NCPLS ACCESS THE MILITARY - NC Prisoner Legal Services

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					The Newsletter of North Carolina Prisoner Legal Services, Inc.                       Volume IX, Issue 1, January 2009

      NCPLS                                                                     ACCESS
         THE MILITARY: CAN I ENLIST                                AS AN        EX-OFFEND ER?
                                        BY MICHAEL G. AVERY, STAFF ATTORNEY

Many ex-offenders often find             Each branch of the military is dif-    If a waiver is disapproved, there
that employment opportunities            ferent when it comes to recruiting     is no appeal (the waiver process
upon release from DOC custody            standards, but they all have regu-     itself is the appeal -- the individual
can be limited. These limitations        lations regarding felonies. The        is not qualified for enlistment and
certainly play a role in increased       military maintains a high “moral”      submits a waiver request, appealing
rates of recidivism. According to        standard for recruits and is the       to recruiting authorities to make
the most recent study conducted          basis for not allowing most felo-      an exception in his/her particular
by the United States Bureau of           nies. It generally comes down to       case).6
Justice Statistics, an estimated         the type of offense and how long
67.5% of persons released from           ago it was.2 It is important to note   Information released in April of
prisons were rearrested for a felony     that federal law requires applicants   2008 by the House Oversight and
or serious misdemeanor within 3          to divulge all criminal history on     Government Reform Commit-
years, 46.9% were reconvicted, and       recruiting applications, includ-       tee shows that in 2006 and 2007
25.4% re-sentenced to prison for a       ing expunged, sealed, or juvenile      Americans who were convicted
new crime.1                              records.3                              of serious crimes including sexual
                                         The process begins with an             offenses, manslaughter, “terrorist
With these limitations in mind,          interview by a recruiter, asking       (Continued on Page 8)
some ex-offenders question               the applicant about any records
whether they would be able to            of arrest, charges, juvenile court
enlist and serve within one of                                                  In this Issue:
                                         adjudications, traffic violations,
the branches of the United States        probation periods, dismissed or        The Military: Can I Enlist as an Ex-
armed forces. The answer is                                                     Offender?                               1
                                         pending charges or convictions,
maybe. However, in order to do so,       including those which have been        NCPLS W elcomes New Executive
it is necessary to apply for a “moral    expunged or sealed. Providing          Director                                2
waiver” which is granted to indi-        false information, or withholding
viduals who otherwise would not          required information is a federal      NCPLS Continues to Work for Lost Jail
qualify for military service because     offense, and individuals may           Credit                               2
of a criminal background.                be tried by Federal, civilian, or      Sexual Abuse and Your Rights            3
                                         Military Court.4
It is important to note that appli-
                                         Waiver authorities will consider the   NCPLS Obtains Relief in Two Sentence
cants who require a waiver are not                                              Correction Cases                     3
qualified for enlistment, unless/        “whole person” concept (consid-
until a waiver is approved. The          eration of the circumstances sur-      Recent Changes in Parole Review for
burden is on the applicant to prove      rounding the criminal violations,      Certain Inmates                     4
to waiver authorities that they have     the age of the person committing
                                         them, and personal interviews with     New Staff Members at NCPLS              5
overcome their disqualifications for
enlistment, and that their accep-        the applicant and others, as well as
                                                                                Recent Rumors are Unfounded             5
tance would be in the best interests     a recruit’s other aptitudes, experi-
of the military.                         ences, and characteristics 5) when     Seeking Compensation for Wrongful
                                         considering waiver applications.       Convictions                             6
Page 2                                                  NCPLS ACCESS                        Volume IX, Issue 1, January 2009

 ACCESS is a publication of North                  NCPLS W ELCOMES N                 EW   EXECUTIVE DIRECTOR
 Carolina Prisoner Legal Services,
 Inc. Established in 1978, NCPLS is a        At the end of an extensive search         inmate whose direct appeals had
 non-profit, public service organization.    process, the NCPLS Board of               been exhausted. Using the new
 The program is governed by a Board          Directors recently appointed Mary         capital post-conviction open-file
 of Directors who are designated by
 various organizations and institutions,
                                             Pollard as the new Executive              discovery law, she was able to
 including the North Carolina Bar            Director of NCPLS. Ms. Pollard is         obtain prosecutorial files that had
Association, the Academy of Trial            a 1993 cum laude graduate of Wake         been withheld from Gell’s trial
Lawyers, the ACLU of North Carolina,         Forest University, where she served       counsel but which proved that he
and the Office of Indigent Defense           on the Wake Forest Law Review             did not and could not have com-
Services.                                    and earned the I. Beverly Lake            mitted the murder. With that infor-
 NCPLS serves a population of more
                                             Award for Excellence in Constitu-         mation, and the help of others in
 than 38,600 prisoners and 14,000 pretrial   tional Law. In the fall of 1993, she      the legal community, Ms. Pollard
 detainees (with about 250,000 annual        joined the firm of Womble Car-            secured a new trial for Gell, whose
 admissions), providing information,         lyle Sandridge & Rice, where she          subsequent acquittal was one of the
 advice, and representation in all State     gained experience in a broad range        major factors that led to the adop-
 and federal courts to ensure humane         of complex civil litigation, from         tion of pre-trial open-file discov-
 conditions of confinement and to
challenge illegal convictions and
                                             mediation to pre-trial discovery to       ery for accused people in North
sentences.                                   trial.                                    Carolina. In 2002, Ms. Pollard left
                                             During her time at Womble Car-            Womble Carlyle and joined the
                                             lyle, she began what has become           Center for Death Penalty Litiga-
           Executive Director                                                          tion, where she served as a staff
            Mary S. Pollard                  a fierce commitment to public
                                             service litigation, particularly for      attorney representing defendants in
                 Editor                      those accused and convicted of            capital pre-trial and post-conviction
                Ken Butler                   committing crimes. She pursued            proceedings and consulted with
                                             post-conviction work for James            attorneys handling capital litigation
                                             Alan Gell, an innocent death row          statewide.
              Mike Pearson
                                               NCPLS C        ONTINUE S TO          WORK FOR LOST JAIL CREDIT
             Articles, ideas                 As has been reported in earlier
      and suggestions are welcome.           editions of Access, the NCPLS Jail        During fiscal year 2007 (7/1/07-6/
        Contact:             Credit Team works on requests             30/08) our Jail Credit Team found
                                             from inmates to obtain sentence           26,794 days of jail credit that had
                                             reduction credits                                            not been properly
                                             from time spent                                              applied to sen-
                                             in jail on a charge                                          tences. During
                                             for which they                                               the first half of
                                             were ultimately                                              the current fiscal
                                             convicted (jail                                              year, the Team
                                             credit). Our Jail                                            has found an
                                             Credit Team                                                  additional 9,382
                                             consists of four                                             days of credit.
                                             full-time para-                                              Not only does
                                             legals, working                                              this mean earlier
                                             under the supervision of a senior         release for our clients, but it also
                                             staff attorney, whose sole job is to      results in a savings to the taxpayers
                                             investigate claims by inmates that        of North Carolina of over 2.7 mil-
                                             they are entitled to additional jail      lion dollars.
Volume IX, Issue 1, January 2009                   NCPLS ACCESS                                                  Page 3

                                SEXUAL ABUSE AND YOUR RIGHTS

For many years, NCPLS has                problem of sexual abuse in prisons        reason for the sexual contact, the
received significant complaints          and jails. PREA is legislation that       state of North Carolina has rec-
from people housed within the            establishes a zero tolerance policy       ognized that sex between inmates
North Carolina Department of Cor-        for sexual assault and abuse in           and correctional officers or staff
rections regarding sexual assaults       prisons and jails. The major provi-       tends to be coercive. Thus, any
and abuse at the hands of correc-        sions of PREA include developing          correctional officer or staff member
tional officers and staff. The Eighth    standards for the prevention of           who engages in a sexual act with
Amendment to the Constitution            sexual abuse, collecting statistics,      an inmate can be charged with a
prohibits cruel and unusual punish-      and awarding grants to local and          felony, regardless of whether the
ment and deliberate indifference         state governments to help stop            inmate consented. N.C.G.S. § 14-
by prison officials to the welfare of    sexual abuse.                             27.7(a).
inmates. This includes sexual abuse
and inappropriate sexual contact         Sexual contact between inmates            Often victims are unwilling or
between inmates and officers or          and prison officers or staff occurs       afraid to report what has hap-
staff. Make sure you know what           for many reasons. Sometimes               pened to them. Unfortunately, this
your rights are if you are con-          officers or staff offer promises          reluctance allows the practice to
fronted with a situation of sexual       or gifts to inmates in exchange           continue. Communication with
abuse or contact by correctional         for sex. Other times, inmates are         NCPLS is protected by lawyer-
personnel.                               afraid to say no to an officer or         client confidentiality. If you have
                                         staff member because they fear            been a victim of this type of abuse
In 2003, Congress passed the             retaliation. Officers or staff may        and you would like information
Prison Rape Elimination Act              even directly threaten inmates with       about your rights, please write to
(PREA, P.L. 108-79) to address the       lock-up or harm. Regardless of the        us.

         NCPLS O           BTAIN S      RELIEF IN TWO SENTENC                 E   CORRECTION CASES
NCPLS was recently presented             in which the client’s sentences           rect calculation of his prior record
with a case where a client had been      were to run. Following review by          points. The State did not prove
convicted, following a jury trial, of    post-conviction investigator Bruce        that the client’s Florida burglary
second-degree murder, two counts         Creecy, and NCPLS staff attorney          convictions were substantially
of armed robbery, and assault with       Nicholas Woomer-Deters, we were           similar to North Carolina burglary
a deadly weapon with intent to           able to get this error corrected. The     convictions. We were successful in
kill inflicting serious injury.                                                           showing that the particular
Following appeal, he was                                                                  Florida burglary offense was
awarded a new trial. Prior                                                                substantially similar to the
to trial, he entered a plea                                                               North Carolina offense of
agreement under which                                                                     breaking and entering. Once
he would plead to the two                                                                 the prior record was recalcu-
armed robbery counts. The client’s       result for the client, following both     lated the client went from a prior
plea agreement specifically stated       his direct appeal and our assistance      record VI to a prior record V. After
that the two terms would be con-         in correcting his sentences, was to       resentencing, the client’s projected
solidated for judgment, and would        reduce his projected release date by      release date was reduced by over 6
run concurrently with sentences          forty-nine years.                         months.
from other counties that the client
was already serving. However, at         In a second case, we obtained
the time he wrote to our office, the     resentencing for a client by argu-
DOC had not changed the manner           ing that there had been an incor-
Page 4                                           NCPLS ACCESS                       Volume IX, Issue 1, January 2009

NCPLS has received many let-                                                    is for an inmate to prove that any
ters from inmates asking about          Inmates convicted of first or           amendment of the statutes creates a
changes in the frequency of parole      second-degree murder under the          “significant risk of prolonging [his]
review. Felony parole only applies      Fair Sentencing Act, or pre-FSA         incarceration.” Garner. 529 U.S.
to persons who were convicted of        law, have asked whether this            at 251, 120 S.Ct. at 1368.
felonies committed before October       change in parole review violates
1, 1994, the effective date of the      the constitutional principles barring   In North Carolina the decision to
Structured Sentencing Act. For          ex post facto laws. The U.S.            grant parole is left to the discretion
most of those offenders, the Post-      Supreme Court has considered            of the Commission. There are no
Release Supervision and Parole          two cases in which there was a          formal hearings held where the
Commission (the Commission)             retroactive change in the length        inmate is present and can offer
conducts an annual parole review,       of time for parole hearings.            evidence. (An inmate or interested
once the person becomes eligible        California Dept. of Corrections         persons can always submit relevant
for parole.                                                                      information to the Commission in
                                                                                 writing prior to the review date.)
During its last session, the North                                               There are three Commissioners,
Carolina General Assembly                                                        each of whom votes on whether
enacted Session Law 2008-133,                                                    to grant parole, and at least two
which was signed into law by                                                     Commissioners must vote in favor
Governor Easley on July 28, 2008.                                                of parole. Parole can be denied
This statute provides, in part, that:                                            without lengthy explanation,
                                                                                 simply by referring to one of the
         The Commission                                                          four statutory reasons set out in
         shall review cases             v. Morales, 514 U.S. 499, 115            N.C. Gen. Stat. §15A-1371(d)
         where the prisoner             S.Ct. 1597 (1995), and Garner v.        (1990) (repealed).
         was convicted of               Jones 529 U.S. 244, 120 S.Ct.
         first or second                1362 (U.S.,2000). In both cases         Given the relatively informal, and
         degree murder, and             the Court held that the increase        highly discretionary, nature of
         in its discretion,             between parole hearings alone did       North Carolina’s parole process,
         give consideration             not violate the ex post facto clause    it would be difficult to prove
         of parole and                  of the U.S. Constitution.               that a change in the frequency
         written notice of its                                                  of review creates a “significant
         decision once every            In each case the issue was              risk” of prolonging an inmate’s
         third year; except             considered in light of the particular   incarceration. Furthermore, it must
         that the Commission            parole statutes, regulations, and       also be noted that the new law
         may give more                  practices in California and Georgia     gives the Commission the option
         frequent parole                respectively. See, Garner, 529          of holding more frequent reviews
         consideration if it            U.S. at 252, 120 S.Ct. at 1368 (        in appropriate cases, a factor that
         finds that exigent             The case turns on the operation         would almost certainly count in
         circumstances or the           of the amendment…within the             its favor in any constitutional
         interests of justice           whole context of Georgia’s              challenge.
         demand it.”                    parole system.) Any challenge
                                        to changes in North Carolina’s
This statute became effective on        parole system would similarly look
October 1, 2008 and applies to          at the relevant laws dealing with
parole reviews conducted on and         parole in this state. The key for a
after that date.                        successful ex post facto challenge
Volume IX, Issue 1, January 2009                     NCPLS ACCESS                                                  Page 5

                                   N   EW   STAFF MEMBERS AT NCPLS
The past year has seen NCPLS add            Laura Grimaldi graduated from the      olina Central School of Law. Her
several new members to its staff.           University of Iowa College of Law      employment prior to law school
They are:                                   in 2002. She worked as a public        included work as a correctional
                                            defender with the Legal Aid Soci-      officer at NCCIW.
D. Tucker Charns is the new Post-           ety in Brooklyn, NY until moving
Conviction Litigation Director. A           to North Carolina in 2005. Prior to    Joy Belk is a NC Certified Para-
graduate of the University of North         taking her position with NCPLS,        legal with 4 years of experience.
Carolina at Chapel Hill for both            Ms. Grimaldi had her own law           She is a graduate of East Carolina
her undergraduate and law degrees,          practice in Durham, NC, special-       University and Meredith College’s
she has been a criminal defense             izing in immigration and criminal      Paralegal Program. Her prior
attorney for 20 years. She was an           law. She started work with the post-   positions included work as a cor-
assistant public defender for 10            conviction team at PLS in August       rectional officer at both NCCIW,
years and has been in private prac-         of 2008, and is very excited to be     and working at Central Prison as
tice, handling trial work and direct        a part of NCPLS’s mission against      both an officer and a Programs
appeals.                                    injustice.                             Assistant. During 2006-2007, Joy
                                                                                   worked for the Department of Jus-
Elizabeth Albiston is a new civil           Sarah J. Farber is the newest          tice as a Tort Claims Paralegal.
attorney at NCPLS. She is a 2007            member of the Postconviction
graduate of the UNC School of               Team. Before joining NCPLS, she        Carlos Soria was born in Mexico
Law, where she represented crimi-           was a criminal defense attorney        and obtained a degree in graphic
nally charged juveniles and worked          in private practice. She graduated     design from the Mexican-Italian
as an advocate for transgender pris-        cum laude from North Carolina          Studies Center on Graphic Design.
oners. Following her graduation,            Central University School of Law.      He came to the United States in
Ms. Albiston worked as a criminal           Prior to law school, she worked for    2000 where he worked at a variety
defense attorney. In her spare time,        a non-profit organization mentoring    of jobs, and obtained additional
she volunteers with the Internation-        college students. She received her     technical training. He has worked
alist Books to Prisoners Collective,        B.A. from Penn State University.       as a legal assistant for the past three
a program that sends books and                                                     years and currently works in the
resources to prisoners incarcerated         Yolanda Carter is the newest           NCPLS Intake Section as a bilin-
in Alabama and Mississippi.                 member of the NCPLS Civil Team.        gual English / Spanish interpreter.
                                            She is a graduate of the North Car-

                                   RECENT RUMORS ARE UNFOUND                        ED

NCPLS regularly receives letters            serve a lower percentage of their      current SSA inmates to be resen-
from inmates asking about various           total sentence when compared to        tenced.
prison rumors. One of the most              the SSA These included day-for-
common is whether the “65% law”             day good time (for obeying prison      Another rumor is that a new DOC
will be reinstated. The term “65%           rules), gain time (for working at      policy will require inmates with
law” is used to describe the former         prison jobs), merit time, as well as   dreadlocks to cut their hair. We
Fair Sentencing Act (FSA). The              the opportunity for parole for many    have contacted the DOC and been
FSA applied to felonies commit-             classes of felony conviction.          informed that there has been no
ted before October 1, 1994, which                                                  official change of policy or regula-
was the effective date of the current       At this time there has been no         tions concerning dreadlocks at this
Structured Sentencing Act (SSA).            legislation, either enacted or         time.
The FSA contained several provi-            proposed, that would reinstate
sions that allowed many inmates to          the FSA or which would require
Page 6                                        NCPLS ACCESS                         Volume IX, Issue 1, January 2009

                SEEKING COMPENSA TION                 FOR    WRON GFUL CONVIC TIONS
                                         BY STAFF ATTORNEY KEN BUTLER

NCPLS often receives inquiries,         law became effective on August 4,      tive order, declared invalid by a
from both present and former            2008.                                  state tribunal authorized to make
inmates, about civil legal claims                                              such determination, or called into
relating to criminal convictions.       This type of statutory compensa-       question by a federal court’s issu-
These ask about the possibility         tion only applies to a very specific   ance of a writ of habeas corpus,
of seeking money damages for            class of persons, namely those who     28 U.S.C. § 2254.” Heck v. Hum-
what are alleged to be wrongful         have received a pardon of inno-        phrey, 512 U.S. 477, 487, 114 S.
convictions, or violations of con-      cence from the Governor. It does       Ct. 2364, 2372, 129 L. Ed. 2d 383
stitutional rights during a criminal    not include persons who cases are      (1994). Put another way, a person
prosecution. In recent years sev-       overturned on appeal, collateral       cannot make a civil rights claim for
eral high-profile cases of wrongful     review (such as motions for appro-     damages based on a wrongful con-
conviction, both in North Carolina      priate relief or habeas corpus), or    viction as long as the conviction
and other states, have led to com-      similar forms of judicial action.      is still stands and is presumptively
pensation awards for the innocent       Furthermore, the compensation          valid.
defendants.                             under § 148-82 does not require a
                                        showing of some type of miscon-        The next hurdle that a wrongfully
North Carolina has a statutory          duct on the part of members of the     convicted person faces is the vari-
mechanism for compensating some         criminal justice system. A person      ous forms of immunity defenses
victims of wrongful convictions,        seeking compensation in those          that are provided by the law. These
by providing that persons who           types of cases must bring an action    immunities mean that a defendant
have been convicted of a felony         through more traditional tort or       does not have to pay damages to
and imprisoned, and who are later       civil rights remedies.                 the injured party, even if the facts
granted a pardon of innocence                                                  otherwise show a wrongful act by a
by the Governor, can petition the       There are many types of claims         defendant. Even though an injured
State for compensation. N.C. Gen.       that can be made regarding wrong-      party may be left without a legal
Stat. § 148-82. These petitions are     ful criminal convictions. These        remedy, these immunities have
submitted to the North Carolina         include claims of false testimony      been approved by the courts on
Industrial Commission. In 2008,         by police officers at trial, failure   various policy grounds.
the General Assembly increased          to turn over exculpatory evidence,
the amount of compensation that         the fabrication or manipulation        First among these are the related
could be awarded in such cases to       of evidence, or knowingly having       doctrines of sovereign immunity
$50,000 per year, up to a maximum       witnesses give false testimony.        and Eleventh Amendment immu-
of $750,000. Sess. L. 2008-173.         However, establishing liability        nity. Sovereign immunity pro-
Furthermore, in determining an          for damages on the part of law         tects the states from being sued
appropriate amount of compensa-         enforcement or prosecutors often       in their own courts unless they
tion, the Industrial Commission         faces an array of obstacles.           have waived the protection of such
is permitted to examine the extent                                             immunity. Evans v. Hous. Auth.
to which imprisonment deprived          In such cases the first step is to     of Raleigh, 359 N.C. 50, 53, 602
the individual of educational or        demonstrate that the original          S.E.2d 668, 670 (2004). North
training opportunities. As part of      conviction was actually improper.      Carolina has enacted a limited
its consideration, the Commission       The Supreme Court has held that        waiver of its sovereign immunity
can provide compensation for job        before a person can seek dam-          protection through the State Tort
skills training for at least one year   ages under the civil rights laws for   Claims Act, N.C. Gen. Stat. §
through an appropriate state pro-       an unconstitutional conviction, it     143-291, for cases where a party
gram, as well as tuition and fees for   must be shown that the “conviction     claims to have been injured by
any North Carolina public univer-       or sentence has been reversed on       (Continued on Page 7)
sity or community college. This         direct appeal, expunged by execu-
Volume IX, Issue 1, January 2009                    NCPLS ACCESS                                                 Page 7

                                       (CONTIN UED)
                             actions taken as an advocate for the
(Continued from Page 6)                                                           police, or prosecutors who were
                                         state. This type of immunity offers      acting in a capacity that does not
the negligence of a state officer,
                                         broad protection even for acts that      confer absolute immunity. See
employee or agent, acting in the
                                         clearly have the potential to affect a   Limone v. Condon, 372 F.3d 39, 44-
course and scope of his or her duty.
                                         defendant’s trial. See Reasonover        45 (1st Cir 2004)(denying qualified
This waiver does not extend to
                                         v. St. Louis County, Mo. 447 F.3d        immunity based on fundamental
intentional acts or to claims of civil
                                         569, 580 (8th Cir. 2006) (even if        concept that those charged with
rights violation. The Eleventh
                                         prosecutor knowingly presented           upholding the law are prohibited
Amendment to the Constitution
                                         false, misleading, or perjured tes-      from deliberately fabricating evi-
prevents a citizen from bringing
                                         timony, or even if he withheld or        dence and framing individuals for
a lawsuit for money damages in
                                         suppressed exculpatory evidence,         crimes they did not commit.).
the federal courts, against a state,
                                         he is absolutely immune from
a state agency, or a state official
                                         suit). However, absolute immunity        An important point to note is that
in his or her official capacity.
                                         does not apply when a prosecu-           absolute prosecutorial immunity, or
Pennhurst State School & Hosp. v.
                                         tor performs other functions, such       the qualified immunity for police
Halderman 465 U.S. 89, 97-102,
                                         as acting as an administrator or         officers, apply only where a com-
104 S.Ct. 900, 906 - 909 (1984).
                                         investigative officer, or providing      plaint is seeking damages against
                                         legal advice to the police. Absolute     the prosecutor or police officer in
Judges enjoy absolute immunity
                                         prosecutorial immunity has been          their individual capacities. Some
from damages liability for judicial
                                         denied in cases involving a dis-         complaints of wrongful conviction
acts unless done “in clear absence
                                         trict attorney’s failure to establish    liability can be asserted against a
of all jurisdiction.” Stump v. Spark-
                                         policies or adequately train sub-        local government entity, such as a
man, 435 U.S. 349, 356-57, 55 L.
                                         ordinates concerning the manner          city or county police or sheriff’s
Ed. 2d 331, 98 S. Ct. 1099 (1972).
                                         in which exculpatory evidence            department based upon liability for
Court clerks are also accorded
                                         is handled. Thompson v. Con-             a policy that violated a defendant’s
derivative judicial absolute immu-
                                         nick, 2008 WL 5265197 (5th Cir.          constitutional rights. Gregory v.
nity when they act in obedience to
                                         Dec. 19, 2008); Goldstein v. City        City of Louisville, 444 F.3d 725,
judicial order or under the court’s
                                         of Long Beach, 481 F.3d 1170,            752 -753 (6th Cir. 2006).
direction. See McCray v. Mary-
                                         1176 (C.A.9 (Cal.),2007).
land, 456 F.2d 1, 5 (4th Cir. 1972).
                                                                                  Obviously any person who has
Witnesses who testify at a criminal
                                         In situations where absolute immu-       served time for a crime that he or
trial are also entitled to absolute
                                         nity does not apply, both police and     she did not commit wants, and
immunity for their testimony. This
                                         prosecutors may still be entitled to     deserves, compensation for the
even extends to police officers
                                         qualified immunity. Under quali-         time they have lost. Where the
who are alleged to have given
                                         fied immunity, an officer is not         defendant’s actual innocence can
false testimony. Briscoe v. LaHue,
                                         liable for damages if his “conduct       be proved, § 148-82 provides a
460 U.S. 325, 103 S.Ct. 1108, 75
                                         does not violate clearly established     means for compensation. Where
L.Ed.2d 96 (1983).
                                         statutory or constitutional rights of    the conviction was the result of
                                         which a reasonable person would          police or prosecutorial miscon-
Prosecutors are entitled to absolute
                                         have known.” Rish v. Johnson,            duct, obtaining compensation will
immunity from civil liability for
                                         131 F.3d 1092, 1095 (4th Cir.            require negotiating the various
conduct “intimately associated with
                                         1997)(quoting Harlow v. Fitzger-         immunity defenses. In either case,
the judicial phase of the criminal
                                         ald, 457 U.S. 800, 818 (1982)).          representation by counsel will be
process.” Imbler v. Pachtman, 424
                                         Successful wrongful conviction           essential to present the defendant’s
U.S. 409, 430, 47 L. Ed. 2d 128,
                                         cases generally involve overcom-         claim and to secure the best pos-
96 S. Ct. 984 (1976). Therefore, a
                                         ing claims of entitlement to quali-      sible recovery.
prosecutor will not be liable for the
                                         fied immunity on the part of either
decision to pursue charges, or for

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    P.O. Box 25397
    Raleigh, NC 27611

    Phone: (919) 856-2200
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 Visit our website at:

                                    (CONTIN UED)
(Continued from Page 1)               a child, 7 who were convicted
threats including bomb threats”,      of rape, sexual assault, criminal      (Footnotes)
burglary, kidnapping or abduc-        sexual assault, incest or other sex
tion, aggravated assault and sexual   crimes and 3 who were convicted        crimoff.htm#recidivism
assault were allowed into the mili-   of terrorist threats including bomb
tary under moral waivers granted      threats.8                              felony.html
by the services.7                                                    
                                      In summary, although there is          armyjoin/a/criminal.htm
According to the data given to        no specific right to serve in the        Id.
the committee by the Department       armed forces, a criminal record
of Defense, the Army allowed          does not foreclose one’s ability to    ns99053.pdf.Id.
the most waivers in 2006 and          enlist. According to recent data,
2007. During this period, moral       the military is increasingly grant-    armyjoin/a/criminal.htm
or felony waivers were given to 3     ing “second chances” to those            Military has Recruited More
soldiers who had been convicted       ex-offenders wishing to enlist and     Serious Ex-Offenders than
of manslaughter. One soldier was      serve their country despite having a   Previously Known, Palm Center
allowed in following a kidnapping     criminal record.                       Research Institute, University of
or abduction conviction, 11 were                                             California, Santa Barbara, April
convicted of arson, 142 convicted                                            21st, 2008.
of burglary, 3 who were convicted                                              Id..
of indecent acts or liberties with

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