Petitions for Removal from the Sex Offender Registry: The Wetterling Finding — Part I

May 16th, 2012
By Jamie Markham

A recent case from the court of appeals sheds some light on a frequently asked question about petitions for removal from the sex offender registry. The case, In re Hamilton, considered a trial court’s refusal to grant a petition because granting it would not comply with the federal Jacob Wetterling Act, as amended, and other related federal standards. It’s an issue I wrote about in this prior post, but given this new case (and the passage of three years) it’s time for an update.

In Hamilton, the petitioner pled guilty to taking indecent liberties with a child in August 2001. He registered as a sex offender that same month. Almost exactly ten years later, in August 2011, the trial court heard his petition to terminate his registration. The trial judge denied the petition based solely on a finding that allowing Mr. Hamilton off the registry would not comply with applicable federal law.

Mr. Hamilton made two arguments on appeal. The first, styled as an issue of “mootness,” was that his registration should have terminated automatically after ten years based on the law that existed when he was first placed on the registry. The registry used to work that way, the court of appeals noted, but the petition procedure put in place by the General Assembly in 2006 was made applicable to “persons for whom the period of registration would terminate on or after December 1, 2006.” S.L. 2006-247, sec. 10.(b). The change therefore included Mr. Hamilton, whose registration would have run until at least 2011. (John Rubin noted this issue on page 2 of his 2006 legislative summary, available here. The upshot is that only a narrow cohort of registrants who initially registered between January 1, 1996 and November 30, 1996, would see their registration terminate automatically after 10 years.) The court of appeals rejected the argument.

The second argument—which is really the one that I want to discuss—was that the trial court erred when it found that removing Mr. Hamilton from the registry would not comply with federal law. The connection to federal law stems from G.S. 14-208.12A(a1)(2), which says that a court may grant a petition for removal only if “[t]he requested relief complies with the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” That requirement appears as finding #7 on Side Two of Form AOC-CR-262, Petition and Order for Termination of Sex Offender Registration; I’ll refer to it here as the “Wetterling finding.” Hamilton argued that removing him from the registry would not run contrary to federal standards for minimum registration length.

To evaluate Hamilton’s argument, the court of appeals had to look to the federal standards themselves. Those standards are set out in the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. 109-248—the successor to the Jacob Wetterling Act. As I discussed in the prior post linked in the opening paragraph above, one portion of that law is the Sex Offender Registration and Notification Act, or SORNA. SORNA sets out a comprehensive registration program that jurisdictions (states, the District of Columbia, U.S. territories, and Indian tribes) must “substantially implement” to avoid losing 10 percent of certain federal grant funds each year. 42 U.S.C. 16925(a).

As of today, 44 jurisdictions (15 states, two territories, and 27 tribes) have substantially implemented SORNA. North Carolina is not one of them, an issue I discussed in this prior post. Nevertheless, the federal standards exist and are, within the language of G.S. 14-208.12A(a1)(2), “required to be met as a condition for the receipt of federal funds by the State.” The original SORNA compliance deadline was July 27, 2006. North Carolina, like just about every other state, received a series of extensions that pushed the deadline to July 27, 2011. Before that deadline passed, there was a decent argument that a judge could sign off on the Wetterling finding on an order granting a petition to come of the registry without really digging in to whether the requested relief would comply with federal standards—the standards did not apply to the state directly, and they weren’t yet required to be met to receive our full federal grant allotment. Now that that date has passed, it seems that a court can probably only let someone off the registry when doing so would comply with federal standards.

That’s what the court of appeals did in Hamilton, walking through the Adam Walsh Act and noting that it sets out different minimum registration durations for different offenses according to a tiered system. Tier I sex offenders must register for 15 years, tier II offenders must register for 25 years, and tier III offenders must register for life. 42 U.S.C. 16915(a). The law also provides that tier I offenders may have their minimum registration period reduced from 15 years to 10 if they have a “clean record” as defined in 42 U.S.C. 16915(b)(1). To have a clean record, the person must:

  • Not be convicted of any subsequent offense for which imprisonment for more than 1 year may be imposed;
  • Not be convicted of any sex offense;
  • Successfully complete any period of supervised release, probation, and parole; and
  • Successfully complete an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General.

In Hamilton, the parties apparently all agreed that Mr. Hamilton’s crime of indecent liberties with a minor would be a tier I offense. Thus, it would comply with federal requirements to allow him to come off the registry after 15 years. Further, the appellate court’s review of the record indicated that Mr. Hamilton had not been convicted of any new felonies; had not been convicted of any new sex crimes; had successfully completed his probation; and had successfully completed sexual abuse treatment as a condition of his probation. He therefore satisfied the “clean record” definition and it would thus comply with federal requirements to come off the registry after 10 years. Based on that analysis the court of appeals vacated the trial court’s finding that removing Hamilton from the registry would not comply with federal standards. The court remanded the case to allow the trial court to decide in its discretion whether to grant Hamilton’s petition.

Hamilton strikes me as an important case, helpful in developing an analytical framework that trial courts can use when deciding whether or not to make the Wetterling finding. As a threshold matter, Hamilton illustrates how North Carolina’s decision not to enact a SORNA-compliant regime does not—as I have heard some people say—mean that no one can get off the registry for now. The Wetterling finding is not asking the court to decide whether North Carolina is, as a state, in compliance with federal law. (We are not.) Nor does the finding require the court to predict precisely what a SORNA-compliant regime enacted by the General Assembly might look like. (Remember, SORNA sets a floor that jurisdictions are free to exceed.) Rather, the question before the court is: Is there a hypothetical, SORNA-compliant regime in which this person could come off the registry now? That determination is inherently speculative; it is the United States Department of Justice that will ultimately decide whether whatever legislative action North Carolina takes in response to SORNA “substantially complies” with federal requirements. But until our legislature acts, that appears to be what courts must do.

And it won’t always be as easy as it turned out to be in Hamilton, in which the parties—and the court of appeals—agreed that indecent liberties with a minor would be a tier I offense. Part two of this post will set out an analytical framework that courts can use when deciding whether or not they can make the Wetterling finding.

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New Volume of Defender Manual Now Available

May 15th, 2012
By Jeff Welty

A new edition of Volume Two of the North Carolina Defender Manual has just been released. Volume Two addresses trial issues, from jury selection through verdict and beyond. It also covers guilty pleas, motions to dismiss, and other important topics. (Volume One covers pretrial proceedings — a new edition of that volume is apparently in the works as well.) The authors are Julie Lewis, a public defender in Mecklenburg County, and my colleague John Rubin.

I haven’t had a chance to dig into this edition yet, but it appears to be far more extensive than the previous edition. The preface describes this edition as “essentially a brand new resource.” If it matches the quality of Volume One, it will be tremendously valuable — not just to defense lawyers, but also to anyone with an interest in North Carolina criminal law.

You can view and download the new volume for free from the School of Government website, here. It’s also available on the IDS website, here. Note, however, that you cannot print from either location. If you want a hard copy of the volume, you may purchase it here for $85. Of course, IDS and the AOC are working together to supply each public defender with a hard copy.

Congratulations to Julie and John for completing this project.

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Jury Argument — Part II

May 14th, 2012
By Jessica Smith

In a prior post on this topic, I addressed permissible jury argument. In this post and one that follows [editor's note: coming next week], I address impermissible argument.

The courts have identified several types of arguments that are improper. They include:

  • Abusive Arguments. During a closing argument a lawyer may not become abusive. G.S. 15A-1230(a); N.C. R. Super. and Dist. Cts. Rule. 12 (“Abusive language [is] prohibited”); State v. Matthews, 358 N.C. 102, 111-12 (2004) (inappropriate to refer to the defense case as “bull crap”); State v. Jones, 355 N.C. 117, 127 (2002) (citing the statute); see also State v. Gillikin, __ N.C. App. __, 719 S.E.2d 164, 171 (2011) (gross impropriety where the prosecutor engaged in abusive name-calling and expressed his opinion that defendant was a liar and was guilty).
  • Lack of Dignity or Propriety. During jury argument lawyers must conduct themselves with “dignity and propriety.” N.C. R. Super. and Dist. Cts. Rule 12; see also Gillikin, __ N.C. App. __, 719 S.E.2d at 171 (entire argument was undignified).
  • Arguments Appealing to Passion or Prejudice. It is improper to make an argument designed to appeal to the jurors’ passions or prejudices. See, e.g., Jones, 355 N.C. at 132-33 (reference to the Columbine school shooting and Oklahoma City federal building bombing was an improper attempt to lead jurors away from the evidence by appealing instead to their sense of passion and prejudice).
  • Lack of Candor and Unfairness. “The conduct of the lawyers before the court and with other lawyers should be characterized by candor and fairness.” N.C. R. Super. and Dist. Cts. Rule 12. Thus, for example, counsel should not “‘not knowingly misinterpret . . . the language or argument of opposite counsel.’” State v. Phillips, 365 N.C. 103, 136-37 (2011) (quoting R. 12; prosecutor improperly suggested that defense counsel had admitted the defendant’s guilt to first-degree murder).
  • Matters Outside the Record. A lawyer may not make arguments based on matters outside the record except for matters that are the proper subject of judicial notice. G.S. 15A-1230(a). Thus, a lawyer may not argue facts that are not in evidence. See, e.g., State v. Jones, 355 N.C. 117, 132 (2002) (improper to refer to events outside of the record); State v. Caldwell, 68 N.C. App. 488, 489 (1984) (improper to make assertions about why a witness did not testify when explanation was not supported by the evidence); see also N.C. R. Prof’l Conduct Rule 3.4(e) (lawyer may not “allude to any matter . . . that will not be supported by admissible evidence”). Additionally, a lawyer may not introduce into argument legal rulings of the trial court. State v. Allen, 353 N.C. 504, 508-11 (2001) (new trial required; prosecutor argued with respect to admitted hearsay statements: “the Court let you hear it, because the Court found they were trustworthy and reliable . . . . If there had been anything wrong with that evidence, you would not have heard that”; the court cautioned: “Parties in a trial must take special care against expressing or revealing to the jury legal rulings which have been made by the trial court, as any such disclosures will have the potential for special influence with the jurors.”).
  • Irrelevant Statements of the Law. Although counsel may argue all relevant law, it is improper to argue points of law that have no bearing on the case at hand. See, e.g., State v. Gardner, 316 N.C. 605 (1986).
  • Incorrect Statements of the Law. It is improper to misstate the law during jury argument. This means that counsel may not:
    • present a statement of the law out of context, see, e.g., Gardner, 316 N.C. at 610,
    • read from a dissenting opinion in a reported case, see, e.g., id. at 611, or
    • read from a case that no longer has precedential value, see, e.g., id.
    • It also means that the prosecutor may not make arguments that undermine the presumption of innocence. State v. Wilder, 124 N.C. App. 136, 142-43 (1996).
  • Arguing that a Result is Mandated By a Prior Case. A lawyer may argue all relevant law to the jury, and this may include reading from prior cases. Caution should be exercised, however, with regard to recitation of the facts of other cases. State v. Wright, 304 N.C. 349 (1981) (“facts of other cases would ordinarily be inappropriate topics for jury argument.” Id. at 355. Additionally, a lawyer may not recite the facts of another tried case together with the result to suggest that a similar result should obtain in the case at hand. Gardner, 316 N.C. at 611; State v. Thomas, 350 N.C. 315, 353-55 (1999) (prosecution’s argument was proper where it was limited to reciting relevant statement of law); State v. Billings, 348 N.C. 169, 185 (1998) (citing Gardner); State v. Burr, 341 N.C. 263, 307 (1995) (same); State v. Simmons, 205 N.C. App. 509, 515-16 (2010) (argument was improper).
  • Pretrial Silence. For a discussion of the proper uses at trial of a defendant’s pretrial silence, see my blog post here.
  • Comment on the Defendant’s Failure to Plead Guilty. A prosecutor’s reference to a defendant’s failure to plead guilty is a violation of the defendant’s constitutional right to a jury trial. State v. Kemmerlin, 356 N.C. 446, 482 (2002).
  • Comment on the Defendant’s Failure to Testify. A defendant has a constitutional right to refuse to testify at trial and exercise of this right may not be used against the defendant. State v. Mitchell, 353 N.C. 309, 326 (2001). As a result any reference to a defendant’s failure to testify violates the defendant’s constitutional rights. Id.; Kemmerlin, 356 N.C. at 481. The rule prohibiting comment on a defendant’s failure to testify applies to both the prosecutor and the defense lawyer. State v. Soloman, 40 N.C. App. 600, 603 (1979). However, a comment on a failure by the defense to put on evidence is not a comment on the defendant’s failure to testify. Also, defense counsel may argue that the jury should not consider against the defendant the defendant’s election not to testify. State v. Banks, 322 N.C. 753, 764 (1988) (error to preclude defense counsel from so arguing).
  • Failure To Call a Spouse. A defendant’s failure to call a spouse as a witness may not be used against the defendant. G.S. 8-57(a); State v. Barden, 356 N.C. 316, 380-81 (2002) (prosecutor’s argument was improper).
  • Reading the Indictment. Neither lawyer may read the indictment to the jury. G.S. 15A-1221(b).

In my next post on this topic, I’ll pick up with other types of impermissible arguments, including among other things, religious argument and name calling.

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News Roundup

May 11th, 2012
By Jeff Welty

The lead story from last week’s news roundup is back again: Chapel Hill’s ban on using cell phones while driving. It appears from this News and Observer story that Superior Court Judge Orlando Hudson has now granted a preliminary injunction against the ordinance, extending the temporary restraining order he issued previously. A hearing on the plaintiffs’ request for a permanent injunction is expected in the next few months, though since the issues in the case are mainly legal rather than factual, it seems unlikely that an evidentiary hearing will change Judge Hudson’s view of the issues. In other news:

1. Our own Jamie Markham has been named one of the top 50 law professors on Twitter. Congratulations, Jamie!

2. The South Carolina Supreme Court has ruled that lifetime GPS monitoring for sex offenders is unconstitutional. The justices didn’t completely agree on the grounds, but the case adds to what seems to be a bit of national momentum for reevaluating some aspects of our sex offender laws.

3. The New York Times reports here that the U.S. saw fewer traffic fatalities last year than in any year since 1941. Measured by deaths per million miles driven, the roads have never been safer.

4. That may not last, though. Self-driving vehicles are now on the roads in Nevada, as ABC News reports here. Watch out! (On the other hand, CNN thinks that computerized drivers will be better than human drivers.)

5. Infamous Duke Law alum Tucker Max somewhat recently wrote this article, entitled “Why You Shouldn’t Go to Law School.” As far as I can tell, most of Max’s writing is pointless drivel about getting drunk and chasing women, but he might be onto something with this one. Just don’t tell Shaquille O’Neal. Having completed his doctorate in education from Harvard Barry University, Shaq reportedly said “I think I’m going to try law school next.” Talk about courtroom presence!

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Consecutive Sentences for Misdemeanors Sentenced at Different Times

May 10th, 2012
By Jamie Markham

In prior posts (here and here) I have discussed Structured Sentencing’s limit on consecutive sentences for misdemeanors. The basic rule, set out in G.S. 15A-1340.22, is that the cumulative length of the sentences of imprisonment for consecutive misdemeanor sentences may not exceed twice the maximum sentence authorized for the class and prior conviction level of the most serious offense. If all of the convictions are for Class 3 misdemeanors, the sentences must run concurrently. Those prior posts have addressed some of the most frequently asked questions about the law, but I’ll recap briefly. First, given the statute’s reference to the “class and prior conviction level of the most serious offense,” the sentence-length cap is driven by the maximum sentence that a particular defendant could have received—not by the hypothetical worst-case (i.e., Level III) defendant. Second, the rule applies regardless of whether the defendant is also subject to felony sentences. See State v. Wheeler, 202 N.C. App. 61 (2010) (applying the rule to a defendant with misdemeanor sentences set to run consecutively to a felony sentence). And third, the rule applies regardless of whether some or all of the sentences in the stack of consecutive judgments are suspended. See id. at 70 (remanding for resentencing when two 45-day suspended sentences were set to run consecutively to a 75-day active sentence, because the total maximum allowable period of imprisonment under G.S. 15A-1340.22 was twice 75, or 150 days).

An aspect of the rule that I haven’t discussed on the blog, but that comes up from time to time, is whether the limit on consecutive misdemeanor sentences only applies to misdemeanors sentenced at the same time. The issue generally arises in one of two circumstances. First, when a person already subject to a suspended misdemeanor sentence is being sentenced for yet another misdemeanor and the judge wants to know if he or she may run the new sentence consecutive to the existing one(s). And second, when a person subject to multiple suspended misdemeanor sentences that were imposed at different times is about to have his or her probation revoked, and the judge wants to know whether the consecutive-sentence limit applies to all of the judgments, or just those entered in the same session of court.

My sense is that most people read G.S. 15A-1340.22 as a rule for sentences entered at the same time. I’ve even heard that some misdemeanor plea arrangements call for multiple judgments to be entered on different days to get around the rule (with no objection from the defendant, who is probably happy to avoid felony charges by pleading guilty to the elongated string of misdemeanors). The language of the statute itself supports that view, to a certain extent. It says that the rule applies when the “court elects to impose consecutive sentences for two or more misdemeanors” (emphasis added). The easiest reading of that clause is that the judge only “imposes” sentences for “two or more” misdemeanors when he or she actually imposes both (or all) of them together. Prior sentences, on the other hand, have already been “imposed,” and so the rule does not does not literally require that they be taken into account. That reading also makes some sense as a policy matter. To read the law otherwise would render some defendants already subject to multiple suspended sentences effectively “judgment proof” against any additional imprisonment for subsequent misdemeanor offenses.

All that being said, I think there is a plausible argument that the rule is cumulative—by which I mean that even judgments entered at different times must be taken into account when figuring a misdemeanant’s maximum permissible consecutive sentence. The statute never explicitly says that it only applies to sentences entered at the same time, but another part of the very same statute—subsection (b), setting out a judge’s authority to consolidate multiple offenses—does. G.S. 15A-1340.22(b) (“If an offender is convicted of more than one offense at the same session of court, the court may consolidate the offenses for judgment . . . .”).  As the argument often goes, if the General Assembly had wanted to limit the consecutive-sentence rule to convictions arising at the same session of court, it obviously knew how to do it. As a policy matter, limiting a person’s exposure to imprisonment for misdemeanors sentenced at different times is not really all that different from limiting his or her exposure for things sentenced together.

If the issue arises at a probation revocation hearing, I think an additional wrinkle comes into play. As I discussed in this prior post, a judge has authority at a probation violation hearing to run activated sentences consecutively even if they had initially been set to run concurrently in the original sentencing judgment. See G.S. 15A-1344(d). When a judge activates sentences in a manner other than as set in the original judgment(s), the court of appeals has characterized the revocation hearing as the imposition of a new sentence. See State v. Hanner, 188 N.C. App. 137, 141–42 (2008). With that in mind, it seems that even suspended sentences originally entered in different sessions of court would be subject to the consecutive-sentence limitation if the judge elects for the first time at the point of revocation to run them consecutively.

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Another Look at the DWI Super-Aggravator in G.S. 20-179(c)(4)

May 9th, 2012
By Shea Denning

Last summer I wrote this post about amendments to the fourth grossly aggravating factor applicable to sentencing for impaired driving, namely the factor in G.S. 20-179(c)(4) that elevates punishment for driving while impaired with a child in the vehicle. Amendments effective for offenses committed on or after December 1, 2011 render this factor applicable if any of the following persons were in the vehicle at the time of the offense: (1) a child under the age of 18; (2) a person with the mental development of a child under 18; or (3) a person with a physical disability that prevents the person from getting out of the vehicle without assistance.  S.L. 2011-329.  When I summarized the amendments last summer, I wrote:  “[I]f more than one of these types of persons is in the car, it appears that only on grossly aggravating factor applies.”  I want to revisit that issue in this post.

G.S. 20-179(c)(4) does not specify whether more than one grossly aggravating factor exists if more than one qualifying minor or disabled person is in the vehicle at the time of the offense.  It did not so specify before it was amended, though then it applied only when one category of persons was present in the vehicle: a child under the age of 16. In light of G.S. 20-179(c)(1)’s specification that each qualifying prior conviction counted as a separate grossly aggravating factor, the prevailing interpretation before the statute was amended was that, regardless of the number of children present in the vehicle, only one factor applied. See Ben Loeb and James Drennan, Motor Vehicle Law and the Law of Impaired Driving in North Carolina 85 (2000); see also Jeff Welty, DWI for the Whole Family. That’s the analysis I applied in the August 2011 post. It finds some support in another provision of S.L. 2011-329, which amended G.S. 20-179(c) to require Level One punishment “if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies” and to permit Level Two punishment “[i]f the judge does not find that the aggravating factor at subdivision (4) of this subsection applies.” These references to G.S. 20-179(c)(4) arguably reflect the legislature’s view that the factor, while capable of proof in multiple ways, remains singular in its application.

Nevertheless, the contrary view—namely that division of this factor into subparts evinces the legislature’s intent to permit the finding of more than one grossly aggravating factor under G.S. 20-179(c)(4)—is bolstered by case law interpreting other, similarly worded aggravating factors. The court of appeals in State v. Mack, 81 N.C. App. 578 (1986), for example, construed the aggravating factor of “especially reckless or dangerous driving” in G.S. 20-179(d)(2) to permit a finding of two separate aggravating factors, one based on especially reckless driving and the other based on especially dangerous driving. The Mack court explained that “there would need to be at least one item of evidence not used to prove either an element of the offense or any other factor in aggravation to support each additional aggravating factor.” Id. at 585. Similarly, the state supreme court has upheld the division of the aggravating factor set forth in G.S. 15A-1340.16(d)(1), which applies if “[t]he defendant induced others to participate in the commission of the offense or occupied a position of leadership or dominance of other participants,” holding that the provision may support the finding of two aggravating factors (one for inducement and one for position of leadership) if separate evidence supports each. See State v. Erlewine, 328 N.C. 626, 638-39 (1991). For that reason, both the impaired driving determination of sentencing factors form (AOC-CR-311) and the felony judgment form, AOC-CR-605, provide check boxes for the finding of one or both factors under each provision.

If the reasoning in Mack and Erlewine was applied to G.S. 20-179(c)(4), as amended, it would allow for the determination of more than one grossly aggravating factor based on the presence of more than one person in the car, each of whom satisfied a separate category. So, for example, a finding of one grossly aggravating factor under G.S. 20-179(c)(4) would be appropriate for a defendant who committed a covered offense with more than one child under the age of 18 in the vehicle because the children occupy the same category. If, however, a person with a qualifying disability or a person with the mental development of a child under the age of 18 years also was present in the vehicle, a separate grossly aggravating factor also would apply.

The DWI sentencing factors form (AOC-CR-311) acknowledges this possible interpretation, providing a separate check box for each category of qualifying individual under 20-179(c)(4). The form does not, of course, resolve the legal issue of whether each category gives rise to separate factor.

Given that a finding of one aggravating factor under G.S. 20-179(c)(4) requires Level One punishment, whether multiple aggravating factors can be found under this subsection carries legal significance in the limited number of cases in which there are three or more grossly aggravating factors, thus requiring punishment at Aggravated Level One.  If you’ve litigated this issue or have other insights or perspective on the proper construction of this provision, I’d love to have the benefit of your thoughts.

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Must Officers’ Prior Misconduct Be Disclosed in Discovery?

May 8th, 2012
By Jeff Welty

I’ve had a whole bunch of phone calls lately raising the same basic issue: suppose that a prosecutor is aware that an officer has been dishonest or has engaged in other misconduct in the past. Must the prosecutor disclose the officer’s dishonesty or misconduct to the defendant in a pending case in which the officer participated?

The answer to the question is, sometimes. The officer’s prior dishonesty or misconduct is potential impeachment material in the pending case. If it reaches the level of material impeachment information, it must be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Whether the officer’s prior dishonesty or misconduct is material depends on a number of factors, including:

  • How long ago the dishonesty or misconduct was. The more recent it was, the more likely that it is material.
  • How serious the officer’s dishonesty or misconduct was. The more serious it was, the more likely that it is material.
  • How conclusively the officer’s misconduct was established. The more certain it is that the officer engaged in misconduct, the more likely that the information is material. For example, a “substantiated” complaint that an officer planted evidence is more likely to be material than a complaint that could not be confirmed.
  • Whether the officer’s dishonesty or misconduct arose in a fact pattern that is also present in the instant case. For example, if the officer falsified a search warrant application in a prior case, and also obtained a search warrant in the instant case, the information is more likely to be material.
  • Whether the defendant in the current case plans to present a defense based on the officer’s misconduct or dishonesty. The more likely that the officer’s credibility will be a focus of the defense, the more likely the officer’s prior misconduct is to be material.
  • Whether the officer’s role in the current case is central or peripheral. The more critical his or her role, the more likely that impeachment evidence concerning his or her prior misconduct is material.
  • Perhaps, whether evidence of the misconduct is contained in personnel records vs. in less-private sources. Personnel records are subject to privacy protections that other sources of information are not.

In some instances, balancing the officer’s privacy interests against the defendant’s due process rights may require a judge to conduct an in camera examination of records regarding an officer’s prior misconduct.

Some relevant authorities from several jurisdictions are summarized below. Most of the cases concern the discovery issue, but some address the admissibility of evidence of an officer’s prior misconduct because that may bear on the discovery question. If there are useful cases on point in North Carolina, I’m not aware of them. (Readers, let me know if you think I’m missing important authorities.) Generally, I would advise a prosecutor to err on the side of caution in this area.

  • Blumberg v. Garcia, 687 F.Supp.2d 1074 (C.D. Cal. 2010)

A gang member was convicted of attempted murder in connection with the shooting of a rival gang member. One of the state’s rebuttal witnesses was an officer who testified about the defendant’s involvement in a similar prior incident. At the time of the defendant’s trial, the officer had a sustained internal affairs complaint for lying, and was under investigation for planting evidence and falsifying reports. (The officer was subsequently fired by his agency as a result of the investigation.) None of the foregoing information was disclosed to the defendant prior to trial. Although the state courts found that the withheld information was not material, a federal court ruled in habeas proceedings that the evidence was “impeachment and/or exculpatory evidence which the prosecution had a duty to disclose.”

  • United States v. Beltran-Garcia, 2009 WL 2231667 (10th Cir. July 28, 2009) (unpublished)

The trial judge properly excluded evidence about an officer’s prior misconduct – misrepresentations about the extent of the consent he received during a search – under Rule 403. The incident was four years old, the instant case did not involve a similar fact pattern, and a mini-trial about the officer’s prior conduct would have been confusing. [Note: this case address the admissibility, rather than the discoverability, of misconduct evidence.]

  • Michigan Ass’n of Police v. City of Pontiac, 2009 WL 794307 (Mich. Ct. App. March 26, 2009) (unpublished)

In a dispute over the firing of an officer for filing a false arrest report, the city argued that “retaining the grievant would be problematic because, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) . . . the prosecution would have to disclose the grievant’s false report and dishonesty in all future cases in which he was involved.” [Note: The court did not expressly agree or disagree with the city’s interpretation of Brady.]

  • United States v. Hector, 2008 WL 2025069 (C.D. Cal. May 8, 2008) (unpublished)

An officer had “a sustained complaint . . . for submitting an arrest report that he knew contained inaccurate information,” apparently in a previous case. In the course of discussing the government’s errors in handling the report, the court described it as “crucial impeachment information.”

  • United States v. Hayes, 376 F.Supp.2d 736 (E.D. Mich. 2005)

Federal felon-in-possession case. Officer who claimed that he saw the defendant throw down a gun during foot chase was the “centerpiece of the prosecution, and a fair determination of his credibility is of paramount importance to the question of guilt or innocence.” Thus, information regarding a previous federal prosecution of the officer for, inter alia, “falsify[ing] police reports” and covering up other officers’ misconduct, must be disclosed to the defendant, even though the prior prosecution of the officer was dismissed.

  • United States v. Bravo, 808 F. Supp. 311 (S.D.N.Y. 1992)

New trial because of government’s failure to disclose any impeachment material about officers in a DEA unit that was under investigation “for allegedly beating up suspects, snorting cocaine, gambling, having sex with an informant and lying in court.” At the time of the defendant’s trial on drug charges, the unit either had been disbanded or was about to be so; the unit’s leader was either assigned to a desk job or was about to be so; and a judge in another case had expressed severe doubt about the veracity of certain officers’ testimony. Under those circumstances, a duty to disclose arose notwithstanding the lack of a formal finding of misconduct.

  • Cal. Evid. Code § 1045

When a defendant seeks “records of complaints, or investigations of complaints, or discipline imposed as a result of those investigations, concerning an event or transaction in which [a] peace officer . . . participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties,” and makes a sufficient threshold showing, the court should conduct an in camera review of the records, and should withhold, inter alia, complaints that are more than five years old and records the disclosure of which offers “little or no practical benefit.” (However, older records may be available if they are material under Brady, according to City of Los Angeles v. Superior Court, 52 P.3d 129 (Cal. 2002).)

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Jury Argument — Part I

May 7th, 2012
By Jessica Smith

Issues regarding the permissible scope of jury argument are becoming commonplace in N.C. criminal cases. In a series of posts, I’ll address some recurring issues that arise regarding the content of opening and closing arguments. In this first one, I’ll outline the scope of proper jury argument. Two posts that follow will deal with impermissible argument.

It is proper for a lawyer to make the following types of argument to the jury:

  • Facts in Evidence and All Reasonable Inferences. A lawyer may argue the facts in evidence and all reasonable inferences from those facts. See, e.g., State v. Phillips, 365 N.C. 103, 135 (2011); State v. Wilkerson, 363 N.C. 382, 423-24 (2009); State v. Jones, 355 N.C. 117, 128 (2002).
  • Relevant Law. Counsel may argue to the jury all relevant law, G.S. 7A-97; State v. Thomas, 350 N.C. 315, 353-55 (1999), including reading from a published decision, Thomas, 350 N.C. at 353-55. However, as I’ll note in a later post, a lawyer should not recite the facts and holding of another case and suggest that the matter before the jury should be resolved similarly.
  • Positions or Conclusions. During argument a lawyer may “on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.” G.S. 15A-1230(a). Thus, for example, it is proper to argue that the jury should not believe a witness’s testimony. State v. Phillips, 365 N.C. 103, 139-40 (2011).
  • Credibility of Witnesses. Provided that counsel does not express a personal opinion as to a witness’s credibility, a lawyer may:
    • argue that witnesses are credible, see, e.g., State v. Wilkerson, 363 N.C. 382, 425 (2009); State v. Augustine, 359 N.C. 709, 725 (2005);
    • argue that the jurors should or should not believe a witness, see, e.g., Augustine, 359 N.C. at 725; State v. Scott, 343 N.C. 313, 344 (1996); and
    • give reasons why the jury should or should not believe a witness, see, e.g., Wilkerson, 363 N.C. at 425 (the prosecutor properly argued that the jurors should believe one witness’s testimony because it was corroborated and that they should believe another’s because it was consistent with the evidence); Augustine, 359 N.C. at 727 (the prosecutor’s argument appropriately focused on reasons why the jury should not believe the witness); State v. Anderson, 322 N.C. 22, 39 (1988) (“In arguing to the jury, the State may comment on any contradictory evidence as a basis for the jury’s disbelief of a witness’s testimony.”).
    • Pretrial Silence. For a discussion about the proper uses at trial of a defendant’s pretrial silence, see my blog post here.
    • Comment on the Defendant’s Failure to Present Evidence. A prosecutor may comment on the defendant’s failure to put on evidence. See, e.g., State v. Phillips, 365 N.C. 103, 138 (2011) (“[t]he State is free to point out the failure of the defendant [ ] to produce available witnesses” and “[t]he prosecution may argue that a defendant failed to produce a witness or other evidence to refute the State’s case”; in this case, the prosecutor merely pointed out that a witness was available who could have corroborated the defendant’s defense, if that defense were valid (citation omitted)); State v. Griffin, 308 N.C. 303, 314 (1983) (prosecutor properly pointed out that aspects of the State’s case had not been contradicted); State v. Jordan, 305 N.C. 274, 279-80 (1982) (proper for the prosecutor to comment on the defendant’s failure to produce an alibi witness).
    • Role of Jury. Although a prosecutor may not argue to the jury that it should lend an ear to the community or decide a case based on community sentiment, the State may argue that a jury is “the voice and conscience” of the community. See, e.g., State v. Barden, 356 N.C. 316, 367 (2002) (argument was proper); State v. Fletcher, 354 N.C. 455, 484 (2001) (same). As the courts have explained, “the jury may speak for the community, but the community cannot speak to the jury.” Barden, 356 N.C. at 367. Also, it is not improper for the prosecutor to argue that by its verdict the jury will “send a message” to the community. See, e.g., Barden, 356 N.C. at 367; State v. Nicholson, 355 N.C. 1, 43-44 (2002). Similarly, prosecutors may outline the function of the various participants in a trial and may make statements concerning the vital importance of jurors to the system of justice and an admonition that the “buck stops here.” State v. Prevatte, 356 N.C. 178, 242-43 (2002); State v. Scott, 314 N.C. 309, 311-12 (1985); State v. Brown, 320 N.C. 179, 204 (1987). Finally, a prosecutor may argue that the jury should do justice for the victim and the victim’s family, provided that the argument does not address the victim’s family’s opinions about the defendant or the crime. Prevatte, 356 N.C. at 269.
    • Display or Use of Evidence. Items that were introduced in evidence may be used during argument. See, e.g., State v. Billings, 348 N.C. 169, 188 (1998) (prosecutor properly played an audio tape of a 911 call when the tape was admitted into evidence); State v. Sidden, 347 N.C. 218, 229 (1997) (photographs introduced into evidence could be used in closing argument by either party); State v. Johnson, __ N.C. App. __, 714 S.E.2d 502, 507-09 (2011) (the trial court did not abuse its discretion by allowing the State to play a video recording during closing arguments when the recording had been admitted into evidence; the fact that the recording was presented in a frame-by-frame manner did not change this result).
    • Specific Deterrence. Although arguments regarding general deterrence are prohibited, the prosecution may make specific-deterrence arguments. State v. Thomas, 350 N.C. 315, 362 (1999); State v. Campbell, 340 N.C. 612, 631-32 (1995) (not improper to argue that the jury should convict the defendant so he could not commit crimes in the future); State v. Chappelle, 193 N.C. App. 313, 328 (2008) (same).

Having outlined several categories of permissible argument, my next posts will address improper argument. [Editor's note: look for Part II next week.]

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News Roundup

May 4th, 2012
By Jeff Welty

It is still safe – legally speaking – to drive around Chapel Hill while talking on a cell phone. Recall that the town has banned cell phone usage while driving, subject to certain exceptions. The ban was scheduled to go into effect June 1, but the owner of a towing company sued the town alleging that local regulation of cell phone use while driving is preempted by the state’s motor vehicle regulatory scheme. (Shea discussed that issue here.) Superior Court Judge Orlando Hudson has entered a preliminary injunction against the ordinance, with further proceedings scheduled for next week. He found that the plaintiff has a “very strong likelihood of success on the merits,” according to the News and Observer.

In other news:

1. Wake County has a fancy new jail, er, detention center. You can read about it here. It is 400,000 square feet, cost $151 million to build, and is future-proof in that it is designed to handle twice the number of inmate intakes that Wake County currently has. Among other latest and greatest features, the detention center has heated carts for transporting warm meals to the inmates.

2. We just passed the 20 year anniversary of the Rodney King riots in Los Angeles. The Wall Street Journal has this interesting story about how the LAPD, once viewed by many as corrupt and racist, has changed in the intervening decades. Diversity on the force is up, and citizens’ view of the police is much improved.

3. All is not rosy on the West Coast, however. ABC News reports here on the astonishing case of UC – San Diego student Daniel Chong. Chong was staying overnight with a friend when the DEA raided the friend’s house. Although never formally arrested, Chong was handcuffed and placed in a holding cell, where he was left for four days without food, water, or a bathroom. He drank his own urine to survive, hallucinated extensively, and attempted to carve “sorry, Mom” into his own skin with his broken eyeglasses when he believed that he would die. Chong claims that he could hear officers talking on the other side of his cell door, but that they ignored his repeated cries for help. After being released, Chong “spent five days in the hospital for dehydration, kidney failure, cramps and a perforated esophagus.”

4. On a somewhat lighter note, you know those books and websites about how to talk your way out of a speeding ticket? I’m pretty sure that Zachary Ramirez of Naperville, Illinois, hasn’t read any of them. When an officer stopped him, he allegedly told the officer that he was driving so fast because he was on his way to “have sex with a girl he liked.” Ramirez’s classy explanation didn’t help him – the officer still charged him. Of course, it probably didn’t help that Ramirez was going 111 m.p.h. in a 40 m.p.h. zone, and blew through a red light and a stop sign. (Thanks to a reader for pointing me to this story.)

5. Finally, if further proof were needed that lawyers can argue about anything, this story would do the trick. In a nutshell, high-dollar corporate lawyers on opposite sides of a case got into it over whether one firm’s briefs were double-spaced as the court’s rules required, or whether they were really closer to 1.75 spaced. The offending firm contended that it used “12 point Times New Roman font formatted in Microsoft Word with the line spacing set at exactly 24 points, i.e., double the line height,” but the other side, and the court, said that wasn’t double spacing.

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Strip Searches of Arrestees at the Jail after Florence

May 3rd, 2012
By Jamie Markham

I’m just getting back to work after a leave of absence, and I’m still getting caught up on some major cases that were decided while I was out. One such case is Florence v. Board of Chosen Freeholders, __ U.S. __, 132 S. Ct. 1510 (2012), the jail strip search case recently decided by the Supreme Court. I wrote about that subject in this prior post, but the Court’s new opinion in Florence changes the legal landscape and calls for an update.

In Florence, the Court considered whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of everyone arrested for any minor offense, no matter the circumstances. The petitioner in the case, Albert Florence, was arrested during a 2005 traffic stop based on an outstanding warrant for failing to appear in a prior criminal case. There is some indication that the warrant shouldn’t have been in the officer’s computer system at all—Mr. Florence had long since paid the fine that had led to its issuance—but it nevertheless led to seven days of confinement in two county jails in New Jersey. At both jails, Mr. Florence was, pursuant to standard operating procedures, subjected to non-contact searches that involved removing all of his clothing and manipulating his body so officers could check for body markings, medical issues, and contraband.

Florence sued the jails under 42 U.S.C. § 1983, claiming it violated the Fourth and Fourteenth Amendments to perform a search like that on a person arrested for a minor offense as part of the routine intake process, without reasonable suspicion that he was dangerous or likely to be concealing contraband. Mr. Florence won in the district court but the Third Circuit reversed, 621 F.3d 296 (2010), holding that the jails’ search procedures struck a reasonable balance between inmate privacy and jail security. The Supreme Court granted certiorari to resolve a circuit split on the question of whether the constitution allows jails to conduct suspicionless strip searches of everyone admitted to a jail’s general population.

A divided Court affirmed the Third Circuit, with five Justices upholding the searches. Writing for the Court, Justice Kennedy began by noting that running a jail is difficult and the courts should, as a rule, defer to correctional officials as long as their policies are reasonably related to legitimate penological interests. He then spelled out why a blanket policy of searching everyone is reasonable. First, strip searches aren’t just for weapons and drugs—they also detect medical issues like lice and body markings like gang tattoos, both of which might necessitate segregating some inmates from the general jail population. Second, searches of only those reasonably suspected of being dangerous or possessing contraband would be underinclusive. “People detained for minor offenses can turn out to be the most devious and dangerous criminals.” After all, the Court noted, Oklahoma City bomber Timothy McVeigh was stopped for driving without a license plate, and one of the 9/11 terrorists was ticketed for speeding just days before the attack. Slip op. at 14. And finally, a rule requiring jails to figure out which inmates were dangerous before searching them would be difficult to administer. For instance, officers often lack ready access to comprehensive information about an arrestee’s prior criminal record. More generally, the Court was reluctant to call upon officers to engage in difficult line-drawing exercises during the “pressures of the intake process,” and so it opted for a bright-line rule. Id. at 17.

The Court concluded by noting that the facts of the Florence case did not require it to rule on whether a strip search would be reasonable for a detainee who would not be assigned to the general jail population. Chief Justice Roberts and Justice Alito each wrote concurring opinions to emphasize that exceptions to the Court’s rule might emerge in the future. In particular, Justice Alito noted that the opinion did not consider whether it would be reasonable to conduct a full strip search of an arrestee whose detention had not been reviewed by a judicial official, or for whom facilities apart from the general population might be available.

Justice Breyer authored a dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. He began by noting the longstanding rule that “[p]rison walls do not form a barrier separating prison inmates from the protection of the constitution.” Turner v. Safley, 482 U.S. 78 (1987). He then walked through the balancing test set out in Bell v. Wolfish, 441 U.S. 520 (1979), weighing the need for the search against the invasion of rights it entails. For him, the invasiveness outweighed the need in light of the alternatives available (metal detectors and other technologies, for example) and the lack of a record of specific record of instances where contraband was smuggled into a general jail population that could not have been discovered through searches based on a reasonable suspicion standard.

After Florence, a jail may have a policy of strip searching all arrestees who will enter the jail’s general population without any need for individualized suspicion. That’s new in this neck of the woods, as the Fourth Circuit was pretty clearly among those where such searches could only be conducted with reasonable suspicion that the arrestee possessed a weapon or other contraband. See Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981). I say “pretty clearly” because the Logan case actually involved a suspicionless search of an arrestee who was not admitted to the general jail population. Rather, she was detained in a separate holding cell at the jail. With that in mind jailers should continue to limit strip searches for those who will not enter the general jail population to circumstances where they have a reasonable suspicion that the arrestee possesses contraband. Moreover, in light of the 5–4 split in Florence, jailers may wish to pay careful attention to Justice Alito’s observation that the Court’s new rule might not apply to offenders who have yet to appear before a judicial official.

Finally, jailers should keep in mind the nature of the particular searches at issue in Florence, as the term “strip search” might mean different things in different places. The searches in Florence included, at one of the jails, an observed clothing exchange, showering, a visual inspection for body markings, and requiring the arrestee to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the other jail, officers inspected his “ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings,” and required him to “lift his genitals, turn around, and cough in a squatting position.” Slip op. at 3. Importantly, officers never touched arrestees in any way, and the searches were apparently conducted professionally without “intentional humiliation and other abusive practices.” Id. at 19. A good search policy would probably offer a particularized description of what it means by “strip search,” as well as a reminder that an otherwise reasonable and permissible search can be spoiled by being conducted in an unprofessional manner.

(In closing, I’d like to publicly thank my colleagues for covering my work during my leave. Thanks!)

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