Charlotte Criminal Lawyer Blog

Penn State Sex Abuse Scandal Rocks the College Sports World

Published on: November 11, 2011 | On behalf of Arnold & Smith, PLLC

Penn State.jpg What has happened over the last week at Penn State University has tarnished the lengthy career of a football coaching legend and the reputation of a nationally recognized institution. Wednesday evening Joe Paterno, 84 year-old football coach of Penn State University, was asked to step down immediately, ending his 46-year tenure as head coach.

In order to understand how we have gotten to this point, it is critical to understand the history and timeline of events that have taken place over the last few decades. In 1969, Jerry Sandusky began his coaching career as a defensive line coach with Penn State University under legendary coach Joe Paterno. In 1977, Jerry started his now infamous organization called The Second Mile which was intended to help children with absent or dysfunctional families. Over the course of a 15 year-period, beginning in 1994, Sandusky had numerous alleged encounters with young boys. Some of these incidents were witnessed by other members of the coaching staff and occurred at the Penn State athletic facilities. In total, Sandusky faces over 40 criminal charges with 25 of those being felony counts of deviate sexual intercourse, aggravated indecent assault, unlawful contact with a minor, endangering welfare of a child and indecent assault against at least eight victims over more than a decade.

As the details of the alleged acts have been flooding the media in the last couple of days, the idea of an adult violating these innocent children is disturbing to say the least. I am sure everyone would agree that Sandusky should be punished for his crimes. However, what makes this story even more interesting is how the lack of action on the part of others is bringing them under fire, most noteworthy Coach Paterno.

As the story has further unraveled, it appears that Paterno and other school officials had the opportunity to alert authorities, but instead just alerted the Penn State athletic director ,Tim Curley. As it stands, Curley and another university official are facing charges of perjury and failing to report Sandusky to authorities. On two different occasions, once in 1998 and again in 2002, Sandusky was accused of engaging in this violent criminal behavior and the school effectively did little to nothing to stop it. Although Paterno does not appear to be facing criminal charges like Curley, it is still safe to say that his career has been tainted and ended sooner than he had intended. No doubt that the reputation of the esteemed Penn State University has been forever changed.

Michael Jackson’s Doctor Found Guilty of Involuntary Manslaughter

Published on: November 4, 2011 | On behalf of Arnold & Smith, PLLC

Michael Jackson.bmp After a two-year legal battle and nine hours of jury deliberation, Doctor Conrad Murray was found guilty of involuntary manslaughter in the death of pop star, Michael Jackson, at the downtown Los Angeles County Courthouse. Murray served as Jackson’s personal physician as he vigorously prepared for his comeback concert. During this time, Jackson was known to have had trouble sleeping and according to his testimony to remedy this Murray was administering the surgical anesthetic propofol every night for at least two months. The Los Angeles County coroner confirmed that Jackson’s death was caused by “acute propofol intoxication” in combination with two other sedatives.

The trial lasted for 23 days and there were 49 witnesses who included Murray’s girlfriends and patients, Jackson’s former employees, investigators and medical experts for each side. The jurors were left to determine if Jackson had given the deadly dose of propofol to himself or if it was administered by Dr. Murray in an intravenous drip. Prosecutors said that Murray was willing to give the dangerous drug, propofol, in return for $150,000 monthly paycheck.

The spokesman on behalf of the Jackson estate and family called this a “victory” and said “justice was served.” The judge made it clear that this crime was being taken very seriously. When Murray’s lawyers asked to allow Murray to be free while awaiting sentencing hearing, Judge Pastor said “public safety demands that he be remanded.” He went on further to say, “This is a crime where the end result was the death of a human being….this demonstrates rather dramatically that public should be protected.”

Even with all of the coverage, you may still be wondering what involuntary manslaughter means, and what someone does to be guilty of such a crime. In North Carolina, involuntary manslaughter could occur in two different ways. First, it could involve committing an act that results in someone’s death, but the person responsible did not act with the intent to kill. In essence, someone is negligent and that negligence results in someone’s death. This is the theory that Dr. Murray was convicted under. Second, it can result from what is called the “misdemeanor manslaughter” rule. This rule applies when a defendant commits a misdemeanor that results in another person’s death. For example, if the defendant sets fire to brush or grasslands, which is a misdemeanor, and that fire results in someone’s death, that death would be considered involuntary manslaughter because it was caused by the commission of a misdemeanor.

In North Carolina, involuntary manslaughter is a class F felony which could result in up to 49 months, or just over 4 years in prison. This is almost exactly what Dr. Murray will face at his sentencing hearing on November 29, 2011, where he faces up to 4 years in prison.

Is a Continuous Alcohol Monitoring Anklet the Solution for Drunk Driving?

Published on: October 7, 2011 | On behalf of Arnold & Smith, PLLC

interlock ignition.jpg Since the passage of North Carolina’s Laura’s Law in June by Governor Beverly Perdue, the courts have been tougher on drunk driving especially Hard Core Drunk Drivers (HCDD). The law is named for a North Carolina teenager who was killed by a drunk driver who had three prior DWI (Driving While Impaired) on his record. In the past, excessive offenders would be given an interlock device on their car which would force them to blow into a device before operating their vehicle. Research has found that with these interlock ignition devices, many of the offenders get a “blow fail” which means that at the time they were too drunk to operate the vehicle but still attempted to do it. The interlock ignition device is used for HCDD which are those offenders who are found to blow over a .15 BAC (.08 is the legal limit in NC).

North Carolina plans to follow the states of Tennessee, Delaware, Arizona, Colorado, Nebraska , North Dakota and South Dakota by introducing tougher sentencing for the HCDD with hopes of impacting their overall sobriety and broader alcohol abuse issue. Statistics show according to the Century Council, that in 2009, 70% of alcohol related traffic fatalities were caused by drivers who had a BAC level of .15 or higher and this statistic has remained the same for the past decade.

One device that is being proposed to help better address this HCDD population is an alcohol monitoring anklet. This device is called a SCRAMx and is manufactured by a company called Alcohol Monitoring Systems, Inc. The anklet would use a non-invasive transdermal analysis to monitor alcohol use and would report this back to the appropriate authorities. The immediate goal would be to lessen the number of drunk driving offenses and consequent accidents and fatalities by the HCDDs; however, the long term goal would be to assist these individuals with their broader alcohol abuse issues and help them on the road back to sobriety.

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.

So You Blew on the Intoxilyzer? What does registering a .08 or above on the “Breathalyzer” mean for your legal defense. – Part 2

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

road with police tape.bmp Defending your Driving While Impaired charge with ingenuity means attacking the Intoxilyzer. The most effective way to attack the magic box is to hire your own attorney. The manufactures of the Intoxilyzer have a vested interest in selling the myth that they have created an instrument that never breaks down, never freezes up, and always produces a perfectly accurate reading. The reality is the intoxilyzer just like any computer has its problems.

The state will present the reading for the intoxilyzer by having the analyst who conducted the test testify. Typically an analyst is only qualified to testify about how the instrument is used to conduct the test. In other words he knows how to turn the instrument on, he knows how to enter the defendant’s name into the instrument using the keyboard, and he knows which button to push before asking to defendant to blow into the instrument. Despite their limited knowledge concerning the science behind the instrument, many analysts will testify about how the instrument works. This typically leads to disaster as the astute defense attorney will point out all the problems with the analyst’s testimony and entirely destroy the credibility of the state’s case with testimony from their own expert.

In North Carolina the Department of Health and Human Services has created regulations that lay out the foundation requirements for a breath test.These regulations state that every analyst must observe a defendant for 15 minutes before requesting that they submit to a test of their breath. The purpose of the observation period is to make sure the defendant does not eat or drink anything, vomit or burp in the fifteen minutes before a the test is requested. The observation period is typically a step in the process that many analysts virtually ignore. It is essential that an attorney defending a Driving While Impaired case request the video feed from the intoxilyzer room so that they will be able to see if the Officer requesting the test physically observed the defendant for fifteen minutes before the breath test.

So You Blew on the Intoxilyzer? What does registering a .08 or above on the “Breathalyzer” mean for your legal defense. – Part 1

Published on: September 2, 2011 | On behalf of Arnold & Smith, PLLC

alcohol limit.bmp If you see blue lights come on behind your vehicle and it’s after midnight on about any day of the week, chances are the Officer stopping your vehicle is going to ask you if you have consumed any alcohol that evening. If he smells even the faintest odor of alcohol a Driving While Impaired investigation is almost certainly to follow. Hopefully after performing some routine field sobriety tests you will be allowed to get back in your vehicle and drive away, however, you may find yourself being placed in handcuffs and arrested.

The strongest piece of evidence for the state in the majority of Driving While Impaired cases is a sample of a person’s breath. Most individuals who are charged with Driving While Impaired submit to a sample of their breath on the intoxilzer because they think they think they will get bonus points in court by being “cooperative” and because when they are read their rights with respect to taking the test, they are informed that if they refuse to take the test their driver’s license will be revoked for one year. So if you blow a .08 or above on the breathalyzer, do you need to begin preparing for life after a DWI conviction or is there still hope?

The bottom line is the state’s case is certainly stronger with a reading than without one. However, a person who registers a .08 or above on the intoxilyzer is not automatically guilty of Driving While Impaired. In a recent decision the North Carolina Court of Appeals in State v. Narron held that a reading of .08 or above does not constitute a mandatory presumption of guilt for a person charged with Driving While Impaired. Rather, the reading on the Breathalyzer is simply reliable evidence to satisfy the State’s burden of proof as to this element of the offense of DWI.

Well you’re probably thinking if its reliable evidence isn’t that just as good as a presumption of guilt? The answer is of course “no”. Being a good criminal defense attorney means defending with ingenuity. If the Intoxilyzer is nothing more than “reliable” evidence, it can certainly be shown to be unreliable. The Intoxilyzer is not a magic box that always produces an accurate reading regarding a person’s breath alcohol content. If a prosecutor is allowed to submit a reading, without any rebuttal or any suggestion to the jury regarding the problems with breath testing or the problems with the Intoxilyzer, the fact finder will accept the reading as sufficient or “reliable” information as to a person’s alcohol concentration.

Catawba County “Knock and Talk” Leads to Discovery Marijuana, Moonshine, Money and Guns

Published on: August 29, 2011 | On behalf of Arnold & Smith, PLLC

In a Catawba County home, deputies found a liquor still, 100 jars of “white lightning” moonshine, 40 firearms, 195 grams of marijuana, prescription drugs, and more than $13,000 in cash. The resident, Mr. Timothy Scott Fox, has been charged with possession with intent to sell and deliver marijuana, maintaining a dwelling for a controlled substance, possession and sale of non-tax paid alcohol, possession and sale of alcohol without a permit, and manufacturing liquor without a permit. Mr. Fox is now out on $15,000 bond.

Interestingly, this bust and subsequent arrest arose out of what is called a “knock and talk.” When police suspect that criminal activity is present at a location, but they do not have enough evidence to obtain a search warrant, many times they will knock on the door of a location to interact with the persons at the residence and hopefully obtain enough evidence to meet the probable cause requirement for a search warrant.

In this case, police stated that they knocked on Fox’s door, and as they talked with him, they became suspicious of what was inside the home. No facts are given as to what their basis for the search warrant actually was in this case, however, many different things can serve as the basis of a warrant. For example, the smell of marijuana can give rise to probable cause. Another possible scenario is if police look into the interior of a home and they see ingredients that either are contraband, or are typically associated with contraband. Actually seeing the liquor still in this case would obviously be enough for probable cause.

‘West Memphis Three’ Set Free But Not Exonerated

Published on: August 22, 2011 | On behalf of Arnold & Smith, PLLC

West Memphis.jpg On August 19, 2011, Damien Echols, Jessie Misskeley, Jr. and Jason Baldwin changed their original 1993 not guilty pleas and a judge found that based on these new pleas, they have served their time, and they will be released but have a ten-year suspended sentence hanging over them once they are released. This legal maneuver, called an Alford Plea, allows these men to maintain their assertion that they are innocent but acknowledges that the state does have some evidence against them that could be the basis of a conviction.

In 1993, three 8-year old boys were murdered in West Memphis, Arkansas, a small town just across the Mississippi River from Memphis, Tennessee. Echols, Misskeley and Baldwin were charged and tried for the boys’ murder, but Prosecutors never could give anyone a reason why these then 13-year olds would commit such a horrendous crime. Their only idea was that these boys committed the murders as part of a Satanic ritual. The boys have always maintained their innocence, yet in 1993, Echols was sentenced to death, and Baldwin and Misskeley were sentenced to life.

The case of the West Memphis Three has been in the headlines for years. An HBO three part documentary, “Paradise Lost”, has been in the works almost since the boys were convicted with Part I being released in 1996 and Part II released in 2000. After Friday’s hearing, the ending of the third part will have to be revised before its release which was scheduled to be in January. Celebrities have also joined the cause with Metallica allowing the use of its songs in the documentary, and singer Pattis Smith, actor Johnny Depp and Pearl Jam’s Eddie Vetter all appearing at a benefit for the West Memphis Three in Little Rock, Arkansas last summer.

While the West Memphis Three are going home, they will still have the burden of a murder conviction and ten year suspended sentence hanging over them. Even though new DNA tests failed to show that the boys were even at the crime scene, the Judge would not overturn the conviction. Had the three not entered these Alford pleas, they likely would have stayed in prison pending a new trial. Once the judge refused to overturn the conviction, this was their best option to be sure to be released from prison.

These young men spent 18 years in prison for a crime they claim they did not commit, and there is no conclusive evidence to the contrary. One would hope that such a horror would be rare in this country where the state is held to a burden of showing guilt beyond a reasonable doubt. Yet too often there is a rush to judgment and an attitude that if a person is on trial, they must be guilty. The prime examples of this are the hundreds of exonerations that have resulted from DNA testing. In North Carolina alone, seven people have been exonerated after their wrongful conviction thanks to DNA testing.

Is Police Misconduct Becoming an Epidemic in the United States?

Published on: August 15, 2011 | On behalf of Arnold & Smith, PLLC

Police car.jpg On August 5, 2011, five current and former New Orleans police officers were convicted by a federal jury of various charges related to the shooting deaths of two unarmed men on the Danziger Bridge amidst the chaos surrounding Hurricane Katrina. The five men had been charged with twenty-five counts including the following: civil rights violations, deprivation of civil rights, obstruction of justice, and false prosecution. Four officers were found guilty of the shootings, while the fifth was found guilty of orchestrating the cover-up. The only counts the jury did not convict the officers of were the murder charges.

Nearly six years ago, Hurricane Katrina struck and decimated New Orleans. In the aftermath, chaos, lawlessness and looting abounded. While much of the city was still underwater, a radio call supposedly sounded reporting that police had been fired upon and that the shooters were headed toward the Danziger Bridge. This call was later shown to be false. A dozen officer responded to the call, and opened fire on the civilians.

As a result of the incident, seventeen year old James Brisette was shot in the back of the head, forty year old Ronald Madison was shot in the back. Also, a group of four unarmed survivors lay on the concrete bridge, crying and praying while officers fired their rifles at them at close range. In an attempt to cover up their misdeeds, the officers also attempted to frame two other innocent men who happened to be on the bridge that day by falsifying evidence, fabricating witnesses and planting a handgun.

These officers will be sentenced on these charges in the months to come, but they all face the possibility of life sentences for their convictions of a violation of civil rights which led to death.

While most people might chalk these officers’ behavior up to the post-Katrina chaos or the long standing corruption of the New Orleans police, unfortunately police misconduct is not that rare. A 2010 statistical report shows that there were almost 5,000 unique reports of police misconduct involving over 6,000 law enforcement officers and almost 7,000 victims. Additionally, this country spent $346,512,800 on misconduct-related civil judgments, settlements, court costs, and attorney fees, and this number does not include those settlements that were sealed.