South Carolina Criminal Defense Blog

The 180 year old historic courthouse in Lancaster, S.C. was burned down earlier this week.

An arsonist accomplished Monday what William T. Sherman couldn't in his notorious "march to the sea" -- burning down the 180-year-old Lancaster County Courthouse.

We have some beautiful historic courthouses throughout South Carolina, and this was truly a loss for Lancaster and the state. The courthouse was built in 1828, and was designed by South Carolina architect Robert Mills, who also designed the Washington Monument. An earlier courthouse that stood on the same spot was reported to be the site of the last witchcraft trial held in the United States in 1813 (there's a claim to fame).

But that's not the end of the story - Thursday morning the job was finished when the Lancaster Solicitor's office was destroyed in a second fire. There are no suspects as of yet, but there was a murder trial set to begin next week at the courthouse.

Lancaster's police captain offers some brilliant advice to residents on how to spot suspects:

"experience shows the suspect will likely follow the investigation closely in media reports and in conversations. He may make comments or offer reasons why he believes the fires were started such as, 'What do they expect? They didn't have any alarm system'; 'It was probably just some kids'; 'The court here is corrupt, biased, etc.'; 'No one was hurt,'" Howard said.

If you see anyone watching this story on the news, or talking about it, please report them immediately.

All jokes aside, my condolences go out to the residents of Lancaster and to their solicitor. This was truly a tragedy for this town.

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In March 2008, Richard Gagnon was found guilty in Horry County of the murder of his girlfriend's mother and father, and he was sentenced to life in prison. The trial was televised live on Court TV, and I was surprised to hear most people who were following the story say that they thought he was innocent. Not just not guilty, but innocent. People on the street, people who left comments on the media blogs, even courthouse personnel felt that there was insufficient evidence that he had committed the crime, and were convinced that he would be found not guilty.

The girlfriend had been arrested and charged with the murder, then released and the charges dropped before Gagnon was charged. The evidence against him was circumstantial at best, there was DNA evidence placing someone else at the crime scene, and the state's case was based primarily on the testimony of a jailhouse snitch, Robert Mullins, who claimed that Gagnon had confessed to him while they were in jail. The jury convicted Gagnon, undoubtedly based on this witness' testimony.

Anytime the state needs to shore up their case, they can go down to the jail and round up some people that are willing to testify. In any high profile case, people with a) charges pending against them and b) information about the case, come out of the woodwork. Now, the Sun News reports that a new witness has come forward with information, writing to Gagnon's defense attorneys that Mullins was lying at Gagnon's trial.

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.

Because of the problems that are inherent in the testimony of jailhouse snitches, prosecutors should not be permitted to use them at trial. Allowing prosecutors to obtain convictions based on testimony from jail informants is wrong. The testimony is unreliable and any conviction that is not corroborated by independently sufficient proof is suspect.

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Attorney Reese Joye of Charleston, S.C. has passed away. I did not know Reese personally, but after hearing many testimonials from the people who did I can appreciate what an impact he has had on our legal community.

Reese was a founder of the South Carolina Association of Criminal Defense Lawyers and of the National College for DUI Defense, and was the first president of SCACDL. He published a multi-volume set of books on DUI defense, and was nationally recognized as an expert in the field.

As news of his passing reached Charleston, friends and colleagues recalled Joye as a tenacious attorney who worked long hours, did his homework and was always the most prepared lawyer in the courtroom. His firm holds the record for the largest personal injury verdict in state history.

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Regina McKnight, who was found guilty of homicide by child abuse in 2001 because cocaine was found in her system after her child was stillborn, has been released. Last month the South Carolina Supreme Court granted her post conviction relief petition and ordered a new trial.

Regina pled guilty to involuntary manslaughter and was released on time served today after serving more than 8 years in prison.

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Laura L. Loder has joined the Frederick Defense Firm as an associate. She is a recent graduate of the Charleston School of Law and practices exclusively criminal defense. Laura is tough, smart, and a damn good lawyer. She is a welcome addition to the firm.

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Following his successful plea to waive his appeals and be executed as soon as possible, David Mark Hill got his wish yesterday.

Hill was convicted of a 1996 triple homicide. He is the first person to be put to death in South Carolina since the U.S. Supreme Court decided that lethal injection was an acceptable method for the government to kill people. He is the 279th person to be executed in the State of South Carolina.

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The current policies in Horry County, and probably throughout South Carolina, of aggressive enforcement of CDV laws are counterproductive. I speak to many people who have been arrested and charged with domestic violence. Most tell me that when the police arrive, they are told that if the police are called, someone has to go to jail. When I first began hearing this, I attributed it to a few officers who were acting like jerks, and to some exaggeration by my clients. Over time, however, it has been consistent, and I am hearing the same thing every time. If we are called, someone is going to jail.

In some cases, individuals are being arrested without any evidence of a CDV having occurred - the officer says I have to take someone. In some cases, the victim who calls the police is arrested along with the person who was doing the hitting. They are not always allowed to speak and there are some officers who do not want to talk to anyone at the home before making their arrest. I have seen cases where a third party calls the police and the officer arrests everyone in the house despite there being no independent evidence of CDV.

Law enforcement and the solicitors' offices are receiving additional funding to hire prosecutors for the prosecution of CDV's, and yet persons charged with CDV have no access to appointed defense attorneys. The public defenders do not go to the magistrate court and there is no funding for indigent defense of CDV. In some cases, people are being arrested without any real investigation of the facts, are being prosecuted by a trained advocate, and have no way to defend themselves unless they have resources available to hire a criminal defense lawyer.

I am hearing people say, "if I am ever really beaten by my spouse, the last thing I will do is call the police for help." This policy, written or unwritten, of arresting someone anytime the police are called, is counterproductive. Not asking questions before hauling husband and wife off to jail is counterproductive. Arresting victims is counterproductive. Not providing attorneys to defendants results in numerous wrongful convictions at the magistrate court level.

Law enforcement should not be about a numbers game, and law enforcement + politics = injustice.

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Despite all of the attention focused nationally on the overcrowding of our jails and prisons, our attorney general is pushing a bill that will remove the possibility of parole for any felony in South Carolina. The bill would accomplish two main purposes: to eliminate the possibility of parole for felonies, and to create an alternative court for non-violent offenders.

Under the current scheme, a no parole offense is defined by § 23-13-100 as a Class A, B, or C felony, or any crime that is exempt from classification but punishable by a maximum term of 20 years or more. A person who is convicted of a no parole offense is not eligible for parole and cannot be released until they have served at least 85% of their sentence.

The proposed bill, H.4309, would revise § 23-13-100 to include Class D, E, and F felonies, or any crime that is exempt from classification but punishable by a maximum term of 1 year or more, and it would include Class A and B misdemeanors as well.

The proposed bill would also establish a system of "middle courts," modeled after drug courts, but not limited to drug offenses. Horry County Drug Court has been praised as a success. It is a wonderful idea, and in theory it should divert many people away from the prison system. I think we all want the drug court, and the proposed middle court expansion, to work, but we need to step back and take a look at what is happening in drug court:

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

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

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

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

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

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

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

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Bert will be opening a law office in Conway, after working for 9 years at the solicitor's office. I look forward to seeing you fighting the good fight for the wrongfully accused - best of luck to you in your new practice.

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The Horry County Police Department arrested Coastal Carolina University Student Joseph Frasco and charged him with assault and battery of a high and aggravated nature (ABHAN) on Saturday. The only reason I write about this is to comment on the compulsion that law enforcement has to provide detailed information about every case to the media. In this case, maybe it will finally backfire on them.

Lt. Myron Creel of the HCPD is quoted here as saying that he charged Mr. Frasco with ABHAN, he was monitoring the alleged victim's condition at the hospital to be sure that the "the charges filed against Frasco are approprate," because "[a]nytime you have a trauma like this . . . there is potential for complications and death;" (translate: we will charge this guy with Murder if we can) and then goes on to say, "[w]e don't really think there was any intent in the incident."

What?

The article begins by saying that Mr. Frasco was charged with ABHAN after accidentally shooting his roommate at close range with a shotgun. Someone correct me if I'm wrong in believing that intent is an essential element that must be present to charge a person with ABHAN. Or that accident is a complete defense to the charges.

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I've opened a second office in Florence, S.C. It will not be fully staffed at first, and is more or less a place to meet with my Florence clients and a place to hang my hat when I am trying cases in Florence. I need to update the website with the new information, but I am procrastinating. I'll get around to it in the next day or two. In the meantime, the number is 843-665-7709, and the location is 215-B Pine Street, next to the old Florence County Library. Only a few blocks from the city-county complex, magistrate and municipal courts, General Sessions, and the Federal Courthouse.

Why open a Florence office? A few reasons - one is because I get a good many calls from people who are facing criminal charges in Florence, and I cannot expect them to drive to the Myrtle Beach office to meet with me. Another reason is because, although Myrtle Beach is now my home, Florence is my hometown, and it just feels right to have an office in my hometown. Also I plan on doing more federal criminal defense in the future, and Florence is the nearest Federal Courthouse.

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