blankJonathan Holbrook

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Prosecuting Defendants in Bankruptcy

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This post summarizes an unusual point of law that recently caught me by surprise, and it’s one which I don’t believe we’ve ever directly covered on the criminal law blog before: the impact of bankruptcy on criminal charges.

After reading that introduction, I know some of you may be tempted to skip this one, but bear with me — whether you’re prosecuting or defending, and whether it’s a complex felony embezzlement case or a simple misdemeanor failure to return rental property, this could potentially be a pretty big deal. (Alternatively, if that’s not enough to hook you, please click through anyway to see a personal announcement at the end of this post.)

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“True Threats” After Taylor

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Near the end of last year, the North Carolina Supreme Court decided State v. Taylor, 2021-NCSC-164, 866 S.E.2d 740 (2021), and we summarized the opinion here. This post considers the potential impact of Taylor on other offenses involving threatening speech, and addresses a couple lingering questions that may arise in future cases.

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Case Summaries: N.C. Supreme Court (Dec. 17, 2021); N.C. Court of Appeals (Jan. 4, 2022)

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This post summarizes published criminal decisions from the North Carolina Supreme Court released on December 17, 2021, and decisions from the North Carolina Court of Appeals released on January 4, 2022.

As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.

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Prosecutors Talking to the Media

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By now, most readers of this blog have probably seen the news stories about a school shooting that occurred in Michigan a couple weeks ago, and are aware of the prosecutor’s decision to charge the alleged shooter’s parents with involuntary manslaughter. If not, we covered it for you in the News Roundup (twice). Those articles contain extensive details about the facts of the case, the reasoning behind the charges against the parents, and the evidence that the state believes will support the charges. We now know about a meeting earlier the same day between the parents and school administrators, disturbing artwork found in a school desk, online searches for ammunition, texts and social media posts about the firearm, and much more.

The novelty of pursuing criminal charges against the parents of the alleged shooter has drawn most of the national attention, but it prompted me to think about another interesting issue that comes up fairly often in high-profile criminal cases: how much should the prosecutor be telling us about this pending case?

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Court of Appeals Rules on Pretrial Self-Defense Immunity Hearings

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Last month, the Court of Appeals decided State v. Austin, ___ N.C. App. ___, 2021-NCCOA-494 (Sept. 21, 2021), and a summary of the opinion is available here. Austin addressed several noteworthy self-defense issues, including the sufficiency of the state’s evidence to rebut the presumption of reasonable fear under the “castle doctrine” statutes added in 2011 and whether the trial court’s jury instructions on that issue were proper.

But first, the court had to decide whether the statutory language conferring “immunity from liability” meant that the defendant was entitled to have this issue resolved by the judge at a pretrial hearing. That’s a question I’ve been asked fairly often over the past few years, and my sense is that prior to Austin there were divergent practices on this point around the state.

This post takes a closer look at that portion of the court’s opinion, and explores what we now know and what we still don’t.

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Are Fake COVID-19 Vaccination Cards a Crime?

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Like a growing number of schools, hospitals, businesses, and other organizations around the country, UNC announced last week that all students and employees returning to campus would be required either to provide proof that they have been vaccinated against COVID-19 or agree to participate in weekly testing for the virus. For an update on other entities that are currently implementing similar mandates, their legal authority for taking such steps, and the status of some early court challenges to these measures, Jill Moore’s recent civil blog post on those topics is a great resource.

Rather than getting vaccinated or agreeing to be tested, some people have resorted to purchasing and submitting fake vaccination cards to their school or employer. Organizations like UNC have their own disciplinary procedures to address this kind of noncompliance or fraud, but I’ve had several people ask me recently whether it’s also a crime to possess or use one of these fake cards under North Carolina law, and if so what’s the offense?

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Plea Bargaining with the Judge

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The case is ready for trial and all parties are present. From the bench, the judge makes a final attempt to resolve the case by saying “if we need to do a trial that’s fine, and I can call for a jury right now — but I’m just letting you all know that if the defendant was willing to plead to count 1 and state was willing to dismiss count 2, I’d be inclined to give supervised probation and we could get this case wrapped up today.”

Of course every county and every judge is unique, but most criminal attorneys have at least occasionally experienced some type of participation from the bench in working out a plea. So we know that it happens, but is it actually authorized by our statutes? Should it be? If it is, what are the limits, and what’s fair game for negotiation? Are the judge’s terms binding?

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Sealed Indictments

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Blame it on the pandemic, I suppose, but somehow I missed this interesting article from March of last year that looked into how often (and why) search warrants are sealed in North Carolina. Former SOG faculty member Michael Crowell was quoted in the article, and his blog post discussing the significance of In re Cooper, 200 N.C. App. 180 (2009) for sealed warrants is available here. I highly recommend reading both, if you haven’t already seen them

Those articles reminded me of a similar issue that I’ve occasionally had questions about, but I don’t think we’ve ever covered on this blog. What about sealed indictments?

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