South Carolina Criminal Defense Blog

Via Grits and Tex Parte Blog, Collin County District Judge Mark Rusch has been recused from hearing a capital murder case, after signing search warrants for defense attorney Keith Gore's office.

Despite a hearing being scheduled to determine whether the prosecution was entitled to the items they sought, the prosecution sought and obtained a search warrant from Judge Rusch to enter Gore's office and search for a pair of boots and letters that the defendant had written to his wife. The boots were not found in the office, but the letters were taken by the police. From Tex Parte:

The boots were not found, according to a motion the DA’s office filed in the case, but letters and a shoe box were. “We’re pleased with it, and we think it vindicates what we’ve been saying all along: that Keith Gore did absolutely nothing wrong,” Miears says. “And we’re disappointed that the Collin County DA’s Office would put a district judge in the position of having to issue an illegal search warrant of a lawyer’s office.” Collin County assistant district attorney John Rolater, who represented his office during the recusal hearing, declines comment.

There are different ways to conduct interviews, depending on what you want to achieve in the interview. In law schools they usually offer a class on interviewing which teaches, among other things, how to get the most accurate and truthful information from an interview. You begin with broad, open ended questions, who, what, when, where, why, and how, allowing the subject to speak freely and not limiting their responses. Further along into the interview you may narrow the scope of your questions, to focus on what you have identified as the important issues, the topics you want to know more about, or the subject matter that they left out.

If you are seeking the truth, the above method is without a doubt the most reliable. On the other hand, if you are seeking only to verify what you already believe to be true or if you are seeking to make the subject say what you want them to say, you would use more coercive methods, such as the Reid technique or variations thereof that are taught to law enforcement.

In preparation for a murder trial, recently I interviewed a witness. There were times during the interview where I told them what others had said and asked them to confirm or deny, but for the most part I tried to just ask them to tell me what had happened and what they knew. Most of what I was told confirmed what I already knew from other witnesses, and I didn't have to trick the person, lie to them, or scare them into telling the truth. After this, I was reviewing a typical police interview of a witness in the same case, where the investigators were convinced they had everything figured out.

In the beginning of the interview, they tell the subject that they already know everything and there is nothing that the subject can tell them that they don't already know. They only want the subject to listen and they are going to tell him what happened. They then proceed to tell the subject what they want him to say, in great detail. When the subject tells them that they are wrong, and tries to tell them what actually happened, he is told he is lying. They then tell him that they know he is lying because A, B, and C have already told them what the subject's involvement was. I know that A, B, nor C ever spoke to the police about this case.

They tell the subject that A is telling them that the subject is the "ringleader" and that A is laying all the blame on him. They tell the subject that if he does not clear the air he is going to have to take the fall. They tell him that A is saying it happened this way _________. But, the truth is, if it happened this other way __________ they can understand that, it's alright. Scenario number 2 is not nearly so bad as what A is trying to pin on him (but admitting to scenario number 2 would in fact be a confession to a crime). They also want him to tell them what they want to hear about A's involvement. They tell him they are going to be there for days if he does not say what they want him to say.

The subject continues to deny what they are saying, and repeatedly tells them he is not going to lie. At one point, he asks what they want him to say. The response is, I want you to say that A did this. The subject says I am not going to lie, and the cop's response is it's not a lie, because I know A did this.

The end result in this particular interview was that the interrogators lost control of the interview, lost all credibility with the subject, and he did not tell them what they wanted to hear. They did not keep him in the interrogation room for days, and he did not succumb to the pressure. But watching these interviews it is easy to see how police when applying these techniques can and do obtain false confessions from people. Persuade the subject that they are not leaving that room until they say what the police want them to. That there is overwhelming evidence proving what the subject knows is not true. That things will go easy on him if he just says what the police want him to. That if he does not say what the police want him to things will get much harder.

What occurs to me is the difference between my interviews and police interviews. What would happen if I interrogated a prosecution witness in the same manner that the police interrogated this guy, and the prosecutor got his hands on the video? When the police twist interviews to make witnesses or future defendants admit whatever facts support their case, provided Miranda rights are read, usually whatever is said is admissible at trial and the jury will overlook or not care about the methods used. It is called good police work. If a defense attorney were to use these same methods to twist the truth I am sure that it would be called obstruction of justice.

Marina Tylo has filed a defamation suit against blogger Andrew Bluestone at the New York Attorney Malpractice Blog, for reporting in September of last year that she was sued for malpractice. In her complaint, provided here by Simple Justice, she asks for the sum of $10,000,000.00 in damages and a retraction.

The offending text she cites in her complaint is:

Here is the full text cite for a legal malpractice case in which plaintiff's attorney served a summons before buying the index number. Khlevner v. Tylo, 10733/07,

which is text that prefaces language from the court's decision in her case. A copy of the webpage is attached as "Exhibit A." The lawsuit alleges that the above text constitutes "libel, gross negligence, negligence, intentional infliction of emotional distress, [and] tortious interference with prospective contractual relations."

As Simple Justice points out, this ridiculous effort by Tylo to silence a blogger will end up earning her much more bad press than the one small post on Bluestone's malpractice blog did:

And if the rest of the blawgosphere feels similarly, then let's make sure that those inclined to try to use the courts to shut blawgers down and keep lawyers' screw-up as their dirty little secret, learn that such vapid efforts to undermine speech in the blawgosphere is going to backfire on them. Perhaps Tylo will regret her decision to try to silence Bluestone as her misbegotten effort spreads across the internet.

Mike at Crime and Federalism says:

Is that how someone protects her reputation? By suing a law blogger? Really? Who advised Ms. Tylo that filing the lawsuit was a good idea? She should sue her lawyer for malpractice.
Oh, wait. According to the summons that Mr. Greenfield helpfully posted, Ms. Tylo filed the lawsuit pro se, that is, on her own behalf. She's literally her own lawyer.

I see that a google search for "Marina Tylo" brings up activerain real estate network first (which I hope is a bad joke, as it shows a terribly unprofessional profile filled with typos and bad grammer), followed by many blawgs with commentary on her lawsuit. Several begin with "Brooklyn lawyer Marina Tylo deserves a good spanking."

More from Eric Turkewitz, Mark Bennett, Crime and Federalism.

From Fourth Amendment.com:

Last month federal agents executed a search warrant on the office of lawyer George Argie in Cleveland, Ohio, seeking information about one of his clients. The warrant was one of many issued as part of a federal investigation into corruption by Cuyahoga County officials:

Investigators are examining whether Cuyahoga County Commissioner Jimmy Dimora and Auditor Frank Russo steered the construction contracts to businesses that provided free improvements to their homes . . . agents want to know whether Dimora and Russo offered jobs in exchange for favors or used their influence in judicial proceedings, decision-making at the top levels of county government and determinations of how much taxes people and companies should pay.

The agents that searched Argie's office took items related only to his work with one of his clients who is under investigation, and Argie was served with a grand jury subpoena to produce additional documents.

Argie says he does not think he is a target; they only wanted information regarding his representation of his client. My question is, if Argie is not a target, how in the hell does a judge sign a search warrant allowing law enforcement to go through his files? One of the first things that we learn regarding the attorney - client privilege is that it is sacrosanct. If a client's confidences cannot be maintained, clients will not be able to confide in their attorneys, and they are denied effective representation.

The appropriate method of obtaining information from an attorney's files is through subpoena, which the attorney can move to quash, providing for a hearing before an impartial judge who can review the materials in camera if necessary to determine if attorney-client privilege applies. Law enforcement cannot walk into lawyer's offices, search through clients' files, and take what they want (as they did in Keith Gore's office in Texas).

If George Argie is the target of a valid investigation, then a search warrant for his office may be justified. If Argie's client waived the attorney client privilege, then Argie can turn over his client's information and a search warrant would not have been necessary. But if Argie was not a target and his client did not consent, this is a serious problem - law enforcement cannot bypass judicial review and ignore attorney client privilege in their search for evidence.

DUI lawyer Lawrence Taylor points out some interesting facts at his DUI Blog. MADD has been advocating for ignition interlock devices for all vehicles for a few years now, and Taylor asks why?

We see that MADD's list of corporate donors is topped by automobile manufacturers, donating over $100,000 each, who have been designing cars equipped with ignition interlocks, possibly in anticipation of government bowing to MADD and passing a law requiring them:

Platinum - $100,000+
DialAmerica Marketing, Inc.
Nationwide Mutual Insurance
Nissan North America, Inc.
DaimlerChrysler Corporation
CarMax Foundation
General Motors Corporation

Gold - $50,000+
Johnson & Johnson
Procter & Gamble
Anonymous
Outside the Classroom

Silver- $25,000+
Charter One Bank
GE Motor Club
Volkswagen Of America, Inc.
Takata
Oreck Direct
Ford Motor Company
Maid Brigade
Canadian National Railway Company
BP West Coast Products LLC

Bronze - $10,000+
Coca-Cola North America
Anonymous
Harvey Industries
Smart Start
Takata
American International Automobile Dealers
Anonymous

Special Donors
BP Corporation North America Inc.
Innocorp, Ltd.

MADD is big money. Taylor points out that in 2006 (still the most recent statistics available on MADD's website) MADD received over $51 million in contributions, and received the lowest possible rating for "fundraising efficiency" - "the percentage of money raised that actually goes to the stated objectives rather than to salaries, overhead, etc."

I don't want to believe that I live in a society that would tolerate an ignition interlock device in every car, and I know that I would not purchase a car equipped with such a thing. It is frightening to think that people may agree to allow the government to monitor us every time we get into our own car, and more frightening to imagine, if we allowed that to happen, what will be next.

Last week in court I saw an attorney who was pleading his client to a DUI 2nd offense and was taken completely by surprise by the stack of forms that his client was required to sign before the Court would hear the guilty plea. Among them was the requirement that an ignition interlock device be installed on the defendant's car, following the suspension period. Even after the solicitor explained what it was to the defense attorney, the lawyer did not explain it to his client but just put the papers in front of him, said sign here, here, and here, and then continued with the plea.

Every attorney that handles DUI cases needs to be aware of these requirements, found in S.C. Code Sec. 56-5-2941 and 56-5-2942, which are complicated, draconian, and can easily result in further penalties down the road with limited due process. Following any conviction for DUI 2nd offense or greater, the person's driver's license is suspended, they must "immobilize" (surrender the tags and registration) all vehicles registered in their name for 30 days (during the suspension period), and after the suspension period has run they must install an ignition interlock device.

Even if a DUI 2nd is remanded to the magistrate court for a plea to DUI 1st, the ignition interlock requirement applies, because it is determined by what is on the driving record and not what is before the Court. After a 2nd offense DUI the ignition interlock must be complied with for 1 year, after a 3rd offense 3 years, and after 4th offense the law says a defendant must have an ignition interlock device for the rest of their life, although there is a separate provision to apply for relief after 10 years.

The person has to pay a monthly fee to the probation department who supervises the interlock device, and has to have it inspected every 60 days. There is then a point system, where the person receives points if the machine registers greater than a .02 BAC or if the person does not have the inspection done each 60 days. Points lead to a longer period of time with the device, a requirement of enrolling in counseling with DAODAS, or a further license suspension. The remedy for assessment of points by the probation department is to appeal the decision . . . to the probation department. You won't get a hearing or be permitted to present evidence before they make their decision.

If the person does not follow the requirements, further criminal charges and jail time could result. If the person drives without installing the device, they can be charged criminally and punished as if they were guilty of DUI. Tampering with the device, providing a car to someone who is required to use the device, asking another person to start the car, or starting the car if you are another person are misdemeanors that carry up to 30 days in jail.

Note that on SCDPPPS's FAQ on their website, it says that if another persons drives the vehicle, they will have to blow into the interlock device as well. The law, on the other hand, says that it is a misdemeanor punishable by 30 days for another person to use the car.

Ignition interlock devices are no more reliable than Datamaster machines, and probably less so. The machine will make mistakes, and this coupled with the stringent reporting requirements and lack of due process for violations is bound to land many people into an administrative nightmare. Maybe that was the drafter's intention?

In State v. Spoone, released last week, the South Carolina Supreme Court upheld (on PCR) a plea agreement in which the defendant agreed to waive his right to appeal, PCR or any other review of his guilty plea or sentence.

Pursuant to a written plea agreement, petitioner James William Spoone pled guilty to murder, first degree burglary, and possession of a weapon during the commission of a violent crime. Prior to the guilty plea, the State issued a notice of its intent to seek the death penalty. In accord with the plea agreement, the trial court sentenced petitioner to life without parole for the murder and a consecutive life term for the burglary.[1]

The plea agreement expressly stated the following:

[Petitioner] agrees to waive any and all appeals, PCR applications, federal habeas petitions and any and all other methods of review of this guilty plea and sentence.

Thus South Carolina follows in the footsteps of the federal courts, allowing prosecutors to deny any review of guilty pleas or sentences as part and parcel of what is often a contract of adhesion. Although this practice is not yet as widespread in our state as it is in some federal circuits, our Supreme Court has given the green light if prosecutors wish to go this route.

When faced with a case where a defendant has a choice of significant additional prison time or signing a plea agreement that waives the right to appeal or PCR, what should a defense attorney do? I believe this type of agreement is unethical and should not be entered into by defense attorneys or offered by prosecutors, nor should it be stamped with the approval of judges or appellate courts. Is it a choice left to the client, or should the defense attorney refuse to participate in such agreements?

The Court's holding, following a brief review of federal law and precedents from other states, is that waiver of review of a guilty plea and sentence is enforceable if it is knowing and voluntary.

South Carolina law enforcement has begun their latest DUI campaign, kicking off operation "sober or slammer" last Friday.

Troopers say no matter if you're a teacher or a preacher, or anyone else, if you're caught drinking and driving you're going to jail.

The Highway Patrol says they are going to triple the number of officers on the road through September 1st, and will use the extra manpower to set up roadblocks as well. On Friday morning law enforcement held a news conference at Mount Hope cemetery in Florence, complete with anti-DUI banners and pictures of a DUI victim to announce the crackdown.

It is undeniable that drinking and driving can have tragic results. However, I predict that in the next few months what we will see are an increase in persons who were not legally under the influence who were arrested and taken to jail to bump law enforcement's numbers. If there is an increase in arrests, the operation will be a success. Of course, if there is no increase in arrests, the operation will be a success, because the decrease will be due to less people drinking and driving as a result of the campaign.

I believe one (intended?) effect of these marketing blitzes by the Highway Patrol is large-scale jury tampering. I have had officers testify on the stand that one drink before driving is illegal, and there are many people who believe that any amount of alcohol before driving is against the law. That's what the commercials are saying, right? Zero tolerance. Sober or slammer. You drink and drive, you lose. But that is not what the law is, nor is that what the law should be - the law says that DUI is impairment by alcohol or drugs to the extent that it affects your ability to drive, and only when you blow greater than a .08 on the datamaster is the jury instructed that there may be a rebuttable inference of intoxication.

When trying a DUI, the first thing that I tell the jury in opening statement is that it is not against the law to drink and then drive. I ask for an instruction from the judge that zero tolerance is not the law in South Carolina, and given the saturation of the "zero tolerance" advertising it is a necessary instruction to attempt to dispel the jury's confusion on the issue. I hope that operation sober or slammer does some good for someone somewhere in the state, but the violation of Fourth Amendment rights at roadblocks and the arrests of persons who were not legally drunk is too high a price to pay.

Last week, Gerry Spence posted Winning - the simple secret, in which he says the most important thing that we have when talking to jurors is credibility: "So how can you win your next case? How can you win your next argument—in the courtroom or at home? How real and how credible can you be?"

Soon after, A Public Defender offered us The secret to winning: Gideon-style, which consists of:

Gideon’s secret to winning: Knowing your rear from your face, or, preparation.

I mean, really, that’s your only shot. Know the State’s case inside out. Know the allegations, the witnesses, the police reports, the statute and your theory of defense. You have to prepare, prepare, prepare.

Gideon then tagged a few other bloggers to offer our advice on the topic as well, and my response is here. This turned out to be an interesting project, and I am glad for it - I have learned a thing or two from our fellow bloggers and Hostis Civitas is right, everyone has their own style and methods.

Houston criminal defense lawyer Mark Bennett tells us the secret to winning - Bennett style: solve the puzzle with which the case presents you, which requires inspiration:

prepare just enough, then stop. Don’t just do something, sit there. Play with the kids. Just play. Read a book — something non-law-related. Write a poem. Take the dog for a walk. Get some exercise. Sleep.

Public defender Hostis Civitas says that "rather than discovering our story we are busy retelling their story;" we need to throw out the government's story and develop our client's story - an excellent point considering how often attorneys end up relying on what is written in the incident reports. He also points out that what works for me may not work for you and may not work for anyone else - everyone has their own method and their own style.

AHCL gives us a prosecutor's perspective, with excellent points for prosecutor or defense attorney: 1) Be yourself; 2) Get off the high horse; 3) Know the facts of the case like you were there when it happened; 4) Issue spot, issue spot, issue spot; 5) Meet with every last witness you are going to put on the stand; 6) Get yourself some theme music; 7) Don't be afraid to show a sense of humor during lighter moments; 8) Always be the "Good Guy;" 9) Be passionate; and 10) Be right.

New York defense lawyer Scott Greenfield's advice is "to see each case, each defendant, as unique. Approach it as if it's the only case you've ever done, the only defendant you've ever represented, and figure out what makes it different from all the rest."

Maryland defense attorney Jon Katz says that

. . . secrets are not really secret, but are readily available information, open things, but things that tend to pass unnoticed . . .

In the same vein, there probably are not any secrets to winning trials, but there are skill sets to learn, revelations to find, new levels of caring to attain for clients, more fearlessness to gain, more internal and external journeys to take, more joy to experience on the path, more ego to shed, more willingness to collaborate with other lawyers and non-lawyers in seeking the path to victory, and more of the tapping of the joy, fearlessness, and giggling of the child within.

My trio on this path is the overlapping lessons and practices from the Trial Lawyers College, t'ai chi, and the peace and harmony experienced even when walking into the eye of the storm as exemplified by Jun Yasuda.

Omaha criminal defense lawyer David Terrell remembers Don Fiedler's performances at NCDC, and his lesson which was:

Work hard, behind the scenes, until the performance on the stage looks effortless and perfectly summarizes your client’s story for the jury.

Although I am glad for all of the responses to Gideon's call, I'll leave you again with Spence's most recent posts, as he did after all write the book on winning your case: you must not give your opponent permission to beat you, and attempting to frighten or anger your adversaries will only result in motivating them, making your case more difficult.

Thanks to all.

73 year old television evangelist evangelist Dr. William Crews was arrested and charged with driving under the influence this week in Dorchester County. He has maintained that he was not too drunk to drive and says he will fight the charge.

This is another example of how anyone can be charged with DUI - there but for the grace of God go I. The comments to the News 7 article I linked to also illustrates the guilty until proven innocent mentality when it comes to DUI's, throwing the presumption of innocence out of the window:

I don’t know anyone who would be dim-witted enough to believe his story. If you are charged with a DUI, there is obviously enough evidence to charge you. If you have not been given a field sobriety test, then they would have at least done a blow test or something. Sounds like he is not ready to give up his ministry as a Southern Baptist Pastor.

Obviously, if you are charged with a crime, there must be sufficient evidence. We've been doing it wrong all this time - who needs judges or juries when we've got police?

A Wichita Falls, Texas man was sentenced to life in prison following his 10th DUI conviction. Last year the Mississippi Supreme Court upheld a life sentence for a DUI 3rd offense.

From Lawrence Taylor's DUI Blog:

Well, you say, he may be an alcoholic, but he didn't have to choose to drive. But that’s a Catch-22, isn’t it? I mean, part of the legal definition of driving while intoxicated is impaired judgment – the inability to make rational and intelligent choices.

From Greenville Online:

An Anderson County magistrate suspended in June after he was charged with grabbing a woman's rear end in a Williamston bar has been charged with DUI, according to a spokesman for the state Department of Public Safety.

I don't know this particular magistrate, but he is entitled to the same presumption of innocence that every other accused person is, and rather than pointing the finger and saying "aha," I believe this is an another example of how anyone can be charged with DUI. Legislators, prosecutors, and judges should consider that "there but for the grace of God go I."

The Aiken Standard yesterday reported that an Aiken man, represented by Theo Williams, was found not guilty of criminal sexual conduct on a minor and assault and battery of a high and aggravated nature. There was no forensic evidence, the alleged victim could not identify the defendant, there was semen discovered but it did not match the defendant, the defendant cooperated with the police and even consented to a search of his vehicle and consented to give a DNA sample.

So, why did prosecutors bring this case? The very real danger in any case that involves a crime against a child, murder, or rape is that the jury will convict by virtue of the fact that the prosecutors and police say the person is guilty. Jurors want to believe that cops are honest and that prosecutors would not bring a case if there was not a good reason, and they do not want to risk releasing a dangerous person that will kill or rape again. This is how innocent persons get convicted.

The media always reports guilty verdicts, they report when arrests are made, and they report whatever damning evidence is released pre-trial by the police or prosecution. But rarely do they publish an article reporting a not guilty verdict. It would be refreshing to see the media reporting and increasing public awareness on what makes our system of justice the best in the world, reporting on the presumption of innocence, reporting on how we are all protected by the reasonable doubt standard, and reporting, like the Aiken Standard, when an accused person is found not guilty.

Sometimes, there is the rare moment when we feel that justice is done in the courtroom, we stand in awe of humanity and we understand why we do this job.

Oftentimes, what I see in the courtroom is people trying to hurt other people, intentionally or unintentionally, prosecutors, judges, cops, victims, and attorneys, and the damage done in the courtroom is at least as equal to if not greater than the damage done on the streets.

Last month, I posted about Texas lawyer Keith Gore, whose office and files were searched by the police for evidence in his client's murder case. The prosecutors wanted evidence which was in Gore's possession, and a hearing had been scheduled to determine whether Gore was required to turn it over or whether it was privileged.

Instead of waiting for the hearing, the prosecution sought and received a search warrant from a different judge, searched Gore's office, and seized the materials. At a hearing last week, on motions by the defense to recuse the judge who had signed the search warrant and motions by the prosecutor to recuse the defense attorney, 50 attorneys packed the courtroom in support of Gore, including the president of the Texas Criminal Defense Lawyer's Association which has filed an amicus brief in the case.

"It's a tremendous concern regarding the government's ability to raid a lawyer's office," Rick Hagen, a partner in Denton's Jackson & Hagen who is president of the Texas Criminal Defense Lawyers Association, says in an interview. Hagen attended the recusal motion hearing Aug. 5 and filed an amicus brief on behalf of TCDLA with the 401st District Court in Texas v. Bell, arguing that the search violated the Fourth and 14th Amendments of the U.S. Constitution. "And you've got to understand this is not a case where Keith Gore is accused of any wrongdoing whatsoever."

From A Public Defender - California has passed a bill that will

ban use of uncorroborated testimony from jailhouse informants that is used to convict criminal defendants.

The state Assembly on Tuesday approved a bill by Sen. Gloria Romero, a Los Angeles Democrat, that would prohibit use of the unsupported testimony. The Senate passed the measure in May.

Assemblyman Mark Leno, D-San Francisco, said jailhouse informants frequently have an incentive to lie. He said Romero's bill would help prevent wrongful convictions.

Testimony from jailhouse snitches, bought and paid for by the prosecution with freedom, can easily result in wrongful convictions. As I've said before, "Anytime the state needs to shore up their case, they can go down to the jail and round up some people that are willing to testify. In any high profile case, people with a) charges pending against them and b) information about the case, come out of the woodwork."

Uncorroborated testimony from individuals who are testifying in exchange for deals from the prosecutor should never be admissible in a criminal trial. Now, I wonder if California prosecutors will be able to avoid the new law by buying testimony from two or more snitches (which they often do anyway), thereby providing the necessary corroboration?

Judge Larry Hyman ordered a mistrial yesterday in a child sexual abuse case after an assistant solicitor told the jury that the defendant had "failed" a polygraph. For the layperson, due to the unreliability of polygraphs their results are never admissible in court, and this is not an obscure point of law that lawyers are usually confused about.

"The case will be tried again later this year, said [the Assistant Solicitor]." Well, unless a retrial is barred by double jeopardy as a result of the state's attorney causing the mistrial. The prosecutor went on to explain to the judge "that she could inquire about the conversation because Williams took the test voluntarily before he was arrested in the case," and informed the judge that there was case law, although she was not able to produce it.

Many assistant solicitors in this county begin by prosecuting in the magistrate court. When they get some experience trying cases, they then move up to General Sessions where they take on bigger cases. I'm going to go out on a limb here and say that, while in the magistrate court, assistant solicitors learn bad habits. For example, they learn that many times some magistrates will rule in their favor no matter what their argument is, and so they will make ridiculous arguments in trial that have no basis in law.

This particular attorney recently moved up from the magistrate court division - possibly she did not realize that this does not work in the circuit court, where the law is really the law and the judges are also attorneys.

Excerpts from the May 15 video of Greenville county sheriff's deputy Brian Tollison beating a teenaged suspect were released last week. The video shows a second deputy hold 18-year-old Jeremy Rucker down while Tollison punches him 13 times; other deputies then taser and kick him.

Tollison has been charged with assault and battery of a high and aggravated nature, and Rucker's attorney has filed a complaint with the Department of Justice. Rucker was charged with resisting arrest and drug possession. The driver of the truck ran away after the truck was pulled over, then the officers decided to take Rucker into custody, which apparently involved beating him senseless.

No mention of what the officer's probable cause for arresting Rucker was - sitting in a truck and talking on a cell phone, regardless of what the driver has done, is not probable cause for arrest. If there was no valid arrest, there was no resisting arrest. The officers said that after it was all over, they found drugs on Rucker.

I have to ask, if Rucker had been white, would this have happened differently? Maybe or maybe not, but white officers beating black suspects, using racial slurs, running black suspects down with their patrol cars, and racial profiling on our interstates, do nothing for our state's image.

And what about the other officers that held him down, kicked him and tasered him? Ironically, if this was three young black males instead of three uniformed officers, in South Carolina they may well be charged with second degree lynching:

Lynching is defined as a violent act that is inflicted on another person by a mob. A mob is described as the assembly of two or more people, without authority or color of law, with premeditated purpose and premeditated intent of committing an act of violence upon another person. First degree lynching is when death results, and carries a potential sentence of five to forty years or the death penalty. Second degree lynching is when death does not result, and carries a potential penalty of three to twenty years.

Two of the officers involved in the May 26th beating of a handcuffed subject, Officers Louis Schwartz and Jason Zangara, were fired today. The third officer, Kurt Graham, a rookie cop on probation still, resigned on July 22.

"The West Palm Beach Police Department has a zero tolerance policy for use of excessive force," said city spokesman Chase Scott in a statement released this afternoon. "Following an internal investigation which the department launched itself without a complaint from the robbery suspect, Chief Delsa Bush substantiated that the incident on May 26th, 2008 was a violation of policy and the involved officers have all either resigned or have been served with notices of termination as of this date."

The suspect/victim had just stolen pain pills from a pharmacy and threatened an officer with pepper spray. After he was cuffed and laying on his stomach on the ground, the officers punched and kicked him, then after he was stood up one officer repeatedly punched him in the face. I wonder how long it will be before one or more of the officers is hired by another agency, and why these cops aren't being prosecuted for their crime.

There is video on the Palm Beach Post's website, and it has found its way to Youtube as well:

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution.”

- Thomas Jefferson

Via Jonathan Turley: A federal judge in Boston removed a juror, Thomas R. Eddlem, from a cocaine trafficking trial after receiving several notes from the jury indicating that Eddlem was questioning the constitutionality of a federal prohibition on cocaine possession.

Given that it took the 18th Amendment of the US Constitution in 1919 to pave the way for Prohibition, a juror wanted to know from the judge, where "is the constitutional grant of authority to ban mere possession of cocaine today?"

A valid question and possibly a valid argument, but wrong time and wrong place, according to U.S. District Court Judge William G. Young. The judge, concerned that he was witnessing a case of jury nullification, removed the juror from the case and replaced him, after which the newly constituted jury dutifuly convicted the defendant.

Eddlem, on the other hand, says that

he opposes jury nullification and that it was the judge who subverted the legal system. Eddlem, a self-described right-winger and research director from 1987 to 2000 for the John Birch Society in Appleton, Wis., said Young distorted the plain language of the Constitution to justify a prosecution that had no basis in federal law.

"I was like Alice talking to Humpty Dumpty in 'Through the Looking Glass,' " he said, referring to his confrontation with the judge.

Lawyers cannot argue jury nullification, and, in today's courts, judges regularly instruct jurors that their job is to judge only the facts. Interpretation of the law (and constitution) is reserved to the judge, and if the judge makes an error there is a higher court that can review the case and correct those mistakes.

I agree that the constitutionality of federal drug statutes is not something to be debated in the jury room. But jury nullification remains a right that jurors have. Lawyers cannot utter the words or argue for it, but does a judge cross a line when he removes a juror from a case for exercising his right to disagree with a law? Does removal of a juror who the judge realizes is about to vote not guilty deprive the defendant of his Sixth Amendment right to a trial by jury?

There is no one secret to winning your case. I devour all information from all persons wiser than me who are willing to share their winning trial strategies, and I believe each person must adapt their knowledge and their own individual style to each case. I am a work in progress and probably will always be, but here is some of what I have picked up thus far:

1) Learn from others who know more than you do. Learn cross examination skills from Pozner and Dodd. Learn DUI defense from Larry Taylor. Learn to be real from Gerry Spence. Watch other lawyers try cases every chance you get (if only to see how not to do it, sometimes).

2) Experience > all. Try cases. You don't have to win every case, and unless you are able to cherry-pick your cases and have enormous amounts of time and resources you won't win every case. If you're not losing cases, you're not trying cases.

3) Know the law. In South Carolina we have a thing called E-blast, which is a mass email that contains the advance sheets. I read every criminal decision as they are released, and try to blog about the important ones, because it helps to solidify them in my mind. I read and re-read the statutes clients are charged with every time I open a new case.

4) As Gideon says, preparation is key to everything that you do in the courtroom. If you worked nights and weekends preparing your case for trial and covering every base, odds are you are miles ahead of the other guy. If it comes down to who the jury trusts at the end of the day, they may be more likely to trust the attorney who knew the case inside out and conveyed confidence throughout the trial. If it comes down to who the judge trusts, he or she may look to the attorney who knew the case law and was not making it up as he went.

5) It is best to win without fighting. Preparation and investigation long before trial can often help to persuade the prosecutor to dismiss your case, or to make you an offer you cannot refuse. If your prosecutor is trustworthy, put your evidence together early and lay it out for them; give them a reason to not take your case to trial.

6) We are storytellers. Improve your ability to tell your clients' stories, and do so every chance you get, to the prosecutor, to the judge, and ultimately to the jury. Always have a theory that you present to the jury, because if you do not the jury has no choice but to absorb the prosecutor's theory.

7) Tell your client's story through the prosecution's witnesses. Facts that support your theory have a much greater impact when they are heard from the prosecution's witness and not your own. Whenever possible, prepare cross-examinations first and work outwards from them.

8) Most importantly, care about your client and what happens to them. If the man sitting next to me is "my friend, John," as opposed to "the defendant," the jury will be less likely to convict them, and the judge will be less likely to hammer them at sentencing. Let the jury see that you believe in your client and your case, and possibly they will believe in your client as well.

I am interested in reading others' opinions on the topic as well, and at Gideon's request I'll link to three bloggers I would like to hear from - the paid defense attorney, the public defender, and why not a prosecutor as well:

Underdog John Katz;
Hostis Civitas; and
Western Justice.

I love this story from last year, where a Michigan police officer took some pot he had confiscated, baked brownies, ate them with his wife, and then called 911 to report an overdose. Please note that it is impossible to overdose on marijuana:

CNN reports on the use of Sequoia National Forest by Mexican drug cartels to grow marijuana plants, and provide an interview with our fearless drug czar on scene. Apparently the cartels are using illegal immigrants to run the growing operations, in out of the way areas of the national forest.

As Dallas Criminal Defense Lawyer Robert Guest and the NORML Blog point out, this is a disgusting example of government propaganda, hitting two panic buttons at once - 1) large quantities of that deadly marijuana being grown 2) by illegal immigrants!

If marijuana was legal, the drug cartels would not have immigrants parked in our national forests growing the stuff - as Robert Guest says, "last time I checked Mexican drug cartels were not using illegal immigrants to grow tobacco, or run moonshine stills. If you are really want to end these drug cartel pot farms in national parks, legalize pot."

The inane prohibition propaganda continues in the war on (people) drugs, with the nation's drug czar claiming that marijuana is a deadly addictive substance, and laying blame on Hollywood for glamorizing pot. The facts are there for everyone to see, but most people will continue to allow the government to feed these lies to them, without researching it themselves.

Is it possible that most people would sign up to ban anything, if it was described the way the government describes pot? Robert Guest points us to a video that illustrates how easy it is to get people to sign on when fear-based propaganda is used as a motivator:

The 180 year old historic courthouse in Lancaster, S.C. was burned down earlier this week.

An arsonist accomplished Monday what William T. Sherman couldn't in his notorious "march to the sea" -- burning down the 180-year-old Lancaster County Courthouse.

We have some beautiful historic courthouses throughout South Carolina, and this was truly a loss for Lancaster and the state. The courthouse was built in 1828, and was designed by South Carolina architect Robert Mills, who also designed the Washington Monument. An earlier courthouse that stood on the same spot was reported to be the site of the last witchcraft trial held in the United States in 1813 (there's a claim to fame).

But that's not the end of the story - Thursday morning the job was finished when the Lancaster Solicitor's office was destroyed in a second fire. There are no suspects as of yet, but there was a murder trial set to begin next week at the courthouse.

Lancaster's police captain offers some brilliant advice to residents on how to spot suspects:

"experience shows the suspect will likely follow the investigation closely in media reports and in conversations. He may make comments or offer reasons why he believes the fires were started such as, 'What do they expect? They didn't have any alarm system'; 'It was probably just some kids'; 'The court here is corrupt, biased, etc.'; 'No one was hurt,'" Howard said.

If you see anyone watching this story on the news, or talking about it, please report them immediately.

All jokes aside, my condolences go out to the residents of Lancaster and to their solicitor. This was truly a tragedy for this town.

"I swore that I would do whatever it takes to make sure my clients received some sense of justice..."

Public defender Hostis Civitas has found new inspiration after attending the Trial Lawyer's College, watching with new eyes as defendants pleading guilty are processed one after the other through "the machine," some guilty, some not guilty, some shades of guilty that did not warrant the harsh punishment they received, all branded as criminals and felons for the rest of their lives, some standing by paid attorneys that they trusted with their lives.

There are times when judges and prosecutors show a decided lack of compassion when passing judgment on individuals they don't know or understand, but many of us have come to expect a lack of compassion on their part. When the prosecutor or the judge shows compassion and insight, it is a breath of fresh air and never goes unappreciated. But when a client feels that they cannot rely on their defense attorney, their lifeline to freedom, something is terribly wrong.

I have met many attorneys who care deeply for their clients and seek not only justice, but the best possible outcomes for their clients. They work long hours, they return their client's calls, they investigate their cases, they listen to their clients, and they are not afraid to try cases. I have also met many attorneys that have no business in any criminal courtroom, standing without empathy next to a person they do not see, whose freedom and future is in their hands.

Criminal defense is easy money if an attorney takes on many cases and pleads every client. It is the same as the plaintiff's attorney who takes on many cases and settles all of their cases for low amounts. Each case may generate a smaller fee, but considerably less time has to be spent on each case resulting in a higher overall income. But there is no justice in this "business model," and these clients would probably do just as well without an attorney.

A local attorney told me recently that most of his clients' cases resulted in pleas and that he felt that was how it should be. He said that he sees his job as that of a broker, acting as a go-between for his client and the government, and achieving the best plea deal possible. I hope that he tells his clients this up front - I don't believe my clients retain me to be a broker in most instances. I believe they retain me because they have seen or heard something that impressed them and they expect me to obtain the best results possible in their case.

"The machine" has negative connotations, but the criminal justice system (to some extent) is a necessary part of society. If defense attorneys do their part in challenging their clients' cases, if prosecutors do their part in the pursuit of justice as opposed to only seeking convictions, and if judges remain truly impartial when ruling from the bench, the machine might work as intended.

More fun and games with the NYPD and NY bicyclists in the video below, from Bliptv and the Agitator. What is Critical Mass? According to Wikipedia,

Critical Mass is a bicycling event typically held on the last Friday of every month in cities around the world. While the ride was originally founded with the idea of drawing attention to how unfriendly the city was to bicyclists,[1] the leaderless structure of Critical Mass makes it impossible to assign it any one specific goal. In fact, the purpose of Critical Mass is not formalized beyond the direct action of meeting at a set location and time and traveling as a group through city or town streets.

Bicycling in NYC is now a contact sport. 2 points per bicyclist knocked down, 4 if the nearby videographer is also arrested. Bonus points for creativity in writing your arrest report.

An article today in the Boston Globe titled How Magicians Control Your Mind discusses what we can learn about perception and the workings of the mind by looking at how magicians can short-circuit our perceptual system to make us see things that are not there or miss things that are there.

It is difficult to explain to a jury how a person can convincingly and confidently testify as to what they saw, and yet be wrong. The problems with eyewitness identification are far enough from the ordinary knowledge and experience of jurors that it requires an expert to adequately explain it. Scientific research has demonstrated that we do not always see what is actually there; rather we see some of what is there and our minds manufacture the rest, based on our prior experiences and what our mind expects to see. For example,

Daniel Simons, a psychologist at the University of Illinois, did a series of now-famous studies in the late 1990s that showed the extent of this cognitive blindness. In one, people were approached by someone asking them for directions, only to have, in the middle of the conversation, that person replaced by another. Only half noticed the change.

Magic may be a way to illustrate the inherent problems of eyewitness identifications in a way that jurors can understand. Everyone has seen a magician perform tricks that could not be explained, and wondered "how did he do that?" In the same way that an eyewitness may believe he saw the person that he expected to see, or the eyewitness may believe he saw that person that a detective has shown him after the incident, magicians use the gaps in human perception to make us see and believe things that were not there. For example,

The vanishing ball illusion is one of the most basic tricks a magician can learn: a ball is thrown repeatedly into the air and caught. Then, on the final throw, it disappears in midair. In fact, the magician has merely mimed the last throw, following the ball's imagined upward trajectory with his eyes while keeping it hidden in his hand.

Because the mind expects to see the ball rising in the air, and the magician's eye is following the trajectory of the ball, our mind sees a ball rising in the air. After the trick is done, we know that something is not right, because the ball has disappeared; however, when a person's mind similarly fills in the gaps in perception following an eyewitness event, the belief that a particular person or thing was seen is reinforced by law enforcement, a photo array, the subsequent appearance of the person seen in the photo in the courtroom (sitting at the defense table), and the witness then testifies convincingly in his belief that he saw what his mind tells him he saw.

I have just finished reading The Writer's Journey: Mythic Structure for Writers, by Christopher Vogler, which gives a fascinating breakdown of the elements of effective storytelling. Although the book is geared towards screenwriters, novelists, and storytellers, I would say it should be required reading for any trial attorney as well. The single most important thing that we can do for our clients is to be effective in telling their story, whether it is to the prosecutor, the judge, or especially to the jury, and this book gives some powerful insight into what makes for an effective presentation.

The basic premise is that "all stories consist of a few common structural elements found universally in myths, fairy tales, dreams, and movies. They are known collectively as the Hero's Journey." The author draws on the work of mythologist Joseph Campbell (The Hero of a Thousand Faces) and psychologist Carl Jung, finding that repeating characters or energies called archetypes appear throughout our dreams and throughout the myths and stories of cultures across the world, that these patterns spring from a collective unconscious of the human race, and that when used effectively they can tap into human emotion in a profound way.

Vogler's focus is on the movie industry, and he illustrates his framework with various films of every genre, from Hitchcock to Disney to Star Wars. Over the ages, every story that is told is in essence variations of the same story, told over and again. Although all of the details in this book cannot be incorporated into every client's case, I think that understanding this framework will be invaluable in helping to convey each client's story to the jury.

Apart from the usefulness in trial practice, this topic is fascinating. Although my reading list grows longer every day, I intend to come back to this and follow up with Joseph Campbell's book and Carl Jung's ideas.

In Miller v. S.C., the S.C. Supreme Court granted post conviction relief based on trial counsel's failure to effectively pursue Miller's claim of third party guilt. Although it was not a part of the Court's holding, Miller's attorney also failed to retain an expert on eyewitness identification which may have been a separate ground for PCR (if Miller's PCR attorney had not also failed to retain an eyewitness identification expert for the PCR hearing).

This case is a perfect example of what is wrong with reliance on eyewitness identifications and coerced testimony by snitches. Miller was charged with armed robbery, based on his girlfriend's testimony and a single eyewitness. The girlfriend's car was used in the robbery, and when police questioned the girlfriend she gave them information that implicated Miller as the robber. The police then showed a photo array which included Miller's photo to the victim, who identified Miller as the robber.

Open and shut, right? Here are the problems in the case:

- the girlfriend had three armed robberies pending already
- her co-defendants in those three armed robberies was Miller's nephew
- the girlfriend had tried to blame Miller in one of those armed robberies, until police discovered it was impossible because Miller was in jail at the time of the robbery
- the girlfriend's car was used in all four robberies
- the description initially given by the victim matched Miller's nephew, including his facial hair
- the police did not include a photo of Miller's nephew in the photo array shown to the victim
- in exchange for testifying against Miller, the girlfriend was offered a plea deal to accessory instead of to armed robbery (armed robbery in state court carries ten - thirty years)

Although the trial judge allowed Miller's attorney the opportunity to introduce evidence of third-party guilt, Miller's attorney failed to effectively cross-examine the girlfriend on the use of the same car and the similarities of the gun used in the prior three robberies committed by the girlfriend and Miller's nephew. Miller did not take the stand and no witnesses were called in his defense. Given that third party guilt and an eyewitness identification were Miller's only defenses at trial, Miller's attorney should have obtained an expert in eyewitness identification to explain its pitfalls to the jury.

I believe that, absent a compelling reason, the defendant has to take the stand and tell the jury his story. It does not matter that the law says the jury can't hold a defendant's silence against him and it does not matter how many times the judge cautions the jury not to take it into consideration - the jury will hold it against him. They will think: if he didn't have something to hide, he would have taken the stand.

Whenever possible, other witnesses have to be found to corroborate the defendant's testimony or to counter the state's witnesses. Once the defendant has taken the stand and testified, at that point you have lost last closing argument and there is no reason not to call as many additional witnesses as you can. If you can get a jury to understand reasonable doubt and the fact that the burden of proof is on the government that is well and good, but you have to assume they will not hold the government to their burden and they often don't. They want to hear why your client is not guilty.

In each PCR that I have handled, the recurring issue that stood out when reading the transcripts is that the trial attorney did not give the jury a theory of the case. This is not grounds for PCR, although maybe it should be. If the defense lawyer does not give the jury the defendant's theory of the case and tell the defendant's story, the jury has no framework to operate from except the prosecution's theory of the case.

In this case the prosecution failed, by using unreliable testimony coerced with the promise of freedom, and by not recognizing or not caring about the problems with the eyewitness identification. The defendant's own attorney failed, by not presenting Miller's defenses to the jury. The PCR Court failed, by not correcting the potential injustice when it came before it. But the South Carolina Supreme Court got it right, and Miller now has the opportunity to have a jury hear his defenses and make an informed decision on his guilt or innocence.

Former Greenwood County Magistrate Lisa Cain was found not guilty of misconduct in office this week. Cain was accused of knowing that an employee was stealing money and not reporting the theft.

The employee, who stole $23,000 from the magistrate's office and has been charged with embezzlement, has not been to trial yet and she testified for the government at Cain's trial. What are the odds that the thief, who works in the court system and knows how the system works, saw the opportunity to cut a deal and told the prosecutor whatever they wanted to hear?

It was more important to the prosecutor in this case to try and get a conviction against the "big fish" Lisa Cain than it was to prosecute the person who actually stole the money. Obviously, the jury disagreed.

Chief U.S. District Judge Curtis L. Collier has issued a ruling in response to Herbert Moncier's motion requesting a clarification of the judge's prior ruling, as to whether Moncier's suspension prohibits another attorney in his office from appearing on behalf of clients in Federal Court. Collier has essentially ordered that attorney David Wigler is also banned from federal practice, as long as Wigler works for Moncier.

Moncier was suspended from federal practice for zealous representation of his clients - after he was held in contempt of court for requesting to speak to a client whom a federal judge was questioning, in court with law enforcement and the prosecution present. Moncier has appealed his suspension.

Collier also ordered that Moncier is not to be present in the courtroom during proceedings in his clients' cases, accompany federal attorneys to court, sit with federal attorneys in the courthouse, or talk to any other federal attorneys about federal cases.

The NYC police officer who assaulted a bicyclist on Monday is just one more example of a lying cop busted by a videocamera. People in general want to believe that the police are honest and tell the truth. We don't want to believe that cops will lie, to help themselves or to obtain a conviction, but the truth is that cops are human like everyone else, they are not always rigorously honest, they often abuse the power that is given to them with their badge, and many cops will lie under oath and on the stand.

Officer Patrick Bogan swore in an affidavit that Christopher Long was disorderly, and that Long attacked him by running into him with his bicycle. A prosecutor filed charges against Long based on the officer's testimony. No other officers who were present and watched Officer Bogan commit a crime did anything to stop him, nor did they speak up to stop Long's prosecution. If it were not for the video taken by an observer, Long would be prosecuted for assaulting an officer - the judge would believe the officer and the jury would most likely believe the officer.

Thanks to the Smoking Gun and Simple Justice, here is the criminal complaint charging the bicyclist with assaulting an officer: