South Carolina Criminal Defense Blog

Ria Ramkissoon, member of the One Mind Ministries cult charged with causing the starvation death of Ramkissoon's son, pled guilty yesterday in Baltimore, Maryland, to child abuse resulting in death. As part of the plea agreement, she agreed to testify against her four co-defendants when their trial resumes, she would receive a sentence of time served, and the state agrees that if her son is resurrected as the group expects, her charges will be reopened and dismissed.

Ramkissoon, a member of a group called One Mind Ministries, believes Javon Thompson, her year-old son, will rise again, and as part of her plea agreement, authorities agreed to the clause.

"She certainly recognizes that her omissions caused the death of her son," Silverman said. "To this day, she believes it was God's will and he will be resurrected and this will all take care of itself. She realizes if she's wrong, then everyone has to take responsibility ... and if she's wrong, then she's a failure as a mother and the worst thing imaginable has happened. I don't think that, mentally, she's ready to accept that."

Under the plea agreement, Ramkissoon, 22, must testify against four other One Mind Ministries members who are also facing charges, including first-degree murder, in Javon's death. At her sentencing, set for August, she will receive a 20-year sentence, which will be suspended except for the time she has already served behind bars, Silverman said. She must also undergo deprogramming and psychiatric counseling.

In court Monday, it was clarified that the "resurrection clause" would apply only in the case of Javon's actual resurrection -- not a perceived reincarnation, Silverman said.

"This has never come up in the history of American law, as far as I've seen," Silverman said, adding that the clause was "very important to her."

This is a strange and very, very sad story. If a person is brainwashed into truly believing something as extreme as this, how can we say that they are criminally responsible for the death? Although I also cannot see a way around prosecuting these people, it also seems to be the definition of legal insanity per the McNaughten Rule - not knowing the difference between legal and moral right and wrong at the time that the offense was committed. If a person does not know that what they are doing is wrong, there is no societal interest furthered by punishing that person - treatment yes, but conviction and prison will serve no purpose.

(H/T to R. Balko) On a lighter note, a man is exonerated by DNA evidence after serving 12 years for a bear attack he did not commit:

DNA Evidence Frees Black Man Convicted Of Bear Attack

A basic rule of ethics is that an attorney cannot simultaneously represent two or more clients whose interests are directly adverse to one another - this usually arises in criminal defense practice when an attorney attempts to represent two co-defendants in the same case. Lawyers are often confronted with co-defendants who will insist that their positions are not antagonistic and that they will present a unified front throughout the litigation; however, defense attorneys know that there is a substantial likelihood that this will not bear out through the end of the case. If defendant 1 exercises her constitutional right to testify in her own defense, then defendant 2's attorney has a duty to effectively cross-examine defendant 1 with only defendant 2's interests in mind, which in most cases will be difficult if not impossible to do. Often a situation arises where one defendant is more culpable than the other, or where one defendant can receive a better deal or even a dismissal for providing information on the other. These conflicts are often impossible to predict with any certainty at the beginning of a case.

An attorney may be tempted by the promise of more money for representing two clients instead of one, or may understand that hiring two attorneys instead of one will cause a financial hardship on some people, but the bottom line is that if and when the conflict develops the attorney will have to withdraw from representation of both defendants. Often an attorney who accepts representation of two or more co-defendants has no intention of taking that case to trial, and if they do take the case to trial then the prosecutor and the trial judge have a responsibility to raise the question of the conflict and potentially remove the attorney from the case.

The rule is designed to protect clients' interests and to ensure that the attorney's duties of loyalty and confidentiality to each client are not breached. Rule 1.7(a) states that a conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

1.7(b) says that a client can waive such a conflict if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Conflicts are imputed to members of a law firm who practice together for essentially the same reasons. Members of a law firm work together and typically discuss their cases and have access to one another's files. Rule 1.10(a) states:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

With the budget problems affecting the public defender's offices, one way to significantly cut costs is to stop appointing private attorneys to conflict cases - for various reasons, it is more cost effective for a salaried public defender employee to handle a case than it is for a contract defender or a private appointed attorney. With this in mind, Rule 1.10 regarding conflicts was amended a few years ago to attempt to make it easier for public defender offices to keep conflict cases within their office. 1.10(e) now reads:

A lawyer representing a client of a public defender office, legal services association, or similar program serving indigent clients shall not be disqualified under this Rule because of the program’s representation of another client in the same or a substantially related matter if:

(1) the lawyer is screened in a timely manner from access to confidential information relating to and from any participation in the representation of the other client; and

(2) the lawyer retains authority over the objectives of the representation pursuant to Rule 5.4(c).

Due to the impracticability of providing ethical conflict-free representation and of effectively screening attorneys within a public defender office, most public defenders rightly ignored this amendment to Rule 1.10 and continued to send conflict cases out of their offices. Now more pressure is being placed on public defenders state-wide to represent conflict defendants within their offices, and some public defenders are giving in. Chief Justice Toal issued a memorandum in January of this year, in light of the budget crisis, instructing public defenders to keep conflict cases within their offices. Some circuit court judges are now telling public defenders that they must keep conflict cases within their office, and are threatening to refuse to sign appointment orders.

It is interesting that the same motivation exists for government to attempt to ignore conflicts as when private attorneys attempt to ignore conflicts - money. For the private attorney, it is more lucrative to take on both co-defendants and collect a fee from each. For the government, it is cheaper if the public defender keeps co-defendants in their office and the government does not have to pay an outside attorney. Indigent defendants are not entitled to less conflict-free representation than any other citizen, and the chief public defenders across the state should not be giving in to these demands, whether it comes from the legislature, the circuit court judges, or the chief justice.

A S.C. ethics opinion issued earlier this month answers the question: can a public defender's office retain four co-defendants within the same office where each co-defendant has inconsistent defenses? Predictably, the answer is not yes or no but the answer says look at the Rules - if the screening and autonomy requirements of Rule 1.10 are met there is no problem; however, if the screening and autonomy requirements of Rule 1.10 are not met, then the public defender must comply with Rule 1.7 the same as everyone else.

Screening under Rule 1.10 - each attorney cannot have access to the other's files and other confidential information regarding the other's case. Autonomy raises another troublesome issue - "the lawyer retains authority over the objectives of the representation pursuant to Rule 5.4(c)." Rule 5.4(c) states

A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

Each rank and file public defender is employed by the chief public defender, who necessarily has supervisory authority over them and must monitor their work. This means that in an ordinary situation, the chief public defender must look at what her employees are doing in their cases and advise them when necessary.

There are several potential solutions:

- Conflict cases can be sent to an adjoining circuit's public defender office. This will add to the already overburdened case load of each office and require the additional driving time to visit conflict clients in jails and to appear in courthouses that are, in some cases, hours away from the office.
- Each public defender could create compartmentalized conflict case units, who would be housed in separate offices with separate filing systems and support staff, and who would not be subject to the supervisory authority of the chief public defender.
- The public defender can enter into contracts with private attorneys who would handle the conflict cases for a set compensation, in addition to their private practices. In several counties a system such as this was already in place, but in some areas has fallen apart due to the lack of funding. It is certainly less costly than appointing individual private attorneys to each conflict case.
- Private attorneys can be appointed from the appointment list to represent conflict defendants at a set hourly rate. This is what has been happening in most areas, and it is probably the most effective solution until the legislature stops appropriating funds to pay for the representation. It is the most effective, but also the most costly solution.

The Courts cannot and should not order public defenders to represent conflicted clients in order to save money. I've always been told that money is the motivating factor in most ethical violations, and apparently this is true whether it is a private attorney committing misconduct or whether it is institutionalized misconduct within the court system.

Although I have not seen the memo, the Sun News is reporting that Chief Justice Toal sent out a memo to municipal courts today warning that the new system of "administrative courts" that are being set up to handle ordinances such as Myrtle Beach's anti-biker laws and other cities' smoking bans are in violation of the state constitution.

Chief Justice Jean Hoefer Toal on March 23 issued a one-paragraph memo to county and city administrators, attorneys and council chairs that says she received information that some counties and municipalities "are attempting to create by local ordinance another tier of courts, typically designated as 'administrative hearing courts'" to deal with smoking bans and other local ordinance violations. . . .

Toal calls the administrative hearing system "repugnant" to the state's uniform judicial system, and says setting up administrative hearing courts violates articles V and VIII of the state constitution.

Several lawsuits have been filed already over the Myrtle Beach ordinances and one of them challenges the constitutionality of the administrative hearing process as well. Besides the constitutional problems, the idea of passing a set of ordinances for the sole purpose of running a running a group of people out of town is disgusting and should not be something that Americans anywhere should stand for in this day and age. As I said before, Bikers Welcome - Come to Myrtle Beach, be loud, and don't wear your helmet. If they write you a ticket, pay it or fight it but don't let them run an entire group of people out of town.

Related posts:
Myrtle Beach's helmet law
Myrtle Beach begins enforcement of ordinances designed to force out bike rally
Myrtle Beach continues efforts to shut down the May bike rally
Three lawsuits filed to declare Myrtle Beach's bike rally ordinances unconstitutional
Matt Brown weighs in

In Knowles v. Mirzayance, decided yesterday, the U.S. Supreme Court denied Mirzayance's claim of ineffective assistance of counsel where his attorney declined to present his only available defense during the insanity phase of his trial.

In California, in a trial where the defendant enters a plea of not guilty and a plea of not guilty by reason of insanity, the trial is bifurcated into a guilt phase and an insanity phase where the jury is to consider each separately. Mirzayance had presented evidence of his mental state during the guilt phase in an attempt to obtain a verdict of 2nd degree murder rather than 1st degree murder, arguing that the requisite intent was not present due to Mirzayance's illness; the jury rejected the mental illness evidence and found Mirzayance guilty of 1st degree murder.

Mirzayance's counsel then decided not to present the evidence of not guilty by reason of insanity during the second phase of the trial because it would have been futile, since the jury had already rejected the same testimony. MIrzayance's petition for post conviction relief in state court was denied, then he filed a habeas petition in federal court asking for relief, arguing that his trial counsel's decision to forgo the insanity defense was ineffective assistance of counsel because there was no other valid defense and therefore Mirzayance had nothing to lose by arguing insanity during the second phase of the trial.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1), a federal court may not grant a state prisoner’s habeas application unless the relevant state-court decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." The Supreme Court held that there is no clearly established "nothing to lose" rule, and therefore MIrzayance's claim fails. Ineffective assistance claims must be evaluated under the Strickland v. Washington two pronged test of ineffectiveness under prevailing professional norms and prejudice to the defendant. The Court went on to hold that counsel's decision to forgo the insanity defense, even though there was no other defense available, was an acceptable tactical decision that did not fall below the standard of "reasonableness under prevailing professional norms," and that there was no prejudice to Mirzayance anyway because the jury had already rejected the testimony regarding MIrzayance's mental state.

The Court's reasoning is easy enough to follow, and I understand that the standards for what is competent representation under the 6th Amendment are ridiculously low, but it is hard to swallow that when there is only one available defense and there is nothing to lose, that counsel does not have a duty to present that defense and throw everything he's got at the jury, regardless of his odds of success. It doesn't sound reasonable under prevailing professional norms for an attorney to lay down and quit because he doesn't think the jury will agree with him. If there is not a "nothing to lose" standard for situations like this there should be - but the Court has passed by the opportunity to create one in this case.

In Davie v. State, decided this month, the S.C. Supreme Court held that it is ineffective assistance of counsel when an attorney does not convey a plea offer to his client. In this case, counsel testified at the PCR hearing that he did not convey the state's plea offer of 15 years to his client because he was not aware of the plea offer until after it had expired. His testimony was that he was moving to a new office and the plea offer was lost in the mail.

Without ever hearing the original plea offer of 15 years, the defendant ended up pleading guilty to trafficking crack cocaine, third offense; distribution of crack cocaine, third offense; distribution of crack cocaine within proximity of a public park; conspiracy to violate the South Carolina drug laws; unlawful conduct toward a child; failure to stop for a blue light; driving under suspension, third offense; and child endangerment, and received a sentence of 27 years in prison.

The SCSCt held that the failure to communicate the original plea offer was deficient performance by the trial lawyer, and that under the facts of this case there was prejudice to the petitioner, the test being "whether but for counsel’s deficient performance a defendant would have accepted the State’s proposed plea bargain and that he would have benefited from the offer." In this case, Davie testified that he would have accepted the plea offer and, well, 15 instead of 27 is certainly a considerable benefit. The Court held that the remedy, rather than granting a new trial, was to remand the case for a new sentencing hearing. Although the Court cannot force the state to extend its original offer of 15 years, the petitioner's sentence cannot exceed 27 years.

I am curious as to whether on resentencing the solicitor's office will correct Davies' attorney's mistake and re-extend the original offer of 15 years. And, if they do not, isn't Davies' attorney now liable for 12 years of Davies' life? Although malpractice/ civil liability is certainly not my area of expertise, I think the answer is that he would not be liable - but should he be?

Two police officers, a prosecutor, and a judge have been charged with conspiracy to commit perjury and with misconduct in Detroit.

Former top drug prosecutor Karen Plants and two Inkster cops were arraigned today and face up to life in prison for an alleged conspiracy to use perjured testimony to convict two drug dealers in a 2005 cocaine case, according to charging documents filed this morning.

In all, Plants is accused of five felonies and two Inkster police officers are each charged with four felonies in the court documents, filed by the Michigan Attorney General’s office after a nine-month investigation. Among the charges faced by the trio is conspiracy to commit perjury, a potential life offense.

Retired Wayne County Circuit Judge Mary Waterstone faces four felony counts of official misconduct, according to charges filed this morning in Detroit 36th District Court. The maximum penalty for those felonies is five years.

Plants is charged with conspiracy to commit perjury, one count of official misconduct for provide false information to defense lawyers, one count of misconduct for failing to correct false evidence and two misconduct charges for allegedly holding improper meetings with Judge Waterstone.

David Moffitt, one of the defense attorneys at the trial, asked Attorney General Mike Cox to investigate the case three years ago, but apparently was ignored until recently. The attorney general's investigative report alleges that the state's informants lied on the stand at a preliminary hearing, with the proseuctor's knowledge. Later, the prosecutor had an ex parte meeting with Judge Waterstone where she told the judge about the perjury, and asked for and received an order signed by the judge preventing the defense attorneys from obtaining cell phone records that would have revealed the perjury. At trial, the prosecutor again met with the judge ex parte and discussed the perjury which was allowed to continue at trial without the knowledge of the defense attorneys.

They should be prosecuted. There are cops who lie under oath and there are prosecutors who will do anything to obtain a conviction. There are judges who will look the other way (although I hope it is rare that a judge will actually participate in unethical conduct such as what is alleged in this case). The only way to ensure the credibility of our justice system is for cops to know that they will be prosecuted for perjury and for prosecutors to know that they will be held accountable for their actions.

When prosecutors know that they will not be charged with anything, they know that they will not be disciplined by their state bar, they know that they are immune from lawsuit, and they know that judges will not dismiss cases for prosecutorial misconduct, there will be prosecutors who will take advantage of their free pass and do whatever it takes to win their cases. As much as we want and need to believe that prosecutors and police officers will be moral and upstanding by virtue of who they are and what they do, they are human and it simply is not always true.

In Berry v. State, released today, the S.C. Supreme Court held that a prior conviction for paraphernalia cannot be used to enhance a manufacturing meth charge to second offense, and granted Berry's PCR petition because his plea counsel failed to inform him of this or object to the enhancement.

Berry pled guilty to second offense manufacturing methamphetamine, was sentenced to seven years, and an accompanying possession with intent to distribute meth charge was dismissed as part of the plea agreement. The Court points out that it is perfectly acceptable for a defendant to plead to a charge that he or she is technically not guilty of in exchange for a plea agreement - for example, defendants will often plead to manslaughter to avoid a murder conviction, even though the legal requirement of provocation is not present - in order to receive a lesser sentence. The plea must be entered into knowingly and voluntarily, however, and in this case Berry's attorney did not advise him that a paraphernalia conviction could not be used to enhance his drug conviction. Berry testified that he would not have entered the plea had he known, and his counsel testified that it didn't even occur to him.

There are significant differences in the potential sentences and how the sentence is served - manufacturing meth first offense carries 0-15 years and second offense carries a potential 5-30 years; but a second offense is also an 85% no parole offense for purposes of how much time you serve. On a first offense, a convicted person will receive time credits at SCDC and could be released after serving as little as half of their sentence - or could be released on parole even sooner. (**** do not rely on this blog for legal advice - please rely on your attorney to explain sentencing issues. Sentencing issues, time credits, parole eligibility are complex issues that will be determined by the individual circumstances of your case. ****)

For practical purposes, this means that Berry, although he pled to 7 years, would end up serving as much or more time than he would have if he had been convicted following trial and received the maximum sentence of 15 years on a first offense. On a first offense if he was sentenced to 15 years, he could potentially have maxed out his sentence after 7 1/2 to 8 years, or could have been paroled even sooner. With a sentence of 7 years on a second offense, he has to serve around 6 years before he could be released.

Even if Berry had gone to trial, lost, and was sentenced to the maximum of fifteen years, he would most likely not have been in a worse position. But, assuming that the state had a solid case against him, the real error lay in allowing the use of a paraphernalia conviction to enhance the drug charge. If Berry had pled, without any recommendation by the prosecutor, to a first offense manufacturing meth, odds are he would not have received the maximum sentence and he would have undoubtedly been in a better position.

Allowing the use of a paraphernalia conviction to enhance a drug charge without even questioning it was a failure not only of Berry's lawyer, but of the prosecutor, the trial court, and the lower PCR court which denied relief. In my experience, in S.C., the use of paraphernalia for enhancement has never been a question with any prosecutor or judge, and it amazes me that a prosecutor, defense attorney, and 2 trial judges would not even question the propriety of this guy's plea.

There are differing opinions, among lawyers and in the blawgosphere, about whether a new attorney should attempt a solo criminal defense practice straight out of law school. Scott Greenfield makes the case that, where he once maintained that opening a solo practice straight out of law school was decidedly wrong, in today's job market it may be a necessity:

But following the implosion of the economy, and with it the disappearance of the job market for entering lawyers, the equation has changed. Whereas once I argued that the notion of flying solo straight out of law school was decidedly wrong, the new reality is that many law students will have no choice. Solo practice is the alternative to sitting at home playing Wii. The latter is not an option.

Brian Tannebaum laments what he sees as a flood of newly minted solo practitioners who thought that criminal defense was an easy gig - take a fee, take the state's first offer, and plead your client:

What they intend to do is go to court one time, get the state's first offer, and convince the client that they should take it. What a great lawyer. When they realize that some clients understand that jail is probably not an option, that same young hungry lawyer tells them that jail is a "possibility." I tell those same clients that jail is a "possibility" like the possibility of death from a tooth extraction.

And Matt Brown gives the contrary view of one who did start his defense practice straight out of law school and disagrees with Greenfield and Tannebaum's assessments. All three are right, depending on who we are talking about. Scott's practical advice for those who are forced into solo practice, hook up with a more experienced criminal defense lawyer and/or find a mentor, applies equally well to those who chose to go into a solo practice.

Tannebaum's grim view of the new criminal defense practitioner who takes easy money to plead out his clients applies equally well to many lawyers who have been in private practice for many years. A lawyer is either dedicated or he is not, it does not matter how long they have been in practice. If a lawyer's goal is to make as much money in as little time as possible, it does not matter if they are taking on criminal cases or car wrecks - the answer is to bring in a large quantity of cases for small fees and then settle the cases fast without trials.

I envy those who began their criminal defense practice straight out of law school - I would recommend spending a couple of years at a public defender office or as an associate with a more established defense attorney, but if you are dedicated I have no doubt that you will gain the same experience learning from your fellow members of the bar, you need only reach out to enough of them. It is the lawyers who are forced into a solo practice who will fail or who will eek by while failing their clients - some people are not cut out to work on their own, and some people are not cut out for running a business. Maintaining a criminal defense firm requires dedication, long hours of work, and the ability to run a business while also finding the time to serve your clients.

That being said, I believe that the most dedicated defense lawyers have solo or small practices - it is the most efficient business model for criminal defense and it makes sense. Those attorneys who already know that criminal defense is their calling, who know that it will be hard work, and who are willing to fight for their clients right out of the gate will do well in a solo practice. Matt Brown is a case in point:

Throughout law school, I intended to do criminal defense and nothing else. I wanted to fight the big, bad government. My goal, which I made clear to everyone around me, was to immediately hang out a shingle upon receipt of my bar number. I set aside time to watch court. I did a public defender clinic, attended public defender new hire training, spoke with a number of judges, and met as many good criminal lawyers as I could. I bombarded every criminal lawyer and paralegal I encountered with questions and did about two years of work as a clerk and research assistant for a prominent criminal defense attorney who had his own solo practice. He led me through a number of his cases from start to finish, showing me exactly what he did and why he did it.

My opinion is that if you are considering starting a solo criminal defense practice out of necessity, whether straight out of law school or not, because you can't find a job doing something else - please don't. When you accept a criminal defense case you are holding a person's life in your hands, sometimes literally, and it is not something that anyone should be doing just to pay the bills or because there is no other job available at the moment. If you are considering starting a solo criminal defense practice because that is what you know you want to do, then go for it. Read and learn as much as you can about managing a solo practice, find the people who are willing to help you along the way, and do not let anyone discourage you from it.

In Hiott v. State, the S.C. Supreme Court overruled the Court of Appeals, holding that a trial judge cannot impose sanctions on a PCR applicant under Rule 11 for filing frivolous proceedings.

At the PCR hearing, petitioner claimed that counsel was ineffective for not discovering that the victim in his case had been abused by another family member; however, petitioner himself was aware of the alleged prior abuse and did not tell his trial counsel. The trial judge denied the PCR and then sanctioned the petitioner $3000 (which he was never going to be able to pay anyway, as he is incarcerated) for filing a frivolous proceeding. The Court of Appeals upheld the sanction, holding that, since PCR's are governed by the rules of civil procedure, Rule 11 must also apply.

The Supreme Court overruled, pointing out that allowing trial judges to sanction PCR applicants for frivolous proceedings would have a chilling effect on prisoners' exercise of a constitutional right. They noted that in In Wade v. State, 348 S.C. 255, 559 S.E.2d 843 (2002), the SCSCt has already held that a trial judge cannot revoke an petitioner's inmate credits under the Prisoner Litigation Act for filing frivolous proceedings or for testifying falsely, as it would chill a prisoner's exercise of a constitutional right.

There are safeguards in place to limit frivolous proceedings - successive applications are barred unless new evidence is discovered, there is a one year statute of limitations on PCR applications, and there is a one year statute of limitations following the discovery of new evidence. Essentially, every inmate who feels that they have a claim to PCR will get one bite at the apple, and the courts are just going to have to deal with the non-meritorious claims to ensure that we do not miss the claims that do have merit.

Last month I wrote about Judge Kenneth Goode, who was the target of a public campaign to have him removed from office based on decisions he made in two cases. Judge Goode has announced that he will retire, effective June 1, 2009, rather than seek re-nomination in the General Assembly.

Senators Mike Fair of Greenville and Glenn McConnell of Charleston embarked upon a smear campaign against the Judge before hearings on his renomination in the General Assembly last month, alleging that the judge's sentences were too light:

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.

Since the Senators saw fit to pick these two cases out of a decade of service and trumpet a small portion of what actually transpired at the hearings to the news, I noted that a quick google search of Judge Goode's name turns up equally harsh sentences:

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.

There is a lot that goes into any judge's consideration at a sentencing hearing, including the defendant's prior record, acceptance of responsibility, efforts at rehabilitation, and recommendations on and off the record by the prosecutor in the case. What a judge should not feel compelled to take into consideration is whether there is a news camera in the courtroom, and whether a politician will be able to use their decision as a platform to get themselves press at some point in the future. The legislature sets the minimum and maximum penalties for crimes in S.C., and sentencing is in the discretion of the court within those guidelines that are created by the legislature.

The father of the injured child in the daycare case, Patrick Gaddie, has announced that he is pleased with the judge's decision to retire:

“The people of South Carolina deserve better,” Gaddie said. “Other judges need to know they are accountable for their actions, good or bad. . . .Gaddie said Goode “needs to apologize” for the sentence.

Senator Mike Fair says:“The children of this state will now be better protected.” Well, as long as its for the children . . .

The state's trial judges undoubtedly feel that their hands are tied, and they cannot ethically speak out regarding this outrage, but our Supreme Court and our State Bar including prosecutors and the defense bar should be making some kind of statement about what has happened here. Thus far, I have heard nothing from our state bar - it seems that we are going to acquiesce and silently condone the ousting of a circuit court judge. So much for an independent judiciary in the State of South Carolina.

Today, New Mexico became the 15th state to abolish the death penalty. New Mexico Governor Bill Richardon's office reported that phone calls, emails, and walk-in's to his office expressing their opinion on the bill were overwhelmingly in favor of repealing the death penalty:

As of noon Wednesday, the governor's office said it had received 10,847 phone calls, e-mails and walk-in comments from people who wanted to voice their opinions on the legislation.

Of those, 8,102 were for a repeal of the death penalty and 2,745 were against it, according to Richardson's office.

In a press release, Richardson stated:

Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime. If the State is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong.

But the reality is the system is not perfect - far from it. The system is inherently defective. DNA testing has proven that. Innocent people have been put on death row all across the country. . . .

From an international human rights perspective, there is no reason the United States should be behind the rest of the world on this issue. Many of the countries that continue to support and use the death penalty are also the most repressive nations in the world. That's not something to be proud of.

In a society which values individual life and liberty above all else, where justice and not vengeance is the singular guiding principle of our system of criminal law, the potential for wrongful conviction and, God forbid, execution of an innocent person stands as anathema to our very sensibilities as human beings. That is why I'm signing this bill into law.

Powerful words. If only we could all agree that justice and not vengeance is the singular guiding principle of our system of criminal law, and indeed that vengeance does not equal justice.

The United States Supreme Court today released Vermont v. Brillon, holding that the defendant was not denied his right to a speedy trial where he went through six appointed attorneys over a period of three years before his domestic violence and habitual offender charges were brought to trial.

Although I disagree with some of the phrasing used by the Court, I agree that there was no violation of this defendant's right to a speedy trial. When the Court accepted cert in this case, some commentators painted it as an example of a breakdown in the indigent defense system which was no fault of the defendant's, which should therefore be held against the state in determining whether his right to a speedy trial was violated. If that was the case I would agree, however this may not have been the right test case for that issue. The facts as recited by SCOTUS indicate that Billon was the cause of the delay, that he was a difficult client at best, that he threatened one of his attorneys and that he fired others.

For purposes of constitutional analysis, Barker v. Wingo is the seminal case regarding when the right to speedy trial has been violated. The test is fluid, and there is no bright line rule to go by. It will depend on the complexity of the case, and the courts must weigh several factors which include the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and prejudice to the defendant. The federal courts and some states have their own sets of rules regarding what a speedy trial is in various types of cases, but South Carolina does not. I have had one case that was dismissed on speedy trial grounds, but it is a rare occurence.

Where a defendant causes the delay by purposefully switching attorneys or by his conduct which necessarily results in new counsel being necessary, the defendant can't claim that he has been denied his right to a speedy trial. Where counsel for the defendant requests a continuance in the case, the general rule is that the right to a speedy trial has been waived. If the defendant does not ask for a speedy trial, the right to a speedy trial may be waived. Only when the state is the cause of the delay - whether it is purposeful or whether it is due to overcrowded dockets or whether it is due to the state's inability to provide adequate counsel in a timely manner - should a dismissal for violation of the right to speedy trial be granted. Like I said, this was not the ideal test case for this issue.

One thing that bothered me in the Court's opinion was an analysis of whether assigned counsel's "failure to move the case forward" should be attributed to the state. The question is framed wrong - counsel, assigned or retained, has no obligation to "move a case forward;" it is the government's responsibility to move the case. This is more true in South Carolina than anywhere, as the solicitor's office, not the clerk or the judge, is in control of the docket in South Carolina. A defendant, other than making the request for a speedy trial, has no responsibility and in fact does not have the power to move a case forward. If there are no acceptable negotiations, it is up to the solicitor's office to put the case on the docket and try it.

According to the Sun News, Myrtle Beach police issued 63 tickets during the Helmet Freedom Ride over the weekend, which protested the city's new helmet laws. On my last post about Myrtle Beach's new ordinances, an anonymous commenter questioned the ethics of the following statement:

Come to Myrtle Beach, be loud, and don't wear your helmet. If they write you a ticket, pay it or fight it but don't let them run an entire group of people out of town.

The anonymous commenter did not think that it would be ethical to tell people to break a law, and felt that my only purpose in doing so is to obtain clients who were written tickets for not wearing helmets. The comment was more insulting than it was constructive, which is why it was deleted, but I do think that the issue raised is worth addressing:

First, I think that civil disobedience, with full knowledge of the consequences, is quite ethical. More so than blind obedience to a law whose constitutionality is questionable at best - the law needs to be challenged, and I stand by my statement. However, I welcome any constructive counterarguments to this.

Second, I have not been retained on any helmet violations and I do not intend to be. I am certainly not advertising to defend 100$ tickets for helmet violations. This ordinance is set up as what they are calling an "administrative infraction," in an attempt to avoid constitutional challenges to the law. The idea is, we will call it an "infraction" as opposed to a criminal offense, and the constitution will not apply. There is no potential for jail time and the fine is a flat $100 (note that you could be held in contempt and jailed if you lose your case and you do not pay your fine). I believe they are taking the position that you are not entitled to a jury trial as well.

This means that this is not an area of the law where lawyers are going to be in high demand - the cost of an attorney's time to defend the ticket is not going to be economically feasible for a $100 ticket, unless either the attorney takes the case without pay on principle, or unless the client pays for the attorney's time on principle. Either way, it will only take one such case to make a record at the city court and then appeal the conviction to obtain a ruling in the South Carolina Supreme Court. So, please do not call me to defend your helmet ticket - but, feel free to get one in protest and fight it.

Comments are welcome.

Myrtle Beach police have begun to write tickets to bikers without helmets over the weekend, and last week signs appeared on some roads at city limits proclaiming that all motorcyclists must wear a helmet. The City of Myrtle Beach began it's campaign last year to end the May motorcycle rallies, including the Harley-Davidson Spring Rally in Myrtle Beach and the Atlantic Beach Bikefest which is centered on Atlantic Beach. Ultimately, the City raised property taxes by $1 million to fund the potential loss of revenue and passed 15 ordinances last fall, designed to harass motorcyclists, and businesses that support them, to the point where they will not return.

At least three lawsuits have been filed asking for declaratory judgments that Myrtle Beach's new ordinances aimed at bikers are unconstitutional, and asking for injunctions against their enforcement. Last week, Circuit Court Judge Michael Baxley denied a request for an injunction against enforcement of the ordinances and to halt the administrative hearing process that the City has set up, holding that the ordinances do not violate state law.

Over the weekend, the Myrtle Beach Freedom Helmet Ride went forward as planned and about 200 riders and passengers took part in the protest. Myrtle Beach police officers waited for the first motorcyclists to arrive then began stopping them and writing tickets:

Four police cars parked along the southern end of Ocean Boulevard, and as soon as the first group of motorcycles with the Myrtle Beach Helmet Freedom Ride passed them, officers turned on their lights, sounded their sirens and stopped the group, causing a makeshift roadblock just before the Springmaid Pier.
Myrtle Beach police officers handed out their first helmet tickets to motorcycle riders who violated the city's new law Saturday.
Capt. David Knipes, public information officer for the Myrtle Beach Police Department, said he would not have a total amount of helmet-violation citations or details of any related arrests until Monday.

According to the Sun News, Atlantic Beach is having second thoughts about continuing to support the Atlantic Beach Bikefest as well, in response to an offer of financial assistance from Myrtle Beach City Manager Tom Leath:

Myrtle Beach City Manager Tom Leath described the new effort as a way to move Atlantic Beach away from a one-week-a-year "rally economy" and into competition with the rest of the Grand Strand for an entire season's worth of tourism money. Among the largely undeveloped town's obstacles to growth are a number of assorted debts and legal judgments, as well as aging infrastructure and a general shortage of resources.
"It's not like we'd pay Atlantic Beach to take the rallies away," Leath said. "But one impacts the other. They need to pass their zoning rewrites, and that takes money for staff or consultants. They need to work on their comprehensive plan. They need infrastructure upgrades to water, sewer and electric and the street grids. Those take money to plan."
Both Rhodes and Leath said they hope other governments also join in the effort, one that could redefine that corner of the Grand Strand. The county already extends its assistance to Atlantic Beach, covering emergency police calls when the town's four-member force is off duty, and Gilland said the county would be "more than willing" to continue assisting.
"If Atlantic Beach is going to truly redevelop, Bikefest needs to go away," Leath said. "The 3-mill increase we passed could go toward that.

In the comments to prior posts on this blog, and on other sites, a lot of motorcyclists have said they just won't come - Myrtle Beach will lose their business and "that will show them." What these people are missing is that they are doing exactly what the City wants them to - Myrtle Beach is not going to lose revenue, they are going to make up for any lost revenue in property taxes extracted from residents and from revenues from the tickets they will write. Come to Myrtle Beach, be loud, and don't wear your helmet. If they write you a ticket, pay it or fight it but don't let them run an entire group of people out of town.

Prosecutorial misconduct such as withholding evidence, the use of jailhouse snitch testimony, faulty eyewitness identifications, and coerced confessions lead to wrongful convictions that destroy lives. There is nothing to prevent these miscarriages of justice unless prosecutors are held accountable for misconduct and unless laws are passed or rules put into place to limit the use of unreliable evidence at trials.

In the news recently:

In California, Adam Miranda is granted a new trial after nearly 30 years in prison, following the revelation that his prosecutors withheld evidence that could have exonerated him - Judge David S. Wesley found that prosecutors did not tell the defense attorneys that their star witness Joe Saucedo had confessed to the murder himself before Miranda was charged. Saucedo was paid $1350, was relocated, and was given a deal that resulted in 2 years of probation on his own charge.

"This kind of violation snaps the spine of the justice system," defense attorney Kerry R. Bensinger said after Friday's hearing.

Tim Masters' 1999 murder conviction in Fort Collins, Colorado, was overturned last year after new evidence was discovered, but still struggles to put his life back together with the stigma of a first degree murder conviction hanging over him:

In 1987, Masters became the prime suspect in the slaying of Peggy Hettrick, a 37-year-old found in a field near his house. Among the reasons police said they focused on Masters was that he failed to report the body after he found it and his childhood drawings and stories suggested he was fixated on death.

Masters was convicted of murder in 1999, but a judge last year threw out the conviction and released him from prison, citing new evidence that did not implicate Masters. Masters now has a lawsuit pending against several police officers, ex-prosecutors and the city.

In Louisiana, the City of Covington has agreed to settle a lawsuit for $1.4 million for the 19 years that Dennis Patrick Brown spent in prison for a rape he did not commit.

Covington police arrested Brown in September 1984 after a woman reported being raped at knifepoint in her home on Polk Street. Based on her description, police sketched an image of a suspect with a bandanna covering all but his eyes.

She later picked Brown out of a lineup. During the September 1985 trial, the victim testified that she had no doubt Brown raped her.

Brown denied the attack, testifying that police had threatened him with a knife to gain a confession. He told the jury that police investigators were lying and that the first time he set eyes on the victim was in court. He was found guilty and sentenced to life in prison.

In 2004, the Innocence Project of New Orleans obtained a court order to test blood, semen and clothing found at the scene of the rape. Two tests of the evidence excluded Brown as the rapist.