South Carolina Criminal Defense Blog

December 30, 2008

The following statement from Bar President Flo Vinson was released on Monday, December 29:

The Bar is deeply distressed over the announcement of the suspension of payment of legal fees to court-appointed attorneys in non-capital cases. Prior to this latest announcement, the General Assembly had failed to appropriate any recurring funding for cases involving abuse and neglect of children; the elderly and the vulnerable; termination of parental rights; appointments of guardians ad litem; and other matters heard in family courts across the state. The recently announced elimination of funds to provide representation for many of those accused of crimes further undermines the ability to protect the constitutional rights of our citizens. The Bar is appreciative of the efforts made to sustain the statewide public defender offices, but more resources must be made available and court appointments without compensation must cease.

South Carolina currently ranks 43rd out of 50 states in public defense spending. Public defense is a constitutional right and in many instances a legislative mandate, not a discretionary program. It is extremely disheartening to see that the resources for those seeking due process and competent representation are being compromised, rather than protected. Providing for the protection of constitutional rights through financial resources and personnel is the responsibility of the legislative and executive branches. The State's obligation should not continue to be borne by a small number of private citizens - the legal profession.

When the state does not appropriate funds to pay appointed attorneys, the appointed attorneys should refuse to work for free. The hardship that non-payment causes on the private attorney inevitably translates into ineffective assistance of counsel and a denial of the defendant's Sixth Amendment rights. Private attorneys who have businesses to run, bills to pay, and employee's paychecks to sign each week cannot bear the costs of indigent defense in this state. If the state wants to prosecute people, the state must bear the cost of their defense, indeed they are mandated to do so by the Constitution.

An example of the dilemma that refusing to fund appointed counsel creates is this: in a recent murder prosecution, I invested approximately 300 hours in the case, all of which was reasonable and necessary to provide an effective defense, through the trial - which resulted in a hung jury. In addition to the hours that I put into the case thus far, my paralegal has worked tirelessly on the defense and I will not be compensated for her time, an associate in my firm has donated over 100 hours and we will not be compensated for her time, and I paid a law clerk out of my pocket without asking for compensation. We essentially shut down the office for a total of three weeks before and during the trial, during which time we lost potential clients and we were not working on paying clients' cases. We still have to try this case again, and it is not the only case that we have been appointed to.

I'll go beyond the need for appointed lawyers to refuse cases in the face of insufficient funding, however. The public defenders and others charged with the defense of indigents in our state need to accept responsibility for ensuring that we are complying with the Sixth Amendment and providing effective representation.

Defense attorneys, public defenders included, have a duty to investigate each case fully, not to recommend a guilty plea to a client unless investigation and study of the case has been completed, and to maintain a manageable caseload so that our duty to each client can be fulfilled. From the ABA standards; Defense Function:

Standard 4-4.1 Duty to Investigate (a) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.

Standard 4-6.1 Duty to Explore Disposition Without Trial
(b) Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.

Standard 4-1.3 Delays; Punctuality; Workload
(e) Defense counsel should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the client's interest in the speedy disposition of charges, or may lead to the breach of professional obligations. Defense counsel should not accept employment for the purpose of delaying trial.

Professor Monroe Freedman, in his article, An Ethical Manifesto for Public Defenders, also suggests that public defenders have a duty to refuse cases when the attorney's caseload causes an inability to devote sufficient time to each case:

First, a lawyer who is assigned to represent a client in a criminal case, and who is unable to give competent and unconflicted representation to that client, is ethically required to decline the representation.

Second, if the lawyer’s supervisor nevertheless orders her to take the case, the supervisor has committed a serious ethical violation, and the lawyer has an ethical obligation to report the supervisor’s unethical conduct to the appropriate disciplinary authority.

Third, the lawyer may be required under rules of the court, and therefore under ethical rules, to obtain permission of the court to decline the assignment. However, it would be an ethical violation for a judge to order the lawyer to undertake a case in which the lawyer would necessarily be violating both the Sixth Amendment and fundamental ethical rules relating to competent representation. The lawyer would therefore be required to report the judge’s unethical conduct to the appropriate judicial disciplinary authority.

Fourth, the lawyer would be required to put on the record in the case the fact that, because of commitments to other clients, the lawyer cannot give competent, conflict-free representation to the new client. This would establish a violation of the Sixth Amendment, because the entry of a guilty plea is a critical stage, regardless of whether the charge is a felony or a misdemeanor.

Fifth, the lawyer would be required to inform the client of any plea offer from the prosecutor. However, the lawyer would also be required to inform the client that her representation of the client cannot be performed competently and, specifically, that she does not know enough about the case to give the client any legal advice. Further, she would be forbidden to advise the client to accept the plea offer.

Sixth, if the client chose to accept the plea offer, the lawyer would be required to put on the record that she has not advised the client with regard to the plea because to do so would violate her ethical obligations of competent and conflict-free representation.

What would be accomplished if public defenders and other court appointed lawyers did these things? They would establish compelling records of the extent to which the constitutional promise of Gideon is being broken. They would give individual clients grounds to attack their sentences directly and collaterally. They would establish the basis for class actions on behalf of their clients and other defendants who have similarly been denied the right to counsel. They would provide the news media with dramatic source material for informing the public about the failures of the administration of criminal justice. And they would make it more difficult for society and for the established bar to continue to deny due process.

The reality of Freedman's suggestions are: the public defender may be fired if he refuses to accept cases, and certainly if he files a grievance on his boss; and that attorney would have an even more difficult time if he files a grievance on the judge. Despite the obstacles, it is my opinion that the public defender should do what is necessary to preserve the Constitution and best serve their clients. If every public defender joined in demanding change, then change will happen. It takes the first to make a stand before others will follow.

Your job is to fight for the preservation of the Sixth Amendment for your clients. What is that job worth if you have to trample the Sixth Amendment in order to keep it?

Related posts:
Indigent defense - what can be done
S.C. indigent defenders have dropped the ball
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?

In South Carolina, the standard for the granting of state habeas relief is a high one; "[a] writ of habeas corpus is reserved for the very gravest of constitutional violations 'which, in the setting, constitute[] a denial of fundamental fairness shocking to the universal sense of justice.'"

In Williams v. Ozmint, released December 22, the South Carolina Supreme Court denied habeas relief in a death penalty case, where the prosecutor had stated to the jury three times that he expected the death penalty, without objection from the defense. Williams had already been through his direct appeal and two PCR petitions in state court, and a federal habeas petition that was granted by the district court but denied by the Fourth Circuit Court of Appeals.

The Court discussed the history of habeas in S.C. state courts, noting that, although habeas is still a viable form of relief, under the Post-Conviction Relief Act PCR essentially has replaced most forms of habeas relief. Habeas petitions are still admitted, essentially as a safety valve for egregious errors that somehow were not corrected by any other means, and it is difficult at best to obtain relief by state habeas petition.

The Court distinguished State v. Northcutt , in that, although the prosecutor in Northcutt also stated to the jury that he expected the death penalty, the actions of the prosecutor were more egregious ("The solicitor in Northcutt, an infant homicide case, not only stated that he “expected” the death penalty, but also declared that it would be “open season on babies” if the jury did not return the death penalty and staged a funeral procession with a black shroud draped over the victim’s crib").

Indigent defense funding is not discretionary, to be set aside when times are hard economically - if there is no funding for indigent defense, there can be no prosecutions. South Carolina is not alone in funding problems, and our public defenders can learn from what other defenders have done and are doing around the country, in defiance of the politics that govern them.

A recent article in the New York Times noted that:

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.

Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, many of the government-appointed lawyers say that state budget cuts and rising caseloads have pushed them to the breaking point. . . .

“Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases,’ ” said David J. Carroll, director of research for the National Legal Aid and Defender Association.

The public defender's office in Miami Dade County obtained a ruling from a judge that they could refuse to represent those defendants charged with lesser felonies, in an attempt to provide an effective defense to those charged with the more serious crimes.

In Kentucky the state public advocate has sued for the right to turn down cases that defenders could not ethically take on. (Why sue for permission to do something that is already constitutionally and ethically required?) In Missouri, public defenders have begun to refuse to accept misdemeanor cases that would not result in incarceration, and public defenders in Tennessee, Minnesota, Maryland, and Arizona have either filed lawsuits or begun to turn down cases.

I agree with Andrew Perlman at Legal Ethics Forum, who has said:

It's nice to see the issue getting some high profile media attention, but I fear that the problem will only get resolved if public defenders stop taking cases that they don't have enough time or resources to handle ethically. Unless the system comes to a halt, it seems unlikely to me that state legislatures will make this issue a priority.

Santa Barbara, California public defenders are beginning to refuse cases. In 2005, appointed attorneys in Massachusetts refused to accept cases following an announcement that the Committee for Public Counsel Services (CPCS) had run out of money due to budget cuts:

Lawyers in Taunton District Court who represent indigent defendants joined a grass roots labor strike yesterday, refusing to accept new cases until the state pays them.

Of the 160 private lawyers in Bristol County who accept court-appointed
clients, more than a third informed the state committee that hires them
that they will no longer take cases, said Gerlinde Lowe, an administrator
for the Committee for Public Counsel Services.

"I'm not going to work for nothing," said city attorney Thomas E. Workman
Jr.

Workman said CPCS posted a letter on July 18 announcing it had run out of
money because of Gov. Mitt Romney's budget cuts, and would no longer accept
their bills. In response, lawyers in New Bedford, Wareham, Dudley and now
Taunton are refusing to accept court-appointed cases, he said.

So, what can be done? First of all, appointed counsel should refuse to accept cases until funding is made available. If it can be done without prejudice to the client, appointed counsel should refuse to work on current appointed cases, and file motions asking the court to halt prosecutions and release these individuals from jail until funding becomes available. Beyond this, public defenders need to step up to the plate and demand that they be given the means to provide an effective defense for their clients, even if this means refusing to accept new cases once their workload has grown past ethical limits.

Related posts:
S.C. indigent defenders have dropped the ball
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?

When reporters complained that the Beaufort County Sheriff was in violation of FOIA by refusing to provide access to incident reports on weekends and by heavily redacting the reports, the Sheriff said he would ask the Attorney General for an opinion on the matter.

The Attorney General obliged, and has disappointed the Sheriff by announcing that the Sheriff is wrong, after all.

A new policy of the Beaufort County Sheriff's Office violates the state's open records laws by not providing reasonable public access to police reports in a timely fashion, according to a state Attorney General's Office opinion released Tuesday.

The Sheriff apparently still intends to do things his way, choosing not to abide by the decision that he asked for himself:

While the S.C. Press Association lauded the opinion -- calling it a "line drawn in the sand" --Tanner said he has not yet decided whether he will comply. He conceded his office might allow reporters to review incident reports on weekends and holidays, but said no new reports would be released on those days.

"If you go into the office on the weekend, what you're going to see is what was already there on Friday," Tanner said.

At officer.com:

Baltimore County police were called to a fast food restaurant at Loch Raven and Taylor avenues at about 2:30 a.m. Saturday after getting calls that a state trooper who appeared to be drunk was using a marked police car -- lights and sirens blaring -- to pull people over at the drive through.

According to court documents, a witness reported that "a drunken state trooper grabbed (one man) out of his car and put him in the police car."

Investigators said county police approached the trooper, but as they did, he took off, racing east on Taylor Avenue at a high rate of speed. The court documents said when the trooper finally stopped, he provided his Maryland State Police identification.

Miller reported that the trooper had trouble with a field sobriety test, allegedly admitting, "That's great. I'm drunk."

Video can be found here.

By continuing to disburse the limited funds to public defender offices and by announcing that no payments will be made to the Rule 608 appointed attorneys, the SCCID has conveniently laid the burden of demanding funding from the legislature on the shoulders of the private bar. The Commission has not said if or when they will resume payments to appointed attorneys, only that there is no funding, they will review the policy after 90 days, and that payments would be made if funds are available in the future.

The issue here is not that private appointed attorneys will lose money on these cases. The issue is the effect that the attorney's loss will have on his appointed clients. The problem is that, if indigent defense is not funded, then indigent clients will not receive effective assistance of counsel. Unlike public defenders, prosecutors, or judges, private attorneys have businesses to run, bills to pay, and mouths to feed. Time spent on appointed cases is time that is not spent on paying cases, and when attorneys have to make a choice between working on an appointed client's case for free, or taking on a paying case that will pay the rent and the light bill, who is going to lose?

By forcing any attorney to work without any compensation on an appointed case, an unavoidable conflict of interest is created which will result in ineffective assistance of counsel. The private bar, I hope, will fight for relief for the indigent clients that have been foisted on them. But the responsibility lies with our state's indigent defenders, who are failing miserably.

Why stop payment of Rule 608 vouchers, rather than say to the legislature, look - you have to fund indigent defense, if you don't you will not only not have appointed attorneys but you will not have public defenders? The Commission should have continued to disburse funds where they are needed, until the funds are gone, at which point the legislature will have no choice but to take action. These are not discretionary funds that can be done away with when times are tough economically. The criminal justice system cannot operate without funding for indigent defense. By putting the burden on the private bar's shoulders, you are avoiding the showdown that needs to happen to make this point to the legislature and the public.

I can only assume that our public defenders and members of the Commission are not taking on this fight because they are daunted by the politics involved. The (justified) fear is that, if I am a rank and file public defender and I refuse to take on new cases, I will be fired. If I am a circuit defender and I refuse to take on cases, I will also lose my job. Anyone who dares to speak out about the necessity of satisfying the Sixth Amendment and Gideon and providing effective counsel to indigents will suffer political fallout. But - this is a fight that the people charged with the responsibility of indigent defense should be taking on vigorously, politics or no.

We should be demanding not only payment for the private appointed attorneys, but public defenders should be refusing unethical case loads that prevent them from properly investigating and testing their cases. If you feel that you don't have time to meet with your client outside the presence of the solicitor or to contact potential witnesses in your case; if you are forcing clients to plead guilty because you know that you do not have time to prepare your case for trial, your case load is too high.

Public defenders should be insisting on sufficient office staff to provide an effective defense for indigents, and should be in a position to encourage their staff attorneys to take cases to trial, and train them as to how. If we are going to prosecute more and more people under an ever increasing number of criminal statutes with ever increasing penalties, we have to fund indigent defense accordingly - and we have to stop making excuses and stop settling for what passes for effective assistance of counsel in this state.

Related posts:
Indigent defense - SCCID suspends payments to Rule 608 appointed lawyers
No funding for indigent defense?

A lawyer in Arizona was arrested the week before Christmas, for giving his client a piece of candy in the courtroom.

[The Sheriff's Office spokesperson] told the publications that Rossi asked the detention officers if he could give his client a piece of candy, then ignored their answer when they said he could not do it. D’Evelyn claims Rossi responded, "What are you going to do, arrest me?" before placing the candy in the inmate’s mouth.

The Sheriff's Office says that they are concerned about "the candy contraband issue," and says that it is a "security issue." "They get fed three squares a day and we don't feed them in court." I think that it may an "authority" issue, not a security issue. The guards at every courthouse I have ever been in are very concerned that every person do what they tell them to do without question. In general you defer to the guards and do things however they want them to be done, but take it to the judge if it is an issue that you cannot live with. They are in charge of security, after all.

But they can take it too far, as in this guy's case in Arizona. The attorney was arrested at his home the day after the "candy incident," and the guards made their point.

I focus quite a bit on the negative, the unethical things that some prosecutors do to win their cases, but I need to give credit where credit is due. In a recent case in Florence, S.C., in 2000, two brothers were accused of shooting a corrections officer in a convenience store during a robbery. In 2005, they went to trial on charges of assault and battery with intent to kill, conspiracy, and possession of a weapon during a violent crime; they were found guilty of the conspiracy and weapon charge but the jury could not reach a verdict on the ABWIK charge. The only evidence was the testimony of two jailhouse snitches who were looking for deals from the prosecutor. The brothers were sentenced to five years.

The solicitor waited until they were to be released from prison, and then decided to retry the brothers on the ABWIK charge; and at this point my firm became involved. While investigating the case, I discovered that there was clothing that had been discarded by the robbers/shooters at the crime scene, including a hat that hairs had been recovered from, that the hairs had been tested by a DNA lab, and that the results conclusively excluded the two brothers. This evidence had never been provided to the original defense attorneys, and the first jury had never seen it.

There are two sides to this story - the original prosecutor either deliberately withheld this evidence or handled the case in such an incompetent manner that he honestly did not know that it existed; and the decision to retry the case after the defendants were to be released from prison I believe was underhanded and distasteful.

The other side to this story is that the new prosecutor who was assigned to the case for the re-trial, when he discovered what had happened in the case, immediately understood that an injustice had occurred and that the remaining charges needed to be dismissed. Although it took a few more days for the powers-that-be in that solicitor's office to get on board, my hat is off to the prosecutor who signed the paperwork dismissing the remaining charge and releasing the defendants from custody. Although they can never give them back the years that they served in prison following the first trial, many prosecutors would have continued to hide the evidence and would have refused to admit that their office had made a mistake; those defendants could have gone to trial and could have been sentenced to an additional 20 years for a crime that they did not commit.

South Carolina's Commission on Indigent Defense recently announced that they were suspending payment to all attorneys appointed to represent indigent defendants. In South Carolina, we have a public defender system. Each circuit's public defender office represents those who cannot afford lawyers, at least in General Sessions level offenses (felonies and high misdemeanors). Most counties do not provide defense attorneys to those who are charged with magistrate level misdemeanors such as CDV and DUI, even though the solicitor's offices provide attorneys to prosecute them.

When cases are conflicted out of the local public defender's office, such as when there are multiple co-defendants preventing ethical representation of all by the same office, the conflict cases are appointed to members of the local bar under Rule 608. These attorneys, who are not always defense attorneys, have no choice in the matter and must accept the cases. Some defense attorneys volunteer to take some additional cases. Some with smaller offices do this to supplement their income, and others do it because we are defense attorneys, and these cases should not be foisted upon those lawyers who practice exclusively civil law such as real estate attorneys or tax attorneys.

The Commission pays $40.00 per hour out of court/ $60.00 per hour in court to Rule 608 appointed lawyers, which is mandatory by statute, up to an arbitrary cap set by the legislature:

§ 17-3-50. Determination of fees for appointed counsel and public defenders; maximum amounts; authorization to exceed maximum; payment for certain services. (A) When private counsel is appointed pursuant to this chapter, he must be paid a reasonable fee to be determined on the basis of forty dollars an hour for time spent out of court and sixty dollars an hour for time spent in court. The same hourly rates apply in post-conviction proceedings. Compensation may not exceed three thousand five hundred dollars in a case in which one or more felonies is charged and one thousand dollars in a case in which only misdemeanors are charged. Compensation must be paid from funds available to the Office of Indigent Defense for the defense of indigents represented by court-appointed, private counsel. The same basis must be employed to determine the value of services provided by the office of the public defender for purposes of Section 17-3-40.

There is no compensation for overhead or time spent on cases by secretaries, paralegals, or other support staff. The overhead in most law firms significantly exceeds $40.00 per hour, sometimes by several hundred dollars per hour based on a 40 hour work week, and the compensation as dictated by the legislature does not compensate for the time spent defending appointed cases, it only defrays some of the expense.

Demanding that private attorneys handle these cases at the ridiculous statutory rate results in a significant taking of the attorneys' time and resources. Asking that private attorneys handle these cases without pay is unacceptable.

By continuing to disburse the limited funds to public defender offices and by announcing that no payments will be made to the Rule 608 appointed attorneys, the Commission has conveniently laid the burden of demanding funding from the legislature on the shoulders of the private bar.

South Carolina recently passed a law which allows law enforcement to collect DNA samples from persons who have been arrested for felonies and some misdemeanors, regardless of whether they are convicted or not. This is a growing trend, mirrored by the federal government and many other states. Recently, in a hopeful reverse of this trend, the European Court of Human Rights held that DNA samples taken from innocent persons could not be held in a database for government use.

An article yesterday in the LA Times highlights the dangers of ever-expanding DNA databases and the fact that mistakes are made. These mistakes will become more and more common as the size of the database increases exponentially, leading to more and more persons accused of crimes they did not commit.

In 2004, a New Jersey prosecutor announced that DNA had solved the mystery of who killed Jane Durrua, an eighth-grader who was raped, beaten and strangled 36 years earlier.

"Through DNA, we put a face to the killer of Jane Durrua, and that face belongs to Jerry Bellamy," prosecutor John Kaye said.

The killer, however, turned out to be someone else.

Two years after Bellamy's arrest, investigators discovered that evidence from the murder scene had been contaminated by DNA from Bellamy, whose genetic sample was being tested at the same lab in an unrelated case. He was freed. Another man ultimately was arrested in the killing but died before trial.

DNA has proved itself by far the most effective and reliable forensic science. Over the last two decades, it has solved crimes once thought unsolvable, brought elusive murderers and rapists to justice years after their misdeeds and exonerated the innocent. In courtrooms and in the popular imagination, it is often seen as unassailable.

The FBI's national database currently contains 6.4 million profiles, and it is predicted that it will add 1.3 million each year. Cross-contamination is the leading source of error in DNA analysis, and has led to the wrong persons being accused.

I'm not disputing that the evolving science of DNA analysis is incredibly useful and can be undeniably accurate in some instances, my issue is with the creeping growth of the collection of DNA for inclusion in databases. We have progressed from taking DNA samples from convicted felons who serve time in prison, to taking DNA samples from convicted felons serving probationary sentences, to taking DNA samples upon a person's arrest. I have no doubt that ultimately, they would like to have a DNA sample from every living person in the country, and we are getting there one small step at a time.

We need to realize that DNA analysis is not a perfect science, that errors do result in wrongful accusations and even wrongful convictions, and that the larger the databases grow, the greater the possibility of errors. The difference is going to be that mine, yours, and our legislators' DNA samples are going to be in the mix at some point, not just those "other people" who have been convicted of crimes.

Earlier this year, a law was passed requiring the S.C. DMV to provide jury lists to the municipal courts, compiled from licensed drivers and holders of S.C. ID cards. Before this law was passed, the jury lists were compiled solely from lists of registered voters, which causes concern for many as registered voters are not necessarily a representative cross-section of the defendant's peers. The DMV, however, has not provided the necessary list of licensed drivers to the municipal courts from which to draw their jury pools, citing "some sort of automation problem," according to Chief Justice Toal.

In response, the Chief Justice issued an order on December 11th stating that, through February 15th, municipal courts should use jury lists created from registered voters only.

The Supreme Court of South Carolina

RE: Municipal Court Jury Lists
--------------------------------------------------------------------------------

ORDER

--------------------------------------------------------------------------------
I FIND THAT Act No. 270 of 2008 amended Code §14-25-130, so as to require that the South Carolina Department of Motor Vehicles (SCDMV) shall provide to the State Election Commission an electronic file of all individuals eligible for jury duty in each municipality who hold a valid South Carolina driver's license or identification card issued pursuant to State law. The State Election Commission is then required to merge this list with the list of registered voters in each municipality and distribute this merged list in October of each year to municipalities statewide for the preparation of jury lists for municipal courts. SCDMV has reported that they are currently unable to furnish the list described above to the State Election Commission, leaving the State Election Commission currently unable to provide municipalities with a jury list in compliance with Act No. 270 of 2008.
THEREFORE, pursuant to Article V, Section 4, South Carolina Constitution,
IT IS ORDERED that, due to the current inability of SCDMV to comply with the provisions of Act No. 270 of 2008, the State Election Commission shall distribute 2009 municipal jury lists comprised only of registered voters in each municipality. Municipalities statewide are authorized to draw juries through February 15, 2009, from lists comprised of registered voters provided by the State Election Commission. Any juries drawn on or prior to February 15, 2009, for cases held subsequent to February 15,2009, are valid pursuant to this Order.
The provisions of this Order are effective immediately and remain in effect through the end of February 15, 2009, at which time it becomes ineffective.

s/Jean Hoefer Toal
Jean Hoefer Toal
Chief Justice
December 11, 2008
Columbia, South Carolina

According to Myrtle Beach Online, "Toal said she has no authority to order DMV to comply with the law." She does however, as the above order indicates, have no problem ordering the municipal courts to disregard the law.

Lonnie Randolph, president of the state chapter of the National Association for the Advancement of Colored People, said Friday the new law was intended to include as many qualified people as possible in jury pools. He said Toal's order doesn't help the situation. "The chief justice, it appears, is on the wrong side of the law," he said. "She is further disenfranchising the citizenry from being entitled to serve on juries, and criminal defendants don't get the jury selection they are entitled to by law."

Hopefully the DMV will get it together by the February 15th date that the Chief Justice has set for the municipal courts. In the meantime, any defendant who has a jury trial in the municipal court should be careful to make a record, objecting to the jury pool as selected by the court as being in violation of state law and the state and federal constitutions.

South Carolina has failed to appropriate funds for the defense of indigents in our state. Our Commission on Indigent Defense (SCCID) has decided that the best option at the moment is to stop paying the attorneys who have been appointed to represent indigent defendants by the courts.

DECEMBER 19, 2008

SC COMMISSION ON INDIGENT DEFENSE SUSPENDS PAYMENT OF LEGAL FEES

In a specially called meeting today the SC Commission on Indigent Defense unanimously voted to suspend until further notice the payment of legal fees in all indigent non-capital criminal and civil cases handled by court-appointed attorneys under Rule 608 of the SC Appellate Court Rules. The moratorium is effective January 1, 2009, and will remain in effect until further action by the Commission.

All final vouchers submitted on or before December 31, 2008, will be honored. However, effective January 1, 2009, only the expenses associated with a case, exclusive of all legal fees, will be subject to reimbursement. Vouchers for legal fees will be held in abeyance and, to the extent possible, paid when funds become available in the future.

The Commission will review its action within 90 days and at that time may authorize the resumption of payments, continuation of the moratorium, or other adjustments as it deems necessary based on economic factors affecting the agency’s budget.

This action became necessary due to a 20% decrease in the agency’s appropriated funding over the last six months and the lack of any legislative funding in the state’s FY 08-09 budget to pay legal fees and expenses to private, court-appointed attorneys handling civil cases under Rule 608. In the previous FY 07-08 budget the legislature appropriated $2.5 million for this purpose, but did not continue the funding in the current budget.

For the first half of the current fiscal year the agency has been paying court-appointed attorneys from fees and fines that are distributed to the agency to offset budget cuts, but most of those funds are now having to replace the 20% loss of appropriated dollars which directly fund the state’s public defender system, the core mission of the agency. Public Defender caseloads have been increasing; and the agency is projecting a steeper increase in indigency determinations throughout the state and a decrease in fees and fines receipts based on current economic conditions.

Commission Chairman Harry A. Dest of Rock Hill stated, “the Commission is acutely mindful of the impact that its action will have on members of the private bar who are appointed to indigent cases and intends to authorize a full resumption of payments at the earliest possible time that economic conditions warrant.”

I have many thoughts on this issue, and no time at the moment. Below are the thoughts of another South Carolina defense attorney, whom I agree with, reproduced with his permission:

I do have some serious concerns with SCCID’s action in this regard. Part of the press release stated, “the state’s public defender system, the core mission of the agency.” The core mission of the Commission is to provide adequate indigent services. That does not mean adequate indigent services to the defendants who are lucky enough to be appointed public defenders, it means all indigent defendants. This is not an issue of lawyers getting paid, it is an issue of indigent defendants receiving adequate protection under the law.

Whenever a private attorney is forced to take a defendant’s case without adequate compensation, the attorney is forced into a potential conflict of interest with the client and lawyer’s own well being. This may not be an “actual adverse interest” when the lawyer is only expected to spend 10 or 20 hours a year on indigent services. But when that lawyer is expected to spend 40, 80, or 120 hours a year without compensation, it is impossible for that attorney not to resent the time spent on that case that could be spent with paying clients or even his family.

I for one now have to make a decision of whether to continue to represent an individual charged with double homicide, or consider whether his case and the other murder case I just finished may mean that I do not get to fund my retirement this year, or perhaps I will forgo contributing to my sons’ college fund, or simply fail to take a vacation with my family this year.

The appearance is that the Commission is overly concerned with drafting guidelines and policies that seem to hinder lawyers getting paid in indigent cases; it would be refreshing if they appeared to be equally concerned with drafting guidelines assuring indigents are receiving adequate representation. Some very simple resolutions would go a long way to resolving this problem. First, the Commission needs to be clear in whether the vouchers will ever be paid. Second, the Commission should publish to Circuit and Family Court Judges a resolution such as follows:

The Commission has considered the threat to indigents receiving representation from unpaid attorneys and would caution judges that in cases that are complicated or the attorney has significant time in appointments during the calendar year, a conflict of interest may result between the attorney and the indigent receiving services if that attorney feels he cannot adequately spend time on the indigent’s case. While no one factor can be controlling, the Commission is extremely concerned when lawyers spend more than forty hours in one year on indigent services. If a judge feels an indigent may not be receiving adequate services due to this economic downturn, they should appoint other counsel, or in more complicated cases, order the State to immediately and indefinitely suspend prosecution of the indigent’s case, and if necessary, immediately release the defendant from incarceration until the State resumes funding for his defense.

All across this nation public defenders are being relieved from cases when the state does not provide adequate resources for indigent defense. http://www.painreliefnetwork.org/prn/citing-workload-public-lawyers-reject-new-cases.php and see http://www.nlada.org/Defender. This state is near the bottom in funding for indigent defendants and yet the Commission does not appear to be meaningfully challenging continued reduction in funding. It is time for the Commission to lead the way in asking judges to reduce public defender and private attorney’s indigent caseload. If the Commission cannot do that, it can at least make its position known that this is unacceptable and judges should be mindful of these concerns.

A stand-off at a bank in New Jersey is over, now that the police have figured out that the individual inside, who apparently did not respond to their requests on the bullhorn or telephone, was in fact a cardboard cutout.

Officers went to the PNC Bank in Montgomery Township on Thursday night after an alarm went off. They saw what they thought was at least one person through the windows of the bank, which had its blinds drawn.

The area was sealed off and three nearby apartment buildings were evacuated as a precaution.

Meanwhile, authorities used bullhorns and made telephone calls in a bid to make contact with whoever might be in the bank.

After repeatedly failing to get a response, a SWAT team entered the building and discovered the cardboard figure.

It was not immediately clear what set off the bank alarm.

The money laundering conspiracy charge against Florida attorney Ben Kuhne was dismissed today. He is still charged with wire fraud and obstruction of justice, but money laundering was the heart of the government's case. U.S. district judge Marsha Cooke's order dismissing the charge can be found here.

In a ruling hailed as a victory by defense lawyers, a federal judge on Monday dismissed a money-laundering conspiracy charge against a prominent attorney accused of illegal dealings with a Colombian drug lord.

The issue was whether $5.2 million transferred from Colombia to the accounts of attorney Ben Kuehne were exempt from criminal prosecution because they were essentially legal fees. Kuehne's lawyers and defense attorneys' groups argued that the conspiracy charge against him violated the Sixth Amendment's guarantee that a person charged with a crime has a right to a lawyer.

U.S. District Judge Marcia Cooke agreed, rejecting the U.S. Justice Department's contention that the payments were not necessary for the defense of Colombian drug baron Fabio Ochoa, who was eventually convicted and sentenced to prison.

"Congress has explicitly exempted from the money-laundering statute transactions necessary to preserve a person's right to representation," Cooke said in a 13-page ruling. "If I were to construe the statutory exemption as the government suggests, the exemption for such transactions would amount to no exemption at all."

This prosecution has been widely seen as an underhanded attempt by federal prosecutors to undermine the effectiveness of defense attorneys by attacking them directly. Federal criminal defense attorney Roy Black asked Kuhne to investigate his client's fees to ensure that they were clean. Kuhne, who by all accounts has an impeccable reputation and was considered a pillar of ethics, is being prosecuted for doing exactly what he and Black were required to do in order to avoid a prosecution such as this.

In U.S. v. Whorley, the 4th Circuit Court of Appeals affirmed a substantial upward variance to 240 months in a child porn case (the government filed a motion seeking an upward departure of 262 to 327 months’ imprisonment; the guidelines range was 87 to 109 months’ imprisonment but the statute provided for a mandatory minimum of 180 months' imprisonment), citing Gall v. United States, showing again that Gall is a two-edged sword, permitting courts leeway in departing upwards from the sentencing guidelines as well as downwards:

The district court’s consideration of Whorley’s sentence in this case was thorough, and the sentence it imposed was amply supported by the facts and by legally appropriate considerations. In these circumstances, we cannot agree with Whorley that the district court abused its discretion and acted unreasonably.

In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court repeatedly instructed that appellate courts defer in these circumstances. With respect to a departure or variance sentence, such as before us, the Court stated:

[The appellate court] may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.

Gall, 128 S. Ct. at 597. Repeating these instructions, the Court stated:

But it is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. On abuse-of discretion review, the Court of Appeals should have given due deference to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.

UNITED STATES v. WHORLEY 25 Id. at 602. See also United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). In following these instructions, we have affirmed departures encompassing the range involved here. See, e.g., United States v. Evans, 526 F.3d 155, 161-66 (4th Cir. 2008) (affirming a 316% upward variance); United States v. Curry, 523 F.3d 436, 439-41 (4th Cir. 2008) (affirming a 13% downward departure); Pauley, 511 F.3d at 474-76 (affirming a 46% downward departure). In Evans, we noted, "We recognize that the sentence [constituting a 316% variance] imposed on Evans may not be the only reasonable sentence, but it is a reasonable sentence, and the Supreme Court [in Gall] has directed that any reasonable sentence be upheld." 526 F.3d at 166.

In this case, we are presented with no procedural or substantive errors in the district court’s determination that the goals of federal sentencing were best served by the 240- month sentence, and therefore we conclude that the sentence was not unreasonable.

The Court also rejected Whorley's claims that

1) § 1462 is facially unconstitutional in prohibiting receipt of obscene materials because receiving materials is an incident of their possession, and possession of obscene materials is protected by the holding of Stanley v. Georgia, 394 U.S. 557 (1969); (2) that § 1462 is facially unconstitutional because the term "receives," when used in the context of a computer, is unconstitutionally vague; (3) that § 1462 is unconstitutional as applied to text-only e-mails, arguing that text alone cannot be obscene; and (4) that § 1466A(a)(1) is unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors.

In State v. Kirton, the S.C. Court of Appeals has continued the child sexual abuse exception to the rule against propensity evidence. At least, unlike the S.C. Supreme Court decision in State v. Gaines, the Court of Appeals outlines the correct rule ala State v. Wallace, although in the end I don't believe it follows it.

[In Wallace,] 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.

In Kirton, the Court of Appeals analyzes the Lyles jurisprudence, recognizes that there must be a connection between the crime sought to be admitted under the Lyles exception, and finds that, because the alleged victims report that defendant engaged in a pattern of escalating sexual behavior as to each,

Kirton’s prior abuse of the minor victim was clearly “part of an overall plan or scheme devised by him to perpetuate the type of misconduct that occurred.” Tutton, 354 S.C. at 330, 580 S.E.2d at 192. The probative value of the evidence was so great that it substantially outweighed the danger of unfair prejudice, confusion of the issues, or misleading the jury. The trial court properly found the evidence was admissible to show a common scheme or plan, and Kirton’s continuous illicit conduct toward Victim was extremely probative to prove the charged criminal sexual conduct occurred.

The Court is basically saying, "Yes, the rule is that there must be a connection between the two instances. Look - we are taking great pains to enunciate this rule. But, although there is no connection between these two, they are sufficiently similar that we will admit the prior bad act."

Ok. No-one likes people who sexually abuse minors. Everyone wants them to be convicted. So, what's wrong with giving the state every possible weapon to use to make sure they are convicted? If you have a rule, which makes sense, either follow it, or create a stated exception to the rule. Don't say one thing and then do another.

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.

Charleston DUI lawyer Tim Kulp, at his brand spanking new South Carolina DUI blog, has posted the times and locations of the SCDPS "batmobile":

The schedule is:

Friday evening the 19th of December from 10:30 pm until 12:30 am. LOCATION will be Mathis Ferry Road and Wando South

Saturday evening the 20th of December, from 12:30pm until 2:00 am. LOCATION will be the Hungryneck area and the Newmarket area

Sunday evening the 21st of December from 11pm until midnight. LOCATION will be Bowman Road and K-Mart area

Sunday evening the 22nd in the area of Whipple Road and the Sports Complex.

Tim Kulp is among the best DUI lawyers in our state, and I look forward to reading more from him as his blog develops and grows.

It should go without saying that a defense attorney has a duty to conduct an independent investigation in a criminal case. In Lounds v. State, the South Carolina Supreme Court granted post conviction relief based on 1) the trial attorney's failure to investigate or prepare his case; and 2) statements made by trial counsel during closing argument that tended to make the state's case for them.

A criminal defense attorney has a duty to perform a reasonable investigation. Ard v. Catoe, 372 S.C. at 331, 642 S.E.2d at 597. “[W]hile the scope of a reasonable investigation depends upon a number of issues, at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case.” Id. at 331-32, 642 S.E.2d at 597 (internal quotes and citation omitted).

Ordinarily the Court would not name the attorney in an appellate opinion, but it appears that Lounds' attorney, Greg Newell, is suspended from the practice of law (and had been suspended at least twice before, according to FN 2 of the opinion).

The Court makes much of the fact that Newell had been on notice for 9 months that his client was facing life without parole, which is unfortunate - the standard is and should be the same whether a defendant is facing life without parole or a minimal prison sentence. Counsel has a duty to investigate his or her case and to zealously defend his or her client's interests. This is not an isolated incident, and occurs more often than we should be comfortable with - attorneys who plead every case sometimes are forced to trial by their clients, who stubbornly insist that they are not guilty and refuse to plead. An attorney who has no intention of trying a case, and whose strategy until the bitter end is to make his client plead out, is not going to be investigating the case and is not going to be prepared for trial.

Newell, on the other hand, never spoke to his client until the morning of his trial, and Newell obviously believed his client was guilty and was not interested in fighting for him, as was evident from the statements in closing argument:

The victim told a story. And his story was that there was an armed robbery. And in the course of that armed robbery he was taken to his parents’ home, let out, escaped, and then called the police. My client’s story is, and he admitted, I deal drugs. I admit that I’m a criminal in that respect, but I did not do this armed robbery. I came there to collect some money I was owed. The guy had built up an account, I mean, and it was getting too big. And I wanted my money. And I brought along a little muscle.… I brought along a little muscle with me. Two against one, hey, we’re going to – we want our money. You owe us money. We want our money. A little bit of leaning, not necessarily beating him up. But I’m standing there, two big guys, I need my money. Okay.

Lounds was charged with kidnapping and with armed robbery. The statements above that Newell made to the jury conflicted with his client's testimony and essentially established the elements of the state's case for them. Lounds claimed that he knew the alleged victim, that the alleged victim used drugs with him, hung out with him on a regular basis, owed money to him, and went with him voluntarily to get money that was owed to Lounds. There were multiple witnesses that could have corroborated Lounds' version of events, but Newell did not interview them or call any witness to the stand other than Lounds.

A defense lawyer's duty to investigate his case goes beyond simply calling, interviewing, and subpoenaing witnesses (and talking to your client before the first day of trial). I believe that in any case where there are multiple witnesses or questionable witnesses, a defense lawyer has a responsibility to employ defense investigators as well. The government has the police department or agency that made the charges, SLED, the FBI, the DEA, whoever they need to call in to assist with the prosecution, and a full staff at the prosecutor's office including multiple attorneys and full time in house investigators, all trying to make a case against the defendant.

Due process should require access to at least one investigator, and to experts who can evaluate the state's evidence, in cases where the state has employed experts. In cases (most) where the defendant cannot afford to retain an attorney, investigators, and experts, the responsibility is on the state to provide the funding to ensure that due process is provided to indigent defendants, a responsibility that is being ignored nationwide by legislators who do not appreciate the fact that a criminal justice system cannot function within the bounds of the Constitution unless effective indigent defense is fully funded.

"Come back with a warrant" doormat sold by Target.

The Texas Criminal Defense Lawyer's website has a variety of t-shirts, including "come back with a warrant" and "Get me off."

The National Criminal Defense College has "paraphernalia" on their website, including a t-shirt that says: "Please don't tell my mother I'm a defense lawyer. She thinks I play piano in a whorehouse."

From Cafe Press, a "legalize freedom" t-shirt or a Fourth Amendment sticker or bag (No I do not consent to this search).

So as to avoid any confusion later in court, "Got a warrant?" and "I don't consent to searches" t-shirts from Flex Your Rights.

A "disappearing civil liberties" mug from the unemployed philosopher's guild - as you pour your hot beverage into the mug, the text of the bill of rights disappears before your eyes.

It's the story that just keeps on giving. Fraternal Order of Police has sent out invitations to a party celebrating his election.

Recently I was arguing a magistrate court appeal, in the circuit court, when the judge asked me what my communications had been to my client concerning the client's trial date. The appeal was from the decision of the magistrate to proceed with the trial even though the required warnings under State v. Jackson, 288 S.C. 94, 341 S.E.2d 375 (1986), City of Aiken v. Koontz, and State v. Fairey had not been given (before a trial in absence can proceed, there must be a finding by the court that 1) the defendant received notice of the trial date; and 2) the defendant received a warning that the trial would proceed in his or her absence if they fail to appear).

I refused to answer the question, explaining to the court that I was placed in a difficult position, as I could not reveal the subject of client communications. The judge's response was that I have a duty of candor to the court that required my response - I have to disagree, as I will explain below. This has bothered me quite a bit, and I've been analyzing the issue since that day. Several times I have seen judges ask attorneys questions such as this (the ones that come to mind are whether their clients have communicated with them regarding court dates or whether the attorney has information regarding their clients criminal record) and the attorneys typically answer the questions without hesitation. I have seen attorneys volunteer information on client communications or their client's criminal history without even being asked.

(About questions regarding the client's criminal history - the attorney cannot lie about the client's criminal history to the court or to the prosecutor, but I believe the attorney's duty of confidentiality and loyalty to the client requires that the attorney not answer the question.)

Back to the question regarding communications with the client regarding court dates, there are many considerations, including the rules governing client confidentiality, the Sixth Amendment right to counsel which includes the duty of confidentiality (without which the right to counsel would be meaningless), the client's Fifth Amendment right against self-incrimination which necessarily includes the client's right against self-incrimination through the lawyer, and the broader policy considerations that require public trust in the sanctity of the attorney-client privilege.

Any rule which required an attorney to reveal such communications to the court would result in persons accused of crimes, and specifically this client, believing that they cannot trust their lawyer, and it would be that much worse because it would be a distrust caused by the judicial branch of the government. The Rules of confidentiality and the attorney-client privilege are both based on the same policy considerations: "Attorneys can best serve their clients and represent client interests only with full and frank disclosure between the client and attorney; and freedom from fear of disclosure by the attorney fosters full disclosure by the client."

Rule 1.6 of the S.C. Rules of Professional Conduct governs confidentiality, and states:

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act;

(2) to prevent reasonably certain death or substantial bodily harm;

(3) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(5) to secure legal advice about the lawyer's compliance with these Rules;

(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(7) to comply with other law or a court order.

(1) through (4) deal with what is called the "crime/fraud exception" to the rules of confidentiality; if a client intends to engage in a future crime, the lawyer may reveal confidences to prevent the crime (notice this is not mandatory, it is permissive). This never applies to past conduct, which would go to the very nature of a criminal defense lawyer's advice to clients. (5) applies when an attorney is seeking advice regarding the rules from another attorney, in which case the privilege is simply extended to the second attorney. (6) involves situations where a lawyer is sued by his client, and it allows an attorney to discuss confidences to the extent necessary to defend his conduct in a PCR case.

(7) would apply, except for the Constitutional considerations. I believe that (7) would insulate an attorney from discipline as a result of answering these questions when ordered by the court, but would not require the attorney to disclose his client's confidences, as the Rule uses the language "may" as opposed to "must."

A thorough discussion of the constitutional considerations in this situation is found in NACDL Ethics Advisory Opinion 03-03, which dealt with the question of whether Montana courts could enforce a rule requiring defense attorneys to report to the prosecutor and court whether their clients were reporting to the attorney each week:

Besides the ethical rules of privilege and the statutory and common law attorney-client privilege, NACDL submits that the questioned practice is also unconstitutional because it requires the lawyer to testify against the client and it violates the unfettered right to counsel. Indeed, it subverts the right to counsel by making the lawyer a necessary witness against the client. It is contrary to the foundation of the constitutional “right to counsel” with absolute loyalty to the client by his or her criminal defense lawyer which is subject to “enhanced importance” and “special vigilance” to protect the interests of the Sixth Amendment. State in Interest of S.G., infra. NACDL has always held the position that client confidentiality and loyalty are a Sixth Amendment right of the client.

This ethics opinion also notes some state cases which are directly on point, State v. Hawes in Nebraska, and Byrd v. State in Arkansas, where defense counsel refused to testify as to whether they had advised their client of a court date:

The NACDL Lawyer’s Assistance Strike Force handled a case at trial and on appeal for a
Nebraska public defender who refused to testify whether he advised a client of a court date. The practice in Lincoln, Nebraska, was for the court to advise defense counsel of the next court setting, and defense counsel was to advise the client. When the public defender refused to disclose whether he advised the client of a court setting at which the client failed to appear, because it would make the lawyer a witness against his own client, he was held in contempt. The Nebraska Supreme Court reversed, holding that the communication between the lawyer and the client or the client and the lawyer about a court date was privileged and forced disclosure violated confidentiality and the duty of loyalty. State v. Hawes, 251 Neb. 305, 309-11, 556 N.W.2d 634, 638 (1996) . . .

Arkansas faced a similar issue in Byrd v. State, 326 Ark. 10, 14-15, 929 S.W.2d 151, 153
(1996), and it too refused to allow counsel to testify to any communication from the client to the
lawyer, even involving ministerial matters about court dates because the privilege was not a “oneway one” and protected communications flowing both ways. Virtually any communication concerning the representation was presumed privileged.

The ethics opinion notes that, when the lawyer respectfully refuses to respond to such a question, invoking attorney client privilege, the duty of confidentiality, and the client's Fifth and Sixth Amendment rights, "[t]he court will likely respond that the lawyer has a duty of candor with the court, which the lawyer does. But, it is not applicable." The lawyer's duty of candor to the court is found in Rule 3.3: Candor toward the tribunal, which states that a lawyer cannot lie to the court, must correct untrue statements that were made by the lawyer to the court, must inform the court of case law that is adverse to the lawyer's position, and cannot offer evidence or testimony, other than the testimony of a defendant in a criminal case, that the lawyer knows is false:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

The Rule also expands on the crime fraud exception, stating that the lawyer must not permit a client to permit a fraud on the court and can disclose a fraud on the court if necessary, without being in violation of Rule 1.6. Nothing in this rule applies to the situation at hand, where a court attempts to compel a lawyer to disclose prior communications with a client regarding court dates (or criminal history).

We are fortunate in South Carolina to have some quite conscientious judges, who will usually consider the issues and not make snap judgments in situations such as this. I think that when the situation does arise, it is usually because the judge and the attorney have not thought it through and analyzed it. It should never come to this, but if a lawyer is threatened with contempt proceedings for refusing to disclose, NACDL's position is that the lawyer must refuse to disclose and then challenge the contempt by appeal.

It is sometimes the lawyer’s lot that he or she must take a contempt citation to protect the client’s constitutional rights. When that happens, the lawyer is acting in the best traditions of the American criminal defense bar—risking oneself to uphold loyalty to and to protect the client—and this kind of contempt would not be harmful to the lawyer’s reputation.

Most attorneys that I see in court have abdicated their responsibilities to their clients in criminal cases. I'm not talking about the career defense attorneys, of which there are few, but it is mostly general practitioners or civil attorneys who are taking on criminal cases. For the most part, watching a day in criminal court in Horry County is like watching an assembly line of forced guilty pleas. Many of these cases are not being truly tested - the attorney takes the case, requests discovery, waits for a plea offer then conveys it to the client, explains to the client that they have to take this plea offer or else they will suffer in prison, then enter a guilty plea. I have witnessed too many guilty pleas where the defendant is actually saying, "I am innocent," and yet prosecutor, defense attorney, and judge are colluding to get the plea done and get the defendant through the system. (I will note that I have also seen judges who refuse to accept a plea when they see this happening, and I applaud them)

I had a discussion with a group of attorneys before court several months ago, and they were complaining about plaintiff's attorneys who basically run "car wreck mills," where the attorney takes a high volume of cases and settles every case as fast as he can. If you are in it strictly for the money, a high volume of easy settlements pays much better per hour than the time it takes to go to trial in those cases. The lawyer gets rich and the clients get screwed.

I suggested that the same principle operates in criminal defense - when a lawyer takes a high volume of criminal defense cases and pleads every case, they make more money. It doesn't take much time at all to plead out a case, if you are not preparing the case for trial and testing the prosecution. But preparing a case for trial, investigating, finding and interviewing witnesses, researching legal issues, that takes an enormous amount of time. When lawyers plead every case, they are getting rich and the clients get screwed, just the same as a "car wreck mill." At first, I got blank stares from my colleagues, then one informed me that it just wasn't the same because most of their clients would be found guilty if they went to trial. It is just a fact that most criminal cases plead out, he said.

This attitude hurts not just the attorneys' clients, but all of us. Prosecutors expect defense attorneys to not insist on complete discovery, because most don't. Judges expect attorneys to respond to questions regarding client confidences, because most attorneys do. Prosecutors and judges expect attorneys to plead their clients, and sometimes get upset if the attorney does not plead his clients, because they have come to expect attorneys to plead out their cases.

I really don't know where to go with this, except to encourage any lawyers who are reading to not be a "plea mill," and to put the adversary back into "adversarial system." If we do not challenge criminal cases, if we do not insist on our constitutional rights, including the guarantee to the effective assistance of counsel under the Sixth Amendment and the rights to a jury trial and to proof beyond a reasonable doubt before a citizen can be convicted of a crime, we will lose those rights. Slowly, but surely, the government, the courts, and the public in general are going to expect less and less from criminal defense attorneys. We are liberty's last champions, aren't we?

On reading. From around the blawgosphere:

Non-refundable retainer means you don't get it back. Really.

Windypundit makes a graceful argument for legalization of prostitution: "I'm not arguing that we should slap a price on a woman like we slap a price on a loaf of bread. I'm arguing that we should give women the same respect we give bakers, and let them be the ones to set the price."

John Wesley Hall always beats me to the punch on South Carolina reported opinions. I'll get around to reading this opinion eventually, I promise.

Being a former prosecutor does not make one a better defense attorney, defense experience makes one a better defense attorney.

A "prostitution raid" on the wrong house nets an innocent 12 year old girl. When the police discover how badly they messed it up, they apologize . . . well, no, they go back and charge her with assaulting an officer?

The right to counsel is the most important right that we have, at least it is thus far in a poll at a public defender.

Freedom v. Safety - we are beyond the tipping point where "every increase in governmental power beyond that point provides at best a tiny incremental increase in temporary safety at a major cost to freedom."

Two cases overturned in Texas due to prosecutorial misconduct (Brady violations).

Marines man dui roadblocks in California, and cops are authorized to draw your blood in Texas and Arizona.

Why good judges matter - a good judge picks up the slack from a lousy attorney, and the government tries to have a judge recused from a case because she questioned their integrity.

The officer who body slammed a Critical Mass bicyclist in NYC last July, then lied on an affidavit charging the bicyclist with disorderly conduct and assaulting an officer, has finally been indicted himself.

As Greenfield points out at Simple Justice, if it weren't for the video that was taken by observers at the scene, not only would the officer never have been indicted, but the bicyclist may have been convicted based on the officer's lies.

The fact that Pogan sought to have Long, the cyclist, prosecuted based on a flagrantly perjurious complaint for a crime that never happened in order to cover up Pogan's own vicious assault sucks all the sympathy out of me on this one. But for video, Pogan would have been successful and Long would have gone down. But for video, no one would have believed that this case wouldn't travel the ordinary path, where judges, prosecutors, defense lawyers and perhaps even jury just shook their collective heads and assumed that the cop was right, the cyclist was wrong, and then it would be time to share a beer at Forlini's after the cyclist was sentenced. Life as usual at 100 Centre Street.

Instead, five months later, Patrick Pogan stands indicted. But for video, this would not have happened.

Folio Weekly has published an in depth article regarding the recent election of Matt Shirk as public defender in Jacksonville, Florida, which is worth reading. This scenario has made it clear, at least to criminal defense lawyers, why public elections will not work for public defender positions, as Matt Shirk's campaign promises apparently included not challenging police officers and investigating his own clients.

Upon taking office, he promptly fired the office's most prominent attorneys, including all but one death-qualified attorney. The firings included lawyers who had worked tirelessly to prove the innocence of teenager Brenton Butler, which became the subject of a an Oscar winning HBO documentary and exposed the incompetence of the police who made the case against Butler, and the firings were done on the anniversary of Butler's acquittal.

If the attorneys weren’t fired for financial reasons or because of job performance, the question of why they were fired remains. For some observers, the answer is State Attorney Angela Corey. Shirk and Corey are close friends and political allies. Corey encouraged Shirk to seek the seat and was publicly supportive of his bid. Shirk interned under Corey, a fact his campaign website noted with pride, saying he worked “under the direct tutelage of Angela Corey.” One fired public defender who asked to remain anonymous said he was disturbed by Corey’s references to Shirk as her “darling” during the course of the campaign.

Since Shirk’s victory, Corey has remained a palpable presence. A Shirk spokesman referred questions from First Coast News’ Donna Deegan to Corey, and White says she contacted at least one of his employees to discuss the “transition” — something akin to Obama making staffing suggestions for the Bush White House.

“She’s apparently a close advisor of his,” says McGuinness, adding that Corey contacted several people in the office prior to the announcement of the cuts. Asked why Corey would have a hand in personnel issues, McGuinness suggests it may represent a simple — if insidious — legal strategy. “From Corey’s [perspective], a less-experienced Public Defender’s Office gives her prosecutors a target-rich environment.”

Folio's article gives some confirmation from the Fraternal Order of Police that their support of Shirk was based on his promises to not challenge police officers while Shirk was in office. "While debating White before the FOP’s membership, Shirk made a pledge not to challenge the credibility of officers at trial."

Still, Shirk’s words resonated with the police union. FOP President Nelson Cuba concedes statements like that went a long way in earning his organization’s support. “I think part of what helped Mr. Shirk get the support is that he was big on — no matter what — his office would … be professional with officers and never be disrespectful with officers.” Cuba says that respect has been lacking in the current Public Defender’s Office, and that he’s looking forward to Shirk’s tenure for improvement. Says Cuba, “That will only tell with time as we move forward.”

This whole fiasco underscores the impossibility of ensuring that there will be effective indigent defense when the office of pubic defender is open to public election. Sadly, the public by and large does not understand the need for effective criminal defense and would just as soon cast votes for someone who will not be effective. The time-honored political mantras of "tough on crime," and "easy on the public dime," cannot enter into the job of a public defender. Politics should not play into the selection of the person who is, more than any other, in charge of ensuring that the Constitution and Bill of Rights are enforced and preserved.

I would take this a step further, and suggest that the office of Solicitor (or District Attorney in other states) should not be subject to the whims of politics either. There may not be a more important position in any local government than that of the Solicitor, no position that carries with it more power and responsibility. There are undoubtedly many times during the tenure of an elected prosecutor when the demands of the voting public is at odds with the responsibilities of an ethical and principled prosecutor, and no prosecutor should ever be forced to make a decision between remaining in office or doing the right thing.

If not elected by the general public, then what? For public defenders and for solicitors, appointment by the legislature, although not foolproof, strikes me as a better plan than general elections. Nomination and then election by the local bar - the members of the public who are most educated as to the issues at hand and what is needed from both a strong and principled solicitor and public defender - is certainly an option as well.

Could this be the future of interrogation techniques/ lie detector tests? You don't want to talk? Not a problem, we can just get a print out of what is on your mind.

The scientists were able to reconstruct various images viewed by a person by analyzing changes in their cerebral blood flow. Using a functional magnetic resonance imaging (fMRI) machine, the researchers first mapped the blood flow changes that occurred in the cerebral visual cortex as subjects viewed various images held in front of their eyes. Subjects were shown 400 random 10 x 10 pixel black-and-white images for a period of 12 seconds each. While the fMRI machine monitored the changes in brain activity, a computer crunched the data and learned to associate the various changes in brain activity with the different image designs.

Then, when the test subjects were shown a completely new set of images, such as the letters N-E-U-R-O-N, the system was able to reconstruct and display what the test subjects were viewing based solely on their brain activity.

An FBI investigation has netted 15 police officers in Illinois who were allegedly hiring themselves out to drug dealers:

Duffel bags stuffed with cocaine were delivered by plane to a suburban airport in the U.S. state of Illinois while two sheriff's officers provided security.

A police officer stood by to guard the cash and keep out the riffraff at a poker game where $100,000 changed hands.

And a drug dealer was told squad cars marked "sheriff" and "sheriff's police" might be available on a "freelance" basis to provide protection for his deliveries.

Such tales of law enforcement gone awry emerged in court papers Tuesday as U.S. federal prosecutors unveiled a series of elaborate sting operations aimed at officers hired out to ride shotgun for drug deals and other criminal activities.

Fifteen officers and two other men who had pretended to be law enforcement officials were charged with conspiracy to possess and distribute cocaine or heroin or both . . .

An investigation into allegations of robbery, extortion, narcotics offenses and weapons distribution is ongoing, officials said.

(H/T Rick Horowitz at Probable Cause)

In Gowdy v. Gibson, the S.C. Court of Appeals affirmed the forfeiture of $146,050.00, which was found in a safe in the attic of Gibson's home while executing a search warrant.

A search of the premises outside the house yielded a set of digital scales, a plastic medicine bottle containing 24.4 grams of crack cocaine, and a plastic bag containing 11.7 grams of marijuana. The items were found approximately 140 feet from the location of the safe, concealed under bricks, behind a detached garage located behind the residence.

Another search warrant was executed at 420 Farley Street, the location of a building being remodeled by Gibson for use as a beauty salon. A plastic bag containing 713 grams of cocaine was found hidden in the ceiling at that location.

The court found that this was sufficient probable cause for the forfeiture and was distinguishable from Pope v. Gordon, in which the court of appeals found no probable cause where the money was seized from a business account into which proceeds from a car wash were deposited.

Once the state has shown probable cause for a forfeiture, the burden then shifts to the owner to show by a preponderance of the evidence that they were not aware of the use that the money was put to which made it subject to seizure. In this case, Gibson's mother claimed that the money was her life savings from her job; however, she was unable to provide any documentation of the source of the money or rebut the state's evidence that it was connected to drug activity. Also, she did not have access to the safe and did not know its combination.

In Turner v. State, the S.C. Supreme Court reviews when counsel must advise a defendant of the right to appeal, and reverses the PCR judge's grant of a belated appeal based on counsel's failure to advise the petitioner of his right to appeal following a guilty plea.

Following a trial, counsel is required to make certain the defendant is made fully aware of the right to appeal. White v. State, supra. In the absence of an intelligent waiver by the defendant, counsel must either initiate an appeal or comply with the procedure in Anders v. California, 386 U.S. 738 (1967). Id. However, the standard for a guilty plea differs. Absent extraordinary circumstances, such as when there is reason to think a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal) or when the defendant reasonably demonstrated an interest in appealing, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea. Roe v. Flores-Ortega, 528 U.S. 470 (2000); Weathers v. State, 319 S.C. 59, 459 S.E.2d 838 (1995).

Because there was no finding on the record in the PCR court that petitioner had asked his plea counsel to file a direct appeal, or of other extraordinary circumstances that would require counsel to advise petitioner of his right to appeal from a guilty plea, the Supreme Court reversed and remanded the case for an evidentiary hearing.

Jasper County, South Carolina, is soon to be the latest to enact an unconstitutional ordinance protecting us all from the danger of sagging pants.

Jasper County Councilman LeRoy Blackshear proposed the ordinance in June. It would ban anyone from appearing in public "wearing his or her pants more than three (3) inches below his or her hips and thereby exposing his or her skin or intimate clothing."

Some councilmen expressed concerns about whether government should be in the business of enforcing dress codes. Blackshear, however, believes it is in our best interests:

"Some people are saying that government doesn't have any place to tell people how to dress if they're not buying their clothes. But government makes other laws about seat belts, open-container laws and DUI. All these are for benefit of our citizens," he said.

What is wrong with this picture? Let's begin with asking who does this law affect? 9 out of 10 persons wearing sagging pants are black youth. It is a current style, fad, or whatever you want to call it, and any law such as this is going to have a disproportionate impact on black persons. Not that most criminal laws are not already disproportionately enforced against minorities, but this law is actually aimed at black youth. Secondly, the law is unconstitutional on its face. Under our State Constitution, local municipalities cannot criminalize conduct that is not already criminal under state law.

So why do city and county councils continue to try? Boredom? We already have criminal laws for every conceivable action that could be harmful to ourselves or the people around us, so they must try to come up with more and more to justify their existence? If nothing else, they now have something to sit around and debate and vote on?

I've said before that I think it should be a prerequisite that any person seeking office as a legislator (drafting and voting on laws) or an executive such as governor or president (enforcing laws) must have a law degree. If your job wholly consists of drafting, interpreting, or enforcing the laws, you should at least have a minimal understanding of what a law is and of the Constitution. Possibly we could offer a minimal "crash course," possibly a year's worth of courses on the legislative process and Constitutional law, for non-lawyers who want to run for political office.

Maybe, when legislators are bored because they cannot come up with more criminal laws to debate and vote on, they could now begin to review the laws that we do have, and vote on getting rid of some of the unnecessary ones. This would create many many hours of productive work for legislative bodies, and possibly would benefit society rather than further restrict it. They could begin debating why we should un-enact laws that govern how we dress, or they could begin debating why we don't need to criminalize victimless conduct such as riding a motorcycle without a helmet or drug possession.

The U.S. Supreme Court heard arguments Tuesday in two criminal appeals, Arizona v. Johnson and Cone v. Bell. In Arizona v. Johnson the government is trying to increase officers' abilities to conduct Terry frisks, or pat downs for weapons, during police encounters such as traffic stops. Terry v. Ohio said that an officer must suspect that "crime is afoot" before an officer can conduct a pat-down, but in Johnson the government seeks to expand that authority to situations where there is no suspicion of wrongdoing but the officer suspects the person may be armed and dangerous. The National Association of Criminal Defense Lawyers filed an amicus brief. The transcript from oral arguments is available on the Supreme Court's website.

The issue on appeal in Cone v. Bell is

whether a federal habeas claim is “procedurally defaulted” because it has been presented twice to the state courts, and whether a federal habeas court is powerless to recognize that a state court erred in holding that state law precludes reviewing a claim.

However, at the oral arguments, all parties seemed to agree that the claim of procedural default made no sense - a claim would be procedurally defaulted if it had not been presented in the state courts, but in this case it had been presented to the state courts, although the lower courts did not fully rule on the issue.

The trial prosecutor withheld evidence from the defense regarding the defendant's drug use, which was important because the defense was that when the murders were committed the defendant was acting under a drug induced psychosis. The prosecutor at trial said that the defense's theory was "baloney" and argued to the jury that the defendant was a drug dealer and not a drug user, and yet had in his file evidence that the defendant was a drug user and was on drugs at the time of the crime. Although not central to this appeal, the prosecutor had withheld other evidence in the case as well, including statements given by the state's witnesses that were material for cross-examination.

It would seem that we need strong cases dealing with prosecutorial misconduct in withholding evidence, given that it happens so often. But, the fact is we already have strong cases denouncing the withholding of evidence, and it does not make a difference. Prosecutors do not always turn over evidence that will hurt their case, despite the clear requirement to do so in Brady and Kyles v. Whitley. Apart from cases where the evidence is not provided and the defense may never learn what is out there that should have been provided, there is the common practice of withholding evidence until the last minute, and springing witness information or other Brady material on the defense on the day of trial, or the Friday before trial begins.

No harm, no foul, right? The trial judges and the appellate courts will not give relief to a defendant unless he can show prejudice, and if he received the information before the start of trial, or even during trial, there is no prejudice? Because it is not reversible error does not make it ethical. We need prosecutors who uphold the rule of law even in their own office, and who seek justice not convictions. If they cannot police themselves, the trial courts and appellate courts should be providing some type of sanctions for misconduct - if not dismissal, then exclusion of evidence provided at the last minute.

Now, none of this is going to happen in Cone v. Bell, but one more strongly worded opinion regarding the impropriety of withholding evidence while asking a jury to send a person to prison, or even to kill that person, will not hurt one bit.

A Honea Path, South Carolina, magistrate was arrested Wednesday and charged with misconduct in office for filing a false police report.

A South Carolina county magistrate was arrested Wednesday after authorities say he admitted filing a false police report saying someone had threatened his life.

William E. Gilmer, 61, of Honea Path, was arrested Wednesday and charged with misconduct in office, the State Law Enforcement Division said.

The Anderson County magistrate filed a false police report with the Honea Path Police Department in August 2007 and requested an investigation into the identity of someone who had called his office, authorities said.

Obama's website, Change.gov, asked visitors to submit questions regarding policy matters that they feel the new administration should address, and then vote on which of the questions were most important. The voting closed today, finding the most popular question that people would like to see addressed is whether the administration will legalize marijuana:

"Will you consider legalizing marijuana so that the government can regulate it, tax it, put age limits on it, and create millions of new jobs and create a billion dollar industry right here in the U.S.?"

received 7947 votes, out of nearly 100,000 total votes on 10,303 questions. 16 of the top 50 questions submitted on the website dealt with drug law reforms. The website says,

Over the next few days, some of the most popular questions selected by the Change.gov community will be answered by the Transition team, and their responses will be posted here on the site.

I wonder if they will answer the question that received the most votes? Of course, it is not up to the President to decriminalize drug possession, but it is a strong statement of the will of the people, who are becoming more educated as to the issues involved in Prohibition and the failed war on drugs.

H/T NORML blog.

I was a bit excited when I first read this article about the brain science of guilt and punishment that was done by researchers Owen Jones, René Marois and Joshua Buckholz:

the brain assesses guilt and metes out punishment via different mechanisms - the former rationally, the latter more emotionally.

Using functional-MRI, the team probed the brains of 16 volunteers as they judged scenarios of varying culpability and criminality on a scale of 0 to 9 - from no punishment to extreme punishment.

While lying in an fMRI scanner, which images brain activity using blood-flow levels, volunteers judged clear-cut crimes, ranging from petty larceny to rape and homicide. They also judged situations where criminal guilt was more ambiguous - a torture and murder directly linked to a brain tumour, or a petty theft in a delusional state, for instance.

Activity in a small part of the prefrontal cortex seemed to mark the difference between unequivocal crimes and scenarios where guilt was more questionable, no matter the severity of the deeds. When participants judged obvious homicides, assaults and robberies, their right dorsolateral prefrontal cortexes (rDLPFC) were more active than during judgements of crimes where guilt was more ambiguous.

This region has been implicated in decisions of morality and fairness, as well as other functions unrelated to the law.

The question that came to my mind was, if we can identify the areas of the brain that are active when jurors or judges are hearing A) very bad cases that deserve lots of punishment; and B) questionable cases where the defendant should be found not guilty or where the defendant should not be punished harshly, can we then use this to frame the theory of our case so that we present a fact pattern that stimulates area A as opposed to area B, even when we have a case with particularly bad facts, thereby increasing our chances of success?

But, isn't this what we already do in trial? The brain research is simply an academic exercise explaining what happens as we do it, and, at least for purposes of trial practice, may not have any practical impact at all. When we tell our client's story in such a way that the jury is captivated, when we weave into the case the principles of justice that demand our client's acquittal, or when we ensure that the judge at sentencing knows that our client has performed community services, that his family loves him dearly, or that he is the sole caretaker of his elderly grandmother, is it that what we are doing is re-routing the jurors or the judge's thoughts away from the right dorsolateral prefrontal cortex, so that the more sympathetic areas of the brain will control their decision making process?

The study also indicates that the rational parts of the brain govern decisions regarding guilt or innocence, while the emotional parts of the brain govern decisions regarding punishment. If we are to take a lesson from that it would be that we should make rational arguments as opposed to emotional arguments during the guilt phase, and vice versa when arguing punishment. Of course, that is what we do - the guilt phase of a trial is heavily weighted towards rational argument and the punishment phase is weighted towards an appeal to emotion; but I still believe that, once the legal hook is set, it is passion and emotion that carries the day when a jury decides innocence or guilt.

If nothing else, the concept that justice may be "hard-wired" into our brain is fascinating.

The Law and Neuroscience Project is a $10 million multidisciplinary brain secrets study that was launched last year, by the John D. and Catherine T. MacArthur Foundation and with the help of 25 universities. The goal of the research is to provide "policy recommendations and materials of use to judges, attorneys and law professors concerning the appropriate courtroom application of brain science."

According to Newscientist.com, the project has undertaken research intended to establish criteria for reliable lie-detection technologies, an area that is dangerous at best when we are dealing with the law and in-court testimony.

Whether the technology is eventually deemed reliable enough for the courts will ultimately be decided by the judges. Let's hope they are wise enough not to be seduced by a machine that claims to determine truthfulness at the flick of a switch.

"To the Justice System: this is a brain on adolescence" is the title of a blog post by Adrienne Edwards, about Sylvia Bunge, assistant professor of psychology at the University of California, Berkeley, and part of the Law and Neuroscience Project, who has been researching the impact of brain science on juvenile justice:

She wants to use what she knows about the teenage brain to help society deal with young risk-takers. Bunge feels that current legal attitudes toward teen criminals needs revamping.

“Do you put someone away for life who lost his temper at 13, or do you acknowledge that his prefrontal cortex has matured since then?,” she asks. “The law is slow to change, but it will, over time, incorporate scientific evidence.”

She has found that there is a "control network" in our brains that involves the prefontal cortex, which assists in resisting impulses and ignoring distractions, and that adults are better able to utilize this control network than are children or adults with damage to the prefontal cortex. One potential application of this research is in prevention - Bunge has found, in research with elementary school children, that by engaging in activities such as playing a certain game every day, access to the prefontal cortex can be increased:

“We’re not only training their ability to tackle novel problems, but to control their impulses and ignore irrelevant information as well.” She hopes this research will eventually translate into a training program that could be used for rehabilitation in juvenile detention centers.

Bunge and Knight are particularly interested in the possibility of intervention for children from low socio-economic backgrounds, who are more likely than the average teenager to commit crimes and may have less adult guidance and education. They want to help these kids learn to make better decisions early — before they get in trouble with the law.

“We want to understand not just the influences that affect criminal responsibility,” says Knight, but we want to get in earlier in the food chain to examine exactly what the effects of socio-economic status are in brain development. Do they make you more or less likely to get in trouble with the law? And can we intervene at an early age and improve those skills?”

This sort of research is an excellent example of prevention and rehabilitation that we can and should be doing with our criminal justice dollars, rather than using them to prosecute and incarcerate more and more of our citizens each year.

Via the agitator: a Massachusetts state trooper who was given the "drive for life" award by MADD for her aggressive DUI arrests is now under investigation for police brutality and for lying on the stand.

Trooper Kathleen T. Carney was stripped of her service weapon and cruiser last week after a Dec. 1 duty status hearing stemming from allegations of brutality in the drunken-driving arrest of a 35-year-old Quincy woman, Patricia J. Dooling, on the night of Aug. 28, according to sources.

Testifying in a separate drunken-driving case against a 26-year-old Taunton man in Quincy District Court on Nov. 24, Carney was asked by a defense attorney whether she faced any potential disciplinary action, according to the attorney and sources.

Though the brutality investigation was ongoing, Carney denied it, said attorney Ed Sharkansky and two sources with direct knowledge of the case and investigation.

The South Carolina Court of Appeals, in In re Cannupp, decided this week, held that there is no constitutional right against self-incrimination in a sexually violent predator proceeding.

the circuit court’s refusal to charge the jury that Appellant had a constitutional right to decline to take the witness stand was neither erroneous nor prejudicial. Under the current law, there exists no constitutional right to decline to take the witness stand in a civil proceeding, and it is not disputed that proceedings under the Act are civil in nature. Further, any adverse inference, permissible or impermissible, that the jury might have drawn from Appellant’s absence from the witness stand would not be outcome determinative in light of the overwhelming evidence that Appellant met the Act’s definition of a sexually violent predator.

Joseph Gardner was executed at 6:00 P.M. yesterday in Columbia. He was the 40th inmate put to death in South Carolina since the death penalty was reinstated in 1976, and the third inmate executed in the Palmetto State this year.

According to the Death Penalty Information Center, Gardner is the last inmate to be executed this year.

Through his attorney, Gardner offered a written final statement apologizing to McLauchlin's family for causing them such pain. He spent the day with his lawyer, Keir Weyble, but opted to forgo a last meal before he met his fate.

Gardner's statement

"I would like to apologize to the family and loved ones of Melissa McLauchlin for taking her from them and causing them so much pain. I was 22 years old then, and I am 38 now. While I have always been sorry for what I did, the passage of time has allowed me to mature, reflect and experience spiritual growth in ways that were foreign to me as a young man. I have repented for what I have done, and I am very grateful to the many people who have prayed with me and for me over the years and in my final days. I deeply regret that my actions deprived Ms. McLauchlin of the chance to marry, have children and experience life with God. I have spent years praying for her, and I encourage all people of faith to do the same."

It is bad enough when prosecutors or police accept statements from inmates with pending charges at face value without corroboration, but to actually feed them information and then wait to hear back from them is beyond the pale.

Inmates at the Charleston County Detention Center received playing cards Thursday that Crime Stoppers of the Lowcountry hopes will help in gathering information and potentially solving cases, the group said.

Each card features a photograph and factual information about an unsolved homicide from around the state, including two from the Charleston area. Each card also features information on how to submit a tip anonymously. Some cards had earlier printing errors that have since been corrected.

The cards promote two tip lines: 1-888-CRIME-SC (1-888-274-6372), and *49 for use within the Detention Center. Both numbers will anonymously connect the caller with Crime Stoppers.

The local cases include the Oct. 3, 2002, North Charleston stabbing death of cabbie Eugene Thomas, who was found dead in his cab after he failed to return from a call.

The other case is the Sept. 4, 2003, shooting death in Charleston of Mark Miller, who was found shot in a car left on Alston Street.

The inmates were curious to check out the cards and pass on anything they may know . . .

All they have to do is pick up one of the phones inside the jail and call Crime Stoppers.

"Hopefully it will jog someone's memory," Corporal Bowie said. "Maybe there's somebody that wants to start their life over. Maybe there's somebody that needs a little money."

Ordinarily, jailhouse snitches crop up when they are charged with a crime, and when they discover what the hot case of the month is for the investigators or the prosecutor's office. A desperate inmate facing the loss of years or decades of his life will take any information that he can find on the crime, and frame it in a way that is appealing to the prosecutors. If he has an attorney, his attorney will approach the prosecutor about cutting a deal, or sometimes the inmate just sends a letter directly to the investigators.

This is why I tell my clients up front, do not talk with anyone at the jail about your case, and do not share your discovery materials with them. Even if you say, I'm charged with (insert facts of case) but I am absolutely innocent, you have just given a potential jailhouse snitch enough information to lie about your case. I'm innocent may turn into a detailed confession, coupled with the hope of a sweet deal for the snitch, by the time your case gets to trial.

What is worse is when police or prosecutors actually feed information to inmates, and wait for them to come back asking for a deal. I'm sure that Charleston police will solve their crimes using this tactic, the question is how are they going to know that the person they end up charging is actually guilty and not the victim of a jailhouse snitch's con game, and why don't they care?

North Myrtle Beach police have decided not to charge anyone in the Walmart death I posted about yesterday.

North Myrtle Beach police will not file any charges regarding the death of a man last week at a local Wal-Mart.

Patrick Donovan, 53, of Florida, died on Nov. 29 after three employees and a bystander wrestled him to the ground. They said Donovan was trying to shoplift $393 in merchandise.

"There will be no charges pressed," said Nicole Aiello, spokeswoman for the city of North Myrtle Beach. "There is no criminal act."

The report goes on to say that they still have not determined the cause of death. Horry County Deputy Coroner Tamara Willard says "As far as I am concerned there is no case here," and it is possible the man died from natural causes. If they have not determined the cause of death, and all that they know is that he was assaulted by a group of Walmart employees, isn't it a bit premature to proclaim, "there is no case here"?

No one but Barry Cooper would pull a stunt like this one:

KopBusters rented a house in Odessa, Texas and began growing two small Christmas trees under a grow light similar to those used for growing marijuana. When faced with a suspected marijuana grow, the police usually use illegal FLIR cameras and/or lie on the search warrant affidavit claiming they have probable cause to raid the house. Instead of conducting a proper investigation which usually leads to no probable cause, the Kops lie on the affidavit claiming a confidential informant saw the plants and/or the police could smell marijuana coming from the suspected house.

The trap was set and less than 24 hours later, the Odessa narcotics unit raided the house only to find KopBuster's attorney waiting under a system of complex gadgetry and spy cameras that streamed online to the KopBuster's secret mobile office nearby.

The attorney was handcuffed and later released when eleven KopBuster detectives arrived with the media in tow to question the illegal raid. The police refused to give KopBusters the search warrant affidavit which is suspected to contain the lies regarding the probable cause.

Barry and others are protesting the conviction of Yolanda Madden, who was charged with possession with intent to distribute marijuana, even though the Odessa narcotics unit's informant testified that they made him plant the drugs on her, the informant then passed a polygraph, Yolanda passed a polygraph, and Yolanda passed a drug test. Yolanda was convicted anyway and sentenced to 8 years in prison.

What I want to know is what kind of information the officers' search warrant affidavit contained when they raided the Kopbuster's house. I guarantee that the officers and authorities are going to attempt to charge Barry & Co. with some type of crime as a result of this embarrassment. (H/T Windypundit)

The European Court of Human Rights held that it is "a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights" for DNA samples taken from innocent persons to be held in a database for government use. The Guardian reports:

The fingerprints and DNA samples of more than 857,000 innocent citizens who have been arrested or charged but never convicted of a criminal offence now face deletion from the national DNA database after a landmark ruling by the European court of human rights in Strasbourg.

In one of their most strongly worded judgments in recent years, the unanimous ruling from the 17 judges, including a British judge, Nicolas Bratza, condemned the "blanket and indiscriminate" nature of the powers given to the police in England, Wales and Northern Ireland to retain the DNA samples and fingerprints of suspects who have been released or cleared.

The judges were highly critical of the fact that the DNA samples could be retained without time limit and regardless of the seriousness of the offence, or the age of the suspect.

The court said there was a particular risk that innocent people would be stigmatised because they were being treated in the same way as convicted criminals. The judges added that the fact DNA profiles could be used to identify family relationships between individuals, meant its indefinite retention also amounted to an interference with their right to respect for their private lives under the human rights convention.

South Carolina recently passed 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. Similar legislation has been introduced in other states and the federal government, and whether the practice will survive constitutional challenges remains to be seen.

From fourthamendment.com: a U.S. District Court in New Jersey denies summary judgment to the defendants in a lawsuit by an undercover FBI agent who was wrongfully arrested and hurt by local police; he was also charged with impersonating an officer after he identified himself to the police:

The plaintiff was an undercover FBI agent working at a motorcycle rally in New Jersey. He was stopped by local officers while in character, and he was arrested and hurt during the arrest when he was manhandled and handcuffed. He identified himself as an FBI agent and produced his credentials, and, after one telephone call to somebody who did not and would not know, he was arrested for impersonating an FBI agent. Defendant's motion for summary judgment denied. Plaintiff presented a fact question for trial. Frohner v. City of Wildwood, 2008 U.S. Dist. LEXIS 97536 (D. N.J. December 1, 2008).*

Ordinarily, courts will bend over backwards to give summary judgment to municipalities in 1983 actions. And, ordinarily courts will give an officer the benefit of the doubt, ruling in their favor. But what happens when the two worlds collide? The irony, indeed.

A man died November 29th after being wrestled to the ground by Walmart employees in North Myrtle Beach:

The man died Nov. 29 after store employees stopped a possible shoplifter, according to a report from the North Myrtle Beach Department of Public Safety. The report said the man died at Grand Strand Regional Medical Center.

Horry County Deputy Coroner Tamara Willard said the cause of death remains under investigation.

No one is accusing Walmart's elite loss prevention folks of murder just yet, but

Officers found the man on his back on the sidewalk outside the store, the report said.

One customer told police she saw a struggle between three Wal-Mart employees and the man.

Now, let's assume for purposes of this conversation that the Walmart employees in some way caused this man's death. No one has been charged as far as I know and anything is possible; but for arguments sake here, I will assume that he did not drop dead of natural causes while loss prevention was chasing him. S.C. law permits a citizen's arrest:.

Upon (a) view of a felony committed, (b) certain information that a felony has been committed or (c) view of a larceny committed, any person may arrest the felon or thief and take him to a judge or magistrate, to be dealt with according to law. (S.C. Code 17-13-10)

And S.C. law permits the use of deadly force during a citizen's arrest as well:

A citizen may arrest a person in the nighttime by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken, when the person:

(a) has committed a felony;

(b) has entered a dwelling house without express or implied permission;

(c) has broken or is breaking into an outhouse with a view to plunder;

(d) has in his possession stolen property; or

(e) being under circumstances which raise just suspicion of his design to steal or to commit some felony, flees when he is hailed. (S.C. Code 17-13-20)

But could this justify causing the death of a person while stopping them from shoplifting? In Tennessee v. Garner, 471 U.S. 1 (1985), the U.S. Supreme Court held that a police officer cannot use deadly force against an apparently unarmed, non-dangerous fleeing suspect. S.C. however, has held that Garner does not apply to private citizens:

The Fourth Amendment proscription against warrantless searches and seizures does not apply to searches by private individuals not acting as agents of the State. Peters v. State, 302 S.C. 59, 393 S.E.2d 387 (1990). We extend the reasoning in Peters to apply to seizures by private citizens. Cooney was acting free of State influence when he attempted to arrest Williams. Accordingly, we find the holding in Garner does not apply to seizures by private persons and does not change the State's criminal law with respect to citizens using force in apprehending a fleeing felon . . .

In order to invoke the defense of justifiable killing in apprehending a fleeing felon, appellant at a minimum must show that he had certain information that a felony had been committed, § 17-13-10(b), and he used reasonable means to effect the arrest. State v. Cooney, 320 S.C. 107 (1995)

So, shocking as the conduct of Walmart employees is when they are using force to apprehend shoplifters, is it possible that they could be justified in killing the guy who just stuck a candy bar in his pocket and ran out the door? And even if they are, what kind of sense does it make to have a policy of using physical force to apprehend shoplifters? I can't imagine the resulting litigation and potential for criminal charges against a worker costs less than the items that may be lost. But, I'm sure they've crunched the numbers.

Although related to the discussion of jailhouse snitches, I have separate and distinct issues with confidential informants. When I talk about confidential informants, I am referring to individuals who will go out and wear a wire to make drug buys, or otherwise provide information to the police in exchange for a promise of reduced charges or reduced jail time.

First of all, putting people to work for the police and endangering their lives in the process is a disgusting by-product of the failed war on drugs. Police do not use only "hardened criminals" for this task, but they use anyone that they can. Sometimes they make good on their promises to these people and sometimes they do not, and sometimes these people get hurt in the process. Whenever I have a client who wants to "work off their charges," I attempt to dissuade them. I tell these clients that I once represented a client who was charged with murder, for allegedly chasing down a CI and emptying his gun into her head. The bottom line is that I, and their family, would rather see them in prison than see them dead.

Which creates a bit of a conflict for me in representing confidential informants, as well as cooperating co-defendants and jailhouse snitches. The first for the reasons above, and the latter two because I feel that their coerced testimony is destroying the integrity of our justice system. But, there is a conflict with my conflict. If I am to provide the most effective defense possible, aren't these individuals entitled to my assistance in gaining them every advantage possible within the system the way it currently is?

If it is a retained case, I can certainly enter into an agreement with them prior to representation that they understand I will not represent informants, and that if a situation arises where they may benefit from informing I will assist them to find other counsel before I withdraw from their case. But I don't think that I can ethically do this in appointed cases. Appointed clients have no choice as to who their counsel is, and there is no agreement that we enter into prior to my accepting their case. The court says take this case, I accept it without question unless there is a conflict with other clients, and then I do everything I can to help the appointed client.

This is an issue that I don't have an answer for yet. My position right now is that I will attempt to discourage my clients from cooperating or informing, but I also make sure that they fully understand any benefits that they may gain from it. It is their decision, and if they decide to inform or cooperate I will reluctantly support them. At some point in the future I may change my policy on this, but I need more soul-searching and input from other defense attorneys. I am interested in hearing how others deal with this dilemma, or if it is even a dilemma for others.

The integrity of our system of justice is being destroyed by the use of jailhouse snitches. When a prosecutor has no evidence in a case, but proceeds with the prosecution anyway, using testimony that is suspect and that is bought with the threat of prosecution and the promise of freedom, we cannot rely on the outcomes of trials. We cannot rely on juries to recognize the lying witnesses and discount them, when juries trust prosecutors not to put lying witnesses on the stand.

A witness who has nothing to hide, nothing to lose, and nothing to gain, who has real information for the jury, makes a case. I cannot complain if a prosecutor uses a witness who has pending charges, if the testimony is reliable and checks out. But when a witness comes forward only to obtain a deal for himself on his pending charges, and all attempts at corroboration fail, there is a problem.

If a witness fails a polygraph on the subject of his testimony, and a prosecutor puts him on the stand anyway, there is a problem. When prosecutors troll the jails the week before trial, looking for new jailhouse snitches that are almost certainly going to be lying in exchange for a deal, there is a problem. There is a problem with the witnesses, there is a problem with any prosecutor who engages in these tactics, and there is a problem with the integrity of our courts.

And, as is a matter of public record in a recent murder trial in Horry County, what do we do when the police threaten a witness, tell him what to say, and then obtain a statement from him? Prove it you say? What about when 1) the interview is recorded and 2) the witness recants on the witness stand and tells the jury and the court how the police attempted to force him to lie on the witness stand?

I am disgusted.

We need reform in when and how we use the testimony of "informants" in our courts. We cannot trust the prosecutors to seek the truth and to adequately corroborate testimony before they call a witness to the stand, therefore we need legislation or court rules to ensure that we are not convicting persons based on perjury, and that testimony against criminal defendants is not for sale in the jailhouses.

Earlier this year, California passed a law requiring corroboration of testimony by jailhouse informants before it would be admissible in court. To bring us closer to ensuring reliability of verdicts in criminal cases, we need to consider similar measures. Whether it is done by legislation or whether it is done by pre-trial hearings to determine the reliability of such testimony, we need to recognize this problem and find a way of dealing with it.

Pulido is a rather un-exciting decision by the U.S. Supreme Court that was released yesterday. Essentially, "a conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one." However, the error is not structural error, and it is subject to harmless error analysis.

Pulido was convicted in California of felony murder. The jury instructions permitted the jury to find him guilty of felony murder if he formed the intent to aid and abet the underlying felony 1) before the murder (appropriate jury instruction); or 2) after the murder (incorrect jury instruction). The California Supreme Court upheld the verdict, but the federal district court granted habeas relief because there was no way to determine which theory the jury relied on in finding guilt, and after finding that "instructing the jury on the invalid theory had a 'substantial and injurious effect or influence in determining the jury’s verdict.'"

The Ninth Circuit Court of Appeals affirmed, calling it a structural error, and yet engaging in harmless error analysis. The U.S. Supreme Court reversed, because structural error is error that "defies analysis by harmless-error standards . . . because the consequences are necessarily unquantifiable and indeterminate that automatic reversal is required when such errors occur." (dissenting opinion). The issue at hand, where the jury instructions contain alternative theories of guilt, one of which is incorrect, is subject to harmless error analysis and therefore is not structural.

The way that I read Pulido, everyone agreed in the end. Pulido agreed with the State that the Court of Appeals was incorrect in calling the error structural error, but maintained that it was not harmless error. The U.S. Supreme Court agreed with Pulido and the State, reversed because it was called "structural error," and remanded for a finding of whether there was harmless error. The dissent agreed with the majority opinion that it was not structural error, but thought that it was silly to remand the case based on misuse of the term "structural error," because all of the courts beneath had already engaged in a harmless error analysis and found that the error was not harmless. Therefore, the case is being remanded for a repeat of the same analysis that has already been done, likely with the same result, but this time they must leave out the words "structural error."

Repeal Day's 75th anniversary is December 5th. The 18th Amendment to the U.S. Constitution was ratified by Congress on January 16, 1919, making it illegal to produce, distribute, or sell alcohol. Following the growth of organized crime and a growing realization that prohibition did not work, prohibition was repealed by the 21st Amendment on December 5, 1933.

Today, there is again a growing realization that prohibition, this time of drugs, is still not working. A Los Angeles Times article published November 27th cites a report by the Brookings Institution, the latest in a series of revelations that the war on drugs has failed (H/T a public defender).

Contrary to government claims, the use of heroin and cocaine in the U.S. has not declined significantly, the report says, and the use of methamphetamine is spreading. Falling street prices suggest that the supply of narcotics has not declined noticeably, and U.S. prevention and treatment programs are woefully underfunded, the study says.

The war on drugs has resulted in ever increasing violence, at home and abroad, as drug cartels continue to profit from the vacuum created by prohibition in the United States. Former Mexican president Ernesto Zedillo, interviewed by the LA Times for the article,

cited skyrocketing violence in his own country as an example of the damage done by these policies. More than 4,000 people have been killed in Mexico this year in drug-related warfare between government troops and traffickers, and among rival drug gangs. Many of the weapons confiscated in raids and shootouts came from the U.S.

Law Enforcement Against Prohibition (LEAP), an ever-growing group of former police officers, judges, and prosecutors who support bringing an end to prohibition, will commemorate the 75th anniversary of the repeal of alcohol prohibition with an event tomorrow at the National Press Club (H/T Radley Balko), and have issued a press release:

WASHINGTON, D.C. – On Tuesday, December 2, a group of law enforcers who fought on the front lines of the “war on drugs” and witnessed its failures will commemorate the 75th anniversary of alcohol prohibition’s repeal by calling for drug legalization. The cops, judges and prosecutors will release a report detailing how many billions of dollars can be used to boost the ailing economy when drug prohibition is ended.

“America’s leaders had the good sense to realize that we couldn’t afford to keep enforcing the ineffective prohibition of alcohol during the Great Depression,” said Terry Nelson, a 30-year veteran federal agent and member of Law Enforcement Against Prohibition (LEAP). “Now, cops fighting on the front lines of today’s ‘war on drugs’ are working to make our streets safer and help solve our economic crisis by teaching lawmakers a lesson from history about the failure of prohibition. We can do it again . . ."

“We Can Do It Again: Repealing Today’s Failed Prohibition,” highlights how the “war on drugs” – just like alcohol prohibition – subsidizes violent gangsters, endangers public health and diminishes public respect for the rule of law. The report also details how the newer prohibition comes with the much graver threat of international cartels and terrorists who profit from illegal drug sales. Yet, it leaves readers on a hopeful note…

“We’re starting to see an emerging consensus that drug prohibition just doesn’t make sense,” said Seattle’s retired Police Chief Norm Stamper, a LEAP member. “Three out of four Americans now say the ‘war on drugs’ has failed, and so do the U.S. Conference of Mayors, the National Black Caucus of State Legislators and the National Hispanic Caucus of State Legislators. Now, it’s up to the new administration and Congress to follow through.”

Below is a link to a video made by LEAP, and some highlights from their message:

- In 1914, 1.3% of the people in this country were addicted to drugs when we passed the Harrison Act, creating the first illegal drug in the U.S. In 1970, the beginning of the war on drugs, 1.3% of the people in this country were addicted to drugs. Today, a trillion dollars and countless destroyed lives later, 1.3% of the population is addicted to drugs.

- Drug legalization is not an approach to the drug problem; it is about our crime and violence problem. Once drugs are legalized we still have to deal with the drug problem. We are capable of dealing with addictions - 50% of the adult smokers in our country quit in the last 10 years, giving up nicotine, the most addictive drug that we know, without criminalizing it but through aggressive education efforts.

- The first outcome of legalization is that 1.6 million less people would have to be arrested every year. And it means that 69 billion dollars every year would be freed up to put in other places, such as prevention and treatment of substance abuse, other much needed government programs, and the economy.

- In South Africa in 1993, under apartheid, they incarcerated 851 black males per 100,000. In the United States in 2004, under prohibition, we incarcerated 4919 black males per 100,000. In 2007, according to the Pew Center on the States, 1 in 15 black men aged 18 or older were incarcerated, and 1 in 9 black men aged 20 - 34 were incarcerated. How anyone could look at this and not see institutionalized racism, I don't know.

Mark Bennett at Defending People encourages everyone to visit the ABA's site and vote for Simple Justice or Grits for Breakfast for the top blog in the crime category; but neglects to mention that Defending People is a choice as well. The five choices are Courthouse Confessions, Defending People, Grits for Breakfast, Sentencing Law and Policy, and Simple Justice.

I see that Blonde Justice made the cut as well, but is listed under "quirky" instead of crime.

Congrats to all on some well-deserved recognition.

Brown and Little's criminal defense blog in Phoenix, Arizona is a newer site that is worth reading. They tend to get stuck in the mode of blogging about this crime or that crime (as do I, sometimes - consciously or unconsciously, with search engines in mind), but there are some very interesting reads on the site. Given the recent discussions about blogs designed solely for legal marketing v. blogs that actually contribute something to the information highway, it is refreshing to see a new blog that is not solely self-promotion and self-aggrandizing.

I missed this post back in June, where a federal judge in Connecticut ruled that it was not discrimination for police departments to refuse to hire persons who scored too high on intelligence tests:

In a ruling made public on Tuesday, Judge Peter C. Dorsey of the United States District Court in New Haven agreed that the plaintiff, Robert Jordan, was denied an opportunity to interview for a police job because of his high test scores. But he said that that did not mean Mr. Jordan was a victim of discrimination.

Judge Dorsey ruled that Mr. Jordan was not denied equal protection because the city of New London applied the same standard to everyone: anyone who scored too high was rejected.

Some of the better posts follow day to day life in the practice of criminal defense, such as today's diatribe on the hoops we have to jump through to get information out of mental health professionals.

My only complaint is that you cannot tell who is writing what - there is obviously a Brown and a Little, but no identification on each blog post. Keep up the good work.