[00:00:11.083] [SPEAKER_00] Welcome everybody to the North Carolina Criminal Debrief. This is a podcast devoted to covering criminal law news and issues in North Carolina and beyond. I know it's been a while since I've been in the studio. I had my hands full preparing for and managing the Spring Public Defender Conference a few weeks back, but I'm happy to finally be back here in the studio with my amazing engineer and sound technician, Paul Bonner. Big thanks to Paul as always. Lots of things to cover, so I want to jump right in. The most exciting thing for me is this Diaz-Thomas case that's now sitting at SCOTUS, waiting on them to decide a cert petition. We covered this state Supreme Court decision in an earlier episode, but in case you missed it, there the defendant challenged the apparent policy in Wake County of refusing to reinstate DWI cases that have been dismissed with leave. a VL, as it's known to practitioners. The DAs basically say, you can agree to plead guilty to this DWI that you missed court for. Now you're back, you want to put it on. We'll let you plead guilty, but only if you agree to enter that plea and to waive any and all right to appeal. Or we're going to leave the case pending indefinitely. And that comes with certain consequences. Not only is the person under a cloud of suspicion forever with no way to resolve it, but there's license consequences, particularly in Chapter 20 cases where you can never get your license back until the case is resolved. This made it to our state Supreme Court, and in a unanimous opinion, they saw no problem with this practice, at least as applied to Mr. Diaz-Tomas and in the companion case. They squarely held there that after the defendant fails to appear and an FTA has been entered, neither the defendant nor the trial court have any authority at all to order the DA to reinstate the case. My colleague here, Shay Denning, did a blog about it where you could read more about that holding and the implications. The defendant apparently did not love that result, and they partnered with a law clinic and have managed to file a petition seeking cert review in the U.S. Supreme Court. It argues, somewhat persuasively in my mind, that all of this violates both due process principles and speedy trial principles. As to the speedy trial claim, they point to an earlier North Carolina case, Klopfer v. North Carolina. Now, this was argued in the state case as well, but not a whole lot of the state Supreme Court's opinion is devoted to, let's say, detailed analysis of Klopfer. They basically said, well... Unlike Klopp for Mr. Diaz-Thomas, his case was put on twice, I believe. That was his shot, in effect. But this is not a speedy trial problem, no due process problems either. Let's talk about Klopp for a second. The DA could indefinitely postpone a case, take it off the calendar, but leave it in abeyance to be heard and put back on whenever the DA feels like it, but only in the DA's discretion. This was a procedure then called nolipros. So we've got this cert petition. The Cato Institute has jumped into the fray and filed an amicus brief in the case. Their argument really focusing on the erosion of jury trials in the country and how this sort of practice would contribute to the erosion of jury trials, in addition to the grounds argued by the petitioner. The state was ordered to respond. I think I mentioned that in an earlier episode, which astronomically, according to my colleague Jeff Welty, increases the odds that the Supreme Court is going to grant cert and review the matter. So they were ordered to respond and respond. They did on May 15th. The state put forth what I think is a very interesting strategy. They argue, petitioner, you've got it all wrong. You are not forced to plea or leave it hanging forever. You can always come into court and move to dismiss the matter for a speedy trial violation. And therefore, you have a way to resolve it that's not a guilty plea. No real problem here. Nothing to see. Not a good case for review, according to the AG. It's probably the defender in me, but that strikes me as not a particularly strong argument. The state's response does not argue or even come anywhere close to saying, you know, yes, actually, the defendant does have a right to reinstate the case, which is the petitioner's complaint. I must have a way back. Even if I've been in the wind, when I come back and show up to court, there has to be a way where I can insist that my charges against me are heard and I can have a trial. This doesn't really address that point. It says, in effect, well, at some point, you're going to reach the speedy trial limit. And at that point, you can walk into court and ask for dismissal of this case that's in dismiss with leave status. A couple of thoughts there. When would the speedy trial clock be up? That's not real clear to me. When someone misses court, say multiple times like Mr. Diaz-Thomas did, who knows when the Barker factors that you weigh when considering a speedy trial claim, who knows when those factors are going to finally tilt in the defendant's favor. One of the big factors there, one of the four factors is the reason for the delay and where the delay has been caused by the defendant's non-appearance say, repeated non-appearance in court, it seems to me that factor is going to weigh heavily against the defendant. On the other hand, you know, according to the Supreme Court precedent and speedy trial realm, the delay that's tolerable in misdemeanor cases is much less than what's permissible for something like, say, a murder case or a much more serious felony. To put a finer point on it, or perhaps a more practical point on it, we just don't have a lot of state cases finding a speedy trial violation in North Carolina. It is fairly hard to win on speedy trial grounds, even without any FTA involved in the mix. But I think really more to the point, the AG's argument here seems to gloss over, if not ignore, the DA's role in controlling the calendar. The DA decides what cases to call, what motions are heard, when, both generally and as a practical matter. And of course, judges retain ultimate calendar control, but it's almost always the DA who's calling the case. So by the logic of the AG's argument here, the defendant can walk into court after some period of time of missing his court date, the case is then dismissed with leave status, and the defendant can appear walk into court, demand that the court hears a motion in a case that's not on the calendar and that remains in dismissed with leave status. As a practical matter, I'm not sure that's true in most courtrooms. And indeed, it seems to fly in the face of the very holding of D.S. Thomas, which says the DA cannot be forced to reinstate. Now, you could argue, and I think the AG does, that dismissal motion is something different than asking for reinstatement. It's hard for me to see this proposed procedure of speedy trial dismissal for a case not on the calendar. It's hard for me to view that as really an adequate substitute for being able to put it back on the calendar and have a trial, which is really the root concern here and was the root concern in Klopfer. The Supreme Court has not granted cert as of the date of this recording, but it's something I'm keeping a close eye on. Certainly, we will cover it if the court does grant cert. It would be exciting to see another North Carolina speedy trial case being done again up there. And I'd note, petitioner here is asking for summary reversal without the need for argument, basically saying this is so crystal clear that there's not really much for the court to hear in terms of argument. That strikes me as an unusual request, and I can't say it's something I've seen a lot, but stay tuned on that one. That one's a little bit of a combo of law and news as far as it goes, and so is this next one. I recently had the pleasure of getting to do the news roundup on the blog for the first time earlier this month. And if anybody doesn't know, the blog, of course, is the North Carolina Criminal Law blog, and every Friday we try to do a news roundup where we collect the news of the week. And one of the items I covered in my version of the News Roundup was this so-called, quote unquote, dear colleague letter by the U.S. Department of Justice. They wrote this dear colleague letter to various state and local courts and juvenile justice departments regarding the legal and statutory obligations surrounding the imposition of fees and fines in criminal and juvenile cases. Of course, fees and fines and equitable imposition of those monetary obligations is something we've covered before on this podcast when we talked about the general rule of practice 28. In any event, this letter was basically just a reminder to court system actors that monetary obligations in these cases must be imposed in both a constitutional and non-discriminatory manner. They really are talking about all contexts from felony charges down to ordinance crimes or even non-criminal civil infractions. The letter identifies seven big constitutional limits to keep in mind, and I thought it would be helpful to listeners to review those briefly. So one by one, here we go. The Eighth Amendment prohibits excessive fines, and that means those that are grossly disproportionate to the severity of the offense. The Fourteenth Amendment prohibits locking up someone for nonpayment unless there's been an ability to pay determination immediately. and there's some evidence that the non-payment is willful. The 14th Amendment also requires courts to consider alternatives before imposing incarceration over non-payment. Sticking with the 14th, it forbids the imposition of fees or fines that create any conflicts of interest, like when there's an incentive for the court to impose a fine. The Fourteenth Amendment further forbids conditioning access to the judicial process on payment of fees or fines. You have to be allowed to file as an indigent if you need to. Due process under both the Sixth Amendment and the Fourteenth Amendment's required notice and sometimes access to defense counsel when imposing or enforcing these monetary obligations. Finally, the 14th Amendment forbids imposing any kind of monetary obligations in a way that discriminate against any person in a protected class. Now, beyond those constitutional guardrails, the letter points out there's also relevant federal statutes that apply like Title VI and others that statutorily provide protection against discrimination on various bases by any entities who are receiving federal dollars. That is, as I mentioned, sort of in the spirit of and reminiscent of our recent rule of general practice, Rule 28, that was adopted by the Supreme Court some time ago. As we discussed earlier, that basically says trial courts, you should impose these monetary obligations in any criminal or infraction cases in an equitable way and after considering the defendant's ability to pay. That's only for cases where the trial court has discretion, so not in a, say, trafficking offense where it's a mandatory minimum fine, although that could have Eighth Amendment implications. You know, usually the trial court has discretion. And the rule also, of course, authorized motions for relief for people who are already under existing obligations where they've been unable to meet those costs. That rule spawned a lot of motions for relief, and I believe some places have really embraced this and taken it seriously, and it's changed the way that they impose monetary obligations in these cases. I wanted to cover a recent case from the Court of Appeals that is talking about restitution. That's State v. Black out of Buncombe County. This was a February 2023 case from the Court of Appeals. It's actually the second time that it's been up to the Appellate Division. This woman was charged with felony possession of stolen goods and attempted identity theft. She was convicted. And at sentencing, the defendant and defense counsel stipulate to restitution in the amount of $11,000. Now, that's not an issue in the first appeal, but that first appeal results in a resentencing. So we're back down at the trial court for resentencing. Trial court orders the $11,000 in restitution once more. The defendant pipes up and says, I'd like to say something at this point, but defense counsel shuts him down and says, you know, hold on a second, hold on a second, we'll get to that in a minute. And apparently there's no follow-up as far as the defendant's desire to comment. The defendant appeals again, complaining of error with the restitution amount insofar as the trial court didn't hear from the defendant. There's no indication that the trial court considered the defendant's ability to pay. Well, the court takes this on the second time around, and they point to the relevant statute, 15A.1340.36. You know, they note it sort of sounds like a mandate in the language of that statute. The trial court shall consider the resources of the defendant and anything else relating to the defendant's ability to pay. The statute also says the trial court need not make written findings or legal conclusions about it, but you should consider their ability to pay before imposing restitution. Sounds great. For one thing, restitution is reviewed on appeal under an abuse of discretion standard. That is a difficult standard, typically. as the court notes in black, the case law puts the burden squarely on the defendant to show a lack of ability to pay. As in, the defendant must come forward with some evidence. So the Court of Appeals here says no error. You know, the defendant presented no evidence. They had previously stipulated to it at the initial sentencing. Defendant didn't meet his burden, so no error. And in a footnote, the opinion makes this observation. While the trial court has to consider the ability to pay, it doesn't really mean that the trial court has to ask. I'm not sure what that means, but I mean, to quote the opinion, the statute is silent as to how the trial court is to obtain knowledge about the defendant's resources. And we decline to adopt the defendant's position here, which was that an inquiry, some questioning into the ability to pay was mandated by the statute. A couple of things here. It's a reminder, defendants, defense counsel, you all have the burden to raise this issue and you need to be prepared to present some evidence on the point. If the trial court fails to ask about it, it's not ever going to be reversible error as far as I can tell under the logic of Black. in addition to raising the issue and putting on evidence, make the argument under those constitutional provisions that we went over at the start of this section. I know I preach preservation all the time and I will be doing it more today, but those kinds of constitutional arguments are not gonna be considered on appeal if they're not raised below. And I always think that raising constitutional issues in addition to a statutory argument, that gives the argument a little more gravitas. You know, a judge may be inclined to take it a little more seriously. And we didn't have that here. To be clear, black is not about any kind of constitutional objection to justice. you know, this restitution award or the way it was obtained. But perhaps the defendant could have pitched an argument below in the trial court that, you know, hey, I think you need to at least hear from me and have actual evidence in front of you about the ability to pay as a matter of due process and equal protection or as a matter of any of those 14th Amendment protections that we went over before. To the extent trial courts really want to embrace the spirit of Rule 28 and take seriously the statutory requirement, the constitutional requirements, I think best practice is for the trial court to conduct a meaningful inquiry, which means ask. The case law pretty clearly does not require it, at least in the restitution context, a la black. Interesting stuff and just a reminder about these monetary obligations and what you might can do with them. Not to bury the lead, but the legislature of our state recently passed SB20. That is a massive reworking of our state abortion laws. Most of that is not really criminal, so I'm not going to get into the weeds about it. I would just flag it for folks and also mention my colleague here, Jill Moore, a public health expert. She did an excellent blog post breaking down all the nuances and changes of this law. It is on a different SOG blog, Coats Cannons, and that's C-O-A-T-E-S, Possessive Cannons, C-A-N-O-N-S. So if you want to see the law dissected as far as the abortion rights stuff goes, please direct you to Jill's blog post. But there are a couple of criminal things in there I thought were worth flagging. We've got a new crime in Chapter 131E, which is health care facilities and services, where most of this law is taking effect. 131E-153.7 outlaws owning or operating an abortion clinic that doesn't have a license. It's class three misdemeanor. It's up to a $50 fine for the first offense, up to a $500 fine for a second or subsequent offense. And each day that the unlicensed clinic is in operation is a separate offense. This is part of a new abortion clinic licensure act in part 4A of that chapter 131E. I don't believe we had that requirement before that abortion clinics needed a license as far as I can tell. Certainly they will going forward after the effective date of these changes. There's also a new infraction offense of providing or advertising abortion-inducing drugs to a pregnant woman or to providing any websites or other web services that in an effort to promote the sale of abortion medication drugs unless it's otherwise allowed under the abortion law. So doing these things, providing the abortion pills, promoting them, advertising them, providing web services relating to the promotion of those things. If it's outside the rules on our medication abortions, it is an infraction offense under this new crime. And that is in GS 14-44.1. In effect, we've got new regulations about getting those medication abortions. Think your Mifepristone, that sort of thing. They did new regulations on surgical and medical abortions, to be clear. But we're talking about the medication abortions for the purposes of this subsection. If it's not permitted under there, which would be chapter 90-21.83a, then it's going to be an infraction under chapter 14. I did find it interesting, though, that it is only an infraction, but it's one that's got some teeth as far as infractions go. Potential fine of up to $5,000. We may see challenges to these laws generally. I expect we likely will. The legislature has indicated they may have more changes as well to be getting to next term. So something that we're keeping an eye on and something that I just thought was worth flagging for listeners. Speaking of legislation, we also have some new rioting laws and laws related to that offense. Here's another mouthful for you. Rioting in North Carolina is defined as a public disturbance involving three or more people which, by disorderly and violent conduct or by imminent threat of disorderly or violent conduct, results in injury or property damage to people or property or or that creates a clear and present danger of injury or damage to people or property. All right, that's the definition. The misdemeanor offense for rioting in 14-288.2 is same as it always was. It's a class one misdemeanor to willfully riot, but they made some changes to the felony versions. Formerly, it was a class H felony if during the course of a riot, any property damage occurred over $1,500 or if there was serious bodily injury. We've changed that completely. Now the class H says it's class H felony to riot if the defendant brandishes any dangerous weapon or uses any dangerous substance. I think folks can probably figure what brandishing is. I'm not really sure what the legislature is referring to when it talks about dangerous substances, but I can imagine we're talking things like tear gas or, you know, bear mace or something to that effect. What was formerly that Class H is now going to be moved to a Class F, but with a higher damage amount limit. So there's a new subsection as well that says it's a Class F felony if there is more than $2,500 of property damage caused by the riot or if there is any serious bodily injury caused by the riot. Then we have this brand new Class E rioting for rioting resulting in a death. Presumably that would be brought alongside any relevant homicide charge. Sticking with that statute, incitement to riot was formerly a Class 1 misdemeanor. We've now bumped that up to an A1 misdemeanor. And then similar changes as we saw with the main rioting offense, so that incitement to riot resulting in serious bodily injury or property damage over $2,500 is now a class E offense. Brand new class D incitement offense for incitement to riot resulting in a death. Couple things really interesting about these changes. One is that there is a private cause of action that's been created here. So anyone who is injured or whose property is injured by somebody violating any of these laws, rioting, incitement to riot or looting, they can sue the person responsible for those injuries. And they're entitled to triple damages plus attorney fees. So one of those rare instances where attorney fees are recoverable. The other interesting thing is a carve-out in the bail statutes for this offense. Folks, practitioners will likely know that there are sort of special rules for certain circumstances in our bail laws. Like if you've had a previous firearm conviction, you get another one within a certain period of time or for years, certain people drug trafficking. There's, of course, the domestic violence hold, impaired driving holds, special rules for sex crimes, others. It's a lot. I'm not going to go through all of those, but we have a new 15A 534.8 that says anybody charged with these offenses, again, rioting, incitement, or looting in any of their iterations. Only a judge may set bond for the first 24 hours. So, in effect, the person can be held without bail for up to 24 hours if a judge is not available. So, there's a protest that devolves into a riot on a Friday evening. These people would not be taken before a judge anytime soon. for the weekend. In that situation, the magistrate is not allowed to set bail until 24 hours is up. After 24 hours, the magistrate can and must set some conditions of release. It just applies to this category of offenses, but that's... knew. I thought it was interesting and perhaps a little redundant that the statute also says consider the criminal history of the person in front of you. You are authorized trial judge or magistrate to set conditions that require the defendant to stay away from certain places and specifically says if the defendant appears to be mentally ill and dangerous or or an unlawful substance abuser, consider the provisions of 122C, which is, of course, our involuntary commitment statutes. The statute goes on to say, nothing here is meant to chill free speech or right to assemble. You know, it's pretty straightforward as far as it goes, but my advice to defenders here is just keep in mind there is a particular First Amendment definition of incitement, and that means speech that is designed, it's intended to cause imminent lawless action, and that it's likely to do so. Incitement can be a high bar, not just anything, encouraging violence in the abstract is basically never going to get you there. To the extent anyone is handling an incitement case, think about those First Amendment implications. They will be coming up and they should be raised in any incitement prosecution. As to the rioting, we talked before in an earlier episode about disorderly conduct and a case called Carolina Youth Action Project v. Wilson, where some South Carolina disorderly conduct laws were struck down as vague and unconstitutional. Disorderly and violent conduct is a prong of our, is sort of part of our rioting statute as well. So I'm not sure it exactly translates, but rioting statutes have also been found to be overbroad or otherwise unconstitutional. A lot of this litigation was coming out of the civil rights movements back in the day, but we've seen a sort of renewed focus on rioting and related offenses. after the civil unrest in 2020. You know, I think it's a pretty safe assumption that these changes to our statutes are a legislative response to that unrest. So just keep in mind those constitutional parameters. If the stuff is also stemming from a protest, there may be other constitutional rights at issue. So just really interesting stuff. Folks have probably heard by this point that we have repealed the purchase permits. I may have mentioned that before. In addition, we've got a little change to one of our assaults. We already had assault on emergency personnel. That's 14-288.9. We've expanded that definition to now include the National Guard and anyone who is discharging an official duty during an emergency. It was assault causing physical injury, class I felony. We've eliminated that physical injury requirement, so then it's now if you assault an emergency personnel, it is a class H. If there's a dangerous weapon or substance involved, it's a class F. Serious bodily injury gets you to the class E. Like the rioting offenses, if there is a death caused in the course of assault on an emergency person, it is a class D offense. Some maybes that are out there pending. We're still waiting for something to happen with medical marijuana, but it seems like that has a good chance of passing. I've seen at least two versions of different laws that would address the phenomenon of sort of intoxicating hemp products, one of which takes the approach of we're going to limit everything but CBD to 0.3. Right now, our law just says if it's got less than 0.3 delta 9, It's a legal and it comes from hemp. It's a legal hemp product, including all extracts, derivatives, isomers, whatever. One of these bills would fix that so that it's any basically any cannabinoid can only be in concentrations of less than point three percent. That would, of course, basically eliminate the market for those hemp products as best I can tell. There's another bill on that stuff that proposes a comprehensive regulatory scheme, setting age limits, setting quality control assurances so that there is some testing of the products uniformly across the board so you know what you're getting is truly what it purports to be. and that it's free from any contaminants. We don't have any of those things right now. We don't have any quality control. We don't have any age limits. We don't have any place restrictions. That's a third bill actually come to think of it is something that would say you can't bring these Delta 8, Delta 10 kind of products onto school grounds. Stuff like an age limit or school restrictions strikes me, in my personal view, as sort of a no-brainer. So I think some of that stuff likely has good odds of passing if the legislature fixes their attention on it. But we'll see. Besides my pet project of cannabis, there's a bill to add fentanyl to the Good Samaritan Immunity Law. I believe we've talked about those laws before, harm reduction laws in the state, but Our Good Samaritan Law says if you are reporting an overdosing person and there's less than a gram of heroin or cocaine involved or any misdemeanor drugs involved, under certain circumstances, the caller and the overdosing person can be immune from any kind of criminal liability. This proposal would add fentanyl to the list so that it'd be less than a gram of fentanyl also falls within the Good Samaritan law. Now, from a policy perspective, this strikes me as an extremely good idea because it is fentanyl that is causing the most deaths. There's not a whole lot of cocaine overdoses in the state these days, but there are a ton of fentanyl overdoses in the state and across the country. Lots of other things. There's one to propose. I think the same bill actually proposes increasing the trafficking fine for trafficking in opiates by a factor of 10 so that the minimum right now, lowest level of trafficking, I think you get $50,000 fine. That would be up to $500,000 fine. proposed changes to our wiretap law. A new crime has been proposed of money laundering. Lots of stuff going on with the legislature. We're sure to see lots more and you can hear all about it here if and when any of that stuff becomes law. But I thought those were interesting ones to sort of keep an eye on and mention that we're closely watching. Finally, in other news, we had a recent case in a federal district court case out of the Eastern District of Virginia striking down the age limit to purchase handguns from a federally licensed dealer. If you know anything about federal gun law, you can have guns at 18, but you have to be 21 to buy a handgun from a federal dealer. I would not normally cover a federal district court case, especially one from out of state, except this has gone to the Fourth Circuit before. A year or two, maybe three back, there was a case called Hirschfield v. ATF. I summarized it on the Fourth Circuit summaries that I put up on the blog monthly when there's something that I think might be interesting to state folks. I believe it was a split panel that initially ruled for the plaintiffs. You had basically two young women. They sued saying, you know, I really I think it violates the Second Amendment to treat me differently just because I'm not 21. I want to purchase my handgun from a licensed dealer and be sure I know what I'm getting. I'm getting it from a reputable source. And this law that I think it's been in place, you know, about 50 years or so, this law violates the Second Amendment. I believe a divided panel initially ruled for the plaintiffs, and I believe the government sought rehearing en banc, and that is the full Fourth Circuit Court. I think it's 15 of them. And they granted en banc review. And what happened next? The plaintiffs aged out. They turned 21. And that meant, of course, that the case was moot. There's no live controversy anymore. There is nothing that invokes that jurisdiction of those courts anymore. The en banc court was very divided, as I recall. This is one of many Second Amendment challenges that are out there. And I think this Hirschfeld case may have even been before the U.S. Supreme Court's recent decision in Bruin versus New York Pistol Association, where they've radically changed the way that we think about gun regulations. So you can be sure that the government is going to appeal this ruling and that it's going to go back to the Fourth Circuit. And we may well see the Fourth Circuit again sort of grant en banc review if it gets that far. And I'll be really interested to see how it breaks down because you see some unusual bedfellows in these cases where. You know, some liberal judges really join with conservative judges to uphold or strike down these gun regulations and all sorts of crazy mixes. I know one other federal circuit, I think it was the Third Circuit, if my memory serves, recently said the felon in possession ban was unconstitutional as applied to this plaintiff or defendant. And I was that was a guy who had been convicted of, I think, making a false statement for food stamp fraud in the 80s because of that felony. If he had a gun, he's eligible for a federal crime of firing by felon. There's no restoration process that's meaningful or that's funded in the federal system. So if you catch a felony, you lose your gun rights forever. That's always been the law. Of course, in the seminal Second Amendment case Heller, the court said, you know, nothing in this opinion casts any doubt upon the longstanding prohibitions on firing by felon. After Bruin, I don't know if that's so clear. It was a different court. That was a Scalia opinion, if I recall, and Scalia has, rest his soul, aged out of the court. Jeff Welty has been all over this issue on our blog post. I think he has three or four gun updates over the past few months, and I know I've mentioned it several times. We'll talk about the misdemeanor crime of violence exception in the next episode, actually. That's your Second Amendment update for now. We may see that age limit challenged as far as purchase permits for in the federal system. At least one circuit court has said that that felon in possession law can be unconstitutional, at least as applied in that case was a old conviction of a nonviolent offense. All right, wrapping up, I'm going to hit a couple cases from North Carolina. Stavey Miller's is just a reminder of the sort of right to a public trial. This was an attempted murder case. It's coming to us from Union County. Pre-trial, the state makes a motion and says, we'd like you to close the courtroom during the testimony of just two of our witnesses. There's two. They're important witnesses. I think they were young folks. And we're concerned that there may be some serious risk of witness intimidation. And we think courtroom should be closed to the public during their testimony. Apparently, there had been an earlier hearing where the state was making an effort to raise the defendant's bond in response to what they believed was potential witness intimidation by the defendant. That's what they argued in this motion for closure. You know, we think there's a potential for intimidation. We have a strong interest in keeping our witnesses safe. It's just for a limited period of time. We're not talking about the whole trial. We're not talking about all the witnesses. And we don't have any real reasonable alternatives to that. And as we'll go over in a second, the state at least argued the factors that are relevant to consider when deciding whether to close the courtroom. And the trial court grants that in part. They said the direct relatives of the defendant and of the lead detective can all stay in the courtroom. Everybody else has to go. I'm going to limit everyone's phone use so that there is no recording, taking pictures, that sort of thing. And close the public out of the courtroom during the testimony of those two witnesses. but it was a very sparse order, no findings of fact. It only mentioned, quote unquote, some social media posts, which doesn't tell us a whole lot. So the court here said that's a problem. That's not how you decide these kinds of challenges. You have to go through the Waller test. Since you didn't do that here, trial court, we're sending it back down for an after the fact determination of was this closure appropriate? Was it justified? If it was indeed appropriate, great. I'm sure that'll get reviewed again on appeal if that's where the trial court lands. So be it. If it was actually supported by the evidence in front of the court, you can do it under some circumstances. This is and should be rare. And that's according to the Supreme Court, the U.S. Supreme Court. And of course, if it's improper, if it was not justified by the circumstances before the trial court, this is a new trial. This is a structural error, which means you get a new trial. The conviction is reversed and sent back without regard to any prejudice. You don't have to establish, here's how it hurt me, which is typically how it's done, right? And typically, the state can argue harmless error. Like, yes, we violated your constitutional rights, but in light of everything else, the This didn't make a difference. But the harmless error does not apply to structural errors. There is no need to engage in the prejudice analysis. I mentioned the Waller test. That's a 1984 U.S. Supreme Court case noting and detailing the rules for that you have a Sixth Amendment right under the federal constitution. There's a similar state constitutional protection under Article I, Section 18. Under Waller, the government would have to show that they have an overriding interest likely to be prejudiced by an open court, that the closure is no broader than is necessary to protect that interest, that reasonable alternatives have been considered, and the trial court has to have adequate findings in an order that show that the closure is supported. If that's not all met, It's an improper closure. It's going to result in a new trial. So be very careful, trial courts, with these courtroom closures. There's an argument that that was not really a full courtroom closure. Some people were left inside. It was not for the duration of the trial. And I've seen some federal cases discuss the possibility that, well, maybe partial closures can be treated a little more leniently. This is a big right. there's a big consequence for when it's violated, which is automatic reversal. At the very least here, that's where the trial court messed up was the order that they did lacked any specifics and lacked the kind of detail that is needed. But as I said, you know, and I believe it's from Waller where the Supreme Court said, you know, this just should be rare. There's not only a six-minute right to a public trial, but the press and the public also have a First Amendment right, a qualified right to watch and see what's happening in the courtrooms. It encourages faith in the system for courts to be open. Juvenile cases, of course, are different. Those may be closed, probably without a whole lot of fuss, but for adults it's a pretty high bar. So when we have cases involving organized crime, national security or classified documents, serious gang prosecutions perhaps, Those all would be the kind of circumstances that could justify closure. But only if there's a record and if there's evidence in the record and there's a detailed written order with findings about it. Thought that was interesting. Something to keep in mind. We're going to close this episode with this last Wilkins case, which is out of Caswell. Kind of funny facts. A car apparently drove by a prison or maybe it was a detention center. near the wall and they threw a football full of drugs over the wall. As in, a football had been cut open, stuffed with drugs, taped back together, and thrown over the fence. Police quickly apprehend this car where the defendant is a passenger in the front seat. Unfortunately for the defendant, there are footballs that have been cut open and are full of drugs in the car. There's cash money. The defendant here gets hit with multiple counts of drug possession, as well as an offense of attempt to provide contraband to an inmate. He's also a habitual felon and the state indicts him as such. Defense counsel goes to see Mr. Wilkins quickly after being appointed and determines that Mr. Wilkins is in need of a capacity evaluation. Apparently the jail also had expressed some concerns about Mr. Wilkins' capacity. Guess what never happens? That evaluation. Mr. Wilkins sits in jail a little while and then makes bail. That was in 2018. That's when all this stuff happened. When the case is heading to trial in 2021, presumably after a COVID delay, the defendant shows back up and he's hired a new counsel, somebody, different defense lawyer, and that lawyer doesn't raise this issue at all. Neither does the trial court, despite there's an order in the court file saying the court has ordered that a capacity evaluation take place. That never took place. They go forward. They don't raise it at trial. They have this trial. And he actually does pretty good at trial. He beats the attempted providing contraband to inmates count, but is convicted of multiple counts of drug possession. And he pleads guilty to habitual felon thereafter. What's his argument on appeal? An evaluation was ordered and it never got done. So this has to be wrong, right? Trial court entered the order. It was obviously an issue to follow up on. We don't think it can be waived by failing to raise it once the order was entered. Court of Appeals disagrees. Rules are, as the Court of Appeals points out here, due process requires that the trial court act even on its own motion, sua sponte, and have an investigative hearing when there's evidence of the defendant's lack of capacity. When there's any evidence of that in front of the trial court, they've got to ask about it. There's a statute, 15A-1002, that seems to provide a mandate that says, you know, the court shall have a hearing when capacity is at issue. And that never happened here. The court points out the constitutional duty that the trial court has here is not waivable. But that statutory right is. And here, you have to raise it at trial or it's waived. And here, it wasn't raised. It was therefore waived, just like anything else. It's subject to the normal preservation rules. In other words, constitutional right, again, not waivable. Statutory right is. Here, defendant only ever argued the statutory right. It's not enough. Raising it initially, getting the order, and not having one done doesn't change that. If you don't raise it at trial, it was waived. The Court of Appeals said, you know, the Supreme Court is free to change those rules if they like, but we are bound by precedent that makes those preservation rules mandatory here. Since there was no constitutional argument, the whole thing is done at the preservation stage. There was a dissent in the case. I believe it was by Judge Inman. She pointed out that, you know, that shall language in the statute 15A-1002 is a statutory mandate. She distinguishes cases raised by the majority and saying, you know, those all dealt with things where there was no evidence of incapacity before the court. It wasn't ever raised, in other words. Those involved cases where the defendant had a capacity evaluation and was found to be competent. She pointed to an unpublished case that she felt was on point. And there was where I think it was very similar facts, like a capacity evaluation was ordered and not performed. And there they remanded for a retroactive capacity determination. If I recall, that's what Judge Inman would have done here. So a couple of things. One, since there is a dissent, The defendant, of course, has an appeal of right, and this will go to the state Supreme Court if he exercises that right. So the Supreme Court may get their chance to bite on changing some of these preservation rules, as the majority opinion suggests that it might be interested in doing. The preservation point, I think, is important to keep in mind, something we hammer every show I know, but just make it a habit with your statutory argument, make that constitutional argument that not only must the court conduct a hearing when there's evidence before the capacity is issued, due process also requires that. And do that any time you're arguing anything. If you can constitutionalize your arguments, you always should. But thinking about this made me, I poked around a little bit and we have a case called Lee from 2012 Court of Appeals that reminded me that when you're sitting and waiting for an evaluation by the state over in a criminal case, all that time the speedy trial clock is ticking and it counts against the state. That's what Lee says, delays in capacity evaluations may form the basis of a speedy trial violation. There's a little problem in the state with timely capacity evaluations and restorations. All over the state right now, I'm hearing about it from everywhere. Not everybody's able to make bail, and if they don't have bail, they sit in jail, usually without any mental health treatment. That can turn into months. Particularly in misdemeanor cases, defenders should keep their eye on the speedy trial clock. There may be other due process concerns there as far as untreated mental illness concerns. One county has had a neat idea to sort of partner with public defenders and try to get adult protective services or otherwise DSS, legal guardians appointed sometimes, to get those people involved with this category of defendants. So your client's not sitting for three months in the detention center when they're schizophrenic. So if anybody's interested in that, feel free to email me. I'm happy to link you up with folks that are working on that issue. You know, I would just point out when that's appropriate, you help get your client a guardian. You help get your client APS services. That could go a long way with the DA. You know, I think a lot of the times it's like, well, this person, you know, is clearly mentally ill, but they committed a crime. The DA is thinking, if I unsecure their bond, I let them back out or I dismiss this case. They're just going to go out and do the same thing again. They're going to be right back in here. I'm going to keep the state's hooks in them as long as I can. Once a guardian is involved, though, or they have some help getting an outpatient commitment, getting to appointments, getting their medicine, getting stable housing, that could go a long way in terms of plea negotiations, bond negotiations. And recall, under the rules of ethics, defense lawyers, we're allowed to act in the best interest of our client when the client lacks capacity. Interesting stuff to keep in mind, an ongoing problem in the state. Something I wanted to flag for folks. That is it for me for this episode. I want to give another big thanks to Paul Bonner for his help in the studio. Thanks to my brother, David Dixon, who composed our theme music. Thanks to Monica Yelverton, our associate director of programs and training for her work. assistance with logistics. I would love to hear any feedback. If you liked what you heard, if you hated it, if you have ideas or suggestions on topics for me, I encourage you to write me and let me know. You can reach me directly at dixon at sog.unc.edu. Again, that's dixon at sog.unc.edu. I hope to hear from you, and I'll talk to you all again very soon. Thanks, everybody. Bye.
Episode 8: NC Criminal Debrief
This episode discusses the filings at the U.S. Supreme Court in State v. Diaz-Tomas, monetary obligations in criminal cases, recent state legislation, as well as cases on courtroom closures and capacity to proceed.