South Carolina Criminal Defense Blog

While driving home from the office this weekend I saw a trooper with his blue lights on in the parking lot of Remedies, a bar in Myrtle Beach, giving a guy field sobriety tests directly in front of the entrance to the bar. Now, either the guy was pulled over and just happened to stop in the parking lot of a bar, or he didn't get a chance to get out of the parking lot before the trooper put the blue lights on. I really should have driven back by to see who the trooper was, but didn't.

That's taking DUI prevention and enforcement to new levels - everyone in the bar sees blue lights through the windows and watches as the cops humiliate a guy with roadside exercises then put the cuffs on him. How many people, drunk or not, do you suppose called a cab after that dog and pony show?

I am still amazed by the internet and specifically Facebook, and I believe that it has changed our experience of the world and life like nothing else since the invention of the telephone. Social networking sites, but specifically Facebook since I am on there and most people that I know are also, have enabled us to almost constantly feel connected with hundreds of people that we know.

I used to wonder at the people walking around with cell phones stuck to their heads, thinking about how people have become increasingly connected with the people and the world around them, like it or not. Facebook has taken these connections to new levels.

There have been stories circulated here and there, like novelties, of ways that Facebook has been used in the criminal justice or legal context, but today I was reading a few of these and I was struck by just how commonplace these stories have become and how much an integral part of our society this phenomenon has become.

Facebook is a multi-purpose platform that is wonderful for connecting with old friends and keeping up with new ones. It is also useful for researching potential witnesses (or defendants) and finding cross-examination or impeachment material, it can become evidence as to a person's whereabouts at a particular time, it is used as a virtual meeting place for persons engaged in crime, it is swiftly becoming an effective law enforcement tool, and on a more sinister note it is undoubtedly used as an information-gathering data-mining tool by corporations and government agencies.

Some examples:

- Can an attorney ethically use deception to "friend" a potential witness on Facebook for purposes of gathering information on them? Most ethics opinions that I've seen have said no.

- But apparently it is ok for insurance companies to friend Nathalie Blanchard on Facebook and then cancel her disability benefits based on pictures she posted. She was apparently suffering from severe depression, and yet looked happy on her Facebook page.

- And it is ok for law enforcement to pretend to be an attractive girl to get access to University of Wisconsin La Crosse student Adam Bauer's Facebook page, and then charge him with underage drinking based on a photo of him holding a beer.

- In California, lawmakers are debating the problem of gangs that appear to be using Facebook and Twitter to recruit members. New laws criminalizing recruitment of or association with gang members online? Or maybe internet loitering.

- Jennifer Wilson was attacked at a nightclub (another girl hit her in the face with a beer mug) and, when law enforcement did nothing to apprehend the attacker, she took matters into her own hands. She recognized one of the girl's friends and then scoured through networks on Facebook, looking at friends of friends, until she found the girl and provided her home address and place of employment to the police.

- Police departments across the country are realizing the potential of social networking sites such as Facebook for identifying, locating, and tracking down suspects. Some, such as these in Olive Branch, Mississippi and Medina, Ohio, are creating Facebook pages for their agencies, posting photos and profiles of suspects, and asking for help in crime-fighting from the online community.

- Facebook provided an alibi for a teenager in New York who was accused of participating in a robbery. The website verified that a message from Rodney Bradford had been typed and sent from his father's computer at the time of the robbery.

- Ever a shining example of what we need to be vigilant not to become, Iran has created a special task force to police the internet, in a thinly veiled effort to squash speech that is critical of the government:

"Given the spread of internet use, police must confront crimes taking place in the web atmosphere," the Iranian media reported him as saying. "A special committee has been set up to monitor the internet and deal with crimes ... such as fraud ... insults and the spreading of lies."

While vowing to tackle internet crimes in general, the unit's political nature is indicated by the emphasis on "insults and lies" – a term often used to describe opposition statements since the election.

Does our government collect information on us through social networking sites such as Facebook? And for that matter, was the desire to collect information on citizens part of the driving force that made Facebook possible? I don't know. There is no privacy on the internet and, although I believe we should fight for privacy rights online, it is probably best to assume that someone somewhere watches everything that you do and knows everything about you. At any rate, they could have the information at their fingertips if they wanted it and knew where to look.

Facebook, the CIA, and the Information Awareness Office:

Macomb County prosecutor Eric Smith has threatened to sue the county if his budget is cut, saying that it would be unconstitutional - referring to a clause in the Michigan Constitution which says that every Michigan County must create and maintain a prosecutor's office.

"We're looking at chaos," Smith said. "Some of our prosecutors are handling over 100 files in some district courtrooms. That's not adequate representation for the victims of crime in this county."

Ok. I suspect that many public defenders out there will laugh at the terrible plight of the Macomb County prosecutor who must suffer with a case load of more than 100 files. Particularly considering the logistical support that any prosecutor has when preparing a case for trial (investigators, help from the arresting agency, pretty much anything that they want they will get it).

Macomb County does not even have a public defender's office yet, although recently the creation of one was approved. Smith opposed the creation of a public defender's office, citing concerns that the county already spends $3 million dollars a year on appointed attorneys.

Under the proposed budget cuts, "the prosecutor's office would lose $735,269 from its estimated $9.8 million budget in 2010, a 7.5 percent cut. Another $2.4 million would be cut from the sheriff's 2010 budget, estimated to be about $63 million."

Glad to see that our priorities are straight, and that the good people of Michigan are working hard to preserve and protect their constitutional right to be prosecuted. Never mind Gideon and the Sixth Amendment.

Right and Left unite in opposition to overcriminalization and government intrusion: the NY Times reports that in upcoming U.S. Supreme Court cases, civil liberties groups and defense lawyer associations stand shoulder to shoulder with conservative, libertarian, and business groups in filing amici briefs on the side of the accused.

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Defense lawyer Mark Shelnutt was acquitted last week of federal drug and money laundering charges. H/T John Wesley Hall

Arkansas Fireman John A. Brinkley, who apparently is also a convicted felon, was arrested for assisting the Mayflower police department with traffic stops, using his personal vehicle equipped with a blue light, a drug dog, and carrying a Glock. H/T Johnny Gardner

A sexophrenic culture? Norm Pattis points out the irony of a culture that celebrates, markets, and is saturated with sexuality, and yet criminalizes and punishes the very conduct that it encourages.

The devil is in the details - in his new blog, PI Bill Beam talks about the importance of conducting an independent investigation when a person is accused of a crime.

How to catch wild pigs.

Front row seats: the latest in the Maricopa County document-stealing-deputy, mad-Sheriff saga from Matt Brown.

Today someone implied that I hate cops and prosecutors; they seemed to accept this as a matter of course. I don't hate anyone, and certainly not cops and prosecutors - I suppose every so often I need to take a moment to say so. We need police and we need prosecutors to enforce the law; although I may confuse some from time to time, I am not a complete anarchist and I know that we need laws and that they need to be enforced.

We don't need a law for everything under the sun that any person disagrees with, and I think that many of the bottlenecks in our system would be resolved if 1) we do not try to legislate morality; 2) we do away with victimless crimes; and 3) we realize that incarceration is not the solution to every criminal justice problem. A "justice" system should be based on compassion, inclusion, and the common good, and not the baser human desires to control or to hurt others in the form of punishment or revenge.

But I'm off topic already - I'm supposed to be talking about why I don't hate cops. Police, prosecutors, judges, politicians, all are human beings like you and I. I have the utmost respect for the jobs that each do respectively, and we are in professions that have a profound impact on other people's lives, sometimes one at a time and sometimes on a large scale. In my job I've seen some wonderful moments of human compassion, I've seen wrongs that have been righted, I've seen guilty parties and victims come together in healing moments, and I've seen police officers commit selfless and noble acts. I've also seen tragedies, I've seen people who were probably innocent sentenced to live in a cage, and I've seen victims of crimes who left courtrooms empty-handed and empty-hearted.

I'd like to hear about and blog about more of the positive things that law enforcement and others in the legal profession do, and I appreciate any suggestions that you have, or stories that need to be told.

But someone also has to point out the abuses of power, the ethical violations, and the disregard for the Constitution and the rule of law that some police and prosecutors engage in. Usually, it is not a personal attack on that persons character. Like most defendants, the reasons for the conduct I complain of - an officer loses his temper, lashes out, and hurts someone; a prosecutor does not disclose evidence that could show a defendant's innocence; a politician proposes a law that does more harm than good - the reasons are that these are people, they are human, and they are motivated by the very human motivations of anger, greed, or need for power. But shouldn't they be held responsible, just like, or even more so because of their position of trust and power, the ordinary citizen who is accused of a crime?

For the cops who read my blog (if there are any), I want to acknowledge that, when I am complaining about cops on the blog, I am not talking about most cops most of the time. I realize that you are human, that you feel, love, have families and lives outside of work, and that by and large you are in your job because you are trying to do the right thing. It is, and should be, more than just a job. Thank you.

Prelude to Montejo
Montejo Part I

Montejo v. Louisiana, decided in May of this year, overruled Michigan v. Jackson, which said that police could not initiate an interrogation of a defendant once the Sixth Amendment right to counsel had attached. Per Montejo, police can now seek a waiver of rights and interrogate a defendant even after they are represented by counsel.

Why is Jackson no longer needed?

Edwards and Minnick held that once a defendant requests an attorney during custodial interrogation the police must cease questioning and must not re-initiate questioning without an attorney present. The purpose of these cases was to "prevent police from badgering defendants into changing their minds about their rights," the effect of which might be to "coerce a waiver, which would render the subsequent interrogation a violation of the [Fifth or] Sixth Amendment." The Court concludes that the trilogy of Miranda, Edwards, and Minnick are more than sufficient to protect defendants' Fifth and Sixth Amendment rights.

The police will not badger defendants into waiving their rights, because all a defendant need do is tell the police he does not want to speak without an attorney present, and the police will stop the interview.

Montejo shows a world-view that is in opposition to that of the Miranda/Edwards/Minnick/Jackson Courts

The Miranda decision and those that followed it recognized that coerced confessions were a reality and that physical beatings had given way to coercive psychological interrogation tactics such as the Reid Technique which is still used today.

In Michigan v. Jackson, the Court made the proud statement that "doubts must be resolved in favor of protecting the constitutional claim. . . . Waivers are presumed "involuntary based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily in subsequent interactions with police."

The Montejo Court balances the Constitution against the needs of law enforcement, and finds that the importance of the Sixth Amendment right to counsel protected by Jackson is minimal compared to “society’s compelling interest in finding, convicting, and punishing those who violate the law.”

The Montejo Court states that in determining whether a Sixth Amendment waiver was knowing and voluntary, "there is no reason categorically to distinguish an unrepresented defendant from a represented one." I can think of a reason - because that defendant has sought the protection of the Sixth Amendment. Because, as the Court stated in Jackson, "The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."

The Court has shifted from one that had, for a time, placed the utmost importance upon the ideals of our founding fathers in protecting us from an oppressive government to a Court that, at least in the context of police interrogation, is willing to look the other way while those same ideals are violated by the same government.

Montejo shows a world-view that is sheltered and out of touch with reality

Reading the majority opinion in Montejo, the impression one is left with is that the authors have never practiced criminal law of any kind, have never been involved in a criminal investigation, and have never had a real police encounter.

The Court states that Miranda and Edwards are sufficient to protect defendants' Sixth Amendment right to counsel as well as their Fifth Amendment right against self-incrimination during custodial interrogations, because all a defendant needs to do is request an attorney and the police will immediately stop the interview.

Because police in this day and age are considerably more professional than they were in the days of Michigan v. Jackson, they will stop questioning a defendant. Because the Court said to. Except that is not always how it works - it never has been and I doubt that it ever will be. In order to obtain a waiver of Miranda, police can and do lie to their suspect. Many officers/investigators do things right, are conscientious, and respect the rules. Some record interviews from the moment they step into the room. Others don't. The statement that is heard in court is not often from the beginning of the interrogation. Often, before a waiver is given, the police must persuade the person to waive their rights - for example:

Cop: We want to speak to you, you don't mind do you?
D: I want my attorney to be here.
Cop: Why do you need an attorney if you have nothing to hide?
D: Well, he told me not to talk to the police.
Cop: It's only going to help your case if you talk to us. Your buddy is next door as we speak and he is blaming all of this on you. We know he's the bad guy, you only played a bit part in this, you aren't going to take the fall for this are you?
D: He's lying, I didn't do anything!
Cop: Well, listen, I need you to sign this form before we can talk anymore, I'll go over each line with you and you need to initial it here, here, here. It's just a formality.

The officer obtains a signed waiver of rights, then begins the interrogation anew. Once the officer gets a version of events that he feels will help to convict, the audio or video is turned on and the finished product is recorded for posterity.

The Montejo Court makes short thrift of the absence of any protections outside of the context of custodial interrogations - "noninterrogative interactions with the State do not involve the inherently compelling pressures that one might reasonably fear could lead to involuntary waivers." Non-custodial interrogations are "the least likely to pose a risk of coerced waivers. When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering."

Lets review: When a defendant encounters the police in the real world, he is in control. He need only shut his door or walk away.

Effects of Montejo

- The police will now get at least one free shot at interrogating any defendant, regardless of the defendant's prior requests for counsel in court.

- There will be a marked increase in swearing contests between officer and defendant in pretrial motions to suppress (Defendant: I asked for a lawyer; Cop: No he didn't), which will almost always result in admission of the statement because the defendant has no way to prove what was said. Officers/investigators have the option of bringing a tape recorder or video recorder to an interview, but defendants do not. When there is a recording, the defendant does not operate it.

- We can expect some prosecutors to send investigators to question defendants without their attorney's knowledge, in preparation for trial. Note that Rule 4.2 of the ethics rules that govern attorneys prohibit any contact with a person who is represented by counsel, which also extends to contact through a third party such as an investigator or police officer:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

- When police begin to question defendants outside the presence of their attorneys, it will result in less confidence in the justice system and the reliability of convictions - false confessions have proven to be among the leading causes of wrongful convictions.

How do defense lawyers protect clients from interrogations after Montejo? We can instruct our clients not to speak to investigators about their case, and to only respond with "I want my lawyer," until the questions cease. Some clients, however, are susceptible to any perceived pressure from law enforcement (ironically, the same clients that may be most likely to falsely confess to something they did not do), and some police, despite what the Montejo Court may think, are quite persistent.

A member of our state criminal list-serve suggested that we file and serve notices declaring that our clients have not and will not waive their rights. The Court in Montejo notes, however, that Miranda rights cannot be asserted "anticipatorily":

We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’. . . .” McNeil, supra, at 182, n. 3. What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation—not what happened at any preliminary hearing.

If a defendant is not protected under the Sixth Amendment by asserting his rights in open court, I don't see how he will be protected by asserting his rights in a document either.

The only other suggestion that I have at the moment is, when a statement obtained through post-arraignment (initial bond hearing) interrogation is sought to be introduced at trial, preserve an objection based on the State Constitution's right to counsel as well as the Federal Constitution. Increasingly, state courts are stepping in to protect the rights of their citizens when the federal courts will not, and perhaps the South Carolina Supreme Court will take up the challenge.

Citizens self arrest form. Because:

If you witness a crime, it is your civic duty to report the crime to the police. When a crime is committed, you have the right and responsibility to make a "Citizen's Arrest". Thus, if YOU commit a crime, it would be extremely helpful (and provide a savings of tax dollars) for you to perform a Citizen's Self-Arrest.

Made easy with a handy dandy online form supplied by the University of Oklahoma Police Department.

Clinton police officer Joshua Howell was arrested for driving under the influence early Friday morning. Maybe he is guilty, maybe not - just one more in a long string of South Carolina law enforcement officers and public officials caught in the DUI net.

Every criminal defense lawyer needs to read this opinion and consider what it means to our clients and to the ever-diminishing protections we are given by the Constitution. In a nutshell, Montejo overruled Michigan v. Jackson, which said that police could not initiate an interrogation of a defendant once the Sixth Amendment right to counsel had attached. Per Montejo, police can now seek a waiver of rights and interrogate a defendant even after they are represented by counsel. Some background, first:

The Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

MIranda v. Arizona:
The Miranda decision was based on the Fifth Amendment right against self-incrimination, and held that before questioning a suspect, the police must tell that person what their rights are, including that they have a right to an attorney:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the [p445] process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

In Miranda the Court recognized the need to protect accused persons against coercive interrogations, and recognized that coercion does not necessarily involve physical violence - the Court discussed in detail the psychological interrogation techniques that were, and still are, used by police to obtain confessions from a person. The Miranda rule applies only when a person is in custody.

Edwards v. Arizona:
Edwards reaffirmed that questioning must cease when a person asserts their right to counsel, and that the police cannot come back later and re-initiate questioning unless the person's attorney is present.

Minnick v. Mississippi:
Minnick further clarified Miranda and Edwards, holding that once a person has requested counsel and spoken to counsel the police cannot then come back and re-initiate questioning without the attorney being present.

Michigan v. Jackson:
The rules of Miranda, Edwards, and Minnick were based on the Fifth Amendment right against self-incrimination, and applied only to custodial interrogation. Jackson extended the Edwards rule to post-arraignment interrogation, and held that once an accused person has requested an attorney at his arraignment the police cannot then initiate contact with the defendant and seek a waiver of his rights - it should make no difference whether a person is speaking to police or to a judge when he asks for the assistance of counsel.

Jackson held that interrogation by government agents is a critical stage of the proceedings where a defendant is entitled to the assistance of counsel under the Sixth Amendment, and recognized that police interrogation is often a coercive and one-sided endeavor. The language of the opinion makes clear the importance that the Jackson Court placed on the protections of the Sixth Amendment:

"[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings 'is far from a mere formalism.' Kirby v. Illinois, 406 U.S. at 406 U. S. 689. It is only at that time that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." 467 U.S. at 467 U. S. 189.

As a result, the "Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a 'medium' between him and the State. . . ."

. . . "Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking, he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."

"The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."

Miles Ferguson was acquitted of homicide by child abuse this week following a trial that took nearly two weeks.

Stephen Stanko was sentenced to death this week after his second trial and conviction. After he was convicted and sentenced to death in Georgetown county, the 15th Circuit Solicitor's office prosecuted him again for an Horry County murder, because one death sentence was not enough. Now they get to kill him twice.

I skimmed over Montejo v. Louisiana when it was released in May of this year, and did not take the time to read it and study it. That was a mistake - this is a must-read opinion that can and probably will change the practice of investigations and of criminal defense. Others have blogged about it and dissected it already, and back then Scott Greenfield pointed out that the case reinforces and makes even more important the directive that many of our clients ignore before retaining counsel: "The first thing out of your mouth is 'I want to speak with my lawyer.' Then shut up."

I was forced to take a look at Montejo when I discovered that a U.S. marshal, along with an unidentified SLED agent, had interviewed one of my clients at J. Reuben Long detention center a few days ago with no notice to myself, although I have been her attorney for approximately six months now and there is no question that she had invoked her right to counsel. I doubt that the marshal has heard of Montejo or reads appellate court opinions, but when I told other defense lawyers what he had done, their response was to read Montejo, which I did.

More on Montejo later. When I spoke with the marshal, he explained why there was nothing wrong with him and a SLED agent questioning my client:

1) It was ok, because he was only asking questions about her co-defendant who he is attempting to locate, and was not asking anything about her case. (Do I need to explain why questions about someone's co-defendant are exactly questions about that person's case?)

2) It was ok, because she waived her rights and signed a Miranda waiver form before he questioned her. (My response was it is not ok, because you do not approach my client and seek a waiver of her rights after she has invoked her right to counsel)

3) It was ok, because this is the way he has always done it and no-one has ever told him anything different. (My response was: the fact that you have been breaking the law for your entire career does not make it ok to break the law)

The truth is, if the marshal and SLED were looking for this individual that has disappeared off the grid, in this particular case we probably would not have had a problem with providing information to assist. He did not ask - instead he waltzed into the county jail and interrogated my client without my knowledge. Worse, he professes that he is not only unconcerned with my client's Sixth Amendment right to counsel, but that this is how he always does it.

I have been told that my client, when taken into the interrogation room, told them that she had a lawyer and did not want to speak with them. That they told her it was ok to talk with them, because they were only asking about the co-defendant. That it was ok to talk with them, because it would help her case. And that it was ok to talk with them, because I was a court-appointed lawyer who probably would not even come to see her for six months anyway.

I can't independently verify what was said, because I was not there. This is the danger of questioning a defendant outside of the presence of their attorney once they have asserted their right to counsel - unless there is a recording made, there are no witnesses. If a recording is made, the record button is not pressed until after the person has been persuaded to speak. What do you suppose happens when a case gets to court and the defendant says, "I told the officer I wanted my lawyer, but he kept after me," and the officer says, "No, she never said she wanted her lawyer?"

I was court-appointed to this particular case. That changes nothing regarding how I represent my client. We have visited this client three times in past 4 or 5 months, and have a regular correspondence with her. We care about this case no less than if she had paid a $20,000 fee. The part of the story where the interviewer essentially tells the defendant "trust me, because your court-appointed lawyer doesn't care about you," if that is what was said, would be the worst lie that was told to her in that meeting.

Edit: removed the marshal's name from the post.

Remy Orozco gets harrassed by the cops, and Paul Kennedy shares his experience not getting selected as a juror.

Yesterday as I waited for my client's case to be called at a preliminary hearing in Georgetown (edit: a preliminary hearing is a probable cause hearing, where only the officer is permitted to testify and a magistrate determines whether there is probable cause to support the arrest), I watched as another attorney argued to the magistrate that his case should be dismissed because the officer had not provided him with a chemist's report prior to the preliminary hearing as required by Rule 6 of the rules of criminal procedure.

The argument sounded good to the audience and to the inmates who were lined up in the jury box waiting their turns. The only problem is that is not what Rule 6 says. My first impression is that the lawyer was intentionally misrepresenting the rule to the court - there was no prosecutor in this court to argue the other side, and the magistrate is not a lawyer. I admit it is possible that the lawyer did not read Rule 6 before arguing about it with the magistrate for nearly an hour, or that the lawyer had read the rule and misunderstood it (he did also say at one point that his client's case should be dismissed, because the officer had not established evidence beyond a reasonable doubt, much less probable cause - chew on that one for a minute).

I'll talk about what Rule 6 does say in a minute, but first the problem that I have with this is the possibility that the lawyer was purposefully misleading a magistrate. Magistrates rarely dismiss a case at a preliminary hearing, and there was little to gain by arguing something that is dead wrong. More to the point, some magistrates rarely listen to a defense lawyer or believe them when the lawyer is explaining how the law applies to their case. Because they don't always trust defense lawyers. And they don't trust defense lawyers because some defense lawyers (like some prosecutors, but that doesn't seem to bother anyone) make things up as they go, or outright misrepresent what the law is.

Rule 6 says that the state can use a chemist's report, or chain of custody affidavits, instead of live witnesses at trial, unless the defense objects to the use of the chemist's report and chain of custody affidavits by either 1) the preliminary hearing; or 2) 10 days before trial if there is no preliminary hearing. If the defense objects to the use of the report/affidavits, then the state must establish its chain of custody and the results of the chemical tests by live testimony.

I include an objection under Rule 6 in every Brady/ Rule 5 motion that we file at the very beginning of representation in every case, because if there is any fungible evidence or chemical tests, I want them to have to prove their case with live witnesses. I can't cross examine a piece of paper. No matter how I read the rule I can't see a justification for the argument this guy made to the magistrate - it's just not there.

My client asked me if I was going to "go after the cop" the way this lawyer did. I pointed out that I'm not there to entertain my client or the audience, that the lawyer was either lying to the judge or he was incompetent and that either way the judge would figure it out eventually when he went back and looked at the rule, and that the lawyer did not get his cases dismissed after all.

When I cross examined the officer in our case (the same officer), I was aggressive but not condescending, and I got a good bit of information out of the officer that may help us in our trial which will come later. I didn't act like a clown for the benefit of the audience. And I did get a dismissal from the judge on one count (small consolation, a proximity charge was dismissed but we still have a trafficking third offense to deal with).

All we have, whether we are arguing to a jury or to a judge, is our credibility. And if we are arguing to a judge, consider that we may well be in front of that judge again, and again, and again. For Pete's sake don't lie to him.

The director of the Capital Appeals Project in New Orleans, Louisiana apparently resigned this month amid allegations of embezzlement:

The director of a nonprofit death penalty appeals agency abruptly resigned this month as state officials were headed to his New Orleans office to inspect the financial records he kept, later finding at least $100,000 in state and other public funds unaccounted for.

Jelpi Picou, an attorney hired in May 2004 by the Louisiana Public Defender Board to run the Capital Appeals Project, resigned from the post Nov. 2, days before members of the state board were to arrive for an inspection.

Given the lack of funding for indigent defense around the country, as defense lawyers struggle to preserve the Sixth Amendment right to counsel, the last thing that we need is allegations of misappropriation of funds by a public defender. It doesn't appear that Picou has been charged yet, and hopefully what they are dealing with is bad book-keeping and not theft of public funds that were designated for representation of indigent defendants.

This is hilarious, and what is sad is that there are real ads out there that come close to this - note that this guy uses some of the stock photos that you see in lawyer's websites:

Edit: I just realized that google is running ads for local attorneys across the bottom of the screen when you watch the video. Priceless.

The 14th circuit public defender was arrested and charged with driving under the influence Tuesday night (the 14th circuit includes Beaufort, Jasper, Hampton, Colleton and Allendale counties).

The public defender who oversees the 14th Judicial Circuit, which includes Beaufort County, was arrested Tuesday night on a charge of driving under the influence, according to the Beaufort County Detention Center log.

Gene Hood, 65, of Beaufort, was arrested in northern Beaufort County and was taken to the detention center just after 8 p.m., Capt. Allen Horton of the Beaufort County Sheriff's Office said.

I don't have any other information about this case, and I'm just passing along what the paper reported. I can think of scenarios where some police would love to set up a defense attorney and arrest them - quite the opposite of the deferential treatment another officer or prosecutor may get during a traffic stop; but, on the other hand, this may be just another example of how a DUI arrest could happen to anyone - cops, lawyers, mill workers, priests, this is one criminal offense that casts a wide net.

A documentary is in production that intends to tell the story behind the highly publicized and maligned "McDonalds coffee case" - you know, "that case" that everyone points to when they talk about how lawsuits are out of control in our country, although no-one seems to be able to tell you the facts of the case.

The McDonald’s coffee case has been routinely cited by the media as an example of how citizens have taken advantage of the legal system. In this documentary, you will learn what really happened to Stella, meet her grandson, who was driving the car, and hear from her doctor, the lawyers, McDonald’s quality assurance manager, and the jurors. Was the media’s portrayal of this case fair or was there an agenda by tort-reform groups to create a public perception that lawsuits were out of control. How did it become the poster child for tort reform, what is tort reform and how does it affect everyday Americans?

The tort reform advocates (corporations and the insurance industry) have been extremely effective in spreading propaganda and winning over the public to their cause. What is their cause? Save the doctors and the mom and pop businesses from the flood of frivolous lawsuits brought by greedy plaintiffs? Their goal is and has always been to prevent access to justice whenever possible, and when that is not possible to minimize their losses and maximize their profits by paying out as little as possible to people who are injured.

The plaintiffs bar has not come anywhere close to being as pro-active as the chambers of commerce and insurance industry at reaching the public with their message. Why? Perhaps because it is not the civil defense attorneys, but rather Corporate America that has funded the propaganda of "tort reform." The little people, the ordinary citizens who are hurt by corporations or denied compensation by the insurance company, do not have the billions of dollars that Corporate America collectively has to fund such an effort. The ordinary citizens who are hurt and denied justice did not know that they would become victims of "tort reform," and did not care until they were the ones thrown under the bus - and then it was too late.

Who will speak for those who do not have the billion dollar megaphone with which to speak for themselves?

From CNN:

Muhammad's attorney had argued his client was not given sufficient time to file his final appeal, but said Tuesday -- after the high court and the governor declined his request for a stay -- that he would make no further efforts to delay the matter.

"We respect their decisions and will make no more legal efforts to stop this process from going forward," said lawyer Jon Sheldon in a written statement. "In its effort to race John Allen Muhammad to his death before his appeals could be pursued, the state of Virginia will execute a severely mentally ill man who also suffered from Gulf War Syndrome the day before Veterans Day."

No apologies for what this man did and every sympathy for the families of his victims, only questions if anyone is listening: Is state-sanctioned murder any less of a sin than murder in a back alley? What circumstances made this man do what he did?

Some of us turn our heads, some tacitly allow the death penalty because we trust others to make these weighty decisions for us, some clamor for more executions with a thinly veiled thirst for blood and murder.

Is the continued viability of the death penalty in our country the result of a variation of the psychological phenomena of diffusion of responsibility? If one conscientious person is handed a pistol and told, "we as a society believes this person deserves to die - kill him for us," what are the odds that the one person would take aim and kill? What if 20 people were to share the guilt for taking the bad actor's life? 307 million?

What bothers me the most about the death penalty in our country is the hypocrisy of it. For example, the attempts to make it appear as a clinical and clean procedure and to create the appearance that there is no pain. Or the notion that it will have a deterrent effect - many of the people that are executed are of limited capacity, mentally ill, or addicted to drugs. Will killing these people deter the next mentally ill, mentally retarded, or drug-crazed person from murder?

If we are going to have a death penalty, we should do away with the pretenses. Once a person has been sentenced to death, they should be taken to a public place and their head should be blown off at point blank range with a shotgun. It would be quick and painless. It should be televised.

I've been away from the keyboard for a while and, although there are topics piling up that I want to blog about and share with you, other demands on my time have been taking priority. Balancing life, family, clients, and a blog is a constant struggle, but clients win every time.

In the meantime, I suggest that you take a look at a new criminal defense blog from Conway lawyer Johnny Gardner - Law and Baseball. We've been waiting a long time for another blog in South Carolina that has something to say about criminal law, and I am glad to see that Johnny has made an appearance on the internet.

A federal judge in South Carolina ruled today that it is unconstitutional for the state to issue the controversial "I Believe" license tags, which feature a picture of a cross over a stained glass window along with the phrase "I Believe."

Lt. Gov. Andre Bauer had pushed for the legislation authorizing the plates, and the Court noted in it's ruling that Bauer was attempting to accomplish

legislative approval of a specialty plate promoting the majority religion: Christianity. Whether motivated by sincerely held Christian beliefs or an effort to purchase political capital with religious coin, the result is the same. The statute is clearly unconstitutional and defense of its implementation has embroiled the state in unnecessary (and expensive) litigation.

Bauer is quoted as responding by saying:

"I don't expect anything different from a liberal judge who was appointed by Bill Clinton," Bauer said. "If she wants to single me out, so be it."

Bauer said it "once again shows how liberal judges are not just interpreting the law but making legislation."

The cliche "liberal judges legislating from the bench" is old and tired. The First Amendment to the Constitution says what it says, like it or not:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It is true that Christianity is the predominant religion in our country, and there is nothing wrong with that. The fact is that many provisions in the Constitution were put there specifically to protect those who are not in power - in this case, religions other than Christianity are decidedly a minority. Imagine the outcry if the state issued license tags promoting Islam. Our system of government is prohibited from endorsing any particular religion, including and especially the dominant one. Bauer, like the legislators who voted for this legislation, took an oath to uphold our Constitution - like many in government, they either are breaking that oath or they are demonstrating that they have not read the document they swore to uphold.

Using religion to grandstand and garner votes is reprehensible in my opinion and it is no different than legislators who lobby for harsher and harsher penalties for X criminal offense - it provides a platform to get attention, but it does nothing to serve the public interest.