In a Strange Twist, Defense Counsel Disappointed Da Won’t Appeal 2009 Ruling

in Criminal Defense, on

The Orange-Chatham District Attorney’s Office announced last week that they would not appeal the Superior Court judge’s ruling in a 2009 Pittsboro case. North Carolina criminal defense attorneys, however, may be disappointed at the outcome — not that the defendants have been cleared of the felony charges that set the case in motion, but that the 2008 law they were accused of violating will not face the scrutiny of an appellate court.

During the spring of 2009, the defendants were cited for being within 300 feet of a location “intended primarily for the use, care, or supervision of minors, including when the place is located on premises that are not intended primarily for the use, care, or supervision of minors.” (The language is quoted from the statute, N.C.G.S. Sec. 14-208.18.) The law gives examples of the kinds of places contemplated: “malls, shopping centers, or other property open to the general public.”

In this case, the location was a church.

The church itself wasn’t the problem. Rather, it was that the church housed a nursery. Because the defendants were barred from being within 300 feet of the entire building, and the entire building was open to the public, the men could neither pass through the parking lot nor through the sanctuary of the church.

Defense counsel argued that the law was vague and therefore unconstitutional. For one, it does not specify the borders of the 300-foot radius. The judge agreed — a registered sex offender could be in violation while driving on a highway that passed close to a shopping mall. How, then, does someone on the registry know where he can and cannot be? And how do the police ensure consistent enforcement of the law?

Nor does the law specify if children need to be present for a violation to occur. As it is written now, the law would allow defendants to be arrested for being in the parking lot of a shopping mall long after it had closed.

For these reasons and others — including protecting First Amendment freedom of religion rights — the lower court judge ruled the law unconstitutional. That ruling, though, only stands as precedent in that district. The Court of Appeals or the Supreme Court must affirm the ruling for the law to be unconstitutional throughout the North Carolina.

The only way to get the case before a higher court, though, is for the district attorney to appeal the judge’s decision. That won’t happen this time around. And it’s unlikely a bill to revise the law will make it to the floor of the legislature without more jurisdictions weighing in.

The DA’s decision was good news for the defendants in this case, but it leaves other potential defendants at risk.

Resource: Raleigh News & Observer “DA Won’t Appeal Sex Offender Case” 9/18/10