North Carolina Criminal Law is a UNC School of Government Blog. The purpose of the blog is to disseminate information about, and to serve as a forum for the discussion of, North Carolina criminal law and procedure and related topics.
Governor Roy Cooper announced this week that he will appoint North Carolina Supreme Court Associate Justice Cheri Beasley to replace Mark Martin as Chief Justice when he steps down from the bench later this month. She will be the first black woman to serve as Chief Justice in North Carolina. Beasley has been on the Supreme Court since 2012, and prior to joining the court she served on the North Carolina Court of Appeals and as a District Court Judge in Cumberland County. Cooper will appoint another person to Beasley’s current seat at some point in the future. Keep reading for more news.
Newby Criticizes Cooper. Senior Associate Justice Paul Newby said on Twitter that Cooper’s decision to not appoint him as Chief Justice was a partisan choice that erodes public trust and confidence in a fair judiciary. In the past, the court’s Senior Associate Justice usually has been appointed to fill Chief Justice vacancies, though Governor Jim Martin broke with that tradition in 1986 when he appointed Associate Justice Rhonda Billings as Chief Justice. Newby has said that he will run for Chief Justice in 2020.
FBI Most Wanted. As WRAL reports, a man on the FBI Most Wanted List was shot and killed by an FBI agent this week at a Woodspring Suites hotel in Apex, following an Apex police officer’s investigation of a suspicious car in the hotel parking lot. Greg Alyn Carlson was on the list because he was suspected of multiple armed sexual assaults in California. Carlson posted a $1 million bond in late 2017 by putting his mother’s South Carolina home up as collateral. Soon thereafter he was spotted in various states in the Southeast, at one point escaping a high-speed chase in Alabama. The WRAL report says it currently is unclear whether Carlson was involved in any crimes in North Carolina.
Greensboro Police Controversy. The Greensboro News & Record reports that several city residents told the City Council that they believed Police Chief Wayne Scott should be relieved of his position because of the department’s actions in connection with the death of Marcus Deon Smith while in police custody last year. A previous News Roundup has details of that incident. The citizens told the City Council that in their view the police department had released erroneous or misleading news about Smith’s death. Greensboro Mayor Nancy Vaughn and members of the City Council have said that they see no basis for firing Scott.
El Chapo. Joaquín Guzmán Loera, better known by his nickname El Chapo, was convicted this week in New York on various charges arising from his role as the leader of a Mexican cartel that trafficked massive amounts of drugs into the United States. This New York Times story details the convictions and also has links to other stories from the paper that were published over the course of the three-month trial. This USA Today report says that Guzmán likely will be imprisoned at a federal detention facility known as ADX in Florence, Colorado. The facility currently houses Ted Kaczynski, Dzhokhar Tsarnaev, Terry Nichols and other high profile offenders.
Wrong Car. If you decide to break into car, you probably should try to avoid choosing one that belongs to a person who goes by the nickname “Armahgeddon.” The Charlotte Observer reports that Daniel Cagle’s day of criminal activity earlier this month took an unpleasant turn when he was “snatched up,” wrestled to the ground, and put in an “arm bar” by Panthers fullback Alex Armah as he tried to break into Armah’s car.
Wrong Car, Again. If you decide to break into car, you probably should try to avoid choosing one that you can’t drive. Motoring news outlet Jalopnik reports that a hapless band of Alabama criminals were foiled in their effort to steal a Honda Civic that had its keys inside when they were stymied by the car’s manual transmission. According to the report, one member of the crew also had been unsuccessful in robbing a convenience store earlier in the day because the cashier didn’t take him seriously. Upon being rebuffed, he apparently purchased a six pack of beer and left the store.
Bail reform is a hot topic in North Carolina. It was recommended by Chief Justice Mark Martin’s North Carolina Commission on the Administration of Law and Justice (report here) and jurisdictions across the state are embarking on reform. In this post I discuss some of the reasons why stakeholders are interested in the issue. In a companion post, I discuss reforms that they are implementing and evaluating.
One reason for the interest in bail reform is a concern that the current system undermines public safety. Although North Carolina law provides for five different conditions of pretrial release, the most commonly imposed condition is the secured bond. Because a secured bond requires money to obtain release, money plays a significant role in North Carolina’s pretrial justice system. As a result, wealthy but high-risk defendants can “buy” their way out of jail. Consider the drug trafficking defendant who receives a $2 million secured bond. If that defendant has financial resources he can post the bond himself or pay a bondsman to secure it. Either way the defendant walks out of jail and the bond is not forfeited if he engages in further drug crimes or kills or intimidates witnesses so that he can’t be brought to trial on the original charges. Because the bond only is forfeited if the defendant fails to appear in court, nothing inherent in the bond protects the public. It is argued that this type of under-supervision of dangerous defendants undermines public safety. Moreover, some assert that the system undermines public safety by over-supervising low risk defendants, by for example requiring them to report in or submit to drug testing. Some research shows that low risk defendants perform better on release–meaning fewer rearrests–when they are released without conditions. Thus, it is argued, placing conditions of release on these defendants undermines public safety. Additionally, some evidence shows that pretrial detention creates crime. A lot of people sit in jail pretrial for some period of time because they can’t pay their secured bonds. A number of studies show that low risk individuals who are detained pretrial are more likely to commit new crimes following release. For example, a recent study of almost 400,000 misdemeanor cases in Harris County, Texas (the third largest county in the nation) found that although detention reduced criminal activity in the short-term through incapacitation, by 18 months post-hearing, detention is associated with a 30% increase in new felony charges and a 20% increase in new misdemeanor charges. Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stanford Law Review 711, 718 (2017) [hereinafter Downstream Consequences]. These differences persisted even after fully controlling for the initial bail amount, offense, demographic information, and criminal history characteristics. Id. at 717-18 Studies like this have amplified concerns about the negative impact pretrial detention has for public safety.
Another reason for interest in bail reform is cost. One aspect of cost is providing jail beds for defendants who are detained pretrial. On any given day US jails house nearly 500,000 pretrial detainees at a cost of about $14 billion a year. If these pretrial detention costs were necessary for public safety, few would object to them—for example if the evidence showed that jails were filled with the highest risk defendants who cannot safely be released into the community. The evidence however shows that we are detaining surprisingly high numbers of defendants charged with low level crimes. The Texas study noted above found that more than half of all misdemeanor defendants are detained pretrial. Researchers report similar numbers in other jurisdictions. Thus, advocates for reform argue: we are spending enormous sums of money detaining the wrong people. One alternative to pretrial detention is release or release with supervision. Even when the cost of pretrial supervision is considered, significant savings can be achieved by reducing incarceration of low-risk defendants. Additionally, as noted, research shows that pretrial detention of low-risk defendants causes crime. That crime has costs too–to victims, law enforcement, and the justice system.
Another reason for interest in pretrial justice reform is fairness. For decades researchers confirmed the prominent role of wealth in the pretrial system, specifically, that whether a person is detained pretrial depends largely on whether he or she can afford to pay the bond imposed. This appears to be true even when relatively low amounts are required to secure release. For example one study found that in Philadelphia almost half of defendants who only needed to post a $500 deposit to obtain release failed to do so within three days of the bail hearing. Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Affects Case Outcomes, Journal of Law, Economics & Organization (forthcoming) (manuscript at 10-11) [hereinafter Distortion of Justice]. That researcher noted that while a percentage may prefer to stay in jail, it is reasonable to infer that many would post bail if they could afford it. Additionally, the Texas study noted above found that only about 30% of defendants from the wealthiest ZIP codes were detained pretrial versus 60-70% of defendants from the poorest ones. Downstream Consequences at 737. As the United States Court of Appeals for the Fifth Circuit stated in a case declaring the bail system in Harris County, Texas unconstitutional: The system causes “[a] . . . basic injustice: poor arrestees . . . are incarcerated where similarly situated wealthy arrestees are not, solely because the indigent cannot afford to pay a secured bond.” ODonnell v. Harris County, 892 F.3d 147, 162 (5th Cir. 2018). Additionally, research suggests that pretrial detention increases the likelihood of conviction, of receiving a sentence to prison or jail, and the length of sentence to prison or jail. For example, the Texas study found that compared to similarly situated defendants who are released, misdemeanor defendants who are detained are 25% more likely to be convicted; 43% more likely to be sentenced to jail; and on average their sentences are nine days longer, more than double that of similar defendants who were released pretrial. Downstream Consequences at 717. Similarly, a Philadelphia study found that pretrial detention leads to a 13% increase in the likelihood of being convicted and 42% increase in the length of sentence. Distortion of Justice at 3. These studies are consistent with other research finding substantial correlations between pretrial detention and these negative case outcomes. Additionally, there are concerns about coerced pleas. Research as early as 1964 shows that pretrial detention increases the likelihood that a defendant will plead guilty. The Texas study found that pretrial detention increases the likelihood of pleading guilty by 25% for no reason relevant to guilt. Downstream Consequences at 771.
Racial & Ethnic Disparities
Another reason to engage in pretrial justice reform is to address racial and ethnic disparities. Nationwide, Black defendants make up 35% of the pretrial detainee population despite constituting only 13% of the US population. In fact, racial and ethnic disparities in pretrial outcomes have been well documented.
A final reason for interest in pretrial justice reform is litigation risk. Opponents of money-based bail systems have successfully brought litigation throughout the country. For example, last June the Fifth Circuit held unconstitutional the bail system in Harris County, Texas, finding that it violated indigent arrestees’ right to equal protection. It explained:
“[T]he essence of the district court’s equal protection analysis can be boiled down to the following: take two misdemeanor arrestees who are identical in every way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent. Applying the County’s current custom and practice, with their lack of individualized assessment and mechanical application of the secured bail schedule, both arrestees would almost certainly receive identical secured bail amounts. One arrestee is able to post bond, and the other is not. As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration. The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart. The district court held that this state of affairs violates the equal protection clause, and we agree.”
ODonnell, 892 F.3d at 163. Cases like this have amplified concerns about money-based bail systems.
Having presented this outline of why stakeholders are interested in pretrial reform, in my next post I’ll discuss the types of pretrial reforms that stakeholders are implementing and evaluating.
I spent a few years working on drug cases when I was a prosecutor, so I was generally aware that North Carolina has a set of laws that impose taxes on “unauthorized substances.” See G.S. 105-113.105 – 113. Just like cigarettes, cars, or blue jeans, these unauthorized substances are commodities that people buy and sell, so they are subject to taxation by the state.
I was also aware that, not surprisingly, virtually no one pays these taxes or obtains the appropriate “tax stamps” to put on their drugs and moonshine. Instead, the laws are used primarily as a mechanism to pursue civil forfeiture of a defendant’s assets after he or she is convicted of a drug offense.
But recently, I began to wonder – are these laws purely theoretical? Is it even possible for drug dealers to comply? Does the Department of Revenue keep big rolls of stamps behind the counter, like a post office? What would happen if someone walked into a Revenue office one day and said “hello, will you sell me some tax stamps for illegal substances, please?”
I wanted to find out, so that’s exactly what I did.
Overview of Drug Tax Laws
If you’re curious about these laws, the Department of Revenue has a helpful FAQ available here.
Briefly, these laws only apply to a “dealer,” which is defined as a person who possesses more than X amount of certain drugs (e.g., 42.5 grams of marijuana, 7 grams of a drug sold by weight such as cocaine, 10 doses or more of a drug that is not sold by weight such as LSD, or any amount of an illicit spirituous liquor such as moonshine). See G.S. 105-113.106. If a person is in possession of the minimum amount, then he or she is obligated to pay taxes on that substance within 48 hours of when it first came into his or her possession (excluding weekends and holidays), pursuant to the statutory rate schedule (e.g., $50 per gram of cocaine, or $12.80 per gallon of liquor not sold by the drink). See G.S. 105-113.107; 113.109. The Department has this handy reference chart of tax rates available online.
Once the tax has been paid, and a tax stamp issued by the Department has been “permanently affixed” to the substance, no further tax is due – even if the substance later changes hands. See G.S. 105-113.108; 113.109. As noted above, if a dealer fails to pay the tax when it’s due, he or she is subject to an “assessment” (including penalties and interest, which can be as high as 40%) to recover the unpaid tax. See G.S. 105-113.111 (“The Secretary shall use all means available to collect the tax, penalty and interest from any property in which the dealer has a legal, equitable, or beneficial interest”).
Of course, paying the tax does not change the fact that the substances themselves are still illegal, and the person in possession of that substance remains subject to criminal prosecution. See G.S. 105-113.105. Therefore, to facilitate compliance with the tax laws, dealers are not required to give their name, address, or any other personal identifying information in order to obtain stamps. See G.S. 105-113.108. Furthermore, any information obtained by the Department in the course of administering these laws is considered confidential tax information, and it may not be used in a criminal prosecution; in fact, any agent or employee who violates this prohibition is guilty of a Class 1 misdemeanor. See G.S. 105-113.112; State v. Stimson, 246 N.C. App. 708 (2016).
What About Double Jeopardy and the 5th Amendment?
The tax rates set by an early version of the law were so high ($200,000 per kilogram of cocaine) that the Fourth Circuit held it constituted a criminal punishment, which would implicate double jeopardy. See Lynn v. West, 134 F.3d 582 (4th Cir. 1998). But the rates were revised down, and subsequent North Carolina cases have pretty consistently held that this is a civil remedy, not a criminal penalty, and it passes constitutional muster on double jeopardy and self-incrimination grounds. See, e.g., North Carolina School Board Ass’n v. Moore, 359 N.C. 474 (2005); State v. Woods, 136 N.C. App. 386 (2000); State v. Adams, 132 N.C. App. 819 (1999); Milligan v. State, 135 N.C. App. 781 (1999).
The Court of Appeals summed it up this way: “In our view, the North Carolina statute is a legitimate and remedial effort to recover revenue from those persons who would otherwise escape taxation when engaging in the highly profitable, but illicit and sometimes deadly activity of possessing, delivering, selling or manufacturing large quantities of controlled drugs.” State v. Ballenger, 123 N.C. App. 179 (1996).
Do These Laws Actually Work?
Well, that depends on what we mean by “work.” Do they generate money for the state? Absolutely – as shown in this summary report covering 2002-2016, the total revenue generated by these taxes typically ranges from a low of around $6 million to a high of around $11 million per year (by my estimation, the total is somewhere around $175 million since the program began). By statute, 75% of this revenue goes back to the law enforcement agency that conducted the investigation which led to the assessment, and the remaining 25% goes into the state’s general fund. See G.S. 105-113.113; see also G.S. 105-113.108(b) (law enforcement agencies must report drug seizures and related arrests to the Department involving unauthorized substances “upon which a stamp has not been affixed as required by this Article”).
However, if by “work” we mean “are drug dealers purchasing tax stamps and permanently affixing them to their unauthorized substances in a timely fashion,” the answer, of course, is no. In this WRAL interview, the Director of Tax Enforcement for the Department of Revenue, Cale Johnson, explained that out of the 5,000 to 6,000 cases they handle every year, they have only received a grand total of 109 orders for stamps since the program began back in the 1990s, and they “believe a majority of those orders were from stamp collectors.” That interview was given in 2010, so the total may be a little higher today, but clearly the number of people buying stamps is only a tiny fraction of the total cases. The rest of them are “assessments” on dealers who failed to buy their stamps.
What Happened When I Tried to Buy Stamps
Just to be clear, I am not currently in possession of any unauthorized substances, nor do I plan to be. But I wanted to see how well the process would work for someone who was genuinely trying to comply with the law. So on a Thursday afternoon, around 1:30 p.m., I stopped by my local Revenue office to find out. It was located in a nondescript shopping center behind a Korean BBQ restaurant.
Although the statutes say that a person can obtain tax stamps anonymously, I quickly ran into my first obstacle on that issue. As soon as I walked in the door of the Revenue office, I saw a table with a sign instructing me to fill out a form with my name, social security number, address, phone number, and the reason for my visit. I was instructed to give that form to the clerk at the window, and then wait to be called up.
I filled out the form, and in a minute or two a very nice clerk called me up to the window and said “how can I help you?” I said “Good afternoon, do you sell unauthorized substance tax stamps here?” Her eyes got very wide, she hesitated a little, and said “uh… no. Maybe downtown at the main office, but I don’t think so. Here, call this number and ask them.” She wrote down the phone number for the Unauthorized Substance Tax Section on a post-it note and handed it to me. I don’t know what happened to my sign-in form after I left.
I stepped outside and called the number she gave me. A woman answered, and I said I had a question about buying unauthorized substance tax stamps. She asked me what my pending case number was? I explained that no, there is no pending forfeiture case – I’m just interested in buying some actual stamps? (Pause…) She said I would have to talk to a director about that, but if I will leave my name and home phone number, somebody will call me back.
About 30 minutes later, I got a call back from a Charlotte number, and a woman who introduced herself as “Look, I’m just a secretary here” said that I should go on their website and search for Form BD-1, print it out, fill it in, mail it to their office, and I could get the tax stamps sent back to me. I asked if there was any way to get them in person, today? She said not that I’m aware of.
I searched online and realized there are actually two forms. The first form, BD-1, is for illegal drugs like marijuana and cocaine. The second form, BD-1L, is for illicit spirituous liquors. Both forms ask the applicant to fill out his or her name, phone number, and mailing address. (After all, how else will they send the stamps back to you?) Then the form cites to the statute that says a person is not required to give his or her name, address, or any other identifying information in order to buy stamps.
G.S. 105-113.109 states that the tax is due within 48 hours of whenever the drugs come into a dealer’s possession, so it is a little difficult to see how ordering stamps through the mail (anonymously or otherwise) would enable a dealer to fully comply. Thinking that I may have missed something, I called back again the next day just to follow-up and make sure there were no other options for acquiring the stamps in person, or on a shorter time-frame? This time I was told that it used to be possible to purchase stamps directly at the main office in Raleigh, but they don’t do that anymore. As far as she knew, the BD-1 and BD-1L forms are the only option now.
End of the Road
I’d really like to have a couple stamps to keep in my office as a curiosity, but I’m hesitant to take the final step of filling out the form and mailing it in. I am not aware of any law that would prohibit me from voluntarily paying a tax I don’t owe just to get the stamps, but my instinct tells me that it’s probably not a smart career move to end up on that list.
I doubt there is much sympathy out there for drug dealers who end up facing a hefty tax assessment with added penalties and interest, but I do have to wonder whether some of the cases interpreting these laws might be based, at least in part, on an underlying assumption that the dealer could have easily and anonymously complied with the law and simply failed to do so. My personal experience suggests that compliance with these laws may not be quite as easy as it sounds.
Thanks to SOG Defender Educator Phil Dixon for his assistance with this post.
A bill has been introduced in the legislature that would allow for GPS tracking of domestic violence offenders. Has that been tried elsewhere? Would it be constitutional? Would it open the door to tracking other types of people? This post tackles those questions.
The bill. House Bill 41 provides in part that “[t]he North Carolina Department of Public Safety, in consultation with local law enforcement agencies, the courts, and other appropriate local entities, shall conduct a pilot program for the use of [GPS] tracking devices on domestic violence offenders. The pilot program shall be conducted in Forsyth County.” Though the details of the program would be determined by the participating agencies, the general idea is to track some or all “offenders who violate a domestic violence protective order.”
This would go beyond provisions in current law. Current law allows defendants with pending charges to be released under “[h]ouse arrest with electronic monitoring.” G.S. 15A-534 (a)(5). It also allows defendants on probation to be required to remain at home, enforced by electronic monitoring. G.S. 15A-1343(b1)(3c). By contrast, the pilot program seemingly would not be limited to defendants awaiting trial or to offenders on probation, and it would not be limited to persons ordered to remain at home.
As an aside, for defendants or offenders who are subject to a domestic violence protective order, current G.S. 50B-3(a)(13) states that a DVPO may include “any additional prohibitions or requirements the court deems necessary to protect any party or any minor child.” However, I’m not aware of that provision having been used to justify GPS monitoring.
Other states.According to Diane Rosenfeld, the Director of the Gender Violence Program at Harvard Law School, at least 23 states already use GPS to track some domestic violence offenders, with at least 11 more states considering similar measures. An opinion piece in Wired argues that the GPS programs have been successful in safeguarding victims.
Different states have different programs. For example, most allow monitoring only of defendants convicted of violating a protective order or committing a domestic violence crime, but a few allow a judge to order monitoring when issuing a DVPO. See Fred Medick, Domestic Violence Defendants’ Jury Trial Rights in GPS Monitoring, 43 Harv. Civ. Rights-Civ. Lib. L. Rev. 277 (2008) (“These laws usually permit GPS monitoring only after the defendant has violated a protective order.”); Natalie Fox Malone, Note, GPS Monitoring of Domestic Violence Offenders in Tennessee: Generating Problems Surreptitiously, 43 U. Memphis L. Rev. 171 (2012) (noting that Louisiana and Ohio allow GPS monitoring to be ordered in an initial DVPO). States also vary regarding the duration of GPS monitoring, though it seems often to be on the order of a year or two.
Legal issues. Using a GPS tracking device to monitor a person is a search under the Fourth Amendment. See United States v. Jones, 565 U.S. 400 (2012) (“We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”); Grady v. North Carolina, __ U.S. __, 135 S.Ct. 1368 (2015) (holding that GPS monitoring of sex offenders “is plainly designed to obtain information . . . by physically intruding on a subject’s body,” and therefore “effects a Fourth Amendment search”). In the context of GPS monitoring of sex offenders, the appellate courts have so far set a relatively high bar for allowing such searches. Jamie Markham noted in a blog post last year that there haven’t been any reported appellate decisions finding GPS monitoring of a convicted sex offender to be constitutional, though that may change as prosecutors become more accustomed to presenting evidence to support the individualized need for monitoring.
It may be similarly difficult for the state to establish that GPS monitoring of a domestic violence offender is lawful. But some domestic violence cases involve repeated abuse, express threats, and other factors that may tend to support monitoring. Even though GPS monitoring of domestic violence offenders is permitted in many other states, I couldn’t locate a reported case addressing the Fourth Amendment issues associated with such monitoring.
Other offenders? There is a trend towards expanding the use of GPS tracking in the criminal justice system. Nationally, the Pew Public Safety Performance Project reports that “[t]he number of accused and convicted criminal offenders monitored with electronic tracking devices in the United States increased 140 percent between 2005 and 2015, from approximately 53,000 to more than 125,000.” In North Carolina, GPS tracking is used for some sex offenders and for some defendants on pretrial release. Perhaps soon it will be used for tracking domestic violence offenders after conviction. It’s easy to imagine arguments for using it to track other violent offenders, including defendants convicted of gang offenses and defendants convicted of child abuse offenses.
Is this a slippery slope? The privacy-minded Electronic Frontier Foundation argues that “[a]ll too often, new police surveillance tools are initially applied only to the ‘worst of the worst’ and then slowly – but surely – expanded to include an ever-growing number of less culpable individuals. . . . [W]e’re starting to see it with GPS tracking.” The contrary view is that there is nothing nefarious about a successful tool being used more often.
Further reading.This post associated with the Richmond Journal of Law and Technology dives a little deeper into some of the legal and practical issues associated with GPS tracking in domestic violence cases. And if you’re interested in ancient history, I wrote this post way back in 2009 about GPS monitoring in domestic violence cases.
As the News & Observer and the Charlotte Observer report, dozens of people across North Carolina have been arrested this week by federal Immigrations and Customs Enforcement officers. In Sanford, 27 people were arrested in a raid of Bear Creek Arsenal, a firearms manufacturer. Lee County Sheriff Tracy Carter said that the investigation at Bear Creek was focused on identity theft and fraud. A few hours after the Sanford raid, undercover ICE agents arrested several people in a series of traffic stops in Charlotte. ICE spokespersons said that the incidents were not part of a coordinated effort. At the end of last year, ICE said that it planned to increase its presence in the Raleigh area in response to Wake Sheriff Gerald Baker’s decision to end the county’s cooperation with ICE detainer requests.
Warren Resigns. Judge Marrion R. Warren announced this week that he will resign as director of the N.C. Administrative Office of the Courts after serving in the North Carolina Judicial Branch for 26 years. Warren will become senior associate dean of Regent University School of Law, joining Chief Justice Mark Martin at the school. Martin appointed McKinley Wooten to serve as interim director of the AOC effective February 28.
Forsyth to End ICE Contract. The Winston-Salem Journal reports that Forsyth County Sheriff Bobby Kimbrough Jr. announced on Tuesday that his office will end a contract with ICE that permits the federal agency to detain suspected undocumented immigrants in the county jail. The contract is set to expire on April 30, at which point the jail will no longer accept people detained by ICE for civil violations of federal immigration law.
Cold Case Break. The News & Observer reports that an Orange County cold case has been solved after 20 years thanks to DNA evidence. In September of 1998, a boy’s remains were discovered near a billboard on Interstate 40 in Hillsborough. The boy’s identity was unknown until DNA evidence allowed Orange County Sheriff’s Office Investigator Tim Horne, with the help of others, to determine that he was Robert “Bobby” Adam Whitt. Last week, Whitt’s father, who is serving a federal sentence or armed robbery, confessed to the killing.
Fentanyl Bust. Late last month U.S. Customs and Border Protection officials announced the agency’s biggest fentanyl seizure in history, finding 254 pounds of the drug in a secret compartment in a load of produce carried in a tractor-trailer bound for Arizona. The previous largest fentanyl seizure was in August of 2017 when 154 pounds were found in a New York city apartment linked to a Mexican drug cartel.
Buncombe Receives Settlement Payments. WLOS reports that Buncombe County has received nearly $1 million from Wanda Greene and Jon Creighton, payments that are part of a civil settlement arising from the former county officials’ corrupt actions while in office. Greene paid the county $750,000 and Creighton paid $189,000. The county still is pursuing a civil suit against former county manager Mandy Stone and former county contractor Joseph Wiseman.
Actor Targeted in Hate Attack. The Associated Press reports that Jussie Smollett, an actor in the television show “Empire,” was the target of an apparent hate crime last week when he was attacked in downtown Chicago by two masked men who punched him while shouting racial and homophobic insults. The attackers also threw an unknown liquid onto Smollett and put a rope around his neck. No suspects had been apprehended at the time of writing. Smollett has been helping raise funds for Bennett College in Greensboro, one of only two all-women HBCUs in the country, as the school tries to maintain its accreditation in the face of financial difficulties.
Murderer Turned Attorney. The New York Times has an interesting story this week of a man who pleaded guilty to murder, spent two decades in prison, and earned a law degree from Tulane after being paroled. Though he has not passed the bar because it is unlikely that he could pass the character and fitness portion of the process, Bruce Reilly now works as the deputy director of a New Orleans organization that advocates for formerly incarcerated individuals.
Jeff Talks About the Blog. Earlier this week Jeff was interviewed on a WCHL 97.9 radio segment entitled “Focus Carolina,” a program that explores the work of UNC faculty members. Jeff talks about the early days of this blog – back when reaching 50 readers a day was a milestone. He also discusses the development of the North Carolina Prosecutors’ Resource Online (NC PRO), which you really should check out if you haven’t already. In the interview Jeff says that, contrary to his expectations, the transition from private attorney to university professor hasn’t involved him wearing tweed jackets. We’ve got a team fact checking that claim.
The Administrative Office of the Courts has issued its most recent report on cost waivers to the General Assembly. This report covers the first full year of cost waiver data since the General Assembly’s amendment of G.S. 7A-304(a), requiring written notice and an opportunity to be heard for any government entity directly affected by a waiver. Let’s see if that change had an impact on waiver practices.
The latest report is available here. The AOC is required by G.S. 7A-350 to make this report to the legislature annually, noting all cases in which a judge makes a finding of just cause to grant a waiver of criminal court costs. The report must aggregate the waivers by the district in which the waivers were granted and by the name of each judge granting a waiver. The statute does not require the AOC to report on remissions, civil judgments, or anything to do with fines. But it does.
Within this year’s report, you can see some stark differences from district to district when it comes to criminal money matters. For example, some counties waive much more often than others. Some make heavy use of civil judgments, while others use them sparingly.
Comparing the report to previous years, what you’d see is that the number of cases in which money is ordered has remained pretty stable, but the number of waivers has dropped. And it looks like civil judgments might be serving as a substitute for waivers in some cases, because they are on the rise.
For those who prefer a graphic, this one shows how often the Ordered, Waived, and Civil Judgment statuses were used relative to one another over the past three years.
This year’s report notes that it uses a different methodology for coding cases in which multiple statuses were entered, and it therefore cautions against year-on-year comparisons. Still, looking at the previous reports as a whole, I think it’s fair to say that the default of costs being ordered still predominates, and waivers might be on the decline.
I sometimes hear judges say their hands are tied when it comes to court costs and other monetary obligations. I understand that. With the requirement for just cause findings, and written notice and an opportunity to be heard for affected government entities, waivers are certainly more administratively burdensome than they used to be. But they are always permissible (aside from the $60 attorney appointment fee). And it is error for a judge to operate under the impression that he or she lacks discretion to waive costs. State v. Patterson, 223 N.C. App. 180 (2012). The bench card available here attempts to make some sense of the complicated web of rules related to imposing and forgiving various monetary obligations.
The court of appeals decided State v. Shelton, ___ N.C. App. ___ (2019) yesterday, determining that the evidence of the defendant’s impairment was sufficient when he took impairing drugs hours before crashing his vehicle into a pedestrian after his brakes failed. Two aspects of the case are of particular interest: (1) the court’s evaluation of the sufficiency of the evidence in a case where no one opined that the defendant was impaired; and (2) how the State obtained evidence that drugs remained in the defendant’s system in the first place.
Jury question from State v. Shelton
The morning of. When he awoke at 6:30 a.m. on July 22, 2015, Brian Shelton took his prescription oxycodone. He then drove his pickup truck from his home in Sneads Ferry to his job in Surf City. At 11 a.m., Shelton took tramadol, another drug that he had been prescribed. Both drugs had been prescribed with labels warning of their potential to cause drowsiness and dizziness and advising that care be taken when operating a vehicle.
The crash. As Shelton was driving home from work at 5:10 p.m., the sports utility vehicle (SUV) in front of him slowed to make a left turn. Shelton applied his brakes, but they failed. Shelton swerved to the right to avoid hitting the SUV and ran off the road. As he did so, he struck and killed Rhonda Anderson who had been standing near a group of mailboxes about three feet from the side of the road. The force of the impact caused Anderson’s body to fly nearly 20 yards through the air before hitting the ground. Shelton’s truck also hit the rear of the turning car, ripping off Shelton’s driver’s side mirror.
Shelton was apparently unaware that his truck had struck Anderson. He did realize, however, that he had been in a crash, and he also knew that he was driving with a revoked license. He left the scene and drove home, using the emergency brakes on his truck to bring it to a stop in his driveway.
The initial charges. A highway patrol trooper tracked Shelton down at his home at 6:45 p.m. Shelton spoke to the officer and wrote a written statement. He also submitted to a portable breath test that registered a 0.00. Later that evening, another trooper interviewed Shelton and informed him that he had struck and killed Anderson. The trooper cited Shelton for several offenses arising out of the accident, including misdemeanor death by vehicle and felony hit and run, but did not charge him with driving while impaired. Another trooper obtained a search warrant for Shelton’s blood, which he executed around 11 p.m. the evening of the crash. (More on that later.)
The blood test. The State Crime Lab analyzed Shelton’s blood and confirmed the presence of oxycodone and tramadol. The laboratory analyst determined that these drugs were present in at least the amount of 25 nanograms per milliliter– the lab’s detection limits – but did not determine the precise amounts of these substances or whether Shelton was impaired by them at the time of the crash.
The indictment. Shelton subsequently was indicted for second degree murder, felony death by vehicle, felony hit and run, driving while license revoked and several additional misdemeanor vehicle offenses.
The trial. An expert pharmacologist called by Shelton testified that he would not expect to see impairment from a person who had 25 nanograms per milliliter of both substances in his bloodstream and that people who frequently take oxycodone and tramadol develop “’a great deal of tolerance’” to the drugs. Slip op. at 8. Shelton moved to dismiss at the close of the State’s evidence and again at the close of all the evidence. The trial court denied the motions.
The verdict. The jury acquitted Shelton of second degree murder, but convicted him of involuntary manslaughter, felony death by vehicle, felony hit and run, driving while license revoked, misdemeanor death by vehicle, and driving with improper brakes. The trial court arrested judgment on the involuntary manslaughter and misdemeanor death by vehicle convictions. The judge sentenced Shelton to 73 to 100 months imprisonment for felony death by vehicle and to a consecutive sentence of 17 to 30 months for the remaining convictions.
The appeal. Shelton appealed, arguing in part that the trial court erred by denying his motion to dismiss the charge of felony death by vehicle.
Felony death by vehicle. A person commits the offense of felony death by vehicle if he drives while impaired and proximately causes the death of another person. Thus, there were two significant issues at Shelton’s trial: First, was he impaired? Second, if so, was that impairment the proximate cause of Anderson’s death?
Impairment. Shelton argued that there was no substantial evidence that he was impaired by oxycodone and/or tramadol at the time of the crash. He pointed out that the officers who met with him after the accident did not charge him with driving while impaired. The appellate court disagreed with Shelton’s assessment of the evidence, concluding that reasonable jurors could find that Shelton was impaired based on evidence that he consumed impairing drugs the day of the crash, evidence that those drugs were detected in Shelton’s blood after the crash and evidence regarding Shelton’s “lack of awareness of the circumstances around him and his conduct before and after the collision.” Slip op. at 12-13. The court noted that Shelton did not see Anderson standing on the side of the road whereas three eyewitnesses to the crash testified that they did see her before she was hit. Shelton also was unaware that he had struck Anderson, despite the force of the impact. And Shelton drove away from the scene in a vehicle that he knew lacked operable brakes.
Proximate cause. For Shelton to be convicted of felony death by vehicle, his impaired driving must have proximately caused Anderson’s death. To be the proximate cause of death, an act must have directly caused a death that was reasonably foreseeable under the circumstances. See State v. Pierce, 216 N.C. App. 377, 383 (2011).
Shelton argued that Anderson’s death was caused by the malfunctioning brakes on his truck and not by his alleged impaired driving. The appellate court reasoned that the two causes were not incompatible and that the faulty brakes did not preclude Shelton’s impaired driving from being a proximate cause. The court explained that the jury could have concluded that a non-impaired driver would have swerved left, as witnesses testified that there was no oncoming traffic, rather than swerving toward the side of the road where Anderson was standing.
Strict liability? Shelton argued that upholding his conviction for felony death by vehicle would create a strict liability standard for people who have consumed prescription drugs and are then involved in a crash caused by their negligent driving. Applied to different facts, some of the language in the court’s opinion supports such a concern. For example, the court states that “[t]he fact that a motorist has consumed impairing substances ‘when considered in connection with faulty driving or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of [G.S. 20-138.1].’” Slip op. at 12 (quoting State v. Norton, 213 N.C. App. 75, 79 (2011)). But elsewhere in the opinion, the court expresses a more nuanced view, stating that impairment may be shown through evidence that a defendant has “(1) ingested an impairing substance; and (2) operated his vehicle in a manner showing he was so oblivious to a visible risk of harm as to raise an inference that his senses were appreciably impaired.” Slip op. at 17. “[T]he circumstances of every case are different,” the court explained, “and not every accident involving a driver who has ingested prescription drugs will raise an inference that the driver was appreciably impaired.” Slip op. at 18.
What is missing. As I read Shelton, I wondered what the State asserted in the search warrant application for Shelton’s blood, given that the officers do not appear to have gathered evidence during their interactions with Shelton that suggested he was impaired. Shelton did not challenge the issuance of the search warrant on appeal, but the search warrant and the application therefor are contained in the record on appeal. As it turns out, the warrant was issued based on the following one-sentence statement: “[T]he defendant was involved in a motor vehicle collision where a violation of G.S. 20-141.4(a)(2) occurred.” (Record on Appeal at 11).
How could a search warrant issue based on a one-sentence statement that the defendant was involved in a collision where the offense of misdemeanor death by vehicle occurred?
G.S. 20-141.4(a)(2) sets forth the crime of misdemeanor death by vehicle, which is (1) unintentionally causing the death of another person, (2) while violating a State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic—other than impaired driving under G.S. 20-138.1—where (3) commission of the offense is the proximate cause of the death.
Despite the fact that the offense by definition does not involve impaired driving, it was defined as an implied consent offense by S.L. 2011-119. That legislative change authorized the implied consent testing of a person charged with misdemeanor death by vehicle. See G.S. 20-139.1(b5).
Thus, relying on the statutes alone and ignoring potential constitutional concerns about a scheme that calls for chemical testing without probable cause to believe that the person has committed an alcohol or drug-related offense, the officers could have asked Shelton to submit to a blood test. Had they done so and Shelton refused, G.S. 20-139.1(b)(5) provides that “a law enforcement officer with probable cause to believe that the offense involved impaired driving or was an alcohol-related offense made subject to the procedures of G.S. 20-16.2 shall seek a warrant to obtain a blood sample.” (emphasis added). There is no statutory authorization (nor could there constitutionally be) for the issuance of a warrant to draw a defendant’s blood based simply on the commission of the offense of misdemeanor death by vehicle.
The warrant appears to me to have been improperly issued, but, again, that issue was not raised before the court.
In self-defense cases, the defendant typically claims that the “victim” was actually the assailant and that the defendant needed to use force to defend himself, family, home, or other interests. Because of this role reversal, the rules of evidence allow the defendant to offer evidence to show that the victim was the assailant or at least that the defendant reasonably believed that the victim intended to do harm. In State v. Bass, ___ N.C. ___, 819 S.E.2d 322 (2018), the North Carolina Supreme Court clarified one form of evidence that a defendant may not offer about the victim in a self-defense case. This post reviews the evidence found impermissible in Bass as well as several types of evidence that remain permissible.
To make a long story short, the defendant, Bass, shot Fogg while the two were in the breezeway of Bass’s apartment complex. He relied on self-defense against the charges of attempted murder and assault with a deadly weapon with intent to kill inflicting serious injury. The jury convicted him of assault with a deadly weapon inflicting serious injury.
One issue concerned the jury instructions given by the trial judge. Although the judge instructed the jury on self-defense, he denied Bass’s request for an instruction that he did not have a duty to retreat in a place where he had a “lawful right to be,” as provided in G.S. 14-51.3 on defense of person. The judge reasoned that Bass was not entitled to the instruction because the breezeway was not within the curtilage of Bass’s home. The Court of Appeals reversed and granted a new trial, essentially finding that the statutory language means what it says—a person does not have a duty to retreat in a place where he has a lawful right to be, including a public place. I wrote a previous post about this aspect of the Court of Appeals’ decision. The Supreme Court affirmed, holding that when a defendant is entitled to a self-defense instruction, he “is entitled to a complete self-defense instruction, which includes the relevant stand-your-ground provision.” Slip Op. at 10, 819 S.E.2d at 326 (emphasis in original).
A second issue concerned the admissibility of testimony about previous violent acts by Fogg.
Williford, Fogg’s ex-girlfriend, would have testified that Fogg had, without provocation and in front of Williford’s three-year-old daughter, pulled a gun on Williford and choked her until she passed out. She also would have testified that Fogg beat her so badly that her eyes were swollen shut and she was left with a bruise reflecting an imprint of Fogg’s shoe on her back. Michael Bauman would have testified that, on one occasion, he witnessed Fogg punch his own dog in the face because it approached another individual for attention. On another occasion, Bauman encountered Fogg at a restaurant, where Fogg initiated a fight with Bauman and also “grabbed” and “threw” Bauman’s mother-in-law when she attempted to defuse the situation. Terry Harris would have testified that Fogg, a complete stranger to him, initiated a verbal altercation with him in a convenience store. Two or three weeks later, Fogg pulled over when he saw Harris walking on the side of the road and hit him until Harris was knocked unconscious. According to Harris, Fogg “[s]plit the side of [his] face” such that he required stitches. Slip Op. at 14–15, 819 S.E.2d at 328.
The trial judge excluded this testimony. The Court of Appeals held that the evidence was admissible in support of Bass’s defense that Fogg was the aggressor on the night Bass shot him. The Court of Appeals also held the trial judge erred in denying the defendant’s motion to continue after the prosecutor learned the night before trial of five additional instances of assaultive behavior by Fogg, which the prosecutor disclosed to defense counsel. The Supreme Court reversed, holding that the testimony offered by the defendant was inadmissible character evidence and that evidence of the additional acts would have been inadmissible for the same reason.
Evidence about the Victim
Character to show conduct. The rules on character evidence, the subject of the Supreme Court’s opinion, have several precise steps. Please bear with me.
Generally, evidence of a person’s character is not admissible to prove he “acted in conformity therewith on a particular occasion.” N.C. R. Ev. 404(a). In other words, a party may not offer evidence of a person’s past character to show that he committed the current deed. An exception to this general rule allows a defendant in a criminal case to offer evidence of “a pertinent trait of character of the victim.” N.C. R. Ev. 404(a)(2). The Supreme Court in Bass recognized that evidence of a victim’s violent character is pertinent and thus admissible in determining whether the victim was the aggressor in a case in which the defendant claims self-defense. Slip Op. at 13, 819 S.E.2d at 327.
The inquiry does not end there. North Carolina Rule of Evidence 405 specifies the forms of evidence that are permissible to show character, including violent character. Rule 405(a) allows reputation and opinion testimony in “all cases in which evidence of character or a trait of character of a person is admissible.” Thus, a witness who knows the victim can give an opinion that the victim is a violent person. However, Rule 405(b) only allows evidence of specific instances of conduct to show character when “character or a trait of character of a person is an essential element of a charge, claim, or defense.” Thus, a witness can testify that the victim engaged in specific acts of violence only if the victim’s character for violence is an essential element.
Here, the Court of Appeals and Supreme Court disagreed. The Court of Appeals held that whether the defendant or victim was the aggressor is an essential inquiry, or element, of self-defense. Rule 405(b) therefore allowed Bass to present evidence of specific acts of violence by Fogg to show that he had a violent character and therefore was the aggressor. The Supreme Court agreed that whether the defendant or victim was the aggressor is a central inquiry. However, to the Supreme Court, the determinative question under Rule 405(b) is whether the victim’s violent or aggressive character is an essential element, which is a different question than whether the victim was the aggressor in the current incident. The Supreme Court answered no. Accordingly, Fogg’s past acts were not admissible under Rule 405(b) to show that he was the aggressor. Contrary language in another recent Court of Appeals decision, State v. Greenfield, ___ N.C. App. ___, Slip Op. at 6–8 (Dec. 4, 2018), probably does not survive the ruling in Bass.
But wait, there’s more. Bass does not address or rule out other theories of admissibility of prior violent acts by the victim. These are discussed at greater length in Chapter 7 of my book The Law of Self-Defense in North Carolina (1996), which obviously has aged but still reflects the applicable evidence principles and includes cites to pertinent court decisions.
Known acts to show reasonable fear. If the defendant knows of prior violent acts by the victim, longstanding law in North Carolina recognizes that the defendant may offer evidence about the acts to show why he feared the victim and why his fear was reasonable. See, e.g., State v. Johnson, 270 N.C. 215, 218–20 (1970). The evidence is not subject to the limitations on character evidence because its relevance is to show the defendant’s state of mind and the reasonableness of his apprehension of the victim. The Bass decision, which dealt with prior acts by the victim that were not known by the defendant, does not affect this theory of admissibility. Another recent decision, in which the Court of Appeals relied on this type of evidence to show that the defendant reasonably believed it was necessary to use deadly force, should remain good law. See State v. Irabor, ___ N.C. App. ___, Slip Op. at 7–9 (Nov. 20, 2018).
Threats by the victim. Evidence of threats by the victim against the defendant are admissible under North Carolina law for various reasons. Whether known or unknown by the defendant, such threats show the victim’s intent. The cases treat threatening statements by the victim against the defendant like threats by the defendant against the victim: they are statements of intent tending to show how the person making the threat later acted. Thus, in a self-defense case, threats by the victim against the defendant are relevant to show that the victim was the aggressor. See, e.g., State v. Ransome, 342 N.C. 847 (1996). If the defendant knows of the threats, they are relevant and admissible for the additional reason that they show the defendant’s reasonable apprehension of the victim. See, e.g., State v. Macon, 346 N.C. 109, 114–15 (1997). Again, this evidence is not subject to the limitations on character evidence.
Impeachment. When the rules on character evidence apply, other exceptions allow the defendant to offer evidence of specific acts by the victim. If a witness testifies about the victim’s peaceful character or otherwise opens the door, North Carolina Rule of Evidence 405(a) allows cross-examination into “relevant specific instances of conduct.” For example, if a witness testifies about the victim’s peaceful character (permitted under Evidence Rule 404(a)(2) in some instances), the defendant may impeach the witness through cross-examination about prior violent acts of the victim. See generally State v. Gappins, 320 N.C. 64, 68–70 (1987) (applying this rule to allow State’s cross-examination of defendant’s character witnesses).
Rule 404(b). North Carolina Rule of Evidence 404(b) creates another exception to the limits on character evidence. It allows evidence of specific crimes, wrongs, or acts “for other purposes,” such as motive, intent, preparation, plan, and absence of mistake. The North Carolina courts have held that Rule 404(b) is a rule of inclusion. See State v. Coffey, 326 N.C. 268, 278–79 (1990). Prior acts, including acts of the victim, are admissible if they are relevant for some purpose other than to show that the person has the propensity, or character, to commit the current act under consideration. See, e.g., State v. Smith, 337 N.C. 658, 664–67 (1994) (holding that prior acts of victim were not admissible under Rule 404(b) in this case). Whether Fogg’s prior acts might have been admissible under Rule 404(b) for a non-character purpose was not considered in Bass.
Potential impact of defensive-force statutes. Another question concerns the impact of the defensive-force statutes enacted by the General Assembly in 2011, which recent cases have recognized depart from prior law in some important respects. Provisions potentially relevant to this discussion include G.S. 14-51.2(d), which establishes a presumption that a person who unlawfully and forcibly enters a person’s home, motor vehicle, or workplace is presumed to be doing so with the intent to commit an unlawful act involving force or violence. Suppose the State tries to rebut this presumption by offering evidence that the person did not enter with this intent. Would such evidence open the door to further rebuttal by the defendant through evidence of prior acts by the victim?
On their face, this provision and others in the defensive-force statutes do not address evidence law. I wonder, however, whether the expanded rights enacted by the General Assembly could be read as affecting, or at least simplifying, the overall approach to evidence issues in self-defense cases. Although many avenues remain after Bass for the defendant to introduce evidence about the victim’s prior conduct, the road map is complicated and has some unexpected potholes.
In recent years my work at the School has shifted to focus on criminal justice policy. As I work in this area, several issues keep percolating up and capturing interest from a wide swath of judicial system stakeholders. Two such issues pertain to the “front end” of the justice system: overcriminalization and bail reform; two pertain to the “back end” of the system: fines and fees and the criminal record and collateral consequences. Of course, these issues aren’t just of interest in North Carolina—they are grabbing attention across the nation. I’m thus delighted to have the opportunity to explore all four of them at North Carolina’s first Criminal Justice Summit. At the Summit national and state experts with broad-ranging ideological perspectives will discuss these four issues, exploring how they impact justice, public safety and economic prosperity in North Carolina, and whether there is common ground to address them.
The agenda includes an amazing list of speakers. National presenters include Vikrant Reddy, Charles Koch Institute; Nathan Pysno, National Association of Criminal Defense Lawyers; Marc Levin, Texas Public Policy Foundation and Right on Crime; Eric Halperin, Civil Rights Corps; Rebecca Vallas, Center for American Progress; and Joanna Weiss, Fines and Fees Justice Center. And because we’re focused on exploring solutions for North Carolina, the agenda includes a diverse group of North Carolina presenters, including a Public Defender and Prosecutors as well as representatives from Conservatives for Criminal Justice Reform, ACLU of North Carolina, North Carolina Justice Center, and North Carolina Advocates for Justice.
Paralleling the diversity of presenters, a broad range of stakeholders have been invited to attend, such as judicial branch officials, legislators, executive branch officials, law enforcement leaders, leaders in North Carolina’s business community, advocacy groups, academics, and more.
The program is presented by the UNC School of Government, with support from the Charles Koch Foundation. It offers 5 hours of CJE and free CLE credit (pending approval).
Join us! Details about the program and a link to apply are provided below.
March 15, 2019
10:00 a.m. – 4:45 p.m.
Carolina Club at The University of North Carolina at Chapel Hill
Cost: Free, Lunch provided
Faculty Lead: Jessica Smith, W. R. Kenan, Jr. Distinguished Professor of Public Law and Government, UNC School of Government
The Greensboro News & Record reports that four jurors in a Guilford County murder trial were followed from a parking area to the courthouse by a man wearing all red clothing, a color associated with a gang. In response to the incidents, Judge David Hall restricted the number of people who could be in the courtroom and ordered officers to be on the lookout for the man. Richard Allen Williamson eventually was detained by courthouse security in the lobby of the building, identified by the jurors, and charged with obstruction of justice. Keep reading for more news.
Relief from a Criminal Conviction. John Rubin just released the 2018 edition of Relief From a Criminal Conviction: A Digital Guide to Expunctions, Certificates of Relief, and Other Procedures in North Carolina. The new version of the resource, which is available for free online, incorporates legislative changes through 2018, including expanded opportunities to obtain a certificate of relief and a new expunction for cases involving threats of mass violence by a person under the age of 20. Also updated are the statutes, forms, and other materials, all of which have live hyperlinks. Check it out if you haven’t already.
Justice Candidates. Earlier this week Jeff blogged about North Carolina Supreme Court Chief Justice Mark Martin’s resignation from the state’s highest court to become the Dean of the Regent School of Law. The News & Observer reports that at least two people have announced their intention to run for a seat on the court in 2020 – current Court of Appeals Justices Lucy Inman and Phil Berger Jr. It is expected that Inman and Berger would run for Associate Justice Paul Newby’s seat because he has said that he will run for Chief Justice.
Amnesty Day. Last week the News Roundup noted that last Friday was “Amnesty Day” in the Buncombe County courts, an event where people with outstanding misdemeanor arrest warrants and failures to appear could come to court to deal with their issues without risking arrest. What went unnoted was the surprising fact that nobody showed up at last year’s Amnesty Day. The Asheville Citizen Times reported this week that more than 500 people showed up to this year’s event, making it the most successful Amnesty Day in the event’s five-year history.
Statue to be Removed. The Winston-Salem Journal reports that a Confederate monument in the city’s downtown area will be removed sometime soon because it imperils public safety. Citing the need for police presence at the statue to prevent acts of vandalism, the city declared it a public nuisance and said that it was subject to summary removal. The Journal article describes recent pro- and anti-statue demonstrations in the city.
Stone Indicted. Late last week special counsel Robert Mueller charged political operative Roger Stone with seven criminal offenses arising from allegations that Stone coordinated with WikiLeaks on behalf of the Trump presidential campaign to disseminate damaging information about Hillary Clinton and then lied about those efforts. FBI agents arrested Stone and searched his home in a pre-dawn raid last Friday morning. Stone has pleaded not guilty to the charges and Press Secretary Sarah Huckabee Sanders said that the charges have nothing to do with President Trump.
Crime Cancelled. Many parts of the country are braving bitter cold this week, the conditions so extreme that mail service has been suspended in some locations. In Madison, Wisconsin, where it was 24 below zero, the police department was forced to cancel illegal activity during the cold snap, saying it was “simply too cold to commit crimes.”