Charlotte Criminal Lawyer Blog

ACLU Attacks Justice Department for Keeping Innocent North Carolinians in Prison

Published on: October 30, 2012 | On behalf of Arnold & Smith, PLLC

The ACLU recently launched an attack against the Justice Department for continuing to keep innocent people locked up in jail. The civil rights organization said the government has continued keeping some people in prison despite knowing that they have not committed any federal crime.

An investigation conducted by USA Today earlier this year revealed that there were some 60 people behind bars on gun charges despite rulings from lower courts saying they never committed a federal crime. Post #1 criminal image 11-7-12.jpg The Justice Department originally argued the people should remain in federal prison regardless, but has since changed its mind.

The issue that led to the trouble is that federal law bans people from having a gun if they have previously been convicted of a crime that could have put them in prison for more than a year. In North Carolina, however, state law sets the maximum punishment for a crime based on the prior record of whoever committed it, meaning two people who committed the same crime could face vastly different maximum sentences.

For years, federal courts there said that this difference did not matter. If someone with a long record could have gone to prison for more than a year, then all who had committed that crime are felons and cannot legally have a gun, the courts said. But last year, the Fourth Circuit Court of Appeals said judges were wrong, instead they ruled that only those people who could have faced more than a year in prison for their crimes qualify as felons. The decision meant that thousands of low-level criminals never broke federal law by possessing a gun.

Since the investigation, federal judges in North Carolina ordered the government to release at least 22 inmates. This was one of the largest incidents of overturning federal convictions in recent memory. Reports indicate that at least 10 other former prisoners were freed from supervised release, and dozens of other federal inmates from North Carolina remain waiting for a judge to decide whether their convictions must also be overturned.

Despite what seems like good news for the inmates who have been awaiting their release, a recent letter from the ACLU of North Carolina reveals that U.S. Attorneys’ offices continue to stall the process, causing delays in the release of deserving prisoners. Defense attorneys have raised 17 cases claiming that their clients are innocent but the government prosecutors continue to fight all but five of the cases.

The problem with this behavior is that it leads to the continued incarceration of innocent people. Prosecutorial inaction can be as damaging as prosecutorial misconduct, as this instance demonstrates. Even though the government could have easily notified the inmates whose convictions ought to be overturned, they never did so. As a result, the burden of identifying those who have been wrongly incarcerated has fallen on defense attorneys.

CMPD Launches New DWI Enforcement Campaign

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

The Charlotte-Mecklenburg Police Department recently kicked off a “Booze It or Loose It” campaign and this one is set to coincide with the year’s Halloween festivities. The purpose of the new enforcement effort is to crack down on drunk drivers during what can be a busy season. The campaign will be in effect until the day after Halloween and indications are the police will round up hundreds of drivers.

Numbers are in for the first few nights of the drunk driving enforcement push and the CMPD has said that they set up a DWI checkpoint on the 4900 block of Providence Road. The checkpoint was only in place for five hours yet it managed to produce 53 arrests, 8 of which were on DWI charges. Post #1 criminal image 10-30-12.jpg Police had a similarly busy second night, with a checkpoint on the 6100 block of Brookshire Boulevard leading to 64 arrests, 10 of which were DWI-related.

If you ever find yourself caught up in such a checkpoint there are some important tips to remember. First, place both hands on the steering wheel in plain view of the officers. It’s important that officers see that you do not pose a threat to them. Second, be nice and cooperative as there is no reason antagonizing the officer, it will only exacerbate your situation.

Next, remember not to make any unnecessary statements. When you are pulled over the officer will ask for your license and registration as well as some basic personal information. All of this is fine to give them. However, as more specific questions that relate to drinking are asked, it’s time to remember your right to keep quiet. Don’t be rude, but politely tell the officer that you have been advised not to answer such questions and that you would like to exercise your right not to.

If the officer continues the investigation, field sobriety tests are next. It’s important to know that you do not have to take these tests. If you refuse to take them, the fact that you refused may be used against you at trial, but you will not lose your license for refusing to take a field sobriety test. If you do decide to take the tests, make sure to listen to the instructions and follow them carefully. Any failure to follow the instructions will be used against you as a sign that you are impaired.

The Importance of Pocket Litter and Police Searches

Published on: October 26, 2012 | On behalf of Arnold & Smith, PLLC

A recent online article discussed a seemingly boring but ultimately important issue that may be raised before the Supreme Court in a coming session: pocket litter. “Pocket litter” is a phrase used in law enforcement circles to refer to items of miscellaneous information carried on a person. This comes into play when a person is arrested or otherwise detained by an officer and are subject to some sort of search.

When law enforcement officers arrest someone, they conduct a thorough search of the suspect and his or her immediate possessions. Post #2 criminal image 10-30-12.jpg This is what is known as a “search incident to arrest.” Any and all items found during this search are deemed admissible in Court. During a typical search, officers are trained to look for items that might provide useful evidence for the case or that might cause harm to themselves or others. Another use of such searches is to gather information that might provide a clue about other individuals involved in the alleged criminal activity.

Seemingly mundane items found in people’s pockets or purses can provide a significant amount of information. Slips of paper with quickly written messages, phone numbers, names, addresses business cards, etc. all make for great leads. Beyond these obvious examples, scraps of paper including receipts, bus passes or airplane tickets also provide valuable information to those seeking to identify a suspected criminal and any possible criminal associates.

One thing that has happened on this front given the technological changes seen recently is that the items that often make up such pocket litter have changed. Originally the term referred only to small scraps of paper generally containing only a relatively small amount of information. Today, the term has grown to include electronic devices such as smartphones, tablets, iPods, and even laptops from which huge amounts of information can be collected. These devices carry voice mails, call and text logs, photos, Internet browser history and even GPS information.

The question facing many appellate courts today is just how far such a search can go when high value electronic pocket litter is involved. Cellphones, in particular, present a puzzling gray area, as there have been conflicting rulings between various U.S. Circuit Courts. This conflict makes it more likely that the issue will end up before the Supreme Court at some point to help clarify the issue. Judges confronted with such facts often find themselves lost, comparing cellphones to diaries while trying to analogize to prior cases from decades ago that have little if any relevance to the challenges they face today. The Supreme Court will more than likely be stepping in and shedding light on the issue, hopefully catching the legal system up to changes in technology.

Juvenile Crime Drops in Charlotte and Throughout North Carolina

Published on: October 18, 2012 | On behalf of Arnold & Smith, PLLC

According to some recent local news, it appears that juvenile crime rates in Mecklenburg County have been dropping recently due to work by the police to fight teen crime and gang activity.

Numbers released from the state recently reveal that while overall violent crimes have declined by nearly 14% in the state since 2002, the number of teens younger than 16 charged with violent crimes has dropped by nearly 37%. In Mecklenburg County, the juvenile crime rate closely reflected the drops seen across the state, decreasing each year between 2007 and 2010. Post #4 criminal image.jpg Despite a small rise last year, the juvenile rime rate was 29.72 per 1,000 youths, still below the 2007 rate of 31.75.

Though juvenile crime is down nationwide, the numbers show that North Carolina’s drop is almost twice as great as other states. Some say the reason is that the legal system has begun to emphasize treatment and early intervention as approaches to deal with crime among young people rather than simply punishing offenders. As a result of this new approach, the state is locking up far fewer teens than it did a decade ago.

The Charlotte-Mecklenburg police have been commended for working hard to avoid putting young criminals into the system by giving them the opportunity to participate in programs that require them to pay restitution and receive counseling. For example, if a juvenile is caught vandalizing a building, police might take him home and make his parents aware of the situation. But rather than making a formal arrest, the officer may set him up in a deferral process that sends the young person to alternative programming rather than juvenile court.

Many of these changes got their start 15 years ago when the state legislature revamped the existing approach to juvenile justice. Legislators implemented a program that was designed to treat juveniles according to the seriousness of their crimes, the risks they posed and their personal histories. The system was changed to rely more on therapeutic alternatives and less on simple punishment.

The reforms took a while to kick in, but starting in 2006 the number of children being sent to detention centers began to drop. The change is dramatic, according to state officials who say that in 1998, North Carolina locked up 1,400 children each year in such centers while today there are only 300 kids in such facilities.

First Cases Involving North Carolina Racial Justice Act Wrap Up

Published on: October 16, 2012 | On behalf of Arnold & Smith, PLLC

After eight days of a contentious trial, the case that will test North Carolina’s new racial justice law finally wrapped up last week. The outcome of the case will have an important impact in determining how the Racial Justice Act is interpreted in future criminal cases.

Under the state’s law, death row inmates are able to appeal their sentences to life without parole if they can prove that race played a significant role in their sentencing process. The point of the Act is to ensure that people are not excluded from juries in North Carolina on the basis of race. Post #2 criminal image 10-18-12.jpg Advocates of the law say that doing so compromises the integrity of the justice system by introducing an element of racial bias.

Before the implementation of the newest iteration of the Act, an appeal could be based only on statistical evidence. Now that the legislature reworked the legislation, defendants must demonstrate that the prosecutors in charge of the case discriminated against them in some way, something that will be much more difficult to prove.

Defendants Tilmon Golphin, Quintel Augustine and Christina Walters are all asking for relief on the basis that prosecutors struck otherwise-qualified black jurors from their trials at more than twice the rate of potential white jurors. In Augustine’s case, all five qualified black jurors were kept from serving on his jury. Augustine was then sentenced to death by an all-white jury, despite the trial having taken place in a county that is 35% black. Prosecutors struck five out of seven black jurors in Golphin’s case, and 10 out of 14 in Walters’ case, statistics the defendants say are indefensible.

The first person to bring and win a case under the Racial Justice Act in North Carolina was Marcus Robinson, who was convicted of murdering a white teenager back in the early 2000s. In April of this year, Judge Greg Weeks ruled that Robinson would be given life without the possibility of parole after finding that race played a material and statistically significant factor in prosecutors’ decisions to strike potential jurors.

Robinson’s case marked a important turning point in the state and precipitated a revision of the law by legislators, putting the statistics based approach of demonstrating racial inequalities in jeopardy. Now Judge Weeks is also presiding over these recent appeals and he will have to decide what amount of evidence is needed to prove that prosecutors discriminated in the process of selecting a jury. Judge Weeks has said that he hopes to return with his ruling before the end of the year.

Gay Couple From Charlotte Attacked in Asheville and Want Hate Crime Prosecution

Published on: October 13, 2012 | On behalf of Arnold & Smith, PLLC

A gay couple from Charlotte, North Carolina claims they were victims of a brutal hate crime that left them bruised and bloodied. Mark Little and his partner Dustin Martin were vacationing in Asheville, NC when they say they were attacked by a group of three strangers, two women and one man.

The group got out of a passing car and followed the gay couple who were walking back to their hotel. The incident, which took place in late September, quickly became tense as the group began hurling homophobic slurs at the men, before the man in the group eventually physically assaulted them.

Post #3 criminal image.jpg News stations in Asheville have reported that police in the area are still investigating the assault and that no arrests have been made as of yet. If the suspects are apprehended, they could be charged with simple assault because under North Carolina law, sexual orientation is not a protected class according to the state’s hate crime law.

The two men who were attacked think this is an injustice given that they feel their attack was more than just an assault, but motivated solely based on the fact that they were gay. However, as was previously mentioned, North Carolina law does not include sexual orientation as a basis for a hate crime prosecution. Instead, North Carolina General Statutes Chapter 99D-1 says that a hate crime prosecution can occur when two or more individuals “conspire to interfere with the exercise or enjoyment by any other person or persons of a right secured by the Constitutions of the United States or North Carolina.” For this to be a hate crime, the individuals must be motivated by “race, religion, ethnicity, or gender.” Sexual orientation is not listed as a basis for prosecution.

Case Has Some BDSM Fans Worried About Criminalization of Their Lifestyle

Published on: October 9, 2012 | On behalf of Arnold & Smith, PLLC

Chalk this one up to an odd legal battle, but advocates for those who enjoy engaging in rough but consensual sex say that a Missouri case could lead to the criminalization of their lifestyle.

One man, Ed Bagley, faces a federal trial early next year on 11 counts of abuse against a woman that law enforcement officials claim he groomed to be his personal sex slave. Bagley, of Lebanon, MO, is accused of luring a young woman into acting as his sex slave starting back in 2002, then holding her captive for years while selling images of her online and forcing her to work in strip clubs. Post #1 criminal image 10-18-12.jpg Prosecutors argue that Bagley, known as “Master Ed,” tortured her and force her to engage in similar acts with other men.

Prosecutors have said they intend to use examples of consensual, though violent, acts between Bagley and his wife as evidence that he has a history of sexually abusing women. The prosecutors say they will focus on examples of “sadistic sexual assaults” committed by Bagley on his wife. Prosecutors have said that the fact that these encounters were consensual does not change whether they amount to assault. They have pointed to Missouri law which says that consent is not a defense to assault that results in serious physical injury.

Troubling to those in North Carolina is that our state’s law says much the same thing. In a BDSM case, the causing of physical harm is, in and of itself, criminal. Effective consent is a term used by North Carolina law that allows a person who is charged with causing or threatening to cause bodily injury to another person to use as a defense the fact that the alleged victim consented to the conduct. The problem in this case is that, under North Carolina law, Model Penal Code § 2.11, the defense is allowable only when the conduct does not result in serious bodily harm.

Some groups are worried this tough line could open up others, including those into BDSM, to criminal charges for the consensual acts they are engaged in. Advocates for the BDSM community argue that even the most horrific acts detailed in the recent federal indictment of Bagley are not criminal so long as there was consent.

Supreme Court May Hear Case Regarding DNA Database

Published on: October 4, 2012 | On behalf of Arnold & Smith, PLLC

The Supreme Court appears to be considering hearing a case this term regarding a law that allows law enforcement to take DNA samples of everyone arrested in the state before the individual has even been convicted of any crime. Something many people in North Carolina may be unaware of is that a law passed last year in the state that allows law enforcement officials to do just that, take a DNA sample once someone has been arrested. The DNA Database Act requires law enforcement to take cheek swabs (a quick method for collecting DNA) of those arrested in North Carolina for having committed certain crimes.

The law was championed as a tool to help law enforcement find and capture those who commit serious offenses in the state, but opponents of the law argue that it allows law enforcement to trample on the 4th Amendment rights of those who have been arrested but not yet convicted of anything. Post #2 criminal image 10.5.jpg These opponents of the law argue that DNA samples represent an unreasonable search and seizure of private information when the person has only been accused and not convicted of a serious offense.

Prior to the DNA Database Act being passed in 2011, police had to obtain a warrant for DNA evidence before they were legally allowed to collect it. For those who are later acquitted or have their charges dismissed, their DNA information is supposed to be removed from the statewide database. Whether this is actually happening is another story entirely.

DNA is a powerful tool that law enforcement can use to potentially tie a person to a crime or crime scene when other evidence is lacking. Adding DNA to the state and national database is expected to help close multiple cases that have gone cold, often because the existing physical evidence, without DNA, was not enough to lead investigators to the perpetrator.

Prostitution Bust by Charlotte Police Lands Five Women in Jail

Published on: October 2, 2012 | On behalf of Arnold & Smith, PLLC

According to WCNC, five women in Charlotte have been arrested in connection with prostitution.

Charlotte-Mecklenburg Police say they received anonymous tips from people complaining about prostitution activity near Frontenac Avenue and Eastway Drive, south of The Plaza. Robberies, as well as various other incidents of crime, have been reported in the area which led police to focus attention on the vicinity.

The police say the department sent uniformed and undercover officers to saturate the area to help lead to the arrest of the prostitutes. Post #2 criminal image 10.4.jpg The operation was successful from the police’s point of view, as five women were arrested earlier this week and charged with various prostitution-related crimes.

Prostitution and related offenses are outlawed in the state of North Carolina. In a rather brief section of the law, North Carolina General Statutes § 14-204 defines prostitution and other related offenses including pimping and brothel ownership. Loitering is considered an offense on its own, and multiple convictions of all related offenses result in more severe penalties.

North Carolina law defines prostitution as the receiving of or the offering of the body for sexual intercourse for hire. Penalties for prostitution and patronization of a prostitute are Class 1 misdemeanor charges and result in sentences of up to 45 days in jail or a fine. Defendants may receive probation in lieu of imprisonment. Individuals with more than two convictions within a year may be convicted of a crime in the first-degree, resulting in a more severe penalty. Sentencing for first-degree crimes includes imprisonment for 1 to 3 years and a fine.

Stolen Laptop Photographs NC Thief and Leads to Arrest

Published on: September 29, 2012 | On behalf of Arnold & Smith, PLLC

One North Carolina thief didn’t know what he was in for when he decided to break into Jonathan Moss’ house in Raleigh, NC and take his brand new MacBook Air. Unbeknown to the burglar, Moss was an IT specialist who had, just days prior, downloaded a GPS tracking software to his laptop.

Moss had just been given the laptop by his wife as a wedding present and the two left for their honeymoon in Aruba when Moss’ landlord emailed him saying there had been a robbery. Moss then accessed his Prey software from his villa in Aruba which allowed him to use wireless networks near the stolen laptop to send location information and even take pictures with the computer’s camera.

Moss went to police in Aruba who contacted Raleigh police with the information he had gathered. Post #1 criminal image 10.5.jpg Moss was able to collect not only the location of the laptop, but a photograph of the man who stole it and the email address of the new user.

Given the overwhelming amount of information stacked against him, it did not take long for police to arrest Johnny Howard Fogg Jr., 29. Fogg has since been charged with felony possession of stolen property in connection with the case. His bail has been set at $3,000.

Under North Carolina law (North Carolina General Statutes § 14-72), people who possess stolen property face Class H felony charges when the value of the property exceeds $1,000 and they know or have reasonable grounds to know that the property was obtained through theft. The value of the property can make a significant difference to an accused person, as the state treats possession of goods valued below $1,000 as a less-serious Class 1 misdemeanor.