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Trial delays, jail policies complicate life for criminal defense attorneys

North Carolina jail inmates are languishing as they await jury trials and restrictions on jailhouse visits have made it difficult for attorneys to have consequential consultations to prepare for them, defense attorneys say. 

Uncertainty grows each time North Carolina Supreme Court Chief Justice Cheri Beasley extends orders to postpone jury trials for 30 more days due to the COVID-19 pandemic. Right now, jury trials won’t start until at least October. Attorneys say they understand the necessity of the orders, but face unprecedented challenges in preparing for trial without knowing when such a trial might begin.

Those challenges range from clients who are agreeing to unfavorable plea deals because they can’t get released from jail, difficulties in developing rapport with those clients whom they’re not able to meet in person, and concerns about lack of safeguards to ensure that attorney-client conversations remain confidential.

Start with those clients who are starting to lose patience due to continued delays. On Aug. 15, Beasley issued her latest order extending the moratorium on jury trials, so the state is now looking at a months-long backlog of jury trials once they do eventually resume. 

Trials that had already been scheduled and bumped have been tentatively set for the very end of 2020 or even early 2021, attorneys say. Defendants and their families are frustrated, and their patience is wearing thin–clients want their day in court and their families want their cases to be over with. Howard Cummings, an attorney with Tharrington Smith in Raleigh and a former Wake County prosecutor, said he advises his clients to remain patient, but some are getting worn down and decide to take a plea that they wouldn’t have taken otherwise.

“But I am not in jail,” Cummings said. “They are the ones who are in that environment.”

Defendants facing trial for violent crimes aren’t as concerned about the delays as much as those who are awaiting trials for non-violent felonies and misdemeanors, said Jesse Jones, an attorney in Lillington. Sometimes in more serious cases, delays can actually benefit the client, as evidence grows stale and some key witnesses might become unavailable. But the delays are a big problem for low-level offenders who are in jail on high bonds and want a trial. Jones suggested that judges use the time that jury trials would have taken to review all bonds each week.


“I don’t understand why the judge doesn’t drop a lot of these bonds in cases where there is no violence,” Jones said. “We are seeing people with crazy bonds during the virus, even in weak cases.”

In some places, a lack of space in jails can actually create some leverage for defendants. Beth Stang, chief public defender in Henderson, Polk, and Transylvania counties, said that her office is receiving some plea offers that are favorable to its clients in order to resolve cases because of the backlog in the state’s courts. But clients who would have moved to prison if their case had been resolved sooner have been “stuck” in the county jail longer. (Most inmates prefer to serve time in prison versus the county jail, and once someone is serving their sentence in prison they have the opportunity to earn time served.)

Complicating matters further, each of North Carolina’s 100 counties also have different policies regarding attorneys’ access to incarcerated clients, and even in the counties with the most accommodating policies, teleconferencing and telephone calls can’t replace the face-to-face and side-by-side meetings that are so important to trial preparation. 

Cummings said that it is now difficult to develop a strong bond with an incarcerated client and to develop a rapport that allows attorneys to gain their trust.

“You have to build that rapport with them, especially when it comes to discussing whether their case needs a jury or non-jury resolution,” Cummings said. “Now there may be some apprehension on their part because they just don’t feel as comfortable as they would have otherwise.”

What’s true for attorneys is also true for mental health examiners. Some inmates need a mental examination so their attorneys can prepare an argument for the presence of mitigating factors. But Cummings said that mental health examiners can glean much more information by being in the same room as a client, particularly by reading body language, than they can via videoconferencing–but many mental health examiners don’t want to go to a jail because of the risk of contracting COVID-19 (a concern that some attorneys expressed about themselves as well).

Stang said that while jails allow inmates to meet with their attorneys via video, it’s sometimes necessary to meet face-to-face, such as when time-sensitive documents need signing. But that has to be balanced with the precautions that jails are taking to keep inmates safe. Stang said that jails in her district have been accommodating in allowing attorneys inside, as long as they wear masks and their temperatures are screened.

Then there is the issue of confidentiality. Tucker Charns, a regional defender with the North Carolina Office of Indigent Defense Services, said jails are working to make attorney-client visits more accommodating and private, and jail administrators have assured attorneys that if phone calls between attorneys and clients are recorded, no one else will hear them. 

But attorneys can’t be 100 percent certain that that’s true, and even if prosecutors don’t use the conversations as evidence, the discussions may tip them off to something else. Jones said “they record everything” in Harnett County on a central database, and the calls are saved for more than three years. 

The situation seems better in Mecklenburg County. George Laughrun, an attorney in Charlotte, said that Mecklenburg County jail administrators let attorneys access a phone application, which an inmate’s family pays for, that is easy to use and allows attorneys to talk virtually with inmates.

Such technology is an imperfect substitute for in-person conversations, especially in situations where attorney and client need to review documents together, but it can help mitigate some problems if the right safeguards are in place. But many counties don’t currently offer inmates access to the same level of technological quality, or aren’t providing enough safeguards to reassure defense attorneys.

“Zoom and other apps make the [the problem] very easy to fix,” Jones said. “Most courtrooms have video systems set up with the jail. It would be super easy to do all conferences with clients in some type of video conference. Videoconferencing is the way to go, but until something is in place to make sure it’s a crime if an outsider listens or records these conversations most lawyers would not agree to this.”

Follow Bill Cresenzo on Twitter @bcresenzonclw

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