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Category Archives: Federal and State Criminal Law

When will Courts Reopen?

We would love to use this Blog entry to give you an update as to when courts will reopen, when defendants can face trial or resolve matters, when domestic situations can be worked out or at least litigated before a judge, when property disputes can be settled, damages ordered, and wills and estates clarified and settled and closed.  But, frankly, we just don’t know. What we can say, with some confidence, is that we are close.

North Carolina’s Chief Justice Cheri Beasley has engaged a Task Force (made up of district and superior court judges, DAs, Public Defenders and private attorneys) to handle the soft Court resumption date of June 1, and what that will look like.  The Task Force is working on how calendar backlogs will be caught up, large calendars managed while maintaining relative social distancing in the courthouse, handling of inmates to and from court, document and exhibit handling in the courtroom, and interaction with and between district attorneys, judges, clerks, bailiffs, and attorneys.  Juries are of course one of the most tricky issues to address. The grand jury (juries tasked to determine the existence of probable cause sufficient to indict a felony case) and the petite jury (juries summoned to sit and hear trials and find facts, usually in small stuffy rooms with a single toilet) are by their very nature sequestered bodies. We will keep you posted as soon as the Chief Justice releases the more defined findings and game plan from the Task Force (likely this week). Please understand, our clients in Craven might have a very different situation than our client in Carteret, Pamlico, or Jones—all counties are likely to put their own fingerprint on the Task Force’s recommendations.  Indeed, no two counties have the same physical facilities that are so determinative on how safe distancing will be navigated while the work of the courts is achieved.

Regardless, even now, be mindful of the following: 

  1. If you have matters pending before the court, particularly  of a criminal nature, it is a good time to get a very reasonable result in your case where there will be a priority on moving cases, so make sure your attorney has everything they need to resolve your case;
  2. Check with your attorney before going to their office or the Courthouse, even after June 1—you might not need to go (but check!) and spare yourself and others any risk to keep the curb flat or declining; and,
  3. Our courthouse personnel (be it Judges, bailiffs, clerks, DAs) are on the front lines of human interaction every day, trying to process aspects of your case and thousands of others. So be as respectful and polite as ever. They are putting themselves at risk to keep our society orderly and moving forward. 

Thank you and be safe. 

Tom Wilson

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I was just…gestur’n…

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On 9 January 2017, a day after Elvis’s Birthday (and my mom’s), a North Carolina State Trooper kindly responded to a stranded motorist who had run out of gas.  It was winter in Stanley County, North Carolina, and it was cold.  The Trooper, with the assistance of a local police officer, was rendering aid to the motorist on the side of the road when a SUV with two occupants passed them.  The passenger, Mr. Ellis, whose arm was waiving out the open window, modified his gesture when passing the officers, and began pumping his arm up and down with his middle finger raised. This is sometimes referred to as “flipping the bird.”  The Trooper noticed this particular bird and, believing he had observed the crime of disorderly conduct, got in his vehicle and pursued the SUV.  While in pursuit, the SUV made no observable traffic violations and was pulled over a short distance later.   

Mr. Ellis initially refused to provide his identification to the Trooper, but eventually did.  The Trooper charged Mr. Ellis with a citation of resisting, delaying and obstructing an officer under N.C.G.S. § 14-223.  At trial, Mr. Ellis moved to suppress the traffic stop as lacking reasonable suspicion and thus violative of his Fourth Amendment rights prohibiting unreasonable seizures. The trial court denied Mr. Ellis’s motion. On appeal from his conviction, the North Carolina Court of Appeals found there was reasonable suspicion that criminal activity was afoot, and the Trooper lawfully stopped Mr. Ellis.  However, one appellate judge dissented, and the matter was automatically reviewable by the North Carolina Supreme Court. 

  Before the North Carolina Supreme Court, the American Civil Liberties Union of North Carolina Legal Foundation filed a friend of the court brief on behalf of Mr. Ellis’s middle finger. The North Carolina Supreme Court FRIDAY reversed the matter, finding indeed that “flipping the bird” at law enforcement alone does not trigger reasonable suspicion you are engaged in a particular criminal activity. See State v. Ellis.  https://appellate.nccourts.org/opinions/?c=1&pdf=39340.  

The N.C. Supreme Court’s holding seems to assert that flipping a general bird, not necessarily directed at an individual or another driver, is not evidence of disorderly conduct where it was not likely to provoke a violent retaliation causing a breach of the peace.  I guess none of our justices drive the streets of my hometown, St. Louis. But there is precedent for this holding (though not cited by the Court). We can all (that is, men over 40) recall when Maverick made his inverted, mid-1980’s gesture of international communication to the Russians, which even then did not breach a fragile peace or cause violent retaliation (beyond the nuclear arms race).      

Tom Wilson

 

 

 

 

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You All Count

12 In the Box – You All Count

As we try to reasonably exist in the socially distant Covid-sphere, we feel as though our lives are frozen—or substantially stalled. But, the world remains, and great change is before us, and some change will likely prove to be very corrective.  And so, the good news is, these changes might not all be (or even mostly) for the worse.  But we will need to dig deep within ourselves, innovate, be creative and compassionate, and work to construct bridges and roads to new places in a brave new world—near, far, virtual, real, within and outside ourselves. 

We did receive a long overdue corrective change from the Supreme Court this week. And while the rational of the Court’s Nine Justices might be a bit frayed, the takeaway is clear:  for a criminal defendant charged with a serious crime, every juror’s vote counts. 

The background:  In forty-eight States and the federal government, a single juror’s vote to acquit is enough to prevent a conviction.  But until this week, there were two outliers–Louisiana and Oregon. These two states had long permitted convictions on 10-2 jury verdicts. 

On 20 April 2020, the United States Supreme Court decided Ramos v. Louisiana, No. 18-5924 (Apr. 20, 2020), holding that the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment–requires a unanimous verdict to convict a defendant of a serious offense.  The opinion, well worth a read, explicates the racist origins of non-unanimous jury verdicts.

Justice Gorsuch, who announced the judgement of the Court, provided some guiding insight to aid us all as we face the change before us: 

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment. No one before us suggests that the error was harmless. Louisiana does not claim precedent commands an affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others. But where is the justice in that? Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right. The judgment of the Court of Appeals is Reversed.

So be safe, but don’t fear the change of tomorrow…especially if it gives us a second chance to get it right.

Tom Wilson

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