Over the past several months, the Indigent Defense Education group at the School of Government has been working on updating and expanding its free resources for indigent defenders. On our Indigent Defense Manuals website, you can find new editions of the Immigration Consequences Manual and Juvenile Defender Manual as well as the first installment (on motions practice) of a new Practice Guide Series. Also now available are an updated Expunction Guide and a new edition of a general reference for judges and attorneys on Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings (prepared by our colleagues Sara DePasquale and Jan Simmons with support from the Administrative Office of the Courts Court Improvement Program). For our two-volume criminal defender manual, we’re taking a slightly different approach and are posting chapters as we complete them. The first ones—on Personal Rights of the Defendant and Duties of the Presiding Judge—are hot off the computer and ready for use. In the next several months, we will be posting several more updated chapters in both Volume 1 on pretrial procedure and Volume 2 on trial procedure.
Procedure
Fifth Circuit: Bail System Violates Due Process & Equal Protection
Organizations around the country have called for bail reform. Here at home, a report by the North Carolina Commission on the Administration of Law and Justice recommended that North Carolina move forward with pretrial justice reform. A recent Fifth Circuit case holding that the bail system in Harris County, Texas violates due process and equal protection may create an impetus for jurisdictions to act: Litigation risk.
State v. McCaster and the Recalcitrant Probationer
Suppose a defendant is convicted of a class I felony and has a prior record level of I. That’s a “C” block on the felony sentencing grid, where only community punishment is authorized. Community punishment can include a range of punishments from a fine only, up to supervised probation, but does not encompass a straight active sentence. The defendant informs the sentencing court that she wants to serve her time in prison. The defendant further explicitly states she will not accept probation and refuses to meet with probation, missing several opportunities to begin the intake process. What options does the trial court have?
Determining Probable Cause for Drug Crimes without Field Tests
Some law enforcement agencies concerned about officers’ exposure to fentanyl have stopped field testing white powders. A question I’ve had several times is whether a magistrate may find probable cause for a drug offense involving a white powder without a field test. The answer to that question is yes, so long as the totality of the circumstances provides reason to believe that the powder in question is a controlled substance.
Could Gun Violence Restraining Orders Prevent Another Parkland?
One month ago today, a gunman who police say was armed with an AR-15 rifle walked into Marjory Stoneman Douglas High School in Parkland, Florida and opened fire, killing 17 people. Today, in schools across the country, including many in North Carolina, students plan to recognize the Parkland victims by walking out of class for 17 minutes. Some participants also plan use the walkout as a platform to advocate for stricter gun control. Debate over the appropriate legislative response to this tragedy has raged—and ranged—over the past several weeks. Some have called for arming teachers. Others have advocated for barring a person under 21 from purchasing an assault rifle. And last week, an op-ed in the Washington Post advocated a relatively new variety of weapons restriction: Gun violence restraining orders.
Relief Guide 2017
Expunging criminal record information can be like removing ants from under your refrigerator. Just when you think you’ve eliminated all the ants/information, there’s another trail. That’s how a talented attorney in this field described the process in her article of the same name here. It’s also an apt description for figuring out the legal requirements, procedures, and forms for obtaining an expunction, in North Carolina and elsewhere. Here’s my latest effort, the 2017 Guide to Relief from a Criminal Conviction in North Carolina.
Defrauding an Older Adult is Its Own Kind of Crime
The art of swindling is as old as time, and governments have worked for centuries to combat the practice. Indeed, North Carolina first criminalized the obtaining of property by false pretenses in 1811. In more recent years, the legislature has focused on a set of victims who are especially vulnerable to financial fraud: older adults. Financial exploitation of such a person is its own kind of crime—a crime that may be subject to more severe punishment than other types of fraud and that encompasses a broader array of deceptive behavior. Assets obtained through such fraud may also be frozen or seized pending the resolution of the criminal case to ensure that the victim receives the restitution he or she is owed.
Prosecutor for Hire?
Editor’s note: This is the first blog post by Jonathan Holbrook, who began working with the School of Government last July as our first Prosecutor Educator. Jonathan knows the field, having worked as a prosecutor for nearly 10 years, first in state court with the Wake County District Attorney’s Office, and then in federal court with the U.S. Attorney’s Office. Please welcome him to the School – and to the blog.
I am truly honored to join the staff here at the School of Government, and excited to have this opportunity to help set the course for the new position of Prosecutor Educator. Over time, my role here will likely expand to include more training and advising, similar to the great work Phil Dixon currently does with defense attorneys in his capacity as the Defender Educator. But for now, my primary focus is on a large project related to the Prosecutors’ Trial Manual, which has not been updated since 2012. The manual is one of many works written and maintained by long-time faculty member Bob Farb, who retired from the School of Government last year. Rather than simply update and re-publish the existing manual, the School of Government (in consultation with an advisory committee of veteran prosecutors) is converting that material into a robust and searchable online knowledge base of North Carolina criminal procedure. This new resource will preserve the rich content and extensive research from the current manual, but in a format that is much easier to update, search, and navigate.
One of the benefits of engaging in this top-to-bottom revision of the old manual has been learning and re-learning all the nuts and bolts – and hidden gems – of North Carolina criminal procedure. The rest of this post focuses on an interesting topic that recently caught my eye, and which I think might be surprising to some readers as well.
Real-Time Cell Phone Tracking Update, Including a New Case
The Court of Appeals of North Carolina recently decided a case about police obtaining real-time location information from a suspect’s cellular service provider. The case does not address the principal controversy concerning such information. Nonetheless, it provides a good refresher on the issue and marks a good time for an update on the national controversy about this issue.
New Developments Regarding Risk Assessments
Risk assessment tools are starting to take root in the criminal justice system. They’re used to make decisions about pretrial release, sentencing, and the level of supervision or custody to which a defendant will be subject. Some of the results are encouraging. For example, Mecklenburg County uses a risk assessment developed by the Laura and John Arnold Foundation to help make pretrial release decisions. The pretrial services office there reports that the risk assessment has contributed to “transformational change” in how pretrial justice is administered, with fewer secured bonds being imposed the jail population falling with no harm to public safety. Based in part on Mecklenburg’s success, the North Carolina Commission on the Administration of Law and Justice encouraged the creation of a pilot project that would “implement and assess more broadly . . . an empirically derived pretrial risk assessment tool.”