New trial for Michael Peterson

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

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

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

Otis was a pre-revolutionary war hero, whose oration against the British Writs of Assistance in 1761 inspired John Adams and others.  And the Fourth Circuit has reached 250 years back to Otis to assert that the criminal defense 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 in the Fourth Circuit.  Maybe it’s because the mood of the country has turned against big government.  And big government will thrive when police can search whoever they want, whenever they want. 

          Maybe it’s because six new justices have climbed onto the bench in the last four years.   

Maybe it’s because the justices are granting oral argument in more criminal cases at the Court in Richmond.  We lawyers can speculate all day long.  But the Fourth Circuit opinions seem to state plainly the reasons:  the justices 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 its practice of arguing that everything is suspicious.  (Fair warning:  what follows is some wonky stuff.)

First came the general scolding in Foster:

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

n  “[A]n officer 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 spin these largely mundane acts into a web of deception.” (Same.)

Next came Massenburg, where the Court took time to remind the government and district courts of the origins of the Fourth Amendment:

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

And, my personal favorite: 

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

And finally came the opinion in Hill, where   

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

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

The Wail of Man Mins

[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

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.aspx It 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.

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

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.