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Out-of-County Process Legal Procedures: Training Session for Judges

Join the fall conference to understand handling out-of-county processes, issues faced by judges, and local problem-solving. Learn legal requirements and procedures for efficient resolution.

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Out-of-County Process Legal Procedures: Training Session for Judges

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  1. Association of District Court Judges 2004 Fall Conference OUT OF COUNTY PROCESS Tom Andrews General Counsel, AOC

  2. OUT OF COUNTY PROCESS • GOALS OF THIS SESSION • ONE • TO FAMILIARIZE YOU WITH THE LEGAL AND PROCEDURAL REQUIREMENT FOR HANDLING OUT OF COUNTY • TWO • TO IDENTIFY PROBLEMS FOR THE SYSTEM AND ISSUES FOR JUDGS • THREE • TO ENCOURAGE COOPERATIVE LOCAL PROBLEM SOLVING AND OFFER TRAINING

  3. GOAL ONE - LEGAL AND PROCEDURAL REQUIREMENTS • INTRODUCTION • THE SITUATION • Defendant is charged in one county • Paper process issued in that county • Process in possession of law enforcement agency in that county • Defendant arrested in another county • Arresting officer does not have original or copy of process in his/her possession at time of arrest • OFFICER knows warrant has been issued in the other county

  4. INTRODUCTION (Continued) • DISTINGUISH PAPERLESS ARREST FROM WARRANTLESS ARREST • This situation is a PAPERLESS ARREST, not a warrantless arrest. • A warrant or other process has been issued • It is just not in the possession of the officer who made the arrest • But the officer knew that the warrant had been issued • G.S. 15A-401(a)(2) authorizes paperless arrest • A warrantless arrest is when no warrant has ever been issued, and the officer’s arrest is based his/her personal observation or knowledge of facts constituting probable cause.

  5. INTRODUCTION (Continued) • CLARIFY TERMS • ORIGINATING COUNTY • COUNTY WHERE CHARGES PENDING • COUNTY OF ARREST • COUNTY WHERE DEFENDANT ARRESTED • PROCESS INCLUDES • WARRANT • ORDER FOR ARREST • CRIMINAL SUMMONS

  6. INTRODUCTION (Continued) • CLARIFY MORE TERMS • ORIGINAL INCLUDES • INK-OR COMPUTER-SIGNED PAPER ORIGINAL ISSUED IN ORIGINATING COUNTY • WHAT IS PRINTED OUT BY A FAX MACHINE IN COUNTY OF ARREST • WHAT IS PRINTED OUT IN COUNTY OF ARREST USING MAGISTRATES’ SYSTEM • INITIATING LAW ENFORCEMENT AGENCY • THE AGENCY THAT SWORE OUT THE PROCESS IN THE ORIGINATING COUNTY

  7. STEPS IN COUNTY OF ARREST • 1. VERIFY THAT PROCESS IS STILL OUTSTANDING • 2. CONDUCT INITIAL APPEARANCE • 3. RELEASE DEFENDANT WHEN CONDITIONS OF RELEASE ARE MET • 4. OFFICER SERVES DEFENDANT AND ENTERS RETURN ON ORIGINAL • 5. NOTIFY ORIGINATING COUNTY THAT DEFENDANT WAS ARRESTED, RECALL PROCESS AND RETURN ALL PAPERWORK TO ORIGINATING COUNTY • 6. SHERIFF TRANSFERS DEFENDANT TO ORIGINATING COUNTY

  8. STEP 1-VERIFY THAT PROCESS IS STILL OUTSTANDING • Outstanding means • Process not already served • Process not recalled • Charges not disposed • Prosecutor still wants to prosecute • Undisposed charges • VDWL charges • Why is this a problem? • DCI messages often stale • Law enforcement agencies and agencies do not necessarily update

  9. STEP 1 - VERIFY THAT PROCESS IS STILL OUTSTANDING (Continued) • Verification is responsibility of arresting officer/agency in county of arrest • Judicial official conducting initial appearance must: • Be sure arresting officer/agency has verified that process is outstanding, or • Do it yourself • FAILURE TO VERIFY RISKS CONFIRMING FALSE ARREST !!

  10. STEP 2 - CONDUCT INITIAL APPEARANCE • OBTAIN ORIGINAL PROCESS FROM ORIGINATING COUNTY AS SOON AS POSSIBLE • SOURCES: • FAX • MAGISTRATES’ SYSTEM • PHYSICAL DELIVERY OF PAPER ORIGINAL

  11. STEP 2 - CONDUCT INITIAL APPEARANCE (Continued) • PROMPTLY SET CONDITIONS OF PRETRIAL RELEASE • JUDICIAL OFFICIAL MUST SET CONDITIONS OF PRETRIAL RELEASE AND ENTER RELEASE ORDER AS SOON AS ENOUGH INFORMATION IS AVAILABLE • IT IS NEVER PERMISSIBLE TO DELAY ENTERING RELEASE ORDER FOR NO REASON OTHER THAT TO WAIT FOR ORIGINAL TO BE RECEIVED

  12. STEP 2 - CONDUCT INITIAL APPEARANCE (Continued) • SET COURT DATE IN ORIGINATING COUNTY • IF OFA, DATE IN OFA • MISDEMEANOR, CHARGING OFFICER’S NEXT COURT DATE • IF FELONY, • CHARGED IN WARRANT, NEXT SESSION OF DISTRICT COURT • CHARGED IN INDICTMENT AND OFA, NEXT SESSION OF SUPERIOR COURT

  13. STEP 2 - CONDUCT INITIAL APPEARANCE (Continued) • NOTIFY ORIGINATING COUNTY OF COURT DATE • Do this immediately • Use any effective means • E-mail • Fax release order • Phone call • Do not wait until all paper is ready to be returned

  14. STEP 3 - RELEASE DEFENDANT WHEN CONDITIONS ARE MET • WHEN DEFENDANT SATISFIES CONDITIONS OF PRETRIAL RELEASE • Defendant must be released IMMEDIATELY • Whether or not copy of process has been received or served • Do not wait for original to be received to release defendant • When original received, a law enforcement officer must find the defendant later and serve a copy • Failure to serve is grounds for continuance

  15. STEP 4 - OFFICER SERVES DEFENDANT AND ENTERS RETURN ORIGINAL • Reminder – the original will now be what is printed by fax machine or the magistrates’ system • Officer copies this original and gives the copy to the defendant • If defendant still in custody, the copy is served then • If the defendant has been released, the OFFICER must find the defendant later and serve copy • Officer enters return on the original

  16. STEP 5 - NOTIFY ORIGINATING COUNTY THAT DEFENDANT WAS ARRESTED, RECALL PROCESS and RETURN PAPERWORK TO ORIGINATING COUNTY • Notify promptly to avoid second arrest of defendant • Notify both initiating agency and clerk • Use any effective means • Return paperwork promptly so judge it is in shuck by court date • Clerk and magistrate should work out respective responsibilities

  17. STEP 5 - NOTIFY ORIGINATING COUNTY THAT DEFENDANT WAS ARRESTED, RECALL PROCESS and RETURN PAPERWORK TO ORIGINATING COUNTY (Continued) • If defendant has not been released, return the following • Original process bearing Officer’s return • Copy of Release Order • If defendant has been released, return the following: • Original process bearing Officer’s return • Original Release Order, with release date entered on Side Two • Original Criminal Appearance Bond, if any

  18. STEP 6 - SHERIFF TRANSFERS DEFENDANT TO ORIGINATING COUNTY • Defendant who is not released from jail must be transported to originating county • Needs to arrive before court date • This avoids unnecessary FTA • This is the Sheriff’s responsibility • Do all you can to assure sheriff does this.

  19. STEPS IN ORIGINATING COUNTY • 1. INITIATING AGENCY RETURNS ITS ORIGINAL PROCESS TO CLERK IMMEDIATELY FAXING IT TO COUNTY OF ARREST • 2. CLERK PLACES THIS ORIGINAL PROCESSIN COURT FILE • 3. CLERK RECEIVES NOTICE OF COURT DATE FROM COUNTY OF ARREST AND ADDS TO CALENDAR; RECALLS PROCESS FROM INITIATING AGENCY IF NECESSARY

  20. STEPS IN ORIGINATING COUNTY (Continued) • 4. CLERK RECEIVES PAPERWORK FROM COUNTY OF ARREST AND PLACES IN COURT FILE • 5. FILE SHOULD CONTAIN • Original process as issued in originating county • Duplicate original generated in county of arrest, with officer’s return completed • If defendant released in county of arrest • Original release order • Original bond • If defendant not released in county of arrest • Copy of release order

  21. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – COUNTY OF ARREST • What could go wrong on your end • Magistrate may hold defendant too long without setting conditions of pretrial release • Jail may hold defendant too long after defendant makes bail • Bail may be too high • Even properly held defendant may remain in your jail through his/her court date in the originating county • Defendant may never be bought to court in your county, even if still in your local jail • Magistrate/Clerk may fail to notify originating county of defendant’s court date or to forward paperwork • Magistrate/Clerk may assign unavailable court date

  22. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – COUNTY OF ARREST • Practical consequences • Adds to local jail overcrowding • Your County incurs unnecessary expense in housing prisoners not even facing changes in your county • Defendant’s rights violated in your county • Defendant fails to appear on court date in originating county • Defendant’s case not calendared in originating county or calendared on unavailable date

  23. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – COUNTY OF ARREST • Options for Presiding Judge • If defendant is brought to court with all other prisoners in jail for first court appearance • Make sure there is a release order, and defendant has not posted required bail • Review charges and release order • Reduce bail on own motion or recommendation of jailer of prosecutor, if appropriate • Consider appointing local attorney just to advocate for reduction in bail • Encourage your jailer to get the sheriff of the originating county to pick up defendant, ASAP • If defendant not brought from jail with other prisoners facing in-county charges • Not much

  24. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – COUNTY OF ARREST • Cooperative Problem Solving • Work with sheriff to be sure all prisoners are brought to court, including those in custody on out of county charges, both felony or misdemeanor charges • Encourage Jailer to do all possible to have sheriffs of originating counties come pick up prisoners ASAP • Set up training session (Goal Three)

  25. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – ORIGINATING COUNTY • What could go wrong on your end • DEFENDANT FAILS TO APPEAR ON COURT DATE BECAUSE STILL IN JAIL IN THE COUNTY OF ARREST • DEFENDANT IS RELEASED AND APPEARS ON COURT DATE, BUT CASE IS NOT ON CALENDAR BECAUSE COUNTY OF ARREST HAS NOT NOTIFIED OF COURT DATE OR FORWARDED PAPERWORK • CASE CALENDARED FOR DATE OTHER THAT IN DEFENDANT’S RELEASE ORDER, DEFENDANT FAILS TO APPEAR ON THAT DATE AND IS FTA’D • DEFENDANT ARRESTED A SECOND TIME ON THE ORIGINAL PROCESS BECAUSE IT IS NOT RETURNED TO THE CLERK

  26. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – ORIGINATING COUNTY • Practical consequences • Inappropriate C & F, FTA, OFA, BDFR • Unnecessary paperwork in Clerk’s office • Unnecessary and futile work for local law enforcement • Unnecessary motions to strike FTA and recall OFA • Unnecessary motions to set aside forfeitures • Defendant pays premium for unnecessary second bond • Defendant illegally arrested for FTA on court date not in release order • AOC pays damages to defendant

  27. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – ORIGINATING COUNTY • Options for presiding judge • Review the shuck (I know this is impractical) • Determine whether defendant arrested in another county • The following show defendant arrested in another county • Ink-signed original process, with local LEA return • County of arrest’s original with arresting officer’s return • Determine that the date on the release order matches today’s date • If not, and release order court date is still in the future • Continue case to date shown on release order • If not, and release order court date has passed • Recall any OFA already issued • Set new court date and notify defendant (How?)

  28. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – ORIGINATING COUNTY • Options for presiding judge (Continued) • If dates match, determine whether defendant released in county of arrest or still in jail • The following shows defendant still in jail • Only copy of release order • No original bond • The following show defendant released from jail • Original release order • Original bond • If defendant released • C & F, FTA, OFA, BDFR all appropriate

  29. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – ORIGINATING COUNTY • Options for presiding judge (Continued) • If defendant still in jail • Continue case • Encourage your sheriff to pick up the defendant before the new court date • Notify defendant of new court date ( How?)

  30. GOAL TWO – IDENTIFY PROBLEMS AND ISSUES – ORIGINATING COUNTY • Cooperative Problem Solving • Encourage your sheriff to respond promptly to requests to pick up prisoners from other counties • Make sure local law enforcement agencies return original process to clerk as soon as process is served in county of arrest • Reviews all out of county release orders to match court date in release order with calendar date, correct calendar if necessary • Reviews shuck before each court date to flag cases in which defendant arrested in another county • Prosecutor • Clerk • Appointed counsel • TCA • Set up training session (Goal Three)

  31. GOAL THREE – OFFER LOCAL TRAINING MEETING • Scope • By district or by county • Who attends • Magistrates • Jailers • Law Enforcement Agency Supervisors • Clerks • Judges • Who presides • Chief District Court Judge

  32. GOAL THREE – OFFER LOCAL TRAINING MEETINGS • Purposes • Training in law and procedure from all perspectives • Increase awareness among all participants of the other participants’ jobs, problems, points of view, resources • Identify solutions • Agenda • Intro by Chief District Court Judge • Training by us • Extended Q & A with trainers • Even more extended discussion among participants

  33. GOAL THREE – OFFER LOCAL TRAINING MEETINGS • Our availability • Basil and Tom through February 1st • Basil and John Rubin or Tom’s replacement after then • Precedent • 1st District • 11th District • 21st District

  34. ASSOCIATION OF DISTRICT COURT JUDGES 2004 FALL CONFERENCE OUT OF COUNTY PROCESS Tom Andrews General Counsel, AOC

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