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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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

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).

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.

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 hearings.

Polygraph results have consistently been held by the courts to be inadmissible at trial. There are some jurisdictions that allow them under limited circumstances, but in most jurisdictions they are per se inadmissible. The science has not been proven to be reliable, even under the most lenient standards, and the danger of unfair prejudice (confusing and misleading the jury) greatly outweighs any probative value.

Every so often a defense attorney will have a client that passes a polygraph, or a co-defendant or third party that fails a polygraph, and they want desperately for the jury to hear these polygraph results. I have had both situations and have used the polygraph results in pre-trial negotiations, but resist the urge to ever ask a court to admit the results in front of a jury. This is a two-edged sword, and the government’s side of the blade cuts deeper than the Defendant’s. If the courts begin to admit polygraph examinations for defendants, they will surely begin to admit them for the government as well, and you can bet it would happen loud and often.

What are the problems with polygraph examinations? First of all they are not reliable. Contrary to popular belief, they do not tell the examiner whether the subject is telling the truth or lying. They can indicate deception based on physiological reactions to the questions posed, but even an indication of deception or lack of deception can be skewed by an individual’s physiology or the bias of the examiner. Some people are inherently nervous, and others are unshakable. Some people can control their physical reactions.

My biggest problem with polygraph examinations by the government is that they are often nothing more than an interrogation tool. While polygraph results are not admissible in court, statements made by the defendant during the course of the examination probably are admissible. A common tactic is to wire up the subject, begin questioning him or her, tell them that the machine proves that they are lying, and then continue interrogation of the subject until a confession is obtained.

Often clients insist that they want to take a polygraph for the government, to prove their innocence. And I don’t blame them – it may be that they know that they are innocent, and they are convinced, like most people, that polygraphs are infallible lie detector tests that will prove their innocence to the police or the prosecutors. They don’t understand that 1) under the best of circumstances the machines are not 100% reliable, and 2) in the eyes of an FBI agent, SLED agent or investigator for the local sheriff’s department, they are guilty and the polygraph is nothing more than a tool to obtain additional evidence.

This is not to say that polygraphs are not useful, because they are. We use respected independent polygraph examiners in some cases, where a client insists on a polygraph, but rarely will we consent to allow a government polygraph/interrogation. If the results from the independent polygraph examination show no deception, we will allow the government’s examiner to review the charts and discuss the interview with the independent examiner. If the results are not favorable (this does not necessarily mean that the person is guilty), the government does not need to know about it and they do not then have the opportunity to interrogate the client.

Yesterday a Joint Economic Committee meeting was held by the House and Senate, called by Virginia Senator Jim Webb, to discuss the efficacy of our country's failed drug laws. There was testimony by prosecutors and legal scholars that the current emphasis on incarceration rather than treatment has proven to be costly and ineffective.

Senator Webb and the witnesses at the hearing say that despite record numbers of arrests and incarceration of drug offenders, there has been no reduction in the availability and use of drugs. "Despite the number of people we have arrested, the illegal drug industry and the flow of drugs to our citizens remain undiminished," Webb said. Also at the hearing, Rep. Robert C. "Bobby" Scott "said prevention programs such as prenatal care, early-childhood education, summer jobs and access to college would prove more cost effective than spending $65 billion a year to lock people up, as the United States does today."

According to the article, Senator Webb acknowledges that the subject matter is "politically perilous," and advocating for less prison sentences will be seen as being "soft on crime." Senator Webb said that there is no pending legislation, he just wants to get the facts out. No republicans showed up for the meeting, and there was not much media coverage of the event, as noted at Sentencing Law and Policy.

That is the main barrier to fixing the drug laws - no politician wants to be seen as "soft on crime." But it is encouraging at least to see some who are talking about it, and putting it into the public's view. The beginning of making changes in the current policy is to educate the public on the facts of the "drug war," addiction, and the ineffectiveness of current policies.

When the will of the people is to stop incarcerating America, politicians will change the laws to reflect treatment and prevention rather than incarceration for non-violent offenders. There needs to be public debate, and more people in positions of authority like Senator Webb need to speak up if there is going to be any change in our collective will as a nation.

Regina McKnight, who was found guilty of homicide by child abuse in 2001 because cocaine was found in her system after her child was stillborn, has been released. Last month the South Carolina Supreme Court granted her post conviction relief petition and ordered a new trial.

Regina pled guilty to involuntary manslaughter and was released on time served today after serving more than 8 years in prison.

Abuse of the forfeiture laws is rampant in South Carolina. Anytime a vehicle is stopped and any amount of drugs is found along with money, law enforcement takes the money. Sometimes they take money from passengers. Sometimes they take the vehicle. I have seen cases where a roach was found in the ashtray of a car, and the officers took all money out of the driver's pockets and informed him that it would be forfeited. Law enforcement took over $7000.00 from another client after finding a pipe in her room, and less than a quarter bag of weed in a roommates room which she was not charged with.

There are requirements that must be met under the forfeiture statute before law enforcement can take money from a person and attempt to keep it. Possession of a small amount of marijuana, proximity to a pipe or bong, or some shake on the floorboard do not qualify. If there is a valid claim for seizure of money or vehicles, law enforcement must file an action and have a judge review the case to determine whether there is probable cause for the forfeiture, and in many cases even this is not happening.

Officers will attempt to have the person consent to the forfeiture on the spot, and have the paperwork ready for them to sign. In other cases, they don't even ask for the consent and the civil suit is never filed. Law enforcement knows that these people do not know how to go about getting their money or vehicle back, and they know that if they are taking only a few thousand dollars, no attorney will take the case because the cost of the legal fees will likely exceed the amount of money that was taken.

In these situations, what is happening is armed robbery by law enforcement. Multiple officers carrying guns and displaying badges are taking what they want from people on the highway by force. The money may go to their department, although the people they are doing it to are not always sure, but that does not change the fact that it is armed robbery on the highway.

The ostensible purpose of the forfeiture laws was to use them as a weapon in the war on drugs. If you hit the drug traffickers financially then you are hurting them. This may be a valid purpose to confiscate money that is truly being used to finance drug transactions, but this is not how the forfeiture laws are being used in the situations I've described above. Law enforcement agencies depend on income from forfeitures, and there is often abuse in the way that the money is seized and the way that it is spent. Individual officers in some agencies are considered heroes by their brethren for the cash amounts that they bring in from asset seizures on the interstates.

I have told too many clients that there is nothing I can do to help them get their money back, because a few hundred or a few thousand dollars is not worth it to file suit. If I had the time I would file suit in every case where I know that law enforcement broke the law by seizing funds they were not entitled to, but I simply can't do it. What I can do is begin filing complaints in every case where this happens, no matter how small.

I believe we need greater oversight of how forfeiture laws are being implemented by various agencies. I believe the attorneys at the solicitor's offices who are handling these cases should take more initiative in ensuring that law enforcement is not breaking the law while harvesting funds from the highways. There should be a system in place to hold officers accountable for the seizures that somehow do not result in forfeiture suits being filed.

NPR has a four part story on seizure of drug money in other parts of the country that is worth reading:

Part one
Part two
Part three
Part four

Laura L. Loder has joined the Frederick Defense Firm as an associate. She is a recent graduate of the Charleston School of Law and practices exclusively criminal defense. Laura is tough, smart, and a damn good lawyer. She is a welcome addition to the firm.

Last month I posted about the many videos that had been released documenting police abuse by the South Carolina Highway Patrol, and the refusal of the Orangeburg and Greenwood County Solicitors to prosecute the troopers responsible. Finally, a federal grand jury has indicted one of the troopers, Lance Cpl. Steve C. Garren, for civil rights violations.

The trooper should be charged with assault and battery with intent to kill, South Carolina's version of attempted murder, but that is a charge that would have to be made by state law enforcement authorities.

The solicitor's refusal to police the police even in this egregious of a case is disgusting. Jerry Peace, Greenwood County's solicitor, according to The State News, said that his "review of the videotape shows a criminal running away from law enforcement and darting in front of the vehicle, giving the trooper no time to react to the stop."

The video that is reproduced below shows this portion of the video twice, in slow motion the second time, and you can clearly see the trooper change direction as the man runs in front of his car, swerving to hit him. On the video you can also hear the trooper saying to his buddies afterwards, "Hey! I nailed the f*** out of him! I nailed the f*** out of him when he hit that damn field. He went flyin' up in the air." Another voice says "you hit him?" The response is "yeah I hit him. I was trying to hit him."

I applaud the U.S. Attorney and Justice Department for stepping in and taking action where our local elected officials will not. According to The State News article, U.S. Attorney Walt Wilkins has said that he expects "additional presentations to the federal grand jury" as a result of the ongoing investigation into police abuse by state troopers.

On Monday a new bill was signed into law that will restrict sex offenders from living within 1000 feet of schools, day care centers, or playgrounds, similar to laws that are already in effect in many other states. Last year the Georgia Supreme Court struck down a similar provision on constitutional grounds, as an unreasonable taking of property without adequate compensation, oddly enough.

The South Carolina legislation also changes first offense failure to register, making it a misdemeanor punishable by no more than 30 days, where it had previously carried a mandatory 90 days in jail. Subsequent convictions for failure to register still carry a mandatory one year sentence for 2nd offense and a minimum of 3 years up to 5 years for 3rd offense.

Extensive research over the past few years has demonstrated that registration and residency requirements do more harm than they do good, including a comprehensive report by Human Rights Watch. Prof. Berman at sentencing law and policy has been discussing the topic for the past year, and Sarah Tofte at the Huffington Post wrote about this last October, pointing out that a growing number of child safety and rape prevention advocates agree that these laws are not working.

Toft notes that these laws are driven by two widely accepted myths about child abusers: that children are most often abused by strangers and that sex offenders are always repeat offenders. The truth is that more than 90 percent of child sexual abuse is committed by people that are close to the children and not strangers, and studies reflect that three out of four sex offenders do not re-offend within 15 years.

One thing that is overlooked in discussions about registry requirements and residency restrictions is that in South Carolina and most states, the Sexually Violent Predator Act operates to keep the worst offenders and those most likely to repeat their crimes behind bars indefinitely. Before a convicted sex offender is released from prison, the Attorney General reviews their case and will file a petition to have the offender committed indefinitely as a sexually violent predator. The process has been upheld by the South Carolina and the United State Supreme Courts against constitutional challenges.

(Although the proceedings are based on the same crime they have already been punished for, it is not a due process violation because the commitment proceedings are civil and not criminal. Although the offender is kept in a state prison facility, it is not really prison because it is "under the control" of the Department of Mental Health. It is not punitive in nature because the offender is receiving treatment while under the control of DMH (in prison)).

Before we pass more laws restricting people's rights and freedoms - yes even those of persons convicted of a sex offense - we need to ask what purpose is served by the restrictions. If restricting where a person can live, or humiliating persons by putting their photos on the internet and subjecting them to attacks by giving their address to the world is not an effective solution to the problem, then why are we doing it? Like passing harsher drug laws and stiffer sentences for any crime, it is popular and it wins votes.

The Court of Appeals affirms Terry Tindall's conviction for trafficking cocaine > 400g. Tindall was stopped by Deputy Dale Colegrove in Oconee County and detained on the side of the road while his car was searched by law enforcement. Ultimately over 400 grams of cocaine was found hidden inside the back bumper of his car.

Law enforcement has the right to stop a car if there is reasonable suspicion that a traffic violation has occurred, and to briefly detain the car and its occupants long enough to write a ticket and to run a computer check of license and registration. Colegrove claimed that he stopped Tindall for speeding and for following too closely.

Once the purpose of the traffic stop has concluded, any further detention has to be justified by a reasonable, articulable suspicion that some further crime is occurring. If there is no articulable suspicion of further crime then any further detention is illegal and drugs or other contraband found will be inadmissible at trial. In Tindall's case, the Court of Appeals found reasonable suspicion for a continued detention because:

Colegrove testified he further detained Tindall because he believed something illegal was occurring based on Tindall’s actions after the stop. Colegrove observed numerous things after the stop including: 1) Tindall was nervous even after receiving the warning; 2) Tindall was driving a rental car that he had not rented; 3) Tindall was driving only one way and then dropping the car off; 4) Tindall planned on driving approximately eighteen hours in one day; and, 5) the cities involved were both “drug hubs.” We find evidence in the record to support a determination that Colegrove had a reasonable suspicion something illegal was occurring. Therefore, the search and seizure did not violate Tindall’s Fourth Amendment rights and the trial court did not err in admitting the cocaine.

Basically, in Oconee County, Dillon County, Florence County, and many other locations in South Carolina, if you appear nervous while an officer is asking you if you have drugs or weapons in your car, if you are driving a rental car, and if you are driving to and from any major city ("drug hub"), law enforcement can detain you on the side of the road and dismantle your vehicle as they search for drugs.

Although I did not represent him, I was at Tindall's trial and I recall the testimony. Colegrove made statements such as, he could see Tindall's heart beat and increased pulse (through Tindall's shirt). Colegrove received this amazing observational medical skill through advanced narcotics interdiction training (how to lie on the stand to obtain a conviction 101).

What really happens on the interstate in South Carolina is if you are Black or Hispanic and driving a rental car you will be pulled over. You will be told you are getting a warning ticket for following too closely (at trial, the officer will testify that this is an indicator of drug trafficking, because often one car with the drugs will follow a second car with the owner of the drugs).

Once the officer has run your license and tags, he will return to your car and give you a warning ticket, then he will proceed to ask more questions. Do you have any drugs or weapons in your car, do you mind if I search your car. They will search your car whether you mind or not. If drugs are found, at trial the officer will testify that you were nervous (note that experts like Colegrove can witness your heartbeat through your shirt - there is no escape from these superhero abilities), the officer will note that you were driving a rental car (1/2 of the reason he pulled you in the first place, the other silent 1/2 being the fact that you are Black or Hispanic), and the officer will note that you were traveling from a city to city (a drug hub to another drug hub, describing over 50% of all travelers on the interstate).

Another part of this equation is the fact that officers like Colegrove are a large source of income for the Counties. Each time that they find drugs in a car they take all money they find on the person or in the car, and sometimes the car, as a "forfeiture." If you can, imagine several "busts" a day and what the figure begins to add up to by the end of each year.

Officers like Dale Colegrove believe that the ends justify the means. I once asked a prosecutor in Dale Colegrove's jurisdiction if they did not see a problem with a Sheriff's Deputy sitting on the interstate and pulling over Hispanics and Blacks in rental cars. That prosecutor's response was, well, he gets convictions doesn't he?

The Court of Appeals may think, who cares if we hold a drug trafficker on the side of the road for 30 minutes while his car is searched? The answer is no-one. What we should care about is all of the people that are being humiliated on the side of the road that are not drug traffickers. What we should care about is the blatant racial profiling that is occurring in our state. We should care about a culture of law enforcement that encourages police perjury in order to obtain convictions. We should care that cases like Terry Tindall's send a message to law enforcement that the Fourth Amendment means nothing, so long as you are getting convictions and supplementing your County's income.

State v. Caldwell, decided by the South Carolina Court of Appeals last month, essentially reaffirmed that 1) it is OK for the prosecutor to wait until the last minute to give discovery materials to the defense; and 2) it is OK for prosecutors to make plea offers before providing complete discovery, and then take the offer off the table after full discovery has been received:

B. Failure to Comply with Discovery

Caldwell further asserts the trial court erred in admitting the alleged statements made to Officer Porter because the State violated Rule 5(a)(3), SCRCrimP by failing to properly disclose the substance of the alleged statements in a timely manner. We find no error.

“Upon request by a defendant, the prosecution shall permit the defendant to inspect and copy or photograph: . . . the substance of any oral statement which the prosecution intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a prosecution agent.” Rule 5(a)(1)(A), SCRCrimP. “The prosecution shall respond to the defendant’s request for disclosure no later then thirty (30) days after the request is made, or within such other time as may be ordered by the court.” Rule 5(a)(3), SCRCrimP. A Rule 5 violation is not reversible unless prejudice is shown. State v. Landon, 370 S.C. 103, 108, 634 S.E.2d 660, 663 (2006).

We find no prejudice to Caldwell such as would entitle him to suppression of the statements. The statements, as referred to in Officer Porter’s supplemental report, were admittedly turned over to the defense in April 2006. Caldwell contends the State’s failure to disclose the alleged statements until that time prejudiced him because, after that point, the opportunity afforded to him to plead to only a single indictment had passed. However, a defendant has no constitutional right to plea bargain. State v. Chisolm, 312 S.C. 235, 237, 439 S.E.2d 850, 852 (1994). Thus, Caldwell was not prejudiced by the delayed disclosure. See Chisolm, 312 S.C. at 237-38, 439 S.E.2d at 851-52 (holding, even though assistant solicitor acted inappropriately by communicating with a party known to be represented by counsel and by surreptitiously tape recording the conversation, assertion appellant was prejudiced as evidenced by the absence of plea negotiations was insufficient inasmuch as a defendant has no constitutional right to plea bargain).

Defendants in civil cases have far more discovery rights than defendants in criminal cases do, and more remedies for violations of the discovery rules. In a civil case, the opposing party has 30 days to respond to discovery requests. If there is no response, you file a motion to compel and the Court will order the production of discovery. If discovery is not provided, the Court can make the non-producing party pay court costs, exclude evidence from the trial, or dismiss the civil action.

In a criminal case, the prosecution has 30 days to provide discovery once it has been requested. If there is no discovery provided within 30 days, no-one cares. If the discovery is provided on the eve of trial, your remedy may be a continuance if you don't mind waiving your client's right to a speedy trial. More likely, the judge will tell you to take a few minutes and review the materials. So long as you have it when trial is starting, there is no prejudice to your client.

Prosecutors routinely make plea offers and expect you to accept or deny them without the benefit of complete discovery - this is the norm in drug distribution cases or any case with a confidential informant. I have had prosecutors tell me, the plea offer is X but if I have to go to the trouble of putting together this discovery you are asking for, then the plea offer is off the table. Although I discuss this situation with my client, my answer is usually get me the discovery and keep your plea offer.

Part of the problem is defense attorneys are not insisting on complete discovery, and therefore prosecutors are not expecting defense attorneys to insist on complete discovery. Prosecutors expect defense attorneys to plead their clients, because that is what most do. Prosecutors expect defense attorneys to not insist on complete discovery, because that is what they are used to.

If you don't have discovery materials within 30 days, send a letter to the prosecutor and remind them. When you get the first discovery response, send another asking for everything else they didn't give you in the first response. Independently investigate the facts of your client's case so you know what the prosecutor or the police are hiding - don't depend on the government's investigation to make your client's case.

If they don't give you the discovery file a motion to compel. Prosecutors get pissed off when you file a motion to compel discovery - the reason is because no-one files motions to compel so they don't expect it. If they are not turning over discovery materials, put it in front of a judge before the day of trial. Prosecutors assume if you want discovery you are going to trial, and they start getting defensive - but you cannot advise your client to plead guilty or to take his or her case to trial until you have seen all of the evidence. If you do advise a client to plead before they have seen all of the evidence, it is grounds for PCR and the conviction could be overturned anyway.

I posted earlier this month about a DUI scared-straight hoax pulled by a school in California, where highway patrol officers came to classes and pretended that students were dead from alcohol related car crashes. The teachers from the school now are defending their actions to the media.

"They were traumatized, but we wanted them to be traumatized," said guidance counselor Lori Tauber, who helped organize the shocking exercise and got dozens of students to participate. "That's how they get the message."

The school superintendent "said he was glad that students seemed to have gotten the message."

They wanted them to be traumatized. The guidance counselor organized the event. Has no-one filed a lawsuit against this school district or MADD yet?

The United States Supreme Court's decision in Boumediene v. Bush has sparked a good bit of new debate on the tension between civil liberties and National Security. Yesterday's Chicago Tribune article about how Chicago defense attorney Thomas Anthony Durkin volunteered to represent Ramzi Binalshibh was timely.

Military prosecutors seek the death penalty against Binalshibh, who is one of only five "high value prisoners" being held at Guantanamo Bay, Cuba. Prosecutors say Binalshibh helped to plan the 9/11 attacks. Binalshibh has said that he wanted to be a part of the 9/11 attacks but was not able to make it, and he says that he has "been seeking martyrdom for five years."

One of the most common questions criminal defense lawyers get is "how can you defend those people," or "how can you defend someone if you know they are guilty?" There are many answers to this question. Those people are usually just people, like you or me or Joe next door. They are people like members of our family or friends we remember from high school.

There are few cases where I know that my client is guilty. There are also cases where I know that my client is not guilty. Why I defend those people should be fairly obvious.

There are many more clients who I am not sure whether they are guilty or not. And if I, the person closest to the case, have doubts as to their guilt, then I have an absolute duty to convey that doubt to the prosecutor and to a jury if necessary. When we convict persons despite having doubts as to their guilt, our justice system has failed. We have chosen as a nation to not convict persons when there is doubt as to their guilt, to protect against the wrongful conviction of innocent persons.

I have found that guilty and not guilty is not that clear cut at times. There are shades of guilty. There are people who technically have committed a crime but there was good reason for it (if you walk in on your wife naked in bed with another man and you slap her in the face, you are now technically guilty of CDV). There are people who have committed a crime under the law but the punishment does not fit the crime they have been charged with (mandatory minimum sentences for 1st offense drug crimes). A conviction in some cases would work an injustice even if the person is guilty. There are some laws and penalties on the books that a large part of our society believes should not be enforced.

But then there are some clients who not only seem to be guilty beyond any doubt, but appear to have committed the most heinous of crimes. Child molestation, unprovoked murders, mass murder in the case of the 9/11 attacks. Why do we represent these people? The most common answer I give to people is because if we give the worst of the worst, the most despicable client, the best defense possible then I know that certainly when you or I are on trial for a crime that we may not have committed, we will also get the best defense possible.

As Durkin said to the Chicago Tribune, "Binalshibh must be defended because doing so is in keeping with the highest ideals of American law." "Anybody can give law to his friends -- it's the essence of law to give it to our enemies," Durkin says, quoting Supreme Court justice Felix Frankfurter.

June 13, 1966. From History.com:

On this day in 1966, the Supreme Court hands down its decision in Miranda v. Arizona, establishing the principle that all criminal suspects must be advised of their rights before interrogation. Now considered standard police procedure, "You have the right to remain silent. Anything you say can, and will, be used against you in court of law. You have the right to an attorney. If you cannot afford one, one will be appointed to you," has been heard so many times in television and film dramas that it has become almost cliche.

The roots of the Miranda decision go back to March 2, 1963, when an 18-year-old Phoenix woman told police that she had been abducted, driven to the desert and raped. Detectives questioning her story gave her a polygraph test, but the results were inconclusive. However, tracking the license plate number of a car that resembled that of her attacker's brought police to Ernesto Miranda, who had a prior record as a peeping tom. Although the victim did not identify Miranda in a line-up, he was brought into police custody and interrogated. What happened next is disputed, but officers left the interrogation with a confession that Miranda later recanted, unaware that he didn't have to say anything at all.

The confession was extremely brief and differed in certain respects from the victim's account of the crime. However, Miranda's appointed defense attorney (who was paid a grand total of $100) didn't call any witnesses at the ensuing trial, and Miranda was convicted. While Miranda was in Arizona state prison, the American Civil Liberties Union took up his appeal, claiming that the confession was false and coerced.

The Supreme Court overturned his conviction, but Miranda was retried and convicted in October 1966 anyway, despite the relative lack of evidence against him. Remaining in prison until 1972, Ernesto Miranda was later stabbed to death in the men's room of a bar after a poker game in January 1976.

As a result of the case against Miranda, each and every person must now be informed of his or her rights when arrested.

Of course, History.com has made one common misinterpretation of Miranda that I hear on an almost daily basis from my clients. Every person does not have to be informed of his or her rights when arrested. Miranda rights must be read before a person is questioned by the police after they are in custody. If this is not done, any statements that are made can be excluded from the trial.

With few exceptions, not having your rights read to you is not grounds to get your case dismissed, and it is not police misconduct. It usually just means that they do not intend to question you. If they are going to question you, they will usually not only read the Miranda rights to you, but they will make you sign a document stating they have been read to you, and have you initial by each individual right that you are waiving if you speak.

Some more bloggers have come out in defense of Kozinski after yesterday's bashing.

Lessig.org describes the "smear campaign" by attorney Cyrus Sanai that led to the discovery and release of the pictures from Judge Kozinski's private website, and why it is outrageous that legal materials kept on a server that Kozinski believed was private is now the subject of massive public attention. Lessig laments

the total inability of the media -- including we, the media, bloggers -- to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel - and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.

Eugene Volokh, who once clerked for Judge Kozinski, agrees with Lessig that

no-one should be put in the position of "hav[ing] to defend publicly private choices and taste" in a situation like this. We should all leave Kozinski to his own privately expressed sense of humor, as we'd like the world to leave us to ours.

Today the USSCT released Boumadiene v. Bush, holding that the detainees at Guantanamo have a constitutional right to habeas relief, and strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. The Court also holds that Congress can take the right of habeas away from detainees by suspending the writ of habeas under the Suspension Clause.

Justice Kennedy, in the majority opinion, talks about the history of the Habeas Corpus Act of 1679 and its relevance today. He notes that the officials charged with our nation's every day security may feel that the history of the Habeas Corpus Act is not relevant, and that security is dependent on the military's ability to act upon intelligence. He goes on to say:

Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Justice Scalia, in his dissent, accuses the Court of causing Americans to be killed:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.

I can only assume from this statement that Scalia does not feel that the right to habeas corpus is a "time-honored legal principle vital to our constitutional Republic."

Benjamin Franklin said, “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”

If the men and women of our military are dying now to protect our freedoms in this great nation, then we need to honor those sacrifices by not doing away with those very freedoms that they are dying to protect. The U.S. Supreme Court took a brave step today to preserve those freedoms against those in our government who would just as soon take them away in the name of National Security.

More commentary:

volokh, volokh, volokh
Gideon, Gideon
sentencing law blog
scotusblog

Earlier today, the L.A. Times reported that Judge Alex Kozinski has suspended a federal obscenity trial in California after it was found that his website contained numerous sexual images. Kozinski is the Chief Judge for the Ninth Circuit Court of Appeals, but he was assigned to preside over a federal case where a jury will determine if a Hollywood adult filmmaker has violated the obscenity laws. The prosecutor requested that the trial be suspended while they determine if Judge Kozinski has a conflict of interest.

The website was not supposed to be accessible to the public, and required that a person type in the name of a subdirectory and a password to view its contents. Judge Kozinski stated that his son had uploaded much of the material, but that the website was used by his entire family to store images. Kozinski has requested that a court ethics panel investigate him to determine whether there was any wrongdoing, and says that he will cooperate fully with the investigation.

Throughout the day there has been fallout from the story, and much of the coverage has taken a "gotcha" approach, some outright attacking Judge Kozinski. Douglas Berman at Sentencing Law blog isn't sure what to make of it. Concurring Opinions, in a post titled "judges gone wild," takes a more aggressive tact toward the Judge, implying that Kozinski is in fact a pervert, and points out that this "sounds like a deliberate and conscious aggregation of misogynist images."

Judge Kozinski provided the following statement to the lawblog Above the law:

David: I can't comment on the trial.

As for the other matter, the server was maintained by my son, Yale, for the entire family. Pictures, documents, music, audio and other items of personal and family interest are stored there so various family members can reach them from wherever they happen to be. Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was -- I was surprised that it was there. I assumed I must have put it there by accident, but when the story broke, Yale called and said he's pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don't remember putting some of that stuff there.

I consider the server a private storage device, not meant for public access. I'd have been more careful about its contents if I had known that others could access it.

After actually seeing the photos that this is all about, I think it has been blown far out of proportion. I feel for Judge Kozinski and all of the negative press he is getting from this, because it is unwarranted. Many of the pictures that were supposedly on Kozinski's website are pictures that I have seen before, forwarded in emails or on humor websites. I don't believe for one minute that this is Judge Kozinski's "porn collection" or that any laws were broken by Judge Kozinski.

Some of the photos can be found here at Patterico's Pontifications (thanks to Gideon at apublicdefender.com for finding this). Gideon points out that the "tipster" that hacked Judge Kozinski's website and found the pictures is a lawyer named Cyrus Sanai who has had an ongoing public dispute with Judge Kozinski.

Following his successful plea to waive his appeals and be executed as soon as possible, David Mark Hill got his wish yesterday.

Hill was convicted of a 1996 triple homicide. He is the first person to be put to death in South Carolina since the U.S. Supreme Court decided that lethal injection was an acceptable method for the government to kill people. He is the 279th person to be executed in the State of South Carolina.

On Wednesday, the Senate voted to override the governor's veto on South Carolina indigent defense funds. Tuesday, the House unanimously voted to override the veto.

Governor Mark Sanford threatens a lawsuit, to force the legislature to pass a balanced budget. Also, Henry McMaster's "no parole" bill thankfully was not passed this session.

The DNA testing bill, which would allow inmates to request a DNA test in order to prove their innocence, has not been decided by the House yet.

The ABAJournal reports that the 6th U.S. Circuit Court of Appeals has denied Frank Lawrence Jr.'s civil rights and First Amendment claim based on Michigan's refusal to grant him a law license. Apparently Lawrence told the Michigan Bar's committee on character and fitness that he had little respect for the state court system, and Lawrence had a website, StateBarWatch, that was critical of Michigan's State Bar. Lawrence was critical of the fact that a majority of the Michigan Supreme Court's justices are hostile to civil rights plaintiffs.

We should welcome attorneys who are critical of the system, otherwise how can we expect to improve the justice system. We should be critical of our government when it warrants criticism, and we should be tolerant of others' criticism whether we agree with it or not.

Lawrence, who stated that he did not regret answering truthfully when the committee asked him about his political beliefs, also said that the federal courts are the guardians of the Constitution. I disagree with this statement - the federal courts should be the guardians of the Constitution, but they neglect that duty far too often. Raise your hand if you think my law license should be yanked for saying so.

I hope the answer is a resounding never. But -

Washington D.C.'s mayor has implemented several unconscionable measures in an attempt to crack down on crime in the city. Since April 1st, D.C. has had 7 homicides, 16 robberies, and 20 armed assaults. Josh Patashnik at The New Republic wonders whether this is a sufficient "emergency" to do away with constitutional protections in the city.

On March 12, the Mayor and police chief announced that police would be going door to door in certain neighborhoods, asking residents to consent to searches of their homes for drugs and guns. Homeowners who consent to the searches would receive amnesty from gun and drug possession charges.

On May 17, the Washington Post reported that the D.C. police department will be arming patrol officers with semi-automatic rifles (AR-15's), which the police say will be a better match for criminals.

Yesterday, the Washington Post reported that under the "neighborhood safety zone initiative," D.C. police will cordon off entire neighborhoods and set up checkpoints to allow people in and out. Police will search cars and will arrest anyone who does not cooperate, charging them with failure to obey a police officer. The D.C. Mayor is quoted as saying, "We're going to go into an area and completely shut it down to prevent shootings and the sale of drugs."

Orin Kerr at Volokh gives a detailed analysis of why the D.C. checkpoints are clearly unconstitutional, in case anyone had doubts. Scott Greenfield at Simple Justice has picked up the story as well, and writes that "this isn't merely wrong because it nips around the edges of some precedent or raises questions of adequate notice. This is a fundamental wrong, flying smack in the face of basic freedoms." Jon Katz notes D.C.'s Attorney General's statement that he is "not worried about the constitutionality" of the Mayor's state of emergency.

If this is allowed to happen anywhere in the country, then it can happen . . . well, anywhere in the country. Everyone with a voice needs to speak out and take action as we watch Washington D.C. become a police state with no regard for civil liberties, because Myrtle Beach, S.C. or Anywhere, U.S.A. will be next.

In 1979, Wiesart was convicted of indecent exposure for skinny dipping in a pool with his girlfriend. As a result, he was placed on South Carolina's sex offender registry. in 1996, the sex offender registry statute was amended so that a specific finding is now required that a person convicted of indecent exposure should register as a sex offender. The intent of the amendment was undoubtedly to keep people like Wiesart, who are not sex offenders, off of the registry.

The South Carolina Court of Appeals today decided that the amendment is retroactive, meaning that Wiesart should be taken off of the registry unless there is a specific finding that he is a sex offender.

The sex offender registry requirements net many people that truly do not belong on the registry - a person with an indecent exposure conviction, statutory rape with a teenager close in age range, or children who commit what are arguably sex crimes but who are not sex offenders. The public humiliation of being on the sex offender registry is inescapable for these people. This ruling will hopefully bring relief for at least some people that do not belong on the registry.

I don't know if disbarred is the correct term, but the licenses of Chinese attorneys were suspended after they volunteered to defend Tibetans charged following the anti-China protests in March. In April, 30 Tibetans, represented by Chinese government appointed lawyers, were given sentences ranging from 3 years to life in prison. 18 Chinese lawyers then signed a public letter offering free legal services to the Tibetans.

Loss of your license to practice law is a high price to pay, but it is inspiring to see Chinese lawyers fighting for change in an authoritarian government like China's. Lawyers worldwide have a huge responsibility to see that justice is done, to speak up and to take action when they see injustice.

Lawyers disbarred by an authoritarian government for the way they practice law - I'm glad that could never happen here in the U.S.A.

From John Wesley Hall's lawofcriminaldefense.com: Proposed amendments to the Code of Professional Conduct in California would bar flat rate fees and permit prosecutors to directly contact defendants who have counsel. Prosecutors would be permitted to settle civil claims in connection with criminal cases.

The reasons why these rules could not work should be fairly obvious:

Flat rate fees are necessary in criminal cases if we care to get paid for the work we do.

Prosecutors would love to communicate directly with our clients - a large part of my job is keeping the prosecutor and investigators away from my client so that my client does not hurt himself or herself, and so the prosecutor who is a trained legal advocate does not have an unfair advantage over my client who is not trained in the law.

We have an ethics rule that states an attorney cannot use the threat of criminal prosecution to gain an advantage in a civil matter. Prosecutors come close to running afoul of this rule quite often - the proposed California rule sounds like it would give them license to threaten prosecution to give "victims" the advantage in what should be a civil, not criminal, case. This comes up most often in breach of trust (South Carolina's version of embezzlement) cases, or "stop payment on check" cases.

California is worlds away from South Carolina, but if something like this is allowed to fly anywhere in the country it is only a matter of time before they try it here as well. Hall reports that NACDL is drafting a response to the proposals.

According to the State newspaper Chief Justice Toal says

that Gov. Mark Sanford’s vetoes of millions of dollars for legal defense programs for the poor will clog state court dockets. Chief Justice Jean Toal also said the vetoes of $6.3 million to aid in indigent defense will increase the likelihood of appeals and saddle taxpayers with more spending to keep poor defendants in jails waiting for trials.

Sanford has said that his vetos, including the veto of funding for indigent defense, frees money needed for prisons and levels the playing field with prosecutors.

Edit: The House voted unanimously today to override the Governor's veto of the indigent defense bills, including the bills for funding of indigent defense of CDV and DUI. The Senate has not yet voted.

Geoffrey Fieger and Ven Johnson were acquitted today on all counts of illegal campaign contributions. Fieger and his attorney Gerry Spence fought a long, hard battle during a 5 week trial, and Spence says this will be his last trial. As Carl Malinga, a former Macomb County prosecutor who was also acquitted of campaign violations, said:

This is the reason we have juries . . . to stop the government when it's out of control. Juries are the conscience of the community.

Another South Carolina Highway Patrol video:

From Gideon, Albuquerque officer attacks reporter:

From Balko at theagitator.com: An elaborate hoax on high school students in San Diego involved a student not showing up to class, in each class. Then an officer went in and explained to the class that their friend was dead, having been killed in a drunk driving accident. The officer read a eulogy and placed a rose on the seat. Then, later in the morning, the children are taken to a stadium where they discover that their friend is not dead after all, but they are forced to sit through a dramatic reenactment of a car crash.

The current policies in Horry County, and probably throughout South Carolina, of aggressive enforcement of CDV laws are counterproductive. I speak to many people who have been arrested and charged with domestic violence. Most tell me that when the police arrive, they are told that if the police are called, someone has to go to jail. When I first began hearing this, I attributed it to a few officers who were acting like jerks, and to some exaggeration by my clients. Over time, however, it has been consistent, and I am hearing the same thing every time. If we are called, someone is going to jail.

In some cases, individuals are being arrested without any evidence of a CDV having occurred - the officer says I have to take someone. In some cases, the victim who calls the police is arrested along with the person who was doing the hitting. They are not always allowed to speak and there are some officers who do not want to talk to anyone at the home before making their arrest. I have seen cases where a third party calls the police and the officer arrests everyone in the house despite there being no independent evidence of CDV.

Law enforcement and the solicitors' offices are receiving additional funding to hire prosecutors for the prosecution of CDV's, and yet persons charged with CDV have no access to appointed defense attorneys. The public defenders do not go to the magistrate court and there is no funding for indigent defense of CDV. In some cases, people are being arrested without any real investigation of the facts, are being prosecuted by a trained advocate, and have no way to defend themselves unless they have resources available to hire a criminal defense lawyer.

I am hearing people say, "if I am ever really beaten by my spouse, the last thing I will do is call the police for help." This policy, written or unwritten, of arresting someone anytime the police are called, is counterproductive. Not asking questions before hauling husband and wife off to jail is counterproductive. Arresting victims is counterproductive. Not providing attorneys to defendants results in numerous wrongful convictions at the magistrate court level.

Law enforcement should not be about a numbers game, and law enforcement + politics = injustice.

Kentucky's general assembly cut the budget for indigent defense, and the state's chief public defender is now asking judges to order the state to pay private attorneys to represent indigents.

Gideon and the 6th Amendment require that persons who are accused of crimes have the assistance of counsel. If the government wants to prosecute people the government will have to provide for the defense of those who cannot afford attorneys. Grandstanding, being "tough on crime," and vetoing the indigent defense bill is not an option. Public defenders' case loads can only be so high before they begin committing malpractice, and there must be sufficient funding to keep enough public defenders so that their case loads can be kept down. There must be sufficient funding for conflict attorneys. There must be sufficient funding for experts, investigators, and other court costs.

When the public defenders' case loads are too high, they have an ethical obligation to refuse to accept more cases. If this happens, prosecutions and the entire court system would grind to a halt.

Solutions?

Stop arresting so many people.

Start screening for indigency more effectively - if you have resources with which to retain an attorney you should not be using the public defender's office.

Elect someone with a legal education to the Governor's office (and Congress).

The Office of Indigent Defense in South Carolina has been doing an excellent job these last few years, and it seems the legislature has been supportive, in creating a statewide public defender system that was greatly needed. Don't shoot them in the foot when they are almost there.