South Carolina Criminal Defense Blog

In a comment to “smoke and mirrors,” MBennett pointed back to a post he wrote in 2007 about stock arguments that prosecutors always use and never deviate from, including “smoke and mirrors,” “the spaghetti defense,” “explain it to your spouse/neighbor,” “send a message,” and “plea for law enforcement.”

In a criminal trial, when the defense puts on a case or enters any evidence, the prosecutor gets the last closing argument – this is important, because then the last thing that the jury will hear before going back to the jury room to deliberate is the prosecutor. No matter how bad I want to, I can’t get back up and respond to what they have said.

So, when the defense attorney puts in evidence, we have to anticipate the prosecutor’s arguments in our closing. The stock arguments that we hear over and over from prosecutors in Horry County are “smoke and mirrors” and “the CSI effect.”

In our most recent trial in Georgetown, I knew that the CSI effect was going to come up – there was a footwear impression that was photographed on a door, and an essential part of the state’s case was an allegation that my client had kicked in a door. The problem is that everyone was telling me that another person intimately involved in the case had kicked in the door – they had either seen him do it that morning or they would testify that he had admitted it to them.

The police had taken photographs of a clear footwear impression, with rulers held up next to it and everything, but that was it. My client was arrested immediately after this was supposed to have happened, but they did not take his shoes, they did not send the photographs or any shoes to SLED for analysis, and there was no report tying his shoes to the footprint.

When there is forensic evidence – CSI (crime scene investigation) evidence such as DNA, footprints, fingerprints – in a case, the prosecutor goes on and on about the wonders of modern technology, and how amazing it is that forensic science can tell us how a crime happened and who committed it.

But when there is no forensic evidence, the prosecutor will tell the jury about “the CSI effect.” You see this stuff on the television, where they have this amazing technology and they collect all this forensic evidence, and then you expect us to have all of this forensic evidence to prove our case – but it’s not like that in the real world. Out here in the real world, we have to rely on good, old fashioned witness testimony. (apparently prosecutors only prove their case on television, that’s not necessary in the real world out here)

Except, what about when they have forensic evidence that it appears they have done nothing with? Either 1) the police dropped the ball and didn’t follow through with their investigation; or 2) someone looked and saw that the shoes did not match, and they did not want to muddy the waters.

The “CSI effect,” if there is such a thing, is that television shows that depict police and prosecutors actually proving their cases might, from time to time, cause the public to demand that police and prosecutors actually prove their cases as well, out here in the real world.

Not guilty on CDVHAN (criminal domestic violence of a high and aggravated nature), kidnapping, and burglary in Georgetown County today. No smoke or mirrors necessary. What the hell does smoke and mirrors mean, anyway?

Ok. I looked it up, Wikipedia says:

Smoke and mirrors is a metaphor for a deceptive, fraudulent or insubstantial explanation or description. The source of the name is based on magicians' illusions, where magicians make objects appear or disappear by extending or retracting mirrors amid a confusing burst of smoke. The expression may have a connotation of virtuosity or cleverness in carrying out such a deception.

In the field of computer programming, it is used to describe a program or functionality that doesn't yet exist, but appears as though it does (cf. vaporware). This is often done to demonstrate what a resulting project will function/look like after the code is complete — at a trade show, for example.

More generally, "smoke and mirrors" may refer to any sort of presentation by which the audience is intended to be deceived, such as an attempt to fool a prospective client into thinking that one has capabilities necessary to deliver a product in question.

So, when a prosecutor repeatedly says that the defense's case is "smoke and mirrors," they are claiming that the defense is being deceptive and fraudulent, and that their defense is insubstantial. At least it has a connotation of virtuosity and cleverness, that sounds impressive.

We finished a criminal trial in Georgetown this afternoon, and the jury found our client not guilty of kidnapping, burglary, and CDVHAN. It was a long few days of trial, and I’m glad to be able to breathe for a few days – in the morning I’m starting a three day seminar/training on SFST’s (standardized field sobriety tests).

Yesterday I stood in the parking lot at the courthouse with my client and his family stopped so he could see his children. It was a poignant moment to see my client, normally a hard, tough guy, melt as his three year old son hugged his neck and kissed him, saying “I love you daddy” over and over. And it was harder knowing that this man could be sent to prison for up to 30 years if I was unable to help the jury understand his story.

Just now, I went back and read a post from a few weeks ago on credibility - and I believe that this trial, more than any other I’ve had, was a lesson in credibility. We began the trial with allegations of misconduct on both sides – and discovered in the course of a pre-trial hearing that the allegations were not true. But this theme seemed to continue throughout the trial, as even the judge accused me of “miscontruing” the law while talking to the jury, and did so in front of the jury.

This may have been one of the most contentious trials that I’ve had, but when you believe in your case, on either side, I suppose that is going to happen and emotions will run high.

By the end of the trial, the state’s attorney had placed herself in a corner with a string of witnesses who were caught in a series of lies. She had left out any evidence that hurt her case, which forced me to put it into evidence and point out that she was keeping evidence from the jury. She did not call the police officers who were at the scene and who responded to the call, and the only conclusion that I and the jury can draw as to why is because the testimony of those officers would have hurt the state’s case.

The state’s attorney spent a great deal of time accusing me of using “smoke and mirrors,” a staple for prosecutors’ closing arguments in this circuit, even when the prosecutor appears to be using “smoke and mirrors” to try and get a conviction.

I believe at the end of the trial the jury followed the law, and understood that the state had not proven their case beyond any reasonable doubt. I hope that it also made a difference that I tried to speak the truth to the jury, to make the witnesses speak the truth, to make sure that they saw all of the evidence, and that I did not have to resort to “smoke and mirrors” to present our case.

I'm in the middle of a trial right now - CDVHAN, kidnapping, and burglary allegations in Georgetown County - and so my time for blogging is limited. This, coming straight out of another ABWIK trial in Horry County week before last. But, this is pretty big news: SCOTUS has remanded Briscoe v. Virginia to the Virginia Supreme Court, with a brief per curiam opinion instructing the Virginia Court to reconsider their ruling in light of Melendez-Diaz.

At least it doesn't take long to read this one:

PER CURIAM. We vacate the judgment of the Supreme Court of Vir-ginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massa-chusetts, 557 U. S. ___ (2009). It is so ordered.

Melendez-Diaz held that the prosecution cannot use reports or affidavits from analysts at trial unless the analyst is present and subject to cross-examination. In Briscoe, the Virginia Supreme Court had sided with the government and held that drug reports were admissible without live testimony unless the defendant objected, placing the burden on the defendant to bring the state's analyst to the trial.

South Carolina has a similar system to that in Briscoe, and under Rule 6 of the rules of criminal procedure affidavits used to establish chain of custody and the report of a chemist are admissible at trial without live testimony unless the defendant objects within a certain period of time.

Public Defender Revolution is a new public defender blog worth subscribing to, written by two public defenders, who speak the truth about caring for and fighting for their clients. Citing the ABA guidelines/ standards for ethical caseloads, they are encouraging other public defenders to stand up and refuse to accept cases when they are overburdened and cannot provide effective representation - a position that I've been advocating for some time as the only solution to the failure of states to adequately fund indigent defense.

H/T PDR for this video: San Francisco's Chief Public Defender refuses to accept budget cuts - or will refuse to accept new cases if the budget is cut:

A woman apparently died at the Conway Wal-mart on Friday, after employees fought with her because they suspected she was shoplifting:

One of the suspects collapsed at the scene and was taken to a hospital, where she was pronounced dead. Horry County Deputy Coroner Tony Hendrick says 41-year-old Dorina Williams of Nichols appears to have died from natural causes, but the official cause of death is still pending.

In Edwards v. Lexington County Sheriff's Office, the S.C. Supreme Court held that the Sheriff's Office owed a duty to protect the victim in a domestic violence case, where they knew that the defendant had threatened violence against her, the Sheriff's Office prosecutor scheduled a hearing to revoke the defendant's bond and then insisted that the victim appear with her evidence of the defendant's violation of the restraining order, and then did not provide any security or precautions to protect the victim.

The defendant attacked the prosecutor and the victim after he was sentenced to 30 days for violating his bond - he was subdued by a bondsman and maced by the judge, but not before he had caused injuries to the victim.

Ordinarily, under the public duty rule, statutory duties such as those in the Criminal Domestic Violence Act do not create a cause of action against public officials for failure to perform those duties, and there was no special relationship between the Sheriff's Office and the victim that gave rise to a duty to protect, but the "special circumstances" of this case gave rise to a duty, because the Sheriff's Office was on notice of the danger and because they created the risk of harm to the victim by not providing security for her.

This case highlights what can be a major problem in our magistrate courts - in most, there is no security. There are no guards, there are no metal detectors, there is nothing to protect judges, jurors, witnesses, victims, or attorneys. Some of the magistrates hold court or bond hearings in small enclosed spaces, and particularly in CDV cases, emotions can run high.

One thing that I am grateful for are the guards at the circuit court and the fact that they are checking people for weapons as they come into the courthouse. It may be an inconvenience but it does make me feel better knowing that the people around me in that emotionally charged atmosphere are not armed.

If a person is found not guilty by reason of insanity (NGRI) in South Carolina, they are not released. They are committed to a state hospital for an initial period of 120 days, and then they are evaluated at regular intervals to determine whether they are a danger to self or others. If they are dangerous, they remain in the hospital for a period of time not to exceed the maximum sentence they could have received for the crime that they were charged with.

If a person is found guilty but mentally ill (GBMI), they are sent to prison. They are “flagged” as mentally ill, but they are sent to prison. In the prison there is a mental ward, where inmates can be kept for 45 days before they are released to the general prison population.

In South Carolina, the guilty but mentally ill statute is designed to prevent juries from ever finding a defendant NGRI. The Court and the attorneys are not allowed to tell the jury what will happen if they find a defendant NGRI or GBMI, and they are left to assume that NGRI means the defendant is set free and that GBMI means they go to a hospital.

Even worse, the language of the GBMI statute says that GBMI is an “affirmative defense,” and that the defendant has the burden of proving it by preponderance of the evidence. If the defendant proves that it is more likely than not that the defendant was mentally ill and could not conform his actions to the law, then the jury must find the defendant GBMI. ??? The statute mandates that the judge charge the jury on GBMI any time that insanity is raised. Except, it is not a defense. It is a guilty verdict.

The only reason that this language is in the statute is to confuse the jury so that they will always find a person GBMI and not NGRI. It is wrong. It is a lie. We ask the jury to give us a verdict that speaks the truth, and then we lie to the jury about what the law is to ensure that mentally ill defendants go to prison, and to keep the truth from them. This is a joke, and there is no justice in South Carolina for the mentally ill.

We just finished a week long trial where our doctor and the state’s doctor testified that our client was mentally ill and that he did not understand the difference between right and wrong (the test for not guilty by reason of insanity). I believe that the jury understood that our client was mentally ill and that he needed help and not prison. During deliberations, they came back with a question – “if we find the defendant guilty but mentally ill, where will he be housed?” And the Court had to tell them, I cannot answer that question.

I will say that, regarding the judge and the prosecutor in our case, our client received as fair a trial as he possibly could under the circumstances. This trial was an example of how a prosecutor can be ethical, not cheat, and still win a conviction. And I know that he received the best defense that he possibly could under these circumstances. The problem here is that the system is designed so that there will never be a jury verdict of not guilty by reason of insanity. Why do we lie to juries? If the only option is to put a person in prison, why don’t we just do away with the notion of NGRI, and tell the jury that their only option is guilty or not guilty?

According to the Sun News, the South Carolina Law Enforcement Division has begun an investigation into whether the North Myrtle Beach public safety director was part of a "cover up" of a criminal domestic violence incident. He is already on administrative leave for lying about a stolen handgun.

The mayor of Surfside Beach was charged with driving under the influence early Friday morning. I don't any of the facts of the case and the article linked to does not give much information. Again, it goes to show that an accusation of DUI can happen to anyone.

A judge found that Deputy District Attorney Troy Benson lied under oath about a videotape that was not provided to the defense in a child molestation case, a case in which the alleged victim had also recanted prior to trial. After spending four years in prison, Augustin Uribe's charges are dismissed and he has been released:

"Mr. Benson's numerous acts of misconduct, culminating in his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed,'' Bryan said. "As such, defendant's motion to dismiss on due process grounds is granted.''

Via Hall: Criminal defense lawyer Kyle Hunter pled guilty to money laundering after failing to report a $100,000 cash payment from a client, and a second attorney, Charles W. McGowan, has been charged but did not yet plead to the charge.

First rule of criminal defense ethics - the defense lawyer should not go to jail. No fee is worth losing your license to practice law or even your freedom.

Nebraska lawyer Terry L. Haddock wore a wire while visiting with client Shannon Williams at the Douglas County jail, allegedly allowed Williams to use his cell phone to run a drug operation and to order a hit on someone from his jail cell. (H/T Bennett, Hall, and Kennedy )

Like the tale of Frank Pignatelli, a defense lawyer who turned informant against his clients to get help on his own charges, this scenario reeks. Does it violate any ethics rules? I'm not sure - there is no duty of confidentiality in regards to an ongoing crime, and a lawyer cannot give advice to a client who is participating in an ongoing crime (this would make the lawyer an accomplice). But it does seem to violate the Sixth Amendment in a very ugly way to use the sanctity of the attorney client relationship to get evidence on a defendant.

There is no confidentiality and society has no interest in protecting the type of communications that were occurring. But society has a tremendous interest in protecting the trust between attorneys and clients, and this type of situation destroys that by creating an appearance of impropriety. If a defendant fears that his or her lawyer could be an informant working for the government or that anything he or she says is not confidential, the process breaks down.

When I talk to my clients, I need to know the truth and I need my client to trust that I am not going to sell them out. If they start telling me about an ongoing criminal enterprise, then I have to stop them and remove myself from the situation but I still am not going to reveal their confidences. The lawyer who participates in this, like Pignatelli, probably is facing legal troubles of his own and could care less if he is disbarred for what he has done. But what about the prosecutor who set it up or who uses the evidence after the police have set it up?

The South Carolina Supreme Court will hear oral argument on the constitutionality of Myrtle Beach's helmet laws next month. The law is one of many passed by Myrtle Beach in an attempt to force out the May biker rallies. Among other reasons to strike down the ordinance, it is in violation of the South Carolina Constitution because it criminalizes conduct that is not criminal under state law. In my opinion it is an abuse of power by city officials, and I hope that the Court does the right thing.

The U.S. Supreme Court will not decide the question in Pottawattamie County v. McGhee, whether prosecutors can be liable for fabricating evidence, coaching witnesses, concealing exculpatory evidence, and sending an innocent person to prison for 25 years of his life, because the government has settled the case before SCOTUS had the opportunity to rule.

The lower courts had ruled that prosecutorial immunity does not extend to the preparations that occur before trial begins, and SCOTUS heard arguments in the case in November. Now a settlement of $12 million has made the issue moot. I am guessing that the County feared an adverse ruling from the Supreme Court which would allow lawsuits to go forward against prosecutors in future cases - but, lawsuits are going to be filed now anyway, and the issue will make its way back to the Court eventually.

Prosecutors should be liable in extreme cases such as the Pottawattamie County case, where the misconduct can be proven. They should be more than civilly liable, they should be criminally liable. If it is proven that a person (prosecutor) lied, suborned perjury, and obstructed justice and the result was that an innocent man lost 25 years of his life, should there be criminal consequences? Should that person be sentenced to 25 years in prison to pay for what they did? Does $12 million really make up for the loss of 25 years of a person's life?

If it is proven that a person (prosecutor) lied, suborned perjury, and obstructed justice and the result was that a human being was sentenced to death by a judge or jury, should there be criminal consequences? Did that prosecutor commit murder, the very thing that he is supposed to be working to prevent? And what should the penalty be?

These are the extreme cases, but they are out there and it happens. There should be consequences - under the current system, prosecutors are immune from lawsuit, no-one polices them, and in most cases they are not so much as disciplined by the bar association. Police, prosecutors, judges, and defense attorneys hold peoples lives in their hands. They have the power to heal, to help, to hurt, and even to kill. With that power comes responsibility, and accountability.

I am glad that McGhee and Harrington are being compensated for what was done to them. I doubt that they feel $12 million is enough.

Edit: Gamso and Norm Pattis have blogged about the settlement as well.

A Mount Pleasant police officer was charged with driving under the influence after driving her car into an apartment complex pond in North Charleston Thursday night. H/T Injustice Newsfeed.

In general, the public believes that police and prosecutors are honest, upstanding, and can do no wrong. Understandably - I want to believe the same thing, except that in my job I see examples of the opposite on a regular basis. Police are human beings - they are subject to the same emotions and failings as every other person except that they are magnified for some because they have been placed in a position of power.

When the public sees a news report of police misconduct they brush it off as an isolated incident. Many people choose not to believe that police or prosecutors break the law or trample on the rights of citizens. That is why the efforts of Packratt at Injustice Everywhere are so important. The Injustice Newsfeed provides a steady stream of news articles from across the nation reporting on police misconduct, and the National Police Misconduct Statistics and Reporting Project generates statistical and trending information based on the media reports.

I'm not aware of any other organization compiling information on police misconduct, including the government. The first step to fixing any problem is acknowledging that it exists.

Police misconduct, accountability, and transparency are issues that affect everyone in the US. The more information we have about these issues, the more we can do to help law enforcement agencies improve how they interact with the communities they are entrusted to protect and serve and, in doing so, help build better relationships of trust between the community and law enforcement agencies.

I note that Injustice Everywhere has a button on the front page for donations - it is a large time commitment to do what he is doing and, although it is no doubt a fun hobby, it will not hurt to contribute in a small amount if you appreciate the need for this project.

On July 21st, 2006, attorney Greg Schubert was walking on a sidewalk in the City of Springfield, Massachusetts, when officer J.B. Stern jumped from his police car with drawn gun pointed at Schubert's face. Schubert was lawfully carrying a pistol under his suit jacket (and wearing a suit and carrying a briefcase) and the officer saw the pistol. Although Schubert produced his concealed weapon permit, the officer detained Schubert anyway - making him stand in the road in front of the police car and then placing him in the backseat of the police car - while the officer tried to verify that Schubert's permit was valid. Ultimately the officer released Schubert but kept his pistol and his permit.

Schubert brought a 1983 action against the city and the officer for violation of his Fourth and Fourteenth Amendment rights (for detaining him unlawfully). The Massachusetts District Court granted summary judgment to the City and the officer (held that as a matter of law Schubert could not sue over what happened to him), and on December 23rd the First Circuit upheld the District Court's grant of summary judgment.

The First Circuit held that, as a matter of law, it is acceptable for an officer to point a gun at an attorney's face for carrying a concealed weapon, to detain him after he showed his identification and concealed carry permit to the officer, and to take the attorney's gun and permit.

Balko had a link to a critical article at the Examiner, and I was fairly incensed until I read the entire opinion. My final response is rather watered down after finding that the lawyer sued based on his detention but never pleaded a violation of his Second Amendment right to bear arms.

A 1983 claim must plead a violation of a constitutional right - in this case the lawyer pled a violation of his Fourth Amendment right to be free from unreasonable detention but did not mention the violation of his Second Amendment right to bear arms. I still disagree with the Court - once the lawyer showed the officer his permit that should have been it. The detention past that point was unlawful and the failure to return the pistol and license was theft.

Pointing a gun at the lawyer's face was extreme under the circumstances, but as the Court says the officer has a right to take measures to protect himself and the officer is in the best position to decide what is necessary. It makes the cop an asshole in this case, but I don't see where it is actionable, at least up to the point where the officer realized that Schubert had a permit.

Given the Court's language and the tone of the opinion, I think if Schubert had pled a violation of the Second Amendment the Court still would have granted summary judgment, but Schubert would have had a stronger position and better chance at taking the appeal further.

The general rule in 1983 actions, or any lawsuit against the government, is that the government wins. If the court can find any reason to shut down the lawsuit it will (imagine that - the government ruling in favor of the government). Although the First Circuit used the failure to plead the Second Amendment as an excuse to dodge the issues in the case, the opinion is a lesson on pleading police abuse cases - most 1983 actions are based on one of the first ten amendments (the Bill of Rights), and it will most likely be 1,2,4,5,6, or 8. Before filing your complaint, it is easy enough to count them on your fingers and make sure you did not miss something. If there is a gun involved in your case, there is a clue.

An Orangeburg County sheriff's deputy was charged with driving under the influence after crashing his patrol car into a ditch while off-duty, and last weekend an officer in Charleston was arrested and charged with DUI after hitting a parked car and leaving the scene. (H/T Law and Baseball)

In Myrtle Beach throughout the Christmas and New Year season, signs can be found giving the number for a hotline to call if you see a drunk driver - an idea that is more dangerous than helpful. Anytime a driver swerves on the road for any reason (there are many besides having had too much to drink) they are subject to being followed by a vigilante while the police come to arrest them. Even worse, you are subject to anonymous calls, whether prank or malicious, identifying you as a drunk driver.

Wednesday night I drove to a prison in Lumpkin, Georgia, to visit a PCR client (an eight hour drive on a good day), and drove back yesterday (New Year's Eve). Driving back through Aynor, a patrol car came up behind me and followed myself and a car that was next to me one lane over and then pulled the other car just before we left city limits. Maybe I missed something, but they were driving the same speed as I was (not speeding), next to my car, and I did not see them swerve. For most of the drive, although I had nothing to drink, I was paranoid that I would be stopped and subjected to roadside tests, as many drivers over the holidays doubtlessly were.

Of course I think that truly drunk drivers need to be kept off of the road, but I am wondering how many people were stopped and harassed over the holidays in an attempt to boost DUI arrests and to show that the agencies' grant money and rewards are justified? DUI enforcement is truly the front-line of the erosion of our Constitutional Rights.