South Carolina Criminal Defense Blog

How to get busted for DUI - marry a DUI lawyer. The Phoenix New Times reports that Heather Squires, the wife of an Arizona DUI attorney, was arrested and charged with DUI despite not having had a drop of alcohol. She was given the breathalyzer at the station, which registered a 0.00.

Coincidentally, the officer, Bond Gonzales, had recently lost a DUI trial to Heather's husband Jason Squires. Heather was driving Jason's truck, which was registered in Jason's name, and Jason was with her in the truck. Heather was almost immediately handcuffed when she stepped out of the truck. Gonzales never asked how much she'd had to drink. Although Bond carried a portable breath test, he never administered it.

Heather did not have a drop to drink, and registered a 0.00 on the breathalyzer, yet the officer's report states that she had "bloodshot and watery eyes," a "flushed face," and a "strong odor of alcoholic beverage emitting from breath."

The government has resorted to prosecuting defense attorneys, forcing their disqualification from cases, even having them disbarred from practice. Going after their families is a new low.

Tracey Amick reports that

On Friday, Sheriff Ray Nash and Prosecutor Barry Barnette called a press conference to "set the record straight"- claiming the glitch on the tape that dismissed the whole case didn't exist . . . There was no gap no glitch it should've gone to a jury, Barnette said.

What is this if not a public slap to the judge? They are going to appeal the decision to the circuit court, and if the issue was decided wrongly it will be corrected by the higher courts.

Rule 3.6 prohibits extrajudicial statements by attorneys involved in the proceeding that could prejudice the proceedings, but there is an exception that allows statements in response to statements made by others, "where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client."

Does this exception permit the parties to respond publicly to a ruling by a judge during the proceedings? The judge said part of the video was missing and this was the basis of the ruling. Does this entitle the prosecutors to call a press conference and "set the record straight," and challenge the judge through the media? If the ruling was wrong it will be corrected by the circuit court, so what do they gain by these media statements other than prejudicing the potential jury pool?

Our governor has vetoed the statewide public defender system funding bill. Veto message, line 65, $3,993,844.00 non-recurring revenue to fund public defenders and staff. Governor Sanford believes that funding indigent defense sends the wrong message. Message to who?

The House will vote to override this veto next Tuesday.

Senator Randy Scott's DUI was dismissed today, because the video was missing portions of the audio and no affidavit was submitted by the deputy.

S.C. Code § 56-5-2953 mandates videotaping of the incident site, but provides for some exceptions. If one of the exceptions applies, the officer must submit an affidavit explaining why videotaping was not possible. Because this is mandatory, if the officer does not comply the case can be dismissed, pursuant to City of Rock Hill v. Suchenski, a 2007 South Carolina Supreme Court case.

Senator Scott has claimed from the beginning that his arrest and prosecution were politically motivated, a product of a long standing feud with Dorchester County Sheriff Ray Nash. Nash has denied any political motivation.

Despite Nash's lack of political motivation for this prosecution, Sheriff Nash persuaded 7th Circuit Solicitor Trey Gowdy and 7th Circuit Deputy Solicitor Barry Barnette to travel 200 miles, from Spartanburg, S.C. to Dorchester County, to prosecute Senator Scott. Gowdy and Barnette are reputed to be the best DUI prosecutors in the state, and Gowdy has been "campaigning" for tougher DUI laws for years. 16 phone calls were made before Scott was pulled over by the deputies. The County Sheriff was sitting at the prosecution table as Scott's trial began. Nothing political about this prosecution.

The Spartanburg prosecutors will likely file a motion to reconsider today's ruling, followed by an appeal. If the appellate court overrules the magistrate's decision, the trial may still go forward.

Often DUI arrests are initiated by other drivers who see someone swerve or are cut off in traffic and then dial 911 to report a drunk driver. Most of the time these people mean well, and sometimes they are right, but things are not always what they seem. Some people have a compulsion to get involved, an over-developed sense of civic duty if you will. By the time a case gets to trial, their account of what they saw sometimes has grown from what they initially told the officer.

A recent story in the Phoenix New Times illustrates several points. A man watching Shannon Wilcutt at a cafe thought she looked intoxicated, thought he saw her downing several drinks, then watched her drive off with a four year old child in the car. He called police and then followed her until the police arrived.

When the police arrived she was arrested and charged with 3 felonies - even though a subsequent breathalyzer showed her BAC was .02. The story illustrates that the DUI lay witness does not always see what they think they see: as it turns out she was drinking glasses of water and not wine, she had just had surgery to remove dentures, and she had taken one hydrocodone pill.

The story illustrates that the police are not always right. She was unable to perform the field sobriety tests to the officer's satisfaction, not because she was intoxicated, but because she was overweight, asthmatic, and had a herniated disc in her back. None of which affects your ability to drive, but all of which would affect your ability to perform physical exercises on the roadside. The officer noted that her speech was slurred, but remember that she had just had dental surgery.

Of course when all of this came to light, including a BAC of .02, the state's attorney fixed it and dropped the charges right? Not so - she was indicted for DUI, drug possession (hydrocodone?) and the equivalent of South Carolina's child endangerment law. Two years and $12,000.00 in legal fees later, the charges were dismissed.

The stories of Shannon Wilcutt, Diana Sifford, and Phil Cisneros that are told in the Phoenix New Times article illustrate how persons who are charged with driving under the influence are guilty until proven innocent, how the punishment does not always fit the crime, and how the fever to catch drunk drivers can profoundly affect the lives of ordinary people.

There are things that I read and hear from the get-tough-on-DUI crowd that just amaze me. For example, from George Spaulding's article yesterday in the Charleston Post and Courier:

"Many of us will continue the anti-DUI movement until first-time offenders are dealt with severely."

"The day when your car or truck decides whether you are sober enough to drive may not be as far off as it sounds."

Spaulding goes on to discuss a research program that intends to develop devices that would test the sobriety of every driver, and have them placed into every car, not just those convicted of drunk driving. The devices would prevent the car from running if sufficient alcohol is detected. Spaulding cites "MADD's successful efforts in many states in having drunken-driving interlock legislation passed into law."

Wonderful idea. I don't mind having devices placed into my car to monitor me 24 hours a day, do you? DUI and CDV are the two topics that seem to push otherwise rational people over the edge. We should also place videocameras in every home, with a live feed to the police station - this could potentially prevent incidents of domestic violence and various other crimes.

In Peoria, Illinois, they have announced a "no refusal" memorial day weekend. If you are charged with drunk driving and refuse the breathalyzer, "a county judge will order you to submit a medically authorized blood sample within an hour of your refusal." Never mind the Fifth Amendment right against self-incrimination, there is an exception for DUI.

From the prison planet forum:

Start roadside firing squads for DUI offenders

I believe if someone is found to be DUI at a checkpoint they should be executed on the spot just like we kill the terrorists in Iraq. We need to get rid of all rights in the US so the fight against DUI terrorists can now include mobile roadside firing squads for violators.

I also want our government to mandate an implantable chip in everyone that will incapacitate you if you drink more than the legal limit. Even if you aren’t behind the wheel, this chip should automatically contact the local SWAT team so they can quickly dispose of you without wasting much time, gas or ammo.

C. Mao, Tyrannyville, USA

Woman in Black thinks that a mandatory month in prison should be a prerequisite to working as a judge or prosecutor. I agree. Before we are allowed to make decisions as to just how many months or years a human being will be locked inside a steel cage, we should know just what we are talking about.

Any attorney practicing criminal defense law in the Federal Courts should be concerned with what is happening in the Eastern District of Tennessee. Earlier this month, I wrote about how Herb Moncier had been suspended from federal practice. I reviewed Chief U.S. District Judge Curtis L. Collier's order and it is difficult to see where the specific conduct complained of by the Chief Judge warranted the punishment imposed or the blistering language of this and subsequent orders.

It seems that Moncier is being punished for aggressively representing his clients. The fact that the move to disbar him from federal practice was initially attempted to be kept secret is even more disturbing.

Moncier's attorney Ralph Harwell filed a motion requesting a stay of the Chief Judge's order and requesting that Moncier be permitted to remain as counsel for the completion of a client's case which was set for trial on May 20 of this year. In Chief Judge Collier's ruling he again blistered Moncier, accused him of further misconduct, accused him of lying, and called Moncier a "danger to the public."

However, an article by Jamie Satterfield in the Knoxville News Sentinel points out that Chief Judge Collier misrepresents Moncier's conduct in his ruling:

Collier accused Moncier in the ruling of misconduct in filing a motion in a high-profile case in Kentucky asking a federal judge to step down from that case. Collier wrote that he "has been informed" by the Kentucky court that Moncier's motion was "an unethical attack on the court in a frivolous effort to disqualify that judge from presiding over the case."

Collier then cites as proof a small section of Kentucky U.S. District Judge William O. Bertelsman's ruling in which Bertelsman refused to step down from the case. That section does allege "serious ethical violations" committed by "attorneys" in the case.

A review of the entire ruling and all documents filed in the Kentucky case shows, however, that Bertelsman's chief complaint lay with an attorney representing an alleged co-conspirator of Moncier's client. A review of the entire case file shows that Moncier did not file the original request to have Bertelsman booted off the case. Instead, co-counsel O. Hale Almand Jr., a Kentucky lawyer, did so months ago.

An attorney for an alleged co-conspirator renewed the motion earlier this year with fresh allegations against Bertelsman that the judge since has deemed "outright misrepresentations." Almand, not Moncier, filed a motion asking to join in those new claims.

Moncier notified Bertelsman of Collier's suspension order the same day it was filed. He stepped down from that Kentucky case after a hearing before Bertelsman the next day.

Moncier's attorney Ralph Harwell has filed three additional motions this week, asking for clarification of Chief Judge Collier's prior orders, asking for additional findings regarding an attorney referenced in Collier's Order, and asking for additional findings regarding Collier's ruling as to Moncier's motion to disqualify Collier from the proceedings.

The pleadings in Moncier's proceedings can be found at his website, Moncierlaw.com, or can be downloaded from Pacer:

United States v. Michael Vassar, EDTN 2:06-cr-70
United States v. Michael Vassar, EDTN 2:06-cr-75
United States v. Herbert S. Moncier, EDTN 2:07-cr-40
United States v. Herbert S. Moncier, 6th Circuit 07-6053
United States v. Lee Almany, EDTN 1:08-cr-01
United States v. Lee Almany, 6th Circuit 08-5110
In re Herbert S. Moncier, EDTN 1:08-mc-09

The following is Herb Moncier's account of events:

I have tried a number of high profile federal cases over my 38 years of practice and have upset a lot of prosecutors and judges. I have been a president and long time board member of the Tennessee Association of Criminal Defense Attorneys; a member of NACDL since 1980; A-V Martin Dale Hubble since 1981; Best Lawyers in America; 101 best lawyers in Tennessee; and Southeastern Super Lawyers.

On November 17, 2006 I was at a contentious sentencing hearing in a high profile case where my client was facing three jury trials was acquitted in the first; the second was dismissed and he was convicted at the third of the least possible offense - an offense that he admitted. The sentencing hearing was a war. see United States v. Michael Vassar. I had a recorded statement from the informant in support of reasons not to sentence my client for acquitted conduct. The informant said the prosecutors and FBI agents visited him in jail shortly before my client's trial and threatened him that if he did not testify to matters he said were untrue against my client that they would pull a 10-15 recommended sentence he had been promised. He refused and the day after my clients trial the prosecutors pulled his recommendation and recommended a 27 year sentence that he received. I had filed a transcript of the statement four days before my clients sentencing and subpoenaed the informant to testify at the sentencing hearing on November 17th.

The day before the sentencing hearing the prosecutor wrote me a letter that the same jail house informant allegedly in 2005 made a statement that my client set for sentencing, Vassar, knew information about another client I represented who was a target but had not been charged. At a hearing in March 2006, conducted by the judge my client Vassar had testified under oath that he knew nothing about any other client I represented including the target. The prosecutors did not mention the alleged 2005 statement of the informant to me or the judge in March 2006.

On November 17th I attempted to have the judge appoint an independent attorney to clear up the potential of a conflict raised by the prosecutor the day before the November 17th hearing. All of my efforts to clear up the potential of a conflict failed. Just before the lunch recess after which the sentencing hearing was to begin the judge called me and my client to the podium in the presence of the prosecutors and FBI and began to question my client. I objected. The judge overruled.

The questions turned to what I perceived to be an attempt by the judge to clean up the record by getting Vassar to make an unadvised waiver. I again objected. The judge instructed me to stand there and be quiet until my client answered his questions. I requested to approach the bench to explain why I was objecting, out of the presence of the public. The judge refused to permit me to approach the bench.

I then again objected from the podium and the judge said "Mr. Moncier one more word and you're going to jail."

My client had been, and was continuing to attempt to speak to me. I asked the judge "May I speak to my client". I was arrested and taken into custody. I was then charged with criminal contempt of court; tried before the same judge without a jury; convicted and sentenced to 1 year probation, a fine of $5,000.00, 150 hours community service, an anger management course and three extra hours CLE. see United States v. Herbert S. Moncier.

That conviction is on appeal to the Sixth Circuit. see United States v. Herbert S. Moncier.

Later in December 2007 I was hired by another high profile defendant to try his case before the same judge. The day I entered my name the prosecutors who had prosecuted me for contempt filed a motion to disqualify me. My client filed a 28 U.S.C. § 144 affidavit to disqualify the judge. On January 3rd the judge disqualified himself. On the same day the Chief Judge of the District assigned the case to himself 200 miles away in Chattanooga Tennessee and set a hearing on the prosecutor's motion four days later.

A hearing was held on January 9th; I filed all the necessary declarations; and my client answered approximately 30 minutes of questions correctly. The judge then disqualified me without findings and ordered me out of the well of the courtroom and not to speak to my client, his family or friends and appointed my client a local attorney. Later, after disqualifying me
the judge sua sponte transferred the case back to the judge that originally disqualified himself. see United States v. Glen Almany.

Seven days later on January 17th I received a Show Cause Order from the Chief Judge why I should not be disbarred for my conduct at the November 17, 2006 hearing where I was found in contempt. see In Re Herbert S. Moncier.

That case become a high profile proceeding resulting in recent orders blistering me and my immediate suspension from federal court for five years. The pleadings in that case can be viewed at www.moncierlaw.com.

I did not, and do not, yell, curse, use disrespectful tone, slam books or storm out of courtrooms. I was held in contempt of court for asking to speak to my client. I have been disbarred because of the style that I defend my clients.

Any person who is convicted of a "no parole offense" as defined in § 24-13-100 must complete community supervision upon their release from jail. Basically, this means when the person is released, after serving 85% of their sentence, they are on a sort of probation for two years. If the community supervision is revoked, a process similar to a probation violation, they are sent back to prison for up to one year, in the judge's discretion. This could happen over and over again.

Until now, many people have been caught in a revolving door, in and out of prison even when the amount of time served has greatly exceeded the amount of time they were originally sentenced to. In 2004, the South Carolina Supreme Court heard the issue in State v. Mills, and held that the plain language of the statute provided that community supervision revocations could cumulatively total twice the original amount of time a person was sentenced to. But the Court stated clearly that the sole issue before them was the statutory construction of the community supervision statute, and they did not address the glaring constitutional issues involved.

In State v. McGrier, decided last week, and argued by defense attorney Charles Grose of Greenwood, S.C., the Court revisited the community supervision statute and recognized that, as applied to persons who have already served the entire amount of time they have been sentenced to, the community supervision statute is unconstitutional.

The Court in McGrier held that a practical application of their decision in Mills violates a defendant's procedural due process rights, by imposing a sentence which exceeds the defendant's original term of incarceration without notice that the original sentence would be modified and greater punishment imposed. If a defendant realized the full implications of the community supervision provisions, he may not have decided to plead guilty.

The statute violates defendants' Sixth Amendment rights as well. Mills' literal interpretation of the community supervision statute effectively allowed a community supervision violation to become a separate and distinct criminal offense without the benefit of of the Sixth Amendment's constitutional protections. The Sixth Amendment guarantees the right to notice, cross-examination of adverse witnesses, and compulsory process to call favorable witnesses - the right to present a defense in an adversarial proceeding. Under the Sixth Amendment, any fact that exposes a defendant to greater potential sentence must be found by a jury, not a judge, and must be established beyond a reasonable doubt.

The Court in McGrier correctly concluded that the total amount of time that an inmate could be incarcerated for community supervision revocations must be limited to the length of the remaining balance of their sentence. Too often we have only criticism for our appellate courts, and the slow erosion of constitutional protections, but McGrier was a well written opinion in which our South Carolina Supreme Court acknowledged the Constitution and preserved it.

The DUI Exception to the Constitution, posted by Lawrence Taylor on his DUI blog in 2005, contains a persuasive and often cited speech about the state of our nation's drunk driving laws. When it comes to DUI's, there are a different set of rules and the Constitution does not always apply.

The Fourth Amendment says that police officers cannot stop and detain a person unless they have probable cause to believe the person has committed a criminal act. However, in Michigan State Police v. Sitz, the U.S. Supreme Court found that there is a DUI exception for roadblocks, allowing police to stop and detain vehicles with no probable cause whatsoever. On remand to the Court of Appeals of Michigan, however, the Court of Appeals found that these roadblocks were unconstitutional under their State Constitution.

If you watch television, you know that often police will read what is called Miranda rights to a person they are arresting. You have the right to an attorney, and the right to remain silent, for example. Any time a person is in custody, ie handcuffed on the side of the road or in a police car, Miranda requires that the officer inform the person of their basic constitutional rights before asking questions. If the Miranda rights are not given to the person, any statement they make will be excluded from trial. But in Berkemer v. McCarty, the U.S. Supreme Court found another DUI exception to the Constitution - essentially saying, "we don't know when Miranda is supposed to be given in DUI cases, but it is clearly some time later than in other cases." (from Lawrence Taylor). Even though an officer has no intention of allowing a motorist to leave, and every intention of arresting the motorist, he is not required to read Miranda rights during the roadside detention.

In South Carolina the officer must read the Miranda rights before the field sobriety tests are given. But, although the officer says, "you have the right to an attorney," you do not have the right to an attorney. Tell the officer you want to consult your attorney and see what response you get. Again, when you are asked to blow into the little black box, tell them that you would love to do so, but wish to exercise your right to consult your attorney. In South Carolina, you will be denied your right to an attorney at this most critical stage of a DUI proceeding, when you need to seek advice as to whether to submit to breath or blood tests, or seek an independent test.

The Fifth Amendment guarantees all of us the right not to incriminate ourselves - not only do we have this right, but if we exercise it, the prosecutor at trial cannot comment on our decision to exercise our constitutional right. Except in a DUI trial. In South Dakota v. Neville, the U.S. Supreme Court found a DUI exception to the Fifth Amendment - there is no right to refuse a breath test, and if you do refuse the breath test, the prosecutor can comment on it to the jury. (On remand to the State Supreme Court, South Dakota held that their State Constitution protected the right against self-incrimination, even if the U.S. Constitution no longer does.) Not only will the prosecutor be allowed to comment on your exercise of your right not to incriminate yourself, but you will be punished for it under South Carolina's implied consent laws.

Some states have a DUI exception to the Sixth Amendment right to trial by jury, believe it or not. If you are arrested for driving under the influence in New Jersey or Nevada your fate will be decided by a judge without the benefit of a jury of your peers.

There is a different set of rules when it comes to DUI cases. Over and again, DUI lawyers urge one another to be careful which cases they decide to take up on appeal, for fear that the appellate courts will be given another opportunity to take away more of our constitutional protections in the name of DUI prosecution, creating precedents that must be followed in future cases. As Taylor says, "rights that are lost in a DUI case today can be lost in any other case tomorrow."

The above observations on the DUI exception to the Constitution are all drawn from DUI lawyer Lawrence Taylor's 2005 blog entry, which I encourage everyone to read. He ends his piece by paraphrasing a famous quote from pre-war Germany:

"First they came for the drunks, but I was not a drunk, so I did not speak up . . ."

Despite all of the attention focused nationally on the overcrowding of our jails and prisons, our attorney general is pushing a bill that will remove the possibility of parole for any felony in South Carolina. The bill would accomplish two main purposes: to eliminate the possibility of parole for felonies, and to create an alternative court for non-violent offenders.

Under the current scheme, a no parole offense is defined by § 23-13-100 as a Class A, B, or C felony, or any crime that is exempt from classification but punishable by a maximum term of 20 years or more. A person who is convicted of a no parole offense is not eligible for parole and cannot be released until they have served at least 85% of their sentence.

The proposed bill, H.4309, would revise § 23-13-100 to include Class D, E, and F felonies, or any crime that is exempt from classification but punishable by a maximum term of 1 year or more, and it would include Class A and B misdemeanors as well.

The proposed bill would also establish a system of "middle courts," modeled after drug courts, but not limited to drug offenses. Horry County Drug Court has been praised as a success. It is a wonderful idea, and in theory it should divert many people away from the prison system. I think we all want the drug court, and the proposed middle court expansion, to work, but we need to step back and take a look at what is happening in drug court:

1) Some people are finishing the program, remaining drug free, and avoiding prison to boot. These are the success stories that we want to hear about. Horry County's drug court began in August of 2005, and has graduated 12 people so far.

2) I am told that most people do not graduate, but I have not seen any numbers on how many have been admitted and how many have flunked out, other than only 12 have graduated in the past 3 years.

3) Before being admitted into the program, the defendant must plead guilty, be sentenced, and then the sentence is deferred pending completion of the program.

4) To be admitted into the program, the defendant must waive any right to appeal or enjoin any decision of the drug court/ middle court judge, and the defendant must waive any right to post conviction relief.

5) If the defendant is dismissed from the program, the defendant does not receive any due process or hearing, and the full sentence is immediately imposed.

So I ask, if most people do not graduate from this program, is it promoting the rehabilitation and re-entry of non-violent offenders into society and reserving the state's prisons for dangerous offenders, or is it giving the prosecutors an easy out to obtain convictions and often lengthy sentences, without the terrible headache of appeals and PCR's? So far, it seems that this bill will not only serve to keep people in prison longer, but it will help the prosecutors to send more people there in the first place.

I am not saying that we should scrap the idea, but I do think that we should make sure that it is achieving its stated goals, and I don't think that this should be used as a way to get around defendant's due process rights.

Prosecutors in South Carolina are rarely held accountable for misconduct - they are not held civilly liable or criminally responsible, and in the rare instance when they are disciplined it will most likely consist of a private reprimand.

Here is a story about a prosecutor in California, Ben Field, who is being investigated for his misconduct, but only after a series of ethics violations came to light. Following the conviction of Damon Auguste and Kamani Kendricks for rape, Auguste's family retained attorneys and investigators to continue searching for evidence. They found evidence casting doubt on the government's witness' credibility and laboratory notes indicating the girl may not have been raped that were not turned over by the prosecutor. During the post trial proceedings, the prosecutor ordered searches of the homes of Auguste's family and friends.

In a 2002 murder case Field is accused of not informing the defense that a key prosecution witness may have taken part in the crime. In a 1995 rape case, Field is accused of obtaining a physical examination of a juvenile despite four different judges having told him not to do so without court approval.

I imagine that this prosecutor's alleged misconduct in these instances only came to light due to the efforts of Auguste' family. If this family had not pressed the issue we would not be reading about this today. When a prosecutor hides evidence, it is, well, hidden. It takes perseverance and luck to uncover favorable evidence that was not turned over before trial, and in most cases no-one will ever know what the prosecutor has done.

According to the Mercury News, the head of the prosecutors union said that this disciplinary proceeding shows the danger of the "unchecked power" of the state bar. This "unchecked power" in a state where, according to the Mercury News, only 1 prosecutor has been brought before the Court in the previous five years.

Tuesday the House may vote on a bill that will abolish parole for felony crimes, making every felony an 85% sentence. More on this bill later.

The figure of 1 in 100 adults incarcerated, although shocking, is not the worst of the statistics revealed by the Pew Center Study. At the beginning of 2008, 1,596,127 persons were in state or federal prisons, and another 723,131 persons were in local jails, making the total adult inmate count 2,319,258.

The figure of 1 in 100 is based on total adult population. The study also breaks down the percentage incarcerated by race, age, and gender:

1 in 54 men aged 18 or older are currently incarcerated.
1 in 106 White men aged 18 or older are currently incarcerated.
1 in 36 Hispanic men aged 18 or older are currently incarcerated.
1 in 15 Black men aged 18 or older are currently incarcerated.
1 in 9 Black men aged 20-34 are currently incarcerated.

The figure of 1 in 100 adults incarcerated is arrived at as follows:
Prison population 1,596,127 + Jail population 723,131 = Total behind bars 2,319,258.
Total adult population 229,786,080 divided by Total behind bars 2,319,258 = 99.1
One in every 99.1 U.S. adults incarcerated.

The South Carolina Supreme Court issued its opinion today in State v. Bolin, and found that the underage possession of handgun statute is unconstitutional.

Leland Greeley, a criminal defense attorney in Rock Hill, argued on behalf of Bolin. There were two main arguments. First, because Bolin was old enough to be sui juris and the South Carolina Constitution, Art. I, § 20, grants him the right to bear arms, possession of a handgun could not be a crime. The Court held that his constitutional right to bear arms was not infringed upon because he was not prevented from possessing other types of guns, only handguns.

The second argument and the one the Court agreed with was that § 16-23-30's prohibition was unconstitutional because Art. XVII, § 14 provides:

Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons until age twenty-one.

Because Art. XVII, § 14 specifically makes an exception only for the sale of alcoholic beverages for persons under 21, and does not state any other situation in which the legislature can restrict the rights of persons aged 18 - 20, the South Carolina Constitution does not permit the legislature to prohibit that age group's possession of handguns. The Court cites the canon of construction "expressio unius est exclusio alterius," to express or include one thing implies the exclusion of another, or of the alternative; and the Court cites the rule of statutory construction "when interpreting a statute, the words must be given their plain and ordinary meaning without resorting to subtle or forced construction which limit or expand the statute’s operation."

Since Bolin's arrest, and doubtless as a result of this case, the legislature has amended § 16-23-30 to make it illegal for any person under the age of 18 to possess a handgun. Bolin, however, has implications beyond underaged possession of handguns. If it is unconstitutional for the legislature to restrict the rights of individuals ages 18-20, other than to restrict the sale of alcoholic beverages to persons under 21, and if the words of Art. XVII, § 14 must be given their plain and ordinary meaning, then the constitutionality of of several other statutes are called into question as well:

SECTION 61-4-90. Transfer of beer or wine for underage person's consumption;
SECTION 61-6-4070. Transfer to person under the age of twenty-one years;
SECTION 61-6-4075. Purchase of alcoholic beverage for minor; and
SECTION 20-7-8920. Purchase, consumption or possession of beer or wine. (minor in possession statute)

The sale of alcoholic beverages is prohibited by § 61-4-50, Sales to underage persons, and this is expressly permitted by Art. XVII, § 14. But the prohibitions on the possession, purchase, consumption, or transfer of alcohol to persons ages 18-20 may be in violation of our state constitution.

It's been said over and again, if you're old enough to go to war, you're old enough to drink. And that right is arguably protected under the South Carolina Constitution.

A Tucson Arizona City Court judge has suppressed alcohol breath test results in 49 cases, after CMI, manufacturer of the Intoxilizer 8000, refused to produce source codes.

This same battle has been raging for years across the country. In Florida, CMI refused to release the Intoxilizer source code after the courts ordered them to turn it over, and in some cases CMI was fined for failing to comply. The Florida legislature, prompted by prosecutors, responded by passing a law that states full disclosure in a DUI case does not involve the source code, only the test results and procedure followed. In New Jersey, the manufacturers of the Alcotest breath test were ordered to release the source code to defense experts, who identified serious defects in the software's operations. CMI was ordered to turn over the source code for the intoxilizer 5000MN in Minnesota last year. On the other side of the Atlantic, a Court in Ireland refused to order production of the Lion Laboratories Intoxiliser source code.

The Datamaster machine used in South Carolina, like the other machines above, is only as accurate as the software that operates it, and due process requires that defendants have the opportunity to examine these programs. The software for breath test machines tell the computer and all of its parts what to do before, during, and after the test. The defense has the right to examine and independently test the government's evidence, and this becomes particularly important when the government's key witness is a "black box" that cannot be cross-examined on the witness stand.

A study by the Pew Center on the States reports that more than 1 in 100 Americans are currently behind bars. The United States incarcerates more of its citizens than any other nation in the world.

A recent New York Times article discussing the study notes that:

[p]rison costs are blowing a hole in state budgets. On average, states spend almost 7 percent on their budgets on corrections, trailing only healthcare, education and transportation.

In 2007, according to the National Association of State Budgeting Officers, states spent $44 billion in tax dollars on corrections. That is up from $10.6 billion in 1987, a 127 increase once adjusted for inflation. With money from bonds and the federal government included, total state spending on corrections last year was $49 billion. By 2011, the report said, states are on track to spend an additional $25 billion.

This is not an abstract problem viewed from a distance - this is an issue that affects all of us. Horry County is currently building a $50 million addition to the J. Reuben Long Detention Center, which will require 50 additional employees. Charleston County is building a $100 million expansion to their jail, and Spartanburg County is considering a $46 million expansion to their jail.

Overcrowding in the Lexington County Jail has become a problem, and Lexington Sheriff James Metts is pushing a plan to build new jails in Laurens, Lee, and Colleton Counties to house illegal immigrants. The Beaufort County Jail is severely overcrowded and, like many counties, Beaufort is debating how much to raise property taxes to cover the costs of expansions.

Ed Lavendera at CNN tells the story of James Woodard, who was wrongfully convicted in Dallas, Texas, and served 27 years in prison before DNA cleared him of the crime.

Woodard was convicted of raping and murdering his girlfriend in 1981 and sentenced to life in prison. At his trial, the jury believed that he was the last person seen with the victim. The prosecutors knew that two other men had been seen with her, but they never followed up on the lead and they never told the defense attorneys. After losing 27 years of his life, Woodard is finally freed after DNA evidence was tested, exonerating him.

Prosecutors enjoy absolute immunity from 1983 liability for their actions during the course of a prosecution, and they are rarely prosecuted. Dallas County District Attorney Craig Watkins says that unethical prosecutors who commit Brady violations should be criminally liable:

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

Although it will never happen, I believe a prosecutor should be held criminally liable for intentional conduct such as a Brady violation that could result in an innocent person going to prison. I also believe that the rule of absolute immunity as applied to intentional conduct should be reconsidered. In Imbler v. Pachtman, the U.S. Supreme Court held that the prosecutor was not civilly liable under Section 1983 for violating a defendant's constitutional rights during a prosecution. In Pachtman, the prosecutor knowingly used false testimony and suppressed evidence to obtain a conviction and a sentence of death.

Craig Watkins is suggesting criminal liability for intentional Brady violations, and I agree, but there are other crimes that are being committed by these prosecutors as well. The prosecutor in Pachtman committed subornation of perjury and attempted murder with impunity.

The argument against liability for even intentional acts is that it would have a chilling effect on prosecutions. Attorneys wouldn't even want to work as prosecutors, for fear of liability. I don't believe that for a minute. That is like saying making rape a crime will have a chilling effect on sex. People won't want to have sex anymore. It is only intentional bad conduct that we are talking about here.

Lori Drew, who lives in Missouri, used a fictitious myspace account in Missouri along with other "co-conspirators" in Missouri to harass a girl, Megan, who lived next door to her in MIssouri. The girl committed suicide. A federal grand jury in California, nearly 2000 miles away, has now indicted Drew for fraudulently gaining access to a computer (myspace's?) and conspiracy. Four counts, each carrying up to a five year sentence.

The charges in the indictment are not based on harassment, or homicide. As Orin Kerr at Volokh summarizes it, "the government's theory in this case is that Drew criminally trespassed onto MySpace's server by using MySpace in a way that violated MySpace's Terms of Service (TOS)." Kerr's post gives a decent legal analysis of why the charges should be dismissed.

This case should never have been brought in the first place. The media took this story and ran with it. Megan's mother has been calling for prosecution of Drew. No-one likes what Drew did, it was despicable, and it makes people angry. But, Missouri authorities did not file charges because no laws were broken.

Drew and her "co-conspirator's" myspace antics were mean and cruel, but they did not kill Megan. The family has acknowledged that Megan was suffering from attention deficit disorder, depression, a weight problem, and was on medication. I have no doubt that Drew's conduct is actionable as a tort, and that Megan's family has a civil remedy. Since Megan's suicide, her mother has been trying to get authorities to arrest Drew, speaking to the FBI and local law enforcement. On the Today show, she said that Lori Drew should get a life sentence. Apparently the mother organized a march that ended up in front of Drew's house with a PA and microphones. She destroyed a foosball table that she had been storing for Drew, dumped it on Drew's driveway, and tried to get Drew to move away.

I am not defending Lori Drew's actions by any means. But this indictment is a ridiculous stretch of the law that serves no purpose other than to satisfy an urge to punish a person we do not like. The Assistant United States Attorney here is saying that, no matter where you live, jurisdiction is proper where ever the company's server is located. Consider the ramifications if we allow the feds to begin indicting cases such as this. If I, in South Carolina, falsify information on an online dating service with servers in California, the AUSA in California can then indict me in California and have me brought there for trial on federal charges? What if the server is located in Alaska? China?

Are the criminal courts going to get into the business of enforcing the use agreements of online companies?

In 2001, Regina McKnight was found guilty of homicide by child abuse because cocaine was found in her system after her child was stillborn. Jody Barr at WBTW says that this was a landmark case, which set a national precedent. She may have missed this recent South Carolina Supreme Court opinion granting post-conviction relief to McKnight.

McKnight's first trial in January 2001 resulted in a mistrial, but she was convicted at her second trial in May 2001. The conviction was upheld on direct appeal, but this month, 6 years later, McKnight was granted post-conviction relief.

The prosecution of mothers who test positive for cocaine has been fraught with problems and controversial from the beginning. The idea of a pregnant woman using cocaine is offensive and the knee jerk response is that there is no doubt this is child abuse. But this view ignores the nature of cocaine addiction. Cocaine addiction is powerful enough that many who are addicted cannot make a conscious decision to stop using. When a person is under a compulsion to continue using drugs, there is no intent to harm the child - there is no "conscious act of disregarding a risk which a person's conduct has created." State v. McKnight (2003).

Prosecution of pregnant women who are addicted to drugs is counterproductive, and it is not a deterrence. It discourages addicted women who discover they are pregnant from seeking help. It discourages them from seeking prenatal care at hospitals or treatment for their addiction, for fear they will be arrested and prosecuted. It creates an incentive for women to seek abortions, to avoid detection and prosecution.

It would make more sense to make it known that if an addicted and pregnant woman comes to a hospital for help, they will receive not only prenatal care but confidential referrals to treatment programs. It makes sense to invest more resources in long-term treatment programs that are equipped to deal with the specialized needs of pregnant women, and women with very young children.

It is always a popular political move to prosecute and punish any given class of "criminal." Treatment, prevention, understanding, compassion does not win votes.

Bert will be opening a law office in Conway, after working for 9 years at the solicitor's office. I look forward to seeing you fighting the good fight for the wrongfully accused - best of luck to you in your new practice.

Bite mark "evidence" has sent numerous innocent persons to prison, and even death row. It has been debunked over and over as junk science, persons convicted by it have later been exonerated, and yet it is still advocated by some. Researchers at Marquette University are building a "bite-mark database" that would be similar to DNA databases, and their intent is to use the database to identify crime suspects.

Bite mark evidence has been used to successfully obtain convictions in many cases. One high-profile example is Ted Bundy. The bite marks analyzed from the body of a victim at the Chi Omega Sorority House in Florida helped to convict him, but they were used in conjunction with other evidence.

When bite mark evidence is used as the primary evidence in a prosecution, wrongful convictions can result. The jury is usually impressed with the scientific nature of the evidence, and can rely heavily on the bite mark impressions to justify a guilty verdict. One example among many is Roy Brown, who was convicted of murder in New York, based on testimony by a dentist, and served 15 years in prison before DNA evidence proved his innocence.

The Innocence Project reports that only three studies have been done that examine the reliability of bite mark analysis, and one of those showed an error rate as high as 91%. The Innocence Project identifies additional cases where persons convicted with bite mark evidence were later proven to be innocent by DNA, including James O'Donnell in New York, Calvin Washington in Texas (sentenced to life in prison), Ray Krone in Arizona (sentenced to death), Willie Jackson in Louisiana, and Dan Young in Illinois.

A "bite mark database" may sound like a wonderful idea to some prosecutors, and it might make a few bucks for the researchers compiling it, but it will also almost certainly result in the conviction of innocent persons.

One unwarranted side effect of the recent focus on the South Carolina Highway Patrol has been the harassment of Senator Brad Hutto by the news media and others. The Greenville News in particular was pushing for an investigation into the revelation that 12 of 17 DUI tickets written by the same trooper to Senator Hutto's clients resulted in dismissals.

The only reason this even became an issue is because Hutto is a senator, and the media is playing "gotcha." The bottom line is that Brad Hutto is a decent defense attorney as well as a state legislator, and he is doing what all good defense attorneys do - winning cases. When there are viable defenses in a DUI case, the case can be dismissed. If the ticket is not outright dismissed for lack of evidence, it can be dismissed and then re-written as reckless driving or some other traffic violation, so as to avoid a trial. The only time a DUI should go to trial is when the State has a solid case.

Richard Walker, of the Times and Democrat, gives the first unbiased report on the issue that I've seen. Orangeburg Solicitor David Pascoe is not investigating the matter because there is no evidence of any criminal conduct. There is no evidence that Senator Hutto did anything inappropriate. Like any good DUI lawyer, it sounds like he is fighting for his clients and obtaining dismissals when he can. Give us a break.

A bill is floating around in the state legislature would permit South Carolina to take DNA samples from anyone charged with a felony punishable by at least five years. The DNA sample would be taken when the person is arrested, even though the person has not been convicted of any crime.

I don't ordinarily agree with Governor Mark Sanford, but last year Sanford vetoed the same bill, saying that taking such personal information without a court order violates their civil liberties. Forcing persons who have not even been convicted of a crime to provide a DNA sample is outrageous, and it is just the most recent of many steps down the slippery slope towards a police state. The next step will be requiring every person to submit a DNA sample to law enforcement, perhaps at birth.

Programs such as this are more and more common throughout the country. Ryan Singel at Wired.com wrote yesterday that the federal government is now permitted under an amendment to the Violence Against Women Act of 2005 to collect DNA samples from any citizen arrested (but not convicted) for any crime, and from any non-citizen detained by federal agents. He reports that the feds will be collecting about one million DNA samples a year under this new program, and how the sheer size of the database that the feds are putting together makes for a real possibility that more innocent persons will be accused of crimes based on faulty DNA matches.

I understand the desire for bigger and better law enforcement, and the need to catch the bad guy. But our rights to be free from unreasonable invasion of privacy under the South Carolina Constitution and to freedom from unreasonable search seizure under the United States Constitution and the S.C. Constitution are just as important. We do not have to sacrifice one in favor of the other.

The United States Supreme Court will decide Goldstein v. Van de Kamp, et. al., to determine whether top officials in a prosecutor's office can be sued for damages for failing to supervise/ failing to put into place policies to ensure that Brady materials are provided to defense counsel.

Thomas Lee Goldstein spent 24 years in prison after he was wrongfully convicted for a murder in Long Beach, California. Goldstein was convicted in large part based on the testimony of a jailhouse informant who also testified that he received no benefits in exchange for his testimony and that he had never received benefits in exchange for work done for law enforcement.

The Defense was not told that the informant had in fact been working as an informant for years and had received reduced sentences more than once. In 2004, after the information finally came to light, Goldstein was released after the 9th Circuit affirmed his habeas petition.

Among others, Goldstein sued the Los Angeles County District Attorney and his Chief Deputy, the head honchos at the DA's office when Goldstein was prosecuted, in a federal section 1983 action, for failing to develop policies and procedures and failing to train the subordinate district attorneys in the office as to the requirements of Brady v. Maryland and Giglio v. United States. The District Attorney claimed that he was entitled to absolute immunity from liability, but the 9th Circuit Court of Appeals disagreed.

Continue reading " USSCT will hear prosecutorial immunity case " »

South Carolina's revised driving under the influence bill was signed into law a few weeks ago, but it will not be effective until February 10, 2009. There are quite a few minor revisions, but the main changes are found in the penalties, which are now graduated based on the blood alcohol level.

Revised penalties under the new 56-5-2930:

First offense: $400.00 or 48 hours to 30 days in jail, or 48 hours community service.
If the blood alcohol concentration (BAC) is .10 to .15: $500.00 or 72 hours to 30 days in jail, or 72 hours community service.
If the BAC is .16 or greater: $1000.00 or 30 days to 90 days, or 30 days community service.

Second offense: $2100.00 to $5100.00 and 5 days to 1 year in prison.
BAC of .10 to .15: $2100.00 to $5100.00 and 30 days to 2 years in prison.
BAC of .16 or greater: $3500.00 to $6500.00 and 90 days to 3 years in prison.

Third offense: $3800.00 to $6300.00 and 60 days to 3 years in prison.
BAC of .10 to .15: $5000.00 to $7500.00 and 90 days to 4 years in prison.
BAC of .16 or more: $7500.00 to $10,000.00 and 6 months to 5 years in prison.

Fourth or subsequent offense: 1 year to 5 years in prison.
BAC of .10 to .15: 2 years to 6 years in prison.
BAC of .16 or more: 3 years to 7 years in prison.

The jury makes the determination of what the BAC was, following a guilty verdict. If the jury does not reach a unanimous decision regarding the BAC, but does find that the accused is guilty, then the sentence is based on the non-enhanced penalties.

Another major change in the DUI law will be the deletion of the requirement that Miranda rights be read to the accused at the breath-testing site. Miranda must still be read to the accused on the roadside video, but not at the station.

I always see the dishonest or ugly side of law enforcement, like the scenes of police abuse depicted on the many videos recently released by the South Carolina Highway Patrol, or the cop that lied through his teeth on the stand in trial yesterday (blatantly - he told the truth, the prosecutor got off a leading question telling him what he was supposed to say before I could get out an objection, then the officer changed his testimony and stuck to it on cross). I think it is the feeling of betrayal that I feel when persons sworn to uphold the law break it. Or when individuals granted power by the government (by us) abuse that power.

I suppose I don't talk enough about the honorable deeds I see, because it is what is expected of law enforcement. To act honorably. I have had several trials where I knew that an officer took the stand and told the truth. I am always moved when I see that happen, and usually it doesn't hurt the government's case anyway. This article makes some good points. The SCHP has approximately 850 troopers, who make approximately 500,000 traffic stops a year. The article points out that these were only a few dozen incidents taken from literally millions of traffic stops each year. Although the author has to realize that we are only seeing the incidents that were caught on video, and only the videos that were preserved and then released, it is still a valid point.

The article points out that law enforcement is a dangerous business and that officers cannot take chances while in the field. I agree with all of this, but it still does not excuse police abuse or misconduct. How many incidents of police abuse are acceptable? The answer is none, but under the best of conditions some will occur. The question is whether police abuse in the SCHP and other law enforcement agencies is systemic and if so then can it be fixed.

The article suggests that if we "hold our officers to an unreasonable standard of conduct we risk creating an atmosphere in which our officers are too cautious, out of fear of reprisal," which "would expose them to more risk from violent and even deadly assaults." I agree with that statement on its face, but, then again, I don't think it is unreasonable to ask an officer not to kick a person in the head when they are lying on the ground handcuffed, or not to run people down with their patrol cars.

A State news report says that a five-member Senate Judiciary subcommittee is investigating the SCHP. The article states that SLED, the U.S. attorney, the FBI, and the Justice Department's Civil Rights Division are currently investigating cases of abuse and misconduct by troopers. I recently commented on a few of these cases, where the conduct of the troopers was publicly sanctioned by the Orangeburg and Greenwood County Solicitors' Offices. Below are some of the incidents that I have found in a search of recent news articles:

From this article: After a high speed chase, a trooper held a man against the hood of his car and screamed profanities at him, then erased the video. (2003, suspended for 2 days)

A trooper erased a video that showed him being verbally abusive to a suspect, while three other troopers turned off their microphones. (2003, suspended for 2 days)

A trooper elbowed suspect in the head, throat, and stomach, punched him, and choked him. (2004, reprimand)

A trooper slammed a passenger onto the hood of his cruiser after the passenger refused to identify the driver. (2004, trooper was ordered to take conflict resolution and diversity training)

A trooper accused of intimidating motorists and using racial slurs. (2004)

A trooper repeatedly kicked a handcuffed teenager in the head while he lay on the ground, then punched him in the face after other officers picked the teenager up. (2005, pled to misconduct in office and received 4 years probation)

A trooper stole $6000 - $10,000 in bond money collected from motorists. (2005, arrested of theft charges and fired)

A trooper hit a fleeing motorcyclist head on with his patrol car. (2006, ordered to take a counseling session)

A trooper threw a driver against his truck after arrest and then erased the videotape. (2006, trooper found to have violated department protocols)

A trooper admitted that he took $500 from a Hispanic motorist during a traffic stop. (2006, trooper was fired)

A trooper struck a suspect in the back of the head with his flashlight after a foot chase (2006, ordered to take a counseling session)

A trooper ran up to a truck driver who was laying on the ground after a pursuit and repeatedly kicked him in the head. (2006, Florence Solicitor Ed Clements did not charge the trooper; after resigning from SCHP the trooper was hired by Marion County Sheriff's Department)

A trooper in Orangeburg County struck a driver in the head with a shotgun while the man was lying on the ground. (2006, demoted to Lance Corporal)

A trooper in Richland County, in his patrol car, chased a man who was on foot through an apartment complex yard with children present, jumped curbs and struck the suspect with this vehicle. (2007, letter of reprimand)

A trooper runs down a man fleeing on foot, and then brags that he "nailed the f*** out of him" on the video. (2007)

Woman is handcuffed to the bumper of a patrol car. (2007, reprimand)

A trooper intentionally destroyed a defendant's blood sample in DUI case.

A fingerprint match from the Georgia Bureau of Investigation placed Dexter Presnell at the scene of a murder in Paulding County, Texas. Presnell was arrested and charged with the murder in October of 2006, and has been in the Paulding County Jail ever since.

Now the GBI has admitted that their fingerprint examiner was accidentally comparing the fingerprints lifted from the scene with the murder victim's daughter's fingerprint, and not Presnell's.

I applaud the fact that this examiner came forward and admitted his mistake before this man was sent to prison for a murder he did not commit. It is not often that we see a public example of how investigators, prosecutors, and experts are human and make mistakes. I believe the average person clings to the idea that when a person is charged with a crime, they must be guilty because law enforcement does not make mistakes.

The Paulding County district attorney, on the other hand, gave the standard he's-guilty-we-just-can't-prove-it speech, saying that this is not an exoneration of Mr. Presnell, but the evidence is insufficient to prove the case of murder against him.

Why is it that prosecutors cannot admit that they are wrong, even when their case utterly falls apart? Even in the Colomb case in Louisiana, the prosecutor stated after the family's release: “Though we continue to believe that these defendants were, in fact, trafficking drugs, we have decided not to pursue the case because of witness issues.” Is it plain stubbornness? Fear of a lawsuit? Meanness? Refusal to accept the fact that they have destroyed an innocent person's life?

This article from reason.com, about the wrongful conviction of Ann Colomb and her family on drug trafficking charges, is rather long but well worth reading. It tells the story of Ann and her family, and illustrates how racism, the "war on drugs," the unreliability of jailhouse snitches, and ethically challenged prosecutors can all come together to destroy innocent people.

One thing that is raised in the article is whether independent corroboration of a jailhouse snitch's testimony should be required before they are allowed to testify. The problem of the persistent use of jailhouse snitches by prosecutors to make their cases should be addressed by rule or by statute, and a requirement of independent corroboration would be a great place to start.

Offering freedom in the form of reduced charges, sentences, or even outright immunity is such a huge incentive for informants to lie that it cannot be ignored. Any case that hinges on such testimony is suspect, and there are undoubtedly thousands of such cases nationwide every year, such as Rick Gagnon's recent conviction for murder. Although DNA evidence showed there was another person at the scene of the crime, and the government's evidence was shaky at best, Gagnon was convicted and sentenced to life in prison, largely based on the testimony of a jailhouse snitch.

Whenever a person with pending charges gains details about a case, through news articles, through conversations with the defendant, or through discovery materials sent to the jail from the defense attorney, they will try to use it to their advantage. Knowing that prosecutors can and will offer them years off their own sentences or even outright dismissals in some instances, inmates will tell prosecutors whatever they want to hear.

Continue reading " The shady world of informants " »

If you talk on the telephone from any jail in South Carolina, and probably anywhere in the country, you can bet your conversation is recorded. Often this pops up a few days before trial, when the prosecutor dumps an armful of audiotapes on the defense attorney with the defendant talking to his family, girlfriend, or friends about his case. Statements made by a defendant are generally admissible at trial.

Heres a thought - conversations with the defendant's attorney are not admissible, but do you believe for one minute that no-one is listening to them? I explain to my clients during the initial interview, if they are incarcerated, that I will not accept phone calls from the jail. I will go and speak to my clients in person periodically, or if they get a message to me, but I don't talk on the jail phones.

This article highlights a related issue. The Dorchester County Sheriff's Office has promptly provided the Charleston Post and Courier with recordings of Senator Randy Scott's conversations with his wife after he was arrested. A temporary restraining order has been issued, pending a hearing next week.

The newspaper claims it has a First Amendment right to publish the audiotapes. That may or may not be true. Certainly the Senator has the right to a fair trial, unbiased by law enforcement generated media coverage, press releases and leaked evidence.

Continue reading " Jails, telephones, and audiotapes " »

The DNA testing bill has passed the Senate, but must still be approved by the House.

From myrtle beach online:

DNA TESTING: The Senate has passed a bill to allow inmates to request DNA tests to prove their innocence. The bill heading to the House lets anyone convicted of a violent crime ask to have evidence tested for DNA. Inmates who intentionally file false applications would be held in contempt of court and lose good-conduct credit. The state Probation and Parole Department could also use that information in deciding parole.

If you disagree with the judge, you lose. Not just the argument, but your freedom, your ability to practice law, and your livelihood?

Apparently the AUSA and U.S. District Judge Ronnie Greer, in November 2006, felt that federal defense attorney Herbert S. Moncier had a conflict of interest in representation of multiple clients. The accusation was that Moncier represented an accused but uncharged cocaine trafficker and also represented persons who the AUSA wanted to provide information on client 1. The judge was questioning Moncier's client 2 about the conflict of interest.

Moncier objected, asking Greer to allow an independent attorney to advise the client before answering any of the judge's questions. Greer told Moncier to keep quiet. Moncier then asked to speak to his client. Greer ordered him detained and ultimately deemed Moncier in contempt of court.

Now, based on the November 2006 incident, Chief U.S. District Judge Curtis L. Collier has suspended Moncier from practicing federal law in the Eastern District of Tennessee, which ultimately could have the effect of shutting down Moncier's legal practice. Moncier is quoted in the article as saying:

I believe that it is an attorney's duty to object in court and if there is any uncertainty as to a court's directive to ask the court for clarification," Moncier said. "I made that decision to ask for clarity within a split second. Judge Collier has taken 70 pages to take from me the right to practice in federal court for making that split-second decision.

There are competing interests, of course. There is no doubt that a judge must maintain order and professionalism in the courtroom. In my mind there is also no doubt that every attorney must aggressively pursue his clients interests and sometimes that means challenging the bench. The Court's ruling must be accepted once final, but objections must be made, and the record has to be preserved. The right of a defendant to seek counsel from his attorney, even while standing before the judge, I thought was inviolate.

The opinion can be found here.