South Carolina Criminal Defense Blog

The Topeka City Council has announced that it will no longer prosecute domestic violence cases, following the County District Attorney's announcement that it would no longer prosecute any misdemeanors.

Shawnee County has already dropped 30 domestic violence cases since it stopped prosecuting the crime on Sept. 8. Some 16 people have been arrested for misdemeanor domestic battery charges and then released after charges were not filed.

County District Attorney Chad Taylor has reportedly offered to review all misdemeanor cases filed in Topeka for potential prosecution, including those now handled by the city's municipal court, in exchange for a one-time payment of $350,000 from the city.

It sounds like a pissing contest between the City and the County prosecutor to me - the City announces that it can no longer prosecute CDV's, which is a move certain to get the public's attention and put the blame on the County prosecutor.

I wonder if they were ever providing defense counsel for misdemeanors in Topeka, Kansas. If not, then this only levels the playing field, right?

We've had a few cases lately where a magistrate or municipal court judge has denied bond on CDV charges. It happens before we get involved in the case, because the bond hearing is usually held the day of or the day after the arrest, before we are retained. It happens when the alleged victim appears in court and tells the judge that they fear for their life and that the defendant is a violent person (victims are often coached on what to say by victim advocates and police officers before the hearing). When I get a case where this has happened, usually I'll file a motion to reconsider bond first, and if that is denied by the lower court judge we have to go to a circuit court judge to get our client released.

I've been meaning to blog about this for a while, because it is happening fairly often and it is wrong. To deny bond on a misdemeanor charge in the municipal or magistrate court is in violation of the South Carolina Constitution and it is in violation of South Carolina's bond statutes. Judges are not advocates. They are not there to please victims, police, prosecutors, or defendants. They are sworn to uphold the Constitution and laws of our State and to be a neutral arbiter.

Regardless of the truth or falsity of the alleged victim's claim that they fear for their life, a magistrate or municipal court judge cannot deny bond for criminal domestic violence first offense:

1. Except under some limited circumstances which are outlined in the Constitution and the bond statutes, a defendant is entitled to a reasonable bond to ensure his appearance in Court. Bond is not intended to punish a person before they have been convicted.

2. Article I, Section 15 of the South Carolina Constitution mandates that a defendant must be released on his own recognizance (not required to pay a bond at all) except when charged with a capital crime (punishable by the death penalty) or when charged with a statutory violent offense (violent crimes are listed in S.C. Code Section 16-1-60, and everything that is not listed in 16-1-60 is a non-violent crime), after considering the nature and circumstances of the event.

3. Section 17-15-10 states that a defendant charged with a non-capital offense shall be released on their own recognizance without surety unless the Court makes an explicit finding of fact that justifies a surety bond.

4. Section 17-15-10 lists conditions of release that may be imposed on a defendant when the Court makes a determination that a personal recognizance will not ensure the defendant's appearance in court or that the defendant poses an unreasonable danger to the community; however the Court is not authorized to deny bond on a non-capital, non-violent offense.

5. Section 22-5-530 provides that a person charged and to be tried before a magistrate or municipal judge is entitled to deposit with the magistrate or municipal judge bond in an amount not to exceed the maximum fine in the case for which the person is to be tried.

6. Section 22-5-530 further states that an individualized hearing must be held when a person is charged with criminal domestic violence and that the victim of the offense must be notified; however, it does not authorize the Court to impose bond in an amount greater than the maximum potential fine and it does not authorize the Court to deny bond for criminal domestic violence first offense.

7. Section 16-25-120 provides additional factors that the Court may consider when setting bond for a person charged with criminal domestic violence, provides that the Court may issue a restraining order or order of protection in appropriate cases, and requires that the Court inform the defendant in writing of his right to counsel including court-appointed counsel; however this section does not authorize the Court to impose bond in an amount greater than the maximum potential fine and it does not authorize the Court to deny bond for criminal domestic violence first offense.

This post is for South Carolina attorneys, and judges if any are reading. If you are representing someone charged with CDV and their bond was denied, do not advise them to plead guilty to get them out of jail. It is not a great leap to suspect that bond is being denied in order to force a guilty plea out of the defendant, and if you advise that client to plead to the CDV just to get out of jail you are part of the problem. File a motion to reconsider bond, copy and paste the code sections above into your motion, and if the motion is denied file a writ of habeas in the Circuit Court. If you can get a hearing faster in the Circuit Court, forget the motion to reconsider and file the writ in Circuit Court.

Recently, I’ve been receiving emails from the Young Lawyers Division asking me to volunteer as a special pro bono prosecutor in criminal domestic violence cases. This program is the brain child of our Attorney General, Henry McMaster, and is designed to increase conviction rates in criminal domestic violence cases.

The problem with this program is it isn’t designed to seek justice, truth, or fairness. It’s designed to increase convictions. Prosecutors have a duty to examine cases and look for the truth in the situation. I don’t know what the training is like for these special pro bono prosecutors, but I imagine that what little they have focuses not on finding truth and seeking justice, but on winning and getting convictions.

No similar program exists for people wrongly charged with criminal domestic violence. Our legal system is supposed to have a framework of innocent until proven guilty. Unfortunately for people wrongly accused, programs like this one push the burden to the defendant to hire a defense attorney to seek the truth and justice forgotten by the prosecutors.

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

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

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

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

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

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

A Baltimore judge performed a marriage ceremony for the Defendant in a criminal domestic violence case, during trial, so that the victim could claim spousal immunity. "Judge Darrell Russell Jr., the Baltimore County District Court judge assigned to the non-jury trial, performed the wedding ceremony in his chambers for defendant Frederick Wood and his girlfriend."

According to the article, the judge stopped the trial, sent the two to get their marriage license, and then married them in chambers when they got back. They resumed the trial, the new wife claimed spousal privilege, and the defendant was found not guilty. Following the trial, the judge proclaims:

"Mr. Wood, I found you not guilty, so I can't sentence you as a defendant in any crimes ... but earlier today, I sentenced you to life married to her."

The judge has, at least temporarily, been "reassigned to chambers," meaning he will not be hearing cases while the matter is being reviewed.