Legal Blog

UNLIMITED EXPUNCTIONS FOR DISMISSED/NG CHARGES IF NO FELONY PRIORS

Awaiting Governor Cooper’s signature is SB 445 which modifies NCGS § 15A-146. The new proposed law permits an unlimited number of expunctions for charges which were dismissed or disposed of by a finding of “not guilty” or “not responsible” as long as that person has not sustained a felony conviction. This is a major modification of the law which previously required that no previous expunctions had been granted and the dismissals must have occurred within a 12-month period or within the same court session.
Additionally, a person may file a petition for expunction of a nonviolent misdemeanor or nonviolent felony conviction if the person has no other misdemeanor or felony convictions. Non-violent felony convictions can be expunged 10 years after the conviction date or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later. Nonviolent misdemeanor convictions may be expunged after 5 years after the conviction date or probation or post-release supervision completion. This is a substantial reduction from the current waiting period of 15 years. (NCGS § 15A-145.5) Once signed, this law will be effective on December 1, 2017.
Update: This bill was signed into law and takes effect December 1. 2017.


THE US SUPREME COURT STRIKES DOWN NC LAW BARRING PERSONS ON SEX OFFENDER REGISTRY FROM ACCESSING SOCIAL NETWORKING SITES

In 2010, Mr. Packingham, a person listed on the sex offender registry, posted on Facebook a note of gratitude to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that made it a felony for a convicted sex offender to use social-networking websites which allow minors to create profiles. Today, the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

In 2012, I represented Mr. Packingham and filed a motion to dismiss because the statute infringed upon the First Amendment right of free speech. Today in an 8-0 decision, the USSC agreed. Justice Kennedy began by outlining what he described as a “fundamental principle of the First Amendment”: that everyone should “have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” And even if once it may have been hard to determine which places are “the most important” “for the exchange of views,” Kennedy concluded, it isn’t hard now. Instead, he reasoned, it is “clear” that the Internet and, in particular, social media provide such opportunities.

He wrote that North Carolina’s law stifled “lawful speech as the means to suppress unlawful speech.” By barring sex offenders from using social-networking sites, he continued, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” “In sum,” Kennedy concluded, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

This case is important because it “is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.” Justice Kennedy warned that the court should “exercise extreme caution before suggesting that the First Amendment provides scant protection for access” to ubiquitous social-networking sites like Facebook and Twitter.


RESTORATION OF GUN RIGHTS AFTER INVOLUNTARY COMMITMENT-PART 2

 
Under state and federal gun laws, a person who has been involuntarily committed to a mental health facility may not possess a firearm. (NCGS§14-404(c)(4), 18 U.S.C. § 922(d)(4)) However, this prohibition may be lifted by complying with the restoration protocol articulated in NCGS§ 14-409.42.
Step 1: File and serve a petition in the same district court which adjudicated the involuntary commitment once the commitment has ended and once the mental condition which led to the commitment has been treated. The petitioner must be able to prove that he/she will not be likely to act in a manner dangerous to public safety and that the restoration of the firearm rights would not be contrary to the public interest. Petitioner must sign a release of information so the prosecutor can obtain mental health records for the hearing.
Step 2: At the hearing, the district attorney can present evidence from petitioner’s mental health records, juvenile records, and criminal history. The judge will decide the case on the following items of evidence: the petitioner’s mental health and criminal history records, the petitioner’s reputation or other character evidence, and any changes in the petitioner’s condition or circumstances since the original determination or any findings relevant to the relief sought.
Step 3: The judge will decide if the petitioner has proven that he/she is not likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. If the judge rules in petitioner’s favor, the clerk of court will send the order to the National Instant Criminal Background Check System (NICS) and the prohibition against firearm possession is lifted.
Step 4: If the judge rules against petitioner, the case can be appealed to the Superior Court for a new hearing. If the Superior Court denies the petition, then the applicant must wait a minimum of one year before reapplying.


PERSONS WITH MENTAL HEALTH ISSUES AND THEIR RIGHTS TO POSSESS A GUN- PART 1

The United States was created on the premise that possession of guns and the right to arm oneself was a right of the individual. This right is not without exceptions and individuals who have been adjudicated to be mentally incompetent or involuntarily committed to a mental institution cannot possess a gun.
But what about persons who have not been adjudicated incompetent or involuntarily committed? What about persons who receive Social Security disability benefits because they are autistic, bipolar, depressed or anxious to a degree that they are unable to work and a money manager handles their finances? Should they be precluded from gun ownership?
Under the Obama administration, persons receiving SSI with a representative payee, such as a person with autism who had no intellectual impairment and no language impairment, a person with agoraphobia or social anxiety disorder would have been forbidden from keeping a firearm in their home for self-defense.
The strange bedfellows of the ACLU and the NRA fought this regulation on the basis that that without a judicial determination, the constitutional rights of those with mental issues were being arbitrarily abridged. Additionally, the inability of persons to work or manage their money did not correlate to increased likelihood to commit violence. Research shows that the cohort with serious mental health issues was no more likely than the general population to use a firearm to harm others or themselves.
This order was rescinded but persons with mental health issues and especially those who depend on government aid are a particularly vulnerable group and cannot be treated as a lesser class. We must avoid disparate treatment whenever possible.

“All animals are equal but some animals are more equal than others.” (George Orwell, Animal Farm)

Part 2 of this blog will address restoration of gun rights.

Sources:
N.C.G.S.§ 14-404(C)(4),
18 U.S.C. §922(d),
20 CFR Part 421,
Dist. of Columbia v. Heller (2008) 554 U.S. 570,
Jeffrey Swanson, “The ban on mentally ill people buying guns wasn’t ever based on evidence,” The Washington Post, February 10, 2017,
Implementation of the National Instant Criminal Background Check System Improvement Amendments Act, www.regulations.gov/document?D=SSA-2016-0011-3998
www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm


WHY TEENS TAKE RISKS AND HOW TO HELP THEM MAKE SAFE CHOICES

Although teens and young adults are encouraged to act independently in the academic, employment and social world, they are not biologically equipped to do so. The amygdala, the impulsive, “flight or fight” part of the brain is in control since the prefrontal cortex which is responsible for making well reasoned decisions is not mature until age 25. Consequently, their decisions are often irrational and flawed.
Teens and young adults are “sensation seekers” which means that they actively search out opportunities to have new and risky experiences. Add to this thrill-seeking component, the need for peer approval, the availability of unsupervised free time, the American emphasis on independence and the stage is set for poor decision making.
Teens and young adults spend most of their time in groups or cliques and the approval of peers directly correlates to feelings of positive self worth. Teens and young adults erroneously credit their peers with having a much more exciting life than they actually do. The belief that others are leading a much more exciting life spurs the adolescents and young adults to engage in more dangerous and risky activities than they would otherwise. Then their acts are used by other teens to ratchet up their excitement quotient.
Studies show that intelligence and academic success is no guarantee that teens will make well reasoned decisions. Self-efficacy is confidence in one’s self-worth and decision-making skills independent of the peer group. A confident and grounded teen may be able to reject an undesirable peer suggestion on a case by case basis by creating a safe way to fit in the group without expressly rejecting the choice of the peers. Going out with peers but volunteering to be the designated driver, or using humor or other diversionary tactics to maintain peer approval while avoiding the risky activity is more socially successful than avoiding the peer activity entirely.
Making the teen/young adult’s self-regulatory behavior more automatic and less dependent on individual self-determination maximizes the opportunity for good decision-making. In other cultures, self-control and delayed gratification skills are taught at an early age and practiced in daily life. If the safer course of action is ingrained in the teen’s mind, the opportunity for independent thought is reduced as is the opportunity for a poor outcome.
Finally, minimizing unstructured time also reduces the opportunity for engaging in risky activities. In other cultures, teens do not engage in as many risky activities because structured schedules leave little time for discretionary time.


The US Supreme Court will decide my First Amendment challenge in Packingham v. North Carolina

In 2012, I represented Lester Packingham in the Durham county court and argued pretrial that a North Carolina law prohibiting registered sex offenders from accessing social networking websites was an unconstitutional infringement on his First Amendment rights. The judge denied the motion and the case was appealed. On appeal, the NC Appellate Court agreed with my argument but the NC Supreme did not. The case was accepted by the US Supreme Court and oral argument was heard on February 27, 2017. This is the link for the oral argument: www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1194_0861.pdf.

The New York Times reported:
“A Supreme Court argument on Monday about whether North Carolina may bar registered sex offenders from using Facebook, Twitter and similar services turned into a discussion of how thoroughly social media have transformed American civic discourse.The justices’ remarks, which indicated easy familiarity with the major social media services, suggested that they would strike down the North Carolina law under the First Amendment. Justice Elena Kagan said that President Trump, every governor and every member of Congress has a Twitter account.’So this has become a crucially important channel of political communication,” she said. “And a person couldn’t go onto those sites and find out what these members of our government are thinking or saying or doing.'”(www.nytimes.com/2017/02/27/us/politics/supreme-court-north-carolina-sex-offenders-social-media.html.)

I will post a new blog entry when this case is decided but it appears that the justices recognize the importance of access to websites in 21st century life.


“EMERGING ADULTS”- IT’S A MIRACLE THEY DO AS WELL AS THEY DO

I am often asked, “Why did my intelligent, college-bound teen daughter jeopardize her future by stealing an item? She got caught and now has a criminal case filed against her!” But with immature brain development and little experience in independent decision making, it is truly incredible that emerging adults do as well as they do.

Just for purposes of comparison, let’s peek into the life of an inmate in a maximum security prison. Imagine a life devoid of sensation and control. You live in alone in a small defined space. You may not choose where you live, where you go and what you do. You are ordered around by persons entitled to restrict your liberty. You are not permitted to wear certain clothing, have facial hair or wear cosmetics or jewelry. Your ability to move freely and are drastically restricted. You must ask permission to perform basic human bodily functions.
Oftentimes, you are completely separated from other persons. On the rare occasion when you are permitted to interact, the selection of peers, when this interaction may occur and the nature of the interaction is severely curtailed. Visual and auditory stimulation such as music, television, computers and printed materials are limited in scope and availability. You may not prepare or consume the food of your choice and have no input in the type and preparation of nourishment received. The availability and amount of the food is limited by external forces.
There are no opportunities to leave the confined space and you do not have access to society at large. When you are released into society, you are monitored in your daily activities by the parole department, advised where and with whom you may live, advised as to where you can work and precluded from freedom of association.

Now, look into the life of an “emerging adult.” This term is designated for the 16-25 year-old group who are increasingly being treated as adults yet do not possess a mature brain and may not be able to evaluate the consequences of their actions.
Imagine a life where sensation is everywhere but so is external control. You live in a very structured and restricted environment. You have very little discretion as where you live, where you go and what you do. Laws require that as a minor, you live at home and attend school. You present yourself to your superiors and are ordered to perform physical and intellectual tasks which are closely monitored and calibrated. As time progresses, the tasks increase in difficulty and you are pressured to distinguish yourself from other students by superior performance academically and in extra-curricular activities. You are rarely alone; you live with a small defined cohort (your family) and spend your days with a second larger cohort (the other students and teachers). Any discretionary free time is often limited in time and by the applicable supervisorial cohort (e.g., coaches and instructors.) You may be required to seek part-time employment which not only limits discretionary free time but injects an additional supervisorial element, the employer.
Your appearance, actions and speech are closely monitored. You are directed to conform your behavior, speech and expressions to a strict rubric for a multitude of hypothetical scenarios or rules of etiquette. You have very limited freedom of expression. Your ability to choose the content of your speech and when speech may occur is curtailed. Often, you must request advance permission to talk. Your locker and person may be searched without consent.
You have very little to no income and any money is spent is monitored. One or both cohorts may dictate which clothing to wear, whether cosmetics or a preferred hair style may be worn and when. Your food choices are selected by others.
Yet, on an increasing basis, you are released into society from the constraints of the cohorts and are able to function in the world unsupervised and free from any and all restrictions. You may drive, you may move freely and you are subject to all laws and penalties as any other adult who possesses a fully formed and mature brain. You are treated by society as an independent individual capable of exercising complete discretion in all aspects of life despite the fact that you have a little to no experience doing so.

Consequently, when emerging adults err or break the law, their actions seemingly without reflection or deliberation; this action should not be shocking. It does not seem so perplexing a question to ask why poor decisions were made when significant restrictions give way to little to no supervisorial or regulatory support simultaneous with society’s welcoming of them as full fledged adults. An inmate has a parole officer but the developmentally immature fledgling adult flies solo. So missteps and poor decisions making should be expected and increased freedom in monitored decision making as the teen ages should be encouraged.

*The next blog entry on this topic analyzes sensation seeking and the importance of peers in the daily life of the young adult.


WHY DO AFFLUENT AND ACADEMICALLY SUCCESSFUL ADOLESCENT GIRLS STEAL?

ISSUE: Why would a teen aged girl on the college track and with the financial ability to buy a desired item steal?

A significant percentage of the theft cases I handle are committed by teens who consciously choose to jeopardize their academic and professional futures by stealing despite the fact that they have money. When caught, the girl who intentionally committed the theft oftentimes with premeditation and planning cannot seem to comprehend or explain why she stole. This Blog attempts to elucidate reasons for this seemingly irrational behavior. Each reason will be discussed in separate Blog chapters.

Part 1: The reasons for teen self-sabotage are:
1) Biological (brain development, hormonal and emotional) infirmities and liabilities inherent to all teens
2) Self-imposed pressure to succeed
3) Parental pressure to succeed
4) Pressure to meet society’s standards for physical beauty
5) Pressure to achieve in non-traditional fields of study and sport while still adhering to feminine norms.
6) The desire to engage in risk taking activities as an emotional coping mechanism.


Does Alexa Kiss and Tell? Technology v. Privacy

“Alexa, play Beyonce.” “Alexa, what is the playing at the Southpoint cinemas?” “Alexa, how many cups are in a liter?” These commands and others posed to Alexa, a voice activated service created by Amazon can be easily become a little slice of the space-aged Jetson’s smart home in your daily world. But is Alexa a spy? Is there a record of what is said? Is this seemingly private “interaction” not so private and why do I care?

In the pending murder case of James Bates of Bentonville, Arkansas, the question of whether statements of Mr. Bates were recorded and could be used as evidence used against him in his pending murder case is at issue. Mr. Bates had an Alexa voice activated system in his home at the time Victor Collins’ body was found in Mr. Bates’ hot tub. Mr. Bates proffered explanations for how this occurred which didn’t jive with the physical evidence. Prosecutors served a warrant on Amazon to obtain any recordings made by Alexa and stored by Amazon which would aid in the prosecution’s case-in-chief or provide impeachment against Mr. Bates. If the warrant is not quashed, would there be anything incriminating to discover? The answer is that there are recordings made and preserved by Amazon which could be used to defeat or support Mr. Bates’ version of the facts.

What is Alexa, exactly? Alexa is an intelligent voice control service which in this case was connected to a small tower called Echo which is a Bluetooth speaker with a seven-piece microphone array. Alexa is described as a “passive listening device” which means that Alexa listens but does not record anything until she hears the activation word or wake word “Alexa”. Once the word “Alexa” is said, a small amount of audio content preceding the wake word and all content thereafter is streamed to Amazon’s network of connected computers where it is processed and stored. The audio record then lives in Amazon’s storage or Cloud until it is the subject of a subpoena or warrant or until you delete it.

In the Bates case, Alexa could have recorded evidence in the following ways: (1) all voice commands made to Alexa by Mr. Bates or anyone in his home would be recorded. (2) conversations between persons inside Mr. Bates’ home would be recorded if they were simultaneous to an Alexa voice command. (3) If the command required a significant period of time to achieve compliance such as, “Alexa, tell me when 20 minutes elapses” could result in all conversations occurring in the room being recorded until the Alexa task is completed.

Obviously any command or other function requested by Mr. Bates or the victim such as calendaring an event, purchasing an item, or linking up with another smart home service which conflicts with the defense’s version of the timeline of occurrences is problematic. As smart home and intelligent assistants functions assume a larger role in our lives be aware that a record is stored and even if you request deletion, there is no realistic way to ensure it is completed.

___________________________
The default activation word is “Alexa.”
“With far-field voice recognition, Echo can hear you ask a question from any direction—even while playing music.” (Amazon website)
For the complete list of Alexa commands see: www.cnet.com/how-to/the-complete-list-of-alexa-commands/


Why Do People Steal When They Have Money?

Theft from a retail store or from one’s employer is a common charge in criminal court. Sometimes, my client is aware of the motivation for the theft but often the client seems bewildered by his/her own actions. Why do people who have the money to buy a desired object try to steal it anyway? This blog will focus on adults who commit theft and a separate blog will address teen-age theft.

Many people steal because they feel that life has shorted them in some respect and by stealing, they are taking steps to correct this injustice. It is irrelevant that the store where the property was stolen had nothing to do with the deprivation; it is the fact that something of value has been obtained without payment which triggers a feeling of vindication.

Emotional deprivation occurs when feelings of rejection or unmet personal expectations motivate a desire to remedy one’s misfortune. By taking a desired item, he/she is trying to balance life’s injustices with a windfall. “The question they’re asking is, “How can I make up for what I feel has been taken from me?” Stealing offers—at least momentarily—relief, peace, and completion. For a few minutes, they’ve made life fair again.” (Shulman, Something for Nothing: Shoplifting Addiction and Recovery.)

Financial deprivation occurs when the person has less money, assets or material goods currently as compared with a time previously. It could be a paper loss such as a fall in the stock market or it could be a diminution in their standard of living. Alternatively, the person feels that he/she has less money, assets or material goods than friends, peers or celebrities.
Entitlement occurs when a person feels that they deserve more than what they are receiving in the sale transaction. Although similar to deprivation, entitlement occurs in a predominantly affluent person who believes that moral precepts do not apply to him/her.

“It becomes a cat-and-mouse game: What are you going to see me take today? They’d pay for one of the things they were still holding but drop something extra in their shopping bag, like their own version of a free gift,” said a former Sephora employee who detained a woman for hiding cosmetics and skin products behind her baby’s head in an $800 stroller. An Anthropologie employee commented that the thieves were their best paying customers; some upper middle class women buy very expensive clothing and then “accessorize” for free. “We were taught that our prime shoplifters were women and girls who were regular shoppers” said one ex-employee, who every night would find piles of security tags in the fitting rooms which had been removed from apparel that day. “They would spend insane amounts and at the same time steal a few items because they felt that since they had spent so much money, they were entitled to freebies.”

A manager from Macy’s concurred, “It’s often the best customers who steal the most. They’re spending $100,000 a year, but just stole a bag for $5,000,” the ex-staffer said. (Jamieson, Why The Rich Feel Entitled to Shoplift, The New York Post, Aug. 9, 2015)

Instead of motivation preceding action, a theft case can present an example of action preceding motivation. Since impulsive and unexamined acts can result in detrimental consequences, I have to grudgingly admit that my mother’s adage, “Think before you act” is sound advice.