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Tom Andrews General Counsel, AOC

Association of District Court Judges 2004 Fall Conference. OUT OF COUNTY PROCESS. Tom Andrews General Counsel, AOC. OUT OF COUNTY PROCESS. GOALS OF THIS SESSION ONE TO FAMILIARIZE YOU WITH THE LEGAL AND PROCEDURAL REQUIREMENT FOR HANDLING OUT OF COUNTY TWO

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Tom Andrews General Counsel, AOC

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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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