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.
sixth amendment
Padilla Comes to North Carolina
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).)
The Law of Interrogation
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 … Read more
Fair Cross Section
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 … Read more
More Montejo, Mostly
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 … Read more
Montejo v. Louisiana
Two big developments at the United States Supreme Court. First, President Obama nominated Judge Sonia Sotomayor to replace Justice David Souter. The New York Times story is here, some News and Observer coverage is here, and SCOTUSblog has some interesting tidbits here. This post will focus not on Judge Sotomayor — who, most think, won’t … Read more
Magistrates Appointing Counsel?
Last term, the United States Supreme Court decided Rothgery v. Gillespie County, available here. As most folks likely know, before Rothgery, North Carolina law held that a defendant’s Sixth Amendment right to counsel “attached” when the defendant had his first appearance before a district court judge. After Rothgery, it’s clear that the right attaches at … Read more
Kansas v. Ventris and the Sixth Amendment
The Supreme Court’s latest criminal law decision is Kansas v. Ventris, available here. The basic holding is that a statement obtained in violation of a defendant’s Sixth Amendment right to counsel may be admitted for impeachment purposes, so long as the statement was voluntary. In brief, the defendant in Ventris was charged with murder and … Read more