South Carolina Criminal Defense Blog

In State v. Parker, the S.C. Court of Appeals affirmed a conviction over the defendant's claim of double jeopardy, following a mistrial caused by prosecutorial misconduct. The Court notes that double jeopardy does attach, even when the defense moves for the mistrial, when the prosecutor's conduct was at fault:

A defendant who has moved for and been granted a mistrial based on prosecutorial misconduct may successfully invoke the Double Jeopardy Clause to prevent a second prosecution when the prosecutor’s conduct giving rise to the mistrial was intended to “goad” or provoke the defendant into moving for the mistrial. Oregon v. Kennedy, 456 U.S. 667, 676 (1982); State v. Mathis, 359 S.C. 450, 460, 597 S.E.2d 872, 877 (Ct. App. 2004) (applying same standard in South Carolina).

But, the Court of Appeals affirms the conviction, finding that the prosecutor in this case did not goad the defense into asking for the mistrial. What did the prosecutor do?

Prior to questioning the first police witness, the solicitor explained to the court that there was a videotape made of the crime scene that included graphic footage of the victim’s body. The solicitor redacted that footage and presented defense counsel with the redacted copy on the day of trial. The original videotape, however, was shown to the jury. The solicitor claimed it was unintentional. Defense counsel moved for a mistrial and dismissal with prejudice based on prosecutorial misconduct. He argued the solicitor’s case was not going well and the State was now privy to his defense tactics. The solicitor argued she did not know how the tapes were switched and there was no intention on her part to force a mistrial. The court admonished the solicitor, but denied the motion for a mistrial. . . .

Parker’s counsel argued that many times during the trial, the solicitor accused him of unethical conduct, badgered witnesses to concede they were merely testifying as directed to by Parker’s counsel, and stated several times in closing arguments that Parker’s counsel had coached the defense witnesses. He further argued the solicitor improperly relied on numerous facts that were not in the record and implied to the jury it was their community duty to convict Parker of murder. He finally argued the cumulative effect of the prosecutorial misconduct warranted a mistrial.

The jury deadlocked at the first trial, but the judge also ruled that there was prosecutorial misconduct and that the prosecutor forced the mistrial:

The judge found the solicitor’s comments during closing argument were improper, constituted prosecutorial misconduct, and were alone sufficient to warrant a mistrial. The judge also found the attacks on Parker’s counsel, the imposition of the burden on the jury to convict in order to protect the community, and the videotape warranted a mistrial. The court stated: “In my readings of those opinions it’s almost as if . . . this court can infer that the defendant was almost goaded into the position of asking for the mistrial. So based on the totality of the circumstances that [have] occurred in this trial . . . I will declare a mistrial.”

The Court of Appeals bases its decision on a letter from the 1st trial judge after the trial, stating that he did not rule on the double jeopardy issue, and their finding of "support in the record to affirm the finding that the solicitor did not intentionally goad Parker into moving for a mistrial."

If these facts do not illustrate a prosecutor engaging in misconduct sufficient to force a mistrial, I don't know what would. The Court of Appeals is bending over backwards here to not call the prosecutor on her misconduct, and by doing so is sanctioning that conduct. The message to prosecutor is, as usual, do whatever you want because you are immune. You are immune from lawsuit, most trial judges will look the other way, and we will certainly not tell you how to do your job.

Next month a Municipal judge in Charleston, S.C. is to decide whether playing Texas hold 'em poker is a crime in our state. Of course, if the judge decides that it is, a jury will then decide and, if the jury decides that it is, our appellate courts get a shot at it.

Each week for nearly 30 years, Bob Chimento and his college buddies have gathered around tables in a Mount Pleasant home to play the popular version of poker known as Texas Hold 'em, bringing $20 and spending an evening with pizza, sodas and beer.

As the cards flew during a night in April 2006, a half-dozen police officers burst into the home, seizing several thousand dollars in cash and a small amount of marijuana. They ticketed Chimento and about 20 other players for breaking the conservative state's 200-year-old prohibition on games of chance.

Most of the poker players pleaded guilty and paid a $250 fine but Chimento and four others are challenging what they say is an antiquated law -- poker, after all, is seen almost nightly on TV and is played around thousands of kitchen tables around the country. Even President Barack Obama is one of the estimated 55 million Americans who are fond of the game. . . .

Read literally, a South Carolina law established in 1802 makes ''any game with cards or dice'' -- including popular board games such as Monopoly and Sorry -- illegal in the state.

But Attorney General Henry McMaster says his office has adopted a looser interpretation of that statute, one that only considers games more reliant on chance than on a player's skill to be gambling and therefore illegal -- an interpretation the top prosecutor says includes Texas Hold 'em.

''This office, over many years, interpreted that as a gambling game,'' McMaster said recently. ''This is our law, and the people of our state, speaking through their elected representatives, have made this the law.''

You have got to be kidding me . . . cops raiding poker games? I can understand if a major drug dealer is hosting a poker game at his house, but I would hope that police are not taking time and resources to conduct raids on run-of-the-mill poker games. Who makes the decision that a poker game is a worthy target and use of resources? What motivates that decision?

Apparently, in this instance, cops used an informant wired for sound and marked bills to help make their case.

Chimento says the men paid a $20 buy-in each to go toward pizza, beer and soft drinks for the group. The ''house'' didn't take a cut of the money involved in each poker hand.

Police said the gathering was not merely a friendly game but an encounter that had been advertised online. They used an informant, armed with $100 in marked bills and recording devices, to gather information.

Could it be that this is the same poker game that First Circuit Deputy Solicitor Don Sorenson was found at in April of 2006? Are police raiding poker games or are police raiding poker games where Deputy Solicitors can be found? I am curious. If anyone can name another instance of a poker-game-raid in South Carolina, let me know. Bonus points if there was a prosecutor playing at the table.

H/T to the Law and Magic Blog.

Yesterday, in Hipp v. SCDMV, the S.C. Supreme Court upheld a circuit court's decision to enjoin the DMV's delayed suspension of Charles Hipp's driver's license 12 years after his DUI conviction. In 1993 Hipp was convicted of DUI in Georgia, but was a South Carolina resident. He paid a fine and fulfilled all conditions required by the Georgia court. 12 years later, in 2005, the South Carolina DMV suddenly decided to suspend his license based on the 1993 conviction. Hipp filed a declaratory judgment action to enjoin the suspension, which was granted by the circuit court, and upheld by the S.C. Supreme Court.

The circuit court cited three grounds for enjoining suspension of Respondent’s driver’s license: (1) that the applicable statute is ambiguous; (2) the doctrine of laches; and (3) that suspension twelve years after conviction violates the “fundamental fairness” required by due process. We find the circuit court’s conclusion as to fundamental fairness to be persuasive and so, affirm.[1]

A person’s interest in his driver’s license is property that a state may not take away without satisfying the requirements of due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed2d 90 (1971). Due process is violated when a party is denied fundamental fairness. City of Spartanburg v. Parris, 251 S.C. 187, 191, 161 S.E.2d 228, 230 (1968).

In State v. Chavis, 261 S.C. 408, 200 S.E.2d 390 (1973), South Carolina held that fundamental fairness was not violated by a suspension after a one-year delay. So, we now know that a one-year delay is ok, but a 12 year delay is not. What the opinion does not address is what the result is when the driver turns in their license to the clerk at the time of conviction, in which case S.C. law says that the suspension period runs from the date of conviction. In General Sessions, there is a DMV form that must be filled out and given to the clerk, which should serve as evidence of the defendant's relinquishment of their license.

I predict that a declaratory judgment action should also be successful where the DMV delays the license suspension and does not run it from the date of conviction per the statute, where the defendant surrenders his or her license and/or fills out the DMV form at the time of conviction.

I haven't had a chance to read the opinions yet, but in the meantime, from SCOTUS Blog:

The Court has released the opinion in Van de Kamp v. Goldstein (07-854), on whether supervising district attorneys possess absolute immunity against claims they failed to ensure line prosecutors disclosed constitutionally required information to criminal defendants. The ruling below, which held for the criminal defendant, is reversed and remanded. Justice Breyer wrote the opinion for a unanimous Court. The opinion is available here.

The Court has released the opinion in Arizona v. Johnson (07-1122), on whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense. The ruling below, which held for the defendant, is reversed and remanded. Justice Ginsburg wrote the opinion for a unanimous Court. The opinion is available here.

More power for police, more immunity for prosecutors. As Robert Guest puts it, "Welcome to SCOTUSland, where violating the constitution merits no penalty, yet driving without a seat belt warrants arrest."

In another opinion released today, Nelson v. U.S., the Supreme Court re-affirmed that federal courts cannot presume that a sentence within the guidelines range is reasonable. Doug Berman has an analysis at Sentencing Law and Policy:

Specifically, with Gall and Kimbrough and now Spears and Nelson, I sense that the Justices (perhaps save Justices Breyer and Alito) are persistently troubled by how prominent the federal sentencing guidelines remain in both district and circuit sentencing decision-making. Through Spears and now Nelson, the Justices have made extra efforts to say to lower courts that they need not, perhaps even should not, keep gravitating toward the guidelines. Though one would have hoped this message came through loud and clear through the rulings in Gall and Kimbrough, it is important to see the Justices willingness to keep smacking down the circuits that seem so unwilling to get with the full 3553(a) post-Booker program.

According to the Akron, Ohio Beacon-Journal, Frank Pignatelli, a federal criminal defense lawyer, apparently became an informant for the feds against his own clients, helping to put them into jail. The article says that Pignatelli went to work for the feds after being indicted himself as a co-conspirator.

A high-stakes Akron drug dealer has become the latest suspect stung by an attorney who became an informant for federal agents.

Chevaliee ''Chevy'' Robinson, 30, pleaded guilty last fall to charges of drug conspiracy and money laundering in U.S. District Court in Akron. He was sentenced Friday to 15 years in prison.

His arrest and 29 others were made possible, federal authorities said, because of the undercover work of Robinson's former attorney, Frank Pignatelli.

According to court records, Pignatelli was facing his own indictment as a co-conspirator when he agreed to work undercover for federal drug investigators more than three years ago.

With Pignatelli's help, federal agents have arrested 30 people from Akron and Cleveland, and seized hundreds of pounds of marijuana and cocaine, along with cash and property totaling more than $3 million.

Many of the charges have led to convictions, which could not have happened without the former Akron lawyer's help, attorneys said.

He began working as an informant over three years ago, and most of the cases that he helped to make are now winding down:

An Akron defense lawyer facing his own criminal indictment turned federal informant three years ago, helping bring down two of Northeast Ohio's biggest drug kings. With tips from attorney Frank Pignatelli and secretly taped meetings he orchestrated with drug dealers, federal agents were able to arrest 30 people, seize hundreds of pounds of marijuana and cocaine and about $3 million in cash.
The drug cases, including one heard on Monday, are winding down in U.S. District (Akron Beacon Journal (OH), 699 words.)

According to the article, he is now practicing . . . federal criminal defense?

Pignatelli's law license in Ohio is inactive. He works as an attorney in Denver, a private practice that includes defending alleged drug dealers in federal court.

Deborah Leask is fighting for the right to keep her pet pig, Wiggly, in her backyard. The county's zoning board has ruled that she must get rid of Wiggly, and, looking at Horry County's public index, it appears that she has been convicted in the magistrate court of public nuisance and permitting domestic animals to run at large in 2007, and has a zoning violation pending still in the Conway magistrate court.

A battle over swine is going to local court on Tuesday as an Horry County woman protests a county decision that she cannot keep a pet pig at her suburban home.

It will be the most recent step in Deborah Leask's months-long fight to keep the pig, Wiggly, in the backyard of her home in the Plantation Point subdivision west of Myrtle Beach. She was issued a citation last year, and the county's zoning board of appeals has ruled against her.

Leask said Wiggly is a pot-bellied pig, which enthusiasts say make just as good pets as dogs or cats. The animals are intelligent, emotional and, contrary to popular belief, relatively clean, some say.

At issue for Leask is whether Wiggly should be considered a pet or livestock. County zoning rules do not allow livestock in residential areas, and Curt Freese, the county's zoning administrator, said he considers the pig to be livestock.

Leask said the pig should not be considered livestock because the animal is not being raised for food nor is Leask making any profit off the pig.

"Pot-bellied pigs are kept all over the country as domesticated pets," she said. "I would like to have the same opportunity to have domesticated pet pigs as other Americans have."

"They're very sweet animals, very loving animals," said Ben Watkins, the executive director of the Ironwood Pig Sanctuary, which hosts 580 pot-bellied pigs in Arizona. "They like to be petted. They like their belly rubbed."

If the pig is getting out and causing problems, it should be treated the same as any other pet that gets out of the fence. But, calling someone's pet pig "livestock" to try and force them to get rid of it is just ridiculous. People keep pigs for pets. It's no larger than many dogs, most likely quieter, and safer. Certainly we can find a more efficient use of court time than persecuting Wiggly the pet pig.

In State v. Muquit, the S.C. Court of Appeals held that a search warrant is not necessary for law enforcement to seize "an incarcerated defendant’s personal effects in his possession or the possession of the detention center or jail where he is being held;" it is not a violation of the Fourth Amendment.

In this case, the police obtained a search warrant that authorized a search of Muquit's person and the seizure of the clothes he wore during the robbery. Because the police seized the clothes not from Muquit's person as authorized by the warrant (he was wearing jail clothes at the time the warrant was executed), but they instead seized the clothes from Muquit's personal property at the jail, the search warrant was invalid. However, it did not matter that the warrant was invalid, because there is a greatly lessened expectation of privacy in your belongings held at the jail and there was no Fourth Amendment violation.

The Court points out that, although this is a matter of first impression in South Carolina, it is well-settled law in the federal courts that property already in custody may be seized.

Although there is no South Carolina case law directly on point, the federal courts view the issue of seizing property already in custody as well-settled. Authority to search an arrestee derives not only from the need to disarm him, but also from “the need to preserve evidence on his person for later use at trial.” U.S. v. Robinson, 414 U.S. 218, 234 (1973) (citing Agnello v. U.S., 269 U.S. 20 (1925); Abel v. U.S., 362 U.S. 217 (1960)). When an arrestee’s property is already in the custody of law enforcement as an incident of the arrest, the police may seize it at a later time as evidence relating to his offense. U.S. v. Edwards, 415 U.S. 800, 806-807 (1974) (citing Cooper v. California, 386 U.S. 58, 61-62 (1967)) (holding seizure of arrestee’s car impounded incidental to arrest was proper even though it occurred a week after arrest). In Edwards, the United States Supreme Court enunciated:

[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant's name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.

Id. at 807-808 (emphasis added) (footnotes omitted).

In State v. Douglas, the S.C. Supreme Court held that it was not appropriate for the trial court to qualify a forensic interviewer as an expert in the RATAC method, but that it was harmless error.

Here, Herod testified she had been employed as the Sumter County victim’s assistance officer since 1998. Although she did not have a college degree, she had attended a 40-hour training course on forensic interviewing, and had completed two weeks of training classes. She had interviewed hundreds of victims and had testified in court several times before. Herod testified she had been back for follow up courses and advanced courses and that there was a monthly national newsletter in order to enable her to keep up with things going on nationwide regarding the forensic interviewing process.

Herod also testified as to her utilization of the R-A-T-A-C method to establish a rapport with child victims, and testified as to her interview with the victim in this case. Ultimately, Herod testified that based on the interview, it was her opinion the victim needed to go to the Durant Center for a medical exam.

We find the testimony given by Herod in the present case simply was not required to be presented by an expert witness.[2] Herod testified only as to her personal observations and experiences, and her interview with the Victim in this case. Accordingly, we find it was unnecessary for the trial court to have qualified her as an expert. However, although Herod did not need to be so qualified in this case, we nonetheless affirm the result reached by the Court of Appeals, because Douglas suffered no prejudice either as a result of Herod’s testimony or by her qualification as an expert.

The Court held that it was harmless error because the jury was not likely to give her testimony more weight because she was an expert (this assertion is "untenable," the Court says). Also, the testimony of the forensic examiner was not "vouching" for the witness' credibility ("There is no evidence whatsoever that Herod believed the Victim to be telling the truth").

Pleicones' dissent is more intellectually honest, as he points out that "qualification as an expert clothes the witness with an air of authority that does not attach to 'ordinary' witnesses." Of course the jury is going to attach more importance to the testimony of someone the judge admits as an "expert." Also, despite the majority's assertion that there was "no evidence whatsoever" that the witness was vouching for the child's credibility, that seemed to be the sole reason for the states' calling the witness to the stand.

Herod’s testimony went to an ultimate issue for the jury: the victim’s credibility. Herod testified that in applying the RATAC method, she and the victim “talk a lot about telling the truth and telling a lie and we make an agreement with each other that I will tell her the truth and that she will tell me the truth” and “if the child agrees to do that” Herod continues the interview. Herod testified that after concluding the interview, she determined “that [the victim] needed to go to the Durant Center for a medical exam . . . .” I agree with the Court of Appeals that the only reasonable conclusion to be drawn from Herod’s testimony is that, based upon her training, she believed that the victim was being truthful. Juries do not require the assistance of human “truth detectors” in assessing the credibility of testimony.

Pleicones points out that, although there was physical evidence that the child had been abused, nothing other than the child's testimony connected the defendant to the crime. The interviewer's qualification as an expert, coupled with her vouching for the witness' believability, was not harmless. I wonder whether this outcome would have been the same if this had been any other type of crime (other than DUI, of course). No-one wants a child abuser to escape punishment or to remain free to abuse again, but that does not mean that we should afford a person accused of child abuse any less due process than any citizen accused of any crime is entitled to.

In State v. Bickham, the S.C. Supreme Court held that it is ok for a trial judge to enforce a solicitor's plea offer of a "package deal." The prosecutor informed the defense that they could plead to two counts of CSCM (criminal sexual conduct with a minor) 2nd degree and one count of CSCM 1st degree, pleading under N.C. v. Alford as to the CSCM 1st count, or else the prosecutor would call all three cases to trial separately and ensure that the defendant received life without parole due to statutory enhancements.

The defendant accepted the plea offer, but during the plea asked Judge Few to allow him to withdraw the Alford plea to CSCM 1st. Judge Few refused, offered to allow the defendant to withdraw his plea as to all charges or not to withdraw at all, and the defendant decided to go forward with the plea.

Whether to allow a defendant to withdraw a guilty plea is in the trial court's discretion. And whether to accept or decline a guilty plea is in the trial court's discretion. But, this case raises several issues. First is the practice of some prosecutors of trying to stop a defendant from pleading to some charges and not others. If a defendant says, I am guilty of this but I am not guilty of that - he should have every right to enter a plea in court to the offense that he is in fact guilty of, and then the prosecutor has every right to call the remaining charges to trial if he or she wishes.

Another issue raised by this case is Alford pleas. N.C. v. Alford allows a defendant to enter a plea of guilty even while protesting his innocence, where there is overwhelming evidence against the defendant and where a substantial benefit is being offered to the defendant. (A plea of Nolo Contendere is authorized by S.C. Code Sec. 17-23-40, but only in misdemeanor cases).

Alford pled guilty to 2nd degree murder, thereby avoiding the possible death penalty under N.C. law for 1st degree murder, and his sentence of 30 years was upheld by the U.S. Supreme Court. N.C. v. Alford should not be a tool by which prosecutors and defense attorneys can force pleas out of defendants, but that is how it is most often used. Although there are times when it is in the client's best interest, there is something inherently wrong with a person standing in court and saying I am innocent even as they enter a plea of guilty.

On the other hand, I have had prosecutors tell me that defendants do not have a right to plead guilty. I haven't found any support for this statement, and if any readers have some I would love to see it. There is a statutory provision, under S.C. Code sec. 17-23-120 and 130, which says that a defendant cannot plead guilty under a waiver of indictment without the solicitor's consent after investigation. Other than this, I find no support for the assertion that a solicitor must consent to a defendant's plea of guilty as charged once they have been indicted.

Although, as the Court found in Bickham, it is in the trial court's discretion to allow a defendant to withdraw a plea, this case could have been an opportunity for the Court to address the issue of whether a defendant has the right to plead guilty. I cannot see where a trial court, any more than a prosecutor, can or should say that a defendant can plead guilty to Charge A, but only if he also pleads guilty to Charge B, where the defendant maintains his innocence as to Charge B. The court in this case should have allowed the defendant to enter the plea to both counts of CSCM 2nd and then proceed to trial on the CSCM 1st if the prosecutor chose to do so.

Update: Laura Hiller, in the comments, has pointed out that Alford itself (FN 11) says that a defendant does not have a constititutional right to plead guilty:

"A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, although the States may by statute or otherise confer such a right." N.C. v. Alford. If the court has the discretion to reject any plea, by inference, a Defendant does not have the absolute right to enter a plea.

This leaves the question as to whether there is a state right to plead guilty in South Carolina. By statute, the court has said that an un-indicted defendant cannot plead guilty without the solicitor's consent; by implication this should mean that an indicted defendant can plead guilty regardless of what the prosecutor thinks.

in State v. Mercer, the S.C. Supreme Court holds that it is "clear error" for the trial judge to exclude testimony that a Spect scan revealed an abnormality in the defendant's brain during the penalty phase of a death penalty trial. It was, however, harmless error in this case.

A. “Spect Scan”

Dr. Steedman is a medical doctor who is board certified in neurology and psychiatry. Dr. Steedman analyzed a “SPECT Scan” conducted on Mercer’s brain.[6] The SPECT Scan was initially reviewed by a radiologist who noted a “questionable abnormality.” Dr. Steedman was prepared to render a stronger finding of an abnormality. The State objected strenuously against such testimony, claiming surprise and prejudice. After an offer of proof and lengthy discussion, the trial court sustained the objection on the basis of Rule 403, SCRE, and a so-called “discovery order” violation. This ruling rises to the level of an abuse of discretion.

Application of Rule 403 should be cautiously invoked against a capital defendant in the penalty phase, especially in light of the due process implications at stake when a capital defendant seeks to introduce mitigation evidence.[7] The probative value of Dr. Steedman’s excluded testimony was, as a matter of law, not substantially outweighed by its potential for prejudice, as a result of the purported late disclosure or otherwise. Reliance on the so-called “discovery order” cannot withstand even minimal scrutiny, for there was no formal discovery order.[8] In any event, Dr. Steedman was disclosed to the State, as was the general substance of his testimony.

Despite the fact that the Court found the error harmless in this case, this language shows the advances that courts have made in accepting testimony regarding brain science and the impact it has on sentencing issues. It was harmless error because, although some of Steedman's testimony regarding the abnormality was excluded, there was already testimony admitted about the Spect scan, the abnormality, and Mercer's cognitive defects.

The Court upheld the conviction and death sentence, holding that the trial court did not abuse its discretion in excluding a juror as not death-qualified, in excluding testimony of Mercer's co-defendant's lawyer, in preventing Dr. Steedman from offering expert psychiatric testimony, in denying a post-trial motion for additional funds to test the co-defendant's gloves for gun shot residue, or in denying a post-trial motion for a new trial based on after-discovered evidence that the co-defendant had confessed to a cell mate that he had committed the murder and not Mercer.

Yesterday, I had a consent bond order that needed to be signed by a judge, who just happened to be holding civil non-jury court. Because I had a small stack of orders that needed to be reviewed and signed, the judge had me wait until he finished with the cases in front of him, which took about 3 hours. Non-jury court consists of a lot of motions for dismissal, motions for summary judgment, motions to compel arbitration, and various other pre-trial litigation in civil cases. People arguing and fighting tooth and nail over who gets to take whose money, in other words.

After watching about 30 minutes, my brain was screaming and I was fighting sleep. I was reminded forcefully of why I practice criminal defense and refuse to accept civil cases of any kind. It's because I give a shit about what I do - I could care less who gets whose money. I understand that civil attorneys in general make a considerably better income than criminal defense attorneys, but I don't do this for the money. Don't get me wrong, I charge a healthy fee and I have to, but if it was about money I would be suing this corporation or that, and I'd be up there in civil non-jury court arguing with someone's insurance company about where the money goes.

Defense attorneys, by and large, don't do this for the money. We have to pay the bills and run an office, and compensation is good, but we do this because we love what we do and because we believe in what we do, whether it is helping people or whether it is fighting to preserve what little rights we have left as citizens.

In law school, I remember there was an adjunct professor who taught (and practiced) insurance law. Near the end of the semester, he gave a talk about the practical realities of the practice of law. The only thing from that talk that I remember was when he said that it was a good idea to go to work as a public defender or a prosecutor for a couple of years, but that you shouldn't stay there. He said if you stay too long you will never be able to get into the swing of billing by the hour, and prospective employers would label you as a "cause lawyer." He said "cause lawyer" like this was a bad thing.

I was confused. I (mistakenly) thought that lawyers became lawyers because they wanted to fight for a cause. I thought that was what lawyers do. I've discovered that is what some lawyers do, but many just want a job that pays them a lot of money. I decided, after that class in law school, that I was a "cause lawyer," and that has stuck with me over the years, even in private practice. There are various causes that we fight for - first and foremost the cause, whatever it is, of the client who is sitting in front of us at any given moment. We move from cause to cause over time, and sometimes we take on an over-arching cause, or an issue that needs to be addressed. For me at the moment, I am concerned with reform of our indigent defense system in South Carolina, and I am concerned with reform of our rules which allow for jailhouse snitches to perjure themselves at the request of prosecutors.

I suppose for many civil attorneys, they do have a cause, which is the motivation to earn as much money as possible. I don't suppose there is anything wrong with that at all, but it is not for everyone.

SCCID has announced that they will resume payments through February 28:

01/16/09

The SC Commission on Indigent Defense has voted to temporarily lift a moratorium on payments which was approved on December 19, 2008, and to authorize a temporary resumption of all payments for legal fees and expenses to attorneys appointed pursuant to Rule 608. The authorization is valid until February 28, 2009. The Commission will meet at its regular quarterly meeting on February 19, 2009, to consider whether to continue payments or to reimpose the moratorium based on the financial outlook of the agency at that time. Vouchers that are submitted should be final in nature. No interim expense vouchers should be submitted except with prior approval of the Court.

Executive Director Patton Adams and Deputy Driector and General Counsel Hugh Ryan will be available on Friday, January 23, 2009, from 12 Noon until 2:00 PM in the Osprey Meeting Room at Marriott Grand Dunes, Myrtle Beach, SC, during the Winter Meeting of the SC Bar to answer any questions which any member of the Bar may have.

And that Patton Adams and Hugh Ryan will be available to answer questions regarding 608 payments at the SCBar conference Friday, January 23:

01/23/09

SCCID Executive Director Patton Adams and Deputy Director and General Counsel Hugh Ryan will be available at the SC Bar Winter Meeting on Friday, January 23, 2009, to answer questions about Rule 608 payments. They will be available from 12 Noon until 2 PM in the Osprey Meeting Room at the Marriott Grand Dunes Hotel.

Lately, I've been reading recent US Supreme Court decisions but always stop short of blogging about them, prepping cases for trial, talking with clients and their family on the telephone and at the office, visiting clients at the jail, making court appearances, researching legal issues, drafting motions and making lists of subpoenas to be served in upcoming trials, dealing with personnel issues at the office, and in general spending almost every waking moment working in one form or another, whether I am at the office or at home.

Blogging and making it meaningful takes a lot of time, and I'm duly impressed with those who faithfully devote their time to it almost every day. It does take dedication but it is worthwhile for many reasons - keeping abreast of case law, getting information to the public, and providing me something to do that is a lot like work but enough not-like-work that I can pretend like I'm taking a break from work while I do it.

Anyway, I'm going to relax and watch the television for a few hours. Thanks for reading.

We use Defender Data for case management in our office, and it is nearly perfect for a criminal defense practice. It does everything that I need, except for time-keeping. Because it was designed for use in public defender offices (and I think they have now expanded to prosecutors as well), it does not have a time-keeping function.

I've been looking around for simple web-based time keeping software to supplement defender data, and haven't really seen anything that looks like it would work. Although I usually charge flat fees and not hourly rates, I keep track of time in every case for internal purposes. I don't need billing software, or anything other than a simple means to record time and attribute it to the file I am working on. If anyone reading has any cost-effective suggestions I'd love to hear them.

Update:

Defender Data does have a time-keeping function, I just haven't updated the software in a few years. Consider this a glowing endorsement of Defender Data's case management software, which is now perfect (as opposed to "nearly perfect") for the office that focuses on criminal defense.

A defense attorney in Chicago was arrested last week for smuggling weed into courtroom holding cells, at 250$ a pop. (H/T Law of Criminal Defense)

A Chicago criminal defense attorney was arrested for smuggling marijuana to inmates in the Cook County Criminal Courts Building, authorities said Thursday.

Dave Compton was arrested Wednesday after he accepted $250 and delivered a small amount of marijuana mixed with tobacco to an undercover sheriff's officer posing as an inmate, authorities said.

Compton admitted to smuggling marijuana to inmates on at least five other occasions and said he was paid $250 each time, authorities said. Compton made the deliveries to inmates while they were in holding cells in the courthouse, authorities said.

In Minnesota last week, a defense attorney was charged with cocaine possession in the courthouse. (More at Law of Criminal Defense and Simple Justice)

Winona Police Investigator Jay Rasmussen noticed Ramsay exhibiting “suspicious behavior” after coming out of a bathroom on the third floor of the courthouse around 1 p.m., Winona Police Deputy Chief Paul Bostrack said. Police Chief Frank Pomeroy said Ramsay had been touching his nose with his hands “as if he had just ingested something with his nose.”

Police evidence technician Angela Evans went into the conference room Ramsay had been using as a make-shift office and discovered a trace amount of cocaine on the table, according to reports.

The Winona County Attorney’s Office was contacted and the case was referred to the sheriff’s department, which has jurisdiction over the courthouse.

I understand that attorneys are human and are subject to substance abuse issues like anyone else, but come on. In the courthouse?

In 2007, four Aiken County narcotics officers were fired from their jobs after revelations that they were bar-hopping, and one was alleged to have had sex in, a county vehicle. The Aiken County Solicitor, who is leaving office, has announced that they will not be prosecuted for misconduct:

Four narcotics officers will not be charged with any crime for the actions that got them fired from the Aiken County Sheriff's Office in 2007. . . .

James Crowell, 34, Lt. Jonathon Owenby, 31, Tim Roberts, 30, and Luke Williamson, 35 were fired from their positions in October 2007 after they were alleged to have spent a night going to bars in the Augusta and North Augusta area in a County vehicle. At least one illicit sex act in an unmarked County vehicle was alleged in a news release issued by the Sheriff's Office at the time.

In her last hours as the solicitor for Aiken, Bamberg and Barnwell counties, Barbara Morgan announced Wednesday that the four men's actions did not rise to a level that warranted criminal prosecution.

"(The office is) not pursuing any criminal charges against them. This is not the right source of prosecutorial resources," she said. "(These incidents) are not violent or violations of civil rights."

If we declined to prosecute any crime that was not violent, that would most likely solve our state's criminal justice budget woes, wouldn't it? It's not a bad idea - legalize drug possession and other victimless crimes, scale back the solicitor's offices and public defender offices, and focus funds and time on prosecuting violent crimes where someone actually gets hurt.

Oh wait, or was this just an excuse not to charge a cop with a crime?

Last Friday the Commission on Indigent Defense met and decided to pay vouchers of appointed attorneys through March 1st of this year. This means that we will not be arguing motions to halt the prosecutions and to release pre-trial detainees in upcoming trials, at least until March 1st.

However, the funding crisis has not been resolved. The Commission is not saying that it will pay vouchers after March 1st, and no additional money has been appropriated as of yet. The governor and the legislature has repeatedly said that there will be no additional funding in the upcoming year and that further cuts are likely. Because the motions to continue appointed cases are temporarily moot, it falls on anyone who has a voice in the legislature to educate our lawmakers as to the importance of funding indigent defense, and why this is not discretionary funding that can be cut when times are hard economically.

Public defender office budgets have been cut, and offices that were woefully understaffed to begin with are now cutting back even further to accomodate the budget cuts. Our solicitor's office employees inform me that the prosecutors' budgets have been cut as well (what this means exactly I am not sure - considering that prosecutors outnumber public defenders, the prosecutors are not taking cuts in their salaries, and they have alternative sources of funding such as forfeitures and the money that they rake in from the pre-trial intervention program).

Related posts:
South Carolina attorneys ask courts to halt prosecutions until State comes up with funding
S.C. Bar releases statement in response to suspension of legal fees for court-appointed attorneys
Indigent defense - ethics
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?

As a general rule, when potential clients call and ask if I will accept payments on a fee, my answer is a flat no, it is not possible. When I first opened my office, I would allow some clients to make payments on their fees. Back then, my fees were much lower anyway, as I did not have much of an overhead. I did not have any staff, I had minimal advertising expenses, and my largest expenses were rent and office supplies. I found that the majority of the clients that made payments, well, didn't, and I found myself stuck with pro-bono and low-bono cases that I had not anticipated carrying.

What I've found is that payment plans often result in an ethical dilemma - when a client does not make payments as agreed upon, what happens? There are three choices, the third of which is not really a choice, but I will come back to that in a minute. First, you can ask the court to relieve you as counsel. The ethical rules allow for an attorney to be relieved from a case for non-payment of fees, in the court's discretion. Most judges will grant an attorney's motion to be relieved unless it is on the eve of trial or it would otherwise harm the client's defense.

But, the fact that it is allowed for under the rules does not make it the right thing to do. The ethics rules are only a starting point in determining what to do in any given situation. My opinion is, I know that many criminal defense clients are not likely to follow through with their monetary obligation; thus, if I accept a case with a payment arrangement and do not get paid, it is my own fault. The second choice for an attorney when the client fails to make payments is to stay on the case anyway, and that is what I have chosen to do in most cases where the client has failed to pay.

The third option, which is not an option at all and yet I see attorneys doing it, is to stay on the case, stop working on the case, and harass your client or their family in the hope that they will pay you. For example, attorney accepts a client charged with a fairly serious felony for a fee of $10,000. But they accept a down-payment of $500 (you only have $300? ok, I'll take it), and set up a payment plan for the remainder. Not much surprise when they cannot make their payments after the first month, and now the attorney has a client he does not want who is not paying him. Fine, under our ethics rules you now have the ability to get relieved from the case if the judge agrees.

But, the problem arises when your client is in jail on a bench warrant, you are telling the client's family you are not going to do anything until they pay you, yet you are not moving to be relieved from the case. You stay on the case, the client does not qualify for a public defender because they have a retained attorney, you are not taking any action on your client's behalf, and your client gets screwed. Or you tell your client that they have paid you for a plea but not a trial; if they come up with the rest of their fee you will take the case to trial but otherwise they are going to have to plead guilty. Was this your clients fault for not paying you? Or your fault for taking the case in the first place?

If a potential client cannot afford my fee now, they will most likely not be able to afford it several months from now, either. They can borrow the money from someone else, and then make payments to that person - I am not a bank. We are equipped to accept credit cards, so that mom, dad, brother, aunt, etc. can put their fee on a card and then allow the client to make payments to them. My opinion is that accepting a criminal case on a payment plan is setting yourself up for ethical violations and is setting yourself up for a future conflict with your client. Also, a criminal defense attorney that takes payments is going to be perceived as saying, "I am desperate for cases" and is grasping at anything that walks through the door.

I'm not saying it is never appropriate to allow a client to make payments. I'm saying, if you do, don't screw your client over in an attempt to collect those payments down the road.

Why pleading guilty or going to trial is still the client's choice, even if you have a genie in a bottle.

The anonymous prosecutor vents at the Matlock blog. (the top ten things prosecutors hate about defense attorneys)

Wouldn't it be easier . . .

Robert Guest outlines the Kubler-Ross plea-bargain model (stages of grief).

More on Scalia's new professionalism from R. Balko.

A new blog called Saturday Night and Sunday Morning; the name apparently drawn from this movie/ book and it's main character. Never saw it, but the blog is a good read.

Shawn Matlock is racially profiled. Again.

In the comments to another post, B. Tannebaum asks why I generalized about, to paraphrase, public defenders being more likely to plead their clients. This deserves an explanation and its own post. From the comments:

It appears that you are saying an attorney's advice is based on the attorney's own propensity for trials or pleas. I understand that.

I am disturbed though, by this statement you make: "Public defender clients, and those of some private attorneys, plead guilty more often because, when assessing the client's case, the public defender is more likely to inform the client that this case cannot be won, and that a plea is in their best interest."

Why do you generalize about public defenders. I was one, and a great number of private attorneys once were as well. To say that the public defender is more likely to inform the client that the case cannot be won is overgeneralizing public defenders.

Sure, public defenders have more cases and can't spend the time that some, and I mean SOME private attorneys spend on cases, but there are dedicated public defenders that take great care to advise clients whether to plea or try the case.

Can you clarify your statement?

I was a public defender also. In the past, I have been overly careful about what I said about public defenders and how I said it, and lately I've come to believe that that is a mistake. It is true that to say public defenders are more likely to plead their clients is an over-generalization, because it is true that there are dedicated public defenders that take great care to advise clients whether to plea or to try their case. I felt that I gave competent advice and was never reluctant to try a case when I was a public defender; I'm sure that Brian T. and many of us did as well.

But, at least here in my corner of South Carolina, it is also true that, in general, public defenders are more likely to plead their clients. At the risk of offending the public defenders who do not fall into this category, I think that it needs to be talked about. Not in a mean-spirited way, but with a full understanding and acknowledgment of the raw nerves that every public defender has as a result of being emotionally beaten and abused by their clients and the system in general.

My intent in speaking my mind is not to jump on the bandwagon and belittle public defenders. It is to hopefully motivate public defenders that are reading to do something different and try to make changes in the system, rather than feeling like victims of the system. As I said in a post last month, "[t]he 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."

1) On a macro level: the public defenders offices are not receiving adequate funding to do what needs to be done to provide effective representation. The caseloads are too high, they do not always use investigators and/or experts when needed, and the clients often get short thrift as a result. When the lack of resources rises to a level where clients are receiving ineffective representation across the board, defenders have an obligation to refuse cases. Our legislature is not going to provide funding for defense attorneys, public defense or private appointments, unless they are made to realize the necessity of funding indigent defense. It is not otherwise their priority.

Public defenders, I optimistically believe, do not dig in their heels and refuse cases or take other drastic action, because they do not want to suffer the political backlash. For example, they do not want to lose their jobs. But, I say, if your job is to uphold the promise of Gideon and the Sixth Amendment, and if you must trample on the Sixth Amendment in order to keep your job, what is that job worth anyway?

2) On a micro level (specific instances): locally, I see public defenders speaking to their clients for the first time at roll call, standing in front of the prosecutor, and telling them that they are an idiot if they don't take the plea offer the prosecutor is offering them. On more than one occasion, I have seen this play out, with a client who is insisting, in front of the prosecutor, that they are innocent.

I have family members of potential clients call me, begging me to take their son, wife, or husband's case, because a public defender has not been to see them at the jail where they have been locked up for 2 or 3 months.

I have new clients who come to me after being locked up on a bench warrant for failure to appear for roll call after not being able to get in touch with their public defender who will not return their calls.

I have watched public defenders (and private attorneys) struggle through a guilty plea, with the assistance of prosecutor and judge, their client maintaining that they are not guilty the entire time. (In all fairness, I have seen judges refuse to accept these pleas as well)

Common complaints from cases we pick up from public defenders locally are that their public defender would not talk to them, listen to them, return their calls, visit them at the jail, called them stupid, tried to force them to plead guilty. Most public defender clients cannot choose their lawyer. If they could go out and retain a private defense attorney, they would not be a public defender client in the first place and they do not have a choice.

Our criminal justice system is a machine, gears turning and crushing human beings, spitting them out, one guilty plea after another, with criminal records and prison sentences. The role of a defense attorney is to throw a wrench into the gears whenever possible, not to apply grease liberally and assist in the process.

Our public defenders office waives every preliminary hearing.

There are public defenders who meet with their clients, who look at the evidence in their cases, and who do the best that they can despite the resources that they have. If you are one of these public defenders, I am not speaking to you or about you, other than I am asking you to fight for more resources and to motivate the lawyer working next to you to care about his or her client. If you are a public defender from another area of the state or country, where your office is systemically geared to motivate you and help you to defend your clients to the utmost of your abilities, I am not speaking to you or about you.

There are different types of people who are attracted to public defenders offices: 1) lawyers who are young and want trial experience; 2) lawyers who are passionate about criminal defense and who want to be in a position to help people in need; and 3) lawyers who cannot find a job anywhere else (and various combinations of 1-3). A public defenders office should be actively recruiting 1 and 2, and avoiding 3. A public defenders office should be encouraging the rank and file to try cases when the client asks for a trial, and training them as to how to try cases. If the office is not doing this, then 1 and 2 are not getting what they bargained for, and will quickly become burned out and jaded.

Public defenders are on the front lines, in the trenches. I fully appreciate that. Public defenders need our support - that may be support in arguing for the funding that they need, or support with litigation if they ask us for help. If any public defender calls my office or sends me an email, and needs help with anything, I will give it to them without hesitation.

Despite all of the above, I appreciate all of our public defenders. Any public defender who reads this and who is fighting for their clients in the best tradition of public defenders everywhere may misunderstand my intentions and feel offended. But - again, that is not who I am speaking to, which is, to bring us back to Brian T.'s point, the problem with generalizations.

A sheriff in Alabama was jailed by a federal judge after it was discovered he pocketed over $200,000 in money that was meant to feed inmates at his jail. Apparently, $1.75 a day was allocated for inmate meals, but there is a law on the books that allows the sheriff to keep whatever money is left over (why?).

A federal judge ordered a north Alabama sheriff jailed this week, saying the lawman intentionally served jail inmates "woefully insufficient" meals in order to pocket more than $200,000.

Morgan County, Alabama, Sheriff Greg Bartlett was ordered to jail Wednesday by U.S. District Judge U.W. Clemon in Birmingham.

After a Wednesday hearing, Clemon found Bartlett in contempt of court, saying he had failed to comply with a consent decree in the 2001 lawsuit regarding conditions at the Morgan County Jail, according to documents filed in the case.

Clemon ordered Bartlett released from the federal Talladega Correctional Facility the following day after the sheriff's attorneys pledged to provide better and healthier meals to inmates.

At issue is an Alabama law that attorneys for the inmates claim provides sheriffs with an incentive to skimp on feeding inmates. Under the law, sheriffs are permitted to keep -- as personal income -- money left over after purchasing food for inmates. . . .

However, Clemon wrote in court documents that a typical breakfast for county inmates was a serving of grits or unsweetened oatmeal; half an egg or less, sometimes cold; a slice of white bread; and unsweetened tea or a beverage such as Kool-Aid.

Lunch was either two peanut butter or bologna sandwiches, "with a small amount of peanut butter or an exceedingly thin" slice of bologna between two slices of white bread; a small bag of corn chips; and flavored water or unsweetened tea.

A typical dinner was two hot dogs or meat patties; a slice of bread; and mixed vegetables or baked beans, the judge wrote.

At times, when chicken was served, it was undercooked and pink, Clemon said. Salt, pepper, sugar or other condiments were not provided; they must be purchased by inmates at the jail store.

Inmates never receive milk, Clemon said, and receive fruit only three or four times a year.

Brian Tannebaum, Scott Greenfield, Mark Bennett, and now Paul Kennedy have been debating the pros and cons of guilty pleas v. trials.

It began with Tannebaum's thoughts on how we should be trying more cases:

After being in trial this week I reaffirmed that trials are the only way we test evidence. Sure, we can file motions to suppress and motions in limine, and we should. The only way evidence is truly tested, witnesses are truly explored, though, is with a jury present.

We know that cops and agents won't talk to us, but when a jury hears that, it's different. We know that deceit is legally used to gain confessions, but when a jury hears this, it's different.

Evidence looks and sounds different to a lawyer than it does to 12 lay people. So many people plea guilty that the public is left with the notion that the system is working. When innocent people are released, they yawn.

We need to try more cases.

Bennett agrees, noting that it is the client's decision, although the lawyer can certainly nudge them in the direction of taking their case to trial.

Greenfield, however, points out that it is not our decision - it is the client's decision whether to plea or go to trial and it is theirs alone:

There are only a few decisions that belong exclusively to the client. Whether to go to trial or take a plea is one of them. It is our ethical obligation to do two things: Inform our clients completely, honestly and as precisely as possible of the factors that should be considered in making the decision, and honor their choice. Neither side in this disagreement appears to demonstrate a firm grasp of this duty.

As I've discussed many times before, lawyers have the ability to influence a client's decision to go to trial or take a plea. We can do it overtly or we can do it through the manner in which we inform them of the factors to consider. We can persuade, manipulate and control the client's free will. We can bend them, twist them, shape them and mold them. Both sides in this disagreement believe that it's their right or duty to do so. They are wrong.

I agree with Scott's statements in principle. But it is an inescapable reality that client's decisions are influenced by their attorney's views (and ability). Attorneys have an obligation to inform their client as to the probability of success of any given course of conduct, including a trial. Public defender clients, and those of some private attorneys, plead guilty more often because, when assessing the client's case, the public defender is more likely to inform the client that this case cannot be won, and that a plea is in their best interest. A defense attorney who is able to investigate a case and who has the ability to take a case to trial is going to be more likely to advise their client that their case can be won.

The client may also choose their attorney based on whether that attorney tries cases. When I first meet with clients, I will often tell them that if they intend to plead guilty, I can refer them to another attorney who will cost them less money. There are attorneys who never try cases and who charge accordingly, who only negotiate plea bargains (read: wait for the prosecutor's plea offer and then accept it). If I accept their case, we will investigate the case and if we cannot obtain a result that they are satisfied with, we will take their case to trial. If and when a plea offer is made in their case, it is their choice to accept it or turn it down, but if we have not investigated their case and prepared it for trial, they will not be able to make an informed decision as to whether to try the case or not.

So, I agree with Scott that the choice as to whether or not to take a case to trial is exclusively the client's, but it is a decision that is necessarily based on the attorney's advice. And that attorney's advice is going to reflect the attorney's propensity for guilty pleas or trials. And, when advising a client of the probability of success or failure at trial, one last piece of advice that I have no problem giving is: no-one ever won a trial by pleading guilty.

The SCCID and the S.C. legislature believe that South Carolina's private bar are going to shoulder the burden of all appointed cases without compensation. Prosecutors are getting paid, judges are getting paid, and public defenders are getting paid - the only person standing in the courtroom that is expected to work without compensation is the private attorney who has been drafted into representing an indigent defendant.

Attorneys in Beaufort, Horry, and York Counties thus far have filed motions with the court requesting that prosecutions be halted and their clients released from jail until such time as the legislature provides funding for the defense of indigents in our state. This is not discretionary funding that can be set aside when times are hard - if we want to continue prosecuting defendants the state has a constitutional obligation to provide an effective defense for them.

The South Carolina Commission on Indigent Defense voted late last month to stop paying court-appointed attorneys in non-capital criminal and civil cases, a decision that has angered many in the state's legal community.

Beaufort lawyer Jim Brown filed a motion in Beaufort County court Wednesday to halt prosecution of Alfonzo Howard, who faces eight felony counts and up to 150 years in prison if convicted. Brown was appointed to represent Howard in spring 2007.

Brown wants his client released on bond -- which was set at $1 million after his May 2006 arrest. He also wants Howard's trial, scheduled for February,postponed yet again. Brown argues that he can't adequately represent Howard if the state won't pay his legal fees.

"This conflict is a realization of the tension between Howard's needs for vigorous representation, involving hundreds of hours of work, and counsel's financial interests in maintaining a solvent solo practice," Brown wrote in his motion. "The current situation of certain non-payment of attorney fees guarantees that counsel will be deprived of any payment for his services, will foot the bill for his office overhead and will be forced to forgo other profitable compensation."

Fourteenth Circuit Deputy Solicitor Angela McCall-Tanner will try the case for the state and said she's sympathetic to the plight of state defense attorneys. However, "I can't stop prosecuting because the economy is in a rut," she said.

"I'm going to continue preparing for this case, and await the judge's ruling," she added. "I understand the argument of the defense attorneys, but I've got a job to do. My office has faced budget cuts, too, but I still have to prosecute."

Because she is getting paid to prosecute the case. What do you suppose Fourteenth Circuit Deputy Solicitor Angela McCall-Tanner's response would be if she was told she will no longer receive a paycheck? I have a suggestion - lets cut off all compensation to prosecutors and judges, and see how long it takes before the legislature finds the funds necessary to pay them.

State Sen. Tom Davis, an attorney with two court appointments in his caseload, said the legislature should prioritize spending in the face of slumping tax revenues.

"As an officer of the court, you've got an obligation to take on those appointments," he said. "We're in tight financial times, and quite frankly (paying court-appointed attorneys) is pretty far down on the list of priorities, behind health care and education and a host of other things.

"As members of the bar, we just have to take up that burden right now."

My office currently has 30 + appointed cases, several of which will be trials that may last a week or more. I know of at least one local attorney, who had contracted with our public defender office, who has 80 + appointed cases and has now been told she will receive 0 compensation for the time that she is investing in those cases. The reality is that in the most extreme cases, the conscription of appointed attorneys can result in the loss of their livelihood. No payment means that the doors close. When an attorney is in trial in a week long murder prosecution, they are not accepting paying clients or working on their paying clients' cases.

This is not the private bar's financial burden to bear. It is the responsibility of the government and the government alone to provide a defense for those who are indigent, if it chooses to prosecute them. The Courts have to step in and ensure that indigent defense is being funded, and the only way to do that may be by sending a message to the legislature that prosecutions will come to a halt until the funding is made available.

Related posts:
S.C. Bar releases statement in response to suspension of legal fees for court-appointed attorneys
Indigent defense - ethics
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 Ex Parte Mamie L. Jackson, released January 8, 2009, the South Carolina Court of Appeals held that where an individual is held in 1) constructive, and 2) criminal, contempt, that individual must be advised of their right to counsel. Jackson's sentence of 90 days for contempt of court (for failing to abide by court order requiring her to stop "accumulating junk, clutter and debris on her property") was reversed where Jackson was not advised of her right to counsel and the record did not show that the court provided any warning of the dangers of self-representation.

Courts have inherent power to punish individuals for contempt, however contempt can be civil or criminal:

The determination of whether contempt is civil or criminal hinges on the underlying purpose of the contempt ruling. Id. at 456-57, 652 S.E.2d at 761. If the primary purpose of contempt is to coerce a party to do the thing required by the court for the benefit of the complainant, then the contempt is considered civil. Id. However, if the principal function of the contempt is to preserve the court’s authority and to punish a party for disobedience of the court’s order, then it is criminal. Id. Punishment for civil contempt is remedial in that sanctions are conditioned on compliance with the court’s order, whereas an unconditional penalty is considered criminal contempt because it is solely and exclusively punitive in nature. Id.

The distinction is important, because criminal contempt triggers additional constitutional safeguards:

The Sixth and Fourteenth Amendments to the United States Constitution ensure that an individual be afforded the right to assistance of counsel before he or she can be validly convicted and punished by imprisonment. State v. Thompson, 355 S.C. 255, 261-62, 584 S.E.2d 131, 134-35 (Ct. App. 2003). The right to counsel is by far the most pervasive, for it affects a person’s ability to assert any other rights he or she may have. Id. The erroneous deprivation of this right constitutes per se reversible error. Id.

Contempt can also be either direct contempt, which is conduct that occurs within the presence of the court, or constructive contempt, which is conduct that occurs outside the presence of the court such as in Jackson's case (the contemptuous conduct involved leaving debris in her yard after being ordered not to). The Court limits the holding in this case to situations involving criminal and constructive contempt.

I've been told by several local prosecutors that they read my blog and disagree with a lot of things that I have to say. I'm glad that you are reading, and I want to hear from you - please comment on blog posts that you disagree with and tell me why. You don't have to say who you are, and you have the option of posting anonymously. Better yet, one of you should start a blog to give us the perspective from the other side of the fence.

I try to say things here that need to be said, but others do not say. I try to provoke thought about why things are done the way that they are and how we can improve our system. I welcome contrary ideas and opinions, and would love to see open debate on some of these topics.

I am honestly baffled by some of the things that I see some prosecutors doing, such as the use of jailhouse snitches to win cases, even when the evidence shows that they are lying. How do your brethren square this with their mandate of pursuing justice? Surely Justice is not achieved by securing convictions on the basis of perjured testimony.

South Carolina and Horry County need a prosecution blog. Anyone can do it, just go here and follow the instructions. It is free. It is easy. It is anonymous.

This morning I learned that one of my clients passed away. She was charged with accessory after the fact to a murder and the trial was set for next Monday. Although we were confident that she would be found not guilty, she was understandably concerned about the prosecution.

Her prosecution was unjustified and unnecessary - there was no evidence that she had committed the crime she was charged with (accessory after the fact involves knowingly assisting the person who committed the principle crime, by harboring them or assisting them in hiding or destroying evidence), and it was clear to me that law enforcement charged her only in an attempt to put pressure on their main suspect.

Now she will never be vindicated by a jury in open court.

It is a reminder that those we label as "Defendant" are in fact human beings, with hopes and dreams, families, and lives. It is a shame that her last days were spent in fear and with the cloud of such a terrible accusation hanging over her.

We win. What kind of prize do we get?

South Carolina Highway Patrol troopers made the most arrests for driving under the influence in Horry County during the recent holiday period, according to figures released from the state Department of Public Safety.

Troopers issued 33 DUI citations in Horry County from Dec. 31 to Jan. 4, said Sid Gaulden, state public safety spokesman. Richland County was second with 22 citations issued, followed by 18 citations written in York County and 17 in Greenville County, he said.

I will say that over past several weeks I have seen more flashing blue lights on the roadsides than ever, troopers, county, and city police. My guess is that they were not just looking for DUI's, but rather pulling over anybody that they could for anything under the sun, hoping to smell alcohol once they got to the car window.

Also, we have gotten many calls in the last week or so regarding DUI's and other charges stemming from questionable roadblocks - described as being set up in dark areas with no lights or warning that there was a roadblock ahead.

The LAPD attempted to reverse a coroner's verdict which had found them responsible for the shooting death of a 19 month old child.

The Los Angeles Police Department waged an aggressive behind-the-scenes campaign to convince coroner's officials to change their finding that a SWAT officer's bullet killed a 19-month-old girl held hostage by her father three years ago, according to records reviewed by The Times.

The intense lobbying effort, which involved one of the department's highest-ranking officials, led to significant friction between the LAPD and coroner's office. It also raises questions about whether the LAPD crossed an ethical line in pushing so hard, some medical and law enforcement experts said.

Ultimately, the LAPD's campaign led nowhere. The coroner has stood firmly behind its conclusions. But the Police Department's unusual attempt to have the case reopened underscores the deep, lasting effect the death of the child, Suzie Peña, has had on the officers involved and on SWAT as a whole.

The SWAT team had apparently returned fire blindly through a wall, knowing that the man firing had taken the child hostage. The coroner found a bullet fired by a SWAT team member in the girl's head.

A third trooper has been charged with civil rights violations stemming from the videotapes which were released last year in response to FOIA requests by media and requests by a Senate committee.

On Wednesday, prosecutors filed charges against Lance Cpl. Alexander Richardson, accusing him of using unreasonable force against a man who Richardson was chasing in his car through a Columbia apartment complex in 2007. The charge is a misdemeanor, unlike the felony charges filed against Garren and Sawyer.

Last October, trooper Steve Garren was acquitted of charges related to his running down a suspect in his patrol car and then bragging about it on tape. Former trooper John B. Sawyer, who kicked a truck driver in the head following a police chase, pled guilty to civil rights violations on Monday.

Richardson, a trooper in Richland County, was given a reprimand following an incident in 2007 where he, in his patrol car, chased a man who was on foot through an apartment complex yard with children present, jumped curbs and struck the suspect with this vehicle.

In U.S. v. Dunphy, an opinion interpreting the recent sentencing guidelines amendment for crack cocaine, the Fourth Circuit Court of Appeals held that an amended sentence based on the crack cocaine reduction cannot be reduced below the minimum sentence in the new, amended, guideline range:

The district court here expressly considered the § 3553(a) factors in making the determination (1) that a reduction of Dunphy’s term of imprisonment was warranted and (2) that the extent of the reduction for Dunphy should be to the minimum of the amended guideline range. It properly did so in accord with the limits described in U.S.S.G. § 1B1.10(b), refusing to go below the minimum of the amended guideline range.8 J.A. 82-83 . . .

When a sentence is within the guidelines applicable at the time of the original sentencing, in an 18 U.S.C § 3582(c) resentencing hearing, a district judge is not authorized to reduce a defendant’s sentence below the amended guideline range.

A prosecutor's office in Florida has been disqualified from a murder case after listening to attorney client phone calls on the jail's phones. Via Law of Criminal Defense and ABA Journal.

The Broward State Attorney's Office plans to call on the help of the Florida attorney general after a judge kicked the entire office off a murder case because of the conduct of two prosecutors during trial.

Circuit Judge Susan Lebow decided Monday that murder suspect Luis O. Martinez's right to a fair trial was violated when prosecutors listened to taped phone conversations Martinez had with his defense attorney, Chris Grillo.

On Tuesday, Lebow granted the state attorney's office motion to put the trial on hold while the office decides what its next move will be.

The state plans on appealing the ruling; every phone call from the jail telephones includes a message that states the phone call will be recorded, and they claim that this is enough to waive attorney client privilege.

For this very reason, in general, I don't accept calls from my clients who are in jail. I ask them to have a family member call or send a letter, and then I will go and speak with them in person. Every phone call from the jail is recorded, and the solicitor's office reviews those recordings before trial. I usually advise my clients not to discuss their case with anyone on the phone including family. Even seemingly harmless statements can be easily misconstrued and used against them at a later date.

In State v. Parker, the South Carolina Court of Appeals affirmed the murder and armed robbery conviction of a 16 year old defendant, holding that his statement was not involuntary. The Court reviews the factors involved in the determination:

In determining whether a confession was given “voluntarily,” this Court must consider the totality of the circumstances surrounding the defendant’s giving the confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed. 854 (1973). As the United States Supreme Court has instructed, the totality of the circumstances includes “the youth of the accused, his lack of education or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” Id. (internal citations omitted). Furthermore, no one factor is determinative, but each case requires careful scrutiny of all the surrounding circumstances. Id.

In this case, the defendant was 16 years old, he had finished the sixth grade, and was of below average intelligence. There was no evidence that he was advised of his Miranda rights other than the testimony at trial of the police (there was no written Miranda form, even though one officer testified it was customary for them to use the written form, and there were no Miranda warnings given on the portion of the interview that was recorded). He was interviewed for approximately 3 and 1/2 hours, and had not slept for at least a full day before the interview (he was running from the police in the woods, and when he was finally caught he was taken to the hospital to be checked for frostbite and hypothermia). During the chase, police shot at him numerous times.

I suppose one thing that this case illustrates is, under the current law regarding confessions, the need to win the suppression argument at the trial level. On appeal, the standard of review is "abuse of discretion," and the appellate court will not overrule the trial judge's findings of facts. For example in this case, the trial judge specifically found that the testimony of the police officers that they gave Miranda warnings was credible and the defendant's testimony that he was not given warnings was not credible.

As in most types of suppression hearings, what this means is that if the officer has no problem lying on the stand, and many don't, there is no need to actually give Miranda warnings. They just have to say they did at trial - any judge is going to find the police officer credible and the defendant not credible. The only way to prevent cops from circumventing the rule and then lying in court is to require proof that Miranda was given, beyond the testimony of the officer. Require that confessions be recorded, and that Miranda be given on the recording, or require that a written form be used.

The officer in Parker also admittedly used the Reid technique during the interview. Telling the juvenile that what they did is ok, that it is understandable and he knows the juvenile didn't mean to do it, is one of the techniques used by police, in conjunction with other types of lies that are sanctioned by the courts, that will result in confessions - whether true or false. The Reid technique was discussed at length in Miranda v. Arizona, as one of the evils that they were trying to avoid by requiring Miranda warnings.

To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and, from outward appearance, to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, [Footnote 12] to cast blame on the victim or on society. [Footnote 13] These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already -- that he is guilty. Explanations to the contrary are dismissed and discouraged . . .

From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: to be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must "patiently maneuver himself or his quarry into a position from which the desired objective may be attained." [Footnote 23] When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.

Even without employing brutality . . . the very fact of custodial interrogation exacts a heavy toll on individual liberty, and trades on the weakness of individuals.

In August '07 public defender Brian Jones was held in contempt of court for refusing to proceed with a trial 2 hours after he was appointed to a case. This week the Court of Appeals overruled the contempt, holding that the municipal judge abused his discretion in not granting a continuance so that the attorney could prepare for trial. (H/T Law of Criminal Defense)

{¶24} “Where a trial court denies a continuance in a criminal trial and, as a
consequence, defense counsel refuses to participate in the trial for fear that the
defendant would receive ineffective assistance of counsel and that counsel would be in violation of DR 6-101(A)(2) and 7-101(A)(3), the court may commit error under the
circumstances of the particular case in finding defense counsel in contempt and in
imposing a fine.” In re Sherlock, supra, at paragraph two of the syllabus. “Defense
counsel should not be required to violate his duty to his client as the price of avoiding punishment for contempt.” Id. at paragraph three of the syllabus.

Brian Jones is a hero, for standing up for his client and not giving in to the pressures of a system geared to strip our client's rights from them. Even though his case was a simple assault in a municipal court (note - in South Carolina we don't even provide attorneys for defendants charged in the municipal or magistrate courts), he refused to allow the court to brush aside the Constitution in favor of judicial economy.

{¶29} Under these circumstances, effective assistance and ethical compliance were impossible as appellant was not permitted sufficient time to conduct a satisfactory investigation as required by Disciplinary Rules 6-101 and 7-101 of the Code of Professional Responsibility, Rule 1.1 of the Ohio Rules of Professional Conduct, and the Sixth Amendment of the United States Constitution. It would have been unethical for appellant to proceed with trial as any attempt at rendering effective assistance would have been futile. Appellant properly refused to put his client’s constitutional rights at risk by proceeding to trial unprepared.

{¶30} “The rights of indigent defendants to appointment and effective assistance
of counsel are neither lofty philosophical ideals nor rights that only function to give us all faith in the criminal justice system. *** The rights to appointment of counsel and to
effective assistance ultimately impact not only whether people are convicted of crimes based on fair processes but moreover, whether innocent people are convicted of crimes they did not commit. These are both outcomes whose probabilities should be reduced whenever and however feasible.” Note, The Paper Tiger of Gideon v. Wainwright and
the Evisceration of the Right to Appointment of Legal counsel for Indigent Defendants (2005), 3 Cardozo Pub.L., Policy & EthicsJ. 495, 500. (Footnote omitted.)

{¶31} The rights guaranteed to citizens under the Constitution are clearly
defined and include the right to effective and competent assistance of counsel, the right to subpoena witnesses, the right to confront one’s accusers and above all a right to a fair trial. Counsel must be given ample opportunity to prepare, investigate and discover the facts of the accusation. Furthermore, counsel must have time to investigate witness testimony, the nature of the allegations, and develop possible defenses in order to
properly represent his or her client and provide effective assistance. The right to a
speedy trial is a right both constitutional and statutory which inures to the defendant not the court.

{¶32} By denying appellant’s motion for a continuance, Judge Plough improperly
placed an administrative objective of controlling the court’s docket above its supervisory imperative of facilitating effective, prepared representation and a fair trial.

The Court in this opinion has also laid out the reasons why public defenders everywhere need to insist on the funding necessary to provide an effective defense to their indigent clients, and stop making excuses and making do with what they are given by their legislatures.