Get your CLE before the MCLE deadline!

Adrienne S. Blocker-Education VP - crop for wordpress  by Adrienne Blocker, VP of Education

The February 28 MCLE reporting deadline is approaching fast.  Sign up for one of NCAJ’s live CLE offerings listed below before you run out of time.  NCAJ CLEs are timely and engaging with an emphasis on practical skill development.  Register today!  And you can also learn more about NCAJ’s many convenient online CLE offerings at ncaj.com/cle.

Civil Procedure Boot Camp  |  January 11, 2019 | NCAJ HQ
Learn from the masters as they describe best practices in civil procedure

Anatomy for Lawyers  | January 18, 2019 | NCAJ HQ
Study the parts of the body that are most susceptible to injury and those that are not through videos, illustrations, and animations

Employment Law 2019  | February 1, 2019 | NCAJ HQ
A practical, must-attend seminar for the employment law practitioner

DWI 2019 | February 8, 2019 | NCAJ HQ
Join us for the annual winter DWI program

Ultimate Civil Trial Notebook II  | February 15, 2019  | NCAJ HQ
Back by popular demand, join Program Chair Philip Miller for this highly informative seminar

Ethics Hot Issues  | February 20, 2019  | NCAJ HQ
Join NCAJ Legal Affairs Counsel Burton Craige as he leads this comprehensive seminar on ethics

Disbursements 2019  | February 22, 2019 | Triad
Explore the latest in disbursements including ERISA, Workers’ Comp liens in third party cases, Medicare/Medicaid reimbursements and more

Traffic Law | February 22, 2019 | NCAJ HQ
Expand your practice or brush up on your existing practice with this comprehensive traffic law program

Discovery Toolbox for the Family Law Litigator   | February 21, 2019 | NCAJ HQ
A comprehensive program that covers everything that a family law practitioner needs to know about discovery and the discovery process



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Specialized Lawyer Directories: Get Listed and Get Found

cloninger.brian  by R. Brian Cloninger

 

Today’s post covers improvements that have been made to the NCAJ Specialized Directories.

I always ask clients how they got my name. By far the most frequent answer is they found me online doing a Google search. Until recently, none of my clients found me using the NCAJ Traffic Referral List. Why are they able to find me (and other lawyers listed in the Specialized Directories) now? Keep reading for the answer, to learn why you should update your profile, and why you should get added to the directories, if eligible.

A week or so after NCAJ’s Annual Convention, I contacted Membership and Development Director Amy Smith to suggest changes to our membership profiles and the referral directories that would add a marketing benefit for NCAJ membership. She sent me a recent Trial Smith (aka MemberCentral) post entitled, “We’ve Enhanced SEO with Store, SeminarWeb, Events, and Blog Posts.” The single sentence post read: “New HTML Title Tags are now automatically inserted into pages making Store Items, SeminarWeb Programs, Events and Blog Posts not only more browser friendly for end-users, but also more search engine friendly, including more accurately titled search results in search engines.”

After I looked up the meaning of “SEO” and “HTML,” I started messing around on the NCAJ website and doing some Google searches. The improvements I suggested had already been made without me realizing it. I found myself.

Many of us have used the listserves to request referrals rather than using the NCAJ Specialized Directories. Now, we don’t have to use the listserve for that anymore. Even better, the public can now find NCAJ members easier using the directories or by simply doing a Google search.

All NCAJ members are listed in the Membership Directory. There is also a Bilingual Referral Directory (ncaj.com/bilingual). Listing in other Specialized Directories is only available to members of the Section. For example, listing in the Traffic Referral Directory (ncaj.com/traffic) is a benefit of membership in the Criminal Defense Section. These directories are accessible to NCAJ members and to the public. You must be a member of NCAJ to access the Products Liability and Construction Defects Section Directory (ncaj.com/products), and must be a member of the Section to be listed.

Update your profile (ncaj.com/updateprofile) to get added to the Specialized Directories, and get found!

 

 

NC Expunction Laws Give New Hope to Countless Thousands of North Carolinians

Effective December 1, 2017, the North Carolina General Assembly has implemented the broadest and possibly most important changes to existing North Carolina expunction laws to date. Senate Bill 445 passed the North Carolina Senate by a 47-2 vote and the House by a 103-2 vote. This bill contains numerous changes, but there are two MASSIVE changes in particular that this post is meant to highlight. If you are interested in an expunction and believe you meet these criteria or are close, you should contact us immediately at 336-574-2788!

NCGS 15A-146

Perhaps the most important change made by the legislature is under the expunction statute for dismissed charges or findings of not guilty. For years petitioners were limited to a single expunction under this statute, meaning you could only expunge one charge or one group of charges; however, under the new law petitioners can now receive unlimited expunctions of dismissed charges or not guilty charges, SO LONG AS THEY HAD NOT PREVIOUSLY BEEN CONVICTED OF A FELONY. The implications of this change are MASSIVE. If you have dismissed charges on your record you would like expunged, even if you have already previously had other dismissed charges expunged, you will now be eligible for further expunctions as of December 1, 2017!

NCGS 15A-145.5

The second most important change made by the legislature is under the expunction statute for convictions. While the legislature did not change the criteria as to what convictions may be expunged (limited to “non-violent” felonies and misdemeanors as defined by the statute) and the requirement that the individual not have any other misdemeanor or felony convictions other than those sought to be expunged, the legislature has reduced the waiting period from 15 years to only 10 years for eligible felony convictions and only 5 years for eligible misdemeanors.

As always, we will keep you updated of changes in North Carolina expunction laws. We have handled hundreds if not thousands of expunctions and are widely recognized for our abilities in this area. We would be happy to help you determine if you are eligible for an expunction and if so, to assist you in cleaning up your past records. If you think you are potentially eligible for an expunction, give us a call at 336-574-2788.

The Clifford Division of Clifford Clendenin & O’Hale, LLP (Clifford & Harris, PLLC as of January 1, 2018) is located in Greensboro, North Carolina and practices almost exclusively in State and Federal Criminal Defense. The Firm consists of Attorneys Locke T. Clifford, Andrew C. Clifford and Daniel A. Harris. All three are regularly included in SuperLawyers and Business North Carolina’s Legal Elite and represent several generations of excellence and a legacy of success. The firm handles all levels Felonies and Misdemeanors, DWIs, Traffic tickets, Expungements, Juvenile charges, DMV hearings, and much more. To learn more, visit http://www.NotGuiltyNC.com.

Navigating the Postconviction Innocence Process

If you or someone you know has been convicted of a felony in North Carolina, but are innocent of the crime, there are two avenues to pursue in the state court system to have your claim evaluated and potentially litigated: by filing a motion for appropriate relief (MAR) in Superior Court or by pursuing relief through the North Carolina Innocence Inquiry Commission (Commission) process.  Before doing either, it is important that you consult an attorney.

In 2006, the Commission was established to investigate postconviction innocence claims that could not be adequately addressed through the traditional postconviction process.  The statute that governs the Commission process can be found here and provides an opportunity for judicial review of cases where evidence of innocence might otherwise be blocked from review because of procedural bars.  It also gives power to an independent State agency to look for evidence that has been declared lost or destroyed.  The Commission staff has been able to find evidence in numerous cases where law enforcement or prosecution stated that the very same evidence could not be located.  This power is critical because oftentimes analysis of physical evidence is the only avenue one can pursue to prove innocence.

It is extremely important to understand that the Commission is a State agency, and its staff, including the attorneys who work there, never represent or advocate for any defendant.  They are merely a fact-finding agency.  Additionally, the Commission does not consider any constitutional claims such as due process violations or ineffective assistance of counsel—it only looks at evidence of innocence.

If you are innocent of the crime for which you were convicted, or believe someone else is, you can contact the North Carolina Center on Actual Innocence.  We have been investigating innocence claims and advocating for innocent men and women in North Carolina for 17 years.  We will evaluate your claim to determine the likelihood of obtaining relief in your case.  If you have a credible claim, we will help you determine whether filing an MAR or applying with the Commission is your best option.  If it is determined that your claim is best suited for the Commission, we can guide you through the process and be there to answer any questions you have along the way.

Cheryl Sullivan is the Senior Staff Attorney at the North Carolina Center on Actual Innocence.  The Center is a 501(c)(3) nonprofit located in Durham, North Carolina that identifies, investigates and litigates credible claims of innocence, obtaining justice for people imprisoned for crimes they did not commit, for the victims of those crimes, and for the actual perpetrators.

An Historic Effort and Righteous Results

When a post comes across the [email] listserv announcing a case-related win of any kind, it feels good to every criminal defense lawyer who is swinging the battle ax day in and day out.  We celebrate with congratulatory replies and if we see that winning attorney in court we high five her.  A win for one is a win for all, and the shared revelry helps each of us keep up the fight.

Over the past several years, many criminal defense section members have quietly secured big wins for federal inmates who were sent to prison during the War of Drugs from the 1980s to the 2000s.  That War, as we all now know, is uniquely responsible for our current reality of mass incarceration.  Former President Obama announced an unprecedented clemency initiative in 2014, focusing on those convicted of drug-related crimes who received crushing mandatory-minimum sentences.

In response to Obama’s initiative, several national bar associations organized and created the nationwide Clemency Project in 2014.  The American Bar Association, the American Civil Liberties Union, Families Against Mandatory Minimums, the Federal and Community Public Defenders and the National Association of Criminal Defense Lawyers (NACDL) all took part in the project.  NCAJ is an affiliate of NACDL.

Calling America a “nation of second chances,” Obama commuted a total of 1,715 sentences by the time he left office.  NCAJ Criminal Defense section members Raymond Tarlton and Elliot Abrams, with the help of the Office of the Federal Public Defender in the Eastern District, successfully reduced the sentences of 6 people.

In one of Abrams’ cases, his client, Tony Taylor, had been sentenced to life in prison for a crack cocaine possession conviction.  Obama’s commutation reduced the sentence to 293 months.  While still an oppressive sentence, Taylor will see freedom in another 10 years.  “I never thought I’d get to see my daughter as a free man; now I will,” Taylor told Abrams.

Section member Jamie Lau, the supervising attorney at Duke’s Wrongful Conviction Clinic, took on several cases so that law students could assist in the clemency initiative.  One heart-swelling success was the case of James Burns, who in 2005 was sentenced to 235 months in prison for selling small amounts of crack cocaine.  Burns headed to federal prison with a release date of 2024.  He was a model prisoner, well-liked by fellow inmates and prison staff.  When his clemency petition was granted, Burns’ prison case manager told Lau that “Mr. Obama has picked himself a deserving one.”  Burns new release date is March 4, 2017.

Dozens of section members worked on petitions for clemency, many of which were not granted.  Even in the cases not granted, however, our members connected with federal inmates and established a relationship that showed, quite simply, that those behind bars are not forgotten.  While not a “win” in the traditional sense, a much-needed extension of compassion still provided hope and emotional sustenance for both the inmate and the attorney who reviewed the case.

The Clemency Project is now closed, but represented the best of what we can be as lawyers:  a diverse group of volunteers from the nation’s bar who together screened the cases of more than 36,000 federal prisoners who asked for assistance.  In total, the Project submitted 2,600 petitions, 705 which were granted.  Obama reinvigorated clemency, and our section members were a part of an extraordinary coalition who embraced Obama’s initiative that yielded results worth celebrating.

 Sonya Pfeiffer, VP of Membership and Chair of the NCAJ Criminal Defense Section, is a partner at Rudolf Widenhouse www.RudolfWidenhouse.com.  

Is it legal to wear headphones while driving in North Carolina?

Yes. Sort of.

Though delayed from its original release date in October 2016, Apple still advertises its much anticipated “Airpod” headphones for release in the beginning of 2017. The headphones are wireless and boast speakerphone capability in its signature ‘pod’ design with competitive sound quality and comfort. Apple lists the headphones at a retail price of $169.00, a price well in excess of its current wired version, but one on par with, or cheaper than, many headphones in the Airpod’s prospective class.

In anticipation of their release, I felt it helpful to answer a question I often receive at the various dinner parties I’m invited to and attend (just kidding, I’m not that cool): Is it legal to wear headphones while driving? In North Carolina, the short answer is that yes, it is legal to wear headphones while driving. Many states in the nation have laws that regulate a driver’s ability to wear headphones while driving – and many more ban it outright. North Carolina is not one of them.

The reasons for banning the headphones are obvious, chief among them is that they substantially interfere with a driver’s ability to hear and respond to emergency sirens or other roadway emergencies that arise while driving. That is why in California it is legal to listen to music in headphones while driving as long as only one pod is in the driver’s ear and the other ear is open to hear and respond to emergency situations.

While no law in North Carolina specifically prohibits the use of headphones while driving, that does not mean drivers in the state can use them with impunity. For one thing, it should be noted that if any driver intends to travel beyond the jurisdiction of North Carolina, it may or may not be legal in the bordering state. (South Carolina – legal; Tennessee – legal; Georgia – illegal; Virginia – illegal). For another, and perhaps more salient thing, the effect of wearing headphones may cause a driver to violate already existing traffic laws in North Carolina.

To extrapolate on the above-contemplated scenario, if a driver in North Carolina cannot hear emergency sirens, and fails to react according to specific statutory directions to allow an emergency vehicle to pass, that is against the law in North Carolina.

N.C.G.S. § 20-157 sets forth as follows: Upon the approach of any law enforcement or fire department vehicle or public or private ambulance or rescue squad emergency service vehicle, or a vehicle operated by the Division of Marine Fisheries of the Department of Environmental Quality, or the Division of Parks and Recreation of the Department of Natural and Cultural Resources, or the North Carolina Forest Service of the Department of Agriculture and Consumer Services when traveling in response to a fire alarm or other emergency response purpose, giving warning signal by appropriate light and by audible bell, siren or exhaust whistle, audible under normal conditions from a distance not less than 1000 feet, the driver of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb, clear of any intersection of streets or highways, and shall stop and remain in such position unless otherwise directed by a law enforcement or traffic officer until the law enforcement or fire department vehicle, or the vehicle operated,” by the state shall pass. [Emphasis Added].

A driver with headphones in runs a real risk of not being able to hear the emergency vehicle within 1,000 ft under normal auditory conditions, as the headphones would certainly move the condition from the realm of normal to abnormal. It puts a lot of faith in visual clues. Not only is a violation of the above-cited subsection a Class 2 Misdemeanor, it is also negligence per se, so apart from criminal culpability expected from its violation, it can also threaten to create significant civil liability should any injury happen as a result of the driver’s failure to follow the statute’s directions for oncoming emergency personnel.

What if injury does happen as a result? Well, that makes it a Class 1 Misdemeanor. Serious injury or death? That’s a felony.

As is often the case in the law, the short answer is very rarely the complete one. While no law specifically prohibits the use of headphones while driving in North Carolina, their use can substantially interfere with a driver’s ability to comply with already existing traffic laws the violation of which gives way to serious consequences.

 

Taylor Hastings is an attorney from Chapel Hill, North Carolina; his practice focuses on criminal defense and civil litigation. In 2014, he started Hastings Law & Counsel, PLLC, a law firm that provides legal assistance throughout the triangle in state and federal court. Please visit www.hastingsnclaw.com to learn more or call 919-913-4701 for specific answers to legal issues.

New Resource for Miller Cases

Earlier this year, the Supreme Court of the United States issued its opinion in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 622 (2016), which made the holding of Miller v. Alabama, 183 L. Ed. 2d 407, 424 (2012), retroactive. Miller, of course, held that mandatory life without parole sentences for juvenile defendants violate the Eighth Amendment ban on cruel and unusual punishment. However, Miller also laid the groundwork for the Court’s determination in Montgomery that a discretionary life without parole sentence also violates the Eighth Amendment “for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, 193 L. Ed. 2d at 619 (quoting Miller, 567 U.S. at ___, 183 L. Ed. 2d at 424).

The decisions in Miller and Montgomery have already affected North Carolina and will continue to influence juvenile delinquency and criminal cases in this state for years to come. Soon after the decision in Miller was issued, the North Carolina General Assembly enacted a statutory scheme for sentencing juvenile defendants convicted of first-degree murder. Under the new statutory scheme, trial judges retain the ability to impose discretionary life without parole sentences for those defendants. North Carolina is also one of only two states in which 16- and 17-year-olds charged with crimes are prosecuted in adult criminal court. Under a separate law, cases in which a juvenile court judge finds probable cause to believe that a 13-, 14-, and 15-year-old committed first-degree murder are also automatically transferred to adult criminal court. In light of the Supreme Court’s ruling that Miller is retroactive, as well as unique aspects of North Carolina law that funnel juveniles to superior court, there will be many cases across the state that will result in sentencing hearings to determine whether defendants who were juveniles at the time of a murder should receive sentences of life in prison with or without parole.

To help attorneys prepare for these hearings, a working group of attorneys from the Office of the Juvenile Defender, the Office of the Capital Defender, the Office of the Appellate Defender, and North Carolina Prisoner Legal Services has developed a handout entitled, “Strategies for Litigating Miller Cases.” The handout provides advice for obtaining mitigating evidence, a description of the research that influenced Miller and Montgomery, a discussion of constitutional arguments against life without parole sentences, and much more. The handout also provides hyperlinks to sample motions and other resources that will aid attorneys as they defend their clients in these cases.

If you are retained or appointed to handle a retroactive sentencing hearing or a case involving a new first-degree murder charge against a juvenile client, please be sure to review the handout, which is available on the Appellate Defender website. In addition, if you are interested in joining a listserv about Miller issues, please send an email to David Andrews, Assistant Appellate Defender, at David.W.Andrews@nccourts.org. The listserv will enable attorneys in the working group to post new appellate court decisions on Miller issues and provide a forum for questions on Miller cases. Finally, please stay tuned for announcements on training events for Miller cases. Over the next several months, the working group will develop presentations on Miller issues and will work to share those presentations to attorneys across the state.

David Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services.  OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.