South Carolina Criminal Defense Blog

As far as I can tell, Charles Dean (Horry County police department) and David Gaither (Myrtle Beach police department) have not been charged with any crime following the incident where they were alleged to have gotten drunk and exposed themselves on the intercoastal waterway in front of multiple witnesses including young children.

Don't get me wrong, I'm generally for less law enforcement, not more. And I could care less if these guys party on the waterway and take their clothes off. Except that they were police officers. And ordinary people are charged with crimes for less shocking allegations with much less evidence. Ordinary people are charged with indecent exposure for urinating behind buildings, with no witnesses. I have seen ordinary people charged with assault because someone says "he/she assaulted me," where there is no corroboration, no marks, no witnesses. Ordinary people are charged with public disorderly conduct or breach of peace for pissing off a police officer, although they have not disturbed any other person around them.

When two police officers, who are held to a higher standard (?), allegedly purposefully expose themselves in front of multiple witnesses in a crowded public place, in front of children, they should be charged and prosecuted like any other person. It may be that there are circumstances that justify not charging these officers - if so, there should be a public explanation because the public has an interest in the matter. It may be that if they are charged, they should complete pre-trial intervention and that jail is not appropriate for what allegedly happened. But when nothing is done with no explanation, the message sent is that the police are not accountable and that they are above the law.

Criminal defense lawyer Robert Simels was found guilty of conspiracy to commit witness tampering.

Texas executes an innocent man, who was convicted based on shoddy forensics and jailhouse snitch testimony.

The Snitching Blog and Grits for Breakfast point out a new ABA ethics opinion on prosecutors' ethical duty to disclose information that is favorable to the defense.

Jesse Edward Yarbrough, a lawyer in Tacoma, Washington, is arrested for allegedly dealing drugs from his home and office.

This morning I argued a motion to compel with a municipal court prosecutor, who informed our judge that Brady does not apply to an internal investigation of officers who beat the crap out of my client. The argument was something like: a) it is not in my file, so I do not have to disclose it; b) I purposefully did not look at it, so I would not have to disclose it; and c) the defense has the burden of proving what it is that is in the file before the prosecutor can be forced to disclose it.

I point out that in Kyles v. Whitley the U.S. Supreme Court is very clear that the prosecutor has a duty to seek out Brady material and disclose it when it is in the possession of a government agency, but the prosecutor argues that there is no such duty. Eventually we discover that the pros. has not read Kyles v. Whitley (probably has not read Brady for that matter). The result of the hearing is that the pros. should read the case and then let our judge know if the judge still needs to review the materials.

Later in the day, I get a phone call (followed by a written motion) from the pros., who says that the officers have their own counsel, and that the officers, because they have counsel, have standing to object to the disclosure of the Brady material. So, we will have another hearing on the matter.

The same prosecutor today, in an unrelated trial, argues that an accident report, which contains statements from a witness who is not present to testify, is admissible because a) it is the officer's observations and therefore it is admissible; and b) because they always admit accident reports in the municipal court.

Later, when I tell the jury in closing that they didn't hear any evidence in this case because the pros. didn't call any witness that actually saw the accident occur, the pros. objects, arguing that he has no burden to call the "victim" as a witness and that, since I have commented on their failure to call his "victim," he should now be allowed to comment on the defendant's failure to testify as well.

I understand that for the layperson, the point of all of this may not be clear. There are some basic rules and principles in criminal law (quite a few, actually), that lawyers are (should be?) taught in law school. Here are some:

1) The prosecution has a duty to disclose exculpatory evidence, including direct evidence of innocence and material that can be used for impeachment purposes at trial. The duty is a legal one and an ethical one. When prosecutors ignore this, or rationalize not disclosing, innocent people get convicted of crimes.

2) Hearsay is inadmissible, with some exceptions that are listed for you in the rules of evidence. Police reports and accident reports, which are based on information provided from people at the scene, are no more admissible than the officer's testimony as to what witnesses told him.

3) The burden of proof is on the prosecution.

4) Just to be clear, the burden of proof is not on the defendant.

If you are going to prosecute (or defend, for that matter) criminal cases, no matter how large or small, at a minimum you should read the seminal cases in your area of law. Please, read Brady.

Read Kyles v. Whitley.

Read Miranda v. Arizona.

Read Crawford v. Washington.

Read the cases that interpret those cases, and yes they keep coming and it will never end. But you are a lawyer, you can do it.

And please, read the rules of criminal procedure and the rules of evidence. Don't make shit up when you are arguing to a judge - they often rely on us to give them the law that applies to a given situation, and therefore they rely on us to be truthful and credible. Thanks.

If I am missing something here, please leave a comment and let me know.

Captain William Frontz of the Myrtle Beach Police Department was charged with drunk driving, careless and reckless driving, and open container in N.C. last Saturday, and refused to take field sobriety tests.

A veteran captain with the Myrtle Beach Police Department is on personal leave following his arrest on a DWI charge in North Carolina, authorities said Monday.

William Edward Frontz, 53, was charged with driving while intoxicated, careless and reckless driving, and an open container violation when he was arrested at 5:40 p.m. Saturday on Interstate 73 near Greensboro, according to the Guilford County Sheriff's Office.

Frontz, the Investigative Division commander for Myrtle Beach police, was off duty at the time of his arrest and is currently on personal leave from the police department, said Capt. David Knipes, police spokesman.

After accepting exclusively criminal defense cases for the past five years, at the urging of friends, colleagues, and clients, I have decided to begin taking select civil cases. I’ve always seen the firm as standing between the incredible power of the government and the ordinary people who come to us for help, but I am beginning to realize that corporate America and the insurance industry is just as capable of destroying lives and families as our government is.

I won’t be accepting every civil case that calls; we will be screening them carefully. I’m looking for cases that I am comfortable with, that are interesting to me, where there is a legitimate claim, and that we can take to a jury. At least right now, I won’t be taking worker’s comp cases or anything that involves an administrative claim. I am interested in cases that we can try to a jury.

I'll be updating our website in the next week or two to reflect this, and the name of the firm. I thought about the name of this blog, and whether I should change it or begin a new blog. I haven’t made a firm decision on this yet, but for now I am leaving it the way it is. Most of the issues I blog about will still be related to criminal law, and I’m not interested in maintaining two blogs.

Any thoughts?

In law school, lawyers-to-be are taught to think rationally, to analyze issues, to brief cases, to present cases logically. We are taught to live and to practice law almost exclusively with the "left brain" functions (logical, analytical, sequential, objective), and the "right brain" functions (intuitive, subjective, creative) wither and die for many of us. Juries are not won over by logic; they are won over by emotion. We need to nurture the "right brain" and we need to apply it in our cases and our presentations to the jury. Juries do not like "lawyers" - they need to see us as real people, and they need to see our clients as real people and hear our client's story if they are going to help our clients.

In the past, I've been an amateur artist and musician, and those qualities fell by the wayside as I buried myself in the practice of law. One thing that I took away from the TLC is a renewed love for art and the ability to create it. I believe that singing and writing music, painting, and reading and writing poetry allows us to fully live, and ultimately makes us better advocates in the courtroom.

I've been back from Trial Lawyers College for a couple of weeks, and more or less back into the swing of things around the office. A few people have asked me to write about the experience at the ranch, but it is hard to sum up. I will try to incorporate TLC methods into blog posts as I'm going to try and incorporate them into my practice and life in general, and I'm happy to talk with anyone about it. I can say that it was an amazing experience, that I will probably be processing what I learned for months to come, and that I would like to stay as involved as I can with the College in the future, with Regionals, the grad program, and anything else that I can be a part of.

Business as usual is not really business as usual. We are making changes around the office, in how we prepare for trial, in the type of cases we are going to accept in the future, and, speaking for myself, in my approach to the practice of law in general.

I'm a bit late with this story, but last month Charles Dean of the Horry County Police Department and David Gaither of the Myrtle Beach Police Department lost their jobs over an incident where they were accused of getting drunk and exposing themselves on the waterway. Apparently, Dean resigned and Gaither was fired. I don't know if they've been charged - the county website is down at the moment, but I'll check later.

Norman Balderson says, “Two of the guys on their boat took their bathing suits off and went out in the intercoastal waterway naked and they kept doing it. As a matter of fact, one of them came out shaking his privates at our boat which included our children.”

“My seven-year-old come up to me and said ‘hey I saw his privates.’ We hollered at them they need to knock it off. There’s children over here,” said Sarah Delossantos.

James Styron also witnessed the incident. “I saw them take their bathing suits off and wave them. A pair of black bathing suits go through the air. Some of them were wearing their girlfriend’s tops,” said Styron.

Dean was the subject of controversy earlier in the year when he severely beat a man who had taken his taser:

On May 18, a video from an officer's dashboard-mounted camera shows Dean punching Krishmer Shamar Bessent, 30, several times in the face and kicking him once in the abdomen, just minutes after the man had taken the officer's Taser and fired it. An internal investigation cleared Dean of wrongdoing.

Fifteenth Circuit Solicitor Greg Hembree's office says the prosecutor recently received an award from the Association of Government Attorneys in Capital Litigation at the group's annual meeting in Miami.

Hembree was recognized for his prosecution of several high-profile death penalty cases, including the conviction of Stephen Stanko.