Procedure

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May 1 Emergency Directives Require Continuances, Authorize Remote Proceedings, and Extend Time to Pay

Chief Justice Cheri Beasley entered an order on Friday, May 1, modifying and extending eight emergency directives previously issued on April 2 and April 16, 2020.  The Chief Justice’s April 2 order, in which noted that she fully expected to extend its directives for an additional 30-day period and that judicial system stakeholders should plan for the directives to last through May, presaged the current one. Emergency orders issued by the Chief Justice pursuant to G.S. 7A-39(b)(2) initially may endure for no more than thirty days, but may be extended for additional 30-day periods. Friday’s order was effective immediately and expires on May 30, 2020.

As before, three of the emergency directives are particularly significant in criminal cases.

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Ramos v. Louisiana and the Jim Crow Origins of Nonunanimous Juries

Ramos v. Louisiana, decided by the U.S. Supreme Court last Monday and summarized here, holds that the Sixth Amendment impartial jury guarantee gives defendants a right to a unanimous jury verdict in state trials. The case is making waves for reasons tangential to the dispute between the parties: in a dizzyingly split opinion, the justices argue more over the meaning of stare decisis (the court’s obligation to follow its prior holdings) than whether defendants in state courts may be convicted by a less-than-unanimous jury. This aspect of the opinion has been widely discussed (see analysis here, here, here, and here), and foreshadows the justices’ likely battle over an upcoming reproductive rights case. Since the divergent perspectives on stare decisis have been covered elsewhere, I will consider another issue that split the justices: the legal relevance of the nonunanimous jury law’s Jim Crow origins.

First, a pop quiz

Did North Carolina ever allow non unanimous jury verdicts in criminal trials? Read on for the answer.

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Preserving Motions to Dismiss for Insufficient Evidence

Earlier this month, the North Carolina Supreme Court decided State v. Golder, ___ N.C. ___, ___ S.E.2d ___, 2020 WL 1650899 (April 3, 2020). Before that decision, there were somewhat tricky rules about how to preserve appellate review of all issues in a motion to dismiss for insufficiency of the evidence. No more. The Golder decision clarifies that all sufficiency issues are preserved with a properly timed motion to dismiss at trial. This decision overrules a line of cases holding otherwise and simplifies the process of preserving sufficiency issues at trial for defense counsel. Read on for the details.

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Creative Sentencing in the Age of COVID-19

As the struggle to contain the COVID-19 crisis grinds on, including concerns about the possible spread of the virus in jails and prisons, there has been a renewed interest in finding alternatives to sentences that involve extended periods of incarceration. It will come as no surprise to regular readers of this blog that Jamie Markham has written about such alternatives many times over the years. But in light of the current health situation, I thought this would be a good opportunity to revisit some of those topics, collect them together in one post, and try to expand on a few of the suggestions and options.

I should also acknowledge that this post was prompted, at least in part, by the fact that I only recently learned about an unusual type of sentence known as the “Holbrook Holiday.”

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Filing Deadlines Further Extended to Combat COVID-19; Colloquy and Form Available for Remote Proceedings

Chief Justice Cheri Beasley entered an order yesterday extending until June 1, 2020 the time and periods of limitations for documents and papers due to be filed and acts due to be done in the trial courts. The Chief Justice previously had extended to April 17, 2020 the deadline for filings, periods of limitation and other acts. She further extended those deadlines based on predictions that late April “may be the apex of the [COVID-19] outbreak in North Carolina.”

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Capacity, Commitment, and COVID-19

The capacity-commitment process in criminal cases is complicated. It involves many moving parts in two different systems: criminal justice and mental health. How is the process bearing up in the COVID-19 era? Based on my conversations with the experts—lawyers, judges, and mental health professionals involved in these cases—the answer is surprisingly well. This post considers the various steps in the process and focuses on a concern common to many court proceedings these days: when does the defendant need to be present, in person or remotely?

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Case Summaries: Fourth Circuit Court of Appeals – March 2020

This post summarizes published criminal and related decisions from the Fourth Circuit Court of Appeals in March, 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.

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Schalow II and Dismissal for Failure to Join Offenses

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.

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Bars Shuttered, Restaurants Emptied, and Deadlines Extended to Combat Spread of COVID-19

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 … Read more

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Federal Lawsuit Challenges Alamance County NC’s Bail System

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.

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