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Short Reports
What Are The Common Drug Offenses In North Carolina?
11/05/2020I live in a college community, so I see a lot of lower level drug offenses, like marijuana possession. Many students and other people are charged with simple possession offenses, where the person is accused of possession a quantity of drugs most likely for personal use. While that is a common offense, I represent a lot of people charged with more serious drug crimes. Sometimes, that is because the drugs are for personal use, but the client is overcharged. Other times, the evidence supports a conclusion that there is a larger, or distribution, amount of drugs involved. How Is A Drug Charge Determined To Be Either A Misdemeanor Or A Felony? State and federal statutes define drug offenses and designate the offenses as misdemeanors or felonies. In federal courts, misdemeanor offenses carry punishments of up to a year. In general terms, felonies carry a greater potential punishment than misdemeanors. There are exceptions to that rule depending on the type of offense and the criminal record of the person accused. In North Carolina, state court sentencing is different than federal court sentencing and most misdemeanors do not expose the individual to a sentence of a year in jail. The most prominent exception is that the maximum penalty for a misdemeanor driving while impaired charge in North Carolina is three years. Felony charges carry maximum sentences much longer than the person risks under normal circumstances. The exception is where the accused has a significant criminal record. How Is Possession, Sale And Distribution Of Drugs Defined In North Carolina? Each offense is defined by statute. A person possesses drugs when he is in actual or constructive possession of the substance. An example of actual possession is when the person has the drugs in his hand or pocket. Constructive possession means that the person has the ability and the intent to control the drugs. Ability without the intent would not be constructive possession. Nor would the intent without the ability to possess the drugs. In other words, the drugs may be in the trunk of someone else’s car, but if you have knowledge, access and the intent to possess the drugs, you would be in constructive possession. The sale of a drug is the transfer of a drug for some form of payment. Distribution does not require payment sharing drugs can be evidence of distribution. The intent to distribute is often an issue in dispute. The evidence of intent to distribute may include the weight or number of units and the way the drugs are packaged. A small amount of drugs packaged in multiple bags may be evidence of intent to distribute. The decision to charge someone is based on a number of factors, including the amount, the way the drugs are packaged, and what the person was doing at the time they were charged. Can Police Conduct A Warrantless Search If They Suspect The Presence Of Drugs? There is no drug exception to the warrant requirement. Suspicion that a person possesses or deals drugs does not create an exception to the constitutional requirement to obtain a search warrant before searching. There are limited exceptions, however, to the requirement that investigators obtain a search warrant before conducting a search. Those exceptions include the consent to the search by the person in control of the premises or property, exigent circumstances that justify entry into property to protect a person or avoid the destruction of evidence, and searches pursuant to a lawful arrest. If an officer finds drugs or paraphernalia in plain view during a lawful investigation, it may justify a search or support a warrant to conduct a search. Can A Passenger Be Charged as Well If Drugs Are Discovered In the Vehicle? Certainly, a passenger may be charged if investigators find drugs in a car. In fact, that is common. At the same time, a charge does not mean that the officer has sufficient evidence to support the charge. Without more, mere presence as a passenger in an automobile where drugs are discovered is insufficient to support a conviction. A passenger may not be off the hook, however, if other evidence connects the passenger to the drugs. If the drugs are under the passenger seat and the police officer sees the passenger fiddling with the bottom of the seat, this additional evidence supports an argument that the passenger was aware of the drugs and in constructive possession. In general, the answer to the question is yes. The state or government would need more to sustain a conviction than evidence that a passenger in a car or guest in another person’s home was present when drugs are discovered. For more information on Drug Offenses In North Carolina, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (919) 967-0504 today.
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Short Reports
How Often Do You Tend To Take Criminal Cases To Trial?
11/05/2020It’s really hard to say how often I tend to take criminal cases to trial. I think that criminal trials tend to come in waves. I’ve certainly had years where I’ve tried 10 cases, and I’ve never had years where I’ve tried none. But it’s important to know that there are all levels of trials, just like there are all levels of cases. In smaller, less serious cases, it’s quite common to have trials. The more serious cases come less often because, frankly, there are fewer of them. There are many more people who get speeding tickets than there are people who get charged with first degree murder. So, it’s not as common to be on trial in those types of cases unless you have a really high volume practice, which I don’t. Do A Lot Of Defense Attorneys Avoid Taking Cases To Trial? It’s really hard to make a general statement regarding the frequency with which defense attorneys avoid taking cases to trial. There are certainly lawyers who try more cases than others, and some lawyers who have never tried a case. I think it has a lot to do with the type of practice that a person has, as well as the number of cases they have. This is because there are only a number of cases that are going to go to trial the fewer you have, the less often you go to trial. Ultimately, it should be the client’s choice with the advice of the lawyer. But the advice we give must be based on the objectives of the client, and most clients want to survive. Their objective is to survive. There are times when they really want to take their case to trial, and our job is to lay out the upsides and downsides of doing that in order to help them make an informed decision. What Factors Do You Consider When Deciding Whether To Take A Case To Trial Or Not? When deciding whether or not to take a case to trial, the factors that I consider are case-dependent. With that being said, advising a client to go to trial is easiest when they have very little to lose. Those types of situations come in two forms. The first is a terribly serious case in which there is no possible alternative resolution. In other words, if you are facing life in prison and the only plea offer is life, then it’s an easy decision to go to trial. The opposite is true as well. If you are charged with a lower level offense, the state won’t agree to an alternative disposition, and you are not running the risk of going to jail, then it’s an easy decision to take the case to trial. The truth is that most cases are somewhere in the middle, and there is usually an upside and a downside to each decision. Those are the more difficult decisions and really it depends on the client. What is the client going to lose if he loses the trial, and what does he gain if he wins the trial? What is the person’s prior record? If the person is convicted, will he be on the sex offender registry? There are so many questions that need to be considered that it’s just really hard to narrow it down. There are certainly motivating factors or rewards for entering a plea, and the person has to consider how much time they are shaving off of the potential or likely jail sentence by pleading guilty. That’s quite common in federal court because there are three points for accepting responsibility, which can amount to a lot of time taken off of a prison sentence. Do Most Clients Have A Clear Understanding Of What A Criminal Trial Is And When It Should Be Used? Unless people have prior experience with criminal trials, a lot of their understanding of the process is incorrect. For example, many people aren’t aware of the length of time that it takes to get a case to trial, how much investigation or preparation goes into preparing a trial, and ultimately how expensive it is to go to trial. It’s not cheap to defend a case by trial. It takes a lot of time, money, and investigation. Most people have no way of knowing what to expect. Part of our job is to help them understand- from the very beginning- what the process is going to be like. Can You Walk Me Through The Process Of A Typical Criminal Trial? The first thing that happens in the process of a typical criminal trial is a pretrial motion phase. This is where the judge would hear motions related to evidence and procedural details. Sometimes those are settled before trial, but oftentimes they are deferred instead. The second thing that happens is a jury selection. In North Carolina, lawyers participate in jury selection, and they can last anywhere from an hour to weeks depending on the type of case. After the jury is selected, there are opening statements and evidence. At the end of the evidence, the judge will determine the instructions that the jury will get. There will be closing arguments followed by time for the jury to deliberate. So, that’s a brief synopsis of almost every case, from traffic tickets to first degree murder. Depending on the type of case at hand, some portions of the process will take longer than others. Is It Affordable For Someone To Take A Criminal Case To Trial? It can be affordable for someone to take a criminal case to trial. Oftentimes, it’s actually the same cost to go to trial as it is to enter a plea. This is because many lawyers- including myself- charge a flat fee, which means that we establish at the very beginning of a case the amount that it will cost. If a lawyer does not charge a flat fee, it does cost more to go to trial. In both cases, however, there are additional expenses if the defense needs to hire investigators or experts to testify. In fact, it’s increasingly common to have digital forensic experts involved. For more information on Taking Criminal Cases To Trial, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (919) 967-0504 today.
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Short Reports
How Is A Sex Crime Determined To Be A Misdemeanor Or A Felony
11/05/2020Sexual battery is the only misdemeanor sex crime in North Carolina. That does not mean a person accused ofa felony sexual offense will not be convicted of another misdemeanor. All other sexual assaults, or sexualcrimes, are felony offenses and carry very severe penalties. Those penalties include the risk of a prisonsentence and registration as a sex offender. Anyone convicted of a sexual offense is required to register as asex offender, including a conviction for misdemeanor sexual battery. In addition, federal sex crimes can have broad interpretations. The sexual offense we see most often infederal court involves allegations of possessing child pornography and soliciting underage people for sexacross state lines. Increasingly, the government prosecutes sex trafficking offenses, as well. The sex offenses in state court are more likely to include actual contact, like unwanted sexual touching, rape,and the allegations of contact with children. The state prosecutes some child pornography offenses, butoften defers to the federal government in those cases. Does Hiring An Attorney Prior To Arrest Make Someone Look Guilty? That should not matter. A person facing an investigation should be represented by a lawyer. That is especially true when a sexual allegation is involved because the ramifications are so significant. These allegations ruin reputations, families, and careers. All it takes to initiate an investigation is an allegation. Any person under investigation will know a lot less about the allegations than the investigator, which puts the person at a dangerous disadvantage. Why would you not want the insight and advice of someone experienced in dealing with investigators? You need someone who prepares you for all possibilities, including being charged with a devastating offense. The idea that you look guilty to an investigator does not matter, because the investigator has reached conclusions before requesting an interview, most likely. If the investigator has sufficient evidence to charge you, the investigator will seek warrants whether you submit to an interview or refuse an interview. It is rare for a person to talk an investigator out of a charge, but common to create problems during an interview. Hiring counsel to help you make these decisions may be the difference between making a critical mistak eand protecting the strength of your defense. How Often Do Accusers Recant Allegations Of Sexual Offenses Committed Against Them? The prosecutor represents the state or the government. The accuser cannot control the outcome of the case, but has a lot of influence over the way the prosecutor approaches the case. When it comes to sexual offenses, prosecutors give the accuser even greater discretion on how to proceed. When accusers recant or express reluctance, the prosecutors consider their wishes very carefully. It is quite common to resolve sexual offenses based on an agreement with the accuser. They do not control the outcome in every situation, but most prosecutors are reluctant to proceed in sexual assault cases without the support of the accuser. For more information on Misdemeanor Vs. Felony, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (919) 967-0504 today.
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Practice Guides
Immigration-Criminal Convictions
11/05/2020Several years ago, Atul Gawande published a book called The Checklist Manifesto. Gawande is a surgeon, public health researcher, and prolific writer. The premise of his book is routines and habits help prevent errors, and checklists encourage compliance with routines and habits. Without written reminders, doctors overlook important steps, just like anyone else. I am a checklist lawyer. My office uses checklists, forms, or guides for almost everything, including our initial interviews, our preparation, and during trials. Still, I worry everyday about overlooking something. That sense of dread came to mind when I read United States v. Murillo, 927 F.3d 808 (4th Cir. 2019) last summer. The Court in Murillo reaffirmed what was well established: we must explain to our clients any immigration consequences of their plea decisions. Id. Equivocal warnings are not enough. Id. Fairly often, we represent people who are not citizens. Most have some form of documentation: professors with green cards, professionals with temporary visas, or students with a study visa. Long ago, we added a citizenship question to our initial interview form. We consult with immigration lawyers regularly. Yet, I need regular reminders of the impact particular plea decisions have to my client’s immigration status. We created the enclosed guide to assist us during those situations. It includes relevant statutes and a general explanation of the law. Although it’s no substitute for research tailored to the facts of your particular case, we hope it serves as a quick resource. (You can download a more extensive report from our website.) We represent people accused of criminal offenses and professional misconduct who risk losing everything. We work to get them their best results and back to leading productive lives. Let us know if we can ever assist you or your clients. Download Immigrations Guidelines (PDF) Download Seven Questions Non-Citizens Facing Criminal Charges Should Ask (PDF)
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Short Reports
Inadmissibility Or Ineligibility For Admission to The US
11/05/2020Occasionally, I run into a classmate who surprises me. Some people live up to our expectations, especially the extremely talented or extremely troubled. Others surprise us. A couple years back I reunited with an old friend. Growing up, he was quiet, shy and unlikely to stray far from Eastern North Carolina. I was not surprised he became a construction manager. I was shocked, however, to learn he took a position as a safety inspector in the Middle East. Originally, my friend was attracted to the extra pay. (I assumed it was hazard pay, given all the problems over the last twenty years.) As it happened, he fell in love with the people. The one thing that stood out to me was that almost everyone he encountered was fascinated by the United States. And, most wanted to move here. During my twenty-eight years of practice, we have experienced peace and prosperity, terrorist attacks on United States soil, and recessions. Now we are in the midst of a pandemic, deep political divisions, and protests to police tactics. Still, my clients from other countries almost all want to stay in or have the option to return to the United States. Next to deportation, the ability to reenter the United States is their most pressing concern. “Can I come back after visiting family for Christmas?” “What happens if I am transferred back home for a while?” The answers to are not always clear. In fact, these questions are often more difficult to answer than whether a particular plea results in removal. Usually, we consult an immigration lawyer. Nonetheless, we created a guide to reference for these questions. It helps us advise our clients about what to expect or, at least, the questions they should be asking. We included a copy for you and hope you find it helpful. If we can help you in any way, don’t hesitate to call. Download Practice Guide (PDF)
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Practice Guides
Use of Deadly Force
11/05/2020Several years ago, I was driving my son home from a basketball practice. We pulled off an exit ramp and passed a couple women attempting to change a tire. Something struck me, and I pulled over to help. My preteen son’s response: “what are you doing? don’t you know how it ends?” Now, I’m no hero. Over the years, I have driven past plenty of people stopped on the side of the road. It’s easy to rationalize: "I'm late, help is on the way, stopping isn’t safe, or everyone has a cell phone.” Those reasons are valid much of the time. That night, though, it took me fifteen minutes to replace the damaged tire with a spare. Whatever my motivation, it had more to do with impulse than any well-considered altruism. Over the last few months, I have had a number of reasons to consider how we respond to people in crisis or facing real or imagined danger. The issues are relevant following the deaths of Ahmaud Arbery and George Floyd. I wonder about the thoughts of people, civilian and professional, who witnessed these events live. What influenced their decisions? Why did they act or fail to act? How would I defend them? In February, I tried a first-degree murder case that raised similar questions. My client was accused of killing his sister’s boyfriend. She testified that he killed her boyfriend without any justification. My client testified that he saw the boyfriend choking his sister. The sister conceded, however, that her boyfriend did not want her to leave the house and took steps to stop her. While reviewing John Rubin’s book, The Law of Self-Defense in North Carolina, we decided that testimony could justify an instruction on the crime prevention privilege. Although rarely applied, the defense is supported by good law. With some reservations, our judge submitted an instruction he drafted. I am including portions of the instructions in the attached practice guide. I hope the information is helpful to you. I certainly believe the instruction on the privilege played a part in my client’s acquittal. Please call if we can ever assist you around Chapel Hill or in Federal Court. Download Practice Guide (PDF)
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Newsletter
Sometimes being kind beats being right
10/30/2020A mentor of sorts told me the story of his relationship with his brother. They were close in age and fierce rivals while growing up. They competed at everything. They were not violent, but argued every point. Neither gave ground to the other in making their cases. It continued throughout their childhoods until my mentor left for college. After that, he returned to his family home only for holidays and vacations. Of course, the desired conclusion is that he and his brother missed each other desperately, called regularly, and realized they were best friends. Early in his career, my mentor had a conflict with a colleague. The colleague was a valued member of their team, but had an abrasive personality. My mentor was reserved, cordial and principled. In this particular dispute, he had the support of his team and the security of being right. As he prepared to confront his colleague, a more experienced co-worker quizzed him about his intentions and objectives. My mentor described his argument, explained why it was correct, and provided independent support for his position. "Yes," his co-worker said, "but what do you expect to accomplish?” When my mentor was unable to provide any substantive goal, his co-worker offered a piece of advice: "sometimes being kind beats being right." My mentor thought of his brother immediately. They had not stayed in close touch. In fact, they rarely talked and almost never saw each other. Neither despised or wished ill upon the other. They just put little effort into the relationship. He wondered whether more kindness and less righteousness would have changed that. In the coming days, our votes will determine the next President of the United States and many other important offices. If we were to venture from our bubbles, we would learn that not everyone agrees with our views. Still, we should all vote our consciences. But, when it comes to our discussions, sometimes it’s better to be kind than right. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. If you are having trouble interpreting your conscience, I am happy to suggest a list of candidates. With a very kind heart, of course.
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Newsletter
Maybe it just makes the story better
10/23/2020Richard Riggsbee was a lawyer in Durham, and a character. For many years, he practiced with Bill Cotter, who is still a character. Bill is from Boston, a Vietnam Veteran, and a graduate of Duke Law School. Richard was from Hillsborough, a graduate of Hillsborough High School, and a former assistant clerk of court. In fact, Richard’s last degree was from Hillsborough High School. There was a time when lawyers could study law, sit for the bar exam, and earn a license to practice. According to Bill, Richard was the last lawyer licensed in North Carolina without graduating college, much less law school. On paper, they seem like an odd combination for a law partnership. Knowing them, it is hard to imagine a more suitable pair. When I first practiced criminal law in Durham County over twenty-five years ago, one or the other was often participating in, observing, or pontificating about whatever trial was occurring. They were smart, savvy, and entertaining. Each told his fair share of stories in smoke-filled lawyers’ lounges. Richard attended high school with a Hillsborough lawyer named Lonnie Coleman, who served as a district court judge late in his career. Lonnie would sometimes interrupt court to tell stories. During one such interruption, Lonnie bragged that Richard ran track in high school and was state champion in the mile. He explained that it was especially impressive because Richard ran the race barefoot. Afterward, Richard confronted Lonnie, “you know that’s a damn lie. I didn’t run that race barefoot.” Lonnie’s conceded, “I know, but it makes the story better.” In those days, fear, tension, and excitement surrounded any criminal term of court. Judges, lawyers, and clerks gathered in back rooms to drink coffee, smoke, and tell stories during breaks. Defense lawyers waited in the halls to hear about trials, offer advice, and lend support. People lost their liberties or lived to fight another day. Trying a criminal case is stressful, invigorating, and sometimes heartbreaking. We may cut years off our lives doing this work, but people like Richard, Bill, and Lonnie sure make it entertaining. I thought about them this week when I read concerns over “disinformation” on social media. I am at best a novice when it comes to social media. I look at my Twitter account, but don’t think I have ever Tweeted. I had a short stint on Facebook, but quit to avoid reading some of the unlovely posts by lovely friends and family members. So, I have trouble understanding the idea of “disinformation.” While we may be vulnerable, we have to assume some risks by participating. Can’t we trust our filters? One obvious purpose of social media is to make shit up or, at a minimum, add our individual spin--portray our children in the most positive light, call out the hypocrisy of our adversaries, and exploit differences with others. Even the truth is dispensed in partial batches. Can you tell the whole story in 280 characters? Professionally, Richard, Bill, or Lonnie followed the rules. I would be surprised to hear that they lied to opposing counsel, mislead the court, or did anything to undermine a client’s cause. At the same time, I never put much stock into a story they told to a room full of lawyers and cigarette smoke. We might relieve a little stress by taking that approach to social media. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. Richard died a few years ago. Lonnie purports to practice in Hillsborough. Bill Cotter practices law everyday in Durham. I would send him this message, but he doesn't have an email address.
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Newsletter
Can I keep the Booker Prize?
10/16/2020My friend Steve Freedman is a wonderful lawyer. For more than forty years, he worked as a public defender. Steve retired recently from working as an assistant capital defender in North Carolina. As a young lawyer, Steve was assigned a felony marijuana case. His client was a well-dressed, nice looking young man. Like most people, he was taller than Steve, and the prospective jurors could easily see him as jury selection began. Jury selection can be an intimidating experience. The lawyer has a short time to ask questions of complete strangers to decide who may be harmful to his client. Nothing is worse than prospective jurors who refuse to engage with you. Steve decided to determine first who might have extreme views about marijuana. He asked his first question. An awkward silence followed. Everyone stared. Nothing. As Steve started to follow-up, he saw a woman in the back row smile. A man on the front row chuckled. Others looked toward Steve as they began to laugh. As his embarrassment grew, he suddenly realized the prospective jurors were looking past him. Steve turned to see that his client was the only one who had raised his hand in response to the first question: “Who here has never seen marijuana?" The other day, I heard a news report about marijuana. I think it was on NPR, but can’t be sure. My memory is that twenty percent of Americans live in a state where they can smoke or consume marijuana without prosecution by the state. It’s still against federal law. None of that was relevant to my client who dug the marijuana from the landfill in 2000. He had much more than personal use and was treated as a drug trafficker, not a user. The story of exhuming the marijuana has its humorous aspects, but the consequences were very real. At that time, federal sentences were imposed within mandatory sentencing guidelines. After a series of steps to calculate a particular range, the judge was obligated to choose a sentence within the range. These guidelines are generally skewed toward harsh sentences and, frankly, verge on cruelty. In my first federal sentencing, the judge imposed a guidelines sentence of seventeen years for my client convicted of selling cocaine. The sentence was only slightly lower than my client's age at the time. In the case of my client who excavated the marijuana, Judge Tilley had little discretion, which resulted in a sixty-one month sentence. That’s over five years in prison for digging marijuana out of a landfill. But, something significant happened in 2005. In a case called United States v. Booker, the United States Supreme Court held that the sentencing guidelines are advisory, not mandatory. Booker is a complex decision, but for our purposes means that judges are no longer forced to impose a sentence within a particular range. I am confident the Booker decision has saved my clients dozens of years in prison since 2005. Last year, the advisory guidelines for a client in his seventies recommended a sentence substantially longer than ten years. Prior to the Booker decision, the sentencing judge would have been forced to impose this effective life sentence. The same judge who presided over the marijuana case, Judge Tilley, sentenced my client to sixty months. Maybe, it’s comforting to minimize the impact of the inner workings of the Supreme Court on our daily lives: hoisting a Trump flag, attaching a Biden sticker, protesting, speaking out at the school board meeting, or target practicing on Sunday afternoon. But, however you view the world politically, socially, or religiously, the Supreme Court’s decisions have dramatic consequences. Senator Diane Feinstein created a stir following Judge Barrett’s confirmation hearing by praising Chairman Lindsey Graham's management of the hearing and giving him a hug. (Does anyone appear to need a hug more than Lindsey Graham?) I guess there are several ways to view her expressions. One, she is a trader to a cause for embracing a man who presided over an unfair, undemocratic process. Two, she credited a hero who ensured that the Senate carried out its constitutional duty. Three, no matter how deep our differences, we are all Americans and should move to the next matter of business. Me, all I could think was that soon-to-be Justice Barrett’s judicial hero, Justice Scalia, dissented in Booker. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. The jury acquitted Steve's client.
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Newsletter
Will we learn everything from the Tweet?
10/09/2020About twenty years ago, a local Sheriff’s department intercepted a large load of marijuana. Originally, the Sheriff’s deputies got great publicity for their good work: photos before bales of marijuana and reports of the street value redirected. Eventually, everyone wondered what would happen to the marijuana. Well, about 4000 pounds went missing from an Army truck parked behind the Sheriff’s Department. The rest was buried in the landfill, which was too much for a worker at the landfill to keep secret. Word got out, along with a map of the marijuana’s location. As you can imagine, a few enterprising working guys saw an opportunity. They traveled in the dead of night, climbed past the landfill fence, and dug through the hard clay to convert a few bales for use as they were designed. Each explorer agreed to keep the portion he uncovered and disposed of it as he saw fit. I entered the story sometime later. As fate would have it, the men got caught, and I represented one man in federal court. My client’s trial was held before United States District Judge N. Carlton Tilley, Jr. Judge Tilley was appointed by President Reagan. Before his appointment, he followed an ordinary path to becoming a district court judge -- law clerk, assistant United States Attorney, United States Attorney, and private practice as a defense lawyer. That is where the ordinary ends. Judge Tilley's reputation as a trial lawyer was extraordinary. By all accounts, he was relentless in investigation, meticulous in preparation, and exacting in presentation. One fellow lawyer called him the finest trial lawyer he saw in a long career. Judge Tilley is no less precise in the way he presides over a trial. Most notably for today’s message are his rules about questioning witnesses under cross-examination. The Rules of Evidence allow lawyers to ask witnesses leading questions on cross-examination. Most lawyers read that to mean they can make pretty much any statement as long as it’s followed by the phrase “isn’t that true." Judge Tilley reads the rule differently. We can ask a witness “did you go to the store?” We cannot say, “you went to the store?,” even when the emphasis makes it clear the statement is intended as a question. It may sound inconsequential, but it’s a point of contention for some lawyers, who believe Judge Tilley limits their ability to thoroughly exam an adverse witness with leading questions. Judge Tilley responds that his parameters allow for leading questions, just not argumentative ones. Questions asked as interrogatories, instead of statements, result in more information and less argument. I thought of Judge Tilley while considering the response to Judge Amy Coney Barrett’s nomination to the United States Supreme Court and anticipating the upcoming hearings in the Senate. One headline read, “A Dream for the Right, A Nightmare for the Left.” A podcaster assured me that President Trump has negotiated a loyalty oath that puts Roe v. Wade and the Affordable Care Act in jeopardy. During Judge Barrett's confirmation hearing to the Sixth Circuit Court of Appeals, Diane Feinstein asked a nearly three minute long “question” that included the statement “the dogma lives loudly within you.” Twitter has been ablaze with short arguments from all sides. The hearings scheduled to begin Monday are incredibly important. Needless to say, I am concerned about the impact any new appointment will have on issues of criminal justice. There is no way to determine during a confirmation hearing what conclusion a Justice Barrett will reach on a particular issue in a particular criminal case. But we may learn something about her philosophy and approach. We won’t know whether or how the hearings influence the political process. But a sense that Judge Barrett is treated unfairly can’t possibly help her adversaries. Judge Barrett will not concede that she pledged loyalty to anyone or answer how she will decide issues related to abortion or medical care. But we may get some idea of whether or how she will respect precedent. One thing is certain. We will learn a lot more if the senators actually ask her questions. If they put them in the form of an interrogatory, even better. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. More about the trial later.
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Newsletter
Suggested amendments to Principle 1
10/02/2020Several years ago, a famous, extraordinarily successful trial lawyer sent me a book called How to Win Friends Influence People by Dale Carnegie. Over the years, I taught trial advocacy at courses the lawyer organized. He drew the students ordinary lawyers like me helped teach them. In his letter accompanying the book, the lawyer’s message was that Carnegie's principles are our stock and trade as trial lawyers. We are well-served to follow them as we select jurors, interact with courtroom personnel, and question witnesses. It seemed like an odd comparison. But, this lawyer has won hundreds of millions of dollars in jury awards and successfully defended scores of people charged with serious criminal offenses. It’s worth considering his advice on anything related to a court proceeding. I suspect most of you have heard of or even read How to Win Friends Influence People. It’s been in print since 1936. Carnegie's courses were the precursors to the ubiquitous online self-help courses available today. I have been thinking about his ideas after seeing Tuesday’s debate and reviewing responses from all sides to the news that President Trump tested positive for the coronavirus. In Part One, Chapter 1, Carnegie discusses the impact of criticism, complaints, and condemnation. His basic conclusion is that these approaches are “futile” and “dangerous” because they make people defensive and cause "resentment.” They cause us to lose the benefits of relationships. Principle 1 is “[d]on’t criticize, condemn, or complain." The problem is that none of us progresses without constructive feedback. Plus, we live in a world where we respond to messages, texts, and posts in seconds. We hit the thumbs-up or heart instinctually. Can we always be so careful? At trial advocacy trainings, students conduct mock trials. They select juries, make arguments, and examine witnesses. They pay to have more experienced lawyers critique their presentations so they get better and offer a greater service to their clients. The general method of instruction is to (1) highlight the favorable aspects of the presentation, (2) offer feedback about parts that did not work so well, and (3) suggest ways to improve. Thanks to my high school typing teacher, I am a fairly competent typist on the computer, but my children make fun of my approach to typing on my phone. I use one finger, which often means hitting the wrong letters. Before hitting the send arrow, I erase the wrong letter and retype the correct one with the same finger. And, I use punctuation, which exasperates my boys. Inspired by the current political climate and ever-present fear that those same children will say something stupid and irrevocable in a text or on social media, I am offering my amendments to Principle 1. If you have to “criticize, condemn or complain,” consider the following: (1) Try to find something favorable to say first. (2) Fashion the response as constructive feedback, instead of an attack. (3) Type with one finger. It takes longer. You may decide you have nothing constructive to offer before you hit the arrow. We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives. Call if you need us, or if you just want to say hello. Amos P.S. Just a reminder, nothing you type goes away. Website
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Short Reports
How Is A Sex Crime Defined In North Carolina?
9/28/2020There are different types of sex crimes. The lowest level is called Sexual Battery, which is a misdemeanor. Sexual battery is unwanted sexual conduct. It does not have to include genital penetration. In fact, sexual battery arises most often when someone touches another person in a way that does not constitute a sexual offense, like grabbing a woman’s breasts or buttocks outside her clothes. The state has to prove the sexual conduct was for sexual gratification. The most harshly punished sex crimes are first-degree sexual offense and first-degree rape. These offenses include statutory offenses against children and forcible rape with a weapon. Convictions for these offenses result in substantial, mandatory prison sentences. Other crimes, such as taking indecent liberties with children and exploitation of children, are between the misdemeanor and most serious offenses. These offenses include sexual conduct with children without touching the child, possessing child pornography, or soliciting children for sexual acts. Any sexual involvement between a school employee and a student in an elementary, middle, or secondary school is a felony, even if the relationship is consensual. What Are The Most Common Type Of Sex Offenses That You See? In recent years, I represented numerous people accused of possessing child pornography and student’s accused of sexual assaults. The cases with students include defenses in criminal court and investigations and hearings on university campuses. What Are Title IX Cases In North Carolina? Title IX of the Education Amendments in 1972 to the Civil Rights Act of 1964 prohibits discrimination on the basis of sex. A few years ago, Title IX brought to mind women’s sports because that is the provision interpreted to require equal opportunities for women to participate in collegiate sports. In recent years, the provision has been used to require universities receiving federal funds to create a policy to prohibit sexual harassment and assaults on campuses. The policies create procedures separate from criminal cases, different definitions for prohibited conduct, and proof by a lower standard. Title IX covers conduct by staff, faculty and students. As a result, we represent a wide range of people accused of sexual harassment or sexual assault, including professors, students, and administrators. The definitions of sexual harassment and sexual assault under Title IX are not the same as criminal cases. The federal government establishes certain guidelines, but the universities define the conduct, or the prohibited conduct and the procedures for adjudicating the allegations. Many times, conduct alleged to have violated the university policy does not rise to the level of criminal conduct. A person can violate the student code without committing a sexual offense as defined by a criminal statute. How Are Title IX Cases Handled In North Carolina? While the government establishes certain standards, each university sets its own policy and procedures for dealing with the allegations. As a result, the procedures in place at the University of North Carolina are different from the procedures at Duke, which is nine miles away. One distinction is that North Carolina law requires public universities to allow lawyers to represent the accused in these proceedings. That law does not apply to private universities, and some prevent lawyers from participating. The procedures are in writing and established by each university’s policy on prohibited discrimination, including sexual harassment and related misconduct. In general, a person is notified that he or she is accused of some violation and invited to a meeting with an investigator. The accused should contact counsel before responding. The allegations range from repeated unwanted contact to rape. All allegations of sexual harassment or sexual assault between faculty, staff, and students at the same institution are investigated and resolved under the university’s Title IX procedure. While provisions of the university’s policy define violations more broadly than the criminal statutes, the allegations of some cases include allegations of criminal conduct. That means, the university investigation may expose the student to criminal liability. Either way, no one should participate in these proceedings without a lawyer experienced in representing people accused in criminal court and university proceedings. For more information on Sex Crimes In North Carolina, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (919) 967-0504 today.
