blank

Thirsty for Criminal Law Trivia this Thursday?

Earlier this week, I was asked to provide a criminal law case update to a group of attorneys. I started the session by giving them a quiz, which I thought could go one of two ways. Possibly, they’d know all the answers and tune me out for the next hour. On the other hand, maybe they’d have some uncertainty, and some interest, and would tune in to see what the court said. Fortunately, on Tuesday, the latter sentiment prevailed.

Given that our readers are voracious consumers of criminal law, I thought you might enjoy taking the quiz and seeing what you know – or don’t – about recent decisions from the appellate courts. Interest piqued? Try your hand at answering the questions below.

Read more

blank

Charging the Felony After a Misdemeanor Appeal

This question has come up more than once around here lately, so I thought it would be worth summarizing in a blog post.

The defendant is in district court charged with a routine misdemeanor (e.g., larceny, assault, or DWI). The state has additional evidence that would support pursuing a related felony charge instead (e.g., new information about the value of the stolen property, the severity of the injuries inflicted in the assault, or the defendant’s multiple prior convictions for DWI). The prosecutor and the defense attorney talk it over, and they reach a deal: the state will not bring the higher felony charge, but only if the defendant pleads guilty to the misdemeanor – right now, as charged, take it or leave it.

The defendant agrees and enters a guilty plea. Then, a few days later, the defendant gives notice of appeal to superior court for trial de novo on the misdemeanor. May the state now prosecute the felony charge in superior court?

This post walks through the legal arguments for and against it, and then offers a few suggestions on how the state can avoid getting caught in this trap in the first place, including one option whose persistent absence from North Carolina criminal practice really puzzles me: a basic appeal waiver.

Read more

blank

A Simple Idea for Reducing FTAs on Summonses: Redesign the Form

In a series of posts I’ve been discussing bail reform in North Carolina and various options to reduce pretrial detentions that do more harm than good. Some of the solutions are tough and complicated. Here I offer one potential solution that’s neither hard nor complex: Redesign the Criminal Summons form.

Read more

blank

News Roundup

This week federal prosecutors announced that they have charged the chairman of the North Carolina Republican Party, Robin Hayes, and a political donor who owns an insurance company, Greg Lindberg, with attempting to bribe State Insurance Commissioner Mike Causey.  Reports say that Lindberg, along with two associates who also have been charged, met with Causey repeatedly to discuss exchanging campaign donations for favorable treatment with respect to a financial examination that was being conducted on one of Lindberg’s businesses.  Hayes allegedly also attempted to persuade Causey on behalf of Lindberg.  Causey reported the scheme and worked with federal authorities during the investigation; he said this week that the case was complex and that more indictments could be forthcoming.  Keep reading for more news.

Read more

blank

What Happens When Prosecutors Stop Asking for Cash Bail?

Philadelphia’s recently elected district attorney implemented a No-Cash-Bail reform policy, providing that the district attorney’s office would stop asking for cash bail for defendants charged with 25 misdemeanor and felony offenses. A study of that policy change found, among other things, that it led to an increase in defendants released with no monetary or other conditions, a decrease in the number of defendants who spent at least one night in jail, but no accompanying change in failures to appear (FTAs) or recidivism. Aurelie Ouss & Megan Stevenson, Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail (George Mason Legal Studies Research Paper No. LS 19-08, Feb. 17, 2019). Those skeptical of eliminating cash bail have argued that taking a monetary incentive out of the system would result in higher FTAs and increases in pretrial crime. Id. at 5. The new study undermines those assertions.

Read more

blank

Do Expunctions Matter?

Intuitively, the answer seems obvious—a clean record should reduce reentry barriers for employment and other opportunities. Yet, data on the impact of expunctions is elusive because, by their nature, expunged records are unavailable to analyze. No longer. A recent study by J.J. Prescott and Sonja B. Starr, law professors and co-directors of the Empirical Legal Studies Center at the University of Michigan, presents the results of a statewide study pursuant to a data-sharing agreement with the State of Michigan.

Read more

United States Supreme Court Rejects Another Challenge to Another Method of Lethal Injection But Leaves the Door Open to Future Litigation

The Supreme Court decided Bucklew v. Precythe today, rejecting a death row inmate’s challenge to Missouri’s single-drug execution protocol. Challenges to lethal injection are now 0-for-3 in the Supreme Court, but the Court did not foreclose future litigation. To the contrary, it left the door open to further challenges, and so did nothing to break up the litigation logjam that has resulted in a de facto moratorium on executions in North Carolina.

Read more

blank

News Roundup

Late last week Special Counsel Robert Mueller submitted his report on the investigation into Russian meddling in the 2016 presidential election.  Attorney General William Barr wrote a summary of the report to members of Congress on Sunday, saying that the report has two parts, one focusing on whether the Trump campaign coordinated with the Russian government and the other focusing on whether President Trump obstructed justice.  Barr quotes the report as stating that “the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”  Barr’s summary says that the Special Counsel did not “make a traditional prosecutorial judgment” on the question of obstruction, and quotes the report as stating that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”  Along with Deputy Attorney General Rod Rosenstein, Barr said that he had concluded that the evidence in the report is “not sufficient to establish that the President committed an obstruction-of-justice offense.”  Keep reading for more news.

Read more