For today’s post, I conducted a short interview with Tom Maher, the executive director of the Office of Indigent Defense Services (IDS), the statewide agency in North Carolina that oversees the provision of legal representation for indigent defendants in criminal and other cases. We talk about the recent raise in the rates for private assigned counsel doing high-level felony work, the status of public defense funding in North Carolina, and the importance of a robust system of indigent defense generally. Readers may be aware that I served as a private assigned counsel for many years before coming to work at the School of Government, and it’s a topic near and dear to me. Indigent defense is equally important for court actors and citizens of the state, and I hope you find the interview informative. It runs around 13 minutes, with minor edits for the sake of time and clarity. Click here to watch. Continue reading
Tag Archives: indigent defense
This post addresses three recurrent issues concerning eyewitness identification:
- When, if at all, is expert testimony about eyewitness identification admissible?
- When, if at all, is an indigent defendant entitled to funds with which to hire an expert on eyewitness identification?
- May jury instructions, rather than expert testimony, be used to inform the jury about factors relevant to the accuracy of an eyewitness identification?
This blog post has good news, bad news, and good news about Alyson Grine, who has served as the School’s defender educator for ten years. During that time, Alyson and I worked closely together on indigent defense education, and I wanted to write this farewell on the School’s behalf. The good news is that she is excited to start her new position this fall as an assistant professor at North Carolina Central University School of Law, and we are excited for her. You can reach her at firstname.lastname@example.org. The bad news is that she will be leaving the School, and to put it mildly we are sorry to see her go. Then again, the good news is that she leaves a remarkable record of accomplishments in indigent defense education, on which we can continue to build. What has she done in the past ten years? The more apt question is what hasn’t she done. Continue reading →
In 2015, the Office of Indigent Defense Services (IDS) asked the School of Government to conduct an online survey of how superior and district court judges view IDS’s administration of indigent defense in North Carolina. Last week, the School issued its report of the survey results, Trial Judges’ Perceptions of North Carolina’s Office of Indigent Defense Services: A Report on Survey Results (March 2016) (referred to below as the Report). The verdict? Judges have a positive view of IDS’s performance, overall and in several key areas, but the results include a few warning signs for indigent defense. Continue reading →
Emily Coward and I are glad to share a new resource with you: a reference manual entitled Raising Issues of Race in North Carolina Criminal Cases. If you are a person who likes to have a hard copy on the shelf, you can buy it here. Like our other manuals, it is available for free online at http://defendermanuals.sog.unc.edu. (The electronic platform has been retooled, and I think you will find that it has a nice look and is user-friendly.) Continue reading →
The Office of Indigent Defense Services (IDS) is studying data related to the disposition of seventeen types of misdemeanor charges during the 2009 fiscal year to determine whether decriminalization of these offenses might be an appropriate way to reduce the cost to the State of providing appointed counsel. Section 15.17 of S.L. 2009-451 directed IDS to consult with other court system actors regarding means of cutting costs, including the possibility of decriminalizing minor misdemeanor offenses for which jail sentences are rarely or never imposed. (The bill also directs IDS to study ways to improve the screening and processing of potentially capital cases, but this post focuses on the first directive.) The following types of charges are to be studied.
- G.S. 14-168.4: Failure to return property rented with purchase option
- G.S. 14-107(d)(1): Simple worthless check
- G.S. 20-34: Allow unlicensed person to drive
- G.S. 20-111(1): Driving or allowing another to drive an unregistered vehicle
- G.S. 20-28(a): Driving while license revoked (Not based on DWI)
- G.S. 20-111(2): Expired registration card/tag
- G.S. 20-7(e): Failure to comply with license restriction
- G.S. 20-7.1: Failure to notify DMV of an address change
- G.S. 20-57(c): Failure to sign registration card
- G.S. 20-111(2): Fictitious/canceled/revoked registration card/tag
- G.S. 20-7(a): License not in possession
- G.S. 20-7(a): No operator’s license
- G.S. 20-57(c): No registration card
- G.S. 20-313(a): Operate vehicle no insurance
- G.S. 20-141(j1): Speeding more than 15 mph over limit or over 80 mph
- G.S. 20-127(d): Window tinting violation
- G.S. 113-270.1B(A): Fishing without a license
Two of these offenses, driving while license revoked and operating a vehicle with no insurance, are Class 1 misdemeanors, punishable by up to 120 days imprisonment. The rest are Class 2 misdemeanors, with the exception of a first offense of fishing without a license, which is a Class 3 misdemeanor.
Ten of the above offenses are included on the traffic waiver list, and the fishing offense appears on the hunting, fishing, and boating waiver list. A defendant may resolve a waiver offense without having to appear in court by paying court costs and a designated penalty. Offenses for which court appearances may be waived generally are considered less serious than offenses for which a court appearance is required.
A court appearance currently is required for the following offenses to be studied:
- failure to return rental property,
- simple worthless check,
- driving while license revoked,
- display or possession of a fictitious registration card or tag,
- operating a vehicle without insurance, and
- speeding more than 80 miles per hour or more than 15 mph over the speed limit while driving more than 55 mph.
Of course, decriminalizing these offenses does not mean legalizing the conduct they currently regulate. Instead, any proposal that may result from the study presumably would recommend designating certain offenses as infractions, defined under G.S. 14-3.1 as noncriminal violations of the law. Because there is no right to counsel at state expense to defend against an infraction, decriminalization presumably would reduce IDS’s costs and result in a savings to the State.
IDS plans to circulate the study results among court system actors to determine whether there is consensus about decriminalizing any of the analyzed offenses.
Editor’s note: Shea provided the document pasted below, in which IDS describes the study
I’ve been involved in the New Prosecutors’ School this week, but the flow of criminal law news has been constant.
First, the News and Observer had an interesting story yesterday, available here, about the use of protective orders under the discovery statute. The details are a little hazy, but it appears that a protective order was entered in a Durham murder case to protect the safety of a witness. The witness’s statements seem to have contained exculpatory information, creating a conflict between the protective order, which allowed the statement to be withheld, and the state’s Brady obligations, which required the statement to be disclosed.
Second, the Constitution Project released a report arguing that, nationally, indigent defendants’ right to counsel is suffering from inadequate funding, excessive caseloads, and poorly organized indigent defense systems. The committee that issued the report was co-chaired by Rhoda Billings, former Chief Justice of the North Carolina Supreme Court, and School of Government professor John Rubin also contributed. The report’s available here. Interestingly, North Carolina has already adopted several of the measures recommended by the report, including creating a state agency to oversee indigent defense; as far as I could tell, the report’s main criticism that applies to North Carolina is that our public defenders are appointed by Senior Resident Superior Court Judges, arguably limiting their independence.
Third, the Obama administration just released some Justice Department memoranda authorizing the CIA to use waterboarding, sleep deprivation, stress positions, and other interrogation techniques with detainees. Story here. The author of the first memo, Jay Bybee, is now a federal court of appeals judge. But he’s also the subject of a DOJ ethics investigation, and some are calling for a criminal probe; he’s being represented, pro bono, by one of the nation’s largest law firms, as detailed here.
Finally, I’ll spare you a summary of the Domino’s pizza case from Conover. Suffice it to say that you can see more than you ever wanted to know about how certain employees prepared pizza on YouTube. Those employees are now facing felony charges as explained here.
A Chicago Tribune article, available here, states that an Illinois public defender recently moved to prohibit the state from seeking the death penalty against her client because the state does not have enough money to pay for the expert witnesses that she believes she will need at the penalty phase of the trial. Apparently, Illinois has a fund specifically for expert fees in capital cases, and the fund for the fiscal year has run dry with several months left to go. The public defender says that the experts she needs are “fed up” and refuse to accept more capital cases. The prosecution opposes the motion, and there’s been no ruling yet. I’ve blogged previously about the financial crisis and the death penalty — here — but the impact of the financial crisis on expert witnesses is a new angle, one with implications beyond the capital context. Could defense lawyers in North Carolina make a similar argument?
The short answer is, I doubt that such an argument would be viable now, but depending on what happens with the state budget, it could become so in the next few years. The Office of Indigent Defense Services pays for experts in cases involving indigent defendants, which is a huge proportion of all defendants in serious cases, including virtually all capital defendants. IDS doesn’t have a separate fund for experts, or even for capital cases — it has a single pot of money that it uses to pay experts, investigators, and court-appointed lawyers, in capital and non-capital cases alike. (IDS has a separate pot of money that it uses to pay public defenders.) To give a sense of scale, for the fiscal year ending in 2009, that fund contained about $85,000,000.
At the end of each fiscal year that ended in calendar years 2002 through 2006, the fund was millions of dollars in debt — often in the $5,000,000 to $10,000,000 range — meaning that all the money was spent and there were still unpaid bills outstanding from lawyers and experts. The result was that bills submitted by lawyers or experts in the last month or two of the fiscal year weren’t paid until the beginning of the next fiscal year. In the most recent two fiscal years, those ending in 2007 and 2008, the fund ended the year with about a half-million dollars in debt, which was small enough relative to the overall size of the fund that there were no appreciable delays.
IDS says that there will be a shortfall of about $7,000,000 at the end of this fiscal year — the agency’s talking points are here — meaning about six weeks’ worth of delays. That’s comparable to what we saw from 2002 through 2006, and still far short of what the Illinois public defender claims is happening there, where it sounds like delays for experts have reached four months. I doubt that many North Carolina courts would be receptive to the argument that it’s impossible to find an expert who will work in the face of a possible six week delay in payment.
But given the budget crisis, could we see longer delays in the next year or two? Absolutely. I have no special expertise at reading budget documents, but I’ve looked at both the governor’s recommended budget and at the budget passed by the Senate. Both seem to recommend about $10,000,000 more for IDS in the next fiscal year, which IDS projects will leave about a $7,000,000 shortfall. If that translates into six weeks of delay, that’s not likely to be a constitutional crisis. (Which isn’t to say that lawyers or experts will, or should be, happy about it.) But it looks like the governor recommends basically flat spending for the following fiscal year, while the Senate budget actually recommends a substantial reduction in spending. If the demand for IDS payments continues to grow — as it has in every prior year — and the agency receives a budget reduction, the situation might be much more serious. Payments could be delayed by several months, as they apparently are in Illinois, and that really might start to give experts — and thus the courts — pause. Alternatively, IDS could reduce hourly rates for lawyers and/or limit experts’ fees, steps that carry their own legal and political risks.