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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.

Read on for more criminal law news.

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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.

Read on for more criminal law news.

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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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News Roundup

The trial of former U.S. President Donald Trump for alleged falsification of business records is nearing its conclusion. The prosecution’s key witness, Michael Cohen, was on the stand for four days, describing what he and Trump discussed back in 2016 and 2017 when Cohen served as Trump’s lawyer. He outlined a plan to conceal a sexual affair from the public by making hush-money payments to adult film actress Stormy Daniels. Trump’s intent in making these payments, and whether a falsification occurred in furtherance of another crime, are the central questions of the trial. The defense engaged in a lengthy cross-examination to undermine Cohen’s credibility.

The prosecution then rested, and the defense presented the testimony of one witness, also an attorney. The witness, Robert Costello, had previously given legal counsel to Cohen after Cohen’s house was raided by FBI agents. After the defense rested, the parties debated the appropriate jury instructions. Closing arguments are scheduled for Tuesday, and the jury could begin deliberations Wednesday.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part I, Roviaro v. U.S.

Today I begin a series of blog posts discussing the law around confidential informants, motions to reveal identity, and discovery. Technological developments have made it more common for law enforcement to document the activity of a confidential informant (“CI”) through video and audio recording. This change raises challenging legal questions, such as whether the identity of the confidential informant must be revealed to the defense and what must be turned over in discovery. Today’s post discusses the landmark case of Roviaro v. U.S. and introduces the basic issues, focusing on the factors that weigh toward or against the disclosure of the CI’s identity to the defense. Future posts will discuss the relevant statutes, key state cases, and federal courts’ analysis of these questions, along with procedural and strategic considerations.

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