Higher Level Felony Defense at the SOG

Last week I had the pleasure of hosting around 40 attorneys for the second part of a new course, Higher Level Felony Defense. The first part, held in early 2018, focused primarily on preparing a case for trial. We also included a deep dive into jury selection. This second part focused on common issues in serious felony cases as well on sentencing advocacy. As a new program, I’m sure it will evolve, but I thought the first iteration was promising and wanted to talk briefly about the program and our goals.

Why the New Course?

The Office of Indigent Defense Services and the Indigent Defense Education team here at the SOG identified a need to provide more training on high-level felony defense, and this training was the brainchild of our effort to meet that need. Consider the structure of our existing trainings. For attorneys new to criminal defense in North Carolina (or just wanting a refresher), we offer the Misdemeanor Defender course each fall. Then, for attorneys transitioning from district to superior court, we offer the Felony Defender program. The Felony Defender course is offered each February—and this year’s course is coming right up Feb. 20-22. [If you’re interested in attending, check out the agenda for this year’s program here or go ahead and register here.] Our week-long trial school is each summer and offers participants the opportunity to bring a real case to prepare for trial. Other organizations do a great job of providing trainings on capital and noncapital murder cases, but there was nothing in our wheelhouse that was explicitly designed to prepare attorneys for the transition from low and mid-range felony offenses to higher level (but non-capital) charges. The High Level Felony course is intended to fill that gap and to complement our existing indigent defense education trainings.

Why Focus on Sentencing?

All of our multi-day trainings dedicate time to hands on small group exercises and discussions. The small group work in the earlier part of the High-Level Felony course focused on jury selection; the workshops in the second part focused on sentencing advocacy. Jury selection was an easy choice. We consistently receive requests to provide more training on jury voir dire, and my anecdotal sense is that jury selection is among the most challenging and critical parts of a trial for most attorneys.

Sentencing advocacy is perhaps less obvious of a choice but is as or even more important, with over 95% of cases resolved by plea according to a 2017 report by the North Carolina Sentencing Commission (available here). Part of the impetus for the training was to equip defenders with the tools necessary to make a compelling case for a reduced sentence to the court, either after trial or more commonly on a plea. Another was that conducting early mitigation investigation can pay other dividends—the same information used to make a compelling sentencing argument can also be used to advocate for pretrial release or in plea negotiations.

Another reason is more basic: sentencing advocacy often gets left by the wayside in the course of preparing for a trial or even for a plea. Most practitioners have seen (or conducted) the hurried (and harried) preparation for sentencing right after a trial or plea. When we’ve asked judges speak to defenders about best practices, a consistent concern is that defense lawyers are not sufficiently prepared to answer basic questions about the defendant at sentencing. I think this phenomenon is explained in part due to the perception that clients are “stuck” with their box on the grid; therefore, it isn’t necessary to do a lot of preparation before accepting a plea and getting a sentence within that block. This training was, in part, an attempt at changing that perception among defenders in the state.

Miss the Program?

We plan to offer the program again in 2019. Next time, we intend to run the program as a continuous two to three day program instead of breaking it into two parts. It is currently scheduled for November 12-14, 2019. Look for the announcement in early fall. If you just can’t wait until then, you can review the training materials from this past course on the NC IDS website, here. The materials from this program are not yet uploaded, but they will be within a week or so. Materials from our past programs can be found at that link as well.

Thanks to Everyone

My sincere thanks to the program faculty—without the volunteer efforts of the lecturers and workshop leaders, the program wouldn’t have been possible. Likewise, thanks to the program managers and information technology folks at the SOG—they work hard behind the scenes to ensure that all of our courses run smoothly. I appreciate their efforts. The North Carolina Office of Indigent Defense Services was, as usual, instrumental in supporting the training—in addition to providing financial support, we borrowed several workshop leaders from the central office. A special recognition goes to David Knutson, director of training for the Minnesota public defender system for his input. David was kind enough to allow me to participate in his sentencing advocacy seminar in Minnesota last March, where I experienced his intensive, multi-day course on sentencing advocacy. I stole adapted more than one idea from David’s program and gained a new appreciation of North Carolina winters in the process.

Finally, I want to thank all the participants. We had a great mix of experience among the attendees, and they were uniformly engaged with the sessions and workshops. I hope all that attended enjoyed the program as much as I did. If so, tell your friends and colleagues about it and encourage them to attend in November. If you’re interested in training in another area, please leave a comment below or email me directly.