South Carolina Criminal Defense Blog

Roger Bostick was charged with murder in Jasper County, S.C. in March 1999, and was convicted at trial in September 2001 (based on what I found in the public index for Jasper County - the opinion linked to below does not have the dates in it).

Following his trial, he filed an application for post conviction relief (PCR), alleging that his trial counsel did not advise him of his right to appeal. The PCR judge denied his petition, and the South Carolina Supreme Court denied his appeal from the PCR. Bostick then filed a federal habeas petition in the federal district court, which was denied. Bostick then appealed to the Fourth Circuit Court of Appeals, which reversed, finding Bostick was denied effective assistance of counsel because his counsel did not file a direct appeal following Bostick's conviction.

On remand from the Fourth Circuit, the federal district court filed an order directing that Bostick be released from prison unless the State of South Carolina granted him a direct appeal within a reasonable time. Bostick got his appeal, and on April 11, 2011, in State v. Bostick, the S.C. Supreme Court reversed his conviction because there was not sufficient evidence for the case to go to a jury - the trial court should have directed a verdict in his favor:

Analyzing the evidence presented by the State in the light most favorable to it, we believe the State's evidence here raised only a suspicion of guilt by Bostick. No direct evidence linked Bostick to the crime scene or the items found in the burn pile. Moreover, there was no testimony tending to establish that Bostick had control over the burn pile. When the State closed its case against Bostick, the following pieces of circumstantial evidence of his guilt had been presented: (1) Polite's car keys, calculator, and other items from her home were found in the Bostick family's burn pile; (2) the fire in the burn pile was accelerated with either kerosene or diesel fuel, and Bostick’s mother did not use those accelerants when she burned things in the pile; (3) Bostick had a pattern that matched gasoline on his shoes and gasoline was the accelerant used for the house fire; and (4) while the DNA from the blood found on Bostick's jeans excluded about ninety-nine percent of the population, the blood could not be matched to Polite's DNA. In addition, the weapon used to beat Polite in the head was never introduced into evidence. Finally, no evidence was introduced concerning Bostick's knowledge that Polite may have had money in the briefcase or if indeed any money was in the briefcase on that particular Sunday. The evidence presented by the State raised, at most, a mere suspicion that Bostick committed this crime. Under settled principles, the trial court should grant a directed verdict motion when the evidence presented merely raises a suspicion of guilt. State v. Cherry, 361 S.C. 588, 594, 606 S.E.2d 475, 478 (2004). Therefore, we find the circuit court erred in failing to direct a verdict in favor of Bostick.

A decade later, we are told there was not enough evidence to survive directed verdict.

Although Mr. Bostick's story is more interesting to me, I note the legal standard for directed verdict - "Under settled principles, the trial court should grant a directed verdict motion when the evidence presented merely raises a suspicion of guilt." Many a time has a judge insisted that if there is "any evidence whatsoever" the case must go to the jury - there is a huge difference between "any evidence whatsoever" and evidence that "merely raises a suspicion of guilt" when your life or freedom is at stake.

In Bailey v. State, decided by the S.C. Supreme Court on May 9, 2011, the Court held that it was ineffective assistance of counsel where trial counsel failed to object to supplemental jury instructions that allowed the jury to convict based on a theory of prosecution not alleged in the indictment. The Court granted post-conviction relief and remanded the case for a new trial.

Bailey was charged with homicide by child abuse, which could, per the homicide by child abuse statute, be proven by either abuse such as hitting a child or by omissions such as neglecting a child. Bailey's indictment alleged that he caused the child's death by hitting the child and did not allege that he caused the child's death by neglect. When the jury came back during deliberations with a question about the difference between the allegations in the indictment and the either-or language of the statute, the judge instructed the jury that they could find Bailey guilty if they found that he caused the child's death by either abuse or neglect, reading the language of the statute to them again. The jury foreman stated on the record that they found no evidence of Bailey striking the child.

The Court holds that the judge cannot "enlarge" the indictment by instructing the jury that it could convict Bailey of a crime not alleged in the indictment, and that the Court should have directed a verdict. Because Bailey's trial counsel did not object, the issue was not preserved for direct review which may have resulted in a remand with instructions to direct a verdict. Instead, Bailey gets a new trial now, and the state gets the opportunity to fix their mistake.

Here, the indictment charging Bailey with homicide by child abuse specifically alleged that Bailey "inflicted upon [Victim] physical injuries to his abdomen resulting in exsanguination and consequently the death of the child." By its express terms, the indictment alleged that Bailey's "act" resulted in Victim's death. Significantly, it did not allege that Victim's death was the result of an "omission" on the part of Bailey.

Thus, the indictment apprised Bailey that he had to defend only against the allegation that he inflicted the physical injuries resulting in Victim's death. See Evans v. State, 363 S.C. 495, 508, 611 S.E.2d 510, 517 (2005) ("The primary purposes of an indictment are to put the defendant on notice of what he is called upon to answer, i.e., to apprise him of the elements of the offense and to allow him to decide whether to plead guilty or stand trial, and to enable the circuit court to know what judgment to pronounce if the defendant is convicted."); State v. Gentry, 363 S.C. 93, 102, 610 S.E.2d 494, 500 (2005) ("The indictment is a notice document.").

Every so often, an indictment alleges conduct that is different than what the defense lawyer expects the proof to show at trial - I believe, and I have told attorneys that asked about it, that the answer is to let the state go to trial without objecting or moving to quash the indictment, and, if they do not prove what they have alleged in the indictment, move for a directed verdict. It is true that, per Gentry, the indictment is a "notice document," and if you do not object to defects in the indictment before trial you waive those arguments, but if the indictment is not defective but rather it alleges an offense that is not borne out by the state's proof at trial, you can hold them to their burden. It is the State that drafts the language of the indictment, after all.

The U.S. Department of Justice's Office of Immigration Litigation has put together a guide to immigration consequences in criminal cases. It explains the removal process, what types of convictions are grounds for removal, what is an aggravated felony, what types of relief are available for people in removal proceedings, and goes through other immigration consequences to guilty pleas.

I've handled several post-conviction relief matters based on plea attorneys' faulty advice on immigration consequences, and I can tell you it is much easier to do it right on the front end than it is to fix a prior attorney's mistakes while the government is trying to ship your client out of the country. In light of Padilla v. Kentucky, which held that an attorney has a duty to give accurate advice as to immigration consequences, this is probably not a bad resource to have.

I don't remember where I found this, it may have been someone's blog or it may have been one of the email lists that I am on - so, H/T to someone out there and thanks.

Christopher Pittman, who was convicted in 2005 of the murders of his grandparents Joe and Joy Pittman, was granted post conviction relief in the circuit court today, based on his trial lawyers' failure to pursue a plea agreement where he could have pled guilty to voluntary manslaughter and potentially received a lighter sentence.

In 2004, a year after the trial, federal drug authorities began requiring Zoloft and other antidepressants to carry "black box" warnings — the government's strongest warning short of a ban — about an increased risk of suicidal behavior in children, but not about potential homicidal risks.

In the hearing last year, Pittman took the stand for the first time, saying his chief attorneys — lawyers who specialized in suing pharmaceutical companies — told him they were convinced the jury would blame Zoloft for the killings. He also said they never told him jurors in South Carolina could both blame the drug and find him guilty of murder.

"I wasn't told even if Zoloft was a part in my crime, I still could be found guilty and I was looking at 30 years to life. With the plea bargain, I could have gotten a lot less," he said then.

Young agreed, citing Pittman's testimony and pointing out that defense attorneys also didn't tell a lawyer appointed as Pittman's guardian ad litem about the possibility of a deal.

"It is clear Pittman's Defense team did not appreciate how unlikely the 'Zoloft defense' would result in an acquittal of Pittman for the murders," Young wrote. "As a result, it is clear the Defense team did not seriously pursue negotiations for a plea to voluntary manslaughter."

If he had pleaded guilty to voluntary manslaughter, Pittman could have been sentenced to anything from two to 30 years in prison, at the judge's discretion. With a murder conviction, he faced a mandatory minimum of 30 years in prison, with no possibility of parole.

This case was a travesty because Pittman was not only suffering from mental illness, but was 12 years old at the time of the incident and yet he was tried as an adult - despite the horrible facts in the case, there is no real dispute as to whether a 12 year old's mind is fully developed. Waiver of juveniles from the family court to the circuit court is an area where the law lags woefully behind the available science.

PIttman's case became known as "the Zoloft trial," because his attorneys unsuccessfully pursued a defense which showed that the side effects of the anti-depressant Zoloft caused him to become manic and contributed to his actions.

The ruling of the PCR judge in the circuit court will probably be reviewed by the South Carolina Supreme Court - unlike a criminal trial, the state has the right to appeal the result of a PCR hearing.

More on Christopher's story can be found at christopherpittman.org and at the Juvenile Justice Foundation's website.

"Defense lawyers," more often than not, go far out of their way to protect themselves and their reputation when they are called as witnesses in post conviction relief hearings, and are quite content to help keep their former client in prison. Some common testimony that I hear:

"He told me that he was guilty." (why the hell would you testify to this?)

"I gave him a fair trial, that is what my job is and nothing more." (you are wrong)

"I can't remember what my advice to him was, but I always tell my clients [it is their choice to testify or not; it is their choice whether they plead guilty or not; etc.]." (if you don't remember, you don't remember, don't ad-lib to make sure your former client loses his hearing)

I have had some PCR hearings where the attorney-witness is open and truthful, and it is refreshing. The problem is that the most common claim made in a PCR petition is ineffective assistance of counsel - we are claiming that the defense lawyer's performance was so bad that it fell below the minimum standards required by the Constitution. No one wants to look bad. But - your duty to your client does not end after they have been convicted. If you screwed up, admit it - it's not about how you look, it's about your client sitting in prison because you f***ed up their case.

You still have a duty of loyalty and of confidentiality to that client - confidentiality is waived in the context of PCR only to the extent necessary to (truthfully) respond to the allegations of ineffective assistance. In most circumstances, testifying that "my client told me he was guilty" goes far beyond what is necessary to respond to the allegations. What you are saying is: "he was guilty, he told me he was guilty, so what's the big deal?"

I handled a recent PCR hearing based on an attorney's incorrect advice regarding immigration consequences (the client, a legal resident, was deported after his attorney advised him to plead guilty to an aggravated felony). Prior to the hearing, the attorney told me that he advised the client that he would not be deported unless he received a year in prison (wrong); later he told the state's attorney that he advised the client that he would probably not be deported unless he got time in prison (wrong).

At the hearing, the attorney would not give a straight answer, instead rambling about how guilty the client was, how the client admitted his guilt to him, how strong the evidence was against his client, everything under the sun except answering the very direct question, "did you advise him that he would not be deported." There is no shame in not understanding immigration consequences to a guilty plea. There is no possibility that you are going to be sued for your mistake. You are not going to be disciplined. But you are determined to not look bad - in the process of trying to make yourself look good you are causing your client to remain separated from his family, a country and thousands of miles apart.

And you did not save face, by the way. You came across on the stand as someone who does not care for your clients, someone who is dishonest, and someone who does not investigate before advising your clients to plead guilty.

PCR proceedings are not a personal attack on the defense lawyer. They are a necessary part of the process that ensures we are afforded a fair trial that at least meets the minimum standards required by the Constitution.

The SCOTUS decided Padilla v. Kentucky today, and held that a defense lawyer has a duty to advise a client that they will be deported if they plead guilty, where the deportation consequences are clear. South Carolina draws a distinction between collateral and non-collateral consequences when analyzing a claim of ineffective assistance (in the context of a petition for PCR/ post conviction relief). Under S.C. law, a failure to advise of collateral consequences was not ineffective assistance,although bad advice would be ineffective assistance. Today's decision makes clear that immigration consequences are not collateral.

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

The Court declines to decide whether there is such a thing as "collateral consequences" at all:

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

Does this leave a door open for other issues that counsel currently has no duty to advise of under South Carolina law? Parole eligibility comes to mind - certain offenses are not parole eligible and a defendant must serve 85% of their sentence and two years of community supervision upon release; under current law there is no duty to advise of this and it is considered ineffective assistance only if bad advice is given.

More at Defending People.

That's 7 years, 4 months, and 3 days. Two years and two months ago, I received a letter from an inmate. He had been convicted of burglary 1st degree and sentenced to 15 years (the minimum sentence for burglary 1st degree), but he claimed he was innocent and he asked for my help. I get letters similar to this quite often, but this person had funds available and so we agreed to look at his case (that feels terrible to say, but we have to keep the doors open and the bills paid).

His direct appeal had been denied but we were within the time limit for PCR, so I got a copy of the transcript from his trial, reviewed it, and we filed for post conviction relief. Without getting into details, his attorney had done a terrible job presenting his case and there was at least one glaring example of a constitutional right that had been denied to him at the trial.

One thing that pisses me off is when I talk to an attorney in the context of PCR, and they explain to me that their job is to "make sure that their client gets a fair trial," and that is what they did. Well, no - your job is to win the case for your client and to defend him zealously. But besides, if he got a fair trial, why are we in PCR court arguing that you gave ineffective assistance of counsel? In general, the fact that someone has filed a PCR against you should not be taken personally - it is an essential stage of the system and you should be glad that someone is looking out for your former client. But, don't tell me a defense lawyer's job is only to make sure their client gets a "fair trial."

The PCR was denied by the trial court. Despite no evidence presented at the PCR hearing that contradicted our claims. We appealed the denial of PCR to the S.C. Supreme Court, and they reversed and granted our guy a new trial. A new trial that I was ready to win for our client, although there are never any guarantees. I believe that there is a very good chance that he is innocent.

Today we went to court for an arraignment and bond hearing, and instead he pled guilty to a lesser included offense, to time served. Two thousand, six hundred and eighty three days time served. I understand that it had to be done, and he is going home. I suspect he admitted guilt because he feared the months or even years that it could take before his case was retried. And he is going home, it's a victory and I should be happy for him.

Why is a defense lawyer's job more than to make sure their client gets a "fair trial?" Because it has been 2683 days since this guy has seen the outside of a jail cell. Because if someone is going to be caged, dehumanized, abandoned by society, and lose 7 years or 15 years or their entire life, their defense lawyer needs to be doing everything that is ethically within their power to help that person.

In Kolle v. State, released February 16, the S.C. Supreme Court upheld a grant of post conviction relief, overturning a guilty plea to trafficking cocaine in a North Myrtle Beach case.

Kolle pled guilty on the advice of his attorney and was sentenced to seven years in prison, the minimum sentence for trafficking in cocaine 28 to 100 grams, first offense. His defense lawyer had been practicing for three years, but had never handled a felony case before. The lawyer advised Kolle to turn down a plea offer for five years until after the suppression hearing, telling him that the offer would still be available (it was not).

The lawyer relied on the documents that the solicitor's office had provided to the public defender who had the case before him, and did not obtain complete discovery before arguing the suppression motion. The officers in the case had responded to a loud music complaint, then entered the apartment without a warrant when no-one answered the door, claiming that there were exigent circumstances:

Because there were lights on in the apartment and no one answered his knocks, Officer Canfora "presumed that there may be something wrong inside the apartment . . . that somebody was in the residence, maybe injured or incapacitated."

At some point they went and got a search warrant, after they discovered cocaine in the apartment. During the suppression hearing, Kolle's defense lawyer failed to point out to the trial judge serious discrepancies in the testimony of the officers:

In recounting the suppression hearing, plea counsel conceded that he did not point out the discrepancies between the officers' testimony and the documentary evidence, which included the incident reports, the search warrant, and the police call logs. Specifically, PCR counsel established that plea counsel failed to question the officers regarding the following time discrepancies: the call/dispatch log indicated the loud music complaint was received at 12:43 a.m.; Officer Canfora arrived at the apartment at 12:48 a.m.; the search warrant appears to indicate it was issued at 12:01 a.m. and executed at 12:43 a.m. Plea counsel admitted that he did not have this documentary evidence in his file. He further acknowledged that he never requested the lab report or the chain of custody report regarding the cocaine that was seized pursuant to the search warrant

If the defense lawyer had investigated and prepared the case for trial, there was a substantial likelihood that the cocaine would have been suppressed. If the defense lawyer had presented all relevant evidence at the suppression hearing and suppression was denied, he still would have had to try the case to preserve the issue and appeal to the Court of Appeals.

Some lessons from this case - if you take over a case from the public defender's office, do not rely on the discovery in their file. Do not rely on the first discovery that is sent out in any case - there is almost always something that the prosecutor is not providing or that can be obtained from law enforcement's files.

Don't assume that a suppression hearing is a foregone conclusion - when you get into the details of a case you might be surprised. Law enforcement often cuts corners, and then tries to fix it later with testimony tailored for court. And, believe it or not, there are circuit court judges in South Carolina who care about the Constitution and who will not automatically rule in favor of the state.

In Smith v. State, decided February 16, the S.C. Supreme Court granted post conviction relief to Smith, finding that it was ineffective assistance of counsel to fail to object to hearsay testimony by a forensic interviewer that corroborated and bolstered the testimony of the alleged victim.

Smith was charged with criminal sexual conduct (CSC) with a minor and with contributing to the delinquency of a minor. At trial, the forensic interviewer testified without objection that the alleged victim told her that she had been sexually assaulted and that she believed the alleged victim was telling the truth. The prosecutor then used the bolstering in her closing argument, reinforcing the interviewer's testimony that the alleged victim was believable.

To prove a claim of ineffective assistance, the petitioner must show that: (1) counsel's performance fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defendant's case. When the trial lawyer articulates a valid trial strategy, ineffective assistance is not found (failure to object because the lawyer does not want to upset the jury is not a valid trial strategy).

In this case, the trial lawyer testified at the PCR hearing that there was no trial strategy to explain his failure to object to the hearsay and bolstering, and the Court found that there was prejudice because there was conflicting evidence presented at trial. If the hearsay and bolstering had not been allowed in front of the jury, the outcome may well have been different.

In Porter v. McCollum, decided November 30, the U.S. Supreme held that it is ineffective assistance of counsel not to investigate and present mitigating evidence regarding a veteran of the Korean War's military service.

Porter was wounded and decorated for his service in the Korean War, where he fought in two major engagements. As a result of his service and the horrors inflicted in those battles, he suffered severe trauma which included post-traumatic stress disorder and brain damage which could result in impulsive, violent behavior. In 1988 he was sentenced to death for the murders of his former girlfriend and her new boyfriend.

At trial, Porter represented himself, but standby counsel was appointed in case he did change his mind. Porter ended up stopping the trial and pled guilty before the end of the state's case, and then changed his mind and requested that standby counsel represent him for the sentencing proceeding. His lawyer then presented no evidence of Porter's mental conditions, abuse he had suffered as a child, or his military record - the jury, who doubtless did not know anything of this man except that he had killed two people, then recommended that he be sentenced to death.

This case is important for several reasons. One, it reaffirms that a trial lawyer has to investigate his client's case and that the Constitution requires more than an attorney to stand next to the person, especially in a death penalty trial.

Second, it shows the importance of standby counsel to take their role as counsel seriously. I can imagine that the attorney in this trial did not expect that he would play any major role, as Porter was representing himself - but then the unthinkable happened for this lawyer who was sitting there in the courtroom, knowing that he was not prepared, hoping that he would not be needed - Porter asked for his help. And the lawyer was utterly and completely unprepared to give it to him. It is not often that standby counsel is needed, but it does happen and when it does this opinion makes it clear that you must be prepared.

More importantly, this opinion reflects the growing recognition of the effects that war can have on our troops and the Court does not brush it under the rug like so many have done. The stress of military service, particularly for those who have been in combat, watched their friends die around them, taken lives, and looked death in the face themselves, changes a person. There are still people who give everything for their country and when they return they are marginalized and treated as criminals because they develop drinking or drug problems to cope with their trauma or because they are unable to get the help that they need.

The Court is absolutely right, knowledge of Porter's background, his childhood, his military service, his mental illness and addictions, the relationships that led to the fateful night in question - in short, his story, would have made the difference between life and death.

ln Bryant v. State, the S.C. Supreme Court held that three armed robberies committed within a 54 hour period are not "so closely connected in point of time that they may be considered as one offense" for purposes of the life without parole (LWOP) statutes (17-25-45 and 17-25-50). I think that the Court's reading of the statutes is correct.

Crimes that are classified as "serious" come under the "three strikes" law - 3 convictions and you get LWOP. Crimes that are classified as "most serious" come under the "two strikes" law - 2 convictions and you get LWOP.

The original 17-25-45 made sense - it said that a "serious" or "most serious" crime that occurred after a person had previously been sentenced for a "serious" or "most serious" crime would count as their second or third strike. The current version of 17-25-45 requires only that a person be convicted of a "serious" or "most serious" crime before the current conviction/sentence. This creates one way to avoid a LWOP sentence - if you have multiple charges pending, and you plead to them at the same time, they are not considered multiple offenses for purposes of LWOP. But, iIf you plead guilty to one "serious" offense, and then plead guilty a week later to a second "serious" offense, you get LWOP.

17-25-50 provides another way to avoid LWOP, and says that "the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses."

Although Bryant was on a crime spree that seems like it should be considered one event, the armed robberies happened on different days - the SCSCt felt that this did not qualify under 17-25-50. The real problem in Bryant's case is his attorneys. He was charged in three different counties and probably had three different attorneys at the trial level, although I do not know who represented him.

Bryant pled guilty in July, 1997 to the Colleton and Jasper armed robberies and was sentenced to 10 years. If these were the only two armed robberies, they would count as a single conviction under 17-25-45 and not trigger the LWOP statute, because he pled to both at the same time. It was possible to plead to both at the same time because, although they occurred in two separate counties, Colleton and Jasper Counties are both in one judicial circuit, the 14th. But there was the third armed robbery also pending in Orangeburg - in December, 1997 Bryant pled guilty to the third robbery in Orangeburg County, which made him eligible for LWOP (armed robbery is a "most serious" offense and comes under the "two strikes" law), and his attorney did not question the LWOP sentence as he stood next to Bryant in the courtroom.

Why the hell would an attorney plead someone to life in prison without parole in a non-death penalty case? What are they going to do if he goes to trial and loses, sentence him to life and then a little bit more? There was nothing to lose by trying this case, and everything to gain no matter how slim the chance of victory - my opinion is that the attorney who would plead his client to LWOP needs to be in a different profession or at least practicing a different type of law.

The second problem which may not be as obvious is the lack of coordination between the circuits. I would not fault the first attorney who pled two counts of armed robbery to the minimum sentence of 10 years, assuming that the state had a strong case, but ideally all three cases should have been coordinated. The prosecutor must file a notice of intent to seek LWOP, and a non-LWOP sentence potentially could have been negotiated in Orangeburg in consideration of the first plea. My question - did the defense attorney in either location attempt to contact the other defense attorney or prosecutor?

Bryant probably gives a correct reading of the LWOP statutes, but more importantly I think that it gives an excellent example of bad lawyering and how it can cost someone their life.

The United States Supreme Court released two criminal law opinions today. The first, (from the syllabus) Osbourne, holds that there is no due process right to access DNA for testing post-conviction. The Court does not answer the question of whether there is a federal right to be released upon proof of actual innocence, and says that even if there were such a right the denial of access to DNA evidence would not be a violation of fundamental fairness - it is more appropriate for the individual states' legislatures to define the parameters of access to DNA (even if they don't provide access).

Yeager v. U.S. revisits Ashe v. Swenson, re-affirming that issue-preclusion will prevent the government from re-litigating any issue that was necessarily decided by a jury's acquittal in a prior trial. Yeager was acquitted of charges of securities and wire fraud related to the Enron fiasco, but the jury could not reach a verdict on charges of insider trading and money laundering. Relying on the lower court's finding that the acquittal did involve a finding that Yeager did not have inside information which was an element of the acquitted charge as well as the remaining charges, the Court held that the government is precluded from re-trying the remaining counts - an "apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts [does not affect] the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment."

In Davie v. State, decided this month, the S.C. Supreme Court held that it is ineffective assistance of counsel when an attorney does not convey a plea offer to his client. In this case, counsel testified at the PCR hearing that he did not convey the state's plea offer of 15 years to his client because he was not aware of the plea offer until after it had expired. His testimony was that he was moving to a new office and the plea offer was lost in the mail.

Without ever hearing the original plea offer of 15 years, the defendant ended up pleading guilty to trafficking crack cocaine, third offense; distribution of crack cocaine, third offense; distribution of crack cocaine within proximity of a public park; conspiracy to violate the South Carolina drug laws; unlawful conduct toward a child; failure to stop for a blue light; driving under suspension, third offense; and child endangerment, and received a sentence of 27 years in prison.

The SCSCt held that the failure to communicate the original plea offer was deficient performance by the trial lawyer, and that under the facts of this case there was prejudice to the petitioner, the test being "whether but for counsel’s deficient performance a defendant would have accepted the State’s proposed plea bargain and that he would have benefited from the offer." In this case, Davie testified that he would have accepted the plea offer and, well, 15 instead of 27 is certainly a considerable benefit. The Court held that the remedy, rather than granting a new trial, was to remand the case for a new sentencing hearing. Although the Court cannot force the state to extend its original offer of 15 years, the petitioner's sentence cannot exceed 27 years.

I am curious as to whether on resentencing the solicitor's office will correct Davies' attorney's mistake and re-extend the original offer of 15 years. And, if they do not, isn't Davies' attorney now liable for 12 years of Davies' life? Although malpractice/ civil liability is certainly not my area of expertise, I think the answer is that he would not be liable - but should he be?

In Berry v. State, released today, the S.C. Supreme Court held that a prior conviction for paraphernalia cannot be used to enhance a manufacturing meth charge to second offense, and granted Berry's PCR petition because his plea counsel failed to inform him of this or object to the enhancement.

Berry pled guilty to second offense manufacturing methamphetamine, was sentenced to seven years, and an accompanying possession with intent to distribute meth charge was dismissed as part of the plea agreement. The Court points out that it is perfectly acceptable for a defendant to plead to a charge that he or she is technically not guilty of in exchange for a plea agreement - for example, defendants will often plead to manslaughter to avoid a murder conviction, even though the legal requirement of provocation is not present - in order to receive a lesser sentence. The plea must be entered into knowingly and voluntarily, however, and in this case Berry's attorney did not advise him that a paraphernalia conviction could not be used to enhance his drug conviction. Berry testified that he would not have entered the plea had he known, and his counsel testified that it didn't even occur to him.

There are significant differences in the potential sentences and how the sentence is served - manufacturing meth first offense carries 0-15 years and second offense carries a potential 5-30 years; but a second offense is also an 85% no parole offense for purposes of how much time you serve. On a first offense, a convicted person will receive time credits at SCDC and could be released after serving as little as half of their sentence - or could be released on parole even sooner. (**** do not rely on this blog for legal advice - please rely on your attorney to explain sentencing issues. Sentencing issues, time credits, parole eligibility are complex issues that will be determined by the individual circumstances of your case. ****)

For practical purposes, this means that Berry, although he pled to 7 years, would end up serving as much or more time than he would have if he had been convicted following trial and received the maximum sentence of 15 years on a first offense. On a first offense if he was sentenced to 15 years, he could potentially have maxed out his sentence after 7 1/2 to 8 years, or could have been paroled even sooner. With a sentence of 7 years on a second offense, he has to serve around 6 years before he could be released.

Even if Berry had gone to trial, lost, and was sentenced to the maximum of fifteen years, he would most likely not have been in a worse position. But, assuming that the state had a solid case against him, the real error lay in allowing the use of a paraphernalia conviction to enhance the drug charge. If Berry had pled, without any recommendation by the prosecutor, to a first offense manufacturing meth, odds are he would not have received the maximum sentence and he would have undoubtedly been in a better position.

Allowing the use of a paraphernalia conviction to enhance a drug charge without even questioning it was a failure not only of Berry's lawyer, but of the prosecutor, the trial court, and the lower PCR court which denied relief. In my experience, in S.C., the use of paraphernalia for enhancement has never been a question with any prosecutor or judge, and it amazes me that a prosecutor, defense attorney, and 2 trial judges would not even question the propriety of this guy's plea.

In Hiott v. State, the S.C. Supreme Court overruled the Court of Appeals, holding that a trial judge cannot impose sanctions on a PCR applicant under Rule 11 for filing frivolous proceedings.

At the PCR hearing, petitioner claimed that counsel was ineffective for not discovering that the victim in his case had been abused by another family member; however, petitioner himself was aware of the alleged prior abuse and did not tell his trial counsel. The trial judge denied the PCR and then sanctioned the petitioner $3000 (which he was never going to be able to pay anyway, as he is incarcerated) for filing a frivolous proceeding. The Court of Appeals upheld the sanction, holding that, since PCR's are governed by the rules of civil procedure, Rule 11 must also apply.

The Supreme Court overruled, pointing out that allowing trial judges to sanction PCR applicants for frivolous proceedings would have a chilling effect on prisoners' exercise of a constitutional right. They noted that in In Wade v. State, 348 S.C. 255, 559 S.E.2d 843 (2002), the SCSCt has already held that a trial judge cannot revoke an petitioner's inmate credits under the Prisoner Litigation Act for filing frivolous proceedings or for testifying falsely, as it would chill a prisoner's exercise of a constitutional right.

There are safeguards in place to limit frivolous proceedings - successive applications are barred unless new evidence is discovered, there is a one year statute of limitations on PCR applications, and there is a one year statute of limitations following the discovery of new evidence. Essentially, every inmate who feels that they have a claim to PCR will get one bite at the apple, and the courts are just going to have to deal with the non-meritorious claims to ensure that we do not miss the claims that do have merit.

Prosecutorial misconduct such as withholding evidence, the use of jailhouse snitch testimony, faulty eyewitness identifications, and coerced confessions lead to wrongful convictions that destroy lives. There is nothing to prevent these miscarriages of justice unless prosecutors are held accountable for misconduct and unless laws are passed or rules put into place to limit the use of unreliable evidence at trials.

In the news recently:

In California, Adam Miranda is granted a new trial after nearly 30 years in prison, following the revelation that his prosecutors withheld evidence that could have exonerated him - Judge David S. Wesley found that prosecutors did not tell the defense attorneys that their star witness Joe Saucedo had confessed to the murder himself before Miranda was charged. Saucedo was paid $1350, was relocated, and was given a deal that resulted in 2 years of probation on his own charge.

"This kind of violation snaps the spine of the justice system," defense attorney Kerry R. Bensinger said after Friday's hearing.

Tim Masters' 1999 murder conviction in Fort Collins, Colorado, was overturned last year after new evidence was discovered, but still struggles to put his life back together with the stigma of a first degree murder conviction hanging over him:

In 1987, Masters became the prime suspect in the slaying of Peggy Hettrick, a 37-year-old found in a field near his house. Among the reasons police said they focused on Masters was that he failed to report the body after he found it and his childhood drawings and stories suggested he was fixated on death.

Masters was convicted of murder in 1999, but a judge last year threw out the conviction and released him from prison, citing new evidence that did not implicate Masters. Masters now has a lawsuit pending against several police officers, ex-prosecutors and the city.

In Louisiana, the City of Covington has agreed to settle a lawsuit for $1.4 million for the 19 years that Dennis Patrick Brown spent in prison for a rape he did not commit.

Covington police arrested Brown in September 1984 after a woman reported being raped at knifepoint in her home on Polk Street. Based on her description, police sketched an image of a suspect with a bandanna covering all but his eyes.

She later picked Brown out of a lineup. During the September 1985 trial, the victim testified that she had no doubt Brown raped her.

Brown denied the attack, testifying that police had threatened him with a knife to gain a confession. He told the jury that police investigators were lying and that the first time he set eyes on the victim was in court. He was found guilty and sentenced to life in prison.

In 2004, the Innocence Project of New Orleans obtained a court order to test blood, semen and clothing found at the scene of the rape. Two tests of the evidence excluded Brown as the rapist.

The United States Supreme Court has granted cert in Padilla v. Commonwealth of Kentucky, which deals with the issue I raised in my post about Hayes:

Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

In South Carolina, that question has been answered in the affirmative - where plea counsel gives incorrect advice as to the collateral consequences of a guilty plea, that is ineffective assistance of counsel. When the defendant would have chosen to take his case to trial rather than plead guilty, but for the faulty advice, then the plea is set aside. Kentucky took the opposite position in Padilla, and the USSCT will decide whether that violates the Sixth Amendment. Even if the Court holds that it does not, the states are free to provide this additional protection - the federal constitution is a minimum guarantee of rights, and the states can and often do interpret their constitutions as providing more protection than the federal constitution.

Scott Greenfield at Simple Justice argues that, although attorneys have a duty to answer correctly when they answer, the responsibility lies with judges to include this advisement in their plea colloquy:

What's the solution? As I've argued since 1990, every judge should include in the allocution the collateral immigration consequences of a plea of guilty. Even if it's the defense lawyer's practice to inform his clients, it remains the duty of the judge to make certain that the defendant's plea is fully informed. While I agree that deportation is a collateral consequence of a plea, and that there is certainly some lack of clarity about what constitutes an aggravated felony and whether criminal defense lawyers should be expected to have expertise in immigration law as well, the fact remains that a defendant is entitled to effective representation when he obtains an answer to a question in anticipation of a plea.

The moral of the story is that when you answer your client's pre-plea questions, you are responsible for giving them the correct answer. It really isn't that much to ask.

Remy Orozco at Hostis Civitas disagrees in part, arguing that the duty to inform the client of immigration consequences lies squarely on the defense attorney:

When a defendant decides to plead guilty or go to trial they do so under our advisement and it is our responsibility to ensure that we present them with all the facts and possible outcomes for them to weigh as they make their decision. In the Padilla case, his attorney committed malpractice when he misinformed him as to the collateral consequences his guilty plea would have on his immigration status. Mr. Padilla has a 6th Amendment right to effective assistance of an attorney. What makes this case so agregeous is the fact that Mr. Padilla specifically asked his attorney what consequences the guilty plea would have on his immigration status and his attorney misinformed him.

The fact is, no one knows the defendant's situation like the defense attorney. The judge, and often the prosecutor, often do not know the defendant's immigration status unless the defense attorney tells them - which does place the responsibility squarely on the shoulders of the defense lawyer. I agree with Remy that an attorney who ignores the fact that his client is not a legal resident, or does not inquire, is committing malpractice. The courts, however, disagree with us on this point - the only question that the USSCT will decide in Padilla is whether it is ineffective to give a wrong answer when the client asks about the consequences.

The United States Supreme Court today in U.S. v. Hayes held that a conviction for simple assault and battery, if the defendant has a domestic relationship with the victim, is the same as a conviction for criminal domestic violence for purposes of the federal gun laws.

18 U.S.C. §922(g)(9) prohibits the possession of a firearm by any person who has been convicted of a misdemeanor crime of domestic violence (other provisions prohibit the possession of any person convicted of certain felonies, but the specific provision was added for domestic violence because CDV is typically a misdemeanor that would not fall under the other provisions). §921(a)(33)(A) defines "misdemeanor crime of domestic violence" as any crime that involves the use of force or threatened use of force, against a person that the defendant has a domestic relationship with (spouse, child in common, lives together). This definition under federal law encompasses not only state CDV laws, but also state assault and battery laws when the victim is someone that the defendant has a domestic relationship with.

The definition of a crime of domestic violence under federal law is important because the fact that a person is subject to later federal prosecution for possession of a weapon is a collateral consequence of the conviction; another important collateral consequence that attorneys often do not consider is that a conviction for a misdemeanor crime of domestic violence can have immigration consequences as well. Many attorneys routinely plead CDV's down to assault and battery charges, under the mistaken assumption that this will exempt them from the federal gun laws, to their clients' detriment. Because these are collateral consequences, there is no remedy on appeal for an attorney's failure to inform their client that they can no longer own a gun or that they could potentially be deported or denied citizenship following a guilty plea to domestic violence - or - following a plea to simple assault and battery where the spouse is the victim.

Post conviction relief, based on ineffective assistance of counsel, could be a remedy depending on the circumstances. South Carolina courts have held that PCR will not be granted if an attorney simply does not advise a client as to collateral consequences before advising them to plead guilty, but if the attorney gives advice and it is wrong then it is considered ineffective assistance of counsel. The most common example is parole eligibility - if an attorney does not advise a client as to parole eligibility there are no grounds for relief, but if an attorney does advise a client and gives the client incorrect advice it may be grounds for PCR. For example, if the attorney tells the client they will be eligible for parole after 1/4 of their sentence on an armed robbery charge and the client, thinking that he will be released on parole after 3 years, accepts a plea to 12 years, PCR may be an available remedy. Armed robbery is a no-parole offense, and that person will serve 85% of the 12 year sentence before they can be considered for release.

Although there are no cases on point in South Carolina that I have seen, the same should be true regarding the prohibition on owning a gun and the immigration consequences of a plea to CDV or assault and battery. When attorneys spot a potential immigration issue we need to consult an immigration attorney when the client can afford it - immigration law is too complex to take chances on giving faulty advice. In general, attorneys need to be aware that any conviction for a crime of moral turpitude can cause problems when an individual is applying for citizenship and it can potentially result in deportation as well. A conviction for domestic violence, or a conviction for assault and battery against a spouse, is considered a crime of moral turpitude under federal law.

South Carolina courts have taken the position that it is not ineffective assistance of counsel to remain silent regarding collateral consequences, but in my opinion every attorney needs to be advising their clients that if they plead guilty to CDV or assault and battery against a spouse, they will lose their right to own a gun and, if they are not a citizen, they could be deported or denied citizenship as a result of the guilty plea.

In South Carolina, the standard for the granting of state habeas relief is a high one; "[a] writ of habeas corpus is reserved for the very gravest of constitutional violations 'which, in the setting, constitute[] a denial of fundamental fairness shocking to the universal sense of justice.'"

In Williams v. Ozmint, released December 22, the South Carolina Supreme Court denied habeas relief in a death penalty case, where the prosecutor had stated to the jury three times that he expected the death penalty, without objection from the defense. Williams had already been through his direct appeal and two PCR petitions in state court, and a federal habeas petition that was granted by the district court but denied by the Fourth Circuit Court of Appeals.

The Court discussed the history of habeas in S.C. state courts, noting that, although habeas is still a viable form of relief, under the Post-Conviction Relief Act PCR essentially has replaced most forms of habeas relief. Habeas petitions are still admitted, essentially as a safety valve for egregious errors that somehow were not corrected by any other means, and it is difficult at best to obtain relief by state habeas petition.

The Court distinguished State v. Northcutt , in that, although the prosecutor in Northcutt also stated to the jury that he expected the death penalty, the actions of the prosecutor were more egregious ("The solicitor in Northcutt, an infant homicide case, not only stated that he “expected” the death penalty, but also declared that it would be “open season on babies” if the jury did not return the death penalty and staged a funeral procession with a black shroud draped over the victim’s crib").

It should go without saying that a defense attorney has a duty to conduct an independent investigation in a criminal case. In Lounds v. State, the South Carolina Supreme Court granted post conviction relief based on 1) the trial attorney's failure to investigate or prepare his case; and 2) statements made by trial counsel during closing argument that tended to make the state's case for them.

A criminal defense attorney has a duty to perform a reasonable investigation. Ard v. Catoe, 372 S.C. at 331, 642 S.E.2d at 597. “[W]hile the scope of a reasonable investigation depends upon a number of issues, at a minimum, counsel has the duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case.” Id. at 331-32, 642 S.E.2d at 597 (internal quotes and citation omitted).

Ordinarily the Court would not name the attorney in an appellate opinion, but it appears that Lounds' attorney, Greg Newell, is suspended from the practice of law (and had been suspended at least twice before, according to FN 2 of the opinion).

The Court makes much of the fact that Newell had been on notice for 9 months that his client was facing life without parole, which is unfortunate - the standard is and should be the same whether a defendant is facing life without parole or a minimal prison sentence. Counsel has a duty to investigate his or her case and to zealously defend his or her client's interests. This is not an isolated incident, and occurs more often than we should be comfortable with - attorneys who plead every case sometimes are forced to trial by their clients, who stubbornly insist that they are not guilty and refuse to plead. An attorney who has no intention of trying a case, and whose strategy until the bitter end is to make his client plead out, is not going to be investigating the case and is not going to be prepared for trial.

Newell, on the other hand, never spoke to his client until the morning of his trial, and Newell obviously believed his client was guilty and was not interested in fighting for him, as was evident from the statements in closing argument:

The victim told a story. And his story was that there was an armed robbery. And in the course of that armed robbery he was taken to his parents’ home, let out, escaped, and then called the police. My client’s story is, and he admitted, I deal drugs. I admit that I’m a criminal in that respect, but I did not do this armed robbery. I came there to collect some money I was owed. The guy had built up an account, I mean, and it was getting too big. And I wanted my money. And I brought along a little muscle.… I brought along a little muscle with me. Two against one, hey, we’re going to – we want our money. You owe us money. We want our money. A little bit of leaning, not necessarily beating him up. But I’m standing there, two big guys, I need my money. Okay.

Lounds was charged with kidnapping and with armed robbery. The statements above that Newell made to the jury conflicted with his client's testimony and essentially established the elements of the state's case for them. Lounds claimed that he knew the alleged victim, that the alleged victim used drugs with him, hung out with him on a regular basis, owed money to him, and went with him voluntarily to get money that was owed to Lounds. There were multiple witnesses that could have corroborated Lounds' version of events, but Newell did not interview them or call any witness to the stand other than Lounds.

A defense lawyer's duty to investigate his case goes beyond simply calling, interviewing, and subpoenaing witnesses (and talking to your client before the first day of trial). I believe that in any case where there are multiple witnesses or questionable witnesses, a defense lawyer has a responsibility to employ defense investigators as well. The government has the police department or agency that made the charges, SLED, the FBI, the DEA, whoever they need to call in to assist with the prosecution, and a full staff at the prosecutor's office including multiple attorneys and full time in house investigators, all trying to make a case against the defendant.

Due process should require access to at least one investigator, and to experts who can evaluate the state's evidence, in cases where the state has employed experts. In cases (most) where the defendant cannot afford to retain an attorney, investigators, and experts, the responsibility is on the state to provide the funding to ensure that due process is provided to indigent defendants, a responsibility that is being ignored nationwide by legislators who do not appreciate the fact that a criminal justice system cannot function within the bounds of the Constitution unless effective indigent defense is fully funded.

In Turner v. State, the S.C. Supreme Court reviews when counsel must advise a defendant of the right to appeal, and reverses the PCR judge's grant of a belated appeal based on counsel's failure to advise the petitioner of his right to appeal following a guilty plea.

Following a trial, counsel is required to make certain the defendant is made fully aware of the right to appeal. White v. State, supra. In the absence of an intelligent waiver by the defendant, counsel must either initiate an appeal or comply with the procedure in Anders v. California, 386 U.S. 738 (1967). Id. However, the standard for a guilty plea differs. Absent extraordinary circumstances, such as when there is reason to think a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal) or when the defendant reasonably demonstrated an interest in appealing, there is no constitutional requirement that a defendant be informed of the right to a direct appeal from a guilty plea. Roe v. Flores-Ortega, 528 U.S. 470 (2000); Weathers v. State, 319 S.C. 59, 459 S.E.2d 838 (1995).

Because there was no finding on the record in the PCR court that petitioner had asked his plea counsel to file a direct appeal, or of other extraordinary circumstances that would require counsel to advise petitioner of his right to appeal from a guilty plea, the Supreme Court reversed and remanded the case for an evidentiary hearing.

In Robinson v. State, decided earlier this week, the South Carolina Supreme Court held that it is ineffective assistance of counsel where plea counsel failed to challenge the use of a prior uncounseled magistrate court conviction to enhance a trafficking sentence.

On September 16, 2003, Petitioner was indicted on one count of trafficking crack cocaine. At the plea hearing, the State and the plea judge noted that Petitioner had a prior conviction for possession of marijuana from 2000. The plea judge informed Petitioner that, consistent with a second offense, the minimum sentence he could receive would be seven years and the maximum would be thirty years. Plea counsel did not object to the trafficking offense being treated as a second offense and Petitioner was sentenced to twenty years.

To be successful in a PCR claim based on ineffective assistance of counsel, Strickland v. Washington requires not only a finding of ineffective assistance of counsel, but also a finding of prejudice caused by the ineffectiveness; meaning a reasonable probability that the outcome would have been different but for the mistakes made by the trial lawyer.

The Court held that even though the sentence Robinson received, 20 years, was within the range for a trafficking 1st offense, prejudice was still shown from the error. The sentencing range for trafficking crack cocaine, 28 - 100 grams, 2nd offense is 7 to 30 years, and the sentencing range for trafficking crack cocaine, 28 - 100 grams, 1st offense is 7 to 25 years (S.C. Code Sec. 44-53-375), both are violent offenses, non-parolable, and the defendant must serve 85% of the time to which he is sentenced. But, whether the sentence received is within the sentencing range is irrelevant in showing the absence of prejudice (see Thompson v. State).

Under Nichols v. United States, a prior drug conviction cannot be used to enhance a sentence if it was uncounseled and if the defendant served any jail time on the prior conviction. Although Robinson was not immediately sentenced to jail on his prior magistrate level offense, he ended up serving jail time after he failed to complete community service. Because his plea lawyer failed to object to the use of the prior conviction to enhance his sentence to trafficking 2nd offense, Robinson's case is remanded, not for a new trial, but for re-sentencing.

The South Carolina Court of Appeals held today in Pelzer v. State that it is ineffective assistance for defense counsel not to advise his or her client as to lesser included offenses prior to entering a guilty plea.

Pelzer was charged with first-degree burglary, attempted second-degree arson, criminal domestic violence of a high and aggravated nature (CDVHAN), and violation of a family court restraining order. Ultimately he pled guilty to second-degree burglary, attempted second-degree arson, and violation of a family court restraining order, and received a sentence of 15 years. The CDVHAN charge was dismissed.

The PCR court granted relief in this case, and the Court of Appeals affirmed, because Pelzer's lawyer failed to advise him of the lesser included offense of attempt to burn, which carried a potential sentence of 0-5 years (less than attempted second degree arson). The reasoning is that if Pelzer had known about the existence of the attempt to burn statute, he may have decided not to plead guilty and taken the case to trial instead.

I am not sure where this leaves Pelzer, as the Court granted post conviction relief as to the arson charge only, allowing the remaining convictions to stand, and the Court does not say what Pelzer's individual sentence was for each charge, only that, at the plea, he received a total of 15 years on all charges. If he received 15 years on the burglary second degree charge at the plea, he is still in the same place he started and it would make no sense to proceed to trial on the arson charge.

At any rate, the holding of the Court and the message that this case is meant to convey is that, before advising a client as to whether they should proceed to trial or accept a plea offer, defense counsel must ensure that they advise their client as to every possible lesser included offense as to each of their charges, and to not do so may constitute ineffective assistance.

Our Supreme Court, by administrative order, has given to the Attorney General's office the authority to decide when counsel is or is not appointed in post conviction relief petitions:

Consistent with Rule 71.1, SCRCP, counsel will not be appointed until the Post-Conviction Relief Section of the Attorney General’s Office files its return to the application. In its return, the Attorney General’s Office shall clearly state in the caption heading whether it requests that counsel be appointed for the applicant.

If the Attorney General requests the appointment of counsel, counsel shall be appointed for the applicant unless a circuit court judge determines that it is inappropriate to do so. The authority to make the appointments in these cases may be delegated to the Clerk of Court or some other official.

If the Attorney General opposes the appointment of counsel for an indigent applicant, counsel will only be appointed as follows:

(1) If the Attorney General asserts that the application is barred as being successive or as being untimely under the statute of limitations,[1] counsel will not be appointed except upon written order of the Chief Judge for Administrative Purposes for the Court of Common Pleas in the circuit. In these cases, the Chief Judge will insure that counsel is only appointed for an indigent applicant when the facts raise a material issue regarding the applicability of the rule forbidding successive applications or the statute of limitations. Cf. Gary v. State, 347 S.C. 627, 557 S.E.2d 662 (2001) (statute of limitations).

(2) In all other cases in which the State opposes the appointment of counsel, counsel will only be appointed upon written order of a circuit court judge under the standard contained in Rule 71.1, SCRCP.

Until now what has happened is, in cases where the petitioner cannot afford to retain private counsel, the petitioner will file his or her own PCR application and then the clerk of court would appoint an attorney from the civil appointment list to represent the petitioner. Because a great number of these petitions are successive, time-barred, or otherwise without merit, it uses a great deal of Office of Indigent Defense's resources appointing attorneys to handle these petitions, and many of the attorneys do not want the appointments in the first place.

I'm not sure that giving the Attorney General the power to decide which petition has merit and which does not is the way to go, however. This is like telling the prosecutor to decide which defendant's cases should be worthy of going to trial and which should not. I think that the Supreme Court's reasoning must be that inmates are not guaranteed the right to counsel on successive or time-barred PCR petitions, but still, delegating the decision to the State in the PCR does not make sense. It is, after all, supposed to be an adversarial process isn't it?

If the idea is to conserve resources and to more efficiently deal with frivolous petitions, why not create a PCR division of Office of Indigent Defense, in the same way that the Attorney General has created a PCR division that handles only PCR's, at the trial court and on appeal? The PCR division would need to be insulated somehow from the public defender's offices and the office of appellate defense, to avoid conflicts. If this office handles the appeals as well as the PCR hearings, it will shift some of the workload from appellate defense, who do a stellar job but are without a doubt overworked. (this was not my idea - it has been suggested by other far more knowledgeable persons than I, but I agree with it)

Surely a PCR division that makes the decisions as to which petitions have merit and which handles the PCR petitions and appeals will be significantly less costly than the current system of appointing PCR's to private attorneys (not saying that private attorneys are rewarded handsomely, the current limits are 40/60 and a cap of $1000).

When I take on a PCR that has been filed by a pro-se inmate, the first thing that I do is review the transcript to see what he or she missed. The issues that the pro-se inmate raises may or may not have merit, and there may be issues that do have merit that were not included in the original petition. The other issues can then be raised in an amended or supplemental petition. Is the Attorney General going to review the transcripts and decide if an amended petition with other valid grounds for PCR should be filed?

Is anyone else bothered by the idea of placing this kind of power in the hands of the Attorney General, whose job is to defend against PCR petitions?

In State v. Spoone, released last week, the South Carolina Supreme Court upheld (on PCR) a plea agreement in which the defendant agreed to waive his right to appeal, PCR or any other review of his guilty plea or sentence.

Pursuant to a written plea agreement, petitioner James William Spoone pled guilty to murder, first degree burglary, and possession of a weapon during the commission of a violent crime. Prior to the guilty plea, the State issued a notice of its intent to seek the death penalty. In accord with the plea agreement, the trial court sentenced petitioner to life without parole for the murder and a consecutive life term for the burglary.[1]

The plea agreement expressly stated the following:

[Petitioner] agrees to waive any and all appeals, PCR applications, federal habeas petitions and any and all other methods of review of this guilty plea and sentence.

Thus South Carolina follows in the footsteps of the federal courts, allowing prosecutors to deny any review of guilty pleas or sentences as part and parcel of what is often a contract of adhesion. Although this practice is not yet as widespread in our state as it is in some federal circuits, our Supreme Court has given the green light if prosecutors wish to go this route.

When faced with a case where a defendant has a choice of significant additional prison time or signing a plea agreement that waives the right to appeal or PCR, what should a defense attorney do? I believe this type of agreement is unethical and should not be entered into by defense attorneys or offered by prosecutors, nor should it be stamped with the approval of judges or appellate courts. Is it a choice left to the client, or should the defense attorney refuse to participate in such agreements?

The Court's holding, following a brief review of federal law and precedents from other states, is that waiver of review of a guilty plea and sentence is enforceable if it is knowing and voluntary.

In Miller v. S.C., the S.C. Supreme Court granted post conviction relief based on trial counsel's failure to effectively pursue Miller's claim of third party guilt. Although it was not a part of the Court's holding, Miller's attorney also failed to retain an expert on eyewitness identification which may have been a separate ground for PCR (if Miller's PCR attorney had not also failed to retain an eyewitness identification expert for the PCR hearing).

This case is a perfect example of what is wrong with reliance on eyewitness identifications and coerced testimony by snitches. Miller was charged with armed robbery, based on his girlfriend's testimony and a single eyewitness. The girlfriend's car was used in the robbery, and when police questioned the girlfriend she gave them information that implicated Miller as the robber. The police then showed a photo array which included Miller's photo to the victim, who identified Miller as the robber.

Open and shut, right? Here are the problems in the case:

- the girlfriend had three armed robberies pending already
- her co-defendants in those three armed robberies was Miller's nephew
- the girlfriend had tried to blame Miller in one of those armed robberies, until police discovered it was impossible because Miller was in jail at the time of the robbery
- the girlfriend's car was used in all four robberies
- the description initially given by the victim matched Miller's nephew, including his facial hair
- the police did not include a photo of Miller's nephew in the photo array shown to the victim
- in exchange for testifying against Miller, the girlfriend was offered a plea deal to accessory instead of to armed robbery (armed robbery in state court carries ten - thirty years)

Although the trial judge allowed Miller's attorney the opportunity to introduce evidence of third-party guilt, Miller's attorney failed to effectively cross-examine the girlfriend on the use of the same car and the similarities of the gun used in the prior three robberies committed by the girlfriend and Miller's nephew. Miller did not take the stand and no witnesses were called in his defense. Given that third party guilt and an eyewitness identification were Miller's only defenses at trial, Miller's attorney should have obtained an expert in eyewitness identification to explain its pitfalls to the jury.

I believe that, absent a compelling reason, the defendant has to take the stand and tell the jury his story. It does not matter that the law says the jury can't hold a defendant's silence against him and it does not matter how many times the judge cautions the jury not to take it into consideration - the jury will hold it against him. They will think: if he didn't have something to hide, he would have taken the stand.

Whenever possible, other witnesses have to be found to corroborate the defendant's testimony or to counter the state's witnesses. Once the defendant has taken the stand and testified, at that point you have lost last closing argument and there is no reason not to call as many additional witnesses as you can. If you can get a jury to understand reasonable doubt and the fact that the burden of proof is on the government that is well and good, but you have to assume they will not hold the government to their burden and they often don't. They want to hear why your client is not guilty.

In each PCR that I have handled, the recurring issue that stood out when reading the transcripts is that the trial attorney did not give the jury a theory of the case. This is not grounds for PCR, although maybe it should be. If the defense lawyer does not give the jury the defendant's theory of the case and tell the defendant's story, the jury has no framework to operate from except the prosecution's theory of the case.

In this case the prosecution failed, by using unreliable testimony coerced with the promise of freedom, and by not recognizing or not caring about the problems with the eyewitness identification. The defendant's own attorney failed, by not presenting Miller's defenses to the jury. The PCR Court failed, by not correcting the potential injustice when it came before it. But the South Carolina Supreme Court got it right, and Miller now has the opportunity to have a jury hear his defenses and make an informed decision on his guilt or innocence.

In Williams v. State, the South Carolina Court of Appeals held last month that registration as a sex offender is a collateral consequence of a kidnapping conviction, and therefore cannot be grounds for post conviction relief.

South Carolina's sex offender registry laws require that a conviction of kidnapping will automatically result in classification as a sex offender unless the judge makes a specific finding on the record that the crime did not involve a sex offense.

Williams pled guilty to kidnapping, two counts of armed robbery, possession of a stolen motor vehicle, failure to stop for a blue light, and possession of a gun by a person under the age of twenty-one. The petitioner filed a PCR petition asking for relief based on the attorney's failure to advise him that a plea to kidnapping would result in sex offender status and based on the attorney's failure to request a finding by the judge that Williams was not a sex offender.

It would make more sense for the legislature to have permitted a requirement of registration as a sex offender if there was a finding that the crime involved a sex offense, rather than making registration automatic. There are not a lot of facts in the appellate opinion, but it does not sound like this was a sex offense. Making registration automatic leaves the door open for too many mistakes - lawyers and even judges are not always going to know about the requirement, or are not going to think about it during the plea.

The Court found that Williams' attorney was not ineffective, because counsel cannot be ineffective, for purposes of PCR, for failing to advise a client as to any collateral consequence. Williams undoubtedly feels that his lawyer was ineffective, now that he is faced with the prospect of being pegged as a sex offender for the rest of his life, having his picture, name, and address on the internet, living with residency restrictions, and possibly having to wear a GPS monitor.

Although sex offender classification is a collateral consequence and he will not be granted a new trial, Williams should have other options for removal from the sex offender registry - if there was no sex offense involved in his case, possibly the prosecutor could have consented to re-open his case for the sole purpose of allowing the judge to make a finding of no registration on the record. If that is not possible, Williams could file suit requesting a declaratory judgment that there was no sex offense involved in his crime.

Williams' case reminds us of why it is so very important to get it right the first time. It is much easier than fixing mistakes later on down the road.

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.

In 2001, Regina McKnight was found guilty of homicide by child abuse because cocaine was found in her system after her child was stillborn. Jody Barr at WBTW says that this was a landmark case, which set a national precedent. She may have missed this recent South Carolina Supreme Court opinion granting post-conviction relief to McKnight.

McKnight's first trial in January 2001 resulted in a mistrial, but she was convicted at her second trial in May 2001. The conviction was upheld on direct appeal, but this month, 6 years later, McKnight was granted post-conviction relief.

The prosecution of mothers who test positive for cocaine has been fraught with problems and controversial from the beginning. The idea of a pregnant woman using cocaine is offensive and the knee jerk response is that there is no doubt this is child abuse. But this view ignores the nature of cocaine addiction. Cocaine addiction is powerful enough that many who are addicted cannot make a conscious decision to stop using. When a person is under a compulsion to continue using drugs, there is no intent to harm the child - there is no "conscious act of disregarding a risk which a person's conduct has created." State v. McKnight (2003).

Prosecution of pregnant women who are addicted to drugs is counterproductive, and it is not a deterrence. It discourages addicted women who discover they are pregnant from seeking help. It discourages them from seeking prenatal care at hospitals or treatment for their addiction, for fear they will be arrested and prosecuted. It creates an incentive for women to seek abortions, to avoid detection and prosecution.

It would make more sense to make it known that if an addicted and pregnant woman comes to a hospital for help, they will receive not only prenatal care but confidential referrals to treatment programs. It makes sense to invest more resources in long-term treatment programs that are equipped to deal with the specialized needs of pregnant women, and women with very young children.

It is always a popular political move to prosecute and punish any given class of "criminal." Treatment, prevention, understanding, compassion does not win votes.