South Carolina Criminal Defense Blog

via the NORML Blog, a marijuana prohibition video worthy of virality. I agree.

What would the appropriate penalty be for an attorney who repeatedly offers to write off legal bills in exchange for sex? What if the attorney has a long history of ethics complaints, had previously been suspended for 15 months (and continued to practice law anyway), and lied to disciplinary counsel about his conduct? According to the New Jersey Supreme Court, disbarment would be too harsh, and the attorney is suspended for one year.

A one-year suspension from practice, with reinstatement conditioned on the successful completion of an approved sensitivity training course and proof of the institution of accounting controls in his office, is the appropriate measure of discipline for Witherspoon. More substantial discipline is not warranted on the record in this case, which does not include criminal conduct, unwanted, traumatic physical contact, or particularly vulnerable subjects of Witherspoon’s attention. Preying on clients as Witherspoon has done deserves to be dealt with harshly because it goes to the heart of the trust on which the attorney-client relationship is based, but it would be disproportionate to disbar him for his boorish, insensitive and offensive, but hardly criminal, conduct.

I'm not familiar with NJ law, but in South Carolina and I thought most states, solicitation of prostitution is criminal. I suppose, in NJ, solicitation of prostitution is not criminal so long as it is in the context of an attorney preying on his clients?

H/T Legal Ethics Forum and Law of Criminal Defense.

Tim Masters was sentenced to life in prison after being convicted for murder - after spending nine years in prison, he has been exonerated by DNA evidence and the detective from his case - Lt. Jim Broderick - is being prosecuted for perjury:

Masters, who served nine years of a life sentence after his 1998 arrest in Peggy Hettrick's murder, has said he hopes Fort Collins and Larimer County will finally acknowledge that he was railroaded.

The city and county have paid Masters a combined $10 million to settle a civil rights lawsuit related to the conviction, but they painted the payouts as business decisions rather than reparations.

"I am anxious to see if the leadership in Fort Collins will finally publicly admit my incarceration was a mistake or if they will continue this charade that their people did nothing wrong," Masters said in a statement provided by his attorneys. . . .

. . . Among the charges in the indictment are that Broderick intentionally lied about an FBI profile used to support Masters' arrest, shoeprints found at the crime scene, a fellow investigator's crime scene observations and his own degree of participation in the case.

The prosecutors that put Tim in prison have since been rewarded by being elected as judges - Jolene Blair and Terry Gilmore.

Although the city and county have paid out $10 million, they still admit no wrongdoing.

Broderick still admits no wrongdoing, and his attorney suggests that Broderick's prosecution is politically motivated because the prosecutor is running for office (irony?).

An Horry County public defender was given a public reprimand for numerous violations, including failing to communicate with clients, failing to communicate with the Office of Disciplinary Counsel during their investigation, and failing to give competent representation to clients. This lawyer's case has re-sparked debate about the overwhelming caseloads that public defenders are working with - it raises the question, is the public defender simply providing incompetent representation to indigent clients, or is he prevented from providing competent representation by the conditions he is given to work in?

My own rant - sorry if you are sick of hearing it: When caseloads become unmanageable, public defenders have an ethical responsibility to refuse cases - with no funding, huge caseloads, and insufficient office staff, public defenders cannot possibly fulfill their duty to independently investigate every case, to meet with their clients, to respond to their clients' communications, and to do even the most basic preparation for trial in their cases. If you are a chief public defender and you know that your attorneys are overwhelmed, stop accepting cases. If you are a rank and file public defender and you are not prepared for trial, refuse to proceed and make a record as to why you were unable to be prepared.

Another attorney was publicly reprimanded for failing to communicate with his clients he was defending in a civil matter, including failing to inform them when an arbitrator awarded damages to the plaintiff in their case.

An attorney was disbarred after he allowed his license to be suspended for failing to complete CLE requirements, then failed to tell his clients about the disciplinary proceedings, failed to keep records of his trust account, misappropriated funds from his trust account, and did not keep malpractice insurance (which means the laundry list of clients whose cases he was neglecting got screwed). The sanction includes a requirement that the attorney enter a monitoring contract with Lawyers Helping Lawyers before he can seek to be reinstated (among other requirements), which indicates that the difficulties may have been brought on by substance abuse.

An attorney was disbarred after not keeping up her trust account, misusing clients' funds, being charged herself with issuing fraudulent checks, not paying a court reporter for a transcript, and failing to communicate with her clients.

One thing that all of these cases have in common is the failure to communicate with clients - whether it is a symptom of more serious underlying problems or the source of the complaints in and of itself, it is clear that if we find ourselves not taking clients' phone calls or not responding to correspondence from clients, we need to step back and take a look at our practice and figure out what we can do differently.

The 7th Circuit Court of Appeals has removed a federal judge from an ongoing trial - the exact reason why is a bit murky, but it seems that the reason is because the judge disagreed with prosecutor Patrick Fitzgerald.

In an extraordinary maneuver, the federal appeals court in Chicago removed a judge from an ongoing criminal trial that has been marred by disagreements between the prosecutors and the judge.

The 7th U.S. Circuit Court of Appeals provided no explanation in its Tuesday order dismissing U.S. District Judge James Holderman from the jury trial of a man facing drug charges. The court said an opinion would be forthcoming.

The appeals court intervened after U.S. Attorney Patrick Fitzgerald took the unusual step of stopping the trial twice to ask the court to review the judge's decision to exclude critical fingerprint evidence against the defendant.

In his second petition to the appellate court, Fitzgerald called out Holderman for "unfortunate hostility toward the government."

I'm sure there is more to the story, and there is plenty going on behind the scenes, but what? It appears that the 7th Circuit Court of Appeals is removing a judge from a case because the judge disagreed with the prosecutor. What kind of message does that send - is the trial judge in charge of his courtroom or the prosecutor? Will the next judge, or any other judge in the 7th Circuit now be more careful to agree with and get along with the prosecutors in their courtroom?

Has anyone ever seen a judge removed from a case for disagreeing with a defense attorney?

A former Horry County police officer was sentenced to 42 months in prison today, after pleading guilty in January in federal court to possession of child pornography. The possession occurred while he was a police officer.

Both the US Senate and the House of Representatives have passed S.1789, which reduces the 100-1 sentencing ratio for crack to powder cocaine to 18-1, and which does away with the five year mandatory minimum for simple possession of crack cocaine.

WASHINGTON, D.C. – Moments ago, the U.S. House of Representatives passed landmark legislation to dramatically reduce the sentencing disparity between federal crack and powder cocaine sentences and to repeal the five-year mandatory minimum for simple possession of crack cocaine. The bill, S. 1789, already won unanimous approval from the Senate in March and now goes to the White House for President Obama’s certain signature. Its passage marks the first time that Congress has repealed a mandatory minimum drug sentence since the Nixon administration.

A Greenville police officer was charged with criminal domestic violence (CDV), accused of punching and choking a woman, and pouring water over her nose and mouth so she could not breath. He has since resigned as a police officer.

A Sumter police officer has been fired, and there is a SLED investigation regarding excessive use of force - no other details are available.

H/T Injustice News

From KCCN.tv, H/T the agitator:

Sheriff's deputies in San Luis Obispo County California respond to a call for conduct that is not criminal, enter the man's home over his objection, search his home including his gun safe, take all of his guns, debate on video (their own car-cams) what story to tell in their reports to justify the invasion, and then arrest the man on bogus charges.

Police are usually provided with summaries of developing Fourth Amendment law - typically just enough to know what to say to get around the Fourth Amendment and for their testimony to stand up in court. The conversation on the video below illustrates why, for some law enforcement, they are given just enough information to be dangerous but not to get by - can we imagine what law enforcement could get away with if they had actual legal training?

Why are these deputies having this conversation on their dash-cams? They don't seem to be too bright - maybe they are used to not providing these to the defense and don't think about it; maybe they just don't think about it. How often does this type of conversation take place off camera?

Happy ending? After a judge dismisses two counts for lack of evidence, the man's public defender advises him to plead guilty to one of the remaining misdemeanors because the prosecutor is threatening to bring additional charges if they take his case to trial. At the time of the video, the police still had not returned the man's guns.

Part I

Part 2

part 3

Sabbar Kashur, an Arab man who lives in Jerusalem, was convicted of raping an Israeli woman and sentenced to 18 months in jail because, although she willingly had sex with him, he told her that he was an Israeli.

Sabbar Kashur, 30, was convicted as part of a plea bargain. According to the indictment, Kashur met the complainant in September 2008 in downtown Jerusalem, presenting himself as a Jewish bachelor looking for a serious romantic relationship.

The couple then went to a nearby building and had sex, after which Kashur left the building without waiting for the woman to get dressed.

When the woman found Kashur was not a Jew but an Arab, she filed a complaint that resulted in charges of rape and indecent assault.

I don't know jack about Israeli law, but I note that the article says he plea bargained - granted people plead guilty to all kinds of things because they fear longer prison sentences, but if he admitted guilt that takes some of the sting out of it. Nevertheless, the prosecution and the prison sentence reek of government sanctioned racism, the likes of which should not be seen in any developed nation in this day and age.

So, is this the same as a man lying and telling a woman that he is a government worker who will get her housing if the woman has sex with him? No - without a doubt this is more like: if a light skinned black man in the American south lies and tells a white woman he is white, she then sleeps with him 15 minutes after meeting him, and the man is later prosecuted for rape. Racism is what it is, even in Israel.

And - 15 minutes after she met him? Not that it matters, but isn't there a real possibility that money changed hands before the deal went down?

That should be no-brainer. But let's stop for a minute and consider - Comrade Duch, or Kaing Khek Eav, who was a Khmer Rouge leader and in charge of a detention/torture facility in Cambodia, was sentenced to 30 years for his role in the murder of 12,380 people over a 4 year period. That's only the small part that he played personally in the devastation - close to 1.7 million people (a quarter of Cambodia's population) were executed, starved, or died from forced labor during the rule of his government. Duch will get credit for 11 years time served.

In South Carolina, drug trafficking (possession of larger quantities of drugs) is punished by mandatory minimum sentences of 25 and 30 years. In the federal courts, sentences handed down for drug conspiracy convictions range into the hundreds of years ("but I can't do that much time," protests the defendant. The judge smiles gently as he says, "just do as much as you can, son.") The sentence is determined by the sentencing guidelines and is enhanced by factors such as the defendant's criminal history, the weight of drugs that are attributed to the defendant by others in exchange for time cuts on their sentences, and "relevant conduct" - even conduct that the defendant has been acquitted of.

In South Carolina the minimum sentence for murder is 30 years, and it is common for a defendant to plead to the minimum 30, or to a lesser sentence if the state reduces the charge to manslaughter. The mandatory minimum for some levels of trafficking cocaine, crack, or heroin is also 30 years. So what is the worse crime, murder or the possession of drugs? What about the murder of over 12,000 people?

Christopher Pittman, who was convicted in 2005 of the murders of his grandparents Joe and Joy Pittman, was granted post conviction relief in the circuit court today, based on his trial lawyers' failure to pursue a plea agreement where he could have pled guilty to voluntary manslaughter and potentially received a lighter sentence.

In 2004, a year after the trial, federal drug authorities began requiring Zoloft and other antidepressants to carry "black box" warnings — the government's strongest warning short of a ban — about an increased risk of suicidal behavior in children, but not about potential homicidal risks.

In the hearing last year, Pittman took the stand for the first time, saying his chief attorneys — lawyers who specialized in suing pharmaceutical companies — told him they were convinced the jury would blame Zoloft for the killings. He also said they never told him jurors in South Carolina could both blame the drug and find him guilty of murder.

"I wasn't told even if Zoloft was a part in my crime, I still could be found guilty and I was looking at 30 years to life. With the plea bargain, I could have gotten a lot less," he said then.

Young agreed, citing Pittman's testimony and pointing out that defense attorneys also didn't tell a lawyer appointed as Pittman's guardian ad litem about the possibility of a deal.

"It is clear Pittman's Defense team did not appreciate how unlikely the 'Zoloft defense' would result in an acquittal of Pittman for the murders," Young wrote. "As a result, it is clear the Defense team did not seriously pursue negotiations for a plea to voluntary manslaughter."

If he had pleaded guilty to voluntary manslaughter, Pittman could have been sentenced to anything from two to 30 years in prison, at the judge's discretion. With a murder conviction, he faced a mandatory minimum of 30 years in prison, with no possibility of parole.

This case was a travesty because Pittman was not only suffering from mental illness, but was 12 years old at the time of the incident and yet he was tried as an adult - despite the horrible facts in the case, there is no real dispute as to whether a 12 year old's mind is fully developed. Waiver of juveniles from the family court to the circuit court is an area where the law lags woefully behind the available science.

PIttman's case became known as "the Zoloft trial," because his attorneys unsuccessfully pursued a defense which showed that the side effects of the anti-depressant Zoloft caused him to become manic and contributed to his actions.

The ruling of the PCR judge in the circuit court will probably be reviewed by the South Carolina Supreme Court - unlike a criminal trial, the state has the right to appeal the result of a PCR hearing.

More on Christopher's story can be found at christopherpittman.org and at the Juvenile Justice Foundation's website.

The Ohio judge who held public defender Brian Jones in contempt for refusing to proceed with trial on a case he had been appointed to only two hours before (later reversed on appeal) has been disciplined for misconduct in numerous other matters, including berating defense attorneys in front of a jury, refusing to provide records for appeals from his court, expressing his personal opinion to a jury, and ex-parte communications with a prosecutor. He was suspended from the practice of law for one year, with 6 months stayed.

The allegations included that the former judge, attorney John Joseph Plough of Ravenna, Ohio,

failed to uphold the integrity and independence of the judiciary; has failed to dispose of judicial matters promptly, efficiently, and fairly; has failed to diligently discharge
administrative responsibilities without bias; has engaged in ex parte communication; and has engaged in conduct that is prejudicial to the administration of justice.

The one count that was dismissed against Plough involved another instance where he denied a public defender's motion for continuance when she had just been appointed a case, but then relented and granted the continuance later in the day.

H/T Law of Criminal Defense

Read this. Matt Brown's description of a brief encounter with a probation agent conducting a pre-sentence interview captures an irony that is ever-present in our criminal justice system:

After the probation officer finished, she shuffled past me with a faint smile on her face. I caught a glimpse of the defendant in the visitation room. He was grizzled, with a glass eye and scars everywhere. He was rail thin and had a head of curly black hair. I looked back at the probation officer. She waited impatiently to get buzzed out of the jail hallway while fiddling with her ponytail.

The stupid questions and the stark contrast between the probation officer and the defendant made a strong impression. She shouldn’t be in a position to report on him. He’s experienced things that she can’t even fathom. I’d guarantee it.

I imagine the probation officer sitting in her office, surrounded by bric-a-brac as she types up a report about that man’s antisocial personality and escalating drug use. A judge will read what she writes and commit a fellow human being to state custody for a term of years. The judge may have struggled less in his or her life than the probation officer.

What kind of sick, twisted system do we have where the coddled get to judge those among us who’ve had real life experiences?

The probation officer could just as easily be the man's defense lawyer, the prosecutor, or any other person that comes into contact with him in the system and participates in determining his fate. I imagine that many readers of this blog and Matt's may relate more to the probation officer in the story, and that many of those readers just don't get it. Also, it's an academic observation - the coddled among us are most often the ones who are privileged to attend universities, obtain degrees, and take positions of authority over the rest of us - that's not going to change.

A lawyer in Florence was charged with driving under the influence two days ago - as I've often said, DUI charges are the great equalizer and can happen to anyone; attorneys, judges, police, clergy, anyone.

Highway Patrol arrested the Florence County Attorney for driving under the influence.

Police say [the attorney] hit a mailbox Sunday. He was taken to the Florence County Detention Center where he was booked for DUI and failure to report striking fixtures on or adjacent to highway.

A Myrtle Beach police officer was charged with CDV/ criminal domestic violence last week. It may come as a surprise to some, who believe in the infallibility of those who work for law enforcement agencies, that police officers are human beings - the thing that separates them from other citizens is a uniform, a badge, and the authority that we have vested in them. The article linked to illustrates this, as it tells a story of allegations similar to many domestic violence cases - if the allegations are true, the couple were drinking, they argued, it got physical, he held her down and tried to stop her from calling the police.

When the police arrived, the off-duty officer told the responding officers that she hit herself in the face. She told them that she did not want him to be arrested or prosecuted. They arrested him anyway.

The woman told police [the officer] held her arms down, refused to let her call 911 and punched her twice in the face, according to the report. The woman also complained of pain in her right ear and said [the officer] had hit her several times there.

The woman told police she scratched [the officer] in the face to get him off of her and this was the first physical altercation she has had with him, according to the report. The officer who responded to the incident wrote in his report that the woman had numerous wounds, but she refused medical treatment.

[the officer] told the officers that the woman struck herself in the face and he tried not to argue with the woman, according to the report. The woman told police she did not want [the officer] to be arrested.

To their credit, the responding officers made the arrest anyway - I have a problem with many arrests that are made when there is no physical evidence of CDV and the peace has been restored, but when there are physical injuries I do think the suspect should be arrested. Whether he or she is convicted later is another question.

A trooper was arrested Friday night in Horry County and charged with drug possession (looks like possession of cocaine), and has been fired from the Highway Patrol.

Lance Cpl. Bobby Lee Spurgeon was arrested Friday night, Capt. Scott Rutherford, Horry County Police Department, said.

Spurgeon is charged with possession of cocaine or other narcotics, according to the J. Reuben Long Detention Center’s booking Web site.

According to J. Reuben Long's website, Spurgeon was released Saturday on $10,000.00 bond. No doubt there will be more to this story - according to tv13:

Authorities said a joint investigation between the Horry County Police Department and South Carolina Highway Patrol is ongoing and that no further information could be released for fear of “compromising the ongoing investigation.”

The information that we can glean from a news report is always sparse, and there is always more to the story. I am only passing on the fact of the arrest, and I have no other information about Spurgeon's case at this time.

The penalties for most property crimes are determined by the dollar value of the property in question - under the old law, less than 1000$ was up to 30 days, 1000$ to 5000$ was up to 5 years, and more than 5000$ was up to 10 years. S1154 changes the dollar values for most property crimes, so that they are now:

< $2000 misdemeanor and up to 30 days
> $2000 but < $10,000 felony and up to 5 years
> $10,000 felony and up to 10 years

This includes many seldom used property offenses, some of which I didn't even know existed, but the more common ones include:

Malicious injury to personal property
Forgery (no dollar amount = up to 3 years, < 10k up to 5 years, > 10k up to 10 years)
Larceny (petty larceny and grand larceny)
Shoplifting
Receiving stolen goods
Embezzlement (public officials)
Breach of trust with fraudulent intent
Obtaining signature or property by false pretenses
Failure to return rental property
Possession of stolen vehicle
Insurance fraud

Also, defrauding an innkeeper, although punishable by up to 6 months, can now be tried in the magistrate court.

*** S1154 gives jurisdiction to the magistrate and municipal courts to hear forgery with no dollar amount, which has a potential sentence of up to 3 years ***

Edit: corrected the potential sentence for forgery no dollar amount, H/T to Stuart Sarratt, law student extraordinaire and newly minted blogger at the Just Cause Blog.

Dillon's mayor pro-tem was arrested and charged with criminal domestic violence of a high and aggravated nature last week.

This is a shocker, and I am impressed - the City of Myrtle Beach is issuing refunds for all of the fines that were paid by motorcyclists ticketed under the helmet ordinance, with interest:

Myrtle Beach has sent refunds to those who paid fines when they received tickets for not wearing motorcycle helmets, and a second set of checks went out this week for interest on the fines.

The city paid $13,964 in fine refunds for 141 tickets issued while the helmet law was in effect from February 2009 to this summer, when the state Supreme Court declared the law invalid.

City spokesman Mark Kruea said the city also sent an additional $869 in interest, figured at 7.25 percent and depending on how long ago the city collected the fines.

"The interest checks were between 50 cents and $10.50," he said.

Including mailing the checks, the city spent nearly $16,000 issuing the refunds and interest payments.

I wonder if it was in anticipation of a lawsuit to recover the fine money, but I prefer to think that it was a gesture of good faith in an attempt to restore public relations following a fiasco that the city has taken a lot of heat for. I didn't anticipate refunds would be sent out, but I think it was a great idea, from a public relations standpoint. Although the city still maintains that it will try to keep the rallies out of the city, I hope that some of the goodwill among motorcyclists can be restored and repaired.

S1154 adds 17-25-65, which says that if the state makes a motion within one year of sentencing, the court can reduce a person's sentence for helping to investigate or prosecute another person.

It is now easier for prosecutors to lie to juries about why inmates are testifying for the state at trial. Up to this point, the state would typically keep a charge hanging over a defendant's head until they testified to what the prosecutor wanted them to provided truthful testimony at trial, and then the witness would enter their plea to a reduced charge or a reduced sentence after the trial. At trial, the witness would testify that they were testifying out of the goodness of their heart, and not for any hope of personal gain. Then they are subject to cross examination about the murder charge that they have pending and how they don't really want to spend the rest of their life in jail, which is powerful motivation to take the stand and lie to make the prosecutor happy.

Now, the prosecutor can go ahead and plead their witness to a looong sentence, so that they can testify that they are obviously not getting any help in exchange for their testimony - they've already been sent to prison. Then after the trial the prosecutor can go back and make their motion to reduce the witness' sentence.

It also means that inmates in state prison, not just in the local jail, will be scrambling for information that they can use to try to get a sentence reduction by testifying for the state in pending prosecutions. We have taken a giant leap closer to the federal criminal system, where justice is routinely achieved by coerced/bought testimony from inherently unreliable witnesses who have every motivation to lie. Congratulations.

Burglary:

Burglary second degree under 16-11-312 (A) is now punishable by up to 10 years (it was 15 years). But, burglary 2nd degree under subsection (B) is still punishable by up to 15 years and parole eligibility is at 1/3 of the sentence. The difference is subsection (A) is a straight-up burglary second, where someone breaks into a dwelling - a place where a person lives - and there are no aggravating circumstances. Subsection (B) is a burglary 3rd degree, where someone breaks into a building - a place where people do not live - and there are aggravating circumstances that bump it up to a burglary 2nd degree.

So, under the new statute, if you break into a person's home you get less time than if you break into a building where people do not live. That makes sense.

Disturbing schools:

The disturbing schools statute was amended to give magistrate courts jurisdiction when an adult is charged with disturbing schools - because it is punishable by 90 days, magistrates could not hear these cases without an express provision giving them jurisdiction (unless otherwise stated in a statute, magistrates only have jurisdiction to hear offenses punishable by 30 days or less).

Licenses:

56-1-440 was also amended to give magistrate courts jurisdiction - when someone is charged with driving without a license (not driving under suspension; this applies when the person never had a license to begin with), second offense is punishable by up to 45 days and third offense for 45 days to 6 months.

Payment plan: S1154 adds 56-1-395, which allows a person, if all suspensions have been served, to get a temporary license that will last 6 months while they make payments on their reinstatement fees.

Amnesty: It also adds 56-1-396, which provides that the DMV must create a one-week amnesty period each year - if a person's license is suspended, but all of their fees have been paid and all other conditions met, if the person applies during the one week amnesty period, the DMV must reinstate their license and all qualifying suspensions will be cleared.

Both of the last two exclude suspensions for DUI offenses - but if a person has multiple suspensions for DUI and for something else, they can apply and have the qualifying suspension cleared and then just serve out the DUI suspension.

S1154 made two substantive changes to the bond statutes - first, it added "any charges pending against the accused at the time release is requested" to the list of things that a court must consider in determining conditions of release.

The old statute already listed "all incident reports generated as a result of the offense charged, if available" - as one of the items a court must consider in determining conditions of release, but this seldom happens (that I've seen, anyway). The new statute adds a section requiring law enforcement or detention staff to provide the court with the incident report, and provides that the court has contempt powers to enforce the requirement.

I doubt that most magistrates or municipal judges are going to insist that they get the incident report "or else." But, this is something that a defense attorney can point to in asking the court to require them to provide the incident report. If it is provided to the court by law enforcement it must also be provided to defense counsel, and it is an opportunity to find out what the basis of the charges are - information that has not otherwise been readily available at the initial bond hearing.

As an aside, the old law and the new law dealing with magistrates in 22-5-510 describes what offenses a magistrate cannot set bond on, and which offenses they can choose to deny bond on. The magistrate at an initial bond hearing cannot set bond on any offense punishable by death or by life (murder, burglary 1st), and the magistrate may deny bond on violent offenses as defined by 16-1-60. This means if the charge before the magistrate is not specifically listed in 16-1-60 the magistrate must set a bond for the person.

It's not a guideline or a suggestion - it is a restatement of Article I Section 15 of the S.C. Constitution:

SECTION 15. Right of bail; excessive bail; cruel or unusual or corporal punishment; detention of witnesses.

All persons shall be, before conviction, bailable by sufficient sureties, but bail may be denied to persons charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event. Excessive bail shall not be required, nor shall excessive fines be imposed, nor shall cruel, nor corporal, nor unusual punishment be inflicted, nor shall witnesses be unreasonably detained. (1970 (56) 2684; 1971 (57) 315; 1998 Act No. 259.)

Arson:

1st degree Arson still carries a maximum potential sentence of up to 30 years, but arson 2nd degree now carries a maximum penalty of 3-25 years (formerly 5-25) and arson 3rd degree is now 0-15 (formerly 1-10).

Lynching:

The crime of lynching is now called "assault and battery by mob." Assault and battery by mob in the 1st degree is where two or more people assault someone and the victim dies, and it is punishable by 30 - life (lynching in the 1st degree was formerly punishable by death). Assault and battery by mob in the 2nd degree, resulting in serious bodily injury, is now 3-25 (lynching 2nd degree was formerly 3-20), and there is a new tier for assault and battery by mob in the 3rd degree, resulting in plain jane bodily injury, which is punishable by not more than a year in prison.

Attempted Murder:

Until now, there has been no attempted murder offense in South Carolina other than the common law offense of assault and battery with intent to kill, which carried up to 20 years in prison. S1154 creates a new statutory offense of attempted murder, punishable by up to 30 years in prison - "a person who, with intent to kill, attempts to kill another person with malice aforethought, either express or implied, commits the offense of attempted murder." By statute, assault and battery high and aggravated and 1st, 2nd, and 3rd degree are lesser included offenses of attempted murder.

Assault and battery:

S1154 does away with the common law offenses of assault and battery, creates a series of tiered offenses:

Assault and battery of a high and aggravated nature (ABHAN) is now the equivalent of what used to be assault and battery with intent to kill (ABWIK), and is a felony that carries a potential sentence of up to 20 years. There must be a battery (unlike the lesser assault and batteries which could be proven with only an assault), and it must either result in great bodily injury or it must have been done by a means likely to produce death or great bodily injury. (great bodily injury = causes a substantial risk of death or causes serious disfigurement or loss or impairment of a bodily member or organ)

Assault and battery in the first degree is the equivalent of what used to be ABHAN, and is a misdemeanor that carries up to 10 years. A battery is not necessary - it can be:
1) an assault and battery where injury results and
i) it involves nonconsensual touching of the private parts of an adult with lewd intent or
ii) it occurred during the commission of a robbery, burglary, kidnapping, or theft; or it can be
2) an assault, with no battery,
i) by means that are likely to produce death or great bodily injury (as opposed to ABHAN, where a battery was required) or
ii) that occurred during the commission of a robbery, burglary, kidnapping, or theft.

Assault and battery in the second degree creates a new tier that did not exist under the old law, and is a misdemeanor that carries up to three years. Like A/B first degree, no battery is necessary - it is an assault or an assault and battery where:
1) moderate bodily injury results or could have resulted (moderate bodily injury = physical injury requiring treatment (complex surgery or use of anesthesia) to an organ system other than skin, muscles, or connective tissues; or
2) there is nonconsensual touching of the private parts.

Assault and battery in the third degree is the equivalent of the common law assault and battery, except that no battery is required - if a person injures another person or attempts to injure another person - and is punishable by up to 30 days.

On June 2, bill S1154 was signed into law by the governor - the "Omnibus Crime Reduction and Sentencing Reform Act of 2010." It includes some major changes to the criminal law in S.C., it is long and detailed (my printout is 94 pages long), and it is a must-read for anyone practicing criminal defense in the state.

The new law includes many changes in sentencing, some that benefit defendants and some that do not. It includes a "savings clause," which purports to limit the application of the new statutes to offenses committed after June 2. I've done some research on this, and the case law in South Carolina clearly says that defendants get the benefit of a change in sentencing, in the absence of a statutory provision such as a savings clause - there is no case directly on point where a defendant sought the benefit of a statutory amendment but there is a savings clause in the amendment, so this question may be open for debate.

The stated purpose of the Act is to reduce recidivism and to reduce the non-violent prison population, although I'm not sure exactly how it will accomplish this, based on what I'm seeing in it.

It is the intent of the General Assembly to preserve public safety, reduce crime, and use correctional resources most effectively. Currently, the South Carolina correctional system incarcerates people whose time in prison does not result in improved behavior and who often return to South Carolina communities and commit new crimes, or are returned to prison for violations of supervision requirements. It is, therefore, the purpose of this act to reduce recidivism, provide fair and effective sentencing option, employ evidence-based practices for smarter use of correctional funding, and improve public safety.

We'll see.

I was reflecting today on the Fourth of July. Independence day - our celebration of winning our independence as a nation from England, an oppressive, imperialist nation which exerted its influence across the globe by attempting to conquer and control as many foreign lands as possible and then exploit them for as long as possible.

Really, the colonists who rose up against England were not the locals who had been conquered and exploited. They were the other Europeans who had come to make their fortune, or to escape religious persecution in the Old World, or for whatever reasons they came. But that's another story. So, we rose up against England, many people died, and we formed a new nation based on freedom, and enshrined those freedoms in documents such as the Constitution and the Declaration of Independence.

Today, most of our citizens have no idea what those documents say or mean, nor do they care. Freedom sounds good - but it should not get in the way of law and order, establishing and maintaining Christianity as the dominant religion of our country, or suppressing undesirable viewpoints. We quickly became an oppressive, imperialist nation which exerts its influence across the globe by attempting to conquer and control as many foreign lands as possible and then exploit them for as long as possible. We have become much better at this than England ever was.

In a few minutes, I'm going to watch a fireworks display with my three year old son, and we'll have a good time. He'll enjoy the pretty lights and the loud noises. I'll stand in awe as I think of how we are celebrating the birth of a nation, and I'll imagine I am seeing the red glare of rockets and hearing the bombs as they burst in the air above us. I love this country, and what it is supposed to stand for. But I wonder if or when we, the human race, will evolve from our violent nature - will we ever stop trying to control one another, killing one another, exploiting one another.

I'm not trying to detract from the celebration of our country's revolution - it is a glorious thing and I am proud of the freedoms that I and others fight to preserve for us every day (and I am talking about attorneys in the courtrooms and in the dry halls of the legislatures). But, I wish that there were a better legacy for my son as he grows and learns what it is all about, that we could see that point in history where the ugliness stopped, where tolerance, intelligence, and compassion seemed to take hold around the world. Happy Fourth of July.

Restoration Of 'Star Spangled Banner' Uncovers Horrifying New Verses

(Reproduced in part from last year's July 4th post)

On the Fourth of July, we need to stop and consider the reasons why the Founding Fathers drafted the Declaration of Independence, and why we fought a bloody war to gain our independence from England. Most of the reasons are enshrined in our Constitution and its amendments, and they are central to the practice of criminal defense. Our freedoms that we fought for in 1776 we must continue to exercise and to fight for today, lest we lose them. They are:

The right to trial by a jury of our peers, the right to be free from unreasonable searches and seizures by government agents, and the right to have the government prove their case against us beyond any reasonable doubt before we can be found guilty of a criminal act and our personal freedom forfeited.

The right to speak freely, to criticize our government, to associate with whomever we want, to practice the religion of our choice, the right to bear arms (in part to remind our government of how we gained these freedoms in 1776), the right to due process of law, the right to a speedy trial when we are accused of a crime, the right to confront the witnesses against us, and the right to be free from cruel or unusual punishments.

The right to assistance of counsel. Happy Fourth of July.

Please take a moment to read The Declaration of Independence and the Amendments to the Constitution.

Elliot Willcox at Trialtheatre.com today reminds us why we need to visit the "scene of the crime" (not always the best terminology, by the way, if you are the defense lawyer in a criminal case), quoting sage advice from Jimmy Buffett:

So who was this sage? Perhaps you’ve heard of him: His name is Jimmy Buffett, and the advice he extolled came from the song “Mañana” on his Son of a Son of a Sailor album. Here’s what he told me:

“Don’t try to describe the ocean if you’ve never seen it —
Don’t ever forget that you just may wind up being wrong…”

Buffett has given us some great advice over the years (“I took off for a weekend last month, just to try and recall the whole year,” “Come Monday, it’ll be all right,” “Barmaid, bring a pitcher, another round of brew…”) but this is probably the most useful advice he’s ever given to aid your pre-trial preparations.

He's absolutely right - visiting the scene at worst will give us a mental image that we can draw on when speaking to the jury, and at best will give us valuable insights into the case - there is no telling what you will find that can be used in trial, when you go and have a look around in person.

It is hard to get motivated to get out of the office, when I have a hundred other things to do, when I'm not sure that this case is even going to get to trial, and the longer I put off visiting the scene the less likely it is to get done. Although late is better than never, the best time to go and have a look around is now - it may take a year or more for a case to get to trial, and a lot can change in the meantime.

We say, "show the jury, don't tell them," - first we need to show ourselves so we know what it is that we are describing/ showing to the jury. Don't try to describe the ocean if you've never seen it - don't ever forget that you just may wind up being wrong.