Interest in bail reform is heating up in North Carolina. The Chief Justice’s North Carolina Commission on the Administration of Law and Justice recommended implementing evidence-based pretrial justice reform, and reform already is happening in several counties. The North Carolina Courts Commission took up the issue at its September 2018 meeting and Attorney General Josh Stein recently announced a stakeholder Roundtable on the topic. Among the reasons for the interest is this: Litigation risk. Advocates of bail reform have racked up wins in other jurisdictions. In March, I wrote (here) about a recent Fifth Circuit decision holding that the bail system in Harris County Texas violated due process and equal protection. (That opinion was superseded after rehearing but the court’s holding remains essentially the same). In August, the Eleventh Circuit decided Walker v. City of Calhoun, GA, ___ F.3d ___, 2018 WL 4000252 (11th Cir. Aug. 22, 2018). Here’s what happened there:
News Roundup
As all North Carolinians know, Hurricane Florence brought torrential rain to the eastern part of the state, causing widespread flooding and other damage. At the time of this writing, Wilmington remained largely inaccessible, with the Department of Transportation saying Thursday morning that there was “no safe, stable or reliable route” of public access into or out of the city. Many other communities along the coast and in southeastern North Carolina are in similarly challenging situations. The North Carolina Disaster Relief Fund is accepting contributions to help with immediate unmet needs of Hurricane Florence victims. Our thoughts are with everyone affected by the storm. Keep reading for more news.
The Old Bailey: A Typical Trial Docket in an Atypical Setting
Earlier this week, the students and I spent the afternoon at Central Criminal Court in London, formerly called the Old Bailey and located at the intersection of Old Bailey and Newgate streets in the heart of London’s law district. I can guarantee that this post will not be as captivating as Rumpole of the Bailey, the British television series about fictional barrister Horace Rumpole. But, like most trips to court, it was certainly interesting.
It’s a Bird, It’s a Scooter, It’s an Overnight Sensation . . . But Is It Legal?
(Author’s note: The last section of this post was added after its initial publication.)
Electric scooters have recently appeared overnight in cities across North Carolina. The scooters, most of which are owned by the Bird Rides company, have been deposited without advance announcement in downtown areas. Would-be riders download an app that allows them to scan a code on the scooter that unlocks it. The scooter can then be ridden for $1 start-up charge plus 15 cents per minute. The app instructs users to ride in bike lanes where available and to avoid pedestrians on the sidewalk. It also states that traffic regulations prohibit riding on sidewalks, in public parking structures, without a helmet, and without a valid driver’s license. Is all of that correct? And can these scooters lawfully be operated on North Carolina streets?
Self-defense, Intent to Kill and the Duty to Retreat
Consider the following scenario: Driver Dan is traveling down a dark county two-lane road in his sedan. Traffic is light but slow due to the cold weather and mist. Another driver in a truck appears behind Dan and starts tailgating him, getting within a few feet of his bumper. After unsuccessfully trying to pass Dan, the other driver begins tailgating Dan even more, now staying within inches of his bumper. When the cars ahead turn off and the road is clear, slows to let the other driver pass, but the other driver continues closely riding Dan’s bumper for several miles, flashing high beams at times. Eventually, the other driver pulls alongside Dan and begins “pacing” him, staying beside Dan’s car instead of passing. The other driver then begins to veer into Dan’s lane, forcing Dan’s passenger-side tires off the road. As Dan feels the steering wheel begin to shake, he fears losing control of his car and decides to defend himself with his (lawfully possessed) pistol. He aims through his open window at the other driver’s front tire and shoots, striking it and halting the other vehicle. The other driver stops without further incident, and Dan leaves. Dan is eventually charged with shooting into an occupied and operating vehicle, a class D felony and general intent crime.
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Security Searches at Courthouses
To enter most courthouses these days, a person must submit to a security search. Often, one must walk through a metal detectors and pass one’s personal items through an x-ray device. Are these security procedures constitutional? Are there any limits to how intrusive they may be? Read more to find out.
News Roundup
This News Roundup was written on Wednesday prior to UNC’s closure on Thursday and Friday in anticipation of the arrival of hurricane Florence. Our thanks go out to all of the state and local officials, law enforcement agencies, and emergency response personnel who are working to keep North Carolinians safe during the storm. Keep reading for more news.
Magna Carta 800 Years and Counting
My criminal justice students and I visited the British Library this morning to view an original Magna Carta (several originals were created by hand). I had considered taking them to Runnymede, the fabled meadow where the English barons forced King John to sign Magna Carta over 800 years ago in the year 1215. Apart from the time it would take to get there from London, I learned the British had repurposed the space to suit modern life. Runnymede is now considered an . . .
An Update on Life with and without Parole for Young Defendants
In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that a sentencing regime that makes life without parole mandatory for a murder committed by a defendant under the age of 18 is unconstitutional. The rule applies retroactively. Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct. 718 (2016). North Carolina amended its statutes to comply with the ruling in 2012, enacting G.S. 15A-1340.19A through -1340.19D to create an option to sentence certain young defendants to life with the possibility of parole after 25 years. Today’s post considers where we are after a half-decade under the new regime.
Unpublished Cases: What’s the Law?
As far as I know, July 21, 2015, was a pretty normal day at the North Carolina Court of Appeals. The court published around a dozen opinions. Most of them dealt with issues like worker’s compensation and equitable distribution, but there were a few criminal cases. One of them was State v. Saldierna, a juvenile interrogation case, which was later reversed. Bob Farb blogged about that here.
In other words, just another day at the office.
The court also released more than 30 additional opinions on the same day, on the same website, written by the same judges, and many of them addressed hot-button criminal topics like lay witness identification of drugs, custodial interrogations of juveniles, sufficiency of a drug indictment, and improper closing arguments.
But those cases were marked as “unpublished,” so we all pretty much just ignored them and pretended they didn’t happen.
Wait… what? What are unpublished cases? We’re told that citing to them is “disfavored,” so are they good law or not? Who decides which cases make the cut for publication? And more importantly — why? In a digital world where cases are available online, what does “unpublished” really mean? And why are we talking about July 21, 2015?
So many questions. I have one or two answers.