ASHEVILLE – Buncombe County District Court judge candidates, legal experts and elected officials weighed in on the technical malfunction that frequently kept defendants in jail from seeing the judge during first appearances in district court for about two years. Opinions vary on the severity of the situation and whether the current district court judges acted prudently while the problem persisted.

Since the Citizen Times first reported this issue Jan. 25, the contractor responsible for maintaining the technology has made repairs, Buncombe County has developed a new process for collecting information on technology issues in the courthouse and county and court officials have started discussions on making long-term fixes.

Judges who presided over first appearances navigated the technical difficulty by telling defendants they could join the courtroom or giving them the option to continue with a blank screen while sitting in a room in the jail. Some judges were more explicit about defendants’ rights in these situations than others. Defendants in these proceedings said they didn’t know they were waiving a right by continuing without being able to see the judge.

“While the day-to-day operation of the court facilities is under the jurisdiction of the judges, the county has an affirmative responsibility to address the capital needs to assure the functionality of the facilities. Under state law, defendants must be able to physically see and hear the judges when they make their appearance,” Buncombe County Board of Commissioners Chair Brownie Newman told the Citizen Times in a Jan. 29 statement.

“Defendants should not be placed in the situation of being asked whether they want to be able to see a judge or if it is acceptable for them to only hear the judge. This is a state law. If the courts are going to utilize a video-camera option for appearances, the camera must consistently work. Whether it involves addressing issues with the current system or replacing it with a different system, the county is committed to working with the courts to assure the state standard is met.”

What do campaigning judges say about malfunctioning system?

Emily Sutton Dezio, Robin Merrell, Todd Lentz and Meredith Pressley Stone are the four candidates vying for two district court judge seats in the March 5 primary.

After a recent candidate forum, the Citizen Times asked each of the candidates whether they thought the current judges acted as good stewards of the state general statutes while the technical system malfunctioned, if they thought “seeing” during a virtual court proceeding was a waivable right and how they would handle the situation.

Dezio and Merrell did not talk about how the current judges presided over the situation but said that they would have handled it differently.

Dezio said that if she was elected, she would not give defendants an opportunity to waive their right to see the judge, and instead bring individuals to the courtroom.

“I think if we can prevent asking people to waive their rights, we should,” Merrell said. “The better solution would be either to fix the monitor or just take the defendants over to the district court. It makes me uncomfortable to ask people to waive their rights. Even if we explain what the right is, and they say they understand, doesn’t necessarily mean they do.”

Lentz said that he thought the right to see all parties during a proceeding was waivable.

“I think the judges have done what they had to do,” he said.

Lentz said he doesn’t know how he would have handled the situation, saying that he wasn’t in the judge’s position.

Stone initially declined to comment because she works in District Attorney Todd Williams’ office as a prosecutor, referring the Citizen Times to Williams.

After refusing to comment on the Citizen Times’ initial story about the monitors, Williams said on a local radio show that the judges’ offer to join the courtroom “cures the whole thing.”

“There is a technical violation here, maybe, it’s not functioning 100% ideally, but the judges are saying, ‘Hey, if you want to see me, we’ll just bring you on over’ and most inmates are like, ‘No, this is fine. I can hear you just fine,'” Williams said during the radio appearance.

Representatives from Williams’ office practice in the courtroom with the malfunctioning monitors. Williams pointed the Citizen Times to entities that have jurisdiction over the monitors in a Jan. 29 statement, giving the judges, county administration and the sheriff’s office as examples.

More: Malfunctioning Buncombe court video monitor may violate detainees’ rights, break state law

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Under the North Carolina State Bar rules of professional conduct dictating the special responsibility of a prosecutor, Williams has an obligation to ensure the courts follow proper procedure.

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict or to uphold a conviction,” the rules read. “This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”

Stone did not answer a Citizen Times question about whether Williams’ opinion reflected her own.

“I believe our court personnel and court partners work hard every day to ensure that the rights of all defendants are upheld,” she said in a Jan. 29 statement to the Citizen Times. “If elected as District Court Judge, I would continue to work with court partners to uphold the rights of defendants and be fair and impartial to all.”

Legal advocacy groups question whether judges can waive right to see

Second Vice President of the Washington D.C.-based National Association of Criminal Defense Lawyers and Charlotte attorney C. Melissa Owen questioned whether state law allowed judges to waive the requirement for sight during a proceeding. She spoke to the Citizen Times ahead of the initial story about the court monitors.

Other legal advocacy groups agreed.

Southern Coalition for Social Justice’s Chief Counsel of Justice System Reform Jake Sussman told the Citizen Times Jan. 24 that it would not be a “reasonable solution” to place the burden on the person facing the charges.

“Securing waivers from people to proceed without being able to see the judge would appear to be completely inappropriate, since it’s hard to argue that that would actually be a voluntary and intelligent waiver,” Sussman said.

Defendants begin their first appearance without an attorney — assigning a lawyer is part that stage of the process.

Staff Attorney for ACLU North Carolina Muneeba Talukder told the Citizen Times Jan. 26 that she agreed that any waiver would need to be clear and informed. Based on Citizen Times reporting, she said that was not happening, calling the situation “troubling.”

“This affects folks who are not represented and do not have legal counsel,” she said. “They’re the ones who don’t know that this is a right that they have and are often unaware about the criminal legal system.”

More: Buncombe district court judge forum: Bail bonds, criminal justice reform, jail disparity

Mitchell Black covers Buncombe County and health care for the Citizen Times. Email him at mblack@citizentimes.com or follow him on Twitter @MitchABlack. Please help support local journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: Statutory violation? Legal advocates, judge candidates and DA speak