Earlier this year, I had the opportunity to participate in a national roundtable, sponsored by the American Law Institute and National Conference of State Legislatures, on current and possible approaches to relieving the consequences of a criminal conviction. We considered three basic approaches: “forgetting” convictions by expunging them or limiting access to information about them; “forgiving” convictions through, among other things, certificates of relief, also known as certificates of rehabilitation; and “forgoing” convictions by diverting matters before conviction or decriminalizing them altogether. In its recently-completed legislative session, the North Carolina General Assembly expanded the forgiveness approach by making it easier to get a certificate of relief. Read on for more about this relatively new relief mechanism. If you’re interested in approaches elsewhere, the papers submitted by the various scholars and practitioners invited to the roundtable were recently published in the Federal Sentencing Reporter, available here. You can read my paper about North Carolina here.
Examining Applicants under Oath before Issuing Search Warrants
Suppose that Officer Oxford is investigating a murder. Oxford believes that Steve Smith is the killer, and that the murder weapon is in Smith’s house. Oxford approaches Magistrate Martin with a search warrant application. The heart of the application is Oxford’s sworn affidavit, which lays out the evidence establishing probable cause. G.S. 15A-245(a) provides that “[b]efore acting on the application, the issuing official may examine on oath the applicant.” Should Magistrate Martin swear Oxford and ask Oxford to explain the case? Or should Martin ask Oxford to sit quietly while Martin reviews the written application?
News Roundup
On Wednesday, Justice Anthony Kennedy announced that he would retire from the United States Supreme Court at the end of July. Kennedy’s retirement has been long-rumored and was made official with a short letter of resignation which he hand-delivered to President Donald Trump on the afternoon of the final day of the Court’s 2017-18 term. Kennedy has been widely characterized as the Court’s swing justice because of his liberal view on some issues and conservative view on others. The New York Times compiled a list of some of the Court’s major decisions where Kennedy’s vote was seen as decisive. Keep reading for more news.
When a Defendant Agrees to Two Trials Instead of One, Can He Claim that Double Jeopardy Bars the Second?
A Virginia grand jury indicted Michael Currier for burglary, grand larceny, and unlawful possession of a firearm by a convicted felon for his alleged involvement in stealing a safe containing guns and cash from another man’s home in March 2012. Currier’s prior convictions for burglary and larceny gave rise to the felon-in-possession charge. To avoid having evidence about those prior convictions introduced in connection with the new burglary and larceny charges, Currier (and the government) agreed to severance of the felon-in-possession charge so that it could be tried separately. The burglary and larceny charges were tried first, and Currier was acquitted. Currier then moved to dismiss the felon-in-possession charge, arguing that the second trial was barred by double jeopardy, or, alternatively, that the government should be precluded from introducing at that trial any evidence about the burglary and larceny for which he had just been acquitted. The trial court rejected Currier’s arguments, and he was tried and convicted of being a felon in possession of a firearm. Virginia’s appellate courts affirmed the conviction. The United States Supreme Court granted review and, last Friday, issued its opinion in the case.
Does McCoy v. Louisiana Matter in North Carolina?
In McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018), the US Supreme Court held that a defendant’s Sixth Amendment counsel right was violated when trial counsel admitted guilt over the defendant’s intransigent objection. In this post, I’ll discuss what impact, if any, McCoy has on North Carolina law.
Supreme Court Rules that Obtaining Cell Site Location Information Is a Search
On Friday, the Supreme Court issued a long-awaited opinion in Carpenter v. United States. The Court held that when law enforcement obtains long-term cell site location information from a suspect’s service provider, it conducts a Fourth Amendment search that normally requires a warrant. Although the majority opinion states that it “is a narrow one,” the dissenting Justices and some scholars see it as a seismic shift that may have many aftershocks. I’ll summarize the case and then use former Secretary of Defense Donald Rumsfeld’s famous approach to address the “known knowns,” the “known unknowns,” and the “unknown unknowns” after Carpenter.
News Roundup
WRAL reports that there were two attacks in as many days on staff members at Central Prison this week. The report says that the attacks have been attributed to the same group of inmates. In one incident, several inmates refused orders from staff and then punched officers who responded to the situation. In the other, two inmates assaulted a Brent Soucier, a Unit Manager with 19 years of experience at the prison, with a homemade weapon. Soucier was taken to the hospital for treatment of a serious injury and is said to be in stable condition. Keep reading for more news.
Evaluating Ability to Pay
Today’s post considers when a court should—and sometimes must—evaluate a defendant’s ability to pay a monetary obligation in a criminal case.
A Bright Line Rule for Traffic Stops
A couple of recent court of appeals opinions emphasize a bright-line rule in cases involving traffic stops. An officer who observes a driver commit a traffic violation may stop the driver to address that violation, even when the violation is minor and the officer has elected to respond to the observed violation because she suspects that other unsubstantiated criminal activity may be afoot.