North Carolina Criminal Law NC Criminal Law

The Chief Justice entered two new emergency directives last week, requiring people in court facilities to wear face coverings and directing senior resident superior court judges to craft a plan for jury trials to resume in the fall.

Face coverings. Face coverings have been required in most public spaces since June 26, 2020 pursuant to Executive Order 147. That gubernatorial order did not, however, apply to court facilities. As a result, requirements for face coverings in courthouses have varied among judicial districts. The Chief Justice created uniformity last Thursday when she entered an emergency directive requiring people in court facilities to wear face coverings while they are in common areas of the facility and when they are interacting with others.

McKinley Wooten, director of the Administrative Office of the Courts (AOC), entered guidance in a July 17, 2020 memorandum clarifying that common areas are areas available for use by more than one person, such as lobbies, hallways, courtrooms, elevators, stairways, breakrooms and bathrooms.

The Chief Justice’s directive requires clerks of superior court to post a notice of the face covering requirement at the entrance to every court facility in their counties.

Exceptions. The face covering requirement for court facilities does not apply to a person who (1) cannot wear a face covering for health or safety reasons, (2) is actively eating or drinking, (3) is communicating with a person who is hearing impaired in a way that requires the mouth to be visible, (4) is temporarily removing a face covering to secure medical services or for identification purposes, or (5) is under eleven years of age.

Wondering about the general prohibition on mask wearing? The wearing of face masks in public areas has long been prohibited by criminal statutes adopted to regulate the activities of unlawful secret societies. Thus, G.S. 14-12.7 and 14-12.8 generally prohibit the wearing of face coverings that conceal the wearer’s identity on public ways and on public property. Exceptions apply for, among other things, traditional holiday costumes and for people engaged in jobs where masks are worn for physical safety or because of the nature of the profession. G.S. 14-12.11. In May, the General Assembly enacted an additional exception for a person wearing a mask to ensure the person’s physical health or safety or the physical health or safety of others. See S.L. 2020-3 (S 704). That exception was set to expire August 1, 2020, but the legislature recently made the change permanent in S.L. 2020-93 (S 232).

Jury trials. The Chief Justice entered Emergency Directive 10 on June 20, 2020, providing that no jury trials may be convened for the next thirty days.  She noted then her intention to extend that directive through at least the end of July. The Chief Justice in Thursday’s order expressed her intention to extend Emergency Directive 10 until at least the end of September. She stated that while face coverings “will help decrease the spread of COVID-19 in our courthouses, more precautions and planning are necessary before jury trials may resume.”

Emergency Directive 22 requires each senior resident superior court judge, in consultation with other local officials, to craft a plan for the resumption of jury trials in his or her judicial district. If a chief district court judge determines that a separate plan for jury trials in district court is needed, he or she is directed, in consultation with other local officials, to craft that plan.

The plans. Each jury trial resumption plan must ensure that court operations comply with the Chief Justice’s emergency directives and must be informed by the AOC’s guidance on best safety practices.

Each plan must include the following:

• a confirmation that each court facility and any alternate facility to be used for court operations is in compliance with each of the Chief Justice’s emergency orders;
• a plan for summoning and excusing jurors, which allows for as much of the process to be handled remotely as possible;
• a plan for conducting voir dire with social distancing;
• a plan for conducting trials with social distancing in the courtroom for all court participants, including the jury, and in the deliberation room;
•  a plan for daily screening of jurors, court personnel, attorneys, witnesses, and parties for COVID-19 exposure or infection;
• a plan for making face coverings available to jurors, court personnel, attorneys, witnesses, and parties; and
• a plan for responding in the event that a juror, defendant, attorney, witness, judge, or other courtroom personnel becomes symptomatic, tests positive for COVID-19, or has a known exposure to someone who has tested positive for COVID-19 during the trial.

Before jury summonses are issued, the senior resident must submit a copy of the plan to the Chief Justice. The plan, which must be promulgated by local rule or administrative order no later than September 1, 2020, must be approved by each of the following officials in the county in which jury trials are to be conducted:

• the chief district court judge;
• the clerk of superior court;
•  the district attorney;
• the public defender, or a criminal defense attorney chosen by the senior resident superior court judge in districts without a public defender;
•  the sheriff; and
• the public health director.