These are just a few of the things that the Government has given themselves the power to do:

1.  Execute any one of us without a trial or really without even charging us with a crime.  It is unbelievable how little coverage this has received in the media.  Basically, the Federal government can kill a United States Citizen if they are “suspected” of terrorism.  Where is the oversight?  Where are the checks and balances?  What does it mean to be suspected?  I see people who are suspected of all kinds of crimes all the time – some of them did it, some of them didn’t.  Are we really OK with giving the Fed Govt a license to kill?

2.  Detain any one of us indefinitely, again – without any judicial process whatsoever - no charges, no trial.  OK, if I am given the choice between being detained and being executed – I’ll probably opt for being detained – but that still doesn’t make it Constitutional.  If someone has committed a crime – charge them, try them, convict them, and sentence them.  This isn’t a country where we lock people up with no due process.  (At least it isn’t supposed to be)

3.  Restrict our right to assembly to “free speech zones”  This one goes back several years but is still being used.  Did you know that you often have to get a permit to protest?  Free speech is the hallmark of a free society.  But rather than embrace it, our government at both the federal and especially at the local level, have taken measures to limit the time, place, and manner that citizens can express their contempt for their government.

4.  Purchase our land against our will at a price that they determine to be “fair market value”  This one has been around a long time, but was given a hefty shot in the arm recently.  The government has long been able to force a private landowner to sell the land to the government via eminent domain.  Historically, it was used for public utilities or highways – in 2005 the US Supreme Court held that the Government can use eminent domain to take privately owned land and basically give it to a private developer in the hopes of increasing revenue.  So if your family has owned farmland for hundreds of years and the State of North Carlolina thinks that that land would make them more tax money as a privately owned strip mall – they can force you to sell it, regardless of whether you agree to their price.

I could go on for days with examples of the government overstepping their bounds.  The point is, little is done to stop it and the media seems content to just ignore it.  The federal government is working on legislation which would authorize them to take down websites based on their content so perhaps the media’s willingness to accept the status quo is merely self preservation.   150 Raleigh Police officers just received full on riot training and are being given riot gear by the Federal Government in anticipation of the DNC in Charlotte.   Peaceful protesters are being arrested and prosecuted in most every city for voicing opposition to the economic inequality inherent in our system.   Checkpoints are at an all time high as the Federal Government continues to give local law enforcement agencies federal money for continuing to put them up.

This country is becoming less and less free every day.  Its time that we all took a second to acknowledge that fact.

You are charged with a crime and given a court date a month or so out.  The citation indicates that you have to appear on that date regardless of whether that day works for your schedule or not.  Your only mechanism for resolving the case before your court date is to plea guilty in what the State calls “convenience court”.  You don’t want to plea guilty …

You show up in what the state calls “Disposition Court”, where most all misdemeanors are initially set.  Disposition Court is a place where the State process guilty pleas – there are no trials there – the officer who wrote you the ticket isn’t even there.  The DA tells you that if you want a trial, you will have to come back on a “trial date”.  You don’t get any say in when your trial date will be – the State gets to choose the day that they like based on when their police officer will be available.  If the date that they set doesn’t work for you – too bad, so sad, make it work.

You show up on the “trial date” ready for a trial.  This time, if the officer isn’t there – the case is going to be thrown out, isn’t it?  No.  If the officer isn’t there (which happens a lot) – the State will move to continue the case – which the judge almost always allows.  When the State moves to continue the case – you still don’t get to pick the date that works for your schedule, the case is set once again on the day that works well for the State.  There is no set number of continuances that the State might get in a given case – its up the judge whether to allow the State’s motion to continue – regardless of how many times they have already done so.  In a typical misdemeanor, the State gets somewhere between two and four continuances.

So you come back (again) on your trial date.  The officer is there this time, so certainly you will get your day in Court.  Not necessarily – the State gets to decide which cases they call for trial – and once the session of court ends (9AM – 1PM or 2PM – 5PM) – the rest of the cases that have not been called are designated as “not reached”.  You have no say in whether your case is one of the ones called for trial – only the State gets to decide that.  Now you have to come back again – and yes, the State picks the new date.

As if this isn’t one sided enough – it gets worse.  Lets say that the judge denies the State any additional continuances and they can’t prosecute.  The State takes a voluntary dismissal of your case but has the right to recharge you with the exact same offense and start the entire process over again!  Not only can they recharge you, they can put out a warrant for your arrest on the “new charge”.  Does this sound like due process?

I’ll tell you what really bothers me about the way the criminal calendar works in Wake County – if these cases were civil matters – Judges would be tossing these things out right and left with prejudice.  They would never let a plaintiff haul a defendant into court, set a trial date, have the defendant show up for that trial date and then move to continue the case because they aren’t prepared on the date that they set.

So what is the difference between a defendant in a criminal case and a defendant in a civil case?  The difference is this – criminal defendants have Constitutional protections that civil defendants do not have.  Criminal defendants are guaranteed due process of law.  It makes no sense that a civil defendant should enjoy more protection in the court calendaring system than a criminal defendant.  If anyone should be getting preferential treatment – it should be the only party in the entire building who is guaranteed the right to due process.  Instead – criminal defendants are walked all over every day.

The system needs to change – and it is up to the criminal defense bar to change it.  We need to be the voice for the defendant – we need to be objecting to the inequities in the system.   We need to show the bench what the process feels like from the defendant’s side.  The field isn’t going to level itself – we need to be willing to stomp on the ground until things even up.

Police will tell you that they have evidence that they don’t really have – DNA, fingerprints, a mystery witness – whatever they think they need to say in order for you to confess.  They will tell you that they will arrest your friends or family if you don’t consent to a search or admit that contraband is yours.  They will tell you that it is in your best interest to confess now – that they can help you if you just tell them the truth.  The officer who is investigating you is not your friend – she is not trying to help you – she is trying to bust you – never lose sight of that.

One of my favorite whoppers that the police use  is the old K-9 Unit standing by.  They want to search your car, you won’t let them.  They tell you that you will need to wait until they get the K-9 unit to come smell your car and that it might take 30 minutes.  If you make them wait, and they find something, they aren’t going to be as lenient with you as they will if you just let them search now.    First of all, there likely is no available K-9 Unit – this is a calculated bluff – and it  works quite a bit.  More importantly though, they can’t hold you there as long as they want unless you let them.  Use the magic words:  “If I am under arrest I would like to speak with my attorney.  If I am not under arrest, I’d like to go.  Am I free to go?”

The only way you can really protect yourself from a lying officer is to assert your rights from the get go.  Just don’t talk to them.  The second that an encounter with the police moves from an ordinary traffic issue into a potential search of your person, search of your car, or any kind of a criminal investigation, assert your right to remain silent and ask for your lawyer.  The police won’t tell you that you have this option, you have to assert it.  If the police even ask you to step out of the car, that is a good indicator that the magic words should be spoken.

Remember, you don’t have to answer their questions.  You don’t have to do sobriety tests.  You don’t have to let them search your car or your home.  You do have to give them identification and you cannot and should not lie to them – just tell them who you are and then tell them you want your lawyer or else you want to be on your way.

So, should the guy who flashes his lights be ticketed?  Arrested?  Convicted?  Of course not.  This is America – and this type of conduct shouldn’t need Constitutional protection – it should should be common sense that conduct which would cause other citizens to obey the law would be permissible.  But since we can’t rely on common sense to prevail in Court, fortunately, the Constitution saves us once again.

This conduct is protected by our Right to Free Speech.  While this Right has some limitations (most famously, yelling ‘fire’ in a crowded theater), we are certainly allowed to alert each other to the presence of law enforcement.  Erich Campbell, who received a ticket in Florida for this conduct, has filed a class action suit for similarly situated motorists – using the First Amendment as his sword to have their version of this law abolished.  I fully expect him to prevail in that action.

In North Carolina, we aren’t just talking about getting a ticket.  Here the charge would be the Class 2 Misdemeanor of Resisting, Delaying, or Obstructing a Public Officer – an arrestable offense  punishable by jail time!

If the purpose of issuing speeding tickets was to maintain safety, then a citizen flashing his lights would merely serve that purpose – it gets the cars that are being warned to slow down.  But we know that safety is just window dressing – its the money they want.  A speed trap is nothing more than a roadside tax collection agency.  If citizens can find ways to make it more difficult to collect those “taxes”, then more power to us.

What does bother me is the bad PR that criminal defense attorneys get.  People don’t realize the contributions that our profession has made (and continues to make) to their daily life.  The reason that the police can’t search your house without a warrant, can’t pull you over for no reason, can’t beat confessions out of you, can’t force a wife to testify against her husband – all of these “rights” that you are used to began with the Constitution, but really have been framed over the course of the last century or so by attorneys fighting over what those words mean and how those rules need to be applied.

Throughout the history of mankind, people have been accused of wrongdoing.  In ancient times, they were instantly punished – usually by some brutal style of execution.  Throughout time, as mankind became more and more sophisticated, procedures were put in place to govern the process by which a man was brought to trial.  This legal evolution wasn’t brought about because of our collective conscience – criminal defense attorneys wreaking havoc with the current system, screaming out the inequalities inherent in our process at the tops of their lungs were responsible for those changes.  This continues today.

The world will continue to change and the legal system will change with it.  As the world gets smaller and smaller, our privacy interests become more important and much more difficult to protect.  We need to have strong legal minds battling for the  rights of our citizenry.   You want me on that wall, you need me on that wall.  Next time, instead of asking me how I sleep, a simple “thank you” will do just fine.

Many States have passed laws which criminalize “unauthorized” videotaping of law enforcement.  These laws are a complete load of horse hockey.  What possible justifiable basis could there be from restricting citizens from recording the actions of their peace officers?

As a defense attorney, I am often asked the same questions…. How do you sleep at night?  How could you represent someone you know is guilty?  How many of those are you going to eat?  Who do you think you are? …. it goes on and on.  When I explain that criminal defense attorneys are responsible for holding up the walls of the Constitution, for ensuring that we can all live with some semblance of privacy, that everyone will be afforded due process of law – I am generally met with something like:   “Well, if you aren’t breaking the law, then you should have nothing to hide.  The police can come search my house anytime because I am a law abiding citizen.”

I have seen what a house looks like after it has been searched – and none of us would knowingly consent to that kind of treatment – but thats beside the point.

If the police have nothing to hide, then why the laws against taping them?  I’m sure if I were charged with defending these laws, I could sing a song about 9-11 and argue that this is matter of national security – but we all know that isn’t what is going on here.   Transparency is important in the public sector – especially among the people who we send out armed with guns to keep us all “safe”.  Perhaps the continued advances in the digital age, while making it much easier for the police to solve crimes, will also make the police think twice about the way in which they carry out their daily duties.

This is how a certain segment of RPD spends its evenings (and our tax money).  They have a few female cops get caked in make up, wear scant clothing, and go stand on street corners.  Up the block, there will be unmarked police cars watching the “crime” unfold.  The goal of these stings is not to arrest prostitutes, it is to arrest their customers.  Cars will drive by and the officers will stick their heads in the window and try and talk someone into ruining their life (although they use much nicer sounding terms on the street).  As soon as a verbal contract is in place, the police swoop in, and in only several hours of police work for 3 or 4 officers, you have yourself a nice fat class 1 misdemeanor bust.

Can you imagine how this would work in the drug game?  The police set up as an undercover dealer and bust the people who buy for misdemeanor possession?  Such an undertaking would be laughable.  Forget whether or not this is entrapment (in most cases, it is) – it is just a bass-ackwards policy.  I realize that RPD can’t legalize prostitution, the legislature should do that.  (Regulate it, tax it, clean it up – make it safe for the prostitute and for their customers – but that won’t happen because its not “tough on crime” and being tough on crime is how to get elected)  But RPD could at least target the “dealers” instead of their customers – not as easy from a policework standpoint –  but if you really want to fight the crime, go after the source.

The bond process serves several functions.  First and foremost, a bond is meant to secure a defendants presence in court.  The theory is that if a defendant would lose a bunch of money by not showing up, then he is more likely to go.  Secondly, a bond is meant to protect society from this Defendant.   Defendants charged with very serious crimes (especially violent ones) will often have bonds so high that they couldn’t possibly post (or even no bond at all).

There are two ways that bonds get abused in the criminal justice system – the first one is called DA Time.  DA Time sometimes happens when a criminal defendant is charged with something that the State knows it is probably going to lose.  If that defendant is being held and their bond is so high that they know they aren’t getting out – the prosecutor may just sit on that case a while.  Each day that passes waiting for that trial date is a day spent in jail.  Of course, the Court have remedies for DA time – we have a right to a Speedy Trial (although a full year out of someones life hardly seems speedy while you are on the inside).  Our Courts also hold status hearings on people who are in custody for lengthy periods to find out what is delaying the case.  Nevertheless, Criminal Defendants often serve more than a year in custody before they have their day in court.

The second part of the bond system that I have a problem with is Appeal Bonds.  This really comes into play with misdemeanors.  In North Carolina, when you are charged with a misdemeanor, original jurisdiction over the matter is in District Court.  In District Court, a judge is the “jury” who hears the case and decides whether the state has met its burden.  If a defendant loses in District Court, she may appeal the judges decision, sending the case to Superior Court for a trial by jury.

Sometimes, after a Judge has found a defendant guilty, they will issue a punishment, and the Defendant will appeal.  At this point, the judge who just issued the punishment can set an appeal bond – I have a problem with this process.

The only reason District Court is allowed to exist in the first place is because of our automatic right to appeal.  Our Constitution guarantees criminal defendants the right to trial by jury.  When a District Court judge issues an appeal bond, they are forcing the Defendant to pay a fee to access their constitutional right to a jury trial.  Sometimes appeal bonds are set at levels so high that the judge is effectively denying the right to a jury trial and forcing their punishment on the defendant.  By the time someone with a $100,000 appeal bond gets to his trial date in Superior Court, he will undoubtedly have already served his entire sentence.

So what is the moral of all this?  Do I have a point to all of this rambling or am I just venting?  Have I really just wasted these precious few moments of your life to tell you that you are better off in the criminal justice system if you have money?  I suppose the point of all of this is to point out some of the inequities in the system.  Until the State has proven a defendant guilty, the defendant should not be punished – and under our current system – its happening all the time.

Am I the only one that sees this as counterintuitive?   It seems to me that since these guns are so dangerous, that we would want them to be stored safely, where fewer people could grab them, where they are less likely to accidentally discharge.   Not under our law.

Walking down the street, the legislature wants you to carry your gun on a holster Billy the Kid style.  This is a law designed to promote safety?

This law gets even more ludicrous when other weapons are involved.  I once represented a carpenter who was charged with “concealing” his box cutter inside his tool box!  Had this person been holding the “weapon” in his hand when the officer approached his window – he would not be in violation of the law – but which conduct is more likely to lead to a bad outcome?

I’m not a gun nut – frankly, I think our Second Amendment Jurisprudence is a bit out there – but I can tell you that it is way more dangerous to have guns, knives, and the like out in the open than it is to keep them concealed.