Chris Fialko's Blog

An American Moment

2012-01-23T20:18:00.000-08:00

A little bit of history was made at 401 West TradeStreet Friday, but Charlotte didn’t seem to notice much. The FourthCircuit Court of Appeals held a session of oral arguments at the federalcourthouse here for the first time in more than 50 years. Lawyers and law students showed up in numbersto watch and note the event, but the rarity is not what struck me.

I sat in the gallery in the courtroom where Swannv. Board of Education – the seminal Charlotte school desegregation case– got its start. Overlooking thecourtroom are eight large portraits of white male federal judges who have heldcourt in the last 100 years. Asbest I can tell, in 140 years all of the federal district judges here havebeen white men. If I’m wrong, please letme know.

At 9:30 sharp, court began and the three appealscourt justices walked in: Allyson Kay Duncan,an African American, AlbertDiaz, a Hispanic American, and James A. Wynn, Jr., anAfrican American.

I have been practicing in that courtroom for 17years. For me, it was a jarring, surrealbut welcome moment.

New trial for Michael Peterson

2011-12-14T12:06:00.000-08:00

My law partner, David Rudolf, just won a new trial today for Michael Peterson. See:

http://www.newsobserver.com/2011/12/14/1710482/lawyers-poised-to-make-final-arguments.html .

Rudolf ventures back to Durham

2011-12-04T07:09:00.001-08:00

My law partner, David Rudolf, tomorrow begins a set of hearings in the case of State v. Michael Peterson that should be an adventure. Here are two articles in today's Raleigh News & Observer recounting (1) the grounds for a new trial; and (2) the latest in the ongoing high drama that is Durham criminal justice.

http://www.newsobserver.com/2011/12/04/1687943/peterson-seeks-relief-but-deaver.html

http://www.newsobserver.com/2011/12/04/1688280/cline-wrote-false-motions.html

Patriot James Otis Helps the Fourth Circuit

2011-11-25T06:29:00.001-08:00

When the Fourth Circuitquoted from James Otis, Jr. this summer, I fell out of my chair.

Otis was a pre-revolutionarywar hero, whose oration against the British Writs of Assistance in 1761inspired John Adams and others. And theFourth Circuit has reached 250 years back to Otis to assert that the criminaldefense lawyers’ joke – the Fourth Amendment is dead in the Fourth Circuit– may not be so.

It’s true: the Fourth Amendment is making a comeback inthe Fourth Circuit. Maybe it’s becausethe mood of the country has turned against big government. And big government will thrive when policecan search whoever they want, whenever they want.

Maybeit’s because sixnew justices have climbed onto the bench in the last four years.

Maybe it’s because thejustices are granting oral argument in more criminal cases at the Court inRichmond. We lawyers can speculate allday long. But the Fourth Circuit opinionsseem to state plainly the reasons: thejustices are tired of the prosecutors’ painting every set of facts as supporting any search and seizure.

In three cases this year,different Fourth Circuit panels flat out scolded the government for itspractice of arguing that everything is suspicious. (Fair warning: what follows is some wonky stuff.)

First came the generalscolding in Foster:

n TheCourt expressed “our concern about the inclination of the Government towardusing whatever facts are present, no matter how innocent, as indicia ofsuspicious activity.” United States v.Foster, 634 F.3d 243, 248 (March 2, 2011).

n “[A]nofficer and the Government must do more than simply label a behavior as“suspicious” to make it so.” (Same.)

n “Moreover,we are deeply troubled by the way in which the Government attempts to spinthese largely mundane acts into a web of deception.” (Same.)

Nextcame Massenburg, where the Court tooktime to remind the government and district courts of the origins of the FourthAmendment:

n “Indeed,as our late friend and colleague JudgeMichael reminded us in the 2010 Madison Lecture at New York University,“The Fourth Amendment owes its existence to furious opposition in the Americancolonies to British search and seizure practices . . . . Th[e] controversy[over the use of general warrants] left citizens of the new American stateswith a deep-dyed fear of discretionary searches permitted by general warrantsand writs of assistance.”” United Statesv. Massenburg, 654 F.3d F.3d 480,486 (August 15, 2011).

And,my personal favorite:

n “JamesOtis famously decried general searches as “instruments of slavery ... andvillainy,” which “place [ ] the liberty of every man in the hands of everypetty officer,” warning against abuses by “[e]very man prompted by revenge, illhumor, or wantonness.” Timothy Lynch, In Defense of the Exclusionary Rule, 23Harv. J.L. & Pub. P. 711, 722 (2000) (quoting James Otis, Speech on theWrits of Assistance (1761)).” (Massenburg at 488.)

Andfinally came the opinion in Hill,where

n TheCourt reiteritated “the ‘centuries-old principle of respect for the privacy ofthe home.’” Id. at 260 (quoting Wilson v. Layne, 526 U.S. 603, 610, 119S.Ct. 1692 (1999). In Hill, the Court found that the emergencycircumstances exception to the Fourth Amendment did not apply to allow entryinto an apartment when the facts showed only damage to the front door of theapartment, “unsupported hunches of the police, and noises from within.” Hillat 267. United States v. Hill, 649 F.3d 258 (August 18, 2011),

Someof my colleagues think the blunt message in these cases is intended as much forthe trial judges as it is for the federal prosecutors. The cases certainly have reinvigorated myappreciation for the Fourth Amendment, and boosted my morale. James Otis was a flawed dude (you can look itup), but it’s way cool that he has madehis way from colonial Boston to 21^st century Richmond.

The Wail of Man Mins

2011-11-13T19:51:00.001-08:00

[Since I wrote this, the US Sentencing Commission came out with a long report criticizing mandatory minimums. See http://www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/Mandatory_Minimum_Penalties/20111031_RtC_Mandatory_Minimum.cfm

I told my client’s wife not to bring the kids to court. She didn’t listen.My client – let’s call him Irving – is a welder. He came to North Carolina in 2000, and for eight years worked five or six days a week at the same job, welding custom-shaped industrial piping. He is a skilled dude. I got a letter from his boss, who called Irving “an exemplary employee.” He got married, moved into a clean double-wide trailer, and began a family. Two daughters and a son. He filed and paid taxes every year.When the Great Recession hit, Irving was among the last to be laid off. He spent 2009 and 2010 welding here or there in temp jobs. One night in April 2011 detectives worked with an informant to set up a cocaine deal. The police were staking out the suspect’s house, when Irving showed up driving his beat-up 12 year-old car. The suspect got into the car. The cops stopped the car. Two hundred fifty-two grams of cocaine were found in the car – exactly 9 ounces, a common amount for a cocaine transaction.

Irving was charged under North Carolina law with three counts of Trafficking between 200 – 400 grams of cocaine. (Why three? The statutes allow the State to parse the same dope into three supposedly separate crimes: Trafficking (1) by possession; (2) by transportation; and (3) in conspiracy.) The Tar Heel state sticks each of these crimes with a mandatory sentence of 70 – 84 months imprisonment. See N.C.G.S. 90-95(h)(3). No parole. If convicted, the Judge has no discretion to mitigate the sentence. 70 – 84 months, period.I thought we had a chance to win a trial. I studied the discovery – the police reports indicated no one had any idea Irving was involved in the transaction until he showed up. But there were two big problems. At the moment the cops found the dope in the car, Irving tried to run. And Irving is an undocumented alien from Mexico.

The prosecutor offered this plea deal: one sentence of 70 – 84 months, or else the State would pursue boxcars – three consecutive 70 – 84 months, i.e. 210 to 252 months imprisonment. (17.5 to 21 years)I filed a motion to disclose the identity of the informant, hoping it might shake the prosecutor to offer a lesser plea (to Level I trafficking, 35 – 42 months). But the prosecutor was willing to burn the informant. I filed a motion to suppress, arguing the supposed basis for the stop – following another car too closely – did not justify the scope of the stop and search of the car. In the end, my client decided he could not risk a trial. He took the plea.

At the sentencing hearing, I explained to the Judge how Irving was a hard-working family man, with three young children who were U.S. citizens. How he had been married for 10 years. How he had made one mistake, and was going to be deported at the end of his sentence anyway. I showed the Judge the letter from his boss, his paycheck stubs, his tax returns. I did all this even though everyone knew the Judge had no discretion. 70 – 84 months. Mandatory minimums make no sense. We know that now. They’ve been around for 17 years, and the number of drug cases has not decreased. The price of cocaine has not gone up. The price of incarcerating men like Irving, a first offender whose personal history indicates he likely won’t re-offend, is too high.

Irving’s three year-old son watched through the glass door of the courtroom. Watched the bailiffs handcuff his dad, and take him out the back door to the jail. When I walked into the hallway with Irving’s wife, the boy asked: “Is papa coming home now?” When his mom did not speak, the boy began to wail.

Innocence Case Victory

2011-11-09T07:20:00.000-08:00

Walking my client out of jail after 11 years in prison for a murder he did not commit was, for lack of a better term, cool.Here's a link to today's NC Bar Association Criminal Section newsletter article about the Innocence Commission trial that we won in Asheville in September. It's a bit wordy:http://criminaljustice.ncbar.org/newsletters/truebillnov2011/uniqueagency.aspxIt was a grueling trial, but truly rewarding.Pictures may be a better way to understand what happened: Here is the photo gallery the Asheville Citizen-Times published on the last day of the trial:http://www.citizen-times.com/apps/pbcs.dll/gallery?Avis=B0&Dato=20110922&Kategori=NEWS01&Lopenr=309220080&Ref=PH--Chris

You know you're getting old when your classmate is elected D.A.

2010-11-02T21:19:00.000-07:00

Twenty-one years ago I walked into my first law school class and took a seat next to a guy with a crew cut, crisply ironed clothes and a determined look on his face. While we waited for Professor Charles Daye’s Tort class to begin, I chatted with this fellow, Andrew Murray.

Yesterday, Andrew was elected District Attorney here in Charlotte, Mecklenburg County.

Back on that first day of law school, I was nervous. I didn’t know a single person at the University of North Carolina, and I still wasn’t quite sure why I had decided on law school. But Andrew Murray sure knew: he explained that he was in the Coast Guard, had a wife and child back in Charlotte where he would return on weekends, and he was ready to learn how to be a lawyer.

I remember laughing and telling Andrew that I had two keys on my key chain – one for my apartment, one for my bicycle lock. Compared to him, I had little to stress about.

The main reason I supported Andrew in his run for D.A. (he’s a friend, but he’s a Republican and I’m a die-hard Democrat!) was that I knew he would continue the real secret of long-time Charlotte D.A. Peter Gilchrist: hire well. Each year, Gilchrist had to hire about 5 - 10 new Assistant District Attorneys, mostly straight out of law school. Gilchrist had a knack for finding lawyers who had common sense, some street sense, and the ability to think on their feet.

On a daily basis, the most powerful lawyers in the state are the local Assistant District Attorneys. I’m glad Andrew will be the man in Charlotte who hires them for the next four years.

Tiger versus Me

2010-04-08T22:51:00.000-07:00

April 9, 2010

As Tiger Woods teed off in the first round of the Masters Thursday, I was on vacation at Legoland with my wife and kids. Legoland has no televisions. I texted my brother, asking how the fans were treating Tiger. He replied: "Fine. He’s 2 under. I hope he wins."
I was surprised at my own response: I hope Tiger doesn’t win. Why this gut reaction?
I’ve been a Woods fan since watching one of his U.S. Amateur titles, when he came from far behind to win. He went to my alma mater, Stanford. I think we all forget that even after his many major championship wins, he’s still an underdog because he’s a black golfer. I love underdogs.
I puzzled over this for a while, and finally decided this: the ingrained criminal defense lawyer in me thinks a Tiger win would be unfair.
Over and over again I see a criminal justice system that punishes peoples’ mistakes too harshly, and for too long. I’m not just talking about overly lengthy prison sentences. Last week a man called me to ask if there was any way to expunge his prior conviction for felony larceny from 11 years ago. He had been 23 at the time, strung out on drugs, and stole to fund his habit. Since then he said he’d been clean, got married, had a couple of kids and a good job. But then when his employer had him up for a promotion, it ran a nationwide record check and found his conviction. Instead of promoting him, it fired him. I understand Tiger didn’t commit a crime by betraying his wife. Apples and oranges. But a Masters victory this weekend would seem like unfair forgiveness. Or at least redemption.
I can’t help the husband with the old larceny conviction. He doesn’t qualify for an expunction. He still goes to AA/NA meetings every week. He’s trying to stay serene about the things he can’t control, like employers who are too scared to keep a good employee who happens to be an old felon.
But I don’t have to be serene. By summer, I’ll probably be back to rooting for Tiger. But this weekend, I can’t do it.

New Jersey versus Medical Marijuana

2010-01-11T19:58:00.000-08:00

January 11, 2010, 10:54 p.m.
A few moments ago, the lead headline on NYTimes.com was: New Jersey Lawmakers Pass Medical Marijuana Bill.

Which reminded me that the irrepressible Nick Mackey, who caused all kinds of controversy in Charlotte a few years ago when he won and then lost the Sheriff’s job, is now in the North Carolina State House (District 99), and that last year he co-sponsored a Medical Marijuana bill. If it got any media attention in Charlotte, I missed it. (You can read the bill here.) In fact, I didn’t know about the bill until I saw Mackey at a PAC fundraiser last month, and he mentioned it.

Now I don’t know whether the Medical Marijuana bill in New Jersey, or the one in North Carolina are good ideas. But as a criminal defense lawyer for the last 17 years, here are some comments I can make:

Off the record, some DEA agents and drug task force officers say that they wish small user amounts of marijuana would be legalized. This would cause the powers that be to tell the agents to quit chasing marijuana traffickers, and instead concentrate on the drugs that are a growing scourge in our area: heroin and methamphetamine.
As for this quote from the Times article:
"Some educators and law enforcement advocates worked doggedly against the proposal, saying the law would make marijuana more readily available and more likely to be abused, and that it would lead to increased drug use by teenagers. "
Right. Citations and arrests of teenagers in Charlotte for possession of less than ½ ounce of marijuana (a Class 3 misdemeanor) have been plentiful for many years. In other words, marijuana is now and will always be "readily available" to teenagers. To believe otherwise is silliness.
I think medical marijuana or legalization of small amounts of marijuana is an issue that secretly transcends political affiliation. One of the cool things about being a criminal defense lawyer is that people feel free to tell you thoughts they probably don’t tell anyone else. And I’ve had many right-wing, conservative folks nudge me at cocktail parties or other events and in a conspiratorial soft voice say one or more of the following:

– "They ought to just legalize marijuana and send the cops after the illegal immigrants."
– "The legislature might should legalize it, and tax the hell out of it. Maybe let the ABC stores be the exclusive sellers, and charge 50 cents tax per joint. They’d make so much money I wouldn’t have to pay income taxes anymore!"
– "Big Pharma doesn’t want marijuana legalized! They know if that happened, all their sales of those anti-anxiety drugs they’re pushing on TV would plummet."

The Charlotte Observer versus Peter Gilchrist

2009-12-17T12:48:00.000-08:00

December 14, 2009

In its front-page article skewering retiring Mecklenburg County District Attorney Peter Gilchrist yesterday, the Charlotte Observer stressed that his Assistant D.A.s dismissed 52% of the felonies that were resolved during 2008.

We all know statistics can be mighty misleading, and this one certainly is. While the Observer included a sidebar entitled “How Dismissals Work” that described one way in which the stats are misleading (in short, consolidating charges under one agreed upon sentence make the conviction rate higher, with no change in result), the article does not mention the more easily correctable problem: overcharging.

A more cynical man than me could surmise that the Observer did not see fit to mention this issue because it is the fault of the local police departments. But I won’t go there.

Here’s how overcharging works. Let’s say a college student, Joe Partier, is stopped by police driving back from picking up an ounce of cocaine – he and his buddies had pooled their money to buy it for an upcoming big house party. The police officer finds the cocaine, and arrests Partier. The officer has done well.

But the officer has also been trained to charge defendant Partier with as much as possible, so he takes arrest warrants to the magistrate charging Joe with all of these separate felonies:

1. Trafficking in cocaine by possession.

2. Trafficking in cocaine by transportation.

3. Possession with intent to sell and deliver cocaine.

4. Possession of cocaine.

5. Maintaining a vehicle for the use/possession of controlled substances.

All five charges arise out of the same set of facts. And even though Joe Partier is a first-offender (and possessed no firearm), because the cocaine was more than 28 grams, i.e. one ounce, the trafficking statute requires a mandatory prison sentence of 35 to 42 months.

Whether such mandatory minimum prison sentences make any sense for first-time offenders like Joe is an argument for another day.

The point here is that the police department should know by now that the likely resolution in court is going to be a plea agreement to one count of trafficking, Joe goes up the river for his three years with no parole, and the other four charges are dismissed.

Eighty percent of the charges – 4 of the 5 – are dismissed, but is there any valid criticism that this outcome is to lenient? I doubt it.