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    • YET ANOTHER ASSAULT ON OUR RIGHTS July 6, 2016
      While the Republican majority in the North Carolina Legislature might be composed of Tea Party bigots appealing to their Neanderthal base, they’re not completely stupid.  They know how to whip the ignorant mob (who would actually benefit from progressive policies) into an indignant frenzy – all the while keeping that mob poor, ignorant and self-destructive.  […]
    • HB2: WHAT A DISGRACE. March 29, 2016
      REPUBLICANS: YOUR MASTERS ARE NOT HAPPY WITH YOU BUT PHIL ROBERTSON LOVES YOU. In case you missed it, my fellow freedom-fighters, last Wednesday, the Tea Party leadership in the North Carolina Legislature called a special session of the General Assembly at a cost of about $42,000.00 of North Carolina tax-payer money.  What crisis, you may […]
    • Moral Monday Round Two February 27, 2016
      This week I was privileged to represent two defendants from the most recent Moral Monday arrests at the North Carolina General Assembly’s Rotunda (North Carolina’s Forum ,if you will) .  These two cases were the first cases that the State of North Carolina called for trial stemming from the 2015 Moral Monday demonstrations against the […]
    • NON-STATUTORY AGGRAVATING FACTORS AND DOUBLE JEOPARDY February 15, 2016
      (THANKS TO THE LATE ANTONIN SCALIA FOR ACTUALLY PENNING SOME DECISIONS THAT WERE CORRECT.  R.I.P., I GUESS.) The following is based on actual events. Any resemblance to real persons, living or dead, is purely coincidental (How do these two disclaimers live with each other?) As we all know, there is no such thing as a […]
    • BLOOD TESTS January 26, 2016
      ADMISSIBILITY GOVERNING CHEMICAL ANALYSES; ADMISSIBILITY; EVIDENTIARY PROVISIONS; CONTROLLED DRINKING PROGRAMS A 1. 20-139.1(c1) ADMISSIBILITY A. NOTICE AND DEMAND. 1. WHEN THE STATE WANTS THE EVIDENCE INTRODUCED. NCGS 20-139.1(c1) is the notice and demand requirement that exists for the purpose of curing the confrontation clause problem facing the State whe […]
    • CHECKPOINTS ARE TERRIBLE. January 22, 2016
      IF YOU’RE A CRIMINAL DEFENSE LAWYER AND YOU’RE NOT CHALLENGING CHECKPOINTS, YOU’RE NOT A CRIMINAL DEFENSE LAWYER. 1. INTRODUCTION Challenging checkpoints requires, initially, a two-prong analysis: first, the checkpoint’s constitutionality on its face; and, second, its constitutionality as applied. The mistake that many defense lawyers make is looking at the […]
    • SOME THINGS ARE WORTH REPEATING January 12, 2016
      NON-STATUTORY AGGRAVATING FACTORS There is no such thing as a non-statutory aggravating factor. I repeat: There is no such thing as a non-statutory aggravating factor. All together now: There is no such thing as a non-statutory aggravating factor. NCGS 20-179(d)(9): “Any other factor that aggravates the seriousness of the crime.” This is the catch-all under […]
    • HAPPY NEW (RELIGION-FREE)YEAR January 3, 2016
      My hopes for 2016, my loyal followers, are for a year in which secularism replaces sectarianism, sanity replaces stupidity, reason replaces religion. 2015 has been a fascinating year.  It has highlighted the blight on our country of senseless gun-violence.  While people are being killed daily by guns that are not for hunting and exist for […]
    • Congratulate Me On My New Website December 29, 2015
      http://www.theraleighcriminallawyer.com.  and while you’re at it, visit my DWI website, http://www.TheRaleighDWILawyer.com.
    • I HAVE TWO REVIEWS; THEY’RE BOTH BAD November 11, 2015
      Those pesky reviews. As the lawyer with the highest number of pending DWI cases in Wake County, North Carolina, I marvel at the fact that I have only two reviews.  How, I wonder to myself, do all these other lawyers have so many reviews?  Why, I ponder, do I seem to attract clients who don’t […]

YET ANOTHER ASSAULT ON OUR RIGHTS

While the Republican majority in the North Carolina Legislature might be composed of Tea Party bigots appealing to their Neanderthal base, they’re not completely stupid.  They know how to whip the ignorant mob (who would actually benefit from progressive policies) into an indignant frenzy – all the while keeping that mob poor, ignorant and self-destructive.  They know how to divide and conquer.  They know that fear and bigotry wrapped up in the American flag, the christian bible and  “protecting  our women and children” will churn out support from their hate-filled followers for their hate-filled laws.  And they know how to chip away at our rights – bit by bit – until we are eventually left with no rights.

Ever since that most unlikely of friends to the criminal defendant, Antonin Scalia, penned Crawford v. Washington in 1995, restoring the right of the accused to be confronted with and to cross-examine his accuser – which the C0nstitution unequivocally guarantees and which years of case-law had buried in a teeming cess-pit of court-found exceptions – our legislature has relentlessly fought to scale back that right.  And has done so stealthily and in a way that isn’t going to yield much attention.  The North Carolina government knows that an ignorant populace is easily manipulated; so when it enacts laws that curtail the rights of the criminal defendant, the ignorant won’t raise their voices in protest.  Only the law professors and other “liberal elites” will.  The educated populace will raise the alarm. And the Duck Dynasty Republican base will do its duty and shout the voice of alarm down, never to understand that it just fucked itself again.  If only they were as passionate about the parts of the Constitution that are not the second half of the Second Amendment.  But again, ignorance and all that.

The latest effort (and success) by the Republican-dominated State legislature to deny the accused his confrontation rights can be found in the small changes to NCGS 20-139.1 – the DWI Notice and Demand statute. Sounds dry and it is; but it’s important.  The loss of a right here weakens the right over there. And every right everywhere.

Prior to the amendments to this statute, the law surrounding the admissibility of written blood, urine and breath reports as well as chain of custody reports in lieu of witnesses having to testify about what the reports say was: first, (Notice) that the State had to provide written notice and a copy of the report to the defense at least 15 days prior to the hearing at which the report would be used; and second, (Demand) that the defense failed to object and demand the presence of the witnesses  in writing  at least five days prior to that hearing.  In other words, in order for the defendant to insist that he be confronted with the witnesses against him, the State needed to advise him that it intended not to bring those witnesses to court, and, he, the defendant needed to object.  Obviously, if the State failed to put the defendant on notice, the defendant didn’t need to object.

Notice and Demand statutes are, themselves, designed to deny the defendant his confrontation rights by imposing some affirmative duty on the defendant to invoke that right, not to be deemed to have waived the right by failing to do something.  It seems to me that if the defendant has a right to confront the witnesses against him, the State should be required to bring those witnesses to court to testify and be cross-examined; not be allowed to warn the defendant that he – the State – is going to get the evidence in through an un-cross-examinable piece of paper unless the defendant specifically, and in writing, demands the presence of the witness. Since when does a right exist only after you’ve been threatened with the violation of it, and you have to express your objection, in writing, to the violation?

This already horrible piece of legislation has been worsened by two tiny yet significant changes.  The first is a change in the Notice provision: the State now must notify the defense no later than 15 days after receiving the report and at least 15 days prior to the proceeding (my itallics). The second, and far more significant change, is a change in the Demand provision that reads as follows:

If the proceeding at which the report would be introduced into evidence under this statute is continued, the notice provided by the State, the written objection filed by the defendant, or the failure of the defendant to file a written objection shall remain effective at any subsequent calendaring of that proceeding (my itallics)

The first change forbids the State from sitting on a report till the last minute, which under ethical rules it shouldn’t do anyway.  The second change – staggeringly – tells the defendant that if he hasn’t filed his objection and demand prior to the first court date, he is forever prohibited from filing it; he can no longer avail himself of the five-day rule to file his objection.  His right to confront the witnesses against him is forever lost because he didn’t file his objection prior to the first court date.  For all we know, the defendant intentionally didn’t file his objection prior to the first court date for tactical reasons, and he later discovered that his better tactic would be to file it (remember, we’re talking about DWI’s in District Court where there is no right to discovery).  Perhaps the defendant discovered a piece of information on that first court date that he couldn’t have discovered prior to it, and it was that piece of information that led him to rethink the mandatory invocation of his right. Maybe, he just forgot to file it; the case is continued for whatever reason – maybe it was the State’s motion to continue it – and the defendant is barred from filing his objection to the violation  of his rights at least five days prior to the next hearing or the next or the next or the next.

Or perhaps, I am hired by a defendant who realizes he doesn’t want his original lawyer because, you now, he doesn’t do things like file timely objections, and my client is forever precluded from filing his objection and exercising his absolute and unrestricted  right to be confronted with and to cross-examine his accusers, as the Constitution – without any notice and demand nonsense – guarantees, all because his previous lawyer didn’t know what he was doing!

Happy 240th plus one day, my wonderful champions of freedom.  Stay vigilant, my friends.

 

 

 

 

 

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