South Carolina Criminal Defense Blog

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Trial theory is up and running again

I love the concept of Trial Theory – but a few months ago, discouraged by lack of participation in trial theory as a group blog, I decided to shut it down. That was a mistake, and the site is back up and I intend to keep it up. I’ll keep southcarolinacriminaldefenseblog running as well, but trial theory needs its own place as a forum to discuss trial practice and life in general without the stigma of the appearance of a “marketing blog” type of format.

The site is still open to guest bloggers – if you have a topic you want to share that deals with trial practice, psychodrama, or life in general, create a wordpress.com account, shoot me an email or leave a comment, and I will add you as a guest blogger. I appreciate any participation and feedback – thanks to all who are reading.

Former Kershaw County deputy Oddie Tribble was fired August 5th after beating a handcuffed man with a baton until his leg was broken, on video (below). At least two other deputies stood by and watched as Tribble repeatedly beat the man, seemingly undisturbed by the violence.

Police get much more than the presumption of innocence when they are accused of committing a crime - they get the red carpet rolled out for them. More often than not they are not charged with a crime (see this post about a Pensacola officer who tased and ran over a teenager, killing him, and the comments to the post). When they are charged they are given every benefit of the doubt, and more often than not juries will acquit them.

In the CNN story that I linked to, they do not identify the deputy in the video - Oddie Tribble - he is only referred to as "the deputy." But the man who was beaten, Charles Shelley, was identified. In a press conference, our SLED chief Reggie Lloyd said:

"We don't think it is typical behavior in South Carolina, but it's disturbing behavior," Lloyd said. He added that standard police training does not include the method shown in the video.

"You probably shouldn't be hitting anybody with a ... baton while they're handcuffed."

According to WMBF, a drug bust today in Myrtle Beach netted 8 kilos of black tar heroin, 1 and a half kilos of powder heroin, and a quarter of a kilo of cocaine. The DEA and Horry County narcotics officers managed to make the bust, which was the culmination of a year-long investigation, when no-one was home, and no arrests were made.

The FBI is upset that Wikipedia included it's seal on its online encyclopedia entry:

(CNN) -- The U.S. Federal Bureau of Investigation has threatened Wikipedia with legal action if the online encyclopedia doesn't remove the FBI's seal from its site.

The seal is featured in an encyclopedia entry about the FBI.

Wikipedia isn't backing down, however. The online encyclopedia -- which is run by a nonprofit group and is edited by the public -- sent a chiding letter to the FBI, explaining why, in its view, the FBI is off its legal rocker.

It makes sense for an online encyclopedia to include an agency's official seal along with the other information about the agency. In case anyone was wondering what this top secret government seal looks like:

H/T Popehat, Bennett, Greenfield, Gideon, Gamso, Coleman, and Windypundit .

An Horry County magistrate in Aynor has been suspended from office pending investigation of a complaint that was received by the SC Office of Disciplinary Counsel. I don't know why he was suspended or what the complaint was, or any other details about the situation.

Via Simple Justice and Jonathan Turley, in October last year, Officer Jerald Ard of the Pensacola police department spotted a black teen, Victor Steen, riding his bicycle at a vacant construction site, then chased him down in his police cruiser, driving into oncoming traffic, tazes the teen from his car window, and then runs over him with his car, killing him. According to the narration at liveleak.com, which has both videos and better sound quality, video from a second responding patrol car may have caught Ard planting a 9mm on the teen's body as it lay underneath his patrol car.

Pensacola Police Department’s internal investigation found that the officer violated department policy by driving into oncoming traffic and discharging his taser from the car window, and noted that the subject could have sustained serious injuries if he had fallen from his bicycle during the chase (good thing that Victor did not fall from his bike before being run over by the police car). Officer Ard was suspended for 80 hours without pay as discipline for killing Victor Steen. He was not charged with any crime.

From the Consumer Attorneys of California:

via the NORML Blog, a marijuana prohibition video worthy of virality. I agree.

What would the appropriate penalty be for an attorney who repeatedly offers to write off legal bills in exchange for sex? What if the attorney has a long history of ethics complaints, had previously been suspended for 15 months (and continued to practice law anyway), and lied to disciplinary counsel about his conduct? According to the New Jersey Supreme Court, disbarment would be too harsh, and the attorney is suspended for one year.

A one-year suspension from practice, with reinstatement conditioned on the successful completion of an approved sensitivity training course and proof of the institution of accounting controls in his office, is the appropriate measure of discipline for Witherspoon. More substantial discipline is not warranted on the record in this case, which does not include criminal conduct, unwanted, traumatic physical contact, or particularly vulnerable subjects of Witherspoon’s attention. Preying on clients as Witherspoon has done deserves to be dealt with harshly because it goes to the heart of the trust on which the attorney-client relationship is based, but it would be disproportionate to disbar him for his boorish, insensitive and offensive, but hardly criminal, conduct.

I'm not familiar with NJ law, but in South Carolina and I thought most states, solicitation of prostitution is criminal. I suppose, in NJ, solicitation of prostitution is not criminal so long as it is in the context of an attorney preying on his clients?

H/T Legal Ethics Forum and Law of Criminal Defense.

Tim Masters was sentenced to life in prison after being convicted for murder - after spending nine years in prison, he has been exonerated by DNA evidence and the detective from his case - Lt. Jim Broderick - is being prosecuted for perjury:

Masters, who served nine years of a life sentence after his 1998 arrest in Peggy Hettrick's murder, has said he hopes Fort Collins and Larimer County will finally acknowledge that he was railroaded.

The city and county have paid Masters a combined $10 million to settle a civil rights lawsuit related to the conviction, but they painted the payouts as business decisions rather than reparations.

"I am anxious to see if the leadership in Fort Collins will finally publicly admit my incarceration was a mistake or if they will continue this charade that their people did nothing wrong," Masters said in a statement provided by his attorneys. . . .

. . . Among the charges in the indictment are that Broderick intentionally lied about an FBI profile used to support Masters' arrest, shoeprints found at the crime scene, a fellow investigator's crime scene observations and his own degree of participation in the case.

The prosecutors that put Tim in prison have since been rewarded by being elected as judges - Jolene Blair and Terry Gilmore.

Although the city and county have paid out $10 million, they still admit no wrongdoing.

Broderick still admits no wrongdoing, and his attorney suggests that Broderick's prosecution is politically motivated because the prosecutor is running for office (irony?).

An Horry County public defender was given a public reprimand for numerous violations, including failing to communicate with clients, failing to communicate with the Office of Disciplinary Counsel during their investigation, and failing to give competent representation to clients. This lawyer's case has re-sparked debate about the overwhelming caseloads that public defenders are working with - it raises the question, is the public defender simply providing incompetent representation to indigent clients, or is he prevented from providing competent representation by the conditions he is given to work in?

My own rant - sorry if you are sick of hearing it: When caseloads become unmanageable, public defenders have an ethical responsibility to refuse cases - with no funding, huge caseloads, and insufficient office staff, public defenders cannot possibly fulfill their duty to independently investigate every case, to meet with their clients, to respond to their clients' communications, and to do even the most basic preparation for trial in their cases. If you are a chief public defender and you know that your attorneys are overwhelmed, stop accepting cases. If you are a rank and file public defender and you are not prepared for trial, refuse to proceed and make a record as to why you were unable to be prepared.

Another attorney was publicly reprimanded for failing to communicate with his clients he was defending in a civil matter, including failing to inform them when an arbitrator awarded damages to the plaintiff in their case.

An attorney was disbarred after he allowed his license to be suspended for failing to complete CLE requirements, then failed to tell his clients about the disciplinary proceedings, failed to keep records of his trust account, misappropriated funds from his trust account, and did not keep malpractice insurance (which means the laundry list of clients whose cases he was neglecting got screwed). The sanction includes a requirement that the attorney enter a monitoring contract with Lawyers Helping Lawyers before he can seek to be reinstated (among other requirements), which indicates that the difficulties may have been brought on by substance abuse.

An attorney was disbarred after not keeping up her trust account, misusing clients' funds, being charged herself with issuing fraudulent checks, not paying a court reporter for a transcript, and failing to communicate with her clients.

One thing that all of these cases have in common is the failure to communicate with clients - whether it is a symptom of more serious underlying problems or the source of the complaints in and of itself, it is clear that if we find ourselves not taking clients' phone calls or not responding to correspondence from clients, we need to step back and take a look at our practice and figure out what we can do differently.