Category: Procedure

In the wake of the April 21 killing of Andrew Brown, Jr., in Elizabeth City, North Carolina, I have fielded several media inquiries about our body cam law and the judge’s ruling limiting access to the footage about the shooting. With the help of the School of Government’s public records expert, Frayda Bluestein, I learned several things about our law. Below are a few that stand out to me. (You can read Frayda’s thorough analysis of the body cam law here and a discussion by Jeff Welty of a 2019 amendment to the law here.)

More than 50 percent of adults in North Carolina have received at least one dose of the COVID-19 vaccine, and more than 43 percent of NC adults are fully vaccinated. COVID-19 cases have declined precipitously since a January peak of more than 15,000 positive tests on a single day, with daily cases now averaging under 2,000. Governor Roy Cooper has responded to these positive trends by lifting outdoor mask restrictions and increasing mass gathering capacity limits. The Governor has said if these trends continue, he plans to lift mandatory social distancing, capacity, and mass gathering restrictions by June 1.

Courthouse personnel, charged with ensuring that courts remain open and that justice is administered without delay, were designated as frontline essential workers and thus received early access to the COVID-19 vaccine. Many court officials are among the group of fully vaccinated North Carolina adults.

Recognizing these positive trends and the judicial branch’s constitutional obligations, Chief Justice Paul Newby entered an order on Friday, effective today, extending and modifying certain pandemic-related emergency directives, while allowing other directives to expire.

Emergency Directives 2, 3, 5, 11, 14, 15, and 21 remain in place (as modified) for an additional thirty days, expiring on June 6, 2021. Emergency Directive 8 (which allowed a chief district court judge to restrict the hours and times at which magistrate-officiated marriage ceremonies were conducted) and Emergency Directive 12 (which required each senior resident superior court judge to ensure that certain public health protocols, including the marking of six-foot intervals, the establishing of maximum occupancy, and the cleaning of public areas, were followed for each facility in his or her district) were not renewed and expired yesterday.

The renewed directives are described in further detail below.

In my previous post, I wrote about the importance of and legal support for inquiring into prospective jurors’ perspectives on race and racial bias, which may include the Black Lives Matter movement. Let’s imagine that a potential juror expresses a favorable opinion of Black Lives Matter and also states that she can remain impartial and follow the judge’s instructions. If there is an attempt to remove that juror from the pool for cause based on her Black Lives Matter support, should it be sustained? Would it violate Batson to strike a juror on this basis? This post considers those questions.

Yesterday, as you all surely know, a Minneapolis jury returned three guilty verdicts in the criminal trial of former Minneapolis police officer Derek Chauvin for the murder of George Floyd. It is hard to overstate the magnitude of this trial. Many years from now, we may remember where we were when we received news of the verdict. It is a complex, emotional moment for a country traumatized and, to a certain extent, transformed by the horrifying video of George Floyd’s death last May. Tensions have been high in Minneapolis. Thousands of National Guard troops and law enforcement officers patrolled the city, and in-person school was preemptively cancelled this week in anticipation of the response to the trial’s outcome.

During the COVID-19 pandemic, criminal court systems moved to virtual proceedings to maintain essential court operations while minimizing the spread of COVID-19. To understand more about that transition and the lessons it holds for the future, we surveyed North Carolina trial judges, prosecutors, defenders, and clerks of court about virtual court. Our survey included questions about changes to court proceedings during the pandemic, the benefits of and concerns about virtual court, best practice suggestions for virtual proceedings, support for various virtual proceedings, experiences with using various technology platforms, and other aspects of virtual proceedings. We received responses from 182 people (Figure 1) from all 100 North Carolina counties.

Figure 1. Survey Respondents’ Current Role in the Criminal Justice System

Our full report is available here. In this post we summarize some top line results.

I am happy to announce the completion of the 2020 Edition of my online guide to expunctions and other relief from a criminal conviction in North Carolina. It took me a while to dissect and incorporate all the changes into the previous, 2018 online edition. (It would have taken far longer to update the guide without the patient and painstaking work of Owen Dubose of the School’s publications division.) If I missed anything or got anything wrong, please let me know. Here is what you’ll find in the new edition.

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.

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.