Charlotte Criminal Lawyer Blog

North Carolina’s Racial Justice Act Poised for Repeal

Published on: June 20, 2012 | On behalf of Arnold & Smith, PLLC

According to a recent article by WRAL, the North Carolina Racial Justice Act appears to be headed for repeal. SB 416, known as “An Act to Amend Death Penalty Procedures,” was passed by the North Carolina House of Representatives last week by a vote of 73-47, a veto-proof majority. More recently this bill was passed by a 30-18 vote in the state Senate. Now it is being presented to Gov. Beverly Perdue. This bill would significantly alter the Racial Justice Act as it appears today.

The Racial Justice Act, an important piece of legislation enacted in 2009, allows North Carolina death row inmates to reduce their sentences to life in prison without parole in certain circumstances. Post #1 criminal image 6.19.jpg Inmates must show that race played a substantive factor in “decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.” The law is controversial because it permits an inmate to challenge his or her sentence based on widespread racial bias instead of having to prove that there was discrimination in his or her particular case.

SB 416 will try and change all that. By limiting the use of statistics in proving widespread discrimination, the new bill aims to dramatically scale back the reach of the Racial Justice Act. The bill would allow inmates to present statistics only for the county or judicial district where the crime was committed, rather than statewide. Statistics will also be limited to a period of 10 years before the crime and two years after sentencing. Finally, statistics will not be enough to prove racial bias, defendants will have to show other evidence.

“This bill guts the NC Racial Justice Act, plain and simple,” Scott Bass, director of Murder Victims’ Families for Reconciliation, said in a statement. “This bill is an attempt to sweep that evidence under the rug by allowing the state to ignore mountains of statistics pointing to the pervasive and disturbing role that race plays in jury selection and sentencing,” said Sarah Preston of the ACLU of North Carolina. “We cannot turn our backs on such evidence, as this bill seeks to do.”

Portable Breathalyzers, are they worth the money?

Published on: June 14, 2012 | On behalf of Arnold & Smith, PLLC

As a general rule, it’s a good idea to refuse a breath test if you ever find yourself pulled over on suspicion of drunk driving. The reason is that the breath test results often form the crux of the state’s DUI case against you. A breath test that indicates a BAC greater than .08 makes a difficult case to defend that much harder. Some people think they can avoid this trap by purchasing pocket breathalyzers. These devices, ranging from $10 to $300, are advertised as means of allowing you to test yourself before driving home.

Recently, one news organization put one such Breathalyzer, the BACTrack S80, to the test. The $150 device is advertised as providing “professional accuracy at an affordable price.” Post #2 criminal image 6.14.jpg The organization conducted a controlled experiment to determine just how accurately the device measured a person’s BAC. The test also served as a training exercise for officers to help them recognize signs of an impaired driver.

Four women and one man were served measured amounts of alcohol designed to bring their BAC close to the .08 legal limit. The participants self-assessed the amounts of alcohol served; guessing that they were given the equivalent of two or three drinks a piece. After each round of drinks, the participants were asked to blow into both the police breath test device and the BACTrack S80. Almost every time, the BACTrack S80 device had a lower number than the police authorized device. Overall, the BACTrack S80 consistently registered lower blood alcohol levels than police Breathalyzer device.

This difference was most pronounced after the first round of drinks, which could lead to a false sense of security. Believing that his BAC is lower than it really is, a person may choose to drink more than otherwise planned, causing him to be more intoxicated than he intended or believes himself to be. Or, given the false sense of security of having a low Breathalyzer number, he may decide to drive despite actually being impaired.

One of the officers who helped conduct the test stressed that the number itself was not important. The number is more of a proxy of impaired driving rather than proof of impaired driving. Officers look first for actions such as inability to maintain a driving lane as proof of intoxication. If a person is caught driving in a manner that indicates he’s impaired, he will get pulled over.

Supreme Court to decide issue of cruel and unusual punishment for teens

Published on: June 12, 2012 | On behalf of Arnold & Smith, PLLC

A few months back the Supreme Court heard arguments surrounding two new cases up for review. Both involved the question of just how severe a penalty imposed on a juvenile offender must be before it is declared unconstitutionally cruel and unusual.

The first case, Miller v. Alabama, involved a 14-year-old in Alabama who beat an older man to death and subsequently burned his house down. Evan Miller, the teen, and a friend stole a collection of baseball cards and $300 from a neighbor. They attacked the man with a baseball bat, and killed him when they set fire to his home. Post #1 criminal image 6.12.jpg The second case, Jackson v. Hobbs, involved another 14-year-old boy in Arkansas who, along with two older boys, tried to rob a video store in 1999. One of the older boys involved in the robbery shot and killed the store clerk as he was going to call the police. Both Mr. Miller and Mr. Jackson received mandatory sentences of life without parole for murder.

Proponents for harsh penalties point to the “sanctity of life” as the reason a juvenile should be sentenced harshly for crimes involving killings. Their age should not be an excuse for punishment given the severity of their crimes. However, in oral arguments, Justice Ginsburg turned the argument around, noting that the same interest in the sanctity of an individual’s life could be used as justification for not severely punishing young offenders. By imposing a life sentence without the possibility on a 14-year-old, the state has essentially thrown away that person’s life.

Those opposed to handing down such harsh sentences believe that teenagers are immature and should be given a more lenient punishment because of that inexperience. While they acknowledge a life sentence is appropriate in such heinous situations, they believe that tacking away even the hope of parole is a step too far for such young criminals. Proponents of harsh punishment worry that teens have less incentive to commit such crimes in the future if they know that all they have to do is claim immaturity when they’re caught.

Supreme Court issues important plea-bargaining decision

Published on: June 7, 2012 | On behalf of Arnold & Smith, PLLC

Many cases are resolved with a plea bargain long before they ever reach the courtroom. Plea bargains are important to prosecutors because they help efficiently clear dockets and allow them to prosecute more cases. They can also be beneficial to defendants by possibly allowing them to serve a lesser sentence than what the state would ask for during trial. However, a plea bargain can only be effective if the defendant is aware that this is an option in the first place.

In a 5-4 decision, the Supreme Court ruled that defense lawyers must inform their clients of any plea offers and give competent advice about whether to accept them. Post #2 criminal image 6.7.12.jpg To do otherwise would violate the 6th Amendment right to effective assistance of counsel.

The two cases before the court involved a man in Missouri who pleaded guilty to driving without a license, and a Michigan man who was convicted of assault and attempted murder after following his attorney’s advice and rejecting a plea bargain.

In the Missouri case, Galin Edward Frye was arrested for driving without a license for the fourth time, which in that state is a felony. The prosecutor offered two deals, including one that involved pleading to a misdemeanor and a three month recommended sentence. Frye’s attorney never told him about the offer and this ultimately led to him entering a guilty plea and getting a three-year sentence.

In the Michigan case, Anthony Cooper repeatedly shot a woman and was charged with four counts, including assault with attempt to murder. The prosecutors offered a plea deal where two of the charges would be dropped and Cooper would serve a maximum of 85 months in prison. Due to advice from his attorney, Cooper rejected the deal and was sentenced to a maximum of 30 years in prison.

North Carolina’s “Stand Your Ground” Law In Question

Published on: June 5, 2012 | On behalf of Arnold & Smith, PLLC

Police in Florida are waiting for George Zimmerman to turn himself back into the police after his bail was recently revoked for lying to the judge in the case with regard to his finances. Zimmerman also withheld the fact that he possessed a second passport.

Zimmerman maintains he was defending himself against an attack by Martin on the night of the shooting and has used Florida’s “Stand Your Ground” law as his defense. At the same time, one North Carolina lawmaker moved a bill forward this week that would alter a similar law in existence here.

State Rep. Rodney Moore wants to limit a new North Carolina law that expands the set of circumstances where a person can justifiably shoot and kill an intruder when he or she feels seriously threatened. Post #1 criminal image 6.5.12.jpg The law in the state currently says people are not limited only to their homes, but can shoot those in their cars or workplaces. Moore believes the law as written is too broad and that it could lead to racial profiling and incidents similar to the Trayvon Martin shooting.

Moore said that, “If you make a decision to take a life, there should be some type of inquiry or investigation.” Moore’s bill would ask that automobile and workplace language be stripped from the law.

Supporters of the North Carolina law have said it clearly states where and when deadly force is appropriate, leaving very little open to interpretation. Moore’s bill is currently before the House Judiciary Committee awaiting review.

Former FBI Agent’s Report says Convict Should Get New Trial

Published on: May 31, 2012 | On behalf of Arnold & Smith, PLLC

A former FBI agent has come forward to tell the authorities Kalvin Michael Smith should be given a new trial because the initial investigation into his case was seriously flawed. The agent’s name is Chris Swecker and he is the former assistant director of the criminal investigative division at the Bureau. He told reporters at a press conference that the detectives who testified in court did not do so truthfully. Further he said that they failed to properly document potentially exculpatory evidence and that they failed to pursue other promising suspects for the 1995 beating of Jill Marker, for which Smith was convicted.

Swecker’s harshest critiques were reserved for Don Williams, the lead investigator in the Marker case. Post #2 criminal image 5.31.12.jpg He thought that Williams was disorganized and not prepared for the daunting task of investigating the tragic incident. Williams, of course, defended his work on the case.

The assault happened back in 1995 where the victim, Jill Marker, was a manager at the Silk Plant Forest store. Marker was severely beaten while she was working in the store. At the time of the assault she was pregnant. Fortunately, both she and her baby survived the beating, though Marker is now severely brain damaged and requires constant care. Smith was convicted of attempted murder in 1997. He has since exhausted all of his state appellate remedies and is now pursuing appeals through the federal system.

Smith’s supporters formed a group called the Silk Plant Forest Truth Committee and hired Swecker to do an independent review of the case. After an exhaustive investigation, Swecker produced a report that criticized the investigation and its focus on Smith. Specifically, Swecker found that two other suspects – Michael Fuller and Kenneth Lamoureux – were never seriously considered by the police when Swecker thought they were excellent candidates for the beating. A witness placed Lamoureux at the scene on the night that Marker was beaten and witnesses have said that Marker rebuffed Lamoureux’s romantic advances, which made him angry.

Fuller was identified as the driver of a car that was outside of the plant that evening. Detective Williams tracked him down and tried to interview him, but Fuller refused to answer any of Williams’ questions. Swecker believes that both Lamoureux and Fuller were dropped as suspects when they both retained the services of lawyers.

Despite Critics, Electronic Monitoring is a Success in Charlotte

Published on: May 29, 2012 | On behalf of Arnold & Smith, PLLC

The use of electronic monitors as an alternative means of punishment in Charlotte is about to expand, despite the growing amount of negative media attention the program has received. The program costs taxpayers $35,000 a month and even though a few unruly participants have decided it was better for them to cut off their monitors and run, the police have faith that the program is a good one and that it is working. It started back in 1997 and it is being expanded to cover more crimes and therefore more defendants.

Police believe that the program serves several purposes. Electronic Monitoring Device.png It is a crime-solving tool, it is a means of deterring particularly young offenders, and it helps to prevent unnecessary jail/prison overcrowding for minor offenses. There is also the added benefit of being able to map out where crime is taking place based on the location of the monitors, which, according the police, outweighs the occasional “monitor-cutters on the run.”

Most of the defendants that the police are monitoring are those who have been charged with robbery or burglary, but the police have also been fitting domestic violence and sexual assault offenders with such monitors as a means of making sure that they stay far away from their victims. “Police can use the monitors to establish zones where the offender cannot go. If he or she crosses into that area–usually a set distance from the victim’s home or workplace–the monitor will alert the police.”

The program provides the police with a detailed alert of criminal activity and the location of the monitored individuals at the time of the crime. When someone reports a crime, the time and location of that crime is noted. If someone who is being monitored is within a set distance from that location of criminal activity, the police are alerted. The police have been receiving nearly 30 pages of alerts per day. Police say that it is just like any other investigative tool. It produces a lead, which then requires that the police conduct an investigation to prove whether the person being monitored was actually involved in the criminal activity.

Charlotte Gang Members Now Face Racketeering Charges

Published on: May 22, 2012 | On behalf of Arnold & Smith, PLLC

Criminal gangs have become a nation-wide problem. What used to be an issue that was confined to the streets of Los Angeles, New York and other very large cities is now something that law enforcement agencies across the nation have to tackle. Charlotte, North Carolina has a thriving gang culture and now after a two-year investigation, one of those gangs has taken a major hit.

According to a recent report by WCNC.com, the United Blood Nation (also simply known as the Bloods) have fallen victim to a federal, state, and local investigation and 27 of its members are now either currently incarcerated or are facing charges. gangs picture.png They have been federally charged with being a part of a racketeering enterprise involving drugs, murder, and robbery. Specifically the indictment charges that the members of the gang conducted a drug trafficking operation and the proceeds from that were used to finance other criminal activities. The U.S. Attorney indicated that the Bloods committed a string of armed robberies and home invasions and then attempted to conceal their crimes by intimidating the witnesses to the crimes.

Some part of the investigation must have involved a listening device or an informant. The indictment alleges that the Bloods met regularly to discuss important business. During those meetings they discussed who they thought was cooperating with the police and what was to be done about those individuals. There were also planning meetings for the next major criminal act.

Convicted Charlotte Cop-Killer’s Appeal Denied

Published on: May 17, 2012 | On behalf of Arnold & Smith, PLLC

An appellate court in North Carolina has denied the appeal of a man who was convicted of killing two Charlotte-Mecklenburg Police Department officers, according to a recent report by WBTV News in Charlotte. The man is Demeatrius Antonio Montgomery and in 2010 he was found guilty of the first-degree murder of Officers Sean Clark and Jeff Shelton. The murders occurred three years earlier in 2007 at the Timber Ridge Apartments in East Charlotte.

After being found guilty, Montgomery was sentenced to two consecutive life sentences. His new attorneys, however, appealed his murder conviction in 2011, asking the court to overturn the convictions for several reasons, the most prominent of which centers on Montgomery’s mental competence. Post #2 criminal image 5.17.12.png After considering the issues on appeal, the appellate court denied the defense’s request, saying that Montgomery’s claims were without merit and that the trial court’s decision was correct. Montgomery’s attorney, Andrew DiSimone, says that he is currently considering the possibility of filing an appeal with the North Carolina Supreme Court.

Montgomery’s competency issues arose during his original trial. On three separate occasions Montgomery moved to have the court declare him incompetent to stand trial. The first two motions were denied by the presiding judge and the third motion was withdrawn after the district attorney agreed to take the death penalty off of the table. The defense presented testimony from expert witnesses who spoke about Montgomery’s silence and refusal to participate in his own defense: however, the appellate court found that Montgomery’s silence was likely the result of his own choosing.

Although is it not usually discussed, competency to stand trial is a very important issue in some criminal trials. If an attorney is dealing with a defendant with a history of mental illness, it may be beneficial for the attorney to seek a determination of whether the defendant is legally able to assist in his or her own defense.

North Carolina law on competency reads as follows: “No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist his defense in a rational or reasonable manner.”

Federal Appeals Court Revisits North Carolina Terrorism Case

Published on: May 15, 2012 | On behalf of Arnold & Smith, PLLC

Justices at the Fourth Circuit Court of Appeals are looking into whether Mohammad Hammoud should be given a new trial or a new sentencing hearing. Hammoud was convicted of supporting a terrorist organization. The prosecution in his case claimed that he participated in a cigarette smuggling ring and sent the proceeds of the illegal operation to Hezbollah, a militant organization that the United States has identified as a terrorist organization.

Hammoud’s attorneys deny that he is a member or supporter of the organization. They concede that he sent the group money, but the money was sent to a branch of the organization that provides social services, not to the branch that carries out militant terrorist attacks. Post #1 criminal image 5.15.12.jpg Stanley Cohen, Hammoud’s attorney, believes that the sentence he received is disproportionate to the crime. Initially, Hammoud was sentenced to 155 years in a federal prison, but a federal judge reduced that to 30 years after finding the sentence grossly disproportionate. The reduction did not seem to appease either the prosecution or the defense.

Federal prosecutors are seeking a new sentencing hearing, believing that the 30 year sentence Hammoud received was too lenient. They are requesting that he be sentenced to life in prison. Cohen, on the other hand, believes that cases with similar facts as those to Hammoud’s case should set the standard for his sentence. Other cases similar to his have resulted in four or five-year sentences. There is also new evidence that has been discovered which suggests that Hammoud may have been telling the truth about not being a card-carrying member of Hezbollah. The prosecution, of course, disputes this new evidence as well as the comparison to similar cases, asking that Hammoud’s case be evaluated alone and that the sentence given be based on his actions and his prior convictions and not on how his case measures up to other similar fact patterns.