Charlotte Criminal Lawyer Blog

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.

Conviction overturned because man’s fish were not “tangible objects”

Published on: February 26, 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?”

Remember Enron?

It seemed like such a big deal until all the malfeasance that (allegedly) caused 2009’s Great Recession came to light, causing the collapse and usurpation of thousands of businesses large and small, nationwide.

Enron was an energy company. It collapsed. People were mad and, true to form, politicians seized on the madness, blamed their opponents for causing it, and proposed a solution politicians are often (or always) apt to propose: a new law.

Out came Sarbanes-Oxley, an Act designed to combat the kind of white-collar financial fraud that led to Enron’s demise. Like many laws, the Act was written broadly, was “too broad and undifferentiated,” according to United States Supreme Court Justice Elena Kagan, “with too-high maximum penalties, which give prosecutors too much leverage and sentences too much discretion.”

Manslaughter charge for teen who encouraged friend to commit suicide

Published on: February 24, 2015 | On behalf of Arnold & Smith, PLLC

J. Bradley Smith of Arnold & Smith, PLLC answers the question “Should I ever plead guilty to a charge?”

The criminal law, it is said, evolves as technology does, and criminal codes and doctrines grow to fit the new circumstances and technologies that criminals, would-be criminals and unknowing criminals commit. It should come as no surprise, then, that longstanding criminal doctrines are being applied to actions taken on devices that have become ubiquitous in modern American life: phones.

Except, devices that people carry around these days have come a long way from the banana-sized box lawyer Johnny Cochran made famous carrying around in the early-to-mid 1990s. It is said that the law cannot keep pace with society, evolving about twenty years slower than the culture, but even the United States Supreme Court has caught on to the uniqueness of the modern “cell phone,” calling the devices “minicomputers that also happen to have the capacity to be used as a telephone” in a landmark case last year called Riley v. California.

In that case, the high court unanimously rejected the United States government’s position that when a person is arrested, a law-enforcement officer is entitled to seize everything off the arrestee’s phone. The court ruled officers need a warrant to do that.

Phones—or whatever one calls them nowadays—are still bringing individuals into criminal jeopardy, however, as a recent case from Massachusetts illustrates.

Criminal traffic rules shaped by justices who have had little contact with traffic, courts

Published on: February 19, 2015 | On behalf of Arnold & Smith, PLLC

Charlotte DWI and Criminal Defense Attorney J. Bradley Smith of Arnold & Smith, PLLC answers the question “What am I obligated to do if I’ve been pulled for Drinking and Driving?”

The United States Supreme Court is comprised of nine judges whose legal educations began at either Harvard or Yale. With the exception of Ruth Bader Ginsburg—who transferred to Columbia University School of Law—all nine obtained their law degrees from Harvard or Yale.

The (alleged) hoity-toity backgrounds of the justices—underscored in a January 22, 2015 Washington Post piece—came into laser focus in oral arguments in Rodriguez v. United States, according to Bloomberg News.

The issue in Rodriguez was whether police can use a dog to sniff for drugs around a vehicle during a routine traffic stop. Harvard Law Professor Noah Feldman, who observed the arguments, suggested the “browbeating… conservatives” and “assist[ing]… liberals” on the court, through their questioning of lawyers for Rodriguez and the United States, revealed their ideological divides.

Those divides—and who the justices are—both Bloomberg and the Post suggested, are important issues that sometimes define and nearly always, at least, inform their decisions.

With respect to traffic stops, at least a few of the justices—unlike many high-profile political leaders who use professional drivers and have not driven a car in decades—actually have experience with roadway traffic. In 2011, Justice Antonin Scalia was cited after rear-ending a vehicle on George Washington Memorial Parkway. Justice Stephen Breyer was hit by a car while biking in 1993, proving he has at least had contact with an automobile.

Insanity, knowledge of right versus wrong tested in trial of American Sniper’s killer

Published on: February 17, 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?

American Sniper Chris Kyle and friend Chad Littlefield were in an environment both men knew well when “troubled drug user” Eddie Ray Routh shot them dead. All three men were military veterans—Kyle a Navy SEAL and famed Iraq-war sniper and Routh a former marine corporal. Littlefield was Kyle’s neighbor and had teamed with him to help veterans returning from tours of duty.

On Feb. 2, 2013, Littlefield and Kyle had taken Routh to “the expansive Rough Creek Lodge and Resort” south of Fort Worth, Texas, to help him with mental issues stemming from his tours of duty in Iraq and Haiti, according to CNN and ABC News.

Late that day, a hunting guide found Kyle’s and Littlefield’s bodies; an all-points-bulletin was issued for Routh, who fled in Kyle’s pickup truck to his sister’s house 65-miles away from the shooting range. Routh’s sister described Routh as being in a state of psychosis; alarmed, she phoned the authorities.

Law-enforcement officers eventually caught Routh and arrested him. Police video from before Routh’s arrest show Routh telling officers that “Anarchy has been killing the world. I don’t know if I’m going insane. Is this about hell walking on earth right now?”

In many cases, the “when” in a criminal case is still up to the Prosecutor

Published on: February 12, 2015 | 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?”

A criminal defense attorney was recently admonished by a District Court judge for seeking to have a motion heard.

“The District Attorney controls the docket,” the judge told the attorney, meaning that if the attorney wanted to have her motion heard, she would have to get the District Attorney to call the case.

Until about twenty years ago, prosecutors in North Carolina had the authority to set the criminal court calendar. Then, in the wake of a lawsuit brought against then-Durham County prosecutor James Hardin, Jr., Simeon v. Hardin, 451 S.E.2d 858 (N.C. 1994), the State legislature removed some prosecutorial authority in setting criminal calendars.

In the Simeon case, the complainants alleged that the district attorney held them in jail in an effort to coerce guilty pleas, listed cases on the court calendar even though he had no intention of calling them, and failed to call cases on agreed-upon dates, even though witnesses had flown in at considerable expense, according to a treatise on prosecutorial docket control published by Andrew Siegel in 2005. These tactics forced defense counsel to engage in “unnecessary and repetitive case preparation,” and—the complainants alleged in Simeon—the district attorney “used control of the docket to punish disfavored defense counsel and to extract pretrial punishment[.]”

Legislature wants extra jail time for any “nefarious drone enterprise”

Published on: February 10, 2015 | On behalf of Arnold & Smith, PLLC

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

Incidents involving drones are on the rise, and state legislatures are not waiting for the Federal Aviation Administration or the United States Congress to act on promulgating comprehensive civil and criminal rules on the unmanned aircraft.

One state—Washington—is seeking to add to its criminal code a provision allowing prosecutors to allege a “nefarious drone enterprise” if drones are used in other crimes “from running drugs to scoping a house for robbery,” according to the San Francisco Chronicle. If it is proven that a criminal used a drone in connection with a criminal enterprise, an extra year in prison can be added to the criminal’s sentence.

Sen. Pam Roach, who is sponsoring the legislation, said the state needs to get ahead of the curve on a quickly emerging technology that is making “advanced, affordable personal-use unmanned aircraft” a reality. Unlike twenty other states—including North Carolina—the State of Washington has not issued any restrictions on drone use in the state.

University of Washington law professor Ryan Calo observed that the bill was tightly focused, adding “a year to the sentencing range that dictates how judges can punish an offense.” Calo wondered, however, whether the underlying offense was actually any worse simply because a drone was employed. “It would be like saying the crime of assault is different if it’s done with a hammer,” Calo said.

State legislature reshaping criminal code in wake of legalized marijuana use

Published on: February 5, 2015 | 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?”

The Washington State legislature is considering changes to the state’s criminal code that would dramatically alter the manner in which marijuana-related crimes are prosecuted in the state.

Under a bill sponsored by Republican State Senator Ann Rivers, most marijuana-related crimes would be reduced from felonies to misdemeanors. Voters in Washington legalized the recreational use of marijuana in a statewide referendum in 2012.

Seattle’s city attorney John Schochet said he wants the possibility of jail time for “lower-end violators” eliminated. He likened minor offenses to buying a bunch of beer at Costco and selling it out of the trunk of his car. If he sold enough marijuana in that fashion, he could be subject to a felony trafficking charge.

Attorneys like Schochet and city attorney Pete Holmes want to eliminate criminal penalties for sharing marijuana. As it stands, it is a felony to give any amount of marijuana to a friend, according to the Seattle Post-Intelligencer.

Schochet and Holmes also want to see criminal penalties lessened and removed for users who make their own “homegrown” weed. Under current law, it is illegal to grow one’s own marijuana in Washington. In other states that have legalized marijuana use, growing a small amount of marijuana for personal use is permitted. In Colorado, for instance, it is legal for individuals who are 21-years-old or older to grow as many as six plants, as long as they are kept in an “enclosed, locked space.” Alaska also allows users to grow up to six plants, while users in Oregon can grow as many as four plants and can legally possess as many as eight ounces of usable marijuana.

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.”