South Carolina Criminal Defense Blog

From the G-20 protests in Pittsburgh a few days ago, riot police gassing and beating unarmed kids. Why are we so afraid of dissent? From what I understand, the city attempted to shut down the entire downtown area in advance of the summit. During the riot, some of the protesters did break windows and rolled trash bins down the road at the police. Could they have arrested the few that were engaging in vandalism instead of attacking willy-nilly everyone who stepped into the street and random University of Pittsburgh students?

Isn't the anger of the vandals/ self described anarchists fueled by the violence of those in power? I'm wondering if a man can strap on riot-gear, have license to throw tear-gas canisters, carry a stick, and still feel or show compassion for the unarmed children standing in front of him. What about if they are wielding cameras and shouting at him?

CNN reporter tear-gassed:

Trophy - police pose for photo with arrested youth kneeling in front?:
Update: within 24 hours of this post, the following video was removed from Youtube for "terms of use violation." Here's another source:

Update: edited and added new videos, as Youtube has removed some for "terms of use violation." I-Report has more video.

The death penalty phase of the trial of Colin James Broughton, who was charged with murder and armed robbery in Charleston, South Carolina, ended in a mistrial this morning following new revelations that the state had intimidated witnesses in an attempt to influence their testimony:

“That effort to intimidate strikes at the very heart of our legal system,” [Circuit Judge] Nicholson said. “I just don’t think the court can tolerate that, especially in the death-penalty phase.”

Defense attorney Bill McGuire told The Post and Courier on Monday that a Berkeley County jail official had urged guards not to paint too rosy a picture of Broughton on the witness stand.

The alleged intimidation came to light Monday as Nicholson questioned the guards in his chambers, outside the view of the jury. The guards had backed away from their previous comments that Broughton has behaved well inside the jail since his arrest for the 2006 slaying of Shirley Birch

This is the same trial where the original trial judge, Circuit Judge Deadre Jefferson, had ordered defense attorney Beattie Butler to remain mute in the courtroom and not to speak other than to whisper in Bill McGuire's ear; and where McGuire had filed motions alleging that Judge Jefferson, Chief Justice Toal, and Patton Adams had attempted to get McGuire to drop Beattie from the defense team:

Patton Adams, the director of the S.C. Commission on Indigent Defense, asked McGuire to drop his request to add Butler to the defense team.

McGuire said in the pleading that he understood the request was initiated by Jefferson and relayed to Adams through S.C. Supreme Court Justice Jean Toal.

"It was further relayed that failure to waive the issue would anger Judge Jefferson, Jean Toal and the rest of the South Carolina Supreme Court," one of McGuire's pleadings said.

The right result was reached in the case - whether or not you believe in state-sanctioned killings in the name of justice, you have to agree that we should not be putting citizens to death under these circumstances.

The next question is, whether there will be an independent investigation and prosecution of those responsible for instructing the guards not to testify for Broughton. Witness tampering and obstruction of justice are crimes that are prosecuted vigorously, because they interfere with the administration of justice and they undermine the operation of our court system. Will we look the other way when agents of the state are the alleged criminals?

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Of course, the cost is to the taxpayers, not the city government - since the city raised taxes to cover the costs of killing the rallies. So far, according to the Sun News, the cost has risen to $145,000 in legal fees defending the lawsuits brought against the city. I haven't seen any estimate of the income that city's ordinances cost the business owners this year, but I am sure it is substantial.

The city's ordinances, which include a helmet law, were passed in an effort to keep bikers out of Myrtle Beach. Like the inane crackdowns on drinking in Myrtle Beach which have resulted in busloads of high school and college students spending their vacations in a jail cell, the ordinances are designed to mold the beach's image into something more suitable for some. A family vacation spot, possibly suitable for golfers but no parties allowed.

The ordinances are unconstitutional under the South Carolina Constitution for at least two reasons: 1) No municipality can criminalize conduct that is not criminal under state law, which is exactly what Myrtle Beach has done with their helmet law; and 2) the city attempted to create a special court to handle the charges as "infraction" rather than "crimes," but that effort has already been shot down by the Chief Justice, who pointed out that there is no provision in the Constitution for municipalities to create an additional tier of administrative courts.

I'm disappointed at the effort with which some of the cases have been prosecuted - the attorneys for Mike Shank and Harley Davidson of Myrtle Beach have already withdrawn their federal suit, once their request for an injunction was denied in the district court. Don Emery, The Master's Club and Sonny Copeland also filed a suit in federal court but have missed filing deadlines and let the lawsuit founder. "Emery, who is a candidate for Myrtle Beach City Council, said the suit is not a priority right now."

Attorneys Thad Viers and Tim McGrath are now awaiting a decision from the South Carolina Supreme Court as to whether they will hear oral arguments on their challenges to the ordinances.

According to the South Carolina Supreme Court in State v. Odems, it is. Odems was convicted of 1st degree burglary, grand larceny, malicious injury to an electric utility system, and criminal conspiracy, based on his presence in a car with the persons who committed the burglary and the fact that he tried to hide from police with them.

Both the law governing directed verdicts and our standard of review compel this court to consider only whether the State presented sufficient evidence from which a jury could fairly and logically deduce Odems' guilt. South Carolina jurisprudence makes clear flight is at least some evidence of guilt. Combined with Odems' presence in the car with the stolen goods and admitted burglars, Odems' flight was sufficient to constitute substantial circumstantial evidence of all four offenses. Therefore, the trial court did not err in finding the State presented sufficient evidence to send the case to the jury

In South Carolina, evidence of flight is admissible as evidence of guilt, but is it enough standing alone to convict a person? Apparently, the uncontradicted testimony at trial was that Odems asked for a ride at a gas station after the co-defendants committed the robbery. The two co-defendants pled guilty to the crime. The fingerprints taken from the stolen items matched only the co-defendants and not Odems. There were no statements implicating Odems in the burglary.

Although the Court of Appeals cites Odems' presence in the car as additional evidence of guilt, it is not and it could not be. It is well-settled law that mere presence is not evidence of guilt and should not be considered by a jury - it is a standard jury instruction that judges read to the jury at the end of a trial. Which means that the Court of Appeals' holding in this case is that evidence of flight alone is sufficient to go to a jury.

According to the Court of Appeals' reasoning in this case, If I see police and run - which is not in violation of any law in South Carolina by the way - I can then be convicted for whatever crime happens to have occurred nearby or whatever crime that the police happen to be investigating at that moment.

ln Bryant v. State, the S.C. Supreme Court held that three armed robberies committed within a 54 hour period are not "so closely connected in point of time that they may be considered as one offense" for purposes of the life without parole (LWOP) statutes (17-25-45 and 17-25-50). I think that the Court's reading of the statutes is correct.

Crimes that are classified as "serious" come under the "three strikes" law - 3 convictions and you get LWOP. Crimes that are classified as "most serious" come under the "two strikes" law - 2 convictions and you get LWOP.

The original 17-25-45 made sense - it said that a "serious" or "most serious" crime that occurred after a person had previously been sentenced for a "serious" or "most serious" crime would count as their second or third strike. The current version of 17-25-45 requires only that a person be convicted of a "serious" or "most serious" crime before the current conviction/sentence. This creates one way to avoid a LWOP sentence - if you have multiple charges pending, and you plead to them at the same time, they are not considered multiple offenses for purposes of LWOP. But, iIf you plead guilty to one "serious" offense, and then plead guilty a week later to a second "serious" offense, you get LWOP.

17-25-50 provides another way to avoid LWOP, and says that "the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses."

Although Bryant was on a crime spree that seems like it should be considered one event, the armed robberies happened on different days - the SCSCt felt that this did not qualify under 17-25-50. The real problem in Bryant's case is his attorneys. He was charged in three different counties and probably had three different attorneys at the trial level, although I do not know who represented him.

Bryant pled guilty in July, 1997 to the Colleton and Jasper armed robberies and was sentenced to 10 years. If these were the only two armed robberies, they would count as a single conviction under 17-25-45 and not trigger the LWOP statute, because he pled to both at the same time. It was possible to plead to both at the same time because, although they occurred in two separate counties, Colleton and Jasper Counties are both in one judicial circuit, the 14th. But there was the third armed robbery also pending in Orangeburg - in December, 1997 Bryant pled guilty to the third robbery in Orangeburg County, which made him eligible for LWOP (armed robbery is a "most serious" offense and comes under the "two strikes" law), and his attorney did not question the LWOP sentence as he stood next to Bryant in the courtroom.

Why the hell would an attorney plead someone to life in prison without parole in a non-death penalty case? What are they going to do if he goes to trial and loses, sentence him to life and then a little bit more? There was nothing to lose by trying this case, and everything to gain no matter how slim the chance of victory - my opinion is that the attorney who would plead his client to LWOP needs to be in a different profession or at least practicing a different type of law.

The second problem which may not be as obvious is the lack of coordination between the circuits. I would not fault the first attorney who pled two counts of armed robbery to the minimum sentence of 10 years, assuming that the state had a strong case, but ideally all three cases should have been coordinated. The prosecutor must file a notice of intent to seek LWOP, and a non-LWOP sentence potentially could have been negotiated in Orangeburg in consideration of the first plea. My question - did the defense attorney in either location attempt to contact the other defense attorney or prosecutor?

Bryant probably gives a correct reading of the LWOP statutes, but more importantly I think that it gives an excellent example of bad lawyering and how it can cost someone their life.

Merced police taser (twice) Gregory Williams, an unarmed man with no legs in a wheelchair, drag him from the chair, injure his shoulder, and leave him lying on the ground handcuffed with his pants down and genitals showing. He spent six days in jail before being released without criminal charges.

Polk County, Florida cops play bowling game on Wii for hours in suspect's home, recorded on hidden camera. Good advertisement for Wii.

Virginia Beach officer Bryan Womble, who won awards for DUI arrests was convicted of DUI and hit and run himself on Monday.

ER nurse Lisa Hofstra was handcuffed and detained by a police officer when she insisted that she needed to wait until his suspect was admitted to hospital before drawing blood.

Chicago police round up, either they watched the Shield a bit too much or the writers of the Shield were inspired by these guys:

Former police officers Bart Maka, Guadalupe Salinas, Brian Pratscher pleaded guilty to felony theft, and former officer Donovan Markiewicz pleaded guilty to official misconduct, in deals that called for each to be sentenced to six months in jail and various terms of probation in exchange for their cooperation in ongoing state and federal investigations.

The four stood quietly as a prosecutor read a 17-page synopsis of what they admitted to, providing a glimpse into a rogue operation in which officers pulled over motorists without cause, grabbed their keys and stormed into their homes, falsified reports, pocketed huge sums of money and even shook each other down for money.

Five members of the once elite drug and gang unit called the Special Operations Section still face charges, including Jerome Finnigan, who is accused of plotting to hire someone to murder another member of the unit to keep him from talking to the government. Finnigan and the others have pleaded not guilty.

H/T Balko, Greenfield, Draughn.

In 2007, Kevin L. Barron, a federal criminal defense lawyer in Boston, was accused of smuggling 4.8 grams of heroin into a prison for his client. If you read the original article above, there didn't seem to be much doubt he was guilty:

Kevin L. Barron was being searched by corrections officers at about 5 p.m. yesterday before entering MCI-Cedar Junction when the officers found "small packets of a powdery substance" that turned out to be heroin, said Norfolk district attorney's spokesman David Traub.

Except yesterday he was acquitted of the charges, Gwen Foxworth, the mother of an inmate at the prison, has pled guilty to planting the drugs on Barron and her fingerprints were found on the package, and Barron's client who was accused of selling Barron's address to Foxworth has pled guilty to delivering a controlled substance to an inmate.

With this additional information, maybe Barron could have known about the drugs, but we can also clearly understand how he may not have known. Things are rarely as they seem, or how they are portrayed in the soundbites we get from the media. There is always a deeper story.

H/T to John Wesley Hall

Don't check your facebook page while robbing a house. If you do, make sure that you log out before leaving.

MARTINSBURG - The popular online social networking site Facebook helped lead to an alleged burglar's arrest after he stopped check his account on the victim's computer, but forgot to log out before leaving the home with two diamond rings.

Jonathan G. Parker, 19, of Fort Loudoun, Pa., was arraigned Tuesday one count of felony daytime burglary.

Conway Attorney Irby Walker was charged today with trying to hire someone to kill another attorney, according to police.

Walker, 58, was charged with solicitation of a felony after Doug Thornton told police Sept. 11 that Walker had made threats against his life and believed he was trying to follow through on those threats, according to Horry County police Lt. Jamie DeBari.

I don't have much to say about this, but I felt that I needed to post it. The Horry County Bar is medium-sized at best, and most lawyers here know each other, at least in passing. It is difficult to believe that something like this is true, and the public reading the articles on the web or seeing this on the news needs to bear in mind that this attorney, like every other person accused of a crime, is presumed innocent at this point.

In State v. Edwards, the South Carolina Supreme Court reversed the defendants' murder convictions because the trial judge improperly granted the state's reverse Batson motion.

The basic principle of Batson v. Kentucky is that jurors cannot be struck on the basis of race or gender. In criminal trials, some prosecutors will strike every black person who is called if they are allowed to, because 1) the defendant is often a black person; and 2) in general black jurors are considered less friendly to the government. In not-so-far-distant less politically correct times, prosecutors in some areas of the country were openly trained to strike black persons from the jury. So - if it appears that a prosecutor is striking black jurors on the basis of race alone, the defense attorney can challenge those strikes by bringing a Batson motion before the jury is sworn.

Once the jurors are challenged, the burden is on the prosecutor to give a race-neutral reason for striking the juror. Once a race-neutral reason is provided, the burden shifts to the defense to demonstrate that the race-neutral reason is in fact a pretext for striking that juror - for example, the prosecutor's given reason for striking juror 20 is that juror 20 was a schoolteacher, and the prosecutor feels that schoolteachers may have a particular bias against the state in this particular type of case, but the prosecutor seated juror 112 who was also a schoolteacher - this would be evidence that the prosecutor's reason for striking juror 20 was a pretext.

The courts have been fairly lax about what they will allow as a race-neutral reason. In one recent trial, the prosecutor stated that he struck a female black juror because she flipped her hair and looked at him funny. The judge in that trial accepted that was a race neutral reason and allowed the jury panel to stand.

Because Batson is designed to protect the jurors as much as it is to protect the litigants, the prosecution can bring a Batson motion as well. In Edwards, the prosecutor challenged two jurors that the defense struck, and the racially neutral reason given by the defense was that one was a reporter who may have had information on the case and the other was a DMV employee who may work with law enforcement from time to time. The trial judge ruled that these reasons were a pretext (note: this is a pretext, but flipping your hair is not) and quashed the jury (they started over). The trial judge did not require the prosecution to prove pretext.

Pretty much the Supreme Court's holding in this case is: Yes, the prosecutor has to follow the rules also. At least when it is this obvious - employment should always be a race-neutral reason for a strike, absent a showing by the other party of pretext.

Atlantic Beach Mayor Retha Pierce was charged with driving under the influence on Wednesday, the latest in a series of misunderstandings with the law.

In April, Atlantic Beach Police Chief Randy Rizzo says Pierce was arrested on hit and run and failure to provide proof of insurance charges after side swiping a car and driving away.

Prior to the incident, Pierce was arrested in December 2007 on charges of reckless driving and failure to use a proper turn signal, and again in January after an argument with town officials.

Pierce, according to Rizzo, was expected to appear in court in Horry County Wednesday on disorderly conduct and tresspassing charges, stemming from her January arrest.

I'm sure that the Mayor has defenses to this and the other charges, and there is ongoing tension between her and other officials in Atlantic Beach that may explain some of her difficulties - she is innocent until proven guilty and she might be ok if she'd just stop picking up new charges. But . . . Atlantic Beach is a source of never ending amusement and embarrassment for Horry County. Keep 'em comin.

Some police officers respond negatively to anyone who questions their authority, with reactions ranging from rudeness to a wrongful arrest for public disorderly conduct to outright violence. Many cities desperately need to revisit their system of hiring and retaining officers, where police officers in most departments are underpaid and under trained, and the job requirements/benefits are such that it is almost impossible to attract quality help to the job.

Not to detract from the police officers who are doing what they do because it is a calling to protect and serve, who care about what they are doing, and who make sacrifices to work for lower wages so that they can be a police officer - you know who you are and we appreciate you. But let's open our eyes and acknowledge that police abuse and misconduct is real and widespread - the first step in change is acknowledging the existence of the problem.

Via Ken at Popehat, CBS4 in Miami Florida conducted an experiment where they sent a reporter into police stations to ask how to file a complaint against an officer, with mixed results. They recorded the encounters and there are transcripts in the article.

Radley Balko passes along this story about Josh Wexler in New Orleans, who says that he witnessed a police officer run a stop sign and hit a pedestrian, the officer then got out and harassed the pedestrian, then Wexler was threatened with arrest when he attempted to intervene.

Jonathan Turley has an update on Fire Chief Don Payne in Arkansas who was shot in the back after complaining about his speeding ticket in court - although the officers have not been charged and most likely will not be, the chief has been charged with assault.

As Jeff Gamso says: "One of the things we've learned over the years is that when police wrongly abuse people, they promptly charge their victims with an offense: resisting arrest, obstruction of justice, something."

Scott Henson, who has a penchant for statistics and the ability to interpret them for the rest of us, notes that in the 2008 Census of Fatal Occupational Industries police officers do rank high on the list of most dangerous jobs, but there are many mundane jobs that are more dangerous than law enforcement (numbers expressed in deaths per 100,000 full time equivalent jobs):

Fishermen: 128.9 Logging workers: 116.7 Aircraft pilots: 72.4 Iron and steelworkers: 46.4 Farmers and ranchers: 39.5 Garbage collectors: 36.8 Roofers: 34.4 Electrical power line installation/repair: 29.8 Truck drivers: 22.8 Oil and gas extraction: 21.9 Taxi drivers: 19.3 Drinking establishment employees: 17.0 Construction workers: 16.0 Police and deputies: 15.6 Grounds maintenance: 11.9 Welders: 10.5 Electricians: 8.3 Gas station attendant: 7.5 Firefighters: 6.9 Auto mechanics: 5.0 Newspaper publishers: 4.8 Carpenters: 4.7 Janitors: 3.1 Retail sales: 1.5

Just as taxi drivers and truckers have high fatality rates, a lot of the danger from being a police officer comes from spending so much time on the roadway. About 2/3 of police officer deaths in Texas involve traffic accidents.

So, yes police put their lives on the line every day. But how about some respect for the fishermen?

Luzerne County Judges Mark Ciavarella and Michael Conahan, who allegedly took millions of dollars in pay-offs for jailing juvenile offenders, have been indicted by a federal grand jury in Pennsylvania.

A federal grand jury has handed down a 48-count indictment against two former Luzerne County, Pa., judges, alleging the men engaged in racketeering and related charges, the U.S. Attorney's Office for the Middle District of Pennsylvania announced Wednesday.

The indictment, a copy of which was not available at press time Wednesday, comes about 5 1/2 weeks after a federal judge rejected the conditional plea agreements of Michael T. Conahan and Mark A. Ciavarella Jr. and nearly two weeks after the men withdrew their conditional guilty pleas in the matter.

The indictment charges Conahan and Ciavarella with fraud, money laundering, extortion, bribery and federal tax violations while alleging they received "millions of dollars in illegal payments," according to Dennis C. Pfannenschmidt, U.S. Attorney for the Middle District of Pennsylvania.

Lawyer Robert J. Powell, who partially owned the detention facilities that the children were sent to, admitted earlier this year to paying cash to Conahan and to falsifying records to help the judges hide their income. A plea deal with the two judges fell through, however, resulting in the current indictments.

According to law.com, more indictments against the judges may be in the works:

While the government's press release made no mention of any charges beyond those related to the juvenile detention center, several sources said they expected the government to come back at some point with a superseding indictment seeking additional charges against Conahan and Ciavarella.

While the federal government's case against the former judges centers on their roles in taking money from attorney Robert Powell, the owner, and Robert Mericle, the builder, of a juvenile detention facility and the judges' alleged abuse of the rights of juveniles sentenced to the facility, sources close to the investigation and inside Luzerne County say the scam some in the media have labeled "kids for cash" was just the tip of the iceberg and only the most blatant example of the corruption allegedly overseen by the two judges.

The state is seeking the death penalty for Colin James Broughton, who is charged with murder and robbery in Charleston, S.C. Recent developments in the case however, reported by the Post and Courier, already are casting doubts on the integrity of the process.

There are three defense attorneys working on the case: Bill McGuire, Ashley Pennington, and Beattie Butler. When Butler was asked to assist in the trial, Circuit Judge Deadre Jefferson ordered that Butler could not speak in the courtroom, and that he would only be allowed to "pass notes and whisper in McGuire's ear." According to pleadings filed by the defense, Judge Jefferson's decision was "due to her personal issues with Mr. Butler."

The defense also alleges that when McGuire objected to Judge Jefferson's order,

Patton Adams, the director of the S.C. Commission on Indigent Defense, asked McGuire to drop his request to add Butler to the defense team.

McGuire said in the pleading that he understood the request was initiated by Jefferson and relayed to Adams through S.C. Supreme Court Justice Jean Toal.

"It was further relayed that failure to waive the issue would anger Judge Jefferson, Jean Toal and the rest of the South Carolina Supreme Court," one of McGuire's pleadings said.

Judge Jefferson has now been replaced by Circuit Judge J.C. Nicholson Jr., who has denied McGuire's request to be relieved as counsel and who declined to overrule Judge Jefferson's prior order. McGuire subpoenaed Patton Adams and Chief Justice Toal to a hearing on Thursday, but Judge Nicholson did not allow them to be called as witnesses.

If a judge does not feel that it is appropriate to have three attorneys working on a case, personal differences aside, why not say "no sir, you may not assist the defense in this case." I mean, I doubt that that would be appropriate or fair and if not it may be appealable - but if that is the judge's ruling, it would be direct at least. If the allegations are true, that the trial judge went through the Chief Justice and Director of SCCID to pressure McGuire to remove Butler from the defense team, that conduct certainly calls the integrity of the entire proceeding into question and the defense should have been permitted, at a minimum, to make their record exploring the issue.

My hat's off to Bill McGuire and the rest of the defense team for standing firm in the face of pressure and fighting not only for their client but for the integrity of the justice system.

The Myrtle Beach Chamber of Commerce, apparently with nothing but time and money on their hands, has filed a defamation suit against the anonymous "Elmer Fudd" for posting comments on a Sun News message board which incorrectly stated that the chamber had been raided by the Horry County Police Department.

"It's something the chamber felt like they had to react to," [attorney Cherie Blackburn] said. "They couldn't allow the rumors to go unchallenged."

Blackburn said her office plans to file a subpoena this week to learn the identity of "Elmer Fudd." The lawsuit seeks unspecified monetary damages.

Did anyone believe such statements from the anonymous "Elmer Fudd," and was the chamber's reputation harmed? Is Mr. Fudd likely to have any assets that the chamber could recover from anyway? Patrick at Popehat sums it up: "Who in his wight mind would bewieve an accusation fwom Elmer Fudd? And why didn’t Ms. Bwackbuwn advise her cwient to wet it go?" (Be Vewy Vewy Quiet. I’m Fiwing Wawsuits.)