South Carolina Criminal Defense Blog

All of the time. I often have this conversation with friends, family, neighbors, or random acquaintances, and I never cease to be amazed by the perceptions that much of the general public has of our criminal justice system. Cops do not lie. If someone is charged with a crime they must be guilty. A prosecutor would not pursue a case if the defendant was not guilty. If they aren't guilty of this they must be guilty of something.

Cops lie. They are human, they cover up for their mistakes on the job, and they want to look good in court. They are trained on how to testify and look good for a jury. I have met a few police officers who were rigorously honest on the stand, and I have the utmost respect for those individuals, but there have not been many of them.

There are prosecutors who will refuse to seek a conviction if they know that their case is shaky and there is a real possibility that the defendant is not guilty of the crime. These prosecutors understand that they have a higher calling and that their ethical duty is to seek justice and not convictions. But there are also many prosecutors who will seek a conviction and ignore obvious signs that they are prosecuting the wrong person; possibly they fear for job security or fear media exposure, they have political aspirations, or perhaps they simply lack empathy and compassion, I do not know.

Everyone is guilty of something. But please, let's prosecute and convict people for the things that they actually did. "If they aren't guilty of this they must be guilty of something," coming out of a prosecutor's or police officer's mouth, makes me feel ill.

The passage of the South Carolina DNA testing bill gives me some hope that in the future we may identify more persons who have been wrongfully convicted, but its application is limited to those cases where there is DNA evidence to test, which covers only a small percentage of all cases in the system. We need to work harder to prevent wrongful convictions on the front end, by looking at what is causing them and working to change it.

We can look to the post conviction exonerations in Texas and other states around the country to see what the leading causes of wrongful convictions are: the front runners are faulty eyewitness identifications, Brady violations (the prosecutor or the police withholding evidence that would prove the defendant's innocence), and jailhouse informants.

When the state (police or prosecutor) holds back evidence that would help the defendant, in violation of Brady, the system breaks down. The jury cannot make an informed decision if they do not see all the evidence. If the state uses witness testimony that it has every reason to know is perjured, the system breaks down. When the prosecutor buys testimony with the threat of prison or the promise of freedom, that testimony is suspect. When the police feed information to a witness that fits their theory of a case, instead of searching for the truth, that witness cannot be reliable.

I have seen police and prosecutors, who usually swear by polygraphs and their reliability, ignore polygraph results when they do not fit their theory of a case. Because the courts have consistently ruled that the polygraph is unreliable, juries will never hear the results of these tests, whether it is the defendant passing a polygraph, or a state's witness failing one. And I don't complain about the inadmissibility of polygraph results, because it is a two edged sword - in cases where the defendant fails a polygraph or a state's witness passes one, the jury should also not hear the results. But what does this say about the integrity of the system, if the prosecution ignores the results during the course of an investigation only when it is convenient to them?

Extensive research has been done on eyewitness identification procedures, and information is readily available on what works and what does not work. National law enforcement organizations have made available training and information on best practices, and yet local law enforcement often continues to ignore the data. Courts are decades behind the research in what is admissible as evidence and in what instructions should be given to juries.

I believe that the prosecutor's duty to seek justice and not convictions mandates that they should not go forward when they know that the defendant cannot be guilty beyond a reasonable doubt. When a prosecutor knows that their case is full of holes and that there is a substantial likelihood that their defendant did not commit the crime, and yet they still proceed with the prosecution, they are attempting to deceive the jury and it is a perversion of justice:

Sometimes, the requirement of proof beyond a reasonable doubt is not good enough to ensure that innocent persons are not convicted. When a person is accused of murder, armed robbery, or any serious offense, it is difficult for jurors to hold the state to their burden of proof, and the defendant truly has to prove his or her innocence. In most cases, the prosecutor has quite a bit of credibility with the jury, and they want to believe that what the prosecutor is saying is true. The prosecutor would not tell them this person is guilty if it were not true, and surely the prosecutor would not put a witness on the stand that would not tell the truth?

When there is scant evidence of guilt other than a jailhouse snitch, and there is DNA evidence placing another person at the scene of the crime, do we blame the prosecutor for going forward with a case knowing that the jury may convict an innocent person? In South Carolina the Solicitor is an elected official, the media is watching, and the public demands a conviction. I can understand why prosecutors go forward with these types of cases, and rely on defense attorneys, juries, and judges to ensure that justice is done. But justice in a criminal case begins with prosecutorial discretion.

Defense lawyers are on the front lines in preventing wrongful convictions. When police lie, we have to find a way to expose it to the court and to the jury. When prosecutors insist on going forward with what should be insufficient evidence, or with suspect witnesses, we have to find a way to expose it to the court and to the jury. We have to educate the court and the jury on reliable eyewitness identification procedures, and make sure that jurors understand just how precious our right to the presumption of innocence and to proof beyond any reasonable doubt is to our criminal justice system.

The ABA Journal has a story on how it is getting harder and harder for recent law school grads to find jobs, and the jobs that they do find are not paying what they had hoped. "The nearly 44,000 law students set to graduate in 2009 will have at an average of $73,000 in loan debt and face a grim hiring market."

It's not just a result of a down economy, although certainly that contributes, but is likely also a product of more and more law schools turning out more and more lawyers. South Carolina has only two law schools, and until recently had one law school, but the job search for recent graduates is as dire here as it is anywhere. Nationwide, there is no doubt that we have a surplus of persons with law degrees who would like to be attorneys, and the bottom line is there are not enough attorney jobs to go around.

I considered why we do not regulate the number of attorneys entering the legal profession in the same way as physicians, keeping up the demand for lawyers (and thereby the compensation as well). Possibly, each state could regulate the number of persons admitted to practice as attorneys, but I do not think there should ever be a limit on the number of persons admitted to study law. I believe that, given the motive and opportunity, every person should have a legal education. It is invaluable not just for the practice of law, but in any business-oriented job and for life in general.

By the way, can you imagine a state and federal government where every employee is required to actually understand what government is and why we have it? Where legislators are required to learn what law is before they start drafting them? Or a president who is actually qualified to interpret and uphold the Constitution?

At any rate, I believe that less and less people who graduate from law school in this day and age are going to be practicing attorneys. Banks, stockbrokers, law enforcement, all kinds of other businesses need/ look for persons with a legal education and there are high paying jobs available, even if it is not the "dream job" that the person thought they would land with some big firm. (Not my idea of a dream job, by the way. From where I sit, corporate lawyers look pretty damn miserable, extra money or no).

I wish all the recent and upcoming graduates the best in their job searches. And, you're welcome to keep sending resumes for my file, but I am not hiring right now either.

Commentary on NPR by Professor and former public defender Peter Keane in California. Audio is available on NPR's site. An excerpt:

I know that most people have great difficulty understanding this. Indeed, many are horrified by it. But reflect for a moment: There is one key mechanism in our society that protects and maintains all of our freedoms. It is that we go by the rule that whenever someone does something that we condemn, no matter what it is, he still gets one person to speak up for him.

Take away this protection and all our other democratic rights, which are so carefully woven into the constitutional design of our republic, become meaningless. Without resistance from lawyers who represent people being prosecuted, all freedom is ultimately lost, because it is the natural human tendency of those who wield power to abuse those without it.

I am a law professor now. I teach my students to be proud to defend anyone, no matter what they may have done. I want them to stand up for the world’s Saddam Husseins and Osama bin Ladens, for America’s accused rapists and murderers and thieves. I want my students to fight for them—ethically, but with all the fierce determination, talent, and skill that they have.

One person on your side, no matter what you’ve done: That’s what keeps us a free people. That’s what I believe.

The South Carolina Senate and the House of Representatives overrode the Governor's veto of the DNA testing bill today. It's a mixed blessing - the reason the Governor vetoed the bill was because at the last minute the legislature combined the bill providing for preservation of DNA evidence and post-conviction access to DNA evidence for testing, with a bill allowing law enforcement to take DNA samples from persons who are arrested for felonies and some misdemeanors, regardless of whether they are convicted.

We needed the post-conviction testing bill, but at what price? Why did the legislature feel the need to combine these two bills? The provision allowing for the taking of DNA samples from persons who have not been convicted goes too far, and is an unreasonable invasion of privacy.

"We need to get government out of the lives of people," Hart said. "This bill grows government."

And, Hart said, part of the legislation opens the door to police asking for samples even when they don't take people into custody. "Something doesn't match up in this bill, ladies and gentlemen," Hart said.

"It's a disappointment," Sanford spokesman Joel Sawyer said. "This was a bridge too far."

Police can already get DNA samples from suspects if they show probable cause.

Hart said that shows authorities don't want to use the tools they already have. "We don't want to have to give a judge a reason why we want to collect the DNA of this person," Hart said.

Sanford and the American Civil Liberties Union have complained, too, that the legislation will leave DNA information in government databases when people aren't convicted.

While the new law allows the destruction of the information, people must ask for it, and could be forced to pay for it, Hart said. Meanwhile, the sample itself would be kept and there is no requirement to destroy DNA data kept in a federal database.

The post-conviction testing bill, on the other hand, provides a much-needed resource for the wrongfully convicted to prove their innocence, that has never been available in this state. Prosecutorial misconduct, Brady violations, perjured testimony by jailhouse snitches, and eyewitness identification errors happen everywhere, including in South Carolina, and are getting attention across the country due to DNA exonerations, which allow us to go back and ask, "what went wrong?" so that we can hopefully guard against the same mistakes in the future.

So far, three lawsuits have been filed asking for declaratory judgments that Myrtle Beach's new ordinances aimed at bikers are unconstitutional, and asking for injunctions against their enforcement. The first was filed in state court on behalf of two local residents and motorcyclists, challenging the helmet and noise ordinances as exceeding the requirements of state helmet and noise laws.

Husband and wife William and Carol O'Day of Myrtle Beach claim in their lawsuit that mandating all motorcyclists to wear helmets and protective eyewear conflicts with state law, which requires only those under age 21 wear them. It also claims specifying that mufflers be no louder than 87 decibels while idling exceeds state law, which says, more generally, that mufflers must prevent excessive noise and annoying smoke.

The rules require the O'Days to ``purchase and use equipment not mandated by state law in order to enjoy the recreational use of their Kawasaki motorcycle within the city limits,'' reads the lawsuit, filed Monday.

The second suit was filed in federal court on behalf of local business owners:

Coe said she intends to file her lawsuit Monday morning in federal court in Florence and ask a judge to issue a temporary restraining order to prevent enforcement of the city's noise-ordinance amendment, the nui- sance-law amendment and the new ordinance that restricts people from using Myrtle Beach as the focus when advertising unpermitted events such as the bike rallies.

"It's a First Amendment issue," Coe said Friday. "People are afraid to speak, to advertise or hold events for fear they will be charged with crimes."

Myrtle Beach Harley Davidson has apparently filed a third suit in federal court as well. Not all residents are against the bike rallys, and many businesses recognize the huge economic impact that the rallys have on the Myrtle Beach area.

Don Emery, owner of The Dog House Bar & Grill, says he doesn't understand why the city wants to damage rallies that bring a lot of money into town. Emery and other Myrtle Beach business owners filed a lawsuit against the city calling three ordinances against noise and nuisance unconstitutional.

"It's perception that the city doesn't want bikers," says Emery. "That's just not true. The city council may not want the bikers, but the businesses do, the employers do, and we're happy to have them here."

I've heard some people say in protest of the new ordinances, "I just won't come to Myrtle Beach, I won't spend my money there." Please - if this is what you are thinking then you are giving city council exactly what they wanted. You lose. They win. If these ordinances piss you off, come to Myrtle Beach loud as you want and do not let them push an entire group of people out and destroy a Myrtle Beach tradition with these types of tactics. The city knew when it passed these ordinances that they were not constitutional and there were going to be problems.

Mike Wright, from Maryland, says he thinks the new laws should prompt every biker in the country to head to Myrtle Beach.

"Every biker. And bring their helmets, and obey their laws, and crush this place. Crush it. Just to make a point. You're not going to mess with our right to lawfully have a good time."

The Courts will have the final word, but these laws are full of issues that were foreseeable. Any local ordinance prohibiting conduct that is not prohibited under state law is unconstitutional. Commercial speech is protected speech under the First Amendment. And the city cannot deny that its intent was to target the May bike rallys, as this has been their stated purpose from the beginning and they have not tried to hide it.

Two new laws signed by President Bush on Monday require internet companies to report child pornography, requires sex offenders to provide all of their internet identifiers such as email addresses to the National Registry, and requires the attorney general to give the offender's information to social-networking websites.

Child predators will be easier to track online because of two new laws President Bush signed Monday.

The Protect Our Children Act--which includes provisions introduced by Sens. Joe Biden (D-Del.), Hillary Clinton (D-N.Y.), and John McCain, (R-Ariz.)--sets requirements for Internet companies to report incidences of child pornography. It also authorizes more than $320 million for the Justice Department over the next five years for, among other things, the Internet Crimes Against Children Task Force.

The president on Monday also signed the Keeping the Internet Devoid of Sexual Predators Act, which requires a sex offender to provide the National Sex Offender Registry with all of his Internet identifiers, such as e-mail addresses.

While the KIDS Act does not permit sex offenders' Internet identifiers to be made public, it does require the attorney general to share the information with social-networking Web sites, so the sites can compare the identifying information with that of their respective users. The bill was sponsored by Chuck Schumer (D-N.Y.) in the Senate and Earl Pomeroy (D-N.D.) in the House.

This law is substantially similar to a provision in Utah that was declared unconstitutional by a federal court in September 2008 (The first page only of the Order is reproduced below):

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH NORTHERN DIVISION JOHN DOE, Plaintiff, ORDER and MEMORANDUM DECISION vs. MARK SHURTLEFF, Office of the Attorney General for the State of Utah, in his Official Capacity, et al., Case No. 1:08-CV-64 TC Defendants.

This case involves a constitutional challenge to a Utah state statute that has recently taken effect. The relevant part of that statute requires sex offenders in Utah to provide Utah's sec offender registry with all of their internet identifiers and the websites on which they use those identifiers. This action was brought by a Utah resident convicted of sex offense in a United States military court who has sued under the fictitious name of John Doe. Mr. Doe has completed his sentence for his sex-related crimes and is not on parole or subject to supervised release. Mr. Doe contends that his right to protected anonymous speech on the internet is diminished by the disclosure requirements of Utah's statute. He challenges the statute as unconstitutional on its face as applied to him and is seeking summary judgment. The court agrees with Mr. Doe. Although Mr. Doe is a sex offender, he has not forfeited his First Amendment rights, including his right to anonymous online speech. To justify a restriction of those rights, Utah needs to show that it has a compelling interest and has chosen the least restrictive means to achieve that interest. While Utah undeniably has a strong interest in protecting children from internet predators and investigating crime, the state's disclosure requirements are not crafted in a way to meet those goals while also protecting Mr. Doe's rights.

Accordingly, the court GRANTS Mr. Doe's motion for summary judgment.

Politicians will continue to create new and exciting ways to thrash convicted sex offenders for the public's benefit. Whatever it takes to get publicity and votes. It is too much to ask for legislators or the President to consider the constitution, let alone uphold it as they are sworn to do.

Edit: Derek Logue, from a comment posted below, has put together an excellent website that is worth taking a look at, with information on treatment, recovery, and re-integration of sex offenders, up-to-date information on laws targeting convicted sex offenders, ways to fight those laws, and online resources for offenders.

Our Supreme Court, by administrative order, has given to the Attorney General's office the authority to decide when counsel is or is not appointed in post conviction relief petitions:

Consistent with Rule 71.1, SCRCP, counsel will not be appointed until the Post-Conviction Relief Section of the Attorney General’s Office files its return to the application. In its return, the Attorney General’s Office shall clearly state in the caption heading whether it requests that counsel be appointed for the applicant.

If the Attorney General requests the appointment of counsel, counsel shall be appointed for the applicant unless a circuit court judge determines that it is inappropriate to do so. The authority to make the appointments in these cases may be delegated to the Clerk of Court or some other official.

If the Attorney General opposes the appointment of counsel for an indigent applicant, counsel will only be appointed as follows:

(1) If the Attorney General asserts that the application is barred as being successive or as being untimely under the statute of limitations,[1] counsel will not be appointed except upon written order of the Chief Judge for Administrative Purposes for the Court of Common Pleas in the circuit. In these cases, the Chief Judge will insure that counsel is only appointed for an indigent applicant when the facts raise a material issue regarding the applicability of the rule forbidding successive applications or the statute of limitations. Cf. Gary v. State, 347 S.C. 627, 557 S.E.2d 662 (2001) (statute of limitations).

(2) In all other cases in which the State opposes the appointment of counsel, counsel will only be appointed upon written order of a circuit court judge under the standard contained in Rule 71.1, SCRCP.

Until now what has happened is, in cases where the petitioner cannot afford to retain private counsel, the petitioner will file his or her own PCR application and then the clerk of court would appoint an attorney from the civil appointment list to represent the petitioner. Because a great number of these petitions are successive, time-barred, or otherwise without merit, it uses a great deal of Office of Indigent Defense's resources appointing attorneys to handle these petitions, and many of the attorneys do not want the appointments in the first place.

I'm not sure that giving the Attorney General the power to decide which petition has merit and which does not is the way to go, however. This is like telling the prosecutor to decide which defendant's cases should be worthy of going to trial and which should not. I think that the Supreme Court's reasoning must be that inmates are not guaranteed the right to counsel on successive or time-barred PCR petitions, but still, delegating the decision to the State in the PCR does not make sense. It is, after all, supposed to be an adversarial process isn't it?

If the idea is to conserve resources and to more efficiently deal with frivolous petitions, why not create a PCR division of Office of Indigent Defense, in the same way that the Attorney General has created a PCR division that handles only PCR's, at the trial court and on appeal? The PCR division would need to be insulated somehow from the public defender's offices and the office of appellate defense, to avoid conflicts. If this office handles the appeals as well as the PCR hearings, it will shift some of the workload from appellate defense, who do a stellar job but are without a doubt overworked. (this was not my idea - it has been suggested by other far more knowledgeable persons than I, but I agree with it)

Surely a PCR division that makes the decisions as to which petitions have merit and which handles the PCR petitions and appeals will be significantly less costly than the current system of appointing PCR's to private attorneys (not saying that private attorneys are rewarded handsomely, the current limits are 40/60 and a cap of $1000).

When I take on a PCR that has been filed by a pro-se inmate, the first thing that I do is review the transcript to see what he or she missed. The issues that the pro-se inmate raises may or may not have merit, and there may be issues that do have merit that were not included in the original petition. The other issues can then be raised in an amended or supplemental petition. Is the Attorney General going to review the transcripts and decide if an amended petition with other valid grounds for PCR should be filed?

Is anyone else bothered by the idea of placing this kind of power in the hands of the Attorney General, whose job is to defend against PCR petitions?

CNN ran a story today on DNA exonerations in Texas, and the faulty eyewitness identifications that caused many of the wrongful convictions. The story was first reported by the Dallas Morning News, and Grits has been following it as well.

Faulty eyewitness testimony that helped secure wrongful convictions in Dallas County, which leads the nation in DNA exonerations, sent the innocent to prison as police and prosecutors ignored safeguards and built cases with flimsy corroboration, according to a newspaper investigation.

Victims pressured to pick suspects, the use of suggestive lineup procedures and evidence withheld to preserve shaky identifications are former practices discovered by The Dallas Morning News in an eight-month review of previously closed Dallas County case files.

Faulty eyewitness identification procedures and Brady violations by the government (withholding key evidence that could be exculpatory) are the leading reasons for wrongful convictions. Despite great strides that have been made in eyewitness identification research, identifying the problems inherent in eyewitness ID procedures, many states' courts still cling to antiquated jury instructions and allow even admittedly tainted procedures into evidence.

Show ups are a common source of error, where the police will locate a suspect and bring him or her to the witness for identification. Usually police will have only a general description to begin with, such as race and clothing, and when they find a person wearing similar clothing and show the person to the victim or witness, the witness may be ID'ing the clothes as much as the face. Also, the witness is thinking, why would the police be showing me this person unless they thought they had the right guy?

Jurors believe a witness based on their certainty, and jury instructions often tell the jury to consider the witness' certainty when judging the witness' credibility. But consider, for example, a show up procedure. The police bring the suspect in handcuffs, and say this is the guy? If the witness identifies that person, the face that they will remember from that point forward is the suspect's face that was shown to them by the police (if the suspect is not the person who committed the crime, this is called memory source error).

Following the show up procedure, the police will often then conduct a line-up or a photographic array, where 6 photos are shown to the witness, one of which is the suspect. The witness identifies the suspect that was shown to them by the police during the initial encounter. Often the police will, intentionally or unintentionally, give positive feedback to the witness (good, you got the right one). Before trial, the witness is interviewed by the prosecutor, who will want the witness to testify that they are absolutely certain they picked the right guy. The witness is certain that they are identifying the correct person in court, when it began with only an identification of color of clothing.

Consider the typical 6 photo array that is shown to witnesses. The suspect's photo is placed into the array, with 5 fillers that should look like the suspect. Even if this is done correctly, with similar individuals with the same skin color, hair type, height, weight, etc., the witness is going to pick the individual who most resembles the person they remember seeing. The photo array is basically a multiple choice test, and "none of the above" is not an option (although some agencies do give the witness a form that says the suspect may not be in the group). Once the witness selects the photo that most resembles the perpetrator, then memory source error kicks in, that is the face that they remember, and they will later testify with absolute certainty that the suspect is in fact the person they saw commit the crime.

The better way to conduct a photo identification would be to show the witness a series of photos, one at a time, basically a series of true/false tests rather than a multiple choice test. Assuming that there was not a prior show-up identification, and that the officer conducting the test is not giving conscious or unconscious clues as to which photo the suspect is. The officer administering the line-up should not know who the suspect is, which prevents conscious or unconscious suggestion by the officer and prevents positive feedback following the identification, which results in inflated witness certainty.

Why are there so many exonerations in Texas, bringing attention to the problems in eyewitness identification? Because in Texas DNA evidence is preserved following trial, and inmates are allowed access to test that DNA. Prosecutorial misconduct, Brady violations, perjured testimony by jailhouse snitches, and eyewitness identification errors happen everywhere, including in South Carolina. But there is no system in place in S.C. for the wrongfully convicted to prove their innocence.

South Carolina has a bill pending that will provide for preservation of DNA evidence and provide access to DNA testing for inmates. Before passage the bill was combined with another provision that allows DNA samples to be taken from defendants who have been arrested but not convicted, and our governor vetoed the bill. In January, the legislature will have the chance to look at this bill again, override the governor's veto, or go back to square one with the two separate bills as it should have been to begin with. However it is done, the many exonerations in Texas and other states have proven the importance of having access to DNA evidence in post-conviction proceedings.

Related posts:
Sanford vetoes South Carolina DNA testing bill
DNA testing bill waiting for governor's signature
Texas 32, South Carolina 1
DNA testing bill update
Post-Conviction DNA Testing Procedures Act waiting for Senate approval in South Carolina

Have contests to see who can make the most forfeitures on the highways. Catawba County deputy Dennis Smith in North Carolina, for example, won the American Police Canine Association President's Award two years in a year after raking in more than $100,000.00 in drugs and cash each year for his department.

Smith got involved in the competition on invitation of the association's president, Michael Johnson.

Smith said he would send e-mails to the APCA, of which he is a member, about drug busts he and Max had been involved in. Johnson contacted Smith, asking him if he had kept track of how much drugs and cash he and Max had seized. He hadn't, but he started and sent the result to Johnson — between $120,000 and $130,000 of drugs and cash. That amount won Smith and Max the 2007 award.

They followed that accomplishment with more than $100,000 worth of drugs and cash confiscated for the 2008 award.

"This is such an honor for our department," Maj. Coy Reid of the Catawba County Sheriff's Office said. "Especially to get a national award and especially to get it two years in a row."

The seizure of money on the highways is big business for law enforcement agencies, and has become a large part of some agencies' budgets. When the goal of some officers is to see how much money they can bring in, and how much recognition they can thereby achieve, rules and the constitution's safeguards go out the window.

What some officers are doing amounts to little more than highway robbery. Officers study Fourth Amendment law, not to learn how to abide by it, but to learn how to get around it. Blacks and Hispanics are targeted on the interstates, and officers' testimony is tailored to what they believe will get by a judge in court. I have had an officer and a solicitor tell me that it does not matter how they make the stops, because they are getting drugs off the street (and money in the agency's department), and the ends justify the means.

What about the countless numbers of people who are being harassed, interrogated, and searched, who are not hauling drugs and who have done nothing wrong? The responsibility for stopping racial profiling and illegitimate forfeitures lies with prosecutors, judges, and defense attorneys. When cops cannot be honest, prosecutors have an ethical obligation to dismiss their cases or not pursue illegal forfeiture actions. When prosecutors fail then defense attorneys should take them to task, and the courts should not rubber stamp what the police are doing.

South Carolina's Rule 404(b)

The general rule, in South Carolina, rule of evidence 404(b), is that prior bad acts are never admissible as evidence to prove a defendant's propensity to commit the crime he or she is charged with. The exception, however, is that prior bad acts may be "admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent."

Another underlying question bearing on the admissibility of any evidence is whether its probative value is outweighed by its prejudicial effect (Rule 403). Even if a piece of evidence is useful to prove some fact or other, it must be excluded if it would tend to cause the jury to convict based on something other than the facts of the case in front of them. For example, if a person is charged with armed robbery, the prosecutor should not be able to tell the jury that they have committed another armed robbery in the past - knowledge of this fact would make it more likely that the jury would convict the person, and yet has nothing to do with the facts of the case at hand.

The "common scheme or plan" exception, under Rule 404(b) and State v. Lyle, may possibly be the most abused, and confused, rule of evidence in South Carolina. Numerous appellate opinions over the years have contradicted one another and confused the issue, making it possible for the exception to swallow the rule, with judges allowing clearly prejudicial facts into evidence as a "common scheme or plan," despite no relation or connection between the past event and the current charges.

State v. Wallace

State v. Wallace, argued by C. Rauch Wise of Greenwood, S.C. and decided by the South Carolina Court of Appeals in 2005, was the first well reasoned opinion that analyzed State v. Lyle and its underlying facts and followed its reasoning. The comments to S.C. Rule of Evidence 404(b) note that S.C.'s rule is different from the federal rule in that the S.C. rule limits the admission of evidence to those purposes enumerated in State v. Lyle:

First, unlike the federal rule which does not limit the purposes for which evidence of other crimes may be admitted, the South Carolina rule limits the use of evidence of other crimes, wrongs, or acts to those enumerated in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).

Evidence of prior bad acts is inadmissible to prove the specific crime charged unless the evidence tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other; or (5) identity of the person charged with the present crime. Lyle, 125 S.C. at 416, 118 S.E. at 807; Rule 404(b), SCRE (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”).

Under Lyle, a common scheme or plan is one "embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other."

In Lyle, the Defendant was charged with forgery, and during the trial the state introduced evidence that the Defendant had forged other checks on that same day as well as on prior occasions. The S.C. Supreme Court held that the forgeries committed on the same day were admissible to rebut the Defendant's alibi defense. However, the forgeries that were committed on other dates in other locations, even though all were committed in exactly the same way, were not admissible, because there was no connection between the offenses making them a "continuous transaction."

In Wallace, the defendant was on trial accused of sexually molesting his stepdaughter, and the trial court allowed the state to present testimony that the defendant had also molested the victim's sister on prior occasions. The trial court ruled that the testimony was admissible under Lyle as a common scheme or plan and that the probative value of the testimony outweighed its prejudicial effect, and limited the sister's testimony to include only acts which were similar to those committed on the victim.

The Court of Appeals reversed, holding that, per Lyle, it is not sufficient that a prior crime be similar to the one at hand, but a connection must be established between the two. The Court goes on to analyze two New York cases which also held that a connection must be established, People v. Molineux, 61 N.E. 286 (N.Y. 1901) and People v. Romano, 82 N.Y.S. 749 (N.Y. App. Div. 1903), that were also relied on by the court in Lyle.

If the only thing that is required to admit prior bad acts is sufficient similarity between the two crimes, then the probative v. prejudicial analysis is turned on its head. Anytime a defendant has committed a similar offense in the past, it can be admitted to prove a common scheme or plan, intent, motive, or absence of mistake under 404(b). And yet, the more similar a prior bad act is to the conduct that is in front of the jury, the more prejudicial it is - the more likely it is that the jury will convict based on, "well, if he did it once he would do it again."

The S.C. Supreme Court has granted cert in Wallace.

State v. Gaines

Monday, in State v. Gaines, the South Carolina Supreme Court decided another prior bad acts case, admitting the evidence of a prior act under State v. Lyle.

Gaines was charged with criminal solicitation of a minor, as a result of conversations with a cop pretending to be a 13 year old girl in an AOL chatroom. At Gaines' trial, the judge allowed the state to introduce evidence of a prior incident where Gaines chatted with a Pennsylvania cop posing as a 12 year old girl (Gaines was not charged in connection with the earlier incident).

Evidence of other crimes, wrongs, or acts is generally not admissible to prove the defendant’s guilt for the crime charged. Such evidence is, however, admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent. Rule 404(b), SCRE; State v. Pagan, 369 S.C. 201, 631 S.E.2d 262 (2006); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). To be admissible, the bad act must logically relate to the crime with which the defendant has been charged. If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing. Id.; State v. Beck, 342 S.C. 129, 135-36, 536 S.E.2d 679, 682-83 (2000). Even if prior bad act evidence is clear and convincing and falls within an exception, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Rules 403, 404(b), SCRE; State v. Gillian, 373 S.C. 601, 646 S.E.2d 872 (2007); State v. Braxton, 343 S.C. 629, 541 S.E.2d 833 (2001) . . .

Where there is a close degree of similarity between the crime charged and the prior bad act, both this Court and the Court of Appeals have held prior bad acts are admissible to demonstrate a common scheme or plan.

The future of prior bad acts and Wallace

The S.C. Supreme Court's opinion in Gaines does not bode well for Wallace. Gaines analyzes the issue solely in terms of whether the prior act is similar to the offense at hand, and makes no mention of Lyle's requirement that the two acts be connected. If the Court wished to follow Lyle and require a connection between the two offenses, they could have done so and still affirmed - as Justice Pleicones pointed out in his concurrence, the prior act should have been admissible anyway in order to rebut the defendant's claimed entrapment defense. But they did not.

Other jurisdictions have stated exceptions that allow admission of prior offenses when the defendant is charged with sex crimes against children. Until Wallace, our appellate courts have created an unstated exception allowing the admission of prior offenses when a defendant is charged with sex crimes against children. Bad facts make for bad law. The danger in our Supreme Court making an unstated exception for sex crimes against children to the rule against propensity evidence is that the exception will bleed into every other type of trial.

I believe that Wallace should be affirmed, but if the S.C. Supreme Court is not going to recognize, in Wallace, the requirement of a connection between two offenses before it is admissible under Lyle, I hope that they will create an exception for cases involving sex crimes against children, rather than allowing this mess to potentially deprive every defendant of a fair trial.

Edit: Simple Justice weighs in on the subject in NY, the birthplace of Molineux, and A Public Defender reviews prior bad acts law in Ct, where the courts at least admit that what they are doing is allowing propensity evidence to come in against defendants.
What's Wrong with Propensity Evidence Anyway?

Over the past few months I blogged about a Texas judge who signed a search warrant for defense attorney Keith Gore's office, bypassing a hearing that had been scheduled to determine whether the prosecution was entitled to evidence in a pending murder case or whether it was protected by attorney client privilege. Collin County District Judge Mark Rusch was subsequently recused from the case.

NBC5i.com reported that not only did Judge Rusch give the search warrant to prosecutors, pre-empting the hearing, but that the seized materials were then taken to the judge's home, where detectives say the judge not only reviewed the letters seized from attorney Gore's office, but also cut bar-coded tape to open a box, thereby placing himself in the chain of custody and potentially opening himself up to claims of evidence tampering:

According to court documents, the evidence seized from Gore's office was taken to Rusch's home instead of a crime lab.

A witness for Rusch acknowledged the judge inspected letters and documents and handled the box, but said the judge did not unseal the box.

But Frisco detectives said Rusch unsealed the box, which was closed with bar-coded tape, using a knife.

Hagen said the handling of evidence raises major chain of custody issues and directly implicates the judge in the investigation of Bell.

Those issues and information prosecutors may have learned about the case during the raid could lead to a dismissal of the charges against Bell, Hagen said.

"When you're talking about trying to stick a needle in their arm and kill a person, you better play by the rules," he said.

Video coverage is here.

Related posts:
Judge signs search warrant for attorney's files
50 lawyers showed up to support Texas lawyer whose office was searched by police
Judge who signed search warrants for attorney's office recused from murder case
Another attorney's office raided
Criminal defense lawyer's office searched in New Jersey

A lawsuit has been filed in federal court against state trooper Lance Cpl. Alexander Richardson, alleging that the trooper chased a man through an apartment complex, hitting him three times with his patrol car.

Calvin Rucker, 25, said in the suit filed last month in U.S. District Court in Columbia that he was hit by the trooper’s car three times while running through the complex on April 28, 2007.

A dashboard video obtained earlier this year by The State shows Rucker being hit at least once at Columbia Garden Apartments on Plowden Road off South Beltline Boulevard.

The video also shows Lance Cpl. Alexander Richardson driving his patrol car over sidewalks and curbs in the apartment complex. A man and his young son are seen on the video running out of the way of Richardson’s oncoming cruiser.

No charges have been brought against Richardson, and the U.S. Attorney's only comment is that the case is "still open." Last week, another trooper was acquitted in federal court of accusations that he purposefully ran down a man in his patrol car, despite a video showing him swerve to hit the man and despite his statement on the video that he hit the man on purpose; maybe the only way to effect some change in these cases is to file lawsuits such as this one.

According to the State newspaper, Richardson had already been disciplined twice before this incident, once for hitting a suspect in the face. Following this incident, Richardson was reprimanded and required to take a stress management class, but he is still employed with the South Carolina Highway Patrol in the same unit in Columbia.

The State news also has Richardson's account of what happened:

In his internal affairs statement obtained by The State, Richardson said he was on his way home about 7 p.m. when Rucker’s burgundy Chevrolet Caprice sped through a red light at Shop Road and South Beltline Boulevard, nearly hitting him.

At the time, Rucker was being chased by another trooper in an unmarked car. Richardson said he took over the chase and pursued Rucker to the Plowden Road apartment complex nearby, where Rucker abandoned his car and fled on foot.

Richardson said he initially tried to use his patrol car and one of the apartment buildings as “wedge to keep him from escaping,” but that didn’t work.

While chasing him through the complex, Richardson said, he tried to get out of his car to chase him on foot but couldn’t because the electronic control panel for the windows and locks was loose and in the way of the door handle.

He said that while he was briefly looking at his door, he “accidentally bumped the violator with the push bumper on the front of my patrol vehicle.” The suspect continued running but quickly gave up and was arrested without incident.

“At no time did I intentionally try to bump the fleeing violator or use my patrol vehicle to forcibly stop him,” Richardson said in his statement.

Richardson said he applied his brakes “hard” just before the collision, though an internal affairs investigator’s review of the tape found no screen indication that the trooper had braked just before the collision.

Richardson in his statement said he didn’t realize until after the chase that two young children were in Rucker’s car, which had dark-tinted windows.

“In a split second, I decided to pursue the violator in and around the apartment buildings,” he said. “Looking back on it after the fact I wish I would not have pursued the violator through the apartment buildings. I am very relieved that no one got hurt.”

Nothing can justify what this man did, driving his patrol car through an apartment complex as people scatter, and striking a fleeing man with his car. It is only sheer luck that no-one was killed as a result of the trooper's actions.

Trooper Steve Garren was found not guilty of intentionally running down a fleeing suspect in a Greenville federal court today, despite the dashcam video showing him swerve to hit the man and despite Garren stating on the video that he hit the man on purpose.

On Wednesday during testimony, suspended Garren said, "There was absolutely no way I could have avoided hitting Mr. Grant … I'm just glad he wasn't hurt. I can assure you if he had been injured, the comment would not have been made."

The comment Garren was referring to was recorded on the dash cam video from June 24, 2007, that shows Grant flipping over the hood of Garren's car.

On Tuesday, jurors heard the recording from Garren's cruiser saying:

Garren: "Hey, I nailed the ---- out of him. I nailed the ---- out of him when he hit that ---- field. He went flying up in the air."

Deputy: "You hit him?"

Garren: "Yeah, I hit him. I was trying to hit him."

Garren testified Wednesday that the statement was made in the "heat of the moment." He said, "I didn't even know I made the statement."

I am glad that the US Attorney brought the charges, and that the federal courts are doing their part to bring attention to police abuse in South Carolina, after local prosecutors refused to bring charges under state law.

Congratulations to Garren's defense attorneys, John O’Leary and Wally Fassoux, for an excellent job defending an unpopular client.

Officials in Columbia, S.C. are planning to install surveillance cameras county-wide in "high crime areas."

The goal is to place surveillance cameras in dangerous areas so criminals don't have anywhere to hide.

At a news conference Tuesday, officials said similar programs have worked in other areas and it can work in Richland County, too.

"The best neighbor is a nosey neighbor. This system becomes an additional nosey neighbor," Sam Davis with the Columbia City Council said.

Now, where do you suppose the "high crime areas" are? This would mean downtown? Predominantly low income or black neighborhoods?

I have a hard time understanding why every citizen would not be up in arms over the mention of the police placing surveillance cameras in public areas. The day will soon come when every moment of every day we are being watched by the government. A simple google search reveals the following:

Hillsborough County, Florida, Sheriff's Office installs cameras in high crime areas.
Police in Lafayette, Louisiana, force business owners to install cameras.
Police in San Francisco install cameras in high crime areas.
Baltimore police install cameras in high crime areas.
Utica, N.Y. jumps on the band wagon, along with
Washington, D.C., New York city, Dallas, San Diego, Austin, Boston, Louisville KY, and the list goes on.

Mass-surveillance advocates ask, if you are walking down the street in a public place, do you really have an expectation of privacy? And the answer, of course, is no. Not legally and not practically, but they are asking the wrong question. Do we want to live in a world where the only time we are not being watched by our government is when we are in our own home, and possibly not even then?

Another aspect of this is where the cameras are being placed now - in "high crime areas." Meaning, cameras are not being placed in the neighborhood of the persons in power. They are being placed in primarily ethnic neighborhoods, where people have less of a voice or power to prevent it, but it will not stop here and it will spread.

We need only look to London, England, which now has about 4.2 million cameras on its streets, which have cost billions of pounds and yet have not had any significant impact on crime, as an example of where this will take us.