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Despite COVID safety measures, trials collide at courthouse

In defiance of the sign outside, marking its maximum capacity at 16 people, Courtroom 7A was packed.

Twenty-five prospective jurors occupied almost every bench not cordoned off for social distancing. They sat not just on the blue X’s designating assigned seats, but also in half the chairs of the jury box, as well as a bench normally reserved for the defense’s friends and family.  

This wasn’t supposed to happen. 

The Durham County Courthouse has taken a cautious approach to jury trials during the pandemic. These proceedings were paused between March 2020 and January 2021 over COVID-19 concerns. And since restarting jury trials, administrators have fought to ensure that no more than one of them happens at once.

But the last week of September, for the first time in a year and a half, two jury trials overlapped. This unexpected event, the cause of the crowd in Courtroom 7A, left court officials bending rules and making last-minute judgment calls.

“In my mind, I couldn’t see it,” Trial Court Administrator E. Deneen Barrier said, “but apparently it happened.” 

How it happened

There are two ways in which limiting jury trials helps prevent COVID-19 spread.

For one thing, it reduces the number of people in the courthouse at any given time. And in Superior Court, where the county’s most serious civil and criminal disputes are settled, the one-a-day strategy keeps proceedings socially distanced in the spacious Courtroom 7D.

Courtroom 7A, a fraction of the size, typically hosts civil matters that don’t need a jury.

But courthouses are complicated, and sometimes things don’t go as planned. As defendants take plea deals and plaintiffs settle out of court, many scheduled jury trials never make it to the courtroom.

“A lot is up in the air when everybody walks in the door,” Barrier said.

The morning of Sept. 27, it was still unclear whether a scheduled criminal trial would start that day, Trial Court Coordinator Suzanne Hansen said in an email. Another jury trial was set to begin in civil court on Sept. 28. However, Hansen believed this would be postponed if the criminal trial moved forward.

The criminal trial did move forward – but Judge Michael O’Foghludha, who was to preside over the civil case, pushed for his proceedings to begin anyway. He got his way, resulting in the surprise double-booking.

Last-minute questions

The criminal jury trial involved an alleged assault, kidnapping and strangling in June 2018. And the civil trial stemmed from a September 2019 incident in which a Prius struck the plaintiff while she was crossing Duke University Road. 

Prospective jurors for the civil trial gathered downstairs, while those assigned to the criminal case milled around the seventh floor of the courthouse, wearing red “juror” badges. The court had empaneled these Durham residents the previous day.

Meanwhile, in Courtroom 7A, O’Foghludha briefed attorneys in the civil case on how a jury trial would work in a room that hadn’t seen one since before the pandemic. O’Foghludha had ready answers to basic questions about where the courts would hold prospective jurors and who would be in the courtroom at any given time. 

And he appeared in good humor, as he voiced his thoughts on dismissing prospective jurors.

“They may be terrible jurors, and you may not want them. In fact, you probably don’t want them,” he told the attorneys. “But I’m not excusing them from doing their civic duty.”

The clerk, meanwhile, appeared stressed. The trial would wind up taking a toll on the woman, who took a day off from work after it concluded.

O’Foghludha still had to resolve some issues on the fly.

Would jurors and attorneys get separate bathrooms, or would they need to share one? (They’d be sharing.) Could a deputy give jurors directions to the courtroom, or would they need an escort? (After consulting with the bailiff, O’Foghludha decided that would depend on how well jurors responded to instructions.)

At one point, even the judge tripped over the tricky logistics. He’d originally been talking as if 30 jurors would be in the courtroom at once, but realized midway through the briefing that there would only be 25.

Finally, with most details settled, O’Foghludha heard a few pretrial motions and then called for jurors to enter.

A grueling process

Selecting a jury is rarely quick or simple. But Courtroom 7A’s limited seating made this empanelment even harder than usual.

O’Foghludha acknowledged the challenges while welcoming prospective jurors.

“I know the question that’s on everyone’s mind right now is, ‘Oh my, how long is this going to take?’” he said.

To begin, the clerk called 12 names from a stack of shuffled index cards. She then had the 12 line up at the center of the courtroom and assigned each a juror number. Those who weren’t called exited.  

None of this is standard practice in the Durham County Courthouse, where everyone would typically have remained in the courtroom for the next leg of the proceedings.

Even with this smaller crowd, Courtroom 7A still exceeded its maximum capacity of 16 people. In addition to the prospective jurors, the room also held six representatives for the defense and prosecution, as well as the defendant and plaintiff’s spouses, the judge, the clerk, the bailiff and the court reporter. That’s 24 people.

Everyone present was masked, although one man’s mask kept slipping. None of the prospective jurors complained about the number of people in the room. But they generally respected social distancing.

Between 11 a.m. and 4:15 p.m., the prosecution asked a series of questions to determine if any of those summoned were ineligible to serve on the jury.

Some judges allow lawyers to dismiss prospective jurors as soon as they hear something disqualifying. However, O’Foghludha said he’d seen interviewees try to copy what others said in hopes of being disqualified. So he instructed the prosecution to hold off on challenges until it had asked everyone all of its questions. 

The first round of interviews ended with five of the 12 released. A deputy arrived with their replacements, and the prosecution began a new interview cycle.

The seven who’d already been interviewed watched from the benches in weary resignation.

During pretrial proceedings, O’Foghludha told the court he hoped to finish the trial by Oct. 1. In reality, the trial lasted until Oct. 7, with jury empanelment concluding on Sept. 29.

The jury found the plaintiff was not entitled to any damages.

The criminal trial, which ran as usual in Courtroom 7D, finished empaneling jurors toward the end of Sept. 27 and ended with a not guilty verdict on Sept. 29.

Will this happen again?

Before the pandemic, the Durham County Courthouse commonly held multiple jury trials on the same day, said Barrier, the court administrator. It could host up to four at once, though this strained courthouse resources.

The courts will someday return to that level of activity, but it’s unlikely to happen any time soon. September’s double-booking does not mark a shift in the courthouse’s overall approach.

“It’s just happenstance,” Barrier said.

PHOTO ABOVE: Users of the Durham County’s Courthouse must practice social distancing as a COVID safety measure. By Josie Vonk, The 9th Street Journal.

A Courthouse Moment: ‘I used to be your neighbor?’

Outside the closed doors of Courtroom 6A one recent Tuesday morning, 24 potential jurors waited in a line, single file. They shared anxious glances with the people in front of and behind them as they fiddled with straps on their purses and messenger bags. 

When a clerk thrust the doors open at 10:30 a.m., the jurors shuffled in. One man in a gray-and- cream striped button-down shirt walked with a limp. Another woman wearing a bright floral shirt held a cane in one hand and a book in the other. None seemed eager to enter. 

Jury selection is a meticulous, tedious and, at times, impersonal process — strangers are brought together in the Durham County Courthouse and, one by one, quickly questioned about their life experiences as lawyers try to decide whether they will be fair and impartial. 

But, as soon became clear on this day, this same questioning can also be tricky when jurors and attorneys are all members of the same community. Sometimes, the process can even reveal unexpected connections.

Inside the courtroom, the group sat socially distanced — six in the jury box, which usually seats 12, while the rest filled the benches. Anyone not affiliated with the trial stood outside the courtroom until there was a seat available. 

The plaintiff, Ahmed Chahdi, sat upright next to his attorney, Robert Perry. In a white short-sleeve button-up shirt, Chahdi was a sharp contrast to defendant Jocelyn Mack, who wore a purple dress under a cheetah print fur coat. 

The two were in civil court for an incident that happened six years ago. Mack’s car collided with the wall of a convenience store where Chahdi worked as a cashier, according to Perry. Shelves fell on Chahdi and injured him. Now, Chahdi has sued Mack and another person for punitive damages. 

 When it was time for pretrial questioning, jury clerks passed sheets of questions to the attorneys.

“Does anyone know Judge [James] Hill? Anyone know any of the attorneys?” Perry rumbled, as he swiveled his chair to face the jurors, leaned back and crossed his legs. He held his papers in one hand and a pen in the other. 

Karen Briggs, in the second row of benches, slowly raised her hand. She wore jeans and a navy cable-knit sweater that matched the color of her mask. 

“You used to be my neighbor,” she said quietly. 

“I used to be your neighbor?” Perry repeated. Briggs nodded. 

“And I work with your wife,” Briggs added.  “She substitutes at my school.” 

Perry asked where she taught. He confirmed his wife works at the same school. 

But Briggs wasn’t finished: “And I taught your grandson.”

The room erupted into laughter. 

“All right, you did everything right then,” he responded, chuckling. 

Perry then asked if Briggs, as a juror, could be “fair and impartial.”

“I’ll be honest, I’m not sure,” she said. “It’s hard to separate knowing someone for me.” 

Perry deferred to the judge. “Ma’am, I think you can be fair, but I don’t want to push you into a compromising situation,” Hill said, and excused her from the case. She hurried from the room. 

Perry continued questioning the jurors, splitting his attention between the six in the jury box and the six on the benches. Mack often turned her head around to look at the jurors as they answered, but Chahdi did not.

Perry asked if anyone had sued someone or been sued. One man in the box, David Efird, raised his hand. Efird explained that as a partner at the law firm Womble Bond Dickinson, he had sued people on behalf of his clients. 

The next topic was car accidents — if anyone had been in one, caused one or knew someone who had been involved in one. And, Perry asked, had anyone ever experienced neck injuries or seen a chiropractor. 

The jurors were quiet and monotonous, but never annoyed. No heavy sighs or impatient whispers. Some even offered up details, like the date of a crash or where their chiropractor was located. 

After an hour, though, only 15 prospective jurors remained, and some grew restless. One man in the box rubbed his head and shifted around in his seat. A woman on a bench picked at her nails. Even Judge Hill alternated between staring into the benches and typing at his desktop computer, the glare of the screen reflecting on his face shield. 

Then, Macon Patton was called by the clerks to replace Jennifer Cameron, who could not serve on a jury in Durham County because she lives in Orange County. Patton rattled off responses to Perry’s previous questions. On his last answer, he pointed at Efird. 

“My wife works in the same firm as this lawyer here,” Patton said. 

“Do you know this man?” Perry asked again and motioned to Efird.

“I do not,” Patton said, shaking his head. 

“But I do know his wife,” Efird jumped in, and the three men chuckled. Neither attorney objected to Patton sitting on the jury as scattered, tired laughs bounced around the courtroom. 

Efird added: “It’s good to meet you.” 

 

A Courthouse Moment: ‘You think you’re helping someone, but it hurts’

Durham Habitat for Humanity had been trying to help Victoria Dorsey buy a house since 2016. They set their sights on a new Chapel Hill Road home for Dorsey, her husband Otis Johnson, and her 13-year-old daughter Jamila Dorsey.

Over three years later, those aspirations ended in a Superior Court trial in courtroom 6A of the Durham County Courthouse. Onlookers watched as the trial morphed from an amicable discussion of mistakes to a resentful blame-game. 

When Lakeisha Minor, Habitat for Humanity’s family services director, was helping Dorsey close on the house, Minor ran into some roadblocks. First, Dorsey’s subletters missed a rent payment. Then, she falsified some work hours that she needed to purchase the home. 

As the Chapel Hill Road home construction was nearing completion, Dorsey still hadn’t paid off her debt. Habitat wouldn’t let her purchase the house until the outstanding debt was paid. 

“We decided that once the house was completed, then we would allow her to move in and rent the property until she paid off those collections,” Minor said from the witness stand.

On July 18, 2018, Dorsey signed a five-month, 13-day lease agreement with Habitat for Humanity. That would allow her to stay in the new house until the New Year. In the lease agreement, Dorsey agreed that she’d keep her debt under a capped amount. 

But in Dec. 2018, Dorsey decided to cosign for a new car, Minor explained. “When she was cleared into the (housing) program, it was clear that she couldn’t afford more debt. Her ratios were outside what she needed to qualify to purchase a house.” 

At that point, Minor urged Dorsey to take her name off the car loan. It was a recent loan, so they both assumed it wouldn’t prove too difficult. 

“But that didn’t happen,” Minor said flatly.

But Habitat for Humanity, again, gave Dorsey grace.

Habitat for Humanity granted Dorsey three more lease extensions, allowing her to rent the apartment from Jan. 1, 2019, through May 31, 2019, according to Dorsey’s affidavit. Each month, she paid the $650 rent.

In June, Dorsey didn’t extend the lease, she just handed over the $650. Habitat for Humanity accepted the money. 

But then Habitat ran out of patience. On July 9, 2019, Habitat for Humanity sent Dorsey a notice: it was terminating her lease, and she’d have to move out by Aug. 9, 2019.

“Anything from the defense?” Judge Clayton Jones said in a routine fashion. 

Dorsey’s attorney Sarah D’Amato stood up from the chair, seizing an opportunity to change the momentum of the case.

“At this time, I’d like to move to a directed verdict,” said D’Amato, a Legal Aid of North Carolina attorney. 

On Aug. 15, Habitat for Humanity had filed an eviction complaint against Dorsey. It was just six days after Dorsey should have vacated the home, D’Amato argued. And, otherwise, move-out dates don’t come until the term ends at the end of the month.

“Any notice to vacate has to end at the end of the term,” D’Amato said, citing case law from 1898. “Therefore, based on longstanding case law, you will find that the notice that was sent on July 9 was not sufficient notice.” 

“I’m going to side with the defendant in this case,” Judge Jones said, signaling that Dorsey won.

D’Amato and Daron Satterfield, the plaintiff’s attorney, shook hands. Then, D’Amato and Minor walked toward the exit: D’Amato with a grin, and Minor with her lips pursed. 

“It’s a catch-22,” Minor said. “You think you’re helping someone, but it hurts.”

Under N.C.’s ‘homewrecker law,’ adultery can be costly

Danielle King said her affair was over. But on Nov. 23, 2015, her husband Keith King realized her sexual liaisons were continuing.

Looking through phone records, he noticed Danielle and her illicit lover Francisco Huizar III were still communicating – every day. Keith got so mad he picked up his daughter’s high chair tray and slammed it against a table. The noise startled his 2-year-old Elle Annemarie King, who was one room away with Danielle. 

Over the next year, Keith thought the marriage was healing. Danielle, who has blond hair and a big smile, had been posting on Facebook about family trips and their joyful child. 

But then he got a troubling clue from the OnStar system in Danielle’s car. In August 2016, she and Elle were supposedly driving back from Danielle’s parents’ house in Richmond, Virginia. She was running late, so Keith activated the OnStar system and noticed her car was going north on Interstate 95 when it should have gone south. It was headed to Alexandria, Virginia, where Keith knew Huizar had been in the past. 

Danielle had retrieved Huizar from Virginia, dropped Elle off at home, and met Huizar at a hotel, according to a lawsuit.

In 2017, Keith sued Huizar for having sex with his wife and breaking up his marriage. A year later, Durham Superior Court Judge Orlando Hudson awarded Keith $8.8 million in punitive and compensatory damages from Huizar under a little-known state law.

Yes, people in North Carolina can sue an illicit lover for having sex with their spouse; it’s called criminal conversation. Or for breaking up their marriage; that’s alienation of affection.

North Carolina is one of six states with the laws — along with Hawaii, Mississippi, New Mexico, South Dakota, and Utah. There are about 200 alienation of affection cases in North Carolina each year, according to North Carolina Administrative Office of the Courts records. 

“It’s been around forever,” said Adam Bull, who has argued several alienation of affection suits throughout his 30 years as a North Carolina attorney. “Most people probably understand the moral sense it’s wrong; they don’t understand they can be sued for it.”

After the $8.8 million suit, Huizar filed bankruptcy. Danielle and Keith still aren’t done with court. In November 2019, the Court of Appeals considered Danielle’s claim for primary custody of Elle Annemarie. The parties are awaiting the verdict. 

‘Marriage on trial’

A fundamental step in these unusual adultery cases is “putting the marriage on trial,” said Kim Bonuomo, who represents defendants in these cases. To win, plaintiffs have to show they had a fairly stable marriage, and the illicit lover broke it up.

Plaintiffs use letters, photos, family vacations, and descriptions of their sexual activity to prove their marriage was stable before the intruder. 

Keith’s evidence? He and Danielle volunteered and went to church together. They had sex. Danielle started a “Good Mommies Club” as a part of a Mommies United group on Facebook. She even thanked Keith for one of “the coolest jobs ever” with his BMX company on Facebook. 

But he said Huizar changed everything. “My marriage was murdered. It was destroyed,” Keith said during an interview with WRAL in 2018. “What I’ve endured is, I compare it to like a nuclear bomb going off around my surroundings,” he told Good Morning America in 2018. 

In many cases, it’s hard to discern how much of a role the intruder had in the marriage downfall. Bonuomo said she’s never seen a perfectly stable marriage before the affair. 

And blaming the illicit lover gets even messier if there were multiple affairs. 

“(Were they) the cause of the breakup of the marriage just because they were the last person (the spouse) had an affair with?” Bonuomo often wonders. 

‘She’s my wife, man!’

On Jan. 19, 2017, five months after the clandestine trip to retrieve Huizar, Danielle told Keith that her parents were helping her rent an apartment. Huizar, she said, wasn’t even in the state. 

The next day, Keith texted Danielle to ask her to watch Elle while he drove pain medication to his father. But Danielle said she couldn’t; the apartment bathroom lights were out, and she couldn’t fix the breaker. 

Later in the day, Keith drove over to Danielle’s apartment to fix the breaker. But when he arrived, Huizar opened the door. Moments later, Huizar held Keith in a choke hold as Keith cried and pleaded, “She’s my wife, man! She’s my wife. That is my wife, man!”

Danielle stood back, catching it all on video. 

Effective law?

Alienation of affection and criminal conversation cases can only be brought against an illicit lover — there’s no direct recourse against the spouse. But even though an adulterous spouse may not be sued, Bull said they may still get involved in the case. 

“They sometimes end up settling with their spouses so they can leave their new boyfriend or girlfriend out of the picture.”

Bull says the law deters some people from committing adultery. 

“I don’t agree with that,” Bonuomo said. “Ultimately, these cases don’t come up until the marriage is already over.”

In 1984, the North Carolina Court of Appeals successfully overturned alienation of affection in Cannon v. Miller, but then the Supreme Court reversed the ruling. In 2009, the General Assembly approved some limits to the law. The affair had to happen before the spouses separated, and the plaintiff has to sue within three years of the affair.

It’s unlikely that legislators will overturn the law; no North Carolina politician wants to be portrayed as disregarding the sanctity of marriage, Bonuomo said. 

But she doesn’t find the adultery law, which implicates only the illicit lover, to fit in many cases.

“Usually, the marriage is already broken. It would be a very, very rare situation for the underlying marriage to reconcile at that point,” Bonuomo said. 

And once there’s a lawsuit, she said the chances of reconciling the marriage can only get worse. 

‘Rooted and Antiquated’

Alienation of affection and criminal conversation are non-statutory law derived from prior judicial decisions. 

“It’s the belief of many practitioners that these torts are rooted and antiquated ways of thinking that women were considered to be the property of their husbands,” Bonuomo said.

But just because the law is old doesn’t mean it’s defunct, Bull said.

“Are they old? Yes. So are basic principles, like the statute of frauds. But does that mean they should be replaced or no longer serve a purpose? I would disagree with that. Otherwise, there’s not a remedy that’s available to the injured spouse,” Bull said.

Societal norms change, but the adultery law protects monogamous marriage, supporters say. Bull says people should keep monogamy and consent in mind when they’re dating. 

“It’s in the initial process that you should be ferreting out, ‘Hey, is this person single?’” he said. “Before you go much past holding hands, my advice to you is that you pull out your phone, hit record, and make sure they (give consent.)”

Animosity and Acrimony

Following the $8.8 million ruling, Huizar filed bankruptcy. And in Dec. 2017, the Kings divorced.

On Nov. 13, 2019, the King love triangle appeared on the North Carolina Court of Appeals docket, but this time with a new plaintiff: Danielle. She brought a child support and custody appeal.

In January 2017, the District Court in Durham gave Danielle and Keith split custody of Elle Annemarie, but Danielle wants primary custody. She also claims Keith assaulted her and caused her emotional distress.

Bonuomo doesn’t expect alienation of affection cases to end smoothly. 

“I just wonder about the animosity and the acrimony that continues to envelop the family long term when there is an alienation of affection case filed,” she said. “What bothers me is that some of these really keep the fabric of the family ripped apart.”

A ‘Year of Jubilee’: Durham drivers are getting a second chance

Adam Merritt caught a ride home from work and pulled up to find his house full of cops. Someone had tried to break into the house and shot Merritt’s roommate. 

The police told Merritt that his roommate had just left in an ambulance. Merritt wanted to meet him at the hospital, but he couldn’t. His ride already left and his license was suspended. 

“They wouldn’t let me in my house, and I didn’t have money for an Uber. I was just cold standing outside with nowhere to go,” Merritt said.

Over a year later, his roommate has made a full recovery. But Merritt still looks back on how frustrating it was to be stuck in front of his house that day. “That was probably the peak point of how not having a license was just awful,” he said.

Merritt’s license was suspended because he never paid a speeding ticket from 2014. He was 19 years old at the time and he got two tickets in the span of a couple months. After going to court once, he thought he had resolved both charges. Three years later, he was pulled over for driving without a seatbelt and found out that he still had an outstanding charge.

According to the Department of Motor Vehicles, roughly one in five adults in Durham County had a suspended or revoked driver’s license in 2018. Almost 80 percent were people of color. 

Now Merritt is one of nearly 40,000 people eligible to get their licenses back. The Durham Expunction and Restoration Program was launched a year ago by the city’s Innovation Team, which collaborates with academia, community organizations, and the private sector to research and address social issues in Durham. The “R” of DEAR — license restoration — began under former District Attorney Roger Echols and continued after Satana Deberry unseated him in the 2018 election. 

Each charge or conviction revisited must be at least two years old and cannot include high-risk traffic charges, such as DWI or speeding in a school zone. The average case is more than 16 years old. 

“I feel like we owe Roger Echols a lot for initiating this, but DA Deberry has been an amazing champion,” said Ryan Smith, project manager of the Durham Innovation Team. “If anything, DA Deberry has leaned more into it.”

Deberry explained that not having a license in a place like Durham is a big deal, especially because the city lacks a reliable public transportation system. “If you can’t drive, you can’t go to work, you can’t take your kids to school,” she said.

After a Durham driver gets a traffic ticket, they receive a court date where they have the opportunity to dispute or ask to reduce their charge. But the fee for appearing in traffic court — not including the traffic fine itself — is up to $188. 

“What happens when poor people get tickets they cannot pay? You either don’t show up because you can’t afford it, or you show up and you get hit with the fines and fees and you don’t pay it,” Deberry said. Either option would result in a suspended license.

Since the program started last December, Deberry has been celebrating what she calls the “Year of Jubilee,” meaning a time of forgiveness. In a speech she gave at Duke Law School, she said that DEAR is the most successful initiative that she has ever been a part of. 

With the help of a local nonprofit called Code the Dream, DEAR created a website to let people know whether they have benefitted from the mass relief program. Anyone can type in their name and birthday to see if their traffic charges have been dropped or their fines and fees have been forgiven. 

A flyer for the driver’s license restoration program hangs outside of the DEAR office in the Durham courthouse. Photo by Erin Williams | The 9th Street Journal

Smith, project manager of the Durham Innovation Team, said that his ultimate goal is to expand the program to other counties, especially because people often rack up traffic violations in multiple jurisdictions. 

The program is viewed as a  success not just within North Carolina but throughout the country. The NC Bar Foundation awarded DEAR the Pro Bono Project of the Year in 2019. What Works Cities — a Bloomberg Philanthropies initiative — also announced in November that it will partner with the Durham Innovation Team to help other cities develop similar programs and reform efforts.

But despite the accolades, DEAR doesn’t have data on how many people actually have gotten their licenses back. 

According to Deberry, almost no one shows up to the mass relief hearings. People only know they have had their suspensions lifted through visiting the website or the DEAR office. But Smith said only 1,600 people have searched and found their names on the website so far.

Deberry attributed the disconnect to a publicity issue. “If I don’t read the Herald Sun, the News and Observer, or the Independent, if that’s not the kind of stuff that shows up in my social media feed, how would I know?” she asked.

Merritt also didn’t know that his costs had been dropped. He had no idea the license restoration program even existed until he was directed to the DEAR office by the judge in his most recent traffic court hearing. 

Merritt’s drivers license suspension was lifted Oct. 24. “[DEAR] helped me a lot… I just had a baby a couple months ago, and they probably saved me around $800, almost $900,” he said. 

But Merritt still has yet to get his license back.

“The DMV is another beast,” said Laura Holland, a DEAR attorney. There is a $65 license restoration fee and another $50 fee if the driver did not mail in their physical license before it was suspended. She said that oftentimes she will help people get all the way to the finish line, and then they’ll say, “Well, I can’t afford to pay that $115.” 

Smith calls this the last mile problem.

Another barrier is that the DMV updates its records manually, so there is often a significant delay between when the suspension is dropped and when someone can pay to reclaim their license. “They tell me 48 hours, and I’m like, that’s malarkey. Complete malarkey,” Holland said. “We think it is more like eight months, to be honest with you.”

Merritt went to the DMV last week because he has an interview coming up for a job that requires him to have a license. He said he wants to get a better job so he can support his newborn son. But after waiting in line for several hours, prepared to pay the final fee, they told him his name was not in the system and he would have to come back another time. 

While the DEAR program has helped lift thousands of Durham residents’ license suspensions, the city can’t track the number of people who have successfully gotten their licenses back. According to Holland, they plan to request that data from the DMV at the end of the year.

“Those same people who we know couldn’t pay the fines and fees also can’t pay $115 to get their license back, or any of the myriad other administrative hoops that the DMV has created,” Deberry said. “But we wouldn’t have known that if we hadn’t done this. This was a start, and now we’ve got to figure out the next step.”

In photo at top, DEAR attorney Laura Holland works on driver’s license restoration cases. Photo by Erin Williams | The 9th Street Journal

In the Clerk’s Courtroom, a tender scene of love and the law

Attorney Rob Pochapsky leans over to whisper in Makeai Respass’s ear. It’s 10 a.m. on a Thursday morning, and the sun is shining on them from a window in the Clerk’s Courtroom at the Durham courthouse.

“Are you nervous at all?” Pochapsky asks. 

“No,” Makeai says. She has short brown hair and wears glasses with plastic frames that are somewhere between purple and blue. 

“You know that (Makeai) doesn’t understand what she’s saying, right?” her adoptive mother Julia Respass tells Pochapsky. 

“I presume people have more going on upstairs than they show,” Pochapsky replies.

Because she has turned 18, Makeai is now responsible to manage her finances, property, and medical affairs. But she has autism, PTSD, Schizoaffective disorder, and seizures, so her mom has petitioned that she’s not capable to manage those affairs. 

Pochapsky speaks softly to Makeai, explaining that the clerk of court will determine whether she is competent to manage her own affairs and whether her mom should become her legal guardian.

“(The clerk’s) name is Archie Smith,” Pochapsky says. “He’s a good man. What he does is always fair and right. If anyone gets yelled at today, it’s going to be me.”

But no one yells in court today. It’s a tender family affair.

On Tuesday and Thursday mornings, Smith oversees these little-known incompetency hearings. They occur in a room the size of an elementary school classroom with no bailiff, no court reporter, and usually only one attorney. 

They’re not announced on an online calendar and even Smith said he doesn’t know who will be in court until shortly before the hearing. 

Smith, the clerk of Superior Court, oversees money flow in and out of the Durham courts and serves as judge for special proceedings including guardianship, adoptions and foreclosures. A jovial man, he has a circular face and round cheeks on each side of his white moustache. 

The guardianship cases – he rules on about 150 every year – range from amicable and tender, to tense and contentious. If Smith deems a person incompetent, he then determines who will become their guardian for financial or personal matters. 

Some are elderly people with dementia. Others are referred from the Duke Trauma Center or the Department of Social Services. And some are people with autism who come once they reach adulthood, such as Makeai.

There’s a lot on the line: Who will be responsible for the ward’s property, their medical decisions, their finances?

‘Sword and shield’

Pochapsky turns to Makeai with a last note of encouragement before the proceedings. 

“We’re both Leos. You know what that means? That means we’re smart, we’re strong,” Pochapsky says. 

It’s not clear if she understands the reference to her astrological sign.

Smith walks into the room and sits behind his bench in front of an audience of only four.

“Today is the 31st. It’s Halloween!” he says, to diffuse any tension in the room.

In these cases, it’s up to an attorney, or guardian ad litem, to investigate whether someone is competent, who should become their guardian, and what that guardian’s responsibilities should be. Today, that’s Pochapsky. 

“You are her sword and shield,” Smith reminds Pochapsky.

For Pochapsky, that means he investigates potential guardians to make sure the court appoints one who will protect Makeai and won’t exploit their guardianship responsibilities. 

When the court declares someone incompetent, they lose civil rights and freedom. They may lose their privilege to drive, file a court case, or own a firearm. Pochapsky wants people like Makeai to retain as many rights as they can handle.

“Civil rights are something most people do not want to give up and shouldn’t have to unless it’s necessary. The objective is to make sure that the court orders whatever level of guardianship is necessary, but not any more,” he says after the hearing.

He also wants to make sure the guardianship responsibilities fall into the right hands. With Makeai, her mom was an easy answer. But sometimes it’s not as clear who should be the guardian — especially when it comes to finances. 

Family dynamics and exploitation

In some cases, Smith watches families argue over guardianship. 

“Quite often, there will be confusion as to who — siblings, children, whomever — should have control of the incompetenet ward’s finances,” Smith says. “Every possible permutation of family dynamics comes into play. Families are not as depicted in Norman Rockwell paintings — the stylized images of the peaceful, happy family.”

Pochapsky says the biggest fights often involve inheritance. 

And Smith says that sometimes the finances end up in the wrong hands. Although he can’t predict exploitation, he’s not surprised when it happens. 

“It’s the human condition. There are scoundrels out there.” 

If there isn’t a family member who could be a responsible guardian of the person’s finances, Smith can give the role to a public guardian, someone who is hired to manage the person’s financial affairs.

Emotional spectrum

Smith says the guardianship process has to be compassionate.

“Some people I know are sharp as tacks, and they’re almost 100. But for most of us, unfortunately, we begin to decline with time. It’s our duty as human beings to love the ones who have lived with us and are starting to suffer.” 

Likewise, the process protects people like Makeai who are on the autism spectrum.

Pochapsky says he strives to make sure the people he represents are comfortable. His role requires as much empathy as it does lawyering. 

“I’ve had a lot of cases that involve people on the autism spectrum. It’s hard to imagine what it’s like being inside their head when they’re sitting in that courtroom. Although it looks rather innocuous to us, it’s gotta be frightening to them,” he says. 

In the courtroom, after discussing the guardianship logistics, Smith looks over to Makeai. 

“All right Makeai, is it all right to have your mom be your guardian?” he says. 

She nods her head yes. 

In a chair to the right, Julia Respass slides off her glasses and wipes away tears. Makeai looks at her mother intently and walks over. Julia Respass leans down to tie her daughter’s shoe, and then they hug. 

Was there negligence when Durham man slipped at pizza restaurant?

Holding two salads, James Walker headed toward the exit of Pizza Inn on April 2, 2018. He didn’t make it. He slipped on a clear substance and fell onto the floor. 

“I saw stars, had a metallic taste in my mouth and sat for a few minutes before getting up,” Walker, 59, of Durham, wrote in an affidavit. 

His fall led to lower back inflammation and a bulging disc, Walker wrote. It eventually aggravated his pre-existing hip condition enough to require right hip replacement, he said. 

Walker, general manager of Elite Flooring, sued the Pizza Inn on North Duke Street for negligence. 

At a hearing before Superior Court Judge Orlando Hudson this month, Pizza Inn’s attorney Stephanie Anderson said it would be impossible for Walker to prove the restaurant was negligent. For him to win the case, he’d have to prove that the restaurant was responsible for the liquid spill, that employees knew about it, or, at least, that they should’ve known.

“Nobody knew how long the water had been there, no one knew where it came from. Someone could have spilled water on the floor two seconds before he fell,” Anderson said.

But Walker’s attorney Lauri Klein argued that even if Pizza Inn had no knowledge of the spill, the restaurant’s cleaning protocols were shoddy enough to suggest negligence. 

“They don’t train people to look for spills. There is nothing about inspection. Hourly, two-hourly: They don’t have a policy for that,” Klein said. “They’re passing the buck off to the plaintiff.”

She took out a photo of the restaurant and pointed to a hand sanitizer dispenser near the salad bar and hot bar. Klein said it was probable hand sanitizer or food would fall on the floor throughout the day and suggested that Pizza Inn should inspect the floor more frequently. 

Klein wanted a jury to hear the case. She thought it could help decide some material facts the parties hadn’t yet agreed on: Was the floor actually wet? Did the restaurant cause the spill? Did it know the floor was wet? Was Walker injured?

But after listening to the attorneys, Hudson determined that Walker had no case against the restaurant. The case is now closed and won’t go to a jury.

Durham man sues gas company for bathroom explosion

Two years ago, Anthony Terry walked into the bathroom of his Durham rental house and flipped on the light switch. The room exploded. 

“Thirty-two percent of his body suffered second and third degree burns. Face, forehead, eyelids, neck, chest, back, both arms, hands, both legs,” said his attorney Michael Malone. “That doesn’t leave much else.”

Malone filed a lawsuit that claimed a natural gas leak at the home on Colfax Street caused the explosion. The lawsuit said the gas provider and landlord had both been negligent.

A neighbor noticed the odor of gas and contacted the Public Service Company of North Carolina, the natural gas provider for the residence, Malone said. The gas company visited the area to inspect but didn’t turn off the gas.

Then, the bathroom exploded. 

Malone said there was significant structural damage around the bathroom and the roof was blown out. 

According to the lawsuit, PSNC had responsibility to keep gas from escaping into the home and properly repair leaky gas lines. But PSNC responded that the company wasn’t to blame.

“(Terry) failed to take reasonable care to avoid his alleged injuries, and therefore was contributorily negligent,” PSNC wrote in a court filing. 

Terry, 53, contends that his landlord William Lucas was negligent, too. He had a duty to ensure “rental premises are maintained in a fit and habitable condition,” the lawsuit said. But the landlord’s attorney Robert Levin responded that Lucas didn’t know there was any problem with the home. 

“He was never notified about anything,” Levin said.

After the explosion, Terry was a patient in the burn unit at UNC for four and a half months. 

“He has severe skin discoloration from where he was burned,” Malone said. “He can’t really go outside. He lays in bed a lot and tried to keep off his feet.”

Now, Terry is asking for damages in excess of $25,000. The case is scheduled to go to trial on Sept. 28, 2020.

Two DWI defendants walk into a courtroom: one leaves free, the other goes to prison

Two defendants pleaded guilty to DWI charges before Judge Amanda Maris. One walked out of the courtroom, and the other went to prison after Judge Maris denied his appeal for probation.

***

Judge Amanda Maris greets each defendant at the stand for Wednesday morning traffic court. She is generous with motions to delay hearings or requests to waive court and jail fees. She resolves cases quickly, often handling them within minutes of their introduction, and she expects attorneys to keep up the pace.

On Sept. 18, her packed morning takes two pauses — once to punish, and once to mourn.

Joshua Meckes shuffles to the podium as he prepares to plead guilty to Driving While Impaired. Judge Maris asks if he understands that by pleading, he is admitting guilt. He mutters, “Yes.”

A four-car crash. Open containers of alcohol and marijuana found in the car. Property damage totaling several thousand dollars. A Blood Alcohol Content level twice the legal limit. Meckes pleads guilty to the impaired driving that caused this collision. 

“You’re lucky no one was killed, sir,” Judge Maris says. “You’re responsible for affecting three other lives that night.”

Meckes’s attorney argues that the offense should be considered a Level 5 DWI conviction, the lowest sentencing level for that crime. He notes that Meckes cooperated with police, sought out treatment for substance abuse, and, aside from a speeding offense in 2011, had a mostly safe driving record.

Judge Maris chastises Meckes’s attorney for suggesting a Level 5 DWI conviction despite the presence of aggravating factors, such as the open containers and marijuana.

“The presence of open containers and marijuana in your vehicle is not a minor fact for this court,” she says. “It indicates a flagrant violation of the law.”

A circumstance as egregious as this, she says, shouldn’t be portrayed to the court as a minor offense, even if the defendant has taken steps to deal with substance abuse issues.

“Someone could have died that night,” she says. “We’re lucky they didn’t.”

As Meckes continues to look down at the ground, he lets his attorney field questions from Judge Maris, who will now decide his fate.

Judge Maris hands down a 120-day suspended sentence for Meckes, requiring 48 hours of community service, three months of weekly Alcoholics Anonymous meetings, and a monitoring device installed in his car. She adds on six months of supervised probation, despite the defendant’s request for unsupervised probation.

“It is not going to be unsupervised probation,” Judge Maris says. “This court does not have adequate assurance that Mr. Meckes is doing what he needs to, to provide for his own safety and that of Durham.”

“It’s just a lot of, a lot of stuff that I have to do,” Meckes says after his hearing. “It’s not worth making that mistake.”

***

About an hour later, Evan Hymes steps toward the podium, also ready to plead guilty to a DWI charge. He clearly says, “Yes, ma’am” when asked if he understands that he is admitting guilt.

Hymes, after a few too many drinks, drove his car into a ditch. His Blood Alcohol Content (BAC) reached 0.17, more than twice the legal limit.

He immediately admitted guilt, calling 911 himself to get towing assistance and cooperating with police officers once they arrived.

Hymes and his attorney make no excuses for his conduct that night, admitting that since he has two prior DWI convictions, this charge is a Level 1 DWI offense. 

While the Level 1 charge will require up to three years in jail, Hymes’ attorney is seeking probation under the condition that Hymes has already taken steps to support his sobriety.

“I appreciate, Mr. Hymes, that you’ve completed this inpatient treatment. I appreciate that you’re in AA,” Judge Maris says. “It’s the type of thing that I like to see when people are facing DWIs, and I’d like to see it sooner than now.”

As part of the plea hearing, Hymes makes a statement about his struggle with substance abuse. He says he hopes his recovery process may spur an individual in the audience to act on their own substance abuse issues.

“My name is Evan Drey Hymes, and I am an alcoholic,” he says. “As most, as some of you know, I was not always this way.”

Hymes describes himself as a devoted son, driven student, and dedicated Division I NCAA basketball player at Siena College. Basketball was his outlet, he says, for any of the obstacles he faced — an escape from the struggles he faced in his childhood.

“Here’s the kicker,” he says, “How does a young, black, successful student athlete, college graduate become dependent on alcohol?”

The courtroom is silent, lost in the tragedy that befell young Evan Hymes after he walked off the basketball court.

Hymes describes six or seven years of alcohol abuse, years in his life when he didn’t know where to turn in times of strife. He speaks about his inpatient treatment as an opportunity to connect with his faith as a basis for his newfound sobriety.

“I gave everything over to my higher power,” he says. “I asked him for forgiveness for everything that I’ve done in my past.”

His parents are in the audience. His mother muffles her sobs. Judge Maris turns away from Hymes to address his parents directly.

“I understand the pain you must feel right now,” she says, “to have your son up here facing the time that he is facing.” 

Judge Maris explains to the audience that an aggravated Level 1 is the most serious sentencing level for a DWI charge. People who are convicted on that charge, she says, routinely go to prison for a maximum of three years.

 “At a certain point there’s accountability,” she says, “and it’s now.” 

Evan Hymes will spend twelve months behind bars, the minimum for this conviction.

“It doesn’t give me pleasure to send people to jail — it doesn’t,” Judge Maris says. “But that’s what I have to do today.”

While Meckes trudges out of the courtroom at the end of his hearing, Hymes’s takes his place at the bench to Judge Maris’s right. He’ll sit on that bench until he can be transferred to prison to begin serving his 12-month sentence.

When the bailiff brings Hymes’s personal items to his parents in the audience, they ask if they can have one more chance to speak to their son. They are denied.

After a moment of looking at the parents, the bailiff goes back to Hymes and hands him a pad of Post-Its and a pen, a final opportunity to convey something to his parents.