Criminal Defense

State’s clampdown on public criminal records just another troubling sign of the times

Published on: March 5, 2015 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC responds to “The person that called the police doesn’t want to press charges, can I still be prosecuted?”

The political world has been aflutter with outrage at Hillary Rodham Clinton’s use of a personal email account while employed as the Secretary of the United States Government’s Department of State.

In a press conference last week, Clinton said she decided which emails were a part of the public record and which emails were private. The latter, she suggested, had been deleted.

Now an American state—Massachusetts—is giving police officers the same power, only not over email. According to the Boston Globe, the Massachusetts Secretary of State has refused the newspaper’s request for “the names of five police officers caught drunken driving,” for a “report on an officer who was arrested,” for “booking photos of a state trooper,” and for an “entire log of people incarcerated in the state prison system.”

It seems—both at the state and federal levels—secrecy is all the rage.

In Massachusetts, that state’s supervisor of public records told the Globe that public departments have “the discretion to withhold records determined to be covered by CORI.” CORI stands for “Criminal Offender Record Information. The Massachusetts Secretary of State contends that law-enforcement officials have sweeping powers to decide what criminal records are made public, according to the Globe.

Author says parents of teens need a criminal defense attorney on speed dial

Published on: March 3, 2015 | On behalf of Arnold & Smith, PLLC

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

If you are a parent and your child is a teenager, you need a criminal defense lawyer.

So writes author Lisa Green in her new book On Your Case: A compassionate (and Only Slightly Bossy) Legal Guide for Every Stage of a Woman’s Life. Green cites numerous examples in her book showing how even good intentions and seemingly harmless actions can balloon into criminal charges for unsuspecting teens—and parents.

Green writes that parents of teenagers need a criminal defense attorney on speed dial for more than criminal charges. What if, for instance, a school administrator asks a teenager to hand over his or her cell phone because he or she was accused of sending inappropriate text messages? The child or young adult has not been charged with a crime, but citizens—including children and young adults—have Constitutional rights, and those rights extend to investigations.

School administrators can search a cell phone, a laptop, a book bag or any other item belonging to a student only if they have reasonable suspicion that a child has engaged in criminal activity. If a search request is made, Green writes, a child or young adult should refuse the request and ask to call one’s parents.

Change in “equitable sharing” may mean less dubious seizures of “criminal” cash, property

Published on: February 3, 2015 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

Kenneth Lamont Clark runs a strip club and his patrons pay for their entertainment with cash. A lot of cash. So when deputies in Harnett County who were partnering with a United States Drug-Enforcement Agency task force pulled over and searched Clark, they found cash. Lots of it. Two stops—the first on Feb. 26, 2013 and the second on March 12, 2014—netted law-enforcement officials some $130,000.

Clark was not issued a citation in either of the stops, nor was he charged with a crime. Nonetheless, since the deputies who pulled Clark over claimed drug-sniffing dogs “alerted to drugs” in his vehicle, they seized Clark’s money.

Federal law allows agents to seize currency that “was used, or intended to be used, in exchange for controlled substances, or [currency that] represents proceeds of trafficking in controlled substances[.]” North Carolina law contains no similar forfeiture law. In order to get around that, local law-enforcement agencies partner with law-enforcement officers in federal agencies. Under a program called “equitable sharing,” if local law-enforcement officials make the bust, they get to keep most of the money seized.

Last month, United States Attorney General Eric Holder issued an order placing more restrictions on the seizure of assets pursuant to the equitable-sharing program. The restrictions mean that it will be tougher for local law-enforcement officials to seize and keep proceeds of alleged criminal activity unless the alleged criminal activity “relates to public safety concerns, including firearms, ammunition, explosives, and property associated with child pornography.”

Federal, state governments flooding American society with “crimes”

Published on: January 29, 2015 | On behalf of Arnold & Smith, PLLC

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

On average, American professionals commit several crimes per day, according to lawyer Harvey Silverglate. He wrote a book on the subject titled Three Felonies a Day. Silverglate and many others—including the National Association of Criminal Defense Attorneys—think Americans have to contend with too many criminal laws, so many in fact that most Americans are unaware of what, exactly, is illegal.

At common law, in order to be found guilty of a crime, a prosecutor had to demonstrate that a person possessed both a guilty mind—that is, he or she intended to commit the crime—and that the person did indeed commit the crime. American criminal law developed out of the British common law system, which in turn developed out of the Roman Civil Law system. The Romans called the guilty act “Actus reus” and the guilty mind “Mens rea.” A prosecutor needed to prove both to convict.

At the time of the founding of the United States, the federal government was vested by the Constitution of the United States with certain limited powers. The power to police common-law crimes was reserved to the states. The states employed the common law in order to provide and maintain order, and over time, states passed criminal codes or statutes—written laws—that superseded, replaced or were in addition to common-law crimes.

Eventually the federal government got into the act of policing crimes. The Congress passed laws creating certain agencies—the Federal Bureau of Investigators, the Drug-Enforcement Agency, the Bureau of Alcohol, Tobacco and Firearms—and gave to these agencies the authority to arrest, prosecute and imprison people for violating new federal criminal statutes.

Free-speech guardians worry man’s conviction may lead to criminalization of rap music

Published on: December 3, 2014 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Can I be arrested without evidence against me?”

The Supreme Court entertained arguments this week in a case that could lead to the criminalization of some rap lyrics.

The case involves a 31-year old “aspiring rapper who likes attention” named Anthony Douglas Elonis. In early 2010, Elonis’s wife left with the couple’s two small children. Not long after, Elonis was fired from his job at an amusement park after coworkers made at least five sexual harassment complaints against him.

Elonis took to Facebook to voice his opinions about his estranged wife, his former employer and his old coworkers.

The statements began with Elonis posting an “I wish” caption beneath a Halloween photo showing him holding a knife to a coworker’s neck. That coworker had filed a sexual harassment complaint against Elonis shortly before Elonis lost his job.

Elonis then began posting statements directed at his estranged wife. In one message, he wrote: “If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.”

N.C. voters pass Constitutional amendment allowing defendants to waive jury trials

Published on: November 13, 2014 | On behalf of Arnold & Smith, PLLC

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

Like other criminal defense attorneys, I would almost never recommend that a defendant waive one’s right to a jury trial.

Until last week, defendants in North Carolina could not be convicted of a felony but upon unanimous verdict of a jury of one’s peers. Now that right has been diluted, and criminal defendants have a new right: the right to waive their rights.

For the second time in two years, voters in the Tar Heel State have amended North Carolina’s State Constitution. Earlier this year, a pair of federal court judges struck down a 2012 state constitutional amendment banning same-sex marriage.

This time around, voters in the Old North State narrowly passed a state constitutional amendment that will enable defendants in criminal superior matters to waive jury trials.

Article I, Section 24 of the Constitution of North Carolina will now read:

Disturbing trend sees disaffected youths joining terrorist fighters abroad

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

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

Notes urging loved ones not to give away your criminal plans are never a good idea, especially if you do not want to get caught. This is something would-be ISIS fighter Mohammed Hamzah Khan did not learn before attempting to travel overseas to join and fight with the infamous terrorist group.

ISIS—a name short for Islamic State in Iraq and Syria—is a terrorist organization that has taken control of much of northwestern Syria and northeastern Iraq. The United States has said the group has as many as 35,000 fighters under its flag. It is also called—most notably by U.S. President Barak Obama—“ISIL,” short for Islamic State of Iraq and the Levant. The Levant is a term historically used to refer to an area of the eastern Mediterranean lands now comprised of Syria, Lebanon, Jordan and Israel.

Disillusioned young people from Europe and the United States have been travelling to Syria and Iraq in alarming numbers to join forces with ISIS. James Comey, director of the U.S. Federal Bureau of Investigators, said his agency is aware of at least a dozen Americans fighting for ISIS in Syria. As many as 100, however, have either tried to travel to Syria and were arrested or have travelled there and returned to the United States, Comey said.

Khan planned to fly to Vienna, Austria—in Eastern Europe—and from there planned to fly to Istanbul, Turkey. Turkish troops are fighting ISIS at the Syrian border to prevent fighters from advancing into the NATO-member state. NATO stands for the North American Treaty Organization, a union traditionally comprised of North American and European trading partners. Turkey has been a member of NATO since 1952, and European NATO states have promised to help Turkey in the event of an ISIS invasion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Woman’s apparent disappearing act to avoid court anything but new

Published on: July 10, 2014 | On behalf of Arnold & Smith, PLLC

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

A Gaston County woman did not drown in the ocean near North Myrtle Beach on July 5. Police are sure of that, but they do not know where Amy Lynette Arrington is. Her husband, Paul Arrington, reported her missing, and initial news reports focused on Mrs. Arrington’s last-known whereabouts: she was last seen on the beach near 24^th Avenue North wearing a red bathing suit with a floral design and brown trim. Police used jet skis and boats to locate her.

Now police say Mr. Arrington’s report was false. They have charged him with filing a false police report and said they have reserved the right to seek repayment for costs associated with searching for Mrs. Arrington.

Questions about Mr. Arrington’s missing person story were raised after it was revealed that Mrs. Arrington was supposed to appear in court in Charlotte for trial the following Monday. She was charged with identity theft in October 2013 after she allegedly used another woman’s account to buy thousands of dollars of merchandise on Amazon.com and pay cable and bank bills.

Mrs. Arrington reportedly has a long criminal history, with convictions in Wake, Union and Mecklenburg Counties. If she faked her own death or disappearance to avoid her day of legal reckoning, she is not alone. In fact, faking one’s death or disappearance to avoid court is quite common.
In 2011, a Tennessee woman accused of stealing $2,500 from a Macy’s department store had her case dropped after court officials received a death certificate showing the woman had died in Kentucky from a drug overdose.