South Carolina Criminal Defense Blog

Former Mobile County Circuit Judge Herman Thomas originally had 103 charges leveled against him involving paddling and sexually abusing inmates - most of the charges were dismissed either by the court or by prosecutors before trial. He went to trial on 23 charges of sodomy, attempted sodomy, sex abuse and second-degree assault, and Monday he was acquitted on 7 counts and the court threw out the remaining 14 counts which the jury couldn't reach a decision on.

Apparently, after the trial at least three jurors have told the district attorney's office that they believed the result would be a hung jury and that they did not intend to acquit the judge.

Just a day after the verdict, three jurors came forward to Mobile County District Attorney John Tyson with claims that their votes had been misrepresented and they had no knowledge of Neilson’s ability to declare verdicts on the charges upon which they could not reach a unanimous decision. Essentially, jurors have said they thought the end result would be a hung jury.

The district attorney is investigating - of course, it seems that they neglected to poll the jury immediately following the verdict, and there is that pesky double jeopardy clause in the Constitution. I predict the judge is home-free at this point.

Arizona's Supreme Court says that metadata must be disclosed under the state's Freedom of Information Act:

Hidden data embedded in electronic public records must be disclosed under Arizona's public records law, the state Supreme Court said Thursday in a groundbreaking ruling that attracted interest from media and government organizations.

The Supreme Court's unanimous decision, which overturned lower court rulings, is believed to be the first by a state supreme court on whether a public records law applies to so-called ''metadata.''

Metadata can show when a document was created, when it was revised, and who created or revised the document. In the Arizona case an officer who had been demoted requested metadata embedded in a supervisor's notes, which would show whether the supervisor had back-dated the notes to before the demotion.

Whether FOIA applies to metadata is going to be determined by each state. The next question, that I've never heard asked, is whether Brady applies to metadata - and I think that there is no doubt that it does if the information contained in the metadata is exculpatory. For example, when an officer creates or modifies an incident report in anticipation of trial, long after the events that gave rise to the defendant's charges, that would be information the jury needs to hear and it would be critical to cross-examination of the witness.

Would the prosecutor or police voluntarily turn over metadata? Well, no - if they are aware of an issue with a document that would help the defense they are already under an obligation to provide the information. If they're not disclosing the issue with the document they are not going to disclose the metadata proving the issue with the document, either. Metadata will be useful only when the defense already knows or suspects that there is an issue with the document and needs the evidence to prove it. If the prosecution does not provide the information voluntarily it will take a motion to compel and possibly an in-camera review of the material by the trial judge to determine its impeachment value.

Would it be worthwhile to add a request for metadata to Brady motions, and to keep an eye out for situations where officers or other prosecution witnesses have falsified or modified documents prior to trial?

A few weeks ago I met with a group of Trial Lawyers College/ regional grads in Charleston to work up cases, and today a few local attorneys came to the office in Myrtle Beach and worked on cases that are coming up for trial next week. When I went to the college in July, and when I went back last month for a workshop with Josh Karton, I was blown away by the techniques that were being taught, and the opportunity to learn from and practice with some of the best lawyers in the country. That experience was wasted if I don't use the methods in my cases, and practicing with attorneys here in South Carolina, especially those that have not been to the college yet, is gratifying.

I hope to continue working with attorneys using the TLC methods on a regular basis, and there is no doubt that we are becoming better advocates and storytellers throughout this process. I am hungry for more - I've already signed up for grad classes next summer, and I may attend some psychodrama workshops in the meantime as well.

I know that there's been some controversy regarding TLC on the web lately, and I am sorry for those that feel alienated from the college in the midst of the recent changes. A word from a newer graduate, about what the college means to me:

Gerry Spence brought us to the college, and there is no question that I believe he is an amazing person, but it is not about Gerry Spence to me. Whether it is at the ranch or at our offices in our hometowns, it is about a think tank where lawyers meet to share ideas and methods, and improve ourselves and one another as we become better advocates for people. It is in part about Gerry's ideas, some of which I have internalized, some I have modified, and a few I have rejected. It is about being free to experiment and practice trial methods to find what works and what does not, and to develop new methods in the process. It is still about learning who I am, becoming a better person, and becoming a better lawyer in the process.

In a murder trial the jury is usually instructed that they can infer malice from the use of a deadly weapon - however, in State v. Belcher, decided October 12th, the South Carolina Supreme Court broke with precedent and held that this is no longer permissible "where evidence is presented that would reduce, mitigate, excuse or justify the homicide."

It has long been the practice for trial courts in South Carolina, as sanctioned by this Court, to charge juries in any murder prosecution that the jury may infer malice from the use of a deadly weapon. We granted Belcher’s petition to argue against this precedent. Having carefully scrutinized the historical antecedents to this permissive inference, we hold today that a jury charge instructing that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse or justify the homicide. We therefore reverse Belcher’s convictions and remand for a new trial.

This has been a long time coming, and congratulations go to the trial attorney who had the foresight to argue this at the trial level, knowing that the law was not on his side, and preserve the record for appeal, and to the appellate attorney who presented the issue to the Supreme Court, arguing in the face of long-standing precedent.

The prosecution must prove malice aforethought to obtain a murder conviction - malice can mean intent to kill, intent to inflict grievous bodily harm, reckless indifference to the value of human life, or intent to commit a felony. If malice is not proven, it can make the difference between a guilty or not guilty verdict, or a conviction on the lesser included offense of manslaughter.

The problem with instructing the jury that malice can be inferred from the use of a deadly weapon, when there is evidence that would reduce, mitigate, or excuse the homicide, is that it is inconsistent and confusing. Malice includes the absence of justification, excuse and mitigation. The absence of justification, excuse, or mitigation cannot be inferred solely from the use of a deadly weapon.

For example, let's say I shoot and kill a person in self defense. I am in my home, they break in, they see me, they point a shiny pistol at my head, and I draw and shoot. If I am prosecuted for murder, under the law prior to Belcher the jury would be instructed that they can infer malice sufficient to convict me of murder solely from the fact that I used a gun. I killed a person, using a deadly weapon, however that fact alone is not enough for a jury to infer malice.

CNN has a story about the dilemma of pregnant mothers who are addicted, spotlight on South Carolina - of course, the only state supreme court to uphold the prosecution of pregnant addicts for the damage done to their babies by drug use.

South Carolina's state supreme court is alone in upholding the prosecution of pregnant women for the damage drugs might do to their unborn children.

Across the country, local and state agencies have found ways to prosecute pregnant women for drug use, but the cases are often rejected by the courts. And judges in more than two dozen states have overturned decisions that criminalize pregnant addicts. In recent years, Missouri and North Dakota have ruled against charging pregnant women with neglect and endangerment.

The article says that since 1989 at least 126 women have been arrested in South Carolina for using drugs during their pregnancy. It's a problem that was brought to the public's attention again during Regina McKnight's prosecution - Regina was charged with homicide by child abuse after cocaine was found in her system when her baby was stillborn. Her trial resulted in a mistrial, she was tried a second time and found guilty in 2001, lost on direct appeal, but her conviction was overturned last year on PCR based on her trial attorney's failure to retain an expert to testify at her second trial.

From an earlier post:

The prosecution of mothers who test positive for cocaine has been fraught with problems and controversial from the beginning. The idea of a pregnant woman using cocaine is offensive and the knee jerk response is that there is no doubt this is child abuse. But this view ignores the nature of cocaine addiction. Cocaine addiction is powerful enough that many who are addicted cannot make a conscious decision to stop using. When a person is under a compulsion to continue using drugs, there is no intent to harm the child - there is no "conscious act of disregarding a risk which a person's conduct has created." State v. McKnight (2003).

Prosecution of pregnant women who are addicted to drugs is counterproductive, and it is not a deterrence. It discourages addicted women who discover they are pregnant from seeking help. It discourages them from seeking prenatal care at hospitals or treatment for their addiction, for fear they will be arrested and prosecuted. It creates an incentive for women to seek abortions, to avoid detection and prosecution.

It would make more sense to make it known that if an addicted and pregnant woman comes to a hospital for help, they will receive not only prenatal care but confidential referrals to treatment programs. It makes sense to invest more resources in long-term treatment programs that are equipped to deal with the specialized needs of pregnant women, and women with very young children.

It is always a popular political move to prosecute and punish any given class of "criminal." Treatment, prevention, understanding, compassion does not win votes.

When we are the only state in the country to allow the prosecution of these women, that alone should tell our supreme court and our legislature something is wrong here.

"These are addicts who become pregnant," says Lynn Paltrow, executive director of the National Advocates for Pregnant Women. "They aren't women who chose to use drugs after becoming pregnant."

Truly, I think that things are rarely exactly as they seem. Our perceptions of people, based on a single exchange or even multiple exchanges in any given context, show only a snapshot of a moment in time. When recreating the events that led to a person's arrest, the different pictures created by defense and prosecution may both be skewed and sometimes it is impossible to find the truth.

Sometimes there are the rare moments when a lying officer is caught on video or audio, and we see that things are not as they seem. Similarly, sometimes a defendant is caught lying on video or audio. When there is no hard proof, unfortunately, most people will believe the officer and will trust the authorities, despite the fact that our system is based on the principles of proof beyond a reasonable doubt and innocent until proven guilty.

Many assumed that Atlantic Beach Mayor Retha Pierce was guilty of DUI, based on her recent string of arrests (and I don't doubt that she has a valid defense in each instance), but she appears to be vindicated by a recent announcement of the results of her drug and alcohol tests:

Drug tests Atlantic Beach mayor Retha Pierce took at Quality Drug Screening in Sumter show no drugs or alcohol were in her system when she was arrested on DUI charges in Marion County in September. . . .

A hair test taken on October 14 at Quality Drug Screen showed Pierce had no cocaine, marijuana, opiates, methamphetamines, or phencyclidine in her system.

A urine test administered by the South Carolina Law Enforcement Division also showed Pierce had no alcohol in her body when she was arrested.

Webb said the tests are admissible in court and the results cover a span of six months.

It is rare that a person wrongfully accused of drunk driving has the forethought to go and get a drug test done (or to call a DUI lawyer before their court date), but it can make the difference between a criminal conviction and a clean record.

An ethical complaint has been filed against an Illinois lawyer accused of lying to the state bar authorities about an ad posted on Craigslist under "Adult Gigs."

Although the May 2009 job ad did not expressly list any sexual job duties, a follow-up letter sent by attorney Samir Zia Chowhan to a woman who responded to the ad stated that "in addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate," alleges a complaint filed yesterday by the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court.

The letter, which is published in its entirety in the ARDC complaint, also states that "this part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction," and notes that a sexual tryout would be required as part of the job interview. Chowhan was a solo practitioner at this time, the complaint says, but shared an office with another lawyer.

Note that the attorney is being disciplined for lying to the commission, but he is not being disciplined for the advertisement. The moral of this story is: when advertising for a hooker/ legal secretary, always be truthful.

Earlier this month Howard Wells, the former Union County Sheriff, was arrested and charged in federal court with witness tampering and lying to authorities.

The allegations came to light during an investigation of possible public corruption and drugs that already had named the former mayor of Union and another city official and Monday the Union County supervisor and other local officials, U.S. Attorney Walt Wilkins said.

In February this year, the former Union Mayor Bruce Morgan was sentenced to six years and former city Building and Zoning Director Jeff Lawson was sentenced to about a year in prison after pleading guilty in an unrelated federal corruption case.

Union County Supervisor Donnie Betenbaugh has also been arrested and charged with extortion, conspiracy, accepting bribes and obstruction, and former Union County Tax Assessor Willie Randall Jr. was arrested and charged in the same case involving financial hyjinks and kickbacks related to the purchase of a piece of property.

Not enough? There's more:

court papers accuse Betenbaugh of allowing Randall to use the tax assessor's office as a "stash house" for storing and distributing cocaine and hydrocodone. . . .

In a separate indictment, Randall and Union County resident Lapriest Darnell Beacham are charged with conspiracy since 2007 to distribute 500 grams or more of cocaine and 50 grams or more of a mixture containing methamphetamine. Beacham also faces three additional counts of distributing cocaine.

In a fourth indictment, Union County resident Willard Dee Farr was charged with conspiracy to commit extortion, aiding and abetting Morgan and Lawson, and making false statements.

On February 9th, Union County Clerk of Court Brad Morris resigned as SLED announced that they were investigating his office's bank accounts. Following the resignation, Governor Sanford has appointed a 27 year law enforcement veteran, Freddie Gault, to the position (how law enforcement experience qualifies someone to be the Clerk of Court or why you would want a cop in this position I am not sure).

A guy in Minnesota pled guilty to driving under the influence while in his Laz-E-Boy recliner, which was outfitted with a lawnmower engine and a stereo, after crashing it into a car on his way home from the bar:

A Minnesota man has pleaded guilty to driving his motorized La-Z-Boy chair while drunk. A criminal complaint says 62-year-old Dennis LeRoy Anderson told police he left a bar in the northern Minnesota town of Proctor on his chair after drinking eight or nine beers.

Seriously?

In other recent news, people have been charged with DUI on a motorized bar stool, a battery-operated toy motorbike, and a horse. We have represented several people who were charged with DUI on golf carts as well.

Our local prosecutors have no interest in blogs. Not a one in the state of South Carolina will step up to the plate. Anyway, there are a few from around the country, some linked on the sidebar, and this fairly new blog from a DA in Texas, which is turning out to be better than most so far.

Jamie Leigh Jones, represented by TLC grad L. Todd Kelley, was drugged and brutally gang-raped by co-workers while working for Halliburton in Iraq in 2005. When she reported the attack to her superiors, she was kept locked in a container under armed guard and not allowed to leave or call her family for days. Due to a clause in her employment contract, the District Court ruled that she could not bring her claims in court and was instead limited to arbitration, although ultimately the Fifth Circuit Court of Appeals reversed that decision and held that some of her claims could be brought in court.

Four years later, an amendment to a defense bill was passed that would change defense contractors' ability to limit their liability for employees who are raped: "Freshman Senator Al Franken's amendment to a defense bill would guarantee employees of military contractors access to the court system if they are sexually assaulted and would freeze military contracts to any company that fails to cooperate."

Amazingly, 30 republican senators voted against the bill.

More on the execution of Cameron Todd Willingham:

- Governor Perry's general counsel at the time of Willingham's execution, now a Texas Supreme Court Justice, was himself indicted for arson in 2008.

It gets even stranger. The Texas blog Dog Canyon reports that Gov. Perry's general counsel at the time of Willingham's execution was himself indicted in an arson case in 2008. David Medina was able to get the indictment dismissed after questioning the judgment of the arson investigators for failing to look at possible causes of the fire other than arson—precisely the criticism leveled at investigators in the Willingham case. The Harris County District Attorney's refusal to bring charges against Medina moved two members of the grand jury that indicted him to speak out publicly against the decision. Medina now sits on the Texas Supreme Court. Perry appointed him to that position in 2004.

- Willingham's trial lawyer David Martin speaks out and says that his client was guilty:

Martin loudly protests that he did a wonderful job and that the experts now claiming his client was innocent are not credible. What should we think of an attorney who goes on national television to proclaim his client's guilt? From looking at the Texas bar association's website I could not tell if this guy is still a practicing attorney - he may be retired.

Throughout his interview, he repeatedly says that his job as a defense attorney is not to believe his client, but that his job is to test the state's evidence which is what he did. I beg to differ. A defense attorney's job is to present a complete defense for the client, to investigate the case, and to fight for them. If you can't believe in and care about your client a jury is not going to believe in or care about your client either. This guy is now saying on national television that he always thought his client was guilty.

Martin says that for the last 20 years he has represented the interests of businesses - I wonder how his corporate clients would feel about him going on national television to vilify them, discussing details of their case in an attempt to justify why he lost their trial?

- According to a Gallup Poll, knowing that innocent persons are executed would not sway the opinions of many death penalty advocates.

- Two of four black men executed 94 years ago here in South Carolina were pardoned on Wednesday, the first to be posthumously pardoned in a death penalty case. Thomas and Meeks Griffin were great-uncles of a local radio talk show host, Tom Joyner.

Keith Bardwell, a justice of the peace in Tangipahoa Parish, Louisiana, apparently refused to issue a marriage license to an interracial couple, out of concern for the children. "I'm not a racist. I just don't believe in mixing the races that way," Bardwell told the Associated Press on Thursday. "I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else."

In 1967, in the aptly named case of Loving v. Virginia, the United States Supreme Court invalidated a state law which made it a felony punishable by one to five years for a black and a white person to be married, as it violated the Equal Protection Clause of the U.S. Constitution. We've come a long way since then, right?

Anytime someone begins a sentence with, "I'm not a racist, but . . ."

"God bless America, god bless the Bill of Rights, and thank God for the Fifth Amendment. I'm not ashamed to say I'm proud of the Fifth Amendment . . . and I'm proud to admit that I will never talk to any police officer under any circumstances."

This has been around for a while, but it is worth re-posting it again. In the video below, Professor James Duane explains why you should always exercise your Fifth Amendment right to remain silent, and why you should never speak to the police or investigators under any circumstances.

It will never help. You cannot talk yourself out of getting arrested, and whatever you say (and possibly things that you don't say) will be used against you later as admissions. Anything that you say that could help you later will be inadmissible at trial because it is hearsay. Even the most innocent statement that you make can be used against you later, and James Duane explains how.

Last Saturday private investigators working for attorney Andy Savage located the remains of Katherine Waring, who had been missing for four months. Apparently the investigators notified the police department once they received information on where the body was located, but the police ignored them and did not go to the location to search. After the investigators found the body, they notified the police department and then turned over all evidence relevant to the investigation to the police.

Following the discovery, the Charleston Sheriff's Office, at the Charleston Police Department's request (the police department had been conducting the investigation, but the Sheriff's Office had jurisdiction over the location where the body was found), seized the vehicle of one of the private investigators and took "photographs, notes, and other items" from the car. Andy Savage filed a lawsuit on Monday seeking the return of the items, unspecified damages, and a temporary restraining order to prevent authorities from viewing, using, or sharing the information seized, alleging that all relevant materials had been turned over to the authorities prior to the seizure and that the materials seized included sensitive information protected by attorney client privilege related not only to the Waring case but to other cases.

Yesterday it was announced that a resolution had been reached, in which the materials would be returned and then Savage would turn them over to the solicitor - whether this means the lawsuit is dropped, I don't know.

It appears that Savage was representing only the interests of the victim in this case, but this type of action has implications for defense attorneys as well. Similar to the raid on defense lawyer Keith Gore's office in Texas last year, prosecutors and/or law enforcement agencies cross the line when they run rough-shod over attorney client privilege. (A hearing had been scheduled to determine if the materials sought from Gore's office were privileged or not, and just days before the hearing the prosecution sought and obtained a search warrant for Gore's office from a different judge). In South Carolina, police can obtain a search warrant upon the signature of a municipal court judge or magistrate, which provides no real protection against abuse of the process in some cases.

I'm not saying there is never a situation where it is appropriate for a law office or employee's belongings to be searched, but when privileged materials are likely to be the subject of the search, there needs to be additional safeguards in place. Before any warrant is issued for an attorney's office or the property of an employee of an attorney, the existence of probable cause should be fully heard before a circuit court judge - once the materials have been seized and viewed, there is no going back and there is no real way to protect privileged information at that point. If we allow authorities to obtain search warrants upon the signature of a municipal recorder or any lower court judge, the authorities will abuse the process - our offices, homes, vehicles, and those of our employees are not safe and there is no guarantee that our clients Sixth Amendment rights will be protected.

Doug Berman at Sentencing Law and Policy picked up this story out of New York, where lawmakers are trying to pass a law that would require persons convicted of criminal domestic violence (CDV) to be listed on a registry similar to sex offenders. Most of the New York article is devoted to telling the story of one woman who was terrorized by her husband, and how a domestic violence registry could prevent the man from terrorizing others in the future.

Berman then takes the idea to its extreme, espousing that all serious crimes should be subject to registry requirements:

Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements. (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.)

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct. (This recent commentary at The Atlantic, titled "Too Much Information, Not Enough Common Sense," speaks to some of these concerns.) I wonder if any public policy or law reform groups are working on model criminal registry legislation. A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.

This is wrong on so many levels, I don't know where to begin. Maybe with what seems to be a basic misunderstanding or misinformation on the part of the professor - he seems to want to make all criminal convictions public, but the fact is that all criminal convictions are public and have always been. The information is there for anyone to find, and the only thing that a registry does is impose upon the accused a continuing obligation to register their current address and photograph so that anyone may find them at any given time. In most states, you can pull anyone's criminal history from a website in a matter of minutes. For example, official South Carolina records checks are available at SLED's website, and in many counties all arrests, regardless of conviction, including identifying information and the status or disposition of the case are available to the public on the judicial department's website. Registries have nothing to do with "criminal justice transparency."

The push for a domestic violence registry has everything to do with political posturing. The story of one victim is told for full dramatic effect - the monster who holds a knife to his wife's throat, spits on her, locks her and their daughter in a closet, and now is lurking on dating websites, seeking his next victim - it is used to grab attention, to instill fear, and to move the listener to action. The legislator who promotes this bill wants to be seen as a hero who is protecting the public. It gives him or her exposure as they lobby for their bill, and anyone who opposes the bill is painted as being "for" domestic violence. The legislator, our hero, is gathering votes.

We need to have domestic violence laws, because there are true victims of domestic violence and it is a problem that needs to be addressed. But the truth of the matter, which is not seen by the general public and certain sheltered law professors, is that "true" domestic violence cases make up a very small percentage of the cases that come through the court system. They are rare, indeed, for those that actually spend time in the criminal courts and see the cases that are made.

Much of what I see in South Carolina are manufactured domestic violence charges. Police arrive at a home and tell the residents if we are called, someone is going to jail. Citizens are jailed and charged with domestic violence because there was a verbal argument that got too loud. A wife calls the police and she is then arrested when the husband says hey, she hit me. People are jailed with no evidence of physical violence whatsoever. Husband and wife are both taken to jail, because police cannot decide who the aggressor was. Husband or wife make false complaints of domestic violence to seek an advantage in their divorce or child custody case. Then there are cases of simple assault, by the man or woman, that are one time occurrences and do not qualify as spousal abuse.

In South Carolina, the right to counsel is systematically denied to indigent defendants in the magistrate and municipal courts - our Chief Justice has instructed magistrates to ignore the U.S. Supreme Court and to not appoint counsel to those who cannot afford attorneys:

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.

The result is that those persons accused of CDV 1st offense in the magistrate courts or the city courts who cannot afford an attorney plead guilty, whether they are guilty or not. Professor Berman would have these individuals, who in my experience make up a significant portion of those charged with CDV 1st offense, emblazoned with today's modern scarlet letter, an online registry. My hope is that someone with Berman's stature and voice would not fall prey to the hype and politics of fear, and instead could broadcast the truth of what happens in our nation's courtrooms every day.

Texas Governor Rick Perry replaced three members of a panel which was investigating Cameron Todd Willingham's 2004 execution for the murder of his family by arson. Why are people saying this is a cover up?

- Perry had denied a last minute appeal which had included a report by an arson expert debunking the junk science used to convict Willingham.

- Perry is running for re-election in 2010, and now has the uncomfortable distinction of being labeled the governor who allowed his state to execute an innocent man without lifting a finger to stop it.

- The replacements were made within 48 hours of a critical presentation which was to be made by arson expert Craig Beyler, who had been retained by the panel to assist in the investigation.

- The chairman of the committee was replaced by Williamson County district attorney John M. Bradley, a political ally of the governor, who immediately canceled Beyler's presentation.

- The governor was told by the committee that replacing the members now would disrupt the work that they had done on this case.

- According to Dogcanyon.org, the governor's office worked hard to kill funding for the commission during the last legislative sesssion.

- If the commission had gone forward as planned, the final report may have been released in the middle of the governor's primary.

- Despite the new evidence by at least three forensic experts concluding that there was no evidence of arson, the governor's position is to say that there was overwhelming evidence of guilt and that he agrees with the decision of the courts.

Attorney Ben Webb was acquitted of a contempt charge this week, brought by a judge in June of this year because Webb refused to testify against his client regarding a failure to appear.

Judges and prosecutors get used to defense attorneys freely telling them the substance of communications with their clients, regarding when they appeared in court, whether the attorney told them to appear in court, and their client's criminal history, and may not know what to do when a lawyer says no. The problem is that the court is trying to balance the lawyer's duty to preserve confidentiality with the lawyer's duty of candor to the court.

The lawyer does have a duty of candor to the court and must never misrepresent facts to the court, but the lawyer does not have a duty to reveal client confidences to the court or to testify against his client in most situations. The ethics rules, the Fifth and Sixth Amendments, and public policy that encourages full disclosure between client and attorney dictate that the attorney must not disclose the information.

Cameron Todd Willingham was executed in Texas in 2004, after being convicted of murdering his family by arson. For the past month, the media and law blogs have been buzzing with news of reports that the junk science that Willingham's conviction was based on was bogus, and that this is the clearest case of an innocent person being executed by a state.

A panel that was investigating the claims has been replaced by governor Rick Perry, 48 hours before the panel was to hear from arson expert Craig Beyler, who had been retained to assist in the investigation.

Beyler's report is the latest of three to conclude that arson was not the likely cause of the 1991 fire, and the first commissioned by a state agency. Death penalty opponents say an impartial review of the Willingham case could lead to an unprecedented admission that the state executed an innocent man.

The Beyler report concluded that the ruling of arson at the heart of Willingham's conviction "could not be sustained" by modern science or the standards of the time. The report, filed in August, said the state fire marshal who testified in Willingham's trial approached his job with an attitude "more characteristic of mystics or psychics" than with that of a detective who followed scientific standards.

Perry, who faces a Republican primary challenge in his bid for a third term next year, refused to issue a last-minute stay of execution for Willingham in 2004 and has said he remains confident that Willingham was guilty. So have authorities in Corsicana, south of Dallas, who prosecuted Willingham in his daughter's deaths.

Despite their requests to remain on the panel, the governor says that he is replacing them because their terms are up. Possibly there is no desire to sabotage the investigation on the part of the governor, but this was a critical time in the case to announce the replacements.