South Carolina Criminal Defense Blog

A death row inmate whose case inspired Texas' sex offender registry laws is exonerated by DNA evidence. The real killer was identified by the DNA evidence, but it turns out he died 10 years ago without being prosecuted for the crime.

More and more tales of persons convicted of heinous crimes, including death row inmates, found to be actually innocent after long years sitting in prisons waiting to die, are coming out of Texas.

There have been 32 exonerations by DNA evidence in Texas, and 1 in South Carolina. That's right, 1.

Texas is known for its death penalty hijinks, but could this mean that South Carolina is more accurate in convicting people? Doubtful. What it means is that Texas has laws mandating preservation of evidence, and Texas has laws mandating access to DNA evidence for inmates who can make a claim of actual innocence. They have the ability to look back and discover when they were wrong, before they kill innocent people or allow them to live out their lives in prison.

South Carolina has no law requiring the preservation of evidence, and South Carolina has no law requiring inmate access to DNA evidence, even when the inmate can make a claim of actual innocence. A bill to allow South Carolina inmates access to DNA evidence failed to pass the Senate and House this year.

Possibly the ongoing hullabaloo in Texas over death row exonerations has motivated some South Carolina politicians to oppose DNA access laws. Here in South Carolina, we would rather kill defendants who are quite possibly innocent, or let them live out their lives in prison, before we risk admitting that police, prosecutors, judges and juries make mistakes.

And the fact that the Innocence Project is proving that these type of mistakes are made calls the death penalty itself into question. Politicians who believe in the death penalty may realize that allowing inmate access to DNA evidence and passing laws that mandate preservation of evidence might be the beginning of the end.

Mississippi has 1 exoneration, no DNA access law and no preservation of evidence law.

Alabama has 2 exonerations, no DNA access law and no preservation of evidence law.

Tennessee has one exoneration, no preservation of evidence law.

Illinois has 29 exonerations, and like Texas, has both DNA access laws and preservation of evidence laws.

Many of the other states that the Innocence Project has worked in fall in the middle of the continuum. There are smaller states with DNA access and evidence preservation but low numbers of exonerations, and there are doubtless different factors at work in each state. South Carolina's failure to pass laws that clearly would provide justice to defendants and victims alike, with full knowledge of their importance and real-life examples from states like Texas and Illinois, demonstrates where our priorities lie. We can do better.

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

Posted In: Wrongful Convictions

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Grits for Breakfast has been tirelessly following the story of Charles Hood, convicted of rape and murder, and whose defense attorneys have uncovered allegations that the prosecutor at Hood's trial and the judge at Hood's trial had sexual relations during his trial. It's like an episode of Boston Legal, except its not, Alan Shore did not get the inevitable not guilty, and they intend to execute Hood without allowing further investigation into the alleged misconduct or an evidentiary hearing.

According to the Houston Chronicle:

Retired Judge Verla Sue Holland and then-Collin County District Attorney Tom O'Connell have declined to address the allegations. The Texas Court of Criminal Appeals, the state's highest criminal court and where Holland was a judge in the mid-1990s, rejected Hood's efforts to appeal on the grounds of the alleged relationship, citing procedural reasons for the rejection but not addressing the merits of the accusations.

There should not be any doubt that an allegation of this nature calls the results of Hood's trial into question, and any standard of fairness should dictate that a new trial is necessary. I hope that Grits and the media out there continue their efforts to bring this mess into the light of day and keep it there.

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Posted In: Wrongful Convictions

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When I first began my career at the public defender's office in Oconee County, South Carolina I had been told that criminal defense, and public defender work in particular, is a thankless job. Many thank you's, cards, and hugs later, and now in private practice in Myrtle Beach, I have to disagree.

Seeing a client dancing with joy when they find out they are being released from jail is one of the most rewarding experiences I have had in this job. Hearing a grandmother whispering "thank you Jesus," her soft voice cutting through the thick silence in-between each of three counts of "not guilty" read by the clerk at the end of a trial is another. I keep a bulletin board in my office with thank you cards pinned to it, and it helps to go to it and read them when times get rough.

If you don’t like your job, and you don’t like your clients, you need to find another occupation – criminal defense attorneys hold their clients’ lives in their hands, sometimes literally. I have found that, for the most part, I like my clients, and they tend to reciprocate. On varying levels, I can identify with most of my clients as human beings.

Another piece of wrong advice that I often hear is don’t get too invested in your clients, and I wholeheartedly disagree with this also. There is something of a sliding scale when it comes to emotional investment in a client and results. If I become a friend to a client, and become emotionally invested in their case, I will fight that much harder to win their case and to get the best result possible, just as I would for a friend or relative who is not otherwise a “customer.” On the other hand, if the investment does not pay off, and if I lose this case, the pain that I feel personally is that much greater as well.

If I remain always detached from my clients and their cases, I can still work hard and analyze their case, I can still take a case to trial and argue legalities, but there is no passion, there is no caring to convey to the jury, and it will be reflected in the odds of achieving the best result as well. I am more likely to lose that case, but I do not suffer when it is lost.

Although there is a balance, and there are boundaries to what can and cannot be done, clients only benefit when their lawyer cares and becomes invested in their defense, and that is how it should be. And, you will get more thank you’s at the end of the day.

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (2)

Posted In: Jury trials

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There is more to successful criminal defense than knowing the law and having the will to fight for your clients. Another indispensable ingredient to getting good results in any case is knowing and understanding clients. Every client has a different experience and a different story, and that experience must be shared with the prosecutor, the judge, and the jury when it comes to a trial.

The only way to learn that experience and to understand a client's story is to spend time with the client and to talk to them. If I am going to tell a client's story, I have to learn who they are and what makes them that way. I have to learn whether they committed the crime they are charged with, and if so why. I have to accept my clients' calls and always return their calls, learn from my client's families, and meet with my clients in person, even when that means multiple trips to the jail.

I have to be able to persuade a prosecutor, a judge, and a jury that the client is a human being and not just a defendant. The prosecutor, the police, the judge, and the jury will demonize the defendant in a criminal case if they are not told and shown that the defendant is a human being, with a family, hopes, dreams, likes, dislikes, loves, and problems like any other human being has.

The facts that are learned from a client are woven together with the facts that the government provides, and provide the framework for the story that must be told. The facts as presented by the government are cold facts that are unsympathetic to the defendant and that are geared towards obtaining a conviction. My job is to present the facts to the prosecutor, the judge, and the jury through the defendant's eyes, usually a very different perspective from what the police or alleged victims see.

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In the much anticipated District of Columbia v. Heller, released today, the United States Supreme Court struck down D.C.'s ban on handguns.

The Court held that the Second Amendment protects an individual's right to keep and to bear arms, and is not limited to possession of firearms in connection with service in militias. The Court indicates that the right to bear arms is connected with the right to self defense.

D.C.'s requirement that lawful firearms in the home be disassembled or bound by a trigger lock was also declared unconstitutional, because such a requirement would make it impossible for citizens to use the firearm in self defense.

The Court's opinion, written by Scalia, takes care to note that the Second Amendment right is not unlimited, and that prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding possession of firearms in sensitive places such as schools or courthouses, and laws regulating the sale of firearms are constitutional.

The right to keep and bear arms, under Scalia's analysis, is not a right that is granted by the Constitution - it is a pre-existing right, and what is guaranteed by the Constitution is that the government will not infringe on that right. The right to keep and bear arms guarantees to all citizens the right to defend ourselves, and is connected to our natural right to self-preservation.

A primary purpose of the Second Amendment was to give the people a check on their government, and prevent the government from disarming its citizenry, as England had done in an attempt to maintain control of its people even as it abused them. When elements of our government become tyrannical and oppressive, the knowledge that most citizens have within their homes some form of firearm should give the government pause in remembrance of 1776. Scalia's reasoning indicates this as well:

During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric . . . Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people.

Post-ratification commentary included the following from William Rawle in 1825:

“The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . . “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121–122.20

South Carolina's equivalent, found in Article I, Section 20 of the S.C. Constitution, also indicates the purpose of the freedom to keep and bear arms by including in its context the provisions that armies are dangerous to liberty in times of peace, that the military power of the State will always be subordinate to the civil authority, and that no solders will be quartered in person's homes without consent.

The Court rejected District of Columbia's argument that handguns could be banned so long as the possession of other firearms such as rifles is allowed, because the handgun is "the quintessential self-defense weapon," and it is "the most preferred firearm in the nation to keep and use for protection of one's home and family."

Much of the commentary since the case was released laments the narrow holding, which is limited to declaring unconstitutional a ban on handguns for the purpose of self defense in the home, and declaring unconstitutional any requirement that would render handguns kept in the home inoperable. Much litigation will likely follow this decision, to fine-tune the questions left unanswered by Heller, but I believe the decision was rightly and necessarily limited to the facts of this particular case. The Court decided the issues that were placed before it and could do no more.

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Posted In: Appellate Opinions

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I attended the "installation" of our Circuit Public Defender Orrie West this afternoon, and I was reminded that I need to comment on the importance of the work that public defenders here and across the country do. The fact is the majority of people who are charged with crimes cannot afford to retain a defense lawyer, and competent indigent defense is essential to our justice system.

There should be a defender for every prosecutor, and defendants should have resources equal to those of the government. This will most likely never happen, given the enormous resources that the government can bring to bear when they decide to convict a person, but we must continue to improve the system nevertheless. Our justice system only works when there is an effective and ethical advocate on each side of the case, and the system fails us when defenders are overwhelmed with huge caseloads or a lack of investigators and support staff.

Thanks to the tireless efforts of public defenders, private attorneys, and advocates in our state legislature, South Carolina now has a statewide public defender system in place, and it is funded. This was a positive step forward for South Carolina, in a time when many states are struggling to maintain funding for indigent defense. It is popular to fund law enforcement and prosecution agencies, but legislators nationwide need to consider not what is popular but what is just. The playing field is not level by any means, but we are one step closer.

I began my career as a public defender, and I do not mind handling appointed cases today. I have the utmost respect for those defenders who could be making significantly more income in private practice and yet stay with their jobs as public defenders (or prosecutors) because they believe in a just cause.

Congratulations to Orrie West who will continue as the Chief Public Defender for the 15th Judicial Circuit.

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Posted In: Legislation

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At the beginning of every criminal trial, we tell the jury that the defendant is presumed innocent unless and until proven guilty. That the burden of proof is always on the government, and the defendant does not have to prove anything at all. That the burden of proof that the government has in criminal cases is the highest burden of proof in any kind of case, in any courtroom. And yet, the notion that a person would not have been charged with a crime if they were not guilty, that the prosecutor would not be telling us this person is guilty if they were not guilty, is difficult to overcome.

Nowhere is this more apparent than in DUI trials. Lawrence Taylor's Anatomy of a DUI Lynching on his DUI Blog demonstrates this problem by pointing us to a news story about a high school student who was accused of drunk driving and causing an accident which resulted in severe injuries to a 9 year old child, and the comments which were posted below the story. Most of the comments railed against the horrors of this spoiled rich kid who was driving drunk at 7:45 in the morning.

When a follow up story revealed that the driver's BAC as determined by a blood test was 0.00, many of the ensuing comments still assumed that the boy was drunk, and that his rich parents "got him off."

What is concerning is that these people who are writing these comments may be a cross-section of the jury pool in my next DUI trial. The fervor that accompanies DUI, stirred up by MADD and other organizations, soundbytes from politicians, and televised advertising by law enforcement in South Carolina (sober or slammer, you drink and drive you lose) makes it difficult if not impossible to draw an unbiased jury in any DUI case.

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

Posted In: DUI DWI Driving Under the Influence

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Following todays decision in Kennedy v. Louisiana, according to the State.com, South Carolina's Attorney General tells prosecutors to ignore the law and proceed with death penalty prosecutions:

But McMaster says South Carolina prosecutors planning death penalty cases against child rapists should proceed. He says by the time that case is appealed, there should be different justices on the U.S. Supreme Court or more states will have passed similar laws.

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

Posted In: Appellate Opinions , Ethics

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In April of this year, the United States Supreme Court decided in Baze v. Rees that Kentucky's three drug cocktail lethal injection procedure was not cruel and unusual punishment under the Eighth Amendment.

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In Kennedy v. Louisiana, released today, the United States Supreme Court held that the Eighth Amendment bars imposition of the death penalty where the crime does not result in the victim's death.

Only six states including South Carolina currently have statutes providing for the death penalty in child rape cases. The enactment of South Carolina's statute was a perfect example of bad politics controlling legislation. In the wake of some horrific and high profile child rape cases followed by the media, some legislator decides that it will be great PR to campaign for the death penalty for these monsters. Once the legislation has been introduced, no politician wants to vote against it because hey, it is pretty good PR, and you are either for it or you are in favor of the child rapists which certainly does not win you any votes.

Although the politicians and some victims advocates speak out about how they want the death penalty for child rapists, and it makes a good sound byte during election time, the SCOTUS points out that there is a national consensus against the death penalty for child rape. Since the Court's 1972 decision in Furman, nine states have permitted capital punishment for adult or child rape, and yet no person has been executed for any non-homicide offense since 1963. Louisiana is the only state that has sentenced a person to death for child rape, resulting in today's opinion in Kennedy.

Despite rape's permanent and devastating impact on a child, "in terms of moral depravity and of the injury to the person and to the public, [non-homicide crimes including child rape] cannot compare to murder in their severity and irrevocability."

The Court looks at whether the death penalty for child rape would serve the purposes of retribution and deterrence. Looking at retribution, the death penalty will not lessen a rape victim's hurt, given that capital cases require a long-term commitment to testify for the prosecution over a period of many years. By enlisting a child victim to assist in seeking the death penalty over the course of years "forces a moral choice on the child, who is not of mature age to make that choice."

The goal of deterrence is not furthered, because "evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of non-reporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member." Also, by making the punishment for murder the same as the punishment for rape, it gives the rapist an incentive to kill the victim.

The Court takes note of the "relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a special risk of wrongful execution in some cases."

There are many problems with cases involving child testimony. Child molestation cases often arise in the context of divorces and custody disputes, and there are often problems with the testimony. One problem that arises quite often is the problem of suggestive interviewing techniques with children, and the problem of repeated interviews.

I have seen cases where the interviewer asks the child leading questions (suggestive of the answer), the child denies the allegations, and the interviewer continues asking the same leading question in different ways or keeps coming back to the question, until the child gives the answer the interviewer is looking for. This can be compounded by the effect of multiple suggestive interviews, often beginning with a family member who may be suspicious or have an axe to grind, followed possibly by other family members, followed by an officer, and then one or more interviews by a child advocate.

The effect of suggestive interviews on a very young child, particularly when they are repeated, is that the child may begin to believe the allegations, even if they were not true to begin with. The State then has a very credible and believable witness to prosecute their case with. In South Carolina and other states, laws have been passed that would allow the presentation of videotaped testimony by the child in court, without the opportunity to cross-examine and in violation of the right to confrontation of witnesses.

The dangers of a prosecution for child rape, particularly when there is no corroborating evidence, should be clear. Juries do not want to take any chance on releasing a person who might then hurt more children. Due to the prejudicial nature of the accusations, defendants are often presumed guilty as soon as they are accused, and it is an uphill battle to demonstrate the flaws in the case and to get beyond the pre-conceived notions of the jury.

The Court made the right decision in Kennedy, but it is still disturbing that four of nine justices voted to allow States to kill defendants under these circumstances.

More on Kennedy:

Death penalty in Texas' 'Jessica's Law' not viable after SCOTUS' Kennedy decision
Some first-cut reactions to Justice Kennedy's work in Kennedy
No Death Penalty for Child Rape
Supremes Say No Death Penalty for Child Rape
Kennedy v. Louisiana

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Posted In: Appellate Opinions

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The Palladium case illustrates how wrongful convictions can and do happen. In this video from Dateline NBC, one of the investigators that helped to uncover evidence leading to the exonerations of Olmedo Hidalgo and David Lemus speaks out about the investigation. He notes that if the defense had been given all of the information that they had at the time of the trial, the outcome would have been different. The district attorney ignored evidence, and the defense did not put on any witnesses during their case.

On the video, the forelady of the jury that convicted them speaks about the trial and the verdict, and how when they read the verdict she heard a woman seated behind the defense table "scream in such torment and agony and surprise that I thought, oh my god, somebody actually thinks they're innocent. And then I thought, that has to be somebody's mother; it sounded like a woman who had just been told her son had died."

One defendant's mother talks about how she thought her son should cop a plea, because if he was found guilty by a jury, he would get life in prison, but if he copped a plea, the most he would do was eight years.

Particularly in murder cases, there is a lot of pressure on law enforcement to solve the case, and make an arrest. When they make an arrest, sometimes it is the "most likely suspect," and may be based only on statements from other defendants looking for plea deals. Once an arrest is made, there is a lot of pressure on the prosecutor to get a conviction. The danger is when a prosecutor stands in front of a jury and says to them, this man is guilty, many people want to believe the prosecutor despite the shaky evidence. Here is a person who looks honest and straightforward, he or she is a representative of the government (we all trust the government, don't we?), and this prosecutor would not be telling us to convict this man unless it is true that this man is guilty.

The jury is afraid that if they find reasonable doubt and find an accused murderer not guilty, the defendant may go out and kill another person. The jury may not understand fully what the standard of reasonable doubt means and how central it is to our justice system, and the defense may or may not explain it fully to them. If the Defendant does not testify, the jury will hold it against him, no matter how many times the judge instructs them not to. If the defense does not put on any witnesses at all, it seems damning to the jury.

The jury will not know if there is evidence that the defense could have presented to them, if the prosecutor never turns it over to the defense. Some prosecutors have their own opinion of what constitutes Brady material, and either have not read Brady and Kyles v. Whitley or do not care. Many prosecutors do not understand or do not care that they have a duty under Kyles v. Whitley to seek out Brady material that is in the possession of any government agency, and instead they say to the defense and to the Court, "you have everything that is in my file." There are times when the investigator buries Brady material without the prosecutor's knowledge, and there are times when Brady material simply falls through the cracks due to negligence or shoddy investigations.

I believe that the prosecutor has a duty to not go forward with a case not only if he firmly believes in the defendant's innocence, but if the prosecutor knows that there is real doubt as to the defendant's guilt. Prosecutors know the real danger that a jury will blindly trust a prosecutor despite the existence of reasonable doubt, and in some cases, simply stating to the jury "he is guilty," can result in a miscarriage of justice.

The time to prevent wrongful convictions is before the jury returns their verdict. We rely on ethical prosecutors to prevent wrongful convictions, and when that fails we rely on conscientious judges to prevent wrongful convictions, but there are times when the only thing standing between a defendant and a terrible injustice is the jury, and the defense attorney's ability to present his client's case to the jury.

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Posted In: Ethics , Wrongful Convictions

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After two men were convicted by a jury of a 1990 murder at the Palladium nightclub in New York, new evidence continued to turn up that demonstrated that the men were innocent, including one of the actual shooters coming forward. Prosecutor Daniel Bibb was assigned to re-investigate the case, and over the course of 2 years Bibb, along with investigators, interviewed witnesses and uncovered more evidence of the two mens' innocence.

Bibb told his supervisors that he believed the men were innocent and that the convictions should be dropped, and yet he was ordered to defend the case anyway at a 2005 hearing. Bibb lost the 2005 hearing and in 2006 he left the prosecutor's office. This year he admitted that he threw the hearing on purpose, and that he assisted the defense attorneys in the case.

Bibb tracked down hard to find witnesses for the defense, helped prepare their testimony, and helped the defense with their strategy. “I did the best I could,” he said. “To lose.”

This revelation is an exercise in legal ethics - was Bibb right or wrong and what should he have done? Some say he violated a duty to his client (the state of New York?) by not vigorously presenting his case. But, does the government have an interest in obtaining or preserving wrongful convictions? It sounds like he disobeyed the orders of his superiors at the district attorney's office, but he honored his duty to his client, the state of New York, by not allowing the District Attorney to keep innocent men in jail. My only question is should he have done more. Should he have gone public with the information, and resigned in 2005 if the District Attorney did not take the initiative to throw out the convictions?

It is easy to play armchair quarterback. I don't believe Bibb committed any ethical violation, and what he did do was commendable. Prosecutors have a duty to seek justice, not convictions. Sometimes that means dismissing a case where there is insufficient evidence, and sometimes it means admitting that they were wrong.

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Posted In: Ethics , Wrongful Convictions

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There is a lot of discussion in the blawgosphere about what Rothgery, decided today by the United States Supreme Court, means exactly. It was a declaration by the Court that the Sixth Amendment right to counsel attaches at a defendant's first appearance. It rejected the government's assertion that right to counsel does not attach until the prosecutor's office becomes involved in the case. In terms of answering the question "when does the Sixth Amendment right to counsel attach," the case gives us nothing new, and they point this out in the last paragraph of the case:

We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

I read this case as the Court saying to the Fifth Circuit Court of Appeals, look - we have said this all along, you are ignoring United States Supreme Court precedent and so we will say it one more time, for you Texas. McNeil held that the right to counsel attaches when a prosecution is commenced, at the first formal proceeding against the accused. Gouveia said that commencement means "the initiation of adversary criminal proceedings - whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Jackson and Brewer again held that the right to counsel attaches at the initial appearance before a judicial officer.

There are two things that strike me about the case. First is that this was not an appeal from a criminal conviction. It was not a question of a statement that a defendant was asking to be suppressed because he was denied his Sixth Amendment right to counsel. This was a civil claim under 42 U. S. C. §1983. The Plaintiff was arrested and charged with felon in possession of a handgun, although he was not a felon. At his first appearance before a magistrate, he asked repeatedly for his attorney which was not provided to him. He appeared before a magistrate, was released on bail, was indicted and re-arrested, and spent three weeks in jail before an appointed attorney was able to explain to the prosecutor that he was not a felon and should not have been arrested in the first place.

His claim was that if he had been provided a lawyer within a reasonable time after he requested one at the initial appearance before the magistrate, he would not have been indicted, re-arrested, and jailed for those three weeks.

The second thing that strikes me about this case is its reference to South Carolina. The Court notes that 43 states follow the majority rule, holding that the right to counsel attaches at the first appearance, and lists South Carolina among the remaining 7 states.

What is important about this case, and I believe the motivation behind it, is that defendants need to have the advice of counsel as soon after they are arrested as possible. The initial appearance before a magistrate is a critical stage of the proceedings against a defendant, when they are subject to losing a substantial portion of their life in pre-trial detention. It could be days, it could be years that they are held pending trial.

I haven't read the Fifth Circuit's opinion, but I propose that what was behind it was that the trial court and the Fifth Circuit Court of Appeals did not want to open the door to lawsuits by indigent defendants who are not getting the representation they are entitled to. The discussion about this case should be tying into the ongoing debate about indigent defense funding across the country, and the quality of representation that is provided.

The Court cites Coleman v. Alabama, which specifically held that the right to counsel applies at a pre-indictment preliminary hearing, at which the sole purpose is to determine whether there is sufficient evidence against the accused to warrant presenting the case to the grand jury.

In South Carolina, defendants are informed of their right to a public defender at their initial bond hearing before a magistrate. But how meaningful is this information when the public defender's office is overwhelmed to the point that the defendant may not speak with an attorney for months in some cases? Where every preliminary hearing is waived by public defender offices?

Does the holding of the United States Supreme Court in Rothgery open the door to civil suits in cases where a defendant's charge could have been dismissed at a preliminary hearing, but they were denied their Sixth Amendment right to counsel at that hearing? Should it?

More on Rothgery:
Roth - very narrow
Rothgery, right to counsel, blood warrants
What does Rothgery really mean?
The meaning of Rothgery
Rothgery gets a lawyer
Rothgery wins at the Supreme Court - or does he?
SCOTUS: right to counsel attaches at the first appearance

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Posted In: Appellate Opinions

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Jamie Spencer at the Austin Criminal Defense Lawyer blog is conducting a criminal law blog survey.

There are quite a few out there, and I've collected the main blogs that I read, or at least skim through, on the blogroll to the left. There are more on the resources page at any given time; they will eventually make it to the blogroll as well.

Greenfield at Simple Justice comments today on the Public Defender Blawgosphere, courtesy of Gideon. He's got close to 40 listed there. I enjoy reading the public defender blogs for content, my favorite two currently being Woman in Black and Hostis Civitas, for bringing us a clear and unmuddied window into their world as public defenders.

I use the Google Reader to organize the blogs that I read; it keeps them all on one page, and new posts appear in bold. I'm sure there are other readers out there similar to this, but I can't imagine you can beat the convenience and simplicity of google reader. And the price (free).

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At Simple Justice, a transexual's face brutally attacks a Memphis cop's fist. Also a post on when police abuse happens to a cop, breaking down a D.C. circuit opinion in the case of Juan Johnson, who brought a 1983 claim against the District and another officer who kicked him repeatedly in the groin when the officer mistook Johnson for a criminal.

Windypundit argues with an anonymous idiot about whether or not it was good policing for a Lima, Ohio SWAT team to shoot and kill an unarmed mother holding her 1 year old child during a drug raid.

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Posted In: Police Misconduct

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Yesterday morning I arrived at preliminary hearings and, as often happens, the officer sought us out before the prelims got started. Usually, I’ll talk to the officer about their case and gather what information I can, then explain to him or her that I cannot waive the prelim unless they are dismissing the case.

This time, the officer had no problem with recommending to the prosecutor that the case be dismissed. There is another charge pending on the same client, but this particular charge needed to be dismissed. My client was asleep on the couch in a house; the police came in and found some guns and some stolen items in the back of the house. They knew that my client had nothing to do with the items, it was not his house, he was not involved with the weapons and stolen items nor was there any indication he knew they were there, but they arrested him anyway primarily because they believed he was an illegal alien (all but one of the others in the house were).

Now that they know my client is an American citizen, brown skin and all, there is no need to keep him in jail. We waived the prelim this time, and should have the other, older case worked out with the prosecutor soon.

Many local attorneys don’t request prelims, and waive them when their clients request them. The local public defender’s office waives every preliminary hearing without exception. The reasons that lawyers give for waiving prelims are that they are a waste of time; magistrates will not dismiss cases at prelims, and if they do the solicitor can still send the case to the grand jury for indictment.

The problem with this is that some magistrates do dismiss cases at the preliminary hearing, if there is no probable cause for the arrest. Often the solicitor’s office will go back and have the case indicted anyway, but sometimes they do not. If they do, the fact that there has been a judicial determination of no probable cause demonstrates the weakness of their case. And sometimes they don’t indict the case, because preliminary hearings are an easy way to get rid of a dog of a case without dismissing it themselves.

There are situations where the magistrate can find probable cause as to a lesser included offense but not the charged offense. For example, a defendant can be charged with trafficking in cocaine, which requires a weight of more than 10g – if the officer’s testimony does not establish the weight as being greater than 10g, but does establish that there were drugs in the defendant’s possession, the case can be allowed to proceed only as possession or possession with intent to distribute. In property cases like breach of trust or grand larceny, if the testimony does not establish probable cause that the property’s value was greater than $1000, the case can be remanded to the lower court as a misdemeanor.

Prelims are also an opportunity to talk to the officer about the case, and sometimes find that the officer is not interested in prosecuting the case, like our case yesterday. Prelims are a golden opportunity to put the officer on the stand and test them, find out what their testimony will be, and lock them into testimony on the record before trial.

South Carolina law guarantees the right to have a magistrate determine whether there is probable cause for a case to go forward, at an early stage of the case when there is usually no reason a defendant should be waiving any of his or her rights. There is no downside to preliminary