South Carolina Criminal Defense Blog

Once upon a time . . .

And every day . . .

Until one day . . .

And because of that . . .

And because of that . . .

Until one day . . .

And ever since . . .

Since the dawn of time, people have been captivated by story. If there is a point that we need to illustrate, give an example that illustrates the point, don’t explain it – it will stay in the audience’s mind and they will relate to it. The same applies with explaining to the jury why our client is entitled to recover damages in a lawsuit – if you explain why, they might intellectually understand what you are saying, but they will not internalize it.

In working on the opening statement in a case with another attorney over the weekend, I recalled the importance of keeping the action of the story moving – if the listener is not thinking “tell me more,” the storyteller is missing something. If the listener is thinking “go back and tell me more about that,” but the storyteller is talking about something else, he’s lost the audience. It’s easy to get lost in the details, and for a storytelling to devolve into an explanation – but explanations do not hold an audience’s attention and explanations are not easily internalized.

I think of books by John Grisham, and the Harry Potter books, books that I could not put down once I began reading them, and I realize that what kept me reading was the mini-cliffhangers at the end of each chapter. As I near the end of a chapter, I want to know more, and the suspense keeps me turning the page – what happens next? The jury should have the same feeling when we are telling our client’s story – tell me more.

In Smith v. State, decided February 16, the S.C. Supreme Court granted post conviction relief to Smith, finding that it was ineffective assistance of counsel to fail to object to hearsay testimony by a forensic interviewer that corroborated and bolstered the testimony of the alleged victim.

Smith was charged with criminal sexual conduct (CSC) with a minor and with contributing to the delinquency of a minor. At trial, the forensic interviewer testified without objection that the alleged victim told her that she had been sexually assaulted and that she believed the alleged victim was telling the truth. The prosecutor then used the bolstering in her closing argument, reinforcing the interviewer's testimony that the alleged victim was believable.

To prove a claim of ineffective assistance, the petitioner must show that: (1) counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defendant's case. When the trial lawyer articulates a valid trial strategy, ineffective assistance is not found (failure to object because the lawyer does not want to upset the jury is not a valid trial strategy).

In this case, the trial lawyer testified at the PCR hearing that there was no trial strategy to explain his failure to object to the hearsay and bolstering, and the Court found that there was prejudice because there was conflicting evidence presented at trial. If the hearsay and bolstering had not been allowed in front of the jury, the outcome may well have been different.

On February 25, in U.S. v. Rivers, the Fourth Circuit held that South Carolina's failure to stop for blue light (FTSBL) statute is not a violent felony for purposes of enhancement under the Armed Career Criminal Act (ACCA).

Possession of a weapon by a felon ordinarily carries a sentence of up to 10 years, but the Armed Career Criminal Act increases the potential punishment to a mandatory minimum of 15 years if the defendant has three prior convictions for a violent felony or serious drug offenses. A violent felony is defined as a crime punishable by more than a year, and that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

History:

U.S. v. James: in 2003 the Fourth Circuit holds that FTSBL was a violent felony under the ACCA because it involves conduct that "presents a serious potential risk of physical injury to another." The Court applies a categorical approach - looking at the elements of the crime without reference to the underlying facts of the conviction.

Begay v. U.S.: in 2008 the SCOTUS holds that New Mexico's DUI statute does not qualify as a violent felony under the ACCA because "DUI involves conduct that presents a serious potential risk of physical injury to another." It is simply too dissimilar to the listed crimes (burglary, arson, extortion, the use of explosives) to qualify. The Court held that to be classified as a violent felony, the crime must be roughly similar in kind and in the degree of risk to the examples listed - the crime must involve conduct that is purposeful, violent, and aggressive.

U.S. v. Roseboro: in 2009, the Fourth Circuit acknowledges that the U.S. Supreme Court in Begay overruled the Fourth Circuit's prior decision in James, but then performs some legal analytical acrobatics to find that FTSBL is still a violent felony. Using a "modified categorical approach," the Court holds that there could be two types of FTSBL - because S.C.'s FTSBL statute does not have a specific intent requirement, there could be cases where there is intent and cases where is no intent. The Court holds that in cases where there is intent (come on - in practice, this means all of them) FTSBL qualifies as a violent felony.

Chambers v. U.S.: in January 2010, eight days after Roseboro was decided, the SCOTUS holds that the crime of escape, where it involves either an actual escape from a facility or a failure to report, must be analyzed under the modified categorical approach and split into two separate offenses. Because it proscribes two different types of behavior, one of which inherently has a risk of violence and another which does not, and each example can be considered a different/ separate crime, the Court treats them as two separate crimes and holds that failure to report, as opposed to an actual escape, should not be considered a violent felony.

Back to Rivers - because there is only one type of conduct that is involved in S.C.'s FTSBL statute (keepin' on truckin' after the blue light comes on behind you), the Court must apply the categorical approach, without reference to the underlying facts of the conviction. Because FTSBL is a strict liability offense and includes conduct that is not intentional, it is different than "violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives," and therefore is not a violent felony for purposes of the ACCA.

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I feel terrible for all of these people in far away countries that are having such a hard time transferring their large sums of money into the United States. There seems to have been quite an explosion of rich divorcees, diamond-fortune heirs, and wealthy princes from war-torn third world nations that have had to resort to email spam to find an attorney lately.

I don't even know when the spam started, a year ago? Two? Anyway, now I get an average of 4-5 a day. I don't recall when it began, but I am sure that I never lost a moment wondering if an email written in badly broken English from an overseas address asking me to participate in a half million - million dollar transaction was legitimate. Now I'm also getting emails purporting to be from the FBI, telling me to contact them to receive my million dollar fortune. Really?

The ABA Journal has had a few stories on unfortunate, gullible attorneys who have had hundreds of thousands of dollars stolen from them:

The FBI reports that the scam begins with e-mail contact from a prospective client who is seeking legal representation in a civil matter, such as a divorce. The supposed client sends the law firm a cashier’s check for a retainer in an amount far exceeding the firm's rate.

When the law firm responds that the client has overpaid, the client requests and the unsuspecting firm sends a wire transfer with the refund. It's after the refund that duped firms learned that the cashier's checks are counterfeit.

Gullible? It's hard to believe that any attorney would engage in any such transaction without ever meeting the "client" or verifying that they are who they say they are and that the funds are legit, based only on an email contact. Even if an attorney has not seen the hundreds of similar emails, and thinks for some reason that they are not going to be ripped off, did they believe that they were about to engage in a legal transaction? Greed is a frightening thing.

Charles Hood's death sentence has been overturned, but not because his judge was sleeping with his prosecutor - the Texas Court of Criminal Appeals has reversed themselves, granting a new sentencing hearing based on an error in jury instructions that they had previously denied relief for. Dodging the bullet, and doubtless hoping that SCOTUS will not hear the case now.

A jury trial is a complex system that is more or less stable and predictable based on the amount of energy we inject into it.

A police misconduct victim's guide, from Injustice Everywhere.

Why people go to trial, from DA Confidential. The list includes: an obstinate defendant or a defendant with a lot to lose (with an acknowledgment that a defendant may be obstinate because he is innocent), when the consequences of any guilty verdict are more important than the potential punishment (defendant is on probation or parole), and because the terms of the plea offer are unacceptable to them. How about because the Constitution provides for a right to trial by jury in every criminal case?

Two kids break into a car, one sits on his cell phone and dials 911 accidentally, and the two are recorded talking about what they are going to steal and what they will leave behind. Police arrive to find the two with the stolen property still in their possession.

Texas prosecutes vehicle accidents as crimes. Bennett and Kennedy are not pleased.

Homeland Security loses 985 Computers, 13 Automobiles, 1 International Harvester Truck, and 235 Night Vision Scopes. Lost, stolen and damaged equipment: 1975 pieces for a total value of $7.5 million.

Maricopa County attorney dismisses indictments against County Supervisor Don Staples and Judge Donahoe. H/T Balko.

According to SLED, cartels that had operations in Atlanta are relocating to North and South Carolina and Tennessee:

According to Reggie Lloyd, Director of South Carolina’s State Law Enforcement Division, Mexican drug cartels that used to enjoy Atlanta, Georgia are heading to rural and suburban areas of South Carolina. Lloyd says that Atlanta’s attempts to fight the cartels have been so successful that they are leaving Atlanta for quieter bases of operation, according to a Charlotte Observer report.

They need a market - I would assume that elements of drug cartels or at least those associated with them are already present in every state.

I take inspiration wherever I can find it. I was listening to Matt Damon in an interview on NPR this morning, talking about his role in the movie The Informant. He was talking about how it is the hundreds of small details that go into preparing for a role that make the role believable. It is the small things, like how a person stands, walks, speaks, facial expressions, and the list goes on and on.

In preparing for a role, you have to get into your head, learning the details and practicing for the performance, brainstorming about what will make this role believable and getting feedback from other actors or the director. But – he says, once you are there, once you’ve prepared, you can’t be in your head. When you are on the set and you are getting ready to give a performance, you must be “in the moment.”

What a wonderful analogy for trial preparation – you have to stay “in your head” while preparing a case for trial, and there are hundreds of details that go into preparing our case. We have to research the legal issues, finding a way to exclude some evidence and to include other evidence. There are the details of presenting opening and closing, cross and direct examinations. The process of fine-tuning our case never ends, and although we may be ready for trial, we’re never fully prepared.

But when the trial begins, when we are standing inside the well, arguing motions to the judge or talking to the jury, we have to be in the moment. All of the preparation that goes into the details is what makes it possible to be in the moment during trial, to act and react to the unexpected and the unpredictable nature of trial, without getting into our head and trying to figure things out while they are happening.

When I was working on our last trial in Georgetown, I found myself struggling with the story. There was no clear story that was emerging, as I read through the incident reports, the witness statements, and the information that my investigator had brought to me, what I found was a mess of conflicting statements and several different stories.

Some witnesses were lying. Some were telling the truth. Many were telling part of the truth and lying where it suited them, or where it would help their own self-interest. I considered that I would tell the story of how there was no consistent story from these people, that each would say whatever was most likely to help himself or herself on the stand. How each would contradict the other and have something different to say about the events relevant to the case.

I struggled with this for a few days as I was preparing for trial, and it bothered me. Then I realized what the problem was – the story that I needed to be telling was my client’s story and no-one else’s. His account was the only one that had been consistent from day one, had never changed and had never been shaken by the other witnesses. I realized that I had to go back to the basics and that I had forgotten what may be the most important thing – I had to “crawl into my client’s hide,” see the case from his point of view, and I had to tell his story to the jury.

When I realized what the problem was, everything fell into place for me. When I stood up to give my opening statement, I walked to the jury box in my client’s shoes, and I told his story. As each witness took the stand, I impeached them with their inconsistencies and I impeached them with their prior inconsistent statements, I showed the jury how they were each lying about different aspects of the case to help themselves, but most importantly, I told my client’s story, from my client’s perspective, through each of the witnesses.

Today I was helping another attorney in my office prepare for a trial that is starting tomorrow, in Georgetown again, and as we were trying to find the story I had to remember again whose story it is that we are telling.

In every case, civil or criminal, we must begin our trial preparation from the perspective of our client – it is their trial, after all.

Ross Jurewitz, at the San Diego Injury Blog, brings ambulance chasing to the internet with a steady stream of posts that chronicle accidents in San Diego. The common threads to all of the posts:

1) someone dies in a terrible accident
2) "Our office wishes to convey our sincere prayers and condolences to the family and friends of the deceased;" and
3) "If you or a loved one has been hurt or killed in a San Diego auto accident, please call Mr. Jurewitz at 888-233-5020 for a free consultation."

Many blog posts include the name of the person who was killed, and of course they are key-word rich with accident-related terms.

It appears that Mr. Jurewitz is blogging about accidents and including the names of the victims, in the hope that they will google their names and then call him. Obviously, he is knowledgeable about their situation, he is writing about it isn't he? I don't see where this constitutes a violation of any ethics rule on the attorney's part, but ethics does not begin or end with the rules.

I've seen criminal defense "blogs" that do the same thing - regurgitate local news articles on people who are arrested, including the name of the defendant followed by a statement that this person will need an attorney like [xyz law firm] who can help them.

I understand that different lawyers have different opinions on what is ethical and what is not, as does the general public when they see advertisements. Some attorneys believe that any advertising is unethical, others believe that nothing is off-limits. Most fall somewhere in-between. What do you think about Jurewitz's site? Is this targeted direct solicitation (which is prohibited under the rules), or is the fact that it is taken from a news article a loophole for the lawyer to slip through?

H/T Legal Profession Blog: California prosecutor Ben Field has been suspended from the practice of law for four years, for conduct including withholding evidence, failing to inform the defense that a key prosecution witness may have participated in the crime, and initiating searches of the homes of a defendant's family and friends despite a judge's order not to do so without prior approval.

In 2008 I was following Field's story, and it struck me that what forced the California Bar to take action in Field's particular case was the media coverage - it is the state bar's duty to investigate and stop unethical conduct by attorneys, yes even prosecutors, but it was investigative reporting by the Mercury News that brought Field's unethical practices to light. In a three-year study of Santa Clara County criminal trials, they concluded that questionable conduct affected more than a third of all cases, that mistakes at every phase of trial are being tolerated by the appellate courts, and that in the worst of cases, defendants were wrongfully convicted.

Thank you to the news media for doing what state bar associations and appellate courts cannot - regulate our profession when it comes to prosecutorial ethics. The California State Bar Court on February 12 adopted the recommendations of the hearing judge in Field's case, including a four year suspension, and found that:

Field's misconduct was inexcusable and we hold him accountable for unethical behavior in four criminal prosecutions. We conclude that the recommended discipline, particularly the four-year actual suspension, is necessary to protect the public and the courts, to preserve public confidence in the legal profession, and to maintain high professional standards for attorneys.

Fields was found to be responsible for

professional misconduct in four criminal cases over a ten-year period . . . that he violated court orders and directives, performed incompetently, did not respect the court, failed to obey the law, withheld evidence, misled a judge and committed multiple acts involving moral turpitude, dishonesty or corruption.

They declined to disbar Fields, noting that the mitigation presented on his behalf was compelling.

The Court says that Fields lost sight of the ultimate goal of the criminal justice system, which is "the ascertainment of the truth," and that

he disregarded the the foundation from which any prosecutor's authority flows - "The first, best, and most effective shield against injustice for an individual accused . . . must be found . . . in the integrity of the prosecutor." (Corrigan, Commentary on Prosecutorial Ethics (1985) 13 Hastings Const. L.Q. 537.) Field's misconduct began shortly after his admission tot he bar, involved moral turpitude, spanned a 10-year period and significantly affected the criminal justice system. A narrow reading of his discovery obligations, coupled with the desire to convict, blurred his understanding of a prosecutor's special duty to promote justice and seek the truth.

"The first, best, and most effective shield against injustice for an individual accused . . . must be found . . . in the integrity of the prosecutor."

We're looking for someone to fill a receptionist position at our office, at the front desk and answering phones:

Our office is looking for a receptionist/ administrative assistant. It is a full time position, 45-50 hours a week. Experience working in a law office is a bonus but is not a requirement. Pay is commensurate with experience, but this could be an entry-level position.

Our office handles criminal defense and personal injury cases. It is often a fast paced work environment and can be stressful at times. We are compassionate people, but it can be a demanding job. You will be expected to work weekends at times.

We represent people from all walks of life, and every client is important. We are looking for someone who has not led a sheltered life, who is shocked by nothing. We are looking for someone who is compassionate and who cares about people. If you consider yourself pro-law enforcement, a “law and order” type, or if you are not a people-person, this is not the right job for you.

If you think that this may be the right job for you, please respond by email only, to laurahiller@grandstrandlaw.com. Do not call or mail anything to us. Attach a resume to your email, in Word format, including your education, employment history, and references.

Also, attach a letter in Word format, no more than three pages long, telling us why you want to work for us. Tell us who you are and what you have done in your life, be open and honest, and we will keep your letter strictly confidential. Regardless of your legal experience as reflected on your resume, we want to know who you are. Be genuine and do not tailor your statement to what you think we want to hear. You may be surprised.

A Vermont state trooper changed the results of a breath alcohol test, writing in a result of .102 when the result was actually .69. His defense when he was sued: Hey, I thought I was allowed to do that?

Sleigh said Robillard wrongly believed the law allowed him to revise Henn’s breath-test result to a figure close to what a preliminary breath test indicated at the time of the traffic stop in order to support a license-suspension citation.

Raymondeze Rivera was sentenced to death this evening. His story, and the story of the victims in his case, is difficult to hear. Rivera was born a blank slate, an innocent child with no evil in his heart. This innocent child suffered horrors as he was abused by those who should have loved him the most, parents who were most likely subjected to similar abuse themselves as children:

The jurors also have heard experts, as well as Rivera’s family and friends, talk about how Rivera was abused by his alcoholic father as a child. His aunts talked of how Rivera’s father, Stanley, admitted to pushing his youngest son down a flight of stairs.

Social workers said they learned through interviews with Rivera’s family members that Rivera was locked in a basement as a boy where he was tied and held without food. Nicholas Cooper-Lewter, a social worker and a faculty member at the University of South Carolina, said Rivera was sexually abused by his father and was forced to watch violent pornography.

Two of Rivera’s aunts told jurors that extreme physical abuse has spanned at least two generations in their family.

In 1999 Rivera was jailed for assaulting Pheobe Kennedy:

He said it was when he sat in jail, awaiting trial on charges that he assaulted Kennedy, that his heart began to change.

“There was violence all around me in jail there,” Rivera said. “I stayed there almost eight months. That’s when I started to change, and I started to hate.”

Although there is likely some truth to this - jail is a violent place where hate breeds - I suspect that his condition began much earlier in his childhood, through no fault of his own. More recently, Rivera was charged with the violent murders of two women - Kwana Burns and Asha Wiley. According to testimony this week, "Wiley begged for her life, hoping to convince Rivera to let her go. Burns instead fought against Rivera, slapping him and screaming for her 2-year-old daughter, Kamille, as he strangled her."

His path through life ultimately led him to this day, when he stood in front of a jury and, instead of pleading for his life, and despite the best efforts of his attorneys, asked the jury to allow the state to kill him:

"I have already decided my judgment," Rivera said. "I wanted the death penalty. Since 2006, this is what I wanted, all along. I didn’t want any help. No, I am not mentally ill. I am just an insane person bent on evil. A cold-hearted, calculated killer.". . .

“I made no excuses for what I did,” he said. “I couldn’t stand here, like my attorneys, and ask you for mercy. I don’t deserve mercy. I never gave mercy to Asha Wiley or Kwana Burns – not one time. I made them suffer. I wrapped them up and hog-tied them. Is that someone who deserves mercy?”

So the cycle of abuse continues, as society itself, in one more act of evil, because he is evil, snuffs the life of Raymondeze Rivera and completes the work that was begun by his parents and their parents long ago. There may be an appeal, but if he continues to ask for death at the hands of the state there is not much doubt that he will receive it.

H/T Popehat: I'm sure everyone remembers the Duke lacrosse fiasco - exotic dancer accuses three Duke University students of rape, prosecutor Mike Nifong publicly excoriates the defendants and ignores the overwhelming evidence that the girl is lying until the charges are dismissed by the Attorney General and Nifong is ultimately disbarred for dishonesty, fraud, deceit and misrepresentation and held in contempt of court?

Crystal Gail Mangum was arrested this morning in Durham and charged with attempted first-degree murder; five counts of arson; simple assault; identity theft for providing a false name to police after she was arrested; communicating threats; damage to property; resisting, delay and obstruction; and three counts of child endangerment.

A judge this morning ordered that she remain in jail on a $1 million bond. Wearing a white jail jumpsuit, Mangum kept her head down during her court appearance today and said nothing as the charges from this morning’s incident were read.

According to authorities, Mangum, 31, and her boyfriend, Milton Walker, were fighting in their apartment at 2220 Lincoln St. She then set fire to Walker’s clothing inside a bathtub, located in a bathroom in the middle of the apartment, police said. She tried to start another fire after officers arrived, according to an arrest warrant read during her court appearance.

Police said Mangum also threatened to stab Walker.

In 2008 Mangum attempted to further capitalize on the fiasco by writing a book.

Surely Nancy Grace will pick up this story?

After a wrongful arrest caused by neighbors over some turkeys that Robert and Jennifer Klippel removed from their yard, they sued for malicious prosecution,emotional distress, defamation and false arrest. Last week at trial a Beaufort County jury awarded four and a quarter million in damages for what they were put through.

What began as a dispute between neighbors about pet turkeys ended Friday when a Beaufort County jury awarded two Hilton Head Island siblings $4.25 million in damages.

In 2004, defendant Ralph Dupps accused Robert and Jennifer Klippel of taking his turkeys from his Sea Pines home and setting them free. The charges were dismissed, and the Klippels sued Dupps. They claim he accused them falsely and that their wrongful arrest caused public humiliation and emotional distress that drove Robert Klippel to alcohol and Jennifer Klippel to the use of sleep aids and depression medication.

On Friday -- after five days of testimony -- a jury in the 14th Circuit Court of Common Pleas ruled in the Klippels' favor.

The facts underlying the Klippels' lawsuit are a scenario that happens all too often:

Three law enforcement officials told Dupps no crime had occurred, Rosen said. Yet, Dupps proceeded to get arrest warrants for the Klippels from a Hilton Head Island judge and sought out his brother-in-law, a special prosecutor in the 14th Circuit Solicitor's office at the time, to prosecute the case, Rosen said.

Police, judges, and prosecutors have to be wary of persons who attempt to abuse the criminal courts to solve personal disputes or to get revenge on someone. One of the most common scenarios that I see is an arrest for breach of trust - where the "victim" is attempting to use the solicitor's office as a debt collection agency.

The trauma that results from being handcuffed, hauled away, and then locked in a cage for any period of time is extreme. We don't care, or we look the other way, when it is a person we can label as a "criminal," a sub-class of person who is treated like an animal and thrown into a cell. But when it is a person who has committed no crime, and would not have committed any crime, then we pay attention and we notice.

Baru A. Trump, who was charged with the murders of Cecil M. Bennett and Shirley Wiles at an Orangeburg barbershop after the murder weapon was found in his car, has filed a lawsuit in federal court against Orangeburg County prosecutor David Pascoe.

Trump was arrested in December of 2005. The complaint alleges that Pascoe's office had all of the investigative reports in the case in August or September of 2006, which I assume would have shown that there was no case against Trump, but did not dismiss the murder charge until February of 2007. Trump had told investigators that he purchased the gun from another individual named Roger Johnson, who is currently serving a prison sentence for shooting two Orangeburg County Sheriff's deputies.

From everything that I see, in the article and the complaint itself, Trump does not have a case. I'm all for filing suit against a prosecutor in the right case, to test prosecutorial immunity in light of the Pottawattamie case which was never decided by SCOTUS, but this is not that case.

Problems? Trump was also charged with unlawful carrying of a pistol, to which he pled guilty and was sentenced to a year. He was indicted by the grand jury on the murder charge, which means there was a finding of probable cause (the cliche is that the grand jury will indict a ham sandwich - despite this, a finding of probable cause is a significant hurdle that Trump would have to get around if this suit went forward). And let's not forget that the law still says that prosecutors are immune from suit for decisions such as whether or not to charge a person.

Is there a moral outrage that they allowed a man to sit in jail when they knew that there was insufficient evidence to go forward on the case? There should be. But it does not rise to the level of a prosecutor who obtains perjured testimony to make their case, who manufactures inculpatory evidence or buries exculpatory evidence. It rings of negligence, as opposed to maliciousness. It is ironic that a civil attorney, who deals in money as opposed to freedom, can be sued for malpractice but that a prosecutor, who holds a person's life in his or her hands, is immune from suit.

I predict that the complaint will never be served on Pascoe. It has been filed but not served - if it is not served within 120 days it will be dismissed. It got the media's attention, which may have been the point, but the case has too many problems to get off the ground.

In State v. Valentine, an appeal from Horry County, S.C. from a conviction for trafficking in cocaine, the S.C. Supreme Court, on February 8, held that it was not necessary for the prosecution to produce the CI (confidential informant) at trial to establish the chain of custody:

As we explained in Sweet, "Where other evidence establishes the identity of those who have handled the evidence and reasonably demonstrates the manner of handling the evidence, our courts have been willing to fill gaps in the chain of custody due to an absent witness." 374 S.C. at 7, 647 S.E.2d at 206.

I don't get this decision, and I think it is wrong. The Court notes that the CI "was under direct police observation except during the approximately ten minutes he was in the apartment and only under audio surveillance." But this ignores the nature of a CI in a drug transaction - the CI is likely a drug user or dealer, who has charges pending himself, who is doing everything that he can to keep himself out of prison, which will include cheating, stealing, and lying to the police to secure his own freedom.

The CI has every reason to be dishonest, even to the point of setting someone else up so that he can keep himself out of prison. This is not an evidence tech who walked an evidence bag from one room to another so the chemist could test it, and who has submitted an affidavit regarding the condition of the evidence and what was done with it. This is a person who is dishonest by nature. I'm not saying that the CI in this particular case set up Valentine - I have no idea. I'm saying that the prosecution needs to prove their case, and the defense has the right to cross-examine the CI in a case like this one, to explore what actually happened in the moments when the CI was not in view of the police.

In disciplinary opinions issued February 8, the S.C. Supreme Court sanctioned two magistrates in unrelated matters.

Greenville magistrate James Hudson was given a 90 day definite suspension (backdated to the beginning of his interim suspension, which was more than 90 days ago), for not ensuring that the office account was properly reconciled. Seems rather harsh, given that the opinion indicates that he did not realize there was a problem at first and when he did see the problem he 1) took steps to correct it and 2) reported himself and asked for an investigation. The ethics violation essentially was for not being diligent in managing his office and not adequately supervising his staff - there are standing Orders on Financial Accounting from the Supreme Court that detail what is required, and the magistrate was not complying with them.

On the other hand, former Lee County magistrate Alston Wesley Woodham was given a public reprimand for fixing tickets - he was approaching officers ex parte to get them to nolle prosse (dismiss) tickets that were written for weight violations on county vehicles at the Lee County Landfill.

Woodham admitted that he was contacted by a state legislator on multiple occasions, and by county officials, who asked him to fix tickets written at the landfill for weight violations, and that the judge then would contact the officers and ask them to dismiss the tickets.

Ticket-fixing constitutes improper ex parte communication and severely undermines the public's confidence in a fair and impartial judicial system. Accordingly, again we emphasize that it is improper for a magistrate to engage in ex parte communications concerning any pending or impending judicial proceeding with an officer, alleged violator, or any third party, including a member of the legislature.

A public reprimand sounds like a slap on the wrist for a judge who is engaging in ex parte communications and conduct that "severely undermines the public's confidence" in the judicial system," but - Woodham is no longer a judge, and the Court also ordered that he will not be a judge in S.C. without written authorization from the Court after notice in writing to the Office of Disciplinary Counsel.

Yesterday I had the dubious pleasure of sitting through a hearing in the Horry County juvenile court in Conway, where the prosecutor sought to waive the child up to general sessions court for prosecution as an adult. Not my client, but it was related to one of my cases. In general, I have a hard time with juvenile court proceedings - although the professed standard in these cases is "the best interests of the child," almost without fail the child loses.

There is no right to a jury trial for juveniles in South Carolina, so if you test the state's case the judge alone decides the case. Often I am shocked at the condescending and angry manner in which some family court judges treat the troubled children who are in front of them. If the state is acting "in loco parentis," it is often an abusive and unforgiving parent. The actual parents often are the source of the child's problems, yet the child is punished for the parents' failings, and may be sent to a locked down facility for an "evaluation," (I've been to this facility - it is a small prison, built with cold gray bricks, with a barbed wire fence around the outside, situated next door to an adult prison where death row inmates are housed) sent to a group home, or sent to DJJ to be locked up for a period of time. Sometimes there is no other choice and the Court is at a loss for what to do.

Sometimes the child is released to his family and connected to services such as counseling, and we hope that they live happily ever after.

Anyway, back to the topic. Under certain circumstances a juvenile can be "waived up" to general sessions court and prosecuted as an adult, when a serious crime has been committed. In this case, a 14 year old juvenile was accused of kidnapping, assault and battery with intent to kill, and armed robbery, and the allegations are that his mother and another adult encouraged his participation.

This case fell under a provision of S.C. law that says a juvenile who is 14 years of age or older can be tried in adult court if he is charged with "a Class A, B, C, or D felony as defined in Section 16-1-20 or a felony which provides for a maximum term of imprisonment of fifteen years or more, the court, after full investigation and hearing, may determine it contrary to the best interest of the child or of the public to retain jurisdiction."

I'm not sure when it could be in the best interest of the child or the public to send a 14 year old child to be prosecuted as an adult and subjected to a 30 year prison sentence. In this case a DJJ psychologist testified that the child would receive treatment and rehabilitation if he stayed in the juvenile system, but not in the adult system, and testified that it was in the best interest of the child and the public to keep him in the juvenile system.

The prosecutor's arguments as I heard them went something like this: 1) This child has never had a significant adult in his life, he was abused as a small child, he suffers from various mental and emotional disorders, he has no family who cares about him, and therefore we should punish him more severely.

2) If the child is kept in the juvenile court he would receive mental health treatment (he would be "sub-classed" under a federal court order as a result of a class-action lawsuit that was brought against the DJJ for their treatment of mentally ill juveniles), and therefore we should send him to the adult court.

3) At 17 years of age he would be transferred to a YOA facility, where he would receive treatment. If he is tried as an adult he would no longer receive treatment therefore we should send him to adult court.

As usual when I leave juvenile court proceedings, I wish that I missed something, that someone in there is actually trying to help children, but I am afraid that I missed nothing. The judge has not ruled in that particular case, but I suspect that the juvenile will be tried as an adult.

In State v. Elders, decided January 28, the S.C. Court of Appeals held that, when a defendant has pled guilty to carjacking, the double jeopardy clause does not bar a subsequent prosecution and punishment for kidnapping based on the same facts.

Elders was convicted of armed robbery, assault and battery of a high and aggravated nature, and two counts of kidnapping following trial, but before the trial began he pled guilty to carjacking. I'm wondering: 1) why would he plead guilty to carjacking, which carries twenty years, before the trial began; and 2) why would the prosecutor waste the court's time and try him on the remaining counts when carjacking carries twenty years anyway?

Regardless, back to the opinion. The Court holds that, whether it is a multiple punishment or successive prosecution, the Court must analyze it using the "same elements" test from Blockburger v. United States, 284 U.S. 299 (1932). If each offense requires proof of an element that the other offense does not, then they are two distinct offenses and double jeopardy does not apply. In this case, it can be summed up as: kidnapping requires proof that a person was taken; carjacking requires proof that a car was taken. Different elements (person vs. car) therefore no double jeopardy.

The Court held that photographs showing one victim hooked up to machines in a hospital and showing the second victim in a wheelchair were more probative than prejudicial because the photographs showed the injuries received, and showed that the injuries were likely inflicted by a knife.

The Court also held that four knives introduced as evidence by the state which were not used in and had no connection to the crime should not have been admitted because they were not relevant, but that it was harmless error in light of the overwhelming evidence of Elders' guilt.

Pickens, S.C., lawyer Redmond Coyle was shot and killed outside of his office this afternoon. The man who is accused of shooting him, Jerry Dean Crenshaw, then turned his gun on himself:

Pickens Police Chief Tommy Ellenburg said a man shot Coyle multiple times before shooting himself. The incident took place in the parking lot behind Coyle’s 303 E. Main St. office, he said.

Jerry Dean Crenshaw was taken to Greenville Memorial Hospital for treatment, according to Ellenburg.

There is no information yet as to why it happened or what Crenshaw's condition is.

The results of the General Assembly's judicial elections are in - notably, Craig Brown of Florence, S.C. is now a circuit court judge. I don't know much about the other new judges, but Craig has considerable experience in civil and criminal law, and has worked as a defense lawyer in both state and federal court.

Court of Appeals:

Seat 5, Chief Judge Hon. John C. Few, Greenville

Circuit Court:

8th Judicial Circuit, Seat 1 Hon. Frank R. Addy, Jr., Greenwood

At Large, Seat 8 David C. Brown, Florence

Family Court:

2nd Judicial Circuit, Seat 1 Vicki J. Snelgrove, Aiken
5th Judicial Circuit, Seat 4 Gwendlyne Y. Smalls, Columbia
7th Judicial Circuit, Seat 1 Phillip K. Sinclair, Spartanburg
7th Judicial Circuit, Seat 3 Hon. Usha J. Bridges, Gaffney
13th Judicial Circuit, Seat 2 William M. Robertson, Greenville
16th Judicial Circuit, Seat 2 Hon. David G. Guyton, Rock Hill

Spartanburg County Clerk of Court Marc Kitchens was arrested this morning on federal drug charges.

Kitchens is accused of stealing and attempting to sell drugs from the Spartanburg County Courthouse's evidence room. He was formally charged with conspiring to possess with intent to distribute cocaine and methamphetamine between April 2009 and January 2010 – a charge that carries a maximum sentence of $2 million and 20 years in prison.

This one is pretty unbelievable. The allegations are that Kitchens took drugs from the clerk's evidence room - drugs that being held as evidence in cases that have already been to court, that is being preserved while a case is on appeal for example - and attempted to sell the drugs to an undercover informant who was working with the DEA.

A Conway police officer was suspended without pay after being arrested for criminal domestic violence yesterday. More details in the article.