Coronavirus, Courts, and Continuances in North Carolina

John Fanney: You got it all right, Bill.

Bill Powers: Great, great. Let's start off right at the top, to be clear you and your firm are open for business, right?

John Fanney: Yeah, that's correct. We're here. We don't have any walk-in business unless someone has an emergency. We're doing some phone conferences, and we may start soon doing some Zoom chats if we have clients that feel the need.

Bill Powers: Great, great. In fact, you never closed even with the stay-at-home order or any local orders you may have in Wake County, right?

John Fanney: That is correct. That is correct. Law firms, particularly criminal defense firms have been deemed essential businesses by the stay-at-home orders. We're very happy about that, not because we're able to continue to make a living, but we're here to provide help to folks that need it in a really difficult time.

Bill Powers: In fact, while some may complain about our duties and professional responsibilities as defense lawyers, criminal attorneys are essential to the administration of justice. In fact, if you have a loved one who's sitting in jail accused of a crime in ordinary circumstances, you probably understand the importance of having a criminal lawyer by your side in court. With the coronavirus, I think, and please feel free to correct me if you disagree with me on this point, defense lawyers are as important as ever. In part, that's because we explain our roles, or excuse me, part of our roles are explaining how the system works. We're facilitators. We negotiate things, and we help assure people or reassure people as need be because it's a complicated legal system. As to the coronavirus in Wake County, and you do go to the surrounding judicial districts, where are we? What courts are open? What's the present status of the court system?

John Fanney: Well, civil courts are essential closed. I'll return to the one civil court just opened here in a second. The criminal courts have to stay open because there's important rights that people have when they're charged with crimes. There's due process rights. There's getting a loved one out of jail, bond, bond modifications, so there's some very important rights that we are trying to protect in a really difficult time, Bill. One of the things that I get a lot of questions about is, "What's going to happen to me if I get arrested?"

Bill Powers: And so-

John Fanney: So we have our... I'm sorry.

Bill Powers: No, no, you go ahead. You go ahead.

John Fanney: We have our felony courts that operate on a very limited level. We have first appearances that cover bond issues. We have special needs cases. Anybody in custody gets their cases reviewed. They try to resolve cases by plea and negotiation. That's pretty much it. Everything else, your run of the mill cases, we're shut down.

Bill Powers: So while probably the majority of misdemeanor cases, DWI charges, traffic tickets, even minor theft cases or gun charges, things like that, they're all being continued. Is that correct?

John Fanney: Yes, yes. Most cases where people are not in custody are being continued. Cases where folks are custody, those are serious charges, like assault involving deadly weapons or assaults inflicting serious injury, shooting in an occupied dwelling, burglary, kidnapping, those types of crimes, which we are seeing some increase in.

Bill Powers: I think the operative word or words would be in custody, so you're not handling trials in either district or superior court, but if someone gets arrested, you may be handling a first appearance or a bond hearing or something like that. Is that correct?

John Fanney: Yeah, or probably cause hearing as well. We are having dates for probable cause hearings. We do know that our grand juries are operating.

Bill Powers: Oh, okay.

John Fanney: They are going to be meeting soon. We may receive indictments next week on a number of felony cases.

Bill Powers: I think people may have questions about that, saying to themselves, if courts are closed, aren't they closed? There are some statutory, meaning the North Carolina general statutes, but also constitutional rights regarding having maybe a first appearance or maybe having an attorney appointed or maybe having a right to be heard on bond. Those are cases that the chief justice specifically said we're still open for business, right? John Fanney: That's correct. That's correct. We've handled some bond hearings in the last months. We've had some folks who had been in jail, and we've had folks who have gotten themselves out on bond and had to go back and modify their bond condition so they could have contact with loved ones, which is things we often see in the sister cases that go along with domestic violence protective orders like we talked about.

Bill Powers: That's a great point, and thank you for bringing me into that, because, at least in our jurisdictions we go to, we have seen an increase in assault charges, domestic violence, which defense lawyers may refer to domestic violence to cover a lot of different charges. Actually, the statute's kind of broadly written to be inclusive of that. So we're talking about things like simple assault or assault and battery, some people may call it, assault on a female. We're seeing more communicating threats, injury to personal property, and even a serious... you mentioned a felony assault, but felony assault by strangulation. Those may qualify as DV charges. Is that what you're seeing in Wake County?

John Fanney: Yeah. We're seeing an unfortunate increase in domestic violence charges. I have seen assault by strangulation. I've seen kidnapping, unlawful restraint, inference with emergency communication. I mean it's not quite an endless list, but there are a number of ways that domestic violence cases can come in to our office. One of the things we see a lot, in fact, we've handled a couple this week, Bill, is the protective orders. They go hand in hand sometimes with criminal charges. Lately we've seen a lot of move to giving these orders entered, these 50B orders entered without any criminal charges being filed.

Bill Powers: Now, let's talk about that a little bit because it can be a bit confusing. 50B is actually North Carolina general statute, Chapter 50B, and it's regarding domestic violence protective orders, DVPO. Some people call them restraining order or DV orders. It's actually a type of civil filing. It's a weird animal in my opinion because it has aspects of criminal charges which is often the basis for the restraining order, but it also has a hearing in civil court, which that courtroom, at least in our jurisdiction, has remained open for obtaining a domestic violence restraining order, a DV protective order, and there's a 10-day hearing. Is that true in Wake County, too?

John Fanney: Yes, that's true here in Wake County and I believe in surrounding counties like Harnett County, Johnston County, Orange County, I'm trying to think of some more counties we've been to lately, Franklin County, Granville County. Those are very limited in operation, but the 50B or domestic violence courts are open every day.

Bill Powers: DV covers a lot of different ground because you can apply for a protective order of such. Some people call them TRO. We just tend to in North Carolina refer to them as a 50B. You can apply on your own behalf, meaning if you're a victim of domestic violence or on behalf of a child or children. Domestic violence does not necessarily mean that are you domiciled with one another even though that's what we call it. It could be people that had prior dating relationships or a child in common or even between siblings or a mother and father, grandparents, and things like that.

Part 2 >>