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.
Procedure
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.
May a Presentment and Indictment be Issued the Same Day?
A few short years ago, a criminal law practitioner could be forgiven for not knowing what a presentment was—much less how it might properly be utilized. Presentments rarely preceded indictments before 2016. But after the court of appeals held in State v. Turner, ___ N.C. App. ___, 793 S.E.2d 287, 290 (2016), reversed, ___ N.C. ___, 817 S.E.2d 173 (2018), that citations and magistrate’s orders did not toll the two-year statute of limitations for misdemeanors, presentments in impaired driving cases proliferated. By obtaining a presentment from a grand jury, followed by an indictment, the State could ensure the statute of limitations was tolled. That, in turn, eliminated any requirement that the charges be resolved by trial or plea within two years of the date of the alleged offense. Though Turner was reversed by the state supreme court in 2018, the rising use of presentments following the court of appeals’ decision led to increased scrutiny of the procedure.
Some questioned whether a so-called presentment drafted by a district attorney and presented to a grand jury simultaneously with an indictment really was a presentment within the meaning of the state constitution and the criminal procedure act. Last December, the court of appeals in State v. Baker, ___ N.C. App. ___ (2018), considered this argument and weighed in on the proper use of presentments.
North Carolina Sticks with the Rule that Omitting an Element in an Indictment Deprives the Court of Jurisdiction – at Least for Now
Shortly before Christmas, the state supreme court decided a littering case captioned State v. Rankin, __ N.C. __, __ S.E.2d __, 2018 WL 6714931 (Dec. 21, 2018). The majority ruled that because the indictment “failed to . . . allege all . . . elements of the offense . . . the trial court had no jurisdiction to enter a conviction . . . against defendant.” The rule that the omission of an element is a jurisdictional defect is long-standing law in North Carolina, but many other jurisdictions, including the federal courts, have abandoned it. Chief Justice Martin, in dissent, argued that North Carolina should follow suit. This post summarizes the North Carolina rule, explains the controversy in Rankin, discusses why other jurisdictions have left the rule behind, and considers whether the General Assembly might address the issue.
The Duties and Discretionary Power of District Attorneys
Jonathan wrote last month about reform-minded sheriffs in North Carolina and the actions they can and cannot take with respect to enforcement of federal immigration laws. Reform-minded prosecutors also have been in the news of late. Prosecutors in St. Louis and Kansas City announced last year their plans not to prosecute marijuana possession cases, subject to certain exceptions. Boston’s newly elected district attorney, Rachel Rollins, campaigned on a promise to decline to prosecute fifteen enumerated charges, including shoplifting, larceny under $250, trespassing, and stand-alone resisting arrest charges, absent exceptional circumstances. Closer to home, new Durham district attorney Satana Deberry has said that she does not want her office to prosecute misdemeanors or low-level felonies that originate in schools. The national discussion about these and other suggested reforms has included debate about the extent of district attorneys’ discretion to determine which cases will be prosecuted in their districts. Just what are the duties of a district attorney in North Carolina? And how much discretion may a district attorney exercise in carrying out those duties?
Part 2: Double Jeopardy and Beyond
For our last official criminal justice class, we heard from five more teams of students about their research projects. (At the students’ request, we also scheduled an extra evening session to watch the third best movie ever made about the law and lawyers—answer at the end of this post.) Once again, the students worked on a wide range of topics and, once again, I learned from the students. Here are some quick takeaways along with a brief discussion of one of the topics—double jeopardy, or more accurately, the absence of double jeopardy protections in the UK.
What Happens When the Jury Is Instructed on the Wrong Theory?
Suppose the trial court, over the defendant’s objection, instructs the jury on a theory of a crime that is not supported by the evidence. Is the defendant entitled to automatic reversal on appeal? Or, alternatively, must the appellate court evaluate whether the erroneous instruction prejudiced the defendant? The North Carolina Supreme Court answered these questions in State v. Malachi, ___ N.C. ___ (2018), published last Friday, and applied its answer in State v. Fowler, ___ N.C. ___ (2018), decided the same day.
Habeas Relief for Immigration Detainers Gets Put on Ice
Last Monday, North Carolina’s newly-elected sheriffs were sworn into office. A key issue in several of the campaigns was whether the candidates would or would not continue to cooperate with federal immigration enforcement. Incoming Sheriff Garry McFadden announced that he will be ending Mecklenburg County’s participation in the U.S. Immigration and Customs Enforcement (ICE) “287(g) program.” Incoming Sheriff Gerald Baker in Wake County likewise pledged to end his office’s participation in the 287(g) program, and incoming Sheriff Clarence Birkhead in Durham County announced that his office would no longer honor any “detainer requests” from ICE.
Coincidentally, on the same day that those elections were being held, the Court of Appeals decided Chavez v. Carmichael, __ N.C. App. __ (Nov. 6, 2018), which analyzed whether a defendant can challenge immigration detainers in state court on habeas corpus grounds. In addition to answering that central question, the Chavez decision also helps to clarify the sometimes-overlooked distinction between the 287(g) program as a whole and ICE detainers in particular, and it points out an important statutory limitation on the extent to which custodial law enforcement agencies may “decline to investigate” the immigration or residency status of a person in custody.
Part 1: Policing, DNA, Mental Health, and Rehabilitation
What do the topics in the title of this blog post have in common? They were the focus of the students’ criminal justice presentations this week. Nine teams of students, two on each team, have been researching and preparing their presentations throughout the semester. Here are some of my takeaways from the first set of presentations.
Getting Beyond the Checkboxes: Delinquency Dispositional Orders
Editor’s Note: This is the first post by new SOG faculty member Jacqui Greene. Jacqui is our resource in juvenile justice/juvenile delinquency and we’re excited to have her at the SOG and on the blog. This post is, and her future posts will be, cross-posted on the SOG civil blog, On The Civil Side. Welcome, Jacqui!
Dispositional decision making in delinquency cases can be complex. A list of 24 dispositional alternatives are available pursuant to G.S. 7B-2506. The choice among them must be driven by the disposition level allowed by G.S. 7B-2508 and the five factors outlined in G.S. 7B-2501(c). How much information must a court consider in making this decision and what findings need to be in an order of disposition? That question was not clearly answered until May of 2018.