South Carolina Criminal Defense Blog

A jury in Texas County, Missouri, returned a verdict of one million dollars against Texas County Prosecutor Mike Anderson on behalf of a court clerk who sued for malicious prosecution and abuse of process after she was targeted, harassed, and sued by the county prosecutor.

"It's a case of bullying, I think...a big man over a little person and she's been harmed. You could tell that."

The allegations arose following Anderson's harassment of another court clerk who subsequently quit her job and later settled a lawsuit against Anderson in federal court. I suppose the lesson here is that a prosecutor can lie, cheat, and put on perjured testimony to secure convictions with impunity, without fear of lawsuit, prosecution, or in many cases disciplinary action, but - you do not have impunity when it comes to your dealings outside of the role of prosecutor. Bravo to these courthouse employees and their attorneys for fighting back.

Taser International was hit with a $10 million verdict in Charlotte, N.C. last week, for the death of a 17 year old boy who died from cardiac arrest after a police officer tased him in the chest. $10,000,000.00 in actual damages - there was no punitive damages award. In it's press release, the company shows no remorse and gives no indication that it will change its policies - they have announced they will appeal the verdict and are spinning it is a result of the jury's compassion for the dead teenager.

“This was a sad and tragic incident, and our hearts go out to Mr. Turner’s family,” Doug Klint, president and general counsel at Taser International, says in a press release. “We can certainly understand how the jury felt deep compassion for Mr. Turner’s family, and how this compassion may have overwhelmed the scientific evidence presented in this case.”

The Scottsdale, Ariz.-based company (NASDAQ:TASR) intends to appeal the verdict.

It seems that Taser International does its own studies to demonstrate that its product is not harmful, and their studies show that their product is not harmful - I assume this is a large part of the scientific evidence that they are referring to; in contrast to the independent studies that have been conducted:

The soon-to-be published research, by a group of University of California, San Francisco cardiologists, looked at 50 studies into the health effects of Tasers. About half, or 23 studies, were sponsored by the company.

It revealed 96 per cent of the Taser-funded studies found the weapon was either not harmful or unlikely to be harmful. Non-affiliated research made the same finding in 56 per cent of cases.

''This finding suggests that Taser International-supported research may be severely biased and its legitimacy should [be] questioned,'' the authors stated.

Thankfully, Taser International is undeterred, and continues it's research and development of products that will shape the future of law enforcement. Such as the stun-shotgun it intends to produce in conjunction with Australian electric gun company Metal Storm, called the Maul:

Taser International is teaming up with crazy-ass Australian electric gun company Metal Storm to produce a bowel-liquifying stun shotgun called — seriously — MAUL. Picture, if you will, a 12-gauge shotgun that stacks stun cartridges on top of one another and uses electricity to fire them out, railgun-style. Five of Taser’s XREP cartridges come flying at you from 30 yards away — “semi-automatic fire as fast as the operator can squeeze the trigger,” the company boasted on Thursday.

H/T the Agitator

In Boiter v. SCDOT and SCDPS, decided June 6, 2011, the Supreme Court held that there are two "occurrences" under the South Carolina Tort Claims Act when there are two independent and separate acts of negligence committed by two separate agencies.

The SCTCA limits liability of a government agency to $300,000 per loss, and $600,000 per occurrence, regardless of how many agencies are involved. In this case, the Boiters filed four separate lawsuits, each suing SCDOT and SCDPS for their negligence in failing to maintain a traffic light which resulted in a motorcycle accident.

The Boiters filed four separate lawsuits against South Carolina Department of Transportation (SCDOT) and South Carolina Department of Public Safety (SCDPS) (collectively, Respondents), alleging negligence in their failure to prevent the accident. With respect to SCDOT, the Boiters alleged SCDOT failed to implement an appropriate re-lamping policy to replace bulbs in traffic signals before they burn out. With respect to SCDPS, the Boiters alleged that a citizen's call one hour and twenty-seven minutes prior to the accident reporting the outage should have resulted in SCDPS notifying a trooper to report to the scene and direct traffic. The negligence of both agencies is undisputed in this appeal. At trial, the jury found in favor of the Boiters and awarded each of them a total of 1.875 million dollars.

Under Section 15-78-30(g) of the South Carolina Code (2005), "occurrence" is defined as an "unfolding sequence of events which proximately flow from a single act of negligence." If the defendants' acts combine to form one act of negligence, then it is considered one occurrence and there is one cap of $600,000. However, where, as here, there are "two separate and distinct acts of negligence involving two separate and distinct entities together with separate verdicts against each of them," there are two occurrences and two separate caps of $600,000.

The Circuit Court limited the Boiters' damages to $300,000 apiece, defining the negligent acts of SCDPS and of SCDOT as one occurrence. The S.C. Supreme Court reversed, holding that because there were two separate acts of negligence that were committed by two separate agencies, there were two occurrences which increased the cap for each Plaintiff to $600,000 (a total of $1.2 million).

Catchy title, right? Hot Coffee the movie will be airing on HBO Monday, June 27 at 9:00 pm. The insurance industry, chambers of commerce, and politicians who want their money have been pouring ungodly amounts of money into convincing the masses that we need "tort reform" for decades now. There is no comparable powerhouse of big money on the side of injured plaintiffs, who don't know that they even care until they are injured and are prevented from getting justice in court.

The Hot Coffee documentary is finally completed and premiered at Sundance Film Festival last week - the film is an attempt to bring to light the millions that have been spent and are still being spent by the insurance industry and corporations to spread misinformation and lies in the guise of "tort reform."

To date the response by the plaintiff's bar to "tort reform" has been weak at best - in my opinion the problem is that the Insurance industry and Corporate America have every motivation to spend money to save money, while the America that has been hurt by corporations or by insurance companies who refuse to pay claims do not know that they care, or what the truth is, until they've been hurt. People who are injured do not have unlimited resources at their disposal to sway public opinion with commercials, billboards, or other propaganda, and they do not have lobbyists in Congress to help pass bills that would make corporations responsible for injuries they cause or that would make insurance companies pay claims.

"Tort reform" has become a rallying cry for politicians, similar to "tough on crime," without regard for the truth of the statements the politicians are making or the source of the propaganda - what matters is that people have heard about this "tort reform" thing, they have seen the commercials paid for by the chambers of commerce or insurance industry, they know that people blindly believe this crap, and they are going to say whatever they think the potential voters want to hear. Just as the commercials and ads flood the airways to indoctrinate the masses, there are lobbyists who work to persuade the politicians that tort reform is needed. And now, our U.S. Supreme Court has given corporations the green light to fund the campaigns of politicians who will look out for their interests.

Stella Liebeck made national headlines in 1992 when she sued McDonald’s after spilling a scalding cup of hot coffee on her lap. The lawsuit had the whole country talking. But what most people do not know is that Liebeck suffered third-degree burns over 16 percent of her body and never fully recovered. And most people do not know that corporations have spent millions of dollars distorting her story to promote tort reform. Liebeck’s case is featured in the documentary Hot Coffee, which premiered at the Sundance Film Festival on Monday.

Ross Jurewitz, at the San Diego Injury Blog, brings ambulance chasing to the internet with a steady stream of posts that chronicle accidents in San Diego. The common threads to all of the posts:

1) someone dies in a terrible accident
2) "Our office wishes to convey our sincere prayers and condolences to the family and friends of the deceased;" and
3) "If you or a loved one has been hurt or killed in a San Diego auto accident, please call Mr. Jurewitz at 888-233-5020 for a free consultation."

Many blog posts include the name of the person who was killed, and of course they are key-word rich with accident-related terms.

It appears that Mr. Jurewitz is blogging about accidents and including the names of the victims, in the hope that they will google their names and then call him. Obviously, he is knowledgeable about their situation, he is writing about it isn't he? I don't see where this constitutes a violation of any ethics rule on the attorney's part, but ethics does not begin or end with the rules.

I've seen criminal defense "blogs" that do the same thing - regurgitate local news articles on people who are arrested, including the name of the defendant followed by a statement that this person will need an attorney like [xyz law firm] who can help them.

I understand that different lawyers have different opinions on what is ethical and what is not, as does the general public when they see advertisements. Some attorneys believe that any advertising is unethical, others believe that nothing is off-limits. Most fall somewhere in-between. What do you think about Jurewitz's site? Is this targeted direct solicitation (which is prohibited under the rules), or is the fact that it is taken from a news article a loophole for the lawyer to slip through?

After a wrongful arrest caused by neighbors over some turkeys that Robert and Jennifer Klippel removed from their yard, they sued for malicious prosecution,emotional distress, defamation and false arrest. Last week at trial a Beaufort County jury awarded four and a quarter million in damages for what they were put through.

What began as a dispute between neighbors about pet turkeys ended Friday when a Beaufort County jury awarded two Hilton Head Island siblings $4.25 million in damages.

In 2004, defendant Ralph Dupps accused Robert and Jennifer Klippel of taking his turkeys from his Sea Pines home and setting them free. The charges were dismissed, and the Klippels sued Dupps. They claim he accused them falsely and that their wrongful arrest caused public humiliation and emotional distress that drove Robert Klippel to alcohol and Jennifer Klippel to the use of sleep aids and depression medication.

On Friday -- after five days of testimony -- a jury in the 14th Circuit Court of Common Pleas ruled in the Klippels' favor.

The facts underlying the Klippels' lawsuit are a scenario that happens all too often:

Three law enforcement officials told Dupps no crime had occurred, Rosen said. Yet, Dupps proceeded to get arrest warrants for the Klippels from a Hilton Head Island judge and sought out his brother-in-law, a special prosecutor in the 14th Circuit Solicitor's office at the time, to prosecute the case, Rosen said.

Police, judges, and prosecutors have to be wary of persons who attempt to abuse the criminal courts to solve personal disputes or to get revenge on someone. One of the most common scenarios that I see is an arrest for breach of trust - where the "victim" is attempting to use the solicitor's office as a debt collection agency.

The trauma that results from being handcuffed, hauled away, and then locked in a cage for any period of time is extreme. We don't care, or we look the other way, when it is a person we can label as a "criminal," a sub-class of person who is treated like an animal and thrown into a cell. But when it is a person who has committed no crime, and would not have committed any crime, then we pay attention and we notice.

Baru A. Trump, who was charged with the murders of Cecil M. Bennett and Shirley Wiles at an Orangeburg barbershop after the murder weapon was found in his car, has filed a lawsuit in federal court against Orangeburg County prosecutor David Pascoe.

Trump was arrested in December of 2005. The complaint alleges that Pascoe's office had all of the investigative reports in the case in August or September of 2006, which I assume would have shown that there was no case against Trump, but did not dismiss the murder charge until February of 2007. Trump had told investigators that he purchased the gun from another individual named Roger Johnson, who is currently serving a prison sentence for shooting two Orangeburg County Sheriff's deputies.

From everything that I see, in the article and the complaint itself, Trump does not have a case. I'm all for filing suit against a prosecutor in the right case, to test prosecutorial immunity in light of the Pottawattamie case which was never decided by SCOTUS, but this is not that case.

Problems? Trump was also charged with unlawful carrying of a pistol, to which he pled guilty and was sentenced to a year. He was indicted by the grand jury on the murder charge, which means there was a finding of probable cause (the cliche is that the grand jury will indict a ham sandwich - despite this, a finding of probable cause is a significant hurdle that Trump would have to get around if this suit went forward). And let's not forget that the law still says that prosecutors are immune from suit for decisions such as whether or not to charge a person.

Is there a moral outrage that they allowed a man to sit in jail when they knew that there was insufficient evidence to go forward on the case? There should be. But it does not rise to the level of a prosecutor who obtains perjured testimony to make their case, who manufactures inculpatory evidence or buries exculpatory evidence. It rings of negligence, as opposed to maliciousness. It is ironic that a civil attorney, who deals in money as opposed to freedom, can be sued for malpractice but that a prosecutor, who holds a person's life in his or her hands, is immune from suit.

I predict that the complaint will never be served on Pascoe. It has been filed but not served - if it is not served within 120 days it will be dismissed. It got the media's attention, which may have been the point, but the case has too many problems to get off the ground.

A woman apparently died at the Conway Wal-mart on Friday, after employees fought with her because they suspected she was shoplifting:

One of the suspects collapsed at the scene and was taken to a hospital, where she was pronounced dead. Horry County Deputy Coroner Tony Hendrick says 41-year-old Dorina Williams of Nichols appears to have died from natural causes, but the official cause of death is still pending.

In Edwards v. Lexington County Sheriff's Office, the S.C. Supreme Court held that the Sheriff's Office owed a duty to protect the victim in a domestic violence case, where they knew that the defendant had threatened violence against her, the Sheriff's Office prosecutor scheduled a hearing to revoke the defendant's bond and then insisted that the victim appear with her evidence of the defendant's violation of the restraining order, and then did not provide any security or precautions to protect the victim.

The defendant attacked the prosecutor and the victim after he was sentenced to 30 days for violating his bond - he was subdued by a bondsman and maced by the judge, but not before he had caused injuries to the victim.

Ordinarily, under the public duty rule, statutory duties such as those in the Criminal Domestic Violence Act do not create a cause of action against public officials for failure to perform those duties, and there was no special relationship between the Sheriff's Office and the victim that gave rise to a duty to protect, but the "special circumstances" of this case gave rise to a duty, because the Sheriff's Office was on notice of the danger and because they created the risk of harm to the victim by not providing security for her.

This case highlights what can be a major problem in our magistrate courts - in most, there is no security. There are no guards, there are no metal detectors, there is nothing to protect judges, jurors, witnesses, victims, or attorneys. Some of the magistrates hold court or bond hearings in small enclosed spaces, and particularly in CDV cases, emotions can run high.

One thing that I am grateful for are the guards at the circuit court and the fact that they are checking people for weapons as they come into the courthouse. It may be an inconvenience but it does make me feel better knowing that the people around me in that emotionally charged atmosphere are not armed.

The U.S. Supreme Court will not decide the question in Pottawattamie County v. McGhee, whether prosecutors can be liable for fabricating evidence, coaching witnesses, concealing exculpatory evidence, and sending an innocent person to prison for 25 years of his life, because the government has settled the case before SCOTUS had the opportunity to rule.

The lower courts had ruled that prosecutorial immunity does not extend to the preparations that occur before trial begins, and SCOTUS heard arguments in the case in November. Now a settlement of $12 million has made the issue moot. I am guessing that the County feared an adverse ruling from the Supreme Court which would allow lawsuits to go forward against prosecutors in future cases - but, lawsuits are going to be filed now anyway, and the issue will make its way back to the Court eventually.

Prosecutors should be liable in extreme cases such as the Pottawattamie County case, where the misconduct can be proven. They should be more than civilly liable, they should be criminally liable. If it is proven that a person (prosecutor) lied, suborned perjury, and obstructed justice and the result was that an innocent man lost 25 years of his life, should there be criminal consequences? Should that person be sentenced to 25 years in prison to pay for what they did? Does $12 million really make up for the loss of 25 years of a person's life?

If it is proven that a person (prosecutor) lied, suborned perjury, and obstructed justice and the result was that a human being was sentenced to death by a judge or jury, should there be criminal consequences? Did that prosecutor commit murder, the very thing that he is supposed to be working to prevent? And what should the penalty be?

These are the extreme cases, but they are out there and it happens. There should be consequences - under the current system, prosecutors are immune from lawsuit, no-one polices them, and in most cases they are not so much as disciplined by the bar association. Police, prosecutors, judges, and defense attorneys hold peoples lives in their hands. They have the power to heal, to help, to hurt, and even to kill. With that power comes responsibility, and accountability.

I am glad that McGhee and Harrington are being compensated for what was done to them. I doubt that they feel $12 million is enough.

Edit: Gamso and Norm Pattis have blogged about the settlement as well.

Susan Saladoff reports that Hot Coffee the Movie has finished production and they will begin editing first of the year. Hot Coffee is a documentary film that will highlight the lies and mistruths of the mostly successful multi-billion dollar "tort reform" propaganda campaign that the chambers of commerce, tobacco and pharmaceutical companies, insurance industry, and Corporate America in general has engaged in since the mid-80's.

The film's production is being done on donations, and from what I understand they are in need of some - you can donate online here.

Why donate? Any effort to counter the disinformation of "tort reform" is worthwhile.

The reason that the "tort reform" propaganda has been as successful as it has is because of the funding and organization that has been behind it - like political candidates, if there is enough money backing a campaign it is bound to be successful. There is no effective media counter to tort reform, because the people who are hurt by it, the ones who are denied access to the courts or who are viewed with skepticism by the public and potential jurors, have no organization and have no funding - they do not know that they are potentially plaintiffs who need access to the courts until it is too late.

The media and the tort reform campaign point to specific instances of "runaway juries" that give outrageous verdicts to undeserving plaintiffs, with a sound-byte that does not involve enough time to identify the issues involved in the case, much less the extent of injuries suffered, the actions of the corporation in response to the injuries, or the many details that the "runaway jury" learned during the course of a week-long trial. The case of Stella Liebeck v. McDonalds is the best known example of this type of disinformation.

Liebeck bought a cup of coffee at McDonalds, spilled it on herself, sued, and was awarded approximately 2.7 million dollars at trial. Sound pretty outrageous?

She was 79 years old, she was a passenger in the car which was parked in the parking lot at the time and she was putting sugar in her coffee when it spilled. She suffered third degree burns to her thighs, buttocks, and groin, spent 8 days in the hospital getting skin grafts, and required medical treatment for another 2 years.

The jury learned that McDonalds required their franchises to serve coffee at temperatures of 180 - 190 °F, although other restaurants were serving it at lower temperatures, and McDonalds had more than 700 reports of people burned by their coffee from 1982 to 1992. Although McDonalds had settled similar claims for more than $500,000, they offered Liebeck $800. Although the jury returned a verdict of 2.7 million, mostly punitive damages, the judge reduced the verdict to $640,000 and the parties settled for a lower amount before the appeal. McDonalds still serves its coffee at 176–194 °F, but they made their warning label bigger. People are still suing them for coffee burns.

There are safeguards in place that prevent frivolous lawsuits from getting to a verdict - a truly frivolous lawsuit can be dismissed by the court soon after it is filed on what is called a 12(b)(6) motion, and an attorney can be sanctioned for bringing a frivolous case. If the evidence does not exist to support a party's claims, the court will grant summary judgment and that ends the case. If a jury's damages award is excessive in light of the circumstances of a particular case, the trial judge will reduce it. If the trial judge makes mistakes, the appellate court will correct them.

It is long past time for "someone" to do something to counter the corporate propaganda machine of tort reform. Donating to help this documentary get finished is a good place to start.

A documentary is in production that intends to tell the story behind the highly publicized and maligned "McDonalds coffee case" - you know, "that case" that everyone points to when they talk about how lawsuits are out of control in our country, although no-one seems to be able to tell you the facts of the case.

The McDonald’s coffee case has been routinely cited by the media as an example of how citizens have taken advantage of the legal system. In this documentary, you will learn what really happened to Stella, meet her grandson, who was driving the car, and hear from her doctor, the lawyers, McDonald’s quality assurance manager, and the jurors. Was the media’s portrayal of this case fair or was there an agenda by tort-reform groups to create a public perception that lawsuits were out of control. How did it become the poster child for tort reform, what is tort reform and how does it affect everyday Americans?

The tort reform advocates (corporations and the insurance industry) have been extremely effective in spreading propaganda and winning over the public to their cause. What is their cause? Save the doctors and the mom and pop businesses from the flood of frivolous lawsuits brought by greedy plaintiffs? Their goal is and has always been to prevent access to justice whenever possible, and when that is not possible to minimize their losses and maximize their profits by paying out as little as possible to people who are injured.

The plaintiffs bar has not come anywhere close to being as pro-active as the chambers of commerce and insurance industry at reaching the public with their message. Why? Perhaps because it is not the civil defense attorneys, but rather Corporate America that has funded the propaganda of "tort reform." The little people, the ordinary citizens who are hurt by corporations or denied compensation by the insurance company, do not have the billions of dollars that Corporate America collectively has to fund such an effort. The ordinary citizens who are hurt and denied justice did not know that they would become victims of "tort reform," and did not care until they were the ones thrown under the bus - and then it was too late.

Who will speak for those who do not have the billion dollar megaphone with which to speak for themselves?

Jamie Leigh Jones, represented by TLC grad L. Todd Kelley, was drugged and brutally gang-raped by co-workers while working for Halliburton in Iraq in 2005. When she reported the attack to her superiors, she was kept locked in a container under armed guard and not allowed to leave or call her family for days. Due to a clause in her employment contract, the District Court ruled that she could not bring her claims in court and was instead limited to arbitration, although ultimately the Fifth Circuit Court of Appeals reversed that decision and held that some of her claims could be brought in court.

Four years later, an amendment to a defense bill was passed that would change defense contractors' ability to limit their liability for employees who are raped: "Freshman Senator Al Franken's amendment to a defense bill would guarantee employees of military contractors access to the court system if they are sexually assaulted and would freeze military contracts to any company that fails to cooperate."

Amazingly, 30 republican senators voted against the bill.