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People of a certain age will remember the Menendez brothers, Lyle and Erik. In 1989, when they were 21 and 17 years old, they shot and killed their parents in the family’s Beverly Hills mansion. Prosecutors alleged that they wanted their parents’ money, while the defense contended that the shootings were motivated by the brothers’ fear of sexual abuse at the hands of their father. I was living in California then and I remember the media frenzy. My wife was Lyle’s college classmate. So in our house, we have followed with interest the recent developments in the brothers’ cases. Both are serving life terms without the possibility of parole, and by all accounts, have been model inmates. They have habeas petitions pending alleging newly-discovered evidence that supports their claims of being victims of sexual abuse, including a letter allegedly written by one of the brothers eight months before the murders. Simultaneously, Los Angeles County District Attorney George Gascon has moved for resentencing, contending that a reduced term that would render the brothers parole eligible immediately would be in the interests of justice in light of their ages at the time of the crimes and the abuse that they allegedly suffered. Both the habeas petition and the resentencing request are due to be heard in the next month or two, and of course, both are controversial. ABC News has more details here. Read on for more news.

Our hearts are with our clients and others who have been affected by Hurricane Helene. Expertise among faculty and staff of the School of Government may be valuable to local governments in the aftermath. That expertise list can be accessed here. Additionally, the School has an Emergency Management website available, which lists various state and federal resources for local governments impacted by Hurricane Helene. More on the Chief Justice’s Emergency Order can be found in this blog, posted earlier this week.

Keep reading for your weekly dose of criminal law news.

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 20, 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.

This post summarizes published criminal law and related cases released by the Fourth Circuit Court of Appeals during July 2024. Cases of potential interest to state practitioners are summarized monthly. Previous summaries of Fourth Circuit cases are available here.

Last week, the Department of Defense announced that 9/11 mastermind Khalid Shaikh Mohammad and two co-defendants had reached plea deals. Generally, the defendants would plead guilty to various charges before the military tribunal at Guantanamo Bay and accept life in prison, and in exchange would be spared the death penalty. Then the Department of Defense announced that the deals are off. Secretary of Defense Lloyd Austin issued a memo revoking the deals and reserving to himself the authority to enter into plea agreements. Some families of 9/11 victims have cheered Austin’s decision while others support the deals. The defendants assert that a deal’s a deal and that Austin can’t nix them. Litigation is sure to ensue, further extending cases that have lasted more than two decades already. Keep reading for more news.

The U.S. Supreme Court recently decided Smith v. Arizona, 602 U.S. ___; 2024 WL 3074423 (June 21, 2024) (Kagan, J.). The case settled a lingering question in Sixth Amendment Confrontation Clause jurisprudence: Does the Confrontation Clause permit substitute analyst testimony?

Courts have been split on the question, with North Carolina and Arizona among the jurisdictions that have generally allowed this type of expert testimony. Substitute analyst testimony arises when the person who performed forensic testing for use in a criminal trial is not available to testify, and the prosecution uses a substitute expert—one who was not necessarily involved in the testing—to present an independent opinion based on the original analyst’s forensic report. This practice derives from the evidentiary rule that an expert is allowed to rely on otherwise inadmissible information when it is used to form the basis of the expert’s opinion. N.C. R. Evid. 703. The underlying forensic report is treated as non-hearsay, offered only as the basis of the testifying expert’s opinion, not as substantive evidence. Instead, it is the testifying analyst’s independent opinion that is admitted substantively, and the defendant is only entitled to cross-examine the testifying expert (and not the person who performed the testing). This practice does not offend the Confrontation Clause, the argument has gone, because only testimonial hearsay statements are covered by the Confrontation Clause. Since the underlying forensic report is not offered for its truth when used as the basis of opinion, it is not hearsay and does not implicate the Confrontation Clause. State v. Ortiz-Zape, 367 N.C. 1 (2013)

Not so, according to the U.S. Supreme Court. “Today, we reject that view. When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.” Smith Slip op. at 1-2. Smith thus overrules Ortiz-Zape and its progeny on this question, and represents a significant shift in state law. (If this topic sounds familiar, I wrote a blog post last year previewing the Smith case.) Today’s post examines the impact and reach of Smith in North Carolina and offers advice for defenders facing substitute analyst issues. Read on for the details.

On June 21, the Supreme Court decided a highly-anticipated Second Amendment case. In United States v. Rahimi, 602 U.S. __ (2024), the Court considered a facial challenge to 18 U.S.C. § 922(g)(8), which makes it a felony for people subject to certain domestic violence protective orders to possess firearms. Rahimi was the Court’s first opportunity to apply the revolutionary history-focused approach to Second Amendment analysis it announced in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). In an 8-1 decision, with Chief Justice Roberts writing for the majority, the Court upheld the challenged statute. Several Justices wrote significant concurrences while Justice Thomas, the author of Bruen, dissented. This post summarizes Rahimi, considers whether the case amounts to a retreat from Bruen, and addresses Rahimi’s applicability to North Carolina DVPOs. The post also considers the implications of Rahimi on pending Second Amendment cases, including those challenging felon disqualification.

My colleague Jeff Welty has covered the U.S. Supreme Court’s decision in New York Rife and Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and subsequent lower court cases several times before on the blog. Under Bruen, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 17. To overcome this presumptive protection, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19. If the government fails to come forward with evidence showing the challenged rule is consistent with “the Nation’s historical tradition of firearm regulation,” the rule is unconstitutional under the Second Amendment. Id. at 24.

The Court of Appeals recently applied that rule in the context of G.S. 14-269.2, North Carolina’s law prohibiting possession of weapons on educational property. In State v. Radomski, COA23-340; ___ N.C. App. ___ (May 21, 2024); temp. stay allowed, ___ N.C. ___ (June 7, 2024), a unanimous panel held that the law was unconstitutional as applied to the defendant on the facts of the case. This is the first successful Bruen challenge to a state criminal law. Today’s post examines the holding and implications of the decision, and offers suggestions to defenders on how to raise, litigate, and preserve such claims.

This post summarizes published criminal and related decisions of interest from the Fourth Circuit Court of Appeals in April 2024. Previous summaries of Fourth Circuit criminal cases can be found here.

A lawsuit has been filed against the North Carolina Department of Health and Human Services and its secretary, asserting that the state’s lack of assessment and treatment services has resulted in people with severe mental disabilities suffering in county jails while waiting months for psychiatric services. The complaint—which can be accessed here—centers on those who sit in jail for months or years if there are concerns about their capacity to proceed in their criminal case. The lawsuit contends that they wait, on average, two months for an assessment to be completed and nearly five months for treatment at a state psychiatric hospital. While waiting, they remain in jail, sometimes longer than they would be if convicted.