The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume I, Issue 6, Novemeber 2001

ACCESS

NCPLS wins reversal of life sentence
In State v. Stewart, 353 N.C. 516,
546 S.E.2d 568 (200 I), the North
Carolina Supreme Court reversed
our client's conviction and sentence
of life in prison. The high court
ruled on June 8, 200 I, that the trial
judge should have dismissed the
case because the variance between
the date set forth in the indictment
and the evidence presented by
the State prejudiced defendant by
depriving him "of an opportunity
to adequately present his defcnse."
State v. Stewart, 353 N.C. 516, 546
S.B.2d 568 (2001). The indictment
alleged that the offense occurred
during a 31-day period, but the
prosecution's evidence spanned 2
Y2 years. The Supreme Court ruled
that the variance put Ste\vart at a
disadvantage because he based his
alibi defense evidence on the 31
day period alleged in the indictment. "I was very pleased with the
Court's decision," said Susan H.
Pollitt, Senior Staff Attorney with
North Carolina Prisoner Legal Services, Inc., who argued the case in
the Supreme Court.
Stewart had first been charged with
thc felony in a juvenile petition
in 1991. The case was bound
over to Superior Court for trial.
When he was convicted in 1994,
he was given thc mandatory sentence oflife in prison. The
Court of Appeals upheld his con-

viction in 1994. NCPLS
Attorney Kathryn VandenBurg filed a Petition for
the Writ of Certiorari with
the N.C. Supreme COUli in
1999, because of the variance between the date
alleged in the indictment and
the evidence offered by the
state.

Parental Rights Restored

In re: Bullis, 00 J 139
(3 October 200 I).
Our
client wrote us requesting
assistance in arranging visitation
with her daughter, a minor in
custody of our client's ex-husband.
Even though there was a consent
order in force that allowed visitation every other weekend, the exhusband refused to bring the child
to visit or let anyone else do so.
He also refused to allow our client
to speak with her daughter by
telephone. NCPLS filed a motion
to allow visitation and learned
through the court that our client's
parental rights had been terminated
in an earlier proceeding. When we
discovered that our client did not
have notice of that proceeding, wc
asked the court to strike thc ordcr
terminating parental rights. NCPLS
argued that the ex-husband had not
used due diligence to give our client
noticc of thc earlier proceeding.
The judge ruled in our favor and

Continued on page 2

Inside this Issue:
NCPLS wins reversal

1

11 September 2001

3

Teclmology Changes Law
P,m:tice

4

2001l..egislative Devleopments

6

Page 2

NCPLS ACCESS

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 DNC, Duke, NCCD,
Wake Forest and Campbell.
NCPLS serves a population of more
than 32,500 prisoners and 10,000 pre-trial
detainees, providing information 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.

Parental Rights Restored
continued from page 1

to provide for child support, she
sent cards and letters, made phone
calls, and even put an ad in the
local newspaper in the hope that her
child would see it. After numerous
delays, that evidence was presented
at a hearing and the judge ruled
in our client's favor and declined
to terminate her parental rights.
The previous consent order is still
in effect, and the court ordered
supervised visitation every other
weekend. That ordered culminated
four years of advocacy on behalf
of our client by NCPLS StaffAttorney Ellie Kinnaird and Paralegal
Kady McDonald, Certified Legal
Assistant.
UNITED STATES SUPREME COURT

Board of Directors
President, Gary Presnell
Senator Frank W. Ballance, Jf.
Jim Blackburn
James A. Crouch, Esq.
Professor Grady Jessup
Paul M. Green, 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.

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

Volume 1, Issue 6 November 2001

DENIES PETITION

In an earlier edition of ACCESS we
reported that the Fourth Circuit
Court ofAppeals 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. 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 identified were
allowed to be present in the courtroom when the prosecuting witness
testified.
In ruling upon defendant's objection to closure, the trial court failed
to follow the procedures that the

Supreme Court set up to ensure
that such closures only occurred
when absolutely necessary. Under
Waller v. Georgia, 467 U.S. 39
(1984), 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.
Although defendant's counsel
objected at trial, and even though
the appellate attorney assigned the
closure as error, the issue was not
briefed and was therefore waived
on direct appeal. The appellate
court affirmed the conviction.
NCPLS filed a Motion for Appropriate Relief based on a claim of
ineffective assistance of appellate
counsel, which the trial court dismissed as failing to state a claim
and the court of appeals upheld that
ruling. Neither of the state courts
entered an opnion explaining the
dismissal. NCPLS then filed a petition for a writ of habeas corpus in
federal district court. The district
court denied the petition, but on
appeal, a three-judge Fourth Circuit
panel reversed and ordered a new
appeal. However, the State asked
that the case be considered by the
entire court. That motion was
granted, and on rehearing, the full
court overturned the panel decision
and upheld the district court. Three
members of the court joined in a
dissenting opinion.
continued on page 7

Page 3

NCPLS ACCESS

Volume I, Issue 6 November 2001

11 September 2001

by Michael Hamden, Excecutive Director, NCPLS

can be no justification for the
taking of innocent lives, has the
U.S. government done something to
cause such hatred? Can anything be
The immediatc response was one of done to prevent similar cataclysmic
What will
courage and self-sacrifice. Emer- acts in the future?
gency teams were on the scene preventative measures mean to our
within minutes. Literally hundreds freedom and the values that are
of firemen and policcmen lost their central to our way of life?
Two of the planes collided into the lives in an effort to save others.
twin towers of thc World Trade Later, people everywhere donated Will our eourts protect civil rights,
Center, a. third crashed into the blood and sent donations to help or allow them to be compromised
Pentagon, and the fourth, which survivors and the families of the to accommodate the perceived need
was en route to Washington, D.C., victims. Exprcssions of sympathy for a greater degree of governmental
went down in a rural part of and solidarity have been sent from control?
Pennsylvania. Within a few short all over the world.
Although there are at present no
moments after the crash, the twin
clear
answers to these and other
towers collapsed into a pile of In the attemlath, our government
nibble, bringing down other nearby has aIIDounced an intention to bring questions, our search for answers
stnIctures, and killing thousands to justice the people responsible should be guidcd by the principles
for the attack. Support for that upon which this country was
of people.
effort is coming from govemments founded.
In little more than an hour, 6,000 around the globe.
We jud~e people, not because
people lost their lives.
Our
they
are members of a particular
country, and indeed, the entire At home, there are lingering quesworld, awoke to the profound threat tions and concems. While there ethnic group or members of any
particular religion, but based upon
their behavior. All religions
teach that we should love
God and (at least) respect
each other.
On September 11 th , the world
witnessed in horror a series ofevents
that had catastrophic consequences.
It now appears that 19 men hi-jacked
four commercial airliners. With
crew and passengers still aboard,
the men steered the airplanes toward
national landmarks.

posed by a small group of people
committed to a course of violence
and destruction.

If wc want peace, we must
work for justice. To achieve
these objectives, we will need
the depth of conviction and
commitment demonstrated by
those who gave thcir lives to
savc others.
Each of us is involvcd in this
struggle.
Working together
with sustained determination,
justice and peace will be
realized.

Volume 1, Isssue 6 November 2001

NCPLS ACCESS

Page 4

Technology Impacts NCPLS Law Practice
North Carolina Prisoner Legal
Services has access to a comprehensive computer library through
LEXIS-NEXIS. This library contains all state and federal appellatc
decisions, including all North
Carolina decisions. It also contains
an exhaustive selection of other
materials such as law journals,
legal treatises, and legal indices
such as American Jurisprudence.

Computer technology has increased
productivity in the workplace, and
law offices are no exception.
Legal research, document preparation, case tracking, time keeping, and
many other facets of the law practice
ofNCPLS have been affected by the
advances in computer technology.

In the "good old days," attorneys
would spend countless hours in a law
library, looking for that dusty old
decision that might make a difference
in their case. Now attorneys can go
online, enter a few search terms, and

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Case Tracking
Computer technology has paid
other dividends for North Carolina
Prisoner Legal Services. NCPLS
maintains a file for every client
who has requested legal assistance.
Over the years, we've developed
quite an extensive file collection.
Of course, it takes a lot of time to
manage all of those files, and all of
that information.

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Computerized legal research greatly
reduces the time that was previously
spent in this activity, contributing
greatly to efficiency in the law
office.

This database allows attorneys and
paralegals to conduct extensive
legal research quickly. NCPLS
has a broad-bandwidth lntemet
connection that allows searches to
be conducted in seconds, based
on the entry of key words or
phrases. Searches can be confined
to North Carolina appellate deci-

Computer Research

r,-

sions, the United States Fourth
Circuit Court of Appeals, or virtually any combination of state and
federal courts.

"bingo," they have their case.

In recent years, the practice of law
has changed in many ways. Perhaps
the biggest change has been the
increasing reliance on the computer
by legal professionals.

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Case information is now
entered into NCPLS's casetracking program. That program records information
such as the subject matter of
the file, identifying infon11ation about the inmate, the time
spent hy NCPLS advocates
on that matter, the file status,
and other information related
to the file.
When an inmate writes to our
office, our staff can quickly
identify whether he or she
has a file opened in our office
on that matter, whether the
inmate has ever written to
our office before about the
same or a different matter,
continued on page 5

NCPLS ACCESS

Page 5

Technology Impacts NCPLS

continuedjrompageS

and what advocate is assigned to
that case.

in North Carolina, the CD-ROM
also contains an interactive Structured Sentencing calculator that
This automated case-tracking system takes the guess-work out of
greatly reduces the time our staff evaluating claims that prisoners
must spend searching for this where assigned an incorrect Prior
information. It also allows better Record Level under Structured
management of individual advocate Sentencing.
NCPLS advocates
caseloads and provides other report- can access this infonnation from
ing capabilities that help manage their desks.
our work.
Word Processing
Department of Correction Web
Resources
Computer software has made many
In many
other tasks simpler.
The North Carolina Department of large law offices, the practice of
Correction has developed a web dictation was the norm, and in
site that allows a user to search many cases still is. With dictation,
DOC records for information about a lawyer's words were recorded
individual prisoners.
The entire (either manually, with shorthand,
population of inmates committed or electronically, by tape recorder),
to DOC custody can be searched and were transcribed later. In
with either a name or an OPUS our office, most advocates produce
number. The web site contains their own letters and documents on
fundamental information such as word processing software located
current location, sentence informa- on their computers.
tion, projected release dates, disciplinary record, arrest record, and In the near future, we will be
other valuable information that also installing voice dictation software,
increases efficiency in our office. which will allow an advocate to
Access to this data allows us to dictate a document directly into the
respond more promptly to client computer's software for immediate
requests for routine information.
transcription. This change in office
technology has reduced costs and
Institute of Goverment Resources resulted in time savings.
Our office also holds licenses from
the Institute of Government for their
"North Carolina Crimes, Fifth Edition" law collection on CD-ROM.
In addition to comprehensive information about the elements of
offenses, statutory interpretations
from appellate courts, and other
information about criminal offenses

Volume 1, Issue 6 November 2001

Other computer software in our
office allows advocates to access
an electronic calendar, maintain
contact information in electronic
format, and to save and store
documents for future reference.

Internet and Intranet Resources

NCPLS also maintains an Intranet
site within our office. This site
allows ready access to training
materials and manuals developed
by our office, office forms and
information, links to helpful Internet
sites, and other valuable resources
that can be accessed by our
advocates quickly and easily.
The Internet itself has proven to
be a valuable resource for our
advocates. Search engines on the
World Wide Web allow advocates
to gain access to governmental
agencies, medical resources, other
prisoner legal resources, information about pending legislation in the
North Carolina General Assembly,
and a wealth of other information.
This resources now makes it possible to get information online
that previously might have taken
days or weeks to obtain through
conventional sources.
Electronic Mail

Electronic mail, or "email" as it
is now universally known, can
be a boon to a law practice as
well, both within and outside the
office. Advocates find it an efficient
means of transmitting requests and
communicating information to other
staff members, as well as to the
world at large.
NCPLS constantly looks for ways
to increase efficiency and deliver
better services to our clients.
Computer technology has helped
us to do that.

Palle 6

NCPLS ACCESS

Volume L Issue 6 November 2001

Legislative Developments - 2001 General Assembly
Changes in Time Credit for
Medically or Physically Unfit
Inmates
In the 2001 session of the North
Carolina General Assembly, the
law was amended to provide:
"Earned Time Credit for Medically
and Physically Unfit Inmates:"
(d) Earned Time
CredIt for Medically
and Physically Unfit
Inmates. - Inmates in
the custody of the
Department of Correction who suffer
from medical conditions or physical disabilities that prevent
their assignment to
work release or other
rehabilitative activities may, consistent
with rules of the
Department of Correction, earn credit
based upon good
behavior or other
criteria determined
by the Depmiment
that may be used to
reduce
their
maximum tenn of
imprisonment as provided
in
G.S.
15A-1340.13(d) for
felony sentences and
in
G.S.
15A-1340.20(d) for
misdemeanor sentences."
G.S. 15A-1355.
Under the new law, DOC may revise

its policies to allow gain time to
be awarded to physically impaired
inmates under some circumstances.
Fmiher information may soon be
available from your case worker.

alternatives presented by the Commission should ensure that sentencing laws appropriately penalize
offenders for the nature and degree
of harm caused by the offense
while identifying inconsistencies in
Boot Camps phased out?
the structured sentencing law or in
its application. The Commission's
In other developments, it appears alternatives shall be consistent with
that Boot Camps will be phased- the purposes of sentencing as stated
out over the next couple of inG.S.15A-1340.12.
years. It is the intent of the General Assembly that the IMPACT Many inmates have written to our
boot camp program be eliminated office because they have heard
by June 30, 2003, and that about this measure. Rumors are
alternative residential programs for constant in the prison system that
offenders be established in the this means the sentences of inmates
current IMPACT locations.
currently incarcerated will be
reduced.
Structured Sentencing Study
SECTION 25.8.(a) In exercising
its statutory responsibility under
Aliicle 4 of Chapter 164 of the
General Statutes to monitor and
review the criminal justice and
corrections system, the North Carolina Sentencing and Policy Advisory Commission shall study and
review the State's sentencing laws
in view of the projected growth
in the prison population by 20 IO.
Areas of review may include the
classification of offenses and
offenders, the relationship of the
sentence and the sentence length to
the offense, and the sentence dispositions available to judges. The
Commission shall also analyze the
parole-eligible population in tenns
of offense committed, sentence,
and time served in comparison to
inmates sentenced under structured
sentencing. The Commission shall
develop alternatives for consideration by the General Assembly. The

Though the Sentencing and Policy
Advisory Commission could provide an alternative to the General
Assembly which would provide for
a reduction in sentences already
being served, it is unlikely it will
do so, and the General Assembly
would be unlikely to adopt it.
One of the primary motivations
for the enactment of the Structured
Sentencing Act was to provide
"truth in sentencing." Under the
former Fair Sentencing Act, some
inmates were eligible for parole
after serving one-eighth of their
sentence. Therefore, a person sentenced to 80 years in prison could,
under some circumstances, be eligible for rel(mse after serving 10
years. The public perception was
that the sentences actually received
for crimes held no meaning.
continued on page 7

Page 7

NCPLS ACCESS

2001 Legislative Developments
The Structured Sentencing Act
changed that. A person convicted
of a felony receives a minimum
sentence, and must serve 100%
of that sentence. The "truth in
sentencing" component of Structured Sentencing would be compromised if current sentences were
modified, and the General Assembly is unlikely to take a measure
that drastic.
The prison population is projected
to increase by approximately
10,000 inmates over the next 10
years. If it does, by 2011 DOC
will be housing more than 40,000
people. This session of the General
Assembly approved construction of
three new prisons, which will
add 2,500 new prison beds to the
system.

Report on Parole Elgible Inmates
Required
SECTION 25.21. The PostRelease Supervision and Parole
Commission shall provide quarterly
reports to the Senate and House
of Representatives Appropriations
Subcommittees on Justice and
Public Safety and the Joint Legislative Corrections, Crime Control, and Juvenile Justice Oversight
Committee on inmates eligible for
parole. These reports shall include
at least the following:
(1) The total number of Fair Sentencing and Pre-Fair Sentencing
inmates that were parole-eligible
during the previous quarter and the
total number of those inmates that
were paroled. The report should
group these inmates by offense type

Volume 1, Issue 5 November 2001

continued from page 6

and custody classification;
(2) A list of all those inmates
paroled or released by category of
parole or release, including each
inmate's offense and custody classification at the time of the parole
or release;
(3) The average time served, by
offense class, of Fair Sentencing
and Pre-Fair Sentencing inmates
compared to inmates sentenced
under Structured Sentencing;
(4) The projected number of paroleeligible inmates to be paroled or
released by the end of the

2001-2002 fiscal year and by the
end of the 2002-2003 fiscal year.
These two measures clearly indicate that the General Assembly is
concerned about the increase in the
projected prison poplulation.
NCPLS will continue to monitor
developments in the law of sentencing and parole.
[Editorial Note: Commissioner
Billy Sanders serves on the NOlih
Carolina Sentencing and Policy
AdvisOlY Commission. Sanders,
who is employed by NCPLS as a
Certified Legal Assistant Specialist,
also edits ACCESS.]

High Court denies Certiorari Petition
continued from page 2

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 dismissals of a defendant's claims of
a constitutional violation. Under
the new law, a federal court cannot
grant a writ of habeas corpus unless
it finds that the state court's ruling
was "contrary to, or an unreasonable application of, established
Supreme Court precedent." The
Fourth Circuit ruled that, although
the state courts did not explain
why they were dismissing the case,
the federal courts were required by
AEDPA to defer to the state courts'
decisions if the result were reasonable. The Fourth Circuit decided
the result was reasonable because
the Supreme Court has never specifically held that the requirements
set out in the Waller Case apply to
child sex cases, and so the North

Carolina courts could have decided
that appellate counsel could reasonably have determined that Waller
did not apply to our client's case.
The decision of the Fourth Circuit
conflicted with decisions by other
circuit courts of appeals. In a petition for certiorari to the United
States Supreme Court, we pointed
out the inconsistencies and asked
the court to resolve the question.
We argued that, in the absence of
an explanation by the state court,
a federal habeas court must decide
how federal law applies to the case,
since there is no basis for a determination that the state court ruling
was "contrary to, or an unreasonable application of, established
Supreme Court precedent."
On October 3, the Supreme Court
denied our petition without comment.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.

224 S. Dawson Street
PO Box 25397
Raleigh, NC 27611

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

NCPLS Staff Developments
Staff Attorney and Senator Ellie
Kinnaird has been honored by the
North Carolina Academy of Trial
Lawyers. Senator Kinnaird was
presented with the Outstanding
Legislator Award and recognized
as "the best in the legal profession
as related to public service"
Sharon G. Robertson, CLAS,
was presented with the National
Association of Legal Assistants
(NALA) 2001 Affiliates Award
in recognition of her "outstanding contribution and dedication
to the advancement of the
legal assistant profession through
volunteer service ...." Sharon,
who has served as President,
as Chair and Director at Large

of the North Carolina Paralegal
Association, and as Liaison to
the North Carolina State Bar, was
recently elected to the Office of
Secretary for NALA's Affiliated
Associations.
NCPLS Certified Legal Assistant
Yvonne P. Lewis has been
appointed to the Council governing the Constitutional Rights &
Responsibilities Section of the
North Carolina Bar Association.
The American Bar Association's
Board of Governors reappointed
Michael Hamden as liaison to the
American Correctional Association and as the ABA's representative to the ACA's Commission

on Accreditation for Corrections. The American Correctional Association is a national,
multi-disciplinary organization
of professionals representing all
levels and facets of corrections
and criminal justice.
ACA establishes standards governing corrections practices and
operations, and accredits institutions that comply with those
standards. For the past four
years, Hamden has served on the
Commission on Accreditation
for Corrections and on the
Standards Committee.