South Carolina Criminal Defense Blog

From Fitsnews.com: attorneys in Alabama requested a continuance in a written motion on grounds that the trial date conflicted with Alabama playing at the national championship game in Pasadena, California, an event for which they had bought tickets. Motion granted. Excerpt:

8. It is also understood that many of the witness involved are trying to acquire tickets to the game and/or scheduled to be at the game in Pasadena on January 7th and certainly any juror selected to participate will likely be preoccupied and not able to devote their full attention to the case before them during the week of January 4, 2010, and therefore, the parties would be prejudiced by the distraction caused by such a major event of such significant importance to so many people in this State.

9. ROLL TIDE!! ( although my secretary is for the other great team of this State, she feels that I need to attend this championship game!); and may the Longhorns be defeated.

/s/ Jon B. Terry______
JON B. TERRY

In In re Walter M., decided December 17th, the S.C. Court of Appeals affirmed a juvenile's conviction for the killing of another child in Georgetown County, finding that there was sufficient evidence to prove malice aforethought where the child "retrieved a deadly weapon from his brother's closet, walked to another room, opened a window, and pointed the gun," and there was testimony that it took "six pounds of pressure to fire the gun and the recoil on the specific firearm in question was 'negligible.'"

The Court states that "the family court could infer malice from a defendant's use of a deadly weapon," holding that the S.C. Supreme Court's recent decision in Belcher was not applicable. I don't see how Belcher is not applicable, and the Court of Appeals does not explain its reasoning other than a footnote which notes that they have read Belcher and do not think it is controlling. The Court in Belcher said that a jury instruction that malice may be inferred from the use of a deadly weapon is not proper "where evidence is presented that would reduce, mitigate, excuse or justify the homicide." According to the Court of Appeals in this case, the juvenile presented testimony that the shooting was accidental - so is the Court of Appeals saying that it believes the state's evidence over the juveniles, or is the Court of Appeals saying that it does not matter because the case was presented to a judge and not a jury (in South Carolina, children are denied the right to a trial by jury)?

The Court of Appeals also holds that the juvenile's argument that the State failed to prove beyond a reasonable doubt he killed Victim with malice aforethought was not preserved for appeal - noting that, although the Court of Appeals believes that juvenile cases should be exempt from strict rules of issue preservation, the S.C. Supreme Court has never addressed the issue and so the Court of Appeals declines to address it as well.

In State v. Herring, decided December 21st, the South Carolina Supreme Court affirmed Dewain Herring's convictions for murder and pointing and presenting a firearm. Herring was a practicing attorney in Columbia, South Carolina and was disbarred after his conviction in 2007, for shooting and killing the manager of a nightclub that he had been ejected from.

The Court held that it did not violate the Fourth Amendment for officers to peek into Herring's garage window - it was reasonable under the circumstances to check the garage window to ensure their safety, and no evidence was obtained as a result of looking in the garage window anyway. When no-one responded to knocks on the door, the officers obtained a search warrant and returned.

Regarding the search warrant, the Court held that 1) it was supported by probable cause where witnesses described the suspect, his clothes, his car, gave his license number, and the license number was that of a car that was registered to Herring's business; 2) the fact that the warrant contained a different officer's name at the top who did not actually appear in front of the magistrate was a scrivener's error and did not invalidate the warrant; and 3) a subsequent search warrant obtained by SLED over the telephone, by facsimile, and without appearing in person before the magistrate, even if it was invalid (the Court is not clear as to whether it is valid or not), was saved by the good faith exception, because the agents made "a good faith attempt to comply with the statute’s affidavit procedures."

Justices Kittredge and Pleicones wrote a concurrence to point out that there were no exigent circumstances to justify looking into Herring's garage two hours after the shooting, but noted that it did not matter anyway since no evidence resulted from the window-peeking.

Back in September, a blog popped up that was scraping the posts of real bloggers, published under the name of Fresno criminal defense lawyer Melina S. Benninghoff. Mark Bennett's investigation turned up what was apparently a former client of Benninghoff's named Wayne Conley whom she was allowing to design and publish her website and develop her online presence.

Bennett later amended his posts to remove references to Benninghoff's name and to reflect that he had talked with Benninghoff and concluded that Conley was doing the damage without her knowledge - I can see where this could happen and, although a definite error in judgment, she should have the opportunity to correct it.

That was at least three months ago, and it appears that Conley not only still has access to her website and blog, but is now defaming bloggers and attributing it to Benninghoff. The attorneys who are being smeared on Benninghoff's website are, coincidentally, also the attorneys with the most successful criminal defense blogs and those who have called out Benninghoff and Conley on what was happening. Conley is what he is, and I doubt that he will change - he wants attention and he is getting it at Benninghoff's expense.

Melina Benninghoff, on the other hand, three months after she was put on notice of what was going on in her name on her websites, now owns this mess. This has got to be the saddest example of "outsource your marketing, outsource your ethics" I have seen yet. If there was not cause for a bar complaint back in September, there is now. And I believe that the defamation that is being published on her website, including claims that bloggers have committed crimes, that they appear drunk in court, and that certain bloggers "hate" their clients, is actionable.

In State v. Anderson, decided December 21st, the South Carolina Supreme Court held that authentication of a 10-print fingerprint card does not require the testimony of the person who actually took the fingerprint. Although trial counsel did not object on grounds of hearsay, the Court noted that the fingerprint card is admissible under the public records exception. The only question remaining is then whether the document was authenticated.

State v. Rich, 293 S.C. 172, 359 S.E.2d 281 (1987), requires evidence as to when and by whom the card was made and that the prints on the card were in fact those of this defendant. "The State in this case presented evidence regarding: when and where Anderson's fingerprints were taken; how they were submitted to SLED; the process implemented by law enforcement for taking the fingerprints; and how an accurate record of them was maintained in the AFIS." In addition to the testimony of the State's "fingerprint analysis expert," who testified that the prints on Anderon's card matched the prints that were lifted from the crime scene, the Lieutenant in charge of the crime information center at SLED and who oversees the AFIS (automated fingerprint identification system) also testified as to the procedure by which fingerprints are collected and stored. The Court held that this was sufficient to satisfy the authentication requirement under Rule 901 of the Rules of Evidence.

It seems to me that this issue falls squarely under Melendez-Diaz, where the U.S. Supreme Court held that it violates the Confrontation Clause to admit a chemist's affidavit in lieu of the chemist's live testimony to prove that a substance is in fact an illegal drug, and the S.C. Supreme Court's reasoning is the same as that which was rejected in Melendez-Diaz - that it would put too high of a burden on the State to produce the live witness who created the document:

To require this type of testimony would create an unrealistic standard and, at times, an insurmountable obstacle for the State. Given the thousands of fingerprints on file with SLED, it would be difficult to locate and procure testimony from the actual person. There may be instances where the person has changed jobs, has relocated out of state, or may be deceased. If the actual person is unavailable for any of these reasons, then the State could never definitively establish the authenticity of a suspect's fingerprint card.

The U.S. Supreme Court rejected this argument in Melendez-Diaz, and held that we cannot disregard the Constitution because it is inconvenient:

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

Requiring the live testimony of the creator of a fingerprint card would not be as burdensome as the Court believes, it would merely create more work for law enforcement and the prosecution. Suppose that law enforcement gets a hit from AFIS from a latent print taken at a crime scene - even if they could not produce the technician or officer who took the original card, this would give them their lead to investigate and obtain further evidence, and wouldn't it provide enough evidence to warrant obtaining a new fingerprint card that could be authenticated at trial? This would avoid the possibility that an old fingerprint card was mis-filed, wrongly numbered, tampered with, or damaged, which is the reason that we require the testimony of the person who created the document.

In Dervin v. S.C., decided December 21st, the South Carolina Supreme Court held that the trial court can only sentence a person based on the amount of drugs that is specifically determined by the jury. In this case, although Dervin was indicted for trafficking cocaine 200 - 400g, the judge told the jury that it could convict her if they believed that she possessed 10 or more grams of cocaine. Because there was no specific finding by the jury as to whether she possessed 10 grams or 400 grams, the judge's sentence of the 25 year mandatory minimum for trafficking > 200 grams violated Apprendi - the jury did not find beyond a reasonable doubt that Dervin possessed anything more than 10 grams of cocaine.

Because Dervin's counsel at trial failed to object to the 25 year sentence, the Court granted her PCR petition and remanded her case for resentencing under the statute for trafficking 10 - 28g, which carries 3-10 years for a first offense.

The Honorable Cormac J. Carney, a federal judge in California, dismissed charges William J. Ruehle and other defendants in the Broadcom case, based on the prosecutor's intimidation of key witnesses; i.e. threatening them with prosecution if they did not cooperate and making them say what the prosecutor wanted to hear. Or actually charging them despite a lack of evidence and then offering them deals only if they said what the prosecutor wanted to hear.

For the past few days it's been the topic on all listserves I'm a member of and on several blogs - the White Collar Crime Blog, Law and Baseball, Gamso, and Simple Justice to name a a few.

The transcript from the hearing is here, and I recommend reading it. It's a rare day when a judge holds the prosecutor's feet to the fire and dismisses a case with prejudice based on prosecutorial misconduct - but "you've got to make them lose to make them learn," as Cathy Cook in Ohio says.

BASED ON THE COMPLETE RECORD NOW BEFORE ME, I FIND THAT THE GOVERNMENT HAS INTIMIDATED AND IMPROPERLY INFLUENCED THE THREE WITNESSES CRITICAL TO MR. RUEHLE'S DEFENSE. THE CUMULATIVE EFFECT OF THAT MISCONDUCT HAS DISTORTED THE TRUTH-FINDING PROCESS AND COMPROMISED THE INTEGRITY OF THE TRIAL.

TO SUBMIT THIS CASE TO THE JURY WOULD MAKE A MOCKERY OF MR. RUEHLE'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS AND A FAIR TRIAL. THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION GUARANTEES THE ACCUSED THE RIGHT TO COMPULSORY PROCESS FOR WITNESSES IN ITS DEFENSE. FOR THIS CONSTITUTIONAL RIGHT TO HAVE TRUE MEANING, THE GOVERNMENT MUST NOT DO ANYTHING TO INTIMIDATE OR IMPROPERLY INFLUENCE WITNESSES.

Bold and inspiring words. ln another bombshell, U.S. District Judge Clay D. Land in Columbus, Georgia rejected a "sweetheart plea deal" made by federal prosecutors with a snitch in exchange for his testimony against acquitted criminal defense lawyer J. Mark Shelnutt, instead sentencing the snitch to twice the recommended time (what if Shelnutt had been convicted, would the snitch have gotten his deal then?).

U.S. District Judge Clay D. Land issued his harsh criticism of the U.S. Attorneys' Offices for the Middle and Southern Districts of Georgia in an unusual 19-page order explaining why he more than doubled the recommended prison sentence of a federal witness who testified against Columbus lawyer J. Mark Shelnutt.

Land suggested that the judgment of the U.S. Attorney's Middle District office in Macon, Ga., which oversees federal prosecutions in Columbus, "may have become clouded by its zeal to bring down a prominent defense attorney."

"The Court became concerned that the focus of the U.S. attorney's office was on getting a high-profile lawyer and negotiating sweetheart plea deals with the actual drug dealers to accomplish that," Land wrote.

Land made it clear that he believed that it was not a "rogue assistant" prosecutor making the decisions, but that the problem went to the "highest levels of management" in the district attorney's office.

Make them lose to make them learn is one to approach the problem of lying jailhouse informants. Take away their motivation to lie is another.

What has bothered me since these stories broke is the fact that these are high profile white collar defendants. Would these judges have done the same thing if it were an indigent black man on trial for a drug crime, or a rape or a murder, represented by the public defender's office? The fact is that these judges see prosecutors buying perjured testimony over and over - this is how the system works, even more so in federal court - but the courts do not do anything to stop it until they have found the most blatant examples with rich, white-collar defendants.

I've asked this question in the last few days, have you seen a case where a judge has dismissed charges based on prosecutorial misconduct against an indigent defendant? I've seen a case where a judge blasted the prosecutor for not only using perjured testimony in trial but then vouching for the snitch's testimony even after it was proven false - that judge dismissed some of the counts against the defendants in a strongly worded opinion, but then sent them to prison on the remaining counts.

So, print the transcript linked to above, read it, share it, celebrate it, but above all use it to advocate for clients who are not privileged but who should be receiving the same safeguards against prosecutorial misconduct as these upper class defendants received.

Update: U.S. District Judge Robert Gettleman in Chicago has ordered a new trial for former Streets and Sanitation Commissioner Al Sanchez, based on the government's failure to disclose to the defense that one of the prosecution witnesses was a high-ranking gang leader and drug dealer. (Impeachment material falls under Brady and must be disclosed to the defense prior to trial.) Another example of a judge doing the right thing, and the only thing that will make prosecutors follow the rules, at least for a wealthy white collar defendant.

In recognition of the fact that the ABA's best law blogs contest is a joke, Mark Bennett has graciously offered to host the First Annual Bloggers' Best Awards. Wonderful idea - one vote per voter and only bloggers, who know what they're talking about, can vote. Honestly, I don't read many blogs other than criminal defense and a few personal injury blogs, but here's the ones that I do read (and a few ideas for categories that Bennett forgot):

* Best Personal Injury Law Blog: Paul Luvera's Plaintiff's Trial Lawyer Tips

* Best Criminal Law Blog: Defending People (have to, sorry)

* Best Legal Humor Blog: Courtoons

* Best Legal Criticism or Opinion Blog: Simple Justice (I honestly think you belong in this category Scott)

* Best Legal News or Politics Blog: Grits for Breakfast (even though the content is fairly local)

* Best Law Prof Blog: Legal Ethics Forum

* Best Law Blog in a Category SMT forgot:

Best Public Defender Blog: A Public Defender (public defenders really deserve their own sub-category. They could even win twice that way.)

Most original concept for a 2009 blog: Law and Baseball

Best law blog that defies categorization: The Life and Times of a Texas Trial Lawyer

Best criminal law blog on a marketing-blog-type platform other than wordpress or blogger.com:S.C. Criminal Defense Blog (seriously. I might could win twice that way like Gideon.)

Do lawyers on the ground in Maricopa County care about the state of their courts as much as the scattered bloggers across the country? Today was the rally on the courthouse steps, and according to the Phoenix New Times, about 300 showed up, mostly attorneys:

In a series of short speeches, the protestors focused on two things: defending the local judiciary from Thomas' onslaught of attacks, and then turning the tables and attacking Thomas.

Attorney Tom Ryan kicked things off by explaining that he was neither a criminal defense lawyer, a Democrat, nor a liberal. "I'm a native of Chandler, Arizona, a Republican, and a lifelong East Valley conservative," he said, setting things straight right out of the chute.

But, Ryan said, it was time for "all concerned men and women of the Bar to come together."

"Andrew Thomas is a bully and a coward," Ryan said, to cheers from the phalanx of lawyers, "who, when he does not get his way, abuses the awesome power of the county attorney in a misguided and unethical attempt to get his own way."

The crowd recited the Attorney's Oath, sang America the Beautiful, and called for the removal of County Attorney Andrew Thomas.

Via Balko: a D.C. cop gets pissed at kids having a snowball fight and wades into the fray with his pistol.

CNN reports that anti-war protesters dressed in black, wearing masks, and carrying anti-war signs began to pelt passing cars with snowballs. Really, the first cop that appears to cause the ruckus is not shown drawing his weapon on camera, although he pulls his jacket back and has his hand on it. Then a second officer arrives on scene with gun drawn - apparently he was responding to a call that there was a man in the crowd with a gun. Except the man in the crowd with the gun was the first (plainclothes) cop, who was busy yelling at the kids (throw another snowball! go ahead!).

Looks like they were having a blast - except for the plainclothes cop named Baylor (sp?) who was pissed off because he got hit with a snowball. In the middle of a snowball fight. With his gun. The second officer clearly was only there looking for the dangerous guy (Baylor), and had his gun drawn but aimed down by his leg until he realized that it was a cop causing the ruckus.

Update: better video from Reason.com, showing Baylor with his gun, shoving one person, and grabbing another and dragging them to his hummer:

Via Gamso: Maricopa county defense lawyers are filing motions asking that County Attorney Andy Thomas' office be disqualified from prosecuting cases - after filing criminal charges against one judge and bringing a RICO action against others, can the courts operate impartially under this type of threat?

Last week, prosecutors working for Thomas charged the county's presiding criminal court judge, Gary Donahoe, with three felonies -- including bribery -- with no evidence other than that they disagreed with his rulings. Deputies working for Thomas' ally, Sheriff Joe Arpaio, also visited the staff of local judges in a clear attempt to intimidate. And Thomas' office filed a badly written RICO lawsuit alleging the judges are part of a (seriously now) "criminal enterprise."

Some defense attorneys believe that makes for a huge conflict of interest if those judges are presiding over cases brought by Thomas' office. (Will they worry that if they rule against Thomas, they'll be charged criminally, too? Will they placate the crazy county attorney just to stay out of the limelight? The possibilities do exist...)

So motions have now been filed in a number of cases, asking the judges involved to disqualify the County Attorney's Office from prosecution.

Rick Horowitz at Probable Cause is talking about how police states are born - they do not spring into existence fully formed, but they develop slowly, gradually. The reason that Maricopa County and Sheriff Arpaio are so frightening (and fascinating) is because we are watching "another step in the transformation from the rule of law to the rule of man," and, so as not to be an utter pessimist about it, we are holding our breath while we watch to see if Maricopa County's lawyers and courts can take back and hold the rule of law.

Susan Saladoff reports that Hot Coffee the Movie has finished production and they will begin editing first of the year. Hot Coffee is a documentary film that will highlight the lies and mistruths of the mostly successful multi-billion dollar "tort reform" propaganda campaign that the chambers of commerce, tobacco and pharmaceutical companies, insurance industry, and Corporate America in general has engaged in since the mid-80's.

The film's production is being done on donations, and from what I understand they are in need of some - you can donate online here.

Why donate? Any effort to counter the disinformation of "tort reform" is worthwhile.

The reason that the "tort reform" propaganda has been as successful as it has is because of the funding and organization that has been behind it - like political candidates, if there is enough money backing a campaign it is bound to be successful. There is no effective media counter to tort reform, because the people who are hurt by it, the ones who are denied access to the courts or who are viewed with skepticism by the public and potential jurors, have no organization and have no funding - they do not know that they are potentially plaintiffs who need access to the courts until it is too late.

The media and the tort reform campaign point to specific instances of "runaway juries" that give outrageous verdicts to undeserving plaintiffs, with a sound-byte that does not involve enough time to identify the issues involved in the case, much less the extent of injuries suffered, the actions of the corporation in response to the injuries, or the many details that the "runaway jury" learned during the course of a week-long trial. The case of Stella Liebeck v. McDonalds is the best known example of this type of disinformation.

Liebeck bought a cup of coffee at McDonalds, spilled it on herself, sued, and was awarded approximately 2.7 million dollars at trial. Sound pretty outrageous?

She was 79 years old, she was a passenger in the car which was parked in the parking lot at the time and she was putting sugar in her coffee when it spilled. She suffered third degree burns to her thighs, buttocks, and groin, spent 8 days in the hospital getting skin grafts, and required medical treatment for another 2 years.

The jury learned that McDonalds required their franchises to serve coffee at temperatures of 180 - 190 °F, although other restaurants were serving it at lower temperatures, and McDonalds had more than 700 reports of people burned by their coffee from 1982 to 1992. Although McDonalds had settled similar claims for more than $500,000, they offered Liebeck $800. Although the jury returned a verdict of 2.7 million, mostly punitive damages, the judge reduced the verdict to $640,000 and the parties settled for a lower amount before the appeal. McDonalds still serves its coffee at 176–194 °F, but they made their warning label bigger. People are still suing them for coffee burns.

There are safeguards in place that prevent frivolous lawsuits from getting to a verdict - a truly frivolous lawsuit can be dismissed by the court soon after it is filed on what is called a 12(b)(6) motion, and an attorney can be sanctioned for bringing a frivolous case. If the evidence does not exist to support a party's claims, the court will grant summary judgment and that ends the case. If a jury's damages award is excessive in light of the circumstances of a particular case, the trial judge will reduce it. If the trial judge makes mistakes, the appellate court will correct them.

It is long past time for "someone" to do something to counter the corporate propaganda machine of tort reform. Donating to help this documentary get finished is a good place to start.

13 Dodge Chargers and 2 Chevy Tahoes awarded to agencies based on the number of DUI arrests (not convictions, arrests):

The 13 agencies that received the 13 Dodge Chargers and two that received Chevrolet Tahoes on Wednesday have to qualify by doing monthly DUI enforcement and other activities.

This is not quotas, it's the reward system. The article also notes the Highway Patrol will begin an "advertising blitz" during the holidays. Sober or slammer, zero tolerance is the law, buzzed driving is drunk driving, and other misstatements of the law for general consumption.

Focuses on defendants who have not been provided with attorneys to handle their appeals.

“If these lawyers were truly interested in helping the defendants, they would focus on getting them the services they need instead of chewing up state dollars on a lawsuit. Unfortunately, the state will be forced to spend already limited dollars on unnecessary litigation instead of serving these defendants,” says Chris Schrimpf, a spokesman for Governor Perdue.

Looks like the governor just does not get it. The lawyers are focusing on getting the services that defendants need by forcing the state to provide them. The right to effective counsel is not optional and the state is obligated to provide for it.

CBS 5's report from 10/30:

Arpaio.com chronicle's Arpaio's misdeeds and calls for his removal from office.

Maricopa County Sheriff threatens Colin Campbell, Mary Rose Wilcox's attorney, giving him until 5:00 today to "voluntarily talk" with the sheriff's office about his client's case. Maricopa County Supervisors Don Stapley and Mary Rose Wilcox were indicted this week (Don Stapley for the third time) and charged with perjury, forgery, and false swearing - both were outspoken critics of the Sheriff's policies.

The sheriff's office sent a letter to Campbell demanding that he speak to them about:

"Any effort with the Arizona State Bar Association to file complaints against Mariopa County Attorney Andrew Thomas."

*Any discussions with the current presiding judge, Barbara Mundell, about the selection of judges -- particularly, the selection of a judge in the so-far-unsuccessful case against Don Stapley.

*Same thing as above, but regarding possible talks with retired Judge Anna Baca.

*"Any involvement/discussion with the Maricopa County Criminal Court Tower."

Campbell filed a motion this morning asking the Court to order Arpaio and Thomas to stop their harassment and to stop interfering with his representation of his client.

An article in the Huffington Post today says that Arpaio (and Thomas by proxy) are being investigated by the FBI for abuses of power, and that the Department of Justice has set up a hotline for Maricopa County residents to call to report suspected wrongdoing by Arpaio and his office (877-613-2137), but that both Spanish and English mailboxes at the hotline's number are full.

Reportedly, the FBI is investigating Arpaio, who works hand-in-hand with Thomas on these corruption cases, for alleged abuses of power. Besides Maricopa County Supervisor Don Stapley, other local political opponents of Arpaio have also found themselves subjects of investigations by Arpaio and Thomas, including Phoenix Mayor Phil Gordon, former Mesa Police Chief George Gascon, former candidate Dan Saban, Arizona Attorney General Terry Goddard, Maricopa County Manager David Smith, Superior Court Presiding Judge Barbara Mundell, ACLU attorney Dan Pochoda, and Phoenix New Times reporter John Dougherty.

KPHO news in Phoenix published an article in October that announced Arpaio was under investigation by the FBI, and gave an account of Arpaio's misdeeds and political prosecutions.

Maricopa County lawyers have announced a rally December 21st at the courthouse to protest the actions of County Attorney Andrew Thomas and demand that he be suspended from the Arizona State Bar. The world (or at least the blawgosphere) is watching to see whether and to what degree Maricopa's lawyers are going to take action.

Random DUI stops are pretty rare. Contrary to what police officers would have you believe, most DUI stops do not result from an officer driving down the road, seeing a random motorist swerving, and then leaping into action to protect the public (although I have no doubt that this does happen at times). More often, officers are looking for a pretext to pull someone over, then if there is any odor of alcohol (real or imagined), they get the person out of the car for roadside exercises.

There is a bar on my way home from the office (Remedies in Myrtle Beach) where almost every evening when I drive by there are blue lights on the side of the road. Many of my clients pull out of the parking lot of a bar and are immediately picked up and followed by a police officer until they fail to use a turn signal or swerve.

The S.C. Highway Patrol has "DUI enforcement units" that do nothing but drive around looking for potential DUI's.

The State Department of Public Safety sent a news release Friday saying that additionally, the number of SCHP DUI arrests are continuing to rise with the addition of new DUI teams throughout the state devoted exclusively to DUI enforcement. These teams have made more than 1,000 DUI arrests since July.

A trooper in the above article points out that during the Christmas season, people at office parties may have a couple of drinks and not realize the potential effects. The problem with this is that some officers think that one drink is too many, and if they smell alcohol (one beer on the breath smells the same as ten) they will look for a way to take the person in.

The truth is that it is not illegal to have a couple of drinks at an office party and then drive. Drinking and driving is not illegal in South Carolina. The South Carolina Department of Public Safety, MADD, and other organizations have been engaging in a propaganda campaign for years, with billboards and television and radio ads, proclaiming that zero tolerance is the law, buzzed driving is drunk driving, sober or slammer, and other slogans designed to mislead the public (and taint the jury pool) about what the law is in S.C. The law does not say that a person cannot drink and then drive - the law says that DUI is when a person's faculties to drive are materially and appreciably impaired.

Law enforcement agencies receive grants based on the number of DUI arrests they make - if the number of arrests goes down, they are in danger of losing that money. Law enforcement officers are given awards for the number of DUI arrests they make (arrests - not convictions), which encourages them to make as many DUI arrests as they can in order to gain recognition.

DUI enforcement is a lucrative business for both law enforcement and organizations such as MADD, and the competition to see who can make the most arrests has gotten out of control.

Last month Florida issued an ethics advisory opinion stating that it would be an ethics violation for a judge to "friend" an attorney on Facebook, as it would create an appearance of impropriety (but the opinion allows that an attorney could become a "fan" of a judge on Facebook. Earlier this year, a North Carolina judge was given a public reprimand for "friending" a lawyer on Facebook - although in that case the allegations were that the judge and lawyer were also discussing an ongoing trial via Facebook.

South Carolina has now issued an ethics advisory opinion of its own, advising that a magistrate judge can be friends with law enforcement on Facebook provided they do not discuss anything related to the judge's employment.

It is probably best policy for any judge to stay away from networking sites such as Facebook, but the argument of the Florida ethics panel that being "friends" on Facebook creates an appearance of impropriety is ridiculous - anyone who uses social media such as Facebook knows that the title "friend" on Facebook carries a quite different meaning than it does in the real world. Ex-parte discussion of pending cases on social media sites or anywhere else is prohibited by its own rule.

It's interesting that the opinions thus far specifically are prohibiting lawyers from being "friends" with a judge, but the S.C. opinion approves the "friending" of law enforcement officers by judges.

In Porter v. McCollum, decided November 30, the U.S. Supreme held that it is ineffective assistance of counsel not to investigate and present mitigating evidence regarding a veteran of the Korean War's military service.

Porter was wounded and decorated for his service in the Korean War, where he fought in two major engagements. As a result of his service and the horrors inflicted in those battles, he suffered severe trauma which included post-traumatic stress disorder and brain damage which could result in impulsive, violent behavior. In 1988 he was sentenced to death for the murders of his former girlfriend and her new boyfriend.

At trial, Porter represented himself, but standby counsel was appointed in case he did change his mind. Porter ended up stopping the trial and pled guilty before the end of the state's case, and then changed his mind and requested that standby counsel represent him for the sentencing proceeding. His lawyer then presented no evidence of Porter's mental conditions, abuse he had suffered as a child, or his military record - the jury, who doubtless did not know anything of this man except that he had killed two people, then recommended that he be sentenced to death.

This case is important for several reasons. One, it reaffirms that a trial lawyer has to investigate his client's case and that the Constitution requires more than an attorney to stand next to the person, especially in a death penalty trial.

Second, it shows the importance of standby counsel to take their role as counsel seriously. I can imagine that the attorney in this trial did not expect that he would play any major role, as Porter was representing himself - but then the unthinkable happened for this lawyer who was sitting there in the courtroom, knowing that he was not prepared, hoping that he would not be needed - Porter asked for his help. And the lawyer was utterly and completely unprepared to give it to him. It is not often that standby counsel is needed, but it does happen and when it does this opinion makes it clear that you must be prepared.

More importantly, this opinion reflects the growing recognition of the effects that war can have on our troops and the Court does not brush it under the rug like so many have done. The stress of military service, particularly for those who have been in combat, watched their friends die around them, taken lives, and looked death in the face themselves, changes a person. There are still people who give everything for their country and when they return they are marginalized and treated as criminals because they develop drinking or drug problems to cope with their trauma or because they are unable to get the help that they need.

The Court is absolutely right, knowledge of Porter's background, his childhood, his military service, his mental illness and addictions, the relationships that led to the fateful night in question - in short, his story, would have made the difference between life and death.

Via Injustice News:

The lawsuit alleges that Detective Thomas Marmo of the St. John's Sheriff's Office recorded a meeting between attorney Anne Marie Gennusa and her client Joel Studivant, then forcibly took a statement that Studivant had written from his attorney:

"Defendant Marmo became visibly disturbed and demanded that Ms. Gennusa give him the statement," the suit alleges. "As Defendant Marmo demanded the statement, he stood blocking the doorway and Plaintiffs were not free to go."

He then "forcefully ripped the piece of paper containing Mr. Studivant's statement out of Ms. Gennusa's hand ... with such force that he broke the fingernail on Ms. Gennusa's left ring finger."

Studivant was then arrested, handcuffed and booked into the jail.

From New Orleans:

The head of the Orleans Parish public defender's office claims two of his attorneys have been roughed up by sheriff's deputies at Criminal District Court, and he has filed a complaint with the State Judiciary Commission.

Chief Public Defender Derwyn Bunton said there have been two incidents over the past 12 months in the same courtroom, with the second incident coming just days ago.

Bunton said one of his staff attorneys, Stuart Weg, was arguing for the release of an "innocent and erroneously detained man" when Judge Ben Willard ordered him removed from the courtroom.

"He didn't rush the bench. He didn't go after any deputies. He's a lawyer. He's an officer of the court," Bunton said.

Weg was arrested by Orleans Parish Criminal Sheriff's Deputies.

In a letter to the State Judiciary Commission, Bunton said, "Mr. Weg was released from Orleans Parish Prison and returned to our offices with bruised ribs and a date to appear in municipal court for various charges."

Seriously, I cannot imagine an Horry County judge ordering a defense attorney to leave the courtroom or our sheriff's deputies doing violence to an attorney. There is surely more to the story, but all I've got is what was reported in the article.

Maricopa County is going to keep 'em coming one after the other - via Matt Brown, who has a front row seat, Maricopa County Attorney Andrew Thomas announced that he is filing a criminal complaint against Judge Donahoe for hindering prosecution, an announcement that came just hours before a scheduled hearing before the judge (the hearing was cancelled):

Michael Scerbo, spokesman for County Attorney Andrew Thomas, stated in a news release that Donahoe is being accused of hindering prosecution and that Thomas and Sheriff Joe Arpaio will hold a news conference at noon.

The announcement came a few short hours before the 1:30 p.m. hearing scheduled by Donahoe concerning a request for court action on Thomas' planned hiring of special prosecutors. But we just got word from the court that the hearing has now been vacated.

If the judiciary cannot maintain their independence and stop this, who can? And if they cannot, what is to stop this from happening anywhere, if law enforcement officials see that they can control the courtrooms.

Update:

Matt Brown has posted the complaint charging Judge Donahoe with 3 felonies.

Gamso has a recap of the latest in Maricopa County - Deputy Adam Stoddard is still in contempt of court for stealing defense attorney Joanne Cuccia's file; Judge Donahoe denies County Attorney Andrew Thomas' motion to unseal the file in question; Joe Arpaio issues a press release blasting Judge Donahoe for being soft on crime, but the local paper promptly reveals that Arpaio's facts are wrong - the 6 defendants that Arpaio listed as having gotten lenient sentences in fact went to prison or the County Attorney recommended lenient sentences.

Arpaio refuses to assign a deputy to Judge Lisa Flores' courtroom to guard Antonio Lozano, the defendant whose file was invaded by Stoddard, so Judge Flores, rather than asserting herself and ordering the sheriff to do his job, recuses herself from the case and punts to Judge Donahoe.

Arpaio and the County Attorney file suit against and indict County officials Don Stapley and Mary Rose Wilcox who reportedly disagree with Arpaio's policies. Apparently he tried this already last year with Stapley but all charges were dismissed against him.

The judges in Maricopa County need to take control of their courtrooms - I believe that is an understatement. Reading about this insanity from a distance, I am wondering how many of Arpaio's actions over the years rose to the level of civil rights violations, and if and when the federal government should step in and give Maricopa County back to its citizens.

Brian Tannebaum has a post about Michelle Santamaria, the daughter of Palm Beach County Commissioner Jess Santamaria, who got a plush gig with Palm Beach County teaching a class to officers on "how to testify." Brian's point in the post is that, while the news is debating the ethics of the Commissioner's daughter teaching this class on the taxpayer's dime, no-one is saying a word about the ethics of officers taking classes on "how to tesify."

"Did you see the elephant walk out of the room while you were reading about the mice?"

Law enforcement officers in South Carolina take this class as part of their training at the Criminal Justice Academy, and in every trial I ask the question "did you take a class on 'how to testify' while you were at the academy?" At which point the officer always turns in his seat to face the jury, makes eye contact with the jurors, leans forward ever so slightly in the witness chair, and responds, "yes I did."

A federal prosecutor in Rhode Island, Assistant U.S. Attorney Gerard Sullivan, refused a breath test but was not charged with DUI after allegedly using his position to influence the officers involved:

McCartney said Sullivan was stopped early Thanksgiving morning for driving erratically and smelled of alcohol. He said Sullivan told the officer he had just left a tavern and had been drinking. When asked how much, he replied "too much."

Sullivan then failed a series of field sobriety tests and was taken into custody. He later refused to take a chemical breath test, McCartney said.

According to officers who dealt with him, Sullivan said several times that he is a prosecutor and knows the chief. Sullivan, the former head of the criminal division in the U.S. attorney's office in Rhode Island, has been deeply involved in prosecuting Statehouse corruption.

McCartney said there is a department policy to charge people who refuse a breath test with DUI "if the circumstances are corroborated," but Sullivan was only charged with refusing the breath test. McCartney said the decision is under two separate police reviews, oneby the professional standards unit and one by a so-called prosecution officer, who is working with the city solicitor's office.

I'm all for police/ prosecutorial discretion in not charging people with driving under the influence unless they are sure - but here we have a public official who reportedly admitted he had been drinking "too much," and reportedly used his position as a prosecutor to avoid the criminal charge. It could happen to anyone, yes. But consider the irony of one getting special treatment because he is in a position of someone who enforces the law.

When two former Pennsylvania judges were indicted after accusations that they had received millions of dollars in kickbacks and payments in exchange for sentencing children to detention centers, one thing that was pointed out was that many of the children who appeared before them were not represented by counsel.

One of the questions that has been asked is why no-one stepped in and stopped it from happening - if the children who stood before the court had counsel as they are entitled to, would the kids for cash scandal have been exposed sooner?

Luverne County Chief Public Defender Basil G. Russin appeared before a commission last month to answer questions including why he did not step in and do something - Russin's response was that there was no funding for juvenile court, he and his lawyers had no training in juvenile justice and, despite concerns expressed to him by an assistant public defender, they did not provide lawyers to juveniles.

"... unfortunately until a month ago, we had no training in juvenile," Russin said last month. "We have, you know, our funding. It's a terrible cop out and a terrible excuse. We didn't know what defenses existed out there. We do now. And now I see all the work we have ahead of us. And I don't know where I'm going to get the money to do this, but hopefully I can get it somewhere." . . .

While testifying, Russin admitted that Assistant Public Defender Jonathan Ursiak expressed concerns to him juveniles appearing before Ciavarella without attorneys.

. . . "I said, we're not going to seek clients. And we don't have the time or the manpower to intervene," Russin said.

It is a cop-out, and Russin's office shares the responsibility for what happened in Luverne County, but nevertheless it also spotlights why funding for indigent defense is important and what can happen when it falls by the wayside.

Not exactly the strongest statement, but it's a start:

The head of the Orleans Parish Public Defender's office said he may have to start refusing cases after a one-time allocation from the city of New Orleans dries up, with no funding included in next year's budget.

I've advocated for a while now that lawyers, including public defenders, should refuse to accept appointments when adequate funding is not made available or when their case loads are so high that they are ineffective by default. When the South Carolina Commission on Indigent Defense announced that they would no longer pay appointed attorneys due to the legislature's lack of appropriation of indigent defense funds, I and other defense lawyers filed motions to halt the prosecution of our clients until funding was made available, and to release them from jail.

By and large, the public is not concerned with the rights of people who are accused of crime (until it happens to them), and when the voting public is not concerned politicians are not concerned. The only thing that will get the attention of the public and the legislature is when prosecutions stop because attorneys ethically refuse representation or because judges begin releasing people who cannot be prosecuted.

When a public defender's office cannot afford to hire enough attorneys to handle the numbers of accused that are being arrested and prosecuted in our prison obsessed culture, or cannot afford to hire enough staff to conduct any meaningful investigation of clients' cases, or when funding is not made available to retain the experts needed to defend a client, they have an obligation to refuse to accept cases until funding is made available - if the state is going to prosecute citizens in the numbers that it does, it must pay the tab.

Friday I had a preliminary hearing in Conway, and as usual was depressed and angry when the judge announced that all public defender clients' hearings were waived. All stood and gave their names to their court one at a time so that they could be marked off the list; the judge explained that public defenders' case loads were too high to expend time on a preliminary hearing, and then they were excused one at a time.

A post by Monroe Freedman at Legal Ethics Forum sums up what needs to happen before we will see change in funding of indigent defense - I haven't read Ordinary Justice yet and Freedman did not give a link to Becker's review so I can't say for sure that he was referring to indigent defense, but however Freedman meant his words, they ring true in this context as well:

In addition, as Mr. Becker recognizes, “the criminal justice system would collapse.” So much the better. The fact is that the administration of justice has long been in a state of collapse – a fact that we lawyers and judges have been covering up by maintaining a pretense of ethical conduct and of due process of law. As a Massachusetts Supreme Judicial Court Justice told me, the only way to force real reform is to bring down the system. Nothing short of that will command the attention of the media, the public, and public officials, and force the allocation of the resources that are necessary if we are to live up to our professional and constitutional claims.

H/T Law and Baseball:

A Myrtle Beach man was arrested for punching a man and stealing his money after he told the victim he would help him buy marijuana.

This would be more amusing if we hadn't defended so many people with nearly identical charges. Still . . .

Robert Simels, defense lawyer and former prosecutor in N.Y. who was convicted of witness tampering in August following allegations that he had conspired with a client to kill witnesses, was sentenced to 14 years Friday.

Audiotape of conversations with an informant were presented at trial, which included statements such as "I'm going to do whatever I gotta do" to win an acquittal, plans to bribe witnesses or harm their family members, and talk of "eliminating" or "neutralizing" witnesses.

When I'm talking strategy with office staff, I've talked about "eliminating" or "neutralizing" witnesses - it's part of preparing for trial. Not buzz words, however, to be using in a conversation with an alleged drug lord from Guyana who is also reputed to have run a paramilitary organization. We shall continue to discuss "figuratively eliminating" and "metaphorically neutralizing" witnesses - conducting an independent investigation and preparing for trial with the goal of discrediting that witness.

I'm often focused on unethical practices by prosecutors and upset by the commonly held perception that defense lawyers are unethical and sleazy - the fact is there are lawyers on both sides who are ethically challenged, and every lawyer should be held to high standards. A prosecutor or defense lawyer who does not live and play by the rules is a dangerous thing.

Some excellent posts that you may want to read:

Bennett translates "Reptile" for criminal defense practice - while plaintiff's lawyers (and prosecutors) may want a "reptile" trial, defense lawyers need to make it a "simian" trial.

The value of the internet in researching potential jurors (and witnesses) is ever-increasing. We have been running record checks and checking Facebook and Myspace for information on potential witnesses and sometimes jurors for a while now, but I have never thought to look on Twitter for information as well.

Packratt has the latest on police misconduct statistics - bearing in mind that there really is no accurate compilation of statistics, and reported misconduct is likely the tip of the iceberg.

1 out of every 304 police officers will be accused of a violent crime.
1 out of every 220 citizens will be accused of a violent crime.

Doesn't sound so bad - less cops are accused of crime than the average citizen. But

1 out of every 1,649 police officers will be accused of sexual assault.
1 out of every 3,413 citizens will be accused of sexual assault.

Is not so flattering. Maybe it is because police officers are more likely to be falsely accused of sexual assault. Or, police officers are in a position of power that makes it more likely for them to commit sexual assault. Or, people are more likely to report sexual assault by police officers.

A federal judge in New York acknowledges "widespread falsification by arresting officers of the New York City Police Department."

A trial lawyer's blog that is truly a weblog, and genuine sharing of the author's thoughts from day to day. I've enjoyed reading this blog since I found it.

I haven't been following this story on the blog, mainly because it is well-covered by other blogs who have been giving blow by blow accounts of the saga. Maricopa County is famous for the antics of Sheriff Joe Arpaio, which include building a "tent city" prison, female and juvenile chain gangs, a television reality show, forcing inmates to wear pink underwear, bragging that he spends less on feeding inmates than it costs to feed a dog (90 cents vs. $1.10), openly racist policies regarding Hispanics, and quite possibly more lawsuits than any law enforcement official in history.

In this particular installment of "look at me!," one of Joe's deputies took a defense attorney's documents from her briefcase on her table, behind her back during a sentencing hearing, citing "courtroom security" as the justification. After a delay and a hearing on the matter, Judge Gary Donahoe held the deputy in indirect contempt of court (here is the order, courtesy of Simple Justice) and ordered that he hold a press conference to apologize for his actions or be jailed.

Sheriff Joe promptly announced that no such thing would happen - no one called a press conference but him and his deputy had done nothing wrong. Sure enough, on the deadline (yesterday) the deputy had a press conference at which he announced that he would not apologize because he was doing his job - courtroom security which apparently in Maricopa County involves reading and sometimes confiscating defense counsel's files.

Today, Joe announced that his deputy would surrender himself to the jail, but when the deputy later arrived at the jail they did not take him into custody. The world is now watching to see how Judge Donahoe handles the situation and whether Joe is truly king of his monarchy.

Sheriff Joe said that hat he would not allow Stoddard "to be thrown to the wolves" - the irony is that Joe is throwing his deputy to the wolves by refusing to be governed by the rule of law and allowing his deputy to go to jail while Joe enjoys the media spotlight yet again.

Simple Justice, the Agitator, Windypundit, and Gamso have up to date commentary.