Daniel Spiegel

News Roundup

After a plea deal between 9/11 mastermind Khalid Sheikh Mohammed and the U.S. government was declared void by order of Defense Secretary Lloyd Austin, a military judge has now ruled that the plea agreement is valid, the AP reports. The plea agreement calls for a sentence of life imprisonment for Mohammed and his two-codefendants. The Defense Secretary had declared that the deal could not be struck without his approval and that the decades-old proceedings should continue through to trial and possible death sentences. Some families of 9/11 victims and lawmakers also opposed the plea deal. However, the military judge has ruled that it is too late to strike the deal because it was negotiated with proper government authorization and the top official at Guantanamo approved it.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part V, Asserting a Defense Theory

This is Part V of a multi-part series on confidential informants (“CI’s”), motions to reveal the identity of CI’s, and discovery.

As discussed in earlier posts in this series (here and here), the defense is more likely to win a motion to reveal the identity of CI when the defendant is able to tie the potential CI testimony to a particular theory of defense and explain how it furthers that defense. In the landmark case of Roviaro v. U.S., the U.S. Supreme Court listed a variety of ways in which the CI’s testimony might be helpful for the defense and ruled that the CI’s identity must be turned over. However, North Carolina appellate courts have repeatedly stated that the defense cannot merely speculate about how the CI’s testimony might be relevant; the defense must clear an initial hurdle of showing how the testimony might resolve a material conflict at trial in order to prevail on a motion to reveal the identity of the CI. See State v. Dark, 204 N.C. App. 591, 593 (2010); State v. Watson, 303 N.C. 533 (1981). While defenders may invoke their federal due process rights in challenging whether this should be a requirement, they should be aware of what North Carolina appellate courts are demanding.

An interesting strategic implication of Dark and Watson is that in CI cases, the defense may benefit from committing to a particular theory of defense and “showing its cards” to the state in a pretrial hearing. Defenders are often reluctant to call their client to the stand, even in a pretrial hearing, unless the defendant’s testimony appears to be necessary or exceptionally persuasive. Defenders may be concerned about the risk of damaging cross-examination and the possibility that the testimony of an unsavvy client might hurt the case, even where the client is telling the truth (discussions of this dilemma in the media can be found here and here). In cases where there is a viable motion to reveal the identity of the CI, though, the risk will sometimes be worth the possible reward. The prospect of winning a dismissal, a concession in plea negotiations, or suppression of key evidence may counterbalance a tendency by the defense to avoid putting the client on the stand in a pretrial hearing.

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News Roundup

The State of Missouri put Marcellus Williams to death Tuesday, despite opposition from St. Louis County Prosecuting Attorney Wesley Bell and the victim’s family, the Associated Press reports. Williams was convicted of the murder of Lisha Gayle in 1998. Gayle was stabbed to death during a home burglary in which her purse and her husband’s laptop were stolen. The case received international attention due to concerns that Williams may have been innocent. According to The Innocence Project, the case against Williams depended heavily on two witnesses with legal and financial motives rendering their testimony unreliable. Questions were also raised relating to the forensic evidence in the case. The murder weapon appeared to be improperly handled by a staff member from the prosecutor’s office and there was a lack of physical evidence linking Williams to the crime scene.

In 2017, former Missouri Governor Eric Greitens paused Williams’ execution and appointed a board to investigate further. However, current Governor Mike Parson disbanded the board before it issued a final report. Just last month, a new plea deal was accepted by a judge between the Prosecuting Attorney and Williams vacating the death sentence and imposing life without the possibility of parole. However, the State Attorney General, Andrew Bailey, intervened, objecting to the plea and sending the controversy to the State Supreme Court. The State Supreme Court set aside the deal and ordered an evidentiary hearing. Williams raised issues pertaining to bias in jury selection and mishandling of the evidence at the hearing but was ultimately unsuccessful. In declining to delay the execution, Governor Parson stressed that no jury nor court at the trial or appellate level had found merit in Williams’ claims to innocence. Though three Justices of the U.S. Supreme Court voted to halt the execution, the Court denied the emergency request.

Outside of Missouri, four other states scheduled executions within the span of a week, an uncommonly high number, as the number of executions per year is trending down nationwide.

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A Common Calendaring Concern: The Unilateral Reset

A question that arises with some frequency is whether the district attorney is free to unilaterally “reset” a matter in superior court by changing the trial date after a date has been set by the court.

At the outset, it’s important to distinguish between the scenario in which the State intentionally resets a case and that where a clerical error results in a case being unintentionally left off a trial calendar. Where the omission arises from an administrative error, the delay will likely be attributed to the State as part of any future speedy trial analysis, and it may be considered negligent, or at least “neglectful,” delay. See Barker v. Wingo, 407 U.S. 514 (1972); State v. Pippin, 72 N.C. App. 387, 395 (1985). But what about when the State intentionally resets a case after it has been scheduled for a particular trial date? In this scenario, the court has set a trial date, but when it comes time for the State to publish the trial calendar, the case is missing because the State intentionally omitted it or moved it to another setting.

Depending on where you practice, you may be thinking, “Of course the DA cannot unilaterally reset the case. The trial date was established by court order, and neither party is free to disregard a court order.” Alternatively, you may be thinking, “Doesn’t the DA have calendar control?” See G.S. 7A-61 (“the district attorney shall prepare the trial dockets”). See generally, Michael Crowell, Control of the Calendar in Criminal District Court, UNC Sch. of Gov’t (July  2010).

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Did State v. Singleton Bring a Sea Change in the Law of Indictments?

The North Carolina Supreme Court’s opinion in State v. Singleton, No. 318PA22, __ N.C. __ (2024), brings about a transformation of North Carolina indictment law. The case “ends [a] centuries old saga” in deciding that the “common law jurisdictional indictment rule” is “no longer the law in this State.” Slip. op. 3, 40. My colleague, Joe Hyde, delved into the analysis and history set forth in the 84-page opinion here. This post will elaborate on the potential consequences for practitioners.

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News Roundup

Local news became national news this week when a man serving life imprisonment for the murder of a one-year-old child on Christmas escaped from custody. According to the AP, 30-year-old Ramone Alston was able to free himself from leg restraints and run into the woods as his van arrived at a UNC hospital in Hillsborough, NC. Mr. Alston was scheduled for a medical appointment. After the state offered a $25,000 reward for tips leading to his apprehension, and the U.S. Marshals added an additional $10,000 incentive, authorities received a torrent of phone calls. Orange County Sheriff Charles Blackwood stated he has known Mr. Alston since Mr. Alston’s birth. After a three-day search for Mr. Alston involving 19 law enforcement agencies, Mr. Alston was apprehended at a Comfort Inn in Kannapolis.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part IV, How Federal and State Courts are Handling CI Video and Audio Recordings

Special thanks to Sheridan King, Summer Law Fellow at UNC SOG, for her significant contributions to the research and development of this post.

The previous post of this multi-part series on confidential informants (“CI’s”) delved into possible approaches to handling video and audio recordings of confidential informant activity (Parts I and II can be found here and here). CI activity is often recorded during the “main event” (the incident for which the defendant is indicted) and during “lead-up buys” (controlled purchases that create probable cause to search a location). Though trial courts throughout North Carolina regularly determine when CI recordings must be turned over to the defense, there is a scarcity of North Carolina appellate law on the subject. Thus, this post will look to other jurisdictions, including federal district courts and other states, to survey how judges are reckoning with these emerging issues pertaining to discovery, the defendant’s constitutional right to a fair trial, and the State’s interest in protecting the identity of informants.

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News Roundup

Back in May, it appeared that North Carolina lawmakers were moving toward a repeal of automatic expunctions of dismissed charges. However, in recent weeks, they have reversed course and a law providing for such expunctions was signed by the Governor this week. The law requires cases to be automatically expunged between six and seven months after all charges are dismissed. Expunged files are to be retained by the clerk and will be available to the person whose case was expunged as well as the district attorney. The new law incorporates recommendations of a committee tasked with addressing logistical problems that arose after the passage of a previous automatic expunction law.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part III, How to Handle the Video

This is Part III of a multi-part series on confidential informants. Earlier posts focused on the foundational concepts of U.S. v. Roviaro, 353 U.S. 53 (1957), here, and the applicable North Carolina statutes here. Today’s post explores the novel issues that arise as more and more confidential informant (“CI”) interactions are recorded on video.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part II, What Statutes Apply?

In Part I of a series of posts on confidential informants, I revisited the landmark case of U.S. v. Roviaro, which began when a Chicago police officer hid in the trunk of an informant’s car to listen in on a heroin deal. The U.S. Supreme Court held that the officer in the trunk was no substitute for the confidential informant (“CI”) in the driver’s seat and required disclosure of the CI’s identity to the defense. I also introduced the basic dichotomy set out in Roviaro: generally, where the CI is more of a tipster, the CI’s identity need not be revealed, but where the CI is an active participant, the defense is entitled to it. The constitutional underpinnings of this distinction, based on due process and confrontation principles, continue to guide courts today, although the analysis has evolved.

This second post will address the North Carolina statutes at play. These statutes complicate and refine the basic constitutional question of whether fundamental fairness requires the State to turn over the CI’s identity.

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