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News Roundup

Over the weekend a Georgia Tech student was shot and killed by a campus police officer in a tragic incident that set off protests on the school’s campus this week.  21-year-old student Scout Schultz was shot by 23-year-old campus police officer Tyler Beck on Saturday night.  Reports suggest that Schultz, who had some history of mental illness, may have orchestrated the shooting, reportedly calling 911 to falsely report an armed suspicious person and then advancing on responding officers while carrying a multi-tool and disregarding their orders to stop.  A few days after the shooting, a campus vigil held in remembrance of Shultz was followed by what has been described as a violent protest where a police car was set on fire and two officers were injured.   Keep reading for more news.

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G.S. 90-96(a) Is Mandatory Unless both the Judge and the State Say No

I wrote a post in July asking whether conditional discharge under G.S. 90-96(a) is discretionary or mandatory for a consenting defendant. A case decided this week offers some clarification. Continue reading

Serial, Cell Site Location Information, and Experts . . . on a Wednesday

It’s not Thursday, but I’m going to throw it back a few years to 2014. Like the rest of the nerds I know, I became obsessed that year with the podcast Serial. The first season of that podcast chronicled the prosecution of Adnan Syed for the 1999 murder of his ex-girlfriend, Hae Min Lee. Host Sarah Koenig meticulously sifted through the evidence and conducted goodness-knows-how-many interviews with everyone connected to the case, including numerous recorded interviews with Syed, who is serving a life sentence in a Maryland prison. Syed claims that he did not kill Lee, whose body was discovered six weeks after she disappeared buried in a Baltimore park. Koenig spends the first several episodes of the podcast describing inconsistencies in witness’s accounts of the day Lee disappeared—inconsistencies that raise doubts about Syed’s guilt. But in episode five, Koenig, with the help of her producer, analyzes the evidence that the State offered regarding which cell towers serviced calls to Syed’s phone during the time that one of Syed’s friends claimed Syed was burying Lee’s body. The producer concludes:

“I think they were probably in [the park] . . .   Because . . . the amount of luck that you would have to have to make up a story like that and then have the cell phone records corroborate those key points, I just don’t think that that’s possible.”

 

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Misdemeanor Attorneys Come to the SOG

Last week we hosted nearly 30 mostly new attorneys for the Misdemeanor Defender program. The training takes place here every fall, and focuses on preparing attorneys for handling cases at the district court level. If you’d like to know more about our indigent defense education programs, jump to the end of this post to find out about available training materials and future trainings. Continue reading

Facial Recognition, Biometric Identification, and the Fifth Amendment

Apple just introduced the iPhone X, a new high-end smartphone. The phone can be unlocked using facial recognition, just as current iPhones can be unlocked using a fingerprint scanner. According to Forbes, the phone “uses a combination of light projectors and sensors to take several images of your facial features,” then compares the face of a person seeking to unlock the phone to the “depth map” it has created.

I wrote here and here about the Fifth Amendment implications of fingerprint scanners. The few courts that have addressed the issue have mostly agreed that a suspect can’t be required to provide the passcode to a phone, absent unusual circumstances, because that would violate the Fifth Amendment’s privilege against self-incrimination. However, courts mostly have held that a suspect may be ordered to press a finger to the phone because doing so is not “testimonial” and so is outside the scope of the privilege.

I thought that this would be a good time to consider facial recognition and the Fifth Amendment, and to provide an update on a recent case that reaches a different result than most other decisions to date. Continue reading

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News Roundup

A shooting at a high school near Spokane, Washington, on Wednesday morning left one student dead and three others injured.  Caleb Sharpe, a sophomore at Freeman High School, is accused of killing fellow student Sam Strahan and wounding three other students.  Reportedly armed with an AR-15 rifle and a handgun, Sharpe is said to have opened fire in a hallway just before classes were scheduled to begin.  A report from local paper The Spokesman-Review says that Sharpe began the attack with the rifle, which soon jammed.  He then began firing the handgun before being tackled and disarmed by a school custodian.  The story was developing at the time of writing.  Keep reading for more news.

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Alleging a Probation Violation

A probation violation need not be alleged with the technical precision of an indictment, but there are still some rules about the right way to prepare a probation violation report. Continue reading

Want a DMV Hearing? Soon, You’ll Have to Pay in Advance.

On Monday, I spoke to a group of DMV hearing officers about administrative order writing. These are the officials who hold hearings to determine whether a person’s driver’s license is subject to revocation or reinstatement. The bases for hearing officer action run the gamut. They exercise discretion in determining whether a person’s license is revoked for accumulating too many driver’s license points or for excessive speeding. They evaluate and weigh evidence to determine whether a person charged with an implied consent offense did, in fact, willfully refuse chemical testing. They hold hearings to determine whether a person whose license has been restored following a DWI has violated a condition of the reinstatement. They also determine whether to conditionally restore the licenses of people convicted of impaired driving before the end of the statutory revocation period.

I can’t say whether the hearing officers learned much from me. But, as is always the case when I interact with a room full of public servants, I learned something from them on Monday. Beginning in January 2018, DMV plans to assess fees for these types of hearings. Some of them are as high as $450.

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Court of Appeals Rules that a Citation Was Sufficient Even Though It Failed to Allege Multiple Elements of an Offense

Last year, the court of appeals ruled that a citation that failed to allege an essential element of an offense was sufficient to serve as the State’s pleading. The court concluded that “the standard for issuance of an indictment [which must allege every essential element of an offense to be valid] is not precisely the same as [for] a citation,” and under the more relaxed standard, the citation adequately identified the offense even though it failed to allege an essential element. State v. Allen, __ N.C. App. __, 783 S.E.2d 799 (2016) (an officer cited a motorist for an open container violation, but failed to allege that the container was in the passenger compartment of the defendant’s vehicle; more information about Allen is here).

Last week, a divided panel of the same court ruled that a citation that failed to allege multiple elements of an offense was sufficient. The new opinion raises questions about just how low the bar is for citations, and perhaps for other district court pleadings as well. Continue reading

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News Roundup

A Raleigh murder made national news this week with reports indicating that the suspect told a 911 dispatcher that taking too much cough medicine may have contributed to the killing.  Late last week, Matthew James Phelps was charged with murdering his wife, Lauren Ashley-Nicole Phelps.  According to WRAL, Matthew called 911 to report that he had awoken from a dream to discover that Lauren was dead and that he was covered in blood.  He also told the dispatcher that he had taken too much cough medicine, which he was using to help him sleep.  The News & Observer has a story here that explores whether an ingredient in cough medicine can cause hallucinations, psychosis, or violent behavior.  Keep reading for more news.
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