I was recently asked to talk to a group of attorneys about “hot topics” related to the criminal prosecution of impaired driving. Those of you who practice in the field are doubtless better equipped than I am to identify those topics. If pressed, I’d put these items on the list: (1) how the two-year statute of limitations applies to misdemeanors charged by magistrate’s order; (2) the admissibility of expert testimony by law enforcement officers, particularly regarding horizontal gaze nystagmus; (3) the admissibility of the results of warrantless blood tests; and (4) the appropriate remedy for statutory violations related to a defendant’s arrest and pre-trial detention. While the state supreme court has yet to issue its opinion regarding the statute of limitations issue in State v. Turner (discussed here) and neither the court of appeals nor the supreme court has opined about the admissibility of horizontal gaze nystagmus testimony following the 2011 amendment of Rule 702, recent court of appeals cases address both of the remaining issues.
State v. Glisson and Multiple Conspiracies
When a group of confederates undertake to commit a series of criminal acts, is there one conspiracy or multiple conspiracies? The case of State v. Glisson, ___ N.C. App. ___, 796 S.E.2d 124, (Feb. 7, 2017), dealt with that issue. The answer, it turns out, is fact-specific and less than crystal clear.
Charging R/D/O: Alleging the Duty the Officer Was Discharging
I was teaching a class about charging documents recently when the conversation turned to the rule that a charge of resisting, delaying, or obstructing a public officer in violation of G.S. 14-223 must describe the particular duty that the officer was discharging at the time of the resistance. A member of the class asked whether it would suffice to describe the duty as “protecting and serving.” I gave my best guess about the answer but I thought I would see how others react to the question. So take the poll below, then read the rest of the post for a little history about the rule, a summary of a recent case, and a discussion of authority about the sufficiency of a general description like “protecting and serving.”
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News Roundup
The big news of the week was President Donald Trump’s unexpected removal of James Comey as FBI director. The News Hour has an overview of the situation here. FBI deputy director Andrew McCabe will take over for Comey until a new director is appointed by President Trump and confirmed by the Senate. There have been seven full-time directors of the Bureau since 1935; this is only the second time that a director has been fired. Keep reading for more news.
The Other Special Probation
Special probation is just the statutory term for a split sentence, right? Right. Usually. Did you know there’s another “special probation” tucked away in Chapter 90?
Everything You Need to Know About Limited Learner’s Permits
My eldest child turned 15 last week. Everyone in North Carolina knows what that means . . . it is learner’s permit time. Unfortunately, however, we were not able to run over to DMV on his birthday and get his permit. We are still working on some prerequisites. If someone near and dear to you is approaching this milestone birthday, here is what you need to know.
Capital Punishment Update
Later this week, a group of superior court judges will gather at the School of Government to participate in a course on handling capital cases. In preparation for my role as a facilitator of the course, I have been reading up on death penalty news. Both in North Carolina and nationally, data show clear trends toward fewer capital cases, fewer death sentences, and fewer executions. This post briefly explores those developments and considers whether they are likely to continue.
The Inevitable Discovery Exception to the Exclusionary Rule under the United States Constitution
Two important exceptions to exclusionary rules under the federal constitution were adopted by the United States Supreme Court within a month of each other in 1984: (1) the inevitable discovery exception in Nix v. Williams, 467 U.S. 431 (1984), and (2) the independent source exception in Segura v. United States, 468 U.S. 796 (1984); see also the later case of Murray v. United States, 487 U.S. 533 (1988). These two exceptions continue to be litigated. This post will discuss the inevitable discovery exception, and my next post will discuss the independent source exception.
News Roundup
The Charleston Post and Courier reports that Michael Slager, a former North Charleston police officer who shot and killed Walter Scott in 2015, pleaded guilty this week to a federal criminal charge of deprivation of rights under the color of law. The incident involving Slager and Scott was captured on video which appeared to show Slager shooting at Scott’s back after a scuffle. As the News Roundup previously noted, a homicide case against Slager ended in a mistrial late last year. As part of the plea deal, other state and federal charges pending against Slager will be dismissed. Keep reading for more news.
Federal Judge Prohibits Money Bail for Indigent Defendants Charged Only with Misdemeanors
The decision, handed down April 28, 2017, comes out of Harris County, home to Houston, Texas. If you decide to read the opinion, ODonnell v. Harris County, be prepared to spend some time with it. The opinion is 193 pages long, and one reading may not be enough. Readers will see similarities and differences between the bail practices in Harris County and North Carolina. This post doesn’t undertake to compare the two and instead does a not-so-brief review of the findings, conclusions, and relief ordered by the judge, Chief District Court Judge Lee H. Rosenthal (if you’re wondering, appointed by President George H.W. Bush in 1992). The bottom line is that the decision enjoins Harris County from “detaining indigent misdemeanor defendants who are otherwise eligible for release but are unable because of their poverty to pay a secured money bail.” Slip op. at 181.