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
Category Archives: Procedure
I have discussed elsewhere criticisms and concerns asserted regarding money-based bail systems. Among other things, it is argued that money-based bail systems undermine public safety by allowing dangerous but wealthy people to buy their way out of jail with no supervision, and—citing recent empirical research—that unnecessary incarcerations of low-risk people who cannot pay their bonds causes more crime once those people are released. It also is asserted that unnecessary wealth-based detentions of low-risk individuals are unfair, disproportionately impact people of color and inefficiently use taxpayer resources. Finally, some point to successful legal challenges to money-based bail systems as creating litigation risk. In light of those criticisms and concerns, it is natural to wonder: How big a role does money play in our state’s bail system? The answer: A lot. Continue reading →
Last month, I traveled to a hotel located on the Eastern Cherokee Indian Reservation, or Qualla Boundary, in Cherokee, North Carolina to teach at the summer conference for North Carolina prosecutors. Probably because I had crime and criminal prosecution on my mind, I found myself wondering what happens when a person commits a crime on the reservation. What law applies? Who enforces the law? Who prosecutes the person – and where? I thought I’d do a little research and quickly find the answers. As it turns out, a complicated combination of federal, state, and tribal law governs Indian Country, including the Qualla boundary. And the answers to these questions vary depending on the race of the perpetrator and the victim and the nature of the crime.
My colleague, Sara DePasquale, and I were excited to release a new Juvenile Law Bulletin two weeks ago—Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work? We were also exhausted. While the laws that allow for courts to order juveniles into DSS custody in a delinquency proceeding are short, their implications are broad and complex. Sara’s blog announcing the bulletin, Extra! Extra! Read All About It! New Juvenile Law Bulletin – Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work?, provides some suggestions about reading the bulletin in bite-sized chunks. Now that readers have had a chance to do that, let’s focus on a few of the key points for delinquency practitioners.
- the proceeding remains a delinquency proceeding although the juvenile is in the custody of DSS;
- the only attorney who will represent a juvenile placed in DSS custody through a delinquency proceeding is the juvenile’s counsel in the delinquency matter;
- termination of probation does not automatically terminate DSS custody; and
- implementation of the Juvenile Justice Reinvestment Act (a.k.a. “raise the age”) could result in a new challenge for DSS placements.
Category: Procedure | Tags: delinquency, DSS custody, guardianship, juvenile delinquency, juvenile disposition, nonsecure custody
Suppose the State is prosecuting a defendant for the sexual assault of a young child. Though the child has been identified by name in the arrest warrant and investigative reports provided to the defendant, the State would prefer not to name the victim in the indictment. May it refer to the victim in that document as “Victim #1”?
Category: Crimes and Elements, Procedure | Tags: charges, indictment, naming the victim, pleading requirements, sex crimes, sexual assault, state v. mcKoy, state v. white, victim
Jeff Welty blogged last week about State v. Capps, __ N.C. App. __, 2019 WL 2180435 (May 21, 2019). The central issue in that case was the state’s use of a misdemeanor statement of charges, but there was a minor detail in the facts that caught my eye because it raises an issue I’ve been asked about more than once.
What is the status and authority of a law enforcement officer when he or she is off-duty?
Several years ago (some might say that’s an understatement) I wrote The Law of Self-Defense in North Carolina, in which I looked at over 200 years’ worth of North Carolina court opinions on self-defense and related defenses, such as defense of others and defense of habitation. The book’s approach reflected that North Carolina was a common law state when it came to self-defense. The right to act in self-defense depended primarily on the authority of court decisions. The General Assembly’s adoption in 2011 of three defensive force statutes—G.S. 14-51.2, G.S. 14-51.3, and G.S. 14-51.4—changed that. An understanding of the law of self-defense in North Carolina now must begin with the statutory law of self-defense. Continue reading →
Category: Crimes and Elements, Evidence, Procedure, Uncategorized | Tags: defense of habitation, defense of others, self-defense
The ability to file a misdemeanor statement of charges is a superpower for district court prosecutors, enabling them to overcome virtually any error in a criminal pleading with the stroke of a pen. Arraignment in district court is kryptonite, robbing the superpower of its efficacy. This dynamic was on full display in State v. Capps, __ N.C. App. __, __ S.E.2d __, 2019 WL 2180435 (May 21, 2019), a recent opinion by the court of appeals. Continue reading →
Category: Procedure, Uncategorized | Tags: amendment, capps, court of appeals, entity capable of owning property, statement of charges
One person convicted of misdemeanor impaired driving may be placed on probation and ordered to complete 24 hours of community service. Another may receive an active sentence of three years’ imprisonment. The severity of the sentence depends largely on the presence of aggravating factors, which must be proved by the State.
When a misdemeanor impaired driving conviction entered in district court is appealed for trial de novo in superior court, the State must notify the defendant no later than ten days before trial that it intends to prove one or more aggravating factors. G.S. 20-179(a1)(1). If the State fails to provide that notice, the factors may not be used by the superior court to determine the defendant’s sentence. The court of appeals recently affirmed in State v. Hughes, ___ N.C. App. ___ (April 16, 2019), that there is no exception to this rule for aggravating factors that were found by the district court below.
Category: Motor Vehicles, Procedure | Tags: DWI, DWI sentencing, notice of aggravating factors, sixth amendment, state v. hughes, state v. reeves
In this post, part of a series on bail reform in North Carolina, I highlight reforms that have been implemented in Orange County, North Carolina. My goal in doing so is to provide models and points of contact for jurisdictions interested in these efforts. If you’d like your jurisdiction’s work highlighted here, please reach out to me. Continue reading →
Category: Procedure, Uncategorized | Tags: bail, orange county, pretrial release, reform, risk assessment
