Week in Review: June 6-10
Happy Friday Readers! School's out and the summer has officially started for the kids! While we know that summer means less school-based offenses, we know that doesn't mean things slow down for our defenders. We'll be sharing all the same great tips this summer and a few new ones like today. This week we have one of those new tips, a look at OJD at the SJDC Summit and a new job opportunity with the Office of the Capital Defender. Let's get started:
Tip of the Week: What Does the Victims’ Rights Statute Really Require?
As defense attorneys, you may frequently hear ADAs mention Marsy’s Law or the Victims’ Rights Act. It is not unusual for this statute to be cited as the reason for the State to oppose or request a continuance and/or to refuse plea negotiations. It is utilized during bond hearings in district criminal court and secure custody hearings in delinquency court. The ADA may even express concern about being sanctioned by the Bar or civilly sued for failure to comply with the Victims’ Rights laws. Given the importance attached to the statute by prosecutors statewide, what exactly is required under the statute?
N.C.G.S. 15A-830 through 15A-839 is the entirety of the Act found here. However, counsel for youth should note that similar language is tracked in 7B-2051 through 7B-2058 found here. Counsel should review both the Juvenile Code as well as Chapter 15 provisions, particularly for youth subject to mandatory or discretionary transfer. In either case, “victim” is defined as “a person against whom there is probable cause to believe a juvenile has committed an offense against the person or a felony property offense” (emphasis added and the term “juvenile” utilized instead of defendant for focus on youth in delinquency court). Counsel should note that the enumerated list includes A-E felonies, assault inflicting serious injury, assault on handicapped persons, common law robbery, felonious restraint, murder, arson, burglary, sexual exploitation of minors, and indecent liberties. While this list is not exhaustive, counsel should determine at the time of appointment whether the offense is one for which the Victims’ Rights Act applies. Counsel should pay attention to any reference to a victim in misdemeanor cases as only certain misdemeanors fall within the Act. (For arguments you may encounter from the prosecution, counsel may find additional information here.) When the State requests a continuance for the “victim” or opposes the defense motion based upon the wishes of the “victim,” counsel may then argue that the Act does not apply as the referenced person is not a victim as defined by statute.
ADAs may argue to the Court that they are required to have the victim present in cases that do properly fall within the Act. The rights afforded victims are enumerated in 7B-2052 and include “the right, upon request, to reasonable, accurate, and timely notice of court proceedings; the right, upon request to be present at court proceedings; the right to be heard at court proceedings involving adjudication, disposition, or release of the juvenile; the right to receive reasonable restitution…when ordered.” Again, the preceding list is not exhaustive, but counsel should note that the statutory rights are based upon the request of the victim. If an alleged victim has not contacted the prosecutor’s office and requested notice of hearings and requested to be present, then counsel may object to the State’s motion to continue. In fact, the statute indicates that in cases where a victim has requested notice and information, it is the victim’s responsibility to notify the district attorney’s office of any changes in contact information.
While the Act does create certain rights for alleged victims, it does not create a duty for the prosecutor to become the victim’s attorney. The district attorney must allow the victim an opportunity to meet with an ADA to obtain the views of the victim but does not require a prosecutor to follow the whims and wishes of the alleged victim. Further, the Act does not create a claim for damages against the State. 7B-2052(c) specifically states that no claim for damages is authorized by the Act and counsel should remind prosecutors of this section.
Last, the Act does not authorize release of confidential information for the juvenile to victims. Information released is limited by 7B-2054(i) to whether the juvenile was adjudicated delinquent, the class of offense, the dispositions available to the court, no contact orders related to the victim and any order for restitution. 7B-2057 specifically addresses confidentiality and provides that no agency, department or official is authorized to allow a victim to inspect or copy any part of the juvenile record. Notices provided shall only utilize the juvenile’s initials.
For questions or assistance please contact the Office of the Juvenile Defender.
SJDC Summit: Terri & Burcu head to Montgomery, AL
From June 2-June 4 Terri and Burcu traveled to SJDC and got the chance to mingle with attorneys, participate in panels, and attend trainings every day. Check out some of the photos from the training below!
The Office of the Captial Defender is Hiring!
The Office of the Capital Defender will be hiring a legal assistant in our Durham office. Work hours are 8:00 AM - 5:00 PM, Monday - Friday but are flexible for 20 hours a week as a temporary, part-time staff member. The posting closes on June 21st at 5 pm. Please feel free to share with anyone you know who may be interested! The job posting may be found here at: https://www.governmentjobs.com/jobs/3587941-0/legal-assistant-iii
Thank you to First Sergeant J. Carlos Rojas with the North Carolina National Guard and Chief Public Defender, Lieutenant Colonel, and Military Judge Bert Kemp for presenting for our Military Collateral Consequences CLE. There were some great questions asked and really great information shared for our clients chasing their military dreams. This CLE will be posted in our Defender Portal. If you do juvenile work and require access, please email LaTobia Avent.