Recent blog posts

Knowing when probation begins is generally pretty easy. Figuring out when it ends can be a little trickier.

This morning Jamie Markham and I loaded a passenger van with a group of district court judges who had come to the SOG for a week-long orientation course. We hauled them (through the snow) over to the offices of Community Corrections on Yonkers Road in Raleigh. Jamie lectured while I drove.

We took the judges over to probation headquarters so that in addition to learning about the law of probation from the expert (Jamie, obvi), they could meet, hear from, and question the people who set, write, and administer probation policy and who supervise probationers. The experience was amazing.

Suppose a defendant is convicted of a class I felony and has a prior record level of I. That’s a “C” block on the felony sentencing grid, where only community punishment is authorized. Community punishment can include a range of punishments from a fine only, up to supervised probation, but does not encompass a straight active sentence. The defendant informs the sentencing court that she wants to serve her time in prison. The defendant further explicitly states she will not accept probation and refuses to meet with probation, missing several opportunities to begin the intake process. What options does the trial court have?

Some law enforcement agencies concerned about officers’ exposure to fentanyl have stopped field testing white powders. A question I’ve had several times is whether a magistrate may find probable cause for a drug offense involving a white powder without a field test. The answer to that question is yes, so long as the totality of the circumstances provides reason to believe that the powder in question is a controlled substance.

Students across the country walked out of class for 17 minutes at 10:00 a.m. Wednesday morning in a mass protest against gun violence in the wake of the school shooting in Florida last month.  The demonstration came exactly one month after the shooting and the 17-minute duration represents the 17 people who were killed.  At Columbine High School in Colorado, students added 13 minutes to their protest to represent the victims of the 1999 shooting at that school.  Keep reading for more news.

Spring is just around the corner. Daffodils. Daylight saving time. Filling out your bracket. And reading the annual Structured Sentencing Statistical Report for Felonies and Misdemeanors from the North Carolina Sentencing and Policy Advisory Commission. Today’s post collects some of the highlights of the report.

One month ago today, a gunman who police say was armed with an AR-15 rifle walked into Marjory Stoneman Douglas High School in Parkland, Florida and opened fire, killing 17 people. Today, in schools across the country, including many in North Carolina, students plan to recognize the Parkland victims by walking out of class for 17 minutes. Some participants also plan use the walkout as a platform to advocate for stricter gun control. Debate over the appropriate legislative response to this tragedy has raged—and ranged—over the past several weeks. Some have called for arming teachers.  Others have advocated for barring a person under 21 from purchasing an assault rifle. And last week, an op-ed in the Washington Post advocated a relatively new variety of weapons restriction:  Gun violence restraining orders. 

A few weeks ago I participated in a seminar on digital evidence, and one of the topics we discussed was cell phone records (subscriber information, call detail records, historical location data, etc.). That’s not surprising, since the widespread use of cell phones has made these records an increasingly common and important tool in criminal cases. Location data can help prove that the defendant was in the victim’s house at the time of the murder, call logs can help prove the co-conspirators were in regular contact with each other, and so on.

What did surprise me was when I asked a group of 75+ prosecutors how often they have used an affidavit to authenticate these kinds of records and get them admitted into evidence, without the need for live testimony by a witness from the company? Only one prosecutor had ever done so, and that was in a case with a pro se defendant. There seemed to be a lot of confusion about (i) whether this was even possible, (ii) old rules vs. new rules, and (iii) state court vs. federal court, so I thought this post would be a good opportunity to help clear things up.

Here’s a question for you: which of the following injuries is more serious?

• The victim, a police officer injured while fighting with a suspect, “sustained puncture wounds [from bites] on his left forearm and right bicep.” The officer testified that the bites were extremely painful, and they caused “severe bruising and depressions, [and] permanent scarring . . . includ[ing] a large circle on his right bicep, ‘just over a half an inch to an inch in a circle’ with a ‘large depression[,]’ and ‘a deep ridge’ on his left arm. The officer experienced loss of sleep and extreme stress [and] had to be tested multiple times for communicable diseases.”
• The victim, a six-year-old girl injured when her father “forcibly twisted” her leg until it broke, suffered a “spiral fracture” of her femur. A physician described such fractures as “incredibly painful,” and the child required morphine to control her discomfort. She was placed in traction and underwent surgery to place titanium rods in her leg. The surgery resulted in lifelong scars. The victim was in a cast for several weeks, and used a wheelchair and a walker during her recovery. She regained the full use of her leg in five to eight months, but had to repeat kindergarten as a result of missing so much school.

You can vote on the answer below. Once you have voted, read on to see how the court of appeals viewed these two scenarios.

[poll id=”20″]

This week the Justice Department sued California Governor Jerry Brown and the state’s attorney general, Xavier Becerra, alleging that certain recently enacted California immigration laws are unconstitutional. The New York Times says that the laws “restrict when and how local law enforcement can cooperate with federal immigration enforcement officers.” The Justice Department’s position is that the laws “reflect a deliberate effort by California to obstruct the United States’ enforcement of federal immigration law.” Keep reading for more news.