South Carolina Criminal Defense Blog

An Iva, South Carolina police officer was charged with unlawful communication after being accused of leaving a voice message for his wife threatening her with bodily harm.

A Lander University police officer was charged with DUI and hit and run after being accused of hitting a car, causing it to hit a third car, and then driving off without stopping.

A state trooper was fired after being charged with DUI in Columbia, after running his car off the road near five points and hitting a retaining wall on U.S.C. campus.

A Greenville County sheriff's deputy was fired and charged with contributing to the delinquency of a minor after being accused of giving alcohol to teenagers at a party at his home.

A Laurens police officer was charged with attempting to shoplift a tree stand from a store in Spartanburg, SC.

Last week, former Union County Sheriff Howard Wells was sentenced to 90 days in jail followed by three years of supervised release (he pled guilty in federal court to lying to investigators), former Union County Supervisor Donnie Betenbaugh was sentenced to 18 months in prison followed by three years probation for extortion, and Willie Randall, Junior, the former county tax assessor was sentenced on conspiracy to distribute cocaine and methamphetamines to 4 years and 9 months in prison followed by four years of probation.

A Myrtle Beach police officer has been charged with DUI after crashing his car into a church in Conway. The officer has been suspended but not fired.

SLED is investigating allegations that a Darlington County Deputy used excessive force against a 15-year-old boy. The boys mother called 911 and asked for a deputy to come and talk with her son, about what happens when you have a bad attitude - the mother says that instead the officer came to her home and attacked and tased her son.

H/T Injustice Newsfeed

A New Jersey defense lawyer (and former cop and prosecutor) has been indicted for bribery and obstruction of justice:

Clifford J. Minor, a former Essex County prosecutor who failed in a bid this year to become mayor of Newark, was indicted today on charges of bribery and obstructing justice, authorities said. . .

Minor, a criminal defense lawyer who spent two years as chief law-enforcement officer for one of New Jersey's most populated counties, is accused of paying a man to lie about owning a revolver so authorities would drop charges against a convicted felon charged with gun possession.

A lawyer in Minnesota who was caught using cocaine at the courthouse while in trial has been sentenced to two days in jail, a $2500.00 fine, 240 hours of probation, and 10 years of probation.

And a lawyer in North Dakota has been disbarred for asking a client to buy cocaine for him. The attorney has been suspended since the incident in 2009, and had previous disciplinary complaints for writing bad checks and overbilling clients.

H/T Law of Criminal Defense

According to a NY Times article, judges in Missouri are now provided with information on the costs of incarcerating defendants - a web-based computer algorithm tells judges recommended sentences and what each sentence will cost the state:

The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.

Judge Wolff said that some judges might never look at the price tags (though they are available to anyone, and some defense lawyers have begun mentioning them) and that judges ultimately did whatever they wished (within statutory limits) on sentences. Missouri’s sentencing commission makes recommendations only. And as Judge Wolff sees it, sentencing costs would never be a consideration in the most violent cases, just in circumstances where prison is not the only obvious answer.

On the one hand, critics say that judges should not consider costs when deciding a person's punishment. On the other, particularly in today's economic climate, requiring judges to consider the costs of a prison sentence could result in more judges considering alternative sentences for non-violent offenders.

For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.

I was reading a Washington Post article about how the sex trade has changed in recent decades (H/T Balko), and came across this thought provoking passage:

When it comes to the sex trade, police officers have in recent decades functioned as quasi-social workers. Peter Moskos's recent book, "Cop in the Hood: My Year Policing Baltimore's Eastern District," describes how police often play counselor to sex workers, drug dealers and a host of other illegal moneymakers. In my own work, I've found that cops are among the most empathetic and helpful people sex workers meet on the job. They typically hand out phone numbers for shelters, soup kitchens and emergency rooms, and they tend to demonstrate a great deal of sympathy for women who have been abused. Instead of arresting an abused sex worker, police officers will usually let her off with a warning and turn their attention to finding her abusive client.

Now, police are not trained as social workers. But really - I have a degree in social work and it's not all that. It consists of a lot of theory, some of which is useful and some of which is not, and most of which is academic. To be a social worker it does not take a degree, it takes compassion. If you care about people, you are in position to help people, and you take advantage of that position to help people, you are a social worker.

Many professions consist of wearing different hats at different times and depending on the situation at hand - lawyers, teachers, social workers, and others are at different times acting as advocate, teacher, broker, etc. Police fall into this category as well, or should.

It seems that, at least some of the time, police are in a unique situation to help people - like defense lawyers, they are constantly in contact with those who desperately need help, some of whom do not understand yet that they need help but many of whom do and are crying out for it. There are doubtless many opportunities that present themselves where a police officer can help a person, connect them with services or a "real" social worker, say a kind word or give encouragement at the right time - the sky is the limit and surely unanticipated possibilities present themselves on a regular basis.

It seems that this could be a large part of the job of the police officer. It is not something that I see in my practice, but that does not mean it does not happen - I write here quite often about police abuse and misconduct, and taken in isolation this paints quite a cynical picture of the role of the police in our society. We know, or hope, that these are the officers who are on the fringe, and the idea is to keep the public informed of what is actually happening and stop police abuse before it becomes common practice in any particular department.

I would like to hear any officers' opinions about what they do, can do, have done, or feel that they should be doing other than making arrests. If you are out there and reading, I'd like to hear from you in the comments or by email, anonymously or not. Thanks.

That being said, I did a google search for "cops as social workers," hoping to find some feel good stories or other thoughts on the matter, and instead the first page was filled with links to a news story on how cops in NYC beat up some social workers, dragging them by their hair from an apartment where they were supposed to be taking a child into emergency protective custody with protection from the police.

In State v. Mattison, decided by the S.C. Supreme Court August 9, 2010, the defendant was convicted in Greenville, S.C., of murder, assault and battery with intent to kill (ABWIK), and possession of a weapon during the commission of a violent crime. Although the trial judge instructed the jury that "mere presence" is insufficient to convict, he refused to charge the jury that "prior knowledge of the commission of a crime is insufficient to establish guilt" and that "mere association with a person who commits a crime is insufficient to establish guilt."

The Court notes that both of the requested charges were proper statements of the law, that a request to charge a correct statement of the law on an issue raised by the indictment and the evidence presented at trial should not be refused, but that if the trial judge refuses to give a specific charge, there is no error if the charge actually given sufficiently covers the substance of the request.

So, although "the trial judge's instruction: (1) was confusing and contradictory with respect to an explanation of "mere presence;" (2) omitted an express instruction regarding "mere association;" and (3) omitted an express instruction regarding 'mere knowledge,'" the judge's instructions sufficiently covered the requested charge in that "mere association" is covered by the "mere presence" charge, and "mere knowledge" is covered by the charge on criminal intent.

What I take from this case is that, although the Court affirmed the conviction, they also are saying that the trial court is required to give a jury instruction on "mere association" and "mere knowledge" when requested and the evidence supports it.

In State v. Wilson, filed August 11, 2010, the S.C. Court of Appeals held that, in a (Georgetown) trial for criminal domestic violence of a high and aggravated nature (CDVHAN), it was harmless error to allow testimony of prior bad acts that had already been ruled inadmissible. The victim, who had been warned that the testimony was not admissible, blurted out that the defendant had grabbed her by her neck and bruised her in a prior incident. The Court holds that no prejudice was shown because:

although it would appear the trial transcript is in excess of four hundred pages, the record on appeal consists of only twenty-five pages, including (1) the in limine agreement to exclude prior bad act evidence, (2) the portion of the victim's testimony preceding Wilson's objection, (3) Wilson's objection and the arguments regarding mistrial, and (4) the indictments. The record indicates nothing of whether additional witnesses testified or if other evidence, such as photographs, was admitted. Accordingly, even assuming for the sake of argument that the admission of the testimony was error, we find no indication of prejudice in the record. See id. at 448, 639 S.E.2d at 164 (indicating prejudice must be based on review of the entire record).

If the state's response is that there was no prejudice, how is it not the state's responsibility to include the remainder of the transcript, or the portions they allege show that there was no prejudice, when the appellant has provided the testimony objected to and the grounds for the objection? The Record on Appeal submitted by the appellant did not show prejudice. Apparently the State did not feel that the remaining transcript was important enough for their designation on appeal. The only thing that I take from this opinion is that we now have to send to the Court of Appeals and Supreme Court a Record on Appeal (a boatload of bound copies of the Record on Appeal, per the rules) that includes the entire transcript, even when it is 400 + pages.

It's generally accepted that lawyers are not to have sex with their clients - take not that this goes for the client's wives as well. In an opinion filed today, the S.C. Supreme Court admonishes an anonymous member of the bar for sleeping with his client's wife.

Michigan also disciplined an attorney today for sleeping with his client's wife (in a divorce action, and when the client found out the attorney refused to refund his fee (he earned it, he says)).

H/T Legal Profession Blog.

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In State v. Brannon, decided August 9, 2010, the S.C. Supreme Court affirmed the Court of Appeals 2008 decision. Although the Supreme Court opinion says that they disagree with the Court of Appeals' rationale, the result is the same - there must be a valid arrest before a person can be charged with resisting arrest.

Whether or not the officer had probable cause to arrest Brannon is irrelevant - probable cause is an objective standard and resisting arrest turns on whether there was a subjective intent to arrest (the Court means on the part of the officer - it seems to me that whether someone is resisting arrest would turn instead on the defendant's subjective intent). Because 1) there was no evidence that the officers intended to arrest Brannon (in fact they testified that they intended to question him, not arrest him); and 2) there was no evidence that Brannon submitted to an arrest, the trial judge should have granted a directed verdict.

In Vasquez v. State, the S.C. Supreme Court granted post conviction relief, overturned Vasquez's death sentence, and ordered that Vasquez be given a new sentencing hearing. Vasquez was convicted of murder, kidnapping, armed robbery, and criminal conspiracy for the deaths of two workers during a robbery at a Burger King in Myrtle Beach, and was sentenced to death.

Vasquez is Muslim, wore a traditional Muslim prayer cap during trial, and called a Muslim imam to testify in mitigation on his behalf. The prosecutor in his closing arguments talked extensively about the 9/11 attack, compared Vasquez's conduct to the 9/11 attacks, and referred to Vasquez as a "domestic terrorist." The Court found that the solicitor's comments were inflammatory, were designed to invoke religious prejudices, and that it was not harmless error.

A solicitor's closing argument must be carefully tailored so as not to appeal to the personal biases of the jury. State v. Copeland, 321 S.C. 318, 324, 468 S.E.2d 620, 624 (1996). The State's closing arguments must be confined to evidence in the record and the reasonable inferences that may be drawn from the evidence. Id. "A solicitor has a right to state his version of the testimony and to comment on the weight to be given such testimony." Randall v. State, 356 S.C. 639, 642, 591 S.E.2d 608, 610 (2004). However, "[s]olicitors are bound to rules of fairness in their closing arguments," as we have explained:

While the solicitor should prosecute vigorously, his duty is not to convict a defendant but to see justice done. The solicitor's closing argument must, of course, be based on this principle. The argument therefore must be carefully tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice.

In State v. Rivera, decided September 7, 2010, the S.C. Supreme Court held that, in the absence of self-defense, pointing and presenting a firearm precludes an involuntary manslaughter charge. At any rate, it appears that the majority opinion re-affirms this principle of law while ignoring the facts of the case in front of them.

Rivera was charged with murder following an altercation at a nightclub in Greenville, and there was conflicting testimony from Rivera and from witnesses as to what actually happened. There are two definitions of involuntary manslaughter, the one at issue here is: "the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others." Basically, if a person has armed themselves in self defense, and a reckless discharge of the weapon results in another's death, the jury can find the defendant guilty of the lesser included offense of involuntary manslaughter instead of murder.

The majority opinion recites some of the testimony provided at trial and concludes that there is no evidence of self defense, because the defendant "admitted at trial he was not in imminent fear of death or serious bodily injury." Because there was no evidence of self defense, there could be no involuntary manslaughter under the facts of this case. The standard is: "where there is evidence from which the jury could infer that the defendant committed a lesser offense, the trial judge must submit the lesser-included offense to the jury."

It all sounds reasonable, until we read the dissent and realize that the majority opinion appears to be ignoring facts from the case, instead choosing only the facts that support their opinion. For example:

The record in this case is replete with testimony that Rivera was the victim of an unprovoked physical attack by Delman Mauricio Arias. The testimony also indicates that although Rivera had the gun on his person he did not present it until after he was beaten, knocked to the ground, and repeatedly kicked. Even then, the gun was unintentionally presented when it fell down Rivera's pant leg and onto the ground resulting in a scramble for the gun between Rivera and Arias. Rivera testified that he got control of the gun and fired it into the ground when Arias continued to advance. Furthermore, in response to the solicitor's question concerning why Rivera pulled the gun, Rivera testified "The truth is that I did it just because I was nervous and because somebody was hitting me, beating me."

When we argue a case to a judge, or a jury, or an appellate court, it is always imperative that we let them know the bad facts up front - because it is better to hear the bad facts from us than from our opponent, and because we appear dishonest if we leave those facts out of our presentation. I am not sure what to make of the Rivera opinion, other than, in light of the facts left out by the majority opinion, it is confusing at best and dishonest at worst.

If the majority opinion were to take the evidence presented at trial in the light most favorable to the defendant, under the "any evidence" standard, and give a reasoned opinion as to why those facts do not constitute evidence of self defense, then this decision would make sense. Otherwise, what does the opinion stand for?

A Marion County deputy has been charged with criminal domestic violence after being accused of throwing a computer at a woman, and resigned from his job this week.

An Anderson County deputy has been fired for an "undisclosed policy and procedure violation," amid an internal affairs investigation and an ongoing criminal investigation by SLED. The deputy was a member of the DUI enforcement team.

A Swansea police officer (Lexington County) has been arrested and charged with misconduct in office after being accused of selling drugs that he was supposed to be using to train his K-9.

H/T Injustice Newsfeed

In In re Richland County Magistrate Court, decided today, the S.C. Supreme Court held that it is the unauthorized practice of law for a non-lawyer to represent a business as prosecutor of a criminal misdemeanor charge, other than a traffic offense. The opinion puts a stop to the practice of some magistrates allowing individuals to prosecute offenses such as bad checks, or shoplifting, on behalf of corporations.

If a private party is permitted to prosecute a criminal action, we can no longer be assured that the powers of the State are employed only for the interest of the community at large. In fact, we can be absolutely certain that the interests of the private party will influence the prosecution, whether the self-interest lies in encouraging payment of a corporation's debt, influencing settlement in a civil suit, or merely seeking vengeance. Petitioner candidly acknowledges in its brief that the non-lawyers are authorized by the companies "to represent their interests" in the criminal proceedings.

We find that allowing prosecution decisions to be made by, or even influenced by, private interests would do irreparable harm to our criminal justice system. At the very least, there is "too much opportunity for abuse and too little motivation for detachment."[2] See State v. Martineau, 808 A.2d 51, 55 (N.H. 2002), Nadeau, J., concurring. Though we certainly understand the practical concerns raised by the dissent, we are confronted with a higher question here. The convenience and fiscal economy of private prosecution may be facially appealing, but we must not embrace them at the expense of fundamental fairness and justice.

It is disturbing that two of the five justices, Chief Justice Toal and Horry County's own Justice Hearn, dissented and would have held that non-lawyer individuals representing the interests of corporations can pursue criminal charges and be vested with the power to put citizens in jail.

Although not directly on point, this touches on the same issues involved in magistrates allowing private individuals to prosecute criminal cases on their own behalf - also unauthorized practice of law and a dangerous practice. Individuals, and representatives of corporations, may represent themselves pro-se in civil litigation, but the state and not the individual is the complaining party in any criminal case:

The right of pro-se representation is preserved by S.C. Code Sec. 40-5-80, which says:

This chapter may not be construed so as to prevent a citizen from prosecuting or defending his own cause, if he so desires.

However, it is the State who is the plaintiff in a criminal action, not the complaining witness. If an individual is wronged, they can seek redress in tort, and they have the right to represent themselves. This statute does not give to individuals the right to represent the State against a person charged with a "public offense." S.C. Code Sec. 17-1-10 states:

A criminal action is prosecuted by the State, as a party, against a person charged with a public offense, for the punishment thereof.

In re Lexington County Transfer Court summarizes the limits of unauthorized practice of law in the context of criminal prosecutions, holding that:

The representation of a party in a guilty plea in transfer court requires the presence and participation of legal counsel. Narrow exceptions to this general rule have been recognized in magistrates' courts. State v. Messervy. 258 S.C. 110, 187 S.E.2d 524 (S.C. 1972) (arresting officer may prosecute case in magistrates courts); State Ex Rel.McLeod v. Seaborn, 270 S.C. 3 ) 17, 244 S.E.2d 3 17 (S.C. 1978) (Messervy exception extended to include a supervisory officer of the arresting officer); State v. Sossamon, 29S S.C. 72, 378 S.E.2d 259 (S.C. 19S9) (Messervy exception limited to arresting officer and his supervisor, and request to extend Messervy exception denied).

Complaining witnesses are not parties in a criminal prosecution. The State and the defendant are the parties. Unless the complaining witness is an arresting officer or their supervisor, they cannot prosecute a criminal case.

Why do we do it? How do we represent someone when we know they are guilty? This is The Question that criminal defense lawyers are asked to respond to time and again, at cocktail parties, family gatherings, walking down the street - ironically, The Question comes to me most often from other attorneys who do not practice criminal defense. Over the years, I have heard many answers to The Question, all of which I agree with -

- I defend the Constitution not the person - the government/courts are slowly taking away our freedoms, rights, and protections; and if we do not fight to preserve them we will lose them forever ;

- I do not know that my clients are guilty - the point of the system we are fighting to preserve is that most of the time you cannot know for certain;

- Our Constitution mandates that a jury decide guilt, not me;

- It is better to allow 100 guilty persons to go free than for one innocent person to be sent to prison;

- If we provide the worst, most despicable and depraved persons with the best defense possible, then we truly know that you or I will also receive the best defense possible if we are (wrongfully) accused of a crime;

- Does a doctor refuse to treat his patient when that patient brought his illness upon himself (AIDS from unprotected sex, emphysema from smoking)?;

- Our criminal justice system only works when there is a determined and aggressive advocate on each side;

I have become a bit jaded when asked The Question, and lately my response has been: "Because I am an anarchist. I want to keep murderers and rapists and drug dealers on the street." That either shuts them up, or it is the beginning of a brand new non-sensical conversation which honestly is more interesting to me than the same old tired explanations of why criminal defense (defense of people who are accused of being criminals) is necessary.

In the comments to a post by Brian Tannebaum at Criminal Defense, an anonymous everyday man has provided a summary of the view of those who do not understand or appreciate what criminal defense lawyers do - we are basically evil persons who are performing an unsavory task because we make a fortune doing so (basically Anonymous believes my jaded response above is true):

But, really at the end of the day, if you perform brilliantly, and get someone who you know actually did commit some heinous act acquitted, does that make you feel good? Especially if your client had an innocent victim who will now not get justice through the legal system? Yes, your job as defense counsel IS needed, but there are a lot of unwholesome tasks that need to be done in our society. That they are needed doesn't make them good. But heck, if you can make a fortune at it, then rationalize away about government tyranny. Just remember that some of your clients have real tangible victims, with lives destroyed or damaged by the people you defend. Those victims are not "the government". Those victims are little children, raped women, or people who have died because of something your client did.

Disagree with me if you want, but in my experience (and at the risk of making a gross generalization that will offend some readers) most people with this sort of rigid view and disregard for Constitutional protections are, ironically, Republican and Christian. I find this frightening. I say "ironically," because what I understand to be the defining characteristics of Republican and Christian are, respectively, limiting the intrusion of government into our lives, and compassion for all human beings. Call me crazy.

So, what would Jesus do? Another response to The Question, how do you represent "those people," is found in a post at The Daily Dish:

When people find out what I do, the first thing they ask is, “What do you do if you know that your client is guilty?” Most of my clients are guilty. But they still deserve a defense. I don’t do this work just for the Constitution; although, I love that document like only a lawyer can. For me, being a public defender is a spiritual practice.

When people need my help, my answer is always, “Yes. I will help you.” It doesn’t matter who they are or what they are charged with. It doesn’t matter if they are guilty or innocent. It doesn’t matter if this is their first felony or their twentieth felony. I will help. Period.

I’m not a Christian in the traditional sense. But I consider this attitude of service to be in line with Christ, who loved and aided without regard for the past action of the sinners in front of Him. Most of the prosecutors in our town are Southern Baptist, or some variation on that. But if Jesus had lived today, and if He had been a lawyer, He would not be a district attorney, putting people into prison. Jesus would have been a Public Defender.

John Steele at Legal Ethics Forum points out that "in the Gospel of John one of the terms for the Holy Spirit is the "paraclete," which can be translated as advocate or counsel for the defense." Turning the view of Tannebaum's anonymous detractor on its head, according to Wikipedia, "Henry Lidell portrays the word paraclete as an antonym for diábolos, characterizing the former as a defender and the latter as an accuser."

The unfortunate stereotypical response of a prosecutor to The Question is also found in The Daily Dish post:

The perception is that defense lawyers lie, cheat, and generally game the system aiming to turn dangerous criminals loose on society. That has not been my experience over the last three decades. Most criminal defense conscientiously carry out the often unpleasant task of convincing a criminal defendant that he is hosed and needs to plead guilty. I cannot emphasize how important that task is to the proper functioning of the criminal justice system. To put it simply, the system would break down if someone did not make sure the government has dotted its “I’s” and crossed its “t’s” and then went to work on the client to make sure he is one of the over 90% of criminal defendants who plead guilty.

I don't disagree that this prosecutor's view of a defense lawyer's role is shared by many defense lawyers. Defense attorneys have told me (often in the context of a PCR action where they are accused of ineffective assistance) that their job is only to make sure that the defendant "gets a fair trial." A "fair trial" seems to consists of doing no more than is necessary and making sure there is a warm body sitting next to the defendant as his case is tried. A local defense lawyer once told me that his job is that of a broker - he is a go-between for the defendant and the prosecutor, and his job is to make the best deal possible. I have never seen that particular defense lawyer try a case.

So, there are two questions here - 1) The Question, which is really why do we represent "those people", and 2) a completely different question, which is how do we represent those people.

The answer to The Question, why do we represent "those people," is amply documented above. Either I am a greedy anarchist who does it for the love of money, or I fancy myself a Paraclete who holds compassion and love for humanity in the highest regard. Take your pick.

The answer to how we represent our clients should be quite simple - we do everything ethically within our power to win our client's case, always within the bounds of truth and justice, but without regard to the prosecutor's view of the "proper functioning of the criminal justice system."

Jurors and social media

Trial theory is up and running again

I love the concept of Trial Theory – but a few months ago, discouraged by lack of participation in trial theory as a group blog, I decided to shut it down. That was a mistake, and the site is back up and I intend to keep it up. I’ll keep southcarolinacriminaldefenseblog running as well, but trial theory needs its own place as a forum to discuss trial practice and life in general without the stigma of the appearance of a “marketing blog” type of format.

The site is still open to guest bloggers – if you have a topic you want to share that deals with trial practice, psychodrama, or life in general, create a wordpress.com account, shoot me an email or leave a comment, and I will add you as a guest blogger. I appreciate any participation and feedback – thanks to all who are reading.