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Media and Public Harsh on Judge for Doing the Right Thing

Howard Kurtz - 8/23/2012

This past Monday, the Honorable Carl Fox did something that few judges would even consider.  After the jury returned a guilty verdict for a young man who was charged with Felony Hit and Run as well as Death by Motor Vehicle, Judge Fox set aside the conviction for the Felony Hit & Run while allowing the Death by Motor Vehicle verdict to stand.  He did it because it was the right thing to do.  Those of us who know Judge Fox weren’t surprised.  Back in 1988, when Judge Fox was the District Attorney of Orange County and Kirk Osborne was the Public Defender, I heard them speak to my criminal justice class.  It was clear then that these were men of honor who cared deeply about justice.  As a result of their presentation, that summer I interned for Kirk, with then just “Carl” on the other side, the system seemed like the old Warner Brothers cartoon with the sheepdog and the coyote.  They fought hard but were the best of friends the moment the work day was done.  To me, they were both role models.

 

What Judge Fox did on Monday is called a judgment non obstante verdicto which is simply the Latin expression for notwithstanding a verdict; it’s sometimes referred to by the acronym JNOV.  It’s something we all learn about in law school but rarely hear about occurring in practice.  It is an act requiring great courage from a trial judge; judges are always in danger of being accused that they are ‘soft on crime’.  I have yet to meet such a judge.

This mechanism is actually a fail-safe that has been a part of our nation’s jurisprudence since before we were a nation; it is a legacy from old British common law that has been adopted in North Carolina by statute.  It empowers a trial judge to vacate a jury verdict when the State’s evidence was so lacking that the Judge finds that “no reasonable jury could have found the defendant guilty beyond a reasonable doubt.”  That is exactly what Judge Fox determined had occurred.

                                

Judge Fox has fallen under criticism for his ruling despite the fact that there was no evidence of contact between the defendant’s and the victim’s vehicles before the victim’s car veered off the highway.  Nonetheless, the State chose to prosecute the defendant for a crime that required he knew or should have known that an accident had occurred.  No such evidence was presented.  It is disappointing that the State rarely suffers criticism for overreaching, as they did in this case.  It is equally disappointing that a Judge must defend almost any ruling that is seen as benefiting a defendant.

 



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