Chatham courts might reopen, but pandemic effects will drag on

BY D. LARS DOLDER, News + Record Staff
Posted 1/20/21

Newly installed Chief Justice Paul Newby of the North Carolina Supreme Court issued revised emergency directives for court procedures last week that will likely affect legal proceedings in Chatham …

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Chatham courts might reopen, but pandemic effects will drag on

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Newly installed Chief Justice Paul Newby of the North Carolina Supreme Court issued revised emergency directives for court procedures last week that will likely affect legal proceedings in Chatham County, according to local lawyers.

The order replaces former Chief Justice Cheri Beasley’s final set of directives which expired on Jan. 14, including a pause on most judicial proceedings “to help slow the spread of COVID-19 in our courts.” That moratorium suspended all superior court and district court proceedings unless they could be conducted remotely, were “necessary to preserve the right to due process of law,” were “for the purpose of obtaining emergency relief” or were determined by a judge “that the proceeding can be conducted under conditions that protect the health and safety of all participants,” according to Beasley’s order.

Newby, a Republican, defeated incumbent Beasley, a Democrat, for the chief justice seat by just 401 votes out of nearly 5.4 million ballots cast in the November election, although her concession didn’t come until Dec. 12.

In practice, Beasley’s directives halted most court activity and suspended jury trials.

“I don’t think there have been any jury trials,” said Ben Atwater, a longtime Siler City lawyer who practices criminal law, among other disciplines.

Following his installment as chief justice, Newby suggested that Beasley’s executive decision to close courts violated the state’s constitution, which states, “the courts shall be open, and that justice shall be administered without favor, denial or delay.”

“That is the constitutional requirement that the courts shall be open,” Newby said at the N.C. State Supreme Court ceremonial investitures for all newly elected members. “Open courts available for all the citizens is not a luxury, it is a mandate.”

Still, he admitted that an ongoing pandemic behooves judicial leaders to consider amendments to regular procedure.

“Nonetheless, how do we operate in the midst of our global and local pandemic with regard to COVID?” Newby said. “That is the great stress of our time as we seek to protect the public health and our court personnel and fulfill our constitutional mandate.”

To balance what he sees as a constitutional necessity with responsible activity amid the coronavirus pandemic, Newby will leave it to local judicial officials to evaluate their districts’ needs and outline court practices.

“Today’s order allows local courthouse leadership, who assess the threat of COVID-19 every day, to tailor preventative measures to meet their specific local challenges,” Newby said in a press release. “But they are not alone in this fight. I have requested that the Governor prioritize our court personnel in the COVID-19 vaccination schedule so we can fulfill our constitutional ‘open courts’ mandate to provide equal justice to all in a timely manner.”

In Chatham, the responsibility to mandate court procedure under Beasley’s new order falls to Superior Court Judge Allen Baddour. Baddour’s office did not immediately respond to the News + Record’s inquiry, but local attorneys said the matter of Chatham court procedure was still unsettled.

“I don’t think we’ve received any word from Judge Baddour on what we’re going to do in that regard,” Atwater said.

Even if Baddour should permit court proceedings to resume, Atwater said he would be apprehensive about stepping back into court.

“I myself do not like going into court in a crowded situation with the current pandemic,” he said. “… It would just be a logistical nightmare to do a jury trial under the current conditions.”

And it might compromise the integrity of the process.

“With everybody having to wear a mask, you could run into a problem with whether the witness can wear a mask while testifying,” Atwater said. “Because in a criminal trial, the defendant could object that it was violating his Sixth Amendment right to confrontation, to observe the demeanor of the witness and things such as that. So, it would really be difficult to do.”

But Atwater is fortunate, he said, to have more flexibility than some lawyers — none of his clients are waiting in jail for the courts to hear their cases.

“I can imagine, however,” he said, “some of those folks that do have clients in jail want to get their trials done as quickly as they can.”

“It is really tough when you’ve got some of those cases that just can’t be resolved without a jury trial,” said Chatham’s Rep. Robert Reives II, who is also a partner at the law offices of Wilson, Reives & Silverman in Sanford. “Having those clients sitting really what is an extra year at least past where they should have been, that’s tough.”

Normally, when defendants have served prison time unjustly due to prosecutorial misconduct or other mistakes in the judicial system, they are entitled to financial reimbursement from a state fund designed for such cases.

“But I don’t think you’re going see that apply with people just being held without bond awaiting trial,” Atwater said. “I mean, this is not something that the state, nor the district attorney can control with COVID. Probably just because they’re found not guilty doesn’t give them the right to any kind of compensation for the jail time.”

Such cases are the anomaly, though. Most defendants, even in criminal proceedings, can have their cases settled outside of court without a jury.

“We’ve been able to have District Court trials because that’s before (a) judge only,” Atwater said, “and also, guilty pleas, things like that … most superior court criminal trials are resolved through plea bargaining and things of that nature.”

Judges have also adjusted their practices to avoid sending defendants to jail when possible.

“Judges have been really, really cognizant of the circumstances,” Reives said. “You’ve seen fewer people sitting in jails that don’t need to be sitting in jail right now, you know, because they have lesser crimes or don’t pose a danger to the community and things of that sort.”

Regardless of what local courts decide to do following Newby’s order, however, Reives anticipates long-term issues in the court system. The pandemic’s effect will hamper judicial procedure after most normal activity has resumed.

“Once the gates open back up, there’s going to be a flood of cases that are coming through — not just people who are in jail, but civil trials, all kinds of things — and you might have fights for the court space,” Reives said. “It’s going to be really difficult for the next couple of years, frankly, no matter how fast we open back up.”

Reporter D. Lars Dolder can be reached at dldolder@chathamnr.com and on Twitter @dldolder.

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