By

Chris Fialko

Twenty-one years ago I walked into my first law school class and took a seat next to a guy with a crew cut, crisply ironed clothes and a determined look on his face. While we waited for Professor Charles Daye’s Tort class to begin, I chatted with this fellow, Andrew Murray.

Yesterday, Andrew was elected District Attorney here in Charlotte, Mecklenburg County.

Back on that first day of law school, I was nervous. I didn’t know a single person at the University of North Carolina, and I still wasn’t quite sure why I had decided on law school. But Andrew Murray sure knew: he explained that he was in the Coast Guard, had a wife and child back in Charlotte where he would return on weekends, and he was ready to learn how to be a lawyer.

I remember laughing and telling Andrew that I had two keys on my key chain – one for my apartment, one for my bicycle lock. Compared to him, I had little to stress about.

The main reason I supported Andrew in his run for D.A. (he’s a friend, but he’s a Republican and I’m a die-hard Democrat!) was that I knew he would continue the real secret of long-time Charlotte D.A. Peter Gilchrist: hire well. Each year, Gilchrist had to hire about 5 – 10 new Assistant District Attorneys, mostly straight out of law school. Gilchrist had a knack for finding lawyers who had common sense, some street sense, and the ability to think on their feet.

On a daily basis, the most powerful lawyers in the state are the local Assistant District Attorneys. I’m glad Andrew will be the man in Charlotte who hires them for the next four years.

As Tiger Woods teed off in the first round of the Masters Thursday, I was on vacation at Legoland with my wife and kids. Legoland has no televisions. I texted my brother, asking how the fans were treating Tiger. He replied: “Fine. He’s 2 under. I hope he wins.”

I was surprised at my own response: I hope Tiger doesn’t win. Why this gut reaction?

I’ve been a Woods fan since watching one of his U.S. Amateur titles, when he came from far behind to win. He went to my alma mater, Stanford. I think we all forget that even after his many major championship wins, he’s still an underdog because he’s a black golfer. I love underdogs.

I puzzled over this for a while, and finally decided this: the ingrained criminal defense lawyer in me thinks a Tiger win would be unfair.

Over and over again I see a criminal justice system that punishes peoples’ mistakes too harshly, and for too long. I’m not just talking about overly lengthy prison sentences. Last week a man called me to ask if there was any way to expunge his prior conviction for felony larceny from 11 years ago. He had been 23 at the time, strung out on drugs, and stole to fund his habit. Since then he said he’d been clean, got married, had a couple of kids and a good job. But then when his employer had him up for a promotion, it ran a nationwide record check and found his conviction. Instead of promoting him, it fired him. I understand Tiger didn’t commit a crime by betraying his wife. Apples and oranges. But a Masters victory this weekend would seem like unfair forgiveness. Or at least redemption.

I can’t help the husband with the old larceny conviction. He doesn’t qualify for an expunction. He still goes to AA/NA meetings every week. He’s trying to stay serene about the things he can’t control, like employers who are too scared to keep a good employee who happens to be an old felon.

But I don’t have to be serene. By summer, I’ll probably be back to rooting for Tiger. But this weekend, I can’t do it.

January 11, 2010, 10:54 p.m.
A few moments ago, the lead headline on NYTimes.com was: New Jersey Lawmakers Pass Medical Marijuana Bill.

Which reminded me that the irrepressible Nick Mackey, who caused all kinds of controversy in Charlotte a few years ago when he won and then lost the Sheriff’s job, is now in the North Carolina State House (District 99), and that last year he co-sponsored a Medical Marijuana bill. If it got any media attention in Charlotte, I missed it. (You can read the bill here.) In fact, I didn’t know about the bill until I saw Mackey at a PAC fundraiser last month, and he mentioned it.

Now I don’t know whether the Medical Marijuana bill in New Jersey, or the one in North Carolina are good ideas. But as a criminal defense lawyer for the last 17 years, here are some comments I can make:

  • Off the record, some DEA agents and drug task force officers say that they wish small user amounts of marijuana would be legalized. This would cause the powers that be to tell the agents to quit chasing marijuana traffickers, and instead concentrate on the drugs that are a growing scourge in our area: heroin and methamphetamine.
  • As for this quote from the Times article:
    “Some educators and law enforcement advocates worked doggedly against the proposal, saying the law would make marijuana more readily available and more likely to be abused, and that it would lead to increased drug use by teenagers. ”
    Right. Citations and arrests of teenagers in Charlotte for possession of less than ½ ounce of marijuana (a Class 3 misdemeanor) have been plentiful for many years. In other words, marijuana is now and will always be “readily available” to teenagers. To believe otherwise is silliness.
  • I think medical marijuana or legalization of small amounts of marijuana is an issue that secretly transcends political affiliation. One of the cool things about being a criminal defense lawyer is that people feel free to tell you thoughts they probably don’t tell anyone else. And I’ve had many right-wing, conservative folks nudge me at cocktail parties or other events and in a conspiratorial soft voice say one or more of the following:– “They ought to just legalize marijuana and send the cops after the illegal immigrants.”
    – “The legislature might should legalize it, and tax the hell out of it. Maybe let the ABC stores be the exclusive sellers, and charge 50 cents tax per joint. They’d make so much money I wouldn’t have to pay income taxes anymore!”
    – “Big Pharma doesn’t want marijuana legalized! They know if that happened, all their sales of those anti-anxiety drugs they’re pushing on TV would plummet.”
December 14, 2009
In its front-page article skewering retiring Mecklenburg County District Attorney Peter Gilchrist yesterday, the Charlotte Observer stressed that his Assistant D.A.s dismissed 52% of the felonies that were resolved during 2008.
We all know statistics can be mighty misleading, and this one certainly is. While the Observer included a sidebar entitled “How Dismissals Work” that described one way in which the stats are misleading (in short, consolidating charges under one agreed upon sentence make the conviction rate higher, with no change in result), the article does not mention the more easily correctable problem: overcharging.
A more cynical man than me could surmise that the Observer did not see fit to mention this issue because it is the fault of the local police departments. But I won’t go there.
Here’s how overcharging works. Let’s say a college student, Joe Partier, is stopped by police driving back from picking up an ounce of cocaine – he and his buddies had pooled their money to buy it for an upcoming big house party. The police officer finds the cocaine, and arrests Partier. The officer has done well.
But the officer has also been trained to charge defendant Partier with as much as possible, so he takes arrest warrants to the magistrate charging Joe with all of these separate felonies:
1. Trafficking in cocaine by possession.
2. Trafficking in cocaine by transportation.
3. Possession with intent to sell and deliver cocaine.
4. Possession of cocaine.
5. Maintaining a vehicle for the use/possession of controlled substances.
All five charges arise out of the same set of facts. And even though Joe Partier is a first-offender (and possessed no firearm), because the cocaine was more than 28 grams, i.e. one ounce, the trafficking statute requires a mandatory prison sentence of 35 to 42 months.
Whether such mandatory minimum prison sentences make any sense for first-time offenders like Joe is an argument for another day.
The point here is that the police department should know by now that the likely resolution in court is going to be a plea agreement to one count of trafficking, Joe goes up the river for his three years with no parole, and the other four charges are dismissed.
Eighty percent of the charges – 4 of the 5 – are dismissed, but is there any valid criticism that this outcome is to lenient? I doubt it.
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