South Carolina Criminal Defense Blog

Last week I wrote about the developing scandal surrounding the Fourth Circuit Solicitor's Office, which is apparently being investigated by the FBI along with Mercy Ministries, a non-profit organization formed to help victims of criminal domestic violence.

The mainstream media has been deafeningly silent on this story - at this time I can find only one short article by Tonya Brown at carolinalive.com, and no others. There was an article by the Cheraw Chronicle - but it appears to no longer be available online, although you can pull up an apology and retraction stemming from the story:

In this week’s issue of The Cheraw Chronicle & Chesterfield Advertiser regarding the article on the Fourth Circuit Solicitor’s Office, it was mentioned that Safrona Finch was a former employee with the Fourth Circuit Solicitor’s Office in Bennettsville.

It is correct to say that Safrona Finch is still a current employee of the Solicitor’s office and that she has not been terminated or has she resigned from her position.

Sorry Safrona. I'm sure they didn't mean to point fingers at you. Fitsnews has been dogging this story from the beginning, and is now reporting that Bill Overcash, who ran the Pre-Trial Intervention program, has also left the solicitor's office amid allegations of misappropriations of funds.

Where is the rest of the mainstream media on this story? [post edited]

Anyone that has more information, feel free to comment below.

Edit: Chesterfield County newspaper The Link has also reported on the scandal. Leighton Bell's article was on the front page this week.

The government needs more ingenious ways to save money while continuing to lock up record numbers of our citizens. For example, in Springfield, Oregon, they have decided to charge accused people for their accomodations at the jail following arrest:

The city plans to charge convicted criminals up to $60 a night, depending on their ability to pay, when a new 100-bed lockup opens in October, Springfield Police Chief Jerry Smith says. Thus, the city could recoup most of its cost of about $70 a day.

"These people are the ones who cause the cost to operate a jail, so they ought to be the ones to pay it, not private citizens," Smith says.

I don't know. The Constitution says that I am innocent until a jury says otherwise, but maybe this is good sense, and not just another way to tax the poor. After all they caused us to put them in jail, right? Apparently many counties and cities in Utah, Virginia, and Oregon have begun charging people for stays in the slammer. The Douglas County jail in Roseburg, Oregon, uses a collection agency to get their money.

It is standard practice for prosecutors to use co-defendants or other persons with pending charges to testify at trials, with the promise of leniency, reduction in their charges, or even outright dismissals in exchange for their favorable testimony. The threat of prosecution and the promise of freedom is a powerful motivator that can certainly color a witness' testimony or even motivate them to fabricate it from whole cloth.

Except there will usually be no agreement saying, "this is what you will get in exchange for your testimony." There will be a "proffer," which basically says that the witness will testify truthfully at the trial and that the prosecutor makes no promises to them other than to take their cooperation into consideration.

Earlier this morning, an attorney asked me what my opinion was, as to whether his/her client should sign this type of proffer or not, and my answer was it depends. The first question is whether the client is anticipating a guilty plea in their case - if you are considering signing a proffer you are most likely anticipating a guilty plea, but make this clear to the client.

Typically, our prosecutors will live up to expectations when it comes to rewarding snitches, even when it is not spelled out. But - the standard proffer in Horry County basically binds the prosecutor to nothing and legally is of no benefit to a defendant. My answer is, if you have a strong enough case don't sign this type of non-agreement - at the least make sure these agreements have language in them that benefits and protects your client, at best make sure that there is a real promise spelled out in the agreement (rarely will a prosecutor agree to this, if only because they know that they do not have to with most attorneys). If your client's case is not a slam dunk on the other hand, your client may or may not want to enter the agreement and rely on the prosecutor's good graces.

As a matter of public policy - prosecutors and defense attorneys should stop this practice of half-truths, innuendo, and "agreements" that agree to nothing on paper. The goal is to ultimately mislead a jury and lie by claiming that their witness has been promised nothing and expects nothing in exchange for their testimony, which is unconscionable.

Personally, I do not think that they should, and I agree with the quote below.

In New Mexico, police unions have filed a lawsuit against District Attorney Janetta Hicks, who announced that her office would no longer prosecute misdemeanors except for DUI's and domestic violence cases.

"The officers are not lawyers," said prosecuting attorney Tom Martin. "They are not licensed to practice law. They do not have adequate training to be prosecuting attorneys."

While officers have received some legal training, they argue the cases take too many police off the street, which causes the safety of citizens to suffer.

"The district attorney has the absolute duty to represent the state of New Mexico as the prosecuting attorney," Martin said.

Martin said the policy has created a hardship and caused confusion for officers in the courtroom.

This is how it has always been in South Carolina courtrooms, and only recently have counties begun to provide prosecutors for driving under the influence and domestic violence cases (but not defense attorneys). Officers in the magistrate courts still prosecute all other types of cases. (In Horry County, the solicitor's office also handles driving under suspension and simple assault and battery cases).

From a policy perspective, it does not make sense to take officers off of the street and force them to act like a lawyer for a police officer's pay. From a defense perspective, there are times when my job is easier because there is no lawyer on the other side, but there are also times when my job is more difficult because an officer does not (and probably should not) understand the nuances of some legal defenses or courtroom procedure.

What is the answer? Fund the justice system - put a prosecutor in every courtroom and stop denying the right to counsel to indigent defendants in misdemeanor cases. Let cops be cops.

(H/T Grits for Breakfast): Fake federal agent in Missouri works with local law enforcement for months, arresting drug dealers, extracting confessions without Miranda, and searching homes without a warrant. Apparently, the local police thought nothing was wrong until the real FBI showed up and arrested him:

GERALD, MO.–Like so many rural communities in the U.S. middle, this small town had wrestled for years with the woes of methamphetamine. Then, several months ago, a federal agent showed up.

Arrests began. Houses were ransacked. People, in handcuffs on their front lawns, named names. To some, like Mayor Otis Schulte, who considers the county around Gerald, population 1,171, "a meth capital of the United States," the drug scourge seemed to be fading at last.

Those whose homes were searched, though, grumbled about a peculiar change in what they understood – mainly from television – to be the law.

They said the agent, a man some had come to know as "Sergeant Bill," boasted he did not need search warrants to enter their homes because he worked for the federal government.

But after a reporter for the local weekly newspaper made a few calls about that claim, Gerald's anti-drug campaign abruptly fell apart. Sergeant Bill, it turned out, was no federal agent, but Bill Jakob, an unemployed former trucking company owner, former security guard, former wedding minister and former small-town cop from 35 kilometres down the road.

At first, I was thinking this is not the local police's fault - it sounds like this guy was pretty convincing. But after thinking about it, how could they not know? They didn't once check up on this guy? According to the article above, he used to work as a police officer 22 miles down the road and yet no-one knew him? The town officials and police are going to have a hard time selling that there was not something more going on here.

CBS news video

Assistant Solicitor Jay Hodge (Hodge was the 4th Circuit Solicitor before stepping down this term and was replaced by Will Roger) has resigned as the FBI investigates his office. Although details are hazy, it appears that subpoenas have been issued to the 4th Circuit Solicitor's Office and for the financial records of Mercy Ministries, a non profit organization for victims of domestic violence. Hodge and two solicitor's office employees served on Mercy Ministries' board of directors.

Fitsnews is reporting allegations of misappropriations of funds and labor at the 4th Circuit Solicitor's Office, Mercy Ministries, and the 4th Circuit drug court program:

The alleged misappropriation of public funds the subpoenas are said to be investigating stems from Solicitor’s office money (specifically monies from Drug Court and Pre-Trial Intervention programs) and Mercy Ministries money being used to pay for improvements to personal property and rental properties, as well as the co-mingling of public funds with personal bank accounts.

Drug Court clients have allegedly done work at the home of the former solicitor and another employee, with one of these providers claiming that they were told to say that any work they did was on state property.

Also being investigated are accusations of forced campaigning during the recent solicitor’s office race.

Specifically, at least one employee is alleged to have been fired from the Fourth Circuit office as a direct result of refusing to campaign, while other employees tell FITS they were “strongly encouraged” to campaign on weekends and during the work week.

They are also reporting that SLED and S.C. Attorney General Henry McMaster were informed of the allegations years ago and refused to investigate.

In State v. Lawton, the S.C. Court of Appeals reversed the defendant's conviction because, wait for it . . . the prosecutor withheld Rule 5 material. (**cheers loudly**) The prosecutor used a surprise letter written from the defendant to his wife to impeach him when he testified - the state argued, and the trial judge agreed, that it was not relevant but was a "collateral matter having to do with the credibility of the witness," and therefore the state was not required to disclose it under Rule 5.

Under Rule 5, the prosecution must disclose 1) any relevant written or recorded statements of the defendant; and 2) any oral statements the prosecution intends to offer into evidence made by the defendant in response to questioning. The Court of Appeals held that the letter was a relevant written statement, and that Lawton suffered prejudice from the non-disclosure as it would have impacted his decision as to whether to take the stand:

The circuit court stated that the letter involved the credibility of Lawton, which was merely a collateral issue in the case and therefore not relevant within the meaning of Subsection (a)(1)(A) of Rule 5. While the court was correct that the letter impacted on Lawton's credibility, we disagree that it was not “relevant.” According to Webster's Dictionary, the meaning of “relevant” is “having a significant and demonstrable bearing on the matter at hand."[6] The circuit court utilized the following definition of relevance contained in Rule 401: “evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, SCRE. Under either definition, we believe the letter in question was clearly relevant and should have been provided by the State in response to Lawton's Rule 5 request.

Moreover, Lawton was prejudiced by the State's failure to turn over the letter before trial. Disclosure of the letter was clearly material to the preparation of Lawton's defense because it likely would have affected his decision to testify, a fundamental right. See Seabrook Island Prop. Owners' Ass'n v. Berger, 365 S.C. 234, 243, 616 S.E.2d 431, 436 (Ct. App. 2005) (stating the right to testify in criminal proceeding is essential to due process, and is a fundamental right). There is a reasonable probability Lawton would not have testified had he known the State possessed such strong impeachment evidence. The State's strategy in failing to disclose the letter and instead surprising Lawton with it during cross-examination clearly prejudiced Lawton.

In State v. Mitchell, the S.C. Supreme Court affirmed the conviction of the defendant for armed robbery based on the "continuous offense theory":

This theory “provides that [a robbery] has occurred ‘not only if the perpetrator uses force or intimidation to take possession of the property, but also if force or intimidation is used to retain possession immediately after the taking, or to carry away the property, or to facilitate escape.”[2] Id. (quoting State v. Meyers, 620 So.2d 1160, 1163 (La. 1993)). As articulated by the court of appeals, the theory supports the proposition that “a ‘taking’ is not complete – that is to say, has not come to an end – until the perpetrator has neutralized any immediate interference with his or her possession.” Id. at 480, 649 S.E.2d at 90.

Basically, Mitchell stole some chewing tobacco and was accosted by a store employee at the exit where Mitchell then threatened the employee with a pocket knife. Mitchell's argument was that, because he had already completed the larceny of the chewing tobacco, he should have been charged with assault with intent to kill for brandishing the knife (which carries 20 years), instead of armed robbery (for which he received 20 years).

Catching up on some light reading from the last couple of months of S.C. opinions: In State v. Woods, the defendant was charged with first degree burglary, first degree criminal sexual conduct (rape) and murder of a school teacher. When the case came to trial, the prosecutor agreed that pre-trial publicity and the fact that the victim was well known in the community would prevent a fair trial, and consented to a change of venue - they drew a jury from Marion County instead of Clarendon County, and transported them to Manning, S.C. for the trial, which resulted in a hung jury.

When the case was retried, the prosecutor decided a change of venue was no longer necessary, the trial judge denied the defense's motion for change of venue, and the defendant was convicted on all counts and sentenced to death.

The general rule is that where a case results in a mistrial the slate is wiped clean and the first trial is a nullity. The Court did not address the question of how there was grounds for a change of venue the first time and not the second - if the first trial is a "nullity," that doesn't change the composition of the potential jury pool in a small town in rural South Carolina. But, the bottom line is that the prosecutor consented the first time. There is no way to determine whether the change of venue would have been granted otherwise, and it is extremely rare for a trial judge to grant one.

H/T A public defender

Attorney Regina Criswell was arrested at the Bexar County Courthouse after deputies say they discovered two ounces of marijuana and a chrome-colored marijuana pipe in her bag.

Deputies say Criswell was heading into the Courthouse to go to work. As is standard, security guards went through everyone's bags including Criswell's. That's when they say they found the baggie and pipe. Deputies were called over, and questioned Criswell. The 50 year old woman admitted she knew the drugs were in her bag, but said they belonged to a client.

I'm speechless. I had a client once who set off the metal detector in the courthouse with meth wrapped in tin foil. But an attorney? Two ounces is a pretty big sack, and the lawyer knew that the deputies searched people as they came in. There must be more to this story.

A note on constructive possession - "I knew the drugs were there but they belonged to my client" is not going to work. "Oh my god I had no idea those were there, they must belong to my client" might have worked. Either way her client is not happy with her.

Mexican authorities have detained a prison governor and some 40 guards after an armed gang managed to free 53 inmates from a jail in central Mexico.

I usually don't get involved in this type of discussion, but I think it is healthy for attorneys to debate the topic. I discuss fee setting with some local attorneys, and have a general feel for how different attorneys do it and what their reasons are.

Remy Orozco at Hostis Civitas began the discussion with his post titled "How to Hire a Gun Slinger," where he discusses his take on what a criminal defendant should look for when hiring an attorney. This is an oft-blogged-about topic, but what sparked interest this time was Remy's practice of charging "split fees" based on whether a case is a guilty plea or a trial.

(For what it's worth, Scott Greenfield at Simple Justice replied to Remy, taking an entire page with 9 paragraphs to tell us that he's discussed this before and if we are curious as to his opinion we can scroll back through his blog posts and discover the answer.)

Mark Bennett discusses the pros and cons of charging split fees, and advises that a flat fee is the best policy in the jurisdictions that permit it - gunfighters don't charge by the bullet. Remy points out in a comment to Bennett's post that often clients will come to him because they cannot afford to pay a large fee for a defense attorney - this is providing a service for those clients who do not want a trial.

Bennett responds with tips on what he advises his clients when they come to him looking for a quick plea - you cannot know the strength of the state's case until your attorney sees the evidence, talks to the prosecutor, interviews the witnesses, etc. You may not have to plead guilty - if you do plead guilty, your plea deal may be better than you thought once your case has been vetted by a defense attorney.

No-one is wrong, and no-one is completely right. Different attorneys have different methods of determining what their fees are and how to collect them. The most common schemes that I have seen are:

Split fees - Remy's version, where the attorney quotes a fee that covers everything in the case assuming that the result is a guilty plea. A second fee will have to be paid if your case goes to trial. This fee arrangement is ethical per the rules of professional conduct, at least in South Carolina, but it is nevertheless a minefield of potential ethical dilemmas. I have seen lawyers tell their client that they must plead guilty if they do not have the money to pay an additional fee for trial. When the client wants to go to trial, but cannot pay the additional fee to their attorney, there is an immediate conflict of interest that is noone's fault except the attorney's - he or she knew that this was a possibility when they accepted a partial fee at the beginning of the case.

Another issue in my opinion is that if you are charging for a guilty plea only, you are not doing the preparation that is necessary for trial. If you are not doing trial preparation, interviewing witnesses, researching law, and otherwise investigating the client's case, you are likely not going to obtain any better plea offer than the client could have achieved without an attorney. If you are preparing the case for trial and doing an adequate investigation, then the only thing left to pay for if the case goes to trial is however many days in court it takes for the trial - the work is done.

In short, "split fee agreement" is a euphemism for saying that you are paying for a guilty plea.

The large down-payment - many attorneys will calculate what they need to accept a case, double that amount and quote the higher fee to the client, and then tell the client they will accept one-half as a down-payment. The remainder can be paid in installments or in one lump sum at a later date. This is not a bad business strategy, as the attorney is compensated for his or her work and then everything else that is paid is extra, but it is obviously not good for the client. A problem arises with this plan when the attorney gets angry when the extra fee is not paid and a conflict arises.

The payment plan - some attorneys will calculate their fee and then allow the client to make payments on a weekly or monthly basis. The problems here should be obvious - when the client does not make the payments, the attorney has the choice of remaining on the case and working for free or getting relieved from the case, leaving the client where they started. Although there are times when this arrangement does work out, I have two observations - 1) the client has money problems. If they did not, they would not be retaining a lawyer on a payment plan; and 2) the defense attorney that consistently accepts cases with a payment plan may be hard up for clients and needs the money, which may not be a good sign as to the quality of representation they are providing.

The hourly rate - if an attorney is quoting an hourly rate for your criminal case, you are probably talking with a civil attorney and you should backpedal and go look for a criminal defense lawyer (I know there are exceptions but they are rare)

The flat fee collected up front - this is how we do it at my office. It is what works best for me and for my clients, and I understand that other lawyers have good reasons to do it differently. After discussing the case with you and getting an idea of what will go into your defense, I will quote a flat fee that will cover your attorney fees from start to finish. That fee does not include expert witnesses or a private investigator, and there are cases where I insist that either or both be retained if I accept the case.

How do I determine the amount of the fee? Mark Bennett in his infinite wisdom and way with words summarized it perfectly in an equation:

If under a split-fee arrangement the client would pay $X for the case until it is set for trial and $Y when it is set for trial, the equivalent flat fee would not be $X+Y but $X+tY, where t is the likelihood that the case will be tried. The lawyer guesstimates t from her experience with similar cases and similar clients; t is never more than 1 and in fact is almost always less than 1. If the lawyer thinks that the case has a very small chance of going to trial, then the flat fee will be very close to X.

The reasons I insist on flat fees and payment up front:

Because if I am not preparing my client's case for trial they are not getting the best representation I can give them.

Because in the past when I have accepted payments from clients it is a crap shoot as to whether they pay or not, and even when they do pay it is a headache that I don't want to deal with.

Because if I have to choose between working for free and getting relieved from a client's case, I will probably end up working for free - and with few exceptions, I can't afford to work for free.

And because I think honesty is the most important consideration in my dealings with my clients, and it begins the first time I speak with them on the telephone and in our initial interview. I quote the fee that I think is appropriate for the case, not the fee that I think is appropriate plus some extra, and not the fee that I think is the most I can squeeze out of a client. And I don't quote a fee for a guilty plea, because I am not being hired to do a guilty plea - I get this out of the way with my clients during our initial interview as well.

There are defendants who call, or even who come to an initial interview, and tell me that what they want is a quick guilty plea, or that they only want the best plea possible. Unlike Bennett, I don't usually take the time to explain to these people why that is not in their best interest - if someone wants only a guilty plea they do not need to hire me. There are other attorneys who charge less money to just do a guilty plea (and some who charge the same or more), and I advise that client to contact someone else. This doesn't mean that my cases never result in a plea agreement - the decision is the client's to make, an informed decision with my advice based on the strength and weaknesses of our case, but never based on whether or not a client owes me money.

In sum, from Remy and Bennett:

Remy writes, “When your life and freedom are on the line you should not be looking for a lawyer who is going to charge you by the bullet.” He’s right. Don’t look to save time or money. Don’t look for a lawyer who is going to come back to the well for more money later on. Find a lawyer whom you trust to charge you a fair fee now, then put the money out of mind and get the job done.

Yesterday, the New York Court of Appeals (equivalent to most states' supreme courts) released People v. Weaver, which held that police cannot place a GPS tracking device on a car without first obtaining a warrant. They based their decision on the N.Y. Constitution's right to privacy, noting that there is no settled law in the federal courts on this issue. (see also Fourth Amendment.com and Simple Justice)

Ordinarily, I don't spend time reading opinions from other states' courts, but this case is very well written (prescient, according to John Wesley Hall) and it tackles an important issue that will appear with more frequency across the country. Greenfield says that every N.Y. criminal defense lawyer should read it - I think that every defense attorney and anyone concerned with privacy rights should read the opinion.

Police placed a GPS tracking device on Weaver's van and monitored his movements for 65 days, without first obtaining a warrant and without providing a reason for the observation to the court. The GPS data was later introduced at Weaver's trial for burglary to show that his van was at the scene of the crime and Weaver was convicted. In holding that this evidence should have been excluded, the N.Y. Court of Appeals gives a brief history of privacy rights and the Fourth Amendment, under the federal and state constitutions:

The Fourth Amendment, read literally, protects property and for a long time was read to do no more. In Olmstead v United States, 277 US 438 (1928), the Supreme Court, adhering to the notion that a Fourth Amendment infringement was essentially one affecting property,* refused to find that a telephone wiretap was a search within the amendment’s meaning because the wiretap involved no trespass into the houses or offices of the defendants.

Later, in Katz v United States, 389 US 347, 357 (1967), the Supreme Court overruled Olmstead, finding that a wiretap on a telephone booth was an unreasonable invasion of the speaker's privacy and was a "search and seizure" that was covered by the Fourth Amendment. The controlling test is not whether there is a physical trespass, it is whether the defendant had a reasonable expectation of privacy that was infringed upon.

Then, in U.S. v Knotts, 460 US 276 (1983), the Supreme Court held that there was no reasonable expectation of privacy in the movements of an automobile on the public highways (in Knotts, the police used a "beeper" to assist in following the defendant's vehicle from one location to another). The N.Y. Court of Appeals in Weaver correctly points out that technology has advanced to the point where the Supreme Court's analysis in Knotts can no longer be applied:

Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period.

That such a surrogate technological deployment is not -- particularly when placed at the unsupervised discretion of agents of the state "engaged in the often competitive enterprise of ferreting out crime" (Johnson v United States, 333 US 10, 14 [1948]) -- compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need
only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons -- to mention just a few of the highly feasible empirical configurations.

The use of increasingly technologically advanced surveillance technology by law enforcement without judicial oversight is an issue that should concern everyone. The cliche response is "if you aren't doing anything wrong, what are you worried about?", and I think that the N.Y. Court of Appeals answered that question concisely in their opinion. Do you really want police, or anyone for that matter, monitoring your every movement via satellite, recording you on video, or sitting outside your home listening to your private conversations with audio enhancement devices?

I would hope that our federal courts would apply the Fourth Amendment in the same manner as the New York court did here, but if they don't the States can and often do interpret their own constitutions as providing greater protection than the federal constitution. Washington and Oregon have also held that warrantless use of similar tracking devices is in violation of their state constitutions.

New York's constitutional provision that the Court decided this case under, although it addresses "unreasonable interception of telephone and telegraph communications," does not have an express right to privacy written into it:

§12. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

South Carolina's Constitution does, however, and our Supreme Court has held that it does provide greater protection to our residents than the federal constitution:

SECTION 10. Searches and seizures; invasions of privacy.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained. (1970 (56) 2684; 1971 (57) 315.)

As Justice Brandeis stated in his dissent in Olmstead:

[The Founders] conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Jailhouse informants (persons with pending charges who become witnesses for the prosecution):

Texas has a bill pending that would require corroboration before admitting testimony of jailhouse informants. Jailhouse informants, who will say or do anything in exchange for their freedom from a prosecutor, is among the most serious problems in our criminal justice system. So long as we allow prosecutors to obtain convictions based solely on testimony of jailhouse informants there can be no faith in the reliability of our criminal justice system.

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

Confidential informants (generally used in narcotics purchases):

On the east coast, Florida has passed legislation that would limit law enforcement use of confidential informants - the law would require "agencies to take into account a person's age and maturity, emotional state and the level of risk a mission would entail. Police also would be barred from promising an informer more lenient treatment; only prosecutors and judges can do that." The law would also prohibit using any person who is in drug treatment to go on undercover drug buys.

The Florida law covers the most troubling aspects of law enforcement's use of undercover informants. Often police will make promises that they know they cannot keep - no one can promise a defendant anything in regard to their case except the prosecutor. Narcotics officers will try to get to the defendant before they have a chance to speak with an attorney, and sometimes warn them not to talk with an attorney, to keep them in the dark about what their legal options really are. Often a person will be promised probation if they work with narcs, they will strap on a wire and make buys for the narcs, only to later discover that if they had refused to talk to the police and retained an attorney they would have likely received a probationary sentence anyway.

If a person is trying to get clean or stay clean, they cannot repeatedly go into houses and make drug deals - sooner or later they will use and their recovery will be blown to bits. Many narcotics officers do not care if you stay clean or not - you are a tool that they use to do their job for them. Many narcotics officers do not care that you are placing yourself in danger - again, you are a tool that they require to make drug arrests. Rachel Hoffman's death in Florida, although tragic, was representative of the ethics problems that narcotics officers often ignore in their work and thankfully brought national attention to the problem.

Myrtle Beach police intend to harass motorcyclists at the following locations/dates/times:

May, 12, from 12:00 p.m. to 2:00 p.m. on Ocean Blvd. (between 8th and 9th N), May 14, 10:00 a.m. to 12:00 p.m. on Farrow Parkway at Warbird Park and 10:00 a.m. to 12:00 p.m. on US 501 and Hwy 17 Bypass (eastbound), May 15, 1:00 p.m. to 3:00 p.m. on US 501 and Hwy 17 Bypass (eastbound).

During the Memorial Weekend Bikefest, check points are scheduled May, 21, from 12:00 p.m. to 2:00 p.m. on Ocean Blvd (between 8th and 9th N), May, 22, from 10:00 to 12:00 p.m. on Farrow Parkway at Warbird Park, May 23 from 10:00 a.m. to 12:00 p.m. on US 501 & 17 Bypass (eastbound) and May 24 from 1:00 p.m. to 3:00 p.m.on US 501 & 17 Bypass (eastbound).

One of four lawsuits that have been filed against the City of Myrtle Beach is set to be heard by the South Carolina Supreme Court, provided that they accept the case. The South Carolina Constitution has a provision that the Court has held in several cases prohibits local municipalities from criminalizing conduct which is not already criminal under state law, to achieve uniformity in the criminal laws across the state. South Carolina does not require motorcyclists to wear a helmet if they are over the age of 21, which means that Myrtle Beach does not have the authority to criminalize riding without a helmet for those over the age of 21.

Another constitutional issue was the formation of a new administrative court to hear the violations, which would have created a new "tier" of courts not authorized by our State Constitution. Myrtle Beach has sidestepped this issue by scrapping the administrative court idea and sending the tickets to the municipal court instead.

BOOST attorney Thad Viers, who also represents the area in the state legislature, said in the release that he and the group are pleased the city agreed to go straight to the Supreme Court, because it will save taxpayer money. He also said he hopes it will lead to a swift resolution.

The business owners' group said it thinks the city has broken the law by requiring motorcycle riders to wear helmets when the state does not, at least for those 21 and older.

The city passed a series of ordinances and amendments last fall, including the helmet rule, that will affect those heading into town this month for the Harley-Davidson Spring Cruising the Coast Rally and the Atlantic Beach Bikefest. In years past, those rallies have drawn an estimated 500,000 people to the Grand Strand.

Hotel owners report that Hotel reservations in the city are down (note that many bikers who are coming to the rally have vowed not to spend a dime in the City of Myrtle Beach). Vendors are setting up at Suck Bang and Blow south of Myrtle Beach and at Barefoot Landing in North Myrtle Beach.

Myrtle Beach city council has failed in their attempt to run bikers out of town and cancel the May rallies. First they attempted to run off the black bikers at Atlantic Beach Bikefest - "In 2005, a federal judge ruled that Myrtle Beach had discriminated against black bikers by changing traffic patterns for their rally but not for the Harley-Davidson rally."

Then they tried a different, all-inclusive approach by passing numerous unconstitutional ordinances aimed at harassing motorcyclists and businesses who supported them. So far, four lawsuits have been filed against the city, none of which will be resolved by the end of May. The Carolina Harley Davidson Dealer's Association has folded up by itself and moved its events to New Bern, N.C., 170 miles away from the Grand Strand, but by all accounts all others are still heading to Myrtle Beach and the surrounding area.

Related posts:
Chief Justice warns that ordinances aimed at bikers are unconstitutional
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

A report released last Tuesday by the National Association of Criminal Defense Lawyers (NACDL) provides an in-depth examination of the state of misdemeanor courts across the country and particularly the denial of defendants' Sixth Amendment right to counsel in these courts. It is long but it is worth reading by anyone with an interest in criminal law, and hopefully it will find its way to the right lawmakers and judges.

In Argersinger v. Hamlin, in 1972, the United States Supreme Court held that defense counsel must be appointed in any criminal prosecution, “whether classified as petty, misdemeanor, or felony, that actually leads to imprisonment even for a brief period.” In Scott v. Illinois, in 1979, the Court held that counsel does not have to be appointed if the defendant is fined only, and is not sentenced to jail time. In 2002 in Alabama v. Shelton, the Court reaffirmed the rule that, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense …unless he was represented by counsel at his trial,” holding that even when a defendant receives a sentence of imprisonment suspended to probation, he must be afforded the right to counsel.

The NACDL report spends a lot of time discussing the huge caseloads that are placed on public defenders in these courts, which, coupled with a lack of funding, results in incompetent (and unethical) representation of indigents. While researching for this report, they also discovered that in South Carolina, you do not get an attorney if you are charged in the magistrate or municipal courts - judges and prosecutors will flat-out say, you are not entitled to an attorney and you must represent yourself. In the words of the Chief Justice of our state supreme court, who has instructed our magistrates not to provide counsel to indigents:

Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.

NACDL’s comprehensive examination of misdemeanor courts, including a review of existing studies and materials, site visits in seven states, an internet survey of defenders, two conferences, and a webinar, demonstrated that misdemeanor courts across the country are incapable of providing accused individuals with the due process guaranteed them by the Constitution. As a result, every year literally millions of accused misdemeanants, overwhelmingly those unable to hire private counsel, and disproportionately people of color, are denied their constitutional right to equal justice. And, taxpayers are footing the bill for these gross inefficiencies.

Legal representation for misdemeanants is absent in many cases. When an attorney is provided, crushing workloads often make it impossible for the defender to effectively represent her clients. Counsel is unable to spend adequate time on each of her cases, and often lacks necessary resources, such as access to investigators, experts, and online research tools. These deficiencies force even the most competent and dedicated attorneys to engage in breaches of professional duties. Too often, judges and prosecutors are complicit in these breaches, pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration, all at taxpayer expense.

The recommendations in the report include:

1. Divert misdemeanors that do not impact public safety to penalties that are less costly to taxpayers (we do have some programs in South Carolina courts, such as the alcohol diversion program (ADP), pre-trial intervention (PTI), and conditional discharges for some first time drug offenses, but these programs are often are not taken advantage of if there is no attorney to advise the defendant that they exist);

2. Reduce pressure on defendants to plead guilty, particularly at first appearance (many of our magistrates and municipal court judges place considerable pressure on defendants to plead guilty at their bond hearings, and there is never an offer of counsel for magistrate level offenses or a waiver of counsel; in some City of Myrtle Beach cases, if the defendant does not plead out at the bond hearing, their court date will be set within a day or two which makes it difficult for them to find an attorney to help them);

3. Enforce ethical obligations of all participants in misdemeanor adjudications (it is the ethical duty of prosecutors and judges, not just defense counsel, to ensure that defendants' constitutional rights are protected and that justice is done in the courtroom);

4. Provide counsel for any defendant facing the possibility of incarceration (because the Sixth Amendment and the United States Supreme Court says so?); and

5. Provide public defenders with the resources necessary to effectively represent their clients (or, in South Carolina, we could begin by just providing public defenders in the misdemeanor courts).

Lanny A. Breuer, chief of the Justice Department's criminal division, is asking Congress to equalize penalties for crack and for powder cocaine in the federal sentencing guidelines.

The theory behind the law, that crack — cocaine cooked in baking soda — was more addictive and led to more violent crime was soon proved false. But by then, the country was locked into a policy under which the mainly minority drug users arrested with small amounts of crack were getting harsher sentences than white users caught with far larger amounts of powder.

The United States Sentencing Commission, which sets sentencing guidelines for the federal courts, reports that in 2006, 82 percent of the people convicted under the federal crack statute were black and only 9 percent were white. Many of the people given those harsh sentences were also first-time offenders who could have been rehabilitated through community-based drug treatment programs. In addition to ruining countless young lives, the policy undermined trust and confidence in the criminal justice system.

Congress has repeatedly ignored calls to equalize sentencing, partly because Justice Department officials in previous administrations have argued against it. This week, however, Lanny A. Breuer, the new chief of the Justice Department’s Criminal Division, told lawmakers that it was time to revisit the crack/cocaine disparity.

Justice Souter has announced plans to leave the Supreme Court at the end of the current term, leaving the first vacancy that President Obama will fill. Souter is considered one of the more liberal judges on the bench, and if Obama fills the spot with a liberal pick it likely will not move the Court's decisions to the left but it would rather maintain the status quo.