Tick-tock: February Means Attorneys Have 28 Days To Meet CLE Deadline

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By Kim Wentworth

Ready or not, February is upon us.

As of Feb. 1, attorneys have 28 days to get their North Carolina State Bar Mandatory Continuing Legal Education (MCLE) in for 2016.

As attorneys know, they must complete 12 hours of CLE credit each year. Two of these hours must be ethics/professional responsibility credit and at least once every three calendar years, each attorney must complete one hour of substance abuse/mental health credit.

We all know how busy things get for attorneys and how the year can easily slip away, then before you know it, the grace period is almost over and you still don’t have your CLE hours completed. For that reason, the NCBA CLE department makes sure that its February schedule is as jam-packed as possible in order to give everyone ample opportunity to get their hours completed. It is our mission to get everyone across that finish line.

Here are some numbers to highlight what February looks like at the Bar Center and around the state:

  • 16 live programs this month in three locations — Cary, Greensboro and Pinehurst;
  • 12 webcasts members can participate in from the comfort of their own home or office;
  • 66 video replays happening in 17 cities all across the state including Cary, Winston-Salem, Concord, Pinehurst, New Bern, Boone, Wilson, Wilmington, Asheville, Greensboro, Fayetteville, Hickory, Lumberton, Roanoke Rapids, Charlotte, Manteo and Shelby;
  • 40 phone/audio streaming options, five webinar options and over 800 on-demand programs to view from your computer or mobile device;
  • Two Marathon Days (Feb. 25 and 28) when you can earn up to 18 hours of MCLE credit including seven hours of ethics/professional responsibility and four hours of substance abuse/mental health hours.

By the time this month comes to an end, not only will we have all lawyers caught up on their MCLE credit hours, we will also be celebrating another successful February in the books.

 

 

 

 

Chief Justice’s Commission Issues Report With Blueprint For Improving Indigent Defense

By Thomas K. Maher

On Dec. 2, 2016, the North Carolina Commission on the Administration of Law and Justice, which was the result of work by Chief Justice Martin, met for the final time. The commission worked through five committees, including the Criminal Investigation and Adjudication Committee. The Criminal Investigation and Adjudication Committee worked on several subjects, including the age of juvenile jurisdiction, pre-trial release, case management and indigent defense.  The work on indigent defense was done through a subcommittee, which included members with a wide range of experience, including two Chief Public Defenders, an elected District Attorney, a Sheriff, Magistrate, as well as District and Superior Court judges.  Professor Jessica Smith, from the School of Government, served as the reporter, and was instrumental in the production of the final report.

The 51-page report provides an in-depth discussion of the many challenges that any indigent defense system faces. The report also makes specific recommendations for improving North Carolina’s indigent defense system, some of which can be implemented without legislative action, and some of which will require legislation. These recommendations are a long-term blueprint for strengthening indigent defense. All of the recommendations are geared toward achieving a criminal justice system in which the quality of justice does not depend on the wealth of the defendant. The report emphasizes the importance of providing effective assistance of counsel to all who find themselves in the criminal justice system, observing that the cost of not providing effective representation includes not only wrongful convictions, but also excessive pre-trial detention, increased pressure on innocent persons to plead guilty, excessive sentences, and the dramatic collateral consequences that often accompany a criminal conviction. Indeed, the opening paragraph of the report states:

As the United States Supreme Court recently declared: “No one doubts the fundamental character of a criminal defendant’s Sixth Amendment right to the ‘Assistance of Counsel.’ ” This right is so critical that the high Court has deemed its wrongful deprivation to constitute “structural” error, affecting the very “framework within which the trial proceeds.” For indigent defendants, this fundamental right to effective assistance of counsel must be provided at state expense. When the system fails to provide this right, it denies indigent defendants justice. That denial has very real consequences for defendants, including excessive pretrial detention, increased pressure on innocent persons to plead guilty, wrongful convictions, and excessive sentences

There is no doubt that indigent defense throughout much of the United States is in a state of crisis, and that North Carolina is beginning to see the impact of lessened resources for indigent defense. The eroding quality of  indigent defense is an issue that concerns not only the usual liberal supporters of providing adequate counsel for those too poor to hire a lawyer, but also conservatives, such as Charles Koch, chairman and CEO of Koch Industries. The bi-partisan recognition of the importance of a healthy indigent defense system should provide hope that positive change is possible.

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Wellness: When Feeling Good Feels Even Better Than Losing Weight

By Russell Rawlings

Wellness was not a familiar term when I did something about mine in 1978. That was the year I lost 140 pounds and changed my life forever.

Whether that qualifies me to write on the subject of wellness remains to be seen. There’s certainly more to wellness than losing weight. On the other hand, wellness would be difficult to achieve without some semblance of weight control.

If there is any advantage to having been the fat kid in school all the way into my senior year of college, it would be my experience with weight. From gaining it to losing it, from living with it to keeping it off, I know weight, and it knows me.

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Help For The Legislative Drafter: Part 2

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This column originally appeared in the November 2016 edition of North Carolina Lawyer.

By Laura Graham

In the most recent installment of Writing that Works, I introduced a fairly new resource for legal writers whose work includes drafting statutes and rules. The book, Plain English for Drafting Statutes and Rules,[1] is a slim volume, but it covers a lot of ground. In that column, I drew from the book to highlight three central principles of effective legislative drafting: (1) use simple declarative sentences; (2) punctuate with care; and (3) tabulate with clarity. In this follow-up column, I’ve chosen to highlight two additional principles.

Use “common and known words.” This principle is apparently one of the very first—and most enduring—legislative drafting principles. According to the authors of Plain English for Drafting Statutes and Rules, one of the most influential statements of this principle came in the late eighteenth century, when English jurist and philosopher and Jeremy Bentham wrote:

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Raise the Age For the N.C. Juvenile Justice System

By Eric Zogry and Marcus Thompson

The N.C. Commission on the Administration of Law and Justice’s Committee on Criminal Investigation and Adjudication is recommending that North Carolina raise the age of juvenile jurisdiction to include all youth under the age of 18 for all crimes.  Juveniles aged 16 and 17 charged with the most serious felonies may be transferred to the adult system after a finding of probable cause or indictment.  Other recommendations include reducing school-based recommendations to the juvenile justice system and regular training for law enforcement in handling juveniles.  This proposal also recommends more information be provided for law enforcement officers who may interact with juveniles and that information on juvenile records should be more accessible to prosecutors.

Since 1919, North Carolina has been the only state to treat youth ages 16 and 17 years old as adults in the justice system without exception.  However, substantial evidence supports that keeping individuals under the age of 18 in the juvenile justice system rather than the criminal justice system would have a significant beneficial impact on everyone involved, including benefitting the justice system economically.

Statistical data indicates that 96.7 percent of convictions for youth are usually for nonviolent felonies and misdemeanors, with misdemeanors making up 80.4 percent of these crimes.  Scientific studies suggest that because of the maturity level of the brain, for teens the ability to reason and control impulsive behaviors is very limited.  Reports from the John Locke Foundation also support that youth convicted in the criminal court system are actually more likely to be repeat offenders due to light sentencing for petty crimes, less support, and immaturity of the brain to consider the consequences of their actions.  Several United States Supreme Court cases have also held that the treatment of juveniles as adults in certain circumstances violates their Eighth Amendment right.

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Raise the Age For the N.C. Juvenile Justice System

By Eric Zogry and Marcus Thompson

The N.C. Commission on the Administration of Law and Justice’s Committee on Criminal Investigation and Adjudication is recommending that North Carolina raise the age of juvenile jurisdiction to include all youth under the age of 18 for all crimes.  Juveniles aged 16 and 17 charged with the most serious felonies may be transferred to the adult system after a finding of probable cause or indictment.  Other recommendations include reducing school-based recommendations to the juvenile justice system and regular training for law enforcement in handling juveniles.  This proposal also recommends more information be provided for law enforcement officers who may interact with juveniles and that information on juvenile records should be more accessible to prosecutors.

Since 1919, North Carolina has been the only state to treat youth ages 16 and 17 years old as adults in the justice system without exception.  However, substantial evidence supports that keeping individuals under the age of 18 in the juvenile justice system rather than the criminal justice system would have a significant beneficial impact on everyone involved, including benefitting the justice system economically.

Statistical data indicates that 96.7 percent of convictions for youth are usually for nonviolent felonies and misdemeanors, with misdemeanors making up 80.4 percent of these crimes.  Scientific studies suggest that because of the maturity level of the brain, for teens the ability to reason and control impulsive behaviors is very limited.  Reports from the John Locke Foundation also support that youth convicted in the criminal court system are actually more likely to be repeat offenders due to light sentencing for petty crimes, less support, and immaturity of the brain to consider the consequences of their actions.  Several United States Supreme Court cases have also held that the treatment of juveniles as adults in certain circumstances violates their Eighth Amendment right.

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Lawyer-Turned-Teacher: Mock Trial Competition Teaches Students To Think On Their Feet

By Jesse Pittard

I have been involved with the North Carolina Bar Association’s Justice Iredell Middle School Mock Trial tournament for six years. The mock trial program is the most meaningful and influential activity that my students participate in. It helps students to become confident in themselves and their abilities.  Students who participate in mock trial not only learn about the justice system but acquire important skills that help them be successful in and out of the classroom.

Mock trial teaches students skills that are not easily acquired in the classroom.  First, mock trial helps to develop students’ analytical abilities.  Mock trial takes students beyond memorization.  Instead of memorization, students have to learn to organize facts, apply the facts to the law, and then to use these facts to build a case.  To see middle school students do this is simply amazing.

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A Practice Management Expert’s Top Gift Ideas for Techies

By Joyce Brafford

Tech gurus know that nothing pleases a fellow techie like a new gadget for the holidays. Here are my top five picks for the techies you love. Although, you just may keep a few for yourself.

For the Cord Cutter: Mohu Releaf 30, $29.99

This is a wonderful gift for anyone who has, or is thinking about, ditching the cable box. Mohu has a variety of products, but the Releaf is a great place to start your shopping. Built from recycled cable boxes and with a range of 30 miles, it’s a gift that will allow the recipient to cut the cable cord, cut their monthly utilities and stay in touch with local news and events.  http://releaf.gomohu.com/

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A Tale Of Two Legal Tech Conferences: Artificial Intelligence, Practice Management And More

By Erik Mazzone

It was the best of conferences, it was the … actually, they were both pretty good.

Not exactly Dickens, is it?

I recently attended two legal technology conferences. They were interesting both for their similarities (“The future is now!”) and their differences (evolutionary or revolutionary change). The first conference – eponymously called the Clio Cloud Conference – was put on by the maker of practice management software Clio.

The first notable thing about the Clio Conference was that it is a legal technology conference that is not put on by a bar association, trade association, or media company. It is a user conference – common in technology circles but not in legal tech. As adoption of legal technology increases, the rise of the user conference nods to the need for educational offerings that are product and platform-specific. It makes sense: Once a firm is spending lots of dough on a particular product, they’re going to be a lot more interested in how to make that product sing than in another survey course that’s a mile wide and an inch deep.

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After Years Of Wrongful Imprisonment, Darryl Howard Was Sustained By Love, Redeemed By Justice

By Amber Nimocks

Darryl and Nannie Howard banter gently, laughing and smiling a bit like newlyweds, a bit like the long-married couple they are. Their ease and happiness with each other seem to belie the 24 years of physical separation they have endured.

Until late this summer, Howard was imprisoned, serving time for crimes he insisted he was innocent of from the start. He walked out of a Durham courtroom on Aug. 31 after Superior Court Judge Orlando Hudson vacated guilty verdicts against him in a 1991 double murder. The decision came after Howard’s attorneys presented the judge with DNA evidence that had not been presented to the jury that heard Howard’s case. The evidence excluded Howard from the murders of Doris Washington and her 13-year-old daughter Nishonda and linked two others to the crime scene. The Durham District Attorney’s Office did not appeal the ruling.

Howard credits his faith and his wife’s support for helping him hold onto hope through years of unjust incarceration.

“It was a lot of faith in God, and the knowledge that I knew one day – I think anybody in my situation would know – I didn’t do it and I’m going to get out one day – and Nannie,” he said. “She helped me with every single thing I went through … She came to see me every week. She based all her decisions in her life around me being out one day, around us being out one day and she stayed with me and helped me out.”

While her husband was imprisoned, Nannie kept their troubles largely to herself. She helped him petition attorneys for help. She drove to see him every week, trekking all over the state. She talked with him by phone several times each day. And 18 years ago they were married while he was behind bars. But none of her colleagues at the North Carolina Bar Center, where she worked on contract for Xerox for about a dozen years, knew about her husband until they saw it on the news. She said she was secretive because she didn’t want anyone feeling sorry for her and she didn’t want the drama.

“That would be the topic every single day, and it would become such a big issue that, you know,   I could see people walking around me whispering ‘That’s the one whose husband is in prison’ and I just didn’t want that,” she said. “I just wanted everyone to say ‘Hey, Nannie,’ and just go on with the day. I came in with a smile and I did my job I didn’t want that burden of ‘Oh my God, how are you feeling today? I didn’t want that pity.”

Like her husband, she credits her faith and their relationship for sustaining her.

“We talked a lot,” she said. “He would have a struggle or be upset about something and we would be on the phone sometimes three and four times a day just talking about random stuff. We talked about it – anything that had him upset, we talked through it because I didn’t want him to overreact and get into trouble while he was in prison. And if we had a conflict with each other we made a point of never going to bed or saying good night to each other angry. So, we had to make up or before we fell asleep or before the phone was cut off, which was like 8 or 9 o’clock.”

‘No better feeling’

Nannie wasn’t Howard’s only connection to the NCBA. One member of the legal team that helped win his freedom was Womble Carlyle attorney Jim Cooney, an NCBA member and past recipient of the NCBA’s William Thorp Pro Bono Award and the Wade M. Smith Award for criminal defense.

Cooney got involved in the case after Innocence Project founder Barry Scheck agreed to take it on. He and Scheck had worked together on the Duke Lacrosse defense and before. The result of the Howard case stands out, even in a career as a remarkable as Cooney’s.

“When a judge lets someone go in a case like this, like he did with Darryl, particularly saying he was innocent – that’s happened to me before, and for a lawyer, well, there’s no better feeling,” he said.

Cooney said fresh DNA evidence was key to the case.

“The DNA testing we were able to do was very different than what was done in 1991,” he said.

Once that evidence was in play, Cooney said, “It cascaded in a way that none of us had anticipated.”

The victims in the case were found naked and dead in their home in a Durham housing complex. Both had been beaten, and the daughter, Nishonda, had been strangled. Testing done at the time of the investigation found semen in Nishonda, and that semen could not be linked to Darryl Howard, Cooney said.

Prosecutors, including then Assistant District Attorney Mike Nifong, argued that Nishonda had engaged in consensual sex with her boyfriend and that rape had nothing to do with the murder. When Innocence Team investigators renewed an examination of the evidence, they found semen in the mother, Doris, which earlier investigators had not been able to find. That semen could not be linked to Howard either, Cooney said.

“Now we had two different semen samples from two different men, neither of whom were Darryl, one of whom is a convicted felon,” Cooney said. “There’s no trace of physical evidence [against Darryl], and you cannot have killed these women in this way without leaving some form of DNA.”

When investigators ran the DNA through a federal database of criminals’ DNA records, they got a cold hit on a felon named Jermeck Jones, who had been imprisoned in Tennessee. Jones had been living a couple of blocks from the victims at the time of the crime.

Durham police brought Jones in to get a confirmatory DNA and for interrogation in 2012. During the course of that interrogation, while he was left alone, Jones was recorded on videotape making a call, telling whomever was on the other line that he wasn’t going to be a rat, and that he needed a lawyer.

Howard’s legal team did not see the tape of that call until July of this year, Cooney said. When Jermeck Jones was called to testify in front of Judge Hudson, he invoked his Fifth Amendment rights.

But, Cooney said, Durham police knew more during the original investigation than they had shared with Howard’s defense team. Initial media reports of the crime included no mention of the victims having been raped. But prosecutors received a tip from an informant in 1993 who said he or she knew the victims were raped and murdered.

“That informant’s tip was never produced,” Cooney said. “They argued that there was no rape.  The police officer who got the tip said he never suspected this was a sex offense.”

Howard’s case points to the power of DNA testing, Cooney said, and it demonstrates the importance of open-file discovery and the videotaping of interrogations.

It also demonstrates how important pro bono work is. Cooney estimated that Womble Carlyle dedicated several hundred thousand dollars’ worth of resources to the Howard case.

Inspired By Belief

For Darryl and Nannie Howard, Cooney and the Innocence Project lawyers who worked on his case, Scheck, Seema Saifee and others, became like family.

“I love them people, I really do,” Darryl Howard said.

He said their belief in his innocence inspired him. Howard recalls a moment in court when Cooney was asked to recall a detail about the case that Howard himself could not remember. His attorney answered without missing a beat.

“He stood right up and gave them an answer like he knew it,” Howard said. “I couldn’t believe he even knew that. I said ‘Mr. Cooney, how could you know that?’ He just stopped me and looked in my face and said ‘Because I care about you.’ It almost made me cry.”

Howard said still believes in the justice system even though he has first-hand experience with its flaws. Checks on prosecutorial power would help, he said.

“Every day we’re finding out there’s more people in prison for something they didn’t do,” Howard said. “More and more and more and more …  I think it’s happening a lot more than we realize. And the reason why it’s happening is because the people that do it, nothing can be done to them.”

He would also advocate for more of an emphasis on helping prisoners prepare for a life after incarceration.

“Guys are in prison so long they lose everything around them and when they get out the state’s got to take care of them again,” Howard said. “They have to worry about them again. That’s an extra burden. … Prisons don’t rehabilitate. They give you a TV and they give you a chair and say ‘Go sit down over there.’ It’s an industry.”

But Howard says he’s not angry. He and Nannie celebrated their 18th anniversary – their first in freedom – in September. They have a lot of lost time to make up for, and it’s clear from the way they smile at each other that they aren’t wasting any of it.

Donations to Darryl Howard can be made via his Razoo fund-raising page: https://www.razoo.com/us/story/Darrylhoward