Latest posts in category Uncategorized on North Carolina Criminal Law Blog

This week the Tenth Circuit ruled that a condition of supervised release that required a man convicted of distributing child pornography to complete a sex offender treatment program violated the Fifth Amendment.  The particular program at issue included a sexual history polygraph that required the man to answer questions about whether he had committed sexual crimes for which he was never charged.  The program also required him to “sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities.”  The court determined that the threat of being returned to prison for refusing to answer the polygraph questions, and thus violating supervised release, unconstitutionally compelled the man to be a witness against himself.  Keep reading for more news.

Earlier this year, the News Roundup noted that the United States Supreme Court held in Hurst v. Florida that Florida’s capital sentencing scheme was unconstitutional under the Sixth Amendment because it permitted a judge to increase a defendant’s maximum authorized punishment based on the judge’s own factfinding rather than that of a jury.  The Defender Manual has an overview of the development of the Court’s Sixth Amendment jurisprudence on this issue here.  Now the Florida Supreme Court has to decide what to do about the nearly 400 inmates awaiting execution who were sentenced under the unconstitutional scheme.  The Palm Beach Post reports that former Florida Supreme Court justices were “among a handful of leading lawyers,” including two former American Bar Association presidents, calling for the court to impose life sentences on all of the inmates in a blanket commutation.

Closer to home, the North Carolina Court of Appeals decided that old G.S. 14-27.4A(c) (now codified as G.S. 14-27.28(c)), a statute which “purports to provide the trial court with the unfettered ability to lengthen a defendant’s sentence .  . . with no input from a jury,” is unconstitutional based on the same line of Supreme Court cases implicated in Hurst.  The case is State v. Singletary, and, as the opinion notes at page 28, Jessie and John have predicted for some time that the North Carolina statute likely was unconstitutional.  Keep reading for more news:

There seem to be fewer and fewer reported decisions about criminal discovery in North Carolina. A recent North Carolina Supreme Court decision finding a discovery violation by the prosecution, State v. Davis (Apr. 15, 2016), made me wonder why. This post reviews the evolution of North Carolina’s criminal discovery laws, which has brought relative calm to this area of law, along with the decision in Davis, which deals with a recurring issue about disclosure of expert opinion.

The North Carolina General Assembly’s short session began Monday.  On the first day of the session, supporters and opponents of HB2 held well attended dueling rallies in Raleigh according to this report from the Charlotte Business Journal.  The Wall Street Journal has a national perspective on the rallies here. Democratic legislators filed a bill to repeal HB2, but Senate President Pro Tem Phil Berger has stated that repeal is not on the Republican agenda. The News and Observer reports that 54 protestors opposed to HB2 were arrested inside the Legislative building after refusing to leave House Speaker Tim Moore’s office and the area around it.  Keep reading for more news.

The United States Supreme Court and North Carolina appellate courts have ruled that a defendant must make an unambiguous request for counsel under Miranda to bar an officer’s custodial interrogation. A week ago, the North Carolina Court of Appeals in State v. Taylor (April 19, 2016), ruled that the defendant did not make an unambiguous request for counsel under Miranda. This post provides the background to this issue and discusses the Taylor ruling.

House Bill 2 continues to be a major topic in the local and national news this week.  As the Charlotte Observer reports, Governor McCrory defended the legislation on NBC’s “Meet the Press” on Sunday morning.  McCrory’s appearance followed his issuance of an Executive Order last week that calls for the legislature to restore a State cause of action for wrongful discharge based on employment discrimination, but does not call for changes to the controversial restroom regulations.

On Tuesday, the Fourth Circuit Court of Appeals issued a 2-1 decision that reversed a lower court’s dismissal of a transgender high school student’s lawsuit alleging that his local school board discriminated against him in violation of Title IX by banning him from using the boys’ restroom at his school.  The Fourth Circuit determined that the lower court did not “accord appropriate deference to the relevant Department of Education regulations” which the Department has interpreted as requiring schools to treat transgender students consistent with their gender identity.  As the Charlotte Observer reports, the McCrory administration filed a brief in the case supporting the Virginia restroom ban.

Officer-involved shootings have been a frequent topic of national news in recent months.  This week, there have been notable developments in two North Carolina cases.  First, the News and Observer reports that a Harnett County grand jury declined to indict a sheriff’s deputy, Nicholas Kehagias, who shot and killed John Livingston in November.  The report indicates that the decision comes “after months of unease in Harnett County” that included protests in front of the courthouse by Livingston’s friends and family.  The jury reportedly was asked to consider second-degree murder charges.  Though Kehagias will not face criminal charges, the News and Observer reports that Livingston’s family will pursue a civil case against him.

The other North Carolina case in the news involves a February incident in which Raleigh police officer D.C. Twiddy shot and killed Akiel Denkins.  WRAL reports that Wake County District Attorney Lorrin Freeman announced Wednesday that no criminal charges will be filed against Twiddy.  The announcement follows an SBI investigation into the incident.  The report says that community leaders “appeal[ed] for calm in the community” at a prayer vigil on Wednesday night, and notes that local officials praised the community for maintaining calm throughout the investigation.  Keep reading for more news:

Federal law and North Carolina law each prohibit in their own ways the possession of a firearm by a felon and, under federal law, certain domestic violence misdemeanors as well. A recent Fourth Circuit Court of Appeals case ruled that a North Carolina felony conviction did not qualify to prove the federal offense of possession of a firearm by felon. The fact that this conviction likely would qualify for the North Carolina offense leads to this post that provides a general overview of the differences.

As previously noted by the News Roundup, the FBI was able to unlock an iPhone belonging to one of the shooters in the San Bernardino terror attacks without Apple’s assistance.  Now that the FBI has this capability, local law enforcement agencies and district attorneys’ offices anticipate that they will ask the FBI to help access cellphones in investigations of criminal offenses, according to a report from the Charlotte Observer.  The report indicates that about 20 percent of the phones examined by the Charlotte-Mecklenburg Police Department’s cybercrime unit are encrypted and the unit has been unable to access information on the devices.  Keep reading for more news.

In 2015, the Office of Indigent Defense Services (IDS) asked the School of Government to conduct an online survey of how superior and district court judges view IDS’s administration of indigent defense in North Carolina. Last week, the School issued its report of the survey results, Trial Judges’ Perceptions of North Carolina’s Office of Indigent Defense Services: A Report on Survey Results (March 2016) (referred to below as the Report). The verdict? Judges have a positive view of IDS’s performance, overall and in several key areas, but the results include a few warning signs for indigent defense.