News Roundup

This week, the General Assembly passed H774, which, if signed by the governor or allowed to become law without his signature, would make two significant changes in the administration of the death penalty. Specifically, it would allow a medical professional other than a physician to be present at an execution (current law requires a doctor), and would allow the state to withhold from the public information concerning the identity of any person or entity that supplies the drugs used in lethal injection. WRAL covers the controversy over the bill here. Generally, proponents contend that the changes are needed to allow executions to resume while opponents argue that the bill will simply engender more litigation. Continue reading

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The Early Impact of Rodriguez v. United States

About three months ago, the United States Supreme Court decided Rodriguez v. United States, __ U.S. __, 135 S. Ct. 1609 (2015). I wrote about it here. In a nutshell, the Court ruled that once the purpose of a traffic stop has been addressed – or reasonably should have been addressed – an officer can’t extend the stop, even briefly, for unrelated investigative activities such as drug dog sniffs, unless the officer has reasonable suspicion of criminal activity to support the continued detention.

The rule is clear enough in theory but it can give rise to some difficult questions in practice. May an officer engage in brief chit-chat with a motorist, or does such interaction constitute an extension of the stop? What about inquiring about a motorist’s travel plans, or a passenger’s, where such inquiries may bear on the likelihood of driver fatigue but also may be used to seek out inconsistencies that may be evidence of illicit activity? May an officer comply with Rodriguez by multi-tasking, i.e., by asking unrelated questions while examining a driver’s license, or does multi-tasking inherently slow an officer down and so extend a stop?

Courts across the country are beginning to address some of these questions. This post summarizes the early impact of Rodriguez. Continue reading

Whose Call on Confederate Flag License Plates?

Following the shooting deaths of nine black worshippers in June at a historically significant Charleston church and South Carolina’s subsequent removal of the Confederate flag from the grounds of the State House, some have called upon North Carolina officials to stop issuing specialty license plates featuring the Confederate flag. N.C. Governor Pat McCrory has said that the General Assembly must pass legislation to halt issuance of the plates. One veteran legislator was quoted in this News and Observer story as saying that he never would have voted to authorize such a special plate and never recalls seeing such legislation. A spokesperson for another legislator was quoted as saying that the Governor was empowered to end issuance of the plates. Who’s right? Continue reading

Habitual Habituals

North Carolina has a lot of habitual offender laws: habitual felon, violent habitual felon, armed habitual felon, habitual breaking and entering, habitual impaired driving, and habitual misdemeanor assault. A question that comes up is the extent to which these laws may permissibly interact with one another. Today’s post considers a few of the combinations I get asked about from time to time. Continue reading

Plea Bargaining: What Can and Can’t Be on the Table?

Can a prosecutor threaten more serious charges if the defendant refuses to agree to a plea bargain? Can a plea bargain include a promise by the State to be more lenient on the defendant’s wife? Read on for answers. Continue reading

News Roundup

Michael Brown. Eric Garner. Walter Scott. Freddie Gray. The past year has been dominated by news of encounters between police officers and unarmed black citizens that have resulted in tragedy. Sandra Bland is the latest name on the list. She died in jail from what is reported to be a self-inflicted hanging, but the videotape of the traffic stop that led to her arrest has many questioning why the encounter, which began with an officer stopping Bland for failing to use her turn signal, ever resulted in her arrest.

Continue reading

 Ohio v. Clark: What Does It Mean for Child Protective Services?

[Editor’s note: This post was originally published on the SOG’s civil law blog, On the Civil Side. Nonetheless, given its coverage of Confrontation Clause issues arising from a criminal case, we thought that it would be of interest to many of our readers.]

Last month the U.S. Supreme Court decided Ohio v. Clark, 135 S.Ct. 2173 (2015). The Court determined whether a teacher’s testimony of a child’s statements to her was barred by the Confrontation Clause. My colleague, Jessica Smith, wrote a blog post about the holding and its impact in criminal cases. But, what about the world of child protective services? Continue reading

Hurry Up and Have that DWI Expunged

If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast.  Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws. Continue reading

NC Court of Appeals Holds that DMV Records Are Non-Testimonial

In my 23-year career as a lawyer no case has had more impact on the criminal justice system than the U.S. Supreme Court’s decision in Crawford v. Washington. That case radically revamped the analysis that applies for confrontation clause issues, holding that “testimonial” statements by people who don’t testify at trial are not admissible unless the prosecution establishes both unavailability and a prior opportunity to cross-examine. More than 10 year after Crawford, courts are still struggling with the meaning of the key term “testimonial.” In one recent case the Court of Appeals had to decide whether DMV records are testimonial under the new Crawford analysis. Continue reading

Juvenile Code Reform Legislation (HB 879) Becomes Effective December 1, 2015

In a prior post, I wrote about SB 331, which proposed several changes to the delinquency subchapter of the Juvenile Code. That bill didn’t make it. Instead, it became HB 879 (enacted as S.L. 2015-58), which includes several new laws intended to either increase due process protections for juveniles, reduce further entry of juveniles in the delinquency system, or reduce juvenile confinement. Although it’s similar to the prior Senate bill, there are some important differences that you should know about before the new laws become effective on December 1, 2015. One of these laws involves a juvenile age increase, although it’s not quite the change for which “raise the age” advocates were lobbying. Continue reading