South Carolina Criminal Defense Blog

I would have thought that the error of this was self evident, but apparently many states, including Massachusetts, have held that it was not a violation of the Confrontation Clause to allow affidavits of chemists in lieu of live testimony at trial, to prove that a substance is an illegal drug. The Sixth Amendment's Confrontation Clause gives us the right to confront the witnesses against us, in the form of a meaningful cross-examination, and Crawford v. Washington, in 2004, expressly ruled that hearsay in the form of testimonial statements, such as affidavits, does not satisfy the Constitution.

In Melendez-Diaz, released today by the United States Supreme Court, the Court held that affidavits of chemists as to weight and analysis of a drug, admitted in court without the live testimony of the analyst, violate the Sixth Amendment as well:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51–52 (internal quotation marks and citations omitted). . . .

In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’” the analysts at trial. Crawford, supra, at 54.

The Court rejected the State's argument that the analysts are not "conventional" witnesses and that their statements (the affidavits) were not provided in response to interrogation, holding that it does not matter whether the witness makes their out-of-court statement in response to interrogation or whether the witness volunteers their testimony - the witness who volunteers his testimony is no less a witness against the defendant than a witness who is responding to interrogation.

The Court also rejected the argument that chemists' affidavits should be admitted because they were more reliable than other types of hearsay, pointing out that this was the very rule in Ohio v. Roberts (that evidence with particularized guarantees of trustworthiness was admissible notwithstanding the Confrontation Clause), which was overturned in Crawford:

[The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” 541 U. S., at 61–62.

One thing that may make Melendez-Diaz a landmark case in coming years is that the Court expressly recognizes the growing acknowledgment of the unreliability of much of the scientific testing that has been accepted in the courts until this point, a fact that other courts across the country have begun to recognize in recent years. And the Court goes even further, to recognize the fact that analysts who work for law enforcement can and do manufacture evidence at times:

Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency. . . .”

. . . And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at S–17. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.

Another argument rejected by the Court was that if the Court did not allow the use of chemist affidavits, the system would be overwhelmed - to expect prosecutors to bring chemists to testify in every case where a defendant demanded live testimony would burden the system to the breaking point:

Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the “‘necessities of trial and the adversary process.’” Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.

If only the Court held the rest of the Constitution, like the Fourth Amendment, in such high regard. But - I am not complaining. To me this decision seemed like it should have been obvious, yet we were all holding our breath to see what our high court did with it. I am impressed.

Client etiquette should dictate some form of gratitude, or at least civility, following the dismissal of your case. As much as I am used to the varying degrees of reactions from clients following nothing short of a complete victory, it still rubs me the wrong way when a client or their family attack me in a negative way after I've just gotten their case dismissed.

At one extreme is the client who is ecstatic. Their tense, frightening trip through the South Carolina justice system has come to an end, they have won without ever having to pick a jury, they hug myself or other staff from my office, and within a week I receive a thank you card that brings tears to my eyes.

At the other extreme is the client who, upon hearing that their case has been dismissed, immediately finds something to blame on the attorney and begins heaping abuse on us. For example, I inform my client and his family that the client's case will be dismissed within a short period of time, however we are only waiting for the paperwork from the prosecutor to make it official. We have prepared the case for trial, we have interviewed witnesses, we have prepared a pre-trial motion that will win if we ever see the inside of a courtroom in this case. I have spoken to the prosecutor and he/she realizes that this is not the best case for the state and, as is sometimes the case, it is the right thing to dismiss this particular charge.

I am told by the family that if I don't get them paperwork right away the client will lose a valuable job prospect. I let them know I have spoken to the prosecutor about it and will get them the paperwork as soon as possible. They continue to call, and I in turn continue to ask the prosecutor, needing a disposition sheet. Finally I get a call from client's mom informing me that my client has lost his job because I did not get the case dismissed fast enough.

There will be other job opportunities. In the meantime, your son is not going to jail and does not have to suffer the uncertainties and fear of a trial by jury. His record is clean. A simple thank you would have sufficed.

When a client is looking for either a dismissal or a jury trial, it will take time. In my initial consultation with any client, I am upfront and honest about how long any given case could take before it comes to trial and I never tell a client that they will get a speedy disposition. In Myrtle Beach city court, for example, it can take over a year for a simple misdemeanor case to come to trial. In the magistrate courts, six months is average and in general sessions two years or more is not unusual. If we have a case that should be dismissed, that does not mean that it will and if it is, it is not likely to happen until it is close to the time in which the case would have gone to trial. Regardless of the merits of our defense, we have to be prepared and you have to be willing to take the case to trial because, unless the injustice of an arrest is clear, the prosecutor has no obligation to dismiss your case.

I'm really not so bitter about the few clients who are not grateful for the work that we do for them, although I do need to vent once in a while. I do what I do because I love what I do, and, although I appreciate it, I don't need thanks to continue doing my best. And, while many defense attorneys complain about how this is a thankless job, I truly have found that I am thanked constantly by my clients and their families.

The Loeben prison in Austria is an experiment in corrections that deserves attention. It is a prison, with barbed wire and locked gates like any other, full of criminals who are serving time, and yet within are painted walls, rooms with kitchens and balconies, all of the amenities of home. Beneath the concrete on the razor wire in the yard is carved "a line from the International Covenant on Civil and Political Rights (which the United States signed and ratified) that reads: 'All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.'"

Everybody says this, or something like it: I guess crime does pay, after all. Or, That’s bigger than my apartment. (New Yorkers, in particular, tend to take this route.) Or, Maybe I should move to Austria and rob a couple of banks. It’s a reflex, and perfectly understandable, though it’s also foolish and untrue — about as sensible as looking at a new hospital wing and saying, Gee, I wish I had cancer.

Contrast this with a recent news story of a woman's death in Arizona, where she was placed in an outside holding pen with a chain-link-fence-roof in 108 degree heat. She was charged with prostitution, and received a death sentence.

In the United States, which has the highest incarceration rate of any country in the world, we do not coddle criminals. Our jails and prisons are designed to make their inhabitants suffer and there is no question about it. Inmates in our local jail in Horry County sleep sometimes 8 to a cell, on the floor with a thin mattress. In our jails and prisons you will not see private toilets or showers, and the motif is steel bars and concrete blocks. Spider bites and resulting infections have been a problem in several South Carolina jails. Treating inmates with dignity is not an objective of most guards.

Some will say that the purpose for the abysmal conditions of our jails and prisons is deterrence - certainly, people do not want to go to them, therefore they will be less likely to commit crimes, right? Except this reasoning makes no logical sense - most people who commit crimes are not stopping to consider the consequences at the moment the crime is committed. Most crimes are not planned with careful forethought. As noted in the above article, crimes are committed most often 1) by persons in the heat of the moment who do not and perhaps cannot stop to consider the consequences; and 2) by persons who, even if they do stop and consider, do not care what the consequence may be.

Forcing convicted criminals to live in squalor, to suffer daily, and treating them like animals does not encourage them to live a better life when they are released from prison. It hardens a person, it can change a person, and, rather than decreasing recidivism, it encourages recidivism because once the person is released this is all that they know and what they are used to.

Is it possible that the punishment that is meted out in our prisons and the demeaning attitude of many guards is the result of a desire to be cruel to people? By nature, many people have a piece of themselves that is cruel and that enjoys hurting others - it is not only criminals with this trait, but politicians, prosecutors, attorneys, police, mothers, school teachers, and prison guards. Is it possible that, like some criminals, some people in positions of power enjoy hurting others, but they have learned how to do it legally?

If our current system of punishment does not have any measurable effect on deterrence or recidivism, why do we continue to build more prisons and do more of the same?

It seems like an awful lot of news stories have cropped up lately regarding judges around the country getting arrested, getting impeached, or just generally not acting very judge-like:

Judge Woody Ray Densen in Harris County, Texas, was indicted for allegedly keying his neighbor's SUV over a parking dispute (captured on camera).

Which reminds me of a South Carolina magistrate who resigned recently after being charged with a similar incident involving car keys and pouring "a liquid substance on the seat and floor." As a side note, this particular magistrate I have appeared in front of and found her to be exceedingly fair and a nice person besides. This was a loss for Oconee County, S.C.

U.S. District Judge Samuel Kent began his 33 month sentence on Monday, and was impeached today by the House of Representatives. Kent pled guilty to one count of obstruction of justice in exchange for the dismissal of five other charges stemming from accusations "of abusing his power as a judge by sexually assaulting two female court employees as well as lying about his conduct to a judicial inquiry, the FBI and the Justice Department."

Pennsylvania lawyer Robert J. Powell has agreed to plead guilty to felony charges stemming from his part in helping judges cover up kickbacks that they received in exchange for sending juvenile defendants to a detention center that was partially owned by Powell. "Powell admits that he created false records to help Ciavarella and former judge Michael J. Conahan hide their income. The Inquirer also reports that Powell admits to paying cash to Conahan."

Prosecutors in Oklahoma have agreed to dismiss indecent exposure charges against Tulsa County Judge Jesse Harris, in exchange for his completion of a judicial counseling program and a deferred prosecution agreement on the lesser charge of gross injury of the public peace.

Baltimore Circuit Judge Alfred Nance ordered a courtroom spectator to spend 10 days in jail after she yelled "love you" to her brother before leaving the courtroom. He apparently reversed his decision 30 minutes later after being called down by a public defender with a conscience.

The United States Supreme Court released two criminal law opinions today. The first, (from the syllabus) Osbourne, holds that there is no due process right to access DNA for testing post-conviction. The Court does not answer the question of whether there is a federal right to be released upon proof of actual innocence, and says that even if there were such a right the denial of access to DNA evidence would not be a violation of fundamental fairness - it is more appropriate for the individual states' legislatures to define the parameters of access to DNA (even if they don't provide access).

Yeager v. U.S. revisits Ashe v. Swenson, re-affirming that issue-preclusion will prevent the government from re-litigating any issue that was necessarily decided by a jury's acquittal in a prior trial. Yeager was acquitted of charges of securities and wire fraud related to the Enron fiasco, but the jury could not reach a verdict on charges of insider trading and money laundering. Relying on the lower court's finding that the acquittal did involve a finding that Yeager did not have inside information which was an element of the acquitted charge as well as the remaining charges, the Court held that the government is precluded from re-trying the remaining counts - an "apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts [does not affect] the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment."

On June 2nd, a bill was signed into law that will stop the solicitor's offices from charging a fee to expunge records where the person was found not guilty or where the charges were dismissed. The "administrative fee" for all other expungements will increase to $250, however.

Section 17-22-940. (A) In exchange for an expungement service that is provided by the solicitor's office, the applicant is responsible for payment to the solicitor's office of an administrative fee in the amount of two hundred fifty dollars per individual order, which must be retained by that office and used to defray the costs associated with the expungement process, except as provided in subsection (B). The two hundred fifty dollar fee is nonrefundable, regardless of whether the offense is later determined to be statutorily ineligible for expungement or the solicitor or his designee does not consent to the expungement.

(B) Any person who applies to the solicitor's office for an expungement of general sessions charges pursuant to Section 17-1-40 is exempt from paying the administrative fee, unless the charge that is the subject of the expungement request was dismissed, discharged, or nolle prossed as part of a plea arrangement under which the defendant pled guilty and was sentenced on other charges.

Even more importantly, this bill decreases the time limit for an expungement under the Youthful Offender Act from 15 years to 5 years.

The S.C. Supreme Court has agreed to hear arguments on the (un)constitutionality of Myrtle Beach's helmet law, one of a handful of new ordinances passed with the goal of shutting down the May bike rallies on the grand strand. The Court will consolidate the complaint filed by Business Owners Organized to Support Tourism (BOOST) and the cases of nearly 50 motorcycle riders who were ticketed during a protest ride earlier this year.

There is no date set as of yet for arguments, but it could be as early as this fall.

The Myrtle Beach Sun News and the Charlotte Observer have picked up the investigation, although they have nothing new to report:

The FBI is investigating former S.C. prosecutor Jay Hodge following allegations about financial improprieties during his time in office.

Before retiring in January, Hodge, 59, served for 12 years as the elected solicitor of the 4th Judicial Circuit, which covers four mostly rural counties southeast of Charlotte, N.C., - Chesterfield, Darlington, Dillon and Marlboro.

"Allegations came in from that community regarding Mr. Hodge and financial matters within the office during his tenure as solicitor," said Kevin McDonald, first Assistant U.S. Attorney for South Carolina. "And the FBI is following up on the allegations."