In August, the North Carolina Supreme Court weighed in on drug identification once again in State v. Osborne, ___ N.C. ___ (August 16, 2019). I wrote about the earlier Court of Appeals decision in the case, here. The new Osborne decision clarifies the application of drug identification rules as well as sufficiency of the evidence in this context. Continue reading
Back in May, a divided Court of Appeals affirmed the trial court’s ruling that the defendant was not entitled to a jury instruction on entrapment in an online solicitation of a minor case. Entrapment isn’t exactly a common defense (as Jeff noted here). When it comes up, it’s often in drug cases, but it can also arise in computer solicitation cases where law enforcement officers pretend to be underage. State v. Keller, ___ N.C. App. ___, 828 S.E.2d 578 (May 21, 2019), review allowed, ___ N.C. ___ (August 14, 2019), is an example of such a case and appears to be the second reported decision dealing directly with the defense in this context, so I wanted to flag it for readers. Fair warning, this post recounts some of the sexually graphic discussions at issue in the case. Continue reading →
The Fourth Circuit recently issued a decision prohibiting retrial of a defendant charged with murder following a mistrial. The government obtained the mistrial over the defendant’s objection when a key witness could not be located during the trial. On appeal, the Fourth Circuit found that no manifest necessity justified the mistrial and that double jeopardy prohibited another attempt by the government to convict the defendant. I previously wrote about mistrials and double jeopardy here, and I wanted to flag this case for readers for its treatment of missing witnesses in the mistrial context. The case is Seay v. Cannon, ___ F.3d ___, 2019 WL 2552953 (4th Cir., June 21, 2019). Continue reading →
Back in November of last year, I wrote about hemp and CBD laws here. I have been teaching quite a bit on the subject lately and wanted to follow up that post with an examination of how legal use of hemp products may affect marijuana prosecutions in North Carolina. Continue reading →
A new study by UNC professors raises questions about how we think about drug prosecutions. In Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, the authors reviewed more than 700,000 drug arrests and examined the race of the arrestee, the type of drugs involved, and the quantity of drugs involved. According to the authors, several important points emerge from the data: 1) The vast majority of all drug arrests are for marijuana; 2) The vast majority of all drug arrests are for very small amounts of drugs; 3) People of color are disproportionately arrested for drugs; 4) Such disparities are likely due to the types of drugs targeted by law enforcement and not due to any racial group’s greater involvement in the drug trade. Their study challenges the common rationale for prosecuting low level drug offenders: that in order to catch the big fish (the “sharks”), we must first catch the small fish (the “minnows”). “A drug war premised on hunting great white sharks instead scoops up mostly minnows, and disproportionately ones of color.” Joseph Kennedy, Issac Unah, & Kasi Wahlers, Sharks and Minnows in the War on Drugs: A Study of Quantity, Race, and Drug Type in Drug Arrests, 52 U.C. Davis L. Rev. 729, 730 (2018) (citations hereafter are to the page numbers of the pdf file linked above). The authors argue that their data supports changing the way we approach drug prosecutions by eliminating felony liability in cases involving a gram or less of any drug. This post examines some of those findings. Continue reading →
James gives his friend Angela some money to purchase drugs. Angela doesn’t get the drugs and doesn’t return the money. James then comes to Angela’s house to confront her and get his money back, barging into the house and threatening her with a gun. James ultimately leaves without any money but is soon charged with attempted armed robbery. He testifies at trial that he had no intent to commit robbery; he was simply trying to get his property back. Angela admits on the stand that she had the money and never returned it or bought the drugs. James moves to dismiss, arguing that the State’s evidence is insufficient to establish any felonious intent—because he had a legitimate claim to the property, he couldn’t have committed robbery.
Cast your vote, and read on for the answer.
Back in December, the Fourth Circuit ruled on a habeas petition of Dr. Jeffrey MacDonald, denying relief. The case has been winding its way through federal courts for more than 40 years. I wanted to flag it for readers in this post, both as one of the more notorious North Carolina murder cases and as an opportunity to examine the legal principles of actual innocence claims in federal habeas. Fair warning, this post contains some minimal (but grisly) details of the killings. Continue reading →
Last week I had the pleasure of hosting around 40 attorneys for the second part of a new course, Higher Level Felony Defense. The first part, held in early 2018, focused primarily on preparing a case for trial. We also included a deep dive into jury selection. This second part focused on common issues in serious felony cases as well on sentencing advocacy. As a new program, I’m sure it will evolve, but I thought the first iteration was promising and wanted to talk briefly about the program and our goals. Continue reading →
That in effect was the question presented in the recent N.C. Supreme Court decision in State v. Melton (Dec. 7, 2018), where the court vacated an attempted murder conviction in a murder-for-hire case. Before getting into the case, let’s review the elements of solicitation and attempt. Continue reading →