One of my all-time favorite emails was received from a prosecutor who was handling a drug trafficking case. The email included a picture, plucked from what purported to be the defendant’s Facebook page, showing the defendant sitting on a pile of cash (later determined to be $1.6 million!), holding an AK-47. Jeff has written (here) about authenticating photographs from social media sites. But what of the other evidence that is mined from social media—how is that authenticated? A recent Second Circuit case adheres to the line that the relevant standard isn’t particularly high but finds that the prosecution didn’t meet it in this case.
Prior Possession of Drug Paraphernalia
It’s December 1. That means a number of new laws come into effect today. WRAL has a good rundown here, while the School’s annual summary of legislation of interest to court officials offers a more comprehensive review. For today’s post I’d like to focus on a sentencing question related to one of the changes that kicks in today: the reduced punishment for possession of marijuana paraphernalia.
News Roundup
Short week, short news roundup. National attention remains focused on Ferguson, Missouri, where attorneys for Michael Brown’s family have weighed in on the prosecutor’s handling of the grand jury proceedings concerning Brown’s shooting. The attorneys “criticized everything from the types of evidence . . . presented to the jury to the way it was presented and the timing of the grand jury’s decision,” according to this story on WRAL. There were several Ferguson-related protests locally, including one that blocked a freeway in Durham. Opinion is certainly divided about the prosecutor’s management of the process, as this Think Progress story notes.
Ferguson and the Prosecutor’s Approach to the Grand Jury
Yesterday, the grand jury in St. Louis County, Missouri , declined to indict officer Darren Wilson in connection with the fatal shooting of Michael Brown. Some commentators have criticized the decision of the local prosecutor, Robert McCulloch, to present all the evidence to the grand jury, rather than only evidence that would support an indictment. I don’t think that’s a fair criticism, for reasons I explain below.
A New Addition to the School of Government’s Indigent Defense Manual Series
Emily Coward and I are glad to share a new resource with you: a reference manual entitled Raising Issues of Race in North Carolina Criminal Cases. If you are a person who likes to have a hard copy on the shelf, you can buy it here. Like our other manuals, it is available for free online at http://defendermanuals.sog.unc.edu. (The electronic platform has been retooled, and I think you will find that it has a nice look and is user-friendly.)
News Roundup
I love highlighting my colleagues’ great work on the blog. Shea already announced her new book this week, but also check out Jessie Smith’s interview on WUNC, talking about the backlog at the State Crime Lab and the practical solutions a working group identified. And take a look at the new electronic platform for all the manuals produced by the School’s Indigent Defense Education group. As a teaser, next week, the blog will feature a newly-released manual that is available on the platform.
Reflections on the Justice Reinvestment National Summit
I’m a little jet-lagged today. I got back home to Durham early this morning after a long flight. I was attending the Justice Reinvestment National Summit . . . in San Diego. Poor baby! Suffice it to say, the winter weather that gripped the East Coast this week did not extend to Southern California. I won’t lie, it was beautiful. But I promise the lovely setting did not stand in the way of a productive gathering. I want to use today’s post to offer a few reflections on the conference.
Keeping a Good Thing Going: New Book Available on Impaired Driving Laws
The School of Government has been publishing reference books on motor vehicle law since 1947. The twelfth iteration of a book on motor vehicle law and the law of impaired driving, written by Ben Loeb and Jim Drennan was published in 2000. The book went out of print a few years ago, though you’ll find dog-eared copies of it in many offices, including mine. I’m happy to report that a new book in this series now is available: The Law of Impaired Driving and Related Implied Consent Offenses in North Carolina.
Warrantless Stops 101 — Was the Stop Supported by Reasonable Suspicion?
In my first Warrantless Stops 101 post, I offered these basic questions to frame the analysis:
- Did a seizure occur?
- If so and it was a stop, was it supported by reasonable suspicion or other valid basis?
- If reasonable suspicion supported the stop, was the officer’s subsequent conduct sufficiently limited in scope?
- If the seizure was an arrest, was it supported by probable cause?
- If the arrest was supported by probable cause, was the search permissible?
My first post focused on whether a seizure occurred. This one looks at whether the stop was supported by reasonable suspicion. If so, the stop itself is constitutional and the only remaining issue is whether the officer’s conduct exceeded the scope of the stop, a topic I’ll take up in a later post.
Felon in Possession and Felony Murder
Thirteen-year-old Nathan Clark and his teammates traveled from Winston-Salem to Raleigh last Friday night to play in a weekend soccer tournament. The team never took the field. As Clark slept in his hotel room Friday evening, a gun discharged in an adjacent room, sending a bullet through the wall and into the back of Clark’s head. Clark died before he could be transported to the hospital.
The man in the room next door, Randall Louis Vater, was a convicted felon who was prohibited by law from possessing a gun. Vater had been out of jail only two weeks, having been released on October 25 after serving a sentence for violating a domestic violence protective order. Vater was charged with involuntary manslaughter and possession of a firearm by a felon based on Clark’s death. He is being held in the Wake County Jail under a $1 million bond.
Authorities have said nothing about how the gun went off. Assuming that the discharge was accidental, could Vater be charged with first-degree murder under the theory of felony murder?