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District Court is in Session . . . But for How Long?

Friday, November 20th, 2009

by School of Government faculty member and Defender Educator Alyson Grine

A district court session usually lasts one day, so many court actors have gotten in the habit of thinking that a district court session is a day as a matter of law. Some North Carolina publications refer to this day-long rule as if it were a foregone conclusion. However, “session” is not defined statutorily and there is authority to suggest that a district court session may span days. For those of you who can’t stand the suspense, see the last paragraph. For those of you who are less intrigued, this is not an academic exercise! Consider how the definition of “session” comes into play in sentencing.

Under G.S. 15A-1340.21(d), if a defendant is convicted of more than one offense in a single session of district court, only one of the convictions can be used to determine the prior conviction level for misdemeanor sentencing. By way of illustration, let’s say Donald Defendant’s record reflects that he was convicted of 8 counts of Resisting Officers on August 11, 2009, and has no other prior convictions. He is being sentenced today for Assault on a Government Official, a Class A1 misdemeanor. Donald is a prior conviction level II; only one of the Resists can be used because he was convicted of all of them in a single session of court. He can therefore receive a sentence of up to 75 days. If the district court judge erroneously counted the Resists as 8 prior convictions and treated Donald as a prior conviction level III, he could receive an active sentence of 150 days, twice as many days.

The rule for calculating multiple prior convictions could have even more impact if Donald were being sentenced for a felony in superior court a few weeks from today. In the context of determining prior record level for felony sentencing, the same rule applies: only one conviction counts where the defendant was convicted of more than one offense in a single session of district court. G.S. 15A-1340.14(d). New legislation tweaking the felony sentencing grid provides that for offenses committed on or after December 1, 2009, an offender with either 0 points or 1 point will be considered a Prior Record Level I for felony sentencing. S.L. 2009-555, amending G.S. 15A-1340.14(c) and 15A-1340.17(c). So, if Donald is in superior court on December 1 for sentencing on a felony, he would be sentenced as a prior record level I in spite of the 8 counts of Resisting Officers on his record. Assuming Donald were being sentenced for Assault with a Deadly Weapon Inflicting Serious Injury, a Class E felony, the statutory change would reduce his potential sentence by about 6 months. Rather than facing 36 to 53 months imprisonment as a Prior Record Level II, he faces 31 to 47 as a Record Level I. If the superior court judge were unfamiliar with G.S. 15A-1340.14(d) and mistakenly determined that the 8 Resists constituted 8 points, Donald could face 42 to 60 months as a Prior Record Level III.

Here is a question that is arising as a result of innovative district court calendaring practices. Some chief district judges are scheduling week-long sessions of DWI court for efficiency purposes. How will multiple prior convictions be calculated in this scenario? Assume Donald is hailed into district court on Tuesday where he is convicted of DWI 1, and is hailed in again on Wednesday, where he is convicted of DWI 2. Does this count as one prior conviction because both offenses were handled in one district court session spanning multiple days? I think the answer has to be yes. Defendants are placed on notice that their case will be reached some time during the DWI court week making these sessions analogous to week-long sessions of superior court, and only one conviction can be used from a given week of superior court to determine the conviction or record level. G.S. 15A-1340.21(d); G.S. 15A-1340.14(d). As we have seen, the answer will have a big impact for any future sentencing Donald may confront. Taking this scenario to an extreme, a person with five prior convictions of DWI could potentially be treated the same for felony sentencing purposes as a person who has no prior convictions, after December 1.

The DWI court model leaves me wondering: 1) Are there other district court scheduling practices that give rise to an argument that we are in fact dealing with one session spanning multiple days? Maybe other specialized courts, such as domestic violence court, function similarly in that one judge is assigned to the session and defendants are noticed that their case will be heard on “Monday or Tuesday,” or whatever may be the case; and 2) How in the world are defenders going to determine whether their clients’ prior convictions occurred in one extended session of district court or multiple single-day sessions? Do defenders have an obligation whenever they see that their client had two convictions in one calendar week to investigate the nature of the session(s)? Is it possible to make a person’s record reflect that two district court convictions on different days were actually part of the same session?

What authority supports that a session of district court session may last multiple days? In this bulletin, “Out-of-Term, Out-of-Session, Out-of-County,” School of Government faculty member Michael Crowell notes that a day of district court is commonly considered a session because chief district judges, who have the authority to arrange schedules and assign district judges under G.S. 7A‑146(1), typically assign judges by the day. However, Crowell cites Routh v. Weaver, 67 N.C. App. 426 (1984), in support of the proposition that a chief district judge may also assign a district judge to hear a particular motion or case. “[T]he hearing of that single case, however long it lasts, constitutes a session as well.” Crowell at 1. The Routh court adopts the following expansive definition of “session” from Black’s Law Dictionary:

The sitting of a court, Legislature, council, commission, etc., for the transaction of its proper business. Hence, the period of time, within any one day, during which such body is assembled in form, and engaged in the transaction of business, or, in a more extended sense, the whole space of time from its first assembling to its prorogation or adjournment.

Routh at 431. So, how long is district court in session? In the absence of any parameters from the chief district judge, the answer appears to be “until it is over.”

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Posted in Procedure, Sentencing, Uncategorized | 3 Comments »

Another Batch of Satellite-Based Monitoring Cases

Tuesday, November 17th, 2009

by School of Government faculty member Jamie Markham

The last round of opinions from the court of appeals included three related to satellite-based monitoring (SBM) of sex offenders. None of them broke any major new ground, but two more dissents show that nothing is fully settled in this rapidly evolving area.

In State v. Gardner, the court found the defendant, who was recently released from prison to post-release supervision, to be a recidivist and ordered him to enroll in SBM for life. At the determination hearing, the defendant argued that SBM was an invalid ex post facto punishment and violated double jeopardy principles. The trial court acknowledged in its order that Mr. Gardner might have a point, but said the issue wouldn’t be ripe for review until he finished his term of post-release supervision. The court’s idea, I think, was that because post-release supervisees are required to submit to SBM as a condition of supervision under G.S. 15A-1368.4(b1)(6), SBM for life-the regime that defendants have been arguing adds to their punishment-doesn’t actually begin until formal supervision ends. It’s not a bad argument, although as it turns out it may yet violate the Ex Post Facto Clause to add a mandatory condition of supervision to cases based on crimes that occurred after passage of the legislation adding the condition-that’s what happened in Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009), as discussed in my comment to this post. Regardless, the appellate court’s problem with the trial court order in Gardner was with its clarity, not its constitutionality. In one place the order said SBM was for life, in another place it said SBM was just a condition of post-release supervision. The court of appeals remanded the case for the trial court to clear up the ambiguity.

Up next is State v. Hagerman, in which a defendant was ordered to enroll in SBM for life after the trial court determined his indecent liberties convictions were aggravated offenses. The defendant argued that the court’s determination violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), by increasing his punishment based on facts not presented in an indictment, admitted to, or found by a jury beyond a reasonable doubt. Because SBM is not punishment, the court of appeals held, Mr. Hagerman’s sentence was not increased, and Apprendi wasn’t implicated. Judge Elmore dissented, noting his continued belief (expressed in other dissents, including one I’ll discuss in a moment) that SBM is punishment, and is therefore subject to Apprendi’s jury-proof requirements. Hagerman does not address the question of whether aggravated offense determinations may rest only on the elements of the conviction offense, or whether the court may also look to the facts behind the conviction. (I discussed this issue, which is a question of statutory interpretation, in an earlier post.) The trial court in Mr. Hagerman’s case must have looked to the facts (indecent liberties does not include penetration as an element), but the defendant did not raise the statutory interpretation argument on appeal, and the court of appeals therefore did not discuss it. The issue will be more squarely before the court soon.

Finally comes State v. Vogt, a case involving a recidivist offender ordered to enroll in SBM for life, in which the court of appeals once again rejected a defendant’s argument that monitoring is ex post facto punishment. Mr. Vogt also argued that the trial court’s SBM order rendered his guilty plea invalid because “he could not have been advised that he would be subjected to lifetime satellite-based monitoring . . . since such monitoring did not exist at the time that he entered his guilty plea.” A problem with that argument, the court of appeals noted, is that the defendant’s plea to his most recent sex crime was entered in June of 2008, almost two years after the SBM statute became effective. Judge Elmore dissented, again taking judicial notice of the Division of Community Correction’s interim policy on sex offender management to conclude that SBM amounts to ex post facto punishment. The majority did not question the dissent’s authority to take judicial notice of the DCC policy, but it did express concern about introducing “a large volume of additional information which has not been subjected to adversarial testing in the trial courts.”  Such testing would, I think, sort out which provisions in the interim policy are applicable to sex offenders on probation or post-release supervision (warrantless searches, curfews, and notification of church officials), and which actually apply to offenders enrolled in SBM (a distinction I wrote about here). In a footnote, the majority practically invited a monitored offender to “challenge the validity of specific provisions of the interim guidelines . . . on the grounds that they violate state or federal law”-it just asked that the challenge come in an “appropriate proceeding” in the trial division, not through judicial notice on appeal.

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Defense Access to Stored Electronic Communications

Thursday, November 12th, 2009

As I mentioned last week, I have a new publication entitled Prosecution and Law Enforcement Access to Information about Electronic Communications. It’s meant to be useful on a range of topics, from phone records and wiretapping, but the most detailed discussion concerns email, text messages, and other stored electronic communications. The very, very simplified version of that section of the paper is that the state can access that type of evidence with a search warrant, and perhaps, in some cases, by other means. In my post announcing the paper, I promised to write about defense access to stored electronic communications, a topic not addressed in the publication. Here I am, making good.

Let’s take a specific example. How, if at all, may a defendant charged with rape access emails that the complainant sent from her Yahoo! email account to a friend, where there is reason to believe that (1) the emails remain on Yahoo!’s servers and (2) the emails may be exculpatory, because they may suggest that the encounter was consensual? (Remember, if the state were seeking the defendant’s incriminating emails to his brother, it could obtain them with a search warrant directed at the defendant’s email service provider, or maybe even with lesser process.)

The short answer is, the defendant can’t access the emails.

Of course, if the complainant still has access to the emails, the defendant can subpoena them from her. But if she doesn’t — for example, if she’s deleted them — or if she isn’t forthcoming with them, the defendant probably can’t obtain the emails from Yahoo!. Under 18 U.S.C. § 2702, most communications service providers, “shall not divulge  . . . the contents of” electronic communications except in specified circumstances. None of the enumerated circumstances apply to the defendant’s situation; there is no general exception for compliance with subpoenas or court orders, which are the types of instruments that the defendant would normally employ in pursuing evidence. By contrast, 18 U.S.C. § 2703 provides for compulsory disclosure to “governmental entit[ies]” with appropriate process.

A number of courts have held that the specific nondisclosure command of the statute trumps instruments like subpoenas and court orders, and simply doesn’t allow criminal defendants (or private civil litigants, for that matter) to access stored email from service providers. Apparently, most email providers are, understandably, following these cases and are refusing to produce stored emails in response to defendants’ subpoenas and court orders. A good collection of cases on point appears in Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009), while a case applying the law to bar a criminal defendant from compelling a service provider to give him his own stored email is United States v. Amawi, 552 F.Supp.2d 679 (N.D. Ohio 2008). A useful law review article discussing this issue is Marc J. Zwilliger & Christian S. Genetski, Criminal Discovery of Internet Communications . . ., 97 J. Crim. Law & Criminology 569 (2007), available online here. (That makes two useful law review articles I’ve seen this year, counting this one.)

There are a couple of possible avenues of recourse for our hypothetical defendant. First, because an email provider can produce stored communications with the consent of the account holder, our defendant could try to convince the complainant to consent. Or, he could try to get a court to order her to consent. (There’s a robust debate in the cases about the propriety of that, which I won’t summarize here, but it may be worth a try.) Next, he could try to persuade the prosecution to obtain the email on his behalf. Finally, he could try to argue that the federal statutes are unconstitutional, perhaps on due process grounds, to the extent that they put a class of evidence completely off-limits to him — especially a class of evidence that the prosecution can access. There might be something to that argument, though there aren’t any reported decisions on point, presumably because, to date, defendants have been able to get by using the other methods suggested above.

I’m keen to hear about real-world experiences with this issue. As always, feel free to post a comment or to contact me off-blog.

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State v. Mobley: Green Light to the Use of Substitute Analysts

Wednesday, November 4th, 2009

by School of Government faculty member Jessie Smith

In previous posts [editor's note: her prior posts are here and here] I have written about the developing North Carolina law on the use of substitute analysts after Melendez-Diaz. In writing about State v. Locklear and State v. Galindo, both of which rejected substitute analyst testimony, I noted a common feature of those cases that might limit their holdings: in both cases, the experts appeared to merely be repeating opinions formed by non-testifying analysts. In light of this, I suggested that the door may still be open to testimony by substitute analysts who offer their own independent opinions based on adequate facts or data reasonably relied upon by experts in the field. In State v. Mobley, decided November 3, 2009, the North Carolina Court of Appeals held that otherwise testimonial reports are admissible as the basis of a testifying expert’s opinion. Mobley thus allows the use of substitute analysts, in certain circumstances.

In Mobley, the defendant was convicted of rape and other charges. While the victim was being treated at the hospital, medical personnel collected a sexual assault kit, which was turned over to the police. Subsequent testing of the evidence matched the DNA profile of the perpetrator to the defendant’s DNA profile. The State also presented DNA evidence regarding another rape committed by the defendant, under Rule 404(b). On appeal, the defendant argued that his Confrontation Clause rights were violated when the trial court admitted testimony of a police crime laboratory analyst regarding DNA tests performed by other analysts.

The court of appeals began by noting that in Locklear, the testifying expert “was merely reporting the results of other experts. He did not testify to his own expert opinion based upon the tests performed by other experts, nor did he testify to any review of the conclusions of the underlying reports or of any independent comparison performed.” Slip Op. at p. 6. The court then distinguished the case before it, stating that the expert, Aby Moeykens, testified “not just to the results of other experts’ tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts’ tests, and her own expert opinion based on a comparison of the original data.” Slip Op. at pp. 6-7. It continued:

Well-settled . . . law allows an expert to testify to his or her own conclusions based on the testing of others in the field. This Court has held that evidence offered as the basis of an expert’s opinion is not being offered for the truth of the matter asserted. [Crawford] . . . noted that evidence offered for purposes other than proof of the matter asserted did not violate the Confrontation Clause. In Melendez-Diaz, the certificates at issue were being introduced not as the basis for any expert’s opinion but as prima facie evidence that the substance was cocaine. Thus, such evidence would implicate the Confrontation Clause. By contrast, in this case, the underlying report, which would be testimonial on its own, is used as a basis for the opinion of an expert who independently reviewed and confirmed the results, and is therefore not offered for the proof of the matter asserted under North Carolina case law.

Slip Op. at p.8 (citations omitted). Therefore, the court held, Ms. Moeykens’s testimony did not violate the Confrontation Clause. Slip Op. at. pp. 8-9.

It is worth noting that in Mobley, the defendant did not challenge the propriety of the methods used by the crime laboratory. Thus, the court concluded, Ms. Moeykens was “justified in relying on those procedures in her analysis.” Slip Op. at p. 7. This may suggest that in some circumstances such reliance would not be justified.

Additionally, the level of Ms. Moeykens independent review of the evidence clearly was significant to the court’s decision. Specifically, the court noted that she reviewed the original data and controls of the underlying reports from the buccal and vaginal swabs. Upon coming to the conclusion that each profile was generated properly, she undertook a technical review of the original analysts’ work, and based on that review and her comparison of numerical values at certain gene locations, formed an opinion as to the profile match. She undertook a similar level of review regarding the DNA reports relevant to the 404(b) evidence. Thus, it appears that there was substantial “raw data” upon which Ms. Moeykens formed her independent opinion. How much raw data must be available and what level of independent review must be done in other sorts of substitute analyst cases is an issue will be decided by later cases.

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Posted in Evidence, Procedure, Uncategorized | 3 Comments »

Galindo and “Substitute Analysts” After Melendez-Diaz

Thursday, October 22nd, 2009

by School of Government faculty member Jessica Smith

On October 20, 2009, the North Carolina Court of Appeals decided State v. Galindo, holding that a Crawford violation occurred when the State’s expert gave an opinion, in a drug trafficking case, as to the weight of the cocaine at issue, based “solely” on a laboratory report by a non-testifying analyst.

To put the decision in context, recall that last June, the U.S. Supreme Court decided Melendez-Diaz, holding that forensic laboratory reports-such as those identifying a substance as a controlled substance-are testimonial under the new Crawford confrontation clause rule. A more detailed analysis of that case is available here. In State v. Locklear, the North Carolina Supreme Court applied Melendez-Diaz and held that a Crawford violation occurred when the trial court admitted opinion testimony regarding a victim’s cause of death and identity. As explained in more detail here, in Locklear, the State offered John Butts, the Chief Medical Examiner, as an expert in forensic pathology. Butts testified that, according to an autopsy report prepared by a non-testifying forensic pathologist, the cause of the victim’s death was blunt force injuries. Butts also testified about a dental analysis performed by a second non-testifying examiner; Butts testified that by comparing dental records and skeletal remains, that examiner had identified the body as that of the victim. The N.C. Supreme Court found that a Crawford violation had occurred because the reports at issue were testimonial. However, the opinion left some ambiguity about whether a distinction could be drawn between an expert who simply serves as a “mouthpiece” for a non-testifying analyst (arguably what happened in Locklear) and an expert who testifies to an independent opinion based on facts or data reasonably relied upon by experts in the field. In the first situation, the expert’s participation does not change the Crawford analysis: the underlying report is testimonial whether it is introduced in paper form or read into evidence by the testifying expert. In the second situation, it can be argued that the underlying report is no longer testimonial (and thus excluded from Crawford) because it is not being introduced for the truth of the matter asserted but rather as a basis of testifying expert’s opinion, who can be cross-examined at trial.

Galindo, the latest North Carolina case on point, involved the following fact pattern. Evidence was seized from a crime scene and submitted to a police crime laboratory, where an analyst identified the substance as cocaine and determined its weight. When the case was tried, the analyst was working in South Carolina and was not subpoenaed to testify. Instead, the State offered Michael Aldridge, a chemist who had supervised the laboratory for twenty years. Aldridge testified “that in his opinion - based ’solely’ on the lab report” prepared by the non-testifying analyst, the substance at issue was cocaine and weighed approximately 1,031.83 grams. On appeal, the defendant challenged only that portion of Aldridge’s testimony in which he opined as to weight of the cocaine. Citing Melendez-Diaz and Locklear, the court concluded that “Aldridge’s expert testimony based ’solely’ on the absent analyst’s lab report” was testimonial. It further concluded that the evidence was inadmissible under Crawford because the State had not established unavailability and a prior opportunity to cross-examine, but that the trial judge’s error in admitting the evidence was harmless beyond a reasonable doubt.

One reading of Galindo is that it rejects the use of substitute analysts who form opinions based on testimonial reports by non-testifying analysts. This reading finds support in the text of the decision, which as noted above, holds that Aldridge’s testimony based solely on the underlying report is testimonial. However, in Galindo, as in Locklear, Aldridge appears to have simply served as a “mouthpiece” for the non-testifying analyst. Although Aldridge testified to an opinion based on the underlying report whereas Butts appears to have simply read the non-testifying analyst’s conclusions into evidence, this might be a distinction without a difference. Recall that Aldridge gave an opinion as to weight of the cocaine. As I understand it, weight of a controlled substance is determined by putting the substance on a scale and recording its weight. If the testifying expert did not do the weighing, what basis is there for the opinion other than a notation on weight made by the non-testifying analyst? If there is no other basis, Aldridge’s testimony arguably was no different from Butt’s testimony in Locklear: repetition of an opinion formed by a non-testifying analyst. Such an opinion is inadmissible. First, testimonial evidence cannot be transformed into non-testimonial evidence simply by having a State expert articulate the empty words, “In my opinion.” Second, as an evidentiary matter, the opinion may be problematic in that it is not based on adequate facts or data. See e.g., State v. Rogers, 323 N.C. 658 (1989). Under this view, admission of Aldridge’s opinion was error but the door is still open to testimony by substitute analysts who offer their own independent opinions based on adequate facts or data reasonably relied upon by experts in the field. Of course, North Carolina recently adopted new and revised notice and demand statutes. As discussed here, these procedures may make this issue a moot one in some circumstances. However, when the defendant declines to waive his or her confrontation clause rights, the issue will arise again and thus we are sure to hear more on it from our appellate courts.

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Posted in Evidence, Procedure, Uncategorized | 2 Comments »

Should Child Pornography Offenders Forfeit Their Homes?

Wednesday, October 21st, 2009

I’ll get to the topic of today’s post in just a moment, but first I wanted to note what I found to be a fascinating little tidbit about the Willingham case, which I’ve previously addressed here and here. It has to do with Willingham’s final words, and I promise that if you have the slightest interest in the case, you’ll be interested in this.

OK. On to today’s feature presentation. I got started thinking about whether child pornography offenders can be required to forfeit their homes because of this article from Kentucky. (Hat tip: Sentencing Law & Policy.) The short summary is that a federal criminal defendant who pled guilty to receiving child pornography was sentenced to 15.5 years in prison — and was required to forfeit his home, “because of the high volume of images and the length of time [he] used his home to download and view child pornography.”

I’ve blogged before about the controversy over child pornography sentencing. But the forfeiture question is a bird of a different feather. Would something like this be possible under North Carolina law?

The short answer is no. There are lots and lots of forfeiture provisions scattered among North Carolina’s criminal laws. Some are quite narrow, like the provisions for forfeiture of items used in and acquired as a result of wildlife and marine fisheries offenses, G.S. 113-137, and for forfeiture of motor vehicles involved in the disposal of more than 500 pounds of litter, G.S. 14-399(g).

Others are somewhat less narrow, insofar as they relate to very common offenses, but still remain tailored to a limited class of crimes. The provision for forfeiture of any vehicle used in a DWI after a DWI license revocation, G.S. 20-28.2 et seq., is of this type, as is the provision for forfeiture of property connected to violations of the controlled substances laws, G.S. 90-112 et seq.

Although the General Assembly presumably could have included a forfeiture provision in the child pornography laws, it didn’t. There’s no specific provision for, as an example, forfeiture of premises used for the possession of child pornography — or even of computers used to store it. See generally G.S. 14-190.13 et seq.

Thus, the question becomes whether our general forfeiture law could encompass premises used for the possession of child pornography. The general forfeiture statute is G.S. 14-2.3, and it provides that “any money or other property . . . acquired” by commission of a felony is subject to forfeiture, with a few narrow exceptions. But the home of a person who possesses child pornography is not acquired by the offense. It is arguably used to commit the offense, but our courts have held that to be distinct. See, e.g., State v. Triplett, 70 N.C. App. 341 (1984) (money used to commit a crime, but not obtained as a result of a crime, not subject to forfeiture).

A quick scan of the reported federal cases suggests that forfeiture is increasingly a part of federal child pornography cases. Forfeiture of the computers used to commit the crimes appears to be very common, and forfeiture of the defendant’s home is not unheard of. See, e.g., Keys v. United States, 545 F.3d 644 (8th Cir. 2008) (discussing history of a case in which the government sought forfeiture of the defendant’s house, only to have the district court judge rule that the forfeiture violated the Eighth Amendment’s prohibition against excessive fines); United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009) (discussing whether a child pornography defendant should have been permitted to cross-examine a law-enforcement officer about his agency’s financial interest in forfeiting the defendant’s house). Anyone think that North Carolina should go down this road?

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Posted in Procedure, Sentencing, Uncategorized | 1 Comment »

All You Ever Wanted to Knoll, But Were Afraid to Ask

Thursday, October 15th, 2009

My colleague Shea Denning, a frequent contributor to this blog in the area of motor vehicle law, has put together the ultimate authority on all things related to State v. Knoll, 322 N.C. 535 (1988). Her paper is a must-read for officers, magistrates, jailers, and lawyers on both sides of DWI cases. It discusses Knoll and its progeny, and talks about recent statutory changes designed to eliminate dismissals under Knoll (or to secure defendants’ right of access to witness, depending on your point of view).

The paper is available here.

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Posted in Procedure, Uncategorized | 5 Comments »

Sealing Warrants

Wednesday, October 14th, 2009

by School of Government faculty member Michael Crowell

In the last couple of years North Carolina has seen several high profile cases in which the sealing of a search warrant became an issue.  One was the investigation of the murder of Nancy Cooper in Cary, and it led to last week’s North Carolina Court of Appeals’ decision, In Re: Search Warrants Issued In Connection With The Investigation Into The Death Of Nancy Cooper, No. COA08-1280 (Oct. 6, 2009), the first state appellate decision to offer guidance on sealing warrants.

Nancy Cooper disappeared in mid-July 2008, then her body was found several days later, strangled to death.  As the investigation focused quickly on her husband, Brad, several search warrants were issued for the home, his car, and his office and computers.  The police and prosecutor asked to seal the search warrants plus the applications and inventories, to protect an ongoing investigation. The motions were granted ex parte, for thirty days each, and later extended over the objection of Capitol Broadcasting and the News and Observer.   Within a couple of months all were unsealed, and Bradley Cooper was charged with murdering his wife.  The Court of Appeals upheld the sealing.

The Court of Appeals started with the statute, G.S. 132-1.4(k), which says that search warrants which have been returned are public records and “may be withheld only when sealed by court order. . . .”  That’s it.  There is nothing to tell a trial judge when a warrant may be sealed and when not, and there is nothing about the procedure to be followed.

The Cooper decision filled out the process for sealing this way:  (1)  Warrants may be sealed when the sealing is “essential to preserve higher values and is narrowly tailored to serve that interest”; (2) the trial court must state on the record its reasons for sealing; (3) the judge must consider less restrictive alternatives before sealing; (4) the trial court can adopt and rely upon the facts presented by the government to justify sealing, when the evidence is creditable; and (5) the trial court’s findings must be sufficiently specific to allow meaningful appellate review.

In reaching that result the Court of Appeals panel rejected the argument that there is a First Amendment right of public access to warrants and related documents (because historically the issuance of warrants has not been open to the press and public) and also rejected the idea of a common law qualified right of access to judicial records (on the ground that North Carolina’s public records law had supplanted any common law right). The court did find, however, a state constitutional right of access to judicial records in Article I, § 18’s provision that “All courts shall be open . . .” - and it read that state constitutional right to be essentially the same as the common law right of access described by the Fourth Circuit in Baltimore Sun Company v. Goetz, 886 F.2d 60 (4th Cir. 1989).

The key component of the Cooper “All courts shall be open” right, just like in Baltimore Sun, is that restricting access is allowed only when it is “essential to preserve higher values and is narrowly tailored to serve that interest.”  The values served by sealing the Cooper warrants were protecting the defendant’s right to a fair trial, maintaining the integrity of the investigation, and guarding the state’s right to prosecute the defendant.  (Another potential reason for sealing a warrant might be to protect innocent third parties.  See New York Times Company v. Biaggi, 828 F.2d 110 (2nd Cir. 1987), cert. denied, 485 U.S. 977 (1988).)

The “narrowly tailored” prong of the Cooper/Baltimore Sun analysis means that before sealing a warrant the trial court must consider less restrictive alternatives such as disclosing some documents but not others, or redacting documents.  In Cooper the Court of Appeals said such alternatives were impractical; its reasoning was that because all warrants focused on Brad Cooper no portion could be revealed without jeopardizing the investigation.  Thus, limiting the sealing to thirty days was the least restrictive means of protecting the “higher values” of protecting the right to a fair trial and guarding the integrity of the investigation.

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Waivers in Plea Agreements

Monday, October 12th, 2009

When a defendant pleads guilty, he waives a variety of rights, including the right to a trial, the right to confront the witnesses against him, and so on. The waiver of those rights is inherent in a guilty plea — there can’t be a guilty plea without such a waiver.

If a defendant doesn’t just plead guilty, but does so pursuant to a plea agreement, the defendant may waive other rights as specified in the plea agreement. For example, a defendant may agree to waive his right to appeal. That’s not inherent in the idea of pleading guilty — defendants who plead guilty normally retain the right to appeal certain issues, as described in G.S. 15A-1444(a1)-(a2). Instead, it’s part of the give-and-take of plea negotiations, so at least in theory, the defendant should be getting something in return for the additional waiver of rights.

The Washington Post published an article this weekend about the use of “DNA waivers” in plea agreements in federal court. Essentially, some federal prosecutors’ offices ask defendants who plead guilty to waive their rights to post-conviction DNA testing, to which they might otherwise be entitled under 18 U.S.C. § 3600. It sounds like some offices essentially always require such waivers, while other offices sometimes do, and others never do. The story says that the Department of Justice is going to review the use of such waivers.

There are several types of additional waivers that could conceivably be part of a plea agreement in North Carolina.

  • Waiver of the right to appeal. Cf. United States v. Marin, 961 F.2d 493 (4th Cir. 1992) (waiver of appellate rights generally valid and enforceable, except against a limited class of claims, such as that the defendant was sentenced “based on a constitutionally impermissible factor such as race”); Wayne R. LaFave, Criminal Procedure § 21.2(b) (noting a split of authority on propriety of such waivers, though the greater weight of authority, including all the federal circuits, supports their validity).
  • Waiver of the right to file post-conviction petitions, such as motions for appropriate relief. Cf. United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005) (waiver of collateral attack rights generally valid and enforceable; the court relied on such a waiver to dismiss a claim of ineffective assistance of counsel).
  • Waiver of the right to post-conviction DNA testing under G.S. 15A-269.
  • Waiver of the right to the preservation of biological evidence under G.S. 15A-268, or recordings of interrogations under G.S. 15A-211(h).
  • Waiver of the right to reclaim evidence seized as part of the investigation.
  • Waiver of the right to receive discovery materials, perhaps including Brady material. Cf. United States v. Ruiz, 536 U.S. 622 (2002) (no constitutional right to receive impeachment material prior to entering guilty plea).

I’m not completely certain that all of these waivers would be proper. And some of them, even if proper, might be insufficient to achieve their intended purposes. For example, even if a defendant could validly waive his right to the preservation of biological evidence under G.S. 15A-268, the statute also requires that the Attorney General be notified before such evidence may be destroyed in advance of the time otherwise permitted under the statute.

But some of these waivers would almost certainly be proper and effective. For example, although I’m not aware of a North Carolina appellate court case expressly approving of appeal waivers, the authorities cited above strongly suggest that such waivers are proper. In fact, such waivers are almost de rigeur in many federal courts, and I have often wondered why they are vanishingly rare in state court. Perhaps it is a matter of incentives: most United States Attorneys’ Offices handle their own appeals and so have a strong desire to reduce the number of appeals filed, while in North Carolina, the Attorney General’s office represents the state in criminal appeals, giving trial prosecutors no personal stake in appeal waivers.

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Proper Notice for SBM Determinations: State v. Stines

Friday, October 9th, 2009

by School of Government faculty member Jamie Markham

I mentioned earlier that the court of appeals decided two satellite-based monitoring cases this week. I discussed State v. Morrow on Wednesday. Today I’ll cover State v. Stines.

In Stines, the defendant was convicted of taking indecent liberties with children in 1997 and again in 2004. He was sentenced to active time for the 2004 conviction and released in 2007, at which point the Department of Correction made an initial determination under G.S. 14-208.40B(b) that he fell within one of the categories of sex offenders required to enroll in monitoring. DOC sent Mr. Stines a letter saying the department had “made the initial determination that [he met] the criteria set out in General Statute 14-208.40(a),” and ordered him to come to court for a hearing at which a judge would decide whether he had to enroll in SBM. The trial court found the defendant to be a recidivist and ordered him to enroll in SBM for life. Stines appealed.

After quickly rejecting Mr. Stines’s ex post facto argument, the court of appeals considered his due process claim. Stines argued that the State failed to give him sufficient notice of the basis for DOC’s preliminary determination because the hearing notification letter did not indicate which of the SBM eligibility categories (recidivist; aggravated offender; sexually violent predator; or offense involving the mental, physical, or sexual abuse of a minor) applied to him. The court agreed.

Enrollment in SBM, the court said, infringes on a significant liberty interest-it requires the physical attachment of a device to the offender, continuous surveillance of the offender’s movement, and compliance with DOC regulations. To avoid “serious doubts” about the constitutionality of the generalized notice Mr. Stines received, the court construed G.S. 14-208.40B(b) to require DOC to give the defendant notice not just that an initial SBM determination has been made, but also of the content of the determination. In other words, DOC must specify “the category or categories into which the offender falls and the basis for that conclusion.” The court remanded Mr. Stines’s case for a new SBM hearing.

I have a few thoughts about Stines. First, it seems to me that the court walks a pretty fine line in concluding that SBM infringes on a significant liberty interest but is not punitive. Indeed, in support of its liberty-infringement analysis the court cites to Commonwealth v. Cory, the only reported case in the nation in which a court finds that satellite-based monitoring amounts to punishment. See 911 N.E.2d 187 (Mass. 2009) (”There is no context other than punishment in which the State physically attaches an item to a person . . . that must remain attached for a period of years and may not be tampered with or removed on penalty of imprisonment. Such an imposition is a serious, affirmative restraint.”). This leads me to think that SBM, if not punishment, must be just about as close to punishment as you can possibly get. Other defendants making due process arguments (about the standard of proof in an SBM hearing, for example) could probably marshal the court’s language in Stines in support of a more trial-like hearing procedure.

Second, there’s an apparent disconnect between the court’s requirement of enhanced notice in Stines and its rejection of a very similar argument in State v. Morrow. Mr. Morrow argued that the SBM statute violated his due process rights by failing to give him notice of what facts would require him to be monitored. He went into the hearing, he said, with “absolutely no idea of the basis upon which the decision to require monitoring will be made.” The Morrow court dismissed the due process argument, noting that defendants could get some idea about the evidence that might come into play at an SBM hearing by examining DOC regulations on file with the Attorney General. The Stines court, meanwhile, found it unreasonable to require offenders to investigate and prepare to respond to all possible SBM eligibility categories in as little as 15 days, the minimum notice period set out in G.S. 14-208.40B(b). If anything it seems like Morrow, a conditional offender subject to the complicated and fact-laden “offense involving the abuse of a minor” and “highest possible level of supervision and monitoring” determinations, would derive greater benefit from a more detailed notification letter than Stines, an alleged recidivist for whom the SBM determination is relatively straightforward.

I suppose it’s possible to reconcile the cases: Mr. Morrow complained of a lack of notice of facts, whereas Mr. Stines complained that he didn’t know which eligibility category applied to him. But the court’s holding in Stines, that G.S. 14-208.40B(b) requires DOC to “specify the category set out in N.C. Gen. Stat. § 14-208.40(a) into which the Department has determined the offender falls and briefly state the factual basis for that conclusion,” appears to encompass both complaints. Based on that language I think DOC ought to beef up its bring-back hearing notification letter to include both the alleged SBM eligibility category and, briefly, the facts behind that allegation.

Finally, it appears I was wrong when I wrote in an earlier post that SBM hearings at sentencing should look pretty much the same as bring-back hearings. In Stines the court noted that G.S. 14-208.40A requires the district attorney to present evidence when an SBM hearing is conducted at sentencing, but G.S. 14-208.40B, the bring-back hearing statute, includes no comparable provision. The DA does, however, have to represent DOC at bring-back hearings under legislation enacted this term (S.L. 2009-387). It seems like that representation would require the DA to present evidence in line with DOC’s initial determination of SBM eligibility. Anyone have any thoughts on that?

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