South Carolina Criminal Defense Blog

Given the recent slew of blog posts around the country on police abuse, this latest story is timely. Just another bad apple, the batch is fine:

A Streamwood police officer has been charged with aggravated battery and official misconduct after a camera mounted on his squad car dashboard caught him repeatedly beating a motorist with his baton, prosecutors said.

James Mandarino, 41, beat the motorist 15 times as the man knelt on the ground March 28, according to Assistant Cook County State's Atty. Alexander Vroustouris. The man received seven stitches to his ear and was treated for a concussion and multiple contusions, abrasions and bruises, Vroustouris said.

"At no time during the time period when the defendant is beating the victim with his baton does the video reflect that the victim had anything in his hands, nor does the video reflect the victim making any threatening motions toward the defendant,'' said Vroustouris. "The victim is completely compliant."

The officer has been charged criminally, and released on a $50,000 bond. He has been placed on paid administrative leave (translation: vacation?) pending disciplinary action.

Update: Reading the comments to the news article, I'm disappointed but not surprised that people are defending the officer and saying that the victim must have deserved what happened.

The guy getting his a** kicked by police in the video below was charged criminally, and the charging documents said that he struck the police and their horses, causing minor injuries to them:

H/T Brian Tannebaum

In S.C., as in most cases, we have "no contest" pleas in misdemeanor courts and "Alford" pleas for felonies - the generally accepted definition is that in either case you are not admitting guilt to the offense but you are pleading to it anyway because you feel that you would be convicted at trial and you do not want to risk a harsher sentence at trial.

Rarely will I recommend to a client that they enter an "Alford" plea - in many cases defense lawyers, prosecutors, and judges will use it as a way to get a person to plead guilty even though they are maintaining their innocence - it is easier than a trial for everyone involved. On the other hand, if a person is maintaining their innocence, no-one should be forcing them to enter a guilty plea, and the defense lawyer should be working on building their case instead of working on ingenious ways to convince them to plead guilty.

There are some cases - where a person cannot remember what happened because of a blackout caused by intoxication, and the evidence is overwhelming - where I think that an Alford plea is appropriate. There are other situations where it may be appropriate, like where the nature of the plea could affect a pending civil action and it is important that there is no admission that can be used against the person later. But it is still a conviction and it is still on the person's record.

Early in my career there was a judge from Oconee County that earned my respect by always asking a defendant, "You wanna tell me what you did?" during the plea colloquy, and if what they told him did not match the elements of the crime charged he would not accept the plea. If a person is pleading guilty to a crime they need to admit that they committed the crime, and not waffle about whether they are in fact guilty. That judge would not take an Alford plea either, unless the person was intoxicated at the time of the incident and could not remember what had happened, there was evidence that would be enough to convict him at trial, and the person was gaining the benefit of a bargain by accepting the plea offer.

Back to the title of this post - I've recently discovered the blog Overheard in Court, and I discovered this gem that was posted there month before last:

It’s not uncommon for defendants in misdemeanor court to waive counsel and proceed pro se on a plea. The other day I was prosecuting such a defendant and explaining the offer we were making him on his criminal case.

He told me he wanted to take the offer, and I told him he could choose to plead either “Guilty” or “No Contest.” I started to generically explain the difference… “When you plead guilty, you’re admitting you committed the crime; when you plead no contest…”

He broke in and said: “Well, that’s just a sissy way of sayin’ guilty, isn’t it?

He then informed me he had “no desire to plead ’sissy.’”

Former ATF agent Brandon J. McFadden was arrested last Thursday, after he was indicted on four counts for taking part in a drug conspiracy, possession of methamphetamine with intent to distribute, possession of a firearm during a drug trafficking crime, and aiding and abetting money laundering.

The indictment alleges that beginning in January 2007, and continuing through October 2008, McFadden conspired with other individuals to distribute marijuana, powder cocaine, and methamphetamine in the Northern District of Oklahoma.

As part of that conspiracy, McFadden is alleged to have planted drug evidence on suspects; stolen drugs and money from suspects; and testified falsely in court. The money laundering count charges McFadden with using proceeds of the drug trafficking to purchase a Chevrolet Silverado on June 8, 2007.

A federal agent being indicted is a rarity - the grand jury is hearing testimony from federal inmates as well as Tulsa police officers.

People are regularly charged with public disorderly conduct, breach of peace, or interference with a police officer and arrested and imprisoned by police officers for questioning their authority, asking questions, using profanity, or doing anything in general that pisses off the cop. Many people may not realize that all of the above is protected conduct under the First Amendment, unless the person's conduct arises to the level of "fighting words," which is defined by the U.S. and S.C. Supreme Courts as conduct or words that would tend to immediately incite violence.

This has been the law according to the United States and South Carolina Supreme Courts for over 30 years, and it is well established. The police know that this is the law - they are specifically trained on First Amendment law at the academy and they are told that they cannot arrest a person for speech unless the person speaking is causing violence.

Despite this, they also know that most people can not afford to retain an attorney - that they will plead guilty to the misdemeanor charge in the morning and most likely pay a fine. They know that they have made their point - piss me off and you will spend the night in jail. Attorneys call it "contempt of cop" - analogizing to "contempt of court," where a judge can put you in jail if you disrupt the courtroom. Police are not judges, and they have no such power.

This widespread practice of police is an abuse of power. The problem is a lack of training, a lack of supervision, a lack of discipline in the police departments that allow it to happen. Horry County Police Department is among those agencies with a systemic problem that allows this to happen - in a recent case an officer testified that there was nothing wrong with arresting and jailing a person if they questioned his authority, did not listen to him, or cursed in front of him. When they were sued, Chief of Police Johnny Morgan sat in the courtroom for the entire trial and watched. He said nothing. He offered nothing. He did not admit that what happened was wrong, there was no apology, and there was no discipline for the officer. They laughed at the breaks, when the jury was out of the courtroom, and they joked about what had happened. That same officer is or was a part of a group of officers who continue to arrest and jail people for protected speech, when a citizen makes them angry. It is an institutional problem which begins at the top of the chain.

Being overpowered, handcuffed, made helpless, sometimes physically hurt in the process, humiliated, and then locked in a cell overnight or longer is no small slight - it is a terrifying experience, more so when you know that you have done nothing wrong and that the person doing it to you is not following the rules.

It goes unnoticed because most people have the nagging feeling that maybe they did something wrong. Maybe it was my fault. We want to trust the police. After a night in a cage they appear before a judge and agree to pay a fine so that they can go home.

Last October three police in Columbia, S.C. arrested a man named Jonathan McCoy for contempt of cop - they didn't know who he was - as far as they knew it was just some asshole who had the nerve to walk up and ask them why they were arresting his friend. I don't know why they were arresting Jonathan's friend, only that Jonathan says he did nothing more than question the officers when he was taken to the ground, handcuffed, arrested, and jailed. While in jail he witnessed another inmate commit suicide by hanging himself.

Jonathan is not just another helpless person walking down the street who does not know their rights - he is a lawyer from Myrtle Beach, S.C. The incident was captured on a video camera in Five Points, S.C. - video footage which shows that the officers lied in their incident reports:

In the police incident report, officers said McCoy "grabbed an officer by the arm and asked what was happening." Officers asked McCoy to step back but he continued to intervene, getting in officers' faces, according to the incident report.

WMBF has the video - Jonathan walks up to the officers and appears to be questioning them; he is almost immediately pushed violently by an officer and then he is shoved almost off camera by two officers before he is handcuffed.

When the trial judge gives you what you want, it makes it difficult to win on appeal. In State v. Parris, decided March 17, the S.C. Court of Appeals affirmed Parris' conviction for reckless homicide. Parris was acquitted of felony driving under the influence, but was convicted for reckless homicide and pled guilty to driving under suspension and habitual traffic offender. He was sentenced to 15 years (10 for the homicide and 5 consecutive for the habitual traffic offender).

Parris' trial lawyer objected to testimony by the arresting officer that Parris could take the stand and answer a question himself, as an inappropriate comment on Parris' right to remain silent. The trial judge sustained the objection and gave a curative instruction. Parris argued on appeal that the curative instruction was insufficient, but the Court holds that the issue is not preserved for appeal because Parris did not contemporaneously object to the sufficiency of the curative instruction.

When the arresting officer and a doctor each made statements on the stand that implied that Parris had a prior record (the trial judge had ruled before the trial began that the prior record would not be admissible), the judge sustained the defense lawyer's objections and struck the testimony from the record. No reversible error, because the trial judge ruled in Parris' favor and gave him what he asked for.

When the arresting officer implied that Parris had no remorse for the crime, the trial judge again sustained the objection, ruling that the officer could not comment on Parris' lack of remorse. The Court holds that there was no reversible error because again the trial judge gave Parris what he asked for. Although the officer could not comment on Parris' lack of remorse, he can testify as to Parris' lack of emotion as evidence of intoxication (fine line between the two, and a way for the prosecutor to get lack of remorse in through the backdoor).

In State v. Smith, decided March 24, the S.C. Court of Appeals affirmed Smith's conviction for accessory to murder and armed robbery over her claim that the trial court should have granted her requests for a continuance and severance.

Continuance - the Court held that 10 days notice of trial is sufficient when the case has been on the docket for a year, and it does not matter that defense counsel was informed a week before trial that a new charge, accessory before the fact to burglary, had been added.

Smith had also requested a continuance on grounds that two witnesses were unavailable for trial - but Smith's counsel did not comply with Rule 7(b):

No motion for continuance of trial shall be granted on account of the absence of a witness without the oath of the party, his counsel, or agent to the following effect: the testimony of the witness is material to the support of the action or defense of the party moving; the motion is not intended for delay, but is made solely because he cannot go safely to trial without such testimony; and has made use of due diligence to procure the testimony of the witness or of such other circumstances as will satisfy the court that his motion is not intended for delay.

Severance: although the opinion is not clear on what the record below showed, the Court holds that the trial court did not err in finding that Smith would be able to adequately cross-examine a state's witness on his testimony without addressing the character and criminal history of Grant, Hartwell, and Hollins.

Lastly, the Court re-affirms that, when tried jointly, a defendant loses last closing argument if any co-defendant introduces evidence at trial.

The Easter Bunny was attacked on Wednesday outside a candy store in New York. What is the world coming to?

It appears even the Easter Bunny is vulnerable to random acts of violence.

According to state police, a man with an apparent axe to grind attacked a woman dressed as the Easter Bunny outside a Hudson Valley candy store Wednesday

Update: The Easter Bunny came back to work, but brought some muscle this time. Rascal the Racoon showed up with the Easter Bunny Friday, wielding a baseball bat and ready to rumble.

In Lapp v. SCDMV, decided March 31, the S.C. Court of Appeals upheld a license suspension under South Carolina's implied consent law. First, the Court finds that there was sufficient evidence for the hearing officer to find probable cause, where Lapp was sitting in her car, admitted to striking two vehicles, and smelled like alcohol, even though Lapp refused to take field sobriety tests.

The second part of the opinion was more interesting to me - it holds that Lapp failed to preserve the issue of whether her arrest was lawful under 56-5-6170, but then goes on to discuss why 56-5-6170 does not apply in her case. I've never seen 56-5-6170 before reading this opinion, but I can see where it can be useful in several situations.

Section 56-5-6170 provides in pertinent part:

No police officer in investigating a traffic accident shall necessarily deem the fact that an accident has occurred as giving rise to the presumption that a violation of a law has occurred. Arrests and criminal prosecution for violation of this chapter shall be based upon evidence of a violation of the law.

The DUI and implied consent laws are found in Title 56 chapter 5, and so 56-5-6170 applies to both. In most DUI investigations, however, the officer will conduct SFST's and will carefully document his observations as to probable cause apart from the fact that an accident occurred (or copy and paste from the last incident report, either way). I am reminded of a small trial I had last year in the Myrtle Beach city court, for following too closely - I easily brought out in the trial that there was no evidence of following too close, other than the officer's statement that there was an accident, my client hit the other car from behind, therefore he was following too close.

The municipal court judge did not give us a directed verdict although he should have, but it did not matter since the jury found my client not guilty anyway. But this does highlight the practice of some officers of finding someone at fault when there is an accident, even when there is no evidence to support it.

In State v. Wiley, decided March 31, the S.C. Court of Appeals held that the State's arguments to the jury in opening and closing, that 1) the defendant had an outstanding warrant when he was arrested, and 2) the defendant did not challenge the lawfulness of the search, were either harmless error or that a curative instruction given by the judge was enough to cure any error. Wiley was convicted of trafficking in cocaine and sentenced to 25 years.

One thing that jumped out at me in the opinion was the Court's statement that the error was harmless in light of the overwhelming evidence of guilt, which included the defendant's statement to the trial court: "I guess I want to apologize to the Court for getting myself in this trouble. I should have known better than what I was doing. I had numerous opportunities to stop. I just want to apologize to the Court." As in State v. Sroka, cited by the Court, "any doubt about correctness of guilt was eliminated by the admission of appellant in open court, after conviction and during the pre-sentence inquiry by the trial judge."

The point here is that, if the defendant wants any chance at appeal or post conviction relief, the best practice is to say nothing during the sentencing hearing. If the defendant still proclaims his innocence after a jury has found him guilty, it is not going to endear him to the judge. On the other hand, if the defendant admits his guilt, that admission will be used against him by the Court of Appeals and possibly at any re-trial of the case.

Note: If you are facing a contempt proceeding in a child support case, do not call me. I do not practice in the family court other than for juvenile criminal defense. (Besides, if you could afford to retain me to fight a contempt charge, you could afford to pay the child support and then you would not be held in contempt, right?)

Still, this bothers me greatly. Child support contempt proceedings are like a revolving door to prison for some people. They cannot pay the child support, they are held in contempt of court and sentenced to 6 months to a year in prison without the assistance of counsel, they get out of prison and have no job or life because they've been in prison for the past however many months, they get hauled back into court and are sentenced again for contempt of court for not paying child support.

In Price v. Turner, decided March 29, the S.C. Supreme Court held that there is no right to counsel for indigent defendants in family court child support proceedings - the Defendant was held in contempt for failure to pay child support (nearly six thousand dollars worth), and was sentenced to one year in prison.

The Courts have approved the continuation of one of the few debtor's prisons remaining in the world today - if people have no money to pay the debt how is imprisoning them going to help the situation? Perhaps we could make them indentured servants upon release until the child support arrears are paid off, like we did in the 1800's.

The Court's reasoning for denying counsel to the defendant is that the contempt is civil - the purpose of civil contempt is not to punish, but to coerce the person to comply with the court's order. That makes sense, if the person has six thousand dollars in their bank account and simply refuses to pay it; but this defendant, according to the appellate opinion, testified that the failure to pay was due to incarceration, drug addiction, unemployment, and injury. Tell me again how another year in prison helps the situation?

Criminal contempt, which is designed to punish, triggers additional safeguards which include the right to counsel. Civil contempt, which is designed to coerce the defendant to comply with the court's order, has no such safeguards.

It appears that the issue on appeal in this case was the denial of the right to counsel, and the Court did not decide any other issues in the case. I am wondering if the evidence in the court below really supported a finding of a willful violation of the court's order - if there is no money available to "purge the contempt" and secure release from prison, can the contempt really be civil?