South Carolina Criminal Defense Blog

Charles Hood's death sentence has been overturned, but not because his judge was sleeping with his prosecutor - the Texas Court of Criminal Appeals has reversed themselves, granting a new sentencing hearing based on an error in jury instructions that they had previously denied relief for. Dodging the bullet, and doubtless hoping that SCOTUS will not hear the case now.

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

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

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

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

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

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

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

In recognition of the fact that the ABA's best law blogs contest is a joke, Mark Bennett has graciously offered to host the First Annual Bloggers' Best Awards. Wonderful idea - one vote per voter and only bloggers, who know what they're talking about, can vote. Honestly, I don't read many blogs other than criminal defense and a few personal injury blogs, but here's the ones that I do read (and a few ideas for categories that Bennett forgot):

* Best Personal Injury Law Blog: Paul Luvera's Plaintiff's Trial Lawyer Tips

* Best Criminal Law Blog: Defending People (have to, sorry)

* Best Legal Humor Blog: Courtoons

* Best Legal Criticism or Opinion Blog: Simple Justice (I honestly think you belong in this category Scott)

* Best Legal News or Politics Blog: Grits for Breakfast (even though the content is fairly local)

* Best Law Prof Blog: Legal Ethics Forum

* Best Law Blog in a Category SMT forgot:

Best Public Defender Blog: A Public Defender (public defenders really deserve their own sub-category. They could even win twice that way.)

Most original concept for a 2009 blog: Law and Baseball

Best law blog that defies categorization: The Life and Times of a Texas Trial Lawyer

Best criminal law blog on a marketing-blog-type platform other than wordpress or blogger.com:S.C. Criminal Defense Blog (seriously. I might could win twice that way like Gideon.)

Some excellent posts that you may want to read:

Bennett translates "Reptile" for criminal defense practice - while plaintiff's lawyers (and prosecutors) may want a "reptile" trial, defense lawyers need to make it a "simian" trial.

The value of the internet in researching potential jurors (and witnesses) is ever-increasing. We have been running record checks and checking Facebook and Myspace for information on potential witnesses and sometimes jurors for a while now, but I have never thought to look on Twitter for information as well.

Packratt has the latest on police misconduct statistics - bearing in mind that there really is no accurate compilation of statistics, and reported misconduct is likely the tip of the iceberg.

1 out of every 304 police officers will be accused of a violent crime.
1 out of every 220 citizens will be accused of a violent crime.

Doesn't sound so bad - less cops are accused of crime than the average citizen. But

1 out of every 1,649 police officers will be accused of sexual assault.
1 out of every 3,413 citizens will be accused of sexual assault.

Is not so flattering. Maybe it is because police officers are more likely to be falsely accused of sexual assault. Or, police officers are in a position of power that makes it more likely for them to commit sexual assault. Or, people are more likely to report sexual assault by police officers.

A federal judge in New York acknowledges "widespread falsification by arresting officers of the New York City Police Department."

A trial lawyer's blog that is truly a weblog, and genuine sharing of the author's thoughts from day to day. I've enjoyed reading this blog since I found it.

Right and Left unite in opposition to overcriminalization and government intrusion: the NY Times reports that in upcoming U.S. Supreme Court cases, civil liberties groups and defense lawyer associations stand shoulder to shoulder with conservative, libertarian, and business groups in filing amici briefs on the side of the accused.

“It’s a remarkable phenomenon,” said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. “The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.”

Defense lawyer Mark Shelnutt was acquitted last week of federal drug and money laundering charges. H/T John Wesley Hall

Arkansas Fireman John A. Brinkley, who apparently is also a convicted felon, was arrested for assisting the Mayflower police department with traffic stops, using his personal vehicle equipped with a blue light, a drug dog, and carrying a Glock. H/T Johnny Gardner

A sexophrenic culture? Norm Pattis points out the irony of a culture that celebrates, markets, and is saturated with sexuality, and yet criminalizes and punishes the very conduct that it encourages.

The devil is in the details - in his new blog, PI Bill Beam talks about the importance of conducting an independent investigation when a person is accused of a crime.

How to catch wild pigs.

Front row seats: the latest in the Maricopa County document-stealing-deputy, mad-Sheriff saga from Matt Brown.

Remy Orozco gets harrassed by the cops, and Paul Kennedy shares his experience not getting selected as a juror.

Our local prosecutors have no interest in blogs. Not a one in the state of South Carolina will step up to the plate. Anyway, there are a few from around the country, some linked on the sidebar, and this fairly new blog from a DA in Texas, which is turning out to be better than most so far.

Criminal defense lawyer Robert Simels was found guilty of conspiracy to commit witness tampering.

Texas executes an innocent man, who was convicted based on shoddy forensics and jailhouse snitch testimony.

The Snitching Blog and Grits for Breakfast point out a new ABA ethics opinion on prosecutors' ethical duty to disclose information that is favorable to the defense.

Jesse Edward Yarbrough, a lawyer in Tacoma, Washington, is arrested for allegedly dealing drugs from his home and office.

After accepting exclusively criminal defense cases for the past five years, at the urging of friends, colleagues, and clients, I have decided to begin taking select civil cases. I’ve always seen the firm as standing between the incredible power of the government and the ordinary people who come to us for help, but I am beginning to realize that corporate America and the insurance industry is just as capable of destroying lives and families as our government is.

I won’t be accepting every civil case that calls; we will be screening them carefully. I’m looking for cases that I am comfortable with, that are interesting to me, where there is a legitimate claim, and that we can take to a jury. At least right now, I won’t be taking worker’s comp cases or anything that involves an administrative claim. I am interested in cases that we can try to a jury.

I'll be updating our website in the next week or two to reflect this, and the name of the firm. I thought about the name of this blog, and whether I should change it or begin a new blog. I haven’t made a firm decision on this yet, but for now I am leaving it the way it is. Most of the issues I blog about will still be related to criminal law, and I’m not interested in maintaining two blogs.

Any thoughts?

I'm going, heading out to Wyoming. Last year I read Gerry Spence’s book, Win Your Case. I think every trial lawyer should own a copy of this book; it is full of amazing insights on human nature, life, and trial strategy. When I found there was a Trial Lawyers College that taught attorneys using the methods discussed in the book I was determined to go and learn more.

I've slowed down on blog posts a lot in the last month or two, and for the next month or so there will probably be none, but I'll be back to business as usual after that. I'm excited about the Trial Lawyers College and I have no doubt that it will be well worth the sacrifice of getting there and being away from the office for a short while.

Laura, the other defense lawyer in our office, attended the National Criminal Defense College (NCDC) in Macon, Georgia, a few weeks ago, and we also regularly attend South Carolina and National Association of Criminal Defense Lawyers seminars. Attorneys are required to attend a certain number of CLE hours each year, but each year I exceed those hours, earn the maximum that will carry over to the next year, and then stop keeping track. No matter how much I think I know there is always more to learn and our time is best spent learning from the best and greatest in our field.

Laura will be holding down the fort while I am gone to TLC. Laura is ranked high among the best defense attorneys I know - if anyone needs anything in the next few weeks, please contact her and I know that you will be taken care of.

Mexican authorities have detained a prison governor and some 40 guards after an armed gang managed to free 53 inmates from a jail in central Mexico.

There are differing opinions, among lawyers and in the blawgosphere, about whether a new attorney should attempt a solo criminal defense practice straight out of law school. Scott Greenfield makes the case that, where he once maintained that opening a solo practice straight out of law school was decidedly wrong, in today's job market it may be a necessity:

But following the implosion of the economy, and with it the disappearance of the job market for entering lawyers, the equation has changed. Whereas once I argued that the notion of flying solo straight out of law school was decidedly wrong, the new reality is that many law students will have no choice. Solo practice is the alternative to sitting at home playing Wii. The latter is not an option.

Brian Tannebaum laments what he sees as a flood of newly minted solo practitioners who thought that criminal defense was an easy gig - take a fee, take the state's first offer, and plead your client:

What they intend to do is go to court one time, get the state's first offer, and convince the client that they should take it. What a great lawyer. When they realize that some clients understand that jail is probably not an option, that same young hungry lawyer tells them that jail is a "possibility." I tell those same clients that jail is a "possibility" like the possibility of death from a tooth extraction.

And Matt Brown gives the contrary view of one who did start his defense practice straight out of law school and disagrees with Greenfield and Tannebaum's assessments. All three are right, depending on who we are talking about. Scott's practical advice for those who are forced into solo practice, hook up with a more experienced criminal defense lawyer and/or find a mentor, applies equally well to those who chose to go into a solo practice.

Tannebaum's grim view of the new criminal defense practitioner who takes easy money to plead out his clients applies equally well to many lawyers who have been in private practice for many years. A lawyer is either dedicated or he is not, it does not matter how long they have been in practice. If a lawyer's goal is to make as much money in as little time as possible, it does not matter if they are taking on criminal cases or car wrecks - the answer is to bring in a large quantity of cases for small fees and then settle the cases fast without trials.

I envy those who began their criminal defense practice straight out of law school - I would recommend spending a couple of years at a public defender office or as an associate with a more established defense attorney, but if you are dedicated I have no doubt that you will gain the same experience learning from your fellow members of the bar, you need only reach out to enough of them. It is the lawyers who are forced into a solo practice who will fail or who will eek by while failing their clients - some people are not cut out to work on their own, and some people are not cut out for running a business. Maintaining a criminal defense firm requires dedication, long hours of work, and the ability to run a business while also finding the time to serve your clients.

That being said, I believe that the most dedicated defense lawyers have solo or small practices - it is the most efficient business model for criminal defense and it makes sense. Those attorneys who already know that criminal defense is their calling, who know that it will be hard work, and who are willing to fight for their clients right out of the gate will do well in a solo practice. Matt Brown is a case in point:

Throughout law school, I intended to do criminal defense and nothing else. I wanted to fight the big, bad government. My goal, which I made clear to everyone around me, was to immediately hang out a shingle upon receipt of my bar number. I set aside time to watch court. I did a public defender clinic, attended public defender new hire training, spoke with a number of judges, and met as many good criminal lawyers as I could. I bombarded every criminal lawyer and paralegal I encountered with questions and did about two years of work as a clerk and research assistant for a prominent criminal defense attorney who had his own solo practice. He led me through a number of his cases from start to finish, showing me exactly what he did and why he did it.

My opinion is that if you are considering starting a solo criminal defense practice out of necessity, whether straight out of law school or not, because you can't find a job doing something else - please don't. When you accept a criminal defense case you are holding a person's life in your hands, sometimes literally, and it is not something that anyone should be doing just to pay the bills or because there is no other job available at the moment. If you are considering starting a solo criminal defense practice because that is what you know you want to do, then go for it. Read and learn as much as you can about managing a solo practice, find the people who are willing to help you along the way, and do not let anyone discourage you from it.

I've been receiving a lot of emails from complete idiots calling themselves internet marketing specialists of late. For example, Steve Wilson, internet marketing specialist, sent me the following email last Thursday:

Hello, my name is Steve Wilson and I am an internet marketing specialist. I was looking at websites under the keyword criminal defence attorney denver and came across your site southcarolinacriminaldefenseblog.com. I see that you're ranked #6 on page 9 in google.

I am not sure if you are aware of why you are ranked this low but more importantly how easily correctable this is.

There is no reason you cannot have a top three ranking for any keyword which is important to you based on your site structure and content. You have a very nice site . . .

P.S - I am talking about keywords that produce the right kind of traffic... Traffic that delivers leads, sales and profits. Because getting a ranking that does not generate leads and sales is worthless.

Is it Ok to give you a call? If so, just hit reply and tell me specifically who to ask for when I call and what time of day is best to reach that person.

If any readers have not caught on, I am a criminal defense attorney in Myrtle Beach, S.C. If you google "Myrtle Beach criminal defense attorney," my website comes up in one of the top two spots. Even if you misspell "defense" with a "c," a spelling I assume is only used in England, it still comes up at the top of the page. If my website comes up on page 9 when someone is searching for a criminal defense attorney in Denver, which is 1744 miles away from my office, that is pretty f***ing good.

Yesterday I received another email from the same guy, letting me know that I am on page 42 when he searches for a "defence" attorney in Florida. I'm not going to link to it, but anyone who would like to take a look at this idiot's webpage, top ranking links .com, will see that his own site has -no- page rank in google, and when you do a search for "top ranking links," his site does not come up at all.

I wonder if these are the same idiots that own Linxmonster.

Why pleading guilty or going to trial is still the client's choice, even if you have a genie in a bottle.

The anonymous prosecutor vents at the Matlock blog. (the top ten things prosecutors hate about defense attorneys)

Wouldn't it be easier . . .

Robert Guest outlines the Kubler-Ross plea-bargain model (stages of grief).

More on Scalia's new professionalism from R. Balko.

A new blog called Saturday Night and Sunday Morning; the name apparently drawn from this movie/ book and it's main character. Never saw it, but the blog is a good read.

Shawn Matlock is racially profiled. Again.

A lawyer in Arizona was arrested the week before Christmas, for giving his client a piece of candy in the courtroom.

[The Sheriff's Office spokesperson] told the publications that Rossi asked the detention officers if he could give his client a piece of candy, then ignored their answer when they said he could not do it. D’Evelyn claims Rossi responded, "What are you going to do, arrest me?" before placing the candy in the inmate’s mouth.

The Sheriff's Office says that they are concerned about "the candy contraband issue," and says that it is a "security issue." "They get fed three squares a day and we don't feed them in court." I think that it may an "authority" issue, not a security issue. The guards at every courthouse I have ever been in are very concerned that every person do what they tell them to do without question. In general you defer to the guards and do things however they want them to be done, but take it to the judge if it is an issue that you cannot live with. They are in charge of security, after all.

But they can take it too far, as in this guy's case in Arizona. The attorney was arrested at his home the day after the "candy incident," and the guards made their point.

A stand-off at a bank in New Jersey is over, now that the police have figured out that the individual inside, who apparently did not respond to their requests on the bullhorn or telephone, was in fact a cardboard cutout.

Officers went to the PNC Bank in Montgomery Township on Thursday night after an alarm went off. They saw what they thought was at least one person through the windows of the bank, which had its blinds drawn.

The area was sealed off and three nearby apartment buildings were evacuated as a precaution.

Meanwhile, authorities used bullhorns and made telephone calls in a bid to make contact with whoever might be in the bank.

After repeatedly failing to get a response, a SWAT team entered the building and discovered the cardboard figure.

It was not immediately clear what set off the bank alarm.

"Come back with a warrant" doormat sold by Target.

The Texas Criminal Defense Lawyer's website has a variety of t-shirts, including "come back with a warrant" and "Get me off."

The National Criminal Defense College has "paraphernalia" on their website, including a t-shirt that says: "Please don't tell my mother I'm a defense lawyer. She thinks I play piano in a whorehouse."

From Cafe Press, a "legalize freedom" t-shirt or a Fourth Amendment sticker or bag (No I do not consent to this search).

So as to avoid any confusion later in court, "Got a warrant?" and "I don't consent to searches" t-shirts from Flex Your Rights.

A "disappearing civil liberties" mug from the unemployed philosopher's guild - as you pour your hot beverage into the mug, the text of the bill of rights disappears before your eyes.

On reading. From around the blawgosphere:

Non-refundable retainer means you don't get it back. Really.

Windypundit makes a graceful argument for legalization of prostitution: "I'm not arguing that we should slap a price on a woman like we slap a price on a loaf of bread. I'm arguing that we should give women the same respect we give bakers, and let them be the ones to set the price."

John Wesley Hall always beats me to the punch on South Carolina reported opinions. I'll get around to reading this opinion eventually, I promise.

Being a former prosecutor does not make one a better defense attorney, defense experience makes one a better defense attorney.

A "prostitution raid" on the wrong house nets an innocent 12 year old girl. When the police discover how badly they messed it up, they apologize . . . well, no, they go back and charge her with assaulting an officer?

The right to counsel is the most important right that we have, at least it is thus far in a poll at a public defender.

Freedom v. Safety - we are beyond the tipping point where "every increase in governmental power beyond that point provides at best a tiny incremental increase in temporary safety at a major cost to freedom."

Two cases overturned in Texas due to prosecutorial misconduct (Brady violations).

Marines man dui roadblocks in California, and cops are authorized to draw your blood in Texas and Arizona.

Why good judges matter - a good judge picks up the slack from a lousy attorney, and the government tries to have a judge recused from a case because she questioned their integrity.

Mark Bennett at Defending People encourages everyone to visit the ABA's site and vote for Simple Justice or Grits for Breakfast for the top blog in the crime category; but neglects to mention that Defending People is a choice as well. The five choices are Courthouse Confessions, Defending People, Grits for Breakfast, Sentencing Law and Policy, and Simple Justice.

I see that Blonde Justice made the cut as well, but is listed under "quirky" instead of crime.

Congrats to all on some well-deserved recognition.

Brown and Little's criminal defense blog in Phoenix, Arizona is a newer site that is worth reading. They tend to get stuck in the mode of blogging about this crime or that crime (as do I, sometimes - consciously or unconsciously, with search engines in mind), but there are some very interesting reads on the site. Given the recent discussions about blogs designed solely for legal marketing v. blogs that actually contribute something to the information highway, it is refreshing to see a new blog that is not solely self-promotion and self-aggrandizing.

I missed this post back in June, where a federal judge in Connecticut ruled that it was not discrimination for police departments to refuse to hire persons who scored too high on intelligence tests:

In a ruling made public on Tuesday, Judge Peter C. Dorsey of the United States District Court in New Haven agreed that the plaintiff, Robert Jordan, was denied an opportunity to interview for a police job because of his high test scores. But he said that that did not mean Mr. Jordan was a victim of discrimination.

Judge Dorsey ruled that Mr. Jordan was not denied equal protection because the city of New London applied the same standard to everyone: anyone who scored too high was rejected.

Some of the better posts follow day to day life in the practice of criminal defense, such as today's diatribe on the hoops we have to jump through to get information out of mental health professionals.

My only complaint is that you cannot tell who is writing what - there is obviously a Brown and a Little, but no identification on each blog post. Keep up the good work.

I will be at the National Association of Criminal Defense Lawyers Defending Drug Cases seminar in Houston, TX, this week. Continuing legal education is a requirement that most attorneys seem to dread as a chore that must be done by the end of the year; I've found that every year I get all of the credits that I need by attending NACDL and SCACDL (South Carolina Association of Criminal Defense Lawyers) seminars, and I always have a good time and see old friends while learning from the best.

If any readers are planning on being there, feel free to look me up. I'm in Houston now, and will be here through Saturday.

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

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

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

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

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

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

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

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

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

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

John Wesley Hall recommends that we all read Thomas Paine's Common Sense and then the Declaration of Independence.

A public defender gives us the president's speech from the movie Independence Day.

Joseph Galloway at McClatchy newspapers writes about how both presidential candidates are celebrating Independence Day by gutting the Fourth Amendment and voting to extend the FISA Act complete with amendments granting immunity to "the telecommunications corporations that assisted our government in the warrantless and illegal wiretapping it has grown to love."

Sentencing Law and Policy points out the irony of celebrating liberty in the country that leads the world in incarceration rates.

Mark Bennett notes the significance of the Declaration of Independence on current events; the indictment of King George in the Declaration could easily describe the U.S. presence in Iraq.

Simple Justice is less than sanguine about the coming year; and

Jon Katz reminds us that "July 4 is meaningless without an ongoing struggle for civil liberties. Now is the time to join that struggle."

In a conversation sure to interest none of our readers except fellow bloggers, Sentencing Law and Policy, Simple Justice, and CrimLaw discuss the relationships between lawprof blogs and the "practical blawgosphere."

Greenfield's chief complaint seems to be that the lawprof's in general ignore the practitioner blogs, not linking to them and not engaging in dialogue when issues arise that both groups blog about, such as the Heller decision last week. Doug Berman responds at Sentencing Law and Policy that he has not seen such a great divide between lawprofs and practioner's blogs - in fact the blawgosphere seems to be a "terrific cyber-meeting-space for the academy and the bar (as well as the bench and law students and non-lawyers)."

On the one hand, I agree with Prof. Berman - one thing I love about the criminal blawgosphere is the "meeting" of many different types of lawyers and non-lawyers with shared interests in criminal law, whether academic or practical. I spend a few hours every day reading lawblogs of both types. On the other hand, Prof. Berman took the bait in a sense, as Greenfield also pointed out in his post that the only time lawprofs show up in the practical blawgosphere is when they are criticized and feel the need to respond.

At the heart of the issue seems to be recognition - who links to who in their blog posts, recognizing the other's ideas and building on them. Lawprofs don't often comment on practitioner's blogs, although practitioners often comment on lawprof's blogs. More often than not, lawprofs are commenting directly on appellate opinions, whereas practitioners are commenting on everything under the sun. If we are commenting on appellate opinions, it makes sense to also link to lawprof's opinions on the opinions because they are, after all, the academics. The practical blawgosphere's focus is usually commenting on daily life in the trenches, how the appellate opinions affect our work, and commentary on a wide variety of topics that impact the practice of law.

Although we would like to hear from the lawprofs on the topics we discuss, and would like recognition from time to time since, after all, academia is a wasted effort without the reality of the daily practice of law that it helps to shape, it doesn't always make sense for lawprofs to get involved in conversations from the practical blawgosphere. And, I don't see a problem with lawprofs getting but not giving recognition for excelling in an area (blogging) that is primarily academic in nature anyway.

Prof. Berman asks "if readers generally see relative harmony or a big divide between bloggers in the academy and in the bar?" I think harmony when you step back and look at the blawgosphere as a whole, but a big divide if you look at it in terms of reciprocity and recognition.