Chief Justice Newby’s latest order extending emergency directives issued in response to the COVID-19 pandemic became effective on Saturday. This post reviews the order and the directives therein, which have been extended for 30 days. Continue reading
Category Archives: Procedure
Every practicing attorney and judge has by now likely seen the video of the Texas attorney who appeared at a court hearing conducted via Zoom in the form of a fluffy, white kitten. “I’m here live. I’m not a cat,” has emerged as the mantra of the week. The enthusiasm with which the recording has been shared reflects both the ubiquity of web-based hearings and the technological mishaps that can derail them. But technology is not the only thing that can go awry in a remote proceeding. Sometimes the problems are more fundamentally human, arising from behaviors that, were they committed in the courtroom, might lead to a finding of direct criminal contempt. Repeatedly talking over a judge or another litigant, arguing with a judge after having been asked to be quiet, cursing at a judge or another person present, using a racial slur, or appearing in a state of undress are examples. When a person engages in this sort of behavior in a remote proceeding, may the judge summarily punish the act as direct criminal contempt? Or must the judge issue an order to show cause and address the contemptuous behavior in a subsequent proceeding?
On Friday, Chief Justice Paul Newby entered an order extending the time for filing motions to set aside and objections to motions to set aside in bail bond forfeiture proceedings. Any such motion or objection due on or after April 14, 2020 and before or on February 27, 2021 will be timely filed if filed before the close of business on March 1, 2021.
Justice Newby’s January 29 order operates to further extend deadlines that were first extended by Chief Justice Beasley last April and that were re-extended by orders issued in September, November, and December. I thought I’d take a minute this morning to review the statutory procedures affected by these extensions.
One of the last public events I attended before the pandemic upended life as we knew it were oral arguments before the United States Supreme Court. The week I was there turned out to be the last week of in-person oral arguments before arguments first were postponed and later resumed by teleconference. The Supreme Court took the long view of this interruption, noting that it was not unprecedented as the court had postponed arguments in October 1918 because of the Spanish flu epidemic and in 1793 and 1798 because of yellow fever outbreaks. Notwithstanding the change in procedures, the work of the high court — like the work of our state courts — continues. That work includes review in several criminal cases during its 2020 term.
Listed below are the principal criminal law cases currently before the Court, with a link to the docket entry for each case, followed by the Questions Presented. If telephonic oral argument has been held, the entry includes a link to the transcript of that argument.
Last week, Chief Justice Paul Newby entered an order extending and modifying some of the emergency directives previously imposed by former Chief Justice Cheri Beasley. Chief Justice Newby’s order (issued January 13, 2021 and effective January 14, 2021) allowed other emergency directives to expire. This post reviews the latest emergency directives as well as recent leadership changes affecting the courts.
As jury trials resume across the state, many criminal courts will soon confront the issue of whether to permit State’s witnesses to wear masks while testifying. CDC guidance suggests that there can be substantial health risks to allowing unmasked testimony in the confines of a courtroom, but as I explore below, the allowance of masked testimony presents its own significant constitutional risks.
Today Chief Justice Cheri Beasley entered an order halting most types of court proceedings due to the rising levels of COVID-19. The order was expected. The Chief Justice and McKinley Wooten, director of the Administrative Office of the Courts (AOC), had issued a memorandum to judicial branch employees on Friday notifying them that the order was coming. The memorandum stated that more than 80 North Carolina counties are experiencing substantial or critical community spread of the virus and that the recent surge of cases and hospitalizations had strained court operations. It further noted that 53 counties had reported court closures during the pandemic, some more than once, and that 11 counties had reported closures in the past week. Today’s order reinstitutes Emergency Directive 1, which previously had expired on May 30, 2020, and extends and modifies other emergency directives. The provisions of today’s order, discussed in more detail below, expire on January 13, 2021.
Yesterday, Chief Justice Cheri Beasley entered an order further extending the time in bail bond forfeiture proceedings for the filing of motions to set aside and objections to motions to set aside. The deadline for filing these motions and objections has been extended since April 14, 2020 in response to the public health threat posed by the COVID-19 outbreak. Motions and objections due to be filed on or after April 14, 2020 and before or on December 30, 2020 now may be filed until close of business on December 31, 2020. To implement the extension, the order stays until after December 31, 2020 any entry of final judgment of forfeiture or the granting of a motion to set aside due to the district attorney or board of education’s failure to file a timely written objection.
Last month, the Chief Justice entered an order extending previously entered emergency directives (discussed here), which now expire December 14, 2020. If those emergency directives are again renewed, we will be sure to note it here.
Last week, the North Carolina Sheriff’s Association released a 31-page Report on Law Enforcement Professionalism recommending numerous law enforcement reforms. The report, created by a working group formed after the killing of George Floyd and the public outcry for policing reform that followed, is part of “an effort to create a law enforcement profession that will not tolerate racism and excessive force by law enforcement, and that will hold North Carolina law enforcement to a high standard.” (Report at 5.) Changes are recommended for officer certification and de-certification, training, agency accreditation, use of force policy and data collection, and recruiting and retention. The document, which, among other things, contains the most comprehensive description of the training and education requirements for law enforcement officers I’ve ever seen, is worth reading in its entirety. This post focuses only on one aspect of the report: recommendations that would enable hiring authorities, certifying commissions and state prosecutors to learn of misconduct by officers, including untruthfulness, that would impair the officer’s credibility as a witness in criminal prosecutions and which must be disclosed to the defense
A few months ago, Jamie Markham summarized the North Carolina Supreme Court’s decision in State v. Capps, 374 N.C. 621 (2020), affirming the procedure used by the state to cure a defect with the name of the victim in larceny and injury to personal property charges. The higher court’s decision reversed the Court of Appeals ruling in State v. Capps, 265 N.C. App. 491 (2019), a case that Jeff Welty blogged about here.
The more recent Capps case is one that I have found myself mentioning over and over again during presentations on pleadings, amendments, and legal updates, so I thought we should close the loop on those earlier blog posts by digging a little deeper into its holding. Procedurally, Capps is a significant and helpful case for the state, but it remains to be seen how one aspect of the decision will be reconciled with existing case law.