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News Roundup

The nation was again confronted with the recurring tragedy of a school shooting when a 15-year-old sophomore at a Michigan high school killed four of his peers and seriously injured seven others.  USA Today says that there have been at least 21 shootings in American schools since August.  Keep reading for more on this story and other news.

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Interim Pattern Jury Instructions for Substitution of Alternate Jurors Are Available

This legislative session, the General Assembly amended G.S. 15A-1215(a), effective October 1, 2021, to permit an alternate juror to replace a regular juror after deliberations have begun. S.L. 2021-94 (discussed in more detail here). The North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions has created a new instruction for judges to utilize when substituting an alternate juror after deliberations have begun and has amended the existing closing pattern instruction to ensure that alternate jurors refrain from discussing the case with anyone until they are discharged from service. The revised interim instructions are available here.

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Rules of Conduct Created for North Carolina Magistrates

Following years of discussion and drafts, a formal Rules of Conduct for Magistrates was promulgated by the North Carolina Administrative Office of the Courts (AOC) effective October 1, 2021.

Statutory Authorization

In June, Session Law 2021-47 Section 13.(a) authorized the AOC to prescribe rules of conduct for all magistrates via a new G.S. 7A-171.3. It said that the rules of conduct shall include rules governing standards of professional conduct and timeliness, required duties and responsibilities, methods for ethical decision making, and any other topic deemed relevant by the AOC. 

History

Historically, magistrates have been subject to the North Carolina Code of Judicial Conduct as officers of the court in theory, though not everyone has agreed that the Code was directly applicable to magistrates. Confusing the issue further, the NC Judicial Standards Commission is not authorized to hear complaints about magistrates or clerks of court, among others. So, while the Judicial Standards Commission oversees ethical issues for North Carolina trial and appellate judges, no similar body has been in place for magistrates.

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Interim Report: Judicial District 21 Bail Project

Interim Report: Judicial District 21 Bail Project

In January 2020, North Carolina’s Twenty-First Judicial District (Forsyth County) implemented a consensus bail reform initiative in the form of a structured decision-making tool for magistrates and judges when making bail decisions. Some key features of the tool include:

  • creating a presumption for a condition other than a secured bond for Class 2 and 3 misdemeanors;
  • providing screening factors to identify individuals charged with Class 1 and A1 misdemeanors and Class F-I felonies who can safety be released pretrial;
  • affording no special presumption or screening for those charged with Class A-E felonies; and
  • embedding within the decision-making process the statutory requirement that conditions other than a secured bond must be imposed absent a risk of non-appearance, injury to any person, or interference with the criminal proceeding.

The new decision-making tool was developed by a stakeholder team that included judges, prosecutors, public defenders, clerks, magistrates, law enforcement leaders, and others. One of the working group’s primary goals was to reduce pretrial detentions of individuals who do not pose a pretrial risk but are detained solely due to inability to pay bail. The UNC School of Government Criminal Justice Innovation Lab supported stakeholders in the development and implementation of the new tool and, with support from local stakeholders, is conducting an empirical evaluation of its impact. We recently released a report (here) from the first year of the evaluation. This post summarizes key findings.

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North Carolina’s First Appearance Process Amended for Second Time in this Legislative Session

In this earlier blog post, I discussed changes made to North Carolina’s first appearance process, to be effective for criminal processes served on or after December 1, 2021. Additional amendments have been made in new legislation.

In Session Law 2021-182 (S183), Section 2.5.(a) revised G.S. 15A-601 as previously amended by S.L. 2021-138.

Defendants charged with misdemeanors and in custody to get first appearance

This amendment does not affect a significant change made by S.L. 2021-138–the expansion of first appearance to include defendants charged with misdemeanors who are in custody. Under current law, only criminal defendants with felony charges are required to get first appearance.
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Grappling with Juror Discrimination, 35 Years After Batson v. Kentucky

Note from John Rubin: I regret to report that Emily Coward is leaving the School of Government. In her nine years at the School as part of our Public Defense Education group, Emily co-authored our defender manual, Raising Issues of Race in North Carolina Criminal Cases; directed the North Carolina Racial Equity Network, a program providing a series of trainings for interested North Carolina defenders; and became a national expert in, among other areas, efforts to address racial disparities and bias in jury formation and selection. The good news is that Emily is launching the Inclusive Juries Project (IJP), which will partner with lawyers, scholars, students, court actors, and community members on initiatives aimed at ensuring fair and inclusive juries in North Carolina and nationally. Through research, scholarship, consulting, and educational initiatives, IJP will contribute to jury reform efforts, develop tools and strategies to address juror discrimination, and work to ensure the constitutional promise of the American jury system. We are grateful for Emily’s many contributions while at the School of Government and wish her all the best in her new endeavors.

A Glynn County, Georgia jury will soon determine the fate of Gregory McMichael, Travis McMichael, and William Bryan for their roles in the killing of Ahmaud Arbery in Brunswick, Georgia last year. You may have read that the defense attorneys struck eight of the nine, or 88%, of all eligible black jurors. If you haven’t followed the case, the defendants are white, and the victim, Mr. Arbery, was black. Mr. Arbery was out jogging when he was pursued, cut off, and killed by the defendants in their trucks. The jury hearing the case is comprised of 11 white jurors and one black juror; all four alternates are white. Black jurors are underrepresented on this jury in relation to their representation in the county, as 26.6% of Glynn County residents are black. Continue reading

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Legislative Changes to Required Mental Health Assessments Before Entering a Delinquency Disposition: New Provisions of G.S. 7B-2502

This is the third in a series of blogs about the changes contained in Session Law 2021-123. It summarizes the new requirement for court ordered mental health assessments, including a new care review team process.  (see Raise the Age Legislative Changes  and From 6 to 10: New Minimum Age for Juvenile Delinquency and Undisciplined Jurisdiction for previous blogs about the other provisions in S.L. 2021-123).

A steady stream of appellate caselaw,  beginning with  In re E.M., 263 N.C.App. 476 (2019), established that  G.S.7B-2502(c) requires the trial court to refer a juvenile who is adjudicated delinquent to the local management entity (LME) prior to ordering a disposition when there is any amount of evidence that the juvenile has a mental illness. The purpose of the referral is for the LME to conduct an interdisciplinary evaluation and mobilize resources. Beginning with petitions filed on December 1, 2021, this statutory mandate is changing. The court will be required to order mental health assessments under different circumstances and, in some cases, to order a care review team after the assessment is completed. Continue reading

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News Roundup

Last September, Henderson County Sheriff’s Deputy Ryan Hendrix was killed in the line of duty after being shot while responding to the scene of a car break-in that had escalated to a gun fight.  Earlier this year, the Henderson County Law Enforcement Center was renamed in his honor as the Deputy Ryan P. Hendrix Law Enforcement Center.  WLOS reports that during a ceremony at a Henderson County Commissioner’s meeting on Wednesday, the county presented Hendrix’s parents with his service weapon, an American flag that flew during his funeral, and the Fraternal Order of Police Supreme Sacrifice Medal of Honor.  Keep reading for more news.

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Case Summaries – N.C. Court of Appeals (November 16, 2021)

This post summarizes published criminal decisions from the North Carolina Court of Appeals released on November 16, 2021. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present. Continue reading

Category: Case Summaries | Tags:
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New Video on Working with Experts

I’m pleased to announce a new collaboration between the Public Defense Education team at the School of Government and Indigent Defense Services. I frequently get questions from defense lawyers about expert witnesses. Where do you find experts? How do you know which expert is right for your case? How do you go about getting funding for one in your case? How much information should I give the expert? Sarah Olson is of course the guru in this area, and she constantly provides defense attorneys with assistance on expert witness issues. As Forensic Resource Counsel for IDS, she teaches, writes, and advises on all things forensic. Her website is a wealth of information on experts, including a database of expert witnesses, sample motions for expert funds, and the latest news and developments in forensic disciplines. Together with Paul Bonner in the IT department of the SOG, we have put together a short video discussing the basic mechanics of getting and working effectively with an expert witness (Well, Paul put it together. Thanks again for his techno-wizardry!). If you are already comfortable with the process of working with experts, you may not learn much new. But for readers who are new to working with experts or just need a refresher, it provides a succinct discussion on best practices. Check it out on Vimeo here. Email us with any feedback at dixon@sog.unc.edu and sarah.r.olson@nccourts.org.