Tom Andrews

General Counsel, AOC

Association of District Court Judges

2004 Fall Conference

OUT OF COUNTY PROCESSOUT OF COUNTY PROCESS

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

GOAL ONE - LEGAL AND GOAL ONE - LEGAL AND PROCEDURAL REQUIREMENTSPROCEDURAL REQUIREMENTS

• INTRODUCTIONINTRODUCTION• THE SITUATIONTHE SITUATION

– Defendant is charged in one countyDefendant is charged in one county– Paper process issued in that countyPaper process issued in that county– Process in possession of law enforcement Process in possession of law enforcement

agency in that countyagency in that county– Defendant arrested in another countyDefendant arrested in another county– Arresting officer does not have original or copy Arresting officer does not have original or copy

of process in his/her possession at time of arrestof process in his/her possession at time of arrest– OFFICER knows warrant has been issued in the OFFICER knows warrant has been issued in the

other countyother county

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.

INTRODUCTION INTRODUCTION (Continued)

• CLARIFY TERMSCLARIFY TERMS

– ORIGINATING COUNTYORIGINATING COUNTY

• COUNTY WHERE CHARGES PENDINGCOUNTY WHERE CHARGES PENDING

– COUNTY OF ARRESTCOUNTY OF ARREST

• COUNTY WHERE DEFENDANT ARRESTEDCOUNTY WHERE DEFENDANT ARRESTED

– PROCESS INCLUDESPROCESS INCLUDES

• WARRANTWARRANT

• ORDER FOR ARRESTORDER FOR ARREST

• CRIMINAL SUMMONSCRIMINAL SUMMONS

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

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

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

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 !!

STEP 2 - CONDUCT INITIAL APPEARANCE

• OBTAIN ORIGINAL PROCESS FROM ORIGINATING COUNTY AS SOON AS POSSIBLE

• SOURCES:– FAX– MAGISTRATES’ SYSTEM– PHYSICAL DELIVERY OF PAPER

ORIGINAL

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

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

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

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

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

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

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

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.

STEPS IN ORIGINATING COUNTYSTEPS 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

STEPS IN ORIGINATING COUNTY 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

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

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

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

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)

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

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

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?)

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

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?)

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)

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

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

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

Tom Andrews

General Counsel, AOC

ASSOCIATION OF DISTRICT COURT JUDGES

2004 FALL CONFERENCE

OUT OF COUNTY PROCESSOUT OF COUNTY PROCESS