Racial Justice Act Repealed

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Governor Pat McCrory has repealed a the Racial Justice Act, which allowed death row inmates to appeal if their death sentence was sought or obtained on the basis of race. The law, which was originally passed in August 2009, permitted death row inmates’ sentences to be commuted to life sentences without parole if they proved that their sentence was sought or obtained due to race. Four people had their sentences commuted due to the Racial Justice Act. Governor McCrory said the Racial Justice Act was “seriously flawed” and only “created a judicial loophole to avoid the death penalty and not a path to justice.”

The repeal of the Racial Justice Act counteracts the efforts of civil rights movements to eradicate racial disparities in the North Carolina judicial system. Of the 153 people on death row in North Carolina, 53% are African-American. African-Americans only make up 22% of the state’s population. This type of disparity is not only evident on death row; African-Americans are pulled over, searched, and arrested more than our white counterparts and account for more than 57% of the prison population.

The main argument against the Racial Justice Act is it tied up the courts and essentially put an end to the death penalty in North Carolina. But shouldn’t making sure that a person received a fair sentence outweigh the burden put on the courts? And shouldn’t the state want to make sure that a person deserves the death penalty before it executes anyone?

This is not to say the Racial Justice Act was perfect. While the Act allowed an inmate to appeal his death sentence it did not allow an inmate to appeal his conviction or seek a sentence that was shorter than life without the possibility of parole. In fact, the Act required that the defendant waive his right to seek any other remedy besides life without the possibility of parole. The Act seemed to assume that the conviction itself was not obtained on the basis of race, which is definitely possible.

Though the Racial Justice Act would not have alleviated all of the racial inequities in the North Carolina justice system, it may have been a stepping stone to solving these problems. Now that the Act has been appealed I’m not sure how we can find justice for the many minorities that have been unfairly imprisoned in this state.

Has President Obama Kept his Promises?

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During his election campaign in 2008, Barack Obama promised his administration would implement sweeping changes from the previous George Bush regime. His campaign promises included closing the Guantanamo Bay detention facility, ending tax cuts for wealthy, and ending the war in the Middle East. Obama’s charismatic speeches promising change excited an entire nation, specifically minorities and young voters. Now, five years later President Obama has come up short on many of his promises.

Guantanamo Bay is still opeBarak Obama-United States-Politicsn and is still accepting prisoners. President Obama has attempted to shut Gitmo down throughout his presidency, but has been unsuccessful thus far. In a compromise that allowed most Americans to avoid tax increases, President Obama had to extend tax cuts for the “wealthiest two percent of Americans.”

Perhaps most telling about President Obama’s administration is the continued wars in the Middle East. The majority of the troops in Iraq have come home, but the war in Afghanistan is still raging. President Obama also authorizes the use of drone strikes to combat the “war on terror.” These drones have reportedly claimed hundreds of civilian lives, including Americans.  President Obama has justified the use of drones by saying they are a “legal” and “effective” tool in self-defense and indicates that he will keep using them as asset in the war against terrorism. This sound a lot like the George Bush justifications made for his controversial tactics during his war on terror and his search for “weapons of mass destruction.”

To be fair, President Obama has kept some promises he made during 2008 campaign. “Don’t Ask, Don’t Tell” has been repealed and the Patient Protection and Affordable Care Act, better known as Obamacare, which provides universal health care, was signed into law in 2010. Additionally, the economy has made great strides during Obama’s administration and the unemployment rate has been dropping over the past few months.

Though President Obama has made great strides during his five years in office, I will need to see more of his campaign promises come to fruition before I can say that he brought the “change” to this country he promised in 2008.

Should There be Affirmative Action in America?

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The Supreme Court will soon decide Fisher v. University of Texas at Austin, which challenges the university’s race conscious admission policies. The case resolves around Abigail Fisher, who believes that she was rejected from Texas because she was white, even though she believes she was more qualified than some minority applicants. This case has brought back up discussions concerning the fairness and effectiveness of affirmative action. Some believe it is a form of reverse racism while others believe it is necessary to atone for hundreds of years of discrimination.US Supreme Court

I would love to live in a society where race was not relevant and we are judged on our merits. However, we do not live in that society and we have to deal with discrimination. That is why I believe that affirmative action is necessary and I do not think is it a form of reverse racism. I believe the argument of “reverse racism” is based upon common misconceptions about affirmative action that need to be dispelled. First of all, the point of affirmative action is not to give unqualified minorities opportunities over qualified members of the majority. The goal of affirmative action is to put qualified minority candidates on equal footing with their white counterparts. Secondly, government entities cannot have “quota systems” because they have been held unconstitutional by the Supreme Court so race alone will not get anyone into college. Other factors, such as grades, test scores, community service, and work experience, must be considered. Therefore, unqualified minority candidates do not take the spots of qualified white students. In fact, there are probably just as many, if not more, white students who are admitted to college due to “legacy admissions” as there are minorities admitted due to affirmative action, but I haven’t any complaints about that lately.

My only problem with affirmative action is the perception that goes along with the policy. Affirmative action can sometimes undermine the hard work that a minority has put in to be admitted to college. When minority candidates are seen on college campuses a lot of them hear comments such as, “You’re only got in because of affirmative action,” which is unfair because they worked just as hard, if not harder, as everyone else who is admitted to college.

Bill Mears of CNN.com believes that the mostly conservative Supreme Court will strike down Texas’ policy in some way, but will not invalidate affirmative action all together. I hope he is right because even though affirmative action may be an imperfect system, it is only system we have right now that will make sure minorities are given every opportunity that whites are given.

NSA Leaks: How much of our Privacy should be Sacrificed for our Safety?

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Over the past few weeks a national debate has raged concerning the National Security Agency’s leaks and Edward Snowden. Should the federal government be able to access our phone and internet records? Is this a necessary evil to protect our nation’s safety? Is Snowden a hero or a traitor? What else is the government hiding?

There’s a fine line between protecting us from terrorism and invading our privacy. I understand there are threats to national security and the government cannot tell us everything, but is it necessary that our phone calls be under surveillance. Is there no other way? And if there is no other way, where does it stop? If the government is allowed to monitor our phone calls and internet usage could it then track our movements?  The government claims that Americans are not being monitored, but can we really believe that?

I also have mixed feelings about Snowden. On one hand, our first Amendment right should protect the publication of the leaks from persecution. Without our right to free speech the government would be able to become oppressive.  On the other hand, can we really trust Snowden? In addition to the information he’s already leaked, he had access to other sensitive information and is now hiding in China.

Supreme Court Validates DNA Swabs Upon Arrests: What Does it Mean?

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The Supreme Court’s recently held in Maryland vs. King that DNA swabs of people who are arrested, but haven’t been convicted for a serious crime does not violate the 4th Amendment of the Constitution. The 4thAmendment protects citizens from unreasonable search and seizures and requires that all warrants be supported by probable cause. Writing for the majority of the Court, Justice Kennedy concluded that “DNA identification was a reasonable search that should be considered part of the booking procedure.” In a scathing dissent, Justice Scalia argued that DNA identification leads to “suspicionless” searches, which violates the “probable cause” element of the 4th Amendment.

Alonzo King was connected to an unsolved Maryland rape case after his DNA was taken upon being arrested for an assault charge. He was ultimately convicted based on the DNA that was taken due to his arrest for assault. The Maryland Court of Appeals overturned his conviction ruling that the police need a warrant or at least a reason to suspect him of another crime before taking his DNA. The State, supported by the federal government, then brought the case the Supreme Court.

DNA SwabIn weeks leading up to the Supreme Court’s decision debates surrounding the constitutionality of DNA identification became more heated. On one hand, a cheek swab upon being arrested is not unreasonably invasive and not all that different from when law enforcement takes your fingerprints upon arrest. When your fingerprints are taken, even for minor infractions, they are run through a national database to see if there are any matches to a prior crime. Fundamentally DNA identification would follow the same process. Additionally, DNA identification may help bring at-large criminals to justice in unsolved crimes, as it did in the King case.

On the other hand, DNA identification upon arrest is a search without probable cause, which is unconstitutional under the 4th amendment. The Supreme Court has previously ruled that since the Constitution is the supreme law of the land it should not be violated even if the results of the violation are beneficial. Therefore, unless authorities have probable cause to believe that a person in custody could have been involved in a prior crime, they should not be allowed to take DNA to search for a connection. DNA identification upon arrest for serious crimes could be a slippery slope that could lead to DNA being taken for trivial violations.

Currently the federal government and twenty-six states, including North Carolina, collect DNA samples upon arrest for serious crimes.

Company Found not Negligent in Carbon Monoxide Death

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A Forsyth County jury found that Old Republic Home Protection’s hiring of Windham Heating and Air Conditioning did not lead to carbon monoxide poisoning death of Greensboro man. On November 14, 2008, two people were killed when a faulty furnace leaked carbon monoxide into their home. Old Republic hired Windham to fix the furnace prior to the deaths. The plaintiff alleged that Old Republic failed to conduct a proper background check of Windham. Windham had previously been placed on probation by the North Carolina Board of Examiners and Old Republic had received a customer complaint about Windham’s incompetence as recently as 2008.

furnace releasing poisonous CO gasUnder North Carolina law an employer is presumed to have properly performed his duty in employing and retaining his workers. However, if an employer had actual or constructive knowledge that an employee is incompetent or unfit he may be deemed liable if that employee injures a third-party due to negligent employment or retention. Determining negligent employment or retention is a jury question.

The theory of negligent employment or retention is completely independent of an employer’s liability under the doctrine of respondent superior. The doctrine of respondent superior mandates that an employer is liable for any negligent act of an employee that occurs within the scope of employment. Respondent superior usually does not apply to independent contractors.

The plaintiff’s lawyers have already announced that they plan to appeal the verdict. Additionally, the family of the second person killed due to the same carbon monoxide leak has their case pending in the North Carolina Court of Appeals.

Two Injured by Dog Bites in Winston-Salem

After recently purchasing a Boxer, named Epic, for my two sons the story of three pit bulls attacking a FedEx deliverywoman caught my attention. On Tuesday morning, a FedEx delivery woman and a Good Samaritan, who attempted to help her, were mauled by the pit bulls. The deliverywoman suffered dog bites to her head, ear, left arm, and leg. Criminal charges are pending against the owners of the dogs.

Dog Under North Carolina law if a dangerous dog attacks a person and causes physical injuries that require medical treatment in excess of $100 the owner may be found guilty a Class 1 misdemeanor. A Class 1 misdemeanor could result in house arrest with electronic monitoring, community service, a fine, or restitution.

In addition to criminal charges, the owner of a dangerous dog is held strictly liable for any injuries or property damage the dog inflicts on another person. Strict liability imposes an absolute legal obligation on the owner of a dangerous dog for all damages even if the owner took all reasonable steps to protect others from his dog.

If you have been injured by a dog bite or have been injured due to someone else’s negligence do not hesitate to C.Y.A. (Call Your Attorney). Contact our offices at (336) 727-9886. The McIver Law Firm handles cases in Winston-Salem, Greensboro, High Point, Lexington, and surrounding areas.

P.S. Epic is harmless.