Latest posts in category Procedure on North Carolina Criminal Law Blog

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.

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.

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.

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.

In recent years North Carolina has made several reforms in the field of collateral consequences, expanding opportunities for expunctions of convictions, authorizing courts to issue certificates of relief to limit collateral consequences, and requiring that licensing agencies consider whether a nexus exists between applicants’ criminal conduct and their prospective duties, among other factors. See G.S. 93B-8.1. The changes are helpful but incremental. Our most recent criminal justice class challenged the extensive reliance on collateral consequences in the U.S., the effectiveness of current remedies, and ultimately barriers to reintegration into society of people who have previously been convicted of a crime.

Ordinarily, a pleading that fails to accurately allege every element of the offense is defective and is treated as a jurisdictional nullity. See, e.g., G.S. 15A-924(a)(5) (“as a prerequisite to its validity, an indictment must allege every essential element of the criminal offense it purports to charge”); State v. Harris, 219 N.C. App. 590 (2012) (indictment is invalid and confers no jurisdiction on the trial court if it “fails to state some essential and necessary element of the offense”).

The limited exception to this rule is the somewhat relaxed pleading standard for a citation, which may still be sufficient even if it fails to state every element, as long as it reasonably identifies the crime charged. Shea Denning and Jeff Welty covered that issue in a series of posts available here, here, and here.

Several recent cases from the Court of Appeals have offered a good reminder about another important corollary to the general rule for pleadings:  although an indictment must “allege every element” in order to be valid, the state has quite a bit of flexibility in how that standard can be met.

In February 1843, Daniel M’Naughten was tried in London for the murder of Edward Drummond, the private secretary to Prime Minister Robert Peel. M’Naughten was laboring under the delusion that Prime Minister Peel was part of a system that was persecuting him. Only by shooting Peel could he end the torment. Drummond became the victim of these delusions when M’Naughten mistook him for Peel. The trial of M’Naughten, the verdict of insanity, and the aftermath made legal history.

Schools across the country experienced a “dramatic uptick” in threats of school-related violence following the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida in February 2018. One set of researchers reported that in the thirty days after the Parkland shooting, threats and incidents of violence in schools nationally increased by more than 300 percent–from an average of 13.2 threats and incidents per day to 59.4 per day. The national trend played out in North Carolina as well, with schools in several North Carolina counties responding to several reported threats of violence in the weeks following the Parkland massacre. When such threats were made, it wasn’t always clear whether they amounted to a crime. The actions often were a poor fit for the two most obvious candidates: communicating threats (because the threat was not always communicated to the person threatened) and making a false report concerning mass violence on educational property (because it wasn’t always clear that the person who made the threat had made a report that the person knew to be false).

The General Assembly responded last June to this gap in the criminal code by enacting a new crime, communicating a threat of mass violence on educational property, effective for offenses committed on or after December 1, 2018.

My recent criminal justice class involved forensics so, being in London, it seemed only fitting to take a look at Sherlock Holmes and his methods. What was the impact of Arthur Conan Doyle’s fictional character on the development of forensics? What can we learn from Holmes more than 130 years after his first appearance in the classic A Study in Scarlet?

It was an epic throw down between two powerhouse teams on Monday in the heart of London. I don’t mean basketball. I certainly don’t mean football. I mean the moot court competition between UNC’s School of Law students and Middle Temple’s barristers-in-training (see earlier post this fall about Middle Temple). No winner was declared, to the disappointment of my students who were rooting on their fellow Tar Heels. But, the teams racked up the legal and educational points.