JOURNAL - IN THIS ISSUE Freedom for Sale page 8 A New Approach to Jury Instructions page 12 - North Carolina State Bar
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THE NORTH CAROLINA STATE BAR
JOURNAL
FALL
2018
IN THIS ISSUE
Freedom for Sale page 8
A New Approach to Jury Instructions page 12
The CJCP: Two Decades of Promoting Professionalism page 24
THE
NORTH CAROLINA
STATE BAR
JOURNAL
FE AT U R E S
Fall 2018
Volume 23, Number 3
8 Freedom for Sale
Editor By David E. Clark
Jennifer R. Duncan
12 A New Approach: Jury Instruction on
the Decreased Reliability of Cross-
Racial Identifications
© Copyright 2018 by the North Carolina By Alyson A. Grine
State Bar. All rights reserved. Periodicals
postage paid at Raleigh, NC, and additional 16 History and Comparison of Judicial
offices. Opinions expressed by contributors Selection Processes
are not necessarily those of the North By Judge John M. Tyson
Carolina State Bar. POSTMASTER: Send
address changes to the North Carolina State 22 As I Leave the Bench, What Troubles
Bar, PO Box 25908, Raleigh, NC 27611. Me about Trial Lawyers
The North Carolina Bar Journal invites the By The Honorable Donald W. Stephens
submission of unsolicited, original articles,
essays, and book reviews. Submissions may 24 The CJCP: Two Decades of
be made by mail or email (jduncan@
Promoting the Shared Values of
ncbar.gov) to the editor. Publishing and edi-
torial decisions are based on the Publications Professionalism
Committee’s and the editor’s judgment of By Lisa M. Sheppard
the quality of the writing, the timeliness of
the article, and the potential interest to the
27 Five Ways to Cultivate Creativity
readers of the Journal. The Journal reserves Alongside Practicing Law
the right to edit all manuscripts. The North By Heather Bell Adams
Carolina State Bar Journal (ISSN 10928626)
is published four times per year in March,
June, September, and December under the
direction and supervision of the council of
the North Carolina State Bar, PO Box
25908, Raleigh, NC 27611. Member rate of
$6.00 per year is included in dues.
Nonmember rates $10.73 per year. Single
copies $5.36. The Lawyer’s Handbook
$16.09. Advertising rates available upon
request. Direct inquiries to Director of
Communications, the North Carolina State
Bar, PO Box 25908, Raleigh, North
Carolina 27611, tel. (919) 828-4620.
ncbar.gov
Follow us at:
Twitter: @NCStateBar
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T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 3
D E PA RT M E N TS 34 Legal Specialization B A R U P D AT E S
5 President’s Message 36 Legal Ethics 49 In Memoriam
6 State Bar Outlook 38 Lawyer Assistance Program 50 Client Security Fund
28 The Disciplinary Department 39 Proposed Ethics Opinions 51 Christy Nominated as Vice-
30 Pathways to Wellbeing 42 Rule Amendments President
33 IOLTA Update 52 Distinguished Service Award
53 Law School Briefs
Officers 13: Michael R. Ramos, Shallotte 27A: Timothy L. Patti, Gastonia
John M. Silverstein, Raleigh 14: Dorothy Hairston Mitchell, 27B: Rebecca J. Pomeroy, Lincolnton
President 2017-2018 Durham 28: Anna Hamrick, Asheville
G. Gray Wilson, Winston-Salem William S. Mills, Durham 29A: H. Russell Neighbors, Marion
President-Elect 2017-2018 15A: Charles E. Davis, Mebane 29B: Christopher S. Stepp,
C. Colon Willoughby Jr., Raleigh 15B: Charles Gordon Brown, Chapel Hill Hendersonville
Vice President 2017-2018 16A: Terry R. Garner, Laurinburg 30: Gerald R. Collins Jr., Murphy
L. Thomas Lunsford II, Chapel Hill 16B: David F. Branch Jr., Lumberton
Secretary-Treasurer 16C: Richard Buckner, Rockingham Public Members
Mark W. Merritt, Charlotte/Chapel Hill 17A: Matthew W. Smith, Eden Thomas W. Elkins, Raleigh
Past-President 2017-2018 17B: Thomas W. Anderson, Pilot Dr. Joseph E. Johnson, Greensboro
Mountain Mohan Venkataraman, Morrisville
Councilors 18: Barbara R. Christy, Greensboro
By Judicial District Stephen E. Robertson, Greensboro Executive Director
1: C. Everett Thompson II, Elizabeth 18H: Raymond A. Bretzmann, High L. Thomas Lunsford II
City Point
2: G. Thomas Davis Jr., Swan 19A: Herbert White, Concord Assistant Executive Director
Quarter 19B: Clark R. Bell, Asheboro Alice Neece Mine
3A: Charles R. Hardee, Greenville 19C: Darrin D. Jordan, Salisbury
3B: Debra L. Massie, Beaufort 19D: Richard Costanza, Southern Pines Counsel
4: Robert W. Detwiler, Jacksonville 20A: John Webster, Albemarle Katherine Jean
5: W. Allen Cobb Jr., Wilmington 20B: H. Ligon Bundy, Monroe
6: W. Rob Lewis II, Ahoskie 21: Michael L. Robinson, Winston- Editor
7: Randall B. Pridgen, Rocky Mount Salem Jennifer R. Duncan
8: C. Branson Vickory III, Goldsboro Kevin G. Williams, Winston-
9: Paul J. Stainback, Henderson Salem Publications Editorial Board
9A: Alan S. Hicks, Roxboro 22A: Kimberly S. Taylor, Taylorsville Darrin D. Jordan, Chair
10: Heidi C. Bloom, Raleigh 22B: Sally Strohacker, Mocksville Nancy Black Norelli, Vice Chair
Walter E. Brock Jr., Raleigh 23: John S. Willardson, Wilkesboro Phillip Bantz (Advisory Member)
Nicholas J. Dombalis II, Raleigh 24: Andrea N. Capua, Boone Richard G. Buckner
Theodore C. Edwards II, Raleigh 25: M. Alan LeCroy, Morganton Andrea Capua
Katherine Ann Frye, Raleigh 26: David N. Allen, Charlotte Margaret Dickson (Advisory Member)
Robert Rader, Raleigh Robert C. Bowers, Charlotte John Gehring (Advisory Member)
Donna R. Rascoe, Raleigh A. Todd Brown, Charlotte Ashley London (Advisory Member)
Warren Savage, Raleigh Mark P. Henriques, Charlotte Stephen E. Robertson
11A: Eddie S. Winstead III, Sanford Dewitt McCarley, Charlotte Christopher S. Stepp
11B: Marcia H. Armstrong, Smithfield Nancy Black Norelli, Charlotte John Webster
12: Lonnie M. Player Jr., Fayetteville Eben T. Rawls, Charlotte
4 FALL 2018
T H E P RES I DE NT’S M ES SA GE
Breaking News
B Y J O H N M. SI LV ER S TEI N
I
n this era of the 24-hour news and literate observations that have graced State Bar during their terms. When they
cycle, “breaking news” induces the pages of this Journal. Second, the man- began their service as councilors in 2010,
breathless anticipation over what agement team that will be in place is, as the State Bar headquarters building was not
dramatic change in the world order noted, experienced, talented, and prepared even large enough to accommodate their
has occurred to both interrupt and impact to hit the ground running. Third, working orientation. In contrast, their last meeting
our otherwise mundane lives. At the North through the transition in leadership will be as State Bar councilors will take place in a
Carolina State Bar, any change in the exec- the responsibility of my successors, Gray multi-purpose room that will accommodate
utive suite qualifies for that classification. Wilson, Colon Willoughby, Barbara the entire 68-member council, State Bar
After 38 years of dedicated Christy, and their progeny, staff, and visitors. The State Bar’s progres-
service to the State Bar, not mine. sion from rudimentary office space to a
including more than 26 This rare changing of the state-of-the art headquarters building is a
years as executive director, guard accompanies the metaphor for the transition of the individu-
Tom Lunsford will be relin- annual reconstitution of the als mentioned above from “rookies” to
quishing his duties effective State Bar Council and its essential cogs in the workings of the State
with the Annual Meeting in officers. Most bar councilors Bar. As Bar councilors, we share respect and
October, and he will be serve three consecutive gratitude—and most importantly, friend-
retiring at the end of this three-year terms, which are ship—that extends well beyond the end of
year. Alice Mine, our assis- staggered so that all 61 elect- our terms, and we will miss them and their
tant director with more than ed councilors do not have many contributions.
25 years’ experience in that terms expiring the same It is even more difficult to articulate
role, is poised to succeed year. While the State Bar is what Tom Lunsford has meant to the North
Tom. Brian Oten has energized each January with Carolina State Bar. Tom’s tenure has been
already joined the executive team as of July a new class of councilors who invariably more than four times longer than the nine
1, moving from his position as a staff coun- bring fresh ideas and new perspectives to years most Bar councilors serve, and three
sel primarily handling grievance files to our deliberations, it also means losing the times longer than the 13 years most officers
assistant director responsible for many of wise counsel of their predecessors as we bid serve. Tom has visited each of North
Alice’s former program duties, including the them a reluctant farewell. On the evening Carolina’s Judicial Districts (now 45) several
Ethics Committee. And effective October before our annual dinner in October, we times. Tom has witnessed and led the State
1, Peter Bolac, the only person alive with will note the valuable contributions of Bar’s long journey from a state office build-
the ability to both adroitly handle legislative departing councilors Bob Detwiler ing that housed a handful of employees, to
affairs and clearly and concisely explain (Jacksonville), Nick Dombalis (Raleigh), the State Bar’s own building on the
trust account reconciliation rules, will Darrin Jordan (Salisbury), Nancy Norelli Fayetteville Street Mall, and finally to an
become the assistant director handling most (Charlotte), Lonnie Player (Fayetteville), architecturally significant headquarters that
of Alice’s former management duties. To Randy Pridgen (Rocky Mount), and Judge contains adequate space and technology for
ensure the proper place of continuity in the Mike Robinson (Winston-Salem). Barbara the State Bar’s 90+ staff members to admin-
workplace, Katherine Jean will remain as Christy (Greensboro) will also be retiring as ister the practice of law for the more than
counsel. a councilor, but her service to the State Bar 29,000 attorneys licensed in North
Fortunately, there are three brightly will continue when she is installed as vice- Carolina. It is more than fitting that Tom
shining silver linings in the clouds accom- president of the State Bar by Chief Justice has spent the final few years of his career in
panying Tom’s departure. First, he will only Mark Martin at our annual meeting. the executive director’s office of the build-
be a short distance away in Chapel Hill, The business of the State Bar is conduct- ing that will be an important part of his
where we can continue to mine priceless ed through standing and special commit- legacy.
deposits of institutional knowledge, and tees, and our retiring councilors have served My experience in serving as an officer of
perhaps even convince him to prolong his with distinction as committee chairs or the North Carolina State Bar has been
contributions to the legal profession in vice-chairs, and as valued members of virtu-
North Carolina by continuing his erudite ally every committee in existence at the CONTINUED ON PAGE 7
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 5
S T A TE BAR OUTLOOK
What If I Don’t Like Being Retired?
BY L. T H O MAS LU N S F OR D II
I
f you’ve been paying any atten- I am nevertheless an active member in accounts and getting current on CLE. This
tion at all, you know that my good standing of the North Carolina State assumes that you file your petition for rein-
days as the State Bar’s executive Bar. As such, I am privileged to style myself statement within seven years of the time
director are numbered. Last sum- as an attorney, participate in district bar you started your misbegotten sabbatical.
mer, in a weak moment, I gave elections, and receive the State Bar’s quar- After seven years you can still be reinstated,
my notice and advised the agency that I terly magazine. Those highly valued pre- but only if you sit for and pass the bar
would be resigning at the end of the cur- rogatives are offset, it must be said, by sev- exam—an exercise that would almost cer-
rent year in order to effectuate my retire- eral not inconsiderable obligations of tainly call into question your sanity and fit-
ment. When no one begged membership, including lia- ness to be licensed.
me to reconsider, I realized bility for dues and the Actually, fitness is the aspect of this sort
that I had overplayed my requirement of attending, of transaction that interests me the most.
hand and was, like my fic- and paying for, 12 hours of The rules require that an applicant seeking
tional hero Barney Fife, on approved but increasingly reinstatement from inactive status demon-
the verge of being “swept irrelevant continuing legal strate that he or she has the requisite “char-
into the dustbin of history.” education each year. acter and fitness to practice.” That is to say,
Exit, Tom Lunsford. My Obviously, there is a fine “[T]he member must have the moral qual-
only hope in the wake of balance to be struck ifications, competency, and learning in the
such folly is that you, my between cost and benefit for law required for admission to practice law
faithful readers, will some- the aging attorney. And that in the state of North Carolina, and must
how learn from my mistake calculation finds its most show that the member’s resumption of the
and be better for it. cogent and sublime expres- practice of law within this state will be nei-
The standard question sion in answer to the ques- ther detrimental to the integrity and stand-
for most people in my position is, of tion that now faces me and countless other ing of the Bar or the administration of jus-
course, what do you plan to do after you survivors of the Baby Boom, namely: tice nor subversive of the public interest.”
retire? I wish I knew. I recently inventoried “Should I go inactive?” The same is required of an applicant seek-
my skills and interests to see how I might Now, I would not presume to answer ing to be reinstated from administrative
most effectively use my leisure time. I dis- that question for my entire demographic suspension occasioned by failure to satisfy
covered that after 38 years on the job, I had cohort. Everyone’s circumstances are differ- an obligation of membership, such as fail-
become very accomplished at delegating, ent, and most lawyers of my vintage seem ing to meet the CLE requirements.
making small talk at cocktail parties, and to have a more coherent plan for life after Quite appropriately, the burden of proof
writing pithy essays in the Bar’s Journal. So the law than I do. If you are one of those is on the applicant. For most people, this is
far so good! I then imagined how I might folks, you can stop reading now. If, on the not, and has never been, a problem.
leverage those talents in pursuit of my real other hand, you, like me, are pretty sure Statistically speaking, it is extremely rare for
passions—the Tar Heels, the Andy Griffith that any decision you make will be wrong anyone without a recent felony conviction
Show, and chinchilla ranching. and need to be reversed, you should soldier to be denied reinstatement. That being the
Surprisingly, the anticipated epiphanies are on for at least a few more paragraphs. case, you would suppose that the odds
yet to be realized, and I continue to lan- Here’s the good news. The ink never would be in my favor. But, unlike most
guish without direction or purpose. dries on a grant of inactive status. Under applicants, I do have a “record,” in that I
Indeed, it would appear that I am, like for- the State Bar’s administrative rules, it is have, during the past 20 years, published
mer race car driver Danica Patrick, on the absolutely possible to “retire,” for whatever more than 70 articles in the Bar Journal, a
verge of retiring for no reason other than to reason, and then to be reinstated by the Bar great many of which have contained japes,
work on my “personal brand.” Council. In short, if you guess wrong about exaggerations, and fictions that some may
Unlike Danica, however, I have a pro- whether you should hang it up and want to have found inappropriate for such a serious
fessional license and my personal pride to rejoin the club, you’re entitled to a “do- publication. Is it possible that in my vain
consider. Although I haven’t practiced in over” if you can satisfy a few conditions, attempts to amuse, I have written the
many years and am absolutely uninsurable, mostly having to do with settling financial petards upon which I might now be hoisted?
6 FALL 2018
To answer that question, I have just chilla ranching and want to become active ness is concerned. Frankly, I’d feel a lot bet-
completed a quick inspection of the so- members again. Nothing anomalous about ter about going inactive, and then changing
called “long form” reinstatement petition that. It makes perfect sense. my mind, if I didn’t think I’d ever be
on the State Bar’s website. I was greatly I would like to make one last observa- required to prove my good character. It’s
relieved to find that journalistic offenses are tion as to how the determination of charac- not that I’m likely to engage in journalistic
not referenced in that questionnaire. ter and fitness relates to reinstatement. As fraud again, or chinchilla ranching for that
However, there are queries about whether noted above, applicants for reinstatement matter, but I’d like to keep all my options
the applicant has been charged with fraud from administrative suspension are open. n
in any legal proceeding (negative, in my required to prove good character. There is
case); has failed to pay his taxes (also nega- an exception to the rule, however, for those L. Thomas Lunsford II is the executive
tive); has been declared legally incompetent who are willing and able to satisfy a delin- director of the North Carolina State Bar.
(negative); has been impaired as a result of quent membership obligation with 30 days
a mental, emotional, or psychiatric condi- of having been served with an order of sus- Endnote
tion (probably negative); has been impaired pension. In such cases the order is preclud- 1. Several people have told me that I am crazy for
as a result of the use of alcohol or drugs ed from becoming effective and no suspen- quitting my job.
(impaired would be too strong a word); or sion is deemed to have occurred. Since
has been “told” that he was impaired as a there was never any suspension, there is no
result of a mental, emotional, or psychiatric need to apply for reinstatement. From an
disorder (definitely).1 Since I can probably administrative standpoint, this is an excel-
get an affidavit from the psychiatrist to lent rule. It incentivizes compliance, albeit President’s Message (cont.)
whom I am married attesting to the fact belated, and it obviates the necessity of fur-
that calling someone crazy doesn’t necessar- ther costly and time consuming proceed- enhanced by the opportunity to work close-
ily make it so, it seems possible that I might ings for everyone. It is curious, though, in ly with Tom. The way I have been wel-
be able to squeak through the reinstate- regard to the matter of character and fit- comed throughout North Carolina as pres-
ment process. Good for me. ness. One wonders what it is about the ident of the State Bar is a testament to Tom
Interestingly, applicants for reinstate- 30th day post-service that should relieve us and the work of the outstanding staff he has
ment from disciplinary suspension are gen- of our concern about the subject lawyer’s assembled. Fortunately, we will not miss a
erally not required to prove that they have bona fides. Is there a point along the tempo- beat with Alice, Peter, Brian, and Katherine
good character. Unlike retired bar execu- ral continuum where the character issue on our executive team, with Gray, Colon,
tives and CLE derelicts, lawyers who have ripens? And is that day 31? If late payment and Barbara as our officers, and with the
been suspended for serious ethical trans- of dues warrants a C&F inquiry a month support and guidance of our outstanding
gressions are not required by rule to after service, is such an inquiry somehow State Bar Council.
demonstrate that they possess the “moral less necessary 29 days after service? Maybe As my term as president concludes, I
qualifications” to practice law. They must there’s no anomaly here, just the sort of want to thank the officers with whom I
satisfy certain administrative requirements benign arbitrariness that accompanies most served—Ron Gibson, Margaret Hunt, and
relating to the winding down of their prac- regulatory line-drawing, but I’m inclined Mark Merritt—for the lessons in leadership
tices, and they must fulfill reasonable con- to think we ought to take another look at that made a great impression on me. On a
ditions precedent contained in the this rule—and maybe others that relate to personal note, this year would not have
Disciplinary Hearing Commission’s order reinstatement. been nearly as enjoyable as it has been for
imposing their suspensions, like making That’s the point of this essay, by the way. me without the patience and understanding
restitution or cooperating with the Lawyer I think the reinstatement rules could stand of the members of my firm—Howard and
Assistance Program, but they are not typi- some scrutiny. Rules review is something Keith Satisky and David Gadd—and espe-
cally compelled to prove that they have we engage in quite routinely at the State cially my long-suffering wife, Leslie, who in
good character. It may be, of course, that Bar. We know the value of introspection addition to being my greatest asset, has
having “done their time,” they are pre- and we never tire of it. We have recently become devoted to the State Bar as well.
sumed rehabilitated or at least chastened to completed a very extensive review of our Thank you for the privilege of not only
the point where the likelihood of further disciplinary system in order to make sure serving as president this year, but also for
indiscretion is acceptably small. Or it may that our rules, policies, and procedures the opportunity to meet and work with so
simply be an anomaly. make sense and are working well. We are many good people throughout the state,
It is worth noting in this connection currently engaged in a substantive review of and to make such good friends over the
that disbarred lawyers, in contrast to those the rules relating to lawyer advertising. No course of my time on the council. My
who have been merely suspended for a def- sooner had the ABA proposed a new set of departing wish for the State Bar is that there
inite period not to exceed five years, do, rules concerning commercial speech than won’t be any more breaking news for quite
under the rules, have to prove “proper ref- our leadership initiated an internal study. I some time. n
ormation of character” in order to be eligi- think the rules concerning reinstatement
ble for reinstatement. In this they are rather are also deserving of reconsideration, espe- John Silverstein is a partner with the
like retired bar executives who tire of chin- cially where the matter of character and fit- Raleigh firm of Satisky & Silverstein, LLP.
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 7
Freedom for Sale
B Y D AV I D E. CL AR K
C
onstructed in 1973, the New
Guilford County courthouse
has been showing its age for
the better part of the past
©iStockphoto.com/baona
two decades. Like many buildings from this era, the facade
is a harsh block of colorless stone with slits inserted for
windows that don’t open. The architectural style outside,
known as Brutalism,1 seems to have infected much of the criminal justice treatment of indigent defendants inside.
Bond court is held in Courtroom 2C, allowing weeds to grow over 12 inches high exclusively on their ability to pay a pretrial
which sits on the southwest side of the in your yard, to major felonies, like murder bond.
building. Tuesday through Friday at 2 PM, or drug trafficking. On February 27, 2018, Mr. Poole was
the small courtroom fills with defense attor- It was in this stark setting earlier this year charged with trespassing while intoxicated at
neys and prosecutors in front of the bar, and that Emorbridge Poole and David Stewart a local gas station and knocking over a store
friends and family of inmates and alleged got their welcome to the world of court rack, all misdemeanor offenses.3 One week
victims behind the bar—all waiting for their approved pretrial release bail policies— later, Mr. Stewart was charged with a violent
chance to argue that their particular inmate where those with money can buy their free- felony in connection to shots from a “semi-
should or should not be allowed pretrial dom, while the less fortunate languish in automatic handgun” being fired into a con-
release while their case works its way local jails for the exact same allegation; venience store as well as resisting arrest.4
through the legal system. where indigent citizens spend more time in Unemployed with no resources, Mr.
Guilford County Criminal Court oper- local jails than the law allows for their Poole was appointed a public defender.
ates under a court order known as “pretrial alleged crime simply because they don’t have Despite the relative minor nature of the
release policies in the eighteenth judicial dis- the money to purchase their freedom; where charges and the lack of any finding that he
trict.”2 The document sets out “suggested poor, non-violent misdemeanants remain in was a danger to himself or others, that he
bond amounts” for every violation of the jail, while rich, violent felons are released; would not appear in court as ordered, or that
penal code, from local ordinances, like where a person’s access to liberty is based he would intimidate potential witnesses,5 he
8 FALL 2018
was denied release until he paid the court I. Constitutional Impetus for Bail
$500 and was subsequently incarcerated in Reform Five Reasons for Bail Bond
the local jail to await trial. On the other end In applying this legal framework to a ques- Reform in North Carolina
of the spectrum, facing charges of feloniously tion of pretrial release for a criminal defen-
conspiring to shoot a handgun into occupied dant, the Fifth Circuit Court of Appeals held 1. Money bail is an unfair and inef-
property and resisting arrest,6 Mr. Stewart as far back as 1978 that while “[u]tilization of fective tool, whether intended to achieve
was released from custody after posting a a master bond schedule provides speedy and community safety or to assure a defen-
$5,000 bond. convenient release for those who have no dif- dant’s appearance at trial.
Mr. Poole provided the court with a ficulty in meeting its requirements, [t]he 2. Money bail creates a two-tier
sworn affidavit indicating that he had “$0” incarceration of those who cannot, without criminal justice system—one for those
“monthly income,” “$0” “cash on hand and meaningful consideration of other possible with money and another for those with-
in bank accounts,” and “$0” “assets,”7 yet he alternatives, infringes on both due process out.
remained incarcerated for three weeks and equal protection requirements.”11 3. Money bail does not ensure deten-
because he didn’t have $500 to purchase his Several federal district courts have also tion of the most dangerous defendants,
freedom. This came at a cost of $82 per applied this reasoning to invalidate bond sys- but rather leads to detention of the
night to the taxpayers of Guilford County, tems like those in North Carolina that have poorest defendants.
for a total of over $1,500. Meanwhile, Mr. the effect of imprisoning indigent defendants 4. Pretrial detention of non-danger-
Stewart, whose family was able to post his solely because they cannot afford bail.12 ous defendants is costly to taxpayers and
$5,000 bond, was released immediately to One such example is Jones v. City of an inefficient use of limited criminal jus-
live under minimal judicial supervision in Clanton. In 2015, the city of Clanton, tice resources.
Greensboro, despite the violent nature of his Alabama, used a bail schedule much like the 5. Detaining people on the basis of
charges. one used in Guilford County to set bail in their wealth is unconstitutional under
The story of defendants like Mr. Poole misdemeanor cases. Under this bail schedule, the Due Process and Equal Protection
and Mr. Stewart is all too common in court- bail was set at $500 for each misdemeanor Clauses of the Fourteenth Amendment.
houses across North Carolina. In this article charge. Thus, defendant Christy Varden was
we will explore the problems posed by the given a $2,000 bail for four misdemeanor
current haphazard state of pretrial release charges. When she couldn’t make the bail, a preliminary injunction.18
policies in North Carolina. We will explain she was required to wait in jail until her trial. On appeal, the Fifth Circuit affirmed the
how these seemingly arbitrary bail policies, In a subsequent lawsuit alleging that the district court’s ruling.19 With regard to due
which allow pretrial bail to act as an illegiti- city’s bail policies violated Ms. Varden’s con- process, the court concluded that the proce-
mate form of preventive detention, violates stitutional rights, the court ruled unequivo- dure used in Texas did not sufficiently pro-
the Fourteenth Amendment of the United cally: “[U]se of a secured bail schedule to tect indigent defendants from magistrates
States Constitution as well as Article I, detain a person after arrest, without an indi- imposing bail as an “instrument of oppres-
Section 27, of the North Carolina vidualized hearing regarding the person’s sion”20 and thus violated the plaintiffs’ due
Constitution.8 We will conclude the article indigence and the need for bail or alterna- process rights.21
by making suggestions for reform that tives to bail, violates the Due Process Clause With respect to the equal protection
require pretrial detention to be based on of the Fourteenth Amendment.”13 claim, the court emphasized that the county’s
objective evidentiary factors such as whether More recently, in Odonnell v. Harris policies and procedures violated the Equal
a defendant is a flight risk or a danger, rather County, 882 F.3d 528 (5th Cir. 2018), the Protection Clause, both because of “their dis-
than how wealthy the defendant is, that will plaintiffs brought a § 1983 action,14 alleging parate impact” on indigent defendants,22 and
bring North Carolina back into compliance that Harris County’s system for setting bail because the county’s custom and practice pur-
with state and federal law. for indigent misdemeanor defendants violat- posefully “detain[ed] misdemeanor defen-
ed both Texas statutory law and constitution- dants before trial who are otherwise eligible
Introduction al law and the Equal Protection and Due for release, but whose indigence makes them
“In our society, liberty is the norm, and Process Clauses of the Fourteenth unable to pay secured financial conditions of
detention prior to trial or without trial is the Amendment.15 release.”23 The court conceded that ordinari-
carefully limited exception.”9 Two bedrock The Texas Code requires court officials to ly, “[n]either prisoners nor indigents consti-
principles of constitutional law guide any conduct an individualized review when set- tute a suspect class.”24 However, the court
pretrial detention analysis. In the words of ting bail, basing decisions on factors such as emphasized that indigents do receive height-
the U . Supreme Court: “[T]he fairness of ability to pay, the charge, and community ened scrutiny where two conditions are met:
relations between the criminal defendant and safety.16 However, the district court found (1) “because of their impecunity they were
the State” is analyzed under the Due Process that these individualized assessments do not completely unable to pay for some desired
Clause, while “the question whether the State actually occur in practice.17 The district benefit,” and (2) “as a consequence, they sus-
has invidiously denied one class of defen- court concluded that the county violated tained an absolute deprivation of a meaning-
dants a substantial benefit available to anoth- both the procedural due process rights and ful opportunity to enjoy that benefit.”25
er class of defendants” is analyzed under the the equal protection rights of indigent defen- Under this framework, the court found that
Equal Protection Clause.10 dants, and granted the plaintiff’s motion for indigent misdemeanor defendants were in
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 9
fact unable to pay secured bail to obtain pre- community ties to obtain pretrial release,” ing of released defendants, and allows those
trial release, and as a result they sustained an they fail to recognize that tradition is not a defendants to move on with their lives while
absolute deprivation of “freedom from incar- rational reason to detain non-threatening waiting for their case to be resolved.
ceration.”26 Thus, the court concluded that indigent defendants.37 It also ignores the ReEntry, like other pretrial service pro-
the county’s use of secured bail also violated fact that not every defendant has the benefit grams, uses a risk assessment tool in order to
the Equal Protection Clause.27 of a robust social network or community ties make recommendations to judicial
Similarly, North Carolina courts have that can assist in such times of need. officials.42 The judge then has the final deci-
held that failure to provide a criminal defen- By definition, most indigent defendants sion as to whether the defendant can be
dant with a meaningful opportunity for pre- do not have sufficient financial means to released into the program.43 Of course,
trial release can result in a due process viola- post bail. Instead of allowing wealthy defen- while risk-assessment is significantly fairer to
tion.28 For example, in State v. Thompson,29 dants—even those facing charges of violent indigent defendants than is money bail,
the defendant alleged that N.C. Gen. Stat. § crimes—to purchase their freedom through these tools must be used with care. Judicial
15-A-534.1(b) as applied violated his proce- money bail while poor defendants sit in jail officials must make sure that the pretrial
dural due process rights when a magistrate for lesser crimes, North Carolina must stop service units that use them are qualified and
scheduled his pretrial release hearing exactly focusing on suggested bond amounts38 for trained, and that the motivation is there to
48 hours after commitment, even though particular crimes and begin focusing on each make sure everyone is treated with fairness
there were judges available to hold an earlier case and each defendant objectively and and consistency.
hearing.30 individually. This change in focus would ReEntry is one of around 30 such pro-
In determining whether the delay violated allow North Carolina magistrates and judges grams currently operating in North Carolina.
due process, the court began by noting that to pay attention to not only the criminal All of these pretrial release programs have
“it is beyond question that the private interest allegation, but also to other significant fac- varying degrees and methods of supervision.
at stake, liberty, is a fundamental right.”31 tors, such as whether the defendant is a Some of these methods include requiring the
Specifically, the “traditional right to freedom flight risk or a danger to themselves or the defendant to check in physically or by tele-
before conviction permits the unhampered community, and, importantly, to the defen- phone, to complete drug tests, and to be sub-
preparation of a defense, and serves to pre- dant’s financial ability to post money bail. jected to mandatory electronic monitoring.44
vent the infliction of punishment prior to This reform would also allow the court sys- Ultimately, if risk assessment and pretrial
conviction.”32 The Court based its recogni- tem to balance its interest in securing the release programs are to be accepted in North
tion of the right to freedom prior to trial in defendant’s attendance and the defendant’s Carolina, these programs will need to be stan-
the “principle that there is a presumption of own interest of pretrial release. dardized so that all North Carolinians are
innocence in favor of the accused [which] is Not only does unnecessary pretrial treated equally. The goal of diverting qualify-
the undoubted law, axiomatic and elemen- detention adversely affect the defendant, it is ing (non-dangerous) defendants from jail
tary, and...lies at the foundation of the also financially burdensome on the state and when they would otherwise not be able to
administration of our criminal law.”33 Next, its taxpayers. Pretrial detention is both costly afford bond is admirable and should be pur-
the Court concluded that once a judge and inefficient—especially when alternative sued in North Carolina.45
became available, “further delay in providing options like properly managed pretrial
this hearing did not serve any underlying release programs can ensure public safety Conclusion
interest of the State.”34 Because Mr. and the appearance of defendants in In North Carolina, as elsewhere in the
Thompson had a fundamental liberty interest court.39 Changing how North Carolina nation, there is growing recognition that
in pretrial release and there was no legitimate assesses who is released and who has a bond money bail unfairly penalizes indigent
state interest to be served by the delay, the set is just the beginning to reforming the bail defendants by incarcerating them for
Supreme Court of North Carolina held that bond system. months or even years to wait for their trial,
“the application of N.C. Gen. Stat. § 15A- In addition to changing how the system while comparable wealthy defendants walk
534.1(b) violated Thompson’s procedural initially decides which defendants have a free as they await trial. The way money bail
due process rights.”35 bond set and which are detained, North is currently decided by North Carolina trial
Carolina should also implement alternatives courts violates both the United States and
II: Seizing the momentum for reform to monetary bail or incarceration, such as North Carolina Constitutions. With every-
in North Carolina pretrial release programs. one from the right-leaning former New
Although money bail has been deeply Some North Carolina counties, such as Jersey Governor Chris Christie46 to the left-
entrenched in North Carolina for decades, Wake, Forsyth, and Alexander, already use leaning California Senator Kamala Harris47
successful litigation around the country pretrial release programs.40 One of these recognizing the serious deficiencies in the
challenging the constitutionality of wealth- programs is run by a nonprofit called money bail system and advocating for
based pretrial release makes the moment ReEntry, Inc. ReEntry’s goal is to divert all reform, the time is right for North Carolina
ripe for bail reform in North Carolina. appropriate incarcerated individuals from officials to act. n
While advocates of the money bail system pretrial detention to supervision in its pretri-
argue that it is a “well-founded tradition”36 al release program.41 This not only saves the David Clark has been a criminal defense
that “allows individuals of all financial county the cost of pretrial detention, it also attorney for 32 years; first as a JAG with the
means to leverage their social networks and assures community safety by strict monitor- United States Air Force, and for the past 27
10 FALL 2018Fastest smartest malpractice insurance. Period.
800.906.9654
GilsbarPRO.com
years with the Guilford County Public 4. UNCG Police Help Nab 2 Men in Connection to protection principles articulated by Pugh and its prog-
Shooting Incident at Convenience Store, News & Record, eny”); Pierce v. City of Velda City, 2015 WL 10013006,
Defender. During that time, he’s tried in excess bit.ly/2NRngON (last visited May 22, 2018). at *1 (E.D. Mo. 2015) (“No person may, consistent
of 150 jury trials. The vast majority of these 5. N.C. Gen. Stat. § 15A-534(b) (2017) (“The judicial with the Equal Protection Clause of the Fourteenth
trials involved clients who were held in jail official in granting pretrial release must impose [non- Amendment to the United States Constitution, be held
during critical pretrial preparation because monetary bail conditions] unless he determines that in custody after an arrest because the person is too poor
such release will not reasonably assure the appearance to post a monetary bond.”); see also Williams v. Farrior,
they couldn’t afford to post the monetary bail 626 F. Supp. 983, 985 (S.D. Miss. 1986) (“For the pur-
of the defendant as required; will pose a danger of
set by the court. injury to any person; or is likely to result in destruc- poses of the Fourteenth Amendment’s Equal
The author would like to thank three tion of evidence, subornation of perjury, or intimida- Protection Clause, it is clear that a bail system which
Guilford County Public Defender interns who tion of potential witnesses....and must record the rea- allows only monetary bail and does not provide for any
sons for so doing in writing to the extent provided in meaningful consideration of other possible alternatives
helped research and prepare this article: James for indigent pretrial detainees infringes on both equal
the policies or requirements issued by the senior resi-
“Miles” Duncan, a rising 3L at UNC School dent superior court judge pursuant to G.S. 15A- protection and due process requirements.”).
of Law; Austin Foster, a rising 3L at Elon 535(a).”). 13. Jones v. City of Clanton, No. 215CV34-MHT, 2015
School of Law, who helped research and write 6. N.C. Gen. Stat. § 14-34.1 makes it a Class E felony to WL 5387219, at *2 (M.D. Ala. Sept. 14, 2015),
the article; and Sarah Price, a rising 3L at discharge a firearm into occupied property. The offense bit.ly/2NRGEvj (last visited May 22, 2018).
Elon School of Law, who made certain the is elevated to a Class D felony, requiring a mandatory 14. 42 U.S.C. § 1983, Civil action for deprivation of
active prison sentence, if the property is an occupied rights allows people to sue the government for alleged
citations were accurate and in proper form. store such as is charged in this case. civil rights violations. The statute applies when some-
7. Administrative Office of the Courts Form AOC-CR-226, one acting “under color of” state-level or local law is
Endnotes bit.ly/2Lhi0Wj (last visited May 22, 2018). alleged to have deprived a person of rights created by
1. Brutalism, Oxford Living Dictionaries, bit.ly/2uq1XMe the US Constitution or federal statutes.
8. Bail, Fines, and Punishments, NC Const. art. I, § 27
(last visited May 22, 2018) (“A stark style of function- (“Excessive bail shall not be required, nor excessive fines 15. Odonnell v. Harris Cty., 882 F.3d 528, 534-35 (5th
alist architecture, especially of the 1950s and 1960s, imposed, nor cruel or unusual punishments inflict- Cir. 2018).
characterized by the use of steel and concrete in massive ed.”). 16. Id at 536.
blocks.”). 9. United States v. Salerno, 481 U.S. 739, 755 (1987). 17. Id.
2. Pretrial Release Policies in the Eighteenth Judicial District, 10. Bearden v. Georgia, 461 U.S. 660, 665 (1983). 18. Id. at 537.
bit.ly/2LaQt8R (last visited May 22, 2018).
11. Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 19. Id. at 540 (quoting Ky. Dep’t of Corr. v. Thompson, 490
3. N.C. Gen. Stat. §14-159.13 (2017) (second degree 1978) (en banc). US 454, 460 (1989)).
trespass), N.C. Gen. Stat. §14-444 (2017) (intoxicated
12. See, e.g., Rodriguez v. Providence Cmty. Corr., Inc., 155
and disruptive) and N.C. Gen. Stat. §14-160 (2017)
F. Supp. 3d 758, 768 (M.D. Tenn. 2015) (granting
(injury to personal property).
class-wide preliminary injunction based on “the equal CONTINUED ON PAGE 51
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 11A New Approach: Jury
Instruction on the Decreased
Reliability of Cross-Racial
Identifications 1
B Y ALY S O N A. GR I N E
I
n an Alamance County courtroom,
Jennifer Thompson, a young white
woman, was 100% certain as she
identified Ronald Cotton, an
African American man, as the per-
son who had raped her at knifepoint. After
all, she was a straight “A” college student, and
had studied every feature of the stranger who
had broken into her home and attacked her,
determined to make him pay if she survived.
The jurors were swayed by this powerful tes-
©iStockphoto.com/RichLegg
timony. Cotton was convicted and sentenced
to life plus 54 years in prison. The problem:
DNA would later prove that Ronald Cotton
was not the rapist. He served ten years in
prison for a crime he did not commit, aging
him prematurely and depriving his family of
much-needed support. In the meantime,
Bobby Poole, the actual perpetrator, was left
free to wander the streets and violently
assault other women.2 these cases, DNA later proved the innocence ings, imprisonment, and compensation of
of the individuals who had been convicted: innocent parties; and an erosion of faith in
Eyewitness Identification is Prone to Joseph Abbitt, Knolly Brown Jr., Dwayne the North Carolina criminal justice system.
Error Allen Dail, Lesly Jean, and Leo Waters, in Five decades ago, the United States
Thompson’s mistaken eyewitness identifi- addition to Ronald Cotton.5 Eyewitness Supreme Court observed, “the annals of
cation is disturbing, but far from unique. error was a factor in the wrongful convictions criminal law are rife with instances of mistak-
Experts believe that “eyewitness error is the of six additional North Carolina cases that en identification.”7 In a groundbreaking
leading contributing factor in wrongful con- did not involve DNA evidence: Erick 2014 report, the National Academy of
victions in the United States.”3 Hundreds of Daniels, Terence Garner, Willie Grimes, Sciences (NAS) described the fallibility of
convictions have been overturned as a result Shawn Massey, Horace Shelton, and Steven memory, which is at the heart of many
of DNA testing since 1989, and misidentifi- Snipes.6 As with the Cotton case, these exon- wrongful convictions.8 Memories are not
cation played a role in approximately three- erations represent irreparable damage to the like photographs stored in a safe, the report
quarters of these cases.4 In North Carolina, lives of innocent people; perpetrators left at cautions. Instead, “the fidelity of our memo-
eyewitness misidentification has contributed large to commit additional crimes; millions ries for real events may be compromised by
to numerous wrongful convictions. In six of of tax payer dollars wasted on court proceed- many factors at all stages of processing, from
12 FALL 2018encoding through storage, to the final stages there is almost nothing more convincing The court held that “when identification is
of retrieval. Without awareness, we regularly than a live human being who takes the an issue in a criminal case and the identifying
encode events in a biased manner and subse- stand, points a finger at the defendant, and witness and defendant appear to be of differ-
quently forget, reconstruct, update, and dis- says, ‘That's the one!’”18 In 2004, ent races, upon request, a party is entitled to
tort the things we believe to be true.”9 researchers surveyed nearly 1,000 potential a charge on cross-racial identification.”25
In the Cotton case, Jennifer Thompson’s jurors in the District of Columbia about eye- In a few other states—New Jersey and
memory was altered to the point that, when witness identification. They concluded that Massachusetts—the highest courts have held
she was confronted with the actual perpetra- survey members often underestimated the that jurors must be instructed on the topic of
tor in one court hearing, she felt not even a difficulties eyewitnesses experience in mak- cross-racial identification.26 Appellate courts
spark of recognition. “From description, to ing cross-racial identifications, the impact of have authorized such an instruction in addi-
creating an Identikit, to reviewing a photo stress on memory, and the ways in which tional states, including California, Hawaii,
array, to identifying the wrong man in a line- police procedures may undermine eyewit- and Utah.27 Most state appellate courts have
up and in court—each step unconsciously ness accuracy.19 According to Justice yet to address this issue. In North Carolina,
became a process of picking the individual Sotomayor, “jurors routinely overestimate the court of appeals recently upheld the trial
most resembling the prior step, not most the accuracy of eyewitness identifications; judge’s refusal to give such an instruction in
resembling the perpetrator.”10 To this day, [they] place the greatest weight on eyewit- State v. Watlington on the basis that counsel
she sees Ronald Cotton’s face in her night- ness confidence in assessing identifications had not introduced any evidentiary support
mares about the attack.11 even though confidence is a poor gauge of to warrant such an instruction.28 This opin-
accuracy.”20 In particular, scholars have ion leaves open the possibility of such an
Cross-Racial Identification is Less found that many jurors lack knowledge of instruction where counsel presents evidence
Reliable than Same-Race the unreliability of cross-race identifica- on the decreased reliability of cross-racial
Identification tion.21 According to one survey: identifications at trial.
Adding yet another layer to the hazards [N]early two-thirds of jurors demonstrat-
of misidentification, studies have shown that ed significant misunderstanding about Potential Benefits of a Jury
people have greater difficulty in accurately the risk of error in cross-racial identifica- Instruction on Cross-Racial
identifying members of a different race than tion when asked to compare the reliability Identification in North Carolina
in identifying members of their own race.12 of a same-race identification with that of While a jury instruction on cross-racial
According to the NAS Report, “[r]ecent a cross-race identification. Nearly half the identification is not a magic bullet that will
analyses revealed that cross-racial (mis)iden- respondents believed cross-race and same- eliminate errors,29 it is one practical reform
tification was present in 42% of the cases in race identifications are equally reliable, that North Carolina can accomplish, and, as
which an erroneous eyewitness identifica- while many others either did not know other jurisdictions have recognized, one that
tion was made.”13 A meta-analysis of cross- the answer or believed cross-racial identi- carries a number of benefits. For example,
racial identifications concluded that people fications were more reliable.22 jury instructions do not cost a dime. They
are 1.56 times more likely to falsely identify are concise statements that are simple to read
the face of a person of another race than they Other Jurisdictions Have Adopted to jurors. An instruction might read:
are to falsely identify a member of their own Jury Instructions to Protect Against “Research has shown that people may have
race.14 This phenomenon has figured in Convictions Based on Mistaken greater difficulty in accurately identifying
North Carolina cases. For example, Dwayne Identifications members of a different race or ethnicity. You
Dail, Willie Grimes, Lesly Jean, and Horace In 2012, jurors in New York convicted should consider whether the race or ethnicity
Shelton were exonerated after having been Otis Boone of two counts of robbery in the of the witness and the defendant may have
misidentified by witnesses of a different race. first degree for taking cell phones from two influenced the accuracy of the witness’s iden-
The majority of these cases involved White individuals.23 The first robbery lasted about tification.” Jury instructions carry weight
eyewitness mistakenly identifying black one minute; the second robbery even less. with jurors since they come from the judge.
individuals.15 No physical evidence tied Boone to the Having received the instruction, jurors may
crimes. For each count of robbery, the only feel they have been granted “permission” to
Jurors Overestimate the Reliability of evidence against Boone, a black man, was the discuss whether race played a role in the
Eyewitness Identifications Generally testimony of one white man identifying him identification, whereas, without the instruc-
and of Cross-Racial Identifications in as the robber. At trial, Mr. Boone’s attorney tion, they might fear that they would be per-
Particular16 argued that the victims had mistakenly iden- ceived as racist if they broached the topic.
Scholars have found that jurors tend to tified him. The attorney asked that the trial “[A]s a society, we do not discuss racial issues
overestimate the reliability of eyewitness tes- judge instruct the jurors about the inaccura- easily. Some jurors may deny the existence of
timony.17 As one court observed, “while sci- cy of cross-racial identification, but the judge the cross-race effect in the misguided belief
ence has firmly established the inherent denied his request. On December 14, 2017, that it is merely a racist myth...while others
unreliability of human perception and mem- the highest court in New York found that the may believe in the reality of this effect, but be
ory, this reality is outside the jury’s common trial judge erred, and stated that “the risk of reluctant to discuss it in deliberations for fear
knowledge, and often contradicts jurors’ wrongful convictions involving cross-racial of being seen as bigots. That, however, makes
commonsense understandings. To a jury, identifications demands a new approach.”24 an instruction all the more essential.”30
T H E N O RT H C A RO L I N A S TAT E B A R J O U R N A L 13Notably, the American Bar Association has the North Carolina Innocence Inquiry 5. The National Registry of Exonerations, Browse Cases,
bit.ly/1JVXTF3 (last visited June 12, 2018).
recommended that there should be a jury Commission. These reforms have been
6. Id.
instruction on cross-racial identification if it important, but North Carolina can do more
7. United States v. Wade, 388 U.S. 218, 228 (1967).
is an issue in the case.31 to prevent wrongful convictions on the basis
8. National Academy of Sciences, Identifying the Culprit:
A jury instruction would be most effec- of cross-racial identifications. A jury instruc- Assessing Eyewitness Identification (2014),
tive when paired with other trial tools, such tion on cross-racial identification would cost bit.ly/2zQR6A7.
as an effective cross-examination of the eye- North Carolina nothing, and would further 9. Id. at 60.
witness regarding his or her ability to per- the aim of making our criminal system a 10. Joseph F. Savage Jr. & James P. Devendorf, Conviction
ceive and remember the perpetrator, as well more equitable one. A new or revised pattern After Misidentification: Are Jury Instructions a Solution?,
as expert testimony regarding the nature of jury instruction would be an effective way of The Champion, June 2011, at 30, n.7 (discussing factors
contributing to Jennifer Thompson’s misidentification of
memory, and factors that affect memory, ensuring that these concepts are conveyed to Ronald Cotton).
such as the presence of a weapon. Relying on jurors. Absent a pattern instruction, attorneys 11. Thompson, supra note 2.
cross-examination alone, however, would should seek a cross-racial eyewitness identifi- 12. See, e.g., Radha Natarajan, Racialized Memory and
produce uneven results depending on the cation instruction on the basis of competent Reliability: Due Process Applied to Cross-Racial Eyewitness
skill of the trial attorney. Cross-examining a evidence in cases involving cross-racial eye- Identifications, 78 N.Y.U. L. REV. 1821, 1822–23
witness, who may be traumatized, about the witness identifications, and North Carolina (2003) (concluding that “[w]hile all eyewitness identifi-
cations are prone to error, cross-racial eyewitness identi-
sensitive topic of race and whether it played trial judges are empowered to give such fications are more often wrong than same-race identifi-
a role in the identification, without alienat- instructions. North Carolina should join the cations”); see also Gary L. Wells & Elizabeth A. Olson,
ing the jurors, requires skills that even expe- ranks of other states, such as New York, that The Other-Race Effect in Eyewitness Identification: What
rienced trial attorneys may lack. In any have concluded that “the risk of wrongful Do We Do About It?, 7 Psychol. Pub. Pol’y & L. 230, 230
(2001); American Bar Association, American Bar
event, eyewitnesses are often so convinced convictions involving cross-racial identifica- Association Policy 104D: Cross-Racial Identification, 37
about the accuracy of their identification, tions demands a new approach.”36 n SW. U. L. REV. 917, 924 (2008) (“The purpose of a
they remain unflappable even in the face of specific jury instruction on cross-racial identification is to
the most effective cross-examination.32 Alyson A. Grine is an assistant professor at permit juries to consider the increased possibility of
misidentification in determining whether or not there is
Unfortunately, studies have shown that such North Carolina Central University School of sufficient evidence of guilt.”).
confidence does not correlate with higher Law. Previously, Grine served as the defender 13. National Academy of Sciences, supra note 8, at 96.
levels of accuracy.33 With regard to expert educator at the UNC School of Government 14. Christian A. Meissner & John C. Brigham, Thirty Years
testimony, while it would certainly benefit from 2006 until August 2016 focusing on of Investigating the Own-Race Bias in Memory for Faces: A
jurors in every case in which identification is criminal law and procedure and indigent Meta-Analytic Review, 7 Psychol. Pub. Pol’y & L. 3, 15
at issue, the reality is that experts on memory, defense education. She continues to work for the (2001).
15. The exonerees named who were the subjects of mistak-
and on cross-racial identification in particu- School of Government on the Racial Equity
en cross-racial identifications are black, with the excep-
lar, are not readily available. Also, they cost Network, a training program for indigent tion of Dwayne Dail who is white.
money. Judges may be reluctant to grant a defense lawyers on issues of race and criminal 16. For a more detailed discussion of this issue, see A. Grine
request for funds to obtain an expert, or may justice. & E. Coward, supra note 1, at sections 3.2 and 3.3.
rule such testimony inadmissible. For exam- 17. See, e.g., Tanja Rapus Benton et al., Eyewitness Memory
ple, Ronald Cotton, and at least one other Endnotes is Still Not Common Sense: Comparing Jurors, Judges and
Law Enforcement to Eyewitness Experts, 20 Applied
wrongfully convicted North Carolina man, 1. A. Grine & E. Coward, Raising Issues of Race in North
Cognitive Psychol. 115 (2006); Richard S. Schmechel et
Terence Garner, were both denied the oppor- Carolina Criminal Cases (2014) (Chapter 3 of this man-
al., Beyond the Ken? Testing Jurors’ Understanding of
ual deals generally with eyewitness identifications and
tunity to introduce expert testimony in their section 3.6E of the chapter deals specifically with jury
Eyewitness Reliability Evidence, 46 Jurimetrics J. 177
trials on the unreliability of cross-racial eye- (2006).
instructions), unc.live/2N7mcWC.
witness identification, and in both cases the 18. United States v. Brownlee, 454 F.3d 131, 142 (3d Cir.
2. Jennifer Thompson, Miscarriages of Justice Caused by
2006) (quotations and citations omitted). See also Phillips
rejection of such testimony was upheld on Mistaken Identification: The Case of Ronald Cotton
v. Allen, 668 F.3d 912, 916 (7th Cir. 2012) (stating that
appeal.34 When an expert is unattainable, (March 2, 2018) (lecture at the UNC School of
“nothing is obvious about the psychology of eyewitness
Government for the North Carolina Racial Equity
jury instructions can serve at least to bring Network; conference title: Cross-Racial Eyewitness
identification” and “most people’s intuitions on the sub-
the issue to jurors’ awareness without any ject of identification are wrong”).
Identification).
associated costs.35 3. See Elizabeth F. Loftus et al., Eyewitness Testimony: Civil
19. Timothy P. O’Toole et al., District of Columbia Public
Defender Survey, The Campion, Apr. 2005, at 28; see also
and Criminal § 1-2 (5th ed. 2013); see also Edward
Schmechel et al., supra note 17.
Conclusion Connors et al., National Institute of Justice, Convicted by
20. Perry v. New Hampshire, 565 U.S. 228, 264 (2012)
Juries, Exonerated by Science: Case Studies in the Use of
Following Ronald Cotton’s exoneration, DNA Evidence to Establish Innocence After Trial (1996); (Sotomayor, J., dissenting) (internal citations omitted).
he and Jennifer Thompson have partnered to C. Ronald Huff et al., Guilty Until Proved Innocent: 21. Brief of Amicus Curiae NAACP Legal Defense &
advocate for reforms to prevent wrongful Wrongful Conviction and Public Policy, 32 Crime & Educational Fund, Inc. at 14, People v. Boone, 91 N.E.3d
convictions on the basis of unreliable eyewit- Delinquency 518 (1986); Innocence Project, DNA 1194 (N.Y. 2017) (No. 2012-07711) (citing Richard S.
Exonerations in the United States, bit.ly/2yJC1w7 (last vis- Schmechel et al., Beyond the Ken? Testing Jurors’
ness identifications, protect the innocent, ited June 12, 2018). Understanding of Eyewitness Reliability Evidence, 46
and convict the guilty. Together, they have 4. Perry v. New Hampshire, 565 U.S. 228, 263 (2012) Jurimetrics J. 177, 200 (2006), and Roger B. Handberg,
played a powerful role in achieving reforms (Sotomayor, J., dissenting) (“[A] staggering 76% of the Expert Testimony on Eyewitness Identification: A New Fair
including the passage of the Eyewitness first 250 convictions overturned due to DNA evidence of Glasses for the Jury, 32 Am. Crim. L. Rev. 1013, 1035
since 1989 involved eyewitness misidentification.”). (1995)).
Identification Reform Act and the creation of
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