The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume I, Issue 4, April 2001

ACCESS

Religious Land Use & Institutionalized Persons Act of
2000 - "An act to protect religious liberty . "
Last year, the Congress of the
United States enacted legislation
designed to protect religious liberty. Religious Land Use & Insti-

tutionalized Persons Act 0/2000,
2000 S. i869 (hereafter referenced
as RLUIPA, or the Act). The Act
provides:
"No government
shall impose a substantial burden on
the religious exercise of a person
residing in or confined to an institution ... unless the
government demonstrates that imposition of the burden
on that person --

(I) is in
furtherance of a
compelling governmental interest; and
(2) is the
least restrictive
means of fUithering
that compelling
governmental interest."
RLUIPA, §3(a).
Under the legislation, "A person
may assert a violation of this Act
as a claim ... in a judicial

proceeding and obtain appropriate
relief against a government ...."
ld. at §4(a). In such a lawsuit, once
the plaintiff has presented evidence
that his right to freely practice
his religion has been "substantially
burdened," the government must
show that there is no less restrictive
means of furthering a compelling
governmental interest. Id. at §4(b).
RLUIPA seems to dramatically
alter the legal standard that governs
claims of governmental intrusions
into the religious practices of
inmates. The United States
Supreme Court has held that prison
officials may restrict the practice of
an inmate's religion if the restriction is reasonably related to a legitimate penological interest. 0 'Lone
v. Estate a/Shabazz, 482 U.S. 342
(1987). That is generally the same
basic approach the Court has taken
to analyze the legality of prison
regulations. See, Turner v. Safley,
482 U.S. 78 (1987). Under this
deferential legal standard, corrections officials are given broad discretion in imposing restrictions

upon all aspects of religious
practices.
RLUIPA appears to require the
courts to apply a more rigorous
analysis of such restrictions;
corrections officials must show
a compelling governmental
interest for the restriction, as
well as the absence of any less
restrictive means of fUlihering
that interest. ld.
continued on page .3

Inside this Issue:
Religious Lalld Use and lnstiutionized
Persons Act of2000
1
NCPLS files US Supreme Court Petition for Writ of Certiorari
2
NCPLS wins reliefin three Haheas
'Corpus cases

3

. N'CPLS Legal Assistants obtain certifi. anon
4
Double Jeopardy - An overview

6

NCPLS ACCESS

Page 2
ACCESS is a publication of North Carolina

Prisoner Legal Services, Inc. Established
in 1978, NCPLS is a non-profit, public
service organization. The program is governed by a Board of Directors who are
designated by various organizations and
institutions, including the North Carolina
Bar Association, the North Carolina Association of Black Lawyers. the North Carolina Association of Women Attorneys, and
law school deans at UNC, Duke, NCCU,
Wake Forest and Campbell.
NCPLS serves a population of more
than 32,500 prisoners and 10,000 pre-trial
detainees, providing infoDnation and
advice concerning legal rights and responsibilities, discouraging frivolous litigation,
working toward administrative resolutions
of legitimate problems, and providing representation in all State and federal courts
to ensure humane conditions of confinement and to challenge illegal convictions
and sentences.

Board of Directors
President, Gary Presnell
Senator Frank W. Ballance, Jr
Jim Blackburn
James A. Crouch, Esq.
Professor Grady Jessup
Paul M. Green, Esq.
Melinda Lawrence, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Michelle Robertson
Lou Ann Vincent, c.P.A.
Professor Ronald F. Wright
Fred Williams, Esq.

Executive Director
Michael S. Hamden, Esq.

NCPLS files appeal in U.S. Supreme Court
in Habeas Corpus case
The Fourth Circuit Court of
Appeals recently denied a habeas
petition in Bell v. Jarvis, 236 F.3d
149 (4 th Cir., 29 December 2000).
At trial, our client was accused
of sexual crimes against his wife's
grand daughter. The district attorney asked that everyone except the
families of the prosecution witnesses be excluded from the courtroom, including our client's wife.
The defense attorney objected to
this closure on the grounds that it
would violate the right to a public
trial, but the trial court allowed the
motion and only the people the district attorney selected were allowed
to be present when the prosecuting
witness testified.
Under Waller v. Georgia, 467 U.S.
39 (1984), a trial court cannot close
the courtroom to the public over
the defendant's objections unless
the court follows certain procedural
protections of the right to a public
trial. Under Waller, the court must
identify an overriding interest that
would be protected by closure, consider alternatives to the closure to
protect that interest, narrowly tailor
the closure, and enter findings that
a reviewing court can assess to
determine if the closure was justified. Our client's trial judge did
none of these things.

Editor
Billy 1. Sanders, CLAS
Articles, ideas and suggestions are
welcome: bsanders@ncpls.org

Volume 1, Issue 4, April 2001

On appeal, appellate counsel, who
was not the trial counsel, failed to
brief the public trial issue and the
conviction was affirmed. When the
client asked NCPLS for post-conviction assistance, we identified the
issue and filed a motion for appropriate relief based upon ineffective

assistance of appellate counsel.
The trial court dismissed the
motion and the court of appeals
upheld that ruling. Neither of
the state courts entered an opnion
explaining the denial.
We then filed a petition for a writ
of habeas corpus in federal district
court, again based upon ineffective assistance of appellate counsel. The district judge granted
summary judgment to the state
based upon a broad view of the
trial court's discretion. According
to the district court, the fact that
the courtroom was only closed
temporarily, and the opportunity
of the trial judge to observe
the prosecuting witness during
the motions hearings (she was sitting at the prosecution table), was
sufficient to give the trial court
grounds to close the courtroom
to the public. On behalf of our
client, NCPLS appealed the dismissal to the Fourth Circuit.
On the appeal, a three-judge panel
of the Court ofAppeals agreed
with our position and reversed
the decision of the district court.
But the state moved for a re-hearcontinued on page 6

Page 3

NCPLS ACCESS

Volume I, Issue 4, April 2001

NCPLS Obtains Federal Habeas Corpus Relief for Three Clients
In the January 2000 issue of
NCPLS Access, we reported a success in obtaining federal habeas
corpus relief for our client in
the case of Bates v. Jackson,
5:98-HC-915-BR(2) (October 19,
2000). Our client was serving a
50-year sentence on a conviction
for conspiring to traffic a controlled
substance. That conviction was set
aside on double jeopardy grounds
by the United States District Court
for the Eastern District of North
Carolina (E.D.N.C.).

At the close of the state's case, the
defendants moved for a dismissal
of the charges for insufficiency of
the evidence based on the variance
between the date specified in the
indictment and the evidence presented at trial. With the state's
consent, the trial judge granted
the motion. However, before the
defendants could be released from
custody, they were arrested on new
warrants.

THE CASE

The Wake County Grand Jury
returned new indictments against
all three men. In the new indictments, the state for the first time
alleged that the defendants had
conspired to manufacture and traffic drugs by transportation, sale
and delivery, in addition to the
charge of possession alleged in the
first indictment. The new indictments also alleged that the date of
the conspiracy was between September 1993 and December 29,
1994, instead of the "on or about"
date of January 4, 1995, contained
in the first indictments.

These three co-defendants were
originally charged with conspiring
to traffic a controlled substance by
possession. The conspiracy was
alleged to have occurred on or
about January 4, 1995. Their cases
were joined and they were tried for
the conspiracy charge in the Wake
County Superior Court in October
1995. Attrial, the state presented
witnesses who testified about a
drug conspiracy which had allegedly taken place sometime between
September 1993 and April 1994.

Before the start of the second trial,
the defendants moved for a dismissal of the charges on double
jeopardy grounds. That motion
was denied, a jury was sworn, and
the second trial began. At the
close of the evidence, the defendants renewed their motion to dismiss on double jeopardy grounds,
which was again denied by the trial
court. The jury found the defendants guilty and sentenced each
to imprisonment for a term of 50
years.

After the Bates decision, two of our
client's co-defendants, requested
assistance from NCPLS. In January 2000, NCPLS extended representation to these two individuals
and filed separate petitions for federal habeas relief in Federal Court
for the Eastern District of North
Carolina. The court granted the
petitions and both of our clients
were released in February of this
year.

STATE COURT ApPEALS

The defendants appealed the conviction to the North Carolina Court
ofAppeals. The Court of Appeals,
in an unpublished opinion, found
that no constitutional violation
occurred because the defendants
were tried for different offenses
under the second indictments and,
therefore, were not placed in
double jeopardy. The defendants
appealed to the North Carolina
Supreme Court on the basis of
Continuued on page 5

RLUIPA
continued from page 1

But the meaning ofRLUIPA is
not altogether clear. For example,
Section (e) provides that: "Nothing
in this Act shall be construed to
amend or repeal the Prison Litigation Reform Act of 1995 .
. .." However, the Prison Litigation Reform Act (PLRA), Pub.L.
104-134, amending 42 U.S.c.
§ 1997e(e) (26 April 1996) bars
redress for mental or emotional
injury in the absence of physical
injury. See, for example, Robinson
v. Page, 170 F.3d 747 (7th Cir.
1999). Since an intrusion into
one's right to freely practice his
religion ordinarily will not result in
physical injury, PLRA would seem
to bar a claim for relief, although
RLUIPA clearly provides a cause of
action.
Moreover, it should be noted that
RLUIPA is not the first legislative
continuod

011 noon

6

Page4

NCPLS ACCESS

Volume I, Issue 4, April 200 I

NCPLS Legal Assistants obtain certification
The legal assistants working at
North Carolina Prisoner Legal Services have worked hard to increase
their professionalism and knowledge through seeking cel1ification.
The National Association of Legal
Assistants (NALA) administers a
two-day examination which tests
the skills required of paralegals.
In order to apply to take the Cel1ified Legal ~ssistant (CLA) examination, legal assistants must meet
cel1ain criteria consisting of some
combination of education and expenence.
The examination consists of seven
sections. All legal assistants are
tested in communications (grammar, vocabulary, and writing
skills), legal terminology, legal
research, judgment and analytical
ability, ethics, and human relations
and interviewing. In addition, to
obtain cel1ification, legal assistants
must pass a substantive law portion, consisting of general law and
their choice of four other substantive law areas including criminal
law and procedure, civil litigation,
family law, administrative law,
bankruptcy law, business organizations, probate and estates, and real
estate.
Some states, such as Florida and
Louisiana, require paralegals to
pass an examination based on the
NALA exam. North Carolina does
not require legal assistants to be
cel1ified. NCPLS has provided
opportunities to its legal assistants
to pursue cel1ification, including
providing in-house training and
providing a training budget for

course materials and other
study aids.
NCPLS
currently
employs nine
legal assistants. Of
those nine
assistants, six
have taken
and passed all
portions of the
NALA examination and obtained
certification as Certified Legal
Assistants. Certification of a seventh NCPLS paralegal is contingent upon the succesful completion
of one remaining section of the
exam. All other NCPLS paralegals
are working toward certificaton.
NALA also administers specialty
examinations in substantive areas
of the law. To become a certified
specialist, a legal assistant must
have a passing score on the examination which tests that area of the
law in greater depth than the CLA
examination. Two NCPLS legal
assistants have obtained certification in a specialty area, one obtaining a double specialty.
The following legal assistants at
NCPLS have obtaincd certification
through NALA.
Kimber Bratton, CLA
Kady H. McDonald,CLA
Yvonne P. Oates, CLA
Sharon Robertson, CLAS
Patricia P. Sanders,. CLA
Billy 1. Sanders, CLAS

NCPLS recognizes that the efficient use of qualified legal assistants can greatly increase the
delivery of quality of legal services
to the inmates in the North Carolina
Department of COlTection.

Page 5

NCPLS ACCESS

Volume 1, Issue 4, April 2001

Double Jeopardy - General Issues
The following is a general discussion of the constitutional protections provided by the Fifth
Amendment's Double Jeopardy
Clause. We'll try to clarify when
that protection does and does not
apply in the context of a second
trial for the same offense. This is
not intended as a treatise on the
subject, as that is well beyond the
scope of this article. As Chief
Justice Rehnquist once wrote concerning the guarantee against being
twice placed in jeopardy, "the
decisional law in
the area is a veritable Sargasso Sea
which could not
fail to challenge
the most intrepid
judicial navigator."
Albernaz v. United
States, 450 U.S.
333 (1981).
Therefore, this
article is limited to
a very general discussion of some of the key considerations involved in a review of a
potential double jeopardy issue in
the context of a retrial.
The most well known protection of
the Double Jeopardy Clause is the
prohibition against a second prosecution for the same offense after
acquittal. However, the Clause also
protects against a second prosecution after a conviction and against
the imposition of multiple punishments for the same offense. North
Carolina v. Pearce, 395 U.S. 711
(1969). Because of the fundamental nature of the protection
of the Double Jeopardy Clause,
the United States Supreme Court

has held that the Clause is enforceable against the states through the
Fourteenth Amendment. Benton v.
Maryland, 395 U.S. 784 (1969).
When looking at a potential double
jeopardy claim based upon the
guarantee against re-trial after an
acquittal, there are four key preliminary considerations: (1) whether
jeopardy attached in a prior proceeding; (2) whether the offense
charged in the second trial was the
same offense that was tried in the

when the jury has been selected
and is sworn. For example,
assume that a defendant entered a
plea of not guilty and was going
to trial. On the morning of trial,
the state determined that there was
a fatal variance in the indictment
charging the defendant before the
jury was empaneled. The state
could move to dismiss the indictment at that time and later obtain
a new indictment for the very
same offense. Even though the
continued on page 7

Bates v. Jackson
continued from page 3

a substantial constItutlOnallssue.
However, that court dismissed the
appeal.
FEDERAL HABEAS REVIEW

first trial; (3) whether the offense is
being prosecuted by the same sovereign that prosecuted the first trial;
and (4) the result of the first trial.
The first consideration is whether
the defendant was ever in "prior
jeopardy." Before the protections
against a retrial are available to a
person charged with a crime, the
defendant must have been placed in
jeopardy previously for the charged
offense. The question boils down
to when jeopardy attaches in a
criminal proceeding. Generally, in
North Carolina, jeopardy attaches
at the district court level when the
trial court begins to hear evidence.
In the superior courts, jeopardy
attaches in a criminal proceeding

On January 5th, 2000, NCPLS filed
petitions for writs of habeas corpus
for the co- defendants. In both
petitions, we raised the same issue
that we pursued in the Bates case
-- that the second trial violated
the Double Jeopardy Clause of the
Fifth Amendment of the United
States Constitution. This argument
was based on the Double Jeopardy
Clauses' prohibition against re-trying a defendant for an offense after
a previous ac"quittal on the same
offense. In both co-defendants'
cases, the federal court relied on its
earlier decision in Bates v. Jackson.
In Bates v. Jackson, the state argued
that, because the second indictment
continued on page 6

Page 6

NCPLS ACCESS

Bell v. Jarvis continued from page 2
ing by the entire court, which was
granted. After a second oral argument, the en banc court affirmed
the district judge's dismissal, with
three of the members of the court
dissenting.

deference to those decisions. One
of the reasons the Supreme Court
will review a decision from a court
of appeals is that the decision conflicts with decisions reached by
other comis of appeals. Although
such petitions are rarely granted,
NCPLS believes this issue merits
the consideration of the Supreme
Court. A petition for celtiorari
was filed in late March.

The crucial issue in the appeal
was the effect of the Anti-Terrorism
and Effective Death Penalty Act
(AEDPA) on the power of the federal court to review state court
1. Phillip Griffin
dismissals of a defendant's claims
Senior StafJAttorney
of a constitutional violation. In
other words, does AEDPA limit
the power of the
nmr=:::-;:--n::~~
federal court to
review claims of
unconstitutionality, and if so,
how? The
Fourth Circuit
ruled that,
although the
state courts did
RLUIPA
not explain why they were dismiss- continued from page 3
ing the case, the federal courts were effort to protect religious liberty.
The Religious Freedom Restoration
required by AEDPA to defer to the
state courts' decisions if the result
Act of 1993 (RFRA), 42 U.S.C.
were reasonable. The Fourth Cir§2000bb, set out similar protections
cuit decided the result was reasonfor religious practices. But, the Act
was struck down as an unconstituable because the Supreme Court
tional exercise of Congress's power
has never specifically held that the
under Alticle 5 of the 14th Amendrequirements set out in the Waller
ment in City ofBoerne v. Flores,
case apply to child sex cases, so
117 S. Ct 2157 (1997).
the North Carolina courts could
have decided that appellate counsel
While RLUIPA appears to extend
could reasonably have determined
greater protection to inmates, the
that Waller did not apply to our
precise meaning of the Act will
client's case.
have to await judicial interpretation. Inmates who experience
NCPLS has decided to petition the
interference with their religious
United States Supreme Court on
practices may contact NCPLS for
behalf of our client. Other federal
advice and assistance.
circuit comts have ruled that if the
state courts do not explain their
decisions, there is no reason for

Volume 1, Issue 4, April 2001

NCPLS wins Habeas Corpus
relief for three clients
continued from page 5

covered a different time period and
contained the the additional crimcs
-- manufacture, transpOltation, and
sale and delivery -- the defendant
was not tried for the same offense
of which he was acquitted in the
first trial. However, NCPLS argued
that, despite the differences in the
indictments, the conspiracy charged
in the first offense was in fact the
same conspiracy. Therefore, since
the defendants had been acquitted
of that offense -- the conspiracy -they could not be retried for the
same conspiracy.
The Bates COUlt, after an extensive
review of the record, concluded
that the conspiracy in the first
indictment and the conspiracy in
the second indictment were the
same. Because there was but one
conspiracy, it could not be subdivided in time. Therefore, our
client's second trial for the same
offense attacked the most fundamental protection of the Double
Jeopardy Clause: "the constitutional protection against double
jeopardy unequivocally prohibits a
second trial following an acquittal."
Bates, relying on United States v.
Difrancesco, 499 U.S. 117, 129
(1980).

StaffAttorney James W Carter

Page 7

NCPLS ACCESS

Double Jeopardy - An Overview
guilty ifhe
sells, manufactures,
delivers,
transport, or
possesses a
certain
quantity of a
controlled
~-:::::-::=~:"""'":::::=~~~:=~~_ substance.
Based on the
defendant was ready for trial and
statute, it would seem that a person
the state's action caused the criminal
could not be tried and convicted
proceeding to be terminated, the
for both transportation and possesdefendant could be prosecuted a
sion, as one would logically have
second time because jeopardy never
to possess the drugs to transport
attached in the first proceeding.
them. However, the courts have
found that the element of transportThe second consideration concerns
ing the drugs is not the same elethe offense which provides the basis
ment as possession of the drugs.
for prosecution. Generally, if a
Therefore, there is no double jeopdefendant is acquitted of an offense
ardy violation when a person is
in the first trial, he cannot be prostried, convicted, and sentenced for
ecuted by the same sovereign for
both the possession and the transthe same offense in a second trial.
portation of the controlled subWhile it may seem rather simple
stance. State v. Perry, 316 N.C. 87
to determine whether two offenses
(1986).
are the same, that is not always the
case. Ordinarily, a court will look
On the other hand, the defendants
to the Blockberger "same elements"
in Bates, Fields, and Milligan were
test to determine whether two statuprotected from retrial because they
tory offenses are indeed the same.
were charged with the same offense
See United States v. Blockberger,
- conspiracy. Since they were
282 U.S. 299 (1932).
acquitted at their first trial on the
conspiracy charge, they could not
Under the Blockberger test, the elebe re-prosecuted for the same conments of each offense are examined.
spiracy.
If either of the two offenses contains
an element not contained in the
The third consideration is who is
other, then they are not the "same
bringing the second prosecution.
offense" and a re-prosecution would
Under the doctrine of dual soverbe allowed. ld. An example of
eignty, a prosecution for the same
double jeopardy analysis of two difoffense is not baITed where the
ferent can be based upon North
second prosecution is brought by
Carolina statutes for trafficking in
a separate sovereign (another state
controlled substances. Under N.C.
or the federal government). ThereGen. Stat. §90-95(h), a person is

Volume 1, Issue 4, April 2001

continued from page five

fore, even if you were tried and
acquitted in a North Carolina court
for an offense, you could be reprosecuted for that same exact
offense by the federal government
or another state if the conduct in
question violated the laws of that
sovereign.
The fourth consideration concerns
the outcome of the first trial. In
Bates, Fields, and Milligan, since
the defendants had been acquitted,
they could not have been re-prosccuted legally by North Carolina.
Of course, the same would hold
true if they had been convicted.
Once convicted and sentenced , if
the defendant does not challenge
the conviction, the state cannot reprosecute him for the same offense.
However, if, after a conviction, the
defendant successfully challenges
the conviction and it is reversed ,
then ordinarily the state can reprosecute without violating the prohibition against double jeopardy.
(But, an appellate court reversal
based upon insufficiency of the evidence presented at trial precludes
re-prosecution.)
As you can see from this brief and
general explanation, double jeopardy law is complex. NCPLS
evaluates requests for post-conviction assistance, including claims of
double jeopardy violations. For
further information or assistance ,
please contact NCPLS.

NCPLS StaffAttorney
James W Carter

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.

224 S. Dawson Street
PO Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: bsanders@ncpls.org

Visit our website at:
ttp://www.ncpls.org
continued from page 6

In both, Fields v. Chavis, 5:00-HC-9-BR(3) (January
29 t h, 2001) and Milligan v. McDade, 5:00-HC-8-H
(February 15,2001), the federal court found the reasoning of the Bates case persuasive and granted both
writs of habeas corpus. Both of our clients were
immediately released from custody.
In many cases where habeas relief is granted, the
petitioner is not entitled to immediate release because
there is a possibility of a re-trial on the same
charges. However, because these cases were decided
on double jeopardy grounds, both men were immediately released because they could not be re-tried.
StaffAttorney James W. Carter represented all three
former inmates in these cases.

North Carolina Prisoner Legal Services, Inc.
224 S. Dawson Street
PO Box 25397
Raleigh, NC 27611