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Seven years ago next week, my now ex-wife had me arrested on false charges of having a girl watch X-rated movies and threatening to beat her up if she told anyone about it. I have wondered for years how this could have happened, despite several obvious red flags that suggested this affair should have never gotten anywhere near as far as it did.  Well, I recently found out how--North Carolina's process by which individuals can swear out warrants is fundamentally flawed, to the point that it allows obviously bogus cases to make it to court.

The self-initiated warrant process is spelled out in Section 15A-304 of the North Carolina General Statutes.

(d)       Showing of Probable Cause. - A judicial official may issue a warrant for arrest only when he is supplied with sufficient information, supported by oath or affirmation, to make an independent judgment that there is probable cause to believe that a crime has been committed and that the person to be arrested committed it. The information must be shown by one or more of the following:

(1)        Affidavit;

(2)        Oral testimony under oath or affirmation before the issuing official; or

(3)        Oral testimony under oath or affirmation presented by a sworn law enforcement officer to the issuing official by means of an audio and video transmission in which both parties can see and hear each other. Prior to the use of audio and video transmission pursuant to this subdivision, the procedures and type of equipment for audio and video transmission shall be submitted to the Administrative Office of the Courts by the senior regular resident superior court judge and the chief district court judge for a judicial district or set of districts and approved by the Administrative Office of the Courts.

If the information is insufficient to show probable cause, the warrant may not be issued.

The problem?  There is no criteria for what constitutes "sufficient" information.  This makes it possible for a person to be arrested based on someone lying to a magistrate.

My ex filed the false charges on the same night that my ex's son was arrested--literally hours after the arrest, in fact.  That alone should have raised eyebrows.  Indeed, my lawyer--a former DA himself--realized within literally seconds of reading the charge sheet that this was clear retaliation.  Had anyone bothered to look into the charges, they would have discovered that at the time my ex claimed to have finally discovered what I was supposedly doing, I was at work.  And yet, because no one bothered to check them out, I not only had to endure four hours in jail, but two court dates and four months of having to call pretrial release every Monday.

I initially believed that this was a simple case of the DA not doing what any responsible DA would do--make sure that valuable courtroom time and taxpayer dollars aren't tied up with cases that are obviously false.  After all, when my ex's son went to court for beating me up, the first time I even saw a DA was the day we went to court.  But now I know there was a second factor at play--a warrant process that allows people to be arrested based on a lie.  That process not only results in taxpayer dollars being wasted, but more importantly results in innocent people's rights being violated.

There's a petition out on Change.org calling for the scrapping of the current self-initiated warrant process.  Sign here.

Originally posted to Christian Dem in NC on Thu Aug 29, 2013 at 03:36 PM PDT.

Also republished by North Carolina BLUE.

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Comment Preferences

  •  there is no question that the system is flawed (8+ / 0-)

    both on the civil and criminal side, regarding the issuance and service of both warrants and summons.

    While my case was not as serious as yours, some years ago, I was sued by a company that alleged I owed them money for merchandise.  The problem was that they did not have accurate information on me and so the summons was literally served on an empty house. (which was not my address).  The deputy later affirmed that he did not receive an answer at the house but thought he heard someone breathing in the house and so left the summons in the doorjamb on the assumption the inhabitants were trying to avoid service.

    Despite an imperfect service, the company took my case, along with about 100 others, to court to seek a judgement against me.  They received a summary judgement against me which I am still trying to have removed due to a lack of service.

    I was told that all of the cases that day took about 30 minutes to dispose of as none of the defendants showed up.  I have to wonder how many other people were not present because they were never served.

    Your situation does not surprise me at all.  

  •  North Carolina is a test case for Koch, Inc. type (4+ / 0-)
    Recommended by:
    OHdog, sturunner, hnichols, Lujane

    GOP, Tea Party government.  It won't work nor will it sell in Peoria.  So what's the game?  Stall the ball, run out the clock.  Amother election looms closer everyday.  what can't be won on the issues can be won in other ways like voter suppression, no immigration reform, stopping candidates from serving in the Federal judiciary and the Federal government. And  if they wreck our democracy?

  •  Surely there is sufficient information to swear (2+ / 0-)
    Recommended by:
    hnichols, JGibson

    out a warrant against Pat McCrory...

  •  In GA anyone can file a warrant for appearance in (3+ / 0-)
    Recommended by:
    hnichols, Lujane, wilderness voice

    Magistrate Court, and the person who receives the warrant must appear.  The Magistrate judge hears the evidence from the filer, and then hears from the person filed upon.  

    After that, either an arrest warrant is issued or not.  

    If one party fails to appear in magistrate court, the other party prevails and the case is either dismissed (filer did not appear) or continues (filed upon person did not appear.)

    The right of the women of this State to be secure in their persons against unreasonable searches shall not be violated by the State legislature.

    by Mayfly on Thu Aug 29, 2013 at 04:41:53 PM PDT

  •  perjury (2+ / 0-)
    Recommended by:
    hnichols, Lujane

    Did your ex-wife suffer any criminal penalties for perjury?

    •  Nope, she never showed (2+ / 0-)
      Recommended by:
      hnichols, Lujane

      I'm guessing that someone must have told her that she'd be racked up for perjury and subornation of perjury (the latter for getting the girl to lie) if she peddled that story in court.

      •  well (4+ / 0-)

        Doesn't an affidavit have to sworn to under penalty of perjury?  2 and 3 clearly would constitute perjury.  Even filing false police reports not under penalty of perjury would be a crime in most states.  It is the usual check on this sort of thing.  Though it is entirely possible the DA just didn't bother to prosecute.  Not sure how often that stuff is actually prosecuted.

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