South Carolina Criminal Defense Blog

David Wren at the Sun News published an article today debunking the claims of local business and law enforcement that the Horry County area's high crime rate is inaccurate because tourists who commit crimes are not taken into account:

Most of the people arrested for committing violent crimes in Horry County live along the Grand Strand, according to an analysis of this year's booking reports at J. Reuben Long Detention Center in Conway.

Those reports appear to undermine statements made last week by local business and law enforcement officials, who are critical of a new CQ Press study that ranks the Myrtle Beach metro area - which includes all of Horry County - as the 14th-most-dangerous place in the United States.

Local officials say the CQ Press report is skewed because it does not take into account about 14 million tourists who visit Horry County each year.

Wren says that a review of 14,000 booking reports shows that 83% of persons charged with violent crimes, including robbery, aggravated assaults, rape and murder, are locals. Out of 671 bookings for serious violent crimes, 551 had home addresses in Horry and Georgetown Counties. He also points out that the Myrtle Beach metro area has more than double the crime rate of the New York metro area, which has 44 million tourists a year. Also,

The Atlantic City, N.J., metro area has a permanent population roughly the same size as Horry County's and claims 37 million annual visitors. That metro area had 1,594 reported incidents of violent crime last year for a rate of 589.5 crimes per 100,000 residents.

The Myrtle Beach metro area's violent crime rate also is higher than tourism meccas Las Vegas and Orlando, Fla., both of which attract about three times as many annual visitors as Horry County.

Myrtle Beach's crime rate, according to the FBI, is 948.1 incidents per 100,000 residents. Of course local business leaders and law enforcement want to make it look better than it is - local business leaders are afraid that tourists will stay away if they hear about the stats and fear that they might get robbed or killed while here on vacation, and law enforcement is afraid that we will think they aren't doing a good enough job.

I've been following Scott Greenfield's debates with the legal marketing crowd, although I admit I have been skimming most of the posts, and I completely missed the debates that were happening in the comments (I usually don't read comments on other people's blogs, too time consuming). I'll weigh in, or at least dip my toe in the water before it's over.

Week before last, Scott posted his opinion on legal marketing and the blawgosphere, essentially that marketing has taken over, it is annoying, and it demeans the profession.

What I'm seeing is that the "how to" of marketing, the advice on self-promotion and, worst of all, the language that pervades blawgospheric discourse has become increasingly directed to open, notorious marketing. Many of the most popular blawgs around are solely directed toward marketing. Many of the best writers in the blawgosphere post only about marketing. How to snag the last client on earth will be the final post in the blawgosphere.

In the comments, some legal marketing blogger types took offense and Scott told them what he thought, as he is quick to do. Subsequently, the resulting controversy caused Scott to resign (and then be fired) from Solo Practice University (I'm not sure what this is and I'm still not motivated enough to look it up and see).

After much soul searching and self-analysis, Scott finds his sea legs and decides that he will continue to do what he has always done with his blog:

I've leraned that Simple Justice has gone far, far astray of its purpose, an outlet for me to write about things that interest me. Nothing more. I will continue to write about things that interest me whenever the mood strikes. I will continue to respond to comments in whatever way I chose. I will continue to take the position in which I believe, even if it's unpopular or, God forbid, boring to others. Simple Justice will no longer be an institution. Just a blog.

I agree. Seriously, if you are going to be blunt in criticisms of others, you have to expect a backlash. F*** em. And, don't worry about this "institution" crap; its a blog. You blog about topics that you feel like blogging about, and if you do it in an interesting way people are going to read it because its interesting. It doesn't matter how other people think you should blog. Be yourself, be prickly, and if the damage done to the legal profession by legal marketing is an issue that is important to you then, please, blog about it.

I'm not familiar with any of the people that have been arguing about the legal marketing issue with Simple Justice. My opinion is that legal marketing is a necessary evil in this day and age. There is a line that should not be crossed, but of course everyone has a different opinion as to where that line is. When it comes to online advertising, I don't see a problem with it. I have a website that I believe is well written and conveys the services that I offer. Scott also has a website.

It was explained to me how to blog to drive business to my site (parrot news articles, use lots of keywords, end every post with "if you need a xxxxx attorney, call me now" etc.), and I chose not to do so. Personally, I just wanted to blog and I wanted a forum to express my opinions. I enjoy blogging - I'm sure if I was following the marketing "format" it would seem more like a chore. Blogs that follow the marketing format get a lot of hits, and come up in search engines, which is fine - they serve their purpose well. I doubt that they have much of an audience, but they are not geared towards gaining an audience, they are geared towards bringing in clients. I have no problem with that, personally.

There is no doubt that the best legal marketing is word of mouth - doing your best for your clients in and out of the courtroom and getting results. But, with the sheer number of practicing attorneys these days, it does not hurt to get your name out there in other ways, so long as the attorney doing the marketing is staying within the minimum standards of the ethics rules.

According to Renee Dudley at the Island Packet, the Beaufort County Sheriff's Department is also refusing to comply with FOIA:

Incident reports -- summaries of criminal activity that occurs in Beaufort County --are being withheld from public review under a new Sheriff's Office policy that is being inconsistently applied.

When a reporter went to the Sheriff's office and asked the clerk for reports at 2:00 in the afternoon on Saturday, they refused to provide them, citing a new office policy that records would only be available during normal government office hours of 8:30 - 4:30 Monday through Friday. Despite the fact that the Sheriff's office is open 24 hours a day and 7 days a week, Sheriff P.J. Tanner says that they are not required to produce them on weekends:

In the past, when crime reports were accessible on weekends, Tanner said, "we were going over and above what the law requires us to do.

The absence of crime news in the media on days when reports are withheld will not leave residents uninformed about crime in the area, Tanner said.

"If there's anything that's a threat to public safety, we automatically send (a release) out," he said. "I guess you have to take our word on that."

South Carolina's Freedom of Information Act (S.C. Code Sec. 30-4-30) requires that agencies, upon written request, comply with the statute within fifteen days, excepting Saturdays, Sundays, and public holidays. However, it also provides that incident reports must be made immediately available, without a written request, when the requestor appears in person during the hours of operation of the agency.

The sheriff's statement, "I guess you have to take our word on that," is exactly why we have FOIA - we do not have to take his word on anything and we need to be able to see what our government is doing. By refusing to provide the documents to reporters on weekends or holidays, the agency is refusing to comply with the requirements of FOIA in a way that they believe will be difficult to enforce - the reporter will get the documents eventually, although not upon demand in person as required under the statute. This doesn't insulate them from a lawsuit, however - S.C. Code sec. 30-4-100 expressly provides a cause of action for injunctive relief and the award of attorneys' fees and court costs.

(a) Any citizen of the State may apply to the circuit court for either or both a declaratory judgment and injunctive relief to enforce the provisions of this chapter in appropriate cases as long as such application is made no later than one year following the date on which the alleged violation occurs or one year after a public vote in public session, whichever comes later. The court may order equitable relief as it considers appropriate, and a violation of this chapter must be considered to be an irreparable injury for which no adequate remedy at law exists.

(b) If a person or entity seeking such relief prevails, he or it may be awarded reasonable attorney fees and other costs of litigation. If such person or entity prevails in part, the court may in its discretion award him or it reasonable attorney fees or an appropriate portion thereof.

The media is on the front lines when it comes to government compliance with the Freedom of Information Act. The Beaufort County Sheriff's refusal to comply, the Charleston Police Department's release of heavily redacted documents, and other violations by different agencies across the state are an attempt to chip away at the requirements of the statute and avoid government responsibility under FOIA. Whether it is a news agency, an attorney, or a private citizen who is requesting the release of documents, when any government agency does not comply with the statute we need to file suit and hold them responsible - when the cost of non-compliance is greater than the cost of complying, government agencies will follow the requirements of the law.

Apparently, there are still individuals being held on community supervision revocations which are longer than their original sentences, in violation of State v. McGrier which was decided in March 2008, because the state was taking the position that McGrier should not be applied retroactively. Earlier this week the South Carolina Supreme Court issued a decision in Bennett, et. al. v. State, holding that McGrier is to applied retroatively and the inmates should be released:

In our view, McGrier’s retroactivity is patently clear; however, we take this opportunity to remove any doubts. We now hold that our decision in McGrier is to be applied retroactively. See Pinckney v. Warren, 344 S.C. 382, 391, 544 S.E.2d 620, 625 (2001) (recognizing that retroactivity may be extended when justice requires and innocent persons will be adversely affected).

In Robinson v. State, decided earlier this week, the South Carolina Supreme Court held that it is ineffective assistance of counsel where plea counsel failed to challenge the use of a prior uncounseled magistrate court conviction to enhance a trafficking sentence.

On September 16, 2003, Petitioner was indicted on one count of trafficking crack cocaine. At the plea hearing, the State and the plea judge noted that Petitioner had a prior conviction for possession of marijuana from 2000. The plea judge informed Petitioner that, consistent with a second offense, the minimum sentence he could receive would be seven years and the maximum would be thirty years. Plea counsel did not object to the trafficking offense being treated as a second offense and Petitioner was sentenced to twenty years.

To be successful in a PCR claim based on ineffective assistance of counsel, Strickland v. Washington requires not only a finding of ineffective assistance of counsel, but also a finding of prejudice caused by the ineffectiveness; meaning a reasonable probability that the outcome would have been different but for the mistakes made by the trial lawyer.

The Court held that even though the sentence Robinson received, 20 years, was within the range for a trafficking 1st offense, prejudice was still shown from the error. The sentencing range for trafficking crack cocaine, 28 - 100 grams, 2nd offense is 7 to 30 years, and the sentencing range for trafficking crack cocaine, 28 - 100 grams, 1st offense is 7 to 25 years (S.C. Code Sec. 44-53-375), both are violent offenses, non-parolable, and the defendant must serve 85% of the time to which he is sentenced. But, whether the sentence received is within the sentencing range is irrelevant in showing the absence of prejudice (see Thompson v. State).

Under Nichols v. United States, a prior drug conviction cannot be used to enhance a sentence if it was uncounseled and if the defendant served any jail time on the prior conviction. Although Robinson was not immediately sentenced to jail on his prior magistrate level offense, he ended up serving jail time after he failed to complete community service. Because his plea lawyer failed to object to the use of the prior conviction to enhance his sentence to trafficking 2nd offense, Robinson's case is remanded, not for a new trial, but for re-sentencing.

According to the Charleston Post and Courier, the Charleston police department has begun heavily redacting information in requested incident reports:

The Charleston Police Department has taken a troubling new direction in the way it handles crime reports by withholding from the public information that had been previously provided. The city's new policy threatens the public's right to that information under state law.

The Post and Courier's Glenn Smith reported Sunday that police are blacking out names, addresses, phone numbers and other information from crime reports that, for years, have been released in their entirety.

So, sue them. Please. FOIA specifically provides for a cause of action, including the recovery of attorneys fees, when an agency does not release information that it is required to under the freedom of information act. Police departments don't want to release information - no government agency does - that is why we had to have legislation forcing them to release information in the first place. If they think that you will not sue them to obtain the information, they will continue to black out portions of documents and play games with how much information they release.

This is similar to the redacted incident reports and documents that we receive from the prosecutor in discovery in criminal cases. The Horry County solicitor's office, and others around the state, as a matter of policy redact not only victims' names and contact information, but the names and contact information of witnesses. So, file a motion to compel and have the judge order the prosecutor to provide the information.

The prosecutor always says, in shock, but Judge, they will threaten or kill our witnesses! I have not yet seen a judge grant their request to keep their witness information secret. And I have yet to threaten or kill a witness. The defendant has a right to confront the witnesses against him, and therefore a defense attorney has a duty to investigate every witness in the case before the case gets to trial. When prosecutors refuse to comply with their discovery obligations, and continue to hide evidence in their cases, it is impossible to comply with the requirements of the Constitution, defense counsel cannot do their job, and innocent people do get convicted at trial.

Whenever a report comes out that says the Myrtle Beach metro area has the xth highest crime rate in the nation, local government has fits. We don't want to scare off the tourists with the idea that they will get robbed or murdered while here on vacation. Last year it was announced that we had the 7th highest crime rate in the U.S. This time we are the 14th:

Local business and law enforcement officials disputed a report Tuesday that lists the Myrtle Beach metropolitan statistical area as being the 14th most dangerous place in the nation.

The report, released this week by CQ Press, uses annual crime statistics from the FBI to rank 356 metro areas nationwide. Among the crimes factored into the study are murder, rape, robbery, aggravated assault, burglary and motor vehicle theft.

CQ Press takes the total number of crimes and divides them by an area's population. The report gives the Myrtle Beach metro area, which includes all of Horry County, a crime score of 70.16 - the 14th worst score nationwide.

Local officials, however, said the report does not factor in the region's 14 million annual tourists and parttime residents. This area's ranking improves to 149, which is near the national average, when those people are included.

The chamber of commerce, police chiefs, and our solicitor Greg Hembree all attended a news conference today to set the record straight. Sumter was ranked 5th, Florence was ranked 6th, and Charleston was ranked 21st most dangerous areas in the nation, according to the report.

Stolen from Ipse Dixit:

"We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job – our sworn duty – as criminal defense lawyers, to protect our clients from those people."

Correction: Quote is attributed to Cynthia Rosenberry, DePaul professor and founding board member of the Georgia Innocence Project (see comments; I see this in the comments on Ipse Dixit's post as well).

I have never really considered this, as we do not have public elections for the office of public defender in South Carolina; given the public's abhorrence for and general misunderstanding of criminal defense and why we need it, public elections could be a recipe for disaster. Imagine if a candidate for office runs on a campaign of being tough on crime, easy on cops, and easy on the public dime (what the public wants to hear) and then they are elected?

Republican Matt Shirk, recently elected as public defender in Jacksonville, Florida, has said that he will fight budget cuts, by seeking fees from indigent clients.

He also said rather than cut personnel because of budget constraints, he plans to seek service fees for clients who may eventually be able to pay for the work they are provided. As an example, he said, an unemployed client could be billed and asked to pay after getting a job.

Shirk also said he believes that hundreds of people who are appointed public defenders by judges can actually afford to hire private lawyers. He said one way to curb such abuse would be to use his investigators to determine whether clients have sources of income not revealed in court. He would then seek to have his office withdrawn from such a case.

He also said that he would not make sweeping changes to the office employees, but then weeks later apparently fired some of the office's most prominent attorneys.

Ten attorneys and three administrators found themselves suddenly out of a job, sacked Friday by the newly elected Public Defender Matt Shirk.

At least one of the attorneys told Channel 4 he believes the mass firings were a form of payback.

The firings came on the eighth anniversary of one of the office's most notable legal triumphs. On Nov. 21, 2000, taxpayer-supported public defender lawyers proved that a Jacksonville teen, Brenton Butler, was not guilty of robbery and murder.

The acquittal became the subject of a documentary shown nationwide on HBO and won an Oscar . . .

The mass firing occurred eight years to the day of when Butler was found not guilty after McGuiness and other attorneys who were recently fired proved the sheriff's department bungled the case.

McGuiness said the firings are payback.

"Mr. Shirk was supported by the Fraternal Order of Police and made certain representations to them, as I understand, that there would not be questions raised about integrity of policemen," McGuiness said.

Shirk has not returned calls inquiring about the firings.

As in the documentary referenced in the article, there are times when there cannot be effective representation of an accused person without raising questions about the integrity of policemen and investigations. McGuiness' allegations and Shirk's actions now call into question the integrity of the entire system for that county, and the wisdom of having public elections, as opposed to appointment or election by the bar, for the office of public defender.

Possibly Shirk is being painted in an unfair light, I don't know. Even if the campaign promises to the Fraternal Order of Police were never made, the significance of the firings seems to speak for itself. And, isn't there something seriously wrong with a chief public defender who is talking about having his office's investigators investigate his clients and who is vowing to fight budget cuts not by, well . . . fighting the budget cuts. . . but by attempting to squeeze all that he can out of his clients who have already been declared indigent and who are already being bled by the courts?

The "CSI effect" is what prosecutors call it when jurors expect to see physical evidence in a trial that actually connects the defendants to the crime. The idea is, since jurors and the public watch television shows like CSI where the detectives actually use advanced technology to analyze evidence and solve crimes, jurors come into a trial expecting to see physical evidence that connects defendants to crimes, and are disappointed if they do not.

The "CSI effect" is only mentioned when there is no physical evidence in a case. If the state is trying to convict a person using only jailhouse snitch testimony bought and paid for by the threat of prosecution or the promise of freedom, and there is no physical evidence tying the defendant to the crime, then you hear prosecutors talk about the "CSI effect." Don't be fooled, oh jurors, by these television shows which make it look so easy. The truth is that we cannot match fingerprints or test DNA evidence out here in the real world.

Of course, when there is actually physical evidence with which to convict someone, then you do not hear about the "CSI effect," - that is reserved for the cases where they have no case. A recent article on crime scene investigation in South Carolina illustrates how the CSI effect exists only when it is convenient for the prosecution. SLED's DNA lab in this instance invited the media in to show them just how high tech they are, and how helpful their CSI work is in solving crimes:

In the mid-1990s, DNA testing could take months to generate a profile. Now the potential is overnight and analysts can can do it with as few as 10 cells from things like blood or saliva found at a crime scene.

"We use DNA for anything from auto break-ins on to up to homicide," says Lieutenant Bryant Hinson of the Forest Acres Police Department.

"We're doing a lot of good," says Lt. Robin Taylor. "We're solving cases that would not be solved otherwise. It's a tremendous tool."

I have followed Jon Katz's discussions on his blog about applying T'ai Chi to the practice of law and, although I don't practice T'ai Chi, I have learned from his experience and I'm grateful that he is writing about it. Jon has combined many of his posts into a complete article that he submitted to his state criminal defense lawyer's association newsletter, and published on his blog:

An essential ingredient to reaching calm is to overcome one’s fears. T’ai chi master Cheng Man Ch’ing spoke of tempering our fears in terms of imagining that we are practicing t'ai chi while balanced atop a narrow pointed cliff. To not eliminate one's fears while atop the cliff is to guarantee certain death. Eliminating fear also calls for keeping and tempering the fearlessness of a child filled with wonder and living in the moment, as detailed in the Zen story of the man and the two tigers: A man is chased in the wilderness by two tigers, only to be forced off a cliff, hanging for life from a vine. One tiger waits above and the other waits below for a human meal. Two field mice gnaw away at the vine. The man sees a wild strawberry growing from the side of a cliff, reaches for it, tastes it, and -- with his life hanging in the balance -- thinks of how delicious the strawberry tastes.

This power of being in the moment -- and finding and savoring the nearby wild strawberries during even the most trying times –- has no substitute. Ironically, those who welcome battling in the eye of the storm have the best opportunity to reach a state of calm. Nothing tests one’s ability to reach calm more than the most dangerous situations.

Via Fourth Amendment.com; a former police officer testifies in his former partner's corruption trial:

Officers carried a little crack cocaine to plant on suspects when searches came up empty and stole cash from drug dealers during raids and traffic stops. They also routinely paid informants, falsified reports, lied in court and even kicked back cash to a judge for pushing through a bogus warrant, Doroniuk testified Wednesday in federal court . . .

It was easy to steal money when drug dealers had no idea how much cash they were carrying—and couldn't complain to anyone, he said.

Officers carried "insurance drugs" for the times when a suspect might swallow a bag or a search warrant came up empty, Doroniuk testified. Then what? Egan asked.

"Plant it," he answered in reference to the cocaine.

They were also accused of raiding evidence lockers and stealing more than $30,000. People often believe that the police do not lie and that they can do no wrong. When a story breaks, like the one above, I hear things like "There's always one bad apple," and it is seen as an aberration. The truth is that police are human beings like everyone else. People lie, and cops lie. They are taught Fourth Amendment law, so that they will know how to bend the truth when necessary to get past a motion to suppress. They take classes on how to testify in court. They are rewarded for number of arrests and amounts of drugs or money confiscated.

Most departments are underpaid and therefore do not always attract the highest quality employees. Many are attracted to the job because they are drawn to the possibility of excitement, action, and not only carrying a gun, but having a license to use it. Some people are drawn to the job because they want to serve the public, and throughout their careers some are able to maintain that attitude. I have talked to officers that have remained in the profession despite struggling with corruption and disgust at police trampling on individual's rights, because they know the police department is a better place so long as they stay and keep trying. Another former police officer told me that he quit and went to law school, because with a law degree he could make more of an impact than he could as a supervisor on the police force.

I could not tell you how many defendants have sworn to me that the officer planted drugs on them, or in their car. I can't believe most of them, but there is no doubt in my mind that some of them are telling the truth. Cops will lie, to get convictions, to cover their own asses, to look good in court, or for whatever reason. The police officer who is rigorously honest on the witness stand, under oath, is in my experience the exception rather than the rule.

When detectives question a suspect, they are not trying to discover the truth, but they are trying to get that person to say something that will support the cop's theory of what happened, or that can be used against the person later in court. I have had a witness tell the jury, on cross examination, that a detective threatened him and his family, then told him what to say, and so the witness repeated to the cop what he wanted to hear. The witness told this to the jury, and then, in a rare event that I never thought I would see, told the jury that none of it was true. In the same trial the prosecutor put a different witness on the stand to make his case against my client, even though that witness had failed a polygraph specifically on the subject of his testimony.

Cops lie. Sometimes making a case is more important to a cop, and winning a case is more important to a prosecutor, than seeking the truth and achieving justice.

Anne Reed at Deliberations asks "What do you think judges should do to improve voir dire where you practice?"

In South Carolina, we could begin by having voir dire. Voir dire in our courts, with the exception of capital cases, usually consists of the judge asking 3 or 4 questions of the jury pool, if that. There is no attorney-conducted voir dire, but attorneys can submit questions to the court that the judge may or may not ask, in his discretion.

Typical questions that I usually request and that are approved include whether any potential juror or their immediate family has been a victim of a violent crime, or has been involved in an accident with a drunk driver, depending on the type case. The court will usually ask if anyone is a member of or contributes to law enforcement fraternal organizations. If it is a high profile case, the judge will ask if any potential juror has seen or heard about the case on the news. The only follow up question is whether they can still be fair and impartial, and the answer to this 9 out of 10 times will be, "Of course." Besides these few questions, jury selection is based on occupation, spouses occupation, and responses to the questions asked by the judge during the qualification of the jurors.

One of the arguments against attorney conducted voir dire is that it would take up too much of the court's time. I have to disagree with this. The court can and does set time limits on voir dire, which can range from 15 minutes to an hour or more, depending on the complexity of the case or the request of the attorneys. An additional hour taken in voir dire would hardly be excessive compared to the benefits to both parties in ensuring a fair trial.

If we were to implement attorney conducted voir dire, one immediate problem would be that most attorneys have no idea how to conduct voir dire, since they have never been allowed to do it. After a rocky start, however, lawyers would learn and improve with practice, and judges would certainly set ground rules and monitor the process. With some practice and a few CLE's under our belts, this would not be an issue for very long.

Choosing a jury in a criminal case, for defense and prosecution alike, is very nearly a random process in South Carolina. Defendants, and the State, have a right to an impartial jury to hear their cases, and allowing attorney conducted voir dire would go a long way towards accomplishing this.

I am interested in hearing whether other defense attorneys or prosecutors have strong feelings on this one way or the other. I know that it has been debated in the past, and I think that we should keep the conversation alive. I believe that it has been proposed in the legislature and failed, but does this have to come from the legislature? Could it be instituted by court rules instead? What would it take to get attorney conducted voir dire in our state?

In the past, no-one charged with a lower-court misdemeanor in South Carolina was entitled to representation, and if defendants could not afford to hire an attorney they were on their own, which typically meant either a guilty plea or guilty verdict regardless of the merits of their case. There was no prosecutor in the magistrate courts either, which meant that officers were required to prosecute their own cases.

In recent years, solicitor's offices have received funding to assign prosecutors to the magistrate courts specifically to prosecute DUI's and CDV's. Now there are trained prosecutors acting against pro-se defendants who have no training in the law. From what I understand, some counties have assigned public defenders to the magistrate courts to defend DUI and CDV cases, but not in Horry County as of yet. There is something inherently wrong with a system where we are providing trained attorneys to prosecute citizens who have no access to a defense.

There are local attorneys who pick up some of the slack by taking lower court cases at low fees. Often this consists of paying the attorney for a guilty plea, which the defendant could have done without an attorney. But there are many people who are charged who cannot afford even 500$ for a lawyer, and some of those have valid defenses and yet are not afforded counsel. In the city courtrooms, there have always been prosecutors and no opportunity for indigent defense.

If the state (or a city) is going to prosecute a person, they have an obligation to provide a defense to that person as well, when the person is indigent. More and more money is poured into law enforcement and solicitor's offices, more arrests are made for more crimes, and provision has to be made to ensure that the system is fair and balanced. This should apply to the magistrate and municipal courts as well as to the higher courts.

The Society of Professional Journalists (via John Bryan and Glen Graham) publishes the Journalist's Code of Ethics on their website. It is interesting to read as I consider various publications in South Carolina.

For example, from the code of ethics:

Seek Truth and Report It

Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.

Journalists should:
— Test the accuracy of information from all sources and exercise care to avoid inadvertent error. Deliberate distortion is never permissible . . .
— Identify sources whenever feasible. The public is entitled to as much information as possible on sources' reliability . . .
— Recognize a special obligation to ensure that the public's business is conducted in the open and that government records are open to inspection.

On November 16, Tim Smith of the Greenville News continued playing "gotcha" with Senator Brad Hutto, while reporting that the trooper who had been under fire for reducing many of Hutto's DUI clients' cases to reckless driving has now been disciplined, despite an earlier finding of no wrongdoing by the solicitor. Arguably, Tim Smith's reporting shows an interest in ensuring that the public's business is conducted in the open and that government records are open to inspection:

The state trooper who last year reduced DUI charges against clients of a state senator, sparking an investigation that found no criminal wrongdoing, has been disciplined in connection with the cases, records show.

Lt. Col. M.L. Howard of the Highway Patrol reprimanded Lance Corporal David Smith and said he violated rules and procedures, according to a copy of the disciplinary memo obtained by The Greenville News under the state Freedom of Information Act.

Smith reduced 10 DUI cases on a single day last October and turned in the paperwork of the cases in January, prompting a superior to request an internal investigation, records show. The documents show that most of the drivers in the cases were represented by Sen. Brad Hutto of Orangeburg. Six of the 10 DUI cases had blood-alcohol readings of between .13 and .16, records show, and drivers refused alcohol tests in four of the cases.

Tim Smith took care to present both sides of the issue, also reporting that:

Hutto and Magistrate Willie Robinson said the senator and his clients received no preferential treatment and the DUI cases were reduced to lesser charges as a result of a plea bargain between the trooper and the senator. The judge said he played no role in the plea bargains. Solicitor David Pascoe, chief prosecutor for Orangeburg County, announced in August that an investigation by the State Law Enforcement Division found no criminal wrongdoing by Smith.

But an article published 2 days later on November 18, with no author listed, takes the information and turns it into an accusation of public corruption, hinting at shady deals and undue influence in the courtroom:

South Carolina state senators have an unseemly and unhealthy degree of power over the magistrates who are so important to our statewide system of justice. That relationship is especially outrageous when the senators who often hold the magistrates' jobs in the palm of their hands also are lawyers practicing before those same magistrates. The system begs for reform . . .

The veil was pulled back from the magistrate system earlier this year when a state trooper found himself in hot water for reducing 10 DUI cases on a single day last October . . .

A most telling comment could be found in the information that came out after the chief prosecutor announced a couple of months ago that he had cleared the trooper of any wrongdoing. The newspaper reported at the time that the trooper had indicated to investigators that he was at a disadvantage going into the magistrate's court when the senator-lawyer had played a key role in appointing the local magistrate. "Brad (Hutto) appoints the judge, makes a motion and the judge agrees," SLED agents quoted Smith as telling them.

The opportunities for mischief are obvious. The damage done to the judicial system's reputation is enormous.

This problem isn't just about the black eye given to the judicial system. This also is about cleaning up South Carolina's highways and making them safer for this state's citizens. South Carolina has some of the most deadly roads in the nation, and the state's high rate of DUI-related cases clearly is a contributing factor . . .

The beating of the DUI-drum is a familiar sound from the Greenville News Online, which panders to the DUI fanatics who love to read this stuff, but this particular article goes beyond the familiar DUI - hang-em-up spin, and misleads the public. A single phone call by the author to any magistrate, magistrate's court prosecutor, or defense attorney who practices in the magistrate's court would have revealed the inaccuracies in the article.

Magistrates do not have the authority to make or approve a reduction of a DUI ticket to reckless driving. The officer or the prosecutor only can make that decision; reckless driving is not a lesser included offense of DUI so not even the jury can make that decision. Before a reduced charge goes before the magistrate, the DUI ticket is dismissed and a new warrant is written for reckless driving. The magistrate can only accept or refuse the plea which is placed before them.

The defense attorney does not "make a motion" and the judge agrees, when there is a plea to reckless driving. The officer made that decision before the case ever went to the judge. I am not a state senator, I do not have undue influence over any judge, and I have received offers of reckless driving in many cases because it was appropriate to do so, and because it was not a case the prosecutor wanted to try. Sometimes a charge is reduced on the prosecutor's own initiative and sometimes after discussing the merits of the case with them, but always it is in the prosecutor's discretion.

Prosecutors or officers will reduce a DUI ticket to reckless driving, careless operation, or any other lesser offense, when it is appropriate. It is appropriate to offer a plea on a reduced charge when there are evidentiary issues that would cause problems in going forward in the case, or when there is an otherwise strong defense case that likely would result in an acquittal. Otherwise, the system would be hopelessly bogged down with thousands of trials that would result in dismissal or not guilty verdicts. A wise prosecutor chooses his best cases to take to trial.

I don't know if this article was an editorial comment or if it was written by a reporter. There is no identifying information that I can find yet it was published as news. The first comment underneath it is "Good piece of reporting. Thank you."

To the Greenville News: I am glad that you are keeping the business of government in the public eye. But please, identify the authors of articles that you publish and do not publish materials that, whether "inadvertent error" or "deliberate distortion," have the effect of needlessly undermining confidence in our justice system. I am the first to criticize and complain about problems in our justice system, but there are plenty of issues there already without making up more that do not exist.

The South Carolina Court of Appeals held today in Pelzer v. State that it is ineffective assistance for defense counsel not to advise his or her client as to lesser included offenses prior to entering a guilty plea.

Pelzer was charged with first-degree burglary, attempted second-degree arson, criminal domestic violence of a high and aggravated nature (CDVHAN), and violation of a family court restraining order. Ultimately he pled guilty to second-degree burglary, attempted second-degree arson, and violation of a family court restraining order, and received a sentence of 15 years. The CDVHAN charge was dismissed.

The PCR court granted relief in this case, and the Court of Appeals affirmed, because Pelzer's lawyer failed to advise him of the lesser included offense of attempt to burn, which carried a potential sentence of 0-5 years (less than attempted second degree arson). The reasoning is that if Pelzer had known about the existence of the attempt to burn statute, he may have decided not to plead guilty and taken the case to trial instead.

I am not sure where this leaves Pelzer, as the Court granted post conviction relief as to the arson charge only, allowing the remaining convictions to stand, and the Court does not say what Pelzer's individual sentence was for each charge, only that, at the plea, he received a total of 15 years on all charges. If he received 15 years on the burglary second degree charge at the plea, he is still in the same place he started and it would make no sense to proceed to trial on the arson charge.

At any rate, the holding of the Court and the message that this case is meant to convey is that, before advising a client as to whether they should proceed to trial or accept a plea offer, defense counsel must ensure that they advise their client as to every possible lesser included offense as to each of their charges, and to not do so may constitute ineffective assistance.

Mark Bennett discusses "lethal generosity," a concept taken from a discussion of social media on the Global Neighborhoods blog, and its application to criminal defense trial lawyering. The underlying issue I believe is competition among criminal defense attorneys.

Global Neighborhoods defines lethal generosity, in the context of social media, as:

that the most generous members of any social media company are the most credible and influential and as such, they can devastate their competition in the marketplace.

Competition for clients, for some attorneys, can be fierce. Lawyers spend huge amounts of money on marketing themselves in an attempt to bring in clients, including yellow pages ads, billboards, television ads, websites, and a multitude of other methods to get your name out to potential clients. For some lawyers, this drive to obtain and retain clients can spill over into their relations with fellow defense attorneys.

Although I use various methods of advertising and I feel it is necessary in this day and age, I believe that the best way to attract clients is to do the very best for the clients that you have. If you are fighting for your clients the word will get out. If you love your job and believe in your cause it will show and people will see it.

Back to the concept of lethal generosity, which I had not heard before and is a fascinating concept. Some lawyers carefully guard their motions, briefs, research, and ideas, I can only assume because they feel that it will somehow benefit them to keep their secrets. I always share motions that I have drafted with anyone who asks, and it does not hurt me in the slightest. I am always happy to return a call to an attorney who is looking for advice or a second opinion on an issue they have, in part because I hope that someone will return my call when I am looking for advice.

If I have drafted a motion that works in a given situation, and have put hours of research into the issue, there is no need for another attorney to re-invent the wheel and waste hours researching something that I have already done. They can then use that time to research another issue or motion or work on another aspect of their case.

I will draft new motions and research new issues in new cases, and always strive to learn more and to improve my advocacy. Although the concept of lethal generosity is fascinating, being generous with acquired knowledge should not, after all, be about competition. If other lawyers benefit from work that I have done then their clients are also benefiting from that work, and the overall quality of representation for citizens accused of crimes has improved. This is also the concept behind our local, state, and national criminal defense associations, and the listserves that we have set up for each. It is about raising the bar.

The Defending Drug Cases Seminar went well, and I have a few more tools to take home with me for the next trial. I had the pleasure of meeting with Houston criminal defense lawyers Mark Bennett and Paul Kennedy today for BBQ and good conversation. Bennett believes that we are three guys in desperate need of razors, although I have to note that he managed to not get into the picture. As you can see on his website, however, he is also in desperate need of a razor.

It really is amazing to get out of South Carolina and see how things are done in other parts of the country; in some respects it makes me feel better about the system we have in S.C., but it also highlights areas that we could improve upon.

Despite an ever present need for improvement and more funding, we are doing well with our public defender system compared to some other states. The public defender system seems to be fragmented in Texas; for example Dallas has a public defender office but in Harris County (Houston) there is no public defender. Indigent cases are handled by court appointed attorneys with no real system in place.

Texas, like many states, has attorney-conducted voir dire which seems to be considered a necessity by all parties involved including the judges. Picking a jury without the benefit of voir dire, as we have to do in South Carolina in all but capital murder trials, is flying blind. There can't be any meaningful jury selection based only on name, occupation, and the few questions that our judges will ask the jury for us.

At any rate, I am glad to be coming home and we're set to jump back into the fray, with a DUI trial scheduled for Monday morning (and trials on CDV and assault charges in different courts later in the week) and a retrial of last week's murder trial coming up soon.

Surely all jurors see their role in the courtroom differently, depending on where they come from and each juror's unique perspective. This is why attorney-conducted voir dire is so important in selecting a jury, for the state and the defense. Except that we do not get attorney-conducted voir dire in South Carolina.

There is no doubt that many Horry County jurors see it as their civic duty to convict someone when they are called for jury duty, and it is an uphill battle trying to educate the jury on the presumption of innocence and the right to proof beyond a reasonable doubt. I have watched a solicitor tell the jury in closing argument (not my case and the defense attorney did not object) that they "worked for the government now," and it was their duty to convict the defendant.

The jury does not work for the government. The most precious and important rights in our Constitution are the right to a trial by jury and the right to proof beyond a reasonable doubt. The jury's role in the courtroom is to shield the citizen from the incredible power of the government, and to make sure that the government proves its case beyond a reasonable doubt, the highest standard of proof in our system of justice.

Because the prosecutor has all of the power, they can force witnesses to testify by threatening prosecution and by offering them freedom - so we have the right to proof beyond a reasonable doubt. Because the prosecutor has the weight and resources of the entire state standing behind them, with practically unlimited resources and manpower to make a case against a defendant, we have the right to a trial by jury, so that 12 people are there to stand between the power of the government and the defendant.

Because there are times when prosecutors put lying witnesses on the stand to testify to a jury, offering them years of freedom in exchange for their perjury, and because judges are unwilling or unable to stop such testimony, there are times when the only thing standing between a citizen and a wrongful conviction is a jury of 12 people, and their ability to hold the government to its burden of proof.

It may be that when the government does meet its high burden of proof it is the jury's duty to convict a defendant. But the jury does not work for the government, and their role is to make sure that the government meets that burden of proof before it can take away a person's livelihood, their family, and their freedom.

The South Carolina statute that makes it a crime to transfer alcohol to minors also contains an exception for when the minor was recruited by law enforcement to buy the alcohol:

§ 61-4-90. Transfer of beer or wine for underage person's consumption.

(A) It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption of beer or wine in the State, unless the person under the age of twenty-one is recruited and authorized by a law enforcement agency to test a person's compliance with laws relating to the unlawful transfer or sale of beer and wine to a minor.

There is a companion statute with the exact same language:

61-6-4070. Transfer to person under the age of twenty-one years.

(A) It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption of alcoholic liquors in the State unless the person under the age of twenty-one is recruited and authorized by a law enforcement agency to test a person's compliance with laws relating to the unlawful transfer or sale of alcoholic liquors to a minor.

FYI for anyone that has one of these cases, where SLED or the Sheriff's Department sends kids in to buy beer in a sting operation; does anyone see a way that this does not mean what it says?

At a NACDL conference today in Houston, TX, I was privileged to hear a federal judge say: "Judges are not the government . . . I don't know if there is a greater role that an Article III judge can play than to stand between the citizen and the government."

I think that we take it for granted that many judges not only see themselves as agents of the government, but also see their role as "law enforcement." Many federal judges are appointed from the U.S. Attorney's office, many state judges are elected from the solicitor's office, and many non-lawyer magistrates are appointed from either law enforcement or the probation office. It is only natural that they will have a prosecution or law-enforcement bent to their ideology, which may or may not change over time.

But the judge is supposed to be a neutral and unbiased arbiter, and (ideally) is looked up to by the public and the people who appear before them as the one person who has the power to ensure that what happens in the courtroom comes as near as possible to achieving Justice, and that the rights of the litigants, including defendants, are not trampled on.

I always assume that even the most prosecution biased judges do not see themselves as biased, and that they are attempting to do the right thing, based on their own concept of Justice. But, wouldn't the landscape change and the likelihood of Justice being achieved increase exponentially if all judges could say the same as this federal judge today. If all judges could see themselves as truly neutral in the struggle between the government and the rights of citizens rather than as an arm of law enforcement?

It is the job of the defense attorney to argue and persuade the jury to acquit our client, and to argue and persuade the court to preserve and protect the rights that we are given under the Constitution. But our arguments and persuasion are for nothing unless there are judges, in the trial courts or in the appellate courts, who are willing to hear them.

Some of our local magistrates consistently accept guilty pleas to DUI's at the initial bond hearing, sometimes only hours after the arrest for DUI. I can understand accepting a guilty plea to public disorderly conduct or breach of peace, giving a fine or time served and letting the person go home, but DUI? To their credit, I don't believe that the Myrtle Beach municipal judges will take pleas to DUI at the bond hearings (correct me if I'm wrong, maybe I just haven't seen it), but it happens pretty regularly at the County.

Why is this a problem? Well, let's begin with the fact that to plead guilty to DUI, the defendant has to admit to the court that they are drunk. Before accepting a guilty plea, the judge needs to make sure of a number of things, such as whether the person understands that they have the right to an attorney, that they have the right to a jury trial, that they have the right to proof beyond a reasonable doubt, to cross examine witnesses, to call witnesses on their own behalf, to testify in their own defense, to not testify or make any statements at all, etc.

The judge has to make sure that the defendant understands that they are waiving all of these rights and that their waiver is knowing and voluntary. How can a waiver be knowing and voluntary if the defendant is intoxicated to the extent that it affected their ability to drive? One of the standard questions that should be asked during the plea colloquy is whether the defendant has taken any alcohol or drugs in the last 24 hours that would affect their ability to understand the proceedings. If the answer is no, well then they can't be admitting to drunk driving can they? And if the answer is yes, then the judge should not be accepting the guilty plea.

I can only assume that the reason DUI pleas are taken at the initial bond hearing is to expedite moving cases through the system. If a bond is set and a court date given, then that defendant might actually exercise his or her rights and ask for a jury trial, which will further clog up the system taking up time and resources. If the defendant contacts a defense attorney within 5 days after the plea, once they sober up, they might be able to get the case re-opened and if not, they might be able to appeal the plea. But, in doing so, they may have to admit that they were intoxicated at the time that the plea was taken, which in most cases would cause them problems when they try to fight the DUI (exceptions - someone else was driving, or the defendant was arrested at home in bed (believe it or not this happens)).

Besides the propriety of accepting any guilty plea from a person who is intoxicated, there is the fact that a DUI 1st offense is probably the most serious misdemeanor that there is under S.C. law. It involves jail time and/or a substantial fine, license suspension, mandatory substance abuse counseling, SR-22 insurance for 3 years, possible loss of job and many other collateral consequences. Without the advice of counsel, most defendants are not aware of all of the consequences of such a guilty plea, and any decision that involves a criminal record should not be made while under the influence to any degree. Hence the requirement that the waiver of rights be made knowingly and voluntarily and not while under the influence.

In State v. Dickey, decided October 29th, the South Carolina Court of Appeals upheld a security guard's conviction for voluntary manslaughter and 16 year prison sentence. The evidence at trial showed that after the security guard, Dickey, evicted an extremely intoxicated person named Boot from the Cornell Arms, Boot came at Dickey on the sidewalk outside the apartments. Dickey shot and killed Boot, and was charged with murder. There was conflicting testimony as to exactly what was said as Boot and one other person came at Dickey, but whichever testimony was believed, there was an extremely intoxicated and angry individual advancing on the security guard before the security guard fired the shot.

Dickey's testimony was that Boot said to his friend "let's do this," as they advanced on him, and Boot reached under his shirt. Dickey told law enforcement at the scene that Boot came at him with a bottle he pulled from under his shirt, and a broken liquor bottle with some of Boot's blood on it was found at the scene.

South Carolina's "stand your ground" act, or the "Protection of Persons and Property Act" went into effect on June 9, 2006, and Dickey was charged with murder on April 29th, 2004. The Protection of Persons and Property Act essentially says that, if you are where you have a right to be, you do not have a duty to retreat when attacked, and can use deadly force to defend yourself:

A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60.

Prior to the passage of the Protection of Persons and Property Act, there was a duty to retreat except when in your own home or place of business (the Castle doctrine), unless to do so would place you in greater danger.

The Court outlines the factors that must be present to get a self-defense instruction to the jury, and notes that self defense is not an affirmative defense - once raised, it must be disproved by the prosecution:

(1) That he was without fault in bringing on the difficulty, (2) That he actually believed he was in imminent danger of losing his life or of sustaining serious bodily injury [], or he actually was in imminent danger of losing his life or of sustaining serious bodily injury, (3) If his defense is based on his actual belief of imminent danger, that a reasonable prudent man of ordinary firmness and courage would have entertained the same belief [], or if his defense is based on his being in actual and imminent danger, that “the circumstances were such as would warrant a man of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm, or losing his own life, (4) That he had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in the particular instance.

The Court held that the Protection of Persons and Property Act is not retroactive and therefore did not apply to Dickey; they also held that the jury could have found that Dickey was at fault in bringing on the difficulty because he drew his gun after Boot had left the apartment; and they found that the jury could have found that Dickey had a duty to retreat; therefore it was appropriate to send the case to the jury.

Even without applying the Protection of Persons and Property Act, the Court of Appeals could easily have reversed this conviction. The Court could just as easily have found that there was no evidence presented that Dickey was at fault in bringing on the difficulty - he was a security guard doing his job, which involved evicting a dangerous person from the apartments; and he was standing directly in front of the door to the apartments, on the welcome mat. No matter which testimony you believed, there were two individuals advancing on Dickey and a reasonable person in his situation would have feared for their safety.

No matter how I analyze this, under the old Castle Doctrine or under the new law, it just seems like the wrong result, and I believe that part of the problem is that this was a case that should never have been prosecuted in the first place.

McCrea v. Gheraibeh, decided by the S.C. Supreme Court on October 27, is a civil case in which the Court held that the fact that a juror has dreadlocks is not a race-neutral reason that will survive a Batson challenge. Although this was a civil case, Batson applies equally to civil or criminal cases.

Before a trial begins, each side gets a certain number of strikes that they can use during jury selection. In General Sessions in State Court, for example, the State gets 5 and the defense gets 5, except in the case of more serious offenses the defense gets 10 strikes. The clerk of court will randomly select juror's names from the jury pool, and the state and defense will either seat each juror or strike each juror, until there are 12 jurors seated or there are no more strikes to be used. Neither side may strike a juror based on their race or gender, and if either side suspects that the other side has, they can make what is called a Batson motion, challenging the other side's strikes as racially or gender motivated. In a criminal trial, usually it is the prosecutor who is accused of striking jurors based on race, although the prosecutor also has the right to make a Batson motion.

The burden is on the party challenging the strikes; once the juror in question has been identified, the prosecutor then has to provide a racially neutral reason for striking that juror (not difficult for a prosecutor who is on their toes and has made decent notes during jury selection). Once a race-neutral explanation is given, then the burden is on the defense to prove that the reason given was only a pretext by showing another juror who was similar situated but who was not struck from the jury. For example, if Ms. Black was struck by the prosecutor because she is a single mom, then to prevail on the Batson motion, the defense must show that the prosecutor did not strike Ms. White from the jury, who is also a single mom.

There are a thousand possible reasons the prosecutor could give for striking a juror that would be race-neutral, and the inquiry is very fact specific and in the discretion of the trial judge in any given case. The only real significance of Gheraibeh is that it shows that Batson is still alive and well, and a majority of our State Supreme Court are not going to allow just anything to be used as a race-neutral explanation for the striking of black jurors. The Court's reasoning for its decision in this case was that dreadlocks are a hair style predominantly worn by blacks:

While we recognize the importance of properly allocating the burden of proof in a Batson inquiry, in our view, counsel’s explanation that he struck the particular juror based simply on counsel’s “uneasiness” over the juror’s dreadlocks was not a race-neutral reason for exercising a peremptory strike. Regardless of their gradual infiltration into mainstream American society, dreadlocks retain their roots as a religious and social symbol of historically black cultures.[2] For this reason, we hold that counsel’s explanation that the juror’s dreadlocks caused him “uneasiness” was insufficient to satisfy the race-neutral requirement in the second step of the trial court’s Batson analysis. See also Payton v. Kearse, 329 S.C. 51, 56, 495 S.E.2d 205, 208 (1998) (holding that basing a peremptory strike on a characterization of the juror as a “redneck” is facially discriminatory in violation of Batson).

A better rule would be to require a race-neutral reason for striking the juror that also makes sense as a non-pretext. In a recent murder trial, the prosecutor struck all black persons whose names were selected, except one. For one in particular, the race-neutral reason given was that the juror "flipped her hair and looked at me funny." Certainly, this is race neutral, but should we allow such nonsensical answers as race-neutral explanations for striking a juror? A prosecutor could give this as a reason for every single juror that has been struck (the juror leaned to the left side and looked at me funny; the juror scratched his butt and looked at me funny), and as long as the prosecutor does not seat a white juror who has the same job or living situation as that black juror who was struck, the prosecutor can successfully keep all or most black persons off the jury.

When there is a black defendant on trial, an all white jury is not necessarily a jury of his or her peers, and a prosecutor who routinely strikes black jurors is depriving that Defendant of a fair trial.

I will be at the National Association of Criminal Defense Lawyers Defending Drug Cases seminar in Houston, TX, this week. Continuing legal education is a requirement that most attorneys seem to dread as a chore that must be done by the end of the year; I've found that every year I get all of the credits that I need by attending NACDL and SCACDL (South Carolina Association of Criminal Defense Lawyers) seminars, and I always have a good time and see old friends while learning from the best.

If any readers are planning on being there, feel free to look me up. I'm in Houston now, and will be here through Saturday.

Don Sorenson was issued a public reprimand as a result of his arrest for unlawful gambling in April of this year. At the time, Sorenson was the deputy solicitor for the 1st judicial circuit. He resigned from that job, but apparently has since found a new home at the Kershaw County Solicitor's Office.

A public reprimand is not a particularly harsh penalty for a criminal conviction, but in my opinion gambling should not be criminalized in the first place. It is a victimless "crime" and it should be decriminalized along with drug possession and prostitution. But - victimless crime or not, it is still a crime, and, as the deputy solicitor, Sorenson was responsible for enforcing the law even as he was repeatedly breaking it.

Ernest Yarborough, on the other hand, was disbarred this month as a result of his 1997 conviction for obstruction of justice:

In 1996, Respondent was indicted for common law obstruction of justice and offering a witness money with the intent to influence testimony in violation of S.C. Code Ann. § 8-13-705 (Supp. 1998) in connection with his representation of a defendant who was charged with burglary.[1] The State presented evidence that Respondent offered the accuser money to drop the charges against the defendant and that he sent an investigator to pressure the accuser to drop the charges. The jury found Respondent guilty of obstruction of justice, but acquitted him on the statutory violation.

Yarborough has been on interim suspension since his conviction, disciplinary proceedings were begun after Yarborough's appeals process had run out, Yarborough did not respond to the disciplinary charges and he was held in default. I found the following on the National A/E/C Speakers Registry, which appears to be Mr. Yarborough's profile:

Mr. Ernest Yarborough, Juris Doctor. I overcame all of the socio-economic barriers to become a distinguished military leader and subsequently departed the military to obtain a Juris Doctors degree from the University of North Carolina at Chapel Hill. I returned to my hometown in South Carolina to build a very successful law firm. I was attacked by the State of South Carolina with criminal charges, but I refused to settle. I fought the state for 10 years, prevailing on the most charges but I had to serve 100 days in prison for obstruction of justice. Despite my struggles with the State, my soul was intact and I became a powerful minister of the gospel. My rise and fall and resurrection is a testament of faith and survival.

In May of this year, I blogged about a California prosecutor, Ben Field, who was being investigated for misconduct for things such as withholding evidence, failing to inform the defense that a key prosecution witness may have participated in the crime, and initiating searches of the homes of a defendant's family and friends despite a judge's order not to do so without prior approval.

I came across an update to the story, and what struck me as I was reading was the role that the media played in bringing this prosecutor's conduct into the light of day. The Mercury News ran a series in 2006 called "Tainted Trials, Stolen Justice," in which "the Mercury News reviewed Field's conduct, and found a pattern of questionable conduct in earlier cases as well." The Mercury News continued to follow the story, keeping the pressure on the California state bar to do something about the situation.

In May of this year, the California bar began a series of disciplinary hearings into Field's conduct.

But as Field won convictions in one difficult case after another, his aggressive conduct in the courtroom raised questions about whether he was twisting facts and defying judges to gain his victories. And beginning today, that conduct will be at issue in a rare state bar hearing examining allegations of prosecutorial misconduct.

In October, the California bar recommended a punishment of disbarment for a three year period:

Contending that a top local prosecutor repeatedly sought to subvert justice, the state bar is recommending that Ben Field be suspended from practicing law for three years — a punishment that would represent an unheard of public discipline against a Santa Clara County deputy district attorney.

. . .

The bar contends the four cases demonstrated repeated "acts of dishonesty and an intent to subvert the proper workings of the criminal justice system." In one case they cited, Field concealed from defense attorneys that he knew the location of a witness whom the defense was having trouble locating. Instead, he urged that defense efforts to win a new trial be rejected because the witness was missing.

Now, California prosecutors are seeking to pass a law that would limit the bar's ability to sanction lawyers for misconduct:

In the wake of a disciplinary hearing against a top local prosecutor, the union that represents Santa Clara County prosecutors and public defenders is asking the California District Attorneys Association to sponsor a bill that would essentially curb the power of the state bar to punish all lawyers.

The type of conduct Field engaged in, seeking to win cases at the expense of justice and all that the justice system is supposed to stand for, happens in every state in the country. If it were not for investigative reporting and subsequent media exposure, this Field guy would be well on his way to a judgeship, attorney general or other political office. Hell, he may still be, but hopefully he won't be a prosecutor any longer.

It is sad that it took extensive media coverage to shame the state bar into doing something about prosecutorial misconduct, and now that something is being done the prosecutors are seeking to limit the state bar's supervisory abilities. This is a problem that should be addressed throughout the country - when judges, at the trial level and on appeal, refuse to dismiss cases or sanction prosecutors in any way, and when the state bar refuses to sanction prosecutors for misconduct, the message is clear: it is OK to withhold Brady material, lie, cheat, and do whatever you have to do in order to win cases. The power of the media to effect change in a broken system cannot be understated, and that power carries with it a huge responsibility.

In an article today, the NY Times highlights the growing crisis in public defender's offices around the country, in states which are not providing funding to adequately represent the indigent.

Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.

Most defendants cannot afford to retain a criminal defense lawyer, but Gideon and the Sixth
Amendment requires that the state must provide people with effective counsel before a person can be prosecuted. The key is that every person is entitled not only to a lawyer standing with them in court, but they are entitled to the effective assistance of counsel, which is impossible when the system requires the public defender to support caseloads of 400 or 500 defendants. It is not possible to investigate cases and do legal research with this type of caseload, nor is it possible to try every case that should be tried.

The ethics rules require that an attorney limit his or her caseload to an amount that is manageable, and taking on too many cases is malpractice. But public defenders are put in a difficult position, when they do not necessarily have control of how many cases they receive, and they know that every person must have representation.

In several states public defenders have filed lawsuits and in some cases have been authorized by judges to stop taking cases until the state adequately funds indigent defense.

“In my opinion, there should be hundreds of such motions or lawsuits,” said Norman Lefstein, a professor at the Indiana University School of Law and an expert on criminal justice.

“I think the quality of public defense around the country is absolutely deteriorating,” Mr. Lefstein said, asserting that unless states spent more on lawyers, the courts would force them to delay trials or, as has happened in a few cases, threaten to drop charges against unrepresented defendants.

The most immediate impact of the rushed justice, Mr. Lefstein and Mr. Carroll said, is that innocent defendants may feel pressure to plead guilty or may be wrongfully convicted — which means the real offenders would be left untouched. Appeals claiming inadequate defense are very difficult to win, experts say.

An alternative to spending more on defense would be not arresting and charging so many people. Not prosecuting victimless crimes, such as drug possession, gambling, prostitution, and, arguably, non-felony DUI, would free up resources for both the prosecution and the defense. Costly space in jails and prisons would be emptied and we could refocus on treatment and prevention as well as the prosecution of violent crimes that actually have victims. Less prosecutions, less money would need to be allocated to the defense of indigents. In the meantime, States have got to adequately fund indigent defense and when they do not, public defenders should be refusing cases.

For the past few months, we have been working around the clock on a double homicide that we tried this past week. The following is now part of the public record in this case: There were three defendants; at the close of the state's case one defendant received a directed verdict on all charges and my client received a directed verdict on half of his charges. We went to the jury on the remaining charges and after 10 hours the jury deadlocked. We will retry the case whenever the state is ready, which could be next month.

During the trial, one state's witness told the jury that the police had threatened him and then told him what to say. He recanted his story on more than one occasion, and recanted it at trial on the stand. Another state's witness was recorded repeatedly telling an officer that he was going to do anything they wanted him to do so long as they helped him on his drug charges. This same witness let it "slip" while testifying that he had taken a polygraph, but did not say whether he passed it or failed it. Although the jury never heard the result, it is now a matter of public record that he did in fact fail that polygraph, specifically on the testimony that he was giving to the jury.

Which raises, again, this issue of polygraphs. Although the case that we tried last week will not go up on appeal and so our appellate courts will not yet have an opportunity to look at this particular issue, South Carolina defense lawyers should be alert to this admittedly narrow issue, where one party's witness has failed a polygraph and mentions the test but not the result on the stand, and be ready to make a record when it arises. The S.C. rule, in State v. Council, 335 S.C. 1, is that polygraphs are not sufficiently reliable to be admissible in court. I agree with this rule. As I have discussed before, polygraphs are not reliable and, although prosecutors and law enforcement often say that they swear by them, they typically ignore the results unless they are favorable to them. More often than not, the polygraph is used as an interrogation tool rather than a truth-seeking tool. But, there are exceptions to every rule, and I believe that there are limited circumstances when the result of a polygraph should be admitted at trial. One example is where a witness makes the mention of a polygraph but not the test result, where the mention of the test result would be prejudicial to that witness or the party who has put up his testimony.

In a situation where a witness mentions taking a polygraph, but the jury never hears the result, the jury is going to assume that that person passed his polygraph, for two reasons: first, the prosecutor surely would not put a witness on the stand who had failed a polygraph, and second, the witness surely would not have mentioned it unless he passed it. If the court gives a curative instruction (polygraph evidence is not reliable and you are to disregard any mention of the polygraph by this witness), it will only reinforce the jury's assumptions that the witness must have passed the polygraph.

Polygraphs are never admissible in court, because there is no scientific consensus as to their reliability, but what happens when a state's witness makes the mention of a polygraph, knowing that he failed it, and the state is then allowed to benefit from it? There are two situations where this "slip" occurs. First, this comes up when an attorney attempts to elicit information that would help his side of the case, for example if a defendant passed a polygraph and he says on the stand, "You know I took a polygraph don't you?" At that point, the defendant could not be allowed to benefit from his mention of the polygraph, whether intentional or not, and the results could not be admitted.

Second, there is the less common situation where the party making the "slip" is actually prejudiced by the polygraph result. What if the defendant had failed the polygraph, and then says on the stand, "You know I took a polygraph don't you?" The results could not fairly be excluded, nor should a mistrial be granted, because either result would allow the defendant to benefit from his mention of the polygraph. If the results are excluded and the trial goes forward, the jury is deceived and assumes that the defendant passed the polygraph. If a mistrial is declared, this would allow any defendant, if the trial was going badly for them, to simply say "You know I took a polygraph," and get a mistrial. The only fair resolution for this particular situation, where the mention is made and it is prejudicial to the party, would be to allow the jury to hear the polygraph result, since the defendant opened the door and could not then be allowed to benefit from his misconduct.

The same standard should be applied where the state's witness, particularly where that witness' credibility wins or loses the trial for the state, makes such a "slip." There are many circumstances where, when a party "opens the door" to otherwise inadmissible evidence, that evidence is then fair game. This is the case when a defendant takes the stand and testifies regarding his character or his propensity to commit a certain type of crime. Ordinarily, evidence of bad character is not admissible against the defendant in a criminal case, but once the defendant opens the door, it is fair game and the prosecutor can cross examine or introduce other evidence of the defendant's bad character.

I don't think that polygraphs should be admissible in court, as a general rule. But in the limited circumstances where a party, state or defendant, puts up testimony of a witness who has failed a polygraph, and that witness mentions the polygraph, that party should not be permitted to benefit by allowing the jury to assume that the witness passed the polygraph and thereby bolstering their witness' testimony.