Criminal Charge

Question we should be asking on death penalty is “Are we doing this or not?”

Published on: September 16, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI Lawyer Brad Smith answers the question: What are the long term effects of being convicted of a crime?

North Carolina’s death row houses 152 inmates awaiting execution. The state has not executed an inmate since 2006. A series of lawsuits brought by death-row inmates in 2007 led to what some call a “de facto moratorium.” Those lawsuits are still pending.

Now a group called “North Carolina Conservatives Concerned about the Death Penalty” is pushing state lawmakers to consider whether replacing the death penalty with life-in-prison-without-the-possibility-of-parole would be prudent in light of recent death-penalty developments in the Tar Hell state and elsewhere. Raleigh-based political consultant Ballard Everett is the group’s “coordinator.” According the Associated Press, the group’s membership includes current or former Republican Party chairmen from at least three North Carolina counties.

The state legislature passed a law last year aimed at resuming capital punishment. Last October, the Department of Public Safety issued a new set of protocols for carrying out death sentences. The “Execution Procedure Manual” provides for the administration of a single drug—Pentobarbital—to execute inmates.

Pentobarbital isn’t the easiest drug to find in the world, at least for states seeking to use it in lethal injections. The drug’s European manufacturers—located in countries that oppose the death penalty—refuse to sell the drug to states and departments that may use it to carry out death sentences.

Man acquitted of killing drunk driver who killed his two sons fears vigilante justice

Published on: September 11, 2014 | On behalf of Arnold & Smith, PLLC

Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “Is there more than one way for police to convict a DWI?”

A man who authorities said shot to death the drunk driver who killed his two sons has now left his home over fears of vigilante reprisals. The man, David Barajas, was pushing his stalled pickup truck along an Alvin, Texas road in December of 2012 with the assistance of his sons, ages 11 and 12, when 20-year-old Jose Banda plowed into them, killing the two boys.

911 calls made from the scene captured the sound of Banda’s shooting. Banda was killed instantly. Barajas fought to revive his boys until police arrived, and was covered in their blood when he was arrested.

Police charged Barajas with Banda’s murder; prosecutors alleged that Barajas killed Banda in a fit of rage. They alleged that Barajas went to his home—about 100 yards from the crash site—and retrieved a gun which he then used to shoot Banda. The gun was never found, and little physical evidence connected Barajas to Banda’s shooting. No witnesses saw Barajas shoot Banda, and gunshot residue tests performed on Barajas were negative. A search of Barajas’ home failed to turn up evidence linking him to Banda’s killing.

Barajas’ attorney, Sam Cammack, said Barajas didn’t kill Banda and was only focused on saving his two boys. Three witnesses for the State admitted that gunfire could be heard well after Banda had been shot, raising the possibility that the shooter was still at large. A Texas jury agreed, acquitting Barajas on Aug. 27.

Proposed “smoking” ban just the latest assault on personal freedom

Published on: September 9, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “What is the difference between a misdemeanor and a felony?”

Mecklenburg County wants to ban cigarette smoking, chewing tobacco and electronic cigarettes on public lands, including golf courses, greenways and parks. It lacks the legal authority to prohibit products that are not “lighted” cigarettes, cigars, pipes, “or other lighted tobacco product[s].” That is because Article 23 of Chapter 130A of the North Carolina General Statutes—the law from which the county derives its authority to regulate smoking—does not give the county the power to regulate products that are not “lighted.”

The county still wants to move forward with the ban. The initiative is being spearheaded by Mecklenburg County Health Director Marcus Plescia. He said smoking is Mecklenburg County’s greatest health hazard. County commissioners will vote on the ban on Sept. 17.

Plescia said the County would enforce the ban by spending $100,000 to $200,000 on signs that would “make it clear where you can smoke and where you cannot smoke—people will follow the rules.”

I am a criminal defense attorney, and my professional experience tells me many people will not follow the rules. Many people will smoke, chew tobacco and use electronic cigarettes in prohibited spaces, even if commissioners pass their ordinances.

Then what happens? North Carolina’s anti-smoking law provides that violators shall bear “no consequence other than payment” of a 50-dollar fine. I believe offenders will still end up with criminal charges as a result of the ban.

Convict whose DNA cleared two men also suspected in 1980 murder of Gastonia woman

Published on: September 4, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Do I need to hire an attorney if I have been falsely accused?”

Two Robeson County men were freed earlier this week from the North Carolina Department of Corrections after serving 30 years for the rape and murder of an 11-year-old girl in 1983. Henry McCollum and Leon Brown were freed after DNA extracted from a cigarette butt near the girl’s body implicated another man.

Now members of a Gaston County family say the man—Roscoe Artis—was involved in the 1980 rape and killing of 30-year-old Bernice Moss. Artis was once a suspect in Moss’s killing, according to Charlotte’s WBTV. Moss’s body was found in a wooded area of Gaston County that is now home to a Walmart.

Artis is already serving a life sentence for the 1983 rape and murder of Joann Brockman. Brockman’s rape and murder occurred less than a month after the rape and killing of Katrina Buie. Mr. McCollum and Mr. Brown were initially convicted of raping and killing Buie. McCollum was sentenced to death, while Brown was sentenced to life in prison.

Artis’s criminal history of multiple rapes and assaults dates back to 1957, according to a witness who testified at McCollum’s and Brown’s hearing last Monday. He lived with his sister in a house near the soybean field where Sabrina Buie’s body was found. Artis, now 74, has insisted that he knows McCollum and Brown did not kill Buie, but he denied that he was involved in Buie’s death, even though he admitted seeing the girl the night she went missing and said he knew her because she used to buy cigarettes from him.

DNA found on cigarette butt clears men who served 30 years for rape, murder

Published on: September 2, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

Two men imprisoned over 30 years for the 1983 rape and murder of an eleven-year-old girl will be freed today after a Robeson County Superior Court judge overturned their convictions.

Robeson County Prosecutor Johnson Britt told Judge Douglas Sasser that new DNA tests of a cigarette butt found near the victim’s body negated the evidence presented at the men’s trials. Even if the men were granted new trials, Britt said, “The state does not have a case to prosecute.” Britt was not involved in the men’s earlier criminal trials.

After hearing from Britt and other witnesses, Sasser ordered the men to be released.

The men—Henry McCollum and Leon Brown—were just 19 and 15, respectively, at the time of the murder. They alleged that they were coerced into confessing to the crime under pressure from law-enforcement officials. McCollum told the Raleigh News & Observer that he had never been under so much pressure, “with a person hollering at me and threatening me.” He said he made up a story about how he and three other youths attacked and killed the girl so that investigators would let him go home.

Ohio incident shows “Pants on the Ground” still making waves after all these years

Published on: August 28, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

If you missed the “Pants on the Ground” craze that swept the nation in 2010 courtesy of Atlanta native General Larry Platt’s American Idol audition, then you missed a certified true slice of Americana.

The precise origins of the insuppressible phenomenon known as the sagging-pants look are unknown, however most sources allege that the look originated in the American prison system. Prisoners are not allowed to wear belts, since they can be used as weapons or as means to suicide. So “ill-fitting generic pants, too large to stay up on their own,” ride low on prisoner’s hips. Hip-hop artists glommed on to the look in an effort to show their street credibility, and voila! A fashion craze was born.

Not everyone was amused. The City of Ocala, Florida, was not the first to attempt a ban on sagging pants. Last month, its city council passed an ordinance making it a criminal offense for someone to wear his or her pants two inches or more “below the natural waistline,” whatever that is. Waistline violators are subject to a $500 fine and 60 days in jail.

After the ordinance came under fire by the local chapter of the National Association for the Advancement of Colored People (NAACP) and others, Ocala Mayor Kent Guinn asked council members to reconsider the ordinance. One option now before the council would be to make a sagging-pants violation a $125-fine-with-no-jail-time civil infraction instead of a criminal offense; the second option would be to repeal the ordinance altogether.

Citizens need to become educated about the right to trial by jury before November election

Published on: August 26, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “What is the difference between a misdemeanor and a felony?”

It is no exaggeration to posit that millions of men and women have fought and died for the freedoms we enjoy as citizens of the United States of America. At the very bedrock of our Constitutional system is the right of criminal defendants to trial by a jury of one’s peers.

The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” It is the job of judges and courts to determine what laws mean—including the text of the Constitution.

In general, the Sixth Amendment jury-trial right has been interpreted to apply in both civil and criminal cases in which a defendant is threatened with an active prison sentence. Traditionally, felonies were defined as the more serious criminal offenses for which punishment often meant an active prison sentence, so defendants charged with felonies were generally entitled to trials by jury. Defendants charged with misdemeanors who did not face a potential prison sentence did not enjoy the right to trial by jury. Their cases were heard by a judge. Those cases are called “bench trials.”

With the advent and expansion of modern criminal codes, states have blurred the lines between crimes that may result in an active prison sentence. Many states—North Carolina among them—have different classes of felonies and misdemeanors, and some of the more serious misdemeanor offenses may subject a criminal defendant to an active prison sentence. That means nowadays some misdemeanor criminal defendants enjoy the right to trial by jury.

Following the rules the best course when visiting the courthouse

Published on: August 21, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “If I have an outstanding warrant, what should I do?”

Many defendants in criminal cases may find coming to the county courthouse for mandatory court appearances to be an unpleasant experience in the company of unpleasant people. Criminal defense attorneys visit courthouses every day, so we are very much in tune with the procedures—and personalities—of courthouses and courthouse staff.

Although, technically speaking, we are “officers of the court,” we are subject to many of the same processes to which the general public and criminal defendants are subject. In theory and sometimes in practice, attorneys have the credentials to bypass security checks at the entrances to courthouses, but many times it is easier and more expeditious to just go through security than to try to explain to an officer why one should not have to take one’s belt and shoes off and pass through a metal detector.

Attorneys who do not appear in court very often or who are handling a case in a county for a first time may be asked by deputies stationed in courtrooms to produce identification. All of this is done to protect courtroom staff—judges, prosecutors and clerks—as well as jurors, defendants and the public.

While spending time in the company of dozens of armed guardians may not meet the definition of “pleasant,” an incident in a Charlotte courtroom on Tuesday underscores why officers are understandably wary of nearly every face they see entering a courthouse and courtroom.

CMPD police body cameras may mean Ferguson never comes to Charlotte

Published on: August 19, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Do I need to hire an attorney if I have been falsely accused?”

The shooting death of teen Michael Brown by a Ferguson, Missouri police officer—and the subsequent protesting, rioting and looting—has many Charlotteans asking “Could that happen here?”

NAACP Charlotte President Kojo Nantambu said during a Thursday press conference that Charlotte, like Ferguson, is a hotbed of racial hostility. “NAACP” stands for the National Association for the Advancement of Colored People. “Police are supposed to be protecting us,” Nantambu said, “but they are killing us instead.”

The Rev. Jesse Jackson, Sr. echoed Nantambu’s sentiments in a USA Today editorial, writing that anywhere Americans look, “There’s a Ferguson near you.”

Like the Brown case, the killing in Charlotte last year of 24-year-old Jonathan Ferrell made headlines around the world. Ferrell was shot to death by CMPD Officer Randall Kerrick after a car crash. Both Brown and Ferrell were unarmed at the time of their shooting deaths. In the Ferrell case—unlike in the Brown case—Charlotte-Mecklenburg Police quickly named Kerrick as the officer who fired the shots that killed Ferrell. After an investigation, Kerrick was charged with voluntary manslaughter.

DOJ wants Alamance County Sheriff to respect the Constitutional rights of Latino drivers

Published on: August 14, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I talk to the police?”

Driving-while-Latino makes you ten times more likely to be pulled over in Alamance County for committing a traffic infraction. That is according to a 2012 statistical study commissioned by the United States Department of Justice. Sheriff Terry Johnson told officers manning vehicle checkpoints to “go out there and get me some of those taco eaters,” according to a civil rights lawsuit brought against Johnson in 2012. A trial in that case began on Tuesday in United States Federal Court for the Middle District of North Carolina.

In its lawsuit, the United States asked the court to order Johnson and sheriff’s deputies to stop discriminating against Latinos and to adopt systems and policies that eliminate discrimination. Johnson denied the allegations in his answer to the lawsuit and moved for dismissal.

In order to prove its case, the United States must show that law-enforcement officers engaged in “a pattern or practice” of activities that denied Latinos in Alamance County their Constitutional rights. One of the most difficult elements of proving such a claim is demonstrating that the accused had “discriminatory intent.”

The United States has used Johnson’s past statements, emails sent to and from the Alamance County Sheriff’s Office, and statistics on law-enforcement activities in an effort to show Johnson’s alleged bias. Johnson has responded that statements of opinion or political belief have been misconstrued by the government as evidencing bias on the part of law-enforcement officers against Latinos. Regarding law-enforcement efforts, Johnson alleged in his trial brief that, according to the Drug Enforcement Agency and Immigrations and Customs Enforcement, ninety-percent of drug traffickers in Alamance County are Mexican, while one-hundred percent of drug and money couriers are Mexican.