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.

An associate had a drug case pending in Marion County that was supposed to go to trial this week. The officers claimed that they came up on the defendant's car at a park and that they witnessed the defendant (male) and another person (male), in some degree of nakedness, scrambling from the back seat to the front (this was denied by the occupants).

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.

Not guilty on CDVHAN (criminal domestic violence of a high and aggravated nature), kidnapping, and burglary in Georgetown County today. No smoke or mirrors necessary. What the hell does smoke and mirrors mean, anyway?

Ok. I looked it up, Wikipedia says:

Smoke and mirrors is a metaphor for a deceptive, fraudulent or insubstantial explanation or description. The source of the name is based on magicians' illusions, where magicians make objects appear or disappear by extending or retracting mirrors amid a confusing burst of smoke. The expression may have a connotation of virtuosity or cleverness in carrying out such a deception.

In the field of computer programming, it is used to describe a program or functionality that doesn't yet exist, but appears as though it does (cf. vaporware). This is often done to demonstrate what a resulting project will function/look like after the code is complete — at a trade show, for example.

More generally, "smoke and mirrors" may refer to any sort of presentation by which the audience is intended to be deceived, such as an attempt to fool a prospective client into thinking that one has capabilities necessary to deliver a product in question.

So, when a prosecutor repeatedly says that the defense's case is "smoke and mirrors," they are claiming that the defense is being deceptive and fraudulent, and that their defense is insubstantial. At least it has a connotation of virtuosity and cleverness, that sounds impressive.

Brian Tannebaum has a post about Michelle Santamaria, the daughter of Palm Beach County Commissioner Jess Santamaria, who got a plush gig with Palm Beach County teaching a class to officers on "how to testify." Brian's point in the post is that, while the news is debating the ethics of the Commissioner's daughter teaching this class on the taxpayer's dime, no-one is saying a word about the ethics of officers taking classes on "how to tesify."

"Did you see the elephant walk out of the room while you were reading about the mice?"

Law enforcement officers in South Carolina take this class as part of their training at the Criminal Justice Academy, and in every trial I ask the question "did you take a class on 'how to testify' while you were at the academy?" At which point the officer always turns in his seat to face the jury, makes eye contact with the jurors, leans forward ever so slightly in the witness chair, and responds, "yes I did."

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.

A few weeks ago I met with a group of Trial Lawyers College/ regional grads in Charleston to work up cases, and today a few local attorneys came to the office in Myrtle Beach and worked on cases that are coming up for trial next week. When I went to the college in July, and when I went back last month for a workshop with Josh Karton, I was blown away by the techniques that were being taught, and the opportunity to learn from and practice with some of the best lawyers in the country. That experience was wasted if I don't use the methods in my cases, and practicing with attorneys here in South Carolina, especially those that have not been to the college yet, is gratifying.

I hope to continue working with attorneys using the TLC methods on a regular basis, and there is no doubt that we are becoming better advocates and storytellers throughout this process. I am hungry for more - I've already signed up for grad classes next summer, and I may attend some psychodrama workshops in the meantime as well.

I know that there's been some controversy regarding TLC on the web lately, and I am sorry for those that feel alienated from the college in the midst of the recent changes. A word from a newer graduate, about what the college means to me:

Gerry Spence brought us to the college, and there is no question that I believe he is an amazing person, but it is not about Gerry Spence to me. Whether it is at the ranch or at our offices in our hometowns, it is about a think tank where lawyers meet to share ideas and methods, and improve ourselves and one another as we become better advocates for people. It is in part about Gerry's ideas, some of which I have internalized, some I have modified, and a few I have rejected. It is about being free to experiment and practice trial methods to find what works and what does not, and to develop new methods in the process. It is still about learning who I am, becoming a better person, and becoming a better lawyer in the process.

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

In State v. Edwards, the South Carolina Supreme Court reversed the defendants' murder convictions because the trial judge improperly granted the state's reverse Batson motion.

The basic principle of Batson v. Kentucky is that jurors cannot be struck on the basis of race or gender. In criminal trials, some prosecutors will strike every black person who is called if they are allowed to, because 1) the defendant is often a black person; and 2) in general black jurors are considered less friendly to the government. In not-so-far-distant less politically correct times, prosecutors in some areas of the country were openly trained to strike black persons from the jury. So - if it appears that a prosecutor is striking black jurors on the basis of race alone, the defense attorney can challenge those strikes by bringing a Batson motion before the jury is sworn.

Once the jurors are challenged, the burden is on the prosecutor to give a race-neutral reason for striking the juror. Once a race-neutral reason is provided, the burden shifts to the defense to demonstrate that the race-neutral reason is in fact a pretext for striking that juror - for example, the prosecutor's given reason for striking juror 20 is that juror 20 was a schoolteacher, and the prosecutor feels that schoolteachers may have a particular bias against the state in this particular type of case, but the prosecutor seated juror 112 who was also a schoolteacher - this would be evidence that the prosecutor's reason for striking juror 20 was a pretext.

The courts have been fairly lax about what they will allow as a race-neutral reason. In one recent trial, the prosecutor stated that he struck a female black juror because she flipped her hair and looked at him funny. The judge in that trial accepted that was a race neutral reason and allowed the jury panel to stand.

Because Batson is designed to protect the jurors as much as it is to protect the litigants, the prosecution can bring a Batson motion as well. In Edwards, the prosecutor challenged two jurors that the defense struck, and the racially neutral reason given by the defense was that one was a reporter who may have had information on the case and the other was a DMV employee who may work with law enforcement from time to time. The trial judge ruled that these reasons were a pretext (note: this is a pretext, but flipping your hair is not) and quashed the jury (they started over). The trial judge did not require the prosecution to prove pretext.

Pretty much the Supreme Court's holding in this case is: Yes, the prosecutor has to follow the rules also. At least when it is this obvious - employment should always be a race-neutral reason for a strike, absent a showing by the other party of pretext.

It is standard practice for prosecutors to use co-defendants or other persons with pending charges to testify at trials, with the promise of leniency, reduction in their charges, or even outright dismissals in exchange for their favorable testimony. The threat of prosecution and the promise of freedom is a powerful motivator that can certainly color a witness' testimony or even motivate them to fabricate it from whole cloth.

Except there will usually be no agreement saying, "this is what you will get in exchange for your testimony." There will be a "proffer," which basically says that the witness will testify truthfully at the trial and that the prosecutor makes no promises to them other than to take their cooperation into consideration.

Earlier this morning, an attorney asked me what my opinion was, as to whether his/her client should sign this type of proffer or not, and my answer was it depends. The first question is whether the client is anticipating a guilty plea in their case - if you are considering signing a proffer you are most likely anticipating a guilty plea, but make this clear to the client.

Typically, our prosecutors will live up to expectations when it comes to rewarding snitches, even when it is not spelled out. But - the standard proffer in Horry County basically binds the prosecutor to nothing and legally is of no benefit to a defendant. My answer is, if you have a strong enough case don't sign this type of non-agreement - at the least make sure these agreements have language in them that benefits and protects your client, at best make sure that there is a real promise spelled out in the agreement (rarely will a prosecutor agree to this, if only because they know that they do not have to with most attorneys). If your client's case is not a slam dunk on the other hand, your client may or may not want to enter the agreement and rely on the prosecutor's good graces.

As a matter of public policy - prosecutors and defense attorneys should stop this practice of half-truths, innuendo, and "agreements" that agree to nothing on paper. The goal is to ultimately mislead a jury and lie by claiming that their witness has been promised nothing and expects nothing in exchange for their testimony, which is unconscionable.

Personally, I do not think that they should, and I agree with the quote below.

In New Mexico, police unions have filed a lawsuit against District Attorney Janetta Hicks, who announced that her office would no longer prosecute misdemeanors except for DUI's and domestic violence cases.

"The officers are not lawyers," said prosecuting attorney Tom Martin. "They are not licensed to practice law. They do not have adequate training to be prosecuting attorneys."

While officers have received some legal training, they argue the cases take too many police off the street, which causes the safety of citizens to suffer.

"The district attorney has the absolute duty to represent the state of New Mexico as the prosecuting attorney," Martin said.

Martin said the policy has created a hardship and caused confusion for officers in the courtroom.

This is how it has always been in South Carolina courtrooms, and only recently have counties begun to provide prosecutors for driving under the influence and domestic violence cases (but not defense attorneys). Officers in the magistrate courts still prosecute all other types of cases. (In Horry County, the solicitor's office also handles driving under suspension and simple assault and battery cases).

From a policy perspective, it does not make sense to take officers off of the street and force them to act like a lawyer for a police officer's pay. From a defense perspective, there are times when my job is easier because there is no lawyer on the other side, but there are also times when my job is more difficult because an officer does not (and probably should not) understand the nuances of some legal defenses or courtroom procedure.

What is the answer? Fund the justice system - put a prosecutor in every courtroom and stop denying the right to counsel to indigent defendants in misdemeanor cases. Let cops be cops.

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.

This morning at 9:40 am I received an email from a prosecutor stating that one of my client's case was to be tried this morning and to get up to the courthouse. At 9:45, as I was meeting with a different client at my office, the prosecutor called to make sure I knew that my case was going to trial today and that the judge wanted me at the courthouse. At 9:50, as I was still trying to explain to the client in my office that these things happen and when the judge calls I must go, another prosecutor called from the judge's chambers to tell me that the judge wanted me at the courthouse.

There is a trial roster that is put out by the solicitor's office for each term of court. This client's name was not on that trial roster, which was sent to me by email on March 30th, and so I should be able to safely assume that this client's case was not going to trial. In addition, this client has not one, but six separate cases pending, and the prosecutor has yet to identify which case he intends to call to trial and to provide complete discovery in some of the cases.

So, my staff calls my client and tells him to get to the courthouse while I grab the file and some books and jump in the car. At the courthouse, I tell the judge that my client is not on the trial roster and he informs me that I am wrong, my client is on the trial roster that he has. We compare notes and discover that the judge has been given a completely different trial roster. The prosecutor then assures the judge that I was provided both trial rosters, the one that I have produced for the judge (without my client's name) and the one that the judge holds in his hands (with my client's name), and that perhaps I do not check my email. I assure the judge that I check my email religiously (I do) and that I have not received a copy of the trial roster that the judge is holding in his hand. Fortunately, the judge accepts that I would not lie to the court and agrees that the case will not be called for trial this week.

But, this does not solve the problem. Why is the judge holding a trial roster in his hand that is different from the trial roster that was provided to me by the solicitor's office? As I spoke with other attorneys at the courthouse I did not find a single one that had received this super secret trial roster that my client's case was on. A different prosecutor called the assistant who had emailed the trial rosters and had her come up to the courtroom, to assure the judge that I was either wrong or lying to the judge, and when the assistant got there she freely admitted that she had emailed the roster that I held in my hand, that she had not emailed the super secret trial roster to anyone, and that she had been instructed that the super secret trial roster was not for distribution.

So our solicitor's office did not provide this trial roster to any defense attorneys, but told a judge that it had been provided to attorneys (me), and then called me the morning of trial to tell me to get to the courthouse and try a case that they knew I had not prepared for trial today. If I did not religiously check my email, or bring the paperwork with me this morning, or have some measure of credibility with our judges as an attorney that will not lie to the court, I could easily have been painted as incompetent or unethical myself.

What this screams to me is the problem with the prosecutor's offices having control of the docket in our criminal courts in South Carolina. The prosecutor can call a case for trial whenever they are ready, which means they pick the judge, they take as much time as they need to prepare for trial, they are able to play games and try to blindside defense attorneys when they are not prepared for trial, and they can leave defendants sitting in our hellhole of a county jail for years at a time in an attempt to force guilty pleas out of them. If a defense attorney wants a motion heard, they must file the motion with the clerk, and then call the prosecutor and ask them to schedule a hearing. On more than one occasion, I have had a prosecutor refuse to schedule a hearing (at which point we must go to a judge and request that they do it for the prosecutor). When the prosecutor does schedule the hearing, by virtue of the fact that they are the one scheduling it, they get to choose what judge will hear the motion.

Imagine, if you will, a system of common pleas court where the plaintiff's attorneys have exclusive control of the docket. They set the day, time, and courtroom where pre-trial motions will be heard; and they determine when a case will be tried and what judge it will be tried in front of. Do you think that such a system would be rife with abuses by the plaintiff's attorneys in how the docket is controlled?

The clerk of court should set the docket in criminal courts just as it is done in civil courts - an interested party such as the plaintiff's attorneys (prosecutors) should not have this power. The system as it is is a violation of due process, it is inherently unfair and gives an undue advantage to one side, and it leads to other abuses such as manipulation of the docket and deprivation of defendants' right to a speedy trial.

I would like to hear more discussion about this issue from attorneys in our state - it is time for a change. Any suggestions or comments are welcome.

Ria Ramkissoon, member of the One Mind Ministries cult charged with causing the starvation death of Ramkissoon's son, pled guilty yesterday in Baltimore, Maryland, to child abuse resulting in death. As part of the plea agreement, she agreed to testify against her four co-defendants when their trial resumes, she would receive a sentence of time served, and the state agrees that if her son is resurrected as the group expects, her charges will be reopened and dismissed.

Ramkissoon, a member of a group called One Mind Ministries, believes Javon Thompson, her year-old son, will rise again, and as part of her plea agreement, authorities agreed to the clause.

"She certainly recognizes that her omissions caused the death of her son," Silverman said. "To this day, she believes it was God's will and he will be resurrected and this will all take care of itself. She realizes if she's wrong, then everyone has to take responsibility ... and if she's wrong, then she's a failure as a mother and the worst thing imaginable has happened. I don't think that, mentally, she's ready to accept that."

Under the plea agreement, Ramkissoon, 22, must testify against four other One Mind Ministries members who are also facing charges, including first-degree murder, in Javon's death. At her sentencing, set for August, she will receive a 20-year sentence, which will be suspended except for the time she has already served behind bars, Silverman said. She must also undergo deprogramming and psychiatric counseling.

In court Monday, it was clarified that the "resurrection clause" would apply only in the case of Javon's actual resurrection -- not a perceived reincarnation, Silverman said.

"This has never come up in the history of American law, as far as I've seen," Silverman said, adding that the clause was "very important to her."

This is a strange and very, very sad story. If a person is brainwashed into truly believing something as extreme as this, how can we say that they are criminally responsible for the death? Although I also cannot see a way around prosecuting these people, it also seems to be the definition of legal insanity per the McNaughten Rule - not knowing the difference between legal and moral right and wrong at the time that the offense was committed. If a person does not know that what they are doing is wrong, there is no societal interest furthered by punishing that person - treatment yes, but conviction and prison will serve no purpose.

The standard method of impeachment by prior inconsistent statement is to have documents organized and tabbed, ready to impeach if the witness does not admit to the statement you are confronting him or her with. This could be an incident report, a preliminary hearing transcript, a written statement, or a transcript made from a recorded statement.

In our last two trials, we had discovery which included extensive audio-recorded interviews by potential witnesses, including the state's jailhouse snitches. Rather than attempt to transcribe every interview, which would have been ridiculously time consuming and expensive, I bought an IPod-touch to put the statements on.

I have seen impeachment by an audio-recorded statement using the original cd-roms - to do it this way you would mark the location of the statement that you anticipate would be needed for impeachment (i.e. 7:39 - 8:05 snitch says to cop yes I was lying to you, it was because I wanted you to give me a sweet deal), then if the witness denies having made the statement you simply pull the microphone down to the computer, set whatever media player you are using to that location, and play that portion of recording. The problem with this method is that it is somewhat cumbersome, you have to return to counsel table and mess with the computer every time you want to use it, and if there are inadmissible portions of the recording you have to be very careful not to over or undershoot your mark on the audio.

What works even better is to create audio-clips of each potential impeachment, and then move it to the IPod-touch. You can label categorize it as "genre" = the name of that particular trial; "artist" = the witness' name; and "song" = your label for that particular clip. It is easy enough to organize all of the clips, once they are separated from the original recording, on I-Tunes which will work on a Mac or on Windows.

You can use free editing software like audacity to locate and cut audio clips that you will be using on the IPod. Even if what you have is video, you can convert it to an mp3 or wave file and then cut the clips that you need. Make sure that the clips you are using contain enough material just before and after the desired statement that it doesn't seem like you are taking the statement out of context - the exception being where there is material that is inadmissible that must be edited out.

You can then use a small speaker (I spent about 80$ on a small portable speaker that still has good volume) connected to the IPod to play the clips when they are needed. You can carry the whole set-up in one hand to where-ever you will be cross-examining the witness, and when the witness denies making the statement, pick up the IPod, tap it a few times, and out comes the witness' voice saying exactly what he just denied. It works wonders to keep witnesses honest - once you impeach them once or twice most witnesses catch on, and just looking at the IPod sideways will make them agree wholeheartedly with whatever question you are asking.

(H/T to Jonathan Hiller who helped to figure this out and to set it up for us)

Mount Pleasant Municipal Judge Larry Duffy ruled today that Texas hold 'em is a game of skill not chance, and therefore not gambling under South Carolina law, but then found the defendants guilty of operating a gambling house.

Though Duffy said evidence was "overwhelming" that poker was a game of skill, he said he did not have enough guidance from higher courts or state lawmakers to know if that analysis makes a difference under South Carolina law. McMaster's office called Thursday's ruling insignificant, but if it is appealed, the South Carolina Supreme Court may eventually have to decide if Texas Hold 'em is legal in the state. Locally, the ruling could keep police from arresting people involved in friendly house games. . . .

But Duffy's ruling doesn't help five of the 20 people arrested in the raid who didn't pay fines to settle their cases. In a separate part of the ruling, he found them guilty of operating a gambling house — something their attorney says also isn't clearly defined under state law.
"If an essential element of the criminal charge is not defined, and the court doesn't even know what it is, how can my clients expect to know whether or not they are in violation of the law?" said Greenville attorney Jeff Phillips, who plans to appeal to a circuit court.

What I'm wondering is, if it is a game of skill and therefore not gambling, how are these guys guilty of running a gambling house?

In a murder trial that lasted all of last week, one of our themes was "the drowning man," borrowed from an attorney who spoke at a NACDL conference recently but whose name I can't remember. If I find his name I will update this post later. The following is now a matter of public record:

The state's entire case against my client was based on one jailhouse snitch. The police attempted to check out the snitch's story and it did not check out. The snitch was given a polygraph, with questions specifically on the subject of his testimony, and he failed the polygraph. We called the State's DNA expert in our case, who testified that not only did DNA found at the crime scene exclude my client and his co-defendant, but there was DNA present from at least one unidentified male and one unidentified female.

The state's theory was that the defendants robbed two female drug dealers and made off with their money and cocaine. Except that we presented evidence in our case that three people who entered the house and found the bodies made off with a briefcase full of drugs, that they claimed to find sitting next to the head of one of the victims.

When using this type of testimony, and ignoring the state's own credible, believable, and reliable evidence that points towards innocence, could it be that the prosecutor is blind to what he is doing, and believes that he is ethically seeking justice? I have no doubt that if I, or any defense attorney, did the things that some prosecutors and cops do in Horry County that I would be disbarred as a result. A different set of rules apply to our brethren in the solicitor's office.

The drowning man:

The other day I read a story about a man, a good man and a strong man, who heard the desperate cries of a drowning man, way out in the middle of a lake. The good man immediately jumped into the water and he swam out to the drowning man to save him. The story does not have a happy ending. You see, the drowning man grabbed onto the good man and in his desperation the drowning man pulled down the good man and both of them died in the middle of that lake.

Ladies and gentlemen, that snitch is the drowning man. He is like a man out in the middle of the lake or the ocean without a life raft or a boat or a life vest, he has nothing to hold onto, and he is just out there flailing away, just trying to keep his head above water. He is the drowning man and he will do anything to save himself, he will grab at anything, the drowning man has no conscience, the drowning man has no sense of morality or decency, the drowning man is a dangerous man.

Just ask any lifeguard about this and they will tell you that the most dangerous part of a rescue of a drowning man is the drowning man himself. He is desperate, he will grab at anything and he will pull the lifeguard down to his death in a second. Lifeguards are trained in the dangers of a drowning man, they know what to expect and know how to handle the drowning man.

The lessons learned by the lifeguard before going on duty are helpful to us here because [John Doe Snitch] is the drowning man – he has been to prison and he is going back to prison and he knows it, he can feel it, as if his life is almost over and he knows it. He was sitting in his jail cell with the water just about to go over his head for the last time and just then the prosecutor swims up to him and offers him hope, and of course he grabs at it and he will do anything to grab at it, he will say anything to grab at it, just like the drowning man.

The prosecutor swam up to this drowning man and offered him a hand in rescue and this desperate soul grabbed it wildly and pulled the prosecutor under and he has lost his moral compass and drowned with him. The prosecutor got too close to him and offered him something he could not refuse and now the drowning man has pulled him down. . . .

For the record, I am not bashing prosecutors willy-nilly - there are some incredibly upright and conscientious attorneys in our solicitor's office. But, I believe that when there is something terribly wrong with the system it needs to be talked about. Allowing jailhouse snitches to testify without corroboration is a travesty of justice, and it is the norm rather than the exception. Anytime that a person sitting down there at the jail gets information on a case, whether it is from going through someone's discovery materials, talking to the defendant, or just listening to the gossip, if they believe that they can get help on their charges by providing information to the prosecutors, you'd better believe that they will. And there is no better information than a jailhouse confession, or in some circumstances even placing yourself in the center of the crime.

Testimony given by a person who is facing charges himself is inherently unreliable, and should never be admitted in court unless there is some kind of corroboration. Testimony by jailhouse snitches may be necessary in some cases, and that is understandable, but that testimony should be verified by some means before allowing it in front of a jury. Presumption of innocence, proof beyond a reasonable doubt, our entire system of justice and protection against wrongful convictions is called into question by the practice of some prosecutors of trawling the jails for jailhouse snitches.

Consider this - an unethical (or overzealous) prosecutor or detective could make a case against anyone: me, you, or anyone that we know, with jailhouse snitches and no other credible evidence. The threat of prosecution and the promise of freedom is a powerful motivator, and that is why there must be corroboration before we put this kind of testimony in front of a jury.

Next month a Municipal judge in Charleston, S.C. is to decide whether playing Texas hold 'em poker is a crime in our state. Of course, if the judge decides that it is, a jury will then decide and, if the jury decides that it is, our appellate courts get a shot at it.

Each week for nearly 30 years, Bob Chimento and his college buddies have gathered around tables in a Mount Pleasant home to play the popular version of poker known as Texas Hold 'em, bringing $20 and spending an evening with pizza, sodas and beer.

As the cards flew during a night in April 2006, a half-dozen police officers burst into the home, seizing several thousand dollars in cash and a small amount of marijuana. They ticketed Chimento and about 20 other players for breaking the conservative state's 200-year-old prohibition on games of chance.

Most of the poker players pleaded guilty and paid a $250 fine but Chimento and four others are challenging what they say is an antiquated law -- poker, after all, is seen almost nightly on TV and is played around thousands of kitchen tables around the country. Even President Barack Obama is one of the estimated 55 million Americans who are fond of the game. . . .

Read literally, a South Carolina law established in 1802 makes ''any game with cards or dice'' -- including popular board games such as Monopoly and Sorry -- illegal in the state.

But Attorney General Henry McMaster says his office has adopted a looser interpretation of that statute, one that only considers games more reliant on chance than on a player's skill to be gambling and therefore illegal -- an interpretation the top prosecutor says includes Texas Hold 'em.

''This office, over many years, interpreted that as a gambling game,'' McMaster said recently. ''This is our law, and the people of our state, speaking through their elected representatives, have made this the law.''

You have got to be kidding me . . . cops raiding poker games? I can understand if a major drug dealer is hosting a poker game at his house, but I would hope that police are not taking time and resources to conduct raids on run-of-the-mill poker games. Who makes the decision that a poker game is a worthy target and use of resources? What motivates that decision?

Apparently, in this instance, cops used an informant wired for sound and marked bills to help make their case.

Chimento says the men paid a $20 buy-in each to go toward pizza, beer and soft drinks for the group. The ''house'' didn't take a cut of the money involved in each poker hand.

Police said the gathering was not merely a friendly game but an encounter that had been advertised online. They used an informant, armed with $100 in marked bills and recording devices, to gather information.

Could it be that this is the same poker game that First Circuit Deputy Solicitor Don Sorenson was found at in April of 2006? Are police raiding poker games or are police raiding poker games where Deputy Solicitors can be found? I am curious. If anyone can name another instance of a poker-game-raid in South Carolina, let me know. Bonus points if there was a prosecutor playing at the table.

H/T to the Law and Magic Blog.

Earlier this year, a law was passed requiring the S.C. DMV to provide jury lists to the municipal courts, compiled from licensed drivers and holders of S.C. ID cards. Before this law was passed, the jury lists were compiled solely from lists of registered voters, which causes concern for many as registered voters are not necessarily a representative cross-section of the defendant's peers. The DMV, however, has not provided the necessary list of licensed drivers to the municipal courts from which to draw their jury pools, citing "some sort of automation problem," according to Chief Justice Toal.

In response, the Chief Justice issued an order on December 11th stating that, through February 15th, municipal courts should use jury lists created from registered voters only.

The Supreme Court of South Carolina

RE: Municipal Court Jury Lists
--------------------------------------------------------------------------------

ORDER

--------------------------------------------------------------------------------
I FIND THAT Act No. 270 of 2008 amended Code §14-25-130, so as to require that the South Carolina Department of Motor Vehicles (SCDMV) shall provide to the State Election Commission an electronic file of all individuals eligible for jury duty in each municipality who hold a valid South Carolina driver's license or identification card issued pursuant to State law. The State Election Commission is then required to merge this list with the list of registered voters in each municipality and distribute this merged list in October of each year to municipalities statewide for the preparation of jury lists for municipal courts. SCDMV has reported that they are currently unable to furnish the list described above to the State Election Commission, leaving the State Election Commission currently unable to provide municipalities with a jury list in compliance with Act No. 270 of 2008.
THEREFORE, pursuant to Article V, Section 4, South Carolina Constitution,
IT IS ORDERED that, due to the current inability of SCDMV to comply with the provisions of Act No. 270 of 2008, the State Election Commission shall distribute 2009 municipal jury lists comprised only of registered voters in each municipality. Municipalities statewide are authorized to draw juries through February 15, 2009, from lists comprised of registered voters provided by the State Election Commission. Any juries drawn on or prior to February 15, 2009, for cases held subsequent to February 15,2009, are valid pursuant to this Order.
The provisions of this Order are effective immediately and remain in effect through the end of February 15, 2009, at which time it becomes ineffective.

s/Jean Hoefer Toal
Jean Hoefer Toal
Chief Justice
December 11, 2008
Columbia, South Carolina

According to Myrtle Beach Online, "Toal said she has no authority to order DMV to comply with the law." She does however, as the above order indicates, have no problem ordering the municipal courts to disregard the law.

Lonnie Randolph, president of the state chapter of the National Association for the Advancement of Colored People, said Friday the new law was intended to include as many qualified people as possible in jury pools. He said Toal's order doesn't help the situation. "The chief justice, it appears, is on the wrong side of the law," he said. "She is further disenfranchising the citizenry from being entitled to serve on juries, and criminal defendants don't get the jury selection they are entitled to by law."

Hopefully the DMV will get it together by the February 15th date that the Chief Justice has set for the municipal courts. In the meantime, any defendant who has a jury trial in the municipal court should be careful to make a record, objecting to the jury pool as selected by the court as being in violation of state law and the state and federal constitutions.

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.

The "CSI effect" is what prosecutors call it when jurors expect to see physical evidence in a trial that actually connects the defendants to the crime. The idea is, since jurors and the public watch television shows like CSI where the detectives actually use advanced technology to analyze evidence and solve crimes, jurors come into a trial expecting to see physical evidence that connects defendants to crimes, and are disappointed if they do not.

The "CSI effect" is only mentioned when there is no physical evidence in a case. If the state is trying to convict a person using only jailhouse snitch testimony bought and paid for by the threat of prosecution or the promise of freedom, and there is no physical evidence tying the defendant to the crime, then you hear prosecutors talk about the "CSI effect." Don't be fooled, oh jurors, by these television shows which make it look so easy. The truth is that we cannot match fingerprints or test DNA evidence out here in the real world.

Of course, when there is actually physical evidence with which to convict someone, then you do not hear about the "CSI effect," - that is reserved for the cases where they have no case. A recent article on crime scene investigation in South Carolina illustrates how the CSI effect exists only when it is convenient for the prosecution. SLED's DNA lab in this instance invited the media in to show them just how high tech they are, and how helpful their CSI work is in solving crimes:

In the mid-1990s, DNA testing could take months to generate a profile. Now the potential is overnight and analysts can can do it with as few as 10 cells from things like blood or saliva found at a crime scene.

"We use DNA for anything from auto break-ins on to up to homicide," says Lieutenant Bryant Hinson of the Forest Acres Police Department.

"We're doing a lot of good," says Lt. Robin Taylor. "We're solving cases that would not be solved otherwise. It's a tremendous tool."

Anne Reed at Deliberations asks "What do you think judges should do to improve voir dire where you practice?"

In South Carolina, we could begin by having voir dire. Voir dire in our courts, with the exception of capital cases, usually consists of the judge asking 3 or 4 questions of the jury pool, if that. There is no attorney-conducted voir dire, but attorneys can submit questions to the court that the judge may or may not ask, in his discretion.

Typical questions that I usually request and that are approved include whether any potential juror or their immediate family has been a victim of a violent crime, or has been involved in an accident with a drunk driver, depending on the type case. The court will usually ask if anyone is a member of or contributes to law enforcement fraternal organizations. If it is a high profile case, the judge will ask if any potential juror has seen or heard about the case on the news. The only follow up question is whether they can still be fair and impartial, and the answer to this 9 out of 10 times will be, "Of course." Besides these few questions, jury selection is based on occupation, spouses occupation, and responses to the questions asked by the judge during the qualification of the jurors.

One of the arguments against attorney conducted voir dire is that it would take up too much of the court's time. I have to disagree with this. The court can and does set time limits on voir dire, which can range from 15 minutes to an hour or more, depending on the complexity of the case or the request of the attorneys. An additional hour taken in voir dire would hardly be excessive compared to the benefits to both parties in ensuring a fair trial.

If we were to implement attorney conducted voir dire, one immediate problem would be that most attorneys have no idea how to conduct voir dire, since they have never been allowed to do it. After a rocky start, however, lawyers would learn and improve with practice, and judges would certainly set ground rules and monitor the process. With some practice and a few CLE's under our belts, this would not be an issue for very long.

Choosing a jury in a criminal case, for defense and prosecution alike, is very nearly a random process in South Carolina. Defendants, and the State, have a right to an impartial jury to hear their cases, and allowing attorney conducted voir dire would go a long way towards accomplishing this.

I am interested in hearing whether other defense attorneys or prosecutors have strong feelings on this one way or the other. I know that it has been debated in the past, and I think that we should keep the conversation alive. I believe that it has been proposed in the legislature and failed, but does this have to come from the legislature? Could it be instituted by court rules instead? What would it take to get attorney conducted voir dire in our state?

Surely all jurors see their role in the courtroom differently, depending on where they come from and each juror's unique perspective. This is why attorney-conducted voir dire is so important in selecting a jury, for the state and the defense. Except that we do not get attorney-conducted voir dire in South Carolina.

There is no doubt that many Horry County jurors see it as their civic duty to convict someone when they are called for jury duty, and it is an uphill battle trying to educate the jury on the presumption of innocence and the right to proof beyond a reasonable doubt. I have watched a solicitor tell the jury in closing argument (not my case and the defense attorney did not object) that they "worked for the government now," and it was their duty to convict the defendant.

The jury does not work for the government. The most precious and important rights in our Constitution are the right to a trial by jury and the right to proof beyond a reasonable doubt. The jury's role in the courtroom is to shield the citizen from the incredible power of the government, and to make sure that the government proves its case beyond a reasonable doubt, the highest standard of proof in our system of justice.

Because the prosecutor has all of the power, they can force witnesses to testify by threatening prosecution and by offering them freedom - so we have the right to proof beyond a reasonable doubt. Because the prosecutor has the weight and resources of the entire state standing behind them, with practically unlimited resources and manpower to make a case against a defendant, we have the right to a trial by jury, so that 12 people are there to stand between the power of the government and the defendant.

Because there are times when prosecutors put lying witnesses on the stand to testify to a jury, offering them years of freedom in exchange for their perjury, and because judges are unwilling or unable to stop such testimony, there are times when the only thing standing between a citizen and a wrongful conviction is a jury of 12 people, and their ability to hold the government to its burden of proof.

It may be that when the government does meet its high burden of proof it is the jury's duty to convict a defendant. But the jury does not work for the government, and their role is to make sure that the government meets that burden of proof before it can take away a person's livelihood, their family, and their freedom.

The South Carolina statute that makes it a crime to transfer alcohol to minors also contains an exception for when the minor was recruited by law enforcement to buy the alcohol:

§ 61-4-90. Transfer of beer or wine for underage person's consumption.

(A) It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption of beer or wine in the State, unless the person under the age of twenty-one is recruited and authorized by a law enforcement agency to test a person's compliance with laws relating to the unlawful transfer or sale of beer and wine to a minor.

There is a companion statute with the exact same language:

61-6-4070. Transfer to person under the age of twenty-one years.

(A) It is unlawful for a person to transfer or give to a person under the age of twenty-one years for the purpose of consumption of alcoholic liquors in the State unless the person under the age of twenty-one is recruited and authorized by a law enforcement agency to test a person's compliance with laws relating to the unlawful transfer or sale of alcoholic liquors to a minor.

FYI for anyone that has one of these cases, where SLED or the Sheriff's Department sends kids in to buy beer in a sting operation; does anyone see a way that this does not mean what it says?

At a NACDL conference today in Houston, TX, I was privileged to hear a federal judge say: "Judges are not the government . . . I don't know if there is a greater role that an Article III judge can play than to stand between the citizen and the government."

I think that we take it for granted that many judges not only see themselves as agents of the government, but also see their role as "law enforcement." Many federal judges are appointed from the U.S. Attorney's office, many state judges are elected from the solicitor's office, and many non-lawyer magistrates are appointed from either law enforcement or the probation office. It is only natural that they will have a prosecution or law-enforcement bent to their ideology, which may or may not change over time.

But the judge is supposed to be a neutral and unbiased arbiter, and (ideally) is looked up to by the public and the people who appear before them as the one person who has the power to ensure that what happens in the courtroom comes as near as possible to achieving Justice, and that the rights of the litigants, including defendants, are not trampled on.

I always assume that even the most prosecution biased judges do not see themselves as biased, and that they are attempting to do the right thing, based on their own concept of Justice. But, wouldn't the landscape change and the likelihood of Justice being achieved increase exponentially if all judges could say the same as this federal judge today. If all judges could see themselves as truly neutral in the struggle between the government and the rights of citizens rather than as an arm of law enforcement?

It is the job of the defense attorney to argue and persuade the jury to acquit our client, and to argue and persuade the court to preserve and protect the rights that we are given under the Constitution. But our arguments and persuasion are for nothing unless there are judges, in the trial courts or in the appellate courts, who are willing to hear them.

For the past few months, we have been working around the clock on a double homicide that we tried this past week. The following is now part of the public record in this case: There were three defendants; at the close of the state's case one defendant received a directed verdict on all charges and my client received a directed verdict on half of his charges. We went to the jury on the remaining charges and after 10 hours the jury deadlocked. We will retry the case whenever the state is ready, which could be next month.

During the trial, one state's witness told the jury that the police had threatened him and then told him what to say. He recanted his story on more than one occasion, and recanted it at trial on the stand. Another state's witness was recorded repeatedly telling an officer that he was going to do anything they wanted him to do so long as they helped him on his drug charges. This same witness let it "slip" while testifying that he had taken a polygraph, but did not say whether he passed it or failed it. Although the jury never heard the result, it is now a matter of public record that he did in fact fail that polygraph, specifically on the testimony that he was giving to the jury.

Which raises, again, this issue of polygraphs. Although the case that we tried last week will not go up on appeal and so our appellate courts will not yet have an opportunity to look at this particular issue, South Carolina defense lawyers should be alert to this admittedly narrow issue, where one party's witness has failed a polygraph and mentions the test but not the result on the stand, and be ready to make a record when it arises. The S.C. rule, in State v. Council, 335 S.C. 1, is that polygraphs are not sufficiently reliable to be admissible in court. I agree with this rule. As I have discussed before, polygraphs are not reliable and, although prosecutors and law enforcement often say that they swear by them, they typically ignore the results unless they are favorable to them. More often than not, the polygraph is used as an interrogation tool rather than a truth-seeking tool. But, there are exceptions to every rule, and I believe that there are limited circumstances when the result of a polygraph should be admitted at trial. One example is where a witness makes the mention of a polygraph but not the test result, where the mention of the test result would be prejudicial to that witness or the party who has put up his testimony.

In a situation where a witness mentions taking a polygraph, but the jury never hears the result, the jury is going to assume that that person passed his polygraph, for two reasons: first, the prosecutor surely would not put a witness on the stand who had failed a polygraph, and second, the witness surely would not have mentioned it unless he passed it. If the court gives a curative instruction (polygraph evidence is not reliable and you are to disregard any mention of the polygraph by this witness), it will only reinforce the jury's assumptions that the witness must have passed the polygraph.

Polygraphs are never admissible in court, because there is no scientific consensus as to their reliability, but what happens when a state's witness makes the mention of a polygraph, knowing that he failed it, and the state is then allowed to benefit from it? There are two situations where this "slip" occurs. First, this comes up when an attorney attempts to elicit information that would help his side of the case, for example if a defendant passed a polygraph and he says on the stand, "You know I took a polygraph don't you?" At that point, the defendant could not be allowed to benefit from his mention of the polygraph, whether intentional or not, and the results could not be admitted.

Second, there is the less common situation where the party making the "slip" is actually prejudiced by the polygraph result. What if the defendant had failed the polygraph, and then says on the stand, "You know I took a polygraph don't you?" The results could not fairly be excluded, nor should a mistrial be granted, because either result would allow the defendant to benefit from his mention of the polygraph. If the results are excluded and the trial goes forward, the jury is deceived and assumes that the defendant passed the polygraph. If a mistrial is declared, this would allow any defendant, if the trial was going badly for them, to simply say "You know I took a polygraph," and get a mistrial. The only fair resolution for this particular situation, where the mention is made and it is prejudicial to the party, would be to allow the jury to hear the polygraph result, since the defendant opened the door and could not then be allowed to benefit from his misconduct.

The same standard should be applied where the state's witness, particularly where that witness' credibility wins or loses the trial for the state, makes such a "slip." There are many circumstances where, when a party "opens the door" to otherwise inadmissible evidence, that evidence is then fair game. This is the case when a defendant takes the stand and testifies regarding his character or his propensity to commit a certain type of crime. Ordinarily, evidence of bad character is not admissible against the defendant in a criminal case, but once the defendant opens the door, it is fair game and the prosecutor can cross examine or introduce other evidence of the defendant's bad character.

I don't think that polygraphs should be admissible in court, as a general rule. But in the limited circumstances where a party, state or defendant, puts up testimony of a witness who has failed a polygraph, and that witness mentions the polygraph, that party should not be permitted to benefit by allowing the jury to assume that the witness passed the polygraph and thereby bolstering their witness' testimony.

All of the time. I often have this conversation with friends, family, neighbors, or random acquaintances, and I never cease to be amazed by the perceptions that much of the general public has of our criminal justice system. Cops do not lie. If someone is charged with a crime they must be guilty. A prosecutor would not pursue a case if the defendant was not guilty. If they aren't guilty of this they must be guilty of something.

Cops lie. They are human, they cover up for their mistakes on the job, and they want to look good in court. They are trained on how to testify and look good for a jury. I have met a few police officers who were rigorously honest on the stand, and I have the utmost respect for those individuals, but there have not been many of them.

There are prosecutors who will refuse to seek a conviction if they know that their case is shaky and there is a real possibility that the defendant is not guilty of the crime. These prosecutors understand that they have a higher calling and that their ethical duty is to seek justice and not convictions. But there are also many prosecutors who will seek a conviction and ignore obvious signs that they are prosecuting the wrong person; possibly they fear for job security or fear media exposure, they have political aspirations, or perhaps they simply lack empathy and compassion, I do not know.

Everyone is guilty of something. But please, let's prosecute and convict people for the things that they actually did. "If they aren't guilty of this they must be guilty of something," coming out of a prosecutor's or police officer's mouth, makes me feel ill.

The passage of the South Carolina DNA testing bill gives me some hope that in the future we may identify more persons who have been wrongfully convicted, but its application is limited to those cases where there is DNA evidence to test, which covers only a small percentage of all cases in the system. We need to work harder to prevent wrongful convictions on the front end, by looking at what is causing them and working to change it.

We can look to the post conviction exonerations in Texas and other states around the country to see what the leading causes of wrongful convictions are: the front runners are faulty eyewitness identifications, Brady violations (the prosecutor or the police withholding evidence that would prove the defendant's innocence), and jailhouse informants.

When the state (police or prosecutor) holds back evidence that would help the defendant, in violation of Brady, the system breaks down. The jury cannot make an informed decision if they do not see all the evidence. If the state uses witness testimony that it has every reason to know is perjured, the system breaks down. When the prosecutor buys testimony with the threat of prison or the promise of freedom, that testimony is suspect. When the police feed information to a witness that fits their theory of a case, instead of searching for the truth, that witness cannot be reliable.

I have seen police and prosecutors, who usually swear by polygraphs and their reliability, ignore polygraph results when they do not fit their theory of a case. Because the courts have consistently ruled that the polygraph is unreliable, juries will never hear the results of these tests, whether it is the defendant passing a polygraph, or a state's witness failing one. And I don't complain about the inadmissibility of polygraph results, because it is a two edged sword - in cases where the defendant fails a polygraph or a state's witness passes one, the jury should also not hear the results. But what does this say about the integrity of the system, if the prosecution ignores the results during the course of an investigation only when it is convenient to them?

Extensive research has been done on eyewitness identification procedures, and information is readily available on what works and what does not work. National law enforcement organizations have made available training and information on best practices, and yet local law enforcement often continues to ignore the data. Courts are decades behind the research in what is admissible as evidence and in what instructions should be given to juries.

I believe that the prosecutor's duty to seek justice and not convictions mandates that they should not go forward when they know that the defendant cannot be guilty beyond a reasonable doubt. When a prosecutor knows that their case is full of holes and that there is a substantial likelihood that their defendant did not commit the crime, and yet they still proceed with the prosecution, they are attempting to deceive the jury and it is a perversion of justice:

Sometimes, the requirement of proof beyond a reasonable doubt is not good enough to ensure that innocent persons are not convicted. When a person is accused of murder, armed robbery, or any serious offense, it is difficult for jurors to hold the state to their burden of proof, and the defendant truly has to prove his or her innocence. In most cases, the prosecutor has quite a bit of credibility with the jury, and they want to believe that what the prosecutor is saying is true. The prosecutor would not tell them this person is guilty if it were not true, and surely the prosecutor would not put a witness on the stand that would not tell the truth?

When there is scant evidence of guilt other than a jailhouse snitch, and there is DNA evidence placing another person at the scene of the crime, do we blame the prosecutor for going forward with a case knowing that the jury may convict an innocent person? In South Carolina the Solicitor is an elected official, the media is watching, and the public demands a conviction. I can understand why prosecutors go forward with these types of cases, and rely on defense attorneys, juries, and judges to ensure that justice is done. But justice in a criminal case begins with prosecutorial discretion.

Defense lawyers are on the front lines in preventing wrongful convictions. When police lie, we have to find a way to expose it to the court and to the jury. When prosecutors insist on going forward with what should be insufficient evidence, or with suspect witnesses, we have to find a way to expose it to the court and to the jury. We have to educate the court and the jury on reliable eyewitness identification procedures, and make sure that jurors understand just how precious our right to the presumption of innocence and to proof beyond any reasonable doubt is to our criminal justice system.

Last week, Gerry Spence posted Winning - the simple secret, in which he says the most important thing that we have when talking to jurors is credibility: "So how can you win your next case? How can you win your next argument—in the courtroom or at home? How real and how credible can you be?"

Soon after, A Public Defender offered us The secret to winning: Gideon-style, which consists of:

Gideon’s secret to winning: Knowing your rear from your face, or, preparation.

I mean, really, that’s your only shot. Know the State’s case inside out. Know the allegations, the witnesses, the police reports, the statute and your theory of defense. You have to prepare, prepare, prepare.

Gideon then tagged a few other bloggers to offer our advice on the topic as well, and my response is here. This turned out to be an interesting project, and I am glad for it - I have learned a thing or two from our fellow bloggers and Hostis Civitas is right, everyone has their own style and methods.

Houston criminal defense lawyer Mark Bennett tells us the secret to winning - Bennett style: solve the puzzle with which the case presents you, which requires inspiration:

prepare just enough, then stop. Don’t just do something, sit there. Play with the kids. Just play. Read a book — something non-law-related. Write a poem. Take the dog for a walk. Get some exercise. Sleep.

Public defender Hostis Civitas says that "rather than discovering our story we are busy retelling their story;" we need to throw out the government's story and develop our client's story - an excellent point considering how often attorneys end up relying on what is written in the incident reports. He also points out that what works for me may not work for you and may not work for anyone else - everyone has their own method and their own style.

AHCL gives us a prosecutor's perspective, with excellent points for prosecutor or defense attorney: 1) Be yourself; 2) Get off the high horse; 3) Know the facts of the case like you were there when it happened; 4) Issue spot, issue spot, issue spot; 5) Meet with every last witness you are going to put on the stand; 6) Get yourself some theme music; 7) Don't be afraid to show a sense of humor during lighter moments; 8) Always be the "Good Guy;" 9) Be passionate; and 10) Be right.

New York defense lawyer Scott Greenfield's advice is "to see each case, each defendant, as unique. Approach it as if it's the only case you've ever done, the only defendant you've ever represented, and figure out what makes it different from all the rest."

Maryland defense attorney Jon Katz says that

. . . secrets are not really secret, but are readily available information, open things, but things that tend to pass unnoticed . . .

In the same vein, there probably are not any secrets to winning trials, but there are skill sets to learn, revelations to find, new levels of caring to attain for clients, more fearlessness to gain, more internal and external journeys to take, more joy to experience on the path, more ego to shed, more willingness to collaborate with other lawyers and non-lawyers in seeking the path to victory, and more of the tapping of the joy, fearlessness, and giggling of the child within.

My trio on this path is the overlapping lessons and practices from the Trial Lawyers College, t'ai chi, and the peace and harmony experienced even when walking into the eye of the storm as exemplified by Jun Yasuda.

Omaha criminal defense lawyer David Terrell remembers Don Fiedler's performances at NCDC, and his lesson which was:

Work hard, behind the scenes, until the performance on the stage looks effortless and perfectly summarizes your client’s story for the jury.

Although I am glad for all of the responses to Gideon's call, I'll leave you again with Spence's most recent posts, as he did after all write the book on winning your case: you must not give your opponent permission to beat you, and attempting to frighten or anger your adversaries will only result in motivating them, making your case more difficult.

Thanks to all.

The Aiken Standard yesterday reported that an Aiken man, represented by Theo Williams, was found not guilty of criminal sexual conduct on a minor and assault and battery of a high and aggravated nature. There was no forensic evidence, the alleged victim could not identify the defendant, there was semen discovered but it did not match the defendant, the defendant cooperated with the police and even consented to a search of his vehicle and consented to give a DNA sample.

So, why did prosecutors bring this case? The very real danger in any case that involves a crime against a child, murder, or rape is that the jury will convict by virtue of the fact that the prosecutors and police say the person is guilty. Jurors want to believe that cops are honest and that prosecutors would not bring a case if there was not a good reason, and they do not want to risk releasing a dangerous person that will kill or rape again. This is how innocent persons get convicted.

The media always reports guilty verdicts, they report when arrests are made, and they report whatever damning evidence is released pre-trial by the police or prosecution. But rarely do they publish an article reporting a not guilty verdict. It would be refreshing to see the media reporting and increasing public awareness on what makes our system of justice the best in the world, reporting on the presumption of innocence, reporting on how we are all protected by the reasonable doubt standard, and reporting, like the Aiken Standard, when an accused person is found not guilty.

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.

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution.”

- Thomas Jefferson

Via Jonathan Turley: A federal judge in Boston removed a juror, Thomas R. Eddlem, from a cocaine trafficking trial after receiving several notes from the jury indicating that Eddlem was questioning the constitutionality of a federal prohibition on cocaine possession.

Given that it took the 18th Amendment of the US Constitution in 1919 to pave the way for Prohibition, a juror wanted to know from the judge, where "is the constitutional grant of authority to ban mere possession of cocaine today?"

A valid question and possibly a valid argument, but wrong time and wrong place, according to U.S. District Court Judge William G. Young. The judge, concerned that he was witnessing a case of jury nullification, removed the juror from the case and replaced him, after which the newly constituted jury dutifuly convicted the defendant.

Eddlem, on the other hand, says that

he opposes jury nullification and that it was the judge who subverted the legal system. Eddlem, a self-described right-winger and research director from 1987 to 2000 for the John Birch Society in Appleton, Wis., said Young distorted the plain language of the Constitution to justify a prosecution that had no basis in federal law.

"I was like Alice talking to Humpty Dumpty in 'Through the Looking Glass,' " he said, referring to his confrontation with the judge.

Lawyers cannot argue jury nullification, and, in today's courts, judges regularly instruct jurors that their job is to judge only the facts. Interpretation of the law (and constitution) is reserved to the judge, and if the judge makes an error there is a higher court that can review the case and correct those mistakes.

I agree that the constitutionality of federal drug statutes is not something to be debated in the jury room. But jury nullification remains a right that jurors have. Lawyers cannot utter the words or argue for it, but does a judge cross a line when he removes a juror from a case for exercising his right to disagree with a law? Does removal of a juror who the judge realizes is about to vote not guilty deprive the defendant of his Sixth Amendment right to a trial by jury?

There is no one secret to winning your case. I devour all information from all persons wiser than me who are willing to share their winning trial strategies, and I believe each person must adapt their knowledge and their own individual style to each case. I am a work in progress and probably will always be, but here is some of what I have picked up thus far:

1) Learn from others who know more than you do. Learn cross examination skills from Pozner and Dodd. Learn DUI defense from Larry Taylor. Learn to be real from Gerry Spence. Watch other lawyers try cases every chance you get (if only to see how not to do it, sometimes).

2) Experience > all. Try cases. You don't have to win every case, and unless you are able to cherry-pick your cases and have enormous amounts of time and resources you won't win every case. If you're not losing cases, you're not trying cases.

3) Know the law. In South Carolina we have a thing called E-blast, which is a mass email that contains the advance sheets. I read every criminal decision as they are released, and try to blog about the important ones, because it helps to solidify them in my mind. I read and re-read the statutes clients are charged with every time I open a new case.

4) As Gideon says, preparation is key to everything that you do in the courtroom. If you worked nights and weekends preparing your case for trial and covering every base, odds are you are miles ahead of the other guy. If it comes down to who the jury trusts at the end of the day, they may be more likely to trust the attorney who knew the case inside out and conveyed confidence throughout the trial. If it comes down to who the judge trusts, he or she may look to the attorney who knew the case law and was not making it up as he went.

5) It is best to win without fighting. Preparation and investigation long before trial can often help to persuade the prosecutor to dismiss your case, or to make you an offer you cannot refuse. If your prosecutor is trustworthy, put your evidence together early and lay it out for them; give them a reason to not take your case to trial.

6) We are storytellers. Improve your ability to tell your clients' stories, and do so every chance you get, to the prosecutor, to the judge, and ultimately to the jury. Always have a theory that you present to the jury, because if you do not the jury has no choice but to absorb the prosecutor's theory.

7) Tell your client's story through the prosecution's witnesses. Facts that support your theory have a much greater impact when they are heard from the prosecution's witness and not your own. Whenever possible, prepare cross-examinations first and work outwards from them.

8) Most importantly, care about your client and what happens to them. If the man sitting next to me is "my friend, John," as opposed to "the defendant," the jury will be less likely to convict them, and the judge will be less likely to hammer them at sentencing. Let the jury see that you believe in your client and your case, and possibly they will believe in your client as well.

I am interested in reading others' opinions on the topic as well, and at Gideon's request I'll link to three bloggers I would like to hear from - the paid defense attorney, the public defender, and why not a prosecutor as well:

Underdog John Katz;
Hostis Civitas; and
Western Justice.

"I swore that I would do whatever it takes to make sure my clients received some sense of justice..."

Public defender Hostis Civitas has found new inspiration after attending the Trial Lawyer's College, watching with new eyes as defendants pleading guilty are processed one after the other through "the machine," some guilty, some not guilty, some shades of guilty that did not warrant the harsh punishment they received, all branded as criminals and felons for the rest of their lives, some standing by paid attorneys that they trusted with their lives.

There are times when judges and prosecutors show a decided lack of compassion when passing judgment on individuals they don't know or understand, but many of us have come to expect a lack of compassion on their part. When the prosecutor or the judge shows compassion and insight, it is a breath of fresh air and never goes unappreciated. But when a client feels that they cannot rely on their defense attorney, their lifeline to freedom, something is terribly wrong.

I have met many attorneys who care deeply for their clients and seek not only justice, but the best possible outcomes for their clients. They work long hours, they return their client's calls, they investigate their cases, they listen to their clients, and they are not afraid to try cases. I have also met many attorneys that have no business in any criminal courtroom, standing without empathy next to a person they do not see, whose freedom and future is in their hands.

Criminal defense is easy money if an attorney takes on many cases and pleads every client. It is the same as the plaintiff's attorney who takes on many cases and settles all of their cases for low amounts. Each case may generate a smaller fee, but considerably less time has to be spent on each case resulting in a higher overall income. But there is no justice in this "business model," and these clients would probably do just as well without an attorney.

A local attorney told me recently that most of his clients' cases resulted in pleas and that he felt that was how it should be. He said that he sees his job as that of a broker, acting as a go-between for his client and the government, and achieving the best plea deal possible. I hope that he tells his clients this up front - I don't believe my clients retain me to be a broker in most instances. I believe they retain me because they have seen or heard something that impressed them and they expect me to obtain the best results possible in their case.

"The machine" has negative connotations, but the criminal justice system (to some extent) is a necessary part of society. If defense attorneys do their part in challenging their clients' cases, if prosecutors do their part in the pursuit of justice as opposed to only seeking convictions, and if judges remain truly impartial when ruling from the bench, the machine might work as intended.

An article today in the Boston Globe titled How Magicians Control Your Mind discusses what we can learn about perception and the workings of the mind by looking at how magicians can short-circuit our perceptual system to make us see things that are not there or miss things that are there.

It is difficult to explain to a jury how a person can convincingly and confidently testify as to what they saw, and yet be wrong. The problems with eyewitness identification are far enough from the ordinary knowledge and experience of jurors that it requires an expert to adequately explain it. Scientific research has demonstrated that we do not always see what is actually there; rather we see some of what is there and our minds manufacture the rest, based on our prior experiences and what our mind expects to see. For example,

Daniel Simons, a psychologist at the University of Illinois, did a series of now-famous studies in the late 1990s that showed the extent of this cognitive blindness. In one, people were approached by someone asking them for directions, only to have, in the middle of the conversation, that person replaced by another. Only half noticed the change.

Magic may be a way to illustrate the inherent problems of eyewitness identifications in a way that jurors can understand. Everyone has seen a magician perform tricks that could not be explained, and wondered "how did he do that?" In the same way that an eyewitness may believe he saw the person that he expected to see, or the eyewitness may believe he saw that person that a detective has shown him after the incident, magicians use the gaps in human perception to make us see and believe things that were not there. For example,

The vanishing ball illusion is one of the most basic tricks a magician can learn: a ball is thrown repeatedly into the air and caught. Then, on the final throw, it disappears in midair. In fact, the magician has merely mimed the last throw, following the ball's imagined upward trajectory with his eyes while keeping it hidden in his hand.

Because the mind expects to see the ball rising in the air, and the magician's eye is following the trajectory of the ball, our mind sees a ball rising in the air. After the trick is done, we know that something is not right, because the ball has disappeared; however, when a person's mind similarly fills in the gaps in perception following an eyewitness event, the belief that a particular person or thing was seen is reinforced by law enforcement, a photo array, the subsequent appearance of the person seen in the photo in the courtroom (sitting at the defense table), and the witness then testifies convincingly in his belief that he saw what his mind tells him he saw.

I have just finished reading The Writer's Journey: Mythic Structure for Writers, by Christopher Vogler, which gives a fascinating breakdown of the elements of effective storytelling. Although the book is geared towards screenwriters, novelists, and storytellers, I would say it should be required reading for any trial attorney as well. The single most important thing that we can do for our clients is to be effective in telling their story, whether it is to the prosecutor, the judge, or especially to the jury, and this book gives some powerful insight into what makes for an effective presentation.

The basic premise is that "all stories consist of a few common structural elements found universally in myths, fairy tales, dreams, and movies. They are known collectively as the Hero's Journey." The author draws on the work of mythologist Joseph Campbell (The Hero of a Thousand Faces) and psychologist Carl Jung, finding that repeating characters or energies called archetypes appear throughout our dreams and throughout the myths and stories of cultures across the world, that these patterns spring from a collective unconscious of the human race, and that when used effectively they can tap into human emotion in a profound way.

Vogler's focus is on the movie industry, and he illustrates his framework with various films of every genre, from Hitchcock to Disney to Star Wars. Over the ages, every story that is told is in essence variations of the same story, told over and again. Although all of the details in this book cannot be incorporated into every client's case, I think that understanding this framework will be invaluable in helping to convey each client's story to the jury.

Apart from the usefulness in trial practice, this topic is fascinating. Although my reading list grows longer every day, I intend to come back to this and follow up with Joseph Campbell's book and Carl Jung's ideas.

Former Greenwood County Magistrate Lisa Cain was found not guilty of misconduct in office this week. Cain was accused of knowing that an employee was stealing money and not reporting the theft.

The employee, who stole $23,000 from the magistrate's office and has been charged with embezzlement, has not been to trial yet and she testified for the government at Cain's trial. What are the odds that the thief, who works in the court system and knows how the system works, saw the opportunity to cut a deal and told the prosecutor whatever they wanted to hear?

It was more important to the prosecutor in this case to try and get a conviction against the "big fish" Lisa Cain than it was to prosecute the person who actually stole the money. Obviously, the jury disagreed.

A new law has been passed in South Carolina that stops the practice of alleged victims signing as affiant on arrest warrants. The new S.C. Code Section 22-5-115 still allows complaining witnesses to provide affidavits to the magistrate, but the magistrate is authorized only to issue a courtesy summons and not a warrant for the subject's arrest:

(A) Notwithstanding any other provision of law, a summary court or municipal judge may issue a summons to appear for trial instead of an arrest warrant, based upon a sworn statement of an affiant who is not a law enforcement officer investigating the case, if the sworn statement establishes probable cause that the alleged crime was committed. The summons must express adequately the charges against the defendant. If the defendant fails to appear before the court, he may be tried in his absence or a bench warrant may be issued for his arrest. The summons must be served personally upon the defendant.

However, there are additional requirements that must be complied with for these types of summons to be issued:

(1) an affidavit that establishes probable cause;
(2) a description of the charges against the defendant;
(3) the date, time, and place of the trial;
(4) the name of the issuing officer;
(5) the defendant's and affiant's name, address, and telephone number;
(6) the date and location of the incident; and
(7) notice that the defendant may be tried in his absence or a bench warrant may be issued for his arrest.
(C) A summons issued pursuant to this section must be tracked in the same manner as an arrest warrant.

At least, this will put a stop to the practice of angry neighbors or people with an axe to grind putting people in jail without the involvement of law enforcement. I predict that there will be a decrease in these types of cases once people learn that it is not an easy way to punish your enemy by having them locked up. But the question still remains, who will prosecute these cases when there is no prosecutor or officer involved?

If the defendant is brought into court on a criminal summons issued by a magistrate at the request of a private citizen, the State is still the prosecuting party, not the complaining witness. It is still unauthorized practice of law, punishable by up to 5 years under South Carolina law, for the complaining witness to represent a party (the State) in court.

If South Carolina's Court Administration, which governs the operation of the state's magistrate and municipal courts, were to look at this issue and instruct the magistrates on the impropriety of allowing complaining witnesses to act as state's attorneys, this problem would be solved. These cases have to have a prosecutor assigned to them if there is no arresting officer.

I've been reading the Just Cause Law Collective website (thanks to Windypundit), which is an excellent resource on how to handle police encounters. They also have a book for sale at a reasonable price.

One thing that they stress is the magic words you must use during a police encounter. When an officer is trying to engage you in conversation after you have been stopped (whether a traffic stop, walking down the street, at a friend's house, at the shopping mall), you need to say "am I free to go?" The Fourth Amendment does not come into play until you have been "detained," and during a "consensual encounter" with the police you do not have any Fourth Amendment protections. If you say "am I free to go?" and the officer says, "yes you are," then leave. If the officer says "no you are not," then you know that you are now being detained and the Constitution applies.

Example:
Cop: Can I ask you some questions?
You: Am I free to go?
Cop: I just want to talk to you.
You: Am I free to go?
Cop: You are free to go, just let me ask you some questions.
You: (Walking away) Bye.

On the other hand, if you are not free to leave - the officer says no, or if you have already been transported to the police station, my advice has always been to immediately assert your right to counsel and your right to remain silent and then say no more. Once you ask for an attorney, they cannot legally question you further until you have been given an attorney.

Law Collective suggests that you ask "why," when the officer says you are not free to go, for purposes of later establishing that there was no reasonable suspicion for the detention, provided there are witnesses to hear his response.

This is complicating things a bit. I propose that once you know you are not free to go, you keep it simple and say "I want my lawyer" and nothing more. Don't waffle, don't say "maybe I should talk to a lawyer," or "do you think I should call my lawyer?" It needs to be clear and unambiguous, "I want my lawyer."

Example:

You: Am I free to go?
Cop: You aren't going anywhere until I get some answers.
You: Then I want my lawyer.
Cop: Why would you want a lawyer unless you're guilty?
You: I want my lawyer.
Cop: If you just talk to us now, we can help you. If you lawyer up there's nothing I can do to help you then.
You: I want my lawyer.

It doesn't matter if you are guilty or innocent, odds are if an officer or detective is questioning you they think you are guilty. They are not trying to clear your name, they are trying to gather evidence against you and will try to trick you if they can. Either they are already planning on arresting you and want more evidence, or they don't have enough evidence to arrest you and they are looking for statements to justify their suspicions. The law collective also has a good collection of common lines and techniques that cops use during interrogations.

Our magistrates are allowing private citizens to prosecute criminal cases. I have not seen much resistance to this by the bar, but I think we need to put a stop to it. The typical scenario is:

An individual feels wronged, is assaulted, employer is mad at employee, neighbors have a dispute, family members fight, etc. The most common cases are assault and battery, trespass, breach of trust, harassment, or unlawful use of telephone. Police are called, they investigate but do not find sufficient evidence to make a charge. The officer informs the complaining witness that they are not going to charge the subject, but informs them that they can apply to the magistrate for an arrest warrant. This seems to be a way to placate the complaining witness so that they are not completely dissatisfied with the police and courts, and so that they do not make a scene with the officer.

The officer's incident report will usually reflect that the case is administratively closed, sometimes saying specifically that the reason is for lack of evidence, and that the "victim" was advised to apply to the magistrate for a warrant. The complaining witness goes to the magistrate, who issues and signs a warrant for them, which is then served on the now defendant.

When the defendant arrives on his court date, the judge treats them as if they are litigants in a civil action, except the end result could be a criminal conviction, not a civil judgment. When the defendant retains an attorney and requests a court date, often the complaining witness does not pursue the case, fails to appear at the roster meeting and on the trial date, and the case is dismissed.

Sometimes if the complaining witness does show up on the trial date, an assistant solicitor in the magistrate court will pick up their case even though it is not of the type they are there to prosecute, and regardless of the merits of the case. But when a prosecutor does not pick up the case, some magistrates are allowing these complaining witnesses to prosecute the cases themselves, making motions, arguments, cross-examining witnesses, etc. I have watched a local attorney allow this to happen without objection, and try a case against a private citizen (and the defendant was convicted on one of two charges).

By allowing private citizens to swear out warrants, anyone is permitted to perform the function of a law enforcement officer, investigating a crime, then presenting their evidence to a magistrate who then signs an arrest warrant. But what happens then if there is no prosecutor to pick up their case? Can they then perform the function of a prosecutor representing the State in a criminal action? S.C. Code Sec. 40-5-310 makes the unauthorized practice of law a criminal offense punishable by up to 5 years in prison:

No person may practice or solicit the cause of another person in a court of this State unless he has been admitted and sworn as an attorney. A person who violates this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.

The right of pro-se representation is preserved by S.C. Code Sec. 40-5-80, which says:

This chapter may not be construed so as to prevent a citizen from prosecuting or defending his own cause, if he so desires.

However, it is the State who is the plaintiff in a criminal action, not the complaining witness. If an individual is wronged, they can seek redress in tort, and they have the right to represent themselves. This statute does not give to individuals the right to represent the State against a person charged with a "public offense." S.C. Code Sec. 17-1-10 states:

A criminal action is prosecuted by the State, as a party, against a person charged with a public offense, for the punishment thereof.

In re Lexington County Transfer Court summarizes the limits of unauthorized practice of law in the context of criminal prosecutions, holding that:

The representation of a party in a guilty plea in transfer court requires the presence and participation of legal counsel. Narrow exceptions to this general rule have been recognized in magistrates' courts. State v. Messervy. 258 S.C. 110, 187 S.E.2d 524 (S.C. 1972) (arresting officer may prosecute case in magistrates courts); State Ex Rel.McLeod v. Seaborn, 270 S.C. 3 ) 17, 244 S.E.2d 3 17 (S.C. 1978) (Messervy exception extended to include a supervisory officer of the arresting officer); State v. Sossamon, 29S S.C. 72, 378 S.E.2d 259 (S.C. 19S9) (Messervy exception limited to arresting officer and his supervisor, and request to extend Messervy exception denied).

Complaining witnesses are not parties in a criminal prosecution. The State and the defendant are the parties. Unless the complaining witness is an arresting officer or their supervisor, they cannot prosecute a criminal case.

Believe it or not, cops will lie on the witness stand to get convictions and to cover their asses. For example, cops learn over time what statements will get them past a motion to suppress, those facts get copied and pasted from one incident report to another, and the cop will testify to them at trial. "I smelled the odor of burnt marijuana." (Whether or not weed is ultimately found.) "The subject appeared very nervous, fidgeting from foot to foot, would not make eye contact, began sweating profusely, and I noticed his hand was shaking as he took out his wallet."

When it is the defendant's word against the cops, the defendant typically loses. Because cops are trustworthy, credible witnesses(?). Defense lawyers know the cop is lying, the prosecutor knows the cop is lying, and the judge knows the cop is lying - they all have seen it enough times. But unless there is proof that the cop is lying, the judge will rule in the government's favor or the jury will take the cop's word for it.

In a trial last Friday in Los Angeles, the officers testified that they had chased the defendant from his apartment and watched him throw down a black box, which they picked up a few feet from the defendant and discovered that the box contained drugs. But they did not realize that the defense lawyer had obtained video of the incident from a surveillance camera, which showed multiple officers searching for more than 20 minutes before one claimed to have found drugs.

"Be creative in your writing," the officer appears to tell another after the discovery.

"Oh yeah, don't worry, sin duda [no doubt]," comes the reply.

This case just underscores the importance of an independent investigation - if the defense had not found this video, no-one would have believed the defendant and, although the defendant and possibly the attorney would have known that the cops were lying, they would not have been able to prove it.

There are a few officers that I have the utmost respect for that are candid and take painstaking care to tell the truth to me, to the prosecutor, and on the stand. And then there are the rest.

Last Friday, in Pleasant Glade Assembly of God v. Shubert, the Supreme Court of Texas overturned a jury award of $300,000 damages to a girl who claimed she was subjected to an exorcism against her will. There were minimal physical injuries, some cuts and bruises, but the damages were based on emotional distress, which the Court held are not compensable in this type of case.

The Court essentially said that the religious nature of the claim could not be separated from the secular portion of the claim, and that the courts could not decide religious questions:

We have previously said that adjudication of this type of claim “would necessarily require an inquiry into the truth or falsity of religious beliefs that is forbidden by the Constitution.” This type of intangible, psychological injury, without more, cannot ordinarily serve as a basis for a tort claim against a church or its members for its religious practices.

The flip side of this argument, as expressed by Eugene Volokh, is that the religious question can be separated from the tort itself and the damages that flow from it:

The plaintiff alleges -- and the jury apparently believed her -- that she was held down against her will. That's false imprisonment and assault. She also alleges that this physical restraint led to emotional distress damages. This is not a case such as many of the ones the majority cites, in which the emotional distress stemmed from religious speech, or shunning by the community, or other such conduct that is and should be substantively constitutionally protected. Rather, the case involves nonconsensual (or so the jury found) physical touching, conduct that no constitutional guarantee protects.

What is fascinating to me is the dilemma that this type of issue can create in a criminal case. If the Court's holding is that "an inquiry into the truth or falsity of religious beliefs . . . is forbidden by the Constitution," what happens when a person is charged with a crime and the truth or falsity of their religious beliefs goes to the heart of their defense?

Historically, the case that has generated the most attention and controversy would be that of Annelise Michel, who died following a series of exorcisms in Bavaria that were sanctioned by the Catholic Church and spanned a 10 month period. The case was immortalized in the movie "The Exorcism of Emily Rose," which, although not entirely accurate, was thought provoking and an excellent courtroom drama.

Annelise's parents, a priest, and a pastor were prosecuted for negligent homicide for failing to call a medical doctor during the exorcisms. At their trial in 1978, the parents' attorney Erich Schmidt-Leichner argued that:

the exorcism was legal and that the German Constitution protected citizens in the unrestricted exercise of their religious beliefs. The defense played tapes recorded at the exorcism sessions, sometimes featuring what was claimed to be "demons arguing", as proof that Anneliese was indeed possessed. Both priests presented their deeply held conviction that she was possessed, and that she was finally freed by exorcism just before she died. ( wikipedia.org)

What is the result where an individual is believed to be possessed and a homicide results, either by the person who is possessed or by another individual who believes the victim was possessed? The defendant is entitled to present his defense, and that defense might consist of testimony regarding the truth or falsity of religious beliefs, which may be very relevant as to the defendant's subjective state of mind at the time of the incident and intent to commit a crime, as well as any state or defense testimony regarding psychiatric diagnoses.

If an inquiry into the truth or falsity of religious beliefs is forbidden by the Constitution, will the Courts then exclude the defendant's belief as to the truth or falsity of religious beliefs that are central to his defense? I believe that the defendant's right to present a defense would take priority under the Constitution in this situation. Religious beliefs are a valid defense to varying degrees when it involves issues such as refusal of medical treatment or childrearing practices, and yet I wonder if testimony regarding demonic possession or the practice of Voodoo may be denied by a trial court or not even considered by the attorneys.

After watching the movie and reading about the story of Annelise Michel, I have had this discussion with lawyers, and surprisingly found that many, due to their own religious beliefs, would refuse to even consider presenting defenses that involve demonic possession, or the practice of Voodoo, which arises occasionally in South Carolina. Some refuse to even discuss it. I believe that no matter what our personal beliefs, we have a duty to present any defense that is available to a client and these scenarios, although rare, have a direct bearing on the defendant's intent to commit a crime.

When I first began my career at the public defender's office in Oconee County, South Carolina I had been told that criminal defense, and public defender work in particular, is a thankless job. Many thank you's, cards, and hugs later, and now in private practice in Myrtle Beach, I have to disagree.

Seeing a client dancing with joy when they find out they are being released from jail is one of the most rewarding experiences I have had in this job. Hearing a grandmother whispering "thank you Jesus," her soft voice cutting through the thick silence in-between each of three counts of "not guilty" read by the clerk at the end of a trial is another. I keep a bulletin board in my office with thank you cards pinned to it, and it helps to go to it and read them when times get rough.

If you don’t like your job, and you don’t like your clients, you need to find another occupation – criminal defense attorneys hold their clients’ lives in their hands, sometimes literally. I have found that, for the most part, I like my clients, and they tend to reciprocate. On varying levels, I can identify with most of my clients as human beings.

Another piece of wrong advice that I often hear is don’t get too invested in your clients, and I wholeheartedly disagree with this also. There is something of a sliding scale when it comes to emotional investment in a client and results. If I become a friend to a client, and become emotionally invested in their case, I will fight that much harder to win their case and to get the best result possible, just as I would for a friend or relative who is not otherwise a “customer.” On the other hand, if the investment does not pay off, and if I lose this case, the pain that I feel personally is that much greater as well.

If I remain always detached from my clients and their cases, I can still work hard and analyze their case, I can still take a case to trial and argue legalities, but there is no passion, there is no caring to convey to the jury, and it will be reflected in the odds of achieving the best result as well. I am more likely to lose that case, but I do not suffer when it is lost.

Although there is a balance, and there are boundaries to what can and cannot be done, clients only benefit when their lawyer cares and becomes invested in their defense, and that is how it should be. And, you will get more thank you’s at the end of the day.

There is more to successful criminal defense than knowing the law and having the will to fight for your clients. Another indispensable ingredient to getting good results in any case is knowing and understanding clients. Every client has a different experience and a different story, and that experience must be shared with the prosecutor, the judge, and the jury when it comes to a trial.

The only way to learn that experience and to understand a client's story is to spend time with the client and to talk to them. If I am going to tell a client's story, I have to learn who they are and what makes them that way. I have to learn whether they committed the crime they are charged with, and if so why. I have to accept my clients' calls and always return their calls, learn from my client's families, and meet with my clients in person, even when that means multiple trips to the jail.

I have to be able to persuade a prosecutor, a judge, and a jury that the client is a human being and not just a defendant. The prosecutor, the police, the judge, and the jury will demonize the defendant in a criminal case if they are not told and shown that the defendant is a human being, with a family, hopes, dreams, likes, dislikes, loves, and problems like any other human being has.

The facts that are learned from a client are woven together with the facts that the government provides, and provide the framework for the story that must be told. The facts as presented by the government are cold facts that are unsympathetic to the defendant and that are geared towards obtaining a conviction. My job is to present the facts to the prosecutor, the judge, and the jury through the defendant's eyes, usually a very different perspective from what the police or alleged victims see.

Yesterday morning I arrived at preliminary hearings and, as often happens, the officer sought us out before the prelims got started. Usually, I’ll talk to the officer about their case and gather what information I can, then explain to him or her that I cannot waive the prelim unless they are dismissing the case.

This time, the officer had no problem with recommending to the prosecutor that the case be dismissed. There is another charge pending on the same client, but this particular charge needed to be dismissed. My client was asleep on the couch in a house; the police came in and found some guns and some stolen items in the back of the house. They knew that my client had nothing to do with the items, it was not his house, he was not involved with the weapons and stolen items nor was there any indication he knew they were there, but they arrested him anyway primarily because they believed he was an illegal alien (all but one of the others in the house were).

Now that they know my client is an American citizen, brown skin and all, there is no need to keep him in jail. We waived the prelim this time, and should have the other, older case worked out with the prosecutor soon.

Many local attorneys don’t request prelims, and waive them when their clients request them. The local public defender’s office waives every preliminary hearing without exception. The reasons that lawyers give for waiving prelims are that they are a waste of time; magistrates will not dismiss cases at prelims, and if they do the solicitor can still send the case to the grand jury for indictment.

The problem with this is that some magistrates do dismiss cases at the preliminary hearing, if there is no probable cause for the arrest. Often the solicitor’s office will go back and have the case indicted anyway, but sometimes they do not. If they do, the fact that there has been a judicial determination of no probable cause demonstrates the weakness of their case. And sometimes they don’t indict the case, because preliminary hearings are an easy way to get rid of a dog of a case without dismissing it themselves.

There are situations where the magistrate can find probable cause as to a lesser included offense but not the charged offense. For example, a defendant can be charged with trafficking in cocaine, which requires a weight of more than 10g – if the officer’s testimony does not establish the weight as being greater than 10g, but does establish that there were drugs in the defendant’s possession, the case can be allowed to proceed only as possession or possession with intent to distribute. In property cases like breach of trust or grand larceny, if the testimony does not establish probable cause that the property’s value was greater than $1000, the case can be remanded to the lower court as a misdemeanor.

Prelims are also an opportunity to talk to the officer about the case, and sometimes find that the officer is not interested in prosecuting the case, like our case yesterday. Prelims are a golden opportunity to put the officer on the stand and test them, find out what their testimony will be, and lock them into testimony on the record before trial.

South Carolina law guarantees the right to have a magistrate determine whether there is probable cause for a case to go forward, at an early stage of the case when there is usually no reason a defendant should be waiving any of his or her rights. There is no downside to preliminary hearings.

Polygraph results have consistently been held by the courts to be inadmissible at trial. There are some jurisdictions that allow them under limited circumstances, but in most jurisdictions they are per se inadmissible. The science has not been proven to be reliable, even under the most lenient standards, and the danger of unfair prejudice (confusing and misleading the jury) greatly outweighs any probative value.

Every so often a defense attorney will have a client that passes a polygraph, or a co-defendant or third party that fails a polygraph, and they want desperately for the jury to hear these polygraph results. I have had both situations and have used the polygraph results in pre-trial negotiations, but resist the urge to ever ask a court to admit the results in front of a jury. This is a two-edged sword, and the government’s side of the blade cuts deeper than the Defendant’s. If the courts begin to admit polygraph examinations for defendants, they will surely begin to admit them for the government as well, and you can bet it would happen loud and often.

What are the problems with polygraph examinations? First of all they are not reliable. Contrary to popular belief, they do not tell the examiner whether the subject is telling the truth or lying. They can indicate deception based on physiological reactions to the questions posed, but even an indication of deception or lack of deception can be skewed by an individual’s physiology or the bias of the examiner. Some people are inherently nervous, and others are unshakable. Some people can control their physical reactions.

My biggest problem with polygraph examinations by the government is that they are often nothing more than an interrogation tool. While polygraph results are not admissible in court, statements made by the defendant during the course of the examination probably are admissible. A common tactic is to wire up the subject, begin questioning him or her, tell them that the machine proves that they are lying, and then continue interrogation of the subject until a confession is obtained.

Often clients insist that they want to take a polygraph for the government, to prove their innocence. And I don’t blame them – it may be that they know that they are innocent, and they are convinced, like most people, that polygraphs are infallible lie detector tests that will prove their innocence to the police or the prosecutors. They don’t understand that 1) under the best of circumstances the machines are not 100% reliable, and 2) in the eyes of an FBI agent, SLED agent or investigator for the local sheriff’s department, they are guilty and the polygraph is nothing more than a tool to obtain additional evidence.

This is not to say that polygraphs are not useful, because they are. We use respected independent polygraph examiners in some cases, where a client insists on a polygraph, but rarely will we consent to allow a government polygraph/interrogation. If the results from the independent polygraph examination show no deception, we will allow the government’s examiner to review the charts and discuss the interview with the independent examiner. If the results are not favorable (this does not necessarily mean that the person is guilty), the government does not need to know about it and they do not then have the opportunity to interrogate the client.

Geoffrey Fieger and Ven Johnson were acquitted today on all counts of illegal campaign contributions. Fieger and his attorney Gerry Spence fought a long, hard battle during a 5 week trial, and Spence says this will be his last trial. As Carl Malinga, a former Macomb County prosecutor who was also acquitted of campaign violations, said:

This is the reason we have juries . . . to stop the government when it's out of control. Juries are the conscience of the community.