demands to Pool and his daughters. During this interview the SBI analyzed the data on her phone and reviewed the text messages between her and Pool. The SBI then interviewed Pool who, just as Tierce had said, stated they had been talking on Facebook “about two weeks.” This was an accurate approximation of the timeframe of their sudden relationship, not a false statement. As in his earlier interview with the captain and detective from the Sheriff’s Office, Pool falsely stated to the SBI that his and Tierce’s communications were almost exclusively via Facebook, and denied they communicated significantly by text. However, by the time of this interview the SBI had already reviewed the text messages between him and Tierce and knew the two had been texting. His false statement to the contrary did not delay or impede their investigation or change their path, and therefore as detailed above cannot constitute a crime under North Carolina law.
THE RECORD OF MESSAGES
In the course of their investigation the SBI received the Pool and Tierce Facebook messages from Facebook through a search warrant served on the Facebook Corporate Office, which keeps and maintains those messages and records. Neither the SBI nor the McDowell Sheriff’s Office ever asked Pool to produce or provide messages. Law enforcement does not rely on a private citizen to provide them with records, data, or messages- they retrieve them through search warrants to the recordkeeping agency, in this case Facebook. Facebook retains messages sent and received by its customers, and even if that customer deletes a post or message from his page on his or her computer it still exists on Facebook’s servers and can be retrieved by law enforcement. Even if Pool deleted Facebook messages from his computer he cannot be charged with obstruction of justice because: 1) law enforcement never asked Pool to provide any messages; and 2) Pool’s actions had no effect on the official copy of records and evidence retained by Facebook. Any action by Pool regarding messages on his computer had no effect on the investigation.
There is a crime under North Carolina law titled Altering, Destroying, or Stealing Evidence of Criminal Conduct, commonly called Destruction of Evidence (NCGS §14-221.1) This law states, “Any person who breaks or enters any building, structure, compartment, vehicle, file, cabinet, drawer, or any other enclosure wherein evidence relevant to any criminal offense or court proceeding is kept or stored with the purpose of altering, destroying or stealing such evidence; or any person who alters, destroys, or steals any evidence relevant to any criminal offense or court proceeding shall be punished as a Class I felon.” In plain English, this law makes it a crime to do one of two things: 1) break into a building or cabinet where evidence is kept to destroy it; or 2) destroy any evidence relevant to a criminal offense or court proceeding. Clearly number one does not apply. Number two also does not apply because, as noted above, law enforcement did not consider the information on his computer evidence (as evidenced by the fact that they never asked him for it or sought to get it.) The ‘evidence relevant to a criminal offense’ in this investigation were the records on Facebook’s servers, which had not been altered or destroyed in any way.
The SBI’s investigation determined without a doubt that Tierce had tried to extort money from Pool and his two daughters. Pool repeatedly stated to the SBI that he did not want Tierce charged and just wanted the whole matter to go away because of the impact it would have on his career. He even asked the SBI to not tell the D.A.'s Office about the incident at all (unaware that we were already involved). Based on the evidence in the investigation and discussions with the lead SBI investigator I decided to indict Tierce for extortion. I made that decision because the evidence of her extortion was overwhelming and undisputed, and also because she crossed a line when she dragged Pool's daughters into it. While it had no bearing on my decision to charge, had I not charged Tierce I would probably now be accused of attempting to cover up Pool's conduct, especially in light of Pool's repeated requests to the SBI for this matter to go away. It was only because I indicted Tierce that Pool's conduct became public. Tierce ultimately pled guilty to extortion.
THE INVESTIGATION INTO POOL
Early in the extortion investigation Pool’s messages and conduct with other women came to light. In addition to the SBI’s investigation, the SBI and I notified and requested the Federal Bureau of Investigation, the North Carolina State Bar, and the North Carolina Judicial Standards Commission investigate Pool’s actions and conduct. The FBI investigated the matter fully and interviewed numerous women. They ultimately concluded their investigation with no recommended charges. Similarly, the SBI found no evidence of criminal conduct by Pool.
Pool sent sexual messages to many women. However, all of the communications presented to our office showed either (1) two-way conversations that were consensual by both parties, or (2) a one-time comment sent by Pool with no further communication. These actions do not constitute cyberstalking under North Carolina law. North Carolina General Statutes define cyberstalking as “electronically mail[ing] or electronically communicat[ing] to another repeatedly . . . for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person.” (NCGS 14-196.3) Therefore, to be charged the law requires a person send communications to another person repeatedly to abuse, annoy, threaten, terrify, harass, or embarrass them. Sending one message to a person does not violate this law, nor do multiple messages that are consensual. The law does not allow us to charge Pool with cyberstalking for sending someone a message only once, or for repeated communications that were part of a mutually consensual conversation.
THE JUDICIAL STANDARDS INVESTIGATION
The Judicial Standards Commission conducted their own investigation into Pool’s conduct, in which their investigators interviewed Pool twice in Raleigh (Wake County). In those interviews Pool made several false statements, including that his communications with Tierce were an isolated incident and that he had not had similar communications with any other women. However, as the Judicial Standards Commission is its own State agency based in Wake County, they do not involve or report to me or our District Attorney's Office. Our District Attorney’s Office has no jurisdiction over acts committed outside McDowell and Rutherford Counties. We cannot charge someone for a criminal act committed during an interview in Wake County by a State agency based in Wake County conducting an investigation in Wake County. If the Judicial Standards Commission felt that Pool committed a crime during their investigation, they would refer the matter to the Wake County District Attorney’s Office for prosecution. (It is worth noting that they have never done so.)
The Judicial Standards Commission presented the results of their full investigation to the North Carolina Supreme Court. The North Carolina Supreme Court found that Pool violated the Judicial Canon of Ethics and censured him.
One adult sending another adult an inappropriate text is not a crime, and two adults engaging in consensual sexual communications is not a crime. While wrong, making a false statement to law enforcement that does not impede or delay their investigation is not a crime. And whether it should be or not, violating the Judicial Canon of Ethics is not a crime. Pool’s actions in our District did not violate any state criminal laws - it is important to note that in the Supreme Court’s censure of Pool and their list of all of his misconduct, the Justices of our Supreme Court never once claimed or stated that Pool committed a crime.
The District Attorney has tremendous power and authority, and can use that power do deprive our citizens of their property and their liberty. It is entirely improper for a District Attorney to try to use that power to prosecute behavior or actions that do not violate the laws of our State, no matter how much he personally disagrees with the behavior.
"The citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility."
- Robert H. Jackson