South Carolina Criminal Defense Blog

At least in the Fifteenth Judicial Circuit, Horry and Georgetown Counties, it is office policy to redact all discovery to remove all information on all witnesses, including contact information, sometimes their names, and even incident locations. It is done in every single case, regardless of the nature of the case and whether the defendant has gang affiliations. The solicitor's office refuses to provide witness information even where the defense agrees to a consent order that the information will not be provided to the defendant, and will only provide the information when a judge orders it.

There is no way that a defense lawyer can conduct an independent investigation when the prosecutor hides information about the identity and location of witnesses, and in many cases this is exculpatory information that must be provided under Brady. Witnesses, including the complaining witnesses, often have very different versions of events than the police and prosecutors, and can point the defense toward other helpful witnesses or evidence. Not always, but often enough that in my opinion it is malpractice not to independently investigate and interview witnesses.

We're filing motions to compel in many of these cases. I suspect that most attorneys are letting this go - don't. If you are getting discovery that is redacted to the point where it is meaningless, file motions to compel, push the issue, and don't let this become an accepted standard practice throughout the state.

Edit: I understand that the purpose of redacting discovery is to protect victims and witnesses. There is middle ground where victims and witnesses can be protected and an accused person's right to a fair trial can also be protected. And, believe it or not, most criminal defendants are not blood thirsty killers.

When I see injustice, and especially when I see it happening in a courtroom, I feel alternately enraged, disappointed, saddened, and then inspired to do more and better to make a difference. I see a police detective who has no evidence but has a suspicion and feels the pressure to make an arrest, threaten potential witnesses, threaten them with life in prison and the loss of their family, and tell them word for word what to say if they want to stay out of prison. On video. I have seen this same scenario in more than one case.

I see the same detective make promises to help a jailhouse snitch, and look the other way as the jailhouse snitch collaborates with other snitches to put together a story that will fit the detective's theory. The detective conceals exculpatory evidence, concealing it even from the prosecutor. The detective lies under oath at more than one hearing, about the evidence, about the testimony, about his conversations with the witnesses.

A prosecutor sees all of this, and somehow inexplicably believes that his duty is to take what the detective has given him and prosecute this case. If the system works, won't a competent and effective defense lawyer prevail over injustice? A very competent and effective defense lawyer exposes all of this, in open court to a judge, and proves all of the above through impeachment with documents, audio, and video evidence.

Yet a judge ignores the injustice, sides with the detective, and allows the case to go forward. Why are we fighting to stop the government from lying, fighting to try to keep the government from prosecuting individuals based on lies? It occurs to me that we need only look to the developments in recent months in the Middle East to see why we keep fighting here, to see why it is important to keep our government in check and to keep our government honest.

Power feeds on itself. The power of government grows and will continue to grow if it goes unchecked. And at its worst it kills, it enslaves, and it abuses its citizens. There are horrendous examples across the world, throughout history, and here in the land of the free.

John Thompson spent 18 years in prison for a crime he did not commit, 14 years on death row, and was nearly executed before it was discovered that prosecutors hid evidence that proved his innocence, effectively conspiring to commit murder themselves. The United States Supreme Court then decided that the prosecutors, who were not and will never be prosecuted themselves, are also immune from lawsuit for what they did. The N.Y. Times printed his story, told in his own words.

Anthony Graves spent 18 years in prison before he was exonerated of rape by DNA evidence, then was denied compensation by the state that took his life away, and now the state has decided to garnish his wages for back child support for the years he was in prison.

The news is filled with stories of wrongful convictions and persons exonerated by DNA evidence after spending years or even decades behind bars - most from the handful of states that require law enforcement to preserve DNA evidence and allow defendants access to have it tested. The wrongfully convicted in other states will continue to live in prison.

Why is it important that we do not allow the government to prosecute with unreliable evidence, to stop law enforcement who lie on the stand, to shut down prosecutors who go forward with prosecutions despite a lack of real evidence? If it is not enough that innocent people are convicted and locked in cages across the country, that innocent people are abused, threatened, sometimes beaten, tazed, or shot by agents of our government, consider that it is a slippery slope, from America to China where the government stops Christians from congregating to celebrate Easter and where lawyers are arrested, detained, or simply disappear when they speak out about human rights abuses.

Or to the absolute extreme, as the Syrian government begins killing its own citizens indiscriminately and without pretense for speaking out about injustice, or the Bahraini government begins to attack and detain physicians for treating wounded protesters, who were attacked by their government because they were protesting.

We have the best government, and the best court system in the world, many Americans say. And in comparison to Gadhafi's Libya it is certainly a miracle of freedom and democracy. But, why is it the best in the world? What are the principles that make it so amazing and what are we doing to make sure that the reality matches our ideals?

A judge found that Deputy District Attorney Troy Benson lied under oath about a videotape that was not provided to the defense in a child molestation case, a case in which the alleged victim had also recanted prior to trial. After spending four years in prison, Augustin Uribe's charges are dismissed and he has been released:

"Mr. Benson's numerous acts of misconduct, culminating in his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed,'' Bryan said. "As such, defendant's motion to dismiss on due process grounds is granted.''

Arizona's Supreme Court says that metadata must be disclosed under the state's Freedom of Information Act:

Hidden data embedded in electronic public records must be disclosed under Arizona's public records law, the state Supreme Court said Thursday in a groundbreaking ruling that attracted interest from media and government organizations.

The Supreme Court's unanimous decision, which overturned lower court rulings, is believed to be the first by a state supreme court on whether a public records law applies to so-called ''metadata.''

Metadata can show when a document was created, when it was revised, and who created or revised the document. In the Arizona case an officer who had been demoted requested metadata embedded in a supervisor's notes, which would show whether the supervisor had back-dated the notes to before the demotion.

Whether FOIA applies to metadata is going to be determined by each state. The next question, that I've never heard asked, is whether Brady applies to metadata - and I think that there is no doubt that it does if the information contained in the metadata is exculpatory. For example, when an officer creates or modifies an incident report in anticipation of trial, long after the events that gave rise to the defendant's charges, that would be information the jury needs to hear and it would be critical to cross-examination of the witness.

Would the prosecutor or police voluntarily turn over metadata? Well, no - if they are aware of an issue with a document that would help the defense they are already under an obligation to provide the information. If they're not disclosing the issue with the document they are not going to disclose the metadata proving the issue with the document, either. Metadata will be useful only when the defense already knows or suspects that there is an issue with the document and needs the evidence to prove it. If the prosecution does not provide the information voluntarily it will take a motion to compel and possibly an in-camera review of the material by the trial judge to determine its impeachment value.

Would it be worthwhile to add a request for metadata to Brady motions, and to keep an eye out for situations where officers or other prosecution witnesses have falsified or modified documents prior to trial?

This morning I argued a motion to compel with a municipal court prosecutor, who informed our judge that Brady does not apply to an internal investigation of officers who beat the crap out of my client. The argument was something like: a) it is not in my file, so I do not have to disclose it; b) I purposefully did not look at it, so I would not have to disclose it; and c) the defense has the burden of proving what it is that is in the file before the prosecutor can be forced to disclose it.

I point out that in Kyles v. Whitley the U.S. Supreme Court is very clear that the prosecutor has a duty to seek out Brady material and disclose it when it is in the possession of a government agency, but the prosecutor argues that there is no such duty. Eventually we discover that the pros. has not read Kyles v. Whitley (probably has not read Brady for that matter). The result of the hearing is that the pros. should read the case and then let our judge know if the judge still needs to review the materials.

Later in the day, I get a phone call (followed by a written motion) from the pros., who says that the officers have their own counsel, and that the officers, because they have counsel, have standing to object to the disclosure of the Brady material. So, we will have another hearing on the matter.

The same prosecutor today, in an unrelated trial, argues that an accident report, which contains statements from a witness who is not present to testify, is admissible because a) it is the officer's observations and therefore it is admissible; and b) because they always admit accident reports in the municipal court.

Later, when I tell the jury in closing that they didn't hear any evidence in this case because the pros. didn't call any witness that actually saw the accident occur, the pros. objects, arguing that he has no burden to call the "victim" as a witness and that, since I have commented on their failure to call his "victim," he should now be allowed to comment on the defendant's failure to testify as well.

I understand that for the layperson, the point of all of this may not be clear. There are some basic rules and principles in criminal law (quite a few, actually), that lawyers are (should be?) taught in law school. Here are some:

1) The prosecution has a duty to disclose exculpatory evidence, including direct evidence of innocence and material that can be used for impeachment purposes at trial. The duty is a legal one and an ethical one. When prosecutors ignore this, or rationalize not disclosing, innocent people get convicted of crimes.

2) Hearsay is inadmissible, with some exceptions that are listed for you in the rules of evidence. Police reports and accident reports, which are based on information provided from people at the scene, are no more admissible than the officer's testimony as to what witnesses told him.

3) The burden of proof is on the prosecution.

4) Just to be clear, the burden of proof is not on the defendant.

If you are going to prosecute (or defend, for that matter) criminal cases, no matter how large or small, at a minimum you should read the seminal cases in your area of law. Please, read Brady.

Read Kyles v. Whitley.

Read Miranda v. Arizona.

Read Crawford v. Washington.

Read the cases that interpret those cases, and yes they keep coming and it will never end. But you are a lawyer, you can do it.

And please, read the rules of criminal procedure and the rules of evidence. Don't make shit up when you are arguing to a judge - they often rely on us to give them the law that applies to a given situation, and therefore they rely on us to be truthful and credible. Thanks.

If I am missing something here, please leave a comment and let me know.