In McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018), the US Supreme Court held that a defendant’s Sixth Amendment counsel right was violated when trial counsel admitted guilt over the defendant’s intransigent objection. In this post, I’ll discuss what impact, if any, McCoy has on North Carolina law. Continue reading
Tag Archives: sixth amendment
[Editor’s note: Today’s post was written by Alyson Grine and Emily Coward. Until last year, Alyson was the Defender Educator at the School of Government. She is now an Assistant Professor of Law at NCCU, but she continues to work with the School of Government’s Indigent Defense Education team on the NC Racial Equity Network. Emily is a Research Attorney with the Indigent Defense Education team at the School of Government.]
Summary: In its March 6 opinion in Pena-Rodriguez v. Colorado, the U.S. Supreme Court carved out an exception to the “no impeachment” rule for cases in which a juror makes a clear statement that he or she relied on racial bias in voting to convict a criminal defendant. In such cases, the evidentiary rule preventing the court from hearing juror testimony about statements made during deliberations must give way so that the court may consider whether the alleged racial bias violated the defendant’s Sixth Amendment right to a fair trial. We may be opening ourselves up to accusations that we are seeking to extend our moment in the spotlight by blogging about this case: as mentioned in last week’s News Roundup, the manual we co-authored, Raising Issues of Race in North Carolina Criminal Cases, was cited by Justice Alito in his dissenting opinion. However, as this opinion marks the beginning of a new chapter in the centuries old “no impeachment” rule, it’s important for North Carolina practitioners to understand its implications. Continue reading →
Twenty-five years ago the North Carolina Supreme Court departed from national standards on attorney-client decision-making and gave clients greater control over the direction of their case, including trial strategy and tactics. Since then, the North Carolina courts have sorted through various matters on which attorneys and clients have disagreed. A recent decision, State v. Ward (Nov. 1, 2016), applies and perhaps expands one of the exceptions to client control over the case. Continue reading →
A defendant charged in district court with the misdemeanor crime of driving while impaired cannot ascertain from the charging document whether he is subject to sentencing at Level A1 (the most serious level) or Level 5 (the least serious). That’s because the aggravating factors that lead to elevated sentencing aren’t considered elements of the offense and thus are not required to be alleged in the charging instrument. Yet because those factors can increase the maximum punishment a defendant may receive, they must be proved beyond a reasonable doubt and, with the exception of prior convictions, be determined by a jury in superior court. And, for most charges of impaired driving prosecuted in superior court, the State must provide notice of its intent to seek aggravating factors. A case decided by the court of appeals last June, however, identifies an exception to this requirement for certain aggravating factors in driving while impaired prosecutions initiated in superior court.
In 2008 the General Assembly created the new crimes of rape and sexual offense with a child by an adult offender (G.S. 14-27.2A and -27.4A, respectively). S.L. 2008-117. They have special sentencing rules, described here, including the possibility of a higher maximum sentence if the judge finds “egregious aggravation” in the case. Discussing the law immediately after it passed in 2008, John Rubin wrote (here, on page 3) that placing the responsibility for determining egregious aggravation on the judge—not the jury—was “likely unconstitutional” under Blakely v. Washington. As my kids like to say, “Nailed it.” State v. Singletary, decided by the court of appeals last week (and mentioned briefly in last week’s News Roundup), ratified John’s view. Continue reading →
On Friday, the Fourth Circuit, deciding “an issue of first impression,” ruled that a new trial is required when a defense lawyer sleeps through a substantial portion of a trial. The opinion in United States v. Ragin is available here. This post summarizes and discusses the case. Continue reading →
The title I gave this post is actually not quite accurate. Five years ago, in its 2010 decision in Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court established that criminal defense attorneys have an obligation, as part of the Sixth Amendment guarantee of effective assistance of counsel, to advise noncitizen clients about the immigration consequences of the criminal charges against them. In its recent decision in State v. Nkiam, ___ N.C. App. ___ (Nov. 3, 2015), temp. stay allowed, ___ N.C. ___ (Nov. 23, 2015), the North Carolina Court of Appeals found that the defendant’s counsel failed to meet this obligation. Although Nkiam seems like a straightforward application of Padilla, it has caught people’s attention because it is the first North Carolina appellate decision to address the merits of a Padilla claim of ineffective assistance of counsel. (In previous cases, the North Carolina Court of Appeals found it unnecessary to address the merits of the defendant’s claim, holding that Padilla did not apply retroactively and did not afford relief to a person whose conviction was final before Padilla was decided. State v. Alshaif, 219 N.C. App. 162 (2012); accord Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103 (2012).) Continue reading →
In connection with some teaching that I have coming up, I’ve prepared a short outline summarizing the law of interrogation. It’s available as a PDF here. It covers voluntariness, Miranda, and the Sixth Amendment right to counsel, plus the recording requirements of G.S. 15A-211, including the statutory amendments that took effect on December 1. I wrote it with judges and lawyers in mind, but I tried to keep it free of mumbo jumbo so that officers would also be able to use it. As always, I welcome your feedback.
Yesterday, the United States Supreme Court decided Berghuis v. Smith, a case in which the defendant claimed that the pool from which his jury was selected was not a fair cross section of the community. In my experience, it is not uncommon for a defendant, particularly a minority defendant, to look at the jury pool and say something like “I thought I was supposed to have a jury of my peers!” Since the issue comes up reasonably often, it’s worth taking a look at the basic doctrine, which is as follows:
1. The Sixth Amendment guarantees the right to trial by jury.
2. “[T]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522 (1975).
3. If a defendant can show that a “distinctive” group is significantly underrepresented in a jury pool as a result of “systematic exclusion,” he has made a prima facie case that his fair cross section rights have been violated. Duren v. Missouri, 439 U.S. 357 (1979).
4. Such a defendant is entitled to relief — the exact nature of which may depend on the stage of the case — unless the state can show that the discrepancy is the result of eligibility requirements or exemptions from service that “manifestly and primarily advance” a “a significant state interest.” Id.
Remember, all of this has to do with the jury pool, not with the selection of the jurors from the pool. Claims of discrimination in that process are addressed under the framework established in Batson v. Kentucky, 476 U.S. 79 (1986).
Let’s look at how this doctrine applied in Smith. The defendant was an African-American man charged with murder. Between 60 and 100 prospective jurors appeared for jury selection. “[A]t most, three venire members were African-American.” The defendant objected to the venire, but his objection was overruled. The defendant was convicted, and appealed. The state intermediate appellate court ordered the trial court to conduct an evidentiary hearing on the fair cross section issue.
At the hearing, the evidence showed that prospective jurors were assigned to local misdemeanor courts first, and only once those courts’ needs were met were any remaining prospective jurors assigned to the county-wide felony court in which the defendant was tried. Shortly after the defendant’s trial, this system was changed because court officials believed that the local misdemeanor courts “swallowed up” most of the minority jurors, leaving few for the county-wide felony court.
The statistical evidence showed that blacks were 7.28% of the local jury-eligible population, and 6% of the jury pool at the county-wide felony court over the six months leading up to Smith’s trial. The “absolute disparity” was therefore 1.28%, while in relative terms, blacks were 18% underrepresented. (7.28% – 6% = 1.28%, and 1.28/7.28 = 18%.) This 18% underrepresentation shrank to 15% after the system for assigning prospective jurors was changed.
The trial court, the state intermediate appellate court, and the state supreme court disagreed over how the disparity should be measured (in absolute terms, relative terms, or otherwise); whether it was significant; and whether it was the result of systematic exclusion. The state supreme court ruled in the state’s favor, and Smith sought federal habeas review. The federal district court denied relief, but the Sixth Circuit reversed finding sufficient evidence of systematic exclusion. The Supreme Court reversed again. (As an aside, this is the third time this Term that the Court has reversed a Sixth Circuit decision granting habeas relief. Two more cases are pending, as noted here. I haven’t seen a statistical analysis, but I suspect that the Sixth Circuit is the second-most-reversed federal court of appeals.)
The Court declined to adopt a single test for disparity, describing each of the several statistical techniques used by the parties as “imperfect.” Nor did it establish a clear threshold for when a disparity is significant enough to raise fair cross section concerns. Instead, it found that the Sixth Circuit erred, under the deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act, in finding that any underrepresentation was the result of systematic exclusion. It found that Smith’s best explanation for how blacks were systematically excluded from his jury pool — through the system of assigning prospective jurors to local misdemeanor courts first — was unpersuasive in light of the nominal change in the underrepresentation of blacks when the system was abandoned. Smith also argued that systematic exclusion resulted from practices such as “excusing people who merely alleged hardship or simply failed to show up for jury service, . . . rel[ying] on mail notices, . . . fail[ing] to follow up on nonresponses, . . . us[ing] . . . residential addresses at least 15 months old, and . . . refus[ing] . . . to enforce court orders for the appearance of prospective jurors,” but the Court rejected this as unsupported speculation.
Justice Thomas concurred, suggesting that there is no fair cross section requirement in the Sixth Amendment, which was adopted at a time when many states forbade women, those who did not own property, and other groups, from serving on juries. (Maryland apparently didn’t permit atheists to serve.)
The Supreme Court has long emphasized that the fair cross section requirement must be applied in a flexible way that accommodates local practices. In the wake of Smith, federal courts will probably be even more reluctant to find fair cross section violations. Except in extreme cases, state courts may be no more receptive to such claims. Certainly, fair cross section claims don’t appear to have had a great history of success in the North Carolina courts. See, e.g., State v. Williams, 355 N.C. 501 (2002) (12% disparity insufficient to establish significant underrepresentation, and discussing cases in which even greater disparities were not enough; also noting lack of evidence of systematic exclusion). So when a defendant says “that’s not a jury of my peers,” the constitutional answer, in most cases, is “yes, it is.”
Update: Another statistical analysis of Judge Sotomayor’s work in criminal cases appears here. The conclusion — that she’s pretty close to the middle of the road — is the same as the conclusion in the McClatchy story I referenced originally, but the figures are very different, showing that she has ruled in favor of the defendant in only 7% of criminal cases. I assume that the difference is explained by differences in the data sets, like McClatchy’s exclusion of habeas cases.
Original Post: Bob Farb’s detailed exploration of Montejo v. Louisiana is available here. (My previous post on the case is here.) Two terrific things about Bob’s summary are (1) the amount of context that it provides, and (2) the clear explanation that it provides of how Montejo will affect officers’ work.
The decision has, justifiably, begun to attract some public attention, including a New York Times editorial, here, and a National Law Journal piece, here, juxtaposing the case against Judge Sonia Sotomayor’s nomination to the Supreme Court, and emphasizing the importance of a single vote.
Speaking of Judge Sotomayor, an interesting piece about her criminal law decisions by the McClatchy Newspapers appears here. The conclusion is that she’s “far from soft on crime,” a conclusion based in part on statistics showing that she voted in favor of the defendant in 28% of the criminal cases she’s heard over the past five years. Apparently, that’s par for the course on the Second Circuit. (In the Fourth Circuit, or in our state appellate courts, that number would put her on one end of the bell curve, but perhaps different courts see different types of issues.)