South Carolina Criminal Defense Blog

In State v. Stahlnecker, decided March 1st, the S.C. Supreme Court upheld the conviction of Stahlnecker for first degree criminal sexual conduct (CSC) with a minor and lewd act on a minor.

Issue preservation at trial - the Court held that the victim's statements to an interviewer at the hospital under 17-23-175 of the S.C. Code did not violate the Ex Post Facto Clause, but that the defendant's remaining issues raised on appeal were not preserved. Although the defendant's attorney objected that the testimony violated his right to confrontation, he did not articulate as grounds for the objection 1) that it was impermissible hearsay; 2) that it was prejudicial because it conflicted with the victim's trial testimony; or 3) that the state failed to comply with section 17-23-175.

The defendant also objected to testimony from the mother regarding the victim's statements to her, but did not articulate that the victim's statement went beyond the time and place of the assault as provided in Rule 801(d)(1)(D), and so this argument was also waived on appeal. The Court does hold that the statement is admissible as an excited utterance, however.

The Court holds that statements made by the defendant to a guardian ad litem appointed by the family court are admissible, because 1) the guardian ad litem is not an agent of the state (because they are not an agent of the prosecution specifically; it does not make much sense to say that they are employed by DSS but that they are not an agent of the state); and 2) because the statements were made voluntarily anyway, after the guardian ad litem told the defendant not to talk about the sexual assault.

In State v. Brayboy, decided March 4, the S.C. Court of Appeals reversed Brayboy's murder conviction because the trial judge failed to charge the jury on involuntary manslaughter. Where there is any evidence of manslaughter presented at trial, the jury must be charged on the lesser included offense, and the evidence must be viewed in the light most favorable to the defendant:

Importantly, our courts have long emphasized that to warrant a court's eliminating the offense of manslaughter, it should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter. State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 513 (2000); State v. Burriss, 334 S.C. 256, 265, 513 S.E.2d 104, 109 (1999); Casey v. State, 305 S.C. 445, 447, 409 S.E.2d 391, 392 (1991). A request to charge a lesser included offense is properly refused only when there is no evidence that the defendant committed the lesser rather than the greater offense. Casey, 305 S.C. at 447, 409 S.E.2d at 392.

Involuntary manslaughter is (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.

In this case, there was evidence presented that Brayboy's girlfriend picked up a gun, that the two struggled over it, that Brayboy was waving it as they argued, and that it went off unintentionally. The Court holds that it does not matter if the defendant is acting in self-defense, but the question is whether the defendant is lawfully armed.

The Court says that, since the girlfriend picked up the weapon first, Brayboy was not "presenting" the weapon; distinguishing State v. Reese, 370 S.C. 31, 633 S.E.2d 898 (2006), where the defendant was the one who produced the gun. Since Brayboy was not "presenting" the gun, the jury could find that he was lawfully armed and the jury should have been charged with involuntary manslaughter.

In State v. Williams, decided February 8, the S.C. Supreme Court upheld Williams' death sentence following his convictions for murder, kidnapping, and possession of a firearm during the commission of a violent crime.

The Court held that 1) it was not error for the trial judge not to declare a mistrial where the jury sent out a note disclosing that they were split 9-3 for death (if the court had asked what the division was it may have been grounds to reverse); 2) it was not error for the trial judge not to declare a mistrial when the jury revealed that they were divided; 3) that the Allen charge given to the jury was not coercive; and 4) that it was not error for the trial judge not to declare a mistrial based on the testimony of the state's psychiatrist who testified to bolster the state's decision to seek the death penalty despite not being qualified as an expert (her testimony was as a lay witness).

Justice Pleicones' concurrence highlights the difficulties of preserving the record for appeal - although he agreed with the result, he would have found that at least one of the issues on appeal was not preserved. Regarding the objections to the psychiatrist's testimony, one of the defendant's lawyers asked for a curative instruction, and the defendant's second lawyer asked for a mistrial. The judge gave the curative instruction and denied the motion for mistrial; because the second lawyer did not object to the sufficiency of the curative instruction, Pleicones points out that the mistrial issue was not preserved for appeal.

In State v. Frazier, decided February 16, the S.C. Supreme Court upheld Frazier's convictions for murder, conspiracy, and armed robbery in Horry County. This was the second trial, the first conviction being overturned for failing to allow Frazier to call an expert in his case.

This case is an exercise in the minimum evidence required to allow a case to go to a jury, and Frazier appealed the denial of directed verdict at trial. The evidence presented was solely circumstantial - Frazier was having an affair with the victim's wife, Renee. The state's theory of the case was that Frazier and Renee planned to kill Renee's husband. Renee and her husband came to Myrtle Beach for vacation, Frazier lay in wait as Renee got her husband to take a moonlight stroll on the beach, Frazier came up and shot the husband, and Frazier and Renee tried to make it look like a robbery.

The evidence presented included that there was an affair between Frazier and Renee, that Frazier had tried to fight with the victim, that Frazier had borrowed his mechanic's car at the time the murder happened, and that the victim's valuables were found nearby which included his money. A couple that were on vacation later identified Frazier as someone they saw near the crime scene. There was no direct evidence that placed Frazier at the scene, but the circumstantial evidence that was presented was sufficient to allow the case to go to a jury.

In Kolle v. State, released February 16, the S.C. Supreme Court upheld a grant of post conviction relief, overturning a guilty plea to trafficking cocaine in a North Myrtle Beach case.

Kolle pled guilty on the advice of his attorney and was sentenced to seven years in prison, the minimum sentence for trafficking in cocaine 28 to 100 grams, first offense. His defense lawyer had been practicing for three years, but had never handled a felony case before. The lawyer advised Kolle to turn down a plea offer for five years until after the suppression hearing, telling him that the offer would still be available (it was not).

The lawyer relied on the documents that the solicitor's office had provided to the public defender who had the case before him, and did not obtain complete discovery before arguing the suppression motion. The officers in the case had responded to a loud music complaint, then entered the apartment without a warrant when no-one answered the door, claiming that there were exigent circumstances:

Because there were lights on in the apartment and no one answered his knocks, Officer Canfora "presumed that there may be something wrong inside the apartment . . . that somebody was in the residence, maybe injured or incapacitated."

At some point they went and got a search warrant, after they discovered cocaine in the apartment. During the suppression hearing, Kolle's defense lawyer failed to point out to the trial judge serious discrepancies in the testimony of the officers:

In recounting the suppression hearing, plea counsel conceded that he did not point out the discrepancies between the officers' testimony and the documentary evidence, which included the incident reports, the search warrant, and the police call logs. Specifically, PCR counsel established that plea counsel failed to question the officers regarding the following time discrepancies: the call/dispatch log indicated the loud music complaint was received at 12:43 a.m.; Officer Canfora arrived at the apartment at 12:48 a.m.; the search warrant appears to indicate it was issued at 12:01 a.m. and executed at 12:43 a.m. Plea counsel admitted that he did not have this documentary evidence in his file. He further acknowledged that he never requested the lab report or the chain of custody report regarding the cocaine that was seized pursuant to the search warrant

If the defense lawyer had investigated and prepared the case for trial, there was a substantial likelihood that the cocaine would have been suppressed. If the defense lawyer had presented all relevant evidence at the suppression hearing and suppression was denied, he still would have had to try the case to preserve the issue and appeal to the Court of Appeals.

Some lessons from this case - if you take over a case from the public defender's office, do not rely on the discovery in their file. Do not rely on the first discovery that is sent out in any case - there is almost always something that the prosecutor is not providing or that can be obtained from law enforcement's files.

Don't assume that a suppression hearing is a foregone conclusion - when you get into the details of a case you might be surprised. Law enforcement often cuts corners, and then tries to fix it later with testimony tailored for court. And, believe it or not, there are circuit court judges in South Carolina who care about the Constitution and who will not automatically rule in favor of the state.

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

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

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

History:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In In re Walter M., decided December 17th, the S.C. Court of Appeals affirmed a juvenile's conviction for the killing of another child in Georgetown County, finding that there was sufficient evidence to prove malice aforethought where the child "retrieved a deadly weapon from his brother's closet, walked to another room, opened a window, and pointed the gun," and there was testimony that it took "six pounds of pressure to fire the gun and the recoil on the specific firearm in question was 'negligible.'"

The Court states that "the family court could infer malice from a defendant's use of a deadly weapon," holding that the S.C. Supreme Court's recent decision in Belcher was not applicable. I don't see how Belcher is not applicable, and the Court of Appeals does not explain its reasoning other than a footnote which notes that they have read Belcher and do not think it is controlling. The Court in Belcher said that a jury instruction that malice may be inferred from the use of a deadly weapon is not proper "where evidence is presented that would reduce, mitigate, excuse or justify the homicide." According to the Court of Appeals in this case, the juvenile presented testimony that the shooting was accidental - so is the Court of Appeals saying that it believes the state's evidence over the juveniles, or is the Court of Appeals saying that it does not matter because the case was presented to a judge and not a jury (in South Carolina, children are denied the right to a trial by jury)?

The Court of Appeals also holds that the juvenile's argument that the State failed to prove beyond a reasonable doubt he killed Victim with malice aforethought was not preserved for appeal - noting that, although the Court of Appeals believes that juvenile cases should be exempt from strict rules of issue preservation, the S.C. Supreme Court has never addressed the issue and so the Court of Appeals declines to address it as well.

In State v. Herring, decided December 21st, the South Carolina Supreme Court affirmed Dewain Herring's convictions for murder and pointing and presenting a firearm. Herring was a practicing attorney in Columbia, South Carolina and was disbarred after his conviction in 2007, for shooting and killing the manager of a nightclub that he had been ejected from.

The Court held that it did not violate the Fourth Amendment for officers to peek into Herring's garage window - it was reasonable under the circumstances to check the garage window to ensure their safety, and no evidence was obtained as a result of looking in the garage window anyway. When no-one responded to knocks on the door, the officers obtained a search warrant and returned.

Regarding the search warrant, the Court held that 1) it was supported by probable cause where witnesses described the suspect, his clothes, his car, gave his license number, and the license number was that of a car that was registered to Herring's business; 2) the fact that the warrant contained a different officer's name at the top who did not actually appear in front of the magistrate was a scrivener's error and did not invalidate the warrant; and 3) a subsequent search warrant obtained by SLED over the telephone, by facsimile, and without appearing in person before the magistrate, even if it was invalid (the Court is not clear as to whether it is valid or not), was saved by the good faith exception, because the agents made "a good faith attempt to comply with the statute’s affidavit procedures."

Justices Kittredge and Pleicones wrote a concurrence to point out that there were no exigent circumstances to justify looking into Herring's garage two hours after the shooting, but noted that it did not matter anyway since no evidence resulted from the window-peeking.

In State v. Anderson, decided December 21st, the South Carolina Supreme Court held that authentication of a 10-print fingerprint card does not require the testimony of the person who actually took the fingerprint. Although trial counsel did not object on grounds of hearsay, the Court noted that the fingerprint card is admissible under the public records exception. The only question remaining is then whether the document was authenticated.

State v. Rich, 293 S.C. 172, 359 S.E.2d 281 (1987), requires evidence as to when and by whom the card was made and that the prints on the card were in fact those of this defendant. "The State in this case presented evidence regarding: when and where Anderson's fingerprints were taken; how they were submitted to SLED; the process implemented by law enforcement for taking the fingerprints; and how an accurate record of them was maintained in the AFIS." In addition to the testimony of the State's "fingerprint analysis expert," who testified that the prints on Anderon's card matched the prints that were lifted from the crime scene, the Lieutenant in charge of the crime information center at SLED and who oversees the AFIS (automated fingerprint identification system) also testified as to the procedure by which fingerprints are collected and stored. The Court held that this was sufficient to satisfy the authentication requirement under Rule 901 of the Rules of Evidence.

It seems to me that this issue falls squarely under Melendez-Diaz, where the U.S. Supreme Court held that it violates the Confrontation Clause to admit a chemist's affidavit in lieu of the chemist's live testimony to prove that a substance is in fact an illegal drug, and the S.C. Supreme Court's reasoning is the same as that which was rejected in Melendez-Diaz - that it would put too high of a burden on the State to produce the live witness who created the document:

To require this type of testimony would create an unrealistic standard and, at times, an insurmountable obstacle for the State. Given the thousands of fingerprints on file with SLED, it would be difficult to locate and procure testimony from the actual person. There may be instances where the person has changed jobs, has relocated out of state, or may be deceased. If the actual person is unavailable for any of these reasons, then the State could never definitively establish the authenticity of a suspect's fingerprint card.

The U.S. Supreme Court rejected this argument in Melendez-Diaz, and held that we cannot disregard the Constitution because it is inconvenient:

Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the “‘necessities of trial and the adversary process.’” Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.

Requiring the live testimony of the creator of a fingerprint card would not be as burdensome as the Court believes, it would merely create more work for law enforcement and the prosecution. Suppose that law enforcement gets a hit from AFIS from a latent print taken at a crime scene - even if they could not produce the technician or officer who took the original card, this would give them their lead to investigate and obtain further evidence, and wouldn't it provide enough evidence to warrant obtaining a new fingerprint card that could be authenticated at trial? This would avoid the possibility that an old fingerprint card was mis-filed, wrongly numbered, tampered with, or damaged, which is the reason that we require the testimony of the person who created the document.

In Dervin v. S.C., decided December 21st, the South Carolina Supreme Court held that the trial court can only sentence a person based on the amount of drugs that is specifically determined by the jury. In this case, although Dervin was indicted for trafficking cocaine 200 - 400g, the judge told the jury that it could convict her if they believed that she possessed 10 or more grams of cocaine. Because there was no specific finding by the jury as to whether she possessed 10 grams or 400 grams, the judge's sentence of the 25 year mandatory minimum for trafficking > 200 grams violated Apprendi - the jury did not find beyond a reasonable doubt that Dervin possessed anything more than 10 grams of cocaine.

Because Dervin's counsel at trial failed to object to the 25 year sentence, the Court granted her PCR petition and remanded her case for resentencing under the statute for trafficking 10 - 28g, which carries 3-10 years for a first offense.

In Porter v. McCollum, decided November 30, the U.S. Supreme held that it is ineffective assistance of counsel not to investigate and present mitigating evidence regarding a veteran of the Korean War's military service.

Porter was wounded and decorated for his service in the Korean War, where he fought in two major engagements. As a result of his service and the horrors inflicted in those battles, he suffered severe trauma which included post-traumatic stress disorder and brain damage which could result in impulsive, violent behavior. In 1988 he was sentenced to death for the murders of his former girlfriend and her new boyfriend.

At trial, Porter represented himself, but standby counsel was appointed in case he did change his mind. Porter ended up stopping the trial and pled guilty before the end of the state's case, and then changed his mind and requested that standby counsel represent him for the sentencing proceeding. His lawyer then presented no evidence of Porter's mental conditions, abuse he had suffered as a child, or his military record - the jury, who doubtless did not know anything of this man except that he had killed two people, then recommended that he be sentenced to death.

This case is important for several reasons. One, it reaffirms that a trial lawyer has to investigate his client's case and that the Constitution requires more than an attorney to stand next to the person, especially in a death penalty trial.

Second, it shows the importance of standby counsel to take their role as counsel seriously. I can imagine that the attorney in this trial did not expect that he would play any major role, as Porter was representing himself - but then the unthinkable happened for this lawyer who was sitting there in the courtroom, knowing that he was not prepared, hoping that he would not be needed - Porter asked for his help. And the lawyer was utterly and completely unprepared to give it to him. It is not often that standby counsel is needed, but it does happen and when it does this opinion makes it clear that you must be prepared.

More importantly, this opinion reflects the growing recognition of the effects that war can have on our troops and the Court does not brush it under the rug like so many have done. The stress of military service, particularly for those who have been in combat, watched their friends die around them, taken lives, and looked death in the face themselves, changes a person. There are still people who give everything for their country and when they return they are marginalized and treated as criminals because they develop drinking or drug problems to cope with their trauma or because they are unable to get the help that they need.

The Court is absolutely right, knowledge of Porter's background, his childhood, his military service, his mental illness and addictions, the relationships that led to the fateful night in question - in short, his story, would have made the difference between life and death.

Prelude to Montejo
Montejo Part I

Montejo v. Louisiana, decided in May of this year, overruled Michigan v. Jackson, which said that police could not initiate an interrogation of a defendant once the Sixth Amendment right to counsel had attached. Per Montejo, police can now seek a waiver of rights and interrogate a defendant even after they are represented by counsel.

Why is Jackson no longer needed?

Edwards and Minnick held that once a defendant requests an attorney during custodial interrogation the police must cease questioning and must not re-initiate questioning without an attorney present. The purpose of these cases was to "prevent police from badgering defendants into changing their minds about their rights," the effect of which might be to "coerce a waiver, which would render the subsequent interrogation a violation of the [Fifth or] Sixth Amendment." The Court concludes that the trilogy of Miranda, Edwards, and Minnick are more than sufficient to protect defendants' Fifth and Sixth Amendment rights.

The police will not badger defendants into waiving their rights, because all a defendant need do is tell the police he does not want to speak without an attorney present, and the police will stop the interview.

Montejo shows a world-view that is in opposition to that of the Miranda/Edwards/Minnick/Jackson Courts

The Miranda decision and those that followed it recognized that coerced confessions were a reality and that physical beatings had given way to coercive psychological interrogation tactics such as the Reid Technique which is still used today.

In Michigan v. Jackson, the Court made the proud statement that "doubts must be resolved in favor of protecting the constitutional claim. . . . Waivers are presumed "involuntary based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily in subsequent interactions with police."

The Montejo Court balances the Constitution against the needs of law enforcement, and finds that the importance of the Sixth Amendment right to counsel protected by Jackson is minimal compared to “society’s compelling interest in finding, convicting, and punishing those who violate the law.”

The Montejo Court states that in determining whether a Sixth Amendment waiver was knowing and voluntary, "there is no reason categorically to distinguish an unrepresented defendant from a represented one." I can think of a reason - because that defendant has sought the protection of the Sixth Amendment. Because, as the Court stated in Jackson, "The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."

The Court has shifted from one that had, for a time, placed the utmost importance upon the ideals of our founding fathers in protecting us from an oppressive government to a Court that, at least in the context of police interrogation, is willing to look the other way while those same ideals are violated by the same government.

Montejo shows a world-view that is sheltered and out of touch with reality

Reading the majority opinion in Montejo, the impression one is left with is that the authors have never practiced criminal law of any kind, have never been involved in a criminal investigation, and have never had a real police encounter.

The Court states that Miranda and Edwards are sufficient to protect defendants' Sixth Amendment right to counsel as well as their Fifth Amendment right against self-incrimination during custodial interrogations, because all a defendant needs to do is request an attorney and the police will immediately stop the interview.

Because police in this day and age are considerably more professional than they were in the days of Michigan v. Jackson, they will stop questioning a defendant. Because the Court said to. Except that is not always how it works - it never has been and I doubt that it ever will be. In order to obtain a waiver of Miranda, police can and do lie to their suspect. Many officers/investigators do things right, are conscientious, and respect the rules. Some record interviews from the moment they step into the room. Others don't. The statement that is heard in court is not often from the beginning of the interrogation. Often, before a waiver is given, the police must persuade the person to waive their rights - for example:

Cop: We want to speak to you, you don't mind do you?
D: I want my attorney to be here.
Cop: Why do you need an attorney if you have nothing to hide?
D: Well, he told me not to talk to the police.
Cop: It's only going to help your case if you talk to us. Your buddy is next door as we speak and he is blaming all of this on you. We know he's the bad guy, you only played a bit part in this, you aren't going to take the fall for this are you?
D: He's lying, I didn't do anything!
Cop: Well, listen, I need you to sign this form before we can talk anymore, I'll go over each line with you and you need to initial it here, here, here. It's just a formality.

The officer obtains a signed waiver of rights, then begins the interrogation anew. Once the officer gets a version of events that he feels will help to convict, the audio or video is turned on and the finished product is recorded for posterity.

The Montejo Court makes short thrift of the absence of any protections outside of the context of custodial interrogations - "noninterrogative interactions with the State do not involve the inherently compelling pressures that one might reasonably fear could lead to involuntary waivers." Non-custodial interrogations are "the least likely to pose a risk of coerced waivers. When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering."

Lets review: When a defendant encounters the police in the real world, he is in control. He need only shut his door or walk away.

Effects of Montejo

- The police will now get at least one free shot at interrogating any defendant, regardless of the defendant's prior requests for counsel in court.

- There will be a marked increase in swearing contests between officer and defendant in pretrial motions to suppress (Defendant: I asked for a lawyer; Cop: No he didn't), which will almost always result in admission of the statement because the defendant has no way to prove what was said. Officers/investigators have the option of bringing a tape recorder or video recorder to an interview, but defendants do not. When there is a recording, the defendant does not operate it.

- We can expect some prosecutors to send investigators to question defendants without their attorney's knowledge, in preparation for trial. Note that Rule 4.2 of the ethics rules that govern attorneys prohibit any contact with a person who is represented by counsel, which also extends to contact through a third party such as an investigator or police officer:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

- When police begin to question defendants outside the presence of their attorneys, it will result in less confidence in the justice system and the reliability of convictions - false confessions have proven to be among the leading causes of wrongful convictions.

How do defense lawyers protect clients from interrogations after Montejo? We can instruct our clients not to speak to investigators about their case, and to only respond with "I want my lawyer," until the questions cease. Some clients, however, are susceptible to any perceived pressure from law enforcement (ironically, the same clients that may be most likely to falsely confess to something they did not do), and some police, despite what the Montejo Court may think, are quite persistent.

A member of our state criminal list-serve suggested that we file and serve notices declaring that our clients have not and will not waive their rights. The Court in Montejo notes, however, that Miranda rights cannot be asserted "anticipatorily":

We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’. . . .” McNeil, supra, at 182, n. 3. What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation—not what happened at any preliminary hearing.

If a defendant is not protected under the Sixth Amendment by asserting his rights in open court, I don't see how he will be protected by asserting his rights in a document either.

The only other suggestion that I have at the moment is, when a statement obtained through post-arraignment (initial bond hearing) interrogation is sought to be introduced at trial, preserve an objection based on the State Constitution's right to counsel as well as the Federal Constitution. Increasingly, state courts are stepping in to protect the rights of their citizens when the federal courts will not, and perhaps the South Carolina Supreme Court will take up the challenge.

Every criminal defense lawyer needs to read this opinion and consider what it means to our clients and to the ever-diminishing protections we are given by the Constitution. In a nutshell, Montejo overruled Michigan v. Jackson, which said that police could not initiate an interrogation of a defendant once the Sixth Amendment right to counsel had attached. Per Montejo, police can now seek a waiver of rights and interrogate a defendant even after they are represented by counsel. Some background, first:

The Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

MIranda v. Arizona:
The Miranda decision was based on the Fifth Amendment right against self-incrimination, and held that before questioning a suspect, the police must tell that person what their rights are, including that they have a right to an attorney:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the [p445] process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

In Miranda the Court recognized the need to protect accused persons against coercive interrogations, and recognized that coercion does not necessarily involve physical violence - the Court discussed in detail the psychological interrogation techniques that were, and still are, used by police to obtain confessions from a person. The Miranda rule applies only when a person is in custody.

Edwards v. Arizona:
Edwards reaffirmed that questioning must cease when a person asserts their right to counsel, and that the police cannot come back later and re-initiate questioning unless the person's attorney is present.

Minnick v. Mississippi:
Minnick further clarified Miranda and Edwards, holding that once a person has requested counsel and spoken to counsel the police cannot then come back and re-initiate questioning without the attorney being present.

Michigan v. Jackson:
The rules of Miranda, Edwards, and Minnick were based on the Fifth Amendment right against self-incrimination, and applied only to custodial interrogation. Jackson extended the Edwards rule to post-arraignment interrogation, and held that once an accused person has requested an attorney at his arraignment the police cannot then initiate contact with the defendant and seek a waiver of his rights - it should make no difference whether a person is speaking to police or to a judge when he asks for the assistance of counsel.

Jackson held that interrogation by government agents is a critical stage of the proceedings where a defendant is entitled to the assistance of counsel under the Sixth Amendment, and recognized that police interrogation is often a coercive and one-sided endeavor. The language of the opinion makes clear the importance that the Jackson Court placed on the protections of the Sixth Amendment:

"[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings 'is far from a mere formalism.' Kirby v. Illinois, 406 U.S. at 406 U. S. 689. It is only at that time that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." 467 U.S. at 467 U. S. 189.

As a result, the "Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a 'medium' between him and the State. . . ."

. . . "Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking, he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."

"The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."

In a murder trial the jury is usually instructed that they can infer malice from the use of a deadly weapon - however, in State v. Belcher, decided October 12th, the South Carolina Supreme Court broke with precedent and held that this is no longer permissible "where evidence is presented that would reduce, mitigate, excuse or justify the homicide."

It has long been the practice for trial courts in South Carolina, as sanctioned by this Court, to charge juries in any murder prosecution that the jury may infer malice from the use of a deadly weapon. We granted Belcher’s petition to argue against this precedent. Having carefully scrutinized the historical antecedents to this permissive inference, we hold today that a jury charge instructing that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse or justify the homicide. We therefore reverse Belcher’s convictions and remand for a new trial.

This has been a long time coming, and congratulations go to the trial attorney who had the foresight to argue this at the trial level, knowing that the law was not on his side, and preserve the record for appeal, and to the appellate attorney who presented the issue to the Supreme Court, arguing in the face of long-standing precedent.

The prosecution must prove malice aforethought to obtain a murder conviction - malice can mean intent to kill, intent to inflict grievous bodily harm, reckless indifference to the value of human life, or intent to commit a felony. If malice is not proven, it can make the difference between a guilty or not guilty verdict, or a conviction on the lesser included offense of manslaughter.

The problem with instructing the jury that malice can be inferred from the use of a deadly weapon, when there is evidence that would reduce, mitigate, or excuse the homicide, is that it is inconsistent and confusing. Malice includes the absence of justification, excuse and mitigation. The absence of justification, excuse, or mitigation cannot be inferred solely from the use of a deadly weapon.

For example, let's say I shoot and kill a person in self defense. I am in my home, they break in, they see me, they point a shiny pistol at my head, and I draw and shoot. If I am prosecuted for murder, under the law prior to Belcher the jury would be instructed that they can infer malice sufficient to convict me of murder solely from the fact that I used a gun. I killed a person, using a deadly weapon, however that fact alone is not enough for a jury to infer malice.

According to the South Carolina Supreme Court in State v. Odems, it is. Odems was convicted of 1st degree burglary, grand larceny, malicious injury to an electric utility system, and criminal conspiracy, based on his presence in a car with the persons who committed the burglary and the fact that he tried to hide from police with them.

Both the law governing directed verdicts and our standard of review compel this court to consider only whether the State presented sufficient evidence from which a jury could fairly and logically deduce Odems' guilt. South Carolina jurisprudence makes clear flight is at least some evidence of guilt. Combined with Odems' presence in the car with the stolen goods and admitted burglars, Odems' flight was sufficient to constitute substantial circumstantial evidence of all four offenses. Therefore, the trial court did not err in finding the State presented sufficient evidence to send the case to the jury

.

In South Carolina, evidence of flight is admissible as evidence of guilt, but is it enough standing alone to convict a person? Apparently, the uncontradicted testimony at trial was that Odems asked for a ride at a gas station after the co-defendants committed the robbery. The two co-defendants pled guilty to the crime. The fingerprints taken from the stolen items matched only the co-defendants and not Odems. There were no statements implicating Odems in the burglary.

Although the Court of Appeals cites Odems' presence in the car as additional evidence of guilt, it is not and it could not be. It is well-settled law that mere presence is not evidence of guilt and should not be considered by a jury - it is a standard jury instruction that judges read to the jury at the end of a trial. Which means that the Court of Appeals' holding in this case is that evidence of flight alone is sufficient to go to a jury.

According to the Court of Appeals' reasoning in this case, If I see police and run - which is not in violation of any law in South Carolina by the way - I can then be convicted for whatever crime happens to have occurred nearby or whatever crime that the police happen to be investigating at that moment.

ln Bryant v. State, the S.C. Supreme Court held that three armed robberies committed within a 54 hour period are not "so closely connected in point of time that they may be considered as one offense" for purposes of the life without parole (LWOP) statutes (17-25-45 and 17-25-50). I think that the Court's reading of the statutes is correct.

Crimes that are classified as "serious" come under the "three strikes" law - 3 convictions and you get LWOP. Crimes that are classified as "most serious" come under the "two strikes" law - 2 convictions and you get LWOP.

The original 17-25-45 made sense - it said that a "serious" or "most serious" crime that occurred after a person had previously been sentenced for a "serious" or "most serious" crime would count as their second or third strike. The current version of 17-25-45 requires only that a person be convicted of a "serious" or "most serious" crime before the current conviction/sentence. This creates one way to avoid a LWOP sentence - if you have multiple charges pending, and you plead to them at the same time, they are not considered multiple offenses for purposes of LWOP. But, iIf you plead guilty to one "serious" offense, and then plead guilty a week later to a second "serious" offense, you get LWOP.

17-25-50 provides another way to avoid LWOP, and says that "the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses."

Although Bryant was on a crime spree that seems like it should be considered one event, the armed robberies happened on different days - the SCSCt felt that this did not qualify under 17-25-50. The real problem in Bryant's case is his attorneys. He was charged in three different counties and probably had three different attorneys at the trial level, although I do not know who represented him.

Bryant pled guilty in July, 1997 to the Colleton and Jasper armed robberies and was sentenced to 10 years. If these were the only two armed robberies, they would count as a single conviction under 17-25-45 and not trigger the LWOP statute, because he pled to both at the same time. It was possible to plead to both at the same time because, although they occurred in two separate counties, Colleton and Jasper Counties are both in one judicial circuit, the 14th. But there was the third armed robbery also pending in Orangeburg - in December, 1997 Bryant pled guilty to the third robbery in Orangeburg County, which made him eligible for LWOP (armed robbery is a "most serious" offense and comes under the "two strikes" law), and his attorney did not question the LWOP sentence as he stood next to Bryant in the courtroom.

Why the hell would an attorney plead someone to life in prison without parole in a non-death penalty case? What are they going to do if he goes to trial and loses, sentence him to life and then a little bit more? There was nothing to lose by trying this case, and everything to gain no matter how slim the chance of victory - my opinion is that the attorney who would plead his client to LWOP needs to be in a different profession or at least practicing a different type of law.

The second problem which may not be as obvious is the lack of coordination between the circuits. I would not fault the first attorney who pled two counts of armed robbery to the minimum sentence of 10 years, assuming that the state had a strong case, but ideally all three cases should have been coordinated. The prosecutor must file a notice of intent to seek LWOP, and a non-LWOP sentence potentially could have been negotiated in Orangeburg in consideration of the first plea. My question - did the defense attorney in either location attempt to contact the other defense attorney or prosecutor?

Bryant probably gives a correct reading of the LWOP statutes, but more importantly I think that it gives an excellent example of bad lawyering and how it can cost someone their life.

In State v. Edwards, the South Carolina Supreme Court reversed the defendants' murder convictions because the trial judge improperly granted the state's reverse Batson motion.

The basic principle of Batson v. Kentucky is that jurors cannot be struck on the basis of race or gender. In criminal trials, some prosecutors will strike every black person who is called if they are allowed to, because 1) the defendant is often a black person; and 2) in general black jurors are considered less friendly to the government. In not-so-far-distant less politically correct times, prosecutors in some areas of the country were openly trained to strike black persons from the jury. So - if it appears that a prosecutor is striking black jurors on the basis of race alone, the defense attorney can challenge those strikes by bringing a Batson motion before the jury is sworn.

Once the jurors are challenged, the burden is on the prosecutor to give a race-neutral reason for striking the juror. Once a race-neutral reason is provided, the burden shifts to the defense to demonstrate that the race-neutral reason is in fact a pretext for striking that juror - for example, the prosecutor's given reason for striking juror 20 is that juror 20 was a schoolteacher, and the prosecutor feels that schoolteachers may have a particular bias against the state in this particular type of case, but the prosecutor seated juror 112 who was also a schoolteacher - this would be evidence that the prosecutor's reason for striking juror 20 was a pretext.

The courts have been fairly lax about what they will allow as a race-neutral reason. In one recent trial, the prosecutor stated that he struck a female black juror because she flipped her hair and looked at him funny. The judge in that trial accepted that was a race neutral reason and allowed the jury panel to stand.

Because Batson is designed to protect the jurors as much as it is to protect the litigants, the prosecution can bring a Batson motion as well. In Edwards, the prosecutor challenged two jurors that the defense struck, and the racially neutral reason given by the defense was that one was a reporter who may have had information on the case and the other was a DMV employee who may work with law enforcement from time to time. The trial judge ruled that these reasons were a pretext (note: this is a pretext, but flipping your hair is not) and quashed the jury (they started over). The trial judge did not require the prosecution to prove pretext.

Pretty much the Supreme Court's holding in this case is: Yes, the prosecutor has to follow the rules also. At least when it is this obvious - employment should always be a race-neutral reason for a strike, absent a showing by the other party of pretext.

I would have thought that the error of this was self evident, but apparently many states, including Massachusetts, have held that it was not a violation of the Confrontation Clause to allow affidavits of chemists in lieu of live testimony at trial, to prove that a substance is an illegal drug. The Sixth Amendment's Confrontation Clause gives us the right to confront the witnesses against us, in the form of a meaningful cross-examination, and Crawford v. Washington, in 2004, expressly ruled that hearsay in the form of testimonial statements, such as affidavits, does not satisfy the Constitution.

In Melendez-Diaz, released today by the United States Supreme Court, the Court held that affidavits of chemists as to weight and analysis of a drug, admitted in court without the live testimony of the analyst, violate the Sixth Amendment as well:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51–52 (internal quotation marks and citations omitted). . . .

In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “‘be confronted with’” the analysts at trial. Crawford, supra, at 54.

The Court rejected the State's argument that the analysts are not "conventional" witnesses and that their statements (the affidavits) were not provided in response to interrogation, holding that it does not matter whether the witness makes their out-of-court statement in response to interrogation or whether the witness volunteers their testimony - the witness who volunteers his testimony is no less a witness against the defendant than a witness who is responding to interrogation.

The Court also rejected the argument that chemists' affidavits should be admitted because they were more reliable than other types of hearsay, pointing out that this was the very rule in Ohio v. Roberts (that evidence with particularized guarantees of trustworthiness was admissible notwithstanding the Confrontation Clause), which was overturned in Crawford:

[The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross examination. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” 541 U. S., at 61–62.

One thing that may make Melendez-Diaz a landmark case in coming years is that the Court expressly recognizes the growing acknowledgment of the unreliability of much of the scientific testing that has been accepted in the courts until this point, a fact that other courts across the country have begun to recognize in recent years. And the Court goes even further, to recognize the fact that analysts who work for law enforcement can and do manufacture evidence at times:

Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency. . . .”

. . . And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at S–17. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.

Another argument rejected by the Court was that if the Court did not allow the use of chemist affidavits, the system would be overwhelmed - to expect prosecutors to bring chemists to testify in every case where a defendant demanded live testimony would burden the system to the breaking point:

Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the “‘necessities of trial and the adversary process.’” Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.

If only the Court held the rest of the Constitution, like the Fourth Amendment, in such high regard. But - I am not complaining. To me this decision seemed like it should have been obvious, yet we were all holding our breath to see what our high court did with it. I am impressed.

The United States Supreme Court released two criminal law opinions today. The first, (from the syllabus) Osbourne, holds that there is no due process right to access DNA for testing post-conviction. The Court does not answer the question of whether there is a federal right to be released upon proof of actual innocence, and says that even if there were such a right the denial of access to DNA evidence would not be a violation of fundamental fairness - it is more appropriate for the individual states' legislatures to define the parameters of access to DNA (even if they don't provide access).

Yeager v. U.S. revisits Ashe v. Swenson, re-affirming that issue-preclusion will prevent the government from re-litigating any issue that was necessarily decided by a jury's acquittal in a prior trial. Yeager was acquitted of charges of securities and wire fraud related to the Enron fiasco, but the jury could not reach a verdict on charges of insider trading and money laundering. Relying on the lower court's finding that the acquittal did involve a finding that Yeager did not have inside information which was an element of the acquitted charge as well as the remaining charges, the Court held that the government is precluded from re-trying the remaining counts - an "apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts [does not affect] the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment."

In State v. Lawton, the S.C. Court of Appeals reversed the defendant's conviction because, wait for it . . . the prosecutor withheld Rule 5 material. (**cheers loudly**) The prosecutor used a surprise letter written from the defendant to his wife to impeach him when he testified - the state argued, and the trial judge agreed, that it was not relevant but was a "collateral matter having to do with the credibility of the witness," and therefore the state was not required to disclose it under Rule 5.

Under Rule 5, the prosecution must disclose 1) any relevant written or recorded statements of the defendant; and 2) any oral statements the prosecution intends to offer into evidence made by the defendant in response to questioning. The Court of Appeals held that the letter was a relevant written statement, and that Lawton suffered prejudice from the non-disclosure as it would have impacted his decision as to whether to take the stand:

The circuit court stated that the letter involved the credibility of Lawton, which was merely a collateral issue in the case and therefore not relevant within the meaning of Subsection (a)(1)(A) of Rule 5. While the court was correct that the letter impacted on Lawton's credibility, we disagree that it was not “relevant.” According to Webster's Dictionary, the meaning of “relevant” is “having a significant and demonstrable bearing on the matter at hand."[6] The circuit court utilized the following definition of relevance contained in Rule 401: “evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, SCRE. Under either definition, we believe the letter in question was clearly relevant and should have been provided by the State in response to Lawton's Rule 5 request.

Moreover, Lawton was prejudiced by the State's failure to turn over the letter before trial. Disclosure of the letter was clearly material to the preparation of Lawton's defense because it likely would have affected his decision to testify, a fundamental right. See Seabrook Island Prop. Owners' Ass'n v. Berger, 365 S.C. 234, 243, 616 S.E.2d 431, 436 (Ct. App. 2005) (stating the right to testify in criminal proceeding is essential to due process, and is a fundamental right). There is a reasonable probability Lawton would not have testified had he known the State possessed such strong impeachment evidence. The State's strategy in failing to disclose the letter and instead surprising Lawton with it during cross-examination clearly prejudiced Lawton.

In State v. Mitchell, the S.C. Supreme Court affirmed the conviction of the defendant for armed robbery based on the "continuous offense theory":

This theory “provides that [a robbery] has occurred ‘not only if the perpetrator uses force or intimidation to take possession of the property, but also if force or intimidation is used to retain possession immediately after the taking, or to carry away the property, or to facilitate escape.”[2] Id. (quoting State v. Meyers, 620 So.2d 1160, 1163 (La. 1993)). As articulated by the court of appeals, the theory supports the proposition that “a ‘taking’ is not complete – that is to say, has not come to an end – until the perpetrator has neutralized any immediate interference with his or her possession.” Id. at 480, 649 S.E.2d at 90.

Basically, Mitchell stole some chewing tobacco and was accosted by a store employee at the exit where Mitchell then threatened the employee with a pocket knife. Mitchell's argument was that, because he had already completed the larceny of the chewing tobacco, he should have been charged with assault with intent to kill for brandishing the knife (which carries 20 years), instead of armed robbery (for which he received 20 years).

Catching up on some light reading from the last couple of months of S.C. opinions: In State v. Woods, the defendant was charged with first degree burglary, first degree criminal sexual conduct (rape) and murder of a school teacher. When the case came to trial, the prosecutor agreed that pre-trial publicity and the fact that the victim was well known in the community would prevent a fair trial, and consented to a change of venue - they drew a jury from Marion County instead of Clarendon County, and transported them to Manning, S.C. for the trial, which resulted in a hung jury.

When the case was retried, the prosecutor decided a change of venue was no longer necessary, the trial judge denied the defense's motion for change of venue, and the defendant was convicted on all counts and sentenced to death.

The general rule is that where a case results in a mistrial the slate is wiped clean and the first trial is a nullity. The Court did not address the question of how there was grounds for a change of venue the first time and not the second - if the first trial is a "nullity," that doesn't change the composition of the potential jury pool in a small town in rural South Carolina. But, the bottom line is that the prosecutor consented the first time. There is no way to determine whether the change of venue would have been granted otherwise, and it is extremely rare for a trial judge to grant one.

Yesterday, the New York Court of Appeals (equivalent to most states' supreme courts) released People v. Weaver, which held that police cannot place a GPS tracking device on a car without first obtaining a warrant. They based their decision on the N.Y. Constitution's right to privacy, noting that there is no settled law in the federal courts on this issue. (see also Fourth Amendment.com and Simple Justice)

Ordinarily, I don't spend time reading opinions from other states' courts, but this case is very well written (prescient, according to John Wesley Hall) and it tackles an important issue that will appear with more frequency across the country. Greenfield says that every N.Y. criminal defense lawyer should read it - I think that every defense attorney and anyone concerned with privacy rights should read the opinion.

Police placed a GPS tracking device on Weaver's van and monitored his movements for 65 days, without first obtaining a warrant and without providing a reason for the observation to the court. The GPS data was later introduced at Weaver's trial for burglary to show that his van was at the scene of the crime and Weaver was convicted. In holding that this evidence should have been excluded, the N.Y. Court of Appeals gives a brief history of privacy rights and the Fourth Amendment, under the federal and state constitutions:

The Fourth Amendment, read literally, protects property and for a long time was read to do no more. In Olmstead v United States, 277 US 438 (1928), the Supreme Court, adhering to the notion that a Fourth Amendment infringement was essentially one affecting property,* refused to find that a telephone wiretap was a search within the amendment’s meaning because the wiretap involved no trespass into the houses or offices of the defendants.

Later, in Katz v United States, 389 US 347, 357 (1967), the Supreme Court overruled Olmstead, finding that a wiretap on a telephone booth was an unreasonable invasion of the speaker's privacy and was a "search and seizure" that was covered by the Fourth Amendment. The controlling test is not whether there is a physical trespass, it is whether the defendant had a reasonable expectation of privacy that was infringed upon.

Then, in U.S. v Knotts, 460 US 276 (1983), the Supreme Court held that there was no reasonable expectation of privacy in the movements of an automobile on the public highways (in Knotts, the police used a "beeper" to assist in following the defendant's vehicle from one location to another). The N.Y. Court of Appeals in Weaver correctly points out that technology has advanced to the point where the Supreme Court's analysis in Knotts can no longer be applied:

Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period.

That such a surrogate technological deployment is not -- particularly when placed at the unsupervised discretion of agents of the state "engaged in the often competitive enterprise of ferreting out crime" (Johnson v United States, 333 US 10, 14 [1948]) -- compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need
only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons -- to mention just a few of the highly feasible empirical configurations.

The use of increasingly technologically advanced surveillance technology by law enforcement without judicial oversight is an issue that should concern everyone. The cliche response is "if you aren't doing anything wrong, what are you worried about?", and I think that the N.Y. Court of Appeals answered that question concisely in their opinion. Do you really want police, or anyone for that matter, monitoring your every movement via satellite, recording you on video, or sitting outside your home listening to your private conversations with audio enhancement devices?

I would hope that our federal courts would apply the Fourth Amendment in the same manner as the New York court did here, but if they don't the States can and often do interpret their own constitutions as providing greater protection than the federal constitution. Washington and Oregon have also held that warrantless use of similar tracking devices is in violation of their state constitutions.

New York's constitutional provision that the Court decided this case under, although it addresses "unreasonable interception of telephone and telegraph communications," does not have an express right to privacy written into it:

§12. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

South Carolina's Constitution does, however, and our Supreme Court has held that it does provide greater protection to our residents than the federal constitution:

SECTION 10. Searches and seizures; invasions of privacy.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained. (1970 (56) 2684; 1971 (57) 315.)

As Justice Brandeis stated in his dissent in Olmstead:

[The Founders] conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Justice Souter has announced plans to leave the Supreme Court at the end of the current term, leaving the first vacancy that President Obama will fill. Souter is considered one of the more liberal judges on the bench, and if Obama fills the spot with a liberal pick it likely will not move the Court's decisions to the left but it would rather maintain the status quo.

In Cone v. Bell, released yesterday, the U.S. Supreme Court reversed a death sentence based on Brady violations by the prosecutor. Cone asserted an insanity defense at trial, with testimony that he suffered from post-traumatic stress disorder resulting from his service in Vietnam and amphetamine-induced psychosis resulting from extended and heavy use of drugs. The prosecutor argued that Cone knew the difference between right and wrong, introduced testimony that Cone was not a drug user, and called Cone's defense "baloney." Years later, Cone's attorneys discovered that the prosecutor's file contained numerous undisclosed documents that contradicted the prosecutor's statements and witnesses:

Among the undisclosed documents Cone discovered were statements from witnesses who had seen him several daysbefore and several days after the murders. The witnesses described Cone’s appearance as “wild eyed,” App. 50, and his behavior as “real weird,” id., at 49. One witness affirmed that Cone had appeared “to be drunk or high.” Ibid. The file also contained a police report describingCone’s arrest in Florida following the murders. In that report, a police officer described Cone looking around “in afrenzied manner,” and “walking in [an] agitated manner” prior to his apprehension. Id., at 53. Multiple police bulletins describing Cone as a “drug user” and a “heavy drug user” were also among the undisclosed evidence. See id., at 55–59.

The documents included impeachment evidence from which the jury could have concluded that two of the state's witnesses, a woman who had lived with Cone who testified that he was not a drug user, and an officer who testified that Cone was not a drug user, were lying on the stand.

What the Court did: The Court begins the opinion with strong language about due process and the duties of a prosecutor to seek justice and not convictions:

The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure “that ‘justice shall be done’” in all criminal prosecutions. United States v. Agurs, 427 U. S. 97, 111 (1976) (quoting Berger v. United States, 295 U. S. 78, 88 (1935)). In Brady v. Mary-land, 373 U. S. 83 (1963), we held that when a State sup-presses evidence favorable to an accused that is material to guilt or to punishment, the State violates the defendant’s right to due process, “irrespective of the good faith or bad faith of the prosecution.” Id., at 87.

The Court holds that Cone's claim is not procedurally barred. A federal habeas claim is barred if the state courts were not first given the opportunity to consider the federal claim. In this case, the state courts twice considered Cone's claims and, for various reasons some of which were not supported by the record, ruled against him. Therefore his claims were not barred and the state had ample opportunity to decide his claims.

The Court then holds that the withheld evidence is material to the question of punishment, but not of guilt. Despite the fact that Cone's defense was insanity based on mental illness induced by his excessive drug use, the Court holds that the evidence of guilt was overwhelming and the withheld evidence would not have made a difference. But, the Court holds that it might have made a difference as to whether Cone was given the death penalty, and therefore the case is remanded to the district court to consider the merits of the Brady violation claim (which is not procedurally barred, which was the district court's reasoning for refusing to hear the claim).

What the Court did not do: Despite it's bold opening paragraph, the opinion's tone sounded like the prosecutor's ethical violations were no big deal. This is just another legal issue that we must analyze to determine if there is prejudice to the defendant or not (I disagree with the Court's analysis as to prejudice, as the evidence of excessive drug use is very relevant to his defense of drug-induced psychosis).

It would be nice to hear the Court say, this case is riddled with unethical conduct by state's attorneys, and the extent of that misconduct and the resulting denial of due process demands reversal of this conviction. We will no longer stand idle while prosecutors pursue convictions at the expense of justice and our system is subverted by unethical conduct. If a prosecutor lies to the court and to a jury, if a prosecutor does not produce exculpatory evidence in violation of our prior opinions, court rules, and ethics rules, if an appellate state's attorney argues inconsistent and contradictory theories depending on which court they are before, we will reverse the conviction and strongly recommend discipline by their state bar authorities.

All of these actions by state's attorneys were before the Court, noted by the Court, and accepted by the Court as true. The issue framed on appeal was whether Cone's habeas claim was procedurally barred, but the Court could have gone much further in their analysis of this case.

In another opinion finding against the defendant today, the U.S. Supreme Court, in Dean v. U.S., held that the mandatory minimum for discharging a firearm during the course of a violent crime does not require intent to discharge. Possession of a firearm during a violent crime or drug trafficking crime results in a mandatory minimum of 5 years, "brandishing" a firearm results in a minimum of 7 years, and discharging a firearm results in a minimum of 10 years.

Dean argued that, because the discharge of his firearm during a bank robbery was accidental and not intentional, he should not be subject to the mandatory minimum of 10 years. The Supreme Court disagrees - it does not matter if the discharge was accidental or intentional, the statute does not require a separate finding of intent, and if you carry a loaded gun into a bank robbery you assume the risk that the gun may go off unintentionally. As the witty Chief Justice Roberts put it in his opening lines: "Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns."

In Kansas v. Ventris, released today, the United States Supreme Court held that, although a statement has been obtained in violation of a defendant's right to counsel, it may be used at trial for purposes of impeaching the defendant's testimony. Ventris and a co-defendant, Theel, were charged with aggravated robbery and murder. Theel's murder charge was dismissed in exchange for her testimony that Ventris pulled the trigger, and the prosecution placed an informant in Ventris' cell to obtain incriminating statements.

Predictably, the informant claimed that Ventris confessed to killing the victim. The state admitted at trial that this was a statement obtained in violation of Ventris' right to counsel (cops, prosecutors, or their agents cannot question a defendant once the right to counsel has attached unless the defendant approaches them himself), but at trial the judge allowed the state to call the informant to impeach Ventris' testimony that he was not the shooter. The Supreme Court held that this was appropriate, as the deterrent effect of excluding evidence obtained in violation of the constitution does not apply where it is used for impeachment purposes only, and to hold otherwise would give the defendant free reign to lie under oath. (If Ventris' disagreement with the informant was only whether or not he was the triggerman, it looks like Ventris won on that point anway, since he was acquitted of murder and convicted of robbery)

I agree with the Court's reasoning and I believe it is the right conclusion, but in my opinion we are discussing the wrong issues. The question we should be asking is whether the informant, who undoubtedly is attempting to please the prosecutor in order to obtain his own freedom, should be permitted to testify at all without independent corroboration of his testimony. Our criminal courts have become poisoned by the use of perjured and unverified testimony by informants, which are used routinely by prosecutors, whether knowingly and unethically or ignorantly and incompetently. A culture of lying to obtain deals has arisen in our jails and prisons, which is used indiscriminately by many prosecutors in state and federal courts.

Testimony of jailhouse informants is inherently unreliable, and may be the biggest challenge that our justice system faces today. It is too easy for prosecutors, wielding the threat of prosecution and the promise of freedom, to find an inmate who is willing to say anything that will get them closer to the light of day. I agree that it makes sense to allow use of evidence which was obtained unlawfully for impeachment purposes. It does not make sense to allow use of patently unreliable evidence, whether obtained in violation of the constitution or not, for any purpose.

The Fourth Amendment has gotten its head above water for a gasp of fresh air with the United States Supreme Court's opinion in Arizona v. Gant. It is not necessarily a far-reaching opinion (because the exceptions still swallow the rule when it comes to application of the Fourth Amendment), and it's holding is limited to a fairly specific set of circumstances as I'll discuss in a moment, but it does spark some hope that the Supreme Court still believes in our Constitution and specifically the Fourth Amendment. Yesterday following the opinion's release there was a ripple across the blogosphere as criminal defense bloggers celebrated and provided their commentary (see below for links).

Gant deals with the search of a vehicle incident to arrest, and it's holding is that:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Up to this point, police have routinely searched vehicles any time there was an excuse to arrest the driver (note that in S.C. you can technically be arrested for minor traffic violations such as speeding). In 1969, the U.S. Supreme Court held in Chimel v. California that police could search the area around an arrestee from which they could grab a weapon or destructible evidence, in the interest of 1) officer safety; and 2) preservation of evidence. In 1981, the U.S. Supreme Court decided New York v. Belton, which expanded this rule to the passenger compartments of vehicles and all containers therein. Despite the policy served by this rule - officer safety and preservation of destructible evidence - this has been interpreted to apply to cars even where the person arrested is handcuffed and in the patrol car, and in some cases it has been held to apply hours after the arrestee has been removed from the scene.

Justice Stevens in the majority opinion acknowledges this and says, "lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel." The majority holds that the rule in Chimel and Belton will apply in two situations: 1) "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search," and 2) "when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle."

My first thought regarding the first circumstance was, will they now train police to leave arrestees unsecured by their car long enough to search for evidence? I believe the Court considered this as well, as they noted in footnote 4: "Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains."

Regarding the second circumstance, this leaves open a valid search incident to arrest where evidence of the crime of arrest may be found in the vehicle, such as an arrest for a drug offense, but the Court makes it clear that this does not encompass an arrest for a traffic offense - you cannot reasonably expect to find evidence of driving under suspension, for example, inside a jacket pocket in the back seat of the car.

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

Scalia's concurring opinion is more straightforward and honest, and I agree with his analysis. He proposes that the Court completely do away with the charade of the Belton line of cases and overrule them.

When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means ofensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car. . . .

In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. . . .

We should recognize Belton’s fanciful reliance upon officer safety for what it was: “a return to the broader sort of [evidence-gathering] search incident to arrest that we allowed before Chimel.”

Courts need to be honest in their analysis of cases - if we are going to have an exception to the Fourth Amendment for vehicles, to allow law enforcement more leeway in gathering evidence of crimes, we need to call it that. We don't need to justify it with a non-existent concern for officer safety - I am impressed with the majority opinion in Gant and even more so with Scalia's view. Gant's case is a perfect example of police using the Belton rule for general investigation where officer safety was never an issue - the police were at his house following an anonymous tip regarding drug activity. They knew his license was suspended. When he arrived at his house driving a car, they placed him under arrest, handcuffed him, and secured him in a patrol car. They then searched his car for drugs, which they found in a jacket pocket in the back seat. There was no probable cause to search the car for drugs, there was no concern for the officer's safety, and there was no evidence of driving under suspension to be found in his vehicle.

As I said at the beginning above, Gant is limited in its application, and the Court notes that there are many other exceptions to the warrant requirement that will apply in various circumstances. Although the Court does not address this, the biggest one will be the inevitable discovery rule and inventory searches. If a person is arrested for any reason and the car must then be towed, it will eventually be subject to an inventory search; because it will be searched anyway, courts will find it reasonable for the police to go ahead and search the vehicle. This means that Gant will only apply where the car is on the arrestee's property or where there is another licensed driver in the car - in which case the car will not be subject to towing and a subsequent inventory search.

More commentary on Gant across the blogosphere: A Public Defender, Jamie Spencer, Robert Guest, John Wesley Hall, Mark Bennett, Scott Greenfield, and Paul Kennedy.

In State v. Odom, at the trial level Judge Mark Hayes suppressed evidence which was obtained by use of a criminal discovery order which was authorized by the federal Patriot Act, on grounds that 1) the circuit court which issued the order is not a "court of competent jurisdiction" as defined by the Patriot Act, and 2) the order was prohibited under S.C. law. The state appealed the trial court's decision, and the S.C. Supreme Court overruled the trial court on March 31st.

This case seemed easy to me: § 2703(d) of the Patriot Act authorizes state courts to issue these orders where it is not otherwise prohibited under state law. State law (and the state and federal constitutions) prohibits unreasonable searches and seizures. The Order in this case was not supported by probable cause, a fact which is admitted by the government and by the Supreme Court in its analysis. Therefore, the issuance of the Order was not only prohibited by state law, but was a constitutional violation and any evidence received pursuant to it should be suppressed at trial.

In this case, the evidence sought was to trace a screenname to an alleged online sexual predator, who was having conversations and making big plans with a cop who was pretending to be a 13 year old girl online (when the cop was off duty and on his personal computer, btw). No one wants perverts sexing up teenage girls on the internet, and most people would certainly support the prosecution of such predators - but - we don't need to sacrifice our protections under the Constitution to prosecute these people.

What the Court has done in this case is not only give S.C.'s stamp of approval to provisions of the Patriot Act which remove the requirement of probable cause before an individual's privacy can be violated, but the Court has taken it a step further and gone beyond what even the Patriot Act authorizes, by allowing such searches without probable cause and implicitly stating that this is the law in S.C. No probable cause required.

In State v. Robertson, decided on Tuesday, the S.C. Supreme Court essentially held that a defendant can waive his right to counsel simply by not appearing for his trial. Robertson was charged with failure to register as a sex offender, was given on his bond form the required warning that he must appear on his court date or trial would proceed in his absence, was mailed two notices of appearances for court to his last known address, and then was tried in his absence without an attorney.

Although there was no express waiver of his right to counsel, the Court held that the above facts, coupled with the fact that Robertson had a prior record which shows his familiarity with the system, are sufficient to infer a waiver of his right to counsel from his conduct. In what seems rather twisted logic to me, the Court says that if a defendant elects to proceed without counsel, they must be advised of the dangers of self-representation under Faretta; but, if the defendant does not elect to proceed without counsel, there is no need for warnings and we may infer that they have waived their right to counsel:

We find both Prince and Faretta inapplicable to the instant case. Both cases addressed defendants who elected self-representation, and therefore the trial court was required to (1) advise the accused of his right to counsel, and (2) adequately warn the accused of the dangers of self-representation. Prince, 301 S.C. at 423-24, 392 S.E.2d at 463; Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 581-82. In the instant case, Respondent gave no indication that he wished to proceed pro se and instead failed to appear for trial. Consequently the Faretta requirements are irrelevant and pose no bar to waiver. See Jackson v. State, 868 N.E.2d 494, 500 (Ind. 2001) (warnings as to the perils of self-representation are irrelevant where defendant did not indicate a desire to represent himself).

In Knowles v. Mirzayance, decided yesterday, the U.S. Supreme Court denied Mirzayance's claim of ineffective assistance of counsel where his attorney declined to present his only available defense during the insanity phase of his trial.

In California, in a trial where the defendant enters a plea of not guilty and a plea of not guilty by reason of insanity, the trial is bifurcated into a guilt phase and an insanity phase where the jury is to consider each separately. Mirzayance had presented evidence of his mental state during the guilt phase in an attempt to obtain a verdict of 2nd degree murder rather than 1st degree murder, arguing that the requisite intent was not present due to Mirzayance's illness; the jury rejected the mental illness evidence and found Mirzayance guilty of 1st degree murder.

Mirzayance's counsel then decided not to present the evidence of not guilty by reason of insanity during the second phase of the trial because it would have been futile, since the jury had already rejected the same testimony. MIrzayance's petition for post conviction relief in state court was denied, then he filed a habeas petition in federal court asking for relief, arguing that his trial counsel's decision to forgo the insanity defense was ineffective assistance of counsel because there was no other valid defense and therefore Mirzayance had nothing to lose by arguing insanity during the second phase of the trial.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1), a federal court may not grant a state prisoner’s habeas application unless the relevant state-court decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." The Supreme Court held that there is no clearly established "nothing to lose" rule, and therefore MIrzayance's claim fails. Ineffective assistance claims must be evaluated under the Strickland v. Washington two pronged test of ineffectiveness under prevailing professional norms and prejudice to the defendant. The Court went on to hold that counsel's decision to forgo the insanity defense, even though there was no other defense available, was an acceptable tactical decision that did not fall below the standard of "reasonableness under prevailing professional norms," and that there was no prejudice to Mirzayance anyway because the jury had already rejected the testimony regarding MIrzayance's mental state.

The Court's reasoning is easy enough to follow, and I understand that the standards for what is competent representation under the 6th Amendment are ridiculously low, but it is hard to swallow that when there is only one available defense and there is nothing to lose, that counsel does not have a duty to present that defense and throw everything he's got at the jury, regardless of his odds of success. It doesn't sound reasonable under prevailing professional norms for an attorney to lay down and quit because he doesn't think the jury will agree with him. If there is not a "nothing to lose" standard for situations like this there should be - but the Court has passed by the opportunity to create one in this case.

In Davie v. State, decided this month, the S.C. Supreme Court held that it is ineffective assistance of counsel when an attorney does not convey a plea offer to his client. In this case, counsel testified at the PCR hearing that he did not convey the state's plea offer of 15 years to his client because he was not aware of the plea offer until after it had expired. His testimony was that he was moving to a new office and the plea offer was lost in the mail.

Without ever hearing the original plea offer of 15 years, the defendant ended up pleading guilty to trafficking crack cocaine, third offense; distribution of crack cocaine, third offense; distribution of crack cocaine within proximity of a public park; conspiracy to violate the South Carolina drug laws; unlawful conduct toward a child; failure to stop for a blue light; driving under suspension, third offense; and child endangerment, and received a sentence of 27 years in prison.

The SCSCt held that the failure to communicate the original plea offer was deficient performance by the trial lawyer, and that under the facts of this case there was prejudice to the petitioner, the test being "whether but for counsel’s deficient performance a defendant would have accepted the State’s proposed plea bargain and that he would have benefited from the offer." In this case, Davie testified that he would have accepted the plea offer and, well, 15 instead of 27 is certainly a considerable benefit. The Court held that the remedy, rather than granting a new trial, was to remand the case for a new sentencing hearing. Although the Court cannot force the state to extend its original offer of 15 years, the petitioner's sentence cannot exceed 27 years.

I am curious as to whether on resentencing the solicitor's office will correct Davies' attorney's mistake and re-extend the original offer of 15 years. And, if they do not, isn't Davies' attorney now liable for 12 years of Davies' life? Although malpractice/ civil liability is certainly not my area of expertise, I think the answer is that he would not be liable - but should he be?

In Berry v. State, released today, the S.C. Supreme Court held that a prior conviction for paraphernalia cannot be used to enhance a manufacturing meth charge to second offense, and granted Berry's PCR petition because his plea counsel failed to inform him of this or object to the enhancement.

Berry pled guilty to second offense manufacturing methamphetamine, was sentenced to seven years, and an accompanying possession with intent to distribute meth charge was dismissed as part of the plea agreement. The Court points out that it is perfectly acceptable for a defendant to plead to a charge that he or she is technically not guilty of in exchange for a plea agreement - for example, defendants will often plead to manslaughter to avoid a murder conviction, even though the legal requirement of provocation is not present - in order to receive a lesser sentence. The plea must be entered into knowingly and voluntarily, however, and in this case Berry's attorney did not advise him that a paraphernalia conviction could not be used to enhance his drug conviction. Berry testified that he would not have entered the plea had he known, and his counsel testified that it didn't even occur to him.

There are significant differences in the potential sentences and how the sentence is served - manufacturing meth first offense carries 0-15 years and second offense carries a potential 5-30 years; but a second offense is also an 85% no parole offense for purposes of how much time you serve. On a first offense, a convicted person will receive time credits at SCDC and could be released after serving as little as half of their sentence - or could be released on parole even sooner. (**** do not rely on this blog for legal advice - please rely on your attorney to explain sentencing issues. Sentencing issues, time credits, parole eligibility are complex issues that will be determined by the individual circumstances of your case. ****)

For practical purposes, this means that Berry, although he pled to 7 years, would end up serving as much or more time than he would have if he had been convicted following trial and received the maximum sentence of 15 years on a first offense. On a first offense if he was sentenced to 15 years, he could potentially have maxed out his sentence after 7 1/2 to 8 years, or could have been paroled even sooner. With a sentence of 7 years on a second offense, he has to serve around 6 years before he could be released.

Even if Berry had gone to trial, lost, and was sentenced to the maximum of fifteen years, he would most likely not have been in a worse position. But, assuming that the state had a solid case against him, the real error lay in allowing the use of a paraphernalia conviction to enhance the drug charge. If Berry had pled, without any recommendation by the prosecutor, to a first offense manufacturing meth, odds are he would not have received the maximum sentence and he would have undoubtedly been in a better position.

Allowing the use of a paraphernalia conviction to enhance a drug charge without even questioning it was a failure not only of Berry's lawyer, but of the prosecutor, the trial court, and the lower PCR court which denied relief. In my experience, in S.C., the use of paraphernalia for enhancement has never been a question with any prosecutor or judge, and it amazes me that a prosecutor, defense attorney, and 2 trial judges would not even question the propriety of this guy's plea.

In Hiott v. State, the S.C. Supreme Court overruled the Court of Appeals, holding that a trial judge cannot impose sanctions on a PCR applicant under Rule 11 for filing frivolous proceedings.

At the PCR hearing, petitioner claimed that counsel was ineffective for not discovering that the victim in his case had been abused by another family member; however, petitioner himself was aware of the alleged prior abuse and did not tell his trial counsel. The trial judge denied the PCR and then sanctioned the petitioner $3000 (which he was never going to be able to pay anyway, as he is incarcerated) for filing a frivolous proceeding. The Court of Appeals upheld the sanction, holding that, since PCR's are governed by the rules of civil procedure, Rule 11 must also apply.

The Supreme Court overruled, pointing out that allowing trial judges to sanction PCR applicants for frivolous proceedings would have a chilling effect on prisoners' exercise of a constitutional right. They noted that in In Wade v. State, 348 S.C. 255, 559 S.E.2d 843 (2002), the SCSCt has already held that a trial judge cannot revoke an petitioner's inmate credits under the Prisoner Litigation Act for filing frivolous proceedings or for testifying falsely, as it would chill a prisoner's exercise of a constitutional right.

There are safeguards in place to limit frivolous proceedings - successive applications are barred unless new evidence is discovered, there is a one year statute of limitations on PCR applications, and there is a one year statute of limitations following the discovery of new evidence. Essentially, every inmate who feels that they have a claim to PCR will get one bite at the apple, and the courts are just going to have to deal with the non-meritorious claims to ensure that we do not miss the claims that do have merit.

The United States Supreme Court today released Vermont v. Brillon, holding that the defendant was not denied his right to a speedy trial where he went through six appointed attorneys over a period of three years before his domestic violence and habitual offender charges were brought to trial.

Although I disagree with some of the phrasing used by the Court, I agree that there was no violation of this defendant's right to a speedy trial. When the Court accepted cert in this case, some commentators painted it as an example of a breakdown in the indigent defense system which was no fault of the defendant's, which should therefore be held against the state in determining whether his right to a speedy trial was violated. If that was the case I would agree, however this may not have been the right test case for that issue. The facts as recited by SCOTUS indicate that Billon was the cause of the delay, that he was a difficult client at best, that he threatened one of his attorneys and that he fired others.

For purposes of constitutional analysis, Barker v. Wingo is the seminal case regarding when the right to speedy trial has been violated. The test is fluid, and there is no bright line rule to go by. It will depend on the complexity of the case, and the courts must weigh several factors which include the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and prejudice to the defendant. The federal courts and some states have their own sets of rules regarding what a speedy trial is in various types of cases, but South Carolina does not. I have had one case that was dismissed on speedy trial grounds, but it is a rare occurence.

Where a defendant causes the delay by purposefully switching attorneys or by his conduct which necessarily results in new counsel being necessary, the defendant can't claim that he has been denied his right to a speedy trial. Where counsel for the defendant requests a continuance in the case, the general rule is that the right to a speedy trial has been waived. If the defendant does not ask for a speedy trial, the right to a speedy trial may be waived. Only when the state is the cause of the delay - whether it is purposeful or whether it is due to overcrowded dockets or whether it is due to the state's inability to provide adequate counsel in a timely manner - should a dismissal for violation of the right to speedy trial be granted. Like I said, this was not the ideal test case for this issue.

One thing that bothered me in the Court's opinion was an analysis of whether assigned counsel's "failure to move the case forward" should be attributed to the state. The question is framed wrong - counsel, assigned or retained, has no obligation to "move a case forward;" it is the government's responsibility to move the case. This is more true in South Carolina than anywhere, as the solicitor's office, not the clerk or the judge, is in control of the docket in South Carolina. A defendant, other than making the request for a speedy trial, has no responsibility and in fact does not have the power to move a case forward. If there are no acceptable negotiations, it is up to the solicitor's office to put the case on the docket and try it.

In In re Boyce, in December 2006, an attorney was given a public reprimand for issuing a subpoena for bank records when there was no case pending. Although the lawyer's assistant drafted and mailed the subpoena and not the lawyer, the Court held that the lawyer was responsible for the supervision of her employees:

The subpoena contained the following false and misleading statements and implications:

1. that Owner was a party in a pending civil action when he was not;

2. that the subpoena was issued by the “civil court in the County of Spartanburg” when it was not;

3. that the subpoena was in furtherance of a pending civil case when it was not;

4. that the bank was required by law to produce certain documents and information for inspection and copying when it was not;

5. that a designated official for the bank was required to provide the documents and information at the Spartanburg County Family Court when there was no cause pending in that court and no official for the bank was required to appear;

6. that the subpoena was issued in compliance with Rule 45(c)(1), SCRCP, when it was not; and

7. that respondent was an attorney acting on behalf of the plaintiff in a pending civil action in issuing the subpoena when, in fact, she was not.

Respondent acknowledges it was improper to send the subpoena when no action was pending. Even if the subpoena had been pursuant to a pending action, respondent admits she failed to review it prior to its service upon the bank. Finally, respondent admits that she failed to adequately supervise her non-lawyer assistant in the preparation and service of the subpoena.

What rules did this violate?

Respondent admits that, by her misconduct, she has violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule 5.3 (lawyer having supervisory authority over non-lawyer shall make reasonable efforts to ensure the person’s conduct is compatible with the professional obligations of the lawyer); Rule 8.4(a) (it is professional misconduct for lawyer to violate Rules of Professional Conduct); Rule 8.4(d) (it is professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(e) (it is professional misconduct for lawyer to engage in conduct that is prejudicial to the administration of justice). Respondent acknowledges that her misconduct constitutes grounds for discipline under the Rules for Lawyer Disciplinary Enforcement, Rule 413, SCACR, specifically Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct) and 7(a)(5) (it shall be ground for discipline for lawyer to engage in conduct tending to pollute the administration of justice or to bring the courts or legal profession into disrepute or conduct demonstrating an unfitness to practice law).

The United States Supreme Court has granted cert in Padilla v. Commonwealth of Kentucky, which deals with the issue I raised in my post about Hayes:

Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

In South Carolina, that question has been answered in the affirmative - where plea counsel gives incorrect advice as to the collateral consequences of a guilty plea, that is ineffective assistance of counsel. When the defendant would have chosen to take his case to trial rather than plead guilty, but for the faulty advice, then the plea is set aside. Kentucky took the opposite position in Padilla, and the USSCT will decide whether that violates the Sixth Amendment. Even if the Court holds that it does not, the states are free to provide this additional protection - the federal constitution is a minimum guarantee of rights, and the states can and often do interpret their constitutions as providing more protection than the federal constitution.

Scott Greenfield at Simple Justice argues that, although attorneys have a duty to answer correctly when they answer, the responsibility lies with judges to include this advisement in their plea colloquy:

What's the solution? As I've argued since 1990, every judge should include in the allocution the collateral immigration consequences of a plea of guilty. Even if it's the defense lawyer's practice to inform his clients, it remains the duty of the judge to make certain that the defendant's plea is fully informed. While I agree that deportation is a collateral consequence of a plea, and that there is certainly some lack of clarity about what constitutes an aggravated felony and whether criminal defense lawyers should be expected to have expertise in immigration law as well, the fact remains that a defendant is entitled to effective representation when he obtains an answer to a question in anticipation of a plea.

The moral of the story is that when you answer your client's pre-plea questions, you are responsible for giving them the correct answer. It really isn't that much to ask.

Remy Orozco at Hostis Civitas disagrees in part, arguing that the duty to inform the client of immigration consequences lies squarely on the defense attorney:

When a defendant decides to plead guilty or go to trial they do so under our advisement and it is our responsibility to ensure that we present them with all the facts and possible outcomes for them to weigh as they make their decision. In the Padilla case, his attorney committed malpractice when he misinformed him as to the collateral consequences his guilty plea would have on his immigration status. Mr. Padilla has a 6th Amendment right to effective assistance of an attorney. What makes this case so agregeous is the fact that Mr. Padilla specifically asked his attorney what consequences the guilty plea would have on his immigration status and his attorney misinformed him.

The fact is, no one knows the defendant's situation like the defense attorney. The judge, and often the prosecutor, often do not know the defendant's immigration status unless the defense attorney tells them - which does place the responsibility squarely on the shoulders of the defense lawyer. I agree with Remy that an attorney who ignores the fact that his client is not a legal resident, or does not inquire, is committing malpractice. The courts, however, disagree with us on this point - the only question that the USSCT will decide in Padilla is whether it is ineffective to give a wrong answer when the client asks about the consequences.

The United States Supreme Court today in U.S. v. Hayes held that a conviction for simple assault and battery, if the defendant has a domestic relationship with the victim, is the same as a conviction for criminal domestic violence for purposes of the federal gun laws.

18 U.S.C. §922(g)(9) prohibits the possession of a firearm by any person who has been convicted of a misdemeanor crime of domestic violence (other provisions prohibit the possession of any person convicted of certain felonies, but the specific provision was added for domestic violence because CDV is typically a misdemeanor that would not fall under the other provisions). §921(a)(33)(A) defines "misdemeanor crime of domestic violence" as any crime that involves the use of force or threatened use of force, against a person that the defendant has a domestic relationship with (spouse, child in common, lives together). This definition under federal law encompasses not only state CDV laws, but also state assault and battery laws when the victim is someone that the defendant has a domestic relationship with.

The definition of a crime of domestic violence under federal law is important because the fact that a person is subject to later federal prosecution for possession of a weapon is a collateral consequence of the conviction; another important collateral consequence that attorneys often do not consider is that a conviction for a misdemeanor crime of domestic violence can have immigration consequences as well. Many attorneys routinely plead CDV's down to assault and battery charges, under the mistaken assumption that this will exempt them from the federal gun laws, to their clients' detriment. Because these are collateral consequences, there is no remedy on appeal for an attorney's failure to inform their client that they can no longer own a gun or that they could potentially be deported or denied citizenship following a guilty plea to domestic violence - or - following a plea to simple assault and battery where the spouse is the victim.

Post conviction relief, based on ineffective assistance of counsel, could be a remedy depending on the circumstances. South Carolina courts have held that PCR will not be granted if an attorney simply does not advise a client as to collateral consequences before advising them to plead guilty, but if the attorney gives advice and it is wrong then it is considered ineffective assistance of counsel. The most common example is parole eligibility - if an attorney does not advise a client as to parole eligibility there are no grounds for relief, but if an attorney does advise a client and gives the client incorrect advice it may be grounds for PCR. For example, if the attorney tells the client they will be eligible for parole after 1/4 of their sentence on an armed robbery charge and the client, thinking that he will be released on parole after 3 years, accepts a plea to 12 years, PCR may be an available remedy. Armed robbery is a no-parole offense, and that person will serve 85% of the 12 year sentence before they can be considered for release.

Although there are no cases on point in South Carolina that I have seen, the same should be true regarding the prohibition on owning a gun and the immigration consequences of a plea to CDV or assault and battery. When attorneys spot a potential immigration issue we need to consult an immigration attorney when the client can afford it - immigration law is too complex to take chances on giving faulty advice. In general, attorneys need to be aware that any conviction for a crime of moral turpitude can cause problems when an individual is applying for citizenship and it can potentially result in deportation as well. A conviction for domestic violence, or a conviction for assault and battery against a spouse, is considered a crime of moral turpitude under federal law.

South Carolina courts have taken the position that it is not ineffective assistance of counsel to remain silent regarding collateral consequences, but in my opinion every attorney needs to be advising their clients that if they plead guilty to CDV or assault and battery against a spouse, they will lose their right to own a gun and, if they are not a citizen, they could be deported or denied citizenship as a result of the guilty plea.

In State v. Wharton, decided earlier this month, the S.C. Supreme Court lays out the elements of voluntary and involuntary manslaughter as lesser-included offenses of murder and the defense of accident, but declines to decide whether the doctrine of transferred intent is applicable to voluntary manslaughter.

The Court held that neither voluntary or involuntary manslaughter should have been charged to the jury in this case (the jury was instructed on voluntary manslaughter). Wharton was waving a gun in the street while arguing with Shaw, when the gun went off, killing the victim. To get a jury instruction on voluntary manslaughter requires some evidence of both 1) that defendant was acting in the sudden heat of passion; and 2) upon sufficient legal provocation. Although there was testimony that Wharton was acting in the heat of passion, the Court found that words alone cannot constitute sufficient legal provocation; the words must be accompanied by a hostile act, which there was no evidence of in this case.

Because the Court found that there was no voluntary manslaughter, the Court declined to address whether the doctrine of transferred intent applies - i.e. if voluntary manslaughter would have applied to Shaw who Wharton was arguing with, it would then apply to the victim who was struck by the bullet.

Involuntary manslaughter is:

(1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others. State v. Chatman, 336 S.C. 149, 152, 519 S.E.2d 100, 101 (1999). If there is any evidence warranting a charge on involuntary manslaughter, then the charge must be given. State v. Reese, 370 S.C. 31, 36, 633 S.E.2d 898, 900 (2006).

By pointing and waving the gun, Wharton committed an unlawful act that would naturally tend to cause death or great bodily harm, and so involuntary manslaughter would not apply.

The Court also held that accident should not be charged to the jury:

For a homicide to be excusable on the ground of accident, it must be shown that the killing was unintentional, the defendant was acting lawfully, and due care was exercised in the handling of the weapon. State v. Burriss, 334 S.C. 256, 259, 513 S.E.2d 104, 106 (1999). Evidence of an accidental discharge of a gun will support a charge of accident where the defendant lawfully arms himself in self-defense. Tisdale v. State, 378 S.C. 122, 126, 662 S.E.2d 410, 412 (2008).

There is no evidence in the record to support an accident charge. Specifically, Wharton was not acting lawfully in waiving the gun in the air, nor did he exercise due care in handling the weapon. Furthermore, there is no evidence he was lawfully armed in self-defense. Accordingly, we hold that the trial court properly denied Wharton’s request for a charge on the law of accident.

Because voluntary manslaughter should not have been charged to the jury, this leaves Wharton with a new trial where the jury will have to choose murder or acquit - all or nothing. When first reading this case, my thought was that it was a classic example of a prosecutor overcharging - it seems clear that it was not murder, but, given that a person is dead and the circumstances under which the person died, voluntary or involuntary manslaughter seemed appropriate. Now, however, everything except murder or acquittal has been excluded as possibilities for the jury to consider.

In State v. Stokes, decided this week,convictions for murder, first degree burglary, and assault with intent to kill were affirmed by the S.C. Supreme Court over challenges based on admission of a prior inconsistent statement by a state's witness and admission of testimony regarding a separate shooting that happened after the murder that Stokes was charged with.

Other bad acts evidence: The Court got it right in this fairly straightforward analysis of evidence offered to prove identity under Rule 404(b) (unlike other recent opinions dealing with the common scheme or plan exception under 404(b)). The rule is:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith; however, such evidence may be admissible “to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.” Rule 404(b), SCRE (emphasis added). The evidence admitted “must logically relate to the crime with which the defendant has been charged.” State v. Beck, 342 S.C. 129, 135, 536 S.E.2d 679, 682-83 (2000).

In Stokes, the victims were unable to identify the attackers, and therefore identity was at issue. When the defendant was arrested in North Carolina, he had in his possession a .357 Ruger pistol that the state's expert said matched a bullet that was recovered from the crime scene. A bullet recovered from a subsequent shooting where medicine bottles with Stokes' name on them were found also matched the gun that was found in Stokes' possession. The state established the necessary connection regarding the identity of the shooter through the testimony regarding the second, uncharged shooting.

Confrontation clause: The Court also holds that admission of a prior inconsistent statement by a state's witness was proper, that it was admissible as substantive evidence, and that there was no violation of the confrontation clause under Crawford v. Washington, 541 U.S. 36 (2004).

The state called the defendant's uncle to the stand, and asked him about a statement he had allegedly given to police officers while in the hospital. The uncle denied having made the statement, and the state was allowed to question the officer who took the statement as to its contents. Extrinsic evidence of a prior inconsistent statement is admissible, so long as the witness is advised of the substance of the statement, the time and place it was allegedly made, the person to whom it was made, and is given the opportunity to explain or deny the statement.

The rule cuts both ways. For example, in a recent trial, the state had called Jailhouse Snitch to testify as to an alleged statement made by one of the defendants (statements by defendants are almost always admissible and are not considered hearsay). Another Inmate had sent a letter to the defense stating that Snitch was lying, had told Inmate that he was lying, and had tried to get Inmate to help him lie against the defendant. When Snitch was on the stand, I asked him if he knew Inmate, and if he had made those statements to Inmate, and Snitch denied ever making the statements. Then, in the defense's case, we were able to call Inmate to the stand to testify as to the substance of Snitch's statements to him.

In a more convoluted example from the same trial, Witness 1 was asked whether she had removed a briefcase full of drugs from the crime scene. When she responded no, she was asked whether she had stated to Witness 2 that she had taken drugs from the crime scene, which she denied. We called Witness 2 to the stand, and she was asked if Witness 1 had told her that she took a briefcase full of drugs from the crime scene. If Witness 2 had admitted this we would have stopped there, but Witness 2 denied having the conversation with Witness 1.

I then asked Witness 2 if she had not informed Investigator in a recorded telephone conversation on a certain date that Witness 1 had removed a briefcase full of drugs from the crime scene (tip - if the attorney says it is recorded, guess what is coming next), which Witness 2 then denied. I then was able to play for the jury a recording of Witness 2 telling Investigator that Witness 1 had removed a briefcase full of drugs from the crime scene. It took a while, but we got there.

The Court in Stokes also re-affirmed that a prior inconsistent statement is admissible as substantive evidence, and overruled State v. Pfirman, 300 S.C. 84 (1989) and Simpkins v. State, 303 S.C. 364 (1991) to the extent that they held that a prior inconsistent statement is not admissible as substantive evidence against the defendant when the witness denies the statement. The Court held that there is no confrontation clause violation under Crawford when the witness is available to testify and is subject to cross examination.

SCDMV v. Holtzclaw , decided today, hopefully solves a problem that has been cropping up across the state in the past year or so, which is the general counsel for the SCDMV ignoring court orders from magistrates and municipal judges.

Some background: Under S.C. law, a request to re-open a magistrate or municipal case must be made within 5 days of the conviction, or under Ishmell v. South Carolina Highway Department, 264 S.C. 340 (1975), within 5 days of the defendant receiving notice of the conviction. Typically, when a defendant with a traffic violation or other misdemeanor does not show up for court on the date which is written on his ticket, the judge will simply write "guilty/bench trial" on the ticket and dispose of it without any formalities. With the sheer volume of tickets that are written in most courts, it would be logistically impossible to conduct a full trial in absence on all no-shows, and what usually happens is the defendant either forfeits bond or, if no bond was posted, the defendant is then required to pay the full amount of the fine. At some point, if the fines are not paid, a bench warrant could be issued or the defendant's license could be suspended.

There are many ways in which a defendant misses a trial date through no fault of his own, including clerical errors on the ticket, or a jury trial request that was misplaced by the clerk (this happens more often in some offices than others). When this happens, the defendant must request a "new trial" as soon as he finds out that he was convicted in his absence in error. There are also some situations, as illustrated by this case, where it is in the interest of justice to reopen a case regardless of whether the time requirement has been met, and the officer or prosecutor may consent to do so in the right case. Once the case is re-opened, if the order is not appealed, the order is valid and legal.

The problem arises when a case is re-opened, outside of the time limit, and SCDMV, on the advice of their general counsel, refuses to accept the judge's order reopening the ticket:

Upon receipt of the municipal court's order to reopen the last ticket, the DMV replied directly to the judge in a letter, stating: "The Department is in receipt of the attached order(s), however, we are unable to process the order due to the following: . . . The request to re-open the case does not appear to be timely." The municipal court did not respond to the DMV's communication.

In essence, the SCDMV ignores the court order and refuses to abide by it. No magistrate or municipal judge to my knowledge has called them on this and held them in contempt, although they certainly could and should in my opinion. Now the S.C. Court of Appeals has weighed in - even if the order reopening the ticket is not timely, it is a binding and lawful order if it is not appealed. If the SCDMV is not a party to the action, they cannot appeal the order. Although I don't understand what SCDMV's problem is in the first place, hopefully they will get the message that is spelled out clearly in this case: get over it; stop ignoring judges' orders.

In State v. Bolin, the South Carolina Court of Appeals affirmed the defendant's conviction over a claim that the jury should have been charged under S.C.'s new stand your ground law. Like the defendant in State v. Dickey, Bolin did not receive the benefit of the new law because the incident happened four months before the law took effect.

South Carolina's Protection of Persons and Property Act, found at S.C. Code Sec. 16-11-410, expanded self defense, and it essentially says that, if you are where you have a right to be, you do not have a duty to retreat when attacked, and can use deadly force to defend yourself:

A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60.

Prior to the passage of the Protection of Persons and Property Act, there was a duty to retreat except when in your own home or place of business (the Castle doctrine), unless to do so would place you in greater danger.

In a nutshell, Bolin was at a friend's house, some people came over to fight, they fought, Bolin thought he heard gunfire, and he fired a pistol into the car as it was pulling off. If the stand your ground law applied to his case, arguably he would have gotten a jury instruction on it - he was in a place where he had a right to be, and if the jury believed that he heard gunfire as the group left the jury could have found that it was reasonable to return fire to protect himself.

Although charged with murder, the jury found Bolin guilty of voluntary manslaughter, assault and battery high and aggravated, and discharging a weapon into an occupied vehicle, and he was sentenced to 30 years.

In Gay v. Ariail, decided last week, the South Carolina Supreme Court held that a person can have their record expunged after 15 years pursuant to S.C.'s Youthful Offender Act (YOA), even if they were not sentenced under the YOA's provisions. This was a fairly important decision, as a criminal record can follow a person for their entire life and, before this case was decided, SLED was taking the position that a record could not be expunged unless the person was sentenced under the YOA.

The YOA applies to persons between the ages of 17 and 25 who are not charged with a violent crime, as defined by S.C. Code Sec. 16-1-60. The YOA provides alternatives to adult sentencing, which typically involves a sentence not to exceed 6 years at a YOA facility - the defendant would serve 10 months of the sentence and then be released on parole for 1 year, and if there is no violation the sentence is over after that year. Shock incarceration, or boot camp, is also an alternative for those who qualify. Although the shock incarceration program is 90 days long, after which the defendant is released on parole, there is typically a 2-3 month wait before the program begins which means the defendant will be gone for 5-6 months before being released.

S.C. Code Sec. 22-5-920 provides for the expungement of a conviction as a youthful offender, after 15 years has passed and if there are no subsequent convictions.

Gay, when he was 22 years old, pled guilty to assault and battery of a high and aggravated nature (ABHAN), but he was not sentenced under the YOA provisions. He was sentenced to 10 years, suspended to 5 years probation, as an adult. ABHAN, although it is punishable by up to 10 years, is classified as a misdemeanor under S.C. law, and it is not listed as a violent offense under 16-1-60. The Court's holding in this case was that, although Gay was not sentenced under the YOA provisions, he nevertheless met the definition of a youthful offender under the YOA, and therefore he can seek to have his record expunged after the 15 years has passed.

There should be no reason that a single crime committed as a youth should follow a person for their entire lives. Although this decision is limited to those who have a single non-violent offense and no other convictions, it will come as a great relief to the many people who fall under the definition of youthful offender.

In State v. Ramsey, decided last week, the S.C. Supreme Court held that magistrates cannot conduct probable cause hearings for magistrate-level offenses. I have to disagree with the Court's reasoning on this one.

Essentially, the Court says that 1) the magistrate has no jurisdiction to hold a preliminary hearing (a hearing to determine whether or not there is enough probable cause for a case to go forward). Magistrates are required to hold preliminary hearings in those cases that are beyond their jurisdiction - those cases that carry a potential sentence of more than 30 days, but there is no authority for magistrates to hold preliminary hearings in those cases that they do have jurisdiction over - those cases that carry a potential sentence of 30 days or less.

2) Probable cause hearings in magistrate-level cases would take up too much time; to allow defendants to have probable cause hearings in magistrate-level cases "would undermine the summary nature of magistrate proceedings and unduly expand magistrate dockets."

The Court is correct that there is no statutory right to a preliminary hearing in the magistrate court, but it does not follow that the magistrate can not conduct a probable cause hearing if they see a need for it. If the magistrate only allows for a probable cause hearing in those cases where there is some question as to whether there is any evidence to go forward on, it will not expand the magistrate dockets - it seems to me that allowing the magistrate to dismiss a case for lack of probable cause before a day-long trial gets underway would save time, and would further the "summary nature of magistrate proceedings."

In State v. Bodenstedt, issued last month, the S.C. Court of Appeals held that increasing a defendant's sentence by 2 years was not an appropriate punishment for disruptive behavior. Bodenstedt pled guilty to obtaining money by false pretenses, with a recommendation of 1 year followed by probation and restitution. Instead of accepting the recommendation, the plea judge sentenced Bodenstedt to 6 years in prison but stated he would reconsider his sentence if full restitution was made within 10 days.

Following the plea, the judge called Bodenstedt back into the courtroom twice and increased his sentence by one year each time for being disruptive outside of the courtroom, for a total sentence of 8 years in prison. The Court of Appeals held that, although the judge has the power to sentence an individual for contempt of court, the judge does not have the power to increase an individuals sentence which has already been imposed, based on disruptive conduct after the plea. The sentence was reduced again to 6 years.

Contempt of court is a separate crime and, when the contempt is criminal (an unconditional penalty is imposed which cannot be "purged" by the defendant) and constructive (the conduct giving rise to the contempt occurs outside the presence of the court), the defendant is additionally entitled to the assistance of counsel before punishment can be imposed.

In State v. Parker, the S.C. Court of Appeals affirmed a conviction over the defendant's claim of double jeopardy, following a mistrial caused by prosecutorial misconduct. The Court notes that double jeopardy does attach, even when the defense moves for the mistrial, when the prosecutor's conduct was at fault:

A defendant who has moved for and been granted a mistrial based on prosecutorial misconduct may successfully invoke the Double Jeopardy Clause to prevent a second prosecution when the prosecutor’s conduct giving rise to the mistrial was intended to “goad” or provoke the defendant into moving for the mistrial. Oregon v. Kennedy, 456 U.S. 667, 676 (1982); State v. Mathis, 359 S.C. 450, 460, 597 S.E.2d 872, 877 (Ct. App. 2004) (applying same standard in South Carolina).

But, the Court of Appeals affirms the conviction, finding that the prosecutor in this case did not goad the defense into asking for the mistrial. What did the prosecutor do?

Prior to questioning the first police witness, the solicitor explained to the court that there was a videotape made of the crime scene that included graphic footage of the victim’s body. The solicitor redacted that footage and presented defense counsel with the redacted copy on the day of trial. The original videotape, however, was shown to the jury. The solicitor claimed it was unintentional. Defense counsel moved for a mistrial and dismissal with prejudice based on prosecutorial misconduct. He argued the solicitor’s case was not going well and the State was now privy to his defense tactics. The solicitor argued she did not know how the tapes were switched and there was no intention on her part to force a mistrial. The court admonished the solicitor, but denied the motion for a mistrial. . . .

Parker’s counsel argued that many times during the trial, the solicitor accused him of unethical conduct, badgered witnesses to concede they were merely testifying as directed to by Parker’s counsel, and stated several times in closing arguments that Parker’s counsel had coached the defense witnesses. He further argued the solicitor improperly relied on numerous facts that were not in the record and implied to the jury it was their community duty to convict Parker of murder. He finally argued the cumulative effect of the prosecutorial misconduct warranted a mistrial.

The jury deadlocked at the first trial, but the judge also ruled that there was prosecutorial misconduct and that the prosecutor forced the mistrial:

The judge found the solicitor’s comments during closing argument were improper, constituted prosecutorial misconduct, and were alone sufficient to warrant a mistrial. The judge also found the attacks on Parker’s counsel, the imposition of the burden on the jury to convict in order to protect the community, and the videotape warranted a mistrial. The court stated: “In my readings of those opinions it’s almost as if . . . this court can infer that the defendant was almost goaded into the position of asking for the mistrial. So based on the totality of the circumstances that [have] occurred in this trial . . . I will declare a mistrial.”

The Court of Appeals bases its decision on a letter from the 1st trial judge after the trial, stating that he did not rule on the double jeopardy issue, and their finding of "support in the record to affirm the finding that the solicitor did not intentionally goad Parker into moving for a mistrial."

If these facts do not illustrate a prosecutor engaging in misconduct sufficient to force a mistrial, I don't know what would. The Court of Appeals is bending over backwards here to not call the prosecutor on her misconduct, and by doing so is sanctioning that conduct. The message to prosecutor is, as usual, do whatever you want because you are immune. You are immune from lawsuit, most trial judges will look the other way, and we will certainly not tell you how to do your job.

Yesterday, in Hipp v. SCDMV, the S.C. Supreme Court upheld a circuit court's decision to enjoin the DMV's delayed suspension of Charles Hipp's driver's license 12 years after his DUI conviction. In 1993 Hipp was convicted of DUI in Georgia, but was a South Carolina resident. He paid a fine and fulfilled all conditions required by the Georgia court. 12 years later, in 2005, the South Carolina DMV suddenly decided to suspend his license based on the 1993 conviction. Hipp filed a declaratory judgment action to enjoin the suspension, which was granted by the circuit court, and upheld by the S.C. Supreme Court.

The circuit court cited three grounds for enjoining suspension of Respondent’s driver’s license: (1) that the applicable statute is ambiguous; (2) the doctrine of laches; and (3) that suspension twelve years after conviction violates the “fundamental fairness” required by due process. We find the circuit court’s conclusion as to fundamental fairness to be persuasive and so, affirm.[1]

A person’s interest in his driver’s license is property that a state may not take away without satisfying the requirements of due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed2d 90 (1971). Due process is violated when a party is denied fundamental fairness. City of Spartanburg v. Parris, 251 S.C. 187, 191, 161 S.E.2d 228, 230 (1968).

In State v. Chavis, 261 S.C. 408, 200 S.E.2d 390 (1973), South Carolina held that fundamental fairness was not violated by a suspension after a one-year delay. So, we now know that a one-year delay is ok, but a 12 year delay is not. What the opinion does not address is what the result is when the driver turns in their license to the clerk at the time of conviction, in which case S.C. law says that the suspension period runs from the date of conviction. In General Sessions, there is a DMV form that must be filled out and given to the clerk, which should serve as evidence of the defendant's relinquishment of their license.

I predict that a declaratory judgment action should also be successful where the DMV delays the license suspension and does not run it from the date of conviction per the statute, where the defendant surrenders his or her license and/or fills out the DMV form at the time of conviction.

I haven't had a chance to read the opinions yet, but in the meantime, from SCOTUS Blog:

The Court has released the opinion in Van de Kamp v. Goldstein (07-854), on whether supervising district attorneys possess absolute immunity against claims they failed to ensure line prosecutors disclosed constitutionally required information to criminal defendants. The ruling below, which held for the criminal defendant, is reversed and remanded. Justice Breyer wrote the opinion for a unanimous Court. The opinion is available here.

The Court has released the opinion in Arizona v. Johnson (07-1122), on whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense. The ruling below, which held for the defendant, is reversed and remanded. Justice Ginsburg wrote the opinion for a unanimous Court. The opinion is available here.

More power for police, more immunity for prosecutors. As Robert Guest puts it, "Welcome to SCOTUSland, where violating the constitution merits no penalty, yet driving without a seat belt warrants arrest."

In another opinion released today, Nelson v. U.S., the Supreme Court re-affirmed that federal courts cannot presume that a sentence within the guidelines range is reasonable. Doug Berman has an analysis at Sentencing Law and Policy:

Specifically, with Gall and Kimbrough and now Spears and Nelson, I sense that the Justices (perhaps save Justices Breyer and Alito) are persistently troubled by how prominent the federal sentencing guidelines remain in both district and circuit sentencing decision-making. Through Spears and now Nelson, the Justices have made extra efforts to say to lower courts that they need not, perhaps even should not, keep gravitating toward the guidelines. Though one would have hoped this message came through loud and clear through the rulings in Gall and Kimbrough, it is important to see the Justices willingness to keep smacking down the circuits that seem so unwilling to get with the full 3553(a) post-Booker program.

In State v. Muquit, the S.C. Court of Appeals held that a search warrant is not necessary for law enforcement to seize "an incarcerated defendant’s personal effects in his possession or the possession of the detention center or jail where he is being held;" it is not a violation of the Fourth Amendment.

In this case, the police obtained a search warrant that authorized a search of Muquit's person and the seizure of the clothes he wore during the robbery. Because the police seized the clothes not from Muquit's person as authorized by the warrant (he was wearing jail clothes at the time the warrant was executed), but they instead seized the clothes from Muquit's personal property at the jail, the search warrant was invalid. However, it did not matter that the warrant was invalid, because there is a greatly lessened expectation of privacy in your belongings held at the jail and there was no Fourth Amendment violation.

The Court points out that, although this is a matter of first impression in South Carolina, it is well-settled law in the federal courts that property already in custody may be seized.

Although there is no South Carolina case law directly on point, the federal courts view the issue of seizing property already in custody as well-settled. Authority to search an arrestee derives not only from the need to disarm him, but also from “the need to preserve evidence on his person for later use at trial.” U.S. v. Robinson, 414 U.S. 218, 234 (1973) (citing Agnello v. U.S., 269 U.S. 20 (1925); Abel v. U.S., 362 U.S. 217 (1960)). When an arrestee’s property is already in the custody of law enforcement as an incident of the arrest, the police may seize it at a later time as evidence relating to his offense. U.S. v. Edwards, 415 U.S. 800, 806-807 (1974) (citing Cooper v. California, 386 U.S. 58, 61-62 (1967)) (holding seizure of arrestee’s car impounded incidental to arrest was proper even though it occurred a week after arrest). In Edwards, the United States Supreme Court enunciated:

[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant's name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.

Id. at 807-808 (emphasis added) (footnotes omitted).

In State v. Douglas, the S.C. Supreme Court held that it was not appropriate for the trial court to qualify a forensic interviewer as an expert in the RATAC method, but that it was harmless error.

Here, Herod testified she had been employed as the Sumter County victim’s assistance officer since 1998. Although she did not have a college degree, she had attended a 40-hour training course on forensic interviewing, and had completed two weeks of training classes. She had interviewed hundreds of victims and had testified in court several times before. Herod testified she had been back for follow up courses and advanced courses and that there was a monthly national newsletter in order to enable her to keep up with things going on nationwide regarding the forensic interviewing process.

Herod also testified as to her utilization of the R-A-T-A-C method to establish a rapport with child victims, and testified as to her interview with the victim in this case. Ultimately, Herod testified that based on the interview, it was her opinion the victim needed to go to the Durant Center for a medical exam.

We find the testimony given by Herod in the present case simply was not required to be presented by an expert witness.[2] Herod testified only as to her personal observations and experiences, and her interview with the Victim in this case. Accordingly, we find it was unnecessary for the trial court to have qualified her as an expert. However, although Herod did not need to be so qualified in this case, we nonetheless affirm the result reached by the Court of Appeals, because Douglas suffered no prejudice either as a result of Herod’s testimony or by her qualification as an expert.

The Court held that it was harmless error because the jury was not likely to give her testimony more weight because she was an expert (this assertion is "untenable," the Court says). Also, the testimony of the forensic examiner was not "vouching" for the witness' credibility ("There is no evidence whatsoever that Herod believed the Victim to be telling the truth").

Pleicones' dissent is more intellectually honest, as he points out that "qualification as an expert clothes the witness with an air of authority that does not attach to 'ordinary' witnesses." Of course the jury is going to attach more importance to the testimony of someone the judge admits as an "expert." Also, despite the majority's assertion that there was "no evidence whatsoever" that the witness was vouching for the child's credibility, that seemed to be the sole reason for the states' calling the witness to the stand.

Herod’s testimony went to an ultimate issue for the jury: the victim’s credibility. Herod testified that in applying the RATAC method, she and the victim “talk a lot about telling the truth and telling a lie and we make an agreement with each other that I will tell her the truth and that she will tell me the truth” and “if the child agrees to do that” Herod continues the interview. Herod testified that after concluding the interview, she determined “that [the victim] needed to go to the Durant Center for a medical exam . . . .” I agree with the Court of Appeals that the only reasonable conclusion to be drawn from Herod’s testimony is that, based upon her training, she believed that the victim was being truthful. Juries do not require the assistance of human “truth detectors” in assessing the credibility of testimony.

Pleicones points out that, although there was physical evidence that the child had been abused, nothing other than the child's testimony connected the defendant to the crime. The interviewer's qualification as an expert, coupled with her vouching for the witness' believability, was not harmless. I wonder whether this outcome would have been the same if this had been any other type of crime (other than DUI, of course). No-one wants a child abuser to escape punishment or to remain free to abuse again, but that does not mean that we should afford a person accused of child abuse any less due process than any citizen accused of any crime is entitled to.

In State v. Bickham, the S.C. Supreme Court held that it is ok for a trial judge to enforce a solicitor's plea offer of a "package deal." The prosecutor informed the defense that they could plead to two counts of CSCM (criminal sexual conduct with a minor) 2nd degree and one count of CSCM 1st degree, pleading under N.C. v. Alford as to the CSCM 1st count, or else the prosecutor would call all three cases to trial separately and ensure that the defendant received life without parole due to statutory enhancements.

The defendant accepted the plea offer, but during the plea asked Judge Few to allow him to withdraw the Alford plea to CSCM 1st. Judge Few refused, offered to allow the defendant to withdraw his plea as to all charges or not to withdraw at all, and the defendant decided to go forward with the plea.

Whether to allow a defendant to withdraw a guilty plea is in the trial court's discretion. And whether to accept or decline a guilty plea is in the trial court's discretion. But, this case raises several issues. First is the practice of some prosecutors of trying to stop a defendant from pleading to some charges and not others. If a defendant says, I am guilty of this but I am not guilty of that - he should have every right to enter a plea in court to the offense that he is in fact guilty of, and then the prosecutor has every right to call the remaining charges to trial if he or she wishes.

Another issue raised by this case is Alford pleas. N.C. v. Alford allows a defendant to enter a plea of guilty even while protesting his innocence, where there is overwhelming evidence against the defendant and where a substantial benefit is being offered to the defendant. (A plea of Nolo Contendere is authorized by S.C. Code Sec. 17-23-40, but only in misdemeanor cases).

Alford pled guilty to 2nd degree murder, thereby avoiding the possible death penalty under N.C. law for 1st degree murder, and his sentence of 30 years was upheld by the U.S. Supreme Court. N.C. v. Alford should not be a tool by which prosecutors and defense attorneys can force pleas out of defendants, but that is how it is most often used. Although there are times when it is in the client's best interest, there is something inherently wrong with a person standing in court and saying I am innocent even as they enter a plea of guilty.

On the other hand, I have had prosecutors tell me that defendants do not have a right to plead guilty. I haven't found any support for this statement, and if any readers have some I would love to see it. There is a statutory provision, under S.C. Code sec. 17-23-120 and 130, which says that a defendant cannot plead guilty under a waiver of indictment without the solicitor's consent after investigation. Other than this, I find no support for the assertion that a solicitor must consent to a defendant's plea of guilty as charged once they have been indicted.

Although, as the Court found in Bickham, it is in the trial court's discretion to allow a defendant to withdraw a plea, this case could have been an opportunity for the Court to address the issue of whether a defendant has the right to plead guilty. I cannot see where a trial court, any more than a prosecutor, can or should say that a defendant can plead guilty to Charge A, but only if he also pleads guilty to Charge B, where the defendant maintains his innocence as to Charge B. The court in this case should have allowed the defendant to enter the plea to both counts of CSCM 2nd and then proceed to trial on the CSCM 1st if the prosecutor chose to do so.

Update: Laura Hiller, in the comments, has pointed out that Alford itself (FN 11) says that a defendant does not have a constititutional right to plead guilty:

"A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, although the States may by statute or otherise confer such a right." N.C. v. Alford. If the court has the discretion to reject any plea, by inference, a Defendant does not have the absolute right to enter a plea.

This leaves the question as to whether there is a state right to plead guilty in South Carolina. By statute, the court has said that an un-indicted defendant cannot plead guilty without the solicitor's consent; by implication this should mean that an indicted defendant can plead guilty regardless of what the prosecutor thinks.

in State v. Mercer, the S.C. Supreme Court holds that it is "clear error" for the trial judge to exclude testimony that a Spect scan revealed an abnormality in the defendant's brain during the penalty phase of a death penalty trial. It was, however, harmless error in this case.

A. “Spect Scan”

Dr. Steedman is a medical doctor who is board certified in neurology and psychiatry. Dr. Steedman analyzed a “SPECT Scan” conducted on Mercer’s brain.[6] The SPECT Scan was initially reviewed by a radiologist who noted a “questionable abnormality.” Dr. Steedman was prepared to render a stronger finding of an abnormality. The State objected strenuously against such testimony, claiming surprise and prejudice. After an offer of proof and lengthy discussion, the trial court sustained the objection on the basis of Rule 403, SCRE, and a so-called “discovery order” violation. This ruling rises to the level of an abuse of discretion.

Application of Rule 403 should be cautiously invoked against a capital defendant in the penalty phase, especially in light of the due process implications at stake when a capital defendant seeks to introduce mitigation evidence.[7] The probative value of Dr. Steedman’s excluded testimony was, as a matter of law, not substantially outweighed by its potential for prejudice, as a result of the purported late disclosure or otherwise. Reliance on the so-called “discovery order” cannot withstand even minimal scrutiny, for there was no formal discovery order.[8] In any event, Dr. Steedman was disclosed to the State, as was the general substance of his testimony.

Despite the fact that the Court found the error harmless in this case, this language shows the advances that courts have made in accepting testimony regarding brain science and the impact it has on sentencing issues. It was harmless error because, although some of Steedman's testimony regarding the abnormality was excluded, there was already testimony admitted about the Spect scan, the abnormality, and Mercer's cognitive defects.

The Court upheld the conviction and death sentence, holding that the trial court did not abuse its discretion in excluding a juror as not death-qualified, in excluding testimony of Mercer's co-defendant's lawyer, in preventing Dr. Steedman from offering expert psychiatric testimony, in denying a post-trial motion for additional funds to test the co-defendant's gloves for gun shot residue, or in denying a post-trial motion for a new trial based on after-discovered evidence that the co-defendant had confessed to a cell mate that he had committed the murder and not Mercer.

In Ex Parte Mamie L. Jackson, released January 8, 2009, the South Carolina Court of Appeals held that where an individual is held in 1) constructive, and 2) criminal, contempt, that individual must be advised of their right to counsel. Jackson's sentence of 90 days for contempt of court (for failing to abide by court order requiring her to stop "accumulating junk, clutter and debris on her property") was reversed where Jackson was not advised of her right to counsel and the record did not show that the court provided any warning of the dangers of self-representation.

Courts have inherent power to punish individuals for contempt, however contempt can be civil or criminal:

The determination of whether contempt is civil or criminal hinges on the underlying purpose of the contempt ruling. Id. at 456-57, 652 S.E.2d at 761. If the primary purpose of contempt is to coerce a party to do the thing required by the court for the benefit of the complainant, then the contempt is considered civil. Id. However, if the principal function of the contempt is to preserve the court’s authority and to punish a party for disobedience of the court’s order, then it is criminal. Id. Punishment for civil contempt is remedial in that sanctions are conditioned on compliance with the court’s order, whereas an unconditional penalty is considered criminal contempt because it is solely and exclusively punitive in nature. Id.

The distinction is important, because criminal contempt triggers additional constitutional safeguards:

The Sixth and Fourteenth Amendments to the United States Constitution ensure that an individual be afforded the right to assistance of counsel before he or she can be validly convicted and punished by imprisonment. State v. Thompson, 355 S.C. 255, 261-62, 584 S.E.2d 131, 134-35 (Ct. App. 2003). The right to counsel is by far the most pervasive, for it affects a person’s ability to assert any other rights he or she may have. Id. The erroneous deprivation of this right constitutes per se reversible error. Id.

Contempt can also be either direct contempt, which is conduct that occurs within the presence of the court, or constructive contempt, which is conduct that occurs outside the presence of the court such as in Jackson's case (the contemptuous conduct involved leaving debris in her yard after being ordered not to). The Court limits the holding in this case to situations involving criminal and constructive contempt.

In U.S. v. Dunphy, an opinion interpreting the recent sentencing guidelines amendment for crack cocaine, the Fourth Circuit Court of Appeals held that an amended sentence based on the crack cocaine reduction cannot be reduced below the minimum sentence in the new, amended, guideline range:

The district court here expressly considered the § 3553(a) factors in making the determination (1) that a reduction of Dunphy’s term of imprisonment was warranted and (2) that the extent of the reduction for Dunphy should be to the minimum of the amended guideline range. It properly did so in accord with the limits described in U.S.S.G. § 1B1.10(b), refusing to go below the minimum of the amended guideline range.8 J.A. 82-83 . . .

When a sentence is within the guidelines applicable at the time of the original sentencing, in an 18 U.S.C § 3582(c) resentencing hearing, a district judge is not authorized to reduce a defendant’s sentence below the amended guideline range.

In State v. Parker, the South Carolina Court of Appeals affirmed the murder and armed robbery conviction of a 16 year old defendant, holding that his statement was not involuntary. The Court reviews the factors involved in the determination:

In determining whether a confession was given “voluntarily,” this Court must consider the totality of the circumstances surrounding the defendant’s giving the confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed. 854 (1973). As the United States Supreme Court has instructed, the totality of the circumstances includes “the youth of the accused, his lack of education or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” Id. (internal citations omitted). Furthermore, no one factor is determinative, but each case requires careful scrutiny of all the surrounding circumstances. Id.

In this case, the defendant was 16 years old, he had finished the sixth grade, and was of below average intelligence. There was no evidence that he was advised of his Miranda rights other than the testimony at trial of the police (there was no written Miranda form, even though one officer testified it was customary for them to use the written form, and there were no Miranda warnings given on the portion of the interview that was recorded). He was interviewed for approximately 3 and 1/2 hours, and had not slept for at least a full day before the interview (he was running from the police in the woods, and when he was finally caught he was taken to the hospital to be checked for frostbite and hypothermia). During the chase, police shot at him numerous times.

I suppose one thing that this case illustrates is, under the current law regarding confessions, the need to win the suppression argument at the trial level. On appeal, the standard of review is "abuse of discretion," and the appellate court will not overrule the trial judge's findings of facts. For example in this case, the trial judge specifically found that the testimony of the police officers that they gave Miranda warnings was credible and the defendant's testimony that he was not given warnings was not credible.

As in most types of suppression hearings, what this means is that if the officer has no problem lying on the stand, and many don't, there is no need to actually give Miranda warnings. They just have to say they did at trial - any judge is going to find the police officer credible and the defendant not credible. The only way to prevent cops from circumventing the rule and then lying in court is to require proof that Miranda was given, beyond the testimony of the officer. Require that confessions be recorded, and that Miranda be given on the recording, or require that a written form be used.

The officer in Parker also admittedly used the Reid technique during the interview. Telling the juvenile that what they did is ok, that it is understandable and he knows the juvenile didn't mean to do it, is one of the techniques used by police, in conjunction with other types of lies that are sanctioned by the courts, that will result in confessions - whether true or false. The Reid technique was discussed at length in Miranda v. Arizona, as one of the evils that they were trying to avoid by requiring Miranda warnings.

To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and, from outward appearance, to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, [Footnote 12] to cast blame on the victim or on society. [Footnote 13] These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already -- that he is guilty. Explanations to the contrary are dismissed and discouraged . . .

From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: to be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must "patiently maneuver himself or his quarry into a position from which the desired objective may be attained." [Footnote 23] When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.

Even without employing brutality . . . the very fact of custodial interrogation exacts a heavy toll on individual liberty, and trades on the weakness of individuals.

In South Carolina, the standard for the granting of state habeas relief is a high one; "[a] writ of habeas corpus is reserved for the very gravest of constitutional violations 'which, in the setting, constitute[] a denial of fundamental fairness shocking to the universal sense of justice.'"

In Williams v. Ozmint, released December 22, the South Carolina Supreme Court denied habeas relief in a death penalty case, where the prosecutor had stated to the jury three times that he expected the death penalty, without objection from the defense. Williams had already been through his direct appeal and two PCR petitions in state court, and a federal habeas petition that was granted by the district court but denied by the Fourth Circuit Court of Appeals.

The Court discussed the history of habeas in S.C. state courts, noting that, although habeas is still a viable form of relief, under the Post-Conviction Relief Act PCR essentially has replaced most forms of habeas relief. Habeas petitions are still admitted, essentially as a safety valve for egregious errors that somehow were not corrected by any other means, and it is difficult at best to obtain relief by state habeas petition.

The Court distinguished State v. Northcutt , in that, although the prosecutor in Northcutt also stated to the jury that he expected the death penalty, the actions of the prosecutor were more egregious ("The solicitor in Northcutt, an infant homicide case, not only stated that he “expected” the death penalty, but also declared that it would be “open season on babies” if the jury did not return the death penalty and staged a funeral procession with a black shroud draped over the victim’s crib").

In U.S. v. Whorley, the 4th Circuit Court of Appeals affirmed a substantial upward variance to 240 months in a child porn case (the government filed a motion seeking an upward departure of 262 to 327 months’ imprisonment; the guidelines range was 87 to 109 months’ imprisonment but the statute provided for a mandatory minimum of 180 months' imprisonment), citing Gall v. United States, showing again that Gall is a two-edged sword, permitting courts leeway in departing upwards from the sentencing guidelines as well as downwards:

The district court’s consideration of Whorley’s sentence in this case was thorough, and the sentence it imposed was amply supported by the facts and by legally appropriate considerations. In these circumstances, we cannot agree with Whorley that the district court abused its discretion and acted unreasonably.

In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court repeatedly instructed that appellate courts defer in these circumstances. With respect to a departure or variance sentence, such as before us, the Court stated:

[The appellate court] may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.

Gall, 128 S. Ct. at 597. Repeating these instructions, the Court stated:

But it is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. On abuse-of discretion review, the Court of Appeals should have given due deference to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.

UNITED STATES v. WHORLEY 25 Id. at 602. See also United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). In following these instructions, we have affirmed departures encompassing the range involved here. See, e.g., United States v. Evans, 526 F.3d 155, 161-66 (4th Cir. 2008) (affirming a 316% upward variance); United States v. Curry, 523 F.3d 436, 439-41 (4th Cir. 2008) (affirming a 13% downward departure); Pauley, 511 F.3d at 474-76 (affirming a 46% downward departure). In Evans, we noted, "We recognize that the sentence [constituting a 316% variance] imposed on Evans may not be the only reasonable sentence, but it is a reasonable sentence, and the Supreme Court [in Gall] has directed that any reasonable sentence be upheld." 526 F.3d at 166.

In this case, we are presented with no procedural or substantive errors in the district court’s determination that the goals of federal sentencing were best served by the 240- month sentence, and therefore we conclude that the sentence was not unreasonable.

The Court also rejected Whorley's claims that

1) § 1462 is facially unconstitutional in prohibiting receipt of obscene materials because receiving materials is an incident of their possession, and possession of obscene materials is protected by the holding of Stanley v. Georgia, 394 U.S. 557 (1969); (2) that § 1462 is facially unconstitutional because the term "receives," when used in the context of a computer, is unconstitutionally vague; (3) that § 1462 is unconstitutional as applied to text-only e-mails, arguing that text alone cannot be obscene; and (4) that § 1466A(a)(1) is unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors.

In State v. Kirton, the S.C. Court of Appeals has continued the child sexual abuse exception to the rule against propensity evidence. At least, unlike the S.C. Supreme Court decision in State v. Gaines, the Court of Appeals outlines the correct rule ala State v. Wallace, although in the end I don't believe it follows it.

[In Wallace,] the Court of Appeals reversed, holding that, per Lyle, it is not sufficient that a prior crime be similar to the one at hand, but a connection must be established between the two. The Court goes on to analyze two New York cases which also held that a connection must be established, People v. Molineux, 61 N.E. 286 (N.Y. 1901) and People v. Romano, 82 N.Y.S. 749 (N.Y. App. Div. 1903), that were also relied on by the court in Lyle.

In Kirton, the Court of Appeals analyzes the Lyles jurisprudence, recognizes that there must be a connection between the crime sought to be admitted under the Lyles exception, and finds that, because the alleged victims report that defendant engaged in a pattern of escalating sexual behavior as to each,

Kirton’s prior abuse of the minor victim was clearly “part of an overall plan or scheme devised by him to perpetuate the type of misconduct that occurred.” Tutton, 354 S.C. at 330, 580 S.E.2d at 192. The probative value of the evidence was so great that it substantially outweighed the danger of unfair prejudice, confusion of the issues, or misleading the jury. The trial court properly found the evidence was admissible to show a common scheme or plan, and Kirton’s continuous illicit conduct toward Victim was extremely probative to prove the charged criminal sexual conduct occurred.

The Court is basically saying, "Yes, the rule is that there must be a connection between the two instances. Look - we are taking great pains to enunciate this rule. But, although there is no connection between these two, they are sufficiently similar that we will admit the prior bad act."

Ok. No-one likes people who sexually abuse minors. Everyone wants them to be convicted. So, what's wrong with giving the state every possible weapon to use to make sure they are convicted? If you have a rule, which makes sense, either follow it, or create a stated exception to the rule. Don't say one thing and then do another.

Other jurisdictions have stated exceptions that allow admission of prior offenses when the defendant is charged with sex crimes against children. Until Wallace, our appellate courts have created an unstated exception allowing the admission of prior offenses when a defendant is charged with sex crimes against children. Bad facts make for bad law. The danger in our Supreme Court making an unstated exception for sex crimes against children to the rule against propensity evidence is that the exception will bleed into every other type of trial.

I believe that Wallace should be affirmed, but if the S.C. Supreme Court is not going to recognize, in Wallace, the requirement of a connection between two offenses before it is admissible under Lyle, I hope that they will create an exception for cases involving sex crimes against children, rather than allowing this mess to potentially deprive every defendant of a fair trial.

It should go without saying that a defense attorney has a duty to conduct an independent investigation in a criminal case. In Lounds v. State, the South Carolina Supreme Court granted post conviction relief based on 1) the trial attorney's failure to investigate or prepare his case; and 2) statements made by trial counsel during closing argument that tended to make the state's case for them.

A criminal defense attorney has a duty to perform a reasonable investigation. Ard v. Catoe, 372 S.C. at 331, 642 S.E.2d at 597. “[W]hile the scope of a reasonable investigation depends upon a number of issues, at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case.” Id. at 331-32, 642 S.E.2d at 597 (internal quotes and citation omitted).

Ordinarily the Court would not name the attorney in an appellate opinion, but it appears that Lounds' attorney, Greg Newell, is suspended from the practice of law (and had been suspended at least twice before, according to FN 2 of the opinion).

The Court makes much of the fact that Newell had been on notice for 9 months that his client was facing life without parole, which is unfortunate - the standard is and should be the same whether a defendant is facing life without parole or a minimal prison sentence. Counsel has a duty to investigate his or her case and to zealously defend his or her client's interests. This is not an isolated incident, and occurs more often than we should be comfortable with - attorneys who plead every case sometimes are forced to trial by their clients, who stubbornly insist that they are not guilty and refuse to plead. An attorney who has no intention of trying a case, and whose strategy until the bitter end is to make his client plead out, is not going to be investigating the case and is not going to be prepared for trial.

Newell, on the other hand, never spoke to his client until the morning of his trial, and Newell obviously believed his client was guilty and was not interested in fighting for him, as was evident from the statements in closing argument:

The victim told a story. And his story was that there was an armed robbery. And in the course of that armed robbery he was taken to his parents’ home, let out, escaped, and then called the police. My client’s story is, and he admitted, I deal drugs. I admit that I’m a criminal in that respect, but I did not do this armed robbery. I came there to collect some money I was owed. The guy had built up an account, I mean, and it was getting too big. And I wanted my money. And I brought along a little muscle.… I brought along a little muscle with me. Two against one, hey, we’re going to – we want our money. You owe us money. We want our money. A little bit of leaning, not necessarily beating him up. But I’m standing there, two big guys, I need my money. Okay.

Lounds was charged with kidnapping and with armed robbery. The statements above that Newell made to the jury conflicted with his client's testimony and essentially established the elements of the state's case for them. Lounds claimed that he knew the alleged victim, that the alleged victim used drugs with him, hung out with him on a regular basis, owed money to him, and went with him voluntarily to get money that was owed to Lounds. There were multiple witnesses that could have corroborated Lounds' version of events, but Newell did not interview them or call any witness to the stand other than Lounds.

A defense lawyer's duty to investigate his case goes beyond simply calling, interviewing, and subpoenaing witnesses (and talking to your client before the first day of trial). I believe that in any case where there are multiple witnesses or questionable witnesses, a defense lawyer has a responsibility to employ defense investigators as well. The government has the police department or agency that made the charges, SLED, the FBI, the DEA, whoever they need to call in to assist with the prosecution, and a full staff at the prosecutor's office including multiple attorneys and full time in house investigators, all trying to make a case against the defendant.

Due process should require access to at least one investigator, and to experts who can evaluate the state's evidence, in cases where the state has employed experts. In cases (most) where the defendant cannot afford to retain an attorney, investigators, and experts, the responsibility is on the state to provide the funding to ensure that due process is provided to indigent defendants, a responsibility that is being ignored nationwide by legislators who do not appreciate the fact that a criminal justice system cannot function within the bounds of the Constitution unless effective indigent defense is fully funded.

In Gowdy v. Gibson, the S.C. Court of Appeals affirmed the forfeiture of $146,050.00, which was found in a safe in the attic of Gibson's home while executing a search warrant.

A search of the premises outside the house yielded a set of digital scales, a plastic medicine bottle containing 24.4 grams of crack cocaine, and a plastic bag containing 11.7 grams of marijuana. The items were found approximately 140 feet from the location of the safe, concealed under bricks, behind a detached garage located behind the residence.

Another search warrant was executed at 420 Farley Street, the location of a building being remodeled by Gibson for use as a beauty salon. A plastic bag containing 713 grams of cocaine was found hidden in the ceiling at that location.

The court found that this was sufficient probable cause for the forfeiture and was distinguishable from Pope v. Gordon, in which the court of appeals found no probable cause where the money was seized from a business account into which proceeds from a car wash were deposited.

Once the state has shown probable cause for a forfeiture, the burden then shifts to the owner to show by a preponderance of the evidence that they were not aware of the use that the money was put to which made it subject to seizure. In this case, Gibson's mother claimed that the money was her life savings from her job; however, she was unable to provide any documentation of the source of the money or rebut the state's evidence that it was connected to drug activity. Also, she did not have access to the safe and did not know its combination.

In Turner v. State, the S.C. Supreme Court reviews when counsel must advise a defendant of the right to appeal, and reverses the PCR judge's grant of a belated appeal based on counsel's failure to advise the petitioner of his right to appeal following a guilty plea.

Following a trial, counsel is required to make certain the defendant is made fully aware of the right to appeal. White v. State, supra. In the absence of an intelligent waiver by the defendant, counsel must either initiate an appeal or comply with the procedure in Anders v. California, 386 U.S. 738 (1967). Id. However, the standard for a guilty plea differs. Absent extraordinary circumstances, such as when there is reason to think a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal) or when the defendant reasonably demonstrated an interest in appealing, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea. Roe v. Flores-Ortega, 528 U.S. 470 (2000); Weathers v. State, 319 S.C. 59, 459 S.E.2d 838 (1995).

Because there was no finding on the record in the PCR court that petitioner had asked his plea counsel to file a direct appeal, or of other extraordinary circumstances that would require counsel to advise petitioner of his right to appeal from a guilty plea, the Supreme Court reversed and remanded the case for an evidentiary hearing.

The U.S. Supreme Court heard arguments Tuesday in two criminal appeals, Arizona v. Johnson and Cone v. Bell. In Arizona v. Johnson the government is trying to increase officers' abilities to conduct Terry frisks, or pat downs for weapons, during police encounters such as traffic stops. Terry v. Ohio said that an officer must suspect that "crime is afoot" before an officer can conduct a pat-down, but in Johnson the government seeks to expand that authority to situations where there is no suspicion of wrongdoing but the officer suspects the person may be armed and dangerous. The National Association of Criminal Defense Lawyers filed an amicus brief. The transcript from oral arguments is available on the Supreme Court's website.

The issue on appeal in Cone v. Bell is

whether a federal habeas claim is “procedurally defaulted” because it has been presented twice to the state courts, and whether a federal habeas court is powerless to recognize that a state court erred in holding that state law precludes reviewing a claim.

However, at the oral arguments, all parties seemed to agree that the claim of procedural default made no sense - a claim would be procedurally defaulted if it had not been presented in the state courts, but in this case it had been presented to the state courts, although the lower courts did not fully rule on the issue.

The trial prosecutor withheld evidence from the defense regarding the defendant's drug use, which was important because the defense was that when the murders were committed the defendant was acting under a drug induced psychosis. The prosecutor at trial said that the defense's theory was "baloney" and argued to the jury that the defendant was a drug dealer and not a drug user, and yet had in his file evidence that the defendant was a drug user and was on drugs at the time of the crime. Although not central to this appeal, the prosecutor had withheld other evidence in the case as well, including statements given by the state's witnesses that were material for cross-examination.

It would seem that we need strong cases dealing with prosecutorial misconduct in withholding evidence, given that it happens so often. But, the fact is we already have strong cases denouncing the withholding of evidence, and it does not make a difference. Prosecutors do not always turn over evidence that will hurt their case, despite the clear requirement to do so in Brady and Kyles v. Whitley. Apart from cases where the evidence is not provided and the defense may never learn what is out there that should have been provided, there is the common practice of withholding evidence until the last minute, and springing witness information or other Brady material on the defense on the day of trial, or the Friday before trial begins.

No harm, no foul, right? The trial judges and the appellate courts will not give relief to a defendant unless he can show prejudice, and if he received the information before the start of trial, or even during trial, there is no prejudice? Because it is not reversible error does not make it ethical. We need prosecutors who uphold the rule of law even in their own office, and who seek justice not convictions. If they cannot police themselves, the trial courts and appellate courts should be providing some type of sanctions for misconduct - if not dismissal, then exclusion of evidence provided at the last minute.

Now, none of this is going to happen in Cone v. Bell, but one more strongly worded opinion regarding the impropriety of withholding evidence while asking a jury to send a person to prison, or even to kill that person, will not hurt one bit.

The South Carolina Court of Appeals, in In re Cannupp, decided this week, held that there is no constitutional right against self-incrimination in a sexually violent predator proceeding.

the circuit court’s refusal to charge the jury that Appellant had a constitutional right to decline to take the witness stand was neither erroneous nor prejudicial. Under the current law, there exists no constitutional right to decline to take the witness stand in a civil proceeding, and it is not disputed that proceedings under the Act are civil in nature. Further, any adverse inference, permissible or impermissible, that the jury might have drawn from Appellant’s absence from the witness stand would not be outcome determinative in light of the overwhelming evidence that Appellant met the Act’s definition of a sexually violent predator.

Pulido is a rather un-exciting decision by the U.S. Supreme Court that was released yesterday. Essentially, "a conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one." However, the error is not structural error, and it is subject to harmless error analysis.

Pulido was convicted in California of felony murder. The jury instructions permitted the jury to find him guilty of felony murder if he formed the intent to aid and abet the underlying felony 1) before the murder (appropriate jury instruction); or 2) after the murder (incorrect jury instruction). The California Supreme Court upheld the verdict, but the federal district court granted habeas relief because there was no way to determine which theory the jury relied on in finding guilt, and after finding that "instructing the jury on the invalid theory had a 'substantial and injurious effect or influence in determining the jury’s verdict.'"

The Ninth Circuit Court of Appeals affirmed, calling it a structural error, and yet engaging in harmless error analysis. The U.S. Supreme Court reversed, because structural error is error that "defies analysis by harmless-error standards . . . because the consequences are necessarily unquantifiable and indeterminate that automatic reversal is required when such errors occur." (dissenting opinion). The issue at hand, where the jury instructions contain alternative theories of guilt, one of which is incorrect, is subject to harmless error analysis and therefore is not structural.

The way that I read Pulido, everyone agreed in the end. Pulido agreed with the State that the Court of Appeals was incorrect in calling the error structural error, but maintained that it was not harmless error. The U.S. Supreme Court agreed with Pulido and the State, reversed because it was called "structural error," and remanded for a finding of whether there was harmless error. The dissent agreed with the majority opinion that it was not structural error, but thought that it was silly to remand the case based on misuse of the term "structural error," because all of the courts beneath had already engaged in a harmless error analysis and found that the error was not harmless. Therefore, the case is being remanded for a repeat of the same analysis that has already been done, likely with the same result, but this time they must leave out the words "structural error."

Apparently, there are still individuals being held on community supervision revocations which are longer than their original sentences, in violation of State v. McGrier which was decided in March 2008, because the state was taking the position that McGrier should not be applied retroactively. Earlier this week the South Carolina Supreme Court issued a decision in Bennett, et. al. v. State, holding that McGrier is to applied retroatively and the inmates should be released:

In our view, McGrier’s retroactivity is patently clear; however, we take this opportunity to remove any doubts. We now hold that our decision in McGrier is to be applied retroactively. See Pinckney v. Warren, 344 S.C. 382, 391, 544 S.E.2d 620, 625 (2001) (recognizing that retroactivity may be extended when justice requires and innocent persons will be adversely affected).

In Robinson v. State, decided earlier this week, the South Carolina Supreme Court held that it is ineffective assistance of counsel where plea counsel failed to challenge the use of a prior uncounseled magistrate court conviction to enhance a trafficking sentence.

On September 16, 2003, Petitioner was indicted on one count of trafficking crack cocaine. At the plea hearing, the State and the plea judge noted that Petitioner had a prior conviction for possession of marijuana from 2000. The plea judge informed Petitioner that, consistent with a second offense, the minimum sentence he could receive would be seven years and the maximum would be thirty years. Plea counsel did not object to the trafficking offense being treated as a second offense and Petitioner was sentenced to twenty years.

To be successful in a PCR claim based on ineffective assistance of counsel, Strickland v. Washington requires not only a finding of ineffective assistance of counsel, but also a finding of prejudice caused by the ineffectiveness; meaning a reasonable probability that the outcome would have been different but for the mistakes made by the trial lawyer.

The Court held that even though the sentence Robinson received, 20 years, was within the range for a trafficking 1st offense, prejudice was still shown from the error. The sentencing range for trafficking crack cocaine, 28 - 100 grams, 2nd offense is 7 to 30 years, and the sentencing range for trafficking crack cocaine, 28 - 100 grams, 1st offense is 7 to 25 years (S.C. Code Sec. 44-53-375), both are violent offenses, non-parolable, and the defendant must serve 85% of the time to which he is sentenced. But, whether the sentence received is within the sentencing range is irrelevant in showing the absence of prejudice (see Thompson v. State).

Under Nichols v. United States, a prior drug conviction cannot be used to enhance a sentence if it was uncounseled and if the defendant served any jail time on the prior conviction. Although Robinson was not immediately sentenced to jail on his prior magistrate level offense, he ended up serving jail time after he failed to complete community service. Because his plea lawyer failed to object to the use of the prior conviction to enhance his sentence to trafficking 2nd offense, Robinson's case is remanded, not for a new trial, but for re-sentencing.

The South Carolina Court of Appeals held today in Pelzer v. State that it is ineffective assistance for defense counsel not to advise his or her client as to lesser included offenses prior to entering a guilty plea.

Pelzer was charged with first-degree burglary, attempted second-degree arson, criminal domestic violence of a high and aggravated nature (CDVHAN), and violation of a family court restraining order. Ultimately he pled guilty to second-degree burglary, attempted second-degree arson, and violation of a family court restraining order, and received a sentence of 15 years. The CDVHAN charge was dismissed.

The PCR court granted relief in this case, and the Court of Appeals affirmed, because Pelzer's lawyer failed to advise him of the lesser included offense of attempt to burn, which carried a potential sentence of 0-5 years (less than attempted second degree arson). The reasoning is that if Pelzer had known about the existence of the attempt to burn statute, he may have decided not to plead guilty and taken the case to trial instead.

I am not sure where this leaves Pelzer, as the Court granted post conviction relief as to the arson charge only, allowing the remaining convictions to stand, and the Court does not say what Pelzer's individual sentence was for each charge, only that, at the plea, he received a total of 15 years on all charges. If he received 15 years on the burglary second degree charge at the plea, he is still in the same place he started and it would make no sense to proceed to trial on the arson charge.

At any rate, the holding of the Court and the message that this case is meant to convey is that, before advising a client as to whether they should proceed to trial or accept a plea offer, defense counsel must ensure that they advise their client as to every possible lesser included offense as to each of their charges, and to not do so may constitute ineffective assistance.

In State v. Dickey, decided October 29th, the South Carolina Court of Appeals upheld a security guard's conviction for voluntary manslaughter and 16 year prison sentence. The evidence at trial showed that after the security guard, Dickey, evicted an extremely intoxicated person named Boot from the Cornell Arms, Boot came at Dickey on the sidewalk outside the apartments. Dickey shot and killed Boot, and was charged with murder. There was conflicting testimony as to exactly what was said as Boot and one other person came at Dickey, but whichever testimony was believed, there was an extremely intoxicated and angry individual advancing on the security guard before the security guard fired the shot.

Dickey's testimony was that Boot said to his friend "let's do this," as they advanced on him, and Boot reached under his shirt. Dickey told law enforcement at the scene that Boot came at him with a bottle he pulled from under his shirt, and a broken liquor bottle with some of Boot's blood on it was found at the scene.

South Carolina's "stand your ground" act, or the "Protection of Persons and Property Act" went into effect on June 9, 2006, and Dickey was charged with murder on April 29th, 2004. The Protection of Persons and Property Act essentially says that, if you are where you have a right to be, you do not have a duty to retreat when attacked, and can use deadly force to defend yourself:

A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60.

Prior to the passage of the Protection of Persons and Property Act, there was a duty to retreat except when in your own home or place of business (the Castle doctrine), unless to do so would place you in greater danger.

The Court outlines the factors that must be present to get a self-defense instruction to the jury, and notes that self defense is not an affirmative defense - once raised, it must be disproved by the prosecution:

(1) That he was without fault in bringing on the difficulty, (2) That he actually believed he was in imminent danger of losing his life or of sustaining serious bodily injury [], or he actually was in imminent danger of losing his life or of sustaining serious bodily injury, (3) If his defense is based on his actual belief of imminent danger, that a reasonable prudent man of ordinary firmness and courage would have entertained the same belief [], or if his defense is based on his being in actual and imminent danger, that “the circumstances were such as would warrant a man of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm, or losing his own life, (4) That he had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in the particular instance.

The Court held that the Protection of Persons and Property Act is not retroactive and therefore did not apply to Dickey; they also held that the jury could have found that Dickey was at fault in bringing on the difficulty because he drew his gun after Boot had left the apartment; and they found that the jury could have found that Dickey had a duty to retreat; therefore it was appropriate to send the case to the jury.

Even without applying the Protection of Persons and Property Act, the Court of Appeals could easily have reversed this conviction. The Court could just as easily have found that there was no evidence presented that Dickey was at fault in bringing on the difficulty - he was a security guard doing his job, which involved evicting a dangerous person from the apartments; and he was standing directly in front of the door to the apartments, on the welcome mat. No matter which testimony you believed, there were two individuals advancing on Dickey and a reasonable person in his situation would have feared for their safety.

No matter how I analyze this, under the old Castle Doctrine or under the new law, it just seems like the wrong result, and I believe that part of the problem is that this was a case that should never have been prosecuted in the first place.

McCrea v. Gheraibeh, decided by the S.C. Supreme Court on October 27, is a civil case in which the Court held that the fact that a juror has dreadlocks is not a race-neutral reason that will survive a Batson challenge. Although this was a civil case, Batson applies equally to civil or criminal cases.

Before a trial begins, each side gets a certain number of strikes that they can use during jury selection. In General Sessions in State Court, for example, the State gets 5 and the defense gets 5, except in the case of more serious offenses the defense gets 10 strikes. The clerk of court will randomly select juror's names from the jury pool, and the state and defense will either seat each juror or strike each juror, until there are 12 jurors seated or there are no more strikes to be used. Neither side may strike a juror based on their race or gender, and if either side suspects that the other side has, they can make what is called a Batson motion, challenging the other side's strikes as racially or gender motivated. In a criminal trial, usually it is the prosecutor who is accused of striking jurors based on race, although the prosecutor also has the right to make a Batson motion.

The burden is on the party challenging the strikes; once the juror in question has been identified, the prosecutor then has to provide a racially neutral reason for striking that juror (not difficult for a prosecutor who is on their toes and has made decent notes during jury selection). Once a race-neutral explanation is given, then the burden is on the defense to prove that the reason given was only a pretext by showing another juror who was similar situated but who was not struck from the jury. For example, if Ms. Black was struck by the prosecutor because she is a single mom, then to prevail on the Batson motion, the defense must show that the prosecutor did not strike Ms. White from the jury, who is also a single mom.

There are a thousand possible reasons the prosecutor could give for striking a juror that would be race-neutral, and the inquiry is very fact specific and in the discretion of the trial judge in any given case. The only real significance of Gheraibeh is that it shows that Batson is still alive and well, and a majority of our State Supreme Court are not going to allow just anything to be used as a race-neutral explanation for the striking of black jurors. The Court's reasoning for its decision in this case was that dreadlocks are a hair style predominantly worn by blacks:

While we recognize the importance of properly allocating the burden of proof in a Batson inquiry, in our view, counsel’s explanation that he struck the particular juror based simply on counsel’s “uneasiness” over the juror’s dreadlocks was not a race-neutral reason for exercising a peremptory strike. Regardless of their gradual infiltration into mainstream American society, dreadlocks retain their roots as a religious and social symbol of historically black cultures.[2] For this reason, we hold that counsel’s explanation that the juror’s dreadlocks caused him “uneasiness” was insufficient to satisfy the race-neutral requirement in the second step of the trial court’s Batson analysis. See also Payton v. Kearse, 329 S.C. 51, 56, 495 S.E.2d 205, 208 (1998) (holding that basing a peremptory strike on a characterization of the juror as a “redneck” is facially discriminatory in violation of Batson).

A better rule would be to require a race-neutral reason for striking the juror that also makes sense as a non-pretext. In a recent murder trial, the prosecutor struck all black persons whose names were selected, except one. For one in particular, the race-neutral reason given was that the juror "flipped her hair and looked at me funny." Certainly, this is race neutral, but should we allow such nonsensical answers as race-neutral explanations for striking a juror? A prosecutor could give this as a reason for every single juror that has been struck (the juror leaned to the left side and looked at me funny; the juror scratched his butt and looked at me funny), and as long as the prosecutor does not seat a white juror who has the same job or living situation as that black juror who was struck, the prosecutor can successfully keep all or most black persons off the jury.

When there is a black defendant on trial, an all white jury is not necessarily a jury of his or her peers, and a prosecutor who routinely strikes black jurors is depriving that Defendant of a fair trial.

South Carolina's Rule 404(b)

The general rule, in South Carolina, rule of evidence 404(b), is that prior bad acts are never admissible as evidence to prove a defendant's propensity to commit the crime he or she is charged with. The exception, however, is that prior bad acts may be "admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent."

Another underlying question bearing on the admissibility of any evidence is whether its probative value is outweighed by its prejudicial effect (Rule 403). Even if a piece of evidence is useful to prove some fact or other, it must be excluded if it would tend to cause the jury to convict based on something other than the facts of the case in front of them. For example, if a person is charged with armed robbery, the prosecutor should not be able to tell the jury that they have committed another armed robbery in the past - knowledge of this fact would make it more likely that the jury would convict the person, and yet has nothing to do with the facts of the case at hand.

The "common scheme or plan" exception, under Rule 404(b) and State v. Lyle, may possibly be the most abused, and confused, rule of evidence in South Carolina. Numerous appellate opinions over the years have contradicted one another and confused the issue, making it possible for the exception to swallow the rule, with judges allowing clearly prejudicial facts into evidence as a "common scheme or plan," despite no relation or connection between the past event and the current charges.

State v. Wallace

State v. Wallace, argued by C. Rauch Wise of Greenwood, S.C. and decided by the South Carolina Court of Appeals in 2005, was the first well reasoned opinion that analyzed State v. Lyle and its underlying facts and followed its reasoning. The comments to S.C. Rule of Evidence 404(b) note that S.C.'s rule is different from the federal rule in that the S.C. rule limits the admission of evidence to those purposes enumerated in State v. Lyle:

First, unlike the federal rule which does not limit the purposes for which evidence of other crimes may be admitted, the South Carolina rule limits the use of evidence of other crimes, wrongs, or acts to those enumerated in State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).

Evidence of prior bad acts is inadmissible to prove the specific crime charged unless the evidence tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other; or (5) identity of the person charged with the present crime. Lyle, 125 S.C. at 416, 118 S.E. at 807; Rule 404(b), SCRE (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”).

Under Lyle, a common scheme or plan is one "embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other."

In Lyle, the Defendant was charged with forgery, and during the trial the state introduced evidence that the Defendant had forged other checks on that same day as well as on prior occasions. The S.C. Supreme Court held that the forgeries committed on the same day were admissible to rebut the Defendant's alibi defense. However, the forgeries that were committed on other dates in other locations, even though all were committed in exactly the same way, were not admissible, because there was no connection between the offenses making them a "continuous transaction."

In Wallace, the defendant was on trial accused of sexually molesting his stepdaughter, and the trial court allowed the state to present testimony that the defendant had also molested the victim's sister on prior occasions. The trial court ruled that the testimony was admissible under Lyle as a common scheme or plan and that the probative value of the testimony outweighed its prejudicial effect, and limited the sister's testimony to include only acts which were similar to those committed on the victim.

The Court of Appeals reversed, holding that, per Lyle, it is not sufficient that a prior crime be similar to the one at hand, but a connection must be established between the two. The Court goes on to analyze two New York cases which also held that a connection must be established, People v. Molineux, 61 N.E. 286 (N.Y. 1901) and People v. Romano, 82 N.Y.S. 749 (N.Y. App. Div. 1903), that were also relied on by the court in Lyle.

If the only thing that is required to admit prior bad acts is sufficient similarity between the two crimes, then the probative v. prejudicial analysis is turned on its head. Anytime a defendant has committed a similar offense in the past, it can be admitted to prove a common scheme or plan, intent, motive, or absence of mistake under 404(b). And yet, the more similar a prior bad act is to the conduct that is in front of the jury, the more prejudicial it is - the more likely it is that the jury will convict based on, "well, if he did it once he would do it again."

The S.C. Supreme Court has granted cert in Wallace.

State v. Gaines

Monday, in State v. Gaines, the South Carolina Supreme Court decided another prior bad acts case, admitting the evidence of a prior act under State v. Lyle.

Gaines was charged with criminal solicitation of a minor, as a result of conversations with a cop pretending to be a 13 year old girl in an AOL chatroom. At Gaines' trial, the judge allowed the state to introduce evidence of a prior incident where Gaines chatted with a Pennsylvania cop posing as a 12 year old girl (Gaines was not charged in connection with the earlier incident).

Evidence of other crimes, wrongs, or acts is generally not admissible to prove the defendant’s guilt for the crime charged. Such evidence is, however, admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent. Rule 404(b), SCRE; State v. Pagan, 369 S.C. 201, 631 S.E.2d 262 (2006); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). To be admissible, the bad act must logically relate to the crime with which the defendant has been charged. If the defendant was not convicted of the prior crime, evidence of the prior bad act must be clear and convincing. Id.; State v. Beck, 342 S.C. 129, 135-36, 536 S.E.2d 679, 682-83 (2000). Even if prior bad act evidence is clear and convincing and falls within an exception, it must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Rules 403, 404(b), SCRE; State v. Gillian, 373 S.C. 601, 646 S.E.2d 872 (2007); State v. Braxton, 343 S.C. 629, 541 S.E.2d 833 (2001) . . .

Where there is a close degree of similarity between the crime charged and the prior bad act, both this Court and the Court of Appeals have held prior bad acts are admissible to demonstrate a common scheme or plan.

The future of prior bad acts and Wallace

The S.C. Supreme Court's opinion in Gaines does not bode well for Wallace. Gaines analyzes the issue solely in terms of whether the prior act is similar to the offense at hand, and makes no mention of Lyle's requirement that the two acts be connected. If the Court wished to follow Lyle and require a connection between the two offenses, they could have done so and still affirmed - as Justice Pleicones pointed out in his concurrence, the prior act should have been admissible anyway in order to rebut the defendant's claimed entrapment defense. But they did not.

Other jurisdictions have stated exceptions that allow admission of prior offenses when the defendant is charged with sex crimes against children. Until Wallace, our appellate courts have created an unstated exception allowing the admission of prior offenses when a defendant is charged with sex crimes against children. Bad facts make for bad law. The danger in our Supreme Court making an unstated exception for sex crimes against children to the rule against propensity evidence is that the exception will bleed into every other type of trial.

I believe that Wallace should be affirmed, but if the S.C. Supreme Court is not going to recognize, in Wallace, the requirement of a connection between two offenses before it is admissible under Lyle, I hope that they will create an exception for cases involving sex crimes against children, rather than allowing this mess to potentially deprive every defendant of a fair trial.

Edit: Simple Justice weighs in on the subject in NY, the birthplace of Molineux, and A Public Defender reviews prior bad acts law in Ct, where the courts at least admit that what they are doing is allowing propensity evidence to come in against defendants.
What's Wrong with Propensity Evidence Anyway?

In State v. Spoone, released last week, the South Carolina Supreme Court upheld (on PCR) a plea agreement in which the defendant agreed to waive his right to appeal, PCR or any other review of his guilty plea or sentence.

Pursuant to a written plea agreement, petitioner James William Spoone pled guilty to murder, first degree burglary, and possession of a weapon during the commission of a violent crime. Prior to the guilty plea, the State issued a notice of its intent to seek the death penalty. In accord with the plea agreement, the trial court sentenced petitioner to life without parole for the murder and a consecutive life term for the burglary.[1]

The plea agreement expressly stated the following:

[Petitioner] agrees to waive any and all appeals, PCR applications, federal habeas petitions and any and all other methods of review of this guilty plea and sentence.

Thus South Carolina follows in the footsteps of the federal courts, allowing prosecutors to deny any review of guilty pleas or sentences as part and parcel of what is often a contract of adhesion. Although this practice is not yet as widespread in our state as it is in some federal circuits, our Supreme Court has given the green light if prosecutors wish to go this route.

When faced with a case where a defendant has a choice of significant additional prison time or signing a plea agreement that waives the right to appeal or PCR, what should a defense attorney do? I believe this type of agreement is unethical and should not be entered into by defense attorneys or offered by prosecutors, nor should it be stamped with the approval of judges or appellate courts. Is it a choice left to the client, or should the defense attorney refuse to participate in such agreements?

The Court's holding, following a brief review of federal law and precedents from other states, is that waiver of review of a guilty plea and sentence is enforceable if it is knowing and voluntary.

In Miller v. S.C., the S.C. Supreme Court granted post conviction relief based on trial counsel's failure to effectively pursue Miller's claim of third party guilt. Although it was not a part of the Court's holding, Miller's attorney also failed to retain an expert on eyewitness identification which may have been a separate ground for PCR (if Miller's PCR attorney had not also failed to retain an eyewitness identification expert for the PCR hearing).

This case is a perfect example of what is wrong with reliance on eyewitness identifications and coerced testimony by snitches. Miller was charged with armed robbery, based on his girlfriend's testimony and a single eyewitness. The girlfriend's car was used in the robbery, and when police questioned the girlfriend she gave them information that implicated Miller as the robber. The police then showed a photo array which included Miller's photo to the victim, who identified Miller as the robber.

Open and shut, right? Here are the problems in the case:

- the girlfriend had three armed robberies pending already
- her co-defendants in those three armed robberies was Miller's nephew
- the girlfriend had tried to blame Miller in one of those armed robberies, until police discovered it was impossible because Miller was in jail at the time of the robbery
- the girlfriend's car was used in all four robberies
- the description initially given by the victim matched Miller's nephew, including his facial hair
- the police did not include a photo of Miller's nephew in the photo array shown to the victim
- in exchange for testifying against Miller, the girlfriend was offered a plea deal to accessory instead of to armed robbery (armed robbery in state court carries ten - thirty years)

Although the trial judge allowed Miller's attorney the opportunity to introduce evidence of third-party guilt, Miller's attorney failed to effectively cross-examine the girlfriend on the use of the same car and the similarities of the gun used in the prior three robberies committed by the girlfriend and Miller's nephew. Miller did not take the stand and no witnesses were called in his defense. Given that third party guilt and an eyewitness identification were Miller's only defenses at trial, Miller's attorney should have obtained an expert in eyewitness identification to explain its pitfalls to the jury.

I believe that, absent a compelling reason, the defendant has to take the stand and tell the jury his story. It does not matter that the law says the jury can't hold a defendant's silence against him and it does not matter how many times the judge cautions the jury not to take it into consideration - the jury will hold it against him. They will think: if he didn't have something to hide, he would have taken the stand.

Whenever possible, other witnesses have to be found to corroborate the defendant's testimony or to counter the state's witnesses. Once the defendant has taken the stand and testified, at that point you have lost last closing argument and there is no reason not to call as many additional witnesses as you can. If you can get a jury to understand reasonable doubt and the fact that the burden of proof is on the government that is well and good, but you have to assume they will not hold the government to their burden and they often don't. They want to hear why your client is not guilty.

In each PCR that I have handled, the recurring issue that stood out when reading the transcripts is that the trial attorney did not give the jury a theory of the case. This is not grounds for PCR, although maybe it should be. If the defense lawyer does not give the jury the defendant's theory of the case and tell the defendant's story, the jury has no framework to operate from except the prosecution's theory of the case.

In this case the prosecution failed, by using unreliable testimony coerced with the promise of freedom, and by not recognizing or not caring about the problems with the eyewitness identification. The defendant's own attorney failed, by not presenting Miller's defenses to the jury. The PCR Court failed, by not correcting the potential injustice when it came before it. But the South Carolina Supreme Court got it right, and Miller now has the opportunity to have a jury hear his defenses and make an informed decision on his guilt or innocence.

"No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).

In State v. Brannon, the S.C. Court of Appeals held that for a person to be convicted of resisting arrest, there must first be an arrest. Seems like common sense, but there are many scenarios where people are charged with resisting arrest despite no valid arrest having occurred. In Brannon, police walked up to the defendant who they suspected was breaking into cars, said "stop, police," and the defendant ran. Officers gave chase and caught him, but once he was physically caught he did resist.

It is not against the law in South Carolina to "resist" an investigatory detention - for an individual to be considered under arrest they must be "physically touched for the purpose of restraint," or have "submitted to a show of authority at the time of . . . flight."

The Court of Appeals relies on U.S. Supreme Court cases which hold that an arrest for Fourth Amendment purposes requires an application of force or submission to a show of authority. In California v. Hodari D., 499 U.S. 621 (1991), for example, Hodari ran when he saw the police and, just before he was tackled and handcuffed, tossed a rock of crack cocaine. The USSCT held that the evidence was not the product of an illegal seizure and therefore was admissible in court, because Hodari was not seized until the moment he was tackled by the police.

In County of Sacramento v. Lewis, 523 U.S. 833 (1998), a fleeing motorcycle crashed and a pursuing police car ran over one of the riders, killing him. The USSCT held that, because the contact of the police car with the motorcycle rider was accidental, there was no Fourth Amendment seizure (and therefore no police liability to the dead riders' estate). The pursuit itself was not a seizure.

More recently, in Brendlin v. California, 551 U.S. , 127 S. Ct. 2400 (2007), the USSCT held that 1) a passenger in a car has standing under the Fourth Amendment; and 2) that a person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.

To say that "stop, police" constitutes an arrest for purposes of the resisting arrest statute, which is how some lower courts have been treating this statute, but does not constitute an arrest for purposes of excluding drugs that were tossed or for purposes of police liability, is inconsistent and defies the plain language of the statute. S.C. Code Sec. 16-9-320(A) says:

It is unlawful for a person knowingly and wilfully to oppose or resist a law enforcement officer in serving, executing, or attempting to serve or execute a legal writ or process or to resist an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned not more than one year, or both.

And an "arrest" is defined by Black's Law Dictionary as:

1. A seizure or forcible restraint. 2. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge.” Black’s Law Dictionary 104 (7th ed. 1999).

Applying this analysis to Brannon's facts, he was not placed under arrest until he was physically touched by the officer, at which point he did not resist. Running from the officer's commands to "stop" amounted only to avoidance of the officers, not resisting arrest.

Brannon was also convicted and sentenced for breaking into a motor vehicle, and, although the opinion is not clear on this, it appears there was independent proof of that charge. What often happens is law enforcement will approach an individual who then runs, the police chase and eventually tackle them, place them under arrest for "resisting arrest," and then find drugs during the search incident to arrest. The cop is then good and pissed off, and the person is charged with resisting arrest, possession of drugs, assaulting an officer (because the officer scraped his knee while tackling the person), and anything else that the officer can think of.

There are now two main things to look for in resisting arrest cases. First, although I don't recommend it to anyone, it is well established that you have the right to resist an unlawful arrest. If the initial arrest was unlawful, you can resist the arrest and, if the court agrees with you, anything that is found on your person after the arrest may be excluded from evidence as the product of an unlawful seizure.

Second, under Brannon, always consider the possibility that there was no arrest to begin with. If a person runs from the police, they have not submitted to the officer's show of authority and until such time as there is physical contact by the police officer, there has been no arrest. The police cannot bootstrap themselves into making a case by charging someone with resisting arrest and then searching incident to the arrest for resisting arrest. There must be a valid reason to arrest the person, and then there must be an actual arrest.

In the Spartanburg Herald Journal today was an op-ed piece by myself and by Senator Kevin L. Bryant, on the U.S. Supreme Court's decision in Kennedy v. Louisiana. I point out, in a reproduction of this post from June, that the enactment of South Carolina's child rape death penalty statute was a stunning example of bad politics controlling legislation. Despite the fact that there is a national consensus against the death penalty in non-homicide cases (there has not been an execution in a non-homicide case since 1963), it serves none of the traditional purposes of the criminal justice system, and there is an enhanced danger of wrongful convictions in child rape cases, railing against child-rapists is a tested and proven way to get attention and votes. It's right up there with tougher penalties for DUI and drug crimes.

Senator Bryant, who "led the fight for the inclusion of the death penalty sentencing in South Carolina's version of Jessica's Law," calls the majority of the Supreme Court "arrogant," and rails about how the liberal justices are "legislating from the bench," saying: "I did not seek office to take orders from unelected men and women who offer their prescriptions for society from behind a black robe, and I think the vast majority of my constituents elected me to represent them, not do the bidding of the judiciary."

Tough words, and yet another beautiful sound-byte for the public. We don't need liberal judges to tell us what is constitutional or not, our esteemed president could have told us that. The Senator leaves us with a reminder that elections are in November: "Our only protection against an encroaching judiciary lies in our ability to select the president who appoints its members. Please remember that in November."

I'm not disputing that Bryant's view is shared by many, and it is what the masses want to hear. It is good politics, but good politics makes for bad law. When this bill was being debated, South Carolina's defense bar and prosecutors joined together in opposing it as unconstitutional, and yet our legislature disregarded their advice and passed the law anyway.

In State v. Mekler and State v. Light, both opinions released this week, the South Carolina Supreme Court held that involuntary manslaughter and self defense are not mutually exclusive, and that in a murder case both should be submitted to the jury if there is any evidence to support them.

Voluntary and involuntary manslaughter are confusing concepts which are often misunderstood, even by lawyers and judges. Manslaughter is the unlawful killing of a person, without malice. The definitions vary somewhat from state to state, but In South Carolina, voluntary manslaughter requires 1) legal provocation, which is some act by the victim such as an unprovoked attack, and 2) "sudden heat of passion" in response to the provocation.

Involuntary manslaughter is the unintentional killing of a person, either 1) while engaged in an unlawful activity, but not one which would ordinarily cause death or great bodily harm, or 2) while engaged in a lawful activity but with a reckless disregard for the safety of others.

To have the judge charge the jury on self defense in South Carolina, four elements have to be supported by the evidence:

(1) the defendant must be without fault in bringing on the difficulty;
(2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury;
(3) if his defense is based upon his belief of imminent danger, the defendant must show that a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life; and
(4) the defendant had no other probable means of avoiding the danger.

If there is any evidence at all to support the lesser included offenses of voluntary or involuntary manslaughter, or the complete defense of self defense, the trial judge must instruct the jury on them, and evidence of a struggle between a defendant and a victim over a weapon is sufficient for an involuntary manslaughter instruction.

In State v. Light, the defendant testified that he was confronted by his girlfriend, who was holding a .22 rifle in one hand and a long strand of brown hair in the other, screaming and accusing Light of having another woman in the house. Light testified that the victim had been acting jealous and following him for weeks before the incident, and there was conflicting testimony from Light and from the State's experts that would have supported a finding by the jury that 1) he took the gun from her and shot her as she crouched or knelt down; or 2) that he took the gun from her and unintentionally shot her after he jerked the gun away and stumbled back; or possibly that 3) the gun went off as she held it, but after he tried to knock it out of her hands.

The judge charged the jury on murder, voluntary manslaughter, and accident, but refused to give jury charges on involuntary manslaughter and self defense. The Supreme Court reversed and ordered a new trial, because there was some evidence at trial to support all of the theories - when there is any evidence of each theory, it is up to the jury to weigh the evidence and decide, not the judge.

Mekler was a more sympathetic defendant by far. She testified that she was sitting on her porch with the victim's wife when the victim came into the yard yelling at his wife and holding a knife, which he said was for Mekler's dog that was barking. Mekler picked up her shotgun, pointed it at the victim and pulled back the hammer while holding it at her waist, and testified that the gun went off unintentionally as she pulled back the hammer. She consistently testified that she did not intend to pull the trigger, and that testimony appeared to be uncontradicted, yet the judge refused to charge involuntary manslaughter and she was convicted of murder.

Although the trial judge did give a self defense instruction, the conviction was overturned because no involuntary manslaughter instruction was given - there was evidence to support self defense or involuntary manslaughter and all theories that the evidence supported should have been submitted to the jury. It sounds as if there was also evidence to support a charge of defense of others, since the testimony indicated that the victim was coming after his wife and not the defendant, but there is no mention of whether this was requested by the defense.

The jury instruction for involuntary manslaughter makes a huge difference - if convicted of murder, the minimum sentence that can be imposed is 30 years (85%, no parole), but involuntary manslaughter carries a sentence of 0 - 5 years.

The Wisconsin Supreme Court has decided that a person can be charged with sexual assault, even if their victim is dead. The three men were charged with attempted sexual assault, but the lower court dismissed the charges, saying that there was no state law prohibiting necrophilia.

The men went to the cemetery with shovels, a crowbar, a tarpaulin, and a box of condoms, which the men had purchased that evening on their way to the cemetery.

My first reaction was, how could there not be a law prohibiting necrophilia? The next reaction is feeling sick thinking how sad is it that we even need a law to tell people don't have sex with corpses.

In Williams v. State, the South Carolina Court of Appeals held last month that registration as a sex offender is a collateral consequence of a kidnapping conviction, and therefore cannot be grounds for post conviction relief.

South Carolina's sex offender registry laws require that a conviction of kidnapping will automatically result in classification as a sex offender unless the judge makes a specific finding on the record that the crime did not involve a sex offense.

Williams pled guilty to kidnapping, two counts of armed robbery, possession of a stolen motor vehicle, failure to stop for a blue light, and possession of a gun by a person under the age of twenty-one. The petitioner filed a PCR petition asking for relief based on the attorney's failure to advise him that a plea to kidnapping would result in sex offender status and based on the attorney's failure to request a finding by the judge that Williams was not a sex offender.

It would make more sense for the legislature to have permitted a requirement of registration as a sex offender if there was a finding that the crime involved a sex offense, rather than making registration automatic. There are not a lot of facts in the appellate opinion, but it does not sound like this was a sex offense. Making registration automatic leaves the door open for too many mistakes - lawyers and even judges are not always going to know about the requirement, or are not going to think about it during the plea.

The Court found that Williams' attorney was not ineffective, because counsel cannot be ineffective, for purposes of PCR, for failing to advise a client as to any collateral consequence. Williams undoubtedly feels that his lawyer was ineffective, now that he is faced with the prospect of being pegged as a sex offender for the rest of his life, having his picture, name, and address on the internet, living with residency restrictions, and possibly having to wear a GPS monitor.

Although sex offender classification is a collateral consequence and he will not be granted a new trial, Williams should have other options for removal from the sex offender registry - if there was no sex offense involved in his case, possibly the prosecutor could have consented to re-open his case for the sole purpose of allowing the judge to make a finding of no registration on the record. If that is not possible, Williams could file suit requesting a declaratory judgment that there was no sex offense involved in his crime.

Williams' case reminds us of why it is so very important to get it right the first time. It is much easier than fixing mistakes later on down the road.

Since the June 25th decision of Kennedy v. Louisiana, a military statute has been “discovered” that permits capital punishment for child rape in court martial. No lawyer mentioned this statute in brief or oral argument, and no justice mentioned the law in the opinion of the court. Many bloggers and writers have debated whether this statute changes the national consensus against the death penalty. Somehow, the more interesting question is how did no one know this law existed?

When the statute was passed in Congress the provision was on the 129th page of a 420 page omnibus authorization bill. The provision was neither mentioned nor debated by any legislator.

This bill has been approved by the president for over two years and no attorney ever seemed to know it was there.

Mistake in fact is a valid defense against a crime. You cannot steal what you believe to be yours. Mistake in law is not a valid legal defense. You can be convicted of DUI even if you do not know the legal BA level. You see, every Tom, Dick and Harry is on notice of all statutes and all case law no mater how complicated. This leads me to believe that the law is kind to those who know it.

The UCMJ statute makes me wonder who really knows the law. Nine of the most brilliant legal minds, all their law clerks, and professional SCOTUS attorneys missed this law. Perhaps the most valuable thing we can glean from this controversy is your legal writing professor was right. It’s embarrassing not to know legal precedent.

Roadblocks in my opinion are unconstitutional. Period. The National Motorists Association says it best:

We oppose the use of roadblocks, period. The only justification for stopping citizens under a roadblock scenario is to warn them of an unseen peril that could cause injury or death to an unsuspecting motorist. So-called "sobriety check points," or seat belt checks, or the myriad of other excuses the government concocts to harass and intimidate its citizens through the use of roadblocks are, in our opinion unconstitutional and in direct contradiction to any honest definition of freedom.

Since the United States Supreme Court does not yet agree, we will have to settle for requiring law enforcement to jump through hoops to demonstrate that their roadblocks are not really for the purpose of general crime control. The S.C. Supreme Court in State v. Groome, decided June 30, held law enforcement to the standards required by Brown v. Texas, City of Indianapolis v. Edmond, and Michigan State Police v. Sitz, and upheld the suppression of evidence by the trial court on the basis that the roadblock was violative of the Fourth Amendment.

In Brown v. Texas in 1979, the U.S. Supreme Court held that a Texas statute allowing police to detain citizens and require them to identify themselves violated the Fourth Amendment because it allowed the detentions without any reasonable suspicion of criminal conduct. It also set forth a three part balancing test for determining the constitutionality of seizures by law enforcement: 1) a weighing of the gravity of the public concerns served by the seizure; 2) the degree to which the seizure advances the public interest, and 3) the severity of the interference with individual liberty.

In 1990 the U.S. Supreme Court held in Michigan State Police v. Sitz that the Brown v. Texas balancing test applies to roadblocks, and, although it reversed the Michigan Court of Appeals and found the roadblock valid, it arguably upheld the requirement that "the degree to which the seizure advances the public interest" must be demonstrated by showing the "effectiveness" of the roadblock.

In City of Indianapolis v. Edmond in 2000, the U.S. Supreme Court held that a checkpoint whose primary purpose is to detect evidence of ordinary criminal wrongdoing is unconstitutional.

In Groome, the S.C. Supreme Court held that there was sufficient evidence for the trial court to find that the primary purpose of the roadblock was crime suppression rather than merely a driver's license checkpoint, in that:

1) the checkpoint was conducted by the Directed Patrol Unit, which is assigned specifically to deal with crime suppression issues;

2) a K-9 patrol unit with a nationally certified drug dog team was participating; and,

3) the State presented no evidence as to the plan, procedures, or duration of the roadblock, nor was any evidence of a protocol introduced and as the Supreme Court noted in Edmond, without such information “law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they include a license or sobriety check.”

The Court held that even if the purpose of the roadblock was not general crime suppression, the roadblock was invalid under Brown v. Texas' second requirement because no empirical data was presented at trial to support the effectiveness of the roadblock.

One thing that is disappointing about this case is that the Court did not rule (possibly because the attorneys did not raise the issue) that our State Constitutional protections are separate and independent grounds for their holding. On remand the Michigan Court of Appeals re-affirmed their original ruling in Michigan State Police v. Sitz, and found the checkpoint to be unconstitutional, this time under the Michigan Constitution instead of the Federal Constitution.

Judge Hill was the trial judge, and he as well as the S.C. Supreme Court deserve praise for having the courage to rule against the government in preserving our constitutional rights. However, all roadblocks should be declared unconstitutional, in violation of the South Carolina Constitutional right to freedom from unreasonable search and seizure and as a violation of the right to privacy which is guaranteed by the S.C. Constitution.

Roadblocks are one of the most arrogant and disgusting violations of our privacy and freedom, and Groome, if the U.S. Supreme Court does not overturn it, will help "to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field."

In the much anticipated District of Columbia v. Heller, released today, the United States Supreme Court struck down D.C.'s ban on handguns.

The Court held that the Second Amendment protects an individual's right to keep and to bear arms, and is not limited to possession of firearms in connection with service in militias. The Court indicates that the right to bear arms is connected with the right to self defense.

D.C.'s requirement that lawful firearms in the home be disassembled or bound by a trigger lock was also declared unconstitutional, because such a requirement would make it impossible for citizens to use the firearm in self defense.

The Court's opinion, written by Scalia, takes care to note that the Second Amendment right is not unlimited, and that prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding possession of firearms in sensitive places such as schools or courthouses, and laws regulating the sale of firearms are constitutional.

The right to keep and bear arms, under Scalia's analysis, is not a right that is granted by the Constitution - it is a pre-existing right, and what is guaranteed by the Constitution is that the government will not infringe on that right. The right to keep and bear arms guarantees to all citizens the right to defend ourselves, and is connected to our natural right to self-preservation.

A primary purpose of the Second Amendment was to give the people a check on their government, and prevent the government from disarming its citizenry, as England had done in an attempt to maintain control of its people even as it abused them. When elements of our government become tyrannical and oppressive, the knowledge that most citizens have within their homes some form of firearm should give the government pause in remembrance of 1776. Scalia's reasoning indicates this as well:

During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric . . . Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people.

Post-ratification commentary included the following from William Rawle in 1825:

“The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . . “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121–122.20

South Carolina's equivalent, found in Article I, Section 20 of the S.C. Constitution, also indicates the purpose of the freedom to keep and bear arms by including in its context the provisions that armies are dangerous to liberty in times of peace, that the military power of the State will always be subordinate to the civil authority, and that no solders will be quartered in person's homes without consent.

The Court rejected District of Columbia's argument that handguns could be banned so long as the possession of other firearms such as rifles is allowed, because the handgun is "the quintessential self-defense weapon," and it is "the most preferred firearm in the nation to keep and use for protection of one's home and family."

Much of the commentary since the case was released laments the narrow holding, which is limited to declaring unconstitutional a ban on handguns for the purpose of self defense in the home, and declaring unconstitutional any requirement that would render handguns kept in the home inoperable. Much litigation will likely follow this decision, to fine-tune the questions left unanswered by Heller, but I believe the decision was rightly and necessarily limited to the facts of this particular case. The Court decided the issues that were placed before it and could do no more.

Following todays decision in Kennedy v. Louisiana, according to the State.com, South Carolina's Attorney General tells prosecutors to ignore the law and proceed with death penalty prosecutions:

But McMaster says South Carolina prosecutors planning death penalty cases against child rapists should proceed. He says by the time that case is appealed, there should be different justices on the U.S. Supreme Court or more states will have passed similar laws.

In April of this year, the United States Supreme Court decided in Baze v. Rees that Kentucky's three drug cocktail lethal injection procedure was not cruel and unusual punishment under the Eighth Amendment.

In Kennedy v. Louisiana, released today, the United States Supreme Court held that the Eighth Amendment bars imposition of the death penalty where the crime does not result in the victim's death.

Only six states including South Carolina currently have statutes providing for the death penalty in child rape cases. The enactment of South Carolina's statute was a perfect example of bad politics controlling legislation. In the wake of some horrific and high profile child rape cases followed by the media, some legislator decides that it will be great PR to campaign for the death penalty for these monsters. Once the legislation has been introduced, no politician wants to vote against it because hey, it is pretty good PR, and you are either for it or you are in favor of the child rapists which certainly does not win you any votes.

Although the politicians and some victims advocates speak out about how they want the death penalty for child rapists, and it makes a good sound byte during election time, the SCOTUS points out that there is a national consensus against the death penalty for child rape. Since the Court's 1972 decision in Furman, nine states have permitted capital punishment for adult or child rape, and yet no person has been executed for any non-homicide offense since 1963. Louisiana is the only state that has sentenced a person to death for child rape, resulting in today's opinion in Kennedy.

Despite rape's permanent and devastating impact on a child, "in terms of moral depravity and of the injury to the person and to the public, [non-homicide crimes including child rape] cannot compare to murder in their severity and irrevocability."

The Court looks at whether the death penalty for child rape would serve the purposes of retribution and deterrence. Looking at retribution, the death penalty will not lessen a rape victim's hurt, given that capital cases require a long-term commitment to testify for the prosecution over a period of many years. By enlisting a child victim to assist in seeking the death penalty over the course of years "forces a moral choice on the child, who is not of mature age to make that choice."

The goal of deterrence is not furthered, because "evidence suggests that the death penalty may not result in more effective enforcement, but may add to the risk of non-reporting of child rape out of fear of negative consequences for the perpetrator, especially if he is a family member." Also, by making the punishment for murder the same as the punishment for rape, it gives the rapist an incentive to kill the victim.

The Court takes note of the "relevant systemic concerns in prosecuting child rape, including the documented problem of unreliable, induced, and even imagined child testimony, which creates a special risk of wrongful execution in some cases."

There are many problems with cases involving child testimony. Child molestation cases often arise in the context of divorces and custody disputes, and there are often problems with the testimony. One problem that arises quite often is the problem of suggestive interviewing techniques with children, and the problem of repeated interviews.

I have seen cases where the interviewer asks the child leading questions (suggestive of the answer), the child denies the allegations, and the interviewer continues asking the same leading question in different ways or keeps coming back to the question, until the child gives the answer the interviewer is looking for. This can be compounded by the effect of multiple suggestive interviews, often beginning with a family member who may be suspicious or have an axe to grind, followed possibly by other family members, followed by an officer, and then one or more interviews by a child advocate.

The effect of suggestive interviews on a very young child, particularly when they are repeated, is that the child may begin to believe the allegations, even if they were not true to begin with. The State then has a very credible and believable witness to prosecute their case with. In South Carolina and other states, laws have been passed that would allow the presentation of videotaped testimony by the child in court, without the opportunity to cross-examine and in violation of the right to confrontation of witnesses.

The dangers of a prosecution for child rape, particularly when there is no corroborating evidence, should be clear. Juries do not want to take any chance on releasing a person who might then hurt more children. Due to the prejudicial nature of the accusations, defendants are often presumed guilty as soon as they are accused, and it is an uphill battle to demonstrate the flaws in the case and to get beyond the pre-conceived notions of the jury.

The Court made the right decision in Kennedy, but it is still disturbing that four of nine justices voted to allow States to kill defendants under these circumstances.

More on Kennedy:

Death penalty in Texas' 'Jessica's Law' not viable after SCOTUS' Kennedy decision
Some first-cut reactions to Justice Kennedy's work in Kennedy
No Death Penalty for Child Rape
Supremes Say No Death Penalty for Child Rape
Kennedy v. Louisiana

There is a lot of discussion in the blawgosphere about what Rothgery, decided today by the United States Supreme Court, means exactly. It was a declaration by the Court that the Sixth Amendment right to counsel attaches at a defendant's first appearance. It rejected the government's assertion that right to counsel does not attach until the prosecutor's office becomes involved in the case. In terms of answering the question "when does the Sixth Amendment right to counsel attach," the case gives us nothing new, and they point this out in the last paragraph of the case:

We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

I read this case as the Court saying to the Fifth Circuit Court of Appeals, look - we have said this all along, you are ignoring United States Supreme Court precedent and so we will say it one more time, for you Texas. McNeil held that the right to counsel attaches when a prosecution is commenced, at the first formal proceeding against the accused. Gouveia said that commencement means "the initiation of adversary criminal proceedings - whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Jackson and Brewer again held that the right to counsel attaches at the initial appearance before a judicial officer.

There are two things that strike me about the case. First is that this was not an appeal from a criminal conviction. It was not a question of a statement that a defendant was asking to be suppressed because he was denied his Sixth Amendment right to counsel. This was a civil claim under 42 U. S. C. §1983. The Plaintiff was arrested and charged with felon in possession of a handgun, although he was not a felon. At his first appearance before a magistrate, he asked repeatedly for his attorney which was not provided to him. He appeared before a magistrate, was released on bail, was indicted and re-arrested, and spent three weeks in jail before an appointed attorney was able to explain to the prosecutor that he was not a felon and should not have been arrested in the first place.

His claim was that if he had been provided a lawyer within a reasonable time after he requested one at the initial appearance before the magistrate, he would not have been indicted, re-arrested, and jailed for those three weeks.

The second thing that strikes me about this case is its reference to South Carolina. The Court notes that 43 states follow the majority rule, holding that the right to counsel attaches at the first appearance, and lists South Carolina among the remaining 7 states.

What is important about this case, and I believe the motivation behind it, is that defendants need to have the advice of counsel as soon after they are arrested as possible. The initial appearance before a magistrate is a critical stage of the proceedings against a defendant, when they are subject to losing a substantial portion of their life in pre-trial detention. It could be days, it could be years that they are held pending trial.

I haven't read the Fifth Circuit's opinion, but I propose that what was behind it was that the trial court and the Fifth Circuit Court of Appeals did not want to open the door to lawsuits by indigent defendants who are not getting the representation they are entitled to. The discussion about this case should be tying into the ongoing debate about indigent defense funding across the country, and the quality of representation that is provided.

The Court cites Coleman v. Alabama, which specifically held that the right to counsel applies at a pre-indictment preliminary hearing, at which the sole purpose is to determine whether there is sufficient evidence against the accused to warrant presenting the case to the grand jury.

In South Carolina, defendants are informed of their right to a public defender at their initial bond hearing before a magistrate. But how meaningful is this information when the public defender's office is overwhelmed to the point that the defendant may not speak with an attorney for months in some cases? Where every preliminary hearing is waived by public defender offices?

Does the holding of the United States Supreme Court in Rothgery open the door to civil suits in cases where a defendant's charge could have been dismissed at a preliminary hearing, but they were denied their Sixth Amendment right to counsel at that hearing? Should it?

More on Rothgery:
Roth - very narrow
Rothgery, right to counsel, blood warrants
What does Rothgery really mean?
The meaning of Rothgery
Rothgery gets a lawyer
Rothgery wins at the Supreme Court - or does he?
SCOTUS: right to counsel attaches at the first appearance

Regina McKnight, who was found guilty of homicide by child abuse in 2001 because cocaine was found in her system after her child was stillborn, has been released. Last month the South Carolina Supreme Court granted her post conviction relief petition and ordered a new trial.

Regina pled guilty to involuntary manslaughter and was released on time served today after serving more than 8 years in prison.

The Court of Appeals affirms Terry Tindall's conviction for trafficking cocaine > 400g. Tindall was stopped by Deputy Dale Colegrove in Oconee County and detained on the side of the road while his car was searched by law enforcement. Ultimately over 400 grams of cocaine was found hidden inside the back bumper of his car.

Law enforcement has the right to stop a car if there is reasonable suspicion that a traffic violation has occurred, and to briefly detain the car and its occupants long enough to write a ticket and to run a computer check of license and registration. Colegrove claimed that he stopped Tindall for speeding and for following too closely.

Once the purpose of the traffic stop has concluded, any further detention has to be justified by a reasonable, articulable suspicion that some further crime is occurring. If there is no articulable suspicion of further crime then any further detention is illegal and drugs or other contraband found will be inadmissible at trial. In Tindall's case, the Court of Appeals found reasonable suspicion for a continued detention because:

Colegrove testified he further detained Tindall because he believed something illegal was occurring based on Tindall’s actions after the stop. Colegrove observed numerous things after the stop including: 1) Tindall was nervous even after receiving the warning; 2) Tindall was driving a rental car that he had not rented; 3) Tindall was driving only one way and then dropping the car off; 4) Tindall planned on driving approximately eighteen hours in one day; and, 5) the cities involved were both “drug hubs.” We find evidence in the record to support a determination that Colegrove had a reasonable suspicion something illegal was occurring. Therefore, the search and seizure did not violate Tindall’s Fourth Amendment rights and the trial court did not err in admitting the cocaine.

Basically, in Oconee County, Dillon County, Florence County, and many other locations in South Carolina, if you appear nervous while an officer is asking you if you have drugs or weapons in your car, if you are driving a rental car, and if you are driving to and from any major city ("drug hub"), law enforcement can detain you on the side of the road and dismantle your vehicle as they search for drugs.

Although I did not represent him, I was at Tindall's trial and I recall the testimony. Colegrove made statements such as, he could see Tindall's heart beat and increased pulse (through Tindall's shirt). Colegrove received this amazing observational medical skill through advanced narcotics interdiction training (how to lie on the stand to obtain a conviction 101).

What really happens on the interstate in South Carolina is if you are Black or Hispanic and driving a rental car you will be pulled over. You will be told you are getting a warning ticket for following too closely (at trial, the officer will testify that this is an indicator of drug trafficking, because often one car with the drugs will follow a second car with the owner of the drugs).

Once the officer has run your license and tags, he will return to your car and give you a warning ticket, then he will proceed to ask more questions. Do you have any drugs or weapons in your car, do you mind if I search your car. They will search your car whether you mind or not. If drugs are found, at trial the officer will testify that you were nervous (note that experts like Colegrove can witness your heartbeat through your shirt - there is no escape from these superhero abilities), the officer will note that you were driving a rental car (1/2 of the reason he pulled you in the first place, the other silent 1/2 being the fact that you are Black or Hispanic), and the officer will note that you were traveling from a city to city (a drug hub to another drug hub, describing over 50% of all travelers on the interstate).

Another part of this equation is the fact that officers like Colegrove are a large source of income for the Counties. Each time that they find drugs in a car they take all money they find on the person or in the car, and sometimes the car, as a "forfeiture." If you can, imagine several "busts" a day and what the figure begins to add up to by the end of each year.

Officers like Dale Colegrove believe that the ends justify the means. I once asked a prosecutor in Dale Colegrove's jurisdiction if they did not see a problem with a Sheriff's Deputy sitting on the interstate and pulling over Hispanics and Blacks in rental cars. That prosecutor's response was, well, he gets convictions doesn't he?

The Court of Appeals may think, who cares if we hold a drug trafficker on the side of the road for 30 minutes while his car is searched? The answer is no-one. What we should care about is all of the people that are being humiliated on the side of the road that are not drug traffickers. What we should care about is the blatant racial profiling that is occurring in our state. We should care about a culture of law enforcement that encourages police perjury in order to obtain convictions. We should care that cases like Terry Tindall's send a message to law enforcement that the Fourth Amendment means nothing, so long as you are getting convictions and supplementing your County's income.

State v. Caldwell, decided by the South Carolina Court of Appeals last month, essentially reaffirmed that 1) it is OK for the prosecutor to wait until the last minute to give discovery materials to the defense; and 2) it is OK for prosecutors to make plea offers before providing complete discovery, and then take the offer off the table after full discovery has been received:

B. Failure to Comply with Discovery

Caldwell further asserts the trial court erred in admitting the alleged statements made to Officer Porter because the State violated Rule 5(a)(3), SCRCrimP by failing to properly disclose the substance of the alleged statements in a timely manner. We find no error.

“Upon request by a defendant, the prosecution shall permit the defendant to inspect and copy or photograph: . . . the substance of any oral statement which the prosecution intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a prosecution agent.” Rule 5(a)(1)(A), SCRCrimP. “The prosecution shall respond to the defendant’s request for disclosure no later then thirty (30) days after the request is made, or within such other time as may be ordered by the court.” Rule 5(a)(3), SCRCrimP. A Rule 5 violation is not reversible unless prejudice is shown. State v. Landon, 370 S.C. 103, 108, 634 S.E.2d 660, 663 (2006).

We find no prejudice to Caldwell such as would entitle him to suppression of the statements. The statements, as referred to in Officer Porter’s supplemental report, were admittedly turned over to the defense in April 2006. Caldwell contends the State’s failure to disclose the alleged statements until that time prejudiced him because, after that point, the opportunity afforded to him to plead to only a single indictment had passed. However, a defendant has no constitutional right to plea bargain. State v. Chisolm, 312 S.C. 235, 237, 439 S.E.2d 850, 852 (1994). Thus, Caldwell was not prejudiced by the delayed disclosure. See Chisolm, 312 S.C. at 237-38, 439 S.E.2d at 851-52 (holding, even though assistant solicitor acted inappropriately by communicating with a party known to be represented by counsel and by surreptitiously tape recording the conversation, assertion appellant was prejudiced as evidenced by the absence of plea negotiations was insufficient inasmuch as a defendant has no constitutional right to plea bargain).

Defendants in civil cases have far more discovery rights than defendants in criminal cases do, and more remedies for violations of the discovery rules. In a civil case, the opposing party has 30 days to respond to discovery requests. If there is no response, you file a motion to compel and the Court will order the production of discovery. If discovery is not provided, the Court can make the non-producing party pay court costs, exclude evidence from the trial, or dismiss the civil action.

In a criminal case, the prosecution has 30 days to provide discovery once it has been requested. If there is no discovery provided within 30 days, no-one cares. If the discovery is provided on the eve of trial, your remedy may be a continuance if you don't mind waiving your client's right to a speedy trial. More likely, the judge will tell you to take a few minutes and review the materials. So long as you have it when trial is starting, there is no prejudice to your client.

Prosecutors routinely make plea offers and expect you to accept or deny them without the benefit of complete discovery - this is the norm in drug distribution cases or any case with a confidential informant. I have had prosecutors tell me, the plea offer is X but if I have to go to the trouble of putting together this discovery you are asking for, then the plea offer is off the table. Although I discuss this situation with my client, my answer is usually get me the discovery and keep your plea offer.

Part of the problem is defense attorneys are not insisting on complete discovery, and therefore prosecutors are not expecting defense attorneys to insist on complete discovery. Prosecutors expect defense attorneys to plead their clients, because that is what most do. Prosecutors expect defense attorneys to not insist on complete discovery, because that is what they are used to.

If you don't have discovery materials within 30 days, send a letter to the prosecutor and remind them. When you get the first discovery response, send another asking for everything else they didn't give you in the first response. Independently investigate the facts of your client's case so you know what the prosecutor or the police are hiding - don't depend on the government's investigation to make your client's case.

If they don't give you the discovery file a motion to compel. Prosecutors get pissed off when you file a motion to compel discovery - the reason is because no-one files motions to compel so they don't expect it. If they are not turning over discovery materials, put it in front of a judge before the day of trial. Prosecutors assume if you want discovery you are going to trial, and they start getting defensive - but you cannot advise your client to plead guilty or to take his or her case to trial until you have seen all of the evidence. If you do advise a client to plead before they have seen all of the evidence, it is grounds for PCR and the conviction could be overturned anyway.

June 13, 1966. From History.com:

On this day in 1966, the Supreme Court hands down its decision in Miranda v. Arizona, establishing the principle that all criminal suspects must be advised of their rights before interrogation. Now considered standard police procedure, "You have the right to remain silent. Anything you say can, and will, be used against you in court of law. You have the right to an attorney. If you cannot afford one, one will be appointed to you," has been heard so many times in television and film dramas that it has become almost cliche.

The roots of the Miranda decision go back to March 2, 1963, when an 18-year-old Phoenix woman told police that she had been abducted, driven to the desert and raped. Detectives questioning her story gave her a polygraph test, but the results were inconclusive. However, tracking the license plate number of a car that resembled that of her attacker's brought police to Ernesto Miranda, who had a prior record as a peeping tom. Although the victim did not identify Miranda in a line-up, he was brought into police custody and interrogated. What happened next is disputed, but officers left the interrogation with a confession that Miranda later recanted, unaware that he didn't have to say anything at all.

The confession was extremely brief and differed in certain respects from the victim's account of the crime. However, Miranda's appointed defense attorney (who was paid a grand total of $100) didn't call any witnesses at the ensuing trial, and Miranda was convicted. While Miranda was in Arizona state prison, the American Civil Liberties Union took up his appeal, claiming that the confession was false and coerced.

The Supreme Court overturned his conviction, but Miranda was retried and convicted in October 1966 anyway, despite the relative lack of evidence against him. Remaining in prison until 1972, Ernesto Miranda was later stabbed to death in the men's room of a bar after a poker game in January 1976.

As a result of the case against Miranda, each and every person must now be informed of his or her rights when arrested.

Of course, History.com has made one common misinterpretation of Miranda that I hear on an almost daily basis from my clients. Every person does not have to be informed of his or her rights when arrested. Miranda rights must be read before a person is questioned by the police after they are in custody. If this is not done, any statements that are made can be excluded from the trial.

With few exceptions, not having your rights read to you is not grounds to get your case dismissed, and it is not police misconduct. It usually just means that they do not intend to question you. If they are going to question you, they will usually not only read the Miranda rights to you, but they will make you sign a document stating they have been read to you, and have you initial by each individual right that you are waiving if you speak.

Today the USSCT released Boumadiene v. Bush, holding that the detainees at Guantanamo have a constitutional right to habeas relief, and strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. The Court also holds that Congress can take the right of habeas away from detainees by suspending the writ of habeas under the Suspension Clause.

Justice Kennedy, in the majority opinion, talks about the history of the Habeas Corpus Act of 1679 and its relevance today. He notes that the officials charged with our nation's every day security may feel that the history of the Habeas Corpus Act is not relevant, and that security is dependent on the military's ability to act upon intelligence. He goes on to say:

Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Justice Scalia, in his dissent, accuses the Court of causing Americans to be killed:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.

I can only assume from this statement that Scalia does not feel that the right to habeas corpus is a "time-honored legal principle vital to our constitutional Republic."

Benjamin Franklin said, “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”

If the men and women of our military are dying now to protect our freedoms in this great nation, then we need to honor those sacrifices by not doing away with those very freedoms that they are dying to protect. The U.S. Supreme Court took a brave step today to preserve those freedoms against those in our government who would just as soon take them away in the name of National Security.

More commentary:

volokh, volokh, volokh
Gideon, Gideon
sentencing law blog
scotusblog

In 1979, Wiesart was convicted of indecent exposure for skinny dipping in a pool with his girlfriend. As a result, he was placed on South Carolina's sex offender registry. in 1996, the sex offender registry statute was amended so that a specific finding is now required that a person convicted of indecent exposure should register as a sex offender. The intent of the amendment was undoubtedly to keep people like Wiesart, who are not sex offenders, off of the registry.

The South Carolina Court of Appeals today decided that the amendment is retroactive, meaning that Wiesart should be taken off of the registry unless there is a specific finding that he is a sex offender.

The sex offender registry requirements net many people that truly do not belong on the registry - a person with an indecent exposure conviction, statutory rape with a teenager close in age range, or children who commit what are arguably sex crimes but who are not sex offenders. The public humiliation of being on the sex offender registry is inescapable for these people. This ruling will hopefully bring relief for at least some people that do not belong on the registry.

Any person who is convicted of a "no parole offense" as defined in § 24-13-100 must complete community