South Carolina Criminal Defense Blog

The South Carolina Supreme Court has held that David Mark Hill is competent to waive his appeals and be executed. The Sun News story is here.

Hill was convicted of murdering 3 DSS workers in Aiken County. He then shot himself through the head, surviving with some brain damage. Despite his attorneys' best efforts, Hill has sought to waive his appeals and speed his execution.

I suppose, if you were about to murder a person and that person said, "please, kill me now," it would not make you change your mind about murdering them. You would murder them just the same.

I empathize with Hill's lawyers, who have done all that they could. The depth of this man's sadness, and the circumstances that led him to this place, are overwhelming. I hope that he, and the families of the DSS workers, find peace before the end.

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (0)

Posted In: Appellate Opinions

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Most of what I've heard since this USSCT opinion was released is that the 4th Amendment has once again been eviscerated, this is the end of the Fourth Amendment, etc.

I think the opinion makes sense. Mostly. The opinion broadens police searches, it is favorable to the government, and I don't like it. I think it should have been decided differently; but, nevertheless, it makes sense and it was a practical decision. I choose to believe that our Supreme Court is trying to be practical, and not, despite evidence to the contrary, that they are trying to finally do away with the Fourth Amendment.

The issue in the case was whether a police officer violated the Fourth Amendment by making an arrest based on probable cause but prohibited by State law, and the Court's unanimous answer was no. Breaking down the issue further:

Does the Fourth Amendment permit searches incident to citation (as opposed to arrest)? No.
Does the Fourth Amendment permit search incident to arrest when there is no probable cause for arrest? No. At Scalia's request, we are going to have to ignore the question of how there can possibly be probable cause for an arrest when the law does not authorize an arrest. Well, let's rephrase it for him so it makes some kind of sense - there must be probable cause that a crime was committed, but not necessarily probable cause for arrest.
Does the Fourth Amendment permit search incident to arrest when there is probable cause for arrest (probable cause that a crime has been committed) but State law permits citation only? Apparently it does.

Why it makes sense:

Continue reading " Virginia v. Moore " »

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (0)

Posted In: Appellate Opinions

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About 2 dozen videos depicting police misconduct by the South Carolina Highway Patrol (SCHP) have been released in the past few months. The ones that I've seen include a trooper ramming a fleeing motorcyclist head on, a trooper running up and repeatedly kicking a man who was lying face-down on the ground after a high speed chase, a trooper ramming a fleeing suspect with his patrol car (and later stating on the video that he did it on purpose), and a trooper striking a man who was lying on the ground in the head with his shotgun. As far as I know, none of the troopers have been prosecuted for their crimes.

Yesterday, two Circuit Solicitors defended the troopers' actions in statements to the media and re-affirmed that they will not be prosecuting them. Solicitor Jerry Peace in Greenwood County, referring to an incident where a trooper strikes a fleeing suspect with his patrol car, says, "If I got a choice between a defendant getting his head cracked and an officer getting killed, I'll take the defendant getting his head cracked every time." Beautiful. Of course, the defendant here didn't get his head cracked, he was run down with a patrol car. And, after he strikes the man with his patrol car, he tells other officers, "I nailed the [expletive] out of him. I was trying to hit him."

Solicitor Jerry Peace says, "Overzealous prosecution of officers could jeopardize officers' lives if it made them more hesitant than necessary to use force." We certainly wouldn't want to discourage troopers from nailing the [expletive] out of suspects with their patrol cars..

In Orangeburg County, Cpl. Michael D. Tomson, a white trooper, hits a black man with his shotgun, while the man is lying on the ground following a high speed chase. The victim/suspect says that the blow caused his face to swell and bleed, although this is not seen on the video. The trooper admitted that the barrel of the gun made contact with the man's cheek, and said that his gun "slipped." Orangeburg County Solicitor David Pascoe stated that, although the trooper did not use proper protocol, he did not believe there was any criminal intent. (Apparently criminal intent is a requirement to charge someone with a crime, after all) Cpl. Tomson was demoted to lance corporal and "reassigned." He is appealing that punishment.

Continue reading " Orangeburg and Greenwood County Solicitors publicly sanction police misconduct " »

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (0)

Posted In: Police Misconduct

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The Horry County Police Department arrested Coastal Carolina University Student Joseph Frasco and charged him with assault and battery of a high and aggravated nature (ABHAN) on Saturday. The only reason I write about this is to comment on the compulsion that law enforcement has to provide detailed information about every case to the media. In this case, maybe it will finally backfire on them.

Lt. Myron Creel of the HCPD is quoted here as saying that he charged Mr. Frasco with ABHAN, he was monitoring the alleged victim's condition at the hospital to be sure that the "the charges filed against Frasco are approprate," because "[a]nytime you have a trauma like this . . . there is potential for complications and death;" (translate: we will charge this guy with Murder if we can) and then goes on to say, "[w]e don't really think there was any intent in the incident."

What?

The article begins by saying that Mr. Frasco was charged with ABHAN after accidentally shooting his roommate at close range with a shotgun. Someone correct me if I'm wrong in believing that intent is an essential element that must be present to charge a person with ABHAN. Or that accident is a complete defense to the charges.

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (0)

Posted In: Local

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According to statesman.com, Adam Reposa, a defense lawyer in Austin, was held in contempt of court last week and sentenced to 90 days for making a "lewd gesture." Apparently, after a four-hour hearing discussing plea negotiations in a DWI case, he rolled his eyes and made like he was masturbating. Reposa said it was directed at the prosecutor, but Judge Jan Breland said that she felt it was directed at her.

Texas criminal defense lawyer Mark Bennett had an interesting take on this story yesterday, pointing out that Judge Paul Davis' (it was Judge Davis who sentenced Reposa) stated concern that Reposa's actions "tarnished the dignity of the judicial process" is a joke when you look at the bigger picture:

Adam’s client was pulled over by the police, asked to do tricks for the cops, handcuffed, searched, transported to the police station, and asked to blow into a tube . . .

Then Adam’s client was booked into jail. He was fingerprinted, photographed, ordered to strip, and searched. His body cavities were searched as well. His clothes and shoes were taken away, and he was given oversized orange pajamas and rubber flipflops to wear . . .

For several months he lived in a cage with 20 other men, sharing a stainless steel toilet and sleeping on a bunk, eating and showering only when someone else told him he could . . .

On court days Adam’s client was awakened at four in the morning, shackled and cuffed, chained together with a bunch of other guys, and transported from the jail to the courthouse to wait in a small cell for news on his case . . .

On the day of Adam’s alleged contempt, the client was taken before Judge Breland dressed in his orange pajamas and flipflops. For what reason? Apparently (by Adam’s account) the judge and the prosecutor were trying to get the client to plead guilty. Adam tried to counsel his client (there is no downside to a DWI jury trial when you already have six months’ jail credit). The judge told Adam to be quiet, and told the prosecutor to read the offer to the client. Adam continued to counsel his client and the prosecutor complained to the judge that Adam was whispering to his client . . .

I’m all in favor of instilling dignity into the process; that would, first, require treating the participants with dignity. I’m not holding my breath.

Continue reading " Adam Reposa's day in court " »

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (0)

Posted In: Ethics

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This story has been told over and over this past week, and it's worth telling again. How many times have we seen police committing traffic violations, or speeding past us with no blue lights on, and felt like we should do something? And for attorneys, how many times have we felt sick as we watched an officer lie through his teeth on the witness stand after taking an oath to tell the truth in court?

Eric Bryant was at the SanSai Japanese Grill in Portland Oregon when he saw a police car pull up in front of the restaurant and park illegally in front of a no parking sign. Surely he was about to serve a warrant on someone, take down a suspected robber, or perpetrate some other similar police emergency type action. Instead, Officer Chad Stensgaard proceeded to watch a basketball game and wait for his food.

Bryant confronted the officer about his parking, and got a smart ass response, "If someone broke into your house, would you rather have the police be able to park in front of your house or have to park three blocks away and walk there?" The officer told Bryant he wasn't doing anything wrong.

It turns out that Bryant had just passed the bar exam, and he discovered an Oregon statute that allows private citizens to initiate violation proceedings (ORS 153.058). Officer Stensgaard subsequently received a summons, initiated by Bryant, to appear in traffic court to face charges of illegal parking, illegal stopping, failure to obey parking restrictions on state highways, and illegal operation of an emergency vehicle. His court date is May 23.

According to KATU.com, Cathe Kent, a spokewoman for the Portland Police Bureau, said that Stensgaard would fight the complaint in court, "as he rightfully should."

Hats off to Eric Bryant, for stepping up and holding the police accountable, and for bringing national attention to these small abuses of authority that are too-often overlooked.

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (0)

Posted In: Police Misconduct

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If you haven't heard, Senator Randy Scott was arrested and charged with driving under the influence last Saturday in Dorchester County. The irony of this DUI arrest coming the same week that the new get-tough-on-DUI bill was passed into law should not be lost on anyone. DUI lawyer Reese Joye of Charleston, S.C. has taken on Senator Scott's case.

If you believe the deputy's account in the incident report, the Senator was driving like a drunken fool, drifting across lanes and once almost running into a ditch. He failed field sobriety tests, had to lean on his vehicle for support, could not stand straight or walk a straight line, reeked of alcohol, had bloodshot eyes and "disheveled" clothing, bullied the deputies who were just trying to do their jobs, and admitted to drinking. It brings to mind images of Nick Nolte's famous DUI mug shot.

But when we look a bit more closely, several more disturbing facts come to light. Jack Kuenzie from wistv reports that the Datamaster given to Senator Scott gave a reading of 0. (I believe what actually happened here is that there was no result, as opposed to a result of 0) We learn that the Senator has a long standing feud with Dorchester County Sheriff Nash. The Senator, it turns out, is an amputee with a prosthetic leg, and he informed the deputy of this before he was asked to perform the field sobriety tests.

Continue reading " Senator Randy Scott's DUI arrest " »

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (1)

Posted In: DUI DWI Driving Under the Influence

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I've opened a second office in Florence, S.C. It will not be fully staffed at first, and is more or less a place to meet with my Florence clients and a place to hang my hat when I am trying cases in Florence. I need to update the website with the new information, but I am procrastinating. I'll get around to it in the next day or two. In the meantime, the number is 843-665-7709, and the location is 215-B Pine Street, next to the old Florence County Library. Only a few blocks from the city-county complex, magistrate and municipal courts, General Sessions, and the Federal Courthouse.

Why open a Florence office? A few reasons - one is because I get a good many calls from people who are facing criminal charges in Florence, and I cannot expect them to drive to the Myrtle Beach office to meet with me. Another reason is because, although Myrtle Beach is now my home, Florence is my hometown, and it just feels right to have an office in my hometown. Also I plan on doing more federal criminal defense in the future, and Florence is the nearest Federal Courthouse.

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (0)

Posted In: Local

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The Post-Conviction DNA Testing Procedure Act would allow access to evidence and the right to apply for DNA testing in certain cases. Laws such as this, that are already in effect in all but six other states, are essential for providing a final avenue of relief for persons who have been wrongfully convicted.

A Washington Post article highlights some of the emerging uses of DNA as a law enforcement tool. During the investigation of the recent highly publicized BTK (bind torture kill) case, the police had a suspect and needed a DNA sample, so they obtained DNA from Dennis Rader's daughter's five-year old pap-smear on her university campus. The DNA matched, tying Rader to the case. The analysis of DNA taken from relatives is only one example of the new frontiers being explored in the use of DNA as a law enforcement tool.

In S.C., DNA is collected from persons who are convicted of crimes, and persons who are on probation are required to submit DNA samples as well. Probationers are required to pay a fee to have a DNA sample taken from them. There is a growing cry to require all persons who are arrested to submit a DNA sample, regardless of whether they are convicted of anything. I imagine by the time my son, who is 18 months old, begins elementary school, they will be requiring him to submit a DNA sample and fingerprints before he enrolls in classes.

While many are cheering the increased collection of DNA samples from the masses to assist in finding and punishing suspected criminals, there is still resistance to the flip side of this coin, the use of DNA to find and free the wrongfully convicted. It is a fact that people are wrongfully convicted in our system. Innocent persons are convicted after trials and, believe it or not, innocent persons are pressured to plead guilty by their own defense attorneys. To date, The Innocence Project has been instrumental in the exonerations of 216 wrongfully convicted persons through DNA testing.

Continue reading " Post-Conviction DNA Testing Procedures Act waiting for Senate approval in South Carolina " »

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (0)

Posted In: Wrongful Convictions

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