Court Procedures

NC Court of Appeals Reverses Decision to Release Criminal After Crime Lab Mishaps

Published on: September 20, 2012 | On behalf of Arnold & Smith, PLLC

North Carolina’s Court of Appeals made a big announcement this week when it decided to overturn a Durham judge’s decision to throw out child murder charges against a man who spent the past 12 years in prison. The Durham judge previously ruled that prosecutors and the state crime lab both hid critical evidence and thus the man ought to be set free.

A unanimous three-judge Appeals Court panel said it did not agree with Superior Court Judge Orlando Hudson’s reasoning for dismissing the charges against Derrick Allen. Instead of dismissing the charges, the Appeals Court ordered a new trial in the case.

Judge Hudson previously dismissed murder and assault charges against Allen in December 2010. The man had been serving a prison sentence for the 1998 death of his girlfriend’s 2-year-old daughter. Post #2 criminal image 9.25.jpg Judge Hudson believed that Durham County prosecutors hid evidence and the State Bureau of Investigation’s crime lab intentionally omitted evidence about blood tests in Allen’s case.

The problems in the case came to light only after another man was found innocent of murder after having spent some 17 years behind bars. The case of Greg Taylor resulted in a total review of the state’s crime lab and the resulting report flagged Allen’s case as one of more than 200 that had been handled improperly. This got the ball rolling by a defense attorney who uncovered other misdeeds in the original prosecution.

The Court of Appeals said that while they share the lower court’s displeasure regarding the manner in which the blood testing was done and disclosed and the manner in which the prosecution handled the case, they could not agree that dismissing all charges was appropriate. The judges on the Court of Appeals said they could find no “legal basis” for the lower court’s action.

This recent decision means that Allen will likely face charges related to the 1998 death of the young girl, but he will remain free until a final decision by prosecutors is made regarding how they want to proceed. Allen has always maintained his innocence, though in 1999, he entered an Alford plea which allowed him to avoid the death penalty. Under an Alford plea, a defendant does not admit guilt but acknowledges that prosecutors have enough evidence to convict him or her of the charged crime.

Supreme Court issues important plea-bargaining decision

Published on: June 7, 2012 | On behalf of Arnold & Smith, PLLC

Many cases are resolved with a plea bargain long before they ever reach the courtroom. Plea bargains are important to prosecutors because they help efficiently clear dockets and allow them to prosecute more cases. They can also be beneficial to defendants by possibly allowing them to serve a lesser sentence than what the state would ask for during trial. However, a plea bargain can only be effective if the defendant is aware that this is an option in the first place.

In a 5-4 decision, the Supreme Court ruled that defense lawyers must inform their clients of any plea offers and give competent advice about whether to accept them. Post #2 criminal image 6.7.12.jpg To do otherwise would violate the 6th Amendment right to effective assistance of counsel.

The two cases before the court involved a man in Missouri who pleaded guilty to driving without a license, and a Michigan man who was convicted of assault and attempted murder after following his attorney’s advice and rejecting a plea bargain.

In the Missouri case, Galin Edward Frye was arrested for driving without a license for the fourth time, which in that state is a felony. The prosecutor offered two deals, including one that involved pleading to a misdemeanor and a three month recommended sentence. Frye’s attorney never told him about the offer and this ultimately led to him entering a guilty plea and getting a three-year sentence.

In the Michigan case, Anthony Cooper repeatedly shot a woman and was charged with four counts, including assault with attempt to murder. The prosecutors offered a plea deal where two of the charges would be dropped and Cooper would serve a maximum of 85 months in prison. Due to advice from his attorney, Cooper rejected the deal and was sentenced to a maximum of 30 years in prison.

Charlotte Cold Case Squad Hard At Work Solving Old Crimes

Published on: March 20, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent report by WCNC, the CMPD’s cold case squad is thriving. Created six years ago, the Charlotte-Mecklenburg Police Department’s sexual assault cold case unit, has had tremendous success solving sexual assault cases that no one ever thought would be solved. It was one of the first sexual assault cold case teams in the nation. Initially, only one detective was assigned to solve the cold cases, but since then, the department has received grants from the Justice Department to thoroughly staff the squad.

Post #1 criminal image 3.14.12.jpg In addition to the detectives, the squad also has its own prosecutor dedicated to ensuring that the perpetrators of these crimes are brought to justice. Barry Cook, once a member of the Mecklenburg County District Attorney’s office, came out of retirement to assist the cold case squad in prosecuting the offenders that they are successful in apprehending. Cook said, “There’s a lot of satisfaction in playing a part in solving these cold case sex crimes and putting whoever’s responsible for these crimes in prison.”

The cold case squad spends the majority of its time meticulously going over old case files. They try to find new avenues of investigation and look for new evidence to test for biological evidence, the presence of which will make the prosecution relatively easy, according to Cook. The team has the luxury of the advances in technology that the original detectives involved in these cold cases did not have. New technology allows technicians to extract DNA from the most miniscule of biological samples. Samples that were once thought of as too degraded for analysis are now proving to be useful pieces of evidence.

Challenges, however, are present even with the advances in technology. The presence of DNA does not necessarily lead to a conviction. The detectives still have to conduct a thorough investigation to contextualize the DNA evidence should it even be present. Detective Troy Armstrong, a member of the team, said, “DNA is why we can solve these cold case rapes. . . . But DNA is not the magic bullet. It’s only a part of the puzzle. We have to put the entire puzzle together. It’s not a slam-dunk case just because we have DNA.”

Gastonia Man Suffers because of Courthouse Document Mishap

Published on: February 28, 2012 | On behalf of Arnold & Smith, PLLC

A recent article in the Gaston Gazette tells the story of a Gastonia, NC man who could not get a job because the courts mixed up his name with the name of a another man charged with stealing a dog. Post #1 criminal image 3.8.12.jpg John Ashley Wilson was trying hard to get a job as a certified nursing assistant, but he was consistently told that his criminal record was preventing him from being hired. Wilson knew that he has some minor criminal charges in the past, but they had been dismissed. Then he received a letter for the North Carolina Administrative Office of the Courts. It informed him that his federal income tax return for that year was being used to pay his public defender. Wilson knew that he had not recently been in court. Wilson then took a trip to the Gaston County courthouse, which is where he finally got to the bottom of the mystery.

After a visit to the Gastonia Police Department, Wilson learned that he had been charged with felony larceny of a dog. The arresting officer was there and told his supervisors that Wilson was not the man he had arrested for stealing the dog. The man he had arrested was a black man and Wilson was white. The name on the warrant application was John Allen Wilson III, a black man, whose date of birth was May 28, 1981. But, after the order for arrest came from the magistrate, John Ashley Wilson, born January 21, 1981, became the suspect.

How did this happen? The courthouse staff failed to properly organize the documentation. John Allen Wilson’s request for a public defender was inside of a folder along with Judge Sumner’s order for the theft of the dog based on John Ashley Wilson’s description. Sumner had the wrong file in front of him when he was entering the order. Wilson blames that sloppy organization of the courthouse staff for this mix up.

Governor Perdue Exercises Veto Power on North Carolina Death Row Bill

Published on: December 20, 2011 | On behalf of Arnold & Smith, PLLC

According to the Charlotte Observer, Republican lawmakers recently introduced a bill in the North Carolina legislature that would have brought an end to a two-year death penalty law.

The current state of the North Carolina death penalty jurisprudence allows death row inmates to use racial statistics to demonstrate that there was racial bias in their death sentences. The new law proposed by Republican lawmakers would have prevented death row inmates from utilizing these racial statistics, but Governor Perdue vetoed that bill.

It is unlikely that this veto will be overridden. The Republicans need five Democrats to come to their aide to override the veto and garnering that support is likely impossible. Governor Perdue’s veto keeps the Racial Justice Act effective as North Carolina law, which permits the introduction of statistics to bolster an inmate’s claim that his or her death sentence was racially biased. It began with a Michigan study that shows that the killers of white victims are more than two times more likely to receive a death sentence than the killers of black victims.

The Michigan study was informed by the Baldus study, a famous study that was used as evidence in McClesky v. Kemp, 481 U.S. 279 (1987).

In that case, the defendant attempted to use racial statistics as evidence that the death penalty was racially biased. However, the Supreme Court disagreed with the defendant’s argument and said that discriminatory impact of the death penalty is not the same as discriminatory intent and intent is what is admissible as evidence. North Carolina’s death penalty law provides more protection than the Supreme Court’s federal law, which is permissible under the United States Constitution. Constitutional law provides the floor, not the ceiling, for protection of individual liberties.

Governor Perdue’s exercise of her veto power is probably going to cost her as she defends office next election. While she stressed that she remains in favor of the death penalty, she also noted that it is “important to ensure prosecutions and sentences are not tainted by racial prejudice.” Governor Perdue’s tough-on-crime stance took a hit when she vetoed this bill and she is going to have to do a lot of work to make sure that combats the criticism she will surely face as a result of her decision.

Dealing with the death penalty comes at the end of a long and arduous trial process. After two separate trials to first determine guilt and then determine the implementation of the death penalty, then comes the mandatory appellate process that can drag on for several more years.

Man Convicted of Murdering Two Charlotte Officers Last Year Appeals

Published on: September 28, 2011 | On behalf of Arnold & Smith, PLLC

court of appeal.jpg Citing sixteen separate reasons for his case to be overturned, attorneys for Demeatrius Montgomery have filed an appeal almost one year after he was convicted for killing two CMPD officers at the Timber Ridge Apartments in 2007. In an interview with Charlotte News Channel 14 on September 27, 2011, Charlotte criminal defense attorney Brad Smith cites the fact that Mr. Montgomery barely spoke to his attorneys during the three and a half years his case was pending as evidence that he may not have consented to those attorneys representation of him in his trial. According to Mr. Smith this could be grounds for appeal.

At 11:30 p.m. on March 31, 2007, Charlotte Police Officers Sean Clark and Jeff Shelton responded to a disturbance at the Timber Ridge Apartments. After resolving the disturbance, the officers were headed back to their cars when they struck up a conversation with a man, who had nothing to do with the prior disturbance. Once the officers began walking away, that man, later identified as Mr. Montgomery, opened fire on the officers shooting both in the back. Both officers died of their injuries the next day.

The trial itself was not without issues. First was the fact that even though prosecutors initially wanted to seek the death penalty, once it was shown that an investigator on the case destroyed his own notes and plagiarized those of other officers, the judge ruled that he would not allow the death penalty to be a possible sentence if Mr. Montgomery were convicted. Next, none of the prosecution’s seventy witnesses ever saw Mr. Montgomery pull the trigger, and there was no physical evidence linking him to the murder weapon. The prosecution’s case primarily rested on testimony that Mr. Montgomery was in the area and had a history of violence towards police. Last was Mr. Montgomery’s failure to participate in both building a defense with his own attorneys as well as participating in the trial.

Now, based on those issues, Mr. Montgomery’s attorneys have appealed stating that testimony that was admitted at trial was either not credible or inappropriate as well as alleging that Mr. Montgomery was incompetent to stand trial. This appeal will likely take months or years to resolve, and, according to Charlotte criminal defense attorney Brad Smith, could even result in oral arguments before the North Carolina Court of Appeals.

Racial Justice Act May Delay Mecklenburg County Death Penalty Cases

Published on: September 23, 2011 | On behalf of Arnold & Smith, PLLC

death penalty pic.bmp In a recent interview with WSOC channel 9 news interview, Charlotte criminal defense attorney, J. Bradley “Brad” Smith, was asked to comment on the Racial Justice Act and how it is impacting the death penalty cases that are set to be heard next year in Mecklenburg County. According to the Mecklenburg County DA, the courts will try three death penalty cases in 2012.

Signed into law in 2009, The Racial Justice Act allows death row inmates to challenge their conviction on the basis of race. This may very well delay the process and court proceeding for Mecklenburg County cases. Of the 158 inmates currently on death row, 152 have filed racial justice claims. Prosecutors believe this is an overuse of the law; however, from the defendant’s perspective, attorney Brad Smith says, “when you’re sitting on death row you’re pretty much gonna use anything and everything at your disposal in which to challenge your conviction and not get the death penalty.”

The death penalty matter has once again grabbed headlines with the recent events in Georgia with Troy Davis. On Wednesday, September 21, 2011, at 11:08 p.m., Troy Davis was executed for the murder of Savannah police officer Mark MacPhail. In the weeks prior to Mr. Davis’ execution, he and his supporters sparked yet another national debate over the death penalty, the possibility of an innocent man being executed for a crime he did not commit, and the issue of race in death penalty sentencing.

On August 18, 1989, Officer MacPhail was working off-duty as a security guard at a Burger King. At around 1:00 a.m. there was a disturbance in the parking lot when a group of men, including Mr. Davis, was accosting a homeless man over some beer. While responding to the disturbance, Officer MacPhail was shot twice, once in the heart and once in the head. On August 23, 1989, Mr. Davis turned himself in knowing he was a wanted man in the murder of Officer MacPhail. Just over two years later, Mr. Davis was convicted of murder and sentenced to death.

The case against Mr. Davis was one lacking in physical evidence. No murder weapon was ever found, and though a ballistics expert testified the same gun may have shot Officer MacPhail and wounded another man that same night, although he did have doubts about this. Witnesses also testified either that they observed Mr. Davis shoot Officer MacPhail, or that Mr. Davis confessed that he shot Officer MacPhail.

Elisa Baker Wins Motion to Change Venue

Published on: August 9, 2011 | On behalf of Arnold & Smith, PLLC

criminal books.jpg On August 1, 2011, a Catawba county judge granted Elisa Baker’s Motion to Change Venue. Ms. Baker’s motion to change the venue of the trial was based on the extensive media coverage this case has attracted. Her attorney, Scott Reilly, felt that Ms. Baker could not receive a fair trial in Catawba County because of the coverage. District Attorney Jay Gaither did not oppose Ms. Baker’s motion. Although he felt that Ms. Baker would have been able to receive a fair trial in Catawba County, he “trust[s] the jury system… wherever we go.”

In a recent television interview with Charlotte News Channel 14, Charlotte criminal attorney J. Bradley Smith was asked to comment on this case where he said that he agreed with Attorney Scott Reilly’s recommendation to change the venue. Smith goes on to say, “what the next step will be is what county has a similar demographic makeup, population, etc. to Catawba County and what county the case will be moved to.” Smith thought that Rutherford County, NC might be in contention.

Ms. Baker has been held in the Catawba County Jail since she was arrested in October for writing a phony ransom note in order to make it seem that her step-daughter Zahra Baker had been kidnapped. She has since been charged with second degree murder. Ms. Baker told family members that Zahra died after an illness and that she and her husband panicked and disposed of the body instead of notifying officials. Family members have told authorities that Zahra’s father was afraid to take Zahra to the hospital because he was in this country illegally and social workers had previously investigated complaints against Ms. Baker.

Traditionally, the proper venue for a trial is the county where the crime or portion of a crime took place. However, under North Carolina law, a Defendant may make the motion to change venue. The court must then rule whether “there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.” Here, the court has found that there is little likelihood that Ms. Baker can receive a fair trial if it is held in Catawba County. The question is where the trial should be held.