Week in Review: Oct 26-30

Trick or Treat Readers! We hope you had a great week, and that your Zoom and WebEx calls were safe from the Bandwidth Ghost.

Tip of the Week

Immigration Consultations 

Did you know that IDS has made immigration consultants available to all defenders who have been appointed indigent clients? That means all of your juvenile clients! This may be especially helpful to determine if your client may be eligible for some type of immigration relief since s/he is a juvenile. Simply go to the IDS website to access the form here. You may want to print out the printable version and put it in your case file to fill out when you meet your client and then upload the information when you get back to the office.

Thank you to everyone who attended our “haunted” CLE, Probation and Post Supervision. While we did not anticipate the WebEx issues, we do have some great tips to share from our WebEx admin:

  • If you do not have a @NCCOURTS.ORG email domain, next time you go to WebEx, just click Join Meeting. Do not click Sign-In but rather just follow the prompts as they appear. If it asks for a meeting number, it is located in your registration approval email.
  • Remember that some applications delete this email if you add it to your calendar, which is also a direct link to the meeting and all you’ll need is the password.

We appreciate your patience while these WebEx kinks get worked out in court and for everything else!

Resources

  • What exactly is a YDC or Detention Center?: This YouTube video explains what Detention Centers and Youth Development Centers (YDC) are, the differences and what attorneys, parents, and youth can expect if their adjudication includes a stay in either. Please watch this short video created by NC DPS.
  • North Carolina Department of Public Safety Juvenile Justice Section will begin using a new risk and needs assessment instrument beginning January 1, 2021. This new tool is called the Youth Assessment and Screening Instrument (YASI).  DJJ is offering virtual Q&A’s on the new tool to assist with the use when it launches. Please click here to see times to sign up for a session, REGISTRATION ENDS TODAY!
  • Public Defenders and Assistant Public Defenders, check out this grant information to assist with law school debt. The JRJ grant is a loan assistance program. The federal John R. Justice (JRJ) grant is available for prosecutors and public defenders most in need of assistance with heavy law school debt load. The JRJ grant is a loan repayment assistance program.  Selections will be made by the NC LEAF Board on Friday, December 4 at 10 AMApplications are due November 13 and the process is not onerous. The key factor is making the required three-year commitment to remain in the job or face repayment of funds provided by the US government. All the information is available on their website https://ncleaf.org/ 
  • October 15-16, NJDC held their 2020 Juvenile Defender Leadership Summit. Filled with presentations, resources and conversation, NJDC has released some of their resources from the program for your viewing and saving. Some sessions and resources require a password, so make sure you’re registered, but click here to check out what you missed!
  • The Public Defender Education group at the School of Government is happy to announce the release of the 2020 edition of the North Carolina Defender Manual, Volume Two, Trial, by Julie Lewis and John Rubin. The manual focuses on criminal procedure at the trial stage and includes chapters researched and written from 2018 to 2020. The manual is intended to be a resource for trial-level criminal defense attorneys; however, others who work in North Carolina’s criminal courts may find it useful. Click here if you are interested in purchasing a hard copy. The manual is also available for viewing online at no charge as a part of the Indigent Defense Manual Series

We hope you find some great -information this week and have a safe, fun, and scary Halloween! Eat plenty of Snickers for us!

Risk and Needs Assessment (YASI) Sessions

Afternoon Defenders!

North Carolina Department of Public Safety Juvenile Justice Section will begin using a new risk and needs assessment instrument beginning January 1, 2021. This new tool is called the Youth Assessment and Screening Instrument (YASI).  DJJ is offering virtual Q&A’s on the new tool to assist with the use when it launches.

The virtual YASI sessions will be conducted via WebEx and all judicial officials are invited to attend one of the following virtual sessions:

Thursday, November 5, 2020 @ 10:00 am

Friday, November 6, 2020 @ 10:00 am

Friday, November 6, 2020 @ 1:00 pm

Monday, November 9, 2020 @ 3:00 pm

Wednesday, November 18, 2020 @ 2:30 pm

 Tuesday, November 24, 2020 @ 12:00 pm

Please select a date for the meeting you would like to join via WebEx. Once you have selected your date, please email Crystal Wynn-Lewis at crystal.wynn-lewis@ncdps.gov to register for the date you are interested in attending. After you have registered, you will receive a WebEx invitation for the session selected. Please RSVP by Friday, October 30, 2020.

On behalf of Deputy Secretary William Lassiter, please see the attached New Risk and Needs Assessment (YASI) Q &A Sessions memo for your review. Please feel free to forward this to your professional associations to inform them of the upcoming trainings. Thank you.  

From A Lawyer’s View: State vs. Kelliher

Readers of this blog know well the series of cases beginning with Roper v. Simmons and running all the way through Montgomery v. Louisiana.  The thread running through each case is that kids are different from adults and, so, should be treated differently – at least at sentencing.

But this string of cases raises as many questions as it offers answers.  In Graham v. Florida, the Supreme Court barred LWOP sentences for juveniles convicted of non-homicide offenses and in Miller v. Alabama, it barred mandatory LWOP sentences for juveniles convicted of first-degree murder.  But what, exactly, constitutes a sentence of life without parole?  At first blush, this seems simple enough.  An LWOP sentence for first-degree murder obviously qualifies.  But what about a sentence of 60 years in prison?  If, based on actuarial calculations, an average 16-year-old would die before serving a 60-year sentence, would that sentence qualify as the equivalent of LWOP?  What about two consecutive sentences for non-homicide convictions that result in 60 years of imprisonment?  As you can see, the question of what qualifies as LWOP can quickly become complicated.

But on October 6, 2020, the North Carolina Court of Appeals offered answers or, more specifically, a framework for answering this question.  In State v. Kelliher, the defendant – a juvenile on the offense date – was convicted of two counts of first-degree murder.  At the conclusion of a post-Miller re-sentencing hearing, the trial judge imposed two sentences of life in prison with the possibility of parole.  However, the judge set the sentences to run consecutively, meaning that the defendant would not be eligible for parole until he had served 50 years in prison.

The Court first observed that the question of what constitutes LWOP had resulted in a split of authority around the country.  Most courts have ruled that lengthy term-of-years sentences could give rise to 8th Amendment claims.  Others have not.  In Kelliher, the Court of Appeals sided with the majority of jurisdictions holding that so-called “de facto LWOP” sentences for juveniles who are capable of reform would violate the 8th Amendment.  In so holding, the Court declined to rely on the “simple formalism” that a lengthy term-of-years sentence could not qualify as an LWOP sentence solely because it was not officially labeled LWOP or did not have a specific end date. 

The Court then held that aggregate consecutive sentences that result in the functional equivalent of life without parole could violate the 8th Amendment.  According to the Court, the focus of the Roper line of cases was “the offender, not on the crime or crimes committed.”  The Court then observed that North Carolina statutes supported the view that aggregate sentences could violate the 8th Amendment.  Although a defendant might be given consecutive sentences for multiple convictions, N.C. Gen. Stat. § 15A-1354(b) requires the prison system to “treat the defendant as though he has been committed for a single term[.]”

Finally, the Court held that the sentences imposed in Kelliher violated the 8th Amendment.  According to the structure of the sentences, the defendant would not be eligible for parole until he had served 50 years in prison.  The Court noted that the defendant was 17-years-old on the offense date and, so, would not be eligible for parole until after the retirement age of 65.  The Court also noted that the General Assembly “offered some indication” of what would not amount to a de facto LWOP sentence when it granted parole eligibility after 25 years in prison for those defendants sentenced to life with parole.  See N.C. Gen. Stat. §§ 15A-1340.19A and 15A-1340.19B(a)(1). In the end, the Court remanded the convictions to superior court for imposition of two concurrent sentences of life with parole.

At this point, the State will undoubtedly seek review in the Supreme Court of North Carolina.  That Court may well grant it.  In the meantime, the Court of Appeals has taken a side in the de facto LWOP debate.

Written by, David Andrews. David W. Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.

Feel free to download a copy of this blog post here!

Interstate Compact for Juveniles Overview – Week in Review: Oct 12-16

Happy Friday Defenders! Today’s blog post is one giant Tip of the Week written by our Assistant Juvenile Defender, Terri Johnson. This tip covers the Interstate Compact for Juveniles and is an overview of the enforceable federal law and how it is applied to juvenile delinquency court.

Interstate Compact for Juveniles Overview

Please continue reading today’s blog post by following the link above. Feel free to print yourself a copy and if you have any questions, please email Terri (terri.a.johnson@nccourts.org).

Announcement

There’s still space and time to get your FREE CLE credit from OJD this month. Thursday, October 29 from 2:30-3:30 PM: Probation Violations & Post Supervision, covering ongoing detention hearings as well as violations of probation and post release supervision. Commitment extensions, motions for review, and expunctions will also be covered. This CLE will be free to the first 35 registrants and CLE is currently pending approval. Please join us for a fresh new topic, great strategy and a few tips. PLEASE CLICK HERE TO REGISTER.

Week in Review: Oct 5-9 (edited)

Welcome to another Freaky Friday! For real this time. Apologies for the “it’s Thursday guys, not actually Friday” OJD blog email. This spooky season is giving OJD a run for it’s money! Where are the Ghostbusters when you need them? Keep reading for updated information & resources!

Important Fee App Information

There has been an increase in fee apps that have had errors in filing and causing delay in payment. We have gathered some information and created a memo to both Public Defenders and PAC to ensure accurate and timely filing for your fee apps, including which forms to file per your title and what to double check. Please see this memo for further instructions and feel free to download and print for your reference.

Tip of the Week

Procedures for a probable cause hearing in juvenile court are similar to those in adult court.  However, N.C.G.S. §7B-2202(c) mandates that the State shall show probable cause “by non-hearsay evidence or evidence that satisfies an exception to the hearsay rule.”  The State must present actual witnesses at the hearing in order to demonstrate each element of the felony offense.  Reiteration by law enforcement of third-party testimony acquired during the investigation does not satisfy this requirement.  There are exceptions for some reports and evidence regarding value, ownership, possession but remember that those exceptions do not apply at the adjudicatory hearing.

Announcements!

October CLE – Probation Violations & Post-Supervision

Thursday, October 29 from 2:30-3:30 PM, OJD brings Mary Stansell to the training floor. The webinar will cover the law on probation violations and post release supervision in delinquency court. It will address ongoing detention hearings as well as violations of probation and post release supervision. Commitment extensions, motions for review, and expunctions will also be covered. This CLE will be free to the first 35 registrants and CLE is currently pending approval. Please join us for a fresh new topic, great strategy and a few tips. PLEASE CLICK HERE TO REGISTER.

New Report: Youth Justice Under the Coronavirus

The Sentencing Project released its new report, Youth Justice Under the Coronavirus: Linking Public Health Protections to the Movement for Youth Decarceration. Summarizing lessons learned through the first months of the pandemic, and bringing focus to system responses to slow the virus’s spread to protect the safety and wellbeing of youth in the juvenile justice system. To read this report, click here.

Virtual Townhall – APA

Wednesday October 21, 2020 at 8:00 pm (EST), the American Psychiatric Association Foundation is offering a virtual town hall with featured panelists: Anish Ranjan Dube, M.D., MPH, FAPA; Sarah Vinson, M.D., and Randee Waldman, J.D. During this virtual town hall, adult, child & adolescent, and forensic psychiatry leaders, along with a Juvenile Justice legal expert, will participate in a discussion about what disruptive behaviors in youth mean, how to approach those behaviors as parents, school staff, and adults in communities, and how it relates to the School-to-Prison Pipeline. Click here to register.

Diversion Reform – NJDC Provided Resource

The Urban Institute recently released a report Assessing Juvenile Diversions in Kentucky. The report and a summary of key findings and talking points are attached. We hope these resources will be helpful for those of you who are working on expanding diversion and for arguments about stemming system involvement. Please see below for a list of resources.

“From a Lawyer’s View” Wants YOU to Be a Guest Blogger

LaTobia is looking for guest bloggers to contribute to our new series, “From a Lawyer’s View”. Defenders and those in juvenile justice are welcome to write in on topics of their expertise: secure custody, mental health in juveniles, etc! We want to hear from you! We’ll take your tips and blog posts! Reach out to LaTobia here for more information.

Week in Review: Sept 28-Oct 2

New month, same Week in Review. Happy Friday readers! We have a brand new tip for you today, an important Fee App memo and then it’s off to the races! Enjoy!

Important Fee App Information

There has been an increase in fee apps that have had errors in filing and causing delay in payment. We have gathered some information and created a memo to both Public Defenders and PAC to ensure accurate and timely filing for your fee apps, including which forms to file per your title and what to double check. Please see this memo for further instructions and feel free to download and print for your reference.

Tip of the Week

Venue – by Assistant Juvenile Defender, Terri Johnson

7B-1800 provides that adjudication shall take place in the county where the offense was alleged to have occurred.  If the juvenile is in residential treatment or foster care in that district, disposition shall occur there as well unless the court finds that transfer would “serve the ends of justice or is in the best interests of the juvenile.” 

Subsection (b) provides that the court may transfer disposition to the juvenile’s county of residence.  If the Court does not transfer disposition, it must notify the chief district court judge in the district where the juvenile resides and shall transfer the matter if the chief district court judge requests it.  If the court does not exercise its discretion to transfer a matter to the juvenile’s county of residence under 7B-1800(b)(1) or (b)(2), the court shall advise the juvenile of his/her right to transfer under 7B-1803(b)(3)If the juvenile requests transfer to his/her county of residence, the court shall transfer the matter to district where the juvenile resides for disposition.

Defenders should be aware of 7B-1800 and utilize venue where appropriate for both adjudication and disposition.  Utilize motions to dismiss for improper venue prior to or during adjudication hearings.  Additionally, the statute may be utilized for disposition to benefit a juvenile.  Remember different counties may have different policies and transfer or retention of disposition should be considered by counsel carefully.

Counsel with cases where venue may be an issue may contact OJD for assistance connecting with attorneys in other counties to collaborate on those matters.

SAVE THE DATE!

Our October CLE will be October 29, 2020 from 2:30-3:30. The topic is Probation Violations & Post Supervision and will be presented by Mary Stansell, Juvenile Chief, Wake County Public Defender Office. Be on the look out for your official registration link. As always, this CLE will be free to the first 35 registrants. CLE is currently pending. Hope to see you there!

And lastly…

THANK YOU TO EVERYONE WHO ATTENDED OUR SEPTEMBER CLE “DEFENDING CHILDREN FROM ICE”!

We hope to see you face to face soon with trainings and CLEs and appreciate your constant support and registration every month!

From a Lawyer’s View: Resolution of complaints against Guilford and Vance County school systems

Resolution of complaints against Guilford and Vance County school systems means better services for incarcerated students with disabilities

By Tessa Hale, Staff Attorney at Legal Aid of North Carolina’s statewide education justice project, Advocates for Children’s Services.

The first time I visited my client at Vance County Jail, an adult facility, I asked him what he did to fill his time.  He told me that he did push-ups.  He was just 17 years old at that time.  As his education attorney, I knew that as a student who had long ago been identified as needing special education, he was entitled to an education provided by the local school district.  His mother had alerted us to the fact that as he sat in jail, he had not been receiving any educational services whatsoever.  At that time, this client’s case was one of three in our office in which the client had received no educational services while incarcerated in adult jail.  The other two had been incarcerated in Guilford County.  Our education team at Legal Aid decided to file two systemic state complaints on May 29, 2020 with the Department of Public Instruction.

We are proud to announce that the systemic state complaints Legal Aid of North Carolina filed against Guilford County Schools and Vance County Schools have recently been resolved.  The Guilford County Schools complaint was resolved via confidential agreement. The Vance County complaint was resolved following an investigation by the N.C. Department of Public Instruction. More information, including links to documents, follows. 

Guilford County

Legal Aid was pleased with the opportunity to work with Guilford County Schools (GCS) to advance policies and procedures, some of which were already underway by the district, that will enable GCS to improve services for incarcerated students with disabilities by:

  • Reviewing and revising current procedures to require that all GCS students with disabilities incarcerated in any Guilford County jail receive appropriate special educational services;
  • Designating an employee to be responsible for ensuring legally compliant special educational services for students incarcerated in local jails for more than ten school days as well as continuity of educational services when the students exit from local jails;
  • Training special education staff regarding appropriate special educational services for incarcerated students; and
  • Conducting an internal audit for the 2019-2020 school year to determine whether special education services and related safeguards were properly afforded to GCS students with disabilities who were incarcerated in local jails for more than 10 school days and had an Individualized Education Program (IEP) during incarceration.

Learn more

Vance County

The N.C. Department of Public Instruction’s investigation into our complaint uncovered widespread violations of the rights of incarcerated students with disabilities in Vance County Schools (VCS). The department has mandated VCS to follow a corrective action plan, which includes:

  • Various trainings for staff, not only regarding incarcerated students but also concerning other general procedural requirements for students with disabilities;
  • Development of procedures to serve students incarcerated in the local jail;
  • Compensatory education for the named student in the complaint; and
  • Identification of eligible students who were incarcerated with the named complainant and did not receive appropriate services, for the purposes of providing them with compensatory education.

Learn more

The resolution of these complaints comes at a time when the population of youth incarcerated in adult jails has shrunk significantly. As a result of a new state law that went into effect on August 1, 2020, no more minors will be held in adult jail. Still, because the right to special education continues for students who are 18 to 21 and have not yet graduated, the developments in both the GCS and VCS resolutions will help ensure that eligible incarcerated students at all stages receive the special education services they are entitled to. Further, some students who may be identified through audits and who were improperly served before the law was passed will now be entitled to remedies.

Week in Review: Sept 14-18

Readers! Have we been the only ones looking forward to Friday? We can’t be. So let’s get your weekend started with a fresh blog and a couple slices of information pizza (yeah….we’d rather have a large NY Pepperoni too!)

Heads Up!

OJD is working from home and voicemail’s are checked every other day. For the fastest reply and communication, please send us an email. Email’s can be found HERE on our contact page, if you need. THANKS!

TIP OF THE WEEK – Brought to you by Raise the Age

Where Can I Find the Law on RTA?

If you want to see the Session Laws which include the Raise the Age changes, see:

Senate Bill 413: 2019 Session Amendments to the RTA Bill (Juvenile Justice Reinvestment Act)

Senate Bill 257: The final bill budget for Session Law 2017; info pertaining to the Juvenile Justice Reinvestment Act can be found on pages 309-325

You can also check out the NC General Assembly website.  Look under “Bills and Laws,” then “General Statutes.”  You can search by citation or test, or you can look at Chapter 7B under the Table of Contents, and see the most recent changes to statute text on the right side of the statute.

HAVE YOU REGISTERED YET?

Friday September 25, 2020, 2:30-3:30 PM OJD is hosting “Defend Children From ICE.” Presented by Helen Parsonage, Board Certified Immigration Specialist and FREE to the first 35 DEFENDERS who register. Discussing the topic of children and immigration, strategies in your defense and other great information, You DON’T want to miss this training. Register herePLEASE PUT YOUR BAR NUMBER IN THE JOB FIELD BOX.

Symposium: The Roles of Prosecutor and Public Defender in Criminal Justice Reform

October 2, 2020 from 10:00AM-3:00PM (EST). This will be a virtual symposium presented by the North Carolina Commission on Racial and Ethnic Disparities (NC CRED) in collaboration with the National Consortium on Racial and Ethnic Fairness in the Courts. The Keynote Speaker is Jonathan Rapping, Founder and President, Gideon’s Promise, Atlanta and will also feature presentations from prosecutors and defenders from across the country and of course, North Carolina. You can see a list of speakers and topics, by clicking HERE. To register, click HERE. Thank you!

A Bit of Information Pizza…

The School of Government has issued a new bulletin on Indigent Defense practice during COVID-19. The principal author Ian Mance, is the COVID-19 Resource Attorney in the public defense education group at UNC. Here is the link: https://www.sog.unc.edu/publications/bulletins/indigent-defense-attorneys-and-covid-19-faqs-about-practicing-during-pandemic

Click HERE for a link to an earlier bulletin by Ian about possible grounds for securing release of inmates during COVID-19

For additional resources, please see the COVID-19 Tool Kit on the School of Government Public Defense Education website.

As always, thanks for all that you do for our youth, communities and neighbors. Have a safe, socially distanced weekend, enjoy the upcoming Fall and we will see you next week.

Week in Review: Sept 7-11

Happy Friday Readers! Another week down in 2020 and we’re still all trying to figure it out. But no worries, OJD is here to help along the way. Before we get started, we take a moment to recognize the importance of today, and remember those lives lost and the heroes from September 11, 2001.

Tip of the Week – Prior Record Level Matters

If your client’s prior record places him/her in a position for the judge to enter a level 1 OR 2 dispositional level, ALWAYS argue for a level 1 disposition.  You can find a copy of the disposition chart here.  Make sure to check the final written order for accuracy.

Who could turn down free learning? CLE OFFER!

Friday September 25, 2020, 2:30-3:30 PM OJD is hosting “Defend Children From ICE.” Presented by Helen Parsonage, Board Certified Immigration Specialist and FREE to the first 35 DEFENDERS who register. Discussing the topic of children and immigration, strategies in your defense and other great information, You DON’T want to miss this training. Register herePLEASE PUT YOUR BAR NUMBER IN THE JOB FIELD BOX.

Symposium: The Roles of Prosecutor and Public Defender in Criminal Justice Reform

October 2, 2020 from 10:00AM-3:00PM (EST). This will be a virtual symposium presented by the North Carolina Commission on Racial and Ethnic Disparities (NC CRED) in collaboration with the National Consortium on Racial and Ethnic Fairness in the Courts. The Keynote Speaker is Jonathan Rapping, Founder and President, Gideon’s Promise, Atlanta and will also feature presentations from prosecutors and defenders from across the country and of course, North Carolina. You can see a list of speakers and topics, by clicking HERE. To register, click HERE. Thank you!

“A Lawyer’s View” Needs an October Submission

LaTobia is looking for guest bloggers to contribute to our Week in Review. Defenders and those in juvenile justice are welcome to write in on topics of their expertise: secure custody, mental health in juveniles, etc! We want to hear from you! There’s plenty more weeks left in the year! Reach out to LaTobia here for more information.

Week in Review: Aug 31-Sept 4

Hello September! Who else is ready for sweater weather? Fall is approaching and all we can think about is hot coffee and comfy socks, of course while we continue working :D.

Tip of the Week – What’s an Alford Plea?

A plea under State v. Alford is where an accused will admit to responsibility in court, not because they believe they are guilty, but because they believe it is in their best legal interest to do so.  While Alford is not explicitly afforded in the Juvenile Code, the Court of Appeals upheld an Alford plea, In re C.L. (2011).  Defenders should remember to explain to clients that an Alford plea has the same impacts and consequences as a standard admission.

Defenders, Register for our September CLE!

Friday September 25, 2020, 2:30-3:30 PM OJD is hosting “Defend Children From ICE.” Presented by Helen Parsonage, Board Certified Immigration Specialist and FREE to the first 35 DEFENDERS who register. Discussing the topic of children and immigration, strategies in your defense and other great information, you DON’T want to miss this training. Who could turn down free learning? Register herePLEASE PUT YOUR BAR NUMBER IN THE JOB FIELD BOX.

Racial Justice for Youth Toolkit

From the National Juvenile Defender Center, the “Racial Justice for Youth: A Toolkit for Defenders empowers juvenile defenders with the training, resources, and information to fight the over-policing, over-criminalization, and school exclusion of youth of color.

Through the Toolkit, we hope to inspire juvenile defenders to view racial justice advocacy as an integral and essential component of their youth advocacy.”

Please take a moment to sign up for the toolkit. Click here to sign up for a Racial Justice Defender Toolkit account for access to member-only resources that may not be available to the public. In doing so, you are helping to continuously advocate for racial justice throughout a youth’s case and help fight systemic racism in our courts.

HAVE A SAFE AND FUN (SOCIALLY-DISTANCED) LABOR DAY WEEKEND!