South Carolina Criminal Defense Blog

South Carolina's Rule 404(b)

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

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

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

State v. Wallace

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

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

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

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

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

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

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

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

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

State v. Gaines

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

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

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

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

The future of prior bad acts and Wallace

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

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

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

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

A lawsuit has been filed in federal court against state trooper Lance Cpl. Alexander Richardson, alleging that the trooper chased a man through an apartment complex, hitting him three times with his patrol car.

Calvin Rucker, 25, said in the suit filed last month in U.S. District Court in Columbia that he was hit by the trooper’s car three times while running through the complex on April 28, 2007.

A dashboard video obtained earlier this year by The State shows Rucker being hit at least once at Columbia Garden Apartments on Plowden Road off South Beltline Boulevard.

The video also shows Lance Cpl. Alexander Richardson driving his patrol car over sidewalks and curbs in the apartment complex. A man and his young son are seen on the video running out of the way of Richardson’s oncoming cruiser.

No charges have been brought against Richardson, and the U.S. Attorney's only comment is that the case is "still open." Last week, another trooper was acquitted in federal court of accusations that he purposefully ran down a man in his patrol car, despite a video showing him swerve to hit the man and despite his statement on the video that he hit the man on purpose; maybe the only way to effect some change in these cases is to file lawsuits such as this one.

According to the State newspaper, Richardson had already been disciplined twice before this incident, once for hitting a suspect in the face. Following this incident, Richardson was reprimanded and required to take a stress management class, but he is still employed with the South Carolina Highway Patrol in the same unit in Columbia.

The State news also has Richardson's account of what happened:

In his internal affairs statement obtained by The State, Richardson said he was on his way home about 7 p.m. when Rucker’s burgundy Chevrolet Caprice sped through a red light at Shop Road and South Beltline Boulevard, nearly hitting him.

At the time, Rucker was being chased by another trooper in an unmarked car. Richardson said he took over the chase and pursued Rucker to the Plowden Road apartment complex nearby, where Rucker abandoned his car and fled on foot.

Richardson said he initially tried to use his patrol car and one of the apartment buildings as “wedge to keep him from escaping,” but that didn’t work.

While chasing him through the complex, Richardson said, he tried to get out of his car to chase him on foot but couldn’t because the electronic control panel for the windows and locks was loose and in the way of the door handle.

He said that while he was briefly looking at his door, he “accidentally bumped the violator with the push bumper on the front of my patrol vehicle.” The suspect continued running but quickly gave up and was arrested without incident.

“At no time did I intentionally try to bump the fleeing violator or use my patrol vehicle to forcibly stop him,” Richardson said in his statement.

Richardson said he applied his brakes “hard” just before the collision, though an internal affairs investigator’s review of the tape found no screen indication that the trooper had braked just before the collision.

Richardson in his statement said he didn’t realize until after the chase that two young children were in Rucker’s car, which had dark-tinted windows.

“In a split second, I decided to pursue the violator in and around the apartment buildings,” he said. “Looking back on it after the fact I wish I would not have pursued the violator through the apartment buildings. I am very relieved that no one got hurt.”

Nothing can justify what this man did, driving his patrol car through an apartment complex as people scatter, and striking a fleeing man with his car. It is only sheer luck that no-one was killed as a result of the trooper's actions.

Trooper Steve Garren was found not guilty of intentionally running down a fleeing suspect in a Greenville federal court today, despite the dashcam video showing him swerve to hit the man and despite Garren stating on the video that he hit the man on purpose.

On Wednesday during testimony, suspended Garren said, "There was absolutely no way I could have avoided hitting Mr. Grant … I'm just glad he wasn't hurt. I can assure you if he had been injured, the comment would not have been made."

The comment Garren was referring to was recorded on the dash cam video from June 24, 2007, that shows Grant flipping over the hood of Garren's car.

On Tuesday, jurors heard the recording from Garren's cruiser saying:

Garren: "Hey, I nailed the ---- out of him. I nailed the ---- out of him when he hit that ---- field. He went flying up in the air."

Deputy: "You hit him?"

Garren: "Yeah, I hit him. I was trying to hit him."

Garren testified Wednesday that the statement was made in the "heat of the moment." He said, "I didn't even know I made the statement."

I am glad that the US Attorney brought the charges, and that the federal courts are doing their part to bring attention to police abuse in South Carolina, after local prosecutors refused to bring charges under state law.

Congratulations to Garren's defense attorneys, John O’Leary and Wally Fassoux, for an excellent job defending an unpopular client.

Officials in Columbia, S.C. are planning to install surveillance cameras county-wide in "high crime areas."

The goal is to place surveillance cameras in dangerous areas so criminals don't have anywhere to hide.

At a news conference Tuesday, officials said similar programs have worked in other areas and it can work in Richland County, too.

"The best neighbor is a nosey neighbor. This system becomes an additional nosey neighbor," Sam Davis with the Columbia City Council said.

Now, where do you suppose the "high crime areas" are? This would mean downtown? Predominantly low income or black neighborhoods?

I have a hard time understanding why every citizen would not be up in arms over the mention of the police placing surveillance cameras in public areas. The day will soon come when every moment of every day we are being watched by the government. A simple google search reveals the following:

Hillsborough County, Florida, Sheriff's Office installs cameras in high crime areas.
Police in Lafayette, Louisiana, force business owners to install cameras.
Police in San Francisco install cameras in high crime areas.
Baltimore police install cameras in high crime areas.
Utica, N.Y. jumps on the band wagon, along with
Washington, D.C., New York city, Dallas, San Diego, Austin, Boston, Louisville KY, and the list goes on.

Mass-surveillance advocates ask, if you are walking down the street in a public place, do you really have an expectation of privacy? And the answer, of course, is no. Not legally and not practically, but they are asking the wrong question. Do we want to live in a world where the only time we are not being watched by our government is when we are in our own home, and possibly not even then?

Another aspect of this is where the cameras are being placed now - in "high crime areas." Meaning, cameras are not being placed in the neighborhood of the persons in power. They are being placed in primarily ethnic neighborhoods, where people have less of a voice or power to prevent it, but it will not stop here and it will spread.

We need only look to London, England, which now has about 4.2 million cameras on its streets, which have cost billions of pounds and yet have not had any significant impact on crime, as an example of where this will take us.

The civil rights trial of trooper Steve Garren is set to begin this week. He is charged with violating the civil rights of a man he struck with his patrol car, a federal crime that carries up to 10 years, because local prosecutors refused to bring charges against him for assault and battery with intent to kill (attempted murder).

According to the Greenville News, a second trooper who is accused of repeatedly kicking a truck driver in the head after a highway chase is expected to go to trial as well, although they do not say when or where.

Garren’s attorney predicted last week his client will be vindicated because of the video that shows the chase on a narrow, dark back road in Greenwood County in June 2007 after Grant bailed out of a car. Lawyer John O’Leary said Garren didn’t have time to get out of the way as Grant cut in front of the cruiser. He also noted no state charges were ever brought.

“There’s no way he could have intended to hit the guy based on that time frame,” O’Leary said. “The truth of the matter is this crime requires that it be willful. And, you know, we just believe it wasn’t. It was an accident.”

I don't know. Looks like the trooper actually swerves to hit the man. What do you think:

But state Rep. Leon Howard, the chairman of the Legislative Black Caucus, which helped bring the videos to the governor’s attention, said Garren’s bragging shows the mind-set of the trooper.

“It’s ingrained in him to think they’ve got the kind of authority to do the things they do. He acts like he’s just hit a squirrel,” said Howard, D-Columbia. “It’s ridiculous that he would even say that he’s innocent.”

I know that Garren will get better than a fair trial. More often than not, when law enforcement officials are charged with crimes, juries do not hold them accountable. But I am glad that someone is trying to hold these troopers accountable, and, win or lose, these crimes and the abusive attitudes prevalent in law enforcement agencies have been brought into the light of day.

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 . . .

Judge Bennett, calling the prosecution's argument "frivolous and grossly inaccurate" and noting that this was not the first case of a prosecutors breach of a plea agreement in his district,

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

and sentenced the defendant to 70 months, the bottom end of the guidelines range. The judge noted that but for the misconduct he would have sentenced the defendant to the high end of the guidelines range due to aggravating factors such as the sale of drugs to minors by the defendant. The opinion reasoned that:

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.

Driving down the road today in Myrtle Beach I noticed another billboard proclaiming "Buzzed driving is drunk driving." More state dollars spent on marketing to the potential jury pool with mis-truths about our state's DUI laws. Buzzed driving is not drunk driving, zero tolerance is not the law, and it is not against the law to drink and then drive. South Carolina law says that if you are driving, while under the influence to the extent that it substantially impairs your ability to drive, then it is against the law.

Along with the marketing blitz by law enforcement, the media does all that they can to feed the DUI fanatics. For example, a few days ago the Greenville News announced that South Carolina is one of the worst states for drunk driving: We "ranked No. 2 in deaths as the result of drunken driving, according to recently released 2007 figures." Which figures are they referring to?

Hopefully not from MADD, who takes the figures released by the National Highway Traffic Safety Administration for alcohol related deaths (which includes those accidents where there is a blood alcohol content of less than .08, or indications of alcohol such as a beer can found in the car or nearby), and translates this into alcohol-caused deaths? When dealing with DUI statistics the numbers usually come from biased agencies and are suspect.

The Greenville News article also hails the new DUI law which goes into effect February 10, 2009:

The DUI law, which takes effect in February, not only strengthens penalties but also requires counseling for offenders as well. That two-pronged approach should help reduce the terrible toll exacted by drunken drivers on our highways.

The new DUI law certainly increases penalties, providing for up to 7 years in prison for a drunk driver, but the old law already required counseling for offenders. The article praises the increased license suspension periods for persons who exercise their Fifth Amendment right to not give evidence against themselves (by blowing into the datamaster machine), and says "the law also gets rid of needless loopholes that kept some drunken drivers from being convicted." This needless loophole being the required reading of Miranda rights before the person is given the datamaster test.

The article goes on to lament how there are not enough troopers on our highways, but to praise the increased number of arrests in the past year. More people in jail = good. The news media is not going to write articles about the unreliability of the Datamaster and other breath testing devices, how the system of DUI laws is geared to deprive defendants of the right to a fair trial, or how we have created a DUI exception to the Constitution, any more than most legislators are going to address these issues, because readers want to read about how much of a problem drunk driving is, like they will cast their vote for the politician who makes the most noise about being tough on crime.

Wouldn't it be something if journalists wrote more articles on how the manufacturers of breath testing machines fight tooth and nail in court not to release the software code for these machines, and that when the code is finally released and tested, like the Alco-test 7110 in New Jersey:

The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards…

Reason and rationality seldom have a place in the public debate about DUI, or crime of any type.

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.

A client of mine who is also a distinguished combat veteran brought to my attention a bill pending in Congress that would establish a grant program to create veteran treatment courts based on the drug court model.

“These treatment courts will address the specific challenges with drugs and alcohol too many veterans face when returning home from their honorable service overseas,” said Senator John Kerry. “For those who have given so much for our country, we should address the serious issues of drug and alcohol addiction in an appropriate forum that recognizes that some veterans fall victim to substance abuse as a way to handle post-traumatic stress. It’s well past time we offered our veterans services worthy of their sacrifice.”

The SERV Act would authorize an annual $25 million for courts wanting to establish either a veteran's treatment court or to serve veterans through an existing drug court.

Horry County and other counties in South Carolina have employed drug court programs with mixed success. I've commented on our drug courts before:

Horry County Drug Court has been praised as a success. It is a wonderful idea, and in theory it should divert many people away from the prison system. I think we all want the drug court, and the proposed middle court expansion, to work, but we need to step back and take a look at what is happening in drug court:

1) Some people are finishing the program, remaining drug free, and avoiding prison to boot. These are the success stories that we want to hear about. Horry County's drug court began in August of 2005, and has graduated 12 people so far.

2) I am told that most people do not graduate, but I have not seen any numbers on how many have been admitted and how many have flunked out, other than only 12 have graduated in the past 3 years.

3) Before being admitted into the program, the defendant must plead guilty, be sentenced, and then the sentence is deferred pending completion of the program.

4) To be admitted into the program, the defendant must waive any right to appeal or enjoin any decision of the drug court/ middle court judge, and the defendant must waive any right to post conviction relief.

5) If the defendant is dismissed from the program, the defendant does not receive any due process or hearing, and the full sentence is immediately imposed.

So I ask, if most people do not graduate from this program, is it promoting the rehabilitation and re-entry of non-violent offenders into society and reserving the state's prisons for dangerous offenders, or is it giving the prosecutors an easy out to obtain convictions and often lengthy sentences, without the terrible headache of appeals and PCR's? So far, it seems that this bill will not only serve to keep people in prison longer, but it will help the prosecutors to send more people there in the first place.

I am not saying that we should scrap the idea, but I do think that we should make sure that it is achieving its stated goals, and I don't think that this should be used as a way to get around defendant's due process rights.

And I would have the same concerns with a veteran's treatment court. Because the idea is to provide an alternative to incarceration for those who have served our country and are suffering for it, we do not want to put a system in place that only makes it easier to put veterans in prison instead of keeping them out of prison. Because the idea of a veteran's treatment court is to cope with issues specific to veterans, such as the combination of Post Traumatic Stress Disorder and alcohol or drug abuse as coping mechanisms for the veteran, I believe that veteran's treatment courts, if established, should be separate from the existing drug courts.

I'm not saying we should not continue with the drug court experiment - I think that we should. We should expand and improve on the drug courts that we have, and create a separate veteran's court if funding becomes available for it. But I think that we need to be aware of the realities of drug court success/failure rates, and we need to constantly work to improve the system. I think that drug courts and veteran's courts are a hopeful first step in helping the pubic and the players in the justice system understand that some people who become caught up in the justice system need help and not punishment. It is a beginning.

The FBI's yearly report on crime data was released this week, and shows that a record number of Americans were arrested for marijuana possession in 2007:

872,721 Americans were arrested for marijuana in 2007, and of those arrests, 89% or 775,138 were arrests for simple possession - not buying, selling, trafficking, or manufacture (growing) . . . This represents an increase in marijuana arrests of 5.2% from the previous year and the fifth straight year marijuana arrests have increased from the previous year. Now a marijuana smoker is arrested at the rate of 1 every 37 seconds and almost 100 marijuana arrests per hour.

In comparison, Grits points out that "597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses." Dallas criminal defense lawyer Robert Guest takes this a step further, finding that the clearance numbers (crimes solved) for 2007 were:

Murder 60%

Rape- 40%

Robbery- 25%

When marijuana is legal the police can work on the 40% of annual uncleared murders. We owe it to the victims of real crime to quit wasting law enforcement resources on marijuana consumers.

What do you want your police solving and/or preventing? Pot smoking, or violent/property crime?

South Carolina had a total of 213,355 arrests, of which 10,681 were arrests for violent crimes, 302 were arrests for murder, and 30,679 were arrests for drug crimes

Just days before the FBI released their statistics showing that over 872,000 Americans were arrested in 2007 for marijuana, our esteemed Drug Czar stated on C-Span that "we did not arrest 800,000 marijuana users," and went on to explain that "we arrest people because they are usually involved with things like violent offenses . . ."

Right around 1:38 on the video:

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.