South Carolina Criminal Defense Blog

That's 7 years, 4 months, and 3 days. Two years and two months ago, I received a letter from an inmate. He had been convicted of burglary 1st degree and sentenced to 15 years (the minimum sentence for burglary 1st degree), but he claimed he was innocent and he asked for my help. I get letters similar to this quite often, but this person had funds available and so we agreed to look at his case (that feels terrible to say, but we have to keep the doors open and the bills paid).

His direct appeal had been denied but we were within the time limit for PCR, so I got a copy of the transcript from his trial, reviewed it, and we filed for post conviction relief. Without getting into details, his attorney had done a terrible job presenting his case and there was at least one glaring example of a constitutional right that had been denied to him at the trial.

One thing that pisses me off is when I talk to an attorney in the context of PCR, and they explain to me that their job is to "make sure that their client gets a fair trial," and that is what they did. Well, no - your job is to win the case for your client and to defend him zealously. But besides, if he got a fair trial, why are we in PCR court arguing that you gave ineffective assistance of counsel? In general, the fact that someone has filed a PCR against you should not be taken personally - it is an essential stage of the system and you should be glad that someone is looking out for your former client. But, don't tell me a defense lawyer's job is only to make sure their client gets a "fair trial."

The PCR was denied by the trial court. Despite no evidence presented at the PCR hearing that contradicted our claims. We appealed the denial of PCR to the S.C. Supreme Court, and they reversed and granted our guy a new trial. A new trial that I was ready to win for our client, although there are never any guarantees. I believe that there is a very good chance that he is innocent.

Today we went to court for an arraignment and bond hearing, and instead he pled guilty to a lesser included offense, to time served. Two thousand, six hundred and eighty three days time served. I understand that it had to be done, and he is going home. I suspect he admitted guilt because he feared the months or even years that it could take before his case was retried. And he is going home, it's a victory and I should be happy for him.

Why is a defense lawyer's job more than to make sure their client gets a "fair trial?" Because it has been 2683 days since this guy has seen the outside of a jail cell. Because if someone is going to be caged, dehumanized, abandoned by society, and lose 7 years or 15 years or their entire life, their defense lawyer needs to be doing everything that is ethically within their power to help that person.

This one came right after my last post:

Good day,

My name is Mr William Wilcox , I work with the Euro Lottery. I am
soliciting your assistance for a swift transfer of 4,528,000 GBP, should
you be willing to assist me in this project? you will be giving me just
40% of your winnings.

Just as a brief,you just have to register online,due to my position in the
company I can make it happen that you would be a winner of the above
stated amount.

Naturally, every body would like to play a lottery if they are assured of
winning.

I am assuring you today to be a winner, please do not take for granted
this once in a life time opportunity as we both stand to collectively gain
from this at the success of the transaction.

Should you be willing to assist me in this transaction please do respond
to e-mail: mr.wwilcox09@live.hk

Regards,
William Wilcox

I feel terrible for all of these people in far away countries that are having such a hard time transferring their large sums of money into the United States. There seems to have been quite an explosion of rich divorcees, diamond-fortune heirs, and wealthy princes from war-torn third world nations that have had to resort to email spam to find an attorney lately.

I don't even know when the spam started, a year ago? Two? Anyway, now I get an average of 4-5 a day. I don't recall when it began, but I am sure that I never lost a moment wondering if an email written in badly broken English from an overseas address asking me to participate in a half million - million dollar transaction was legitimate. Now I'm also getting emails purporting to be from the FBI, telling me to contact them to receive my million dollar fortune. Really?

The ABA Journal has had a few stories on unfortunate, gullible attorneys who have had hundreds of thousands of dollars stolen from them:

The FBI reports that the scam begins with e-mail contact from a prospective client who is seeking legal representation in a civil matter, such as a divorce. The supposed client sends the law firm a cashier’s check for a retainer in an amount far exceeding the firm's rate.

When the law firm responds that the client has overpaid, the client requests and the unsuspecting firm sends a wire transfer with the refund. It's after the refund that duped firms learned that the cashier's checks are counterfeit.

Gullible? It's hard to believe that any attorney would engage in any such transaction without ever meeting the "client" or verifying that they are who they say they are and that the funds are legit, based only on an email contact. Even if an attorney has not seen the hundreds of similar emails, and thinks for some reason that they are not going to be ripped off, did they believe that they were about to engage in a legal transaction? Greed is a frightening thing.

Ross Jurewitz, at the San Diego Injury Blog, brings ambulance chasing to the internet with a steady stream of posts that chronicle accidents in San Diego. The common threads to all of the posts:

1) someone dies in a terrible accident
2) "Our office wishes to convey our sincere prayers and condolences to the family and friends of the deceased;" and
3) "If you or a loved one has been hurt or killed in a San Diego auto accident, please call Mr. Jurewitz at 888-233-5020 for a free consultation."

Many blog posts include the name of the person who was killed, and of course they are key-word rich with accident-related terms.

It appears that Mr. Jurewitz is blogging about accidents and including the names of the victims, in the hope that they will google their names and then call him. Obviously, he is knowledgeable about their situation, he is writing about it isn't he? I don't see where this constitutes a violation of any ethics rule on the attorney's part, but ethics does not begin or end with the rules.

I've seen criminal defense "blogs" that do the same thing - regurgitate local news articles on people who are arrested, including the name of the defendant followed by a statement that this person will need an attorney like [xyz law firm] who can help them.

I understand that different lawyers have different opinions on what is ethical and what is not, as does the general public when they see advertisements. Some attorneys believe that any advertising is unethical, others believe that nothing is off-limits. Most fall somewhere in-between. What do you think about Jurewitz's site? Is this targeted direct solicitation (which is prohibited under the rules), or is the fact that it is taken from a news article a loophole for the lawyer to slip through?

H/T Legal Profession Blog: California prosecutor Ben Field has been suspended from the practice of law for four years, for conduct including withholding evidence, failing to inform the defense that a key prosecution witness may have participated in the crime, and initiating searches of the homes of a defendant's family and friends despite a judge's order not to do so without prior approval.

In 2008 I was following Field's story, and it struck me that what forced the California Bar to take action in Field's particular case was the media coverage - it is the state bar's duty to investigate and stop unethical conduct by attorneys, yes even prosecutors, but it was investigative reporting by the Mercury News that brought Field's unethical practices to light. In a three-year study of Santa Clara County criminal trials, they concluded that questionable conduct affected more than a third of all cases, that mistakes at every phase of trial are being tolerated by the appellate courts, and that in the worst of cases, defendants were wrongfully convicted.

Thank you to the news media for doing what state bar associations and appellate courts cannot - regulate our profession when it comes to prosecutorial ethics. The California State Bar Court on February 12 adopted the recommendations of the hearing judge in Field's case, including a four year suspension, and found that:

Field's misconduct was inexcusable and we hold him accountable for unethical behavior in four criminal prosecutions. We conclude that the recommended discipline, particularly the four-year actual suspension, is necessary to protect the public and the courts, to preserve public confidence in the legal profession, and to maintain high professional standards for attorneys.

professional misconduct in four criminal cases over a ten-year period . . . that he violated court orders and directives, performed incompetently, did not respect the court, failed to obey the law, withheld evidence, misled a judge and committed multiple acts involving moral turpitude, dishonesty or corruption.

The Court says that Fields lost sight of the ultimate goal of the criminal justice system, which is "the ascertainment of the truth," and that

he disregarded the the foundation from which any prosecutor's authority flows - "The first, best, and most effective shield against injustice for an individual accused . . . must be found . . . in the integrity of the prosecutor." (Corrigan, Commentary on Prosecutorial Ethics (1985) 13 Hastings Const. L.Q. 537.) Field's misconduct began shortly after his admission tot he bar, involved moral turpitude, spanned a 10-year period and significantly affected the criminal justice system. A narrow reading of his discovery obligations, coupled with the desire to convict, blurred his understanding of a prosecutor's special duty to promote justice and seek the truth.

"The first, best, and most effective shield against injustice for an individual accused . . . must be found . . . in the integrity of the prosecutor."

In disciplinary opinions issued February 8, the S.C. Supreme Court sanctioned two magistrates in unrelated matters.

Greenville magistrate James Hudson was given a 90 day definite suspension (backdated to the beginning of his interim suspension, which was more than 90 days ago), for not ensuring that the office account was properly reconciled. Seems rather harsh, given that the opinion indicates that he did not realize there was a problem at first and when he did see the problem he 1) took steps to correct it and 2) reported himself and asked for an investigation. The ethics violation essentially was for not being diligent in managing his office and not adequately supervising his staff - there are standing Orders on Financial Accounting from the Supreme Court that detail what is required, and the magistrate was not complying with them.

On the other hand, former Lee County magistrate Alston Wesley Woodham was given a public reprimand for fixing tickets - he was approaching officers ex parte to get them to nolle prosse (dismiss) tickets that were written for weight violations on county vehicles at the Lee County Landfill.

Woodham admitted that he was contacted by a state legislator on multiple occasions, and by county officials, who asked him to fix tickets written at the landfill for weight violations, and that the judge then would contact the officers and ask them to dismiss the tickets.

Ticket-fixing constitutes improper ex parte communication and severely undermines the public's confidence in a fair and impartial judicial system. Accordingly, again we emphasize that it is improper for a magistrate to engage in ex parte communications concerning any pending or impending judicial proceeding with an officer, alleged violator, or any third party, including a member of the legislature.

Spartanburg County Clerk of Court Marc Kitchens was arrested this morning on federal drug charges.

Kitchens is accused of stealing and attempting to sell drugs from the Spartanburg County Courthouse's evidence room. He was formally charged with conspiring to possess with intent to distribute cocaine and methamphetamine between April 2009 and January 2010 – a charge that carries a maximum sentence of $2 million and 20 years in prison.

This one is pretty unbelievable. The allegations are that Kitchens took drugs from the clerk's evidence room - drugs that being held as evidence in cases that have already been to court, that is being preserved while a case is on appeal for example - and attempted to sell the drugs to an undercover informant who was working with the DEA.

Via Hall: Criminal defense lawyer Kyle Hunter pled guilty to money laundering after failing to report a $100,000 cash payment from a client, and a second attorney, Charles W. McGowan, has been charged but did not yet plead to the charge.

First rule of criminal defense ethics - the defense lawyer should not go to jail. No fee is worth losing your license to practice law or even your freedom.

Nebraska lawyer Terry L. Haddock wore a wire while visiting with client Shannon Williams at the Douglas County jail, allegedly allowed Williams to use his cell phone to run a drug operation and to order a hit on someone from his jail cell. (H/T Bennett, Hall, and Kennedy )

Like the tale of Frank Pignatelli, a defense lawyer who turned informant against his clients to get help on his own charges, this scenario reeks. Does it violate any ethics rules? I'm not sure - there is no duty of confidentiality in regards to an ongoing crime, and a lawyer cannot give advice to a client who is participating in an ongoing crime (this would make the lawyer an accomplice). But it does seem to violate the Sixth Amendment in a very ugly way to use the sanctity of the attorney client relationship to get evidence on a defendant.

There is no confidentiality and society has no interest in protecting the type of communications that were occurring. But society has a tremendous interest in protecting the trust between attorneys and clients, and this type of situation destroys that by creating an appearance of impropriety. If a defendant fears that his or her lawyer could be an informant working for the government or that anything he or she says is not confidential, the process breaks down.

When I talk to my clients, I need to know the truth and I need my client to trust that I am not going to sell them out. If they start telling me about an ongoing criminal enterprise, then I have to stop them and remove myself from the situation but I still am not going to reveal their confidences. The lawyer who participates in this, like Pignatelli, probably is facing legal troubles of his own and could care less if he is disbarred for what he has done. But what about the prosecutor who set it up or who uses the evidence after the police have set it up?

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.

Back in September, a blog popped up that was scraping the posts of real bloggers, published under the name of Fresno criminal defense lawyer Melina S. Benninghoff. Mark Bennett's investigation turned up what was apparently a former client of Benninghoff's named Wayne Conley whom she was allowing to design and publish her website and develop her online presence.

Bennett later amended his posts to remove references to Benninghoff's name and to reflect that he had talked with Benninghoff and concluded that Conley was doing the damage without her knowledge - I can see where this could happen and, although a definite error in judgment, she should have the opportunity to correct it.

That was at least three months ago, and it appears that Conley not only still has access to her website and blog, but is now defaming bloggers and attributing it to Benninghoff. The attorneys who are being smeared on Benninghoff's website are, coincidentally, also the attorneys with the most successful criminal defense blogs and those who have called out Benninghoff and Conley on what was happening. Conley is what he is, and I doubt that he will change - he wants attention and he is getting it at Benninghoff's expense.

Melina Benninghoff, on the other hand, three months after she was put on notice of what was going on in her name on her websites, now owns this mess. This has got to be the saddest example of "outsource your marketing, outsource your ethics" I have seen yet. If there was not cause for a bar complaint back in September, there is now. And I believe that the defamation that is being published on her website, including claims that bloggers have committed crimes, that they appear drunk in court, and that certain bloggers "hate" their clients, is actionable.

Last month Florida issued an ethics advisory opinion stating that it would be an ethics violation for a judge to "friend" an attorney on Facebook, as it would create an appearance of impropriety (but the opinion allows that an attorney could become a "fan" of a judge on Facebook. Earlier this year, a North Carolina judge was given a public reprimand for "friending" a lawyer on Facebook - although in that case the allegations were that the judge and lawyer were also discussing an ongoing trial via Facebook.

South Carolina has now issued an ethics advisory opinion of its own, advising that a magistrate judge can be friends with law enforcement on Facebook provided they do not discuss anything related to the judge's employment.

It is probably best policy for any judge to stay away from networking sites such as Facebook, but the argument of the Florida ethics panel that being "friends" on Facebook creates an appearance of impropriety is ridiculous - anyone who uses social media such as Facebook knows that the title "friend" on Facebook carries a quite different meaning than it does in the real world. Ex-parte discussion of pending cases on social media sites or anywhere else is prohibited by its own rule.

It's interesting that the opinions thus far specifically are prohibiting lawyers from being "friends" with a judge, but the S.C. opinion approves the "friending" of law enforcement officers by judges.

When two former Pennsylvania judges were indicted after accusations that they had received millions of dollars in kickbacks and payments in exchange for sentencing children to detention centers, one thing that was pointed out was that many of the children who appeared before them were not represented by counsel.

One of the questions that has been asked is why no-one stepped in and stopped it from happening - if the children who stood before the court had counsel as they are entitled to, would the kids for cash scandal have been exposed sooner?

Luverne County Chief Public Defender Basil G. Russin appeared before a commission last month to answer questions including why he did not step in and do something - Russin's response was that there was no funding for juvenile court, he and his lawyers had no training in juvenile justice and, despite concerns expressed to him by an assistant public defender, they did not provide lawyers to juveniles.

"... unfortunately until a month ago, we had no training in juvenile," Russin said last month. "We have, you know, our funding. It's a terrible cop out and a terrible excuse. We didn't know what defenses existed out there. We do now. And now I see all the work we have ahead of us. And I don't know where I'm going to get the money to do this, but hopefully I can get it somewhere." . . .

While testifying, Russin admitted that Assistant Public Defender Jonathan Ursiak expressed concerns to him juveniles appearing before Ciavarella without attorneys.

. . . "I said, we're not going to seek clients. And we don't have the time or the manpower to intervene," Russin said.

It is a cop-out, and Russin's office shares the responsibility for what happened in Luverne County, but nevertheless it also spotlights why funding for indigent defense is important and what can happen when it falls by the wayside.

Robert Simels, defense lawyer and former prosecutor in N.Y. who was convicted of witness tampering in August following allegations that he had conspired with a client to kill witnesses, was sentenced to 14 years Friday.

Audiotape of conversations with an informant were presented at trial, which included statements such as "I'm going to do whatever I gotta do" to win an acquittal, plans to bribe witnesses or harm their family members, and talk of "eliminating" or "neutralizing" witnesses.

When I'm talking strategy with office staff, I've talked about "eliminating" or "neutralizing" witnesses - it's part of preparing for trial. Not buzz words, however, to be using in a conversation with an alleged drug lord from Guyana who is also reputed to have run a paramilitary organization. We shall continue to discuss "figuratively eliminating" and "metaphorically neutralizing" witnesses - conducting an independent investigation and preparing for trial with the goal of discrediting that witness.

I'm often focused on unethical practices by prosecutors and upset by the commonly held perception that defense lawyers are unethical and sleazy - the fact is there are lawyers on both sides who are ethically challenged, and every lawyer should be held to high standards. A prosecutor or defense lawyer who does not live and play by the rules is a dangerous thing.

Yesterday as I waited for my client's case to be called at a preliminary hearing in Georgetown (edit: a preliminary hearing is a probable cause hearing, where only the officer is permitted to testify and a magistrate determines whether there is probable cause to support the arrest), I watched as another attorney argued to the magistrate that his case should be dismissed because the officer had not provided him with a chemist's report prior to the preliminary hearing as required by Rule 6 of the rules of criminal procedure.

The argument sounded good to the audience and to the inmates who were lined up in the jury box waiting their turns. The only problem is that is not what Rule 6 says. My first impression is that the lawyer was intentionally misrepresenting the rule to the court - there was no prosecutor in this court to argue the other side, and the magistrate is not a lawyer. I admit it is possible that the lawyer did not read Rule 6 before arguing about it with the magistrate for nearly an hour, or that the lawyer had read the rule and misunderstood it (he did also say at one point that his client's case should be dismissed, because the officer had not established evidence beyond a reasonable doubt, much less probable cause - chew on that one for a minute).

I'll talk about what Rule 6 does say in a minute, but first the problem that I have with this is the possibility that the lawyer was purposefully misleading a magistrate. Magistrates rarely dismiss a case at a preliminary hearing, and there was little to gain by arguing something that is dead wrong. More to the point, some magistrates rarely listen to a defense lawyer or believe them when the lawyer is explaining how the law applies to their case. Because they don't always trust defense lawyers. And they don't trust defense lawyers because some defense lawyers (like some prosecutors, but that doesn't seem to bother anyone) make things up as they go, or outright misrepresent what the law is.

Rule 6 says that the state can use a chemist's report, or chain of custody affidavits, instead of live witnesses at trial, unless the defense objects to the use of the chemist's report and chain of custody affidavits by either 1) the preliminary hearing; or 2) 10 days before trial if there is no preliminary hearing. If the defense objects to the use of the report/affidavits, then the state must establish its chain of custody and the results of the chemical tests by live testimony.

I include an objection under Rule 6 in every Brady/ Rule 5 motion that we file at the very beginning of representation in every case, because if there is any fungible evidence or chemical tests, I want them to have to prove their case with live witnesses. I can't cross examine a piece of paper. No matter how I read the rule I can't see a justification for the argument this guy made to the magistrate - it's just not there.

My client asked me if I was going to "go after the cop" the way this lawyer did. I pointed out that I'm not there to entertain my client or the audience, that the lawyer was either lying to the judge or he was incompetent and that either way the judge would figure it out eventually when he went back and looked at the rule, and that the lawyer did not get his cases dismissed after all.

When I cross examined the officer in our case (the same officer), I was aggressive but not condescending, and I got a good bit of information out of the officer that may help us in our trial which will come later. I didn't act like a clown for the benefit of the audience. And I did get a dismissal from the judge on one count (small consolation, a proximity charge was dismissed but we still have a trafficking third offense to deal with).

All we have, whether we are arguing to a jury or to a judge, is our credibility. And if we are arguing to a judge, consider that we may well be in front of that judge again, and again, and again. For Pete's sake don't lie to him.

The director of the Capital Appeals Project in New Orleans, Louisiana apparently resigned this month amid allegations of embezzlement:

The director of a nonprofit death penalty appeals agency abruptly resigned this month as state officials were headed to his New Orleans office to inspect the financial records he kept, later finding at least $100,000 in state and other public funds unaccounted for.

Jelpi Picou, an attorney hired in May 2004 by the Louisiana Public Defender Board to run the Capital Appeals Project, resigned from the post Nov. 2, days before members of the state board were to arrive for an inspection.

Given the lack of funding for indigent defense around the country, as defense lawyers struggle to preserve the Sixth Amendment right to counsel, the last thing that we need is allegations of misappropriation of funds by a public defender. It doesn't appear that Picou has been charged yet, and hopefully what they are dealing with is bad book-keeping and not theft of public funds that were designated for representation of indigent defendants.

The 14th circuit public defender was arrested and charged with driving under the influence Tuesday night (the 14th circuit includes Beaufort, Jasper, Hampton, Colleton and Allendale counties).

The public defender who oversees the 14th Judicial Circuit, which includes Beaufort County, was arrested Tuesday night on a charge of driving under the influence, according to the Beaufort County Detention Center log.

Gene Hood, 65, of Beaufort, was arrested in northern Beaufort County and was taken to the detention center just after 8 p.m., Capt. Allen Horton of the Beaufort County Sheriff's Office said.

I don't have any other information about this case, and I'm just passing along what the paper reported. I can think of scenarios where some police would love to set up a defense attorney and arrest them - quite the opposite of the deferential treatment another officer or prosecutor may get during a traffic stop; but, on the other hand, this may be just another example of how a DUI arrest could happen to anyone - cops, lawyers, mill workers, priests, this is one criminal offense that casts a wide net.

Former Mobile County Circuit Judge Herman Thomas originally had 103 charges leveled against him involving paddling and sexually abusing inmates - most of the charges were dismissed either by the court or by prosecutors before trial. He went to trial on 23 charges of sodomy, attempted sodomy, sex abuse and second-degree assault, and Monday he was acquitted on 7 counts and the court threw out the remaining 14 counts which the jury couldn't reach a decision on.

Apparently, after the trial at least three jurors have told the district attorney's office that they believed the result would be a hung jury and that they did not intend to acquit the judge.

Just a day after the verdict, three jurors came forward to Mobile County District Attorney John Tyson with claims that their votes had been misrepresented and they had no knowledge of Neilson’s ability to declare verdicts on the charges upon which they could not reach a unanimous decision. Essentially, jurors have said they thought the end result would be a hung jury.

The district attorney is investigating - of course, it seems that they neglected to poll the jury immediately following the verdict, and there is that pesky double jeopardy clause in the Constitution. I predict the judge is home-free at this point.

An ethical complaint has been filed against an Illinois lawyer accused of lying to the state bar authorities about an ad posted on Craigslist under "Adult Gigs."

Although the May 2009 job ad did not expressly list any sexual job duties, a follow-up letter sent by attorney Samir Zia Chowhan to a woman who responded to the ad stated that "in addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate," alleges a complaint filed yesterday by the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court.

The letter, which is published in its entirety in the ARDC complaint, also states that "this part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction," and notes that a sexual tryout would be required as part of the job interview. Chowhan was a solo practitioner at this time, the complaint says, but shared an office with another lawyer.

Note that the attorney is being disciplined for lying to the commission, but he is not being disciplined for the advertisement. The moral of this story is: when advertising for a hooker/ legal secretary, always be truthful.

Last Saturday private investigators working for attorney Andy Savage located the remains of Katherine Waring, who had been missing for four months. Apparently the investigators notified the police department once they received information on where the body was located, but the police ignored them and did not go to the location to search. After the investigators found the body, they notified the police department and then turned over all evidence relevant to the investigation to the police.

Following the discovery, the Charleston Sheriff's Office, at the Charleston Police Department's request (the police department had been conducting the investigation, but the Sheriff's Office had jurisdiction over the location where the body was found), seized the vehicle of one of the private investigators and took "photographs, notes, and other items" from the car. Andy Savage filed a lawsuit on Monday seeking the return of the items, unspecified damages, and a temporary restraining order to prevent authorities from viewing, using, or sharing the information seized, alleging that all relevant materials had been turned over to the authorities prior to the seizure and that the materials seized included sensitive information protected by attorney client privilege related not only to the Waring case but to other cases.

Yesterday it was announced that a resolution had been reached, in which the materials would be returned and then Savage would turn them over to the solicitor - whether this means the lawsuit is dropped, I don't know.

It appears that Savage was representing only the interests of the victim in this case, but this type of action has implications for defense attorneys as well. Similar to the raid on defense lawyer Keith Gore's office in Texas last year, prosecutors and/or law enforcement agencies cross the line when they run rough-shod over attorney client privilege. (A hearing had been scheduled to determine if the materials sought from Gore's office were privileged or not, and just days before the hearing the prosecution sought and obtained a search warrant for Gore's office from a different judge). In South Carolina, police can obtain a search warrant upon the signature of a municipal court judge or magistrate, which provides no real protection against abuse of the process in some cases.

I'm not saying there is never a situation where it is appropriate for a law office or employee's belongings to be searched, but when privileged materials are likely to be the subject of the search, there needs to be additional safeguards in place. Before any warrant is issued for an attorney's office or the property of an employee of an attorney, the existence of probable cause should be fully heard before a circuit court judge - once the materials have been seized and viewed, there is no going back and there is no real way to protect privileged information at that point. If we allow authorities to obtain search warrants upon the signature of a municipal recorder or any lower court judge, the authorities will abuse the process - our offices, homes, vehicles, and those of our employees are not safe and there is no guarantee that our clients Sixth Amendment rights will be protected.

Attorney Ben Webb was acquitted of a contempt charge this week, brought by a judge in June of this year because Webb refused to testify against his client regarding a failure to appear.

Judges and prosecutors get used to defense attorneys freely telling them the substance of communications with their clients, regarding when they appeared in court, whether the attorney told them to appear in court, and their client's criminal history, and may not know what to do when a lawyer says no. The problem is that the court is trying to balance the lawyer's duty to preserve confidentiality with the lawyer's duty of candor to the court.

The lawyer does have a duty of candor to the court and must never misrepresent facts to the court, but the lawyer does not have a duty to reveal client confidences to the court or to testify against his client in most situations. The ethics rules, the Fifth and Sixth Amendments, and public policy that encourages full disclosure between client and attorney dictate that the attorney must not disclose the information.

In 2007, Kevin L. Barron, a federal criminal defense lawyer in Boston, was accused of smuggling 4.8 grams of heroin into a prison for his client. If you read the original article above, there didn't seem to be much doubt he was guilty:

Kevin L. Barron was being searched by corrections officers at about 5 p.m. yesterday before entering MCI-Cedar Junction when the officers found "small packets of a powdery substance" that turned out to be heroin, said Norfolk district attorney's spokesman David Traub.

Except yesterday he was acquitted of the charges, Gwen Foxworth, the mother of an inmate at the prison, has pled guilty to planting the drugs on Barron and her fingerprints were found on the package, and Barron's client who was accused of selling Barron's address to Foxworth has pled guilty to delivering a controlled substance to an inmate.

With this additional information, maybe Barron could have known about the drugs, but we can also clearly understand how he may not have known. Things are rarely as they seem, or how they are portrayed in the soundbites we get from the media. There is always a deeper story.

H/T to John Wesley Hall

It seems like an awful lot of news stories have cropped up lately regarding judges around the country getting arrested, getting impeached, or just generally not acting very judge-like:

Judge Woody Ray Densen in Harris County, Texas, was indicted for allegedly keying his neighbor's SUV over a parking dispute (captured on camera).

Which reminds me of a South Carolina magistrate who resigned recently after being charged with a similar incident involving car keys and pouring "a liquid substance on the seat and floor." As a side note, this particular magistrate I have appeared in front of and found her to be exceedingly fair and a nice person besides. This was a loss for Oconee County, S.C.

U.S. District Judge Samuel Kent began his 33 month sentence on Monday, and was impeached today by the House of Representatives. Kent pled guilty to one count of obstruction of justice in exchange for the dismissal of five other charges stemming from accusations "of abusing his power as a judge by sexually assaulting two female court employees as well as lying about his conduct to a judicial inquiry, the FBI and the Justice Department."

Pennsylvania lawyer Robert J. Powell has agreed to plead guilty to felony charges stemming from his part in helping judges cover up kickbacks that they received in exchange for sending juvenile defendants to a detention center that was partially owned by Powell. "Powell admits that he created false records to help Ciavarella and former judge Michael J. Conahan hide their income. The Inquirer also reports that Powell admits to paying cash to Conahan."

Prosecutors in Oklahoma have agreed to dismiss indecent exposure charges against Tulsa County Judge Jesse Harris, in exchange for his completion of a judicial counseling program and a deferred prosecution agreement on the lesser charge of gross injury of the public peace.

Baltimore Circuit Judge Alfred Nance ordered a courtroom spectator to spend 10 days in jail after she yelled "love you" to her brother before leaving the courtroom. He apparently reversed his decision 30 minutes later after being called down by a public defender with a conscience.

H/T A public defender

Attorney Regina Criswell was arrested at the Bexar County Courthouse after deputies say they discovered two ounces of marijuana and a chrome-colored marijuana pipe in her bag.

Deputies say Criswell was heading into the Courthouse to go to work. As is standard, security guards went through everyone's bags including Criswell's. That's when they say they found the baggie and pipe. Deputies were called over, and questioned Criswell. The 50 year old woman admitted she knew the drugs were in her bag, but said they belonged to a client.

I'm speechless. I had a client once who set off the metal detector in the courthouse with meth wrapped in tin foil. But an attorney? Two ounces is a pretty big sack, and the lawyer knew that the deputies searched people as they came in. There must be more to this story.

A note on constructive possession - "I knew the drugs were there but they belonged to my client" is not going to work. "Oh my god I had no idea those were there, they must belong to my client" might have worked. Either way her client is not happy with her.

I usually don't get involved in this type of discussion, but I think it is healthy for attorneys to debate the topic. I discuss fee setting with some local attorneys, and have a general feel for how different attorneys do it and what their reasons are.

Remy Orozco at Hostis Civitas began the discussion with his post titled "How to Hire a Gun Slinger," where he discusses his take on what a criminal defendant should look for when hiring an attorney. This is an oft-blogged-about topic, but what sparked interest this time was Remy's practice of charging "split fees" based on whether a case is a guilty plea or a trial.

(For what it's worth, Scott Greenfield at Simple Justice replied to Remy, taking an entire page with 9 paragraphs to tell us that he's discussed this before and if we are curious as to his opinion we can scroll back through his blog posts and discover the answer.)

Mark Bennett discusses the pros and cons of charging split fees, and advises that a flat fee is the best policy in the jurisdictions that permit it - gunfighters don't charge by the bullet. Remy points out in a comment to Bennett's post that often clients will come to him because they cannot afford to pay a large fee for a defense attorney - this is providing a service for those clients who do not want a trial.

Bennett responds with tips on what he advises his clients when they come to him looking for a quick plea - you cannot know the strength of the state's case until your attorney sees the evidence, talks to the prosecutor, interviews the witnesses, etc. You may not have to plead guilty - if you do plead guilty, your plea deal may be better than you thought once your case has been vetted by a defense attorney.

No-one is wrong, and no-one is completely right. Different attorneys have different methods of determining what their fees are and how to collect them. The most common schemes that I have seen are:

Split fees - Remy's version, where the attorney quotes a fee that covers everything in the case assuming that the result is a guilty plea. A second fee will have to be paid if your case goes to trial. This fee arrangement is ethical per the rules of professional conduct, at least in South Carolina, but it is nevertheless a minefield of potential ethical dilemmas. I have seen lawyers tell their client that they must plead guilty if they do not have the money to pay an additional fee for trial. When the client wants to go to trial, but cannot pay the additional fee to their attorney, there is an immediate conflict of interest that is noone's fault except the attorney's - he or she knew that this was a possibility when they accepted a partial fee at the beginning of the case.

Another issue in my opinion is that if you are charging for a guilty plea only, you are not doing the preparation that is necessary for trial. If you are not doing trial preparation, interviewing witnesses, researching law, and otherwise investigating the client's case, you are likely not going to obtain any better plea offer than the client could have achieved without an attorney. If you are preparing the case for trial and doing an adequate investigation, then the only thing left to pay for if the case goes to trial is however many days in court it takes for the trial - the work is done.

In short, "split fee agreement" is a euphemism for saying that you are paying for a guilty plea.

The large down-payment - many attorneys will calculate what they need to accept a case, double that amount and quote the higher fee to the client, and then tell the client they will accept one-half as a down-payment. The remainder can be paid in installments or in one lump sum at a later date. This is not a bad business strategy, as the attorney is compensated for his or her work and then everything else that is paid is extra, but it is obviously not good for the client. A problem arises with this plan when the attorney gets angry when the extra fee is not paid and a conflict arises.

The payment plan - some attorneys will calculate their fee and then allow the client to make payments on a weekly or monthly basis. The problems here should be obvious - when the client does not make the payments, the attorney has the choice of remaining on the case and working for free or getting relieved from the case, leaving the client where they started. Although there are times when this arrangement does work out, I have two observations - 1) the client has money problems. If they did not, they would not be retaining a lawyer on a payment plan; and 2) the defense attorney that consistently accepts cases with a payment plan may be hard up for clients and needs the money, which may not be a good sign as to the quality of representation they are providing.

The hourly rate - if an attorney is quoting an hourly rate for your criminal case, you are probably talking with a civil attorney and you should backpedal and go look for a criminal defense lawyer (I know there are exceptions but they are rare)

The flat fee collected up front - this is how we do it at my office. It is what works best for me and for my clients, and I understand that other lawyers have good reasons to do it differently. After discussing the case with you and getting an idea of what will go into your defense, I will quote a flat fee that will cover your attorney fees from start to finish. That fee does not include expert witnesses or a private investigator, and there are cases where I insist that either or both be retained if I accept the case.

How do I determine the amount of the fee? Mark Bennett in his infinite wisdom and way with words summarized it perfectly in an equation:

If under a split-fee arrangement the client would pay $X for the case until it is set for trial and $Y when it is set for trial, the equivalent flat fee would not be $X+Y but $X+tY, where t is the likelihood that the case will be tried. The lawyer guesstimates t from her experience with similar cases and similar clients; t is never more than 1 and in fact is almost always less than 1. If the lawyer thinks that the case has a very small chance of going to trial, then the flat fee will be very close to X.

The reasons I insist on flat fees and payment up front:

Because if I am not preparing my client's case for trial they are not getting the best representation I can give them.

Because in the past when I have accepted payments from clients it is a crap shoot as to whether they pay or not, and even when they do pay it is a headache that I don't want to deal with.

Because if I have to choose between working for free and getting relieved from a client's case, I will probably end up working for free - and with few exceptions, I can't afford to work for free.

And because I think honesty is the most important consideration in my dealings with my clients, and it begins the first time I speak with them on the telephone and in our initial interview. I quote the fee that I think is appropriate for the case, not the fee that I think is appropriate plus some extra, and not the fee that I think is the most I can squeeze out of a client. And I don't quote a fee for a guilty plea, because I am not being hired to do a guilty plea - I get this out of the way with my clients during our initial interview as well.

There are defendants who call, or even who come to an initial interview, and tell me that what they want is a quick guilty plea, or that they only want the best plea possible. Unlike Bennett, I don't usually take the time to explain to these people why that is not in their best interest - if someone wants only a guilty plea they do not need to hire me. There are other attorneys who charge less money to just do a guilty plea (and some who charge the same or more), and I advise that client to contact someone else. This doesn't mean that my cases never result in a plea agreement - the decision is the client's to make, an informed decision with my advice based on the strength and weaknesses of our case, but never based on whether or not a client owes me money.

In sum, from Remy and Bennett:

Remy writes, “When your life and freedom are on the line you should not be looking for a lawyer who is going to charge you by the bullet.” He’s right. Don’t look to save time or money. Don’t look for a lawyer who is going to come back to the well for more money later on. Find a lawyer whom you trust to charge you a fair fee now, then put the money out of mind and get the job done.

A report released last Tuesday by the National Association of Criminal Defense Lawyers (NACDL) provides an in-depth examination of the state of misdemeanor courts across the country and particularly the denial of defendants' Sixth Amendment right to counsel in these courts. It is long but it is worth reading by anyone with an interest in criminal law, and hopefully it will find its way to the right lawmakers and judges.

In Argersinger v. Hamlin, in 1972, the United States Supreme Court held that defense counsel must be appointed in any criminal prosecution, “whether classified as petty, misdemeanor, or felony, that actually leads to imprisonment even for a brief period.” In Scott v. Illinois, in 1979, the Court held that counsel does not have to be appointed if the defendant is fined only, and is not sentenced to jail time. In 2002 in Alabama v. Shelton, the Court reaffirmed the rule that, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense …unless he was represented by counsel at his trial,” holding that even when a defendant receives a sentence of imprisonment suspended to probation, he must be afforded the right to counsel.

The NACDL report spends a lot of time discussing the huge caseloads that are placed on public defenders in these courts, which, coupled with a lack of funding, results in incompetent (and unethical) representation of indigents. While researching for this report, they also discovered that in South Carolina, you do not get an attorney if you are charged in the magistrate or municipal courts - judges and prosecutors will flat-out say, you are not entitled to an attorney and you must represent yourself. In the words of the Chief Justice of our state supreme court, who has instructed our magistrates not to provide counsel to indigents:

Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.

NACDL’s comprehensive examination of misdemeanor courts, including a review of existing studies and materials, site visits in seven states, an internet survey of defenders, two conferences, and a webinar, demonstrated that misdemeanor courts across the country are incapable of providing accused individuals with the due process guaranteed them by the Constitution. As a result, every year literally millions of accused misdemeanants, overwhelmingly those unable to hire private counsel, and disproportionately people of color, are denied their constitutional right to equal justice. And, taxpayers are footing the bill for these gross inefficiencies.

Legal representation for misdemeanants is absent in many cases. When an attorney is provided, crushing workloads often make it impossible for the defender to effectively represent her clients. Counsel is unable to spend adequate time on each of her cases, and often lacks necessary resources, such as access to investigators, experts, and online research tools. These deficiencies force even the most competent and dedicated attorneys to engage in breaches of professional duties. Too often, judges and prosecutors are complicit in these breaches, pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration, all at taxpayer expense.

The recommendations in the report include:

1. Divert misdemeanors that do not impact public safety to penalties that are less costly to taxpayers (we do have some programs in South Carolina courts, such as the alcohol diversion program (ADP), pre-trial intervention (PTI), and conditional discharges for some first time drug offenses, but these programs are often are not taken advantage of if there is no attorney to advise the defendant that they exist);

2. Reduce pressure on defendants to plead guilty, particularly at first appearance (many of our magistrates and municipal court judges place considerable pressure on defendants to plead guilty at their bond hearings, and there is never an offer of counsel for magistrate level offenses or a waiver of counsel; in some City of Myrtle Beach cases, if the defendant does not plead out at the bond hearing, their court date will be set within a day or two which makes it difficult for them to find an attorney to help them);

3. Enforce ethical obligations of all participants in misdemeanor adjudications (it is the ethical duty of prosecutors and judges, not just defense counsel, to ensure that defendants' constitutional rights are protected and that justice is done in the courtroom);

4. Provide counsel for any defendant facing the possibility of incarceration (because the Sixth Amendment and the United States Supreme Court says so?); and

5. Provide public defenders with the resources necessary to effectively represent their clients (or, in South Carolina, we could begin by just providing public defenders in the misdemeanor courts).

Earlier this week I was in a lower court in Horry County for several hours, waiting to enter a plea to reckless driving with one of my clients. As we waited, I watched in shock as my colleagues stood with their clients who were pleading guilty to driving under the influence, one after the other. Who am I to criticize? I don't know, and I'm not going to name names or the court that we were in. Maybe there were extenuating facts in all of these cases that justified the attorneys lying down and pleading out their cases.

It's not that I don't know and appreciate that every defendant makes his own decision to plead guilty or take his case to trial - and if they do they are entitled to have a lawyer standing with them. I think its the fact that these were attorneys that I know charge healthy fees and, other than the impression I received from sitting through guilty pleas this week, I consider them to be excellent attorneys and have the utmost respect for them. I also did not hear anything in the recitation of facts by the prosecutor that would have precluded these cases from going to trial - one of them was a case with no datamaster result.

One thing that I considered as I watched was the things that I know many attorneys (not necessarily the ones I watched this week) tell their clients. I believe that the most important aspect of an attorney-client relationship is trust, and I believe that you have to be honest with your clients, regardless of what they want to hear. For example, if you are going to plead guilty to DUI 1st offense, you do not need a lawyer to do that. With the average DUI first offense, if you walk into court in Horry County with no lawyer and plead guilty, you will most likely get the minimum sentence and fine. Whether you have a lawyer standing with you or not, following a guilty plea to DUI first offense you will most likely receive the minimum jail sentence of 48 hours (most likely time served), and the minimum fine. You will also have your license suspended, you will be required to enroll in ADSAP before you can drive again, and when your license is reinstated you will have to carry SR-22 insurance for 3 years, all of which will cost you thousands of dollars.

If you pay top dollar for a lawyer to represent you on your DUI, expecting them to fight your charge and test the state's evidence, you should be prepared to take your case to trial. If, when your case comes up on the roster, your attorney tells you that they've worked out a deal where you will get a minimum fine and no jail time if you enter a plea, but if you go to trial you will go to jail, it's possible that you've been had by an attorney that never had any intention to fight your case. An honest advocate should tell you at the beginning that you can get that wonderful deal without paying him or her the big bucks, and that if you retain them you are paying for a trial. If you are convicted at trial you could be sentenced to up to 30 days on a first offense, or you may receive a fine - in my opinion a fair magistrate would not punish a defendant for insisting on his constitutional right to a jury trial, but there are no guarantees that you will not go to jail. If you are not willing to take your case to trial if that is what it comes to, there are lawyers who charge minimum prices to stand with you in court while you plead guilty.

I heard some eloquent guilty pleas this week, they were truly impressive. But those people still walked out of the courtroom with DUI's on their record and their pocketbooks significantly lighter with nothing to show for it.

Last month I wrote about Judge Kenneth Goode, who was the target of a public campaign to have him removed from office based on decisions he made in two cases. Judge Goode has announced that he will retire, effective June 1, 2009, rather than seek re-nomination in the General Assembly.

Senators Mike Fair of Greenville and Glenn McConnell of Charleston embarked upon a smear campaign against the Judge before hearings on his renomination in the General Assembly last month, alleging that the judge's sentences were too light:

In December, Judge Goode sentenced Talisha Levette Smith, a day care operator, to 5 years of probation following her guilty plea to slapping a 7-month-old girl so hard it caused bleeding on her brain. The charge carried a potential sentence of up to 20 years. Smith had no prior record, and the article does not go into what mitigation was presented at the hearing in the case. In 2007, Judge Goode sentenced a sex offender, Zail Ray Gavin, to 6 months followed by 3 years of probation following a plea to a charge of "peeping tom." Apparently Judge Goode had the nerve to retain jurisdiction over the case and stated that he wanted to help rehabilitate the man.

Since the Senators saw fit to pick these two cases out of a decade of service and trumpet a small portion of what actually transpired at the hearings to the news, I noted that a quick google search of Judge Goode's name turns up equally harsh sentences:

Since we are cherry-picking this particular judge's cases, a quick google search turns up two more cases: in October of last year, Judge Goode sentenced a man named Roderick Dean to 15 years - the maximum allowable by law - following a guilty plea to lewd act on a minor. If anyone is wondering, I would not want to appear before a judge who would give the maximum sentence following a guilty plea - Dean could have taken his case to trial and done no worse. In 2007, Judge Goode sentenced Brandon and Ragane Suggs to 5 years each for child abuse - the prosecutor allowed for a cap of 5 years and Judge Goode gave them the maximum allowed under the terms of their plea agreement.

There is a lot that goes into any judge's consideration at a sentencing hearing, including the defendant's prior record, acceptance of responsibility, efforts at rehabilitation, and recommendations on and off the record by the prosecutor in the case. What a judge should not feel compelled to take into consideration is whether there is a news camera in the courtroom, and whether a politician will be able to use their decision as a platform to get themselves press at some point in the future. The legislature sets the minimum and maximum penalties for crimes in S.C., and sentencing is in the discretion of the court within those guidelines that are created by the legislature.

The father of the injured child in the daycare case, Patrick Gaddie, has announced that he is pleased with the judge's decision to retire:

“The people of South Carolina deserve better,” Gaddie said. “Other judges need to know they are accountable for their actions, good or bad. . . .Gaddie said Goode “needs to apologize” for the sentence.

Senator Mike Fair says:“The children of this state will now be better protected.” Well, as long as its for the children . . .

The state's trial judges undoubtedly feel that their hands are tied, and they cannot ethically speak out regarding this outrage, but our Supreme Court and our State Bar including prosecutors and the defense bar should be making some kind of statement about what has happened here. Thus far, I have heard nothing from our state bar - it seems that we are going to acquiesce and silently condone the ousting of a circuit court judge. So much for an independent judiciary in the State of South Carolina.

U.S. District Judge Samuel Kent pled guilty today to obstruction of justice, on the morning of jury selection in the federal courthouse in Houston for his trial on charges of sexually abusing employees:

U.S. District Judge Samuel Kent pleaded guilty to one count of obstruction of justice today and retired from the bench, avoiding a trial on that charge and five others accusing him of sexually abusing two female employees.

Kent was scheduled to see a jury selected this morning for his trial on all six felony counts.

As part of his guilty plea, Judge Kent signed papers admitting that he had "non-consensual sex with two former female employees between 2003 and 2007," and that he lied to the Special Investigative Committee of the 5th Circuit. Prosecutors will dismiss the remaining charges and will ask for a sentence of 3 years in prison - the sentencing hearing will be in May.

Today's quiet admission of guilt is in stark contrast to Kent's flamboyant protestations of innocence last September . . .

U.S. District Judge Samuel Kent stood before a fellow federal judge Wednesday and vehemently proclaimed his innocence of three federal charges of sexually abusing an employee.

"I plead absolutely, unequivocally not guilty and look very much forward to a trial on the merits of what I consider flagrant, scurrilous charges," Kent stated with force to 5th U.S. Circuit Court of Appeals Judge Edward Prado.

"For the record I absolutely intend to testify, and we are going to bring a horde of witnesses," Kent said loudly.

. . . which was soon followed by additional charges of sexual misconduct and lying to a judicial panel in last month:

U.S. District Judge Samuel Kent was indicted by a grand jury Tuesday on new charges of sexually abusing another court employee and lying about it to prominent federal judges who investigated a misconduct complaint against him.

H/T Grits for Breakfast; Paul Kennedy at the Defense Rests has a link to Kent's plea agreement.

Via Grits for Breakfast: This story has been around since September of 2007, but I haven't really paid much attention to it until today. A NY Times Editorial published yesterday, and a State Commission on Judicial Conduct Notice of Formal Proceedings against Judge Keller filed today, outline the facts of the case - essentially, in September of 2007, Michael Richard was scheduled to be executed by the state of Texas. On the same day, the U.S. Supreme Court granted cert in Baze v. Rees to decide whether the procedure of execution by lethal injection was constitutional. Richard's attorneys scrambled to put together a request for stay of Richard's execution until the USSCT decided the issue.

Although it was common practice to accept late filings on an execution day, a designated judge was assigned to the case (not Keller), and the execution-day procedures called for that designated judge to remain available after hours and for all communications to be referred to him or her, the Court of Criminal Appeals general counsel called Judge Keller at home when he received a request from Richard's attorneys that they be allowed to make a late filing. Judge Keller, without notifying the designated judge, ordered that Richard's attorneys would not be allowed to file their request, as the clerk's office closes at 5:00. Earlier in the day, Keller was made aware that cert had been granted in Baze v. Rees, and Keller was made aware that Richard's attorneys would seek to make a late filing. Michael Richard was executed at 8:20.

In April of 2008, the USSCT decided in Baze v. Rees that the lethal injection cocktail used by Oklahoma (and Texas) is not unconstitutional. But from September of 2007 through April of 2008 other executions in Texas were stayed pending the USSCT's decision.

Many people, including Judge Keller apparently, may wonder why it matters whether Michael Richard was executed in September of 2007 or in April or May of 2008. One answer is, who is to say for certain what might have happened in those intervening 6 months? I think that we should consider this - let's say there is an individual who has been diagnosed with terminal cancer. Several doctors concur that it is, in fact, a terminal condition and that the patient has 6 months to live. They are fairly certain about this. If I were to then arbitrarily shoot that individual in the head, killing them and terminating their life 6 months early, I would most likely be found guilty of murder. It does not matter that the person was going to die anyway, what matters is that I ended that person's life prematurely. It does not matter whether that person was a terrible, despicable person that many people thought should die anyway, what matters is that I, personally, caused their death.

When a person has been convicted of a terrible crime, sentenced to death, exhausted all due process, and is then killed, we call that an execution. When a person is killed outside of that state machinery, it is called murder. I have no doubt that no-one in the state of Texas will call Judge Keller a murderer, that goes too far. But I have to agree with the voices calling for her impeachment and disbarment.

A theme that tends to recur throughout the criminal law blogosphere is cops who lie on the stand. A recent Wall Street Journal article by Amir Efrati tackles the issue:

It's one of the most common accusations by defendants and defense attorneys -- that police officers don't tell the truth on the witness stand.

Of course, defendants themselves can be the ones lying, but the problem of police perjury -- and what can be done about it -- is being debated anew. Fueling the discussion are recent court cases in New York City and Boston that indicated officers may have lied and a U.S. Supreme Court ruling this month that could have broader implications for cases in which improperly obtained evidence is in dispute.

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband. Defense lawyers say in many of these cases, officers are "testilying" and that the guns or drugs were actually discovered when their clients were unjustly frisked by officers. They also say testilying frequently occurs in more serious cases.

(H/T Rick Horowitz at Probable Cause)

The article goes on to imply that the exclusionary rule is the cause of rampant lying by police officers - if they did not have to lie to prevent the evidence from being excluded, then cops would tell the truth. Bull****. Cops are lying to cover up the fact that they violated a person's constitutional rights, therefore if we allow them to violate the constitution with impunity, they will stop lying?

The public, by and large, believes that cops and prosecutors are ethical and upstanding. We place them on a pedestal, because they are here to protect us. You want to believe that cops would not lie or manufacture evidence, and so do I. The problem is I see what happens behind the scenes in criminal cases, as does every defense attorney, prosecutor, and judge. As Horowitz puts it:

Believing that law enforcement officers are good guys is one of the linchpins of our society; probably of all societies, even where they don’t officially call them “law enforcement” officers. But to believe in law enforcement officers, we must be able to believe law enforcement officers.

So far that doesn’t seem to be a problem for the majority of submitizens, even though newspapers as small as the Fresno Bee contain at least one — and usually more than one — story almost every day about the illegal activities of police officers.

Years ago I tried a case that resulted in a hung jury, and I was honestly shocked, because the evidence was clear and my client had been caught red-handed. After the trial, we asked the jurors why they could not reach a verdict and we were told that three jurors refused to convict - they simply said, "all cops are liars and I couldn't believe a word that they said on the stand." Without a doubt, that was the exception and not the rule.

How do we stop law enforcement from lying, manufacturing evidence, or otherwise cheating in their zeal to make cases? Hold them to the standard that we all feel they should have. Train officers not only to make cases, but to do so honestly and with integrity. Punish officers that do not. When an officer blatantly lies on the witness stand, prosecute him or her for perjury like any other citizen. Allow law suits to go forward when cops violate a person's rights, rather than looking for any excuse to grant summary judgment. Dismiss cases where there is police or prosecutor misconduct rather than looking the other way.

It is not necessary to lie or cheat to make cases, and if it is then odds are that case should not be made, because there is going to be doubt as to the person's guilt. Our courts' practice of shielding law enforcement and prosecutors from liability or accountability for unethical practices does not serve the ends of justice; it subverts justice. I believe that there are more ethical and rigorously honest prosecutors and cops than not. It is not asking too much to hold all law enforcement to the same standard that some among them exemplify.

On Monday last week the S.C. Supreme Court suspended a lawyer from the practice of law for 2 years for solicitation of prostitution and for impersonating a law enforcement officer; the lawyer worked for the Office of Disciplinary Counsel at the time - the "prosecutors," if you will, who enforce the disciplinary rules of the S.C. Bar:

On or about November 2, 2006, respondent was arrested in Richland County for the crime of soliciting prostitution in violation of S.C. Code Ann. § 16-15-90 and § 16-15-100 (2003). The warrant alleged respondent met with an undercover South Carolina Law Enforcement Division (SLED) agent posing as a prostitute and solicited the undercover agent for sex.

As a result of the same occurrences, respondent was also arrested on November 2, 2006 in Richland County for impersonating a law enforcement agent in violation of S.C. Code Ann. § 16-17-720 (2003). The warrant alleged that, during the encounter with the undercover SLED agent who was posing as a prostitute, respondent verbally identified himself as a SLED agent by presenting a badge and stating he was a SLED agent. At the time of the arrests, respondent was employed on a full-time basis as an attorney with the Office of Disciplinary Counsel and the badge he presented to the undercover SLED agent was his Disciplinary Counsel badge.

Respondent admits that, during his conversation with the undercover SLED agent, he made statements that she reasonably understood to be soliciting prostitution, even though he did not offer money but, instead, used words that reasonably represented an arrangement had been made by respondent’s friend in the escort service business which would allow for sexual activity without payment. Respondent also acknowledges that, during the encounter with the undercover SLED agent, he stated he had overheard information regarding investigations into prostitution activity while he was at SLED and stated that he might be able to provide information regarding future prostitution investigations. Respondent admits that the statements concerning his ability to inform about future prostitution investigations were false; the Special Prosecutor has no evidence to establish otherwise. Respondent further admits that, during the exchange with the undercover SLED agent, he identified himself as a “SLED agent” and, upon her inquiry as to what “SLED” meant, he responded “State Law Enforcement Division” or words to that effect.

The responsibility for prosecuting respondent for these crimes was transferred to the Solicitor’s Office of the Sixth Judicial Circuit. Respondent was allowed to enter the Pre-Trial Intervention Program and he completed that program on or about September 8, 2008.

Beyond the irony of disciplinary counsel being suspended from the practice of law for this type of conduct, this case illustrates our state's regulation of lawyers. The public often perceives lawyers as sleazy and without ethics, as they are often portrayed in television and films, but the fact is that the conduct of lawyers is highly regulated by the state bar. This attorney was allowed to enter the PTI program on his criminal charges, which was probably appropriate, and after completing community service the case will be dismissed and his record will be expunged. He has lost his livelihood, however, and if and when he returns to the practice of law, this incident will follow him for the rest of his career.

In two other disciplinary opinions this month, the S.C. Supreme imposed a 9 months suspension on an attorney for possession of cocaine, as well as requiring ongoing treatment and monitoring once he is reinstated, and a municipal court judge was issued a public reprimand for failure to complete continuing legal education requirements.

In South Carolina, we do not have judicial general elections but rather judges are appointed by the legislature. In my opinion, this is a better system by far - in the interest of judicial independence, judges should never be subject to political pressures, their election or re-election dependent on what group of constituents they please with their decisions. South Carolina's system of judicial selection is rightfully designed to place judges on the bench who have the knowledge, skill, and temperament to be fair and impartial.

This is why an article I read on TheState.com today bothers me - it seems that our system of judicial selection is not foolproof, and our judges are not free of politics after all. Senator Mike Fair of Greenville and Senator Glenn McConnell of Charleston have embarked on a smear campaign against Circuit Court Judge Kenneth Goode, seeking to have him removed based on two sentences that he handed down in criminal cases. You see, our system of "appointment" comes down to votes after all, and McConnell and Fair seek to garner enough votes in the legislator to remove Judge Goode from the bench. Judge Goode cannot defend himself against these types of allegations, because he cannot and should not comment publicly on his rulings in cases.

In December, Judge Goode sentenced Talisha Levette Smith, a day care operator, to 5 years of probation following her guilty plea to slapping a 7-month-old girl so hard it caused bleeding on her brain. The charge carried a potential sentence of up to 20 years. Smith had no prior record, and the article does not go into what mitigation was presented at the hearing in the case. In 2007, Judge Goode sentenced a sex offender, Zail Ray Gavin, to 6 months followed by 3 years of probation following a plea to a charge of "peeping tom." Apparently Judge Goode had the nerve to retain jurisdiction over the case and stated that he wanted to help rehabilitate the man.

I don't know Judge Goode personally, and I have never appeared before him, but according to the article he has served as a circuit court judge since 1999. It is disturbing that these two politicians would cherry pick these 2 decisions out of a decade of service and thousands of guilty pleas and go to the press in an attempt to cast a shadow on Goode's fitness to serve as a judge. The sentences imposed were within the range that was given by the legislature. A judge is required to evaluate the facts of each case and issue a sentence that is fair and that serves justice to all parties involved. By publicly criticizing a judge's decisions in this manner, it sends a message to all judges - if you want to keep your job, justice based on the facts presented in court takes a back seat when the press is watching - lock them up.

Since we are cherry-picking this particular judge's cases, a quick google search turns up two more cases: in October of last year, Judge Goode sentenced a man named Roderick Dean to 15 years - the maximum allowable by law - following a guilty plea to lewd act on a minor. If anyone is wondering, I would not want to appear before a judge who would give the maximum sentence following a guilty plea - Dean could have taken his case to trial and done no worse. In 2007, Judge Goode sentenced Brandon and Ragane Suggs to 5 years each for child abuse - the prosecutor allowed for a cap of 5 years and Judge Goode gave them the maximum allowed under the terms of their plea agreement.

Which brings us to another issue. More often than not, sentences in guilty pleas are worked out beforehand by the prosecutor and the defense attorney, each of whom knows the file and has lived with it for months or even years. The judge, who hears the facts of the case for only a few minutes during the guilty plea, almost always accepts the recommendation of the attorneys although he or she is not required to. More often than not, a judge is not to blame when what seems like a lenient sentence is given to an offender who elects not to go to trial, just as the judge is usually not to blame when a particularly harsh sentence is handed down.

Regarding the first case, McConnell says: “For a person who admitted to some wrongdoing to go into probation, I wasn’t satisfied with it,” and, regarding the peeping tom, McConnell says "he can’t understand why Goode keeps giving Gavin repeated breaks, despite having his case for several years. On the one hand, he just starts weakening the probation. It’s as if he’s trying to get (Gavin) into rehabilitation.” So - McConnell's view is that rehabilitation has no place in our justice system anymore? If a person admits to wrongdoing, then they should go to prison, regardless of the facts that a judge finds in a particular case? I would venture a guess that McConnell and Fair are capitalizing on an opportunity to grandstand and impress their voters on how tough they are on crime, and I hope that the remaining legislators are not swayed by this kind of rhetoric.

When a judge is qualified to serve, has the requisite knowledge and temperament, and certainly when a judge is able to show compassion some of the time, that judge should not be ousted from his job based on unpopular decisions, and sitting judges should not be placed in the position of feeling pressured not to do justice in any particular case for fear of public criticism, whether an appropriate sentence is harsh or lenient. Our system of appointments, overall, works well. Let's not break it.

According to the Akron, Ohio Beacon-Journal, Frank Pignatelli, a federal criminal defense lawyer, apparently became an informant for the feds against his own clients, helping to put them into jail. The article says that Pignatelli went to work for the feds after being indicted himself as a co-conspirator.

A high-stakes Akron drug dealer has become the latest suspect stung by an attorney who became an informant for federal agents.

Chevaliee ''Chevy'' Robinson, 30, pleaded guilty last fall to charges of drug conspiracy and money laundering in U.S. District Court in Akron. He was sentenced Friday to 15 years in prison.

His arrest and 29 others were made possible, federal authorities said, because of the undercover work of Robinson's former attorney, Frank Pignatelli.

According to court records, Pignatelli was facing his own indictment as a co-conspirator when he agreed to work undercover for federal drug investigators more than three years ago.

With Pignatelli's help, federal agents have arrested 30 people from Akron and Cleveland, and seized hundreds of pounds of marijuana and cocaine, along with cash and property totaling more than $3 million.

Many of the charges have led to convictions, which could not have happened without the former Akron lawyer's help, attorneys said.

He began working as an informant over three years ago, and most of the cases that he helped to make are now winding down:

An Akron defense lawyer facing his own criminal indictment turned federal informant three years ago, helping bring down two of Northeast Ohio's biggest drug kings. With tips from attorney Frank Pignatelli and secretly taped meetings he orchestrated with drug dealers, federal agents were able to arrest 30 people, seize hundreds of pounds of marijuana and cocaine and about $3 million in cash.
The drug cases, including one heard on Monday, are winding down in U.S. District (Akron Beacon Journal (OH), 699 words.)

According to the article, he is now practicing . . . federal criminal defense?

Pignatelli's law license in Ohio is inactive. He works as an attorney in Denver, a private practice that includes defending alleged drug dealers in federal court.

A defense attorney in Chicago was arrested last week for smuggling weed into courtroom holding cells, at 250$ a pop. (H/T Law of Criminal Defense)

A Chicago criminal defense attorney was arrested for smuggling marijuana to inmates in the Cook County Criminal Courts Building, authorities said Thursday.

Dave Compton was arrested Wednesday after he accepted $250 and delivered a small amount of marijuana mixed with tobacco to an undercover sheriff's officer posing as an inmate, authorities said.

Compton admitted to smuggling marijuana to inmates on at least five other occasions and said he was paid $250 each time, authorities said. Compton made the deliveries to inmates while they were in holding cells in the courthouse, authorities said.

In Minnesota last week, a defense attorney was charged with cocaine possession in the courthouse. (More at Law of Criminal Defense and Simple Justice)

Winona Police Investigator Jay Rasmussen noticed Ramsay exhibiting “suspicious behavior” after coming out of a bathroom on the third floor of the courthouse around 1 p.m., Winona Police Deputy Chief Paul Bostrack said. Police Chief Frank Pomeroy said Ramsay had been touching his nose with his hands “as if he had just ingested something with his nose.”

Police evidence technician Angela Evans went into the conference room Ramsay had been using as a make-shift office and discovered a trace amount of cocaine on the table, according to reports.

The Winona County Attorney’s Office was contacted and the case was referred to the sheriff’s department, which has jurisdiction over the courthouse.

I understand that attorneys are human and are subject to substance abuse issues like anyone else, but come on. In the courthouse?

As a general rule, when potential clients call and ask if I will accept payments on a fee, my answer is a flat no, it is not possible. When I first opened my office, I would allow some clients to make payments on their fees. Back then, my fees were much lower anyway, as I did not have much of an overhead. I did not have any staff, I had minimal advertising expenses, and my largest expenses were rent and office supplies. I found that the majority of the clients that made payments, well, didn't, and I found myself stuck with pro-bono and low-bono cases that I had not anticipated carrying.

What I've found is that payment plans often result in an ethical dilemma - when a client does not make payments as agreed upon, what happens? There are three choices, the third of which is not really a choice, but I will come back to that in a minute. First, you can ask the court to relieve you as counsel. The ethical rules allow for an attorney to be relieved from a case for non-payment of fees, in the court's discretion. Most judges will grant an attorney's motion to be relieved unless it is on the eve of trial or it would otherwise harm the client's defense.

But, the fact that it is allowed for under the rules does not make it the right thing to do. The ethics rules are only a starting point in determining what to do in any given situation. My opinion is, I know that many criminal defense clients are not likely to follow through with their monetary obligation; thus, if I accept a case with a payment arrangement and do not get paid, it is my own fault. The second choice for an attorney when the client fails to make payments is to stay on the case anyway, and that is what I have chosen to do in most cases where the client has failed to pay.

The third option, which is not an option at all and yet I see attorneys doing it, is to stay on the case, stop working on the case, and harass your client or their family in the hope that they will pay you. For example, attorney accepts a client charged with a fairly serious felony for a fee of $10,000. But they accept a down-payment of $500 (you only have $300? ok, I'll take it), and set up a payment plan for the remainder. Not much surprise when they cannot make their payments after the first month, and now the attorney has a client he does not want who is not paying him. Fine, under our ethics rules you now have the ability to get relieved from the case if the judge agrees.

But, the problem arises when your client is in jail on a bench warrant, you are telling the client's family you are not going to do anything until they pay you, yet you are not moving to be relieved from the case. You stay on the case, the client does not qualify for a public defender because they have a retained attorney, you are not taking any action on your client's behalf, and your client gets screwed. Or you tell your client that they have paid you for a plea but not a trial; if they come up with the rest of their fee you will take the case to trial but otherwise they are going to have to plead guilty. Was this your clients fault for not paying you? Or your fault for taking the case in the first place?

If a potential client cannot afford my fee now, they will most likely not be able to afford it several months from now, either. They can borrow the money from someone else, and then make payments to that person - I am not a bank. We are equipped to accept credit cards, so that mom, dad, brother, aunt, etc. can put their fee on a card and then allow the client to make payments to them. My opinion is that accepting a criminal case on a payment plan is setting yourself up for ethical violations and is setting yourself up for a future conflict with your client. Also, a criminal defense attorney that takes payments is going to be perceived as saying, "I am desperate for cases" and is grasping at anything that walks through the door.

I'm not saying it is never appropriate to allow a client to make payments. I'm saying, if you do, don't screw your client over in an attempt to collect those payments down the road.

A prosecutor's office in Florida has been disqualified from a murder case after listening to attorney client phone calls on the jail's phones. Via Law of Criminal Defense and ABA Journal.

The Broward State Attorney's Office plans to call on the help of the Florida attorney general after a judge kicked the entire office off a murder case because of the conduct of two prosecutors during trial.

Circuit Judge Susan Lebow decided Monday that murder suspect Luis O. Martinez's right to a fair trial was violated when prosecutors listened to taped phone conversations Martinez had with his defense attorney, Chris Grillo.

On Tuesday, Lebow granted the state attorney's office motion to put the trial on hold while the office decides what its next move will be.

The state plans on appealing the ruling; every phone call from the jail telephones includes a message that states the phone call will be recorded, and they claim that this is enough to waive attorney client privilege.

For this very reason, in general, I don't accept calls from my clients who are in jail. I ask them to have a family member call or send a letter, and then I will go and speak with them in person. Every phone call from the jail is recorded, and the solicitor's office reviews those recordings before trial. I usually advise my clients not to discuss their case with anyone on the phone including family. Even seemingly harmless statements can be easily misconstrued and used against them at a later date.

The money laundering conspiracy charge against Florida attorney Ben Kuhne was dismissed today. He is still charged with wire fraud and obstruction of justice, but money laundering was the heart of the government's case. U.S. district judge Marsha Cooke's order dismissing the charge can be found here.

In a ruling hailed as a victory by defense lawyers, a federal judge on Monday dismissed a money-laundering conspiracy charge against a prominent attorney accused of illegal dealings with a Colombian drug lord.

The issue was whether $5.2 million transferred from Colombia to the accounts of attorney Ben Kuehne were exempt from criminal prosecution because they were essentially legal fees. Kuehne's lawyers and defense attorneys' groups argued that the conspiracy charge against him violated the Sixth Amendment's guarantee that a person charged with a crime has a right to a lawyer.

U.S. District Judge Marcia Cooke agreed, rejecting the U.S. Justice Department's contention that the payments were not necessary for the defense of Colombian drug baron Fabio Ochoa, who was eventually convicted and sentenced to prison.

"Congress has explicitly exempted from the money-laundering statute transactions necessary to preserve a person's right to representation," Cooke said in a 13-page ruling. "If I were to construe the statutory exemption as the government suggests, the exemption for such transactions would amount to no exemption at all."

This prosecution has been widely seen as an underhanded attempt by federal prosecutors to undermine the effectiveness of defense attorneys by attacking them directly. Federal criminal defense attorney Roy Black asked Kuhne to investigate his client's fees to ensure that they were clean. Kuhne, who by all accounts has an impeccable reputation and was considered a pillar of ethics, is being prosecuted for doing exactly what he and Black were required to do in order to avoid a prosecution such as this.

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.

It's the story that just keeps on giving. Fraternal Order of Police has sent out invitations to a party celebrating his election.

Recently I was arguing a magistrate court appeal, in the circuit court, when the judge asked me what my communications had been to my client concerning the client's trial date. The appeal was from the decision of the magistrate to proceed with the trial even though the required warnings under State v. Jackson, 288 S.C. 94, 341 S.E.2d 375 (1986), City of Aiken v. Koontz, and State v. Fairey had not been given (before a trial in absence can proceed, there must be a finding by the court that 1) the defendant received notice of the trial date; and 2) the defendant received a warning that the trial would proceed in his or her absence if they fail to appear).

I refused to answer the question, explaining to the court that I was placed in a difficult position, as I could not reveal the subject of client communications. The judge's response was that I have a duty of candor to the court that required my response - I have to disagree, as I will explain below. This has bothered me quite a bit, and I've been analyzing the issue since that day. Several times I have seen judges ask attorneys questions such as this (the ones that come to mind are whether their clients have communicated with them regarding court dates or whether the attorney has information regarding their clients criminal record) and the attorneys typically answer the questions without hesitation. I have seen attorneys volunteer information on client communications or their client's criminal history without even being asked.

(About questions regarding the client's criminal history - the attorney cannot lie about the client's criminal history to the court or to the prosecutor, but I believe the attorney's duty of confidentiality and loyalty to the client requires that the attorney not answer the question.)

Back to the question regarding communications with the client regarding court dates, there are many considerations, including the rules governing client confidentiality, the Sixth Amendment right to counsel which includes the duty of confidentiality (without which the right to counsel would be meaningless), the client's Fifth Amendment right against self-incrimination which necessarily includes the client's right against self-incrimination through the lawyer, and the broader policy considerations that require public trust in the sanctity of the attorney-client privilege.

Any rule which required an attorney to reveal such communications to the court would result in persons accused of crimes, and specifically this client, believing that they cannot trust their lawyer, and it would be that much worse because it would be a distrust caused by the judicial branch of the government. The Rules of confidentiality and the attorney-client privilege are both based on the same policy considerations: "Attorneys can best serve their clients and represent client interests only with full and frank disclosure between the client and attorney; and freedom from fear of disclosure by the attorney fosters full disclosure by the client."

Rule 1.6 of the S.C. Rules of Professional Conduct governs confidentiality, and states:

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act;

(2) to prevent reasonably certain death or substantial bodily harm;

(3) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(5) to secure legal advice about the lawyer's compliance with these Rules;

(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(7) to comply with other law or a court order.

(1) through (4) deal with what is called the "crime/fraud exception" to the rules of confidentiality; if a client intends to engage in a future crime, the lawyer may reveal confidences to prevent the crime (notice this is not mandatory, it is permissive). This never applies to past conduct, which would go to the very nature of a criminal defense lawyer's advice to clients. (5) applies when an attorney is seeking advice regarding the rules from another attorney, in which case the privilege is simply extended to the second attorney. (6) involves situations where a lawyer is sued by his client, and it allows an attorney to discuss confidences to the extent necessary to defend his conduct in a PCR case.

(7) would apply, except for the Constitutional considerations. I believe that (7) would insulate an attorney from discipline as a result of answering these questions when ordered by the court, but would not require the attorney to disclose his client's confidences, as the Rule uses the language "may" as opposed to "must."

A thorough discussion of the constitutional considerations in this situation is found in NACDL Ethics Advisory Opinion 03-03, which dealt with the question of whether Montana courts could enforce a rule requiring defense attorneys to report to the prosecutor and court whether their clients were reporting to the attorney each week:

Besides the ethical rules of privilege and the statutory and common law attorney-client privilege, NACDL submits that the questioned practice is also unconstitutional because it requires the lawyer to testify against the client and it violates the unfettered right to counsel. Indeed, it subverts the right to counsel by making the lawyer a necessary witness against the client. It is contrary to the foundation of the constitutional “right to counsel” with absolute loyalty to the client by his or her criminal defense lawyer which is subject to “enhanced importance” and “special vigilance” to protect the interests of the Sixth Amendment. State in Interest of S.G., infra. NACDL has always held the position that client confidentiality and loyalty are a Sixth Amendment right of the client.

This ethics opinion also notes some state cases which are directly on point, State v. Hawes in Nebraska, and Byrd v. State in Arkansas, where defense counsel refused to testify as to whether they had advised their client of a court date:

The NACDL Lawyer’s Assistance Strike Force handled a case at trial and on appeal for a
Nebraska public defender who refused to testify whether he advised a client of a court date. The practice in Lincoln, Nebraska, was for the court to advise defense counsel of the next court setting, and defense counsel was to advise the client. When the public defender refused to disclose whether he advised the client of a court setting at which the client failed to appear, because it would make the lawyer a witness against his own client, he was held in contempt. The Nebraska Supreme Court reversed, holding that the communication between the lawyer and the client or the client and the lawyer about a court date was privileged and forced disclosure violated confidentiality and the duty of loyalty. State v. Hawes, 251 Neb. 305, 309-11, 556 N.W.2d 634, 638 (1996) . . .

Arkansas faced a similar issue in Byrd v. State, 326 Ark. 10, 14-15, 929 S.W.2d 151, 153
(1996), and it too refused to allow counsel to testify to any communication from the client to the
lawyer, even involving ministerial matters about court dates because the privilege was not a “oneway one” and protected communications flowing both ways. Virtually any communication concerning the representation was presumed privileged.

The ethics opinion notes that, when the lawyer respectfully refuses to respond to such a question, invoking attorney client privilege, the duty of confidentiality, and the client's Fifth and Sixth Amendment rights, "[t]he court will likely respond that the lawyer has a duty of candor with the court, which the lawyer does. But, it is not applicable." The lawyer's duty of candor to the court is found in Rule 3.3: Candor toward the tribunal, which states that a lawyer cannot lie to the court, must correct untrue statements that were made by the lawyer to the court, must inform the court of case law that is adverse to the lawyer's position, and cannot offer evidence or testimony, other than the testimony of a defendant in a criminal case, that the lawyer knows is false:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

The Rule also expands on the crime fraud exception, stating that the lawyer must not permit a client to permit a fraud on the court and can disclose a fraud on the court if necessary, without being in violation of Rule 1.6. Nothing in this rule applies to the situation at hand, where a court attempts to compel a lawyer to disclose prior communications with a client regarding court dates (or criminal history).

We are fortunate in South Carolina to have some quite conscientious judges, who will usually consider the issues and not make snap judgments in situations such as this. I think that when the situation does arise, it is usually because the judge and the attorney have not thought it through and analyzed it. It should never come to this, but if a lawyer is threatened with contempt proceedings for refusing to disclose, NACDL's position is that the lawyer must refuse to disclose and then challenge the contempt by appeal.

It is sometimes the lawyer’s lot that he or she must take a contempt citation to protect the client’s constitutional rights. When that happens, the lawyer is acting in the best traditions of the American criminal defense bar—risking oneself to uphold loyalty to and to protect the client—and this kind of contempt would not be harmful to the lawyer’s reputation.

Most attorneys that I see in court have abdicated their responsibilities to their clients in criminal cases. I'm not talking about the career defense attorneys, of which there are few, but it is mostly general practitioners or civil attorneys who are taking on criminal cases. For the most part, watching a day in criminal court in Horry County is like watching an assembly line of forced guilty pleas. Many of these cases are not being truly tested - the attorney takes the case, requests discovery, waits for a plea offer then conveys it to the client, explains to the client that they have to take this plea offer or else they will suffer in prison, then enter a guilty plea. I have witnessed too many guilty pleas where the defendant is actually saying, "I am innocent," and yet prosecutor, defense attorney, and judge are colluding to get the plea done and get the defendant through the system. (I will note that I have also seen judges who refuse to accept a plea when they see this happening, and I applaud them)

I had a discussion with a group of attorneys before court several months ago, and they were complaining about plaintiff's attorneys who basically run "car wreck mills," where the attorney takes a high volume of cases and settles every case as fast as he can. If you are in it strictly for the money, a high volume of easy settlements pays much better per hour than the time it takes to go to trial in those cases. The lawyer gets rich and the clients get screwed.

I suggested that the same principle operates in criminal defense - when a lawyer takes a high volume of criminal defense cases and pleads every case, they make more money. It doesn't take much time at all to plead out a case, if you are not preparing the case for trial and testing the prosecution. But preparing a case for trial, investigating, finding and interviewing witnesses, researching legal issues, that takes an enormous amount of time. When lawyers plead every case, they are getting rich and the clients get screwed, just the same as a "car wreck mill." At first, I got blank stares from my colleagues, then one informed me that it just wasn't the same because most of their clients would be found guilty if they went to trial. It is just a fact that most criminal cases plead out, he said.

This attitude hurts not just the attorneys' clients, but all of us. Prosecutors expect defense attorneys to not insist on complete discovery, because most don't. Judges expect attorneys to respond to questions regarding client confidences, because most attorneys do. Prosecutors and judges expect attorneys to plead their clients, and sometimes get upset if the attorney does not plead his clients, because they have come to expect attorneys to plead out their cases.

I really don't know where to go with this, except to encourage any lawyers who are reading to not be a "plea mill," and to put the adversary back into "adversarial system." If we do not challenge criminal cases, if we do not insist on our constitutional rights, including the guarantee to the effective assistance of counsel under the Sixth Amendment and the rights to a jury trial and to proof beyond a reasonable doubt before a citizen can be convicted of a crime, we will lose those rights. Slowly, but surely, the government, the courts, and the public in general are going to expect less and less from criminal defense attorneys. We are liberty's last champions, aren't we?

Folio Weekly has published an in depth article regarding the recent election of Matt Shirk as public defender in Jacksonville, Florida, which is worth reading. This scenario has made it clear, at least to criminal defense lawyers, why public elections will not work for public defender positions, as Matt Shirk's campaign promises apparently included not challenging police officers and investigating his own clients.

Upon taking office, he promptly fired the office's most prominent attorneys, including all but one death-qualified attorney. The firings included lawyers who had worked tirelessly to prove the innocence of teenager Brenton Butler, which became the subject of a an Oscar winning HBO documentary and exposed the incompetence of the police who made the case against Butler, and the firings were done on the anniversary of Butler's acquittal.

If the attorneys weren’t fired for financial reasons or because of job performance, the question of why they were fired remains. For some observers, the answer is State Attorney Angela Corey. Shirk and Corey are close friends and political allies. Corey encouraged Shirk to seek the seat and was publicly supportive of his bid. Shirk interned under Corey, a fact his campaign website noted with pride, saying he worked “under the direct tutelage of Angela Corey.” One fired public defender who asked to remain anonymous said he was disturbed by Corey’s references to Shirk as her “darling” during the course of the campaign.

Since Shirk’s victory, Corey has remained a palpable presence. A Shirk spokesman referred questions from First Coast News’ Donna Deegan to Corey, and White says she contacted at least one of his employees to discuss the “transition” — something akin to Obama making staffing suggestions for the Bush White House.

“She’s apparently a close advisor of his,” says McGuinness, adding that Corey contacted several people in the office prior to the announcement of the cuts. Asked why Corey would have a hand in personnel issues, McGuinness suggests it may represent a simple — if insidious — legal strategy. “From Corey’s [perspective], a less-experienced Public Defender’s Office gives her prosecutors a target-rich environment.”

Folio's article gives some confirmation from the Fraternal Order of Police that their support of Shirk was based on his promises to not challenge police officers while Shirk was in office. "While debating White before the FOP’s membership, Shirk made a pledge not to challenge the credibility of officers at trial."

Still, Shirk’s words resonated with the police union. FOP President Nelson Cuba concedes statements like that went a long way in earning his organization’s support. “I think part of what helped Mr. Shirk get the support is that he was big on — no matter what — his office would … be professional with officers and never be disrespectful with officers.” Cuba says that respect has been lacking in the current Public Defender’s Office, and that he’s looking forward to Shirk’s tenure for improvement. Says Cuba, “That will only tell with time as we move forward.”

This whole fiasco underscores the impossibility of ensuring that there will be effective indigent defense when the office of pubic defender is open to public election. Sadly, the public by and large does not understand the need for effective criminal defense and would just as soon cast votes for someone who will not be effective. The time-honored political mantras of "tough on crime," and "easy on the public dime," cannot enter into the job of a public defender. Politics should not play into the selection of the person who is, more than any other, in charge of ensuring that the Constitution and Bill of Rights are enforced and preserved.

I would take this a step further, and suggest that the office of Solicitor (or District Attorney in other states) should not be subject to the whims of politics either. There may not be a more important position in any local government than that of the Solicitor, no position that carries with it more power and responsibility. There are undoubtedly many times during the tenure of an elected prosecutor when the demands of the voting public is at odds with the responsibilities of an ethical and principled prosecutor, and no prosecutor should ever be forced to make a decision between remaining in office or doing the right thing.

If not elected by the general public, then what? For public defenders and for solicitors, appointment by the legislature, although not foolproof, strikes me as a better plan than general elections. Nomination and then election by the local bar - the members of the public who are most educated as to the issues at hand and what is needed from both a strong and principled solicitor and public defender - is certainly an option as well.

A Honea Path, South Carolina, magistrate was arrested Wednesday and charged with misconduct in office for filing a false police report.

A South Carolina county magistrate was arrested Wednesday after authorities say he admitted filing a false police report saying someone had threatened his life.

William E. Gilmer, 61, of Honea Path, was arrested Wednesday and charged with misconduct in office, the State Law Enforcement Division said.

The Anderson County magistrate filed a false police report with the Honea Path Police Department in August 2007 and requested an investigation into the identity of someone who had called his office, authorities said.

Although related to the discussion of jailhouse snitches, I have separate and distinct issues with confidential informants. When I talk about confidential informants, I am referring to individuals who will go out and wear a wire to make drug buys, or otherwise provide information to the police in exchange for a promise of reduced charges or reduced jail time.

First of all, putting people to work for the police and endangering their lives in the process is a disgusting by-product of the failed war on drugs. Police do not use only "hardened criminals" for this task, but they use anyone that they can. Sometimes they make good on their promises to these people and sometimes they do not, and sometimes these people get hurt in the process. Whenever I have a client who wants to "work off their charges," I attempt to dissuade them. I tell these clients that I once represented a client who was charged with murder, for allegedly chasing down a CI and emptying his gun into her head. The bottom line is that I, and their family, would rather see them in prison than see them dead.

Which creates a bit of a conflict for me in representing confidential informants, as well as cooperating co-defendants and jailhouse snitches. The first for the reasons above, and the latter two because I feel that their coerced testimony is destroying the integrity of our justice system. But, there is a conflict with my conflict. If I am to provide the most effective defense possible, aren't these individuals entitled to my assistance in gaining them every advantage possible within the system the way it currently is?

If it is a retained case, I can certainly enter into an agreement with them prior to representation that they understand I will not represent informants, and that if a situation arises where they may benefit from informing I will assist them to find other counsel before I withdraw from their case. But I don't think that I can ethically do this in appointed cases. Appointed clients have no choice as to who their counsel is, and there is no agreement that we enter into prior to my accepting their case. The court says take this case, I accept it without question unless there is a conflict with other clients, and then I do everything I can to help the appointed client.

This is an issue that I don't have an answer for yet. My position right now is that I will attempt to discourage my clients from cooperating or informing, but I also make sure that they fully understand any benefits that they may gain from it. It is their decision, and if they decide to inform or cooperate I will reluctantly support them. At some point in the future I may change my policy on this, but I need more soul-searching and input from other defense attorneys. I am interested in hearing how others deal with this dilemma, or if it is even a dilemma for others.

The integrity of our system of justice is being destroyed by the use of jailhouse snitches. When a prosecutor has no evidence in a case, but proceeds with the prosecution anyway, using testimony that is suspect and that is bought with the threat of prosecution and the promise of freedom, we cannot rely on the outcomes of trials. We cannot rely on juries to recognize the lying witnesses and discount them, when juries trust prosecutors not to put lying witnesses on the stand.

A witness who has nothing to hide, nothing to lose, and nothing to gain, who has real information for the jury, makes a case. I cannot complain if a prosecutor uses a witness who has pending charges, if the testimony is reliable and checks out. But when a witness comes forward only to obtain a deal for himself on his pending charges, and all attempts at corroboration fail, there is a problem.

If a witness fails a polygraph on the subject of his testimony, and a prosecutor puts him on the stand anyway, there is a problem. When prosecutors troll the jails the week before trial, looking for new jailhouse snitches that are almost certainly going to be lying in exchange for a deal, there is a problem. There is a problem with the witnesses, there is a problem with any prosecutor who engages in these tactics, and there is a problem with the integrity of our courts.

And, as is a matter of public record in a recent murder trial in Horry County, what do we do when the police threaten a witness, tell him what to say, and then obtain a statement from him? Prove it you say? What about when 1) the interview is recorded and 2) the witness recants on the witness stand and tells the jury and the court how the police attempted to force him to lie on the witness stand?

I am disgusted.

We need reform in when and how we use the testimony of "informants" in our courts. We cannot trust the prosecutors to seek the truth and to adequately corroborate testimony before they call a witness to the stand, therefore we need legislation or court rules to ensure that we are not convicting persons based on perjury, and that testimony against criminal defendants is not for sale in the jailhouses.

Earlier this year, California passed a law requiring corroboration of testimony by jailhouse informants before it would be admissible in court. To bring us closer to ensuring reliability of verdicts in criminal cases, we need to consider similar measures. Whether it is done by legislation or whether it is done by pre-trial hearings to determine the reliability of such testimony, we need to recognize this problem and find a way of dealing with it.

I have never really considered this, as we do not have public elections for the office of public defender in South Carolina; given the public's abhorrence for and general misunderstanding of criminal defense and why we need it, public elections could be a recipe for disaster. Imagine if a candidate for office runs on a campaign of being tough on crime, easy on cops, and easy on the public dime (what the public wants to hear) and then they are elected?

Republican Matt Shirk, recently elected as public defender in Jacksonville, Florida, has said that he will fight budget cuts, by seeking fees from indigent clients.

He also said rather than cut personnel because of budget constraints, he plans to seek service fees for clients who may eventually be able to pay for the work they are provided. As an example, he said, an unemployed client could be billed and asked to pay after getting a job.

Shirk also said he believes that hundreds of people who are appointed public defenders by judges can actually afford to hire private lawyers. He said one way to curb such abuse would be to use his investigators to determine whether clients have sources of income not revealed in court. He would then seek to have his office withdrawn from such a case.

He also said that he would not make sweeping changes to the office employees, but then weeks later apparently fired some of the office's most prominent attorneys.

Ten attorneys and three administrators found themselves suddenly out of a job, sacked Friday by the newly elected Public Defender Matt Shirk.

At least one of the attorneys told Channel 4 he believes the mass firings were a form of payback.

The firings came on the eighth anniversary of one of the office's most notable legal triumphs. On Nov. 21, 2000, taxpayer-supported public defender lawyers proved that a Jacksonville teen, Brenton Butler, was not guilty of robbery and murder.

The acquittal became the subject of a documentary shown nationwide on HBO and won an Oscar . . .

The mass firing occurred eight years to the day of when Butler was found not guilty after McGuiness and other attorneys who were recently fired proved the sheriff's department bungled the case.

McGuiness said the firings are payback.

"Mr. Shirk was supported by the Fraternal Order of Police and made certain representations to them, as I understand, that there would not be questions raised about integrity of policemen," McGuiness said.

Shirk has not returned calls inquiring about the firings.

As in the documentary referenced in the article, there are times when there cannot be effective representation of an accused person without raising questions about the integrity of policemen and investigations. McGuiness' allegations and Shirk's actions now call into question the integrity of the entire system for that county, and the wisdom of having public elections, as opposed to appointment or election by the bar, for the office of public defender.

Possibly Shirk is being painted in an unfair light, I don't know. Even if the campaign promises to the Fraternal Order of Police were never made, the significance of the firings seems to speak for itself. And, isn't there something seriously wrong with a chief public defender who is talking about having his office's investigators investigate his clients and who is vowing to fight budget cuts not by, well . . . fighting the budget cuts. . . but by attempting to squeeze all that he can out of his clients who have already been declared indigent and who are already being bled by the courts?

The Society of Professional Journalists (via John Bryan and Glen Graham) publishes the Journalist's Code of Ethics on their website. It is interesting to read as I consider various publications in South Carolina.

For example, from the code of ethics:

Seek Truth and Report It

Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.

Journalists should:
— Test the accuracy of information from all sources and exercise care to avoid inadvertent error. Deliberate distortion is never permissible . . .
— Identify sources whenever feasible. The public is entitled to as much information as possible on sources' reliability . . .
— Recognize a special obligation to ensure that the public's business is conducted in the open and that government records are open to inspection.

On November 16, Tim Smith of the Greenville News continued playing "gotcha" with Senator Brad Hutto, while reporting that the trooper who had been under fire for reducing many of Hutto's DUI clients' cases to reckless driving has now been disciplined, despite an earlier finding of no wrongdoing by the solicitor. Arguably, Tim Smith's reporting shows an interest in ensuring that the public's business is conducted in the open and that government records are open to inspection:

The state trooper who last year reduced DUI charges against clients of a state senator, sparking an investigation that found no criminal wrongdoing, has been disciplined in connection with the cases, records show.

Lt. Col. M.L. Howard of the Highway Patrol reprimanded Lance Corporal David Smith and said he violated rules and procedures, according to a copy of the disciplinary memo obtained by The Greenville News under the state Freedom of Information Act.

Smith reduced 10 DUI cases on a single day last October and turned in the paperwork of the cases in January, prompting a superior to request an internal investigation, records show. The documents show that most of the drivers in the cases were represented by Sen. Brad Hutto of Orangeburg. Six of the 10 DUI cases had blood-alcohol readings of between .13 and .16, records show, and drivers refused alcohol tests in four of the cases.

Tim Smith took care to present both sides of the issue, also reporting that:

Hutto and Magistrate Willie Robinson said the senator and his clients received no preferential treatment and the DUI cases were reduced to lesser charges as a result of a plea bargain between the trooper and the senator. The judge said he played no role in the plea bargains. Solicitor David Pascoe, chief prosecutor for Orangeburg County, announced in August that an investigation by the State Law Enforcement Division found no criminal wrongdoing by Smith.

But an article published 2 days later on November 18, with no author listed, takes the information and turns it into an accusation of public corruption, hinting at shady deals and undue influence in the courtroom:

South Carolina state senators have an unseemly and unhealthy degree of power over the magistrates who are so important to our statewide system of justice. That relationship is especially outrageous when the senators who often hold the magistrates' jobs in the palm of their hands also are lawyers practicing before those same magistrates. The system begs for reform . . .

The veil was pulled back from the magistrate system earlier this year when a state trooper found himself in hot water for reducing 10 DUI cases on a single day last October . . .

A most telling comment could be found in the information that came out after the chief prosecutor announced a couple of months ago that he had cleared the trooper of any wrongdoing. The newspaper reported at the time that the trooper had indicated to investigators that he was at a disadvantage going into the magistrate's court when the senator-lawyer had played a key role in appointing the local magistrate. "Brad (Hutto) appoints the judge, makes a motion and the judge agrees," SLED agents quoted Smith as telling them.

The opportunities for mischief are obvious. The damage done to the judicial system's reputation is enormous.

This problem isn't just about the black eye given to the judicial system. This also is about cleaning up South Carolina's highways and making them safer for this state's citizens. South Carolina has some of the most deadly roads in the nation, and the state's high rate of DUI-related cases clearly is a contributing factor . . .

The beating of the DUI-drum is a familiar sound from the Greenville News Online, which panders to the DUI fanatics who love to read this stuff, but this particular article goes beyond the familiar DUI - hang-em-up spin, and misleads the public. A single phone call by the author to any magistrate, magistrate's court prosecutor, or defense attorney who practices in the magistrate's court would have revealed the inaccuracies in the article.

Magistrates do not have the authority to make or approve a reduction of a DUI ticket to reckless driving. The officer or the prosecutor only can make that decision; reckless driving is not a lesser included offense of DUI so not even the jury can make that decision. Before a reduced charge goes before the magistrate, the DUI ticket is dismissed and a new warrant is written for reckless driving. The magistrate can only accept or refuse the plea which is placed before them.

The defense attorney does not "make a motion" and the judge agrees, when there is a plea to reckless driving. The officer made that decision before the case ever went to the judge. I am not a state senator, I do not have undue influence over any judge, and I have received offers of reckless driving in many cases because it was appropriate to do so, and because it was not a case the prosecutor wanted to try. Sometimes a charge is reduced on the prosecutor's own initiative and sometimes after discussing the merits of the case with them, but always it is in the prosecutor's discretion.

Prosecutors or officers will reduce a DUI ticket to reckless driving, careless operation, or any other lesser offense, when it is appropriate. It is appropriate to offer a plea on a reduced charge when there are evidentiary issues that would cause problems in going forward in the case, or when there is an otherwise strong defense case that likely would result in an acquittal. Otherwise, the system would be hopelessly bogged down with thousands of trials that would result in dismissal or not guilty verdicts. A wise prosecutor chooses his best cases to take to trial.

I don't know if this article was an editorial comment or if it was written by a reporter. There is no identifying information that I can find yet it was published as news. The first comment underneath it is "Good piece of reporting. Thank you."

To the Greenville News: I am glad that you are keeping the business of government in the public eye. But please, identify the authors of articles that you publish and do not publish materials that, whether "inadvertent error" or "deliberate distortion," have the effect of needlessly undermining confidence in our justice system. I am the first to criticize and complain about problems in our justice system, but there are plenty of issues there already without making up more that do not exist.

Don Sorenson was issued a public reprimand as a result of his arrest for unlawful gambling in April of this year. At the time, Sorenson was the deputy solicitor for the 1st judicial circuit. He resigned from that job, but apparently has since found a new home at the Kershaw County Solicitor's Office.

A public reprimand is not a particularly harsh penalty for a criminal conviction, but in my opinion gambling should not be criminalized in the first place. It is a victimless "crime" and it should be decriminalized along with drug possession and prostitution. But - victimless crime or not, it is still a crime, and, as the deputy solicitor, Sorenson was responsible for enforcing the law even as he was repeatedly breaking it.

Ernest Yarborough, on the other hand, was disbarred this month as a result of his 1997 conviction for obstruction of justice:

In 1996, Respondent was indicted for common law obstruction of justice and offering a witness money with the intent to influence testimony in violation of S.C. Code Ann. § 8-13-705 (Supp. 1998) in connection with his representation of a defendant who was charged with burglary.[1] The State presented evidence that Respondent offered the accuser money to drop the charges against the defendant and that he sent an investigator to pressure the accuser to drop the charges. The jury found Respondent guilty of obstruction of justice, but acquitted him on the statutory violation.

Yarborough has been on interim suspension since his conviction, disciplinary proceedings were begun after Yarborough's appeals process had run out, Yarborough did not respond to the disciplinary charges and he was held in default. I found the following on the National A/E/C Speakers Registry, which appears to be Mr. Yarborough's profile:

Mr. Ernest Yarborough, Juris Doctor. I overcame all of the socio-economic barriers to become a distinguished military leader and subsequently departed the military to obtain a Juris Doctors degree from the University of North Carolina at Chapel Hill. I returned to my hometown in South Carolina to build a very successful law firm. I was attacked by the State of South Carolina with criminal charges, but I refused to settle. I fought the state for 10 years, prevailing on the most charges but I had to serve 100 days in prison for obstruction of justice. Despite my struggles with the State, my soul was intact and I became a powerful minister of the gospel. My rise and fall and resurrection is a testament of faith and survival.

In May of this year, I blogged about a California prosecutor, Ben Field, who was being investigated for misconduct for things such as withholding evidence, failing to inform the defense that a key prosecution witness may have participated in the crime, and initiating searches of the homes of a defendant's family and friends despite a judge's order not to do so without prior approval.

I came across an update to the story, and what struck me as I was reading was the role that the media played in bringing this prosecutor's conduct into the light of day. The Mercury News ran a series in 2006 called "Tainted Trials, Stolen Justice," in which "the Mercury News reviewed Field's conduct, and found a pattern of questionable conduct in earlier cases as well." The Mercury News continued to follow the story, keeping the pressure on the California state bar to do something about the situation.

In May of this year, the California bar began a series of disciplinary hearings into Field's conduct.

But as Field won convictions in one difficult case after another, his aggressive conduct in the courtroom raised questions about whether he was twisting facts and defying judges to gain his victories. And beginning today, that conduct will be at issue in a rare state bar hearing examining allegations of prosecutorial misconduct.

In October, the California bar recommended a punishment of disbarment for a three year period:

Contending that a top local prosecutor repeatedly sought to subvert justice, the state bar is recommending that Ben Field be suspended from practicing law for three years — a punishment that would represent an unheard of public discipline against a Santa Clara County deputy district attorney.

. . .

The bar contends the four cases demonstrated repeated "acts of dishonesty and an intent to subvert the proper workings of the criminal justice system." In one case they cited, Field concealed from defense attorneys that he knew the location of a witness whom the defense was having trouble locating. Instead, he urged that defense efforts to win a new trial be rejected because the witness was missing.

Now, California prosecutors are seeking to pass a law that would limit the bar's ability to sanction lawyers for misconduct:

In the wake of a disciplinary hearing against a top local prosecutor, the union that represents Santa Clara County prosecutors and public defenders is asking the California District Attorneys Association to sponsor a bill that would essentially curb the power of the state bar to punish all lawyers.

The type of conduct Field engaged in, seeking to win cases at the expense of justice and all that the justice system is supposed to stand for, happens in every state in the country. If it were not for investigative reporting and subsequent media exposure, this Field guy would be well on his way to a judgeship, attorney general or other political office. Hell, he may still be, but hopefully he won't be a prosecutor any longer.

It is sad that it took extensive media coverage to shame the state bar into doing something about prosecutorial misconduct, and now that something is being done the prosecutors are seeking to limit the state bar's supervisory abilities. This is a problem that should be addressed throughout the country - when judges, at the trial level and on appeal, refuse to dismiss cases or sanction prosecutors in any way, and when the state bar refuses to sanction prosecutors for misconduct, the message is clear: it is OK to withhold Brady material, lie, cheat, and do whatever you have to do in order to win cases. The power of the media to effect change in a broken system cannot be understated, and that power carries with it a huge responsibility.

In an article today, the NY Times highlights the growing crisis in public defender's offices around the country, in states which are not providing funding to adequately represent the indigent.

Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.

Most defendants cannot afford to retain a criminal defense lawyer, but Gideon and the Sixth
Amendment requires that the state must provide people with effective counsel before a person can be prosecuted. The key is that every person is entitled not only to a lawyer standing with them in court, but they are entitled to the effective assistance of counsel, which is impossible when the system requires the public defender to support caseloads of 400 or 500 defendants. It is not possible to investigate cases and do legal research with this type of caseload, nor is it possible to try every case that should be tried.

The ethics rules require that an attorney limit his or her caseload to an amount that is manageable, and taking on too many cases is malpractice. But public defenders are put in a difficult position, when they do not necessarily have control of how many cases they receive, and they know that every person must have representation.

In several states public defenders have filed lawsuits and in some cases have been authorized by judges to stop taking cases until the state adequately funds indigent defense.

“In my opinion, there should be hundreds of such motions or lawsuits,” said Norman Lefstein, a professor at the Indiana University School of Law and an expert on criminal justice.

“I think the quality of public defense around the country is absolutely deteriorating,” Mr. Lefstein said, asserting that unless states spent more on lawyers, the courts would force them to delay trials or, as has happened in a few cases, threaten to drop charges against unrepresented defendants.

The most immediate impact of the rushed justice, Mr. Lefstein and Mr. Carroll said, is that innocent defendants may feel pressure to plead guilty or may be wrongfully convicted — which means the real offenders would be left untouched. Appeals claiming inadequate defense are very difficult to win, experts say.

An alternative to spending more on defense would be not arresting and charging so many people. Not prosecuting victimless crimes, such as drug possession, gambling, prostitution, and, arguably, non-felony DUI, would free up resources for both the prosecution and the defense. Costly space in jails and prisons would be emptied and we could refocus on treatment and prevention as well as the prosecution of violent crimes that actually have victims. Less prosecutions, less money would need to be allocated to the defense of indigents. In the meantime, States have got to adequately fund indigent defense and when they do not, public defenders should be refusing cases.

Commentary on NPR by Professor and former public defender Peter Keane in California. Audio is available on NPR's site. An excerpt:

I know that most people have great difficulty understanding this. Indeed, many are horrified by it. But reflect for a moment: There is one key mechanism in our society that protects and maintains all of our freedoms. It is that we go by the rule that whenever someone does something that we condemn, no matter what it is, he still gets one person to speak up for him.

Take away this protection and all our other democratic rights, which are so carefully woven into the constitutional design of our republic, become meaningless. Without resistance from lawyers who represent people being prosecuted, all freedom is ultimately lost, because it is the natural human tendency of those who wield power to abuse those without it.

I am a law professor now. I teach my students to be proud to defend anyone, no matter what they may have done. I want them to stand up for the world’s Saddam Husseins and Osama bin Ladens, for America’s accused rapists and murderers and thieves. I want my students to fight for them—ethically, but with all the fierce determination, talent, and skill that they have.

One person on your side, no matter what you’ve done: That’s what keeps us a free people. That’s what I believe.

Over the past few months I blogged about a Texas judge who signed a search warrant for defense attorney Keith Gore's office, bypassing a hearing that had been scheduled to determine whether the prosecution was entitled to evidence in a pending murder case or whether it was protected by attorney client privilege. Collin County District Judge Mark Rusch was subsequently recused from the case.

NBC5i.com reported that not only did Judge Rusch give the search warrant to prosecutors, pre-empting the hearing, but that the seized materials were then taken to the judge's home, where detectives say the judge not only reviewed the letters seized from attorney Gore's office, but also cut bar-coded tape to open a box, thereby placing himself in the chain of custody and potentially opening himself up to claims of evidence tampering:

According to court documents, the evidence seized from Gore's office was taken to Rusch's home instead of a crime lab.

A witness for Rusch acknowledged the judge inspected letters and documents and handled the box, but said the judge did not unseal the box.

But Frisco detectives said Rusch unsealed the box, which was closed with bar-coded tape, using a knife.

Hagen said the handling of evidence raises major chain of custody issues and directly implicates the judge in the investigation of Bell.

Those issues and information prosecutors may have learned about the case during the raid could lead to a dismissal of the charges against Bell, Hagen said.

"When you're talking about trying to stick a needle in their arm and kill a person, you better play by the rules," he said.

Video coverage is here.

Related posts:
Judge signs search warrant for attorney's files
50 lawyers showed up to support Texas lawyer whose office was searched by police
Judge who signed search warrants for attorney's office recused from murder case
Another attorney's office raided
Criminal defense lawyer's office searched in New Jersey

Doug Berman at Sentencing Law and Policy last week highlighted an Iowa district court opinion in which U.S. District Court Judge Mark Bennett reduced a defendant's sentence by 17 months as a remedy for prosecutorial misconduct.

The prosecution had entered into a plea agreement with the defendant where he was to plead to drug and weapons charges with a guidelines level of 25 after a downward departure of 3 levels for acceptance of responsibility. However, at the plea, in violation of their agreement, the prosecution argued that the defendant should instead be sentenced as a career offender, with an adjusted base level of 29 and criminal history category III, based on a prior DUI conviction. (The prosecution argued to the judge that the Defendant should be sentenced to significantly more time in prison than they had agreed to.)

Ultimately, the Court found that the prosecutor's breach of the plea agreement constituted prosecutorial misconduct, after which the case was sent to Judge Bennett to determine what, if any, the remedy should be.

The prosecution, now represented by a different Assistant United States Attorney, argued that, even if the violation of the plea agreement was “clear” or “blatant,” it was not in “bad faith,” and was more in the nature of a “technical” violation . . .

found that Dicus’s total offense level is 25 and that his criminal history category
is III, which results in an advisory United States Sentencing Guidelines range of 70 to 87
months

Granting no relief is also inappropriate, because it would do nothing to deter
prosecutorial misconduct or to give defendants an incentive to raise prosecutorial
misconduct claims. See, e.g., Sonja Starr,3 Sentence Reduction as a Remedy for
Prosecutorial Misconduct (hereinafter Starr, Sentence Reduction), 2 & n.10 (unpublished
draft, September 2, 2008; used by permission) (citing Guido Calabresi, The Exclusionary
Rule, 26 HARV. J.L. & PUB. POL’Y 111, 116-17 (2003), and Harry M. Caldwell and Carol
A. Chase, The Unruly Exclusionary Rule, 78 MARQ. L. REV. 45, 68-71 (1994), as
suggesting that the appropriate remedy for prosecutorial misconduct should be the
combination of direct sanctions against the police, such as fines, to deter misconduct, with
sentence reductions, to give defendants an incentive to raise misconduct claims).
Moreover, “[p]rosecutorial misconduct has been a widespread and widely criticized
23
problem in the U.S. criminal justice system for decades,” albeit one for which existing
remedies are ineffective, “largely because they are rarely invoked.” Id. at 4 & 1. For
example, as the Second Circuit Court of Appeals observed more than two decades ago,
“Given this Court’s unwillingness to use reversals as a means of disciplining prosecutors,
threats to do so seem unlikely to have much effect. As a practical matter, prosecutors
know that courts are reluctant to overturn convictions because of improper [conduct].”
United States v. Modica, 663 F.2d 1173, 1183 (2d Cir. 1981) (cited in Starr, Sentence
Reduction, at 13). The problem cannot continue to go unremedied by the courts, so that
some relief from prosecutorial misconduct is appropriate in this case.

The Court cites a paper by Professor Sonja Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, which advocates for the use of sentence reduction as a remedy for prosecutorial misconduct. The reasoning is that the current remedies, reversal of a conviction or dismissal of charges, are never granted by courts and therefore there is no real deterrence.

Starr and Judge Bennett have a point - Courts rarely grant reversals, dismissals, or suppression as a consequence of prosecutorial misconduct. Prosecutors are rarely disciplined for ethics violations, and they are all but immune from civil liability or prosecution themselves. I don't believe that sentence reductions will serve as an effective deterrent, however. I believe that all of the above would be the better deterrence for prosecutorial misconduct, such as Brady violations that can and do lead to wrongful convictions, but seeing as how none of that is happening, perhaps we need to start somewhere.

This story highlights some of the damnable ethical dilemmas that attorneys, in particular criminal defense lawyers, often face. In 1999, Florida lawyer Jay Hebert's client told him that she had helped to bury the body of a missing real estate agent. Her boyfriend at the time had murdered his wife, the real estate agent, and she helped to dispose of the body.

For nine years Hebert lived with this knowledge, as his client refused to come forward and he was bound by attorney client privilege not to reveal the information revealed to him in confidence. The client finally decided to talk, after Hebert negotiated a deal for her immunity in exchange for the information, the body has been found, and the (now ex I presume) boyfriend has been charged with first degree murder.

The attorney client privilege is an ethical rule that is inviolate. Most lawyers, myself included, have clients' secrets that we will carry to our graves. Blogger Jon Katz recently commented on client's families who insist on being present during meetings, and how he deals with this. The issue is that whenever a third person is in the room, technically there is no attorney client privilege. That third person can reveal what was said, and hypothetically a judge could then force the attorney to reveal those confidences.

The way I deal with this is to sit down first with the client and his or her family, explain to the family that I will be glad to discuss procedural matters with them or how things are looking in general, but when it comes to the details of what my client tells me, that is between them. If it is a parent, I encourage my client to be honest with them about what happened, but I cannot tell them what my client reveals to me and once we begin discussing details of the alleged crime everyone but my client must leave the room. Although some have not liked this, I have never had to refuse to accept a client or have one leave because of it.

Attorney client confidentiality, like the priest-penitent privilege, is essential because without it clients would not be able to speak freely with their counsel. I believe that to do the best that I can for a client I need them to be able to trust me with the truth about their case without fear of being sold down the river to the government.

From Grits for Breakfast: On September 9, the Texas Court of Criminal Appeals stayed the execution of death row inmate Charles Hood, saying that it will reconsider the propriety of jury instructions in a claim that the Court had rejected last year.

Hood's attorneys asked the Court to stay the execution based on the revelations that Hood's trial judge was sleeping with the prosecutor in his case, but instead the Court dodged the issue and based its stay on the previously denied issue of improper jury instructions.

For some time, the trial judge and prosecutor had refused to answer questions about their undisclosed relationship during the time of Hood's trial, but after Hood's attorneys filed a civil suit seeking damages and a district judge ordered them to submit to depositions, they admitted the affair.

Despite the admission of a sexual relationship between judge and prosecutor, which seems would be an obvious denial of the right to a fair trial before an unbiased tribunal, a letter to the governor from 22 former judges and prosecutors, and the attorney general's request that the matter be looked into, the Texas Court of Criminal Appeals held that the claim of impropriety came too late, instead ordering the stay based on new developments in the law on jury nullification instructions.

Grits points out that the new development in the law of jury nullification instructions is a 2007 U.S. Supreme Court case Smith v. Texas, which came before the appeal was denied in Hood's case in June of 2008. Therefore, the Court gave the go-ahead for the execution despite U.S. Supreme Court precedent on jury instructions at the time. The politics of state-sponsored killings in Texas is truly a marvel.

In the third search of a criminal defense lawyer's office since spring, a federal judge in New Jersey is allowing prosecutors to review computer records seized from a criminal defense lawyer's office, including the files of clients who were not targets of the search.

A federal magistrate signed the search warrant, which allowed the seizure of all computer hardware and electronic storage devices from the defense attorney's office, and the attorney's request for a preliminary injunction was denied by U.S. District Judge Robert Kugler. If the defense attorney was a valid target of the investigation - the FBI's affidavit did state "Manno was using computers in furtherance of alleged criminal activity" - then a focused search for specific evidence of crime may be justified, but an all inclusive sweep of all of the attorney's files without regard for attorney-client privilege cannot be justified.

West Virginia defense attorney John Bryan puts this practice into perspective:

It is sickening to see that there are prosecutors out there who would go between different judges to get an illegal search warrant of an attorney’s office. If that is legal, then I would like to see a mechanism put in place whereby the lawyers of criminal defendants can obtain their own search warrants to be executed on prosecutor’s office. Say, for instance, that you know a certain prosecutor has a video tape that would exculpate your client. He refuses to hand it over, or to even acknowledge it. You could get a search warrant and have your private investigator execute the warrant and look for the tape. Yeah right. That’ll be the day. The sad fact is, that prosecutors are perfectly willing and able to abuse their power and not only will many judges not stop them, some of them apparently will help.

The judge in this case apparently has approved the review of materials by a "taint team" in order to determine what material is covered by the warrant before it gets to the prosecutor. Last I checked, attorney-client privilege did not apply only to prosecutors - with limited exceptions it applies to everyone who is not attorney or client. This practice, in any situation other than where there is probable cause that a defense attorney is himself engaging in criminal activity and the search is specific and focused so as not to violate attorney-client privilege, is an abuse of process. To see these kind of tactics sanctioned by judges makes it that much worse.

Via Grits and Tex Parte Blog, Collin County District Judge Mark Rusch has been recused from hearing a capital murder case, after signing search warrants for defense attorney Keith Gore's office.

Despite a hearing being scheduled to determine whether the prosecution was entitled to the items they sought, the prosecution sought and obtained a search warrant from Judge Rusch to enter Gore's office and search for a pair of boots and letters that the defendant had written to his wife. The boots were not found in the office, but the letters were taken by the police. From Tex Parte:

The boots were not found, according to a motion the DA’s office filed in the case, but letters and a shoe box were. “We’re pleased with it, and we think it vindicates what we’ve been saying all along: that Keith Gore did absolutely nothing wrong,” Miears says. “And we’re disappointed that the Collin County DA’s Office would put a district judge in the position of having to issue an illegal search warrant of a lawyer’s office.” Collin County assistant district attorney John Rolater, who represented his office during the recusal hearing, declines comment.

There are different ways to conduct interviews, depending on what you want to achieve in the interview. In law schools they usually offer a class on interviewing which teaches, among other things, how to get the most accurate and truthful information from an interview. You begin with broad, open ended questions, who, what, when, where, why, and how, allowing the subject to speak freely and not limiting their responses. Further along into the interview you may narrow the scope of your questions, to focus on what you have identified as the important issues, the topics you want to know more about, or the subject matter that they left out.

If you are seeking the truth, the above method is without a doubt the most reliable. On the other hand, if you are seeking only to verify what you already believe to be true or if you are seeking to make the subject say what you want them to say, you would use more coercive methods, such as the Reid technique or variations thereof that are taught to law enforcement.

In preparation for a murder trial, recently I interviewed a witness. There were times during the interview where I told them what others had said and asked them to confirm or deny, but for the most part I tried to just ask them to tell me what had happened and what they knew. Most of what I was told confirmed what I already knew from other witnesses, and I didn't have to trick the person, lie to them, or scare them into telling the truth. After this, I was reviewing a typical police interview of a witness in the same case, where the investigators were convinced they had everything figured out.

In the beginning of the interview, they tell the subject that they already know everything and there is nothing that the subject can tell them that they don't already know. They only want the subject to listen and they are going to tell him what happened. They then proceed to tell the subject what they want him to say, in great detail. When the subject tells them that they are wrong, and tries to tell them what actually happened, he is told he is lying. They then tell him that they know he is lying because A, B, and C have already told them what the subject's involvement was. I know that A, B, nor C ever spoke to the police about this case.

They tell the subject that A is telling them that the subject is the "ringleader" and that A is laying all the blame on him. They tell the subject that if he does not clear the air he is going to have to take the fall. They tell him that A is saying it happened this way _________. But, the truth is, if it happened this other way __________ they can understand that, it's alright. Scenario number 2 is not nearly so bad as what A is trying to pin on him (but admitting to scenario number 2 would in fact be a confession to a crime). They also want him to tell them what they want to hear about A's involvement. They tell him they are going to be there for days if he does not say what they want him to say.

The subject continues to deny what they are saying, and repeatedly tells them he is not going to lie. At one point, he asks what they want him to say. The response is, I want you to say that A did this. The subject says I am not going to lie, and the cop's response is it's not a lie, because I know A did this.

The end result in this particular interview was that the interrogators lost control of the interview, lost all credibility with the subject, and he did not tell them what they wanted to hear. They did not keep him in the interrogation room for days, and he did not succumb to the pressure. But watching these interviews it is easy to see how police when applying these techniques can and do obtain false confessions from people. Persuade the subject that they are not leaving that room until they say what the police want them to. That there is overwhelming evidence proving what the subject knows is not true. That things will go easy on him if he just says what the police want him to. That if he does not say what the police want him to things will get much harder.

What occurs to me is the difference between my interviews and police interviews. What would happen if I interrogated a prosecution witness in the same manner that the police interrogated this guy, and the prosecutor got his hands on the video? When the police twist interviews to make witnesses or future defendants admit whatever facts support their case, provided Miranda rights are read, usually whatever is said is admissible at trial and the jury will overlook or not care about the methods used. It is called good police work. If a defense attorney were to use these same methods to twist the truth I am sure that it would be called obstruction of justice.

Marina Tylo has filed a defamation suit against blogger Andrew Bluestone at the New York Attorney Malpractice Blog, for reporting in September of last year that she was sued for malpractice. In her complaint, provided here by Simple Justice, she asks for the sum of $10,000,000.00 in damages and a retraction.

The offending text she cites in her complaint is:

Here is the full text cite for a legal malpractice case in which plaintiff's attorney served a summons before buying the index number. Khlevner v. Tylo, 10733/07,

As Simple Justice points out, this ridiculous effort by Tylo to silence a blogger will end up earning her much more bad press than the one small post on Bluestone's malpractice blog did:

And if the rest of the blawgosphere feels similarly, then let's make sure that those inclined to try to use the courts to shut blawgers down and keep lawyers' screw-up as their dirty little secret, learn that such vapid efforts to undermine speech in the blawgosphere is going to backfire on them. Perhaps Tylo will regret her decision to try to silence Bluestone as her misbegotten effort spreads across the internet.

Is that how someone protects her reputation? By suing a law blogger? Really? Who advised Ms. Tylo that filing the lawsuit was a good idea? She should sue her lawyer for malpractice.
Oh, wait. According to the summons that Mr. Greenfield helpfully posted, Ms. Tylo filed the lawsuit pro se, that is, on her own behalf. She's literally her own lawyer.

I see that a google search for "Marina Tylo" brings up activerain real estate network first (which I hope is a bad joke, as it shows a terribly unprofessional profile filled with typos and bad grammer), followed by many blawgs with commentary on her lawsuit. Several begin with "Brooklyn lawyer Marina Tylo deserves a good spanking."

More from Eric Turkewitz, Mark Bennett, Crime and Federalism.

From Fourth Amendment.com:

Last month federal agents executed a search warrant on the office of lawyer George Argie in Cleveland, Ohio, seeking information about one of his clients. The warrant was one of many issued as part of a federal investigation into corruption by Cuyahoga County officials:

Investigators are examining whether Cuyahoga County Commissioner Jimmy Dimora and Auditor Frank Russo steered the construction contracts to businesses that provided free improvements to their homes . . . agents want to know whether Dimora and Russo offered jobs in exchange for favors or used their influence in judicial proceedings, decision-making at the top levels of county government and determinations of how much taxes people and companies should pay.

Argie says he does not think he is a target; they only wanted information regarding his representation of his client. My question is, if Argie is not a target, how in the hell does a judge sign a search warrant allowing law enforcement to go through his files? One of the first things that we learn regarding the attorney - client privilege is that it is sacrosanct. If a client's confidences cannot be maintained, clients will not be able to confide in their attorneys, and they are denied effective representation.

The appropriate method of obtaining information from an attorney's files is through subpoena, which the attorney can move to quash, providing for a hearing before an impartial judge who can review the materials in camera if necessary to determine if attorney-client privilege applies. Law enforcement cannot walk into lawyer's offices, search through clients' files, and take what they want (as they did in Keith Gore's office in Texas).

If George Argie is the target of a valid investigation, then a search warrant for his office may be justified. If Argie's client waived the attorney client privilege, then Argie can turn over his client's information and a search warrant would not have been necessary. But if Argie was not a target and his client did not consent, this is a serious problem - law enforcement cannot bypass judicial review and ignore attorney client privilege in their search for evidence.

Last month, I posted about Texas lawyer Keith Gore, whose office and files were searched by the police for evidence in his client's murder case. The prosecutors wanted evidence which was in Gore's possession, and a hearing had been scheduled to determine whether Gore was required to turn it over or whether it was privileged.

Instead of waiting for the hearing, the prosecution sought and received a search warrant from a different judge, searched Gore's office, and seized the materials. At a hearing last week, on motions by the defense to recuse the judge who had signed the search warrant and motions by the prosecutor to recuse the defense attorney, 50 attorneys packed the courtroom in support of Gore, including the president of the Texas Criminal Defense Lawyer's Association which has filed an amicus brief in the case.

"It's a tremendous concern regarding the government's ability to raid a lawyer's office," Rick Hagen, a partner in Denton's Jackson & Hagen who is president of the Texas Criminal Defense Lawyers Association, says in an interview. Hagen attended the recusal motion hearing Aug. 5 and filed an amicus brief on behalf of TCDLA with the 401st District Court in Texas v. Bell, arguing that the search violated the Fourth and 14th Amendments of the U.S. Constitution. "And you've got to understand this is not a case where Keith Gore is accused of any wrongdoing whatsoever."

Judge Larry Hyman ordered a mistrial yesterday in a child sexual abuse case after an assistant solicitor told the jury that the defendant had "failed" a polygraph. For the layperson, due to the unreliability of polygraphs their results are never admissible in court, and this is not an obscure point of law that lawyers are usually confused about.

"The case will be tried again later this year, said [the Assistant Solicitor]." Well, unless a retrial is barred by double jeopardy as a result of the state's attorney causing the mistrial. The prosecutor went on to explain to the judge "that she could inquire about the conversation because Williams took the test voluntarily before he was arrested in the case," and informed the judge that there was case law, although she was not able to produce it.

Many assistant solicitors in this county begin by prosecuting in the magistrate court. When they get some experience trying cases, they then move up to General Sessions where they take on bigger cases. I'm going to go out on a limb here and say that, while in the magistrate court, assistant solicitors learn bad habits. For example, they learn that many times some magistrates will rule in their favor no matter what their argument is, and so they will make ridiculous arguments in trial that have no basis in law.

This particular attorney recently moved up from the magistrate court division - possibly she did not realize that this does not work in the circuit court, where the law is really the law and the judges are also attorneys.

Chief U.S. District Judge Curtis L. Collier has issued a ruling in response to Herbert Moncier's motion requesting a clarification of the judge's prior ruling, as to whether Moncier's suspension prohibits another attorney in his office from appearing on behalf of clients in Federal Court. Collier has essentially ordered that attorney David Wigler is also banned from federal practice, as long as Wigler works for Moncier.

Moncier was suspended from federal practice for zealous representation of his clients - after he was held in contempt of court for requesting to speak to a client whom a federal judge was questioning, in court with law enforcement and the prosecution present. Moncier has appealed his suspension.

Collier also ordered that Moncier is not to be present in the courtroom during proceedings in his clients' cases, accompany federal attorneys to court, sit with federal attorneys in the courthouse, or talk to any other federal attorneys about federal cases.

An Arizona prosecutor/ county attorney is under investigation by the State Bar for numerous complaints, including allegations of:

1) inflammatory public statements to the press about defendants;
2) allowing non-lawyers to act as lawyers;
3) seeking to recuse a judge from all county cases; and
3) ex parte communication with another judge.

The county attorney has filed a petition with the Az supreme court, asking that the disciplinary committee stop investigating him, claiming "executive immunity" among other things.

In the brief the Bar states that “A lawyer who happens to be an elected public officer…cannot simply opt out of the lawyer-regulatory system claiming the privilege of his elected office.”

The LA Times released a story two days ago which raises new questions about the reliability of DNA evidence in court. Well, what strikes me about this story is not the reliability of DNA evidence so much as the ethics of the FBI.

Government experts routinely explain to juries how certain a DNA match is, although I hear different numbers each time. Pick a random number that is too big for the brain to comprehend; one in that number is the odds of another DNA match occurring. I in 113 billion. 1 in 100 billion. 1 in 108 trillion. 1 in 1 quadrillion. FBI experts have testified that certain DNA profiles are unique, to a reasonable degree of certainty.

The problem is, FBI analysts have never tested 100 billion, trillion, or quadrillion DNA samples and looked for matches. They are giving their best guess, and undoubtedly the need to obtain convictions transforms a "best guess" into a "reasonable degree of certainty."

In the 1990s, FBI scientists estimated the rarity of each genetic marker by extrapolating from sample populations of a few hundred people from various ethnic or racial groups. The estimates for each marker are multiplied across all 13 loci to come up with a rarity estimate for the entire profile.

However, the growing number of samples contained in state DNA databases is making real research into DNA matches possible. An Arizona crime lab analyst began finding dozens of DNA matches in the state database. Court ordered searches in two states found 1000 pairs that matched (9 of 13 points matching). A court ordered search in an Arizona case found 122 matches in 65,000 samples tested.

The odds that the new searches indicate are still substantial, and likely are still not only admissible but persuasive in court. The ever growing DNA databases offer new unique opportunities for research that may benefit not only the court systems but the sciences as well. And yet, rather than open up the DNA databases for testing, or even conduct their own testing, the FBI went on a campaign to prevent any such tests.

They threatened state labs who complied with court orders to conduct the tests. They schemed to figure out ways to trick judges into not granting defense counsels' requests for testing. They told judges that they would cut off state labs from the national databases if the courts ordered the tests, and consulted experts who would explain to judges that the tests were not scientific and not necessary. They argued that the tests would violate the privacy rights of convicted felons and that they would result in the systems being overloaded and shut down. They argued that, under federal law, the databases were exclusively for the use of law enforcement agencies and not defense lawyers.

Why not run the tests, get accurate probabilities based on real numbers, and tell the truth to juries? The probabilities are surely going to be impressive even if they are not as ridiculously large as the FBI has been claiming. I doubt that it will result in more acquittals. To me this story was not about the revelation of finding DNA matches so much as the FBI's attempt to hide the truth and preserve their inflated estimates. I hope that this national discussion sparked by the Times' story leads to more research and testing in the area of DNA analysis, free from the prosecutorial bias and scientific repression of the FBI.

Judge Mark Rusch in Frisco Texas signed a search warrant authorizing police to search defense attorney Mark Gore's files, seeking items and letters written from his client to his client's wife. A hearing was scheduled in four days before a judge to determine whether the information was subject to privilege and if the police were entitled to it, and yet the prosecution sought Rusch's aid in obtaining the information before the hearing was held.

What is wrong with this?
1) Instead of waiting for a judicial determination, the police and prosecution seek a search warrant to go through the defense's file and take what they want.
2) A judge actually signed an ex parte search warrant, knowing that a hearing on the matter had been scheduled where both sides could be heard.
3) As noted by Simple Justice, In order to find the information they were looking for, agents of the prosecution went through the defendant's entire file, and most likely compromised other privileged case files as well.

The prosecutor is seeking to disqualify the defense attorney from the case so he can call him as a witness. The Texas and the National Associations of Criminal Defense Lawyers have gotten involved in the case and are assisting the defense attorney. The defense attorney has been forced to retain his own attorney in the matter, is moving to recuse the judge that signed the search warrant, and is moving for the return of and to exclude from trial all materials that were seized from his office.

This appears to be an example of dirty prosecution pool at its worst. The prosecution and Judge Rusch have violated Gore's client's Sixth Amendment right to counsel, violated Gore's Fourth Amendment right to freedom from unreasonable search and seizure, and subverted justice by placing the items in the prosecutor's hands before a judicial determination of the prosecution's right to have them. If you are the law and you want something, take it. Want to peek in defense counsel's files? Get a search warrant.

I sincerely hope that more information comes to light that could somehow justify the DA's and judge's actions in this case.

Anonymous small town DA Western Justice asks the question, why do prosecutors do what they do?, and his answer is that prosecutors are motivated to help the victims of crime. I think that this is true of many prosecutors, and it is the right answer.

There are many reasons why prosecutors and defense attorneys do what they do, but the best advocates on either side are those that are motivated by a genuine desire to help people. Prosecutors help to vindicate crime victims, and they work to make the community a safer place for everyone.

Defendants and their families are also in crisis when they enter the criminal justice system and, whether innocent or not, need help possibly more than at any other time in their life. I believe that the best defense lawyers are primarily motivated by the need to speak for people that would otherwise have no voice. There are other motivations that go hand in hand with the desire to help people, and that should apply equally to both prosecutors and defense attorneys - the fight to maintain the constitutional protections that our justice system was founded on, including the fight to preserve the right to jury trial and proof beyond a reasonable doubt, which protects all of us from the possibility of wrongful conviction. Many great prosecutors and defense lawyers are probably adrenaline junkies as well, and love the competition and the excitement that can come with criminal trials.

Regrettably, this does not define all prosecutors or defense lawyers. Western Justice asks, "is it because a prosecutor’s heart lies with throwing people in prison and jail to sit there and rot?," and answers no - but I believe he is wrong about some prosecutors. With great power comes great responsibility, and there are some prosecutors that cannot handle the power that comes with their job. I have no doubt that some prosecutors take pleasure in sending a person to jail, and not surprisingly these are the same ones that are less than scrupulous about following the rules, such as full Brady disclosure. Some prosecutors' motivations are political, and some would rather send an innocent person to jail than lose a case that has been followed by the media.

Many attorneys are motivated by money, and rake in as much as they can while spending as little time as possible on each of their cases. But - my experience has been that the attorneys who do the most, and who care the most, are those that focus on criminal law. The bottom line is, there is more money to be made elsewhere, and, if you are exclusively a criminal defense attorney or if you are a prosecutor, you are probably not doing it just for the money.

I applaud Western Justice's motivation for doing what he does, and in a perfect world all prosecutors and defense lawyers would be drawn to their profession by the same basic motivation - to help people, whether they are victims of crime or victims of the government.

The Bronx DA, who yesterday did not realize he had issued a subpoena and did not know what was in it, now reveals that it was regarding a death threat investigation. Someone was sending threatening letters to the Bronx board of elections deputy chief Dawn Sandow, in at least one letter they mentioned blogging, and so the Bronx DA sent a subpoena to Room 8 to compel the identities of anonymous bloggers who were critical of the politicians, even though no death threats had been posted on the blog.

They may or may not have been justified in seeking the information - if not then the remedy is to move to quash the subpoena which I believe is what was done with the assistance of pro bono attorneys. The abuse of power that happened was not the issuance of the subpoena, but the language that essentially threatened prosecution if the recipients mentioned the subpoena to anyone. From what I understand, the DA does not have authority to make that threat, unless there is a judicial gag order in place.

Imagine if you would what would happen if I or any other defense attorney issued a subpoena and included language that ordered the recipient not to disclose the existence of the subpoena, if a defense attorney were to issue subpoenas during a pre-indictment investigation, or if a defense attorney were to mail non-domesticated subpoenas anywhere in the country and threaten to send local police across state lines to arrest the witness?

District court judges in Kentucky are speaking out publicly against the state's public defenders' decision to stop taking certain types of cases, following sweeping budget cuts by the Kentucky legislature. Judges are ordering the public defenders to continue accepting cases, despite the lack of funding.

Fayette District Judge Joe Bouvier ordered public defenders to continue representing the mentally ill in civil commitment proceedings. Kenton County District Judge Ann Ruttle declares that the public defenders should represent co-defendants at preliminary hearings, and forced a defendant to proceed without representation.

Ruttle said preliminary hearings occur too early in the process for lawyers to even know if there is a conflict of interest.

”They act like there is (a conflict of interest), but they have no clue at that stage,“ Ruttle said of public defenders.

"Unconscionable'

Maybe Kentucky judges should be focusing their efforts on the legislature and not the public defenders. Or consider the ethics rules that govern all lawyers, including public defenders, which require that every client receive competent representation, which is impossible to do once your caseload reaches a certain point. It seems to me that in the face of a state refusing to fully fund the constitutional mandate of Gideon v. Wainwright, judges should be ordering counties to pay for representation or they should be dismissing cases.

The Kentucky Department of Public Advocacy has filed a lawsuit to force the General Assembly or the State Finance Cabinet to adequately fund indigent defense, alleging that the current level of funding is unconstitutional.

The New York Times reported today on a grand jury subpoena issued by the Bronx DA's office, seeking to compel information about anonymous bloggers on a political blog called Room 8.

The subpoena carried a warning in capital letters that disclosing its very existence “could impede the investigation being conducted and thereby interfere with law enforcement” — implying that if the bloggers blabbed, they could be prosecuted.

Imposing the equivalent of a judicial gag order and threatening prosecution if the subpoena is disclosed is not within the authority of the DA, and, without a judicial order, was a clear abuse of power. The DA's office said that "it was not uncommon for subpoenas to include nondisclosure language in order to protect an investigation," but then stated that the DA was not aware that a subpoena had been issued nor was he aware of the content of the subpoena.

Simple Justice suggests that it may be no coincidence that this tactic was used on bloggers, few of whom could afford to pay for lawyers to fight the DA's office on issues like this. Room 8 was lucky in that competent local counsel came to their assistance pro bono.

Abuse of subpoenas by prosecutors or law enforcement is not isolated to New York. In South Carolina, subpoena's are often issued by law enforcement, when there is no active court case, captioned, "State v. ongoing investigation," which is also an abuse of the subpoena power. If there is no court case, law enforcement has to obtain a search warrant signed by a judge and based upon probable cause before they can compel the production of records. A subpoena on the other hand does not require a finding of probable cause by a judge, and is obtained in a criminal case simply by asking the clerk of court to sign at the bottom.

We have a Fifteenth Circuit Assistant Solicitor who repeatedly mails subpoenas to out of state witnesses, commanding them to appear in court in Horry County, S.C. After explaining to him off the record why he cannot do that (the subpoena must be domesticated by a judge in the witness' home state), and why it is also inappropriate to threaten to send S.C. law enforcement to arrest the witness in another state where they do not have jurisdiction, he acknowledges that is inappropriate and he misunderstood the law. Yet, today, more than a month later, another witness in another trial calls and then faxes to my office a non-domesticated Horry County subpoena that was mailed to her in Maryland, commanding her to appear, by the same Asst. Sol. I'm sure, like the Bronx DA, he did not realize a subpoena was issued. Or what its contents were.

Prosecutors do not have to go outside of the law to win cases. If they do, the case should not have been won in the first place.

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.

The Palladium case illustrates how wrongful convictions can and do happen. In this video from Dateline NBC, one of the investigators that helped to uncover evidence leading to the exonerations of Olmedo Hidalgo and David Lemus speaks out about the investigation. He notes that if the defense had been given all of the information that they had at the time of the trial, the outcome would have been different. The district attorney ignored evidence, and the defense did not put on any witnesses during their case.

On the video, the forelady of the jury that convicted them speaks about the trial and the verdict, and how when they read the verdict she heard a woman seated behind the defense table "scream in such torment and agony and surprise that I thought, oh my god, somebody actually thinks they're innocent. And then I thought, that has to be somebody's mother; it sounded like a woman who had just been told her son had died."

One defendant's mother talks about how she thought her son should cop a plea, because if he was found guilty by a jury, he would get life in prison, but if he copped a plea, the most he would do was eight years.

Particularly in murder cases, there is a lot of pressure on law enforcement to solve the case, and make an arrest. When they make an arrest, sometimes it is the "most likely suspect," and may be based only on statements from other defendants looking for plea deals. Once an arrest is made, there is a lot of pressure on the prosecutor to get a conviction. The danger is when a prosecutor stands in front of a jury and says to them, this man is guilty, many people want to believe the prosecutor despite the shaky evidence. Here is a person who looks honest and straightforward, he or she is a representative of the government (we all trust the government, don't we?), and this prosecutor would not be telling us to convict this man unless it is true that this man is guilty.

The jury is afraid that if they find reasonable doubt and find an accused murderer not guilty, the defendant may go out and kill another person. The jury may not understand fully what the standard of reasonable doubt means and how central it is to our justice system, and the defense may or may not explain it fully to them. If the Defendant does not testify, the jury will hold it against him, no matter how many times the judge instructs them not to. If the defense does not put on any witnesses at all, it seems damning to the jury.

The jury will not know if there is evidence that the defense could have presented to them, if the prosecutor never turns it over to the defense. Some prosecutors have their own opinion of what constitutes Brady material, and either have not read Brady and Kyles v. Whitley or do not care. Many prosecutors do not understand or do not care that they have a duty under Kyles v. Whitley to seek out Brady material that is in the possession of any government agency, and instead they say to the defense and to the Court, "you have everything that is in my file." There are times when the investigator buries Brady material without the prosecutor's knowledge, and there are times when Brady material simply falls through the cracks due to negligence or shoddy investigations.

I believe that the prosecutor has a duty to not go forward with a case not only if he firmly believes in the defendant's innocence, but if the prosecutor knows that there is real doubt as to the defendant's guilt. Prosecutors know the real danger that a jury will blindly trust a prosecutor despite the existence of reasonable doubt, and in some cases, simply stating to the jury "he is guilty," can result in a miscarriage of justice.

The time to prevent wrongful convictions is before the jury returns their verdict. We rely on ethical prosecutors to prevent wrongful convictions, and when that fails we rely on conscientious judges to prevent wrongful convictions, but there are times when the only thing standing between a defendant and a terrible injustice is the jury, and the defense attorney's ability to present his client's case to the jury.

After two men were convicted by a jury of a 1990 murder at the Palladium nightclub in New York, new evidence continued to turn up that demonstrated that the men were innocent, including one of the actual shooters coming forward. Prosecutor Daniel Bibb was assigned to re-investigate the case, and over the course of 2 years Bibb, along with investigators, interviewed witnesses and uncovered more evidence of the two mens' innocence.

Bibb told his supervisors that he believed the men were innocent and that the convictions should be dropped, and yet he was ordered to defend the case anyway at a 2005 hearing. Bibb lost the 2005 hearing and in 2006 he left the prosecutor's office. This year he admitted that he threw the hearing on purpose, and that he assisted the defense attorneys in the case.

Bibb tracked down hard to find witnesses for the defense, helped prepare their testimony, and helped the defense with their strategy. “I did the best I could,” he said. “To lose.”

This revelation is an exercise in legal ethics - was Bibb right or wrong and what should he have done? Some say he violated a duty to his client (the state of New York?) by not vigorously presenting his case. But, does the government have an interest in obtaining or preserving wrongful convictions? It sounds like he disobeyed the orders of his superiors at the district attorney's office, but he honored his duty to his client, the state of New York, by not allowing the District Attorney to keep innocent men in jail. My only question is should he have done more. Should he have gone public with the information, and resigned in 2005 if the District Attorney did not take the initiative to throw out the convictions?

It is easy to play armchair quarterback. I don't believe Bibb committed any ethical violation, and what he did do was commendable. Prosecutors have a duty to seek justice, not convictions. Sometimes that means dismissing a case where there is insufficient evidence, and sometimes it means admitting that they were wrong.

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.

The United States Supreme Court's decision in Boumediene v. Bush has sparked a good bit of new debate on the tension between civil liberties and National Security. Yesterday's Chicago Tribune article about how Chicago defense attorney Thomas Anthony Durkin volunteered to represent Ramzi Binalshibh was timely.

Military prosecutors seek the death penalty against Binalshibh, who is one of only five "high value prisoners" being held at Guantanamo Bay, Cuba. Prosecutors say Binalshibh helped to plan the 9/11 attacks. Binalshibh has said that he wanted to be a part of the 9/11 attacks but was not able to make it, and he says that he has "been seeking martyrdom for five years."

One of the most common questions criminal defense lawyers get is "how can you defend those people," or "how can you defend someone if you know they are guilty?" There are many answers to this question. Those people are usually just people, like you or me or Joe next door. They are people like members of our family or friends we remember from high school.

There are few cases where I know that my client is guilty. There are also cases where I know that my client is not guilty. Why I defend those people should be fairly obvious.

There are many more clients who I am not sure whether they are guilty or not. And if I, the person closest to the case, have doubts as to their guilt, then I have an absolute duty to convey that doubt to the prosecutor and to a jury if necessary. When we convict persons despite having doubts as to their guilt, our justice system has failed. We have chosen as a nation to not convict persons when there is doubt as to their guilt, to protect against the wrongful conviction of innocent persons.

I have found that guilty and not guilty is not that clear cut at times. There are shades of guilty. There are people who technically have committed a crime but there was good reason for it (if you walk in on your wife naked in bed with another man and you slap her in the face, you are now technically guilty of CDV). There are people who have committed a crime under the law but the punishment does not fit the crime they have been charged with (mandatory minimum sentences for 1st offense drug crimes). A conviction in some cases would work an injustice even if the person is guilty. There are some laws and penalties on the books that a large part of our society believes should not be enforced.

But then there are some clients who not only seem to be guilty beyond any doubt, but appear to have committed the most heinous of crimes. Child molestation, unprovoked murders, mass murder in the case of the 9/11 attacks. Why do we represent these people? The most common answer I give to people is because if we give the worst of the worst, the most despicable client, the best defense possible then I know that certainly when you or I are on trial for a crime that we may not have committed, we will also get the best defense possible.

As Durkin said to the Chicago Tribune, "Binalshibh must be defended because doing so is in keeping with the highest ideals of American law." "Anybody can give law to his friends -- it's the essence of law to give it to our enemies," Durkin says, quoting Supreme Court justice Felix Frankfurter.

Some more bloggers have come out in defense of Kozinski after yesterday's bashing.

Lessig.org describes the "smear campaign" by attorney Cyrus Sanai that led to the discovery and release of the pictures from Judge Kozinski's private website, and why it is outrageous that legal materials kept on a server that Kozinski believed was private is now the subject of massive public attention. Lessig laments

the total inability of the media -- including we, the media, bloggers -- to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel - and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.

Eugene Volokh, who once clerked for Judge Kozinski, agrees with Lessig that

no-one should be put in the position of "hav[ing] to defend publicly private choices and taste" in a situation like this. We should all leave Kozinski to his own privately expressed sense of humor, as we'd like the world to leave us to ours.

Earlier today, the L.A. Times reported that Judge Alex Kozinski has suspended a federal obscenity trial in California after it was found that his website contained numerous sexual images. Kozinski is the Chief Judge for the Ninth Circuit Court of Appeals, but he was assigned to preside over a federal case where a jury will determine if a Hollywood adult filmmaker has violated the obscenity laws. The prosecutor requested that the trial be suspended while they determine if Judge Kozinski has a conflict of interest.

The website was not supposed to be accessible to the public, and required that a person type in the name of a subdirectory and a password to view its contents. Judge Kozinski stated that his son had uploaded much of the material, but that the website was used by his entire family to store images. Kozinski has requested that a court ethics panel investigate him to determine whether there was any wrongdoing, and says that he will cooperate fully with the investigation.

Throughout the day there has been fallout from the story, and much of the coverage has taken a "gotcha" approach, some outright attacking Judge Kozinski. Douglas Berman at Sentencing Law blog isn't sure what to make of it. Concurring Opinions, in a post titled "judges gone wild," takes a more aggressive tact toward the Judge, implying that Kozinski is in fact a pervert, and points out that this "sounds like a deliberate and conscious aggregation of misogynist images."

Judge Kozinski provided the following statement to the lawblog Above the law:

David: I can't comment on the trial.

As for the other matter, the server was maintained by my son, Yale, for the entire family. Pictures, documents, music, audio and other items of personal and family interest are stored there so various family members can reach them from wherever they happen to be. Everyone in the family stores stuff there, and I had no idea what some of the stuff is or was -- I was surprised that it was there. I assumed I must have put it there by accident, but when the story broke, Yale called and said he's pretty sure he uploaded a bunch of it. I had no idea, but that sounds right, because I sure don't remember putting some of that stuff there.

I consider the server a private storage device, not meant for public access. I'd have been more careful about its contents if I had known that others could access it.

After actually seeing the photos that this is all about, I think it has been blown far out of proportion. I feel for Judge Kozinski and all of the negative press he is getting from this, because it is unwarranted. Many of the pictures that were supposedly on Kozinski's website are pictures that I have seen before, forwarded in emails or on humor websites. I don't believe for one minute that this is Judge Kozinski's "porn collection" or that any laws were broken by Judge Kozinski.

Some of the photos can be found here at Patterico's Pontifications (thanks to Gideon at apublicdefender.com for finding this). Gideon points out that the "tipster" that hacked Judge Kozinski's website and found the pictures is a lawyer named Cyrus Sanai who has had an ongoing public dispute with Judge Kozinski.

The ABAJournal reports that the 6th U.S. Circuit Court of Appeals has denied Frank Lawrence Jr.'s civil rights and First Amendment claim based on Michigan's refusal to grant him a law license. Apparently Lawrence told the Michigan Bar's committee on character and fitness that he had little respect for the state court system, and Lawrence had a website, StateBarWatch, that was critical of Michigan's State Bar. Lawrence was critical of the fact that a majority of the Michigan Supreme Court's justices are hostile to civil rights plaintiffs.

We should welcome attorneys who are critical of the system, otherwise how can we expect to improve the justice system. We should be critical of our government when it warrants criticism, and we should be tolerant of others' criticism whether we agree with it or not.

Lawrence, who stated that he did not regret answering truthfully when the committee asked him about his political beliefs, also said that the federal courts are the guardians of the Constitution. I disagree with this statement - the federal courts should be the guardians of the Constitution, but they neglect that duty far too often. Raise your hand if you think my law license should be yanked for saying so.

I don't know if disbarred is the correct term, but the licenses of Chinese attorneys were suspended after they volunteered to defend Tibetans charged following the anti-China protests in March. In April, 30 Tibetans, represented by Chinese government appointed lawyers, were given sentences ranging from 3 years to life in prison. 18 Chinese lawyers then signed a public letter offering free legal services to the Tibetans.

Loss of your license to practice law is a high price to pay, but it is inspiring to see Chinese lawyers fighting for change in an authoritarian government like China's. Lawyers worldwide have a huge responsibility to see that justice is done, to speak up and to take action when they see injustice.

Lawyers disbarred by an authoritarian government for the way they practice law - I'm glad that could never happen here in the U.S.A.

From John Wesley Hall's lawofcriminaldefense.com: Proposed amendments to the Code of Professional Conduct in California would bar flat rate fees and permit prosecutors to directly contact defendants who have counsel. Prosecutors would be permitted to settle civil claims in connection with criminal cases.

The reasons why these rules could not work should be fairly obvious:

Flat rate fees are necessary in criminal cases if we care to get paid for the work we do.

Prosecutors would love to communicate directly with our clients - a large part of my job is keeping the prosecutor and investigators away from my client so that my client does not hurt himself or herself, and so the prosecutor who is a trained legal advocate does not have an unfair advantage over my client who is not trained in the law.

We have an ethics rule that states an attorney cannot use the threat of criminal prosecution to gain an advantage in a civil matter. Prosecutors come close to running afoul of this rule quite often - the proposed California rule sounds like it would give them license to threaten prosecution to give "victims" the advantage in what should be a civil, not criminal, case. This comes up most often in breach of trust (South Carolina's version of embezzlement) cases, or "stop payment on check" cases.

California is worlds away from South Carolina, but if something like this is allowed to fly anywhere in the country it is only a matter of time before they try it here as well. Hall reports that NACDL is drafting a response to the proposals.

Tracey Amick reports that

On Friday, Sheriff Ray Nash and Prosecutor Barry Barnette called a press conference to "set the record straight"- claiming the glitch on the tape that dismissed the whole case didn't exist . . . There was no gap no glitch it should've gone to a jury, Barnette said.

What is this if not a public slap to the judge? They are going to appeal the decision to the circuit court, and if the issue was decided wrongly it will be corrected by the higher courts.

Rule 3.6 prohibits extrajudicial statements by attorneys involved in the proceeding that could prejudice the proceedings, but there is an exception that allows statements in response to statements made by others, "where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client."

Does this exception permit the parties to respond publicly to a ruling by a judge during the proceedings? The judge said part of the video was missing and this was the basis of the ruling. Does this entitle the prosecutors to call a press conference and "set the record straight," and challenge the judge through the media? If the ruling was wrong it will be corrected by the circuit court, so what do they gain by these media statements other than prejudicing the potential jury pool?

Any attorney practicing criminal defense law in the Federal Courts should be concerned with what is happening in the Eastern District of Tennessee. Earlier this month, I wrote about how Herb Moncier had been suspended from federal practice. I reviewed Chief U.S. District Judge Curtis L. Collier's order and it is difficult to see where the specific conduct complained of by the Chief Judge warranted the punishment imposed or the blistering language of this and subsequent orders.

It seems that Moncier is being punished for aggressively representing his clients. The fact that the move to disbar him from federal practice was initially attempted to be kept secret is even more disturbing.

Moncier's attorney Ralph Harwell filed a motion requesting a stay of the Chief Judge's order and requesting that Moncier be permitted to remain as counsel for the completion of a client's case which was set for trial on May 20 of this year. In Chief Judge Collier's ruling he again blistered Moncier, accused him of further misconduct, accused him of lying, and called Moncier a "danger to the public."

However, an article by Jamie Satterfield in the Knoxville News Sentinel points out that Chief Judge Collier misrepresents Moncier's conduct in his ruling:

Collier accused Moncier in the ruling of misconduct in filing a motion in a high-profile case in Kentucky asking a federal judge to step down from that case. Collier wrote that he "has been informed" by the Kentucky court that Moncier's motion was "an unethical attack on the court in a frivolous effort to disqualify that judge from presiding over the case."

Collier then cites as proof a small section of Kentucky U.S. District Judge William O. Bertelsman's ruling in which Bertelsman refused to step down from the case. That section does allege "serious ethical violations" committed by "attorneys" in the case.

A review of the entire ruling and all documents filed in the Kentucky case shows, however, that Bertelsman's chief complaint lay with an attorney representing an alleged co-conspirator of Moncier's client. A review of the entire case file shows that Moncier did not file the original request to have Bertelsman booted off the case. Instead, co-counsel O. Hale Almand Jr., a Kentucky lawyer, did so months ago.

An attorney for an alleged co-conspirator renewed the motion earlier this year with fresh allegations against Bertelsman that the judge since has deemed "outright misrepresentations." Almand, not Moncier, filed a motion asking to join in those new claims.

Moncier notified Bertelsman of Collier's suspension order the same day it was filed. He stepped down from that Kentucky case after a hearing before Bertelsman the next day.

Moncier's attorney Ralph Harwell has filed three additional motions this week, asking for clarification of Chief Judge Collier's prior orders, asking for additional findings regarding an attorney referenced in Collier's Order, and asking for additional findings regarding Collier's ruling as to Moncier's motion to disqualify Collier from the proceedings.

The pleadings in Moncier's proceedings can be found at his website, Moncierlaw.com, or can be downloaded from Pacer:

United States v. Michael Vassar, EDTN 2:06-cr-70
United States v. Michael Vassar, EDTN 2:06-cr-75
United States v. Herbert S. Moncier, EDTN 2:07-cr-40
United States v. Herbert S. Moncier, 6th Circuit 07-6053
United States v. Lee Almany, EDTN 1:08-cr-01
United States v. Lee Almany, 6th Circuit 08-5110
In re Herbert S. Moncier, EDTN 1:08-mc-09

The following is Herb Moncier's account of events:

I have tried a number of high profile federal cases over my 38 years of practice and have upset a lot of prosecutors and judges. I have been a president and long time board member of the Tennessee Association of Criminal Defense Attorneys; a member of NACDL since 1980; A-V Martin Dale Hubble since 1981; Best Lawyers in America; 101 best lawyers in Tennessee; and Southeastern Super Lawyers.

On November 17, 2006 I was at a contentious sentencing hearing in a high profile case where my client was facing three jury trials was acquitted in the first; the second was dismissed and he was convicted at the third of the least possible offense - an offense that he admitted. The sentencing hearing was a war. see United States v. Michael Vassar. I had a recorded statement from the informant in support of reasons not to sentence my client for acquitted conduct. The informant said the prosecutors and FBI agents visited him in jail shortly before my client's trial and threatened him that if he did not testify to matters he said were untrue against my client that they would pull a 10-15 recommended sentence he had been promised. He refused and the day after my clients trial the prosecutors pulled his recommendation and recommended a 27 year sentence that he received. I had filed a transcript of the statement four days before my clients sentencing and subpoenaed the informant to testify at the sentencing hearing on November 17th.

The day before the sentencing hearing the prosecutor wrote me a letter that the same jail house informant allegedly in 2005 made a statement that my client set for sentencing, Vassar, knew information about another client I represented who was a target but had not been charged. At a hearing in March 2006, conducted by the judge my client Vassar had testified under oath that he knew nothing about any other client I represented including the target. The prosecutors did not mention the alleged 2005 statement of the informant to me or the judge in March 2006.

On November 17th I attempted to have the judge appoint an independent attorney to clear up the potential of a conflict raised by the prosecutor the day before the November 17th hearing. All of my efforts to clear up the potential of a conflict failed. Just before the lunch recess after which the sentencing hearing was to begin the judge called me and my client to the podium in the presence of the prosecutors and FBI and began to question my client. I objected. The judge overruled.

The questions turned to what I perceived to be an attempt by the judge to clean up the record by getting Vassar to make an unadvised waiver. I again objected. The judge instructed me to stand there and be quiet until my client answered his questions. I requested to approach the bench to explain why I was objecting, out of the presence of the public. The judge refused to permit me to approach the bench.

I then again objected from the podium and the judge said "Mr. Moncier one more word and you're going to jail."

My client had been, and was continuing to attempt to speak to me. I asked the judge "May I speak to my client". I was arrested and taken into custody. I was then charged with criminal contempt of court; tried before the same judge without a jury; convicted and sentenced to 1 year probation, a fine of $5,000.00, 150 hours community service, an anger management course and three extra hours CLE. see United States v. Herbert S. Moncier.

That conviction is on appeal to the Sixth Circuit. see United States v. Herbert S. Moncier.

Later in December 2007 I was hired by another high profile defendant to try his case before the same judge. The day I entered my name the prosecutors who had prosecuted me for contempt filed a motion to disqualify me. My client filed a 28 U.S.C. § 144 affidavit to disqualify the judge. On January 3rd the judge disqualified himself. On the same day the Chief Judge of the District assigned the case to himself 200 miles away in Chattanooga Tennessee and set a hearing on the prosecutor's motion four days later.

A hearing was held on January 9th; I filed all the necessary declarations; and my client answered approximately 30 minutes of questions correctly. The judge then disqualified me without findings and ordered me out of the well of the courtroom and not to speak to my client, his family or friends and appointed my client a local attorney. Later, after disqualifying me
the judge sua sponte transferred the case back to the judge that originally disqualified himself. see United States v. Glen Almany.

Seven days later on January 17th I received a Show Cause Order from the Chief Judge why I should not be disbarred for my conduct at the November 17, 2006 hearing where I was found in contempt. see In Re Herbert S. Moncier.

That case become a high profile proceeding resulting in recent orders blistering me and my immediate suspension from federal court for five years. The pleadings in that case can be viewed at www.moncierlaw.com.

I did not, and do not, yell, curse, use disrespectful tone, slam books or storm out of courtrooms. I was held in contempt of court for asking to speak to my client. I have been disbarred because of the style that I defend my clients.

Prosecutors in South Carolina are rarely held accountable for misconduct - they are not held civilly liable or criminally responsible, and in the rare instance when they are disciplined it will most likely consist of a private reprimand.

Here is a story about a prosecutor in California, Ben Field, who is being investigated for his misconduct, but only after a series of ethics violations came to light. Following the conviction of Damon Auguste and Kamani Kendricks for rape, Auguste's family retained attorneys and investigators to continue searching for evidence. They found evidence casting doubt on the government's witness' credibility and laboratory notes indicating the girl may not have been raped that were not turned over by the prosecutor. During the post trial proceedings, the prosecutor ordered searches of the homes of Auguste's family and friends.

In a 2002 murder case Field is accused of not informing the defense that a key prosecution witness may have taken part in the crime. In a 1995 rape case, Field is accused of obtaining a physical examination of a juvenile despite four different judges having told him not to do so without court approval.

I imagine that this prosecutor's alleged misconduct in these instances only came to light due to the efforts of Auguste' family. If this family had not pressed the issue we would not be reading about this today. When a prosecutor hides evidence, it is, well, hidden. It takes perseverance and luck to uncover favorable evidence that was not turned over before trial, and in most cases no-one will ever know what the prosecutor has done.

According to the Mercury News, the head of the prosecutors union said that this disciplinary proceeding shows the danger of the "unchecked power" of the state bar. This "unchecked power" in a state where, according to the Mercury News, only 1 prosecutor has been brought before the Court in the previous five years.

Ed Lavendera at CNN tells the story of James Woodard, who was wrongfully convicted in Dallas, Texas, and served 27 years in prison before DNA cleared him of the crime.

Woodard was convicted of raping and murdering his girlfriend in 1981 and sentenced to life in prison. At his trial, the jury believed that he was the last person seen with the victim. The prosecutors knew that two other men had been seen with her, but they never followed up on the lead and they never told the defense attorneys. After losing 27 years of his life, Woodard is finally freed after DNA evidence was tested, exonerating him.

Prosecutors enjoy absolute immunity from 1983 liability for their actions during the course of a prosecution, and they are rarely prosecuted. Dallas County District Attorney Craig Watkins says that unethical prosecutors who commit Brady violations should be criminally liable:

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

Although it will never happen, I believe a prosecutor should be held criminally liable for intentional conduct such as a Brady violation that could result in an innocent person going to prison. I also believe that the rule of absolute immunity as applied to intentional conduct should be reconsidered. In Imbler v. Pachtman, the U.S. Supreme Court held that the prosecutor was not civilly liable under Section 1983 for violating a defendant's constitutional rights during a prosecution. In Pachtman, the prosecutor knowingly used false testimony and suppressed evidence to obtain a conviction and a sentence of death.

Craig Watkins is suggesting criminal liability for intentional Brady violations, and I agree, but there are other crimes that are being committed by these prosecutors as well. The prosecutor in Pachtman committed subornation of perjury and attempted murder with impunity.

The argument against liability for even intentional acts is that it would have a chilling effect on prosecutions. Attorneys wouldn't even want to work as prosecutors, for fear of liability. I don't believe that for a minute. That is like saying making rape a crime will have a chilling effect on sex. People won't want to have sex anymore. It is only intentional bad conduct that we are talking about here.

If you disagree with the judge, you lose. Not just the argument, but your freedom, your ability to practice law, and your livelihood?

Apparently the AUSA and U.S. District Judge Ronnie Greer, in November 2006, felt that federal defense attorney Herbert S. Moncier had a conflict of interest in representation of multiple clients. The accusation was that Moncier represented an accused but uncharged cocaine trafficker and also represented persons who the AUSA wanted to provide information on client 1. The judge was questioning Moncier's client 2 about the conflict of interest.

Moncier objected, asking Greer to allow an independent attorney to advise the client before answering any of the judge's questions. Greer told Moncier to keep quiet. Moncier then asked to speak to his client. Greer ordered him detained and ultimately deemed Moncier in contempt of court.

Now, based on the November 2006 incident, Chief U.S. District Judge Curtis L. Collier has suspended Moncier from practicing federal law in the Eastern District of Tennessee, which ultimately could have the effect of shutting down Moncier's legal practice. Moncier is quoted in the article as saying:

I believe that it is an attorney's duty to object in court and if there is any uncertainty as to a court's directive to ask the court for clarification," Moncier said. "I made that decision to ask for clarity within a split second. Judge Collier has taken 70 pages to take from me the right to practice in federal court for making that split-second decision.

There are competing interests, of course. There is no doubt that a judge must maintain order and professionalism in the courtroom. In my mind there is also no doubt that every attorney must aggressively pursue his clients interests and sometimes that means challenging the bench. The Court's ruling must be accepted once final, but objections must be made, and the record has to be preserved. The right of a defendant to seek counsel from his attorney, even while standing before the judge, I thought was inviolate.

The opinion can be found here.

According to statesman.com, Adam Reposa, a defense lawyer in Austin, was held in contempt of court last week and sentenced to 90 days for making a "lewd gesture." Apparently, after a four-hour hearing discussing plea negotiations in a DWI case, he rolled his eyes and made like he was masturbating. Reposa said it was directed at the prosecutor, but Judge Jan Breland said that she felt it was directed at her.

Texas criminal defense lawyer Mark Bennett had an interesting take on this story yesterday, pointing out that Judge Paul Davis' (it was Judge Davis who sentenced Reposa) stated concern that Reposa's actions "tarnished the dignity of the judicial process" is a joke when you look at the bigger picture:

Adam’s client was pulled over by the police, asked to do tricks for the cops, handcuffed, searched, transported to the police station, and asked to blow into a tube . . .

Then Adam’s client was booked into jail. He was fingerprinted, photographed, ordered to strip, and searched. His body cavities were searched as well. His clothes and shoes were taken away, and he was given oversized orange pajamas and rubber flipflops to wear . . .

For several months he lived in a cage with 20 other men, sharing a stainless steel toilet and sleeping on a bunk, eating and showering only when someone else told him he could . . .

On court days Adam’s client was awakened at four in the morning, shackled and cuffed, chained together with a bunch of other guys, and transported from the jail to the courthouse to wait in a small cell for news on his case . . .

On the day of Adam’s alleged contempt, the client was taken before Judge Breland dressed in his orange pajamas and flipflops. For what reason? Apparently (by Adam’s account) the judge and the prosecutor were trying to get the client to plead guilty. Adam tried to counsel his client (there is no downside to a DWI jury trial when you already have six months’ jail credit). The judge told Adam to be quiet, and told the prosecutor to read the offer to the client. Adam continued to counsel his client and the prosecutor complained to the judge that Adam was whispering to his client . . .

I’m all in favor of instilling dignity into the process; that would, first, require treating the participants with dignity. I’m not holding my breath.

Continue reading "Adam Reposa's day in court" »