It is difficult to watch children being punished for their parent's failings. Because more often than not, when a child is being sent to DJJ, or sent to alternative placement, that is what is happening. I understand the dilemma that DJJ and prosecutors and judges face - what can be done? A child does not stay in school, how do you force him to go to school? At some point, apparently, the answer is you remove him from his family and send him to live at a boy's home. A child commits crimes and will not stop, how do you change his behavior? You don't, you lock him up at DJJ's prison for kids.

I think that the good people who work in that system quickly become desensitized to the real and immediate pain that families are experiencing right there in front of them. Like the cliche about children becoming desensitized to violence due to the violence on the television, our lawyers and other professionals in the juvenile court become desensitized to the devastating effects that juvenile "justice" has on already devastated families that make their way through the system.

I've seen family court judges talk to children or their parents like they are scum of the earth. I've seen defense lawyers who are representing children in the juvenile court argue for detention when everyone else in the courtroom is asking the judge to release them. I've seen prosecutors verbally attack children with no hint of forgiveness or compassion as they ask a judge to tear them from their family and lock them away. I've seen lawyers plead children to serious crimes, an hour after being handed a file and first meeting with the child. At times there seems to be no rhyme or reason to what happens, and at others it feels as if everyone in the room has thrown up their hands and said "so what?"

I was in juvenile court with an appointed client this morning. She was in court this morning to be sentenced, after being sent to the Coastal Evaluation Center for 45 days. The Coastal Evaluation Center, by the way, is a small compound of grey concrete buildings, surrounded by tall fences with razor wire, located next door to Lieber Correctional which houses the state's death row inmates. This morning she returned to court with a recommendation of probation, which the judge accepted and released her to her mother.

Before she went in front of the judge however, her brother was taken in front of the judge for a probation violation. He would not go to school. DJJ recommended 5 days incarceration, as a wake up call, and recommended continued probation. The prosecutor asked the judge to remove him from his home and send him to DJJ until an alternative placement could be found. His lawyer says "as his lawyer," she has to ask the judge to accept DJJ's recommendation, but then gratuitously adds, "if I were his guardian," she would tell the judge to put him in alternative placement. Wonderful lawyering, that was.

The judge orders that my client's brother be taken from his family and put into an alternative placement. After her brother is taken away through the back door of the courtroom into a cage, my client and I sit at the table. She is sobbing quietly. She was taken through that same door less than two months ago.

The machine keeps moving, with no emotion from anyone in the room except my client whose brother was just taken from her. Until we stop, as I am trying to tell the judge how wonderfully my client adjusted and how well behaved she was at the Coastal Evaluation Center, in mid sentence, I am stopped so that the court reporter can go to the next courtroom and help to fix their recording equipment. My client sits at the table for 20 minutes until the gears begin to grind again. I tell the court again how wonderful she was at the evaluation center.

I tell the court how I felt her pain as she sat next to me after her brother was just taken from her. And how I am not sure if anyone else in this courtroom felt it or saw it, but I want them to know it. I pause, and look around the courtroom, and not a single person is looking at me. She went home on probation. She has the same life that she had before she was brought into the juvenile "justice" system, except with more rules and with the threat of incarceration if she screws up again. Same parents. Will watching her brother get taken away from his family motivate her to go to school? Will she be taken from her family when she does not attend school in the weeks or months to come?

I feel my client's pain when I am standing next to her in that courtroom. If I ever become desensitized to what these very real people are going through as their families are torn apart (or not, as the case may be), I think that I will need to leave and find a job welding on steel beams and trusses, rather than people's lives.

Is anyone's life better because I was there in the juvenile court this morning?

Issue preservation at trial - the Court held that the victim's statements to an interviewer at the hospital under 17-23-175 of the S.C. Code did not violate the Ex Post Facto Clause, but that the defendant's remaining issues raised on appeal were not preserved. Although the defendant's attorney objected that the testimony violated his right to confrontation, he did not articulate as grounds for the objection 1) that it was impermissible hearsay; 2) that it was prejudicial because it conflicted with the victim's trial testimony; or 3) that the state failed to comply with section 17-23-175.

The defendant also objected to testimony from the mother regarding the victim's statements to her, but did not articulate that the victim's statement went beyond the time and place of the assault as provided in Rule 801(d)(1)(D), and so this argument was also waived on appeal. The Court does hold that the statement is admissible as an excited utterance, however.

The Court holds that statements made by the defendant to a guardian ad litem appointed by the family court are admissible, because 1) the guardian ad litem is not an agent of the state (because they are not an agent of the prosecution specifically; it does not make much sense to say that they are employed by DSS but that they are not an agent of the state); and 2) because the statements were made voluntarily anyway, after the guardian ad litem told the defendant not to talk about the sexual assault.

Importantly, our courts have long emphasized that to warrant a court's eliminating the offense of manslaughter, it should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter. State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 513 (2000); State v. Burriss, 334 S.C. 256, 265, 513 S.E.2d 104, 109 (1999); Casey v. State, 305 S.C. 445, 447, 409 S.E.2d 391, 392 (1991). A request to charge a lesser included offense is properly refused only when there is no evidence that the defendant committed the lesser rather than the greater offense. Casey, 305 S.C. at 447, 409 S.E.2d at 392.

Involuntary manslaughter is (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.

The Court says that, since the girlfriend picked up the weapon first, Brayboy was not "presenting" the weapon; distinguishing State v. Reese, 370 S.C. 31, 633 S.E.2d 898 (2006), where the defendant was the one who produced the gun. Since Brayboy was not "presenting" the gun, the jury could find that he was lawfully armed and the jury should have been charged with involuntary manslaughter.

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.

The officers got everyone out of the car and then searched the interior of the car, eventually finding a small amount of cocaine inside a cigarette pack. Of course, my advice to the lawyer was that his first question on cross-examination of the officer should be, "now officer . . . was the crack in plain view?"

Beyond that, I pointed out that it appears the cocaine was not in plain view - it was inside a cigarette pack. This means that the officers had to have a reason to search the car - a reasonable suspicion at least that there was further evidence of criminal activity in there. If their intent was to arrest for indecent exposure (the officers did not charge anyone with indecent exposure, by the way), then as I read Arizona v. Gant the officers had no business searching the car unless they were searching for further evidence of indecent exposure. I'm not sure what further evidence of indecent exposure would look like, but I am pretty sure it would not be found inside a cigarette pack.

Further, it appears that the car was parked legally and so there would be no reason to tow the car - hence no justification for an inventory search. If there was no reasonable suspicion of drug activity, the drugs were not in plain view, there would be no evidence of indecent exposure concealed in a cigarette pack, and the car was parked legally, suppression of the drugs would be in order.

Tuesday the solicitor called the defense lawyer and said that they were trying the case Wednesday, and that the co-defendant would be testifying against his client. Later Tuesday evening the solicitor called back and said nevermind, the case would be dismissed as the co-defendant was going to plead guilty. Trial Chicken. It turns out the "crack" was not in plain view, after all.

The Court held that 1) it was not error for the trial judge not to declare a mistrial where the jury sent out a note disclosing that they were split 9-3 for death (if the court had asked what the division was it may have been grounds to reverse); 2) it was not error for the trial judge not to declare a mistrial when the jury revealed that they were divided; 3) that the Allen charge given to the jury was not coercive; and 4) that it was not error for the trial judge not to declare a mistrial based on the testimony of the state's psychiatrist who testified to bolster the state's decision to seek the death penalty despite not being qualified as an expert (her testimony was as a lay witness).

Justice Pleicones' concurrence highlights the difficulties of preserving the record for appeal - although he agreed with the result, he would have found that at least one of the issues on appeal was not preserved. Regarding the objections to the psychiatrist's testimony, one of the defendant's lawyers asked for a curative instruction, and the defendant's second lawyer asked for a mistrial. The judge gave the curative instruction and denied the motion for mistrial; because the second lawyer did not object to the sufficiency of the curative instruction, Pleicones points out that the mistrial issue was not preserved for appeal.

This case is an exercise in the minimum evidence required to allow a case to go to a jury, and Frazier appealed the denial of directed verdict at trial. The evidence presented was solely circumstantial - Frazier was having an affair with the victim's wife, Renee. The state's theory of the case was that Frazier and Renee planned to kill Renee's husband. Renee and her husband came to Myrtle Beach for vacation, Frazier lay in wait as Renee got her husband to take a moonlight stroll on the beach, Frazier came up and shot the husband, and Frazier and Renee tried to make it look like a robbery.

The evidence presented included that there was an affair between Frazier and Renee, that Frazier had tried to fight with the victim, that Frazier had borrowed his mechanic's car at the time the murder happened, and that the victim's valuables were found nearby which included his money. A couple that were on vacation later identified Frazier as someone they saw near the crime scene. There was no direct evidence that placed Frazier at the scene, but the circumstantial evidence that was presented was sufficient to allow the case to go to a jury.

Kolle pled guilty on the advice of his attorney and was sentenced to seven years in prison, the minimum sentence for trafficking in cocaine 28 to 100 grams, first offense. His defense lawyer had been practicing for three years, but had never handled a felony case before. The lawyer advised Kolle to turn down a plea offer for five years until after the suppression hearing, telling him that the offer would still be available (it was not).

The lawyer relied on the documents that the solicitor's office had provided to the public defender who had the case before him, and did not obtain complete discovery before arguing the suppression motion. The officers in the case had responded to a loud music complaint, then entered the apartment without a warrant when no-one answered the door, claiming that there were exigent circumstances:

Because there were lights on in the apartment and no one answered his knocks, Officer Canfora "presumed that there may be something wrong inside the apartment . . . that somebody was in the residence, maybe injured or incapacitated."

At some point they went and got a search warrant, after they discovered cocaine in the apartment. During the suppression hearing, Kolle's defense lawyer failed to point out to the trial judge serious discrepancies in the testimony of the officers:

In recounting the suppression hearing, plea counsel conceded that he did not point out the discrepancies between the officers' testimony and the documentary evidence, which included the incident reports, the search warrant, and the police call logs. Specifically, PCR counsel established that plea counsel failed to question the officers regarding the following time discrepancies: the call/dispatch log indicated the loud music complaint was received at 12:43 a.m.; Officer Canfora arrived at the apartment at 12:48 a.m.; the search warrant appears to indicate it was issued at 12:01 a.m. and executed at 12:43 a.m. Plea counsel admitted that he did not have this documentary evidence in his file. He further acknowledged that he never requested the lab report or the chain of custody report regarding the cocaine that was seized pursuant to the search warrant

If the defense lawyer had investigated and prepared the case for trial, there was a substantial likelihood that the cocaine would have been suppressed. If the defense lawyer had presented all relevant evidence at the suppression hearing and suppression was denied, he still would have had to try the case to preserve the issue and appeal to the Court of Appeals.

Some lessons from this case - if you take over a case from the public defender's office, do not rely on the discovery in their file. Do not rely on the first discovery that is sent out in any case - there is almost always something that the prosecutor is not providing or that can be obtained from law enforcement's files.

Don't assume that a suppression hearing is a foregone conclusion - when you get into the details of a case you might be surprised. Law enforcement often cuts corners, and then tries to fix it later with testimony tailored for court. And, believe it or not, there are circuit court judges in South Carolina who care about the Constitution and who will not automatically rule in favor of the state.

Smith was charged with criminal sexual conduct (CSC) with a minor and with contributing to the delinquency of a minor. At trial, the forensic interviewer testified without objection that the alleged victim told her that she had been sexually assaulted and that she believed the alleged victim was telling the truth. The prosecutor then used the bolstering in her closing argument, reinforcing the interviewer's testimony that the alleged victim was believable.

To prove a claim of ineffective assistance, the petitioner must show that: (1) counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defendant's case. When the trial lawyer articulates a valid trial strategy, ineffective assistance is not found (failure to object because the lawyer does not want to upset the jury is not a valid trial strategy).

In this case, the trial lawyer testified at the PCR hearing that there was no trial strategy to explain his failure to object to the hearsay and bolstering, and the Court found that there was prejudice because there was conflicting evidence presented at trial. If the hearsay and bolstering had not been allowed in front of the jury, the outcome may well have been different.

Possession of a weapon by a felon ordinarily carries a sentence of up to 10 years, but the Armed Career Criminal Act increases the potential punishment to a mandatory minimum of 15 years if the defendant has three prior convictions for a violent felony or serious drug offenses. A violent felony is defined as a crime punishable by more than a year, and that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

History:

U.S. v. James: in 2003 the Fourth Circuit holds that FTSBL was a violent felony under the ACCA because it involves conduct that "presents a serious potential risk of physical injury to another." The Court applies a categorical approach - looking at the elements of the crime without reference to the underlying facts of the conviction.

Begay v. U.S.: in 2008 the SCOTUS holds that New Mexico's DUI statute does not qualify as a violent felony under the ACCA because "DUI involves conduct that presents a serious potential risk of physical injury to another." It is simply too dissimilar to the listed crimes (burglary, arson, extortion, the use of explosives) to qualify. The Court held that to be classified as a violent felony, the crime must be roughly similar in kind and in the degree of risk to the examples listed - the crime must involve conduct that is purposeful, violent, and aggressive.

U.S. v. Roseboro: in 2009, the Fourth Circuit acknowledges that the U.S. Supreme Court in Begay overruled the Fourth Circuit's prior decision in James, but then performs some legal analytical acrobatics to find that FTSBL is still a violent felony. Using a "modified categorical approach," the Court holds that there could be two types of FTSBL - because S.C.'s FTSBL statute does not have a specific intent requirement, there could be cases where there is intent and cases where is no intent. The Court holds that in cases where there is intent (come on - in practice, this means all of them) FTSBL qualifies as a violent felony.

Chambers v. U.S.: in January 2010, eight days after Roseboro was decided, the SCOTUS holds that the crime of escape, where it involves either an actual escape from a facility or a failure to report, must be analyzed under the modified categorical approach and split into two separate offenses. Because it proscribes two different types of behavior, one of which inherently has a risk of violence and another which does not, and each example can be considered a different/ separate crime, the Court treats them as two separate crimes and holds that failure to report, as opposed to an actual escape, should not be considered a violent felony.

Back to Rivers - because there is only one type of conduct that is involved in S.C.'s FTSBL statute (keepin' on truckin' after the blue light comes on behind you), the Court must apply the categorical approach, without reference to the underlying facts of the conviction. Because FTSBL is a strict liability offense and includes conduct that is not intentional, it is different than "violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives," and therefore is not a violent felony for purposes of the ACCA.

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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.

A jury trial is a complex system that is more or less stable and predictable based on the amount of energy we inject into it.

A police misconduct victim's guide, from Injustice Everywhere.

Why people go to trial, from DA Confidential. The list includes: an obstinate defendant or a defendant with a lot to lose (with an acknowledgment that a defendant may be obstinate because he is innocent), when the consequences of any guilty verdict are more important than the potential punishment (defendant is on probation or parole), and because the terms of the plea offer are unacceptable to them. How about because the Constitution provides for a right to trial by jury in every criminal case?

Two kids break into a car, one sits on his cell phone and dials 911 accidentally, and the two are recorded talking about what they are going to steal and what they will leave behind. Police arrive to find the two with the stolen property still in their possession.

Texas prosecutes vehicle accidents as crimes. Bennett and Kennedy are not pleased.

Homeland Security loses 985 Computers, 13 Automobiles, 1 International Harvester Truck, and 235 Night Vision Scopes. Lost, stolen and damaged equipment: 1975 pieces for a total value of $7.5 million.

Maricopa County attorney dismisses indictments against County Supervisor Don Staples and Judge Donahoe. H/T Balko.

According to Reggie Lloyd, Director of South Carolina’s State Law Enforcement Division, Mexican drug cartels that used to enjoy Atlanta, Georgia are heading to rural and suburban areas of South Carolina. Lloyd says that Atlanta’s attempts to fight the cartels have been so successful that they are leaving Atlanta for quieter bases of operation, according to a Charlotte Observer report.

They need a market - I would assume that elements of drug cartels or at least those associated with them are already present in every state.

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?