Articles in the Procedure category - Page 23 of 77

On July 6, wealthy financier Jeffrey Epstein was arrested and charged with sex trafficking. He’s being held without bond on the charges, which were brought by the United States Attorney’s Office for the Southern District of New York. In 2008, Epstein pled guilty to related conduct in state court in Florida, pursuant to a non-prosecution agreement with the United States Attorney’s Office for the Southern District of Florida. Is the government trying to take a second bite at the apple? Can they do that? Could something like that happen in North Carolina?

When can a court arrest judgment in a case? And what does it mean to do so?

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).

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.

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.

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”?

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.

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.