South Carolina Criminal Defense Blog

The S.C. Supreme heard oral arguments Wednesday in the appeal of Jerry Buck Inman, who pled guilty to murder and was sentenced to death in Spartanburg County. During the sentencing phase of the trial, Solicitor Bob Ariail threatened to prosecute the defense's mitigation witness because she was not licensed in South Carolina, prompting her to refuse to testify.

The defense had hired a social worker to testify about Inman’s mental illness and troubled childhood. But during questioning about her credentials, Solicitor Bob Ariail told the social worker she was testifying without a proper license in South Carolina and suggested she could face charges for practicing without a license.

Toal said the court has made it clear South Carolina will accept out-of-state licenses and called Ariail’s questioning a bullying tactic and an attempt to “scare the very life out of this witness.”

“This court is deeply concerned with this win at all costs attitude among some of the state’s solicitors,” Toal said. “How can we get that message out?”

The trial judge ruled that what Ariail did was prosecutorial misconduct. The only way to send a message is 1) to overturn convictions where misconduct occurred; 2) to discipline prosecutors who commit misconduct; 3) to allow tort liability in appropriate cases; or 4) to allow criminal liability in appropriate cases. 3 and 4 are not going to happen. 2 is not likely to happen, although there are times when disciplinary counsel takes notice (for example the ethics trial against the Maricopa, Arizona, county attorney which is going on now). As a practical matter, the only sanction that is left is in the hands of the appellate courts.

Overturn the sentence. Inman is not going anywhere. If I read the news account correctly, he asked for the death penalty - he probably is going to get it. If he does not, he is still not going anywhere - he pled to capital murder and he will receive at a minimum a sentence of life without parole. Why a prosecutor feels that it is necessary to act the way that Ariail did is beyond me - there is no need to cheat or bully in order to win a case like Inman's. Why not take the high ground, wear the white hat, prosecute the case honestly and ethically, and get a clean conviction and sentence?

The State article highlights some prior South Carolina cases where the death penalty has been overturned as a result of prosecutorial misconduct:

The state Supreme Court has dealt several times with prosecutors who crossed the lines of fairness in pursuit of a death sentence. In 2000, the court overturned the death sentence of David McClure for killing his father and his girlfriend in Barnwell County because then-Solicitor Barbara Morgan sat in the witness chair and suggested McClure had no remorse for the crime because he did not testify.

In 2003, the justices overturned a death penalty case for a man convicted of killing a Horry County police officer because investigators in Solicitor Greg Hembree’s office talked to the families of jurors as part of background checks the day before the trial started. They said jurors could have found the checks intimidating.

And in 2007, the justices overturned a death sentence for a Lexington County father for killing his infant daughter after Solicitor Donnie Myers cried during his closing argument and staged a mock funeral procession for the baby that included the girl’s crib draped in a black shroud.

Since the fiasco in Spartanburg, where the trial had to be halted until the Court could confirm that the witness was permitted to testify, other prosecutors, including in Horry County, have attempted to discredit this same witness by cross examining her on what Ariail did - if what Ariail did is prosecutorial misconduct, other prosecutors are now following in his footsteps and committing misconduct in their own cases on the same issue. This is one reason why the Supreme Court needs to send a message on this issue - so there is no question that what they are doing is improper. Prosecutors should not be able to point to this case and justify their own conduct with the fact that Inman's case was not overturned or that it was held to be harmless error.

Troy Davis was killed at 11:08 PM last night. He was murdered by justices of the United States Supreme Court, by state and federal judges, by prosecutors, by witnesses who claimed that he committed a murder only to later recant their testimony, by the employees of the State of Georgia who carried out the execution, and others - a vast conspiracy to commit murder when you pause to consider the scope of it. Many bloggers and opinion writers state that Troy Davis was murdered by the State of Georgia - you can say that if you like. But saying "the State of Georgia" committed a murder really just spreads the blame, giving them a shield of a non-living construct, a "state," to use as a shield. He was murdered by people, and a lot of them.

Amnesty International condemned the execution in a statement. "The U.S. justice system was shaken to its core as Georgia executed a person who may well be innocent. Killing a man under this enormous cloud of doubt is horrific and amounts to a catastrophic failure of the justice system," Amnesty said.

Seven out of nine witnesses from his trial have recanted, a federal judge has stated that the testimony of a jailhouse snitch, who testified that Davis confessed, was "patently false," ballistics evidence that was used against him at trial has been called into question, and in his last days he was denied the opportunity to take a polygraph examination. He was accused of killing a police officer, and the pressure that law enforcement, prosecutors, and courts are under to bring someone to justice in such a case is undeniable.

The prosecutor who killed him, the victim's family, and others still publicly support the conviction and the death penalty.

Maybe Davis was guilty, and seven out of nine witnesses are lying now as opposed to then. Maybe he is innocent. It appears that, as a society, we don't really care.

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?

Easter is very relevant to criminal justice - the Easter story is the story of a revolutionary who was persecuted, wrongfully convicted, and executed by an overpowering government which had no checks and balances. There were a few thought provoking Easter posts from around the blogosphere today:

Scott Henson at Grits for Breakfast writes about the criminal justice themes hidden in plain sight within the Easter story - Jesus, the Son of God, was killed for his beliefs, while living by the laws of men all the way to the bittersweet end, and "is the all-time poster child for the innocence movement."

Christmas is a story about family. Easter is a story about a wrongful criminal conviction, the misapplication of the death penalty, the overweening power of the state, and the irrepressible urge of humanity to resist it.

Paul Kennedy at the Defense Rests writes about how "Jesus was a revolutionary who was killed because he represented a threat to the state."

And that's just what Jesus did. He stirred up the masses with his parables of the ways in which the people were being oppressed by the Romans. He inflamed passions with his parable of the ways in which the high priests collaborated with the Romans. He taught the masses the importance of being self-sufficient.

Blessed are the meek, for they shall inherit the earth. -- Matthew 5:5

Those are the words of a revolutionary. . . These ideas were a threat to the status quo and to those who benefited from the way things were. Jesus had to die - his mere presence was a threat to the high priests.

Finally, at the risk of alienating all Christian readers of this blog, I share with you Ken Gibson's zombie apocalyptic version of the Easter story over at the Windypundit Mark Draughn's blog.

Edit: I edited this post after Mark Bennett pointed out in the comments that the original content was not originally from a listserve member as I had thought, but was in fact Grits for Breakfast's post in it's entirety.

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

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

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

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

In State v. 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.

Raymondeze Rivera was sentenced to death this evening. His story, and the story of the victims in his case, is difficult to hear. Rivera was born a blank slate, an innocent child with no evil in his heart. This innocent child suffered horrors as he was abused by those who should have loved him the most, parents who were most likely subjected to similar abuse themselves as children:

The jurors also have heard experts, as well as Rivera’s family and friends, talk about how Rivera was abused by his alcoholic father as a child. His aunts talked of how Rivera’s father, Stanley, admitted to pushing his youngest son down a flight of stairs.

Social workers said they learned through interviews with Rivera’s family members that Rivera was locked in a basement as a boy where he was tied and held without food. Nicholas Cooper-Lewter, a social worker and a faculty member at the University of South Carolina, said Rivera was sexually abused by his father and was forced to watch violent pornography.

Two of Rivera’s aunts told jurors that extreme physical abuse has spanned at least two generations in their family.

In 1999 Rivera was jailed for assaulting Pheobe Kennedy:

He said it was when he sat in jail, awaiting trial on charges that he assaulted Kennedy, that his heart began to change.

“There was violence all around me in jail there,” Rivera said. “I stayed there almost eight months. That’s when I started to change, and I started to hate.”

Although there is likely some truth to this - jail is a violent place where hate breeds - I suspect that his condition began much earlier in his childhood, through no fault of his own. More recently, Rivera was charged with the violent murders of two women - Kwana Burns and Asha Wiley. According to testimony this week, "Wiley begged for her life, hoping to convince Rivera to let her go. Burns instead fought against Rivera, slapping him and screaming for her 2-year-old daughter, Kamille, as he strangled her."

His path through life ultimately led him to this day, when he stood in front of a jury and, instead of pleading for his life, and despite the best efforts of his attorneys, asked the jury to allow the state to kill him:

"I have already decided my judgment," Rivera said. "I wanted the death penalty. Since 2006, this is what I wanted, all along. I didn’t want any help. No, I am not mentally ill. I am just an insane person bent on evil. A cold-hearted, calculated killer.". . .

“I made no excuses for what I did,” he said. “I couldn’t stand here, like my attorneys, and ask you for mercy. I don’t deserve mercy. I never gave mercy to Asha Wiley or Kwana Burns – not one time. I made them suffer. I wrapped them up and hog-tied them. Is that someone who deserves mercy?”

So the cycle of abuse continues, as society itself, in one more act of evil, because he is evil, snuffs the life of Raymondeze Rivera and completes the work that was begun by his parents and their parents long ago. There may be an appeal, but if he continues to ask for death at the hands of the state there is not much doubt that he will receive it.

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.

Miles Ferguson was acquitted of homicide by child abuse this week following a trial that took nearly two weeks.

Stephen Stanko was sentenced to death this week after his second trial and conviction. After he was convicted and sentenced to death in Georgetown county, the 15th Circuit Solicitor's office prosecuted him again for an Horry County murder, because one death sentence was not enough. Now they get to kill him twice.

From CNN:

Muhammad's attorney had argued his client was not given sufficient time to file his final appeal, but said Tuesday -- after the high court and the governor declined his request for a stay -- that he would make no further efforts to delay the matter.

"We respect their decisions and will make no more legal efforts to stop this process from going forward," said lawyer Jon Sheldon in a written statement. "In its effort to race John Allen Muhammad to his death before his appeals could be pursued, the state of Virginia will execute a severely mentally ill man who also suffered from Gulf War Syndrome the day before Veterans Day."

No apologies for what this man did and every sympathy for the families of his victims, only questions if anyone is listening: Is state-sanctioned murder any less of a sin than murder in a back alley? What circumstances made this man do what he did?

Some of us turn our heads, some tacitly allow the death penalty because we trust others to make these weighty decisions for us, some clamor for more executions with a thinly veiled thirst for blood and murder.

Is the continued viability of the death penalty in our country the result of a variation of the psychological phenomena of diffusion of responsibility? If one conscientious person is handed a pistol and told, "we as a society believes this person deserves to die - kill him for us," what are the odds that the one person would take aim and kill? What if 20 people were to share the guilt for taking the bad actor's life? 307 million?

What bothers me the most about the death penalty in our country is the hypocrisy of it. For example, the attempts to make it appear as a clinical and clean procedure and to create the appearance that there is no pain. Or the notion that it will have a deterrent effect - many of the people that are executed are of limited capacity, mentally ill, or addicted to drugs. Will killing these people deter the next mentally ill, mentally retarded, or drug-crazed person from murder?

If we are going to have a death penalty, we should do away with the pretenses. Once a person has been sentenced to death, they should be taken to a public place and their head should be blown off at point blank range with a shotgun. It would be quick and painless. It should be televised.

More on the execution of Cameron Todd Willingham:

- Governor Perry's general counsel at the time of Willingham's execution, now a Texas Supreme Court Justice, was himself indicted for arson in 2008.

It gets even stranger. The Texas blog Dog Canyon reports that Gov. Perry's general counsel at the time of Willingham's execution was himself indicted in an arson case in 2008. David Medina was able to get the indictment dismissed after questioning the judgment of the arson investigators for failing to look at possible causes of the fire other than arson—precisely the criticism leveled at investigators in the Willingham case. The Harris County District Attorney's refusal to bring charges against Medina moved two members of the grand jury that indicted him to speak out publicly against the decision. Medina now sits on the Texas Supreme Court. Perry appointed him to that position in 2004.

- Willingham's trial lawyer David Martin speaks out and says that his client was guilty:

Martin loudly protests that he did a wonderful job and that the experts now claiming his client was innocent are not credible. What should we think of an attorney who goes on national television to proclaim his client's guilt? From looking at the Texas bar association's website I could not tell if this guy is still a practicing attorney - he may be retired.

Throughout his interview, he repeatedly says that his job as a defense attorney is not to believe his client, but that his job is to test the state's evidence which is what he did. I beg to differ. A defense attorney's job is to present a complete defense for the client, to investigate the case, and to fight for them. If you can't believe in and care about your client a jury is not going to believe in or care about your client either. This guy is now saying on national television that he always thought his client was guilty.

Martin says that for the last 20 years he has represented the interests of businesses - I wonder how his corporate clients would feel about him going on national television to vilify them, discussing details of their case in an attempt to justify why he lost their trial?

- According to a Gallup Poll, knowing that innocent persons are executed would not sway the opinions of many death penalty advocates.

- Two of four black men executed 94 years ago here in South Carolina were pardoned on Wednesday, the first to be posthumously pardoned in a death penalty case. Thomas and Meeks Griffin were great-uncles of a local radio talk show host, Tom Joyner.

Texas Governor Rick Perry replaced three members of a panel which was investigating Cameron Todd Willingham's 2004 execution for the murder of his family by arson. Why are people saying this is a cover up?

- Perry had denied a last minute appeal which had included a report by an arson expert debunking the junk science used to convict Willingham.

- Perry is running for re-election in 2010, and now has the uncomfortable distinction of being labeled the governor who allowed his state to execute an innocent man without lifting a finger to stop it.

- The replacements were made within 48 hours of a critical presentation which was to be made by arson expert Craig Beyler, who had been retained by the panel to assist in the investigation.

- The chairman of the committee was replaced by Williamson County district attorney John M. Bradley, a political ally of the governor, who immediately canceled Beyler's presentation.

- The governor was told by the committee that replacing the members now would disrupt the work that they had done on this case.

- According to Dogcanyon.org, the governor's office worked hard to kill funding for the commission during the last legislative sesssion.

- If the commission had gone forward as planned, the final report may have been released in the middle of the governor's primary.

- Despite the new evidence by at least three forensic experts concluding that there was no evidence of arson, the governor's position is to say that there was overwhelming evidence of guilt and that he agrees with the decision of the courts.

Cameron Todd Willingham was executed in Texas in 2004, after being convicted of murdering his family by arson. For the past month, the media and law blogs have been buzzing with news of reports that the junk science that Willingham's conviction was based on was bogus, and that this is the clearest case of an innocent person being executed by a state.

A panel that was investigating the claims has been replaced by governor Rick Perry, 48 hours before the panel was to hear from arson expert Craig Beyler, who had been retained to assist in the investigation.

Beyler's report is the latest of three to conclude that arson was not the likely cause of the 1991 fire, and the first commissioned by a state agency. Death penalty opponents say an impartial review of the Willingham case could lead to an unprecedented admission that the state executed an innocent man.

The Beyler report concluded that the ruling of arson at the heart of Willingham's conviction "could not be sustained" by modern science or the standards of the time. The report, filed in August, said the state fire marshal who testified in Willingham's trial approached his job with an attitude "more characteristic of mystics or psychics" than with that of a detective who followed scientific standards.

Perry, who faces a Republican primary challenge in his bid for a third term next year, refused to issue a last-minute stay of execution for Willingham in 2004 and has said he remains confident that Willingham was guilty. So have authorities in Corsicana, south of Dallas, who prosecuted Willingham in his daughter's deaths.

Despite their requests to remain on the panel, the governor says that he is replacing them because their terms are up. Possibly there is no desire to sabotage the investigation on the part of the governor, but this was a critical time in the case to announce the replacements.

The death penalty phase of the trial of Colin James Broughton, who was charged with murder and armed robbery in Charleston, South Carolina, ended in a mistrial this morning following new revelations that the state had intimidated witnesses in an attempt to influence their testimony:

“That effort to intimidate strikes at the very heart of our legal system,” [Circuit Judge] Nicholson said. “I just don’t think the court can tolerate that, especially in the death-penalty phase.”

Defense attorney Bill McGuire told The Post and Courier on Monday that a Berkeley County jail official had urged guards not to paint too rosy a picture of Broughton on the witness stand.

The alleged intimidation came to light Monday as Nicholson questioned the guards in his chambers, outside the view of the jury. The guards had backed away from their previous comments that Broughton has behaved well inside the jail since his arrest for the 2006 slaying of Shirley Birch

This is the same trial where the original trial judge, Circuit Judge Deadre Jefferson, had ordered defense attorney Beattie Butler to remain mute in the courtroom and not to speak other than to whisper in Bill McGuire's ear; and where McGuire had filed motions alleging that Judge Jefferson, Chief Justice Toal, and Patton Adams had attempted to get McGuire to drop Beattie from the defense team:

Patton Adams, the director of the S.C. Commission on Indigent Defense, asked McGuire to drop his request to add Butler to the defense team.

McGuire said in the pleading that he understood the request was initiated by Jefferson and relayed to Adams through S.C. Supreme Court Justice Jean Toal.

"It was further relayed that failure to waive the issue would anger Judge Jefferson, Jean Toal and the rest of the South Carolina Supreme Court," one of McGuire's pleadings said.

The right result was reached in the case - whether or not you believe in state-sanctioned killings in the name of justice, you have to agree that we should not be putting citizens to death under these circumstances.

The next question is, whether there will be an independent investigation and prosecution of those responsible for instructing the guards not to testify for Broughton. Witness tampering and obstruction of justice are crimes that are prosecuted vigorously, because they interfere with the administration of justice and they undermine the operation of our court system. Will we look the other way when agents of the state are the alleged criminals?

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The state is seeking the death penalty for Colin James Broughton, who is charged with murder and robbery in Charleston, S.C. Recent developments in the case however, reported by the Post and Courier, already are casting doubts on the integrity of the process.

There are three defense attorneys working on the case: Bill McGuire, Ashley Pennington, and Beattie Butler. When Butler was asked to assist in the trial, Circuit Judge Deadre Jefferson ordered that Butler could not speak in the courtroom, and that he would only be allowed to "pass notes and whisper in McGuire's ear." According to pleadings filed by the defense, Judge Jefferson's decision was "due to her personal issues with Mr. Butler."

The defense also alleges that when McGuire objected to Judge Jefferson's order,

Patton Adams, the director of the S.C. Commission on Indigent Defense, asked McGuire to drop his request to add Butler to the defense team.

McGuire said in the pleading that he understood the request was initiated by Jefferson and relayed to Adams through S.C. Supreme Court Justice Jean Toal.

"It was further relayed that failure to waive the issue would anger Judge Jefferson, Jean Toal and the rest of the South Carolina Supreme Court," one of McGuire's pleadings said.

Judge Jefferson has now been replaced by Circuit Judge J.C. Nicholson Jr., who has denied McGuire's request to be relieved as counsel and who declined to overrule Judge Jefferson's prior order. McGuire subpoenaed Patton Adams and Chief Justice Toal to a hearing on Thursday, but Judge Nicholson did not allow them to be called as witnesses.

If a judge does not feel that it is appropriate to have three attorneys working on a case, personal differences aside, why not say "no sir, you may not assist the defense in this case." I mean, I doubt that that would be appropriate or fair and if not it may be appealable - but if that is the judge's ruling, it would be direct at least. If the allegations are true, that the trial judge went through the Chief Justice and Director of SCCID to pressure McGuire to remove Butler from the defense team, that conduct certainly calls the integrity of the entire proceeding into question and the defense should have been permitted, at a minimum, to make their record exploring the issue.

My hat's off to Bill McGuire and the rest of the defense team for standing firm in the face of pressure and fighting not only for their client but for the integrity of the justice system.

Fifteenth Circuit Solicitor Greg Hembree's office says the prosecutor recently received an award from the Association of Government Attorneys in Capital Litigation at the group's annual meeting in Miami.

Hembree was recognized for his prosecution of several high-profile death penalty cases, including the conviction of Stephen Stanko.

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.

Today, New Mexico became the 15th state to abolish the death penalty. New Mexico Governor Bill Richardon's office reported that phone calls, emails, and walk-in's to his office expressing their opinion on the bill were overwhelmingly in favor of repealing the death penalty:

As of noon Wednesday, the governor's office said it had received 10,847 phone calls, e-mails and walk-in comments from people who wanted to voice their opinions on the legislation.

Of those, 8,102 were for a repeal of the death penalty and 2,745 were against it, according to Richardson's office.

In a press release, Richardson stated:

Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime. If the State is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong.

But the reality is the system is not perfect - far from it. The system is inherently defective. DNA testing has proven that. Innocent people have been put on death row all across the country. . . .

From an international human rights perspective, there is no reason the United States should be behind the rest of the world on this issue. Many of the countries that continue to support and use the death penalty are also the most repressive nations in the world. That's not something to be proud of.

In a society which values individual life and liberty above all else, where justice and not vengeance is the singular guiding principle of our system of criminal law, the potential for wrongful conviction and, God forbid, execution of an innocent person stands as anathema to our very sensibilities as human beings. That is why I'm signing this bill into law.

Powerful words. If only we could all agree that justice and not vengeance is the singular guiding principle of our system of criminal law, and indeed that vengeance does not equal justice.