South Carolina Criminal Defense Blog

While wearing a red dress, blonde wig, bra, and thong.

Officials say trooper Leslie C. Hoover was pulled over on John Dodd Road in Spartanburg County under suspicion of DUI. This came after a motorist called 911 to report Hoover’s personal vehicle, an Isuzu Rodeo, swerving erratically on Insterstate 26 about 6:40pm in heavy rush hour traffic. The SC Department of Public Safety says Hoover refused a breathalyzer and failed a field sobriety test. He was charged with driving under the influence.

Thursday morning, Hoover appeared before a magistrate and was released on his own recognizance. But his appearance when he entered the jail has stirred more discussion than his legal troubles.

A high-ranking official who wished to remain anonymous tells News Channel 7 he saw Hoover brought into the jail “wearing a red dress”. He says Hoover was also wearing a bra and was seen “adjusting his bra” while he waited to be processed. And he says the shamed trooper had a pair of thong panties “in his possession”.

That would explain statements made by the man who made the 911 call on the interstate. The driver, who asked not to be identified, said Hoover “appeared to be wearing a blonde wig” when he came flying past him near exit 22. On a recording of his 911 call - which was obtained by News Channel 7 - the man refers to Hoover as “she” several times.

The driver who called 911 also reported that a state trooper came up behind Hoover's vehicle and followed him, observed his erratic driving, and then went around him without stopping him.

S.C. Highway Patrol has had its share of embarrassments and problems over the past few years, some of which I've blogged about extensively. But, let me take this opportunity to say that, with a few exceptions, the troopers that I have dealt with in the Horry County area are more professional than any other agency that I've dealt with. They tend to make better cases, they are better trained, and I receive far fewer reports of unprofessional or abusive conduct than I do from City of Myrtle Beach and the Horry County Police Department. That being said, they've definitely got some live ones up there in the upstate.

SeattlePI.com has posted a video of Kings County Deputy Paul Schene and friend busting a 15 year old girl's head in a holding cell. (H/T a public defender) The girl had been arrested for taking her mother's car without permission:

Too often in juvenile court I see kids whose parents can't or won't raise their children, who think calling the police on their child is the answer. I can't say that is or isn't how this teenager ended up in the jail, but it raises the issue in my mind. I have had parents stand up and tell the court "I need you to discipline my child for me, she needs to be taught a lesson," and I've had parents whose child would have gone home on probation except the parent refused to take them home. I've stood up in court and said that the parent needs to be locked up, not the child, knowing full well that cannot and will not happen but just fed up and determined to speak the truth as I see it. The child gets sent to DJJ or to an evaluation center because there is nothing else that the judge can do. DSS is ordered to do a home study before the child returns to court, but nothing comes of it.

Any parent who thinks the juvenile justice system is better equipped than they are to discipline their child should take a look at the video above. They should also take a tour of the DJJ facility where their child will be locked up, or the Coastal Evaluation Center - which is located next door to Lieber Correctional Facility (which also houses South Carolina's Death Row) and is surrounded by barbed wire and concrete.

There are situations where the juvenile justice system is necessary, but there is something terribly wrong when a parent has to call the police every time their child does not listen to them or when they act out, and when a parent thinks that a night in jail (or 45) is appropriate discipline for a child. Back to the video above - children are especially vulnerable to abuse; because they are small, because they don't know how to protect themselves, and because no one listens to them. The officers above should never be allowed to wear a uniform again, and, like these judges in Pennsylvania, should answer for their crimes in court.

In In re Boyce, in December 2006, an attorney was given a public reprimand for issuing a subpoena for bank records when there was no case pending. Although the lawyer's assistant drafted and mailed the subpoena and not the lawyer, the Court held that the lawyer was responsible for the supervision of her employees:

The subpoena contained the following false and misleading statements and implications:

1. that Owner was a party in a pending civil action when he was not;

2. that the subpoena was issued by the “civil court in the County of Spartanburg” when it was not;

3. that the subpoena was in furtherance of a pending civil case when it was not;

4. that the bank was required by law to produce certain documents and information for inspection and copying when it was not;

5. that a designated official for the bank was required to provide the documents and information at the Spartanburg County Family Court when there was no cause pending in that court and no official for the bank was required to appear;

6. that the subpoena was issued in compliance with Rule 45(c)(1), SCRCP, when it was not; and

7. that respondent was an attorney acting on behalf of the plaintiff in a pending civil action in issuing the subpoena when, in fact, she was not.

Respondent acknowledges it was improper to send the subpoena when no action was pending. Even if the subpoena had been pursuant to a pending action, respondent admits she failed to review it prior to its service upon the bank. Finally, respondent admits that she failed to adequately supervise her non-lawyer assistant in the preparation and service of the subpoena.

What rules did this violate?

Respondent admits that, by her misconduct, she has violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule 5.3 (lawyer having supervisory authority over non-lawyer shall make reasonable efforts to ensure the person’s conduct is compatible with the professional obligations of the lawyer); Rule 8.4(a) (it is professional misconduct for lawyer to violate Rules of Professional Conduct); Rule 8.4(d) (it is professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(e) (it is professional misconduct for lawyer to engage in conduct that is prejudicial to the administration of justice). Respondent acknowledges that her misconduct constitutes grounds for discipline under the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR, specifically Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct) and 7(a)(5) (it shall be ground for discipline for lawyer to engage in conduct tending to pollute the administration of justice or to bring the courts or legal profession into disrepute or conduct demonstrating an unfitness to practice law).

A few days ago, I wrote about the practice of the 15th circuit solicitor and other solicitors around the state of using a clerk of court signature stamp to issue their own subpoenas, and the practice of issuing illegal subpoenas for investigation purposes when no case exists, instead of seeking a search warrant. Greg Hembree, the 15th circuit solicitor, and other solicitors, made public statements that there was nothing wrong with this practice:

Greg Hembree, solicitor for the 15th Judicial Circuit, said there is little legal precedent on how subpoenas can be used for investigative purposes. Prosecutors with the S.C. attorney general's office said state law does not expressly prohibit their use in such cases.

Besides the text of the S.C. Rules of Criminal Procedure, which do not allow for subpoenas unless there is a pending case, there is a South Carolina ethics opinion which is directly on point, which asks the questions: 1) can a prosecutor obtain a subpoena duces tecum during a criminal investigation prior to the issuance of an arrest warrant or true billed indictment? and 2) can another prosecutor use the information obtained pursuant to that subpoena in a criminal prosecution? The answer:

It would be unethical for an attorney to obtain a subpoena duces tecum in a criminal case prior to there being an active arrest warrant or true billed indictment. Further, it would be unethical for a subsequent attorney, who is aware of the unethical conduct of the first attorney, to utilize the subpoenaed information in a criminal prosecution.

As to the prosecutor obtaining the subpoena:

Rule 8.4 (g) provides that an attorney may not, “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”(emphasis added).

If the rules of procedure or substantive law do not allow for the issuance of criminal subpoenas prior to the existence of an arrest warrant or a true billed indictment, then the request or effort of Prosecutor A to obtain or serve such a subpoena would violate this rule. The attorney may also consider Rule 3.3 and Comments (candor toward tribunals) and 4.1(a) (truthfulness in statements to others).

As to a second prosecutor using evidence obtained as a result of the subpoena:

Rule 8.4 (a) states that it is professional misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” (Emphasis added).

Rule 5.1(c)(1) provides that a lawyer shall be responsible for another lawyers violation of the rules of professional conduct if the lawyer “orders or, with knowledge of the specific conduct, ratifies the conduct involved.”

If the first prosecutor has in fact acted unethically in his conduct of obtaining or serving a subpoena duces tecum prior to the issuance of an active arrest warrant or true billed indictment, a subsequent prosecutor who knowingly utilizes the information would violate Rule 5.1(c)(1) and Rule 8.4 (a) of the Rules of Professional Conduct.

Besides issuing their own subpoenas and using subpoenas as pre-arrest investigation tools, the 15th circuit assistant solicitors, at least in the magistrate court division, are mailing their subpoenas to out of state witnesses, then informing the witness that they must appear in court. In one instance, I was told that the assistant solicitor told an out of state witness they would be arrested if they did not appear.

For any newer assistant solicitors who may be reading, the 15th circuit solicitors office does not have the power to compel attendance by a witness who lives in Pennsylvania, New York, or Maryland. There is a process by which attorneys can subpoena an out of state witness, found in S.C. Code Section 19-9-10. When subpoenaing an out of state witness, you must find the comparable statute in the home state of the witness you wish to subpoena. Typically, that statute will require you to have a local judge sign a certificate to compel the appearance of the out of state witness. You must take that certificate to the home state of the witness and schedule a hearing, giving the witness notice of the hearing. At the hearing, you request that the home-state judge issue a subpoena compelling the witness to attend the trial in South Carolina.

So, what is the problem? A witness who does not want to come can move to quash the subpoena, or can simply not appear right? The problem is that issuing the illegal subpoena in the first place, and threatening to arrest a person when you know that you have exceeded your authority, is unethical and it is an abuse of power.

The United States Supreme Court has granted cert in Padilla v. Commonwealth of Kentucky, which deals with the issue I raised in my post about Hayes:

Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

In South Carolina, that question has been answered in the affirmative - where plea counsel gives incorrect advice as to the collateral consequences of a guilty plea, that is ineffective assistance of counsel. When the defendant would have chosen to take his case to trial rather than plead guilty, but for the faulty advice, then the plea is set aside. Kentucky took the opposite position in Padilla, and the USSCT will decide whether that violates the Sixth Amendment. Even if the Court holds that it does not, the states are free to provide this additional protection - the federal constitution is a minimum guarantee of rights, and the states can and often do interpret their constitutions as providing more protection than the federal constitution.

Scott Greenfield at Simple Justice argues that, although attorneys have a duty to answer correctly when they answer, the responsibility lies with judges to include this advisement in their plea colloquy:

What's the solution? As I've argued since 1990, every judge should include in the allocution the collateral immigration consequences of a plea of guilty. Even if it's the defense lawyer's practice to inform his clients, it remains the duty of the judge to make certain that the defendant's plea is fully informed. While I agree that deportation is a collateral consequence of a plea, and that there is certainly some lack of clarity about what constitutes an aggravated felony and whether criminal defense lawyers should be expected to have expertise in immigration law as well, the fact remains that a defendant is entitled to effective representation when he obtains an answer to a question in anticipation of a plea.

The moral of the story is that when you answer your client's pre-plea questions, you are responsible for giving them the correct answer. It really isn't that much to ask.

Remy Orozco at Hostis Civitas disagrees in part, arguing that the duty to inform the client of immigration consequences lies squarely on the defense attorney:

When a defendant decides to plead guilty or go to trial they do so under our advisement and it is our responsibility to ensure that we present them with all the facts and possible outcomes for them to weigh as they make their decision. In the Padilla case, his attorney committed malpractice when he misinformed him as to the collateral consequences his guilty plea would have on his immigration status. Mr. Padilla has a 6th Amendment right to effective assistance of an attorney. What makes this case so agregeous is the fact that Mr. Padilla specifically asked his attorney what consequences the guilty plea would have on his immigration status and his attorney misinformed him.

The fact is, no one knows the defendant's situation like the defense attorney. The judge, and often the prosecutor, often do not know the defendant's immigration status unless the defense attorney tells them - which does place the responsibility squarely on the shoulders of the defense lawyer. I agree with Remy that an attorney who ignores the fact that his client is not a legal resident, or does not inquire, is committing malpractice. The courts, however, disagree with us on this point - the only question that the USSCT will decide in Padilla is whether it is ineffective to give a wrong answer when the client asks about the consequences.

The United States Supreme Court today in U.S. v. Hayes held that a conviction for simple assault and battery, if the defendant has a domestic relationship with the victim, is the same as a conviction for criminal domestic violence for purposes of the federal gun laws.

18 U.S.C. §922(g)(9) prohibits the possession of a firearm by any person who has been convicted of a misdemeanor crime of domestic violence (other provisions prohibit the possession of any person convicted of certain felonies, but the specific provision was added for domestic violence because CDV is typically a misdemeanor that would not fall under the other provisions). §921(a)(33)(A) defines "misdemeanor crime of domestic violence" as any crime that involves the use of force or threatened use of force, against a person that the defendant has a domestic relationship with (spouse, child in common, lives together). This definition under federal law encompasses not only state CDV laws, but also state assault and battery laws when the victim is someone that the defendant has a domestic relationship with.

The definition of a crime of domestic violence under federal law is important because the fact that a person is subject to later federal prosecution for possession of a weapon is a collateral consequence of the conviction; another important collateral consequence that attorneys often do not consider is that a conviction for a misdemeanor crime of domestic violence can have immigration consequences as well. Many attorneys routinely plead CDV's down to assault and battery charges, under the mistaken assumption that this will exempt them from the federal gun laws, to their clients' detriment. Because these are collateral consequences, there is no remedy on appeal for an attorney's failure to inform their client that they can no longer own a gun or that they could potentially be deported or denied citizenship following a guilty plea to domestic violence - or - following a plea to simple assault and battery where the spouse is the victim.

Post conviction relief, based on ineffective assistance of counsel, could be a remedy depending on the circumstances. South Carolina courts have held that PCR will not be granted if an attorney simply does not advise a client as to collateral consequences before advising them to plead guilty, but if the attorney gives advice and it is wrong then it is considered ineffective assistance of counsel. The most common example is parole eligibility - if an attorney does not advise a client as to parole eligibility there are no grounds for relief, but if an attorney does advise a client and gives the client incorrect advice it may be grounds for PCR. For example, if the attorney tells the client they will be eligible for parole after 1/4 of their sentence on an armed robbery charge and the client, thinking that he will be released on parole after 3 years, accepts a plea to 12 years, PCR may be an available remedy. Armed robbery is a no-parole offense, and that person will serve 85% of the 12 year sentence before they can be considered for release.

Although there are no cases on point in South Carolina that I have seen, the same should be true regarding the prohibition on owning a gun and the immigration consequences of a plea to CDV or assault and battery. When attorneys spot a potential immigration issue we need to consult an immigration attorney when the client can afford it - immigration law is too complex to take chances on giving faulty advice. In general, attorneys need to be aware that any conviction for a crime of moral turpitude can cause problems when an individual is applying for citizenship and it can potentially result in deportation as well. A conviction for domestic violence, or a conviction for assault and battery against a spouse, is considered a crime of moral turpitude under federal law.

South Carolina courts have taken the position that it is not ineffective assistance of counsel to remain silent regarding collateral consequences, but in my opinion every attorney needs to be advising their clients that if they plead guilty to CDV or assault and battery against a spouse, they will lose their right to own a gun and, if they are not a citizen, they could be deported or denied citizenship as a result of the guilty plea.

U.S. District Judge Samuel Kent pled guilty today to obstruction of justice, on the morning of jury selection in the federal courthouse in Houston for his trial on charges of sexually abusing employees:

U.S. District Judge Samuel Kent pleaded guilty to one count of obstruction of justice today and retired from the bench, avoiding a trial on that charge and five others accusing him of sexually abusing two female employees.

Kent was scheduled to see a jury selected this morning for his trial on all six felony counts.

As part of his guilty plea, Judge Kent signed papers admitting that he had "non-consensual sex with two former female employees between 2003 and 2007," and that he lied to the Special Investigative Committee of the 5th Circuit. Prosecutors will dismiss the remaining charges and will ask for a sentence of 3 years in prison - the sentencing hearing will be in May.

Today's quiet admission of guilt is in stark contrast to Kent's flamboyant protestations of innocence last September . . .

U.S. District Judge Samuel Kent stood before a fellow federal judge Wednesday and vehemently proclaimed his innocence of three federal charges of sexually abusing an employee.

"I plead absolutely, unequivocally not guilty and look very much forward to a trial on the merits of what I consider flagrant, scurrilous charges," Kent stated with force to 5th U.S. Circuit Court of Appeals Judge Edward Prado.

"For the record I absolutely intend to testify, and we are going to bring a horde of witnesses," Kent said loudly.

. . . which was soon followed by additional charges of sexual misconduct and lying to a judicial panel in last month:

U.S. District Judge Samuel Kent was indicted by a grand jury Tuesday on new charges of sexually abusing another court employee and lying about it to prominent federal judges who investigated a misconduct complaint against him.

H/T Grits for Breakfast; Paul Kennedy at the Defense Rests has a link to Kent's plea agreement.

The standard method of impeachment by prior inconsistent statement is to have documents organized and tabbed, ready to impeach if the witness does not admit to the statement you are confronting him or her with. This could be an incident report, a preliminary hearing transcript, a written statement, or a transcript made from a recorded statement.

In our last two trials, we had discovery which included extensive audio-recorded interviews by potential witnesses, including the state's jailhouse snitches. Rather than attempt to transcribe every interview, which would have been ridiculously time consuming and expensive, I bought an IPod-touch to put the statements on.

I have seen impeachment by an audio-recorded statement using the original cd-roms - to do it this way you would mark the location of the statement that you anticipate would be needed for impeachment (i.e. 7:39 - 8:05 snitch says to cop yes I was lying to you, it was because I wanted you to give me a sweet deal), then if the witness denies having made the statement you simply pull the microphone down to the computer, set whatever media player you are using to that location, and play that portion of recording. The problem with this method is that it is somewhat cumbersome, you have to return to counsel table and mess with the computer every time you want to use it, and if there are inadmissible portions of the recording you have to be very careful not to over or undershoot your mark on the audio.

What works even better is to create audio-clips of each potential impeachment, and then move it to the IPod-touch. You can label categorize it as "genre" = the name of that particular trial; "artist" = the witness' name; and "song" = your label for that particular clip. It is easy enough to organize all of the clips, once they are separated from the original recording, on I-Tunes which will work on a Mac or on Windows.

You can use free editing software like audacity to locate and cut audio clips that you will be using on the IPod. Even if what you have is video, you can convert it to an mp3 or wave file and then cut the clips that you need. Make sure that the clips you are using contain enough material just before and after the desired statement that it doesn't seem like you are taking the statement out of context - the exception being where there is material that is inadmissible that must be edited out.

You can then use a small speaker (I spent about 80$ on a small portable speaker that still has good volume) connected to the IPod to play the clips when they are needed. You can carry the whole set-up in one hand to where-ever you will be cross-examining the witness, and when the witness denies making the statement, pick up the IPod, tap it a few times, and out comes the witness' voice saying exactly what he just denied. It works wonders to keep witnesses honest - once you impeach them once or twice most witnesses catch on, and just looking at the IPod sideways will make them agree wholeheartedly with whatever question you are asking.

(H/T to Jonathan Hiller who helped to figure this out and to set it up for us)

A recent pre-trial hearing in the embezzlement trial of Beulah and Dayo White, a mother and daughter accused of taking money from the Five Rivers Community Development Corp, has brought to light what many consider to be rampant abuse of the subpoena power by not only the 15th Circuit Solicitor's Office, but solicitor's offices statewide.

The first practice that has been exposed, which may or may not cross the line although it certainly raises questions, is that the clerk of court in Horry County and other counties has given a signature stamp to the prosecutor's office - there is no need for the prosecutor to walk the 20 feet or so down the hall to the clerk's office, they can simply pull out their stamp and sign the clerk's name to their subpoena (or other documents?) themselves.

In civil cases, the attorneys can issue subpoenas under their own name. However, in criminal cases, the clerk of court must issue subpoenas - the clerk does not have the authority to review, approve, or disapprove a subpoena based on content, but, per the S.C. Rules of Criminal Procedure, they must be issued by the clerk:

RULE 13
SUBPOENAS

(a) Issuance of Subpoenas. Upon the request of any party, the clerk of court shall issue subpoenas or subpoenas duces tecum for any person or persons to attend as witnesses in any cause or matter in the General Sessions Court. The subpoena shall state the name of the court, the title of the action, and shall command each person to whom it is directed to attend and give testimony, or otherwise produce documentary evidence at time and place therein specified. The subpoena shall also set forth the name of the party requesting the appearance of such witness and the name of counsel for the party, if any.

Of course, providing the solicitor's office with a signature stamp with the clerk of court's name certainly saves time for both the prosecutor and for the clerk's office (I am still waiting for my clerk of court signature stamp, apparently this is a privilege given only to attorneys on one side of criminal cases). Giving a stamp to the prosecutors so that they can sign the clerk's name to subpoenas does not = the clerk issuing the subpoena. These subpoenas are issued by the prosecutor, not the clerk, and they violate the rule.

David Wren at the Sun News reports that, according to numerous solicitors from across the state, the practice is widespread:

They say clerks of court are not required to review or verify the subpoenas and that state law only calls for the documents to be issued - not signed - in the name of a clerk of court. "If the clerk of court is rubber-stamping subpoenas anyway, what's the difference?" said Trey Gowdy, solicitor for the state's 7th Judicial Circuit. Gowdy said his office prints subpoenas from a computer program that automatically downloads the clerk of court's signature. "We went to the clerk of court years ago to get his signature" for the computer program, Gowdy said. "The subpoenas are issued in his name, but from our office."

Worse than this - and here we get to why this "small" violation of the rule can become a big problem - is the admission by solicitors that they have been using the clerk's signature stamps to issue subpoenas when there is no criminal case yet pending - I have seen a few subpoenas issued without a caption or case name, but this is the first time that I have seen a prosecutor admit to the practice. Former solicitor Jay Hodge, and our own solicitor Greg Hembree argue that there is nothing wrong with the practice:

Hodge said the 4th Circuit has used signature stamps to issue subpoenas for at least 20 years and continues to do so under current solicitor Will Rogers. Hodge and other solicitors say they also issue subpoenas prior to arrests or indictments to gather evidence that can lead to criminal charges. "How else are your cops and [solicitors] going to get evidence?" asked Gowdy, the 7th Circuit solicitor.

Lawyers for the Whites say subpoenas in their case were improper because they were issued before a criminal case had been initiated, possibly violating the Fourth Amendment right, which guards against unreasonable search and seizure.

Greg Hembree, solicitor for the 15th Judicial Circuit, said there is little legal precedent on how subpoenas can be used for investigative purposes. Prosecutors with the S.C. attorney general's office said state law does not expressly prohibit their use in such cases.

As 10th Circuit Solicitor Chrissy Adams notes, the proper practice is to obtain a search warrant to obtain evidence prior to an arrest. The Fourth Amendment guarantee against unreasonable search and seizure requires that a judge review the probable cause for a search and approve before the search is conducted - cops and prosecutors cannot get around the Fourth Amendment by using a fake subpoena instead of seeking a search warrant. Which brings us back to the original revelation of the solicitors issuing subpoenas and signing the clerk's name to them - the clerk cannot refuse to issue a subpoena based on content or who it is issued to, but should a clerk refuse to issue a subpoena when it does not even reference an ongoing case? I think the clerk should if it was a subpoena presented by a prosecutor, and certainly would if it was a subpoena presented by a defense attorney - which makes it quite convenient to have a clerk of court signature stamp in your desk drawer if you are inclined to break the rules.

In State v. Wharton, decided earlier this month, the S.C. Supreme Court lays out the elements of voluntary and involuntary manslaughter as lesser-included offenses of murder and the defense of accident, but declines to decide whether the doctrine of transferred intent is applicable to voluntary manslaughter.

The Court held that neither voluntary or involuntary manslaughter should have been charged to the jury in this case (the jury was instructed on voluntary manslaughter). Wharton was waving a gun in the street while arguing with Shaw, when the gun went off, killing the victim. To get a jury instruction on voluntary manslaughter requires some evidence of both 1) that defendant was acting in the sudden heat of passion; and 2) upon sufficient legal provocation. Although there was testimony that Wharton was acting in the heat of passion, the Court found that words alone cannot constitute sufficient legal provocation; the words must be accompanied by a hostile act, which there was no evidence of in this case.

Because the Court found that there was no voluntary manslaughter, the Court declined to address whether the doctrine of transferred intent applies - i.e. if voluntary manslaughter would have applied to Shaw who Wharton was arguing with, it would then apply to the victim who was struck by the bullet.

Involuntary manslaughter is:

(1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others. State v. Chatman, 336 S.C. 149, 152, 519 S.E.2d 100, 101 (1999). If there is any evidence warranting a charge on involuntary manslaughter, then the charge must be given. State v. Reese, 370 S.C. 31, 36, 633 S.E.2d 898, 900 (2006).

By pointing and waving the gun, Wharton committed an unlawful act that would naturally tend to cause death or great bodily harm, and so involuntary manslaughter would not apply.

The Court also held that accident should not be charged to the jury:

For a homicide to be excusable on the ground of accident, it must be shown that the killing was unintentional, the defendant was acting lawfully, and due care was exercised in the handling of the weapon. State v. Burriss, 334 S.C. 256, 259, 513 S.E.2d 104, 106 (1999). Evidence of an accidental discharge of a gun will support a charge of accident where the defendant lawfully arms himself in self-defense. Tisdale v. State, 378 S.C. 122, 126, 662 S.E.2d 410, 412 (2008).

There is no evidence in the record to support an accident charge. Specifically, Wharton was not acting lawfully in waiving the gun in the air, nor did he exercise due care in handling the weapon. Furthermore, there is no evidence he was lawfully armed in self-defense. Accordingly, we hold that the trial court properly denied Wharton’s request for a charge on the law of accident.

Because voluntary manslaughter should not have been charged to the jury, this leaves Wharton with a new trial where the jury will have to choose murder or acquit - all or nothing. When first reading this case, my thought was that it was a classic example of a prosecutor overcharging - it seems clear that it was not murder, but, given that a person is dead and the circumstances under which the person died, voluntary or involuntary manslaughter seemed appropriate. Now, however, everything except murder or acquittal has been excluded as possibilities for the jury to consider.

In State v. Stokes, decided this week,convictions for murder, first degree burglary, and assault with intent to kill were affirmed by the S.C. Supreme Court over challenges based on admission of a prior inconsistent statement by a state's witness and admission of testimony regarding a separate shooting that happened after the murder that Stokes was charged with.

Other bad acts evidence: The Court got it right in this fairly straightforward analysis of evidence offered to prove identity under Rule 404(b) (unlike other recent opinions dealing with the common scheme or plan exception under 404(b)). The rule is:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith; however, such evidence may be admissible “to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.” Rule 404(b), SCRE (emphasis added). The evidence admitted “must logically relate to the crime with which the defendant has been charged.” State v. Beck, 342 S.C. 129, 135, 536 S.E.2d 679, 682-83 (2000).

In Stokes, the victims were unable to identify the attackers, and therefore identity was at issue. When the defendant was arrested in North Carolina, he had in his possession a .357 Ruger pistol that the state's expert said matched a bullet that was recovered from the crime scene. A bullet recovered from a subsequent shooting where medicine bottles with Stokes' name on them were found also matched the gun that was found in Stokes' possession. The state established the necessary connection regarding the identity of the shooter through the testimony regarding the second, uncharged shooting.

Confrontation clause: The Court also holds that admission of a prior inconsistent statement by a state's witness was proper, that it was admissible as substantive evidence, and that there was no violation of the confrontation clause under Crawford v. Washington, 541 U.S. 36 (2004).

The state called the defendant's uncle to the stand, and asked him about a statement he had allegedly given to police officers while in the hospital. The uncle denied having made the statement, and the state was allowed to question the officer who took the statement as to its contents. Extrinsic evidence of a prior inconsistent statement is admissible, so long as the witness is advised of the substance of the statement, the time and place it was allegedly made, the person to whom it was made, and is given the opportunity to explain or deny the statement.

The rule cuts both ways. For example, in a recent trial, the state had called Jailhouse Snitch to testify as to an alleged statement made by one of the defendants (statements by defendants are almost always admissible and are not considered hearsay). Another Inmate had sent a letter to the defense stating that Snitch was lying, had told Inmate that he was lying, and had tried to get Inmate to help him lie against the defendant. When Snitch was on the stand, I asked him if he knew Inmate, and if he had made those statements to Inmate, and Snitch denied ever making the statements. Then, in the defense's case, we were able to call Inmate to the stand to testify as to the substance of Snitch's statements to him.

In a more convoluted example from the same trial, Witness 1 was asked whether she had removed a briefcase full of drugs from the crime scene. When she responded no, she was asked whether she had stated to Witness 2 that she had taken drugs from the crime scene, which she denied. We called Witness 2 to the stand, and she was asked if Witness 1 had told her that she took a briefcase full of drugs from the crime scene. If Witness 2 had admitted this we would have stopped there, but Witness 2 denied having the conversation with Witness 1.

I then asked Witness 2 if she had not informed Investigator in a recorded telephone conversation on a certain date that Witness 1 had removed a briefcase full of drugs from the crime scene (tip - if the attorney says it is recorded, guess what is coming next), which Witness 2 then denied. I then was able to play for the jury a recording of Witness 2 telling Investigator that Witness 1 had removed a briefcase full of drugs from the crime scene. It took a while, but we got there.

The Court in Stokes also re-affirmed that a prior inconsistent statement is admissible as substantive evidence, and overruled State v. Pfirman, 300 S.C. 84 (1989) and Simpkins v. State, 303 S.C. 364 (1991) to the extent that they held that a prior inconsistent statement is not admissible as substantive evidence against the defendant when the witness denies the statement. The Court held that there is no confrontation clause violation under Crawford when the witness is available to testify and is subject to cross examination.

SCDMV v. Holtzclaw , decided today, hopefully solves a problem that has been cropping up across the state in the past year or so, which is the general counsel for the SCDMV ignoring court orders from magistrates and municipal judges.

Some background: Under S.C. law, a request to re-open a magistrate or municipal case must be made within 5 days of the conviction, or under Ishmell v. South Carolina Highway Department, 264 S.C. 340 (1975), within 5 days of the defendant receiving notice of the conviction. Typically, when a defendant with a traffic violation or other misdemeanor does not show up for court on the date which is written on his ticket, the judge will simply write "guilty/bench trial" on the ticket and dispose of it without any formalities. With the sheer volume of tickets that are written in most courts, it would be logistically impossible to conduct a full trial in absence on all no-shows, and what usually happens is the defendant either forfeits bond or, if no bond was posted, the defendant is then required to pay the full amount of the fine. At some point, if the fines are not paid, a bench warrant could be issued or the defendant's license could be suspended.

There are many ways in which a defendant misses a trial date through no fault of his own, including clerical errors on the ticket, or a jury trial request that was misplaced by the clerk (this happens more often in some offices than others). When this happens, the defendant must request a "new trial" as soon as he finds out that he was convicted in his absence in error. There are also some situations, as illustrated by this case, where it is in the interest of justice to reopen a case regardless of whether the time requirement has been met, and the officer or prosecutor may consent to do so in the right case. Once the case is re-opened, if the order is not appealed, the order is valid and legal.

The problem arises when a case is re-opened, outside of the time limit, and SCDMV, on the advice of their general counsel, refuses to accept the judge's order reopening the ticket:

Upon receipt of the municipal court's order to reopen the last ticket, the DMV replied directly to the judge in a letter, stating: "The Department is in receipt of the attached order(s), however, we are unable to process the order due to the following: . . . The request to re-open the case does not appear to be timely." The municipal court did not respond to the DMV's communication.

In essence, the SCDMV ignores the court order and refuses to abide by it. No magistrate or municipal judge to my knowledge has called them on this and held them in contempt, although they certainly could and should in my opinion. Now the S.C. Court of Appeals has weighed in - even if the order reopening the ticket is not timely, it is a binding and lawful order if it is not appealed. If the SCDMV is not a party to the action, they cannot appeal the order. Although I don't understand what SCDMV's problem is in the first place, hopefully they will get the message that is spelled out clearly in this case: get over it; stop ignoring judges' orders.

Mount Pleasant Municipal Judge Larry Duffy ruled today that Texas hold 'em is a game of skill not chance, and therefore not gambling under South Carolina law, but then found the defendants guilty of operating a gambling house.

Though Duffy said evidence was "overwhelming" that poker was a game of skill, he said he did not have enough guidance from higher courts or state lawmakers to know if that analysis makes a difference under South Carolina law. McMaster's office called Thursday's ruling insignificant, but if it is appealed, the South Carolina Supreme Court may eventually have to decide if Texas Hold 'em is legal in the state. Locally, the ruling could keep police from arresting people involved in friendly house games. . . .

But Duffy's ruling doesn't help five of the 20 people arrested in the raid who didn't pay fines to settle their cases. In a separate part of the ruling, he found them guilty of operating a gambling house — something their attorney says also isn't clearly defined under state law.
"If an essential element of the criminal charge is not defined, and the court doesn't even know what it is, how can my clients expect to know whether or not they are in violation of the law?" said Greenville attorney Jeff Phillips, who plans to appeal to a circuit court.

What I'm wondering is, if it is a game of skill and therefore not gambling, how are these guys guilty of running a gambling house?

Via Grits for Breakfast: This story has been around since September of 2007, but I haven't really paid much attention to it until today. A NY Times Editorial published yesterday, and a State Commission on Judicial Conduct Notice of Formal Proceedings against Judge Keller filed today, outline the facts of the case - essentially, in September of 2007, Michael Richard was scheduled to be executed by the state of Texas. On the same day, the U.S. Supreme Court granted cert in Baze v. Rees to decide whether the procedure of execution by lethal injection was constitutional. Richard's attorneys scrambled to put together a request for stay of Richard's execution until the USSCT decided the issue.

Although it was common practice to accept late filings on an execution day, a designated judge was assigned to the case (not Keller), and the execution-day procedures called for that designated judge to remain available after hours and for all communications to be referred to him or her, the Court of Criminal Appeals general counsel called Judge Keller at home when he received a request from Richard's attorneys that they be allowed to make a late filing. Judge Keller, without notifying the designated judge, ordered that Richard's attorneys would not be allowed to file their request, as the clerk's office closes at 5:00. Earlier in the day, Keller was made aware that cert had been granted in Baze v. Rees, and Keller was made aware that Richard's attorneys would seek to make a late filing. Michael Richard was executed at 8:20.

In April of 2008, the USSCT decided in Baze v. Rees that the lethal injection cocktail used by Oklahoma (and Texas) is not unconstitutional. But from September of 2007 through April of 2008 other executions in Texas were stayed pending the USSCT's decision.

Many people, including Judge Keller apparently, may wonder why it matters whether Michael Richard was executed in September of 2007 or in April or May of 2008. One answer is, who is to say for certain what might have happened in those intervening 6 months? I think that we should consider this - let's say there is an individual who has been diagnosed with terminal cancer. Several doctors concur that it is, in fact, a terminal condition and that the patient has 6 months to live. They are fairly certain about this. If I were to then arbitrarily shoot that individual in the head, killing them and terminating their life 6 months early, I would most likely be found guilty of murder. It does not matter that the person was going to die anyway, what matters is that I ended that person's life prematurely. It does not matter whether that person was a terrible, despicable person that many people thought should die anyway, what matters is that I, personally, caused their death.

When a person has been convicted of a terrible crime, sentenced to death, exhausted all due process, and is then killed, we call that an execution. When a person is killed outside of that state machinery, it is called murder. I have no doubt that no-one in the state of Texas will call Judge Keller a murderer, that goes too far. But I have to agree with the voices calling for her impeachment and disbarment.

Radley Balko at Reason.com has released the disturbing story of Dr. Hayne, who has been under fire for some time now for his questionable testimony for the state of Mississippi, and Dr. West, who allegedly have been manufacturing bite-mark evidence for use in murder prosecutions by Mississippi prosecutors. The article contains video which experts say show West creating the bite marks on a child's body which put a man on Louisiana's death row. Excerpts from the video, which I warn you are graphic and disturbing, are available in the article:

Last year, two men that Hayne and West helped convict of murder in the early 1990s, Levon Brooks and Kennedy Brewer, were exonerated and freed from prison through DNA testing after serving more than 30 years combined behind bars. Both men had been accused of raping and murdering the daughters of their respective girlfriends. In what has come to be a pattern with the two doctors, in each case Hayne claimed to have found in an initial autopsy what other examiners missed: bite marks on the victim's body. He then called in West, a forensic odontologist (dental examiner), who definitively matched bite marks to the defendants. Partly because of the testimony from Hayne and West, Brooks was sentenced to life in prison, and Brewer to death (he spent 14 years on death row). DNA testing in 2008 determined that the semen found on both girls belonged to a third man, 51-year-old Albert Johnson. As Brooks and Brewer were freed, Johnson confessed to both crimes.

The Brooks and Brewer cases form their own forensics riddle: How could West and Hayne have definitively linked previously undetected bite marks on the victims to two men who didn't commit the murders?

Reason recently obtained shocking video from another Hayne and West collaboration that may shed light on the question. In 1993, the two conducted an examination on a 23-month-old girl named Haley Oliveaux of West Monroe, Louisiana, who had drowned in her bathtub. The video shows bite marks mysteriously appearing on the toddler's face during the time she was in the custody of Hayne and West. It then shows West repeatedly and methodically pressing and scraping a dental mold of a man's teeth on the dead girl's skin. Forensic scientists who have viewed the footage say the video reveals not only medical malpractice, but criminal evidence tampering.

It is amazing how much trust the general public has in law enforcement and prosecutors, and yet a quick search on any given day turns up several reported instances of prosecutors playing dirty. My theory is that 1) we need to believe that we can trust law enforcement, so we refuse to accept that there are problems that need to be addressed; and 2) television and popular fiction have created an image of upstanding prosecutors and sleazy defense attorneys that colors our perception. Most prosecutors and defense attorneys that I know are purposefully ethical, and take care not to cross the line in litigation. But the prosecutors that do cross the line, who place winning cases at any cost ahead of seeking truth and justice, do not deserve to be in the positions of power in which we have placed them. As Peter Parker says, "with great power comes great responsibility."

Via Radley Balko at the Agitator, in Cole County, Missouri, Joshua Kezer's murder conviction was overturned this week after he served 17 years of his life in prison:

Kezer was convicted despite no physical evidence, DNA, or fingerprints linking him to the crime scene; no murder weapon; and no eyewitnesses to the actual murder. The evidence against him consisted of a witness who claimed to have saw him near Lawless’ car (that witness later recanted) and testimony from jailhouse informants who say Kezer confessed to them. Two of those informants have since recanted, and one has since testified for Kezer’s defense. Another says he made up his story about Kezer’s confession, but went on to testify for the state, anyway . . .

Callahan chastised Hulshof for withholding several key pieces of exculpatory evidence from Kezer’s trial attorneys, including the witness recantations, witnesses who contradicted state’s witnesses, and police notes mentioning other possible suspects.

"Social Services for Feral Children" brings us the case of Theodore Williams, a defendant in Stanley County, North Carolina, who sued an assistant district attorney, the sheriff, and the county commissioners for alleged civil rights violations. Soon after, he was transferred to a different jail without explanation, beaten severely by officers, and then charged with striking an officer. The district attorney then put up posters with before and after pictures of Williams' injuries:

The poster contained two photographs of defendant. The first depicted defendant without any injuries as he appeared when processed into the Stanly County Detention Center on 17 November 2003, with a caption stating: “Before he sued the D.A.’s office.” The second photograph depicted the injured defendant as he appeared when processed back into the Stanly County Detention Center on 20 April 2004, with a caption stating: “After he sued the D.A.’s office.”

When Williams' attorney subpoenaed the booking photos and the posters for trial, the district attorney destroyed them instead of turning them over. The trial judge, also a former prosecutor, dismissed all charges against Williams after the prosecutor admitted to destroying the photos, and the N.C. Supreme Court upheld the dismissal.

A murder case in Lincoln County, Mississippi must be tried a second time when the defense is granted a new trial based on prosecutorial misconduct:

The defense was granted a second trial based on what Circuit Judge Mike Taylor ruled as prosecutorial misconduct when the defense contended the state had made a secret deal with star witness Mark Culbertson. Prosecutors vehemently denied a deal was in place with Culbertson, who was also accused in the crime and pleaded guilty to a manslaughter charge after testifying in Leggett's trial.

Fort Bend, Missouri defense attorney Richard Tate speaks out about prosecutorial misconduct in the trial of his now-acquitted client Fulshear Mayor James Roberts:

“Next, I witnessed the employment of certainly unprofessional, and probably unconstitutional, conduct by the prosecution and/or the investigators – one or the other – when they withheld exculpatory evidence that clearly demonstrated the mayor’s innocence and should have ended the investigation early on,” Tate said. “I witnessed the use of threatening and intimidating tactics, both during the investigation and during the trial, toward witnesses in an attempt to force those witnesses to testify in a manner more favorable to the prosecution.”

A California state bar judge recommends disbarment for Santa Clara County District Attorney Ben Field:

Suggesting the harshest disciplinary punishment in recent history for a California prosecutor, a state bar judge Wednesday called for Santa Clara County Deputy District Attorney Ben Field to be stripped of his right to practice law in the state for four years because he "abused his prosecutorial power.'' . . .

"His overzealousness to convict and punish defendants who had murdered, robbed and raped obstructed his understanding of a prosecutor's special duty to promote justice and seek truth,'' the judge wrote.

Another Santa Clara County prosecutor accused of misconduct:

There was never any dispute in the case that the veteran, Sargent Binkley of Los Altos, had robbed the pharmacy. But the jury convicted Binkley last month of using a gun to commit the robbery — a finding that makes the crime far more serious — after prosecutor Deborah Medved told them they could use the grainy photographs from a store surveillance camera to help reach that verdict.
Now, a Santa Clara County crime lab examiner has come forward to testify that a day before Medved made that closing argument, he told her that he was unable to detect a gun in any of the photographs, after examining them at Medved's request.

Guilty plea is thrown out in Jackson County, Kansas, after discovery of a Brady violation by the prosecutor:

In a strongly-worded ruling, Judge Edith L. Messina found that Assistant County Prosecutor Dan Miller withheld hundreds of pages of investigative records from Matthew Davis’ defense lawyers and had “deliberately and fraudulently misled the court and defense counsel.”

“As a result,” Messina wrote in her ruling, “a continuing fraud was perpetrated upon the trial and motion courts.”

Davis was sentenced to 22 years in prison for abandoning Amber McGathey’s body and for three counts of possession of a controlled substance.

A former prosecutor in Pennsylvania is sued over allegations of sexual harassment:

A domestic abuse victim filed a civil lawsuit Friday against former Assistant District Attorney Lance Marshall, the county and its head prosecutor, alleging Marshall sent her explicit texts and voicemails, intercepted her conversations and offered to trade sex for favors in the courtroom. The woman is suing on allegations of invasion of privacy, intentional infliction of emotional distress, civil rights violations and the unlawful interception of telephone communications.

And Karl Rove agrees to cooperate with authorities in their investigation into prosecutor misconduct in the conviction of former Alabama Governor Don Siegelman:

Siegelman, who was convicted of corruption charges in 2006, was released on bail last April pending appeal after media reports -- including those of Raw Story and CBS' 60 Minutes -- revealed myriad irregularities surrounding his prosecution. The husband of the US Attorney who prosecuted Siegelman was a close associate of Rove's and worked as campaign manager for one of Siegelman's gubernatorial opponents. An Alabama Republican whistleblower also said that Siegelman was deliberately targeted and asserted that Rove had said he'd push the Justice Department to end Siegelman's political career.

I've been receiving a lot of emails from complete idiots calling themselves internet marketing specialists of late. For example, Steve Wilson, internet marketing specialist, sent me the following email last Thursday:

Hello, my name is Steve Wilson and I am an internet marketing specialist. I was looking at websites under the keyword criminal defence attorney denver and came across your site southcarolinacriminaldefenseblog.com. I see that you're ranked #6 on page 9 in google.

I am not sure if you are aware of why you are ranked this low but more importantly how easily correctable this is.

There is no reason you cannot have a top three ranking for any keyword which is important to you based on your site structure and content. You have a very nice site . . .

P.S - I am talking about keywords that produce the right kind of traffic... Traffic that delivers leads, sales and profits. Because getting a ranking that does not generate leads and sales is worthless.

Is it Ok to give you a call? If so, just hit reply and tell me specifically who to ask for when I call and what time of day is best to reach that person.

If any readers have not caught on, I am a criminal defense attorney in Myrtle Beach, S.C. If you google "Myrtle Beach criminal defense attorney," my website comes up in one of the top two spots. Even if you misspell "defense" with a "c," a spelling I assume is only used in England, it still comes up at the top of the page. If my website comes up on page 9 when someone is searching for a criminal defense attorney in Denver, which is 1744 miles away from my office, that is pretty f***ing good.

Yesterday I received another email from the same guy, letting me know that I am on page 42 when he searches for a "defence" attorney in Florida. I'm not going to link to it, but anyone who would like to take a look at this idiot's webpage, top ranking links .com, will see that his own site has -no- page rank in google, and when you do a search for "top ranking links," his site does not come up at all.

I wonder if these are the same idiots that own Linxmonster.

In State v. Bolin, the South Carolina Court of Appeals affirmed the defendant's conviction over a claim that the jury should have been charged under S.C.'s new stand your ground law. Like the defendant in State v. Dickey, Bolin did not receive the benefit of the new law because the incident happened four months before the law took effect.

South Carolina's Protection of Persons and Property Act, found at S.C. Code Sec. 16-11-410, expanded self defense, and it essentially says that, if you are where you have a right to be, you do not have a duty to retreat when attacked, and can use deadly force to defend yourself:

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

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

In a nutshell, Bolin was at a friend's house, some people came over to fight, they fought, Bolin thought he heard gunfire, and he fired a pistol into the car as it was pulling off. If the stand your ground law applied to his case, arguably he would have gotten a jury instruction on it - he was in a place where he had a right to be, and if the jury believed that he heard gunfire as the group left the jury could have found that it was reasonable to return fire to protect himself.

Although charged with murder, the jury found Bolin guilty of voluntary manslaughter, assault and battery high and aggravated, and discharging a weapon into an occupied vehicle, and he was sentenced to 30 years.

A theme that tends to recur throughout the criminal law blogosphere is cops who lie on the stand. A recent Wall Street Journal article by Amir Efrati tackles the issue:

It's one of the most common accusations by defendants and defense attorneys -- that police officers don't tell the truth on the witness stand.

Of course, defendants themselves can be the ones lying, but the problem of police perjury -- and what can be done about it -- is being debated anew. Fueling the discussion are recent court cases in New York City and Boston that indicated officers may have lied and a U.S. Supreme Court ruling this month that could have broader implications for cases in which improperly obtained evidence is in dispute.

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband. Defense lawyers say in many of these cases, officers are "testilying" and that the guns or drugs were actually discovered when their clients were unjustly frisked by officers. They also say testilying frequently occurs in more serious cases.

(H/T Rick Horowitz at Probable Cause)

The article goes on to imply that the exclusionary rule is the cause of rampant lying by police officers - if they did not have to lie to prevent the evidence from being excluded, then cops would tell the truth. Bull****. Cops are lying to cover up the fact that they violated a person's constitutional rights, therefore if we allow them to violate the constitution with impunity, they will stop lying?

The public, by and large, believes that cops and prosecutors are ethical and upstanding. We place them on a pedestal, because they are here to protect us. You want to believe that cops would not lie or manufacture evidence, and so do I. The problem is I see what happens behind the scenes in criminal cases, as does every defense attorney, prosecutor, and judge. As Horowitz puts it:

Believing that law enforcement officers are good guys is one of the linchpins of our society; probably of all societies, even where they don’t officially call them “law enforcement” officers. But to believe in law enforcement officers, we must be able to believe law enforcement officers.

So far that doesn’t seem to be a problem for the majority of submitizens, even though newspapers as small as the Fresno Bee contain at least one — and usually more than one — story almost every day about the illegal activities of police officers.

Years ago I tried a case that resulted in a hung jury, and I was honestly shocked, because the evidence was clear and my client had been caught red-handed. After the trial, we asked the jurors why they could not reach a verdict and we were told that three jurors refused to convict - they simply said, "all cops are liars and I couldn't believe a word that they said on the stand." Without a doubt, that was the exception and not the rule.

How do we stop law enforcement from lying, manufacturing evidence, or otherwise cheating in their zeal to make cases? Hold them to the standard that we all feel they should have. Train officers not only to make cases, but to do so honestly and with integrity. Punish officers that do not. When an officer blatantly lies on the witness stand, prosecute him or her for perjury like any other citizen. Allow law suits to go forward when cops violate a person's rights, rather than looking for any excuse to grant summary judgment. Dismiss cases where there is police or prosecutor misconduct rather than looking the other way.

It is not necessary to lie or cheat to make cases, and if it is then odds are that case should not be made, because there is going to be doubt as to the person's guilt. Our courts' practice of shielding law enforcement and prosecutors from liability or accountability for unethical practices does not serve the ends of justice; it subverts justice. I believe that there are more ethical and rigorously honest prosecutors and cops than not. It is not asking too much to hold all law enforcement to the same standard that some among them exemplify.

In Gay v. Ariail, decided last week, the South Carolina Supreme Court held that a person can have their record expunged after 15 years pursuant to S.C.'s Youthful Offender Act (YOA), even if they were not sentenced under the YOA's provisions. This was a fairly important decision, as a criminal record can follow a person for their entire life and, before this case was decided, SLED was taking the position that a record could not be expunged unless the person was sentenced under the YOA.

The YOA applies to persons between the ages of 17 and 25 who are not charged with a violent crime, as defined by S.C. Code Sec. 16-1-60. The YOA provides alternatives to adult sentencing, which typically involves a sentence not to exceed 6 years at a YOA facility - the defendant would serve 10 months of the sentence and then be released on parole for 1 year, and if there is no violation the sentence is over after that year. Shock incarceration, or boot camp, is also an alternative for those who qualify. Although the shock incarceration program is 90 days long, after which the defendant is released on parole, there is typically a 2-3 month wait before the program begins which means the defendant will be gone for 5-6 months before being released.

S.C. Code Sec. 22-5-920 provides for the expungement of a conviction as a youthful offender, after 15 years has passed and if there are no subsequent convictions.

Gay, when he was 22 years old, pled guilty to assault and battery of a high and aggravated nature (ABHAN), but he was not sentenced under the YOA provisions. He was sentenced to 10 years, suspended to 5 years probation, as an adult. ABHAN, although it is punishable by up to 10 years, is classified as a misdemeanor under S.C. law, and it is not listed as a violent offense under 16-1-60. The Court's holding in this case was that, although Gay was not sentenced under the YOA provisions, he nevertheless met the definition of a youthful offender under the YOA, and therefore he can seek to have his record expunged after the 15 years has passed.

There should be no reason that a single crime committed as a youth should follow a person for their entire lives. Although this decision is limited to those who have a single non-violent offense and no other convictions, it will come as a great relief to the many people who fall under the definition of youthful offender.

A South Carolina sheriff said Monday he was not going to charge swimmer Michael Phelps after a photo of the 14-time gold medalist showed him smoking from a marijuana pipe.

Richland County Sheriff Leon Lott said he couldn't ignore the photo but defended his investigation.

"Michael Phelps is truly an American hero ... but even with his star status, he is still obligated to obey the laws of our state," Lott said.

(H/T Windypundit and Sentencing Law and Policy)What about the other eight people that have been charged as Lott attempted to make a case against Phelps? Sheriff Lott has gotten the attention that he wanted, it does not matter if Phelps is actually charged or not. I only wonder why he isn't dragging it out more and milking it for all its worth.

For those who are interested, Brad Warthen at theState.com has this article titled "Sheriff Lott back in the day," an article published in 1996 that chronicles Lott's troubled history as a narcotics officer before being elected Sheriff in Richland County.

In State v. Ramsey, decided last week, the S.C. Supreme Court held that magistrates cannot conduct probable cause hearings for magistrate-level offenses. I have to disagree with the Court's reasoning on this one.

Essentially, the Court says that 1) the magistrate has no jurisdiction to hold a preliminary hearing (a hearing to determine whether or not there is enough probable cause for a case to go forward). Magistrates are required to hold preliminary hearings in those cases that are beyond their jurisdiction - those cases that carry a potential sentence of more than 30 days, but there is no authority for magistrates to hold preliminary hearings in those cases that they do have jurisdiction over - those cases that carry a potential sentence of 30 days or less.

2) Probable cause hearings in magistrate-level cases would take up too much time; to allow defendants to have probable cause hearings in magistrate-level cases "would undermine the summary nature of magistrate proceedings and unduly expand magistrate dockets."

The Court is correct that there is no statutory right to a preliminary hearing in the magistrate court, but it does not follow that the magistrate can not conduct a probable cause hearing if they see a need for it. If the magistrate only allows for a probable cause hearing in those cases where there is some question as to whether there is any evidence to go forward on, it will not expand the magistrate dockets - it seems to me that allowing the magistrate to dismiss a case for lack of probable cause before a day-long trial gets underway would save time, and would further the "summary nature of magistrate proceedings."

This is a new take on the standard predicament of the confidential informant. Usually the deal is, you help us to make cases against people and we will help you stay out of jail. Texas sheriff Bill Keating takes it a step further, throwing oral sex for himself into the deal:

Signed plea papers have been filed with the Court in which William E. Keating, 62, admits that on November 14, 2008, while he was the elected Sheriff of Montague County, Texas, he willfully deprived another person, L.M., of her civil rights while under color of law, when he sexually assaulted her. ...

According to the factual resume filed in the case, at approximately 9:00 a.m. on Friday, November 14, 2008, Sheriff Keating, dressed in civilian clothes with his sheriff’s badge and gun in plain view on his belt, and other Montague County Sheriff’s Office employees, executed an arrest warrant at a residence occupied by the victim, L.M., and her boyfriend. As they entered the residence, L.M. and her boyfriend were asleep in a bedroom of the house. Sheriff deputies arrested the boyfriend on the outstanding warrant and removed him from the bedroom. Deputies searched the residence and discovered a bag that contained utensils and other articles used to manufacture methamphetamine. Deputies also located a plastic container that appeared to have trace amounts of methamphetamine on it.

After deputies removed the arrested man from the bedroom, Sheriff Keating ordered the other deputy to leave the bedroom so that L.M. could get dressed. Sheriff Keating then closed the door and, once alone with L.M., told her, “You are about to be my new best friend.” He told her that he found illegal drugs in the residence that belonged to her and that for her to avoid going to jail, she would be required to “assist” him. Keating admitted that the assistance he referred to included oral sex with him on multiple occasions and an agreement to act as an informant for the Montague County Sheriff’s Office. Keating told L.M. that if she complied with his request, that he would help her get a job, a place to live and that she wouldn’t be criminally charged with possessing any drugs or drug-making equipment that was found in the home. Keating also told her that if she didn’t comply, she would go straight to jail.

After Sheriff Keating and L.M. left the bedroom, he told her to get into his personal vehicle that was parked outside of the residence. He then drove to a secluded area in Montague County and instructed her to perform oral sex on him, and in the process, grabbed the back of her neck and pushed her head down into his lap, causing her pain and bodily injury.

Keating plead guilty January 29th in federal court to civil rights violations, but as of yet no state charges have been filed against him. More on this story at Female Impersonator and at the Civil Liberties Examiner.

On Monday last week the S.C. Supreme Court suspended a lawyer from the practice of law for 2 years for solicitation of prostitution and for impersonating a law enforcement officer; the lawyer worked for the Office of Disciplinary Counsel at the time - the "prosecutors," if you will, who enforce the disciplinary rules of the S.C. Bar:

On or about November 2, 2006, respondent was arrested in Richland County for the crime of soliciting prostitution in violation of S.C. Code Ann. § 16-15-90 and § 16-15-100 (2003). The warrant alleged respondent met with an undercover South Carolina Law Enforcement Division (SLED) agent posing as a prostitute and solicited the undercover agent for sex.

As a result of the same occurrences, respondent was also arrested on November 2, 2006 in Richland County for impersonating a law enforcement agent in violation of S.C. Code Ann. § 16-17-720 (2003). The warrant alleged that, during the encounter with the undercover SLED agent who was posing as a prostitute, respondent verbally identified himself as a SLED agent by presenting a badge and stating he was a SLED agent. At the time of the arrests, respondent was employed on a full-time basis as an attorney with the Office of Disciplinary Counsel and the badge he presented to the undercover SLED agent was his Disciplinary Counsel badge.

Respondent admits that, during his conversation with the undercover SLED agent, he made statements that she reasonably understood to be soliciting prostitution, even though he did not offer money but, instead, used words that reasonably represented an arrangement had been made by respondent’s friend in the escort service business which would allow for sexual activity without payment. Respondent also acknowledges that, during the encounter with the undercover SLED agent, he stated he had overheard information regarding investigations into prostitution activity while he was at SLED and stated that he might be able to provide information regarding future prostitution investigations. Respondent admits that the statements concerning his ability to inform about future prostitution investigations were false; the Special Prosecutor has no evidence to establish otherwise. Respondent further admits that, during the exchange with the undercover SLED agent, he identified himself as a “SLED agent” and, upon her inquiry as to what “SLED” meant, he responded “State Law Enforcement Division” or words to that effect.

The responsibility for prosecuting respondent for these crimes was transferred to the Solicitor’s Office of the Sixth Judicial Circuit. Respondent was allowed to enter the Pre-Trial Intervention Program and he completed that program on or about September 8, 2008.

Beyond the irony of disciplinary counsel being suspended from the practice of law for this type of conduct, this case illustrates our state's regulation of lawyers. The public often perceives lawyers as sleazy and without ethics, as they are often portrayed in television and films, but the fact is that the conduct of lawyers is highly regulated by the state bar. This attorney was allowed to enter the PTI program on his criminal charges, which was probably appropriate, and after completing community service the case will be dismissed and his record will be expunged. He has lost his livelihood, however, and if and when he returns to the practice of law, this incident will follow him for the rest of his career.

In two other disciplinary opinions this month, the S.C. Supreme imposed a 9 months suspension on an attorney for possession of cocaine, as well as requiring ongoing treatment and monitoring once he is reinstated, and a municipal court judge was issued a public reprimand for failure to complete continuing legal education requirements.

In State v. Bodenstedt, issued last month, the S.C. Court of Appeals held that increasing a defendant's sentence by 2 years was not an appropriate punishment for disruptive behavior. Bodenstedt pled guilty to obtaining money by false pretenses, with a recommendation of 1 year followed by probation and restitution. Instead of accepting the recommendation, the plea judge sentenced Bodenstedt to 6 years in prison but stated he would reconsider his sentence if full restitution was made within 10 days.

Following the plea, the judge called Bodenstedt back into the courtroom twice and increased his sentence by one year each time for being disruptive outside of the courtroom, for a total sentence of 8 years in prison. The Court of Appeals held that, although the judge has the power to sentence an individual for contempt of court, the judge does not have the power to increase an individuals sentence which has already been imposed, based on disruptive conduct after the plea. The sentence was reduced again to 6 years.

Contempt of court is a separate crime and, when the contempt is criminal (an unconditional penalty is imposed which cannot be "purged" by the defendant) and constructive (the conduct giving rise to the contempt occurs outside the presence of the court), the defendant is additionally entitled to the assistance of counsel before punishment can be imposed.

Two judges in Pennsylvania are set to plead in federal court today on charges of accepting kickbacks in exchange for sending juveniles to privately run detention centers.

In one of the most shocking cases of courtroom graft on record, two Pennsylvania judges have been charged with taking millions of dollars in kickbacks to send teenagers to two privately run youth detention centers.

"I've never encountered, and I don't think that we will in our lifetimes, a case where literally thousands of kids' lives were just tossed aside in order for a couple of judges to make some money," said Marsha Levick, an attorney with the Philadelphia-based Juvenile Law Center, which is representing hundreds of youths sentenced in Wilkes-Barre.

Prosecutors say Luzerne County Judges Mark Ciavarella and Michael Conahan took $2.6 million in payoffs to put juvenile offenders in lockups run by PA Child Care LLC and a sister company, Western PA Child Care LLC. The judges were charged on Jan. 26 and removed from the bench by the Pennsylvania Supreme Court shortly afterward.

No company officials have been charged, but the investigation is still going on.

The high court, meanwhile, is looking into whether hundreds or even thousands of sentences should be overturned and the juveniles' records expunged.

Among the offenders were teenagers who were locked up for months for stealing loose change from cars, writing a prank note and possessing drug paraphernalia. Many had never been in trouble before. Some were imprisoned even after probation officers recommended against it.

Many appeared without lawyers, despite the U.S. Supreme Court's landmark 1967 ruling that children have a constitutional right to counsel.

It is always tough working in the juvenile court - the court's decisions are to be guided by the rule of what is best for the child, as opposed to the harsher punishments doled out in adult court. Often what happens in juvenile court is devastating, as judges try to sort out not only what the child did but why he or she did it, and what sentence will most likely result in added stability for the child and his or her family.

To imagine a judge abdicating that responsibility in exchange for money, or to imagine the persons at the company who arranged for the kickbacks so that they could make more money themselves off of locking up children, just defies emotion. What a betrayal to all of the people who work in and around that courthouse, striving to help troubled children and their families day in and day out.

In South Carolina, we do not have judicial general elections but rather judges are appointed by the legislature. In my opinion, this is a better system by far - in the interest of judicial independence, judges should never be subject to political pressures, their election or re-election dependent on what group of constituents they please with their decisions. South Carolina's system of judicial selection is rightfully designed to place judges on the bench who have the knowledge, skill, and temperament to be fair and impartial.

This is why an article I read on TheState.com today bothers me - it seems that our system of judicial selection is not foolproof, and our judges are not free of politics after all. Senator Mike Fair of Greenville and Senator Glenn McConnell of Charleston have embarked on a smear campaign against Circuit Court Judge Kenneth Goode, seeking to have him removed based on two sentences that he handed down in criminal cases. You see, our system of "appointment" comes down to votes after all, and McConnell and Fair seek to garner enough votes in the legislator to remove Judge Goode from the bench. Judge Goode cannot defend himself against these types of allegations, because he cannot and should not comment publicly on his rulings in cases.

In December, Judge Goode sentenced Talisha Levette Smith, a day care operator, to 5 years of probation following her guilty plea to slapping a 7-month-old girl so hard it caused bleeding on her brain. The charge carried a potential sentence of up to 20 years. Smith had no prior record, and the article does not go into what mitigation was presented at the hearing in the case. In 2007, Judge Goode sentenced a sex offender, Zail Ray Gavin, to 6 months followed by 3 years of probation following a plea to a charge of "peeping tom." Apparently Judge Goode had the nerve to retain jurisdiction over the case and stated that he wanted to help rehabilitate the man.

I don't know Judge Goode personally, and I have never appeared before him, but according to the article he has served as a circuit court judge since 1999. It is disturbing that these two politicians would cherry pick these 2 decisions out of a decade of service and thousands of guilty pleas and go to the press in an attempt to cast a shadow on Goode's fitness to serve as a judge. The sentences imposed were within the range that was given by the legislature. A judge is required to evaluate the facts of each case and issue a sentence that is fair and that serves justice to all parties involved. By publicly criticizing a judge's decisions in this manner, it sends a message to all judges - if you want to keep your job, justice based on the facts presented in court takes a back seat when the press is watching - lock them up.

Since we are cherry-picking this particular judge's cases, a quick google search turns up two more cases: in October of last year, Judge Goode sentenced a man named Roderick Dean to 15 years - the maximum allowable by law - following a guilty plea to lewd act on a minor. If anyone is wondering, I would not want to appear before a judge who would give the maximum sentence following a guilty plea - Dean could have taken his case to trial and done no worse. In 2007, Judge Goode sentenced Brandon and Ragane Suggs to 5 years each for child abuse - the prosecutor allowed for a cap of 5 years and Judge Goode gave them the maximum allowed under the terms of their plea agreement.

Which brings us to another issue. More often than not, sentences in guilty pleas are worked out beforehand by the prosecutor and the defense attorney, each of whom knows the file and has lived with it for months or even years. The judge, who hears the facts of the case for only a few minutes during the guilty plea, almost always accepts the recommendation of the attorneys although he or she is not required to. More often than not, a judge is not to blame when what seems like a lenient sentence is given to an offender who elects not to go to trial, just as the judge is usually not to blame when a particularly harsh sentence is handed down.

Regarding the first case, McConnell says: “For a person who admitted to some wrongdoing to go into probation, I wasn’t satisfied with it,” and, regarding the peeping tom, McConnell says "he can’t understand why Goode keeps giving Gavin repeated breaks, despite having his case for several years. On the one hand, he just starts weakening the probation. It’s as if he’s trying to get (Gavin) into rehabilitation.” So - McConnell's view is that rehabilitation has no place in our justice system anymore? If a person admits to wrongdoing, then they should go to prison, regardless of the facts that a judge finds in a particular case? I would venture a guess that McConnell and Fair are capitalizing on an opportunity to grandstand and impress their voters on how tough they are on crime, and I hope that the remaining legislators are not swayed by this kind of rhetoric.

When a judge is qualified to serve, has the requisite knowledge and temperament, and certainly when a judge is able to show compassion some of the time, that judge should not be ousted from his job based on unpopular decisions, and sitting judges should not be placed in the position of feeling pressured not to do justice in any particular case for fear of public criticism, whether an appropriate sentence is harsh or lenient. Our system of appointments, overall, works well. Let's not break it.

S.C.'s revised DUI laws went into effect today at noon. Below is a basic outline of the major changes, from a post in May of last year:

Revised penalties under the new 56-5-2930:

First offense: $400.00 or 48 hours to 30 days in jail, or 48 hours community service.
If the blood alcohol concentration (BAC) is .10 to .15: $500.00 or 72 hours to 30 days in jail, or 72 hours community service.
If the BAC is .16 or greater: $1000.00 or 30 days to 90 days, or 30 days community service.

Second offense: $2100.00 to $5100.00 and 5 days to 1 year in prison.
BAC of .10 to .15: $2100.00 to $5100.00 and 30 days to 2 years in prison.
BAC of .16 or greater: $3500.00 to $6500.00 and 90 days to 3 years in prison.

Third offense: $3800.00 to $6300.00 and 60 days to 3 years in prison.
BAC of .10 to .15: $5000.00 to $7500.00 and 90 days to 4 years in prison.
BAC of .16 or more: $7500.00 to $10,000.00 and 6 months to 5 years in prison.

Fourth or subsequent offense: 1 year to 5 years in prison.
BAC of .10 to .15: 2 years to 6 years in prison.
BAC of .16 or more: 3 years to 7 years in prison.

The jury makes the determination of what the BAC was, following a guilty verdict. If the jury does not reach a unanimous decision regarding the BAC, but does find that the accused is guilty, then the sentence is based on the non-enhanced penalties.

Another major change in the DUI law will be the deletion of the requirement that Miranda rights be read to the accused at the breath-testing site. Miranda must still be read to the accused on the roadside video, but not at the station.

The major changes are going to be in the penalties, which are now graduated based on BAC result. I'll more of the details in the coming weeks, as time permits.

WIS10 reported today that Sheriff Leon Lott has arrested eight people in connection with Michael Phelp's now famous bong hit in Columbia, S.C.:

We've now learned that since investigators began trying to build a case, they've made eight arrests: seven for drug possession and one for distribution. These are arrests that resulted as the sheriff's department served search warrants.

We've also learned that the department has located and confiscated that bong.

Sources say the owner of the bong was trying to sell it on eBay for as much as $100,000.

The owner, who wasn't even at the party, is one of the eight now charged.

Apparently, everyone wants to know why is Sheriff Lott going after Phelps, why isn't he focusing on more important crime? What the hell - he loves the publicity. What could be more important than re-election? A photograph of Michael Phelps smoking weed in Columbia, S.C. was like a gift from God on Lott's doorstep. People can call him an idiot all they want, he has made national news and he is happy as he can be.

Everyone is debating whether Lott can even do anything - simple possession of marijuana and possession of paraphernalia are misdemeanors punishable by 30 days and a 500$ fine, respectively. Apparently, Lott could not force Phelps to come back and face charges if he wanted to, because a crime must carry at least one year as a potential sentence for extradition to South Carolina. If Phelps did come back, the glaring question is how will they prove possession when they don't have any marijuana in the first place? Technically, they could go forward with a prosecution without any physical evidence (although this is debatable), but for practical purposes that prosecution is dead in the water.

Norm Kent, at NORML.org, has his own analysis of Lott's legal problems in going forward with a case against Phelps, and concludes:

In essence, I suspect that very soon the Sheriff will publish a statement that after ‘due diligence,’ his ‘investigation’ revealed an insufficient basis upon which to proceed.

And maybe the next time Mr. Phelps gets caught with marijuana he will stand up and courageously say: “It’s normal to smoke pot. I am an Olympic gold medal winning athlete and it has not impaired me one bit.”

If he does, I will invite Michael to join the NORML advisory board. I will even buy him his own bong.

One thing that this fiasco has done is to once again bring the ridiculousness of marijuana prohibition to national attention. According to TheState.com:

The executive director of the National Organization for the Reform of Marijuana Laws said arresting Phelps - an unlikely scenario - would make the swimmer a symbol for the need to change laws governing the drug. "It may bring short-term pain and embarrassment, but for Michael, this will instantaneously make him a national and, because of his Olympic status, an international poster child to finally reform these laws," said Allen St. Pierre, who promised the sheriff a NORML T-shirt and lifetime membership if he arrests Phelps.

In a murder trial that lasted all of last week, one of our themes was "the drowning man," borrowed from an attorney who spoke at a NACDL conference recently but whose name I can't remember. If I find his name I will update this post later. The following is now a matter of public record:

The state's entire case against my client was based on one jailhouse snitch. The police attempted to check out the snitch's story and it did not check out. The snitch was given a polygraph, with questions specifically on the subject of his testimony, and he failed the polygraph. We called the State's DNA expert in our case, who testified that not only did DNA found at the crime scene exclude my client and his co-defendant, but there was DNA present from at least one unidentified male and one unidentified female.

The state's theory was that the defendants robbed two female drug dealers and made off with their money and cocaine. Except that we presented evidence in our case that three people who entered the house and found the bodies made off with a briefcase full of drugs, that they claimed to find sitting next to the head of one of the victims.

When using this type of testimony, and ignoring the state's own credible, believable, and reliable evidence that points towards innocence, could it be that the prosecutor is blind to what he is doing, and believes that he is ethically seeking justice? I have no doubt that if I, or any defense attorney, did the things that some prosecutors and cops do in Horry County that I would be disbarred as a result. A different set of rules apply to our brethren in the solicitor's office.

The drowning man:

The other day I read a story about a man, a good man and a strong man, who heard the desperate cries of a drowning man, way out in the middle of a lake. The good man immediately jumped into the water and he swam out to the drowning man to save him. The story does not have a happy ending. You see, the drowning man grabbed onto the good man and in his desperation the drowning man pulled down the good man and both of them died in the middle of that lake.

Ladies and gentlemen, that snitch is the drowning man. He is like a man out in the middle of the lake or the ocean without a life raft or a boat or a life vest, he has nothing to hold onto, and he is just out there flailing away, just trying to keep his head above water. He is the drowning man and he will do anything to save himself, he will grab at anything, the drowning man has no conscience, the drowning man has no sense of morality or decency, the drowning man is a dangerous man.

Just ask any lifeguard about this and they will tell you that the most dangerous part of a rescue of a drowning man is the drowning man himself. He is desperate, he will grab at anything and he will pull the lifeguard down to his death in a second. Lifeguards are trained in the dangers of a drowning man, they know what to expect and know how to handle the drowning man.

The lessons learned by the lifeguard before going on duty are helpful to us here because [John Doe Snitch] is the drowning man – he has been to prison and he is going back to prison and he knows it, he can feel it, as if his life is almost over and he knows it. He was sitting in his jail cell with the water just about to go over his head for the last time and just then the prosecutor swims up to him and offers him hope, and of course he grabs at it and he will do anything to grab at it, he will say anything to grab at it, just like the drowning man.

The prosecutor swam up to this drowning man and offered him a hand in rescue and this desperate soul grabbed it wildly and pulled the prosecutor under and he has lost his moral compass and drowned with him. The prosecutor got too close to him and offered him something he could not refuse and now the drowning man has pulled him down. . . .

For the record, I am not bashing prosecutors willy-nilly - there are some incredibly upright and conscientious attorneys in our solicitor's office. But, I believe that when there is something terribly wrong with the system it needs to be talked about. Allowing jailhouse snitches to testify without corroboration is a travesty of justice, and it is the norm rather than the exception. Anytime that a person sitting down there at the jail gets information on a case, whether it is from going through someone's discovery materials, talking to the defendant, or just listening to the gossip, if they believe that they can get help on their charges by providing information to the prosecutors, you'd better believe that they will. And there is no better information than a jailhouse confession, or in some circumstances even placing yourself in the center of the crime.

Testimony given by a person who is facing charges himself is inherently unreliable, and should never be admitted in court unless there is some kind of corroboration. Testimony by jailhouse snitches may be necessary in some cases, and that is understandable, but that testimony should be verified by some means before allowing it in front of a jury. Presumption of innocence, proof beyond a reasonable doubt, our entire system of justice and protection against wrongful convictions is called into question by the practice of some prosecutors of trawling the jails for jailhouse snitches.

Consider this - an unethical (or overzealous) prosecutor or detective could make a case against anyone: me, you, or anyone that we know, with jailhouse snitches and no other credible evidence. The threat of prosecution and the promise of freedom is a powerful motivator, and that is why there must be corroboration before we put this kind of testimony in front of a jury.