Attorney General Josh Stein now appears to be highly unlikely to be charged criminally over a campaign ad he ran in the last election cycle. The ad charged that Stein’s opponent in the 2020 election – Forsyth County District Attorney Jim O’Neill – “left 1,500 rape kits on a shelf leaving rapists on the streets.” O’Neill complained to the State Board of Elections, contending that the ad was false and violated G.S. 163-274(a)(9), which makes it a misdemeanor to “publish . . . derogatory reports with reference to any candidate . . . knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.” The Board recommended taking no action, but Wake County District Attorney Lorrin Freeman asked the SBI to investigate further, and ultimately informed Stein that she was planning to submit the matter to a grand jury. Stein then sued in federal court, asserting inter alia that the statute is unconstitutional and seeking an injunction against Freeman. The district court declined to issue a preliminary injunction, but this week the Fourth Circuit said that it is pretty sure that the statute is unconstitutional and so the district court should reconsider. The main problem with the statute is that it “likely criminalizes at least some truthful speech,” namely, a “derogatory report[]” that is made in “reckless disregard of its truth or falsity” but that turns out to be true. Although the Fourth Circuit did not expressly instruct the district court how to proceed, any path forward for criminal charges now appears to be narrow at best. WRAL has more here. Keep reading for more news.
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N.C. Supreme Court Weighs in, Again, on Forfeiture of Counsel
In December, the North Carolina Supreme Court decided State v. Atwell, 2022-NCSC-135, ___ N.C. ___ (2022)—its third time weighing in on the issue of forfeiture of counsel. The defendant had had five court-appointed attorneys when the trial court determined that the defendant was engaging in delay tactics and entered an order of forfeiture. A majority of the Court of Appeals found no error. In reversing this decision, a majority of the Supreme Court concluded that the record did not show that the defendant engaged in the level of conduct sufficient to warrant a finding of forfeiture.
This post discusses State v. Atwell, forfeiture guidelines as set forth by the state Supreme Court, and suggested practices in dealing with forfeiture of counsel issues.
The Effect of Legal Hemp on Drug Dog Sniffs (Part I)
Hemp and hemp products are now legal under state and federal law. Hemp is the same plant as marijuana and contains the same chemical compounds, though in different concentrations. Could a drug dog trained to detect marijuana alert on legal hemp? If so, does that impact whether a dog sniff is a search under the Fourth Amendment? And does it mean that a drug dog’s alert no longer provides probable cause to search a vehicle? This two-part series tackles those questions.
News Roundup
The New York Times story about Tyre Nichols’ funeral is here. Rev. Al Sharpton delivered the principal eulogy, but there were many speakers, including Mr. Nichols’ mother and Vice President Harris. A common theme was a desire to see changes in policing. The Vice President specifically demanded that Congress pass the George Floyd Justice in Policing Act. Relatives of Mr. Floyd, Breonna Taylor, and Eric Garner were among the mourners. Keep reading for more news.
NC Supreme Court Orders Trial Court to Reconsider Gag Order in Greensboro Body Camera Case
The North Carolina Supreme Court held last December in In re Custodial Law Enforcement Recording, 2022-NCSC-125, 881 S.E.2d 96 (2022), that a trial court abused its discretion in denying the City of Greensboro’s motion to modify restrictions imposed on the release of police body camera recordings. The trial court had previously entered an order that allowed members of the Greensboro City Council to view the recordings, but prohibited them from disclosing or discussing their contents to or with others. When the City sought reconsideration of that order on the basis that the restrictions prevented council members from carrying out their duties, the court summarily denied the motion after noting that council members had not “bothered to watch” the video. The Supreme Court determined that the trial court’s failure to consider the City’s reasons for seeking the modification, relying only on council members’ failure to watch the recordings while the restrictions were in place, demonstrated an abuse of discretion.
Taking a Leave to Work for the New Department of Adult Correction
Effective January 1, 2023, the state correctional system was transferred from the Department of Public Safety to its own cabinet-level department, the Department of Adult Correction. S.L. 2021-180, sec. 19C.9. The new department includes prisons and probation; juvenile justice will stay in the Department of Public Safety. After 16 years at the School of Government, I will be taking a leave of absence to work as the Senior Policy Advisor for the new department.
May an Officer Stop a Car to Serve an Occupant with a Subpoena or Other Civil Process?
Suppose that Victor Victim was the victim of a non-fatal shooting. Law enforcement has charged Dan Defendant with the crime, but Victor is not enthusiastic about testifying against Dan and has not cooperated with the police and the prosecutor in the run-up to the trial. The State has issued a subpoena to compel Victor’s attendance. Olga Officer is out looking for Victor when she sees him driving by. May Olga stop Victor’s car in order to serve him with the subpoena?
News Roundup
The Associated Press reports here that “[f]ive fired Memphis police officers were charged Thursday with murder and other crimes in the killing of Tyre Nichols, a Black motorist who died three days after a confrontation with the officers during a traffic stop.” The officers allegedly beat Mr. Nichols to death. All five have been charged with second-degree murder among other crimes. Video of the incident is expected to be released to the public today and those who have seen it describe it as “horrific.” In a local connection, the Chief of Police in Memphis is CJ Davis, who served in a similar position in Durham until 2021. Chief Davis fired the five officers and has described their conduct as “a failure of basic humanity.” The officers’ attorneys say that they have little information about the case but that none of the officers intended to kill Mr. Nichols. Keep reading for more news.
Nontestimonial Identification Orders in Delinquency Matters
The law that governs the use of nontestimonial identification procedures in delinquency matters is markedly different than the law that governs use of these same procedures in criminal matters. The Juvenile Code requires a court order prior to the use of most nontestimonial identification procedures, a nontestimonial identification order (NTO) can only be issued in relation to felony charges, there are specific statutes that govern the destruction of resulting records, and the willful violation of the juvenile NTO statutes carries a criminal penalty. This post describes when NTOs are needed, and the procedure that must be followed to obtain them, in matters under juvenile jurisdiction.
News Roundup
The lead story in our December 9 news roundup was the Moore County power outage that resulted from the shooting of two local power substations. This week, several news outlets reported that another North Carolina power substation appears to have been damaged by gunfire. This time the damage occurred in Randolph County, was quickly contained, and no customers lost power. Local and federal authorities are investigating the incident.