News Roundup

This week Governor Cooper signed an executive order to improve reentry services throughout the state. The order aims to enhance coordination between agencies and increase access to post-release employment opportunities and programs such as work release. With the announcement of the order, North Carolina became the third state (joining Alabama and Missouri) to sign on to Reentry 2030, a national initiative with ambitious goals. The goals include increasing the number of high school and post-secondary credentials earned by incarcerated people by 75%, increasing the number of post-secondary degrees that are available in prisons by 25%, reducing the number of incarcerated people being released homeless by 50%, and allowing every person who is eligible to apply for Medicaid before release. The executive order also calls for more local reentry councils.

Read on for more criminal law news.

Read more

May An Officer Ask a Business to Execute a Search Warrant on Itself?

Once upon a time, search warrants were simple. An officer would obtain a warrant to search a suspect’s home or some other physical location connected to a crime. The officer would go to the location, announce his or her presence, and conduct the search. But these days, officers frequently want to obtain records and other evidence from businesses not suspected of any wrongdoing. For example, they want bank records that can be used to trace the suspect’s ill-gotten gains. They want cell site location information that can be used to tie the suspect to the crime scene. And they want email records that show communication between the suspect and his or her coconspirators. Officers do not typically kick down these businesses’ doors and start rummaging around, partly because that would be needlessly disruptive and partly because officers might have a hard time locating evidence stored in the cloud or on a server located who-knows-where. Instead, officers obtain a search warrant, then send a copy of the warrant to the company in question and ask the company to search its own records and provide responsive materials. Is that OK?

Read more

blank

New Resource on Employment Outcomes for People Leaving Prison

The North Carolina Department of Commerce has created a new online tool called The NC Reentry Outcome Reporting System. The tool shows employment outcomes for people leaving the state prison system. The numbers are sobering. I had a chance to talk to one of the tool’s architects, Andrew Berger-Gross, Senior Economist at the Department’s Labor … Read more

News Roundup

Yesterday, Alabama became the first state in the nation to execute a prisoner using nitrogen hypoxia. The AP reports here that “Kenneth Eugene Smith, 58, was pronounced dead at 8:25 p.m. . . . after breathing pure nitrogen gas through a face mask to cause oxygen deprivation.” Smith was sentenced to death three decades ago for his role in a contract killing. Alabama attempted to execute him by lethal injection in 2022, but the attempt failed when authorities were unable to attach an IV to his veins. The Supreme Court declined to block the nitrogen gas execution earlier this week, over a dissent from three liberal Justices. The linked story contains some details of the execution. Keep reading for more news.

Read more

blank

State v. Forney: Chewing Gum, Breath Tests, and Prejudice

In impaired driving cases, the results of a breath test of the defendant are admissible at trial when the testing is performed in accordance with statutory requirements and applicable administrative regulations. G.S. 20-139.1(b). When the testing is not carried out as required, however, the results are inadmissible. See State v. Davis, 208 N.C. App. 26, 34 (2010).

Among the testing requirements is that the law enforcement officer carrying out the test observe the defendant to determine that he or she “has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” See 10A NCAC 41B .0101(6) (defining “observation period” and specifying further that “[d]ental devices or oral jewelry need not be removed”); 10A NCAC 41B .0322 (requiring that observation periods be met before breath test is conducted). The purpose of the observation period is to ensure that the test results reflect the concentration of alcohol in a sample of the person’s deep lung breath rather than an alcohol concentration based on alcohol in the person’s mouth.

Last week, the Court of Appeals in State v. Forney, ___ N.C. App. ___, ___ S.E.2d ____ (January 16, 2024), considered whether tests results from a defendant who had chewing gum in his mouth during the observation period were admissible under G.S. 20-139.1(b).

Read more

When Can the State Use Testimony from the Probable Cause Hearing at Trial?

My colleague, Phil Dixon, blogged about the Court of Appeals’ decision in State v. Joyner, 284 N.C. App. 681 (2022), here. In Joyner, the court ruled that the State did not run afoul of the Confrontation Clause when it introduced the victim’s testimony from a civil 50C hearing at the defendant’s criminal trial. Last year, the court decided State v. Smith, 287 N.C. App. 614 (2023) (unpublished), a case that provides an interesting counterpoint to Joyner. In Smith, the State recorded the victim’s testimony from the probable cause hearing in district court and moved to admit the testimony at trial in superior court after the victim became unavailable. The trial court admitted the testimony, but the Court of Appeals reversed. It ruled that the opportunity to cross-examine the victim at the probable cause hearing was not “adequate” to comport with constitutional requirements, vacated the convictions for first-degree kidnapping and human trafficking, and ordered a new trial.

Although the opinion is unpublished, the State did not seek further review, and the Smith decision has important implications for practitioners. This post examines those issues and offers advice for defenders when the State attempts to introduce recorded testimony from a probable cause hearing at trial.

Read more

blank

When Juvenile Justice Matters Cross State Lines: The Interstate Compact for Juveniles (ICJ)

Imagine a case involving a juvenile who lives in North Carolina and is in secure custody because of a charge of an act of delinquency in New York comes across your desk. You look to the Juvenile Code to read the statute that governs interstate issues. You find Article 40 of Chapter 7B, “Interstate Compact for Juveniles.” But, after reading Article 40, you realize that there is no statutory guidance regarding the actual procedure in the case.  Where do you turn? The law regarding interstate matters in juvenile justice cases is perhaps the best kept secret in juvenile law. The actual substance can only be found in the Rules promulgated by the Interstate Commission for Juveniles.

Read more

blank

News Roundup

A recent study published by The Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania examines the use of presumptive field tests used by law enforcement to detect the presence of illegal drugs. It notes that field tests are “notoriously imprecise” and commonly produce a positive result even when no controlled substance is present. The study found that more than 770,000 drug arrests in the nation involved field tests and suggests that around 30,000 people are wrongfully arrested based on false positives from the tests each year. North Carolina law recognizes that field tests do not meet the standards for expert testimony under Evid. R. 702. State v. Carter, 237 N.C. App. 274 (2014). But the use of field tests on the ground—whether to establish probable cause or to determine compliance with conditions of supervision, for instance—remains a common occurrence. You can read the study here. Read on for more criminal law news.

Read more