Last week I had the pleasure of hosting around 40 attorneys for the second part of a new course, Higher Level Felony Defense. The first part, held in early 2018, focused primarily on preparing a case for trial. We also included a deep dive into jury selection. This second part focused on common issues in serious felony cases as well on sentencing advocacy. As a new program, I’m sure it will evolve, but I thought the first iteration was promising and wanted to talk briefly about the program and our goals.
North Carolina Sticks with the Rule that Omitting an Element in an Indictment Deprives the Court of Jurisdiction – at Least for Now
Shortly before Christmas, the state supreme court decided a littering case captioned State v. Rankin, __ N.C. __, __ S.E.2d __, 2018 WL 6714931 (Dec. 21, 2018). The majority ruled that because the indictment “failed to . . . allege all . . . elements of the offense . . . the trial court had no jurisdiction to enter a conviction . . . against defendant.” The rule that the omission of an element is a jurisdictional defect is long-standing law in North Carolina, but many other jurisdictions, including the federal courts, have abandoned it. Chief Justice Martin, in dissent, argued that North Carolina should follow suit. This post summarizes the North Carolina rule, explains the controversy in Rankin, discusses why other jurisdictions have left the rule behind, and considers whether the General Assembly might address the issue.
News Roundup
On Monday, North Carolina leaders attended a ceremonial session of the North Carolina Supreme Court convened to honor the court’s 200th anniversary. The celebratory session featured a documentary video and remarks by current and former justices of the Court. WRAL has a story about the event here and the AOC has a post about it here. Keep reading for more news.
2018 North Carolina Sentencing Handbook Available
Shea and I are pleased to announce the availability of the 2018 edition of the North Carolina Sentencing Handbook with Felony, Misdemeanor, and DWI Sentencing Grids.
The Duties and Discretionary Power of District Attorneys
Jonathan wrote last month about reform-minded sheriffs in North Carolina and the actions they can and cannot take with respect to enforcement of federal immigration laws. Reform-minded prosecutors also have been in the news of late. Prosecutors in St. Louis and Kansas City announced last year their plans not to prosecute marijuana possession cases, subject to certain exceptions. Boston’s newly elected district attorney, Rachel Rollins, campaigned on a promise to decline to prosecute fifteen enumerated charges, including shoplifting, larceny under $250, trespassing, and stand-alone resisting arrest charges, absent exceptional circumstances. Closer to home, new Durham district attorney Satana Deberry has said that she does not want her office to prosecute misdemeanors or low-level felonies that originate in schools. The national discussion about these and other suggested reforms has included debate about the extent of district attorneys’ discretion to determine which cases will be prosecuted in their districts. Just what are the duties of a district attorney in North Carolina? And how much discretion may a district attorney exercise in carrying out those duties?
An Appreciation of the Many Roles and Responsibilities of a District Court Judge
In December, the School of Government held the first week of orientation for new district court judges. The class included thirty-one new judges. Most of the judges took the bench January 1, though a handful were sworn in last year to fill vacancies by gubernatorial appointment. One of the challenges in creating an orientation program … Read more
Lawful Gun Possession and Encounters with Police
During a Terry stop, an officer who has reasonable suspicion that a suspect is armed and dangerous may frisk the suspect and may confiscate any weapons that the officer finds. Does an officer have the same authority during a traffic stop? In other words, if an officer reasonably suspects that a driver is in possession of a gun, even lawfully, may the officer confiscate the gun for the duration of the stop as a safety precaution? What about during a consensual encounter between an officer and a pedestrian?
News Roundup
Yesterday afternoon, the House passed the bipartisan federal criminal justice reform bill known as the “First Step Act,” sending the bill to President Donald Trump who has said that he will sign it into law. The News Roundup previously discussed some of the provisions of the bill in this post. Among other things, the bill gives judges increased discretion in sentencing certain offenses and aims to place prisoners in facilities closer to their homes so that families can visit more often. This is the final blog post of the year, we’ll resume posting on Monday, January 7. Enjoy the holidays and keep reading for more news.
My London Experience
As part of this semester’s study abroad program, I asked the 25 Carolina students to identify and write up a memorable London experience. Having given them the nearly impossible task of picking just one experience to memorialize, it’s only fair that I do the same in my last blog post from London.