‘Judge not lest ye be judged’

Murphy – “Used to, we had an office at the jail; we had somebody on site all night,” Magistrate Judge Josh Postell said. “Now they do it through a video secured by the state.”

“It” refers to an arrested individual’s initial hearing. After a ride in the back seat of a law enforcement vehicle – and after processing, where fingerprinting and orange jumpsuits come into play – a suspect is granted an initial hearing before a magistrate judge.

This means if his services are required, Postell may hold court from his kitchen table at 3 in the morning.

“Once you are arrested, you have a right to an initial hearing without unnecessary delay,” he said. “That’s how it’s written in the N.C. Administrative Office of the Courts’ general statutes: ‘without unnecessary delay.’ ”

Initial hearing          

The initial hearing is more like a fancy administrative affair. There is no jury or courtroom posturing. The defendant will hear his charges and make a plea.

The judge has three duties at this initial hearing: he will decide on bail, set the terms of release and pick a court date for the actual trial. However, the magistrate has been called into service before this initial hearing. An arresting officer must have probable cause to make the arrest, and for this he will need a judge.

“We issues lay warrants,” Postell said. “The officer will explain the circumstances, and then it’s my job to find if they do have probable cause.”

This where the cards are stacked against the accused. The magistrate only hears the officer’s side of the situation, meaning the suspect isn’t allowed to offer counter points or even evidence that may contradict the officer’s version. In fact, even at the initial hearing – when he is face to face with the judge – the defendant is not permitted to argue his side of the story.

It takes three people for an arrest – a suspect, an officer and a judge – and until there’s an actual criminal trial in front of a District Court judge, the suspect has no opportunity to plead his innocence. All conversations remain between the officer and court official, and if the officer presents a compelling argument, the judge orders the arrest.

Postell sees this part of his job as “the defendant’s first defense. If an officer can’t produce any evidence, I don’t sign the arrest warrant.”

Bond decisions

The magistrate holds authority over a bond release.

“Let’s say John Doe has been arrested 46 times in last 10 years,” Postell said. “I base bond on the classification of the charges, and then consider if he is a risk to the community or a flight risk.”

Magistrates see many repeating offenders.

“I know some people by their middle name,” Postell said with a laugh.

If the magistrate offers bail, the defendant has three recourses – he can pay cash, offer a real estate bond (lien on a mortgage) or use the services of a bail bondsman.

Sometimes a magistrate will allow the defendant freedom until trial without a bond. They base this decision on the classification of the crime and the defendant’s history.

“If a defendant has never been arrested before, or if they don’t meet the danger to society qualification – say they stole a lipstick from Walmart – there is no reason for me to hold them on a bond,” Postell said. “I just can’t justify holding them.”

There are occasions when a police officer will call the judge to order by a loud bang on his front door.

“We’re on duty 24/7, 365 days a year,” Postell said.

Cherokee County retains four magistrates, who rotate in 72-hour shifts. When officers show up at a magistrate’s door, they are usually looking for a signature on a search warrant.

Holding court

However, not all magistrates’ duties center on criminal arrests.

“We oversee civil lawsuits, torte and summary ejectment (eviction),” Postell said. “In court, we often work as mediators or even counselors.”

The courtroom itself is disarming. The floor plan doesn’t deviate much from a Law & Order episode.

The judge sits behind an elevated bench in the front. There are two tables with two chairs each on either side of the courtroom. The right side is reserved for the plaintiff or injured party, while the defendant sits at left.

There is a modest gallery with wooden pews, the kind found in older churches, and the whole room is lit by rows of fluorescent lights. The judge, plaintiff and defendant have microphones at their disposal.

“The defendant can choose to have the proceedings recorded,” Postell said.

Depending on his roster for the day, the magistrate may call a bailiff into service.

“It can get pretty contentious in here,” Postell said with a laugh.

However, judges do have a behavior modification tool at their disposal. “I can hold someone in contempt for up to 30 days in jail,” he added.

Becoming a magistrate

According to Administrative Office of the Courts statues, a judge candidate must have “at least eight years’ experience as the clerk of superior court in a county of this state or shall have a four-year degree from an accredited senior institution of higher education or shall have a two-year associate degree and four years of work experience in a related field, including teaching, social services, law enforcement, arbitration or mediation, the court system or counseling.” Postell’s work experience was in education.

After a lengthy screening process, judicial candidates are shipped off to Magistrate School at the University of North Carolina at Chapel Hill’s School of Government, where they are trained through classroom work and mock trials. Once they graduate, remain under the direct supervision of the chief District Court judge.

“If somebody doesn’t like how I’m doing my job,” Postell said, “they can make a complaint with the clerk of court, and that will go up to the chief.”

But it’s not easy to have a sitting magistrate fired.

“You can get fired for dereliction of duty, but to meet that criteria you’d have to do something serious, like accept a bribe,” Postell said.

Rewards of service

When asked about the rewards of serving as a magistrate, Postell said with another laugh, “Well, it’s not the salary.”

Indeed, an average North Carolina magistrate’s salary ranges from $42,000 annually for entry level and caps out in the $68,000-a-year range. Postell considers his position one of community service.

“I get to assist the wrongfully accused and take criminals off the street,” he said.

There are dangers inherent in the position. As Postell put it, “I make people of questionable character upset.”

But for Postell and the other three Cherokee County magistrates, the benefits outweigh the risks. Postell sees his career as a vocation, saying, “I’m doing my part to contribute to society.”