Legal Commentary

I left practice in part based on the fantasy that I could better influence legal developments by writing articles than I could by litigating appeals; even when a brilliant brief wins, it often results in an opaque and narrow opinion, particularly in the intermediate appellate courts, but a law review article makes its argument forever.   Michael Blanchard, a former student, and I criticized the practice of salvaging drug prosecutions when the dope was lost or never recovered, and therefore never tested in a lab, by having police officers give lay opinion testimony that they could tell by looking that the white powder in the missing glassine was heroin or cocaine or methamphetamine.  This is scientifically and socially preposterous; almost no one  can visually analyze the chemical composition of white powder:  most of the volume of street drugs is filler or binder, and some of what is sold on the street is phony--completely drug free.  This issue came up in a North Carolina case, State v. Llamas-Hernandez, 659 S.E.2d 79 (N.C. App. 2008) ; the good news is that all three judges agreed that it made little sense to allow officers to testify about something they could not possibly know.  The bad news is that two of them nevertheless voted to uphold the conviction.   

I am genuinely puzzled about whether the majority applied as best it could what it felt was a binding precedent, or instead made a legal error (not in not following our article, but in not following North Carolina law).    The majority relied on State v. Freeman,  648 S.E.2d 876 (N.C. App. 2007), which affirmed a conviction in spite of this sort of testimony, but there, the testimony was not objected to at trial, so the Freeman court's precise holding was that the testimony was not plain error. That something is not plain error does not mean it is not reversible error when properly objected-to at trial.  Freeman went on to say that there was no error, not just no plain error, but that was dicta, which, a  glance at North Carolina law suggests, is not binding on other panels.   

In addition, the majority noted that a N.C. App. decision long before Freeman but not mentioned in that decision, had gone the other way.   Even if a panel is obligated to follow precedent, if there are conflicting precedents, it would be a surprising rule that the most recent one (which, after all, did not follow the earlier binding precedent because it did not find it, or disregarded its duty to follow it) automatically controls.  With conflicting precedents, I would think the court had the latitude to decide on the basis of what it thought was the correct resolution on the merits.  But hey: They spelled our names right.