Episode 14: NC Criminal Debrief

[00:00:01.026] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief. This is a podcast about criminal law issues in North Carolina and beyond. I'm your host, Phil Dixon, a faculty member here at the UNC Chapel Hill School of Government. I'm here in the studio as usual with Paul Bonner on the ones and twos. Big thanks to Paul. We've got a ton to cover, so just going to jump right in. I think we're going to mostly just cover cases this episode. I know it's been a while. I think June was the last time I was able to get in the studio and record, but we are back now, hopefully with a vengeance. In our last episode, we talked extensively about the first Bruin case to come to North Carolina. Of course, when I say Bruin, I'm talking about Bruin v. New York Rifle and Pistol Association, a U.S. Supreme Court case setting a new standard for Second Amendment rights. We talked a lot about State v. Radomski, a court of appeals decision interpreting Bruin and really ruling with the defendant to find our felony weapon on firearm on educational property statute unconstitutional as applied to Mr. Radomski. I'm not going to go back through that case, but I just wanted to flag for listeners that You know, I felt really confident that that was a case where our state Supreme Court would want to weigh in. Again, this is the first time our appellate division has interpreted Bruin and the new Second Amendment standard it sets. And there were two important parts of that Radomski holding, both the Second Amendment as applied challenge and this aspect of mens rea, whether he whether there was sufficient evidence that he knew or should have known that he was on educational property. I thought between those two holdings, surely the state Supreme Court is going to want to weigh in. Well, as happens, I was wrong about that. I checked prior to this episode. The state Supreme Court had initially granted a stay in the case to consider the state's petition for discretionary review on But late August, I think August 23rd of this year, they dissolved that stay and they denied the PDR. You know, I'd caution attorneys about reading too much into the denial of review. That is not necessarily an endorsement by our state Supreme Court that the Court of Appeals got it right. Right. But it's certainly some indication that some majority of the justices on the state Supreme Court did not feel the need to come in and correct or elaborate on the court of appeals decision in Radomski. So state Supreme Court weighing in on Bruin issues will be waiting for another day. They are not reviewing that. And Radomski stands as the law of the land, as the court of appeals put it. Moving right along, there have been a number of other Second Amendment cases decided since we last recorded. One that we had previewed on this show, I think I've mentioned a couple of times, was U.S. v. Rahimi. And this was a biggie. This was U.S. Supreme Court decision from this summer. This was a facial challenge to a subsection of the federal ban on possession of firearms by certain people. That's 18 U.S.C. 922, 18 U.S. Code 922. There are many different versions of that statute, many subsections. Most commonly, we're talking about 922G, a person convicted of a felony can't possess a firearm under federal law. But one of the many others is when a person is subject to a domestic violence restraining order, a DVPO in the common parlance. As I think we discussed before, Mr. Rahimi was under one of those orders. He got caught with some guns and ammunition while that order was still in place. And the feds successfully prosecuted him under 922G8. So he brought this challenge saying, hey, I think that's a Second Amendment violation. I think this whole ban on people possessing weapons, you know, while under a BPO is just facially unconstitutional. It's entirely unconstitutional. It can't be applied constitutionally to anyone. That he lost in the trial court. I believe this case is out of Texas. It's certainly in the Fifth Circuit. He brought those claims in the Fifth Circuit and lost again. But shortly after, Bruin was handed down. The U.S. Supreme Court decided the Bruin case. While Brahimi had this motion for en banc review pending saying, hey, appellate court, I lost in front of the three judge panel, but I want the whole entire Fifth Circuit to sit and consider my constitutional argument. That was still pending when Bruin was decided. And at that point, the Fifth Circuit withdrew their earlier opinion, assigned it to a new panel. ultimately ruled with Rahimi. They said, you know, look, under Bruin, if a law or regulation affects conduct protected by the Second Amendment, that being the right to keep and bear arms, then it's the government's job. It's their burden to come forward and show, hey, this law, this regulation is consistent with our tradition, a tradition of historical regulation of firearms in the country. The Fifth Circuit ruled with him. The Supreme Court agrees to take it up, and they decided eight to one, this statute is facially constitutional. Mr. Rahimi, you lose. They reversed, as I said, only Justice Thomas, who was the author of Bruin, was in the dissent. I predicted this. I said he would probably lose this case, Mr. Rahimi would, and lose he did. It was a terrible test case to challenge the federal prohibition on possession of firearms by someone subject to a DBPO. This was a seriously violent guy. The DVPO was based on seriously violent conduct and threatening and assaulting his former partner and others with guns. So if ever a guy should have been subject to a ban on firearms as someone who's under a DVPO, it was Rahimi. But much more significant than that outcome, you know, hey, this statute is facially constitutional. Rahimi loses. I thought the much more significant part of that case was they seemed to soften Bruin a little bit. When we recite that rule, hey, it's the government's burden to justify regulation by pointing to some analogous historical regulation. Depending on how strict you read that, you know, as I think we've discussed before, that has the potential to strike down a ton of modern gun regulations because we didn't regulate guns like we do now at the time of the founding or at the time of the 14th Amendment. But here they really said, how close does it have to be to some historical analog? Maybe not that close at all. The majority pointed to old laws prohibiting going armed to the terror of the public. Those laws, if someone was convicted of going armed to the terror of the public at the time of the founding, they would typically forfeit their weapon. They also pointed to surety laws that existed at the time of the founding, where if someone was suspected of being a threat, of being at risk of committing some future act of violence, they could be put under a bond. And if they didn't post the bond, they were jailed. If they did post the bond, but then they violated the conditions, the bond would be forfeited, and sometimes they'd also be put in jail. So according to the majority in Rahimi, these laws, these historical laws, they go to the same purpose. They have a similar intent as our current law prohibiting a person who's under a DVPO from possessing guns. That's the big quote from Rahimi that I think defenders should wrap their heads around is, hey, the historical analog doesn't have to be a perfect fit. It doesn't have to be a quote unquote twin to a modern regulation. There just needs to be something in the historical tradition that serves a similar purpose. Here, that purpose was controlling and protecting against the threat of violence by temporarily disarming somebody. And the court emphasized that, hey, this is a temporary thing. It's not like the felon in possession prohibition. It only lasts so long as you're under the DVPO. And if that's your only disqualification, then... You know, the DVPO is usually going to be six months to a year, might get extended a couple of years. But at most, we're talking about, you know, typically, I think, you know, a year or two. That's not to say that's nothing or that's not an infringement of some kind of person's Second Amendment rights, but it's not a permanent disarmament. So some softening of what was arguably could have been seen as more strict language in Bruin. Needless to say, Justice Thomas was not happy about this. He wrote a pretty, I think, furious is a fair categorization of the dissent, accusing the majority of rolling back Bruin, but as is often the case. Justice Thomas was really on his own with that view of things. I would just plug the work of my colleague, Jeff Welty. Professor Welty did a case summary on Rahimi on the North Carolina Criminal Law blog, so you could read that summary if you'd like. And he did a separate post really digging in and doing an analysis, and that post was called Backing Away from Bruin? So, So read more there. This ban on possession of guns by someone under a DVPO, there may still be room for as applied challenges. And as I've said, I think I said in the last episode, as applied challenges are really going to be where the rubber meets the road. So this this law can be constitutionally applied to someone. But is it constitutional anyway? In all respects, in all situations, maybe not. And as Jeff noted in his post under North Carolina state law, you can earn yourself a DVPO with conduct far short of the kind of stuff Mr. Rahimi was doing. You don't have to shoot at somebody. You don't have to threaten a deadly weapon with somebody. Merely harassing somebody can be enough with the proper relationship, harassing a domestic partner. And that's not to minimize harassment as a terrible thing and something that may justify restricting someone's firearm rights. But depending on the circumstances, you know, someone whose actions don't involve violence, don't involve threats of violence, don't involve firearms. That's a completely different factual scenario than what Mr. Rahimi was in. That kind of person who's been charged federally with violating the federal ban, maybe they have an argument on some set of facts. And as we're beginning to see, you know, all of these 922G regulations are being challenged. State regulations are being challenged left and right. There's still a ton of unanswered questions. So we're keeping an eye on that. I will be sure to keep coming back to this Second Amendment issue. But meanwhile, in other Second Amendment news, there have been several significant decisions from the Fourth Circuit. And if you are interested in the Second Amendment stuff, If you're just a constitutional law nerd who likes geeking out on the different takes of analyses here, these are some really interesting cases because we got three in a row from the Fourth Circuit sitting on bunk again. So all 15 of them. And in each of these cases, you've seen just a massive split among the different judges on the Fourth Circuit differing about how the analysis should go, what steps should be first, what factors should be at what stage of the analysis. It's wild stuff and a lot of unanswered questions. And really, I think any one of these cases What might be ripe for the U.S. Supreme Court to jump in again, but I wanted to flag them for folks. I had a listener recently tell me, you know, you really should include the citations. So I've done that here for these federal cases. I'm not promising you I'm going to rattle off citations for everything, but. USV Price was one. That's 111F4392. This is a 2024 Fourth Circuit case. Again, divided en banc court finds the federal ban on possession of firearms with altered or destroyed serial numbers was not facially unconstitutional, did not violate the Second Amendment. This is another part of 922. That's 18 USC 922K. The majority said, when we're talking about weapons with a destroyed or altered serial number, this just doesn't even implicate Second Amendment conduct, Second Amendment protected conduct. Because the Second Amendment under Heller, under City of Chicago v. McDonald, under now Bruin and now Rahimi, we're talking about weapons normal weapons possessed by law-abiding citizens for law-abiding purposes. Going way back to Heller, the court said the Second Amendment doesn't protect against dangerous or unusual weapons. And that's where the majority here hung its hat. They said dangerous and unusual weapons aren't protected under the Second Amendment. That's been recognized by the U.S. Supreme Court and D.C. v. Heller. And This isn't a type of weapon that's in common use for a lawful purpose. So it just falls outside the protections of the Second Amendment altogether. The court acknowledged, sure, I mean, maybe a law-abiding citizen might decide to alter or remove their serial number. But that's not, you know, exactly normal. There's not like obvious reasons to do that. Again, very divided opinions about this. There were judges on the Fourth Circuit that would have said this is unconstitutional, plainly so. But I think that is the right result. And again, I think, you know, if we have that guy who is making his own weapons or is altering a weapon and ends up altering the serial number for some legitimate purpose, perhaps the statute could be challenged on an as-applied basis. But to come in and say this ban on possession of weapons with an altered serial number is just categorically unconstitutional. It just cannot be applied constitutionally to anyone. That sort of just intuitively feels right to me. They went through some of the stats involved and it was just like, look, it's a very tiny number of weapons that's recovered each year that have an altered or destroyed serial number. And they're almost always connected to some kind of illegal activity. Not a normal weapon, not something normally used for self-defense in the home. Therefore, majority says constitutional. But again, I mean, if you want to dive deep into how the Second Amendment issues are being grappled with by the courts, going through all the concurrences and the partial concurrences, the dissents is an entertaining exercise. And I think like each of these opinions was probably in this, you know, 80 page range or so. Another one was Bianchi. I think I'm pronouncing that right. Bianchi v. Brown. That's 111F 4th, 438. Another en banc decision by the Fourth Circuit. I thought this was interesting. The state of Maryland... which is our northernmost cousin within the Fourth Circuit, Maryland has banned all assault weapons. And they define assault weapons broadly. I don't have the full list in front of me, but it's effectively like things that are primarily designed for combat. military kind of shooting. The .50 caliber sniper rifle was one thing that was mentioned. But this also sweeps in the AR-15, which is, of course, an extremely, extremely popular weapon across America. I was teaching this case and some of these issues to a group of magistrates recently, and I was just like, hey, pull the room. Who owns an AR-15 in this room? And you wouldn't believe the number of hands that shot up. So, you know, it's a very common weapon. It's a very popular weapon. It has been, you know, you can purchase it most places. But Maryland has banned that rifle and all other similar rifles. Again, a group of plaintiffs brought a facial challenge under the Second Amendment. And once again, we see a divided court rule against the plaintiffs and say, nope, it's facially constitutional. The reasoning was much the same as in the Price case that we just discussed. They said, you know, look, the Second Amendment doesn't protect dangerous and unusual weapons. Those fall outside the protections of the Second Amendment. These weapons are not commonly used. They might be popular. They might be out there in the world, but that's not, you know, the quintessential protection of the Second Amendment is for you to be able to defend yourself in your home. These weapons are neither well-suited, for self-defense in the home, nor are they commonly used for self-defense in the home. That was sort of the broad picture. The court recognized sort of the significance and the controversy and the popularity of the AR-15 specifically, and they devoted a section of the opinion to discuss AR-15s by themselves. They said, look, we know this is a popular weapon. But again, this, just like the other weapons covered by this assault weapons ban in Maryland, they are primarily designed for warfare and combat. They're not typically used for self-defense. They're not well suited for self-defense. And they rejected the idea that, well, just because it's common, we can no longer regulate it. They go through some of the stats, like this weapon can pierce armor, it shoots at a much higher velocity, it's capable of all these modifications that make it really primarily suited for warfare. And I thought an interesting part of it was like, you know, there's also sort of this federalism concern. It's like that was the whole point, right, between dividing up authority between the federal government and the states was we want a crucible of democracy where states are free to try different things. They can experiment around the edges, you know, at least within the confines of the Constitution. And, you know, if Maryland has made a policy choice to ban these weapons, then so be it. We're going to allow that ban to take place. If we want to take it a step further and really still walk through the Bruin analysis, I mean, again, you could sort of stop there, I think, and say these are dangerous and unusual weapons. They don't that's not protected by the Second Amendment. End of discussion. But they did go forward with the next step and say, you know, and if we did want to look at it, we think this is comparable to historic regulation. Back in the day, governments and, you know, sheriffs and whatnot, laws recognized that gunpowder was an extremely dangerous substance. If too much gunpowder was stored improperly, stored in the wrong place, stored negligently, it could light a whole village on fire and burn everything to the ground. And so there were historically regulations applied to dangerous substances like gunpowder. Where could you store it? How much could you store it? Who's keeping an eye on it? They also pointed to historic bans on certain types of weapons that were primarily used to accomplish crime. They gave the example of brass knuckles was one sword canes is another. You know, I have looks like I'm using a cane, but it turns out there's a blade hidden within the cane that I can pull out. others. And walking it up through the course of history, they said, and as technology evolved, so did our laws. And basically saying, that's what we have here now. We have, our technology has evolved. We have these sort of weapons of war available to the public, but that's not to say a state can't regulate them. When dynamite was invented and became popularized across the country, governments were quick to say, hey, we're going to put some limits on what you can do with dynamite. Not everybody can just be walking around with sticks of dynamite. We're going to regulate that. In the 20s and 30s, when Tommy guns, the sort of old school gangster guns you see like Al Capone or Bonnie and Clyde using dynamite, they were banned. They were able to, governments were justified in saying, we're not going to let Tommy guns, you know, run wild in our community. We're going to put some limits on who can own them and when they can be used and for what purpose. Interesting discussion in this Bianchi v. Brown case, a really good walkthrough of some of the historical regulations. And again, a bunch of different opinions, all looking at different aspects and really arguing with each other among the court about what What's the proper analysis under Bruin? What are the proper steps? How do you go through them? Finally, we also had Maryland Shall Issue v. Moore. These folks, they've had a lot that Maryland Shall Issue, I gather, is this like nonprofit or advocacy group of gun rights folks. And I know I've covered a bunch of cases on the Fourth Circuit summaries that I post on the blog where they are the litigants. And, you know, occasionally they've they've had some success. But here they were challenging Maryland. Maryland has a handgun licensing scheme and they had challenged that before. They'd lost in front of an en banc court, I believe. But that was some years ago. And once Bruin came down, they said, we're trying again. We're going to go back and say under Bruin, we don't think this handgun permitting scheme is constitutional. Maryland, like North Carolina, has a shall issue permitting scheme, which means if you meet the qualification, you get the permit. That's it. We, of course, don't have a handgun permit purchase permit anymore in North Carolina. We only have carry concealed permit. But it is that same idea. It's a shall issue. You meet the criteria. the sheriff shall issue you the permit. And it's the same in Maryland. If you meet their qualifications to obtain a handgun, the government shall issue you that permit. That is unlike the permit scheme that was at issue in Bruin. In Bruin, New York had this, maybe we'll issue it to you, you gotta show good cause, and we have all this discretion to decide whether you've met our standards for good cause. That's what Bruin struck down. But Bruin also recognized, hey, many states have these shall issue schemes, and those are probably going to be constitutional most of the time. Perhaps there's a situation, again, where a sheriff or whoever the permitting body is, is abusing their authority to issue these permits, is sitting on permit applications or requiring just an undue waiting period. But having some waiting period, having a background check requirement, having a gun safety course requirement, having an age requirement, these are generally okay. So again, a very divided court upholds this permitting scheme, says we think it's facially constitutional again. And as I said, I think any one of these three might be a good opportunity for the Supreme Court to weigh in. In truth, I don't expect there's a huge appetite among the Supreme Court right now to jump back into Bruin issues because these issues are still percolating through the circuit courts. And, you know, as different circuits come out different ways and those circuit splits develop, I think that's when we'll really see some more action. But for now, Fourth Circuit, not binding on North Carolina decisions, but its interpretations of the federal constitution and of federal law as applied on the ground in North Carolina, you know, is valid. Important stuff. I don't think we have to worry about a state assault weapons ban in North Carolina anytime soon. But Bianchi is a case that that indicates the state maybe can ban those weapons consistent with the Second Amendment. And just because they're out there and popular doesn't get you there. Same with the permit scheme. It's reasonable under the Second Amendment, at least in the Fourth Circuit for now, for a state to have some basic permitting requirements as long as there is sort of a clear path to getting that permit. As I've said before, big takeaway for defenders here is just look, you attorneys should be bringing Second Amendment challenges in any case that touches on a firearm or any other kind of weapon that could be considered keeping and bearing arms. What that looks like is a motion to dismiss pre-trial or it's part of your sufficiency dismissal. motion to dismiss for insufficient evidence, perhaps, to say this violates the Second Amendment. We haven't seen that challenge or that case brought yet, but we ban carrying a concealed weapon. Is that constitutional in all aspects? I tend to think it's probably facially constitutional and that that can be applied constitutionally to some people under some circumstances. But can you really say that walking around with a knife on your person that's bigger than the statute allows, is that an infringement of Second Amendment conduct? What about our ban on like switchblades and that sort of thing? In Hawaii, as I think I mentioned on the show a while back, the state Supreme Court in Hawaii struck down their ban on switchblades as a matter of Second Amendment protected conduct, carry concealed weapon, firing by felon, perhaps even I think it's a stretch, but maybe some of the weapons covered by weapons of mass destruction. And certainly, as we saw in Mr. Radomski's case, the weapon on educational property statute, we've already seen that that could be unconstitutional as applied. So as applied, again, is probably the way to argue these. I don't see any facial challenges on much of this stuff succeeding anytime soon. But defenders, you got to raise those Second Amendment issues. And I think it's a ripe, ripe area. And that's why we're spending so much time on it. Okay, moving on. Another case that we've talked about extensively on this show before is Smith v. Arizona, and that was the other biggie from the U.S. Supreme Court this summer. I'll try to be quick because I know we have talked about this a lot before, but this decision provided some long-needed clarification on the Sixth Amendment Confrontation Clause and this practice that North Carolina and Arizona and many jurisdictions had of permitting substitute analyst testimony. That's when one person does the forensic testing, this is cocaine or the DNA is a match or the blood is a match, whatever it is, there's some kind of forensic test done, the testing analyst, the person who performed the test, for some reason or another, is no longer available for trial. Traditionally, we have allowed some other expert to come in, review that report generated by the first analyst, and offer their opinion based on this forensic report of someone else. They weren't necessarily involved in the testing. They weren't necessarily even involved with the lab. They weren't necessarily a supervisor or anything like that. It could just be, and I think that was the case in Smith, it was just like a whole different person. You know, they were a forensic scientist in the same discipline, but not involved in the lab, didn't know the analyst, hadn't been involved in any of the testing whatsoever. And they were allowed to testify and leading to a drug drugs convictions for Mr. Smith in Arizona state court. Well, he brought this challenge and got it all the way up to the Supreme Court. And this is a big deal, I think. I mean, it tacitly overrules our state supreme case law, state supreme court case law or state v. Ortiz Zapp, state v. Brewington. Those are the biggies. And under those cases, and as many jurisdictions including Arizona did, the idea, the justification for this practice of using substitute analyst was that Well, you know, they're just using the underlying report as the basis of opinion. Rule 703 of the Rules of Evidence allows an expert to use the work of another to form an opinion, and we've traditionally treated that as non-hearsay. That's not being offered for the truth of its matter. That's being offered as the basis of opinion, and that's a non-hearsay purpose. The confrontation clause only protects against the admission of testimonial hearsay statements, and the logic has gone prior to Smith. Here, the underlying report, it's being offered only for a basis of opinion and not for its truth, so it's not hearsay, so it doesn't offend the confrontation clause. Smith v. Arizona completely rejects this reasoning. It says, no, that's wrong. When a substitute analyst uses the forensic report of another to formulate an independent opinion about that work, that underlying report is being used for the truth of the matter it asserts. And that means it is hearsay. That means if it's testimonial to the confrontation clause kicks in. Now, look, I don't want to spend too much time on this because we've talked about it a lot before on the show, going back, I think, to like October of 2023. And I've written three blog posts about this. And most recently, my colleague Shea Denning did a fourth blog post on some of the unanswered questions that are out there in the wake of COVID. Smith. But a very significant case. Hopefully this has already been on your radar. This has been unsettled since 2013 when the Supreme Court split 441 in a case called Williams v. Illinois. But five justices back then rejected this justification, and now we saw an even stronger majority of... Really, in total, I think seven of the justices agreed that this was improper and that this was hearsay. This did at least potentially implicate the confrontation clause. So the defender takeaway is the state cannot get around confrontation clause protections by calling an underlying forensic report non hearsay. To the extent the report's testimonial, it cannot be admitted or used unless the defendant has an opportunity to cross-examine the analyst who did the testing. The only clear way that you lose that right is when the state serves you with that notice under notice and demand statutes and you fail to file your demand. You waive your confrontation clause rights by failing to comply with valid notice and demand statutes, of which we have many. and the state serves you that notice, you just, as a matter of course, file that objection, that demand, that nope, I want to cross-examine the analyst. There is some room on the edges here. I mean, the court does raise this specter of, well, maybe there are non-testimonial parts of a lab report that might be useful sometimes, but I really see that as a red herring. Justice Gorsuch refused to join that section of the opinion. although agreeing with the majority on all the main points that this was hearsay, this basis of opinion stuff. So one, don't waive your rights by failing to object. If the state is going to then try and say, well, we've got non-testimonial portions of a lab report, I think you really got to fight like heck against that because I just do not see how that gets the state over the hump to say, yeah, the substance is cocaine. Yeah, the DNA is a match. You know, yeah, the blood is a match, whatever it is. The majority opinion talks about, you know, substitute analysts could still come in and talk about what best practices are or what the lab's accreditation process are. Again, there's this language about, well, you know, if the records from a lab report are created for accreditation purposes or record keeping purposes, maybe they're not testimonial because they weren't prepared primarily for trial. Whether something's testimonial, of course, turns on its primary purpose. Was it prepared in anticipation for use at a criminal trial or not? And so there will be times when there's been a forensic report that was done that wasn't done in anticipation of trial. Like think about there's just a death investigation. It's originally not a suspicious death and some autopsy is performed to try and figure out the cause of death. And it leads to what later becomes a homicide prosecution, that might be a non-testimonial autopsy report if their state can prove it really wasn't prepared for trial. But from a defense perspective, I think we have to say any of this stuff That is typically going to come from a state crime lab or a local crime lab. That's going to be testimonial. Bull Cummings said so. Melendez Diaz said so. It's clear the report is typically testimonial. And now we know they can't circumvent the confrontation clause by saying, well, someone else is going to formulate their independent opinion about that report and just merely use the underlying report as a basis of opinion. But there is some some question under I think it's part three of the majority opinion where they raise the specter of like, well, maybe some some some parts of a lab report might be non-testimonial. Even if that is where you find yourself, I think that gives the defense a pretty good argument on the merits to say to the jury, why should you believe these like, you know, scribbles in the margins of the lab report when they could just have a real lab report and they didn't give you one or they didn't present one, they didn't admit one. So maybe there's some wiggle room. And again, Shea Denning just wrote a good article looking into some of those arguments that are on the edges there. But I think the defense perspective is, look, we all know lab reports are testimonial and now substitute analysts are done for the most part. They cannot admit the report and that's going to be a severe limitation. And so, I mean, I think and practically, I think that just means the state has to retest the stuff when it can be retested and when their analyst isn't available. Get your analyst there, state. And if you don't have your analyst, get another testing done. I think in the vast majority of cases, it's possible to just go retest the stuff. An important one, I think we are going to have a lot more ground to stand on to say, I insist, I demand that I get a chance to cross-examine the person who did this testing. I want to end by talking about a technical issue with the Smith case, which is, is it retroactive? I remember I covered a case some time back. I think I covered on this podcast was State v. Ball. It was some kind of sexual assault case. They used a substitute analyst testimony to, I believe, match up some DNA results, and the guy was ultimately convicted. But he raised at trial this confrontation clause issue and objected to the substitute analyst testimony. So he raised and preserved this issue. He lost that issue at trial. He was convicted. He lost that issue on direct appeal pre-Smith. But now after Smith, that raises this question of like, so can he take advantage of that in post conviction? Will he be able to come in on an emotion for appropriate relief and say, hey, you know, I raised this this claim saying substitute analysts were testimony was was bad and that this was a rotten practice. I now want a new trial based on this new case law from the state Supreme Court. I wrote a blog about this issue too, you know, is Smith retroactive? And I'm not going to walk you through, I won't bore listeners with the whole technical analysis. But the long and short of it is whether you can take advantage of this Smith rule in post-conviction depends, one, on did you raise and preserve it at trial? Because you can't bring it up for the first time in post-conviction. But if you did raise and preserve it, as Ball did, it's a funny thing. If it's a new rule, if it's a new procedural rule, and this is certainly a procedural rule, right? It goes to how testimony is presented in court. So it's not a substantive rule. Those tend to apply retroactively. New procedural rules don't apply retroactively. The only way the defense is going to get the benefit of this rule is if they can convince the court to say, this was obvious from the jump. We just had it completely wrong all this time. So did all of the jurisdictions who are allowing this basis of opinion stuff. So that's the real question on the retroactivity issue. is does Smith announce a new procedural rule, or should we have known better all along? Certainly there was that plurality in Williams. You could infer some of this from the earlier confrontation cases like Melendez-Diaz. So I think that's your position, defenders, if you're doing post-conviction on this issue, is to say this was clear going back to 2013 or before even, and we just had it all wrong. This never was a justifiable practice, this substitute analyst stuff. But on the other hand, there was a massive split of authority between jurisdictions on this question of whether substitute analyst was consistent with the Confrontation Clause. And I think that'll be the state's argument to say, no, no, no, this is new. And so you don't get to claim benefit of it in collateral review, post-conviction review. That obviously affects a much smaller number of cases and isn't as big a deal as the general rule that is defined in Smith. But it's another interesting angle to keep a lookout for here, especially if you're doing that post-conviction work. That is our Supreme Court episode, I think, ladies and gentlemen. There was some other interesting stuff. I'm not really going to get to it. There's the bump stock ban that was confirmed, right? And the Trump immunity ruling. But we're not going to cover those on this show. I've got too much just nuts and bolts criminal stuff to get to. A big thanks to Paul Bonner, studio extraordinaire. Thanks to Monica Yelverton, my associate director for programs and services at Public Defense Education here. Thanks to my brother, David Dixon. He composed our theme music. Shout out to him and his new son, Miles. Thanks to all of you who are listening. I'm going to be back in the studio very, very soon and try and knock out a couple more episodes before the end of the year. I know it's been too long. I'm sorry to make you wait. We've still got just mounds of cases to cover. Let me know if you have thoughts, questions, concerns about the episode. I love to hear from folks. I appreciate the feedback I have gotten. I'm at dixon at sog.unc.edu. Again, that's dixon at sog.unc.edu. Shoot me a holler anytime. I'd love to hear from you and talk to you soon. Thanks, everybody.