Navigating the Postconviction Innocence Process

If you or someone you know has been convicted of a felony in North Carolina, but are innocent of the crime, there are two avenues to pursue in the state court system to have your claim evaluated and potentially litigated: by filing a motion for appropriate relief (MAR) in Superior Court or by pursuing relief through the North Carolina Innocence Inquiry Commission (Commission) process.  Before doing either, it is important that you consult an attorney.

In 2006, the Commission was established to investigate postconviction innocence claims that could not be adequately addressed through the traditional postconviction process.  The statute that governs the Commission process can be found here and provides an opportunity for judicial review of cases where evidence of innocence might otherwise be blocked from review because of procedural bars.  It also gives power to an independent State agency to look for evidence that has been declared lost or destroyed.  The Commission staff has been able to find evidence in numerous cases where law enforcement or prosecution stated that the very same evidence could not be located.  This power is critical because oftentimes analysis of physical evidence is the only avenue one can pursue to prove innocence.

It is extremely important to understand that the Commission is a State agency, and its staff, including the attorneys who work there, never represent or advocate for any defendant.  They are merely a fact-finding agency.  Additionally, the Commission does not consider any constitutional claims such as due process violations or ineffective assistance of counsel—it only looks at evidence of innocence.

If you are innocent of the crime for which you were convicted, or believe someone else is, you can contact the North Carolina Center on Actual Innocence.  We have been investigating innocence claims and advocating for innocent men and women in North Carolina for 17 years.  We will evaluate your claim to determine the likelihood of obtaining relief in your case.  If you have a credible claim, we will help you determine whether filing an MAR or applying with the Commission is your best option.  If it is determined that your claim is best suited for the Commission, we can guide you through the process and be there to answer any questions you have along the way.

Cheryl Sullivan is the Senior Staff Attorney at the North Carolina Center on Actual Innocence.  The Center is a 501(c)(3) nonprofit located in Durham, North Carolina that identifies, investigates and litigates credible claims of innocence, obtaining justice for people imprisoned for crimes they did not commit, for the victims of those crimes, and for the actual perpetrators.

An Historic Effort and Righteous Results

When a post comes across the [email] listserv announcing a case-related win of any kind, it feels good to every criminal defense lawyer who is swinging the battle ax day in and day out.  We celebrate with congratulatory replies and if we see that winning attorney in court we high five her.  A win for one is a win for all, and the shared revelry helps each of us keep up the fight.

Over the past several years, many criminal defense section members have quietly secured big wins for federal inmates who were sent to prison during the War of Drugs from the 1980s to the 2000s.  That War, as we all now know, is uniquely responsible for our current reality of mass incarceration.  Former President Obama announced an unprecedented clemency initiative in 2014, focusing on those convicted of drug-related crimes who received crushing mandatory-minimum sentences.

In response to Obama’s initiative, several national bar associations organized and created the nationwide Clemency Project in 2014.  The American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, the Federal and Community Public Defenders and the National Association of Criminal Defense Lawyers (NACDL) all took part in the project.  NCAJ is an affiliate of NACDL.

Calling America a “nation of second chances,” Obama commuted a total of 1,715 sentences by the time he left office.  NCAJ Criminal Defense section members Raymond Tarlton and Elliot Abrams, with the help of the Office of the Federal Public Defender in the Eastern District, successfully reduced the sentences of 6 people.

In one of Abrams’ cases, his client, Tony Taylor, had been sentenced to life in prison for a crack cocaine possession conviction.  Obama’s commutation reduced the sentence to 293 months.  While still an oppressive sentence, Taylor will see freedom in another 10 years.  “I never thought I’d get to see my daughter as a free man; now I will,” Taylor told Abrams.

Section member Jamie Lau, the supervising attorney at Duke’s Wrongful Conviction Clinic, took on several cases so that law students could assist in the clemency initiative.  One heart-swelling success was the case of James Burns, who in 2005 was sentenced to 235 months in prison for selling small amounts of crack cocaine.  Burns headed to federal prison with a release date of 2024.  He was a model prisoner, well-liked by fellow inmates and prison staff.  When his clemency petition was granted, Burns’ prison case manager told Lau that “Mr. Obama has picked himself a deserving one.”  Burns new release date is March 4, 2017.

Dozens of section members worked on petitions for clemency, many of which were not granted.  Even in the cases not granted, however, our members connected with federal inmates and established a relationship that showed, quite simply, that those behind bars are not forgotten.  While not a “win” in the traditional sense, a much-needed extension of compassion still provided hope and emotional sustenance for both the inmate and the attorney who reviewed the case.

The Clemency Project is now closed, but represented the best of what we can be as lawyers:  a diverse group of volunteers from the nation’s bar who together screened the cases of more than 36,000 federal prisoners who asked for assistance.  In total, the Project submitted 2,600 petitions, 705 which were granted.  Obama reinvigorated clemency, and our section members were a part of an extraordinary coalition who embraced Obama’s initiative that yielded results worth celebrating.

 Sonya Pfeiffer, VP of Membership and Chair of the NCAJ Criminal Defense Section, is a partner at Rudolf Widenhouse www.RudolfWidenhouse.com.  

Workers’ Compensation and Personal Injury – What is the Difference and Why Should I Care?

A workers’ compensation claim and a personal injury case are completely different things. If you have been injured it is important to understand which kind of case you have, or if maybe you have both, and the differences between the two.

Is the injury related to your job?

A worker who is injured on the job in NC may have a workers’ compensation claim. The injury must come from an accident that happens in the “course and scope” of the work. Not all workplace injuries are covered by workers’ compensation in North Carolina. Workers who develop an occupational disease in North Carolina may be covered by workers’ compensation if their employment put them at risk for the condition. The point is that to have a workers’ compensation case in NC the injury or medical condition must be related to your employment.

Personal injury cases on the other hand can happen anywhere and do not need to be related to your employment. Typical examples of personal injury cases include automobile accidents, slip and falls, and professional malpractice.

Was somebody else at fault?

With workers’ compensation, it does not matter who was at fault in causing the injury. An injured worker does not have to prove that the employer was at fault. In fact, an injured worker can receive workers’ compensation benefits in North Carolina even if the worker accidentally causes the injury. In workers’ compensation, fault does not matter as to whether the claim is valid or not.

In a personal injury claim the injured person must show that the person who caused the injury was “negligent.” Negligence means the breach of a legal duty of care resulting in an injury and damages. In other words, negligence is hurting someone because you are not being careful enough. (Although my law school torts professor would have disapproved of that definition.) In a personal injury case in North Carolina, if the injured person is partly at fault in causing the injury, his or her claim may be barred. This is called “contributory negligence.” In North Carolina, an injured person who contributes even 1% to his or her own injury may not be able to recover at all.

Who do you file your claim against?

If you are injured on the job in North Carolina, you should file your workers’ compensation claim against your employer’s workers’ compensation insurance company or workers’ compensation administrator. This claim will be handled by the North Carolina Industrial Commission. With very few exceptions you cannot file a lawsuit for a workplace injury against your employer in civil court, even if you were injured because of your employer’s carelessness. Again, in workers’ compensation cases fault does not matter. Your only option is to take your claim to the Industrial Commission. This is known as the “exclusive remedy” provision. The exclusive remedy rule also applies if you are hurt at work because of the carelessness of a co-worker. Again, you must file the claim with the Industrial Commission.

Deciding who to recover from in a personal injury claim is a little more complicated. You can seek to recover from the person or people whose lack of care caused your injuries. If you are injured in an automobile accident that is someone else’s fault, and that person was driving a vehicle owned by a family member, you may be able to recover from the vehicle owner. If the person who injured you was acting as an employee of a company you can also seek to recover against that company.

Where, when and how do you file your claim?

If you are injured on the job you must file your North Carolina workers’ compensation claim with the North Carolina Industrial Commission. In most cases, you must file your claim within two years. You should also give notice right away to your employer. The Industrial Commission is a government agency responsible for administering workers’ comp claims in North Carolina. The Industrial Commission decides disputes between injured workers and their employer’s workers’ compensation insurance company, including whether an injury or occupational disease is covered by workers’ comp, what medical treatment should be provided, and what wage replacement benefits are owed. The Industrial Commission also reviews all workers’ compensation settlements in North Carolina.

If you are injured because of someone’s carelessness and have a personal injury claim, you can file a lawsuit in civil court. In most cases, you have three years from the date of the injury to file your lawsuit, but there are many exceptions to this rule. Most claims can be filed in the county where you live or where one of the people you are suing lives. Your lawsuit, call a “complaint,” must be filed with the Clerk of Court and must be delivered to or “served” on each defendant. A judge will make decisions about who should be involved in the lawsuit, what evidence can be used, and when the case will be heard. You have the right to have your damages decided by a jury in a personal injury case.

What can you recover?

Workers’ compensation in North Carolina provides two benefits, medical treatment paid for by workers’ compensation for the injured body part, and workers’ compensation disability payments. Workers’ compensation does not pay pain and suffering or other types of damages.

If you have a personal injury case you may be able to recover a much broader range of damages, including past and future medical expenses and wage loss, as well as for pain and suffering.

Can you have both a workers’ compensation case and a personal injury claim?

If you are injured on the job through the carelessness of someone who is not an employer or co-worker, you may have both a workers’ compensation claim and a personal injury claim. You can and should pursue both. An example would be if you were injured in an automobile accident while on the job in North Carolina. The workers’ compensation insurance company may be able to recover money it pays on the workers’ compensation claim from the personal injury case so the cases must be carefully coordinated.

 

Kevin Bunn is a North Carolina workers’ compensation lawyer. He has practiced law in Cary, North Carolina, since 1993. Kevin is a Board Certified Expert in North Carolina Workers’ Compensation Law, a member of the North Carolina Industrial Commission’s Advisory Council, a past Chair of the NCAJ Workers’ Compensation Section, and serves on the NCAJ Board of Governors. For more information about Kevin and his law practice please visit ncworkercomp.com.

Generic vs. Branded Drugs – Yes, There Is A Difference When You Have a Drug Related Injury

Every day, millions of Americans have prescriptions filled with generic drugs. Because we have become so accustomed to generic drugs –  over 80% of prescriptions are filled using generics – we don’t give much thought to it.  In most circumstances, a doctor or pharmacist will tell you that there is no difference between the name brand drug or its generic equivalent.  However, your ability to recover for injuries caused by prescription drugs depends on whether you took the branded or generic version.

In 2011, the U.S. Supreme Court issued a ruling, Pliva v. Mensing, that effectively made generic drug makers not responsible for injuries to consumers. The most common theory for a products liability claim against a drug manufacturer is a failure to adequately warn of the drug’s side effects and risks.  These claims are brought under state laws that are stricter than FDA regulations and impose a duty on a manufacturer to change the label on a drug when they know of potential injuries.  A branded drug manufacturer has the ability under federal law (the FDA) to change their warning label whenever necessary.  But under federal law, the labeling and warnings on a generic drug must be identical to the named brand counterpart. Meaning, the warnings on a generic drug can only be changed if the warnings on the brand name drug are changed.  Since federal law usually preempts or overrules state laws, the Supreme Court said it would be “impossible for the [generic drug] manufacturer to comply with both their state law duty to change the label and their federal law duty to keep the label the same.”  Accordingly, plaintiffs cannot sue a generic drug manufacturer for failure to adequately warn of a drug’s side effects.

The FDA has been considering a rule that would allow generic drug manufacturers to independently update their warning labels.   Efforts to convince Congress to change the rules with legislation failed.  Until there is a change, many consumers will have no legal recourse against the manufacturers of the drugs that injure them.

 

Written by Jean Sutton Martin of the Law Office of Jean Sutton Martin PLLC.  Attorney Jean Sutton Martin provides focused, personalized legal solutions for people who have been harmed by pharmaceutical drugs and medical devices.

Is it legal to wear headphones while driving in North Carolina?

Yes. Sort of.

Though delayed from its original release date in October 2016, Apple still advertises its much anticipated “Airpod” headphones for release in the beginning of 2017. The headphones are wireless and boast speakerphone capability in its signature ‘pod’ design with competitive sound quality and comfort. Apple lists the headphones at a retail price of $169.00, a price well in excess of its current wired version, but one on par with, or cheaper than, many headphones in the Airpod’s prospective class.

In anticipation of their release, I felt it helpful to answer a question I often receive at the various dinner parties I’m invited to and attend (just kidding, I’m not that cool): Is it legal to wear headphones while driving? In North Carolina, the short answer is that yes, it is legal to wear headphones while driving. Many states in the nation have laws that regulate a driver’s ability to wear headphones while driving – and many more ban it outright. North Carolina is not one of them.

The reasons for banning the headphones are obvious, chief among them is that they substantially interfere with a driver’s ability to hear and respond to emergency sirens or other roadway emergencies that arise while driving. That is why in California it is legal to listen to music in headphones while driving as long as only one pod is in the driver’s ear and the other ear is open to hear and respond to emergency situations.

While no law in North Carolina specifically prohibits the use of headphones while driving, that does not mean drivers in the state can use them with impunity. For one thing, it should be noted that if any driver intends to travel beyond the jurisdiction of North Carolina, it may or may not be legal in the bordering state. (South Carolina – legal; Tennessee – legal; Georgia – illegal; Virginia – illegal). For another, and perhaps more salient thing, the effect of wearing headphones may cause a driver to violate already existing traffic laws in North Carolina.

To extrapolate on the above-contemplated scenario, if a driver in North Carolina cannot hear emergency sirens, and fails to react according to specific statutory directions to allow an emergency vehicle to pass, that is against the law in North Carolina.

N.C.G.S. § 20-157 sets forth as follows: Upon the approach of any law enforcement or fire department vehicle or public or private ambulance or rescue squad emergency service vehicle, or a vehicle operated by the Division of Marine Fisheries of the Department of Environmental Quality, or the Division of Parks and Recreation of the Department of Natural and Cultural Resources, or the North Carolina Forest Service of the Department of Agriculture and Consumer Services when traveling in response to a fire alarm or other emergency response purpose, giving warning signal by appropriate light and by audible bell, siren or exhaust whistle, audible under normal conditions from a distance not less than 1000 feet, the driver of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb, clear of any intersection of streets or highways, and shall stop and remain in such position unless otherwise directed by a law enforcement or traffic officer until the law enforcement or fire department vehicle, or the vehicle operated,” by the state shall pass. [Emphasis Added].

A driver with headphones in runs a real risk of not being able to hear the emergency vehicle within 1,000 ft under normal auditory conditions, as the headphones would certainly move the condition from the realm of normal to abnormal. It puts a lot of faith in visual clues. Not only is a violation of the above-cited subsection a Class 2 Misdemeanor, it is also negligence per se, so apart from criminal culpability expected from its violation, it can also threaten to create significant civil liability should any injury happen as a result of the driver’s failure to follow the statute’s directions for oncoming emergency personnel.

What if injury does happen as a result? Well, that makes it a Class 1 Misdemeanor. Serious injury or death? That’s a felony.

As is often the case in the law, the short answer is very rarely the complete one. While no law specifically prohibits the use of headphones while driving in North Carolina, their use can substantially interfere with a driver’s ability to comply with already existing traffic laws the violation of which gives way to serious consequences.

 

Taylor Hastings is an attorney from Chapel Hill, North Carolina; his practice focuses on criminal defense and civil litigation. In 2014, he started Hastings Law & Counsel, PLLC, a law firm that provides legal assistance throughout the triangle in state and federal court. Please visit www.hastingsnclaw.com to learn more or call 919-913-4701 for specific answers to legal issues.

Civil Litigation 101

Civil litigation is the broadest and most diverse section of the legal realm, wherein civil disputes are resolved between two or more persons, businesses and/or government agencies.  Attorneys that practice civil litigation are commonly known as “litigators” or “trial lawyers” and help clients resolve disputes in pre-trial hearings, trials, arbitrations and mediations before administrative agencies, foreign tribunals, and federal, state and local courts. A few examples of such disputes include labor and employment, real estate lawsuits, construction, environmental law, civil rights, housing law, products liability, medical malpractice, personal injury, workers’ compensation, intellectual property, consumer law, education law and family law.

A significant portion of the population will have had involvement in civil litigation, either as a witness, the plaintiff (the party that brings the lawsuit or petition) or the defendant (the party that defends against the lawsuit or petition).  Being a party is usually a fairly stressful event which can span from months to years and can cost up to tens of thousands of dollars or more, depending on the complexity of the case, the evidence involved and the case strategy that each party adopts.  The cost to each party includes not only attorney’s fees, but also filing or court fees, sheriff service fees, deposition transcript fees, potentially the fees of one or more expert witnesses, and any out of pocket costs (such as for copies, travel, postage and the like).  A single deposition can cost between several hundred to several thousands of dollars, depending on its length and number of exhibits.

When you are faced with civil litigation, you are usually pitted against one or more other parties and your lawyer is your advocate who employs his or her skill and prowess, along with knowledge of legal rules and procedures, to help you achieve the best possible outcome under all of the facts and circumstances that are unique to your case.  The path to achieving the outcome can involve several stages, up until the time that the matter is settled either voluntarily by the parties or by a disposition or order entered by the court, agency or tribunal.  Litigation stages include initial investigation, pleadings (the formal documents filed with the court that contain the relief sought and the defenses against the relief sought), discovery (the time and labor intensive task of gathering and exchanging information through written interrogatories, document requests, subpoenas and oral depositions under oath), pretrial proceedings, potential settlement or trial, and even appeal.  Civil litigation attorneys spend most of their time in the office investigating and researching claims and defenses, drafting documents, analyzing evidence and developing their cases and arguments, as opposed to the courtroom where these many hours or work are  culminated into one or more hearings and/or a trial.

In each dispute that receives a final determination by the court, there is a winner and a loser.  If a party is not pleased with the outcome of a hearing or a trial, it may appeal to the next highest tribunal.  For example, in state court, small claims matters are appealed to district court, district court matters are generally appealed to superior court and superior court matters are generally appealed to the North Carolina Court of Appeals.  Matters decided at the Court of Appeals may be appealed to the North Carolina Supreme Court, though this high court only accepts a percentage of cases that are appealed to it.  The appellate courts (Court of Appeals and Supreme Court) have their own set of rules, in that they do not make new factual determinations, but rely upon the facts found in the lower court and consider whether error occurred at trial or in judicial interpretation or application of the law.

It is possible for the winner to spend more on the litigation itself than is recovered.  For this reason, settlement efforts are usually worthwhile and some courts or tribunals require that the parties participate in a mediated settlement conference prior to the trial or hearing to see what issues can be worked out.  It is common for the parties to settle one or more issues between them at mediation or by way of some other settlement effort.  Sometimes, with client consent, the attorneys initiate settlement efforts themselves when they feel it is in their client’s best interest.  It is important to hire a lawyer who can help navigate you through litigation decisions, such as when to make a settlement attempt or when to go to trial.   It is also helpful to speak to lawyers before becoming involved in litigation about the potential length and cost of the litigation, as well as the remedies or possible outcomes if litigation is pursued.  Lastly, it is crucial to keep the lines of communication open with your attorney and to carefully consider the attorney’s recommendations during the pendency of the litigation in order to achieve the best possible result.  The stress felt by the parties during the litigation often become replaced with mutual relief once the dispute is over.

Susan L. Evans is a civil law litigator practicing state and federal law in Asheville, North Carolina, and surrounding areas. She has experience in employment, civil rights, business, contract, tort, consumer, real estate, construction and family law litigation.  Her practice also includes appellate work.  For more information, visit http://www.evanslaw-asheville.com/.

Reflections on Medical Malpractice cases in North Carolina

A friend of mine recently asked me why medical malpractice cases are so challenging to litigate in North Carolina.  My response was that medical malpractice cases are some of my favorite and most rewarding cases to handle because of the close connections I’ve formed with my clients.  These clients, through no fault of their own, were all seriously injured because of a preventable medical mishap.  Like most relationships forged in trying circumstances, these bonds are meaningful, deep, and permanent.

Medical malpractice cases are difficult for many reasons.  Because they require expert witness testimony, they tend to be expensive.  It is often necessary to hire a number of medical doctors to review the case and testify, and these doctors typically charge for their time by the hour.  These cases are typically defended very aggressively by attorneys hired by medical malpractice insurance companies.  Therefore, there are usually many trips required to take and defend numerous depositions, each incurring the costs of travel, lodging, transportation, meals, etc., in addition to the costs of a court reporter and a written transcript.  Medical malpractice cases are also much more likely to be tried than ordinary negligence cases.  This means that additional costs are incurred to create exhibits, for witness travel and testimony, and for lodging, meals, and other incidental costs.  Plaintiffs in medical malpractice cases also face a number of legislative, procedural, and other rhetorical difficulties, including arbitrary legislative caps on damages, widespread (but unfounded) fears among potential jurors of frivolous lawsuits, and usually a lack of cooperation from subsequent treating physicians.

Because medical malpractice cases are so challenging in our State, it is vital that victims consult with an attorney with substantial experience in this specialized area of the law.  When considering counsel, inquire about the percentage of medical malpractice cases handled by the lawyer or firm, question whether and how often the lawyer or firm has tried medical malpractice trials, and ask about the challenges and potential costs of pursuing your case.  Finally, but just as importantly, seek an attorney with whom you will likely form a meaningful personal, in addition, to a professional bond.

 John Chilson is a partner at Comerford & Britt, LLP, in Winston-Salem where he focuses his practice on catastrophic personal injury and medical malpractice claims.  He, and all of the other experienced medical malpractice litigators at Comerford & Britt, LLP, will be glad to answer your questions and identify all available legal options.  Please visit www.comerfordbritt.com or call 877-631-8510.