South Carolina Criminal Defense Blog

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.

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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.

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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.

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“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?

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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.

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"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.

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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.

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Posted In: Jury trials , Wrongful Convictions

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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.

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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.

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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.

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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.

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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.

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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.

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Posted In: Jury trials , Police Misconduct

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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.

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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.

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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.