When (and If) an Order for Arrest Should Issue after Dismissal to the Grand Jury

It is no secret that probable cause hearings are rare throughout North Carolina, despite clear provisions for conducting them in the general statutes. See G.S. 15A-606, 611-614. The reasons for their rarity have been set forth on this blog as far back as 2009. Prosecutors often point to the volume of felony cases moving through district court and the impracticality of conducting a mini-trial with “all the trappings of a full adversary hearing” in explaining why they routinely bypass the procedure. See State v. Lester, 294 N.C. 220, 224 (1978). However, skipping the PC hearing can create a gap, or bump, in the “regular” course of a criminal case, leading to various issues.

At the probable cause stage in district court, the defendant may waive the hearing, assert the right to a hearing and get one, or assert the right to a hearing and not get one. In this last scenario, the State, rather than engaging in the hearing, may choose to dismiss the case in district court and then recharge the matter in superior court by seeking an indictment. This practice is referred to as “voluntary dismissal to the grand jury” (VDGJ) or “dismissal for possible indictment.” The State’s bypassing of the probable cause hearing has never been deemed reversible error in North Carolina, as the defendant must demonstrate prejudice, which is rarely possible. See State v. Wiggins, 344 N.C. 18 (1993).

After voluntary dismissal to the grand jury, a crucial question arises as to whether an order for arrest (OFA) should issue upon indictment. The question is the subject of this blog post.

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News Roundup

Raleigh police are offering rewards for information leading to suspects in two unsolved hit and run cases from late last year, according to this piece. One of the incidents occurred near New Bern Avenue and South Raleigh Boulevard in the early morning hours of Nov. 10, 2023. The suspect in that case was driving a gray Dodge Charger. The other involved a pickup truck of an unknown make and model and occurred on Poole Road on the evening of December 16, 2023. The pickup sustained damage to its right headline (or ceiling cover). Both cases resulted in pedestrian fatalities. Raleigh police also intend to pass out flyers to local drivers soliciting information on the crimes. The reward amounts are not mentioned, but anyone with information can contact the Raleigh Police Department or Raleigh Crimestoppers. Read on for more criminal law news.

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New Project Supporting & Evaluating Implementation of Holistic Public Defense in North Carolina

In a new project launched in January 2024, the UNC School of Government Criminal Justice Innovation Lab (the Lab) is partnering with the North Carolina Office of Indigent Defense Services (IDS) to support stakeholder interest in using social workers as part of a holistic public defense team. The project has two components: a workshop for Chief Public Defenders and an implementation study.

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Does a Magistrate Have the Discretion to Refuse to Issue Criminal Process When Probable Cause Exists?

If I had to answer the question in the title of this post in the briefest possible way, I would say: not usually. But there’s a lot of uncertainty and nuance packed into that short answer. This post gets into the details.

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News Roundup

A man convicted for a 2015 killing in New York has been released and his indictment has been dismissed solely because he was held at the wrong prison.

Terrence Lewis was serving a sentence of 22 years to life for second-degree murder in a maximum-security prison. In a February 5 decision, Judge Stephen Miller wrote that Monroe County, NY officials violated the federal “Interstate Agreement on Detainer’s Law” when they sent Lewis back to a federal prison in Pennsylvania—where he was serving a sentence for a drug conviction—as he awaited trial in the New York murder case after his indictment. The agreement says a prisoner charged with an unrelated crime in another jurisdiction must be held and tried in that jurisdiction before being returned to the place of their original imprisonment, or else the case in the other jurisdiction must be dismissed.

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Book Review: The Other Dr. Gilmer

It may have something to do with my day-job, but in my free time I generally prefer to read fiction. I made an exception recently for Dr. Benjamin Gilmer’s 2022 nonfiction work, The Other Dr. Gilmer: Two Men, A Murder, and an Unlikely Fight for Justice. I’m glad I did.

The book is a page-turning memoir and legal thriller chock full of North Carolina people and places (Governor Cooper even has a cameo). It also is an indictment of how American society treats (or leaves untreated) the mentally ill, particularly those who are imprisoned.

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Criminal Law Faculty Position Now Available

Have you ever thought that it would be interesting to be a member of the School’s faculty? To write, teach, and consult about criminal law and procedure? And to do so with a focus on applied scholarship that makes a real difference? Then you might be interested in the job described later in this post. Or maybe you know someone for whom the position might be perfect. Read on to learn more, and as a bonus, I’ll mention a second job opening at the end of the post – one that has nothing to do with criminal law at all.

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News Roundup

Jennifer Crumbley was convicted on Tuesday of four counts of involuntary manslaughter, one count for each student her 15-year-old son Ethan shot and killed at his Michigan High School in November 2021. The pistol Ethan used to kill his classmates was a gift from his parents. The New York Times described the trial, in which the State focused on warning signs they said Ms. Crumbley ignored, as a “significant test case” for prosecutors. While parents whose children have carried out gun violence have pled guilty to less serious charges in other state cases, Ms. Crumbley faces a maximum sentence of 15 years in prison for the four counts of which she was convicted.

Ms. Crumbley’s husband and Ethan’s father, James Crumbley, will be tried in March. Ethan Crumbley previously pled guilty to multiple charges, including first degree murder, and is serving a life sentence without the possibility of parole. He did not testify at his mother’s trial.

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North Carolina Governor’s 2024 Executive Order on Reentry

On January 29, 2024, North Carolina Governor Roy Cooper signed an Executive Order joining the national Reentry 2030 initiative. What’s the Reentry 2030 initiative? According to the Reentry 2030 website, the initiative is being led by the Correctional Leaders Association, The Council of State Governments Justice Center, and JustLeadershipUSA. It describes the program as an … Read more

News Roundup

This week Governor Cooper signed an executive order to improve reentry services throughout the state. The order aims to enhance coordination between agencies and increase access to post-release employment opportunities and programs such as work release. With the announcement of the order, North Carolina became the third state (joining Alabama and Missouri) to sign on to Reentry 2030, a national initiative with ambitious goals. The goals include increasing the number of high school and post-secondary credentials earned by incarcerated people by 75%, increasing the number of post-secondary degrees that are available in prisons by 25%, reducing the number of incarcerated people being released homeless by 50%, and allowing every person who is eligible to apply for Medicaid before release. The executive order also calls for more local reentry councils.

Read on for more criminal law news.

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