News Roundup

After a plea deal between 9/11 mastermind Khalid Sheikh Mohammed and the U.S. government was declared void by order of Defense Secretary Lloyd Austin, a military judge has now ruled that the plea agreement is valid, the AP reports. The plea agreement calls for a sentence of life imprisonment for Mohammed and his two-codefendants. The Defense Secretary had declared that the deal could not be struck without his approval and that the decades-old proceedings should continue through to trial and possible death sentences. Some families of 9/11 victims and lawmakers also opposed the plea deal. However, the military judge has ruled that it is too late to strike the deal because it was negotiated with proper government authorization and the top official at Guantanamo approved it.

Read on for more criminal law news.

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License Plate Readers, Highway Pilot Program, and New Offense

A few months ago, I wrote about Session Law 2023-151 providing for new sentencing enhancements for breaking or entering motor vehicles and other conveyances. Another part of the bill, Part V, authorizes a pilot program for placing and using automatic license plate readers (ALPRs) on “state rights-of-way.” It also adds G.S. 20-183.33 to Article 3D of Chapter 20, making it a Class 1 misdemeanor for anyone to obtain, access, preserve, or disclose data collected by ALPRs in any manner other than that allowed by the Article. The readers are already in use across much of the state, so what will the effect be of the pilot program? And what are the implications of criminalizing the unlawful access or mishandling of data collected? Read on for more.

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Shifting the Landscape for the Domestic Violence 48-Hour Rule?

The “48-hour rule,” as it is known in domestic violence cases, has been covered on this blog numerous times over the years (see here, here, and here). The rule shifts the responsibility of setting conditions of pretrial release from magistrates to judges in certain cases involving allegations of domestic violence. The rule is set out in G.S. 15A-534.1, which provides that a judge—rather than a magistrate—must set a defendant’s pretrial release conditions during the first forty-eight hours after arrest for certain offenses.

Judicial officials and practitioners who handle criminal domestic violence cases should be familiar with both the statute and the long-standing ruling in State v. Thompson, 349 N.C. 483 (1998), that required dismissal of charges where G.S. 15A-534.1 was violated. Last year, the court of appeals decided State v. Tucker, 291 N.C. App. 379 (2023), which takes a different approach to determining the outcome of a domestic violence case that involves a 48-hour violation. This brief post details the facts of both cases and what Tucker suggests for domestic violence cases moving forward.

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Recent Developments Concerning Geofence Warrants

Five years ago, I wrote about geofence warrants. I said then that “there are zero cases on Westlaw . . . [and] virtually no secondary source material about these warrants.” Times have changed. Now we have cases, including one from the Fourth Circuit, and lots of secondary source material. This post explains the state of the law on geofence warrants.

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News Roundup

People of a certain age will remember the Menendez brothers, Lyle and Erik. In 1989, when they were 21 and 17 years old, they shot and killed their parents in the family’s Beverly Hills mansion. Prosecutors alleged that they wanted their parents’ money, while the defense contended that the shootings were motivated by the brothers’ fear of sexual abuse at the hands of their father. I was living in California then and I remember the media frenzy. My wife was Lyle’s college classmate. So in our house, we have followed with interest the recent developments in the brothers’ cases. Both are serving life terms without the possibility of parole, and by all accounts, have been model inmates. They have habeas petitions pending alleging newly-discovered evidence that supports their claims of being victims of sexual abuse, including a letter allegedly written by one of the brothers eight months before the murders. Simultaneously, Los Angeles County District Attorney George Gascon has moved for resentencing, contending that a reduced term that would render the brothers parole eligible immediately would be in the interests of justice in light of their ages at the time of the crimes and the abuse that they allegedly suffered. Both the habeas petition and the resentencing request are due to be heard in the next month or two, and of course, both are controversial. ABC News has more details here. Read on for more news.

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New Pattern Jury Instructions Now Available

Each year the School of Government publishes new and revised pattern jury instructions for civil, criminal, and motor vehicle negligence cases. Those instructions are created and compiled by the North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions. The 2024 updates are available for free download here. Among this year’s changes are new instructions for crimes recently defined by the state legislature, including patient brokering, street takeovers, new death by distribution offenses, the new misdemeanor crime of domestic violence, and elevated versions of the offense of breaking or entering a motor vehicle. Several existing criminal instructions also have been amended, including the instruction for substituting alternate jurors after deliberations begin (N.C.P.I. – Crim. 100.40). That instruction now includes a note well advising of the ruling in State v. Chambers, 292 N.C. App. 459 (2024), and the stay entered by the North Carolina Supreme Court.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part V, Asserting a Defense Theory

This is Part V of a multi-part series on confidential informants (“CI’s”), motions to reveal the identity of CI’s, and discovery.

As discussed in earlier posts in this series (here and here), the defense is more likely to win a motion to reveal the identity of CI when the defendant is able to tie the potential CI testimony to a particular theory of defense and explain how it furthers that defense. In the landmark case of Roviaro v. U.S., the U.S. Supreme Court listed a variety of ways in which the CI’s testimony might be helpful for the defense and ruled that the CI’s identity must be turned over. However, North Carolina appellate courts have repeatedly stated that the defense cannot merely speculate about how the CI’s testimony might be relevant; the defense must clear an initial hurdle of showing how the testimony might resolve a material conflict at trial in order to prevail on a motion to reveal the identity of the CI. See State v. Dark, 204 N.C. App. 591, 593 (2010); State v. Watson, 303 N.C. 533 (1981). While defenders may invoke their federal due process rights in challenging whether this should be a requirement, they should be aware of what North Carolina appellate courts are demanding.

An interesting strategic implication of Dark and Watson is that in CI cases, the defense may benefit from committing to a particular theory of defense and “showing its cards” to the state in a pretrial hearing. Defenders are often reluctant to call their client to the stand, even in a pretrial hearing, unless the defendant’s testimony appears to be necessary or exceptionally persuasive. Defenders may be concerned about the risk of damaging cross-examination and the possibility that the testimony of an unsavvy client might hurt the case, even where the client is telling the truth (discussions of this dilemma in the media can be found here and here). In cases where there is a viable motion to reveal the identity of the CI, though, the risk will sometimes be worth the possible reward. The prospect of winning a dismissal, a concession in plea negotiations, or suppression of key evidence may counterbalance a tendency by the defense to avoid putting the client on the stand in a pretrial hearing.

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News Roundup

Police in Durango, Colorado, shared a video on Facebook this week of their pursuit and capture of an escaped kangaroo. The N&O has the video. According to the Durango Police Department, it is not illegal in Durango, Colorado, to own a kangaroo as a pet. Read on for more criminal law news.

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Smith v. Arizona and So Many Unanswered Questions

I recently gave a criminal law case update to a group of judges.  I had quite a few cases that I planned to cover in relatively short order. I started with Smith v. Arizona, 602 U.S. 779 (2024), in which the United States Supreme Court held that statements from an absent laboratory analyst that a testifying analyst conveyed to support his expert opinion about the chemical composition of the substances seized from the defendant were hearsay. For that reason, their admission at the defendant’s trial on drug charges raised Confrontation Clause concerns. To my chagrin, twenty minutes later, I was still talking about Smith, attempting to helpfully respond to a barrage of questions from trial court judges about the practical import of the decision for various kinds of testimony frequently proffered by the State during a criminal trial. Those questions included the following:

  • The substitute analysts I see don’t typically rely on another analyst’s report. Instead, they examine the underlying testing data and reach an opinion based on that. Is that testimony admissible?
  • May a supervising analyst who reviewed the testing done by and conclusions of another analyst pursuant to laboratory protocols testify to the conclusions the supervising analyst reached about the identity of the substance?
  • Suppose a new analyst retests a substance. Will he or she be able to establish a sufficient chain of custody for the substance tested given that the substance was initially received and examined by an analyst who is not available to testify?

This post will review what we knew about substitute analyst testimony before Smith was decided, will recap the Court’s analysis in Smith (analyzed in detail here), and will provide some thoughts about Smith’s import that may inform a court’s analysis of the questions posed above.

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