Year in Review

January 4, 2014

By: Hailey Hawkins

Clinical education is founded on teaching through experience, and allows students to grow by working in their community.  The members of the Civil Rights Clinic past and present put in a great deal of work and passion on a daily basis.  Occasionally, when people put so much passion and energy into the daily work, including the struggles and pitfalls, it is easy to lose sight of the big picture.  Also, when looking at the milestones at any given time it is important to consider everyone who laid the groundwork to make these accomplishments possible, as many of these projects were the result of three to four years of hard work.   As such, this list is meant to celebrate the accomplishments of those individuals in the clinic for 2013 and years past, and serve as inspiration for all future clinic members.

Release Dismissal Agreements– Over a year ago the Civil Rights Clinic began an inquiry into the use of release-dismissal agreements by state prosecutors.   On January 29, 2013 the North Carolina State Bar’s Ethics Committee proposed a Formal Ethics Opinion, yet the language did not make it equally applicable. In response to the proposed Formal Ethics Opinion, the Civil Rights Clinic, North Carolina Advocates for Justice, North Carolina Center for Actual Innocence, and the Duke Law Wrongful Convictions Clinic submitted letters to the Committee with proposed changes to the language of the Opinion.  On October 15, 2013 the North Carolina State Bar issued a Formal Ethics Opinion, including the language suggested by the Clinic.  To see the opinion:  http://www.ncbar.com/ethics/ethics.asp?page=2&from=10/2013&to=12/2013 

Civilian Review Board– The Civilian Review Board began as a research project for the Civil Rights Clinic nearly three-years ago.  However, in February 2013 the media became involved, and the issue came to the forefront for Mayor Foxx and City Council.  On April 1st the City Council heard Clinic members advocate for reform of the Citizen Review Board based on their research, focusing primarily on the standard of review and the need for transparency.  The City Council voted to send the Citizens Review Board to committee for further review and scrutiny based on the Clinic’s suggestions and research.  On November 25th, the City Council voted unanimously to reform the Civilian Review Board.  For more information on this topic, please see https://cslcivilrights.com/2013/12/01/crb-reform-one-step-closer/

Public Records Request– The Public Records Project has implemented a research plan focusing on the North Carolina statute and the approaches of other states to address public records requests and responses.  Currently, the Clinic has researched all 50 states’, and the District of Columbia’s public records statutes, classifying states as those with similar or comparable statutes, those with less stringent requirements than North Carolina, and those with more stringent requirements than North Carolina. This data was compiled into a letter that was sent to North Carolina Attorney General for consideration.

Ban the Box– In an effort to promote and assist with the communal reintegration of those with a criminal history, the Ban The Box movement sought to remove the requirement that applicants disclose all past convictions on a preliminary application for public employment with the City of Charlotte.  On February 25th, 2013, the Ban the Box movement presented a proposed ordinance to City Council with over 100 community supporters in the audience.  The City Council voted to send the Ban the Box initiative to committee for further review.  For more information on this topic, please see https://cslcivilrights.com/2013/03/06/charlotte-city-council-kicks-the-box-to-committee-for-further-study-2/

A.S. v. Charlotte-Mecklenburg County Board of Education– We are happy to report that, in a joint effort with Council for Children’s Rights and Professor Keith Howard,  Civil Rights Clinic members successfully represented a 7th grade student in a Superior Court Appeal of the Mecklenburg County School Board’s disciplinary, 180 day alternative reassignment to Turning Point Academy resulting from an alleged altercation between the student and teacher. Superior Court Judge Ruben Young conducted a hearing on September 3, 2013 in Mecklenburg County Superior Court. And on November 11th, he entered an order (1) finding that the Board’s disciplinary action was arbitrary and capricious and (2) remanding the matter back to the Board for reconsideration.  While we did not win on all of our claims, all involved were very satisfied with the result.

Media– In addition to the numerous Charlotte Loafing and Charlotte Observer articles about the Civilian Review Board and Ban the Box, the Clinic received multiple opportunities with the media.  Claudine Chalfant of News 14 Carolina paid a visit to the Civil Rights Clinic and reported on the work that the Clinic has done to help the community.  On December 10, 2013 the Clinic was invited to make an appearance on Charlotte Talks to discuss its work with the Civilian Review Board.

These notable milestones do not encompass the other projects that have grown this year.  The Certificates of Relief project has been taking in clients and developed a system that will continue to help individuals for years to come.  This past semester a clinic member connected with the LGBTQ Center to assist individuals with changing their names and address many of the issues arising in the LGBTQ community.  Clinic members continue to serve as hearing officers for the Charlotte Housing Authority.

Overall, 2013 serves as a great reminder of what can be accomplished with hard work and perseverance, and sets the stage for how much more can be done in 2014.


Release Dismissal Agreement Update: Students Advance Nation-Wide Call for Ethically Banning the Practice

September 28, 2012

Windy Ortega, formerly Windy Majer, and Jordan Dupuis only have 21 state bars left to request a formal opinion from regarding the practice of obtaining release dismissals from criminal defendants. A release-dismissal agreement is where a prosecutor enters into an agreement with a criminal defendant to dismiss criminal charges in exchange for the defendant’s release of any and all civil claims arising out of the defendant’s arrest, prosecution and/or conviction. When the Clinic started the project about this time last year, 13 states had already addressed the issue.  Indiana, South Carolina, New Jersey and Massachusetts prohibit the use of release-dismissal in their entirety.  California and Ohio permit defense attorneys to offer a release-dismissal agreement, but flatly prohibit a prosecutor from doing so.

Alaska, Idaho, Oregon and Utah follow the United States Supreme Court Plurality Opinion, Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187 (1987).  The plurality in Rumery held that “release-dismissal” agreements were not per se invalid as long asthe defendant: (1) Voluntarily entered into the agreement; (2) The prosecutor had a legitimate reason to make the agreement that was directly related to his prosecutorial responsibilities; and (3) Was independent of his discretion to bring criminal charges.  Significantly, Justice Powell pointed out that Rumery was a sophisticated business man, who was not in jail and was represented by an experienced criminal lawyer, who drafted the agreement.  Id. at 394.  The state of Washington requires that a defendant entering into the release-dismissal agreement be informed of its implications and meet the standards set out in Rumery.

In Justice O’Connor’s concurrence in Rumery, she recognized the dangers of release-dismissal agreements and opined that they be executed under some form of judicial supervision.  Id. at 401.  Colorado has adopted Justice O’Connor’s view in that release-dismissal agreements are only appropriate under strict guidelines, including court review and approval.

Connecticut allows release-dismissal agreements in certain circumstances.  An agreement would not be valid if the prosecutor knows or should know there is no probable cause underlying the criminal charge and he or she proceeds with the prosecution of the defendant anyway with the purpose of seeking a civil release.

All Alabama requires is that the no coercion or threats are used in obtaining a signed release-dismissal agreements.

North Carolina’s Bar, like the vast majority of state bars, had never addressed the use of release-dismissals by attorneys barred in their state.  The Inquiry we have, and will continue to pose to the rest of the bars in the United States is whether their State Bar’s Rules of Professional Conduct permit a prosecutor to enter into an agreement with a criminal defendant to dismiss criminal charges in exchange for the defendant’s release of any civil claims arising out of the defendant’s arrest, prosecution, and/or conviction.  The Clinic’s position is that the practice of using release-dismissal agreements should be prohibited in their entirety based on the inherent conflict of interest they create between a prosecutor’s duty to enforce the law and the goal of insulating third parties from civil liability.  As several other states have determined, this conflict undermines the integrity of the criminal justice system by placing liability concerns over that of a prosecutor’s special responsibility as a minister of justice.  By prohibiting this practice, the State Bar’s Professional Ethics Committee will assist prosecutors in fulfilling their constitutional mandate, protect criminal defendants from undue coercion, and in turn advance the truth-seeking function of the criminal justice system.

So far, the Clinic has filed in Arizona, D.C., Florida, Georgia, Illinois, Kentucky, Maryland, Michigan, North Carolina, Pennsylvania, Texas, Virginia, West Virginia, and Wisconsin.  The ethics committees for the bars in the District of Columbia, Maryland, North Carolina, and Virginia are currently drafting opinions.  In Arizona, Georgia, Illinois, Kentucky, Pennsylvania, Texas, and Wisconsin, the State Bars’ ethics committees are still considering our requests.  West Virginia declined to draft an Opinion because the Rules of Professional Conduct that the Clinic pointed it to already barred the use of release-dismissal agreements.  Hawaii would not accept a request from the Clinic.  The committees in Florida and Michigan denied our request because we did not present them with a “live” issue.  Essentially, the committees did not want a hypothetical; it wants a case before it where a defendant entered into the agreement like we were able to provide in our request to North Carolina.  The Clinic is currently working on researching out to attorneys barred in those states for assistance, so that we can re-file.  If you have ever heard of or represented a criminal defendant who executed a release-dismissal agreement in Florida or Michigan please contact Jordan Dupuis at dupuisj@students.charlottelaw.edu.

We are currently preparing requests for Delaware and Kansas, and New York since we have found attorneys barred in those states that are willing to co-sign with the Clinic.  We are still searching for attorneys who are barred in the following states to co-sign with the Clinic.  If you are barred in one of the following states, or know someone who is, please contact Windy Ortega at ortegaw@students.charlottelaw.edu.

Alabama, Iowa, Louisiana, Maine, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Rhode Island, South Dakota, Tennessee, Vermont, and Wyoming.

By: Windy Ortega


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