Written by Starr Ward, Attorney at Law
We all get the early morning phone call to come to court for a secured custody hearing for a juvenile that got picked up overnight or over the weekend. These hearings are usually done quickly and we, as the defense attorney, are usually playing a game of catch-up to review the petitions and to ﬁgure out what happened and how we can get our client released from secured custody.
Recently, I have had several cases where the paperwork on the charging petitions has been incomplete on either a factual basis or the petition is missing the required signatures. For instance, it is insuﬃcient when the State recites that statutory language but there is no personally identifying information given like the name of the alleged victim, location, or type of property stolen. Also, check the back of the petition to make sure that both the magistrate and the juvenile court counselor have signed in the correct places.
Understandably, the State makes every eﬀort to remedy the faulty paperwork. While the District Attorney’s Oﬃce is completely within their purview to reﬁle petitions, they have a limited time window to ﬁx the petitions to keep the juvenile in secured custody.
N.C.G.S. 7B-1901 provides that a juvenile taken into temporary custody shall not be held for more than 12 hours, or more than 24 hours if any of the 12 hours falls on a Saturday or Sunday, or a legal holiday, unless a petition or motion for review has been ﬁled and order for secure or nonsecure custody has been entered.
A few weeks ago I had a juvenile who was charged with several felonies. The police took him into custody at 3:02 pm on a Sunday. The charging petition signed by the magistrate was not legally suﬃcient and the District Attorney’s Oﬃce sought to remedy this by ﬁling a new petition the next day, Monday, at 3:58 pm. The juvenile’s secured custody hearing was moved to Tuesday morning and then I was appointed as attorney of record.
During the secured custody hearing, I successfully argued that the juvenile’s rights had been violated as he had been held for more than 24 hours without a petition or a motion for review being ﬁled. While attempts were made to complete the paperwork, the actual charging petition was not ﬁled for almost 25 hours after the juvenile was taken into custody. The presiding judge found that he had no choice but to release my client from secured custody.
Arguably our most important job as defense attorneys is to get juveniles released from secured custody. While there is nothing that stops district attorneys from reﬁling petitions and from seeking a new secured custody order later, often they do not. This may be a small “win” in the overarching scope of the case but, it is important to make sure that every detail of the juvenile code is followed precisely and in a timely manner.
I am happy to report that while this juvenile’s case is still pending, he is doing well at home with his family.
Starr Ward is an OJD contract attorney in Greensboro, NC who specializes in all misdemeanor and felony cases, as well as juvenile delinquency. She has been practicing law since 2004 and currently owns her own practice.