Procedure

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Bail Reform in North Carolina—Pilot Project: Citation in Lieu of Arrest

In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of those reforms involves a new citation in lieu of arrest program. This reform includes implementation of a law enforcement-approved tool for patrol officers to encourage the increased use of citations in lieu of arrest for certain misdemeanors, in the officer’s discretion. The tool is a Cite or Arrest Pocket Card. Although the overall 30B project was a collaborative, multi-stakeholder endeavor, only the law enforcement community participated in the creation of the Pocket Card. The content of the card is reproduced below; in reality it’s a bright blue laminated card, the same size as the Miranda Warnings card.

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Bail Reform in North Carolina—Pilot Project: First Appearances for All Defendants

In a series of posts I’ve been discussing bail reform, including highlighting pilot programs underway in North Carolina. In 2018, I worked with stakeholders in North Carolina’s Judicial District 30B (Haywood and Jackson counties) to help them identify and implement a basket of pretrial reforms. One of the implemented reforms involves providing first appearances for in-custody defendants charged with misdemeanors and Class H and I felonies (highest charge) or arrested on a probation violation within 72 hours of arrest or at the first regular session of the district court in the county, whichever occurs first. The new procedure went into effect on January 1, 2019.

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May a Magistrate Conduct an Initial Appearance at a Hospital?

Sometimes a defendant is injured prior to or during arrest. When the injury is serious, the defendant may need to go directly to the hospital. May a judicial official, such as a magistrate, come to the hospital to conduct the defendant’s initial appearance? A federal magistrate judge did just that for Dzokhar Tsarnaev, the Boston Marathon bomber, and I’m told that some North Carolina magistrates have occasionally done the same.

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What Last Week’s Supreme Court Opinion May Tell Us about the Current Court

Last week, the Supreme Court issued a per curiam opinion summarily reversing the Texas Court of Criminal appeals and finding that a death row inmate has an intellectual disability. The case doesn’t break new doctrinal ground but it offers some possible insights about how several Justices on the newly constituted Court are positioned on capital cases.

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The Dr. Jeffrey MacDonald Habeas Case and Actual Innocence

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.

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Bail Reform in North Carolina—Why the Interest?

Bail reform is a hot topic in North Carolina. It was recommended by Chief Justice Mark Martin’s North Carolina Commission on the Administration of Law and Justice (report here) and jurisdictions across the state are embarking on reform. In this post I discuss some of the reasons why stakeholders are interested in the issue. In a companion post, I discuss reforms that they are implementing and evaluating.

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It’s Tax Season… For Drugs

I spent a few years working on drug cases when I was a prosecutor, so I was generally aware that North Carolina has a set of laws that impose taxes on “unauthorized substances.” See G.S. 105-113.105 – 113. Just like cigarettes, cars, or blue jeans, these unauthorized substances are commodities that people buy and sell, so they are subject to taxation by the state.

I was also aware that, not surprisingly, virtually no one pays these taxes or obtains the appropriate “tax stamps” to put on their drugs and moonshine. Instead, the laws are used primarily as a mechanism to pursue civil forfeiture of a defendant’s assets after he or she is convicted of a drug offense.

But recently, I began to wonder – are these laws purely theoretical? Is it even possible for drug dealers to comply? Does the Department of Revenue keep big rolls of stamps behind the counter, like a post office? What would happen if someone walked into a Revenue office one day and said “hello, will you sell me some tax stamps for illegal substances, please?”

I wanted to find out, so that’s exactly what I did.

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New Bill Proposes GPS Tracking of Domestic Violence Offenders

A bill has been introduced in the legislature that would allow for GPS tracking of domestic violence offenders. Has that been tried elsewhere? Would it be constitutional? Would it open the door to tracking other types of people? This post tackles those questions.

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U.S. Supreme Court Grants Review on Issue of Implied Consent

The United States Supreme Court granted certiorari a few weeks ago to consider whether a state statute authorizing the withdrawal of blood from an unconscious driver suspected of impaired driving provides an exception to the Fourth Amendment warrant requirement. The case, Mitchell v. Wisconsin, arose in Wisconsin, but the issue may sound familiar to practitioners in North Carolina.  Our state supreme court held in State v. Romano, 369 N.C. 678 (2017) (discussed here) that the warrantless withdrawal of blood from an unconscious DWI suspect pursuant to state statute when there was no exigency violated the Fourth Amendment. The Supreme Court of Wisconsin reached a different conclusion in Mitchell. The case provides the United States Supreme Court with an opportunity to tie up the ends it left loose in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016) by clarifying how implied consent laws authorizing blood draws without a suspect’s consent do or do not comport with the Fourth Amendment.

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