Tuesday, November 30, 2010

DNA Tests Disprove Key Evidence in Texas Execution Case

OK, I know it's out of state, but I received this interesting email from the Innocence project. Thought I'd share it.

New DNA tests show that Claude Jones was executed a decade ago in
Texas based on false physical evidence that officials declined to test
before his execution.

Jones always maintained his innocence of the murder for which he was
executed, and the new test results prove that a hair allegedly tying
him to the crime scene was not his. Before his execution, Jones
requested a 30-day stay from then-Governor George W. Bush so he could
seek DNA testing on the hair. A memo from the Texas General Counsel's
office recommended against the stay and failed to mention that Jones
was seeking DNA tests. Bush denied the motion, and Jones was executed
on December 7, 2000.

In a Wall Street Journal op-ed on Saturday, Innocence Project
Co-Director Barry Scheck wrote that Jones' execution "never
should have happened" and goes on to say that the injustice Jones
suffered highlights the need for a national criminal justice
commission to examine and address issues including the death penalty
and the underlying causes of wrongful conviction.

Read more about the Jones case

Read Barry Scheck's op-ed

Monday, November 29, 2010

Repeal of Habitual Felon Law Could Save Budget


The new Republican North Carolina legislature has a daunting test ahead of it-- a budget shortfall of billions and a promise not to raise taxes.

Under NC's habitual felony law, persons convicted of their 4th felony are sentenced as class C felons and all sentences must be run consecutive. For serious offenders, this doesn't have much effect, but in low level cases, the sentences can be extreme.

For example, if someone is convicted of two counts of simple possession of cocaine, a class I felony, for even someone with a serious record, they would be presumptively be sentenced to two terms of 7-9 months, which the judge could run concurrenlty or consecutively, depending on the facts of the case. Under the Habitual felon law, that sentence becomes 134 to 168 months-- for a drug addicts possession of a few grams of crack. The costs of this policy are enormous and benefits are unclear.

It costs $27,134 to house someone in prison for a year. Since this law went into effect, prison roles have increased from 27,000 to 41,000-- an annual increase in cost from $729 million to $1.1 billion.

Last year, an N&O story estimated that this program has cost North Carolinians over $1.5 billion.

It's time to review this policy and make it not apply to lower level felonies, classes F, G, H, and I. Reserve these severe and extremely expensive punishments for those who commit serious violent crimes. Incarcerating low-level felons and drug addicts simply isn't worth the cost.

The legislature is committed to making cuts. Will they end music programs at high schools? Stop funding NC's world class college education system? Further destroy the mental health system? Or reduce the cost of a bloated prison system?

Friday, November 19, 2010

Hartford sentenced to die

This afternoon, a Forsyth County jury sentenced Timothy Hartford to die for what has been dubbed the "Meals on Wheels Murder."

Wednesday, November 17, 2010

NC Court of Appeals Criminal Decisions, November 16, 2010

Reversals and Other Interesting Issues

State v. Charla Dean Davis. Gaston County. Defendant appeals convictions of DWI, reckless driving, felony hit and run, and 2d murder. Drunk driver in a red SUV hit a number of pedestrians as he went over a bridge. A red SUV, with pieces missing that were similar to those at the scene, were found at a man's house who told police that the defendant was driving the car and told him she was side-swiped. Police located defendant the next day and she was in disarray and smelled of alcohol. Defendant confessed to hitting something, but said she didn't stop because her license was revoked and she had one more alcohol class left to get her license back. She admitted to drinking vodka that night. No breathalyzer was conducted. Sentenced to 276 + 42 + 10 months.

First, court erred in allowing a state expert to testify on his opinion of Ms. Davis' blood alcohol level based on "retrograde extrapolation." The expert used this technique based solely on the officer's statement that he smelled alcohol on her breath in the morning and an assumption that no alcohol was consumed after the accident. Held: this is unreliable crap and is inadmissible under 701 and Howerton, NC's expert standard--which is notably more lax than the federal Daubert standards.

This was prejudicial, as the only evidence the state of recklessness for the 2d murder and reckless driving was the alleged impairment.

Second, error under 403 to admit 3 prior DWI convictions that were 18 and 19 years old. Their admission was prejudicial. The DWI from 2 years prior, however, was admissible.

New Trial on 2d murder, reckless driving and DWI. Affirmed on felony hit and run.

State v. Nakia Nickerson. Orange County. Appeal of conviction for possession of stolen goods and habitual felon.

Defendant was stopped in a stolen car. He told the officer it wasn't his car and he could search it. The officer found a gun and the defendant said, not my car, not my gun. Told the officer it was a friend's car, who was too drunk to drive. Said he dropped the friend off at Baldwin Park and kept the car. The officers went to Baldwin Park and couldn't find the defendant's friend. Indicted and convicted for possession of stolen goods.

1) Trial court erred in refusing to instruct jury on lesser included offense of unauthorized use of a motor vehicle. Unauthorized use of a motor vehicle is a lesser included offense of possession of stolen goods.

Possession elements are: possession, of stolen property worth $1000, with knowledge or reasonable belief it is stolen, and with a dishonest purpose. Unauthorized use elements are taking, vehicle, without express or implied consent of owner.

Here, the common elements are: Possession of property (taking=possession) and stolen property (stolen property=property taken without express or implied consent of the owner).

Additional elements that elevate to felony are knowledge that the car is stolen and dishonest purpose.

Here, defendant's statement and other evidence tends to negate the heightened Mens Rea requirement-- knowledge that stolen and dishonest purpose-- rather than just a blanket denial. For these reasons, he was entitled to instruction on the lesser included misdemeanor.

New Trial.

State v. David Franklin Hurt. Caldwell County Appeal from 2d murder conviction. Defendant appeals aggravated sentencing based on jury's finding that the murder was especially heinous, atrocious, or cruel.

Held: Defendant has a right, under Blakely, to confront witnesses against him at a sentencing trial under the 6th Amendment. Applies to all sentencing proceedings where a jury makes a determination of facts that, if found, increase the defendant's sentence beyond the statutory maximum. Trial courts admission of hearsay during the aggravation phase constituted error.

Remand for new sentencing hearing.

Other Cases


State v. Jerry Wayne Sanders. Carteret County. Appeal of conviction for assault with a deadly weapon inflicting serious injury (AWDWISI) and conspiracy to commit AWDWISI.

Sufficient evidence for conspiracy here. Defendant and a group of his family members went to one persons house to assault him. After they were told to leave, the rowdy group drove away and an on-looker chastised them. They then stopped their car, got out, and beat him up. These facts, taken together, show the men formed an implied agreement, however impulsively, to assault the onlooker. The jury did not use the wrong conspiracy--the agreement to beat up the first guy--to convict for the spontaneous assault. Rather, there was sufficient evidence to show that this group assault was also the product of a conspiracy.

Monday, November 15, 2010

Jury Selection Continues in Scotland County Case

In Laurinburg, jury selection continues in the capital murder trial of Albert Ramos.

Ramos is charged with the murder of his wife, Sanjuana Ruiz, and Ronnie Ruiz, a local business owner. No press has been reported on this case in over a month. Last story I found is here.

Friday, November 12, 2010

Timothy Hartford found guilty

In Forsyth County yesterday, Timothy Hartford was found guilty in what's been dubbed the "Meals on Wheels" murders. Hartford was convicted of killing an older woman, Robert Denning, in a home invasion and then killing Anne Magness, a meals on wheels worker who arrived during the crime to serve Mr. Denning.

The jury will begin hearing evidence today on whether Mr. Hartford should die in prison or die by lethal injection.

Monday, November 8, 2010

Life for Wong, Death for Buckner

In Catawba County, the jury in Edwardo Wong's case is hopelessly deadlocked. Mr. Wong was convicted of the 1st degree murder of a State Highway Patrol office. The jury was deadlocked 6-6 on sentencing after deliberating for over a week. The State never offered Mr. Wong a plea and moved forward for death at the victim's widow's request. After over 8 weeks of trial testimony and 100s of thousands of dollars of money, the judge issued a sentence of life without the possibility of parole.

In McDowell County, a jury sentenced Stephen Bucker to death for a triple homicide, after less than three days of deliberation. Jury selection in that case began in mid-September. Buckner was convicted of killing his live-in girlfriend, his daughter, and a 14 year-old child who also lived in the home. The jury returned a death sentence on two of the counts, and life on one.

Friday, November 5, 2010

NC Supreme Court Rules in State v. Waring

Today, the NC Supreme Court issued one criminal decision in the case of State v. Byron Waring.

Byron Waring was sentenced to death in July 2007 in Wake County. Byron Waring, a black man, was convicted for the rape and murder by stabbing of a white woman. Defendant had a cognitive disorder and a schizotypal personality disorder, as well as borderline intellectual functioning. The jury found the presence of three aggravating factors: committed during a rape; for pecuniary gain, and that the murder was especially heinous, atrocious or cruel. The jury found 4 statutory mitigating factors: that it was committed under duress (Waring's co-defendant was the leader), acting under the domination of another person, capacity to conform his conudct to the law was diminished, and that he aided in the apprehension of his co-defendant. The jury also found in mitigation that the defendant suffered from borderline intellectual functioning and cognitive impairments. Nonetheless, the jury found that the aggravators outweighted the mitigators and sentencing Mr. Waring to death.

First, no error in failure to suppress his prior confessions. Found that Waring voluntarily went with police and voluntarily was questioned. Thus, no interrogation and no Miranda problem.

Second, while the state used its peremptory challenges to exclude blacks from the jury, the court found that there were legitimate bases for such use, as one juror gave questionable support to the death penalty and another because the prosecutor was "concerned that she didn't watch the news." The state struck 50% of eligible black jurors. The court found that this number wasn't so high as "to suggest a systematic effort" to exclude blacks.

Court also reviewed other issues and found no error.

Of interesting note, this is yet another case where blacks were struck at a much higher rate than white and no finding of Batson error. While every litigant knows that race is taken in account in jury selection, still no appellate court has ever granted Batson relief.

No prima facie showing for Batson challenge.

Wednesday, November 3, 2010

Election 2010


Election Results are in and the Republicans will be overtaking the General Assembly. What does this mean for criminal law?

1) Indigent Defense Services budget. Will the Republicans reduce the budget of IDS? Over the past twenty years, NC has become a provider of some of the best indigent defense in the country, due to the establishment of the independent IDS commission and the Capital Defender's office. Budgetary reductions lead to more qualified lawyers leaving the indigent appointment lists, overworked public defenders, and lower quality criminal defense. Will the Republicans protect the indigent defense system or reduce the quality of representation?

2) Criminal Rights Reform: In the past 20 years, the legislature has passed significant criminal defense reforms, all aimed at preventing wrongful convictions. They passed open-file discovery, IDS commission, the innocence commission, videotaped confessions in murder cases, fair line-up regulations. Will the Republicans continue to push the envelope and take seriously ensuring that innocent persons aren't in our jails?

3) Death Penalty. Significant reforms-- bars to executing the mentally retarded and persons sent to death row in counties that have demonstrated history of racial discrimination in capital process-- were passed in recent years and last session the GA considered seriously a bar to executing the severely mentally ill. Moreover, there has been a de facto moratorium since 2007 that could be legislatively taken away, resulting in immediate executions. Will the Republicans take up the mantle of ensuring fairness in capital sentencing and only execute the worst of the worst?

4) Sentencing. Democrats and Republicans alike have routinely ramped up sentencing for non-violent and violent offenders, to the point that our jails are overcrowded and expensive. Will the Republicans insistitute significant reforms to allow that money to be spent on schools or will the exacerbate the problem, mindlessly increasing sentences across the board and further expanding the enormous prison bureaucracy?

Time will tell.

Tuesday, November 2, 2010

NC Court of Appeals Criminal Decisions, November 2, 2010

On November 2, 2010, the North Carolina Court of Appeals issued five decisions for publication.

State v. Banner. Defendant was arrested on an old warrant that, due to clerical errors, was erroneously issued. During search incident to arrest, drugs were found. Held: Underlying warrant was not invalid, as it was based on an unresolved failure to appear. The fact that a clerk as failed to recall the warrant after learning it was erroneously issued does not invalidate it. (Here, the defendant received the FTA because he was in jail in another county on unrelated charges and the Department of Corrections had contacted the clerk and informed them of such, assuming the FTA would be recalled).

State v. Bordeaux. State appeal of suppression of confession in a robbery case. Defendant's interrogation was videotaped. During the interrogation, the officers made threats to connect defendant to an unrelated murder case and made promises and threats that he needed to cooperate if he "wanted any chance to live a normal life." Such questioning was intended to overbear the defendant's will and, although he was warned and waived Miranda, the confession was nontheless involuntary. Upholds suppression.

State v. Boyd. No error in using DNA sample taken from defendant while in Ohio. Defendant alleged he consented to taking the blood due to officer's deceit, as officers never told him he was under investigation for rape. Consent must be freely and voluntarily given. There is no requirement that it be knowing (i.e., unlike confessions, officers don't have to inform you of your right to refuse, your right to a lawyer, etc.). The fact that the defendant was not told the blood was wanted in a rape investigation does not matter.

No error in failing to replace a juror who sent out a note saying she thought the defendant's accent was "fabricated" in some trial evidence. This merely suggests the juror was weighing evidence/credibility, not doing anything inappropriate.

Error in sentencing as prior record sheet included a conviction that occurred after this case (unclear if this was a typo on the sheet). But, since the sheet was the only evidence presented, those points are no good. Remanded for resentencing.

State v. Szucs. Defendant appeals felony larceny, possession of stolen goods, and breaking and entering convictions, where property stolen was electronics and loose change.

Sufficient evidence presented where his truck was found parked in the driveway, a man matching his general description holding electronics was seen; the man dropped the electronics and jumped the fence; a police dog tracked him, then lost the trail near Thermal Rd.; officer noted fresh marks in the mud, defendant was found, muddy, on thermal road; defendant had a leatherman tool in his possession; had $30.00 in change; and roommate found with an electronic device.

No plain error (under 403) in police statement that defendant was identified using mug shots.

Error for entering judgment on both felony larceny and felony possession of stolen goods. Cannot enter judgment on both, if it's the same good. Arrest judgment on possession of stolen goods.

State v. Yonce. Appeal of finding of willful probation violation. Defendant's appeal was untimely.

Jury Begins Deliberating in Wong Case

The jury began deliberating on whether Edwardo Wong should receive a sentence of life or death in a police officer shooting case.

Closing arguments ended this morning and the jury was charged and sent to begin deliberating around 4:00pm. The jury was later sent home for the evening. They are set to resume deliberations tomorrow morning.

Murders Decline


Interesting op-ed by UNC Professor Frank Baumgartner (left) from the News and Observer about how the murder rate continues to decline, despite 3 years with no executions.

Interestingly (and despite the death penalty's claimed deterrent effects), the murder rate has continued to decline for years as the death penalty has been used less and less frequently.

Read more here.