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Attorney Carilyn Ibsen's Blog

about Criminal Defense in North Carolina and South Carolina

 

Sunday, February 28, 2010

Miranda Rights- The Garrity Exception For Police Officers

Recently the United States Supreme Court handed down two cases that addressed Miranda Rights and if  police officers violated an individual's right against self incrimination under the Fifth Amendment. The rulings in both cases were favorable to the prosecution. Courts have continued to carve out exceptions to Miranda Rights; ruling it doesn't apply, or simply found that the person waived their Miranda Rights. Many people are surprised to know that police officers are often given broader protection against self incrimination than the average citizen.

I recently read a post addressing this issue from the Simple Justice blog about the Garrity Rule. The Garrity rule governs internal investigations for specific governmental employees; under the Garrity rule a public employee can be forced to admit criminal activity during a police investigation because they could be disciplined or fired for not speaking. However, those incriminating statements cannot be used in a prosecution of the criminal case. Each state has different laws- some are more favorable to police officers than others. For example in California, the Government Code contains the Peace Officers Bill of Rights which require, among numerous other provisions, that a police officer's interrogation(s) be conducted at a reasonable hour and any off duty officer will be paid for being present at the interview during off duty hours. North Carolina does not  have such police friendly legislation as this but the Garrity Rule is still in effect.

In light of recent events in Charlotte, including a Mecklenburg County Police Officer accused of multiple counts of sexual assaults and another police officer facing domestic violence charges, this portion of the Simple Justice Blog gave me thought:
So why are police officers given special treatment? Is a crime by a police officer less of a crime, less harmful, less significant than a crime committed by anyone else? Is the harm to the victim less painful? Is the harm to society less worthy of prosecution? It might well be argued that a crime committed by a cop is more significant, more blameworthy. After all, we give cops an enormous amount of power and authority, and if they can't be trusted to conduct themselves lawfully, it's a far bigger problem than crime in general. If anything, cops should be held to a higher standard of behavior by virtue of their oath and position. 
Every state has different protections. I should note that North Carolina does not have the generous statute that California affords police officers. However, it will be an uphill battle for a Charlotte criminal defense attorney to get access to internal investigation records from any police officer investigation. Hypothetically, if a person was facing criminal charges in Mecklenburg County, such as a DWI/DUI,  and the arresting police officer was subject to an ongoing internal investigation by Charlotte Mecklenburg Police Department, the criminal defendant wouldn't necessarily have access to police officer statements made during the internal investigation which could potentially reflect a highly compromised investigation.

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Tuesday, February 23, 2010

Driving, Texting and Talking in North Carolina

Driving, texting and talking has been all over the news lately. South Carolina is following in the footsteps of  many states and started the legislative process to ban texting while driving. The City of Clemson recently became the first city in South Carolina to ban texting while driving. Oprah recently had a popular episode on the subject and asked her employees to sign a pledge stating that they would not use cellular phones while driving. Federal employees driving government provided cars are also banned from texting after President Obama signed an executive order in October.

Yesterday the Charlottte Observer reported that North Carolina may try and take the current texting restriction a step further by outlawing the use of cell phones in cars unless the driver uses a hands free device. California has already taken that route- drive down the congested roads of Southern California and you will see a maze of Bluetooth headsets. Charlotte residents appear to support such a law- the Charlotte Observer article cited a WCNC-TV poll that found 47 percent of poll respondents favored a complete ban on cell phone use while 40 percent favored approval of hands free devices only.

Research studies and statistics clearly depict the the dangers of cell phone use. Look for more restrictive laws in the future.

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Wednesday, February 17, 2010

Domestic Violence Education in Classrooms?

Sometimes you read an article and it leaves you a little bit speechless. This one in the South Carolina Herald did that  to me today. Titled 'South Carolina bill meant to raise awareness of dating abuse', this bill would require school districts to have specific dating polices and discipline guidelines for students in grades six through twelve. The measure would require districts to print policies in school handbooks or on the school website. The bill was approved today in a Senate Education subcommittee. The sponsor of the bill, Joan Brady hopes that this bill will raise awareness among young people who live in a state with the eighth highest rate of domestic violence. Brady also wanted to incorporate a dating violence prevention program in the health curriculum, but the state does not have the financial resources. 

I will be interested to see how the public responds to this bill. 

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Wednesday, February 10, 2010

Concealed Weapon Charge- A Day in Mecklenburg District Court

I had a very interesting afternoon in court the other day. My client was facing a concealed weapon charge. The issue at trial was whether the gun was actually concealed. Excluding some specific exceptions, a person can be found guilty of carrying a concealed weapon under NC GS 14-269(a) if they carry a pistol or gun concealed on or about their person while off their own premises. A key element at this trial revolved around whether the gun was actually concealed in the vehicle he was riding in. My client had a good result- the judge dismissed the concealed weapon charge at the conclusion of the District Attorney's case. The judge also dismissed the underage consumption of alcohol and marijuana possession charge for lack of sufficient evidence.

I always do my research before trial. If an attorney wants to have a judge rule in favor of their client, the attorney needs to give the judge something to hang their legal ruling on. I found appellate decisions that supported my client's argument that the gun was not concealed but in plain view of someone walking up to the vehicle. Sound strange? A gun in plain view? Well, the policy behind the concealed weapon law is to protect those who don't know a person is carrying a gun. I thought the appellate case NC v. Gainey stated it well:
"The purpose of the statute is to reduce the likelihood  a concealed weapon may be resorted to in a fit of anger. In case of an altercation, one who has a pistol concealed will be less likely to act with restraint than if he were unarmed. If both parties are unarmed, bloody noses, black eyes, and torn shirts are the principal dangers which grow out of a fight. If, however, one or each party has a concealed weapon, the result of an altercation may be a funeral and a homicide trial, or two funerals."
Putting this all aside, guns are dangerous. Guns in vehicles- even more dangerous. At the end of the day, however, the state must meet their burden of proving my client's guilt beyond a reasonable doubt. That is the job of every well prepared criminal defense attorney- holding the state to their burden.

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