Charlotte Criminal Lawyer Blog

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.

Woman Files Lawsuit Against Stallings Police Department

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

On July 21, 2011, Dawn Whitlock filed suit against the Stallings police department and two of its officers for violating her civil rights when she was arrested almost three years ago for disorderly conduct and resisting an officer. In her complaint she alleges that Officers Tahitiana Munoz and Jeffrey Weatherman used excessive, unreasonable and unjustified force that resulted in physical injuries which required surgery.

On July 27, 2008, Officers Munoz and Weatherman responded to a 911 call from Robert Whitmore’s home. Mr. Whitmore told officers that James Polk, Whitlock’s boyfriend, had threatened to shoot him. Ms. Whitlock approached the officers and Mr. Whitmore as he was telling officers his story. Officer Munoz told Ms. Whitlock to get Mr. Polk. As Ms. Whitlock was returning to the house to do as the officer requested, Mr. Whitmore’s wife started an argument with Ms. Whitlock. Officer Weatherman began to yell at Ms. Whitlock, telling her to hurry up and threatening to arrest her. Ms. Whitlock then told Officer Weatherman to “go to hell,” at which point the Officers tackled Ms. Whitlock in her own yard.

Ms. Whitlock told the two officers she had recently had back surgery, and that Officer Weatherman was hurting her by lying on her back. As a result of the arrest, Ms. Whitlock’s back stimulation implant was “catastrophically damaged” which required her to undergo extensive surgery to remove the device and implant a new one.

Ms. Whitlock was tried in district court on the charges of disorderly conduct and resisting a public officer. At the trial, Ms. Whitlock was acquitted of the disorderly conduct charge but convicted of resisting a public officer.

Mecklenburg County Police Department to Cease Use of Tasers for Up to 45 Days

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

On July 21, 2011, Lareko Williams was tased by police after they say he was found beating and choking a woman at a Lynx light rail station in Charlotte. An hour later, Mr. Williams was pronounced dead. This death comes one day after a Charlotte federal jury awarded the family of Darryl Wayne Turner $10 million for his death after being tased by the CMPD. CMPD has now suspended their use of tasers for up to 45 days in order to make sure its tasers are working properly and to independently test the taser that caused Mr. Williams’ death.

Tasers are viewed as beneficial to those in law enforcement as a “non-lethal” option to subdue suspects. Many argue that tasers are much safer for suspects than other methods to subdue suspects such as a baton or other physical force. They also argue that tasers provide an alternative to lethal force when an officer has no backup. However, their use has become increasingly controversial in light of these serious injuries and deaths.

Tasers work in two different ways. One is called a “drive stun” where the taser is held directly to the subject without firing projectiles. The intent here is to cause pain, and thus this method is referred to as a pain compliance technique. Basically it is designed to cause pain in order to bring the subject into compliance, but on some subjects, such as those who are on certain drugs, the pain compliance technique does not work and other methods are needed to subdue an individual.

The other method of use is tasing an individual through shooting two electrode projectiles from the gun which are pointed, to ensure the projectiles can penetrate clothing and skin, and barbed, to ensure the electrodes cannot be removed. This method of use is not a pain compliance technique. Instead, the electrodes inject up to 50,000 volts into the body. All of this electricity interrupts the electric impulses that control the body and basically incapacitate a person. This use of the taser is effective even on those people on drugs that prevent them from feeling pain.

‘Moorish Nation’ Defense Clogging Up Mecklenburg County Courts

Published on: July 26, 2011 | On behalf of Arnold & Smith, PLLC

Meck County Courthouse.bmp Mecklenburg County defendants’ use of the “Moorish Nation” defense is interfering with District Attorney Andrew Murray’s new policy of taking more cases to trial. By invoking this “defense,” defendants force assistant district attorneys to deal with frivolous motions that delay the case. However, the real losers with this defense are those who try to use it, who, according to Charlotte criminal defense attorney Brad Smith, is one in which people are duped into believing it will work. Even the Moorish Nation’s national chapter has denounced the defense stating that their organization “is for peace and not destruction” and its members are “part and parcel of this government.”

The details of this strategy vary throughout the nation, but the underlying theory is that a defendant is of Moorish decent, and is not subject to the laws of the United States. According to the Mecklenburg County version, the defendant takes on a new name, and declares that he cannot be prosecuted for any crimes which occurred under his prior name. Another version which defendant Frederick R. James attempted in federal court submitted a “security agreement” for the use of his name which declared that anyone who used his name would have to pay him the sum of $500,000. He refused to submit to the Court’s authority without the judge, the prosecutor, and all court personnel submitting to this agreement. And at the end of trial, he submitted a bill to the judge for $151 million for the use of his name throughout the court proceedings.
While the fact that these defendants are attempting to circumvent the justice system by invoking a centuries old treaty may seem laughable, there are serious consequences to this theory. People have paid good money for this so called “advice” and have subsequently refused representation and proceeded on their own behalf believing that this defense will save them. Unfortunately, as many defendants have found out after-the-fact, this defense is nothing more than a scam and there are no reported cases of this theory succeeding at any level of the justice system.

Man Decides to Represent Himself on Murder Charges

Published on: July 19, 2011 | On behalf of Arnold & Smith, PLLC

In May, Robert Allan Lehmann was charged with murdering his ex-wife Emily Ford and her father, Russell Ford, after Lehmann lost a custody battle earlier that day. Orange County, CA Prosecutors allege Lehmann sent his current wife and his daughter out for ice cream and waited for Emily and her father to come to take custody of their 7-year old daughter. Prosecutors claim once Emily and her father arrived, Lehmann opened the door and then opened fire on Emily and her father as they tried to run away. Prosecutors further allege that after Emily and her father fell, Lehmann reloaded and then executed them both by shooting each in the back of the head.

On July 8, Lehmann told the Orange County Superior Court’s permission that he was refusing counsel, and therefore he will proceed in his defense representing himself.

According to the landmark case Gideon v. Wainwright, the Supreme Court ruled that every criminal defendant charged with a felony has the right to the assistance of counsel. This ruling was later expanded to guarantee the right to counsel at or after the time that judicial proceedings have been initiated.

Just as now a person has the right to counsel, a person likewise has the right to proceed pro se, or without the assistance of counsel, as Mr. Lehmann has chosen to do. However, as the old proverb says, “A man who is his own lawyer has a fool for a client.” If you or someone you know has been accused of a crime, assert your constitutional right for an attorney.

Charlotte Accused Rapist is back on the Street – Not a Magistrate Mistake?

Published on: June 8, 2011 | On behalf of Arnold & Smith, PLLC

In May 2011, Martin Diamond, 23, was released on a promise to appear in court for rape and kidnapping charges against his estranged girlfriend. The bond was originally set as a secured bond of $105,500, but was soon changed to an unsecured bond which meant Diamond could sign himself out of jail.

A “secured bond” means that the suspect has to provide some security such as a personal property which equates to the bond amount. The suspect could also hire a bail bondsman who would charge a percentage of that bond amount to the suspect and provide an insurance in order to allow the suspect to be realeased. On the other hand, an “unsecured bond” means that a suspect does not have to provide any financial or real property collateral.

Magistrate Sylvia Cherry was overseeing this process. As a result of this incident, the Magistrate overseeing the bond for Diamond was placed on suspension to allow for further investigation into this and related incidents. Judge Lisa Bell manages the Mecklenburg county magistrates and released a statement defending Cherry’s actions.

According to an article featured on the WSOC TV Channel 9 website, “Bell said a number of factors could have played a role in Cherry’s decision, including the fact that Diamond had no prior arrests or convictions, did not appear to be a flight risk, had a confirmed residence and was a student.” On the other hand, CMPD issued a statement calling the bond a “mistake”, according to local news affiliate WCNC Newschannel 36.

Understandably, the victim’s mother is outraged with this decision and is concerned that authorities will have a difficult time finding Diamond when he court date comes up.
The actions of the magistrate can often have significant impact a case regardless of the facts surrounding the matter. There are a number of motions that are filed which relate to magistrate misconduct and can have a bearing on the judge’s decisions in cases. This is yet another example of how critical the magistrate role is in the court system and it should not be taken lightly.