As AP News reports, Hunter Biden, the son of President Biden, was convicted of three felony offenses in a federal court in Delaware this week. The convictions include making a false statement to a licensed gun dealer, making false statements on the firearm purchase application form, and illegal possession of a gun. The younger Biden falsely represented that he was not disqualified as an unlawful user of controlled substances (one of the disqualifying grounds for gun possession under 18 U.S.C. 922(g)(3)). Biden is expected to appeal. One of his arguments in post-trial proceedings will be a challenge under the Second Amendment to the federal ban on gun possession by unlawful drug users. The trial court rejected a facial challenge to the law in pretrial proceedings but reserved judgment on the argument that the law was unconstitutional as applied to Mr. Biden under New York Rifle and Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022). CNN has a report on this aspect of the case, here. As Shea reported in last week’s News Roundup, this is the first of two criminal trials faced by the president’s son. An additional federal trial in California on alleged tax crimes is expected to occur in September. Read on for more criminal law news.
NC Supreme Court Holds that Media Entities May Seek Access to Law Enforcement Recordings by Filing a Petition
In March 2021, several news organizations filed a petition in Alamance County Superior Court seeking the release of law enforcement recordings of an “I Am Change” march that took place in Graham, North Carolina in October 2020. Marchers and law enforcement had clashed, and several people were arrested. The superior court held a hearing and ultimately ordered all of the requested recordings released without redaction.
After assessing the eight statutory considerations, the superior court explained that even though the release of the recordings would reveal highly sensitive and personal information that could harm a person’s reputation or safety, it did “not have the authority to [c]ensor this information absent a legitimate or compelling [] state interest to do so.” In re The McClatchy Co., No. 29A23, ___ N.C. ___ (May 23, 2024). The court noted that it gave “great weight to transparency and public accountability with regard to police action” and that failure to release the information could “undermine the public interest and confidence in the administration of justice.” Id. The Graham Police Department (GPD) appealed.
The Court of Appeals, over a dissent, vacated the release order and remanded for additional findings of fact. The petitioners appealed. On appeal, the GPD argued that the trial court lacked subject matter jurisdiction over the petition because the media companies were required to file a civil action rather than a petition. See In re Custodial L. Enf’t Agency Recording, 288 N.C. App. 306, 311 (2023) (so holding).
The North Carolina Supreme Court, in an opinion authored by Justice Allen, rejected GPD’s contention that the trial court lacked subject matter jurisdiction because the petitioners filed a petition instead of a complaint. The Court then proceeded to hold that the trial court misunderstood the scope of its authority in ordering release, explaining that a trial court granting such release may place any conditions or restrictions on the release that it deems appropriate.
This post will review G.S. 132-1.4A, the North Carolina Supreme Court’s opinion in In re The McClatchy Co., ___ N.C. ___ (May 2024) [hereinafter McClatchy], and will consider McClatchy’s import for those seeking and considering release.
A Pink Shirt on Wednesday: State v. Singleton and the End of the Common Law Jurisdictional Indictment Rule
In its last batch of opinions, issued May 23, 2024, the North Carolina Supreme Court decided two indictment cases: State v. Singleton, No. 318PA22, __ N.C. __ (2024), and State v. Stewart, No. 23PA22, __ N.C. __ (2024). Stewart closely follows a recent precedent (In re J.U., 384 N.C. 618 (2023), discussed here), holding that nonconsensual sexual contact necessarily implies force, so an indictment alleging nonconsent need not also allege “the element of force.” Stewart, Slip Op. 8. Singleton, however, is by far the more significant. Beyond finding no defect in the indictment under review, the Supreme Court there announced the demise of the common law rule that an indictment that fails to allege all the elements of the offense is jurisdictionally defective. This post examines the new framework of indictment defects inaugurated by Singleton.
News Roundup
Three years ago, the North Carolina Supreme Court in State v. Corbett, 2021-NCSC-18, ___ N.C. ___, 855 S.E.2d 228, 252 (2021), affirmed the court of appeals’ reversal of the defendants’ convictions for second degree murder. The case garnered national and international attention. The victim, Jason Corbett, was a citizen of Ireland, who had relocated to Davidson County, North Carolina, in 2011 following the 2006 death of his first wife, who was the mother of his two children. Jason moved to North Carolina with his two children and his then-romantic partner, Molly Martens, who had been his children’s au pair in Ireland. Jason and Molly married later that year.
Molly’s parents, Thomas and Sharon Martens, who lived in Tennessee, visited the Corbett home on August 1, 2015. Thomas, a retired FBI agent and former attorney, testified that he awoke to the sounds of a struggle in the middle of the night and discovered Jason choking Molly. Thomas said he attempted to stop Jason by hitting him with an aluminum baseball bat. Molly also hit Jason with a brick paver. Jason’s skull was fractured from multiple blows, and he died at the scene. Both Thomas and Molly were charged with murder. The North Carolina Supreme Court determined that the trial court erred by (1) excluding hearsay statements from the children that their father was abusive toward Molly and that their father had become angry that evening upon his daughter awakening him, and (2) by excluding testimony from Thomas that he heard Molly yell “don’t hurt my dad” during the altercation.
Molly and Thomas were released from prison on Thursday: Molly from the the North Carolina Correctional Institution for Women in Raleigh and Thomas from the Caldwell Correctional Center in Lenoir. Following the state supreme court’s decision, each entered pleas to voluntary manslaughter and served about seven more months behind bars.
Keep reading for more criminal law news.
Case Summaries: N.C. Court of Appeals (June 4, 2024)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on June 4, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Estimating Earnings Impact of Driver’s License Revocations in North Carolina
In North Carolina, driver’s licenses are revoked for failure to appear in court (FTA) and failure to pay court-ordered monetary obligations (FTP).
Not having a valid driver’s license is at best an inconvenience—relying on others to drive to get groceries—but at worst can have a major impact on life—losing a job that requires driving.
To get a handle on the consequences of losing a license, we were asked to provide a high-level estimate of the earnings impact of revocations due to FTP or FTA.
The result? We found that the statewide estimated earnings loss in 2024 dollars one year after revocation is between $6.5 and $8.8 billion (Figure 1).
The North Carolina Department of Motor Vehicles (NC DMV) reports that as of December 31, 2020, 996,000 people had active driver’s license revocations for FTA and FTP. These revocations occurred over time. To estimate earnings impact, we assume that about half of those people—500,000—were working at the time of the revocation and earning the North Carolina median wage ($42,095/year). Based on other research, we made two additional assumptions to assess the impact of revocation on earnings one year later. First, that 9% to 12% of people lost their jobs and were unemployed. And second, that those who were employed experienced an earnings reduction of 24% to 43%.
Even if we reduce the median wage to $30,000/year—to account for the fact that people with an FTA or FTP may earn less than the statewide median wage—the estimated earnings impact is between $4.6 and $6.3 billion.
| Figure 1. Estimated earnings impact of revoking driver’s licenses for FTA and FTP |
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For details about how we computed this estimate, see the notes to our briefing paper here.
News Roundup
Former President Donald Trump was found guilty of 34 felonies in his “hush money” trial in New York yesterday, making him the first former president in U.S. history to be convicted of a crime. On their second day of deliberations, the jury found that Trump illegally falsified business records to cover up a $130,000 payment to an adult film star before the 2016 election. He could face up to four years in prison and a $5,000 fine for each count and is set to be sentenced on July 11.
Case Summaries: N.C. Supreme Court (May 23, 2024)
This post summarizes the published criminal opinions from the Supreme Court of North Carolina released on May 23, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Confidential Informants, Motions to Reveal Identity, and Discovery: Part II, What Statutes Apply?
In Part I of a series of posts on confidential informants, I revisited the landmark case of U.S. v. Roviaro, which began when a Chicago police officer hid in the trunk of an informant’s car to listen in on a heroin deal. The U.S. Supreme Court held that the officer in the trunk was no substitute for the confidential informant (“CI”) in the driver’s seat and required disclosure of the CI’s identity to the defense. I also introduced the basic dichotomy set out in Roviaro: generally, where the CI is more of a tipster, the CI’s identity need not be revealed, but where the CI is an active participant, the defense is entitled to it. The constitutional underpinnings of this distinction, based on due process and confrontation principles, continue to guide courts today, although the analysis has evolved.
This second post will address the North Carolina statutes at play. These statutes complicate and refine the basic constitutional question of whether fundamental fairness requires the State to turn over the CI’s identity.
Disposition Continuance to Provide for Time in Secure Custody Not Allowed
Are there limits on the court’s ability to continue the dispositional hearing in a delinquency case? The Court of Appeals recently identified one limit In re D.R.F., Jr., ____ N.C.App. _____ (May 7. 2024). The court held that a continuance for the sole purpose of placing the juvenile in secure custody as punishment before disposition is not a valid basis for that continuance and constitutes an abuse of discretion.