News Roundup

Most of the news I’ve gathered this week is from right here in North Carolina, but I’ll start with an interesting story from Oklahoma. The AP reports here that “A new Oklahoma judge could lose her job for sending more than 500 texts to her bailiff during a murder trial, including messages mocking the prosecutor, praising the defense attorney and calling a key witness a liar.” Judge Traci Soderstrom seems to have spent much of her time texting and scrolling through social media while presiding over a trial involving the murder of a two year old. Some of the texts were crass and tasteless enough that I won’t repeat them. She has acknowledged that her texting “probably could have waited.” The Chief Justice of the state supreme court has recommended her removal. Keep reading for more news.

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New Pattern Jury Instructions Available Along with Updated Online Library

Each year the School of Government publishes new and revised pattern jury instructions for civil, criminal, and motor vehicle negligence cases. Those instructions are created and compiled by the North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions. The 2023 updates are available for free download here.  Among this year’s changes are new civil instructions related to breach of fiduciary duty and new and revised criminal instructions for the arson offenses created by S.L. 2022-8 and for the changes to organized retail theft crimes enacted by S.L. 2022-30.

Keep reading to learn about improvements to the School’s online library of pattern jury instructions and about the School’s plan to publish comprehensive, searchable electronic versions of pattern jury instructions in future years.

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Is Force an Element of Forcible Rape?

The answer would seem to be obvious.  A person is guilty of forcible rape if the person engages in vaginal intercourse with another person by force and against the will of the other person.  N.C.G.S. §§ 14-27.21 (first-degree); 14-27.22 (second-degree).  Our Supreme Court has, at least once, found insufficient evidence of “the element of force” and reversed a rape conviction on that basis.  See State v. Alston, 310 N.C. 399, 408, 312 S.E.2d 470, 476 (1984).  Our Supreme Court recently held, however, that a juvenile petition for sexual battery was not defective for failure to allege force.  “[O]ne cannot engage in nonconsensual sexual contact,” the Court said, “without the application of some ‘force,’ however slight.”  In the Matter of J.U., 384 N.C. 618, 625, 887 S.E.2d 859, 864 (2023).  The requisite force, in other words, is inherent in the act.  The significance of that holding transcends its context: juvenile petitions are held to the same standards as indictments, which generally must allege all the elements, and misdemeanor sexual battery is statutorily defined using the same terms as forcible rape.  This post examines the element of force in cases of rape.

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News Roundup

After more than 25 years, an arrest has been made in the killing of the rapper Tupac Shakur, as AP news reports here. “Pac” died in a drive-by shooting in 1996 in Las Vegas at the age of 25. The suspect is charged in Nevada state court with murder by deadly weapon. Police allege that the man supplied the gun and otherwise assisted in the homicide. The defendant is the last living suspect in the case and has apparently publicly acknowledged his presence at the crime scene and involvement over the years. According to this piece from Time, the arrest is linked to the investigation of another infamous unsolved killing, the murder of Christopher Wallace, a/k/a “the Notorious B.I.G.” He was killed in Los Angeles at age 24 around six months after Tupac. The impact of both men’s short-lived careers on hip-hop can hardly be overstated. Still no word on who shot Biggie Smalls. Read on for more criminal law news.

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Alternative Responses to Crisis Calls in North Carolina

Law enforcement and the communities they serve want effective responses to crime and other problems. They want policing that promotes safety and trust. And they want alternative responses for behavioral and social problems—to safely connect people to services that address root causes of behavior while allowing law enforcement to focus on solving and preventing violent and serious crime. While individual police … Read more

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Pretrial Release Guide Available

The School of Government has published a new resource on initial appearances and pretrial release. Although any judicial official is authorized to preside at an initial appearance, in most cases that official is a magistrate. This guide addresses pretrial release only in the context of magistrates’ authority and limitations.

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News Roundup

Law enforcement officers in Philadelphia arrested more than 50 people Tuesday night after a flash mob ransacked dozens of stores, including Foot Locker, Lululemon, Apple, and at least 18 state-run liquor stores. The looting began after a peaceful protest over a judge’s dismissal of charges against a Philadelphia police officer who shot and killed driver Eddie Irizarry through a rolled-up window after pulling him over for erratic driving. The Police Commissioner said the looters were not associated with the protests, but instead were “criminal opportunists” who launched a coordinated attack. The Associated Press has the story here.

In related news, Target announced earlier that same day that it was closing nine stores in four states because organized retail crime had made operating the stores unsafe and unsustainable. The stores include the East Harlem location in New York City, two locations in Seattle, three in Portland, and three in San Franscisco and Oakland. CNN has the story here.

Keep reading for more criminal law news.

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Changes to the Death by Distribution Law

The opioid crisis seems to be getting worse every year. NCDHHS reports that in 2021, over 4,000 North Carolinians died from opioid overdoses, up 22% from the prior year. Most deaths were related to the consumption of fentanyl.

One strategy for addressing the epidemic is punishing those who distribute deadly drugs. In 2019, the General Assembly enacted G.S. 14-18.4, making it a felony to sell a controlled substance that causes the death of a user. The law is commonly known as the death by distribution law. This session, the General Assembly passed a revised version of the law. This post explains the revisions.

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2023 Appropriations Act Enacts Significant Court-Related Changes

Several provisions of the 2023 Appropriations Act (H 259) ratified by the General Assembly last week (which is expected to become law on October 3 without the Governor’s signature) affect the judiciary. The biggest news item for judges may be the substantial salary increases included in the two-year budget. At the end of the biennium, salaries for district court judges will have increased by 24 percent (to $162,620) and salaries for superior court judge by 13 percent to ($169,125). The salary for the Chief Justice will increase by 20 percent over this period (from $168,980 to $203,073), and salaries for associate justices and court of appeals judges will have the same percentage increase. Many argue that those kinds of adjustments are long overdue. A 2020 ranking of judicial salaries by the National Center for State Courts placed North Carolina judicial salaries in the bottom half of all states and the District of Columbia. Supreme court associate justice salaries were the lowest of those measured, coming in at number 44. But this post is not about salaries; instead it will focus on other court system changes enacted by H 259.

I’ll start with some different numbers.

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