The Crime Not Committed Yet Punished

I don't think many criminal defense attorneys would disagree with the statement that people who commit crimes should be held accountable for their actions. Prosecutors, criminal defense lawyers and judges will debate over the correct way to hold people accountable for their wrongdoings. However, what about the situation when someone is held accountable for something they didn't do or the crime not committed yet punished?

While there was a recent editorial in the Charlotte Observer about Greg Taylor being declared innocent after spending 17 years in prison for a crime he did not commit, there are other stories on a smaller scale where people convicted of DWI/DUI, drug offenses or other misdemeanors in district court had convictions reversed on appeal.

Simple Justice had another great post addressing this issue. Toyota has been in the news daily; brake pedals malfunctioning, drivers not responsible for car accidents with some people being tragically killed. The post addressed the New York case of Koua Fong Lee;  Mr. Lee was convicted of vehicular homicide after his Toyota Camry hit a car in 2006 that resulted in the death of 2 people. Mr. Lee was sentenced to 8 years. During the criminal trial, he claimed that he kept pumping the brakes as he exited the Interstate but the brakes failed to work. I imagine the case will now be reopened, but a defendant on appeal has an uphill battle.

After a person is convicted, they are sentenced. Many expect the defendant to take responsibility for his actions and ask the court for mercy at the time of sentencing. But cases like Greg Taylor and Koua Lee present a terrible scenario for any person. The Simple Justice Blog make an interesting point:

Lee's crime was being involved in an accident where people died. When someone dies, people see a crime and demand a criminal. Separate the anger at the outcome from the conduct involved, as we are now able to do in light of the Toyota defense, and this doesn't appear to have been a crime at all. In fact, the allegations clearly lead to the conclusion that it was a tragic accident. Lee was in his 1996 Toyota with his pregnant wife, father, daughter, brother and niece. Was his care for others so demented that he put them all at risk by ramming into other cars? It sounds ridiculous now. Today, a couple years later and after a wave of Toyota recalls, the conviction looks horrible wrong. 

 Any skilled criminal defense attorney must prepare not only their criminal case, but they must also prepare for sentencing. The client must be prepared. However, these two types of cases represent the unthinkable situation- the crime not committed yet punished.

Miranda Rights- The Garrity Exception For Police Officers

Recently the United States Supreme Court handed down two cases that addressed Miranda Rights and if  police officers violated an individual's right against self incrimination under the Fifth Amendment. The rulings in both cases were favorable to the prosecution. Courts have continued to carve out exceptions to Miranda Rights; ruling it doesn't apply, or simply found that the person waived their Miranda Rights. Many people are surprised to know that police officers are often given broader protection against self incrimination than the average citizen.

I recently read a post addressing this issue from the Simple Justice blog about the Garrity Rule. The Garrity rule governs internal investigations for specific governmental employees; under the Garrity rule a public employee can be forced to admit criminal activity during a police investigation because they could be disciplined or fired for not speaking. However, those incriminating statements cannot be used in a prosecution of the criminal case. Each state has different laws- some are more favorable to police officers than others. For example in California, the Government Code contains the Peace Officers Bill of Rights which require, among numerous other provisions, that a police officer's interrogation(s) be conducted at a reasonable hour and any off duty officer will be paid for being present at the interview during off duty hours. North Carolina does not  have such police friendly legislation as this but the Garrity Rule is still in effect.

In light of recent events in Charlotte, including a Mecklenburg County Police Officer accused of multiple counts of sexual assaults and another police officer facing domestic violence charges, this portion of the Simple Justice Blog gave me thought:

So why are police officers given special treatment? Is a crime by a police officer less of a crime, less harmful, less significant than a crime committed by anyone else? Is the harm to the victim less painful? Is the harm to society less worthy of prosecution? It might well be argued that a crime committed by a cop is more significant, more blameworthy. After all, we give cops an enormous amount of power and authority, and if they can't be trusted to conduct themselves lawfully, it's a far bigger problem than crime in general. If anything, cops should be held to a higher standard of behavior by virtue of their oath and position. 

Every state has different protections. I should note that North Carolina does not have the generous statute that California affords police officers. However, it will be an uphill battle for a Charlotte criminal defense attorney to get access to internal investigation records from any police officer investigation. Hypothetically, if a person was facing criminal charges in Mecklenburg County, such as a DWI/DUI,  and the arresting police officer was subject to an ongoing internal investigation by Charlotte Mecklenburg Police Department, the criminal defendant wouldn't necessarily have access to police officer statements made during the internal investigation which could potentially reflect a highly compromised investigation.

Driving, Texting and Talking in North Carolina

Driving, texting and talking has been all over the news lately. South Carolina is following in the footsteps of  many states and started the legislative process to ban texting while driving. The City of Clemson recently became the first city in South Carolina to ban texting while driving. Oprah recently had a popular episode on the subject and asked her employees to sign a pledge stating that they would not use cellular phones while driving. Federal employees driving government provided cars are also banned from texting after President Obama signed an executive order in October.

Yesterday the Charlottte Observer reported that North Carolina may try and take the current texting restriction a step further by outlawing the use of cell phones in cars unless the driver uses a hands free device. California has already taken that route- drive down the congested roads of Southern California and you will see a maze of Bluetooth headsets. Charlotte residents appear to support such a law- the Charlotte Observer article cited a WCNC-TV poll that found 47 percent of poll respondents favored a complete ban on cell phone use while 40 percent favored approval of hands free devices only.

Research studies and statistics clearly depict the the dangers of cell phone use. Look for more restrictive laws in the future.

Domestic Violence Education in Classrooms?

Sometimes you read an article and it leaves you a little bit speechless. This one in the South Carolina Herald did that  to me today. Titled 'South Carolina bill meant to raise awareness of dating abuse', this bill would require school districts to have specific dating polices and discipline guidelines for students in grades six through twelve. The measure would require districts to print policies in school handbooks or on the school website. The bill was approved today in a Senate Education subcommittee. The sponsor of the bill, Joan Brady hopes that this bill will raise awareness among young people who live in a state with the eighth highest rate of domestic violence. Brady also wanted to incorporate a dating violence prevention program in the health curriculum, but the state does not have the financial resources. 

I will be interested to see how the public responds to this bill. 

Concealed Weapon Charge- A Day in Mecklenburg District Court

I had a very interesting afternoon in court the other day. My client was facing a concealed weapon charge. The issue at trial was whether the gun was actually concealed. Excluding some specific exceptions, a person can be found guilty of carrying a concealed weapon under NC GS 14-269(a) if they carry a pistol or gun concealed on or about their person while off their own premises. A key element at this trial revolved around whether the gun was actually concealed in the vehicle he was riding in. My client had a good result- the judge dismissed the concealed weapon charge at the conclusion of the District Attorney's case. The judge also dismissed the underage consumption of alcohol and marijuana possession charge for lack of sufficient evidence.

I always do my research before trial. If an attorney wants to have a judge rule in favor of their client, the attorney needs to give the judge something to hang their legal ruling on. I found appellate decisions that supported my client's argument that the gun was not concealed but in plain view of someone walking up to the vehicle. Sound strange? A gun in plain view? Well, the policy behind the concealed weapon law is to protect those who don't know a person is carrying a gun. I thought the appellate case NC v. Gainey stated it well:

"The purpose of the statute is to reduce the likelihood  a concealed weapon may be resorted to in a fit of anger. In case of an altercation, one who has a pistol concealed will be less likely to act with restraint than if he were unarmed. If both parties are unarmed, bloody noses, black eyes, and torn shirts are the principal dangers which grow out of a fight. If, however, one or each party has a concealed weapon, the result of an altercation may be a funeral and a homicide trial, or two funerals."

Putting this all aside, guns are dangerous. Guns in vehicles- even more dangerous. At the end of the day, however, the state must meet their burden of proving my client's guilt beyond a reasonable doubt. That is the job of every well prepared criminal defense attorney- holding the state to their burden.

Police Questioning- Is That A Skink In Your Pants?

Confused over what you can and cannot bring on your next plane trip? This news goes a bit beyond the 4 ounce plastic bag rule requirements when you go through airport security. MSNBC reported the story about a German man who was caught by officials when he attempted to smuggle 44 small lizards, (hidden in his underwear, while boarding an international flight in New Zealand. Somehow New Zealand wildlife officials managed to find 44 geckos and skinks (a lizard with no neck and small legs) in a handmade sewn package concealed in his underwear. By the way, lizards and skinks do bite....

Calling the case the most "serious case of its kind detected in New Zealand for a decade or more", Department of Conservation prosecutor sought a deterrent sentence. The judge sentenced the defendant to 14 weeks in jail and a $3450 fine.

Marijuana Possession Case..Up in Smoke?

I was in court recently waiting for my case to be heard and watched an interesting misdemeanor trial. It was a marijuana possession case where a respected Mecklenburg County defense attorney was contesting the fact that a substance found in a vehicle was actually marijuana. In Mecklenburg County, a substance seized by the police can take a year to be analyzed by the crime lab. There are far too many cases to test every substance seized by the police. In this case, the state prosecutor was relying on the officers training and experience to testify that the substance seized was actually marijuana. Is that enough? A Marijuana Possession Case..Up in Smoke?

Under the evidence code, all evidence introduced at trial must meet foundational requirements. An officer will testify in a marijuana possession case that he/she found a substance believed to be marijuana. However, before this statement is admissible, the witness must convince the court that they have enough experience to testify that the substance is actually marijuana. Recently, there have been a series of cases handed down by the appellate courts finding that an officer's testimony is not enough to prove a substance is actually an illegal substance- Alyson Grine of the UNC school of government does a great job with this summary.

The defendant in the above case was found not guilty. The prosecutions case was also weakened by the fact that the marijuana was found in the backseat of the car and the defendant was the driver.