The Sixth Amendment provides that a person accused of a crime “shall enjoy a public trial.” This right is grounded in the belief that judges and prosecutors will carry out their duties more responsibly in open court than they might in secret proceedings as well as the notion that a public trial encourages witnesses to come forward and discourages perjury. See Waller v. Georgia, 467 U.S. 39, 46 (1984).
The right to open trial proceedings is not absolute; it operates as a strong presumption rather than a guarantee. The presumption may be overcome in rare cases by other compelling rights and interests, such as the defendant’s right to a fair trial, the government’s interest in limiting the disclosure of sensitive information, and the need to protect the personal dignity of a testifying and vulnerable witness. See id. at 45; Bell v. Jarvis, 236 F.3d 149, 167-68 (4th Cir. 2000) (en banc).
Before a judge may close criminal trial proceedings to the public, (1) the party seeking to close the courtroom must advance an overriding interest that is likely to be prejudiced by open proceedings; (2) the trial court must consider reasonable alternatives to closing the proceeding; and (3) the trial court must make findings that are adequate to support the closure. Waller, 467 U.S. at 48. Finally, even if justified, (4) the closure must be no broader than necessary to protect the identified interest. Id. This four-part inquiry is referred to as the Waller test.
The North Carolina Court of Appeals in the recent case of State v. Miller, COA22-561 ___ N.C. App. ___ (Feb. 21, 2023) considered whether a trial court’s order closing the courtroom satisfied the Waller test and thus the Sixth Amendment.
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After Andrew Brown, Jr. was shot and killed in Elizabeth City in April 2021 by law enforcement officers who were attempting to serve arrest and search warrants on him, several media entities attempted to obtain law enforcement agency recordings of the events. The companies sought the release of those recordings from the superior court pursuant to G.S. 132-1.4A(g) and filed their request six days after the shooting using a form petition created by the Administrative Office of the Courts, AOC-CV-270. A superior court judge denied the request based on his conclusion that release would create a serious threat to the fair and orderly administration of justice and that there was a need to protect an active internal or criminal investigation. After the Pasquotank County district attorney announced that he would not seek charges related to the incident, the companies filed another petition on form AOC-CV-270 requesting release of the recordings. A different superior court judge dismissed this later petition on the basis that the petitioners were required to file a regular civil action to obtain the release of recordings under G.S. 132-1.4A(g). The media companies appealed, and, in an opinion published last week, the Court of Appeals affirmed the superior court’s ruling. See In re Custodial Law Enforcement Agency Recordings, No. COA22-446, ___ N.C. App. ___ (2023).
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The North Carolina Supreme Court held last December in In re Custodial Law Enforcement Recording, 2022-NCSC-125, 881 S.E.2d 96 (2022), that a trial court abused its discretion in denying the City of Greensboro’s motion to modify restrictions imposed on the release of police body camera recordings. The trial court had previously entered an order that allowed members of the Greensboro City Council to view the recordings, but prohibited them from disclosing or discussing their contents to or with others. When the City sought reconsideration of that order on the basis that the restrictions prevented council members from carrying out their duties, the court summarily denied the motion after noting that council members had not “bothered to watch” the video. The Supreme Court determined that the trial court’s failure to consider the City’s reasons for seeking the modification, relying only on council members’ failure to watch the recordings while the restrictions were in place, demonstrated an abuse of discretion.
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The lead story in our December 9 news roundup was the Moore County power outage that resulted from the shooting of two local power substations. This week, several news outlets reported that another North Carolina power substation appears to have been damaged by gunfire. This time the damage occurred in Randolph County, was quickly contained, and no customers lost power. Local and federal authorities are investigating the incident. Continue reading →
The North Carolina Court of Appeals in State v. Eagle, 2022-NCCOA-680, ___ N.C. App. ___, 879 S.E.2d 377 (2022), considered whether the driver of a car that had already stopped when a patrol officer pulled in behind it with blue lights activated was seized within the meaning of the Fourth Amendment. The trial court had ruled that the driver was not immediately seized by the officer in this encounter. Instead, the court ruled that a seizure occurred only when the officer took Ms. Eagle’s driver’s license and returned to her patrol car. By this point, the officer had developed reasonable suspicion to believe Ms. Eagle was impaired. The Court of Appeals reversed, determining that Eagle was seized at the outset of this encounter. This post discusses State v. Eagle and its relationship to other recent seizure jurisprudence. Continue reading →
Tens of thousands of residences and businesses in Moore County began the week without electricity after two electrical substations in the county were damaged by gunfire on Saturday evening. Federal, state and local authorities are investigating, and CNN reports that authorities recovered nearly two dozen shell casings from a high-powered rifle at the scenes. Authorities believe the person or persons who damaged the substations knew what they were doing, but have not identified a motive for their actions. The News and Observer reported on widespread speculation that the attacks were related to a drag queen show in Southern Pines that began just as the substations were damaged, but CNN reports that investigators have no evidence connecting those events. Duke Energy completed repairs Wednesday, and nearly everyone’s power had been restored by Thursday morning. A reward of up to $75,000 is being offered to anyone who provides information leading to an arrest and conviction.
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The North Carolina Supreme Court held last week in State v. Diaz-Tomas, ___ N.C. ___, 2022-NCSC-115 (November 4, 2022), that neither a criminal defendant nor the court has the right to compel a district attorney to reinstate criminal charges that were dismissed with leave pursuant to G.S. 15A-932 due to the defendant’s failure to appear. The case arose in Wake County, where the district attorney’s office reportedly would reinstate misdemeanor charges dismissed with leave under G.S. 15A-932 only if the defendant agreed to plead guilty and to waive his or her right to appeal to superior court for trial de novo. As a result, Diaz-Tomas’s only option for ending the indefinite license revocation that was imposed for his failure to appear is to plead guilty to the driving while impaired charges that were dismissed with leave. This post discusses the state supreme court’s analysis and considers how it might apply in other circumstances.
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The role of artificial intelligence (AI) in American life was a hot topic of discussion at a conference for judicial educators that I attended earlier this week. The conference launched with a screening of the documentary Coded Bias, which explores disparities in the data that inform algorithms for a range of computerized functions from facial recognition to loan eligibility to insurance risk. The documentary highlights the vast amount of data collected and controlled by a small number of large U.S. companies and the lack of regulation governing its use. A panel of experts spoke after the screening about what judges should know about AI. Several of those topics related to its use in preventing, investigating and punishing crime. Continue reading →
The North Carolina Judicial College was founded in 2005 to expand the education and training the School of Government has provided for judicial branch officials since the 1930s. Judicial College funding has enabled the School to provide more courses for a growing court system and to offer training in small group, interactive educational settings.
Our latest annual report, which we are distributing to judicial officials in hard copy form, highlights new projects, publications, and personnel. We thought you might want to check it out.
I am particularly proud of last year’s additions to our already strong core of educational offerings and publications in juvenile law. Sara DePasquale published a new edition of Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina along with an updated Stages of Abuse, Neglect, and Dependency Cases. Jacqui Greene published a 2022 edition of Juvenile Justice Reinvestment Act: Implementation Guide. Together, they launched an Advanced Certification in Juvenile Justice, a program that allows district court judges presiding over juvenile court to pursue a new certification through an expanded course of study.
In addition, Meredith Smith and Jan Simmons published in March 2022 the North Carolina Clerk of Superior Court Manual Series, a robust web-based collection of reference materials examining the law related to judicial proceedings conducted by clerks. The online series replaces the traditional print manual with a resource that is searchable and easy to access and navigate on a laptop or mobile device.
As always, we are grateful to the Judicial Branch officials we are privileged to serve and to our partners at the Administrative Office of the Courts for our longstanding partnership and their ongoing support.
When a person is convicted of driving while impaired under G.S. 20-138.1, the person’s license is revoked for one year. G.S. 20-17(a)(2); G.S. 20-19(c1). (A person who has one or more prior convictions for an offense involving impaired driving may be subject to a longer period of revocation, depending on when those offenses occurred.) At the conclusion of that one-year revocation period, the person may seek to have his or her license restored by furnishing proof of financial responsibility and by paying a restoration fee of $140.25. G.S. 20-7(c1), (i1). The license then may be restored with a restriction prohibiting the person from operating a vehicle with an alcohol concentration of 0.04 or more at any relevant time after the driving. G.S. 20-19(c3). That restriction, listed on the driver’s license as Restriction 19, remains in effect for three years. This post addresses how such a restriction is enforced and the consequences for a substantiated violation. Continue reading →