Opioid Pilot Proposed.  The News Roundup previously has noted that while use of the opioid overdose-reversal drug naloxone is increasingly common, protocols for guiding people into addiction treatment following an overdose and rescue are relatively uncommon.  Without treatment, addicts often return to using and eventually overdose again.  The Wilmington Star News reports that proposed North Carolina legislation, House Bill 324, aims to break the overdose cycle by establishing a pilot program in Wilmington that would provide follow-up treatment after a naloxone rescue.

Jail Nurse Charged.  The News & Observer reports that a woman who worked as a nurse at the Franklin County Detention Center is facing drug trafficking charges arising from an alleged scheme where she would obtain opiates by using the names of former jail inmates.  Tamsey Hight Watkins was arrested while at work at the jail.

Former Prosecutor Disciplined.  Former Wake County assistant district attorney Colleen Janssen, whose father was kidnapped by gang members in a dramatic plot for retribution against Janssen, cannot work as a prosecutor or provide legal representation to any government agency for two years as a disciplinary sanction for withholding evidence in a 2014 robbery trial.  A previous News Roundup has links to stories about the evidence issue that gave rise to the disciplinary action.

Modern Times.  The Salisbury Post has an opinion piece promoting the “e-Courts Strategic Technology Plan” developed by the Technology Committee of the North Carolina Commission on the Administration of Law and Justice.  The plan calls for an overhaul of the information technology systems used by North Carolina courts.

Charlotte School of Law.  The Charlotte Observer reports that the dean of the Charlotte School of Law has stepped down.  Jay Conison, who had been the dean at the school for about four years, has been replaced by Charlotte faculty member and former federal prosecutor Scott Broyles.  According to the Observer report, the future of the school still is uncertain.

Hacker Hunt.  Wired has a lengthy article that takes a reader behind the scenes of a massive law enforcement effort to catch a notorious Russian hacker.  Described as “Russia’s greatest cybercriminal,” Evgeniy Mikhailovich Bogachev reportedly developed sophisticated hacking software which he used to steal millions.  The FBI was able to dismantle much of Bogachev’s nefarious cyber infrastructure, but he remains at large.

Death Row Basketball.  The Marshall Project has an interesting account of a death row basketball league and tournament from an inmate at Central Prison.  As you might imagine, the story says that there are numerous obstacles to team cohesion throughout the course of a season – coaches are sent to “the hole,” players are prone to tantrums, and technical fouls are common.

The post News Roundup appeared first on North Carolina Criminal Law.

That said, I am occasionally asked what I would do if someone gave me a magic wand and told me to make our sentencing law better. “Better” can be a tough concept to navigate while staying true to the School’s policy-neutral underpinnings. But I don’t mind sharing a few ideas focused on the mechanics of the sentencing law—largely as a thought experiment designed to call attention to some of the more confusing aspects of existing law.

For all of the suggestions that follow, please assume they would be implemented in a resource-neutral way. In other words, I’m not trying to propose anything that would necessarily increase or decrease North Carolina’s correctional population. Instead, I’m focused on changes that I think would make the law easier to understand and administer.

Suggestion number one: Simplify the felony sentencing grid. After 10 years of teaching, writing, and advising on our state sentencing law, I can tell you that the felony sentencing grid is not . . . intuitive. It’s not rocket science either, but many lawyers and most citizens who look at it for the first time have a hard time translating the numbers they see into a practical understanding of how long a person will be behind bars.

The first surprise for the uninitiated is that the grid-looking part of the grid (the front in the traditional double-sided printing) shows only the ranges of permissible minimum sentences. Until that is explained, a person might look at his Class H, Level I conviction and think, “Ok, I’m looking at 5–6 months.” Nope. Those are just the permissible minimums. The corresponding maximums are on the back of the grid. The sentence (assuming we’re sticking to the presumptive range) will be either 5–15 months or 6–17 months. Showing just the minimums feeds into the perception that the minimum is all anyone will really have to serve in prison—which is largely mistaken for low-level felons.

If I had my magic wand (and by the way, I always wind up Hufflepuff in those online quizzes—sigh), I might suggest getting rid of the back of the grid altogether. How would you do that? One approach would be to reduce the number of permissible sentences down to a relative handful within the existing ranges, and just show those minimum-maximum combinations on the front of the grid. For example, the grid cell for Class H/Level II might show 6–17 as the only permissible minimum-maximum sentence in the presumptive range, 10–21 as the only permissible aggravated sentence, and 4-14 as the lone mitigated option.

There’s an obvious payoff in simplicity, but I realize it comes at the cost of discretion and the ability to tailor the sentence to the individual defendant. If there’s only one permissible presumptive sentence for the defendant, why not just have a computer impose it? The sentence would, to a large extent, be dictated by the prosecutor’s charging decision and whether the State alleged any aggravating factors.

I can think of a few responses to that. First of all, a judge would still have to weigh any aggravating and mitigating factors. Second, the judge would still make the important choice between prison and probation. Third—and perhaps most importantly—the courts don’t take full advantage of their existing discretion in any event. The North Carolina Sentencing and Policy Advisory Commission has long noted that felony sentences tend to fall on one of four “spots” on the range of options available in the defendant’s grid cell: bottom of the presumptive (29%), top of the presumptive (27%), bottom of the mitigated (19%), or top of the aggravated (3%). That means 78% of all terms of imprisonment leave the interstices of each sentencing range unused. The percentage is predictably higher for low level felonies (86% and 87% for Class H and Class I felonies, respectively), where there is often only one “middle” sentence between the spots in each cell. I wrote about the phenomenon here back in 2011.

A single sentencing option in each range would probably be too restrictive for more serious crimes. As you move up the grid and the existing ranges become larger, I could see adding more options within each range. For example, the presumptive options for Class D/Level II could be 59–83, 66–92, or 73–100, giving the court some room to tailor the sentence. Those options could be selected to match historical averages in a resource-neutral way. Regardless of the specifics, the overall objective would be to have the grid present minimum-maximum combinations in a more intuitive way.

Suggestion two: Untangle the post-release supervision component of the maximum sentence from the initial imprisonment portion. Post-release supervision is tricky. There’s no mention of it on the sentencing grid, and defendants don’t generally receive notice of it when they plead guilty. It has become a much bigger issue since Justice Reinvestment, which added post-release supervision for all Class F–I felons in a way that more than doubled the exposure to imprisonment for many of them. (Did you know that PRS revocations now account for more prison entries than probation revocations?)

Defendants and victims often have no idea that most of the stated maximum sentence for a low-level felony won’t be spent behind bars at all, but is rather time built into the maximum sentence to cover the possibility of a revocation of post-release supervision. For example, a person serving a 6–17 month sentence will spend at most 8 months of it in prison. Only defendants who violate post-release supervision will serve any portion of the last 9 months.

When Structured Sentencing was enacted in 1994, it may have been necessary to bake the PRS imprisonment time into the maximum sentence like that. Before a 1995 amendment to the state constitution, the only permissible punishments in the state under Article XI, Section 1 were death, imprisonment, fines, and removal from office. There was a school of thought back then that probation and other suspended terms of incarceration could be imposed only as a by-product of a term of imprisonment, and then only with the defendant’s consent. The 1995 amendment cleared that up, adding suspended prison or jail terms (and restitution, community service, work programs, and other restraints on liberty) to the list of constitutionally permissible punishments.

With that in mind, I think there could be value in bringing post-release supervision out of the shadows and allowing it to stand alone as a probation-like sentence that follows a term of incarceration. If you did that, my proposed one-sided grid could show the imprisonment maximums uninflated by PRS, with the corresponding PRS terms shown separately.

Having the judge impose the post-release supervision term separately, stating both the length of the supervision term and the suspended term of imprisonment that could be activated upon violation, would, I think, be a much clearer statement of what will actually happen in the case. It would allow for a clear statement of the different supervision and imprisonment periods for certain sex offenders—especially the Class F–I sex offenders who have 5 years of supervision but only 9 months hanging over their heads. It might also help defuse a ticking litigation time bomb, discussed here.

A side effect of that approach would be to return the actual imprisonment maximums for low-level felons to where they were before Justice Reinvestment, which would in turn reduce a person’s split-sentence exposure. For instance, a 6–17 month sentence would once again be 6–8, and the corresponding maximum split sentence (measured as one-fourth of the maximum under G.S. 15A-1351(a)) would once again be 2 months instead of 4.25. Depending on how it was structured, the change could also affect how certain shorter felony sentences are viewed as a matter of federal law (an issue discussed here).

Suggestion three: Eliminate the Community-Intermediate distinction. Before Justice Reinvestment, for a sentence to meet the definition of Intermediate punishment, it had to include at least one of six specific conditions of probation (special probation, a residential program, electronic house arrest, intensive supervision, day reporting center, or drug treatment court). A Community punishment, meanwhile, was a sentence to probation (supervised or unsupervised) that did not include one of those six conditions, or a fine only.

After Justice Reinvestment, an Intermediate punishment does not require imposition of any particular conditions. And the only conditions off limits for Community punishment are split sentences and drug treatment court. The bottom line is that there’s less distinction between Community and Intermediate punishment than there was when Structured Sentencing was enacted. In many cases you cannot tell the difference between the two from the probationary sentence itself. In fact, even the computers can’t seem to tell them apart: in FY2016, there were over 3,500 sentences identified as “Community” punishment from grid cells that don’t have a “C” in them. That’s about 20% of all sentences from those cells.

And yet, as discussed here, the distinction matters. It has a bearing on how long probation can be, what delegated authority conditions apply, and whether the four Intermediate probation conditions of G.S. 15A-1343(b4) (including the no-alcohol condition) kick in automatically. Further complicating things, the definitions of Community and Intermediate do not apply in impaired driving cases, which are not sentenced under Structured Sentencing. That’s why, for example, there’s no delegated authority in DWI cases—although pending legislation would change that.

So what if you eliminated the Community-Intermediate distinction? Instead of C/I/A, the dispositional options on the grid could be A/P/F: Active/Probation/Fine Only. We’ve already moved in the direction of an “F” block for some Class 3 misdemeanants. And the notion of a more generalized “P” would jibe with Community Corrections’ movement toward evidence-based supervision based on the results of their risk-needs assessment. That was the rationale behind the 2011 changes to the definitions of Community and Intermediate in the first place. A generalized “P” could also bring Structured Sentencing and DWI probation under the same statutory roof, removing a needless complication from the law. I could envision some statutory tinkering within the “P” to regulate the relative extremes of unsupervised probation and splits.

Suggestion four: Standardize sentence reduction credits. As most readers know, the Division of Adult Correction awards Structured Sentencing inmates Earned Time and Meritorious Time, while impaired drivers get Good Time and sometimes Gain Time. Good Time and Gain Time cut DWI sentences (aside from Aggravated Level One) in half and then some. That is not required by law. It is not because DWI is, as people sometimes say, “sentenced under Fair Sentencing.” It is a discretionary administrative choice of the Department of Public Safety, which sets the credit rules that the jails are obliged to follow.

As Shea noted in yesterday’s post, the substantial credit reductions that apply in DWI cases apparently are factored into judges’ sentencing practices. They factor the credit discount into their sentences, giving 24 months when they want 12, for example. That is confusing to defendants, victims, and other citizens, who probably need to watch a boring bit of YouTube filler to decipher what the sentence really means. It runs contrary to the principle of truth in sentencing that underlies Structured Sentencing’s ironclad minimum.

So the proposal would be to apply to DWI cases the same types of credits that apply in Structured Sentencing cases. Those generally allow for about 4 days of credit per month for misdemeanors. To make the change roughly outcome and resource neutral, of course you’d need to reduce the DWI sentencing rules accordingly. For example, the maximum sentence for a Level One would be reduced from 24 months to 12. It seems like a big change, but it’s not. The difference is that the defendant would actually serve the sentence as announced in court.

I’ll conclude with a couple of quick additional thoughts. One, it might make sense to add an “active punishment exception” for low-level felons, similar to what we have for misdemeanors in G.S. 15A-1340.20(c1). Since 2011, not many felons are truly time served (in that they have served their full maximum sentence). But it happens (I am asked about it almost every week)—and it would happen more often if we adopted suggestion two above and purged PRS time from the maximum. It would be good to have statutory authorization to order an “Active” sentence to time served for defendants with jail credit in excess of the maximum even when there’s no “A” in the defendant’s grid cell.

Finally, I’ll mention one change related to probation, and I’ll keep it brief: I think we could come up with a simpler approach to probation extensions. I’ll save the rest of my probation-related suggestions for another day.

I hope you’ll take these suggestions as what they are: food for thought. I’m not here to lobby for particular changes. But when public officials, policymakers, or advocates want to make changes, I’m happy to help them think of how to do it in a way that makes sense, achieves the desired objective, and avoids unintended consequences.

Surely you have thoughts on these suggestions, or suggestions of your own.

The post If You Gave Me a Magic Wand (Some Unsolicited Thoughts on Reforming the Sentencing Laws) appeared first on North Carolina Criminal Law.

The source. The Sentencing Commission compiled statistics on the 34,278 DWIs that were sentenced in fiscal year 2015 (July 1, 2014 through June 30, 2015) and the 1,609 active terms of imprisonment for DWI that concluded that fiscal year. The data was gathered from the Administrative Office of the Courts’ (AOC’s) Automated Criminal Infraction System (ACIS) and the Department of Public Safety’s Offender Population Unified System (OPUS).

The breakdown. Nearly 60 percent of misdemeanor DWIs (19,720 to be exact) were sentenced at the lowest level of punishment: Level 5. Two percent (643) were sentenced at the highest level of punishment: Aggravated Level 1. Sixty percent of DWI sentences placed the defendant on unsupervised probation, while 33 percent placed the offender on supervised probation. Only 7 percent of DWI sentences imposed an active term of imprisonment. This does not mean, of course, that 93 percent of DWI sentences in fiscal year 2015 did not require the offender to serve time behind bars. All Aggravated Level 1 and Level 1 sentences require that the defendant serve a period of imprisonment as a condition of special probation, as do most Level 2 sentences. Those terms of imprisonment do not have to be, and typically are not, served as an active sentence; instead they are served as a condition of special probation.

One surprise. I was surprised to learn that 51 percent of Aggravated Level 1 sentences in fiscal year 2015 were probationary. Aggravated Level 1 was added to the DWI sentencing structure in 2011, and is the sentencing level required for a defendant convicted of DWI if three or more grossly aggravating factors apply. An Aggravated Level 1 sentence must include a minimum term of at least 12 months and a maximum term of not more than 36 months. The sentence may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 120 days. If the defendant is placed on probation, he also must be required to abstain from alcohol for at least 120 days as verified by an approved continuous alcohol monitoring system. Because continuous alcohol monitoring is a service provided by a private vendor, at a cost that ranges from $10 to $12 a day, I suspected that many DWI defendants would not be able to afford a probationary Aggravated Level 1 sentence. The numbers from fiscal year 2015 indicate, however, that the costs of continuous alcohol monitoring did not prevent most defendants from receiving a probationary sentence.

Other numbers of note. The Sentencing Commission created the chart below based on OPUS data for active DWI sentences that expired, were paroled, or for which a defendant was released to post-release supervision in fiscal year 2015.

North Carolina Sentencing Policy and Advisory Commission

The chart may be of interest to judges and advocates alike as it reflects the average maximum term of imprisonment imposed for active DWI sentences at each level and the average percentage of those sentences that defendants served. (For DWI sentences, the maximum term of imprisonment is the significant number for most purposes. The minimum sentence is only relevant for purposes of determining a defendant’s eligibility for parole.) The average maximum term of imprisonment imposed for Aggravated Level 1 sentences was 13.6, only slightly above the statutory mandatory minimum of 12 months. Defendants served an average of 10.9 months. This reduction reflects (albeit slightly imprecisely) the statutory requirement that such defendants be released on post-release supervision four months before reaching the maximum term imposed. Aggravated Level 1 sentences are not parole-eligible and are not credited for good time.

The rules—and the resulting sentencing statistics—are different for the other five levels of DWI. Defendants sentenced at Levels 1 – 5  are eligible for parole and receive one day of good time credit for every day served in custody without an infraction of inmate conduct rules. Thus, even before accounting for parole, active DWI sentences at Levels 1 – 5 are cut in half. Those reductions are reflected in percentage-of-sentence-served column on the Sentencing Commission’s chart. So, while the average maximum term imposed for a Level One DWI was 18.2 months (higher than the average for Aggravated Level 1 DWIs), the average time served for a Level 1 sentence (7.5 months) was shorter than that for an Aggravated Level 1 sentence (10.9 months).

Why compile these statistics? At the request of legislators, the Sentencing Commission is studying the state’s sentencing and correctional policies and practices for impaired driving offenses. Legislators asked the commission to consider the availability of treatment and programming, the awarding of sentence credits, and the amount of time offenders actually serve and to pass along any recommended changes. Commission members have identified the following as their top five concerns regarding DWI sentences: availability/adequacy of treatment, swift resolution, sentence structure and administration, complexity of DWI laws, and the lack of access to existing tools (treatment & beyond).

Have your own impressions, ideas, and concerns? Please share them using the comment feature below.

The post How DWIs Are Actually Sentenced appeared first on North Carolina Criminal Law.

Facts. The case involved allegations of serious domestic abuse by the defendant against his wife over the course of several months. The State charged attempted first-degree murder, and the defendant went to trial. After the jury was impaneled and the first day of evidence, the trial judge alerted the parties that the indictment failed to allege “malice aforethought,” as required by G.S. 15-144 (the short-form indictment statute for homicides). “Malice” is an essential element of both murder and attempted murder. If an indictment fails to allege malice, a charge of murder is interpreted as charging voluntary manslaughter, which does not require malice. A charge of attempted murder failing to allege malice is likewise interpreted as charging attempted voluntary manslaughter. See State v. Bullock, 154 N.C. App. 234 (2002); accord State v. Wilson, 236 N.C. App. 472 (2014).

The State moved for a mistrial in order to seek a corrected indictment and charge attempted murder. The defense objected to the mistrial and argued that the case should proceed before that jury on attempted voluntary manslaughter, which is a lesser-included offense of attempted murder and which was adequately alleged in the indictment. See State v. Rainey, 154 N.C. App. 282 (2002). The trial court ruled that the indictment was fatally flawed and failed to confer jurisdiction to proceed on any charge. It then found that a manifest necessity for a mistrial existed and that the defendant could be retried. At the subsequent trial, the trial court denied the defendant’s motion to dismiss for double jeopardy and he was convicted of attempted first-degree murder.

Holding. The court of appeals unanimously vacated the conviction based on a double jeopardy violation. The court found Bullock and Wilson controlling. Because the original indictment effectively charged attempted manslaughter, it was not fatally flawed and the first trial court had jurisdiction to proceed on that lesser-included offense. There was therefore no manifest necessity to declare a mistrial over the defendant’s objection, and double jeopardy precluded another trial.

Double Jeopardy and Mistrials. The Double Jeopardy clause generally protects against being tried or punished twice for the same offense. U.S. Const. amend. V. The rule on mistrials for double jeopardy purposes is that if a manifest necessity existed to declare the mistrial, there is no double jeopardy violation. If there was no manifest necessity and jeopardy has attached, double jeopardy bars a retrial. Arizona v. Washington, 434 U.S. 497 (1978). This rule is grounded in the principle that a defendant has a right to have his matter tried to completion after jeopardy attaches. Wade v. Hunter, 336 U.S. 684 (1949). Jeopardy attaches in a jury trial when there is a valid indictment and the jury is impaneled. State v. Cutshall, 278 N.C. 334 (1971).

Manifest Necessity. So what counts as a manifest necessity? There is no bright-line rule. The classic example is a hung jury. U.S. v. Perez, 22 U.S. 579 (1824) (no double jeopardy violation with mistrial after hung jury). Physical impossibility to proceed also supports a finding of manifest necessity, such as when the judge or a juror dies or becomes disabled during the trial. See generally G.S. 15A-1063; 15A-1224. A fatally flawed indictment that fails to confer jurisdiction is another example of manifest necessity. Illinois v. Somerville, 410 U.S. 458 (1973).

Waiver. Where a defendant requests or joins the request for a mistrial, there is generally no double jeopardy problem. State v. White, 322 N.C. 506 (1988) (but recognizing an exception for prosecutorial misconduct intended to cause a mistrial). North Carolina courts have indicated that the failure to object to a mistrial in a noncapital case is implicit consent and waives any double jeopardy claim. See generally State v. Odom, 316 N.C. 306 (1986); State v. Lachat, 317 N.C. 73 (1986). Had the defendant in Schalow joined in the request for a mistrial or failed to object, his double jeopardy claim would likely have failed.

Comments. These exceptions, among others, limit the principle that the defendant is entitled to have his case tried to completion once jeopardy attaches. In Schalow, however, no recognized “‘necessity” existed. Therefore, it was error to terminate the initial prosecution of attempted voluntary manslaughter. Further, because greater and lesser-included offenses are considered the same for purposes of Double Jeopardy under Brown v. Texas, 432 U.S. 1616 (1977), the State was prohibited from retrying the defendant on either attempted murder or voluntary manslaughter.

While not directly on point, this outcome is reminiscent of State v. Birckhead, 256 N.C. 494 (1962). There, in a prosecution for assault with intent to commit rape, surprise testimony from the prosecuting witness during trial led the State to seek a mistrial to indict on the greater offense of rape, which the trial judge allowed over the defendant’s objection. On appeal from his eventual conviction, the Supreme Court reversed, vacating the conviction for a double jeopardy violation. The Court found that the assault charge was adequately alleged and no manifest necessity existed to declare a mistrial over the defendant’s objection. Just as in Schalow, the Court barred the State from prosecuting the defendant on either the original assault charge or the greater offense.

The takeaway for practitioners is to be aware of the grounds that will support a finding of manifest necessity and what won’t. The trial judge has broad discretion to declare a mistrial for any number of valid reasons, and the defendant can fairly easily waive a claim for double jeopardy. However, a mistrial unsupported by a manifest necessity and entered over the defendant’s objection will bar future prosecution under double jeopardy principles.

The decision from the court of appeals was stayed shortly after it was issued, and the Supreme Court granted the State’s petition for review last week. If there are further developments in the case, you can read all about it back here.

The post Mistrial Leads to Double Jeopardy Violation in State v. Schalow appeared first on North Carolina Criminal Law.

First, there’s a direct North Carolina connection to the hearing. Senator Thom Tillis is a member of the Judiciary Committee. Senator Tillis has described Judge Gorsuch as an “incredibly qualified” nominee.

Second, the hearings are expected to last most of the week. The Senate Judiciary Committee website contains limited scheduling information. Judge Gorsuch himself will address the Committee, as will a number of other people representing various viewpoints.

Third, all Supreme Court nominations are controversial these days, and this one is no exception. Judge Gorsuch’s resume is impressive, but some oppose his confirmation because of what they see as a pro-business ideology. Senate Republicans’ unwillingness to consider Judge Merrick Garland’s nomination to the Court by President Obama also may influence Judge Gorsuch’s reception among Senate Democrats.

Fourth, I spent a few minutes with the detailed questionnaire that Judge Gorsuch submitted to the Committee. I culled these tidbits that I thought were interesting:

• Among the ten cases that Judge Gorsuch identified as the most significant of his judicial career is United States v. Carloss, 818 F.3d 988 (10th Cir. 2016). According to the questionnaire, Judge Gorsuch dissented in that case, arguing that “no trespassing” signs revoke any implied consent that would allow a law enforcement officer to enter the curtilage of a residence.
• To the best of Judge Gorsuch’s recollection, no opinion he has written has ever been reversed by the Supreme Court.
• While in practice, Judge Gorsuch tried just four cases to jury verdict — but two of the four involved claims worth at least $1billion.
• As a judge, he became concerned with the quality of representation death row inmates received in federal habeas proceedings; as a result, he “participated in the effort to increase the quality of capital representation before the Tenth Circuit by attracting new attorneys and training existing ones.”

 
Fifth, for those interested in further reading, NPR has a summary of this politics here, and PBS has a preview of the hearing here. Former Obama Acting Solicitor General Neal Katyal wrote this editorial supporting Judge Gorsuch. Finally, the record of Judge Gorsuch’s confirmation hearing for his current is here.

The post Gorsuch Confirmation Hearing to Start Today appeared first on North Carolina Criminal Law.

Checkpoints on Hold.  Durham Police Chief C.J. Davis announced last week that her department has suspended use of motor-vehicle checkpoints in an effort to dispel fears in the community about the rumored use of checkpoints to enforce federal immigration laws.  As this report from WCNC NBC Charlotte indicates, there have been widespread rumors and hoaxes on social media nationwide suggesting that checkpoints are being used for immigration enforcement, though evidence of such use is scant.

Guns on Campus.  The News & Observer reports that proposed North Carolina legislation, House Bill 251, would allow concealed-carry permit holders to carry their handguns on UNC system and North Carolina community college campuses.  Allowing concealed carry on campuses is controversial, here’s a piece in favor of the practice from the National Review.

“Not the Kind of Thing We Like to See.”  The Winston-Salem Journal reports that a man’s concealed carry permit was revoked when his armed intervention in a “fight” at Hanes Mall resulted in his conviction for discharging a firearm within the city limits.  Mistaking a struggle between group home workers and a mentally ill client for a fight, Daniel Ray Brown pointed his pistol at the group and fired a “warning shot.”  Judge John O. Craig revoked Brown’s permit, explaining that his behavior was “just not the kind of thing we like to see from people with concealed carry permits.”

Arrest Warrant and Indictment Forms.  Big news folks – the 2016 update to Jeff’s Arrest Warrant and Indictment Forms book has been published and is available for free from the SOG.  This is a particularly important update because it covers a two-year span of time and includes new forms for many of the sexual assault crimes, which the General Assembly revised and renumbered in the 2015 legislative session.

Word of Faith Fellowship.  Last week the News Roundup noted that two congregants allegedly involved in helping Word of Faith Fellowship church cover up physical and emotional abuse occurring within the church were assistant district attorneys in Prosecutorial District 25.  WRAL reports that the two individuals implicated, Frank Webster and Chris Back, are no longer employed as prosecutors in the district.  The report does not include details about their departure.

D.A. Resigns.  A few weeks ago, the News Roundup noted that Rockingham County District Attorney Craig Blitzer allegedly participated with Person/Caswell District Attorney Wallace Bradsher in a scheme where the two men hired each other’s wives for state jobs that didn’t actually require the women to perform work.  The Greensboro News & Record reports that Blitzer resigned from office last Friday.

Comet Ping Pong Plea Deal.  The Salisbury Post says that Edgar Maddison Welch, the Salisbury man who raided a Washington D.C. pizzeria with an assault rifle and pistol because he believed the “Pizzagate” online conspiracy theory, has reached a plea agreement with federal prosecutors.  Welch is expected to enter the plea at a hearing scheduled for March 24; details of the agreement were not reported.

The post News Roundup appeared first on North Carolina Criminal Law.

North Carolina has an adult sex offender registry and a juvenile sex offender registry. Notice there’s no hyperlink to the juvenile registry. That’s because that information is maintained separately by the sheriffs and released only to law enforcement agencies and local boards of education. G.S. 14-208.29 (“Under no circumstances shall the registration of a juvenile adjudicated delinquent be included in the county or statewide registries, or be made available to the public via internet.”).

Juvenile registration is much more limited than adult registration. It applies only for juveniles of at least 11 years of age who are adjudicated delinquent for rape or sexual offense, and then only when the court rules that the child must register. G.S. 14-208.26. While a juvenile tried and convicted as an adult in North Carolina goes on the regular adult registry, G.S. 14-208.32, no North Carolina juvenile adjudication requires adult registration.

But what about a juvenile adjudication from another state? Some states include certain juvenile adjudications within their definition of the “convictions” that require adult registration. In fact, federal law directs states to do that for certain juvenile adjudications involving an offender of at least 14 years of age, 42 U.S.C. § 16911(8) (although former Attorney General Lynch allowed states a bit more flexibility on that point in supplemental guidelines issued in 2016). North Carolina has not acted on the federal directive to include any juvenile adjudications within the definition of “conviction” for registration purposes, but some states have.

Suppose a person registered as an adult in one of those states moves to North Carolina. Must he or she register here?

Under G.S. 14-208.6(4)b., a person with an out-of-state conviction has a “reportable conviction” in North Carolina if he or she has:

1. A final conviction in another state for an offense substantially similar to a North Carolina offense requiring registration, or
2. A final conviction in another state of an offense that requires registration under the sex offender registration statutes of that state.

Both pathways require a “final conviction” in another state—and there is a pretty good argument that you can stop right there. If we understand “final conviction” to mean what it generally means under North Carolina law, it would never include a juvenile adjudication. Under G.S. 7B-2412, no juvenile adjudication may be considered a “conviction” of a criminal offense.

The only way an out-of-state adjudication would be reportable, then, is if we understand “final conviction” to mean “final conviction” as the other state defines it.

Particularly with respect to the second pathway, there is some logic in reading the law that way. The purpose of the second pathway is to prevent out-of-state offenders from being able to avoid a requirement to register by moving to North Carolina. The law even refers to the requirement to register “under the sex offender registration statutes of [the other] state.”

On the other hand, the law says “final conviction,” and our appellate courts have read those words narrowly. They concluded, for example, that “final conviction” did not include a person’s prayer for judgment continued for sexual battery. Walters v. Cooper, 226 N.C. App. 166, aff’d, 367 N.C. 117 (2013). The legislature has studied the issue of requiring registration for certain juvenile adjudications, S.L. 1997-516, sec. 1B (“The Secretary of the Department of Crime Control and Public safety shall appoint a committee to study whether a juvenile adjudicated delinquent for committing a sexually violent offense or an offense against a minor . . . should be required to register . . . .”), and never brought them within the coverage of the adult registry.

The question appears to be an open one for now. The Attorney General’s office notes the ambiguity in its online publication on North Carolina’s registry, saying (on page 4) that “’Final conviction’ may or may not include juvenile proceedings in another state.” Faced with a similar question regarding whether in-state juvenile adjudications constituted convictions and triggered registration, West Virginia’s high court concluded that they should not be considered “convictions” within the meaning of the state’s sex offender laws. State v. J.E., Nos. 16-0677; 16-0723, 2017 WL 672509 (W. Va. Feb. 14, 2017). The court cited a handful of states where juvenile adjudications were deemed convictions for registration purposes (Rhode Island, Illinois, and Nevada), but noted that those states all had explicit language bringing certain juvenile adjudications into the fold. In the absence of such legislation in West Virginia, the court excluded juvenile adjudications. Id. at *6 (“Had the Legislature intended to include adult offenders convicted of a criminal offense and adjudicated juvenile delinquents . . . , we presume it would have done so explicitly.”).

If North Carolina follows that line of authority, juvenile adjudications from another state would not require registration here. Until our courts or the legislature clarifies the matter, however, a person registered in another state for a juvenile adjudication who moves to North Carolina is on uncertain legal ground.

The post Sex Offender Registration for Out-of-State Juvenile Adjudications appeared first on North Carolina Criminal Law.

Review. A person commits the offense of driving while impaired if she (a) drives, (b) a vehicle, (c) on a street, highway, or public vehicular area, (d) while impaired. G.S. 20-138.1(a). The State may establish impairment in any one of three ways: by proving that the defendant drove (1) while under the influence of an impairing substance; (2) after having consumed sufficient alcohol that she has, at any relevant time after the driving, an alcohol concentration of 0.08 or more; or (3) with any amount of a Schedule I controlled substance or its metabolites in her blood or urine.

Charging DWI. When charging a defendant with the misdemeanor offense of driving while impaired, the State is not required to allege its theory of impairment. A pleading is sufficient if it states the time and place of the offense and charges that the defendant drove a vehicle on a highway or public vehicular area while subject to an impairing substance. G.S. 20-138.1(c).

Instructing the jury. The pattern jury instruction for misdemeanor impaired driving calls for the judge to instruct the jury about each prong of impairment that is supported by the evidence. Thus, the judge in Babich told the jury that the State was required to prove that the defendant was “under the influence of an impairing substance” or “had an alcohol concentration of 0.08 or more.” Record on Appeal at 43-44. The jury returned a general verdict, finding Babich “Guilty [of] driving while impaired.” Id. at 50.  The jury was not asked to specify which under which prong of impairment the State met its burden.

Unanimity requirement. The North Carolina Supreme Court in State v. Oliver, 343 N.C. 202 (1996), rejected the notion that jurors must be unanimous as to the nature of the defendant’s impairment. The court reasoned that G.S. 20-138.1 proscribes “the single offense of driving while impaired,” which may be proven in more than one way.  Id. at 214. Regardless of whether some jurors found that the defendant was under the influence of an impairing substance while others found that his alcohol concentration was 0.08 or more, the Oliver court explained that the significant fact was that jurors unanimously found the defendant guilty of the single offense of impaired driving. Id. at 215.

Harmless error. As I noted last week, the Babich court determined that the improper admission of the expert testimony on retrograde extrapolation did not prejudice the defendant. The court cited as support State v. Taylor, 165 N.C. App. 750 (2004), a case holding that the trial court did not err by admitting expert testimony on retrograde extrapolation. The Taylor court went on to say that even if the trial court had erred by admitting the testimony, the error was not prejudicial in light of other evidence that the defendant was under the influence of an impairing substance. The Babich court recited the following evidence in support of its conclusion that there was no reasonable possibility that the jury would have reached a different result absent the impermissible testimony:

• Babich drove 80 miles per hour while approaching a red light and then drove through the red light at about 45 miles per hour;
• An officer smelled alcohol on Babich’s breath;
• Babich had glazed and bloodshot eyes and stumbled as she walked;
• Babich ignored the officer’s instructions and repeatedly talked over him; and
• Babich performed poorly on field sobriety tests.

I think reasonable minds could differ about this conclusion. There is no question that there was significant evidence of Babich’s impairment aside from the retrograde extrapolation result. Yet the court’s conclusion that the jury’s verdict was not influenced by expert testimony establishing the per se prong of impairment certainly runs afoul of conventional wisdom regarding the most probative evidence of impairment. Indeed, the Babich court did not cite another similar case, State v. Roach, 145 N.C. App. 159 (2001), in which the court reversed the defendant’s DWI conviction based on concern that the jury may have based its verdict on chemical analysis results that were improperly admitted. The court in Roach determined that while there was sufficient evidence from which the jury could convict the defendant under the under the influence prong of the DWI statute, “the jury was given only two options on the verdict sheet, to find defendant ‘guilty of driving while impaired,’ or to find defendant ‘not guilty.’” Id. Thus, it was “not possible to tell whether the jury found defendant guilty based on his blood alcohol concentration level or due to the appreciable impairment of his faculties.” Id.

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Facts. In 2009 North Carolina local law enforcement officers used a confidential informant who was wired with audio and video recorders to make a purchase of crack cocaine. After the transaction, the informant told the officers that he purchased drugs from April Smith, a black female. An officer’s notes identified her as “B/F April Smith” and “April B/F Smith skinny $20 1 rock in plastic, Smith 40s.” For technical and other reasons neither the audio nor video captured the drug sale, although there was video of an unidentified black female sitting on the front porch. During the next nine months, an officer scanned police databases for residents of his county named April Smith who had criminal records. He then discovered April Yvette Smith, a black female and the plaintiff in this case who lived in the county and had been convicted of selling crack cocaine in 1993, 1997, and 2005. His search revealed at least two other April Smiths with criminal records. He had no indication that the female who sold crack cocaine to the informant in 2009 had a criminal record or was even a county resident. The record reflects no further attempt by the officer to connect her to the crime. The officer obtained an arrest warrant for the plaintiff nine months after the drug transaction and arrested her in her home, which was eleven miles away from the transaction. She was held in custody for about 80 days, when the local district attorney’s office dismissed the charges. She filed a lawsuit in a North Carolina federal district court under 42 U.S.C. § 1983 for Fourth Amendment and related tort claims based on her arrest allegedly made without probable cause.

Federal district court ruling. The federal district court granted the motion for summary judgment filed by the arresting officer and others based on their qualified immunity from the lawsuit. The district court reasoned that the officers were looking for a black woman named April Smith who sold drugs, and they found a black woman named April Smith who had previously sold drugs, and who was arrested for the offense involved in this case only eleven miles from the drug transaction. The one factor the district court believed counseled against probable cause was Smith’s weight. The seller had been described as a skinny female, but the plaintiff was 160 pounds when arrested, and she alleged that she weighed more than 200 pounds on the date of the transaction. But the court noted that the officers were unaware of the plaintiff’s weight at the time of the transaction and reasoned that 160 pounds was not so different from “skinny,” especially with an intervening nine months, so as to discredit a finding of probable cause even if the officers ultimately were mistaken in arresting her.

Fourth circuit ruling. The fourth circuit reversed the district court’s grant of summary judgment. The court reasoned that when applying for the arrest warrant, the officer simply did not have enough information for any reasonable or prudent person to believe there was probable cause. He lacked any information connecting the plaintiff’s conduct to the contours of the offense, and certainly lacked enough evidence to create any inference more than mere suspicion. Of the offense, the officer knew only that the confidential informant used by other officers–but new to him–said “April Smith,” a skinny, black female, sold him crack cocaine. He did not know if she had been previously convicted of selling crack cocaine or if she lived in the county. He chose one of the black females named April Smith for no immediate apparent reason.

The court stated that an investigating officer need not exhaust every potential avenue of investigation, but an officer must still conduct some sort of investigation and assemble individualized facts that link the suspect to a crime. It said that in this case there was: (1) no evidence that the officer attempted to identify the plaintiff as the black female in the video footage of the front porch; (2) no evidence that the officers showed the informant a photo of the plaintiff for identification; and (3) no evidence that the officers investigated the plaintiff herself.

The court noted case law accords great deference to a magistrate’s determination of probable cause, but that deference is not boundless. The court concluded that in this case the evidence placing the plaintiff at the crime scene was so scant (indeed, nonexistent) that deferring to the magistrate was inappropriate. And qualified immunity does not apply under Malley v. Briggs, 475 U.S. 335 (1986), when an arrest warrant is so lacking in indicia of probable cause to render official belief in its existence unreasonable.

There was a dissenting opinion in this case that said the officer was entitled to qualified immunity because the evidence reflected that reasonable minds could disagree about the existence of probable cause to arrest.

Whether there will be further legal proceedings in this case remains to be seen.

Comments. Although courts often give significant weight to a judicial official’s issuance of an arrest warrant in deciding whether an officer is entitled to summary judgment on the issuance of probable cause, this case is a reminder that summary judgment will not be granted in all cases. Officers need to be aware of their obligation to conduct a sufficient investigation to avoid the ruling that was issued in this case.

The post Fourth Circuit Court of Appeals Rules That an Officer Was Not Entitled to Summary Judgment in a Civil Lawsuit for an Arrest Allegedly Made Without Probable Cause appeared first on North Carolina Criminal Law.

Summary: In its March 6 opinion in Pena-Rodriguez v. Colorado, the U.S. Supreme Court carved out an exception to the “no impeachment” rule for cases in which a juror makes a clear statement that he or she relied on racial bias in voting to convict a criminal defendant. In such cases, the evidentiary rule preventing the court from hearing juror testimony about statements made during deliberations must give way so that the court may consider whether the alleged racial bias violated the defendant’s Sixth Amendment right to a fair trial. We may be opening ourselves up to accusations that we are seeking to extend our moment in the spotlight by blogging about this case: as mentioned in last week’s News Roundup, the manual we co-authored, Raising Issues of Race in North Carolina Criminal Cases, was cited by Justice Alito in his dissenting opinion. However, as this opinion marks the beginning of a new chapter in the centuries old “no impeachment” rule, it’s important for North Carolina practitioners to understand its implications.

Facts and Procedural History: Petitioner Pena-Rodriguez worked at a horse racing track. One evening, he allegedly entered the bathroom in a barn while two teenaged girls were inside and sexually assaulted them. The state of Colorado charged petitioner with harassment, unlawful sexual contact, and attempted sexual assault on a child.

The jury found petitioner guilty of unlawful sexual contact and harassment. After the jury was discharged, petitioner’s lawyer entered the jury room to see if any of the jurors would be willing to discuss the case. Two jurors revealed that during deliberations, another juror, a former law enforcement officer with the initials H.C., had made a number of anti-Hispanic statements about petitioner and his alibi witness. For example, according to the two jurors, H.C. said, “‘I think [petitioner] did it because he’s Mexican and Mexican men take whatever they want.’” Slip op. at 4.

Defense counsel obtained affidavits from the two jurors who had disclosed H.C.’s statements, presented the affidavits to the trial judge, and moved for a new trial. However, the trial judge denied the motion on the ground that “deliberations that occur among the jurors are protected from inquiry under [Colorado Rule of Evidence] 606(b).” Slip op. at 4. A divided panel of the Colorado Court of Appeals affirmed, and the Colorado Supreme Court affirmed in a 4-3 vote.

The Rule: Like Federal Rule of Evidence 606(b), Colorado Rule of Evidence 606(b) is a “no-impeachment rule.” Generally, no-impeachment rules prevent attorneys from trying to overturn the jury’s verdict by offering testimony from jurors about what was said during deliberations. For centuries, such rules have served to protect the finality of jury verdicts and insulate jurors from questions about who said what in the jury room. Colorado’s no-impeachment rule follows the federal rule, which prohibits jurors from testifying about any statements or incidents during deliberations with narrow exceptions where the jury considered extraneous prejudicial information, was subjected to outside influences, or made a mistake on the verdict form.

Issue and Holding: For the first time, the US Supreme Court addressed “whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” Slip. op. at 2. The Court held that the Sixth Amendment requires an exception to the no-impeachment rule in these circumstances, allowing the trial court to consider a juror’s testimony and any resulting denial of the jury trial guarantee. Id. at 17. If the court determines that the defendant was denied his Sixth Amendment right to a fair jury trial because the jury’s decision was tainted by racial bias, the court may grant a motion for a new trial and set aside the verdict. Id. at 20.

Analysis: Since the adoption of the Federal Rules of Evidence in 1975, the Supreme Court has considered whether to make an exception to the 606(b) no-impeachment rule to protect the Sixth Amendment trial right in two cases, and declined to do so in both. First, in Tanner v. U.S., 483 U.S. 107 (1987), two jurors revealed after the trial that other jurors were intoxicated during the trial. The Court refused to allow post-verdict inquiry and identified four safeguards that were already in place to protect a defendant’s Sixth Amendment rights: 1) jurors can be examined during voir dire, 2) jurors can be observed during trial by court actors, 3) jurors can observe each other and report inappropriate behavior to the judge before they render a verdict, and 4) after the trial, counsel may offer evidence of misconduct by jurors, other than testimony of jurors. Id. at 127. The second case, Warger v. Shauers, 574 U.S. ___ , 135 S. Ct. 521 (2014), involved a motorcycle crash. After the verdict, jurors disclosed that the foreperson made misrepresentations during voir dire, saying she could be fair and impartial when, in fact, she was opposed to lawsuits like the one in question because her daughter had once caused a deadly car crash. The Court held that even where jurors lie during voir dire, the right to an impartial jury can still be protected via Tanner safeguards 3. and 4.

The Court distinguished the present case from Tanner and Warger, concluding essentially that race is different. According to the majority, allowing a conviction based on racial bias to stand “would risk systemic injury to the administration of justice.” Slip op. at 15-16. The Sixth Amendment interests are profound where racial bias is at play, as it “implicates unique historical, constitutional, and institutional concerns.” Id. at 16. Additionally, the Court stated that the Tanner safeguards might prove inadequate in the context of racial bias. For example, jurors may be reluctant to report racially biased statements made by other jurors before a verdict is reached; an act that would essentially entail interrupting deliberations to tell the judge that another juror is making racist comments. The majority questioned whether exploring racial bias during voir dire is effective; observing that generic questions might not expose biases while pointed questions might exacerbate prejudice. Justice Alito expressed a different view in his dissent, described below.

North Carolina’s No-Impeachment Rule: North Carolina’s no impeachment rule in Rule of Evidence 606(b) is similar to Colorado’s in all relevant respects. Even before the state adopted Rule 606(b), North Carolina courts recognized the common law rule requiring that evidence of juror misconduct “must come from a source other than the jury.” Cummings v. Ortega, 365 N.C. 262, 272 (2011). Consistent with the Colorado Supreme Court’s observation in Pena-Rodriguez, North Carolina has never observed a “dividing line between different types of juror bias or misconduct,” and therefore has never recognized an exception to the rule in cases where a juror states during deliberations that he or she is relying on racial bias in his or her determination of guilt. Pena-Rodriguez v. Colorado, 350 P. 3d 287, 293 (2015). Following the court’s ruling in Pena-Rodriguez v. Colorado, of course, North Carolina courts must now recognize this exception.

Missed Opportunity to Explore Racial Bias during Voir Dire: Based on the court’s description of jury selection in this case, it does not appear that defense counsel thoroughly explored issues of racial bias during voir dire. Instead, the defense attorney relied on general questions about potential jurors’ ability to be fair, which jury experts find unlikely to evoke frank discussions of bias. This area of inquiry may have been neglected if the circumstances of the crime did not suggest that race or ethnicity were explicitly at issue in the case. However, some implicit bias experts caution that trials without salient racial issues actually may be more likely to result in judgments tainted by bias, as jurors may not be consciously monitoring their behavior for signs of prejudice. It was for this reason that we suggested in Raising Issues of Race in North Carolina Criminal Cases that attorneys “should devise a plan for addressing issues of race in all cases in which race may potentially be a factor, not only those in which race appears to have played a role in the commission, investigation, or prosecution of the offense.” (Section 8.2B: Strategies for Addressing Race).

Significance of Justice Alito’s Dissent: The dissent authored by Justice Alito and joined by Chief Justice Roberts and Justice Thomas expressed concerns about violating the confidentiality of jury deliberations. Alito, J., dissenting, slip op. at 2 (stating that the Court’s holding “pries open the door” of the jury room). Justice Alito asserted that the safeguards set out in Tanner are adequate to protect a defendant’s Sixth Amendment rights, including when a juror is motivated by racial bias. In particular, voir dire was identified as an effective mechanism for revealing racial prejudice. Justice Alito observed that not only do attorneys have tools such as questionnaires and individual questioning, but they can also avail themselves of practice guides “replete with advice on conducting effective voir dire on the subject of race.” Alito, J., dissenting, slip op. at 12. In footnote 8, Raising Issues of Race in North Carolina Criminal Cases is provided as an example of a manual that provides strategies and sample questions.

Although Justice Alito dissented from the majority opinion, his analysis normalizes the topic of racial bias as a legitimate area of questioning when selecting a jury. Justice Alito cites US Supreme Court decisions for the proposition that “voir dire on the subject of race is constitutionally required in some cases, mandated as a matter of federal supervisory authority in others, and typically advisable in any case if a defendant requests it.” Alito, J., dissenting, slip op. at 13-14 (emphasis added). Justice Alito recognizes social science research suggesting that, rather than reinforcing prejudice, making race salient may cause bias to recede. Alito, J., dissenting, fn 9 (citing authorities).

In training attorneys across North Carolina, we’ve heard stories from attorneys that they sometimes have been stopped by trial judges when they attempted to discuss race with potential jurors. Justice Alito’s dissent in this case clarifies that racial bias is an appropriate area of inquiry and an important safeguard of the right to a fair trial. Alito, J., dissenting, slip op. at 13-14.

Inspirational Quotes: The majority opinion is full of poetic testaments to the principles of equality, dignity, and the vital role of the jury in democratizing the justice system. We’ll leave you with a few of the most memorable:

• “It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.” Slip op. at 13.

• “The jury is a central foundation of our justice system and our democracy. . . . The jury is a tangible implementation of the principle that the law comes from the people.” at 1.

• “An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.” at 16.

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