Tag Archives: Law

How hard is it to get a warrant?

cell phone recordConnecticut claims it is too hard to get a warrant to obtain the cell phone records. In Connecticut-the police can obtain the cell phone records of “anybody” with an “ex parte  application. Here is the article from “a public defender”.

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Sunshine Laws and Access to Public Records in NC

Mmmm....cake.  And government info.
Image by emkeller via Flickr

Are records really public?

BY DALE HARRISON
Sunshine Center — Elon University

N.C. Gov. Bev Perdue issued a proclamation declaring the week of March 15 Sunshine Week across North Carolina. Sunshine Week celebrates transparency in government and calls attention to its importance in our democracy.

This past year since Sunshine Week 2008 has been a reminder that some need to be reminded of the word “public” in public records.

The record is clear. State law is utterly unambiguous:

“The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people.”

The American public takes its property quite seriously. To be denied what we rightfully own is cause for great consternation. Yet across the state, we are routinely denied our property by “public” officials who seem to be subscribing to an outlaw philosophy that, “Possession is nine-tenths of the law.”

It’s not. The law is explicit: “The public official in charge of an office having public records shall be the custodian thereof.”

The “custodian thereof” — not the owner thereof.

For state officials to treat the public as a nuisance when it requests its own property is unconscionable.

Nevertheless, this is what happens continually from the high peaks of Western Carolina to the lowlands of the Carolina Coast.

What part of “public” do “public officials” not understand?

Public servants in all forms routinely deny records to their rightful owners, from sheriffs to animal shelter directors, from fire chiefs to city and county attorneys, and so on.

What would result if other custodians routinely denied us our property? If a customer shows up at a bank to withdraw some cash, and she is stonewalled or treated as a nuisance, she would take her money elsewhere.

The bank stands to lose.

But public officials in North Carolina know better: There is nothing to lose by denying citizens their records except the public trust, a clear conscience, and a sense of public service – which, sadly, matter too little to too many state officials.

It’s time for a change. If public officials can’t do the right thing for its own sake, the law needs to respond.

There was a prime opportunity in the past year to remedy the greatest obstacle to transparency in North Carolina government: providing a tangible incentive to public officials to honor the Public Records Law.

The Open Government Act was passed by the N.C. Senate in last year’s session and delivered to the House. But just like a rogue public official stonewalls a public records request, the House mercilessly killed the bill, a move orchestrated by House Speaker Joe Hackney.

The act would have strengthened the Public Records Law in two significant ways, perhaps the most notable of which was providing automatic recovery of attorneys fees for citizens who sue for wrongful denial of their public records property. State agencies and servants would have been provided the incentive they need to honor the law: their pocketbooks.

This would have been the second time in the last few years that the state legislature attempted to strengthen this portion of the law. Public officials and judges didn’t get the message the first time in 2005.

With few exceptions, judges in the state have not had the courage to make government pay when it breaks the law.

The act also would have provided a mediation mechanism to resolve public records disputes before they become lawsuits. It is odd, indeed, that current state law provides only for mediation of disputes over the cost of public records through the state’s PIO chief, but not mediation for wrongful denials.

Arguments against the slain act have been feeble, at best.

In July of last year, Hackney claimed there just wasn’t enough time in the last session to pass the act. Instead, he referred it to committee to carry out the act’s death sentence.

However in January, Hackney indicated he is interested in a bill that provides for some version of automatic recovery of attorneys fees.

“He just wants to make sure the fees are reasonable,” said Bill Holmes, a Hackney spokesman, as reported in The News & Observer. The paper also reported that Hackney wants to be sure judges retain discretion in awarding attorneys fees.

But that discretion is precisely the problem with the current law. The new law is intended to remedy the failure of judges to award fees when warranted.

And quite frankly, this isn’t Hackney’s call. The Senate made its wishes clear by passing the act last year, and the House should have the same opportunity – regardless what the speaker thinks.

The chief argument against automatic recovery of fees has pointed to the absence of a reciprocal provision in the new law to require that citizens pay attorneys fees when warranted.

But there are two fundamental problems with that position. First, citizens already pay the attorneys fees of state agencies through their tax dollars. Second, the law already provides for citizens to pay the attorneys fees of state agencies if a lawsuit is filed “in bad faith or was frivolous.”

It is time to revisit the Open Government Act – and not having time is no longer an excuse.

Further, it is time for public servants who are serving something other than the public to take note of the word “public” in public official — and in public records.

Dale Harrison is the assistant director of the Sunshine Center at Elon University and a professor of journalism in the School of Communications.

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Alienation of Affection and Criminal Conversation in NC

From the Rosen Law Firm

Alienation of Affection and Criminal Conversation

An outsider’s interference with marriage can cost the outsider big bucks in North Carolina
Fairly high-dollar awards in such cases have existed here for a number of years, a fact not generally known. As long ago as 1926, for instance, a jury in MaconCounty rendered a verdict in the amount of $12,000 against the lover of plaintiff’s wife. A 1931 jury in Forsyth County held against plaintiff wife’s father-in-law for $38,000. A Rowan County jury awarded $30,000 against a husband’s girlfriend in 1969. In 1982, our Court of Appeals affirmed a jury verdict in the amount of $25,000 in compensatory damages and another $25,000 in punitive damages.

Moving into the 1990’s, North Carolina juries were even more generous. A 1990 Forsyth County jury award of $300,000 in punitive damages for alienation was sustained on appeal, even though the court struck the compensatory award for $200,000. In 1997 alone, a jury handed down $1.2 million against a female paramour in Forsyth County and awarding another jilted wife $1 million in Alamance County and a deceived husband $243,000 in Wake County. In late 1999, a judge in Durham County valued compensatory damages in a case brought by a husband against his wife’s lover at less than $3,000 in compensatory damages but the judge still awarded $40,000 in punitive damages on the criminal conversation claim.

Even in this decade, the trend of generosity has continued. In August of 2000, a Burke County judge awarded a devastated wife $86,250 for alienation of affection and $15,000 for criminal conversation, totaling $101,250. In May of 2001, in Richmond County, the jury answered the issues of alienation of affection and criminal conversation in favor of the scorned husband and awarded him compensatory damages of $50,000 plus punitive damages of $50,000. Another distraught husband, in Mecklenburg County, received an award of $1.4 million in May, 2001 comprised of $910,000 in compensatory damages and $500,000 in punitive damages.The jury found the doctor who had had an affair with this man’s wife liable for both alienation of affection and criminal conversation. After an appeal the original award of compensatory damages was reversed, the punitive damages award, however, was upheld. In 2007, a Cook County judge ordered a man to pay $4802 to a husband who was grieving the loss of his wife after an affair.

Since our Supreme Court refused to abolish these causes of action in 1984 and since our legislature has shown no strong interest in abolishing these causes of action, sizeable damage awards remain a real possibility in North Carolina. More than 200 alienation actions are filed in an average year.

Conduct after date of separation

The date of separation is an important date in alienation of affection and criminal conversation cases. Our courts have decided that conduct that occurs before the date of separation is relevant to these types of actions. This is because a claim of alienation of affection must prove that, among other things, the defendant’s malicious conduct contributed to or caused the loss of affection in the marriage. The parties to the marriage must still be together in order to prove this claim. It is important to note, however, that conduct which occurs after the date of separation may also be considered by a judge, if that conduct corroborates the conduct that occurred before the date of separation. In criminal conversation actions, by contrast, post-separation conduct is even more important. Conduct which occurs after the date of separation can be considered by a court to not only corroborate behavior that occurred before the date of separation, but is enough on its own to maintain an action for criminal conversation.

North Carolina is in the minority

The existence of continuing cases of this sort in North Carolina appears to surprise lawyers and residents in many other states because we are now in a very small minority of jurisdictions — including Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, South Dakota and Utah — which still recognize both alienation of affection and criminal conversation. Forty three states and the District of Columbia have abolished the cause of action for alienation of affection. The states vary widely in the way they deal with this issue: in some states, only one of the two causes of action continues to exist, and thus proof of the claim and/or damages have been significantly curtailed in recent years. None of these reforms has altered the stance favoring such claims in this State.

Criminal Conversation

Criminal conversation is the name for a civil lawsuit sounding in tort (a kind of injury to the person) based on sexual intercourse between the defendant and the plaintiff’s spouse. Criminal conversation is something like a “strict liability tort” because the only things the plaintiff has to prove are (1) an act of intercourse and (2) the existence of a valid marriage between the plaintiff and the adulterous spouse, and (3) the bringing of the lawsuit within the applicable statute of limitations. For all practical purposes, there are no obvious defenses to a timely claim for criminal conversation, provided the plaintiff can prove a valid marriage and intercourse between the defendant and plaintiff’s spouse. It is not a defense that: the defendant did not know the other person was married, that the person consented to the sex, that the plaintiff was separated from his or her spouse, that the other person actually seduced the defendant, that the marriage was an unhappy one, that the defendant’s sex with the spouse did not otherwise impact on the plaintiff’s marriage, that plaintiff had mistreated the spouse, or that the plaintiff had also been unfaithful. It might be a defense that the plaintiff “consented” to the illicit intercourse; but defendant would have to show that this approval or encouragement had pre-dated the extramarital conduct.

Alienation of Affection

An action for alienation of affection, on the other hand, does not require proof of extramarital sex. Despite this difference, an alienation claim tends to be more difficult to establish because it is comprised of more elements and there are some additional defenses. To succeed on an alienation claim, the plaintiff has to show that (1) the marriage entailed love between the spouses in some degree; (2) the spousal love was alienated and destroyed; and (3) defendant’s malicious conduct contributed to or caused the loss of affection. It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact on the marriage. Thus, defendant has a defense against an alienation claim — but not to a claim for criminal conversation — where it can be shown that defendant did not know that the object of his or her affections was in fact married. As with a criminal conversation action, it is not a defense that the non-innocent spouse consented to defendant’s conduct. But it might be a defense that the defendant was not the active and aggressive seducer. If defendant’s conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.

Criticism of these laws

Critics of such laws call them obsolete methods for legislating morality (despite the fact that most criminal laws could be said to legislate morality). Critics also say the laws do not fulfill their purpose of protecting marital relationships, inequitably punish only one of two guilty parties, and serve as an excuse for blackmail or forced settlements. The critics add that such suits can also be misused by embittered spouses seeking vengeance against a third party interferer and that injured spouses cannot possibly be compensated for a lost marriage. On the other hand, defenders point to the virtual non-existence of criminal prosecutions for adultery in current American culture, a need to uphold the sanctity of the marriage vows through some kind of formal legal sanction for violation of marital promises, and the potential deterrence of rampant extramarital affairs by means of the threat of monetary damage suits. Defenders also point out that adultery has a very long history of illegality; and that it is therefore appropriate for the civil laws of criminal conversation and alienation of affections to perpetuate Western culture’s longstanding disapproval, by law and by custom, of extramarital affairs.

Whether one thinks it is a good or a bad situation for North Carolina to continue to recognize such claims by spouses claiming injury to their marriages may largely depend, then, on one’s views of the need in the 1990s for protection of the marital relationship through civil litigation against the non-spouse wrongdoer and for monetary remedies for the alleged harms caused to that relationship. Indeed, some commentators have mentioned that high jury verdicts and the renewed popular interest in lawsuits for alienation of affections and criminal conversation may signal a growing societal disaffection with overly permissive sexual standards and a desire for stricter enforcement of family values. Pro-family writers believe it important that deceived spouses have litigation-oriented opportunities for vindication and that society retain this acknowledgment, however marginalized at present, of the supremacy of the institution of marriage against unwarranted intrusion. Ultimately, of course, these are all subjective and philosophical viewpoints likely to vary considerably from person to person.

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More Unlicensed Activity in NC.

The following news is provided by Jim Mabry of Foresight Investigations.  Since starting this blog, this has to be the 3rd or 4th story reported.  I will start another page where we can post this unlicensed activity and maybe have this available to district attorneys.  It seems that most of our bad press comes from people who do not know how to conduct an investigation and are also unlicensed.

Police: Man posed as private investigator

Thursday, November 6, 2008
( updated 4:37 pm)
Credit: Margaret Baxter / News & Record

GREENSBORO — Police have arrested a man they say was posing as a private investigator.

Greensboro police said Stacy L. Forster was arrested Wednesday and charged with obtaining property by false pretense. A police news release did not include Foster’s age, address or bond information.

According to police, Forster operated a company called Faith and Hope Security and Investigations. Police said he is not licensed to conduct private investigations or conduct private protective functions.

Police said the charge stemmed from taking money for conducting private investigations. Private investigators must be licensed by the N.C. Department of Justice.

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New SC DUI Law

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From the SC Criminal Defense Blog

Posted On: February 10, 2009 by Bobby G. Frederick

South Carolina’s new DUI law took effect today

S.C.’s revised DUI laws went into effect today at noon. Below is a basic outline of the major changes, from a post in May of last year:

Revised penalties under the new 56-5-2930:First offense: $400.00 or 48 hours to 30 days in jail, or 48 hours community service.
If the blood alcohol concentration (BAC) is .10 to .15: $500.00 or 72 hours to 30 days in jail, or 72 hours community service.
If the BAC is .16 or greater: $1000.00 or 30 days to 90 days, or 30 days community service.

Second offense: $2100.00 to $5100.00 and 5 days to 1 year in prison.
BAC of .10 to .15: $2100.00 to $5100.00 and 30 days to 2 years in prison.
BAC of .16 or greater: $3500.00 to $6500.00 and 90 days to 3 years in prison.

Third offense: $3800.00 to $6300.00 and 60 days to 3 years in prison.
BAC of .10 to .15: $5000.00 to $7500.00 and 90 days to 4 years in prison.
BAC of .16 or more: $7500.00 to $10,000.00 and 6 months to 5 years in prison.

Fourth or subsequent offense: 1 year to 5 years in prison.
BAC of .10 to .15: 2 years to 6 years in prison.
BAC of .16 or more: 3 years to 7 years in prison.

The jury makes the determination of what the BAC was, following a guilty verdict. If the jury does not reach a unanimous decision regarding the BAC, but does find that the accused is guilty, then the sentence is based on the non-enhanced penalties.

Another major change in the DUI law will be the deletion of the requirement that Miranda rights be read to the accused at the breath-testing site. Miranda must still be read to the accused on the roadside video, but not at the station.

The major changes are going to be in the penalties, which are now graduated based on BAC result. I’ll more of the details in the coming weeks, as time permits.

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How Politics Influences Criminal Law

Here is an example of how politics influences the crime level, whether or not an activity is legal or not.

Blueprints

N.C. legislation that makes vandalism a felony becomes law

Triangle Business Journal – by Sonia L. Johnson

Dathan Kaszuk
Wake County District Attorney Colon Willoughby says some cases of vandalism “cried for” tougher punishment.

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RALEIGH – To combat the many acts of vandalism reported every year, the state’s construction industry has pushed through legislation that could put offenders behind bars for as long as 12 months.

A bill signed by Gov. Mike Easley that goes into effect on Dec. 31 elevates acts of vandalism that result in more than $5,000 in damages to class 1 felonies. Previously, such acts were classified as misdemeanors.

For many in the construction industry, the change could not come soon enough. Counties are reporting thousands of cases of vandalism, and some of these crimes are said to occur at construction sites.

In Wake County, not including incorporated areas such as Raleigh, the number of cases of vandalism in 2006 and 2007 was 1,838, of which arrests were made in 219 cases, according to the Wake County Sheriff’s Office.

This year, as of Aug. 22, the county reported 547 cases with 60 arrests. Of the 547 cases, 23 occurred at construction sites.

Statewide, in 2007, the number of arrests tied to vandalism dropped to 9,876, compared to 10,882 arrests reported in the previous year.

Vandals are said to specifically target remote or less-frequented places such as subdivisions under construction, country churches and schools that are closed for summer vacations.

CASE OF A MARINE

Leading the charge for tougher punishment was state Rep. Robert Grady, a Republican from Onslow County who sponsored House Bill 946. Grady points to the case of a young couple in Onslow County who bought their first home in a new neighborhood. The husband – a Marine – was readying to leave for Iraq. The couple and furniture arrived at the home, ready to move in before he left. The man unlocked the door to find that vandals had left a trail of destruction. They had hammered every appliance and metal fixture once, expertly, aiming to ruin each piece. Every countertop and toilet was broken. The faucets on both floors were opened, and the house was flooded. The second story floor had collapsed from the weight of the water. The wiring was ruined. Damage to the house totaled $25,000 – too much money for a couple who had already sunk their savings into their home.

According to Grady, the builder took pity on the couple and let them have another house, saddling himself with the damaged home. But there was more bad news. Four other unsold homes in the neighborhood had also been systematically vandalized. The total bill for damages handed to the builder totaled $125,000.

Grady says that while the vandals were later caught, there was no justice for the victims because the crime was classified as a misdemeanor, with a maximum penalty of a $1,000 fine and 30 days community service.

“The fellows that did it were sitting there laughing,” says Grady.

Grady was so upset over the story, over the pictures of the damage, that he led the effort to harden punishment for the crime. At legislative meetings, he held up pictures of the damaged home and the traumatized home owners. Both the Carolinas Associated General Contractors and the North Carolina Home Builders Association supported the legislation.

WANTON DESTRUCTION

After passing both chambers, the legislation was signed into law by Gov. Easley on June 25.

The aim of the legislation is to raise the stakes for the worst offenders, says Wake County District Attorney Colon Willoughby. “There were some cases that cried for more than a class 2 misdemeanor, with extensive damage and people bent on mischief, not just some kids … but on wanton destruction.” Grady says vandals are aware of the current, light punishment – in fact, they count on it.

He says the crimes are premeditated and that vandals choose properties with lower odds of getting caught. They also go in with a plan of destruction and often bring tools – hammers, paint etc. After a house has been vandalized, the builder has no choice but to replace broken mirrors, toilets and cracked countertops. One dent in a fixture warrants its replacement.

“It’s just pure destruction, and it’s a conscious act, full of hate and anger,” says Grady. “They might be sick, but they’re not crazy. They’re coldly rational and go in with a well thought-out plan of destruction.”

Says Carolinas AGC’s Building Director Dave Simpson: “(The legislation) couldn’t come at a better time because people are getting desperate, especially with the economy the way it is. It sends a strong message to the public that if you’re going to vandalize churches, schools and construction projects, you better think twice.”

But how much good can the law do? For that matter, how will vandals learn about the tougher punishment?

Willoughby says that because the punishment for vandalism is commonly known among such offenders, word will spread.

For its part, the NCHBA has signs ready for members to post at construction sites.

SECOND VICTORY

Conviction under a class I felony results at a minimum in community punishment. This includes some combination of fines, basic probation and community service. If the vandal has a prior record, the judge could raise it to intermediate punishment, which places the offender under supervised probation plus some other special condition such as house arrest or a sentence of 30 to 60 days followed by probation. The hardened repeater, Willoughby says, faces an active sentence of 6 to 12 months in jail.

Willoughby also points out that, once convicted of a felony, a person forfeits the ability to obtain certain licenses.

Raising the crime to a felony also gives prosecutors extra leverage, he says, and allows prosecutors to justify putting resources toward such cases.

This is the second major victory for the construction industry in fighting crimes. In 2005, builders welcomed a state law that tightened punishment for construction site thefts. The NCHBA had solicited horror stories from members, and those flooded in. That only left a gap around vandalism cases, according to Lisa Martin, director of regulatory affairs for the NCHBA. The association hoped legislators would be sympathetic to issues of vandalism at construction sites, sensitized as they were by the stories of construction site thefts. Passage of the vandalism law suggests that may be the case.

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