Latest posts in category Procedure on North Carolina Criminal Law Blog

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.

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.