Charlotte, North Carolina, April, 2022. Mark Foster represented a client charged with possession of firearm by a convicted felon. Based on the facts of the case, Foster presented a “justification” defense at trial. This is a legal defense to a gun possession charge that applies where a person faces a threat of imminent harm or death and has no choice but to possess a firearm. Foster’s client had disarmed an intruder to his apartment and was left with the gun after the intruder fled. The police arrived, found the gun in the apartment, and reflexively arrested and charged the client. The District Attorney went ahead with the prosecution of Foster’s client, leaving no choice but trial. After a three-day trial, Foster successfully convinced the jury that his client’s possession of the firearm was justified under the circumstances. Accordingly, the jury found the client not guilty.
Author Archives: Mark Foster
Is there “Speedy Trial” in North Carolina?
If your case is in state court in North Carolina, the answer is “not really”. It can easily take over two years from arrest to trial on felony cases and over six months on misdemeanor cases.
North Carolina had a Speedy Trial statute requiring trial within 120 days but repealed it in 1989 after the District Attorneys complained that they were unable to comply with the statute. All that exists today is the amorphous Constitutional right to a Speedy Trial under both the North Carolina and United States Constitutions. Those Constitutional provisions do not define a particular time period within which a case must be brought to trial.
I often have clients in state cases respond with disbelief when I explain the above to them. They often mistakenly rely on the statute which provides that an inmate held in state prison or in a county jail must be brought to trial on any case pending in another county within 90 days of making a demand. That statute does not apply in the typical case where a defendant is facing charges in one county.
So, what is the Constitutional right to a Speedy Trial? It has been developed over the years by appellate case decisions from the U.S. Supreme Court, the North Carolina Supreme Court, and North Carolina Court of Appeals. The doctrine that has developed is that a defendant should first “demand” a Speedy Trial by filing a Speedy Trial demand with the court and serving it on the D.A. This serves to begin the clock ticking on a later determination of whether the defendant received a Speedy Trial or not.
It is possible, but rare, to win a motion to dismiss for denial of Speedy Trial. The factors a court will consider on a defendant’s motion to dismiss for violation of his Speedy Trial rights are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his Speedy Trial right; and (4) prejudice to the defendant. The United States Supreme Court has held that post-accusation delay that approaches one year is “presumptively prejudicial” and that this presumption “intensifies over time.” North Carolina courts have previously found that delays of 16 months and 14 months in trials for second degree murder were sufficient to justify the trial court looking at the other three factors.
It is not uncommon in Mecklenburg County or other North Carolina counties for a defendant charged with a serious felony to spend more than two years in jail awaiting trial. Few criminal defense attorneys in North Carolina file Speedy Trial demands, but I have done so multiple times and have litigated motions to dismiss for Speedy Trial violations on several occasions. Although I have not yet obtained any dismissals by the court, I have successfully used the threat of winning motions to push the D.A. into earlier dismissals or reductions of weak cases they otherwise would have waited months or years to address.
On the other hand, if your case is in federal court in North Carolina, there are statutes long ago enacted by Congress that provide specific, enforceable time limits within which the government must bring a federal defendant to trial. The applicable federal statute provides as follows: “In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” Federal courts in North Carolina strictly enforce the statutory right to Speedy Trial. However, any defense motions to continue the trial are not counted against the 70 days and federal defense attorneys often need more time to review voluminous discovery to prepare for trial.
Taking the Initiative
In our criminal justice system, a criminal case typically begins with the defendant being arrested by the police. The police then submit their reports and evidence to the prosecutor, who makes the final determination of what charges to pursue in court. The prosecution bears the burden of proving guilt to a jury beyond a reasonable doubt. So, should a defendant’s attorney simply lay back and prepare for trial, hoping to convince the jury of reasonable doubt?
This approach is sometimes the best choice under the individual circumstances of the case. However, my experience has shown the power of proactive criminal defense in certain cases. It is not uncommon for the prosecution in a serious case to have failed to carefully review all their evidence before committing to prosecute the case. It is also not unusual for the police and prosecutor to have left loose ends dangling in the criminal investigation. By engaging in early and thorough review of the evidence and/or by engaging the services of a private investigator to dig deeper, a defense attorney can sometimes develop exculpatory information to present to the prosecutor that leads to dismissal of the charges.
An example is a recent murder case I handled. The prosecution’s case against my client was primarily based on Facebook messages sent from my client’s account to the eventual victim, informing him that he was waiting for him outside his residence. There was no eyewitness identification and no physical evidence placing my client at the scene of the murder. Police investigators had ridiculed my client’s story that he had not sent the message and that he shared his Facebook account with a group of people. However, a careful review of the voluminous Facebook data supplied by the prosecution in discovery verified that in fact my client’s Facebook account was used by several other people. This created the very real possibility that someone other than my client had sent the message to the victim. When I presented an accurate and concise summary of the Facebook data to the prosecutor, a dismissal of the murder charge followed in a few weeks. My client was released from jail after lengthy pretrial detention.
Another example is a rape case I recently handled. My client was charged with the rape of an acquaintance but had wisely not made any statement to the police upon arrest. We maintained this posture of not disclosing our defense for many months, waiting to see if DNA results would physically link my client to the alleged victim. When the DNA results eventually came back with a positive match, we decided to present a “proffer” to the prosecution, i.e., a summary of what the client would be expected to say if he were to testify at trial. A proffer is submitted under the protection of the rule of evidence that prohibits communications made during the plea negotiation process from being used against a defendant at trial. Our proffer presented a summary of my client’s version of events describing how he and the alleged victim had engaged in consensual sexual intercourse and that there was no rape. Because the prosecution had insufficient evidence to overcome my client’s version of events, they dismissed the case soon after reviewing the proffer.
Thus, someone who is charged with a serious crime should obtain legal representation as soon as possible. Although the defense has no obligation to present evidence at trial, careful review and investigation can sometimes develop exculpatory evidence. An experienced criminal defense attorney may be able to gather and present such information to the prosecution and obtain a favorable result without trial. The risk of disclosure to the prosecution is that they will use this information not to dismiss the case but to better prepare for trial. Every case is different, and it is usually a tough strategic choice between (1) disclosing such information in the hope of the prosecutor dismissing the case and (2) holding the information until trial to undermine the prosecution’s case.
Police Cannot Coerce Waiver of Miranda Rights
On June 6, 2017, the U.S. Court of Appeals for the Fourth Circuit issued a published opinion that deals with situations where police officers intimidate a suspect into waiving his Miranda rights. The decision in United States v. Giddins, No. 15-4039, applies to all federal courts of the five states comprising the Fourth Circuit: NC, SC, VA, MD, and WV.
The Giddins case involved police interrogation of Mr. Giddins, the owner of a car that had been seized. The police had contacted him and informed him that they had his car and that the car had been used in a bank robbery. Giddins went to the police station to retrieve his car.
Once at the police station, the police took him into an interrogation room. The door nearest to Giddins was locked by one of the detectives. Giddins asked a detective if he was in trouble and the detective told him no, even though they had already obtained a warrant for his arrest for the armed robbery. The detective made Giddins place his cell phone on the table and turn it off.
The detectives read Giddins his Miranda rights, but he asked if this procedure was required just to get his car back. The detectives replied that it was, which was not true. Giddins was a working man and needed his car back to get to work.
The Court found although he had not yet been arrested, Giddins was in the functional equivalent of custody, meaning that Miranda warnings and a voluntary waiver were necessary before questioning could proceed. The Court reiterated existing law that the determination of whether a person is in custody for Miranda purposes is an objective inquiry focusing on “whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave”.
Mr. Giddins was in a room with one locked door and a detective between him and the other door and he was told he had to consent to the interview to retrieve his car. The Court held that a reasonable person would have felt unable to cease the interview without forfeiting the return of his car. Thus, the Court determined that Giddins was then in custody, requiring Miranda warnings and a voluntary wavier.
Next, the Court found Giddins’ Miranda waiver to be involuntary as it was the product of unduly coercive police behavior which overbore the will of Giddins. This was based on a determination that the detectives affirmatively misled Giddins as to the true nature of the investigation by failing to inform him, in response to his query, that he was the subject of the investigation, thereby constituting deceit and coercion. The Court found that this coercion rose to the level that Giddins’ will was overborne. Consequently, the Court found that Giddins’ waiver and statements were involuntary, the result of coercion, and were erroneously admitted against him at trial. The Court reversed his conviction.
Under existing U.S. Supreme Court case law, law enforcement officers can lie to suspects during interrogations to attempt to obtain confessions. For instance, officers can falsely tell a suspect that his DNA has been found on the murder weapon. However, such conduct, in conjunction with lengthy in-custody interrogation, can lead to coerced confessions and even false confessions.
Giddins deals with the different situation of police deceit regarding the nature of the investigation and the suspect’s status in it. It is common for police to bring a suspect to the police station for a “voluntary” interview but to do and say things that make the suspect believe that they are not free to go until they waive their rights and tell the police their side of the story. Giddins will hopefully aid federal criminal defense attorneys in the enforcement of suspects’ Constitutional rights under the Fifth Amendment.
Attorney General Sessions handcuffs federal prosecutors
On May 10, 2017, Attorney General Sessions issued his “Department Charging and Sentencing Policy”. This policy directive governs federal prosecutors across the country. In the federal criminal justice system, prosecutors already exercise great control of the sentencing process. Until now, they have had some discretion to decide whether to charge certain serious offenses that have statutory mandatory minimum prison sentences or which carry higher sentencing guideline ranges than related offenses. Now, Attorney General Sessions is ensuring that federal prosecutors will have virtually no discretion in deciding what offenses to charge and in negotiating plea agreements.
The memorandum requires federal prosecutors to “charge and pursue the most serious, readily provable offense”. Any decision to vary from this policy “must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.”
Sessions’ directive specifically rescinds previous policy memos from the Obama administration, including the policy that allowed prosecutors not to charge mandatory minimums in certain circumstances and the policy regarding using prior conviction enhancements in plea negotiations.
Thus, Assistant U.S. Attorneys will now be unlikely to do anything but charge the most serious offense with the highest possible sentence and to offer no relief whatsoever in a plea agreement.
It will be a grim landscape for federal criminal defendants who have unique mitigating factors or where application of mandatory minimums would be unjustly harsh. This will probably mean that more federal criminal cases will be contested at trial because in many cases there will be little incentive to plead guilty.
More so than ever, a person charged with a federal criminal offense will need representation by an experienced and qualified federal criminal defense attorney.
Foster saves drug trafficking client from lengthy prison sentence
April 3, 2017—Wilkesboro, NC—After two-and-a-half years of investigation and plea negotiations, Mark Foster succeeded today in saving his client from a mandatory prison sentence of 225 to 282 months (18 to 23 years) in an opiate pill trafficking case. By highlighting his client’s cooperation, his childhood traumatic brain injury, and his drug addiction treatment efforts, Foster was able to convince the D.A. to agree to a plea to a reduced charge. He then persuaded both the D.A. and the court to agree to a sentence of only 90 days in a prison drug treatment program as a condition of 18 months of supervised probation.
What is “discovery”?
Criminal defense attorneys, prosecutors, and judges use the term “discovery” often, but clients may not accurately understand the term. “Discovery” means copies of police reports, witness statements, lab reports, photographs, etc., that comprise the evidence against the accused. It seems like it would be common sense that the Constitution entitles a criminal defendant to receive full discovery of the case against him, but this is not the case. Instead, discovery is a limited right created by statute.
In North Carolina state courts, discovery by the defense is governed by Section 15A-903 of the General Statutes. If requested, the State must make available to the defense the complete files of all law enforcement agencies involved in the case. This includes copies of the defendant’s own statements and those of any codefendants, witness statements, police officer reports, reports of tests and examinations, and inspection of any physical evidence. To secure the right to receive this discovery, the defendant’s attorney must submit a written request for voluntary discovery to the State.
In the federal courts of North Carolina, discovery by the defense is governed by Rule 16 of the Federal Rules of Criminal Procedure. Rule 16 entitles the defense to receive, upon request, copies of the defendant’s oral statements, written statements, and his prior criminal record. Additionally, upon defense request, the government must make available copies of documents and other evidentiary items in the government’s possession if they are material to preparation of the defense, the government intends to use them in its case-in-chief at trial, or they were obtained from or belong to the defendant. Finally, upon request, the government must provide the defense with copies of results or reports of any physical or mental examinations and of any scientific tests but only if such items are material to preparing the defense or the government intends to use the items in its case-in-chief at trial.
Rule 16 contains no provision requiring the government to disclose statements of ordinary witnesses (although notice of expert witnesses is required). However, it is the common practice in the Western District of North Carolina for the U.S. Attorney’s Office to provide “open file” discovery, allowing defense access to most everything the government obtained in the investigation, including reports of witnesses. However, while the defense attorney can show the client the discovery for his or her review, local rules prohibit the attorney from giving any copies to the defendant to retain.
Beyond statutory discovery obligations, prosecutors are also required by the U.S. Supreme Court case of Brady v. Maryland to disclose any exculpatory evidence, i.e., evidence tending to show the defendant’s innocence or to mitigate his punishment. Finally, prosecutors are also required by Giglio v. United States to disclose evidence that would tend to impeach a prosecution witness.
Discovery is the heart of a criminal case and is the primary focus of a criminal defense attorney’s work. The first task in providing effective assistance of counsel to a person charged with a crime is to thoroughly review the discovery provided by the prosecution to determine the strength of the prosecution’s case and to advise the client of his or her options.
Drinking and Driving on St. Patricks’ Day
Happy St. Patrick’s Day! When this day of celebration and revelry falls on a Friday, as it does this year, the amount of partying and imbibing is increased. If you plan on drinking, please arrange in advance not to drive home. Have a designated driver, take a taxi, or call Uber. It is not worth the risk to yourself and others to drive while impaired. It is also highly expensive if you are arrested and charged.
In the event you use poor judgment and get arrested and charged with DWI in Charlotte or anywhere else in North Carolina, you should hire an experienced criminal defense attorney as soon as possible.
There are a variety of issues that may constitute a defense that only an experienced criminal defense attorney can properly litigate on your behalf. These include, but are not limited to, the following: reasonable suspicion to pull over your vehicle; legal validity of traffic checkpoint; proper administration of field sobriety and alcohol breath testing; probable cause for arrest; proof of impairment.
Conviction of DWI in NC carries serious consequences, including: possible jail time; suspension of driver’s license; greatly increased insurance premiums; possible requirement of installation of ignition interlock device on your car; community service; alcohol assessment and treatment; and large monetary penalties in the form of court costs and fines.
You should never represent yourself when charged with DWI in North Carolina. You have the right to be represented by counsel of your choice or, if you cannot afford your own lawyer, the court will appoint one for you. Good luck and be safe.
Getting Out of Jail Pending Trial
One of the highest priorities of a newly charged defendant in a criminal case is to be released on bail. Being released on a misdemeanor charge if you have no prior criminal record is relatively simple and inexpensive. However, having a previous criminal record or being charged with felonies will make release problematic.
In North Carolina, there is a big difference between bonding out of custody in state cases versus federal cases. In state cases, within a few hours of arrest, a magistrate will set the amount of bond which must be paid for the defendant to be released. That amount can be paid in full to the clerk of court or arrangements can be made to pay a bondsman 10-15% of the total to be released. A bond amount must be set unless the charge is a capital offense.
Once the initial bond is set in a state case, a defendant who is still in custody is entitled to a bond hearing before a District Court judge where the judge would determine whether to decrease the bond, leave it the same, or increase it. If the offense is a felony and the defendant is indicted on the charge, the defendant is entitled to one additional bond hearing in Superior Court where he can make another attempt to have the bond reduced. At a bond hearing, the two factors the court will consider are whether the defendant is a flight risk and whether he or she constitutes a danger to the community if released.
In federal court in the Western District of North Carolina (Charlotte, Asheville, and Statesville Divisions), a newly arrested defendant is entitled to one “detention hearing”, where the issue is whether the court can set conditions that will reasonably assure the appearance of the defendant and the safety of the community. If so, the court will order the defendant released on a set of conditions that will include the setting of an unsecured bond, i.e., one which does not require the actual payment of the bond. However, the bond would become due and payable if the defendant violates his or her release conditions.
Federal law provides that in cases where defendants are charged with certain serious drug, gun, and violence offenses, it is presumed that no set of release conditions will reasonably assure the appearance of the defendant and the safety of the community. In such a case, the court will order the defendant to be detained pending trial unless the defendant can rebut the presumption of detention.
Being released pending trial on state or federal charges is very important not only to the defendant’s ability to maintain employment and preserve family ties, but also to his ability to assist his criminal defense attorney in preparing for trial. An experienced criminal defense attorney is best able to present information to the court to maximize a defendant’s chances of release. It is inadvisable for a defendant to represent himself at a bond or detention hearing.
Fighting the Trial Without Losing the Appeal
A good criminal defense attorney not only tries to win the trial in front of the jury but works to preserve any legal issues for appeal. In North Carolina, this can be tricky.
Under North Carolina law, it is not sufficient to file a written motion to suppress evidence and then litigate that at a pretrial motion hearing. The attorney must also make an on-the-record objection at the time the evidence is offered into evidence in front of the jury. If the attorney fails to do this, then the defendant will be held to have waived appeal of this issue.
The fact that this is a common mistake by criminal defense attorneys is illustrated by two opinions handed down on the same day, February 21, 2017, by the North Carolina Court of Appeals. In State v. Gullette, the defense attorney had moved to suppress an out-of-court photo identification of the defendant on the grounds that it was unfairly suggestive and was obtained in violation of a new state statute. However, after the court ruled against the defense during a pretrial hearing, the defense attorney failed to object to this evidence when it was offered into evidence during the trial. The Court of Appeals rejected appellate review of the issue because the defendant failed to preserve the issue.
Similarly, in State v. China, the defense attorney had filed a pretrial motion to exclude evidence of the defendant’s recent release from prison. He had also objected during trial to the State’s stated intention to elicit such evidence from a witness. However, he did not object when the prosecutor asked the witness questions which elicited the testimony about the defendant being in prison. Therefore, the Court of Appeals held that the defense had failed to preserve this issue for appellate review and dismissed the defendant’s appeal of that issue.
The moral of the story: a criminal defense attorney in North Carolina must timely object to admission of evidence before trial, but if the judge denies the motion, must also object again when the evidence is offered into evidence in front of the jury. Otherwise, there will be no ability to pursue that issue on appeal.