On Jan. 7, 2020, the Court of Appeals decided State v. Schalow (“Schalow II”), ___ N.C. App. ___, 837 S.E.2d 593, temp. stay allowed, ___ N.C. ___, 837 S.E.2d 123 (Jan. 27, 2020), ruling that the State’s third prosecution of the defendant was vindictive and violated the rules for joinder of offenses. I previously wrote about the Court of Appeals decision in Schalow I regarding a double jeopardy issue (on which the defendant also prevailed), here. The vindictive prosecution holding of Schalow II is itself significant, and I encourage everyone to read the opinion in full for that part of the case alone. In this post, though, I wanted to focus on the joinder issue. This issue in the Schalow II opinion represents the first time that our appellate division has ever granted relief for a joinder of offenses violation. Continue reading
Category Archives: Procedure
Executive Order 118. Governor Cooper issued Executive Order 118 on Tuesday, directing bars to close and restricting restaurants to selling food only for carry-out, drive through, delivery, and onsite consumption in outdoor seating areas, subject to mass gathering seating restrictions. Restaurants are broadly defined to include permitted food establishments, cafeterias, food halls, dining halls, food kiosks at airports and shopping centers or educational institutions, food courts, and private or members-only clubs where food and beverages may be consumed on premises.
The order does not affect the sale or distribution of prepared food by grocery stores, pharmacies, convenience stores, gas stations, or charitable food distribution sites. It does, however, bar sit-down food or beverage services within those facilities.
Note: The same day this order was issued, the Secretary of the Department of Health and Human Services (DHHS) entered an Order of Abatement of Imminent Hazard that restricted restaurants to carry-out, drive-through, and delivery. The abatement order did not permit onsite consumption in outdoor eating areas. As explained in this frequently asked questions document, restaurants thus were required by the DHHS order to close all seating areas.
Legal authority. During a state of emergency, the Governor may impose by declaration certain prohibitions in the emergency area. G.S. 166A-19.30(c). The Governor has such authority if he or she determines that local control is insufficient to protect lives or property because, for example, the emergency crosses jurisdictional boundaries and local measures are conflicting or uncoordinated in a way that severely hampers protection efforts. Id. The Governor also may take such action when the scale of the emergency exceeds the capabilities of local authorities to cope with it. Id.
When the Governor acts pursuant to this authority, he or she may impose any of the types of prohibitions that local governments may impose under G.S. 166A-19.31. Among those types of prohibitions are prohibiting or restricting the operation of business establishments and other places to or from which people may travel or at which they may congregate. G.S. 166A-19.31(c)(2).
As with Executive Order 117, the Governor has directed that the provisions of Executive Order 118 be enforced by state and local law enforcement officers. Violation of such an order is a Class 2 misdemeanor.
Extension of deadlines. Earlier today, Chief Justice Cheri Beasley entered an order extending filing deadlines and limitations periods in certain cases. The Chief Justice entered this order pursuant to G.S. 7A-39(b)(1), which permits her to extend deadlines and limitations periods upon a determination that catastrophic conditions exist or have existed in one or more counties of the state.
Today’s order provides that any pleading, motion, notice, or other document or paper that was or is due to be filed in any county on or after March 16, 2020 and before the close of business on April 17, 2020 in a civil action, criminal action, estates, or special proceeding is timely filed if filed before the close of business on April 17, 2020.
The Chief Justice further ordered that all other acts that were or will be due to be done in any county on or after March 16, 2020, and before the close of business on April 17, 2020, in civil actions, criminal actions, estates, and special proceedings are timely if done before the close of business on April 17, 2020.
The order does not apply to documents and papers due to be filed or acts due to be done in the appellate courts.
In late 2019, bail litigation came to North Carolina. I have written before about successful federal bail litigation in other jurisdictions, including a decision holding that the bail system in Harris County, Texas was unconstitutional. Similar litigation is now underway in our state, and appears to be headed towards a consent preliminary injunction. Continue reading →
My colleagues and predecessors here at the School of Government have written about video evidence many times over the years, summarizing the basic rules and significant cases in posts available here, here, here, here, and here.
Recently, though, I’ve been getting questions about a relatively new but increasingly common type of video evidence: high-tech, app-controlled, and remotely stored videos taken by automated devices ranging from doorbell cameras to wifi-enabled, cloud-connected, teddy bear spy cams. Do the old rules still work the same way for these new video tools? Is it substantive or illustrative evidence? If it’s substantive, how is it authenticated? Is a lay witness qualified to testify about how these cameras work? Does the proponent need the original video? Come to think of it, what is the “original” of a video that exists only as bits of data floating somewhere in the cloud…?
This post summarizes published criminal decisions from the Fourth Circuit Court of Appeals in February, 2020. Decisions of interest to state practitioners will be posted on a monthly basis. Previous summaries of Fourth Circuit criminal and related decisions can be found here. Continue reading →
Once upon a time in the North Carolina courts, a prayer for judgment continued (PJC) could have a positive impact on a person’s future. Essentially, the prosecution would pray—that is, move—for entry of judgment, and the judge would continue the prayer and withhold judgment rather than granting the prayer and entering judgment. See State v. Griffin, 246 N.C. 680 (1957) (discussing procedure). Older cases recognized that a judge’s exercise of his or her authority to defer judgment in the interest of justice did not constitute a conviction. A PJC was thus treated like a prosecutor’s exercise of discretion in deferring prosecution. The deferral not only avoided imposition of sentence in the criminal case; it also meant that the matter did not count as a conviction in later, collateral proceedings. See Barbour v. Scheidt, 246 N.C. 169 (1957) (discussing treatment of PJCs). The Court of Appeals’ February 18, 2020 decision in Mace v. North Carolina Dept. of Insurance provides a reminder that times have changed and a PJC usually provides no protection from the collateral consequences of a conviction. Continue reading →
We previously produced information about the prevalence of secured bonds at the state and county level. In this report we update that work with 2019 data and look at changes in the imposition of financial and non-financial conditions in North Carolina. A few key takeaways from our research: Continue reading →
A “peremptory strike” is a tool used by lawyers to exercise control over who is seated on a trial jury. When selecting a jury, attorneys may use peremptory strikes to remove a certain number of potential jurors for any reason at all, other than race and gender. Since lawyers typically do not have to explain the reasons behind their peremptory strikes, they “constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.” Batson v. Kentucky, 476 U.S. 79, 96 (1986), quoting Avery v. Georgia, 345 U.S. 559, 562 (1953). In the 1986 case of Batson v. Kentucky, the United States Supreme Court reaffirmed that peremptory strikes motivated by race violate the Equal Protection Clause; ever since then, challenges to racially motivated jury selection have been referred to as “Batson challenges.” Batson v. Kentucky, 476 U.S. 79 (1986). (For an excellent telling of James Batson’s story and the legacy of this decision, check out the More Perfect Podcast, Object Anyway.) Continue reading →
As Prof. Shea Denning mentioned in her post yesterday, the School of Government and the Conference of District Attorneys jointly presented the Practical Skills for New Prosecutors course last week. In addition to covering relevant criminal law and ethical rules, the program also addressed the nuts and bolts of running a courtroom and moving the docket — complex tasks that present unique challenges of their own.
One issue from the mechanics and procedure realm that caught my attention was a point that came up during the session on courtroom interpreters and other language services. In the hectic and fast-paced world of district court, how should attorneys and the court respond to a person who says that he or she does not want an interpreter, but there is reason to believe that the person may actually need one? Conversely, what about when someone asks for an interpreter, but he or she seems able to communicate adequately without one? What are the standards and guidelines for deciding if an interpreter is required?
The capacity to transfer a juvenile matter to superior court as a result of the return of an indictment was added to the Juvenile Code as part of the law changes that raised the age of juvenile court jurisdiction. S.L. 2017-57 §16D.4.(e) as amended by S.L. 2019-186 §8.a. Never before had the indictment process been connected to delinquency matters in juvenile court. This new structure requires a finding in the juvenile matter after an indictment has been returned. It raises a range of questions about procedure and confidentiality. This post will review when indictment can be used to trigger the transfer process, highlight what is known and not known about the procedure that must accompany the new use of indictment in delinquency matters, and address the question of confidentiality of an indictment that is used to form the basis of a judicial finding in juvenile court. Continue reading →