SCOTTISH INDEPENDENCE A brief and not very well thought-out, but sincere yet rambling, post on why I think Scotland should choose independence. The British version of that overused and inflammatory word democracy is an interesting thing. Its Parliament is bicameral but its upper chamber, the house of lords, is unelected; this house of lords is made up of people who are there because they have titles (a marquess, duke and all that – the belted knights don’t get to sit in the upper house but, interestingly, do get [...]

I’M GOING TO JOIN THE NRA And here’s why: Because, like the NRA, I agree with our country’s Founders that a standing army is evil and dangerous to Liberty. Because, like the NRA, I agree that a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Because, like the NRA, I agree that upon my procuring a gun, I will be automatically signed up for the well-regulated militia. Because, like the NRA, [...]

IGNORANCE OF THE LAW IS NO EXCUSE … UNLESS YOU’RE A COP How do I hate thee? Let me count the ways, to paraphrase the bard (happy 450th, you old sod; don’t forget what they say: If others have their will, Ann hath a way). State v. Heien, (or Heien v. North Carolina now that the SCOTUS has agreed to hear it) is a horrible case. I hate this case (I kind of love it — it’s 4th amendment case). I hate what it could mean for us. [...]

DON’T YOU DARE APPEAL YOUR CASE! This article was written by Jessica Smith of the North Carolina School of Government. Most folks who are involved in appellate litigation and post-conviction motions know about G.S. 15A-1335. For those who don’t, it is a N.C. statute providing that when a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, the court may not impose a new sentence for the same offense, or for a different offense based on the same conduct, that [...]

.08 IN FRONT OF A JURY: ATTACK THE MACHINE! It is a truth universally acknowledged … that a lawyer in possession of a good .08 DWI must be in want of something other than a jury to decide his case. Yes, lawyers know — or think they know — that trying a DWI to a jury with an alcohol concentration is the proverbial exercise in futility. Like a Trexler case — a one-car accident DWI where the defendant admitted to driving — trying to convince the jury that [...]

GREAT ARTICLE ON DWI JURY SELECTION VOIR DIRE: DEFENSE PERSPECTIVE Voir dire is the single most important part of a DWI jury trial. Breath test DWI prosecutions are more difficult to defend then no test cases. Blood test cases are even harder to defend. Accordingly, voir dire preparation in breath/blood test cases is more critical than in a no test case. It is here that the defense begins the task of undermining the prosecution’s evidence. It is here that exculpatory theories emerge, that jurors begin to learn their [...]

SKIP STAM’S PATHETIC LETTER TO THE NEWS & OBSERVER AND MY REPLY Regarding the March 7 editorial “The people’s property”: I question your argument that protesters should be acquitted or charges dismissed because the property belongs to the people. I sit on the back row of the chamber, just a few feet from the doors to the lobby. On May 6 and May 13, chanting and singing in the lobby made it very difficult to hear the proceedings for the first 20 (May 6) and 30 minutes (May [...]

MORAL MONDAY VICTORY Today I had the privilege of trying my first Moral Monday cases. Actually, my seven clients today were arrested not on a Monday but on Wednesday, June 12, 2013 — the 50th anniversary of Medgar Evers’ assassination. My clients, who included two people in wheel chairs, a high school senior, some of his older relatives, a President of a North Carolina NAACP Chapter, entered the Rotunda of the Legislative Building at around lunchtime and began singing. After several warnings from the Chief of Police of [...]

PRESUMPTIVE SENTENCES IN DWI’S REVISITED Finally, my adoring millions, my follow-up to the Greisslecrain case that was the subject of a recent post on this blog.  In that DWI case, the Defendant was sentenced to a Level 4 DWI when the judge found some aggravating factors of which the Defendant was never given notice and that were not submitted to, nor found by, the jury.  The notice requirement is statutory and exists because of the United Supreme Court’s decisions in Apprendi and Blakely (I don’t do citations in my [...]

DOUBLE JEOPARDY? IT’S EVERYWHERE! In North Carolina, a person convicted to a felony will have an additional sentencing point added to his points for prior convictions if all the elements of the current offense are present in a prior conviction. For example, the defendant is pleading guilty to possession of cocaine and he has a prior conviction for possession with intent to sell and deliver cocaine. Not only will this defendant have sentencing points assessed for the prior conviction but, because all of the elements in the current [...]

PRESUMPTIVE SENTENCES IN DWI CASES This blog is a word-for-word quote from Shea Denning’s UNC School of Government Blog from February 5, 2014. Please stay posted for my enormously insightful input on this subject. “How can a sentencing factor found by a judge that doubles a defendant’s maximum sentence not implicate Blakely? I pondered this question a few years ago after the court of appeals in State v. Green, 209 N.C. App. 669 (2011), characterized a Level Four DWI sentence as “tantamount to a sentence within the presumptive [...]

WHAT IS THE STANDARD FOR EXPERT TESTIMONY? AND WHO CARES? COPS ARE NOT SCIENTIFIC EXPERTS. During the 2011 legislative session, the General Assembly changed Rule 702(a) that deals with the admissibility of expert testimony. This change tracked, in pertinent part, an amendment to the same federal rule that was designed to codify the principles in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Previously, the Rule 702(a) rule allowed a qualified person to testify in the form of an opinion “[i]f scientific, technical or other specialized [...]

DWLR NOW A CLASS THREE MISDEMEANOR …AND IT’S EASIER TO BE A PROSTITUTE It really is entertaining (sad, really) to see the stupidity coming out of our Legislative Branch. The Tories have been out of government for so long that now that they’re in they’re acting like schoolboys unleashed in the unattended tuck shop. (Some boring law. Sorry.) In North Carolina misdemeanors are classified in one of four ways: A1, 1, 2 and 3. A1 is the most serious class and includes crimes such as Assault on a [...]

State v. McKenzie: What a Shame What I’m about to rant about has to do with license revocations upon the accusation of DWI and whether the subsequent prosecution of the DWI constitutes a violation of the defendant’s right against double jeopardy (what a mouthful). A bit of law. Almost everyone charged with a DWI in North Carolina will have his license taken from him for thirty days. The law used to be that this pre-trial (or post charge) revocation was only ten days. So the question is, and [...]

Happy Constitution Day Happy Constitution Day, Fellow Citizens! How depressing. With daily reports of daily assaults on our rights and freedoms under one of the greatest documents ever created — from our national government spying on us, to low-level judges refusing to honor their oaths to protect the Constitution and our (North Carolina) state government openly snubbing its nose at our protections, Happy Constitution Day indeed! The sixth amendment to the United States Constitution guarantees the right of the criminally accused to “be confronted with the witnesses against [...]