South Carolina Criminal Defense Blog

Why shouldn't they? And why shouldn't defendants get a fair trial in the magistrate or the municipal court?

There are magistrates in our state, and there are excellent municipal court judges, some of whom have law degrees and some who don't, who follow the law to the best of their ability, and who are concerned about defendants receiving fair treatment in their courts.

There are also many magistrates and municipal court judges throughout the state who refuse to follow the law, and who see themselves as extensions of law enforcement. Why do we continue to allow this attitude in our lower courts? There are some lower court judges who will deny every motion made by a defense lawyer, and who will grant every motion made by a solicitor or officer, without even the appearance of listening. There are many who refuse to look at case law.

In a recent trial, I was informed by a magistrate that he simply disagreed with the United States and South Carolina Supreme Courts; disagreed with the 20 or so appellate court opinions I provided to him; and disagreed with the circuit court order I provided him overruling and reversing the last lower court judge who refused to acknowledge the same law and the same cases. Several months ago, I was informed by another magistrate that he did not make enough money to decide constitutional issues (He then said he was joking. The fact is, joking or not, he then went on to refuse to decide the constitutional issue, and continued to state that it was an issue for a higher court, not him.)

This isn't sour grapes. In the last two cases I mentioned, I am proud to say that juries did what the judges could not and gave justice to my clients. It's frustration, and it's disappointment. It's acknowledging that we can do better. There is a need for summary justice in the lower courts, dispensed quickly. But it must be justice - if we cannot give our lower court judges a legal education, we need to make sure that they have enough training in the rules of evidence to make adequate decisions during trial; that they understand stare decisis and the importance of obeying the mandates of higher courts; that they have a working understanding of the Constitution; and that they are functioning as neutral and detached judges.

Many of our magistrates are either former police officers or probation officers. That is fine, if they understand the neutral and detached role of a judge and if they are not police officers while sitting on the bench.

We have a system that provides trained attorneys to prosecute mostly pro-se defendants in the magistrate and municipal courts. Most cities have full time or part time prosecutors, and most magistrate courts have assistant solicitors assigned to them to prosecute DUI's and CDV's, if not other crimes. But neither the municipal courts nor the magistrate courts provide a defense to those who cannot afford counsel - which is most of the people who find themselves there. Despite the United States Supreme Court telling us that the Sixth Amendment right to counsel does indeed apply in the lower courts, where a person is facing jail time, our Chief Justice has instructed the magistrates not to appoint counsel to indigent defendants.

I've no doubt that justice in the lower courts has improved by leaps and bounds in the last few decades. We are not there yet.

In State v. Justus, decided May 9, 2011, the S.C. Supreme Court held that it was not an abuse of discretion for the trial court to remove one of the defendant's court-appointed attorneys in a murder prosecution where the attorney also represented an investigator in the solicitor's office in a divorce matter, and the investigator may have been called as a witness.

The prosecutor moved for the removal of the defense lawyer from the case, basing their motion on the S.C. Supreme Court's decision in State v. Gregory, 364 S.C. 150, 612 S.E.2d 449 (2005), where the Court found it was reversible error for the trial court to refuse to grant defense counsel's motion to be relieved when defense counsel simultaneously represented an assistant solicitor in a divorce action.

The Supreme Court's ruling in Montejo v. Louisiana that law enforcement can contact represented counsel and seek a waiver of Miranda rights was never intended to apply to prosecutors, and one would hope that it was never an open question. Despite this, as predicted, some prosecutors are attempting to use the Montejo decision as a rationale for sending police to interview defendants in criminal cases. In Arizona, Martin Brannan and Michael Whiting, a County Attorney and Chief Deputy County Attorney, were disciplined last month for authorizing investigators to question a defendant without his attorney present.

In Count One, Respondents, in their capacity as county attorney and chief deputy county attorney, authorized county investigators to interview a criminal defendant (who was incarcerated and represented by counsel) to ascertain whether or not the defendant had been advised by his attorney of the pending plea offer. Respondent Brannan erroneously believed that pursuant to Montejo v. Louisiana, 129 S.Ct. 2079 (Louisiana 2009), it would be permissible to interview the defendant regarding the plea as long as the investigators “Mirandized” the defendant and he waived his right to have his counsel present. The defendant’s attorney did not receive advanced notice of the visit and was not present during the visit.

Whiting was further disciplined for a press release where he criticized a judge for subsequently dismissing the defendant's case. Prosecutors are subject to the same ethics rules that every other attorney is subject to, which includes the prohibition on communication with represented persons; and prosecutors cannot direct law enforcement to interview a represented defendant in order to get around the ethics rules.

H/T Legal Profession Blog

In Ex Parte Brown, decided June 21, 2011, the S.C. Supreme Court has finally held that lawyers are entitled to compensation for their services, and that denial of reasonable compensation is a violation of the Fifth Amendment's Takings Clause. The opinion arose from a Beaufort County case in which the trial judge refused to order compensation above the statutory maximum of $3500 to appointed counsel after a complex trial, a decision which was appealed by trial counsel. The S.C. Bar filed an amicus brief urging the Court to hold that denial of reasonable compensation implicates the Fifth Amendment as an unjust taking.

The South Carolina Bar appears Amicus Curiae. The Bar contends that the appointment of attorneys to represent indigent litigants implicates the Takings Clause of the Fifth Amendment to the United States Constitution. See U.S. Const. amend. V ("[N]or shall private property be taken for public use without just compensation.").[1] We agree and hold today that the Fifth Amendment Takings Clause is implicated when an attorney is appointed to represent an indigent litigant. In such circumstances, the attorney's services constitute property entitling the attorney to just compensation.

Our willingness to consider the Bar's request and our ruling today in no manner changes the nature of the practice of law in this state. Our holding is a narrow one, limited to an attorney's constitutional entitlement to compensation in appointed cases. We continue to adhere to the view that the license to practice law is a privilege and not a right. As such, the practice of law remains subject to control, regulation, and discipline—all as this Court directs.

The Court states that their holding applies only to court appointed representation commenced after July 1, 2012 (can someone explain how the Fifth Amendment applies after July of 2012 but not before?). This neatly avoids the substantial debt that has been incurred since the state stopped paying vouchers for appointed counsel in civil cases.

The Court also holds that Brown himself is not entitled to compensation above the statutory cap, despite the judge's assurance before trial that he would be compensated, and despite the payment of $17,268.03 as costs for investigative work and expert fees, citing Brown's "unprofessional conduct" in refusing to go forward at various stages of the proceedings and holding that it was within the trial court's discretion to deny his fee based on his conduct.

In defense of Jim Brown, an excellent trial lawyer and one hell of an advocate for his clients, appointed and retained, there is quite a bit of background that the Court has not provided in their opinion. Before this case went to trial, SCCID had announced that they were no longer paying vouchers in criminal appointments - Jim, and other attorneys including myself, filed motions to be relieved as counsel, to halt the prosecution of our clients, or to release our clients from custody pending the procurement of funds to pay appointed counsel.

The announcement that appointed counsel would receive no compensation whatsoever created a conflict between counsel and client, effectively denying the defendant their Sixth Amendment right to counsel. When faced with complex litigation, effectively defending a person shuts down your office, and without adequate compensation, can put a small firm out of business. When faced with a decision between spending time on an appointed client's case and closing the doors or spending time on a retained client's case who is paying the bills, the choice is one of survival and the appointed client's representation suffers.

Following this case and substantial media coverage of motions asking courts across the state to halt prosecutions, SCCID announced that it would resume payment of criminal vouchers, although it then elected not to pay civil vouchers instead. Jim's "unprofessional conduct," his refusal to proceed with the trial until threatened with jail, and his subsequent litigation of the fee issue, has resulted in a landmark decision for the State of South Carolina that benefits every attorney in the state who is subject to appointments and that benefits all indigent defendants in the state, improving the quality of their representation.

In Turner v. Rogers, decided on June 20, 2011. the U.S. Supreme Court overturned the S.C. Supreme Court's ruling that indigents are not entitled to court appointed counsel before being sentenced to up to a year for contempt for not paying child support. Sort of. They still held that an indigent person is not automatically entitled to court appointed counsel, but stated that there must be "substitute procedural safeguards," that must include:

(1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.

Consider the irony in debating whether an indigent person (look up any definition of indigent - no matter how you slice it, we're talking about a person who does not have money) should be provided counsel before being sentenced to a year in prison for not paying money.

Because the contempt is civil and not criminal, the contemnor is not entitled to all of the safeguards that they would have in a criminal proceeding. It is civil because the contemnor can purge himself of the contempt and avoid the prison sentence by complying with the court's order and paying the money. Of course, in most cases they would not be in this situation if they had the money to pay, and, again, we are specifically talking about indigent contemnors.

The Court points out that, in civil cases, there is a presumption of a right to counsel only in those cases involving incarceration, but not in all cases involving incarceration. The Court points out that the child support pay-ee typically does not have counsel, and so to provide counsel to the child support pay-or would be unfair, because trained counsel is not prosecuting the case on behalf of the pay-ee. The reality is, the pay-ee is not getting sentenced to substantial prison time, and in many cases, trained counsel is prosecuting the case - the judge.

Consider the facts of this case - at Turner's hearing, the court clerk informs the judge that Turner is $5728.76 behind in his payments. The judge asks Turner is there "anything you want to say?" Turner tells the judge that he is a drug addict and that he was not working for a period of time, that he is now clean, that he went back to work but that he broke his back on the job and is now disabled. The judge then sentences him to one year in prison for willful contempt, with the option of being released if he pays the money, and with no inquiry as to his ability to pay.

I wonder if the biggest problem with this opinion is that the Court assumes this is civil contempt - if a contemnor at one time had an ability to pay but did not not, and currently has no ability to pay, it seems to me that we are talking about criminal contempt based on his or her past actions. If civil contempt is defined by the contemnor "holding the keys to the prison door" by having the ability to "purge the contempt" and comply with the court's order, this case does not meet that definition.

The "procedural safeguards" described by the Court are not likely to provide any real protection to those sentenced for contempt - any judge who would conduct a hearing in the manner that Turner's was conducted is probably going to find the person in contempt and sentence them to prison anyway. It appears that South Carolina's family courts are already ignoring a requirement that the failure to pay be willful, and that the contemnor have the ability to pay before the judge may sentence them to prison. The holding in Turner v. Rogers does nothing more than tell S.C. courts to do what they are already supposed to be doing.

The Post and Courier is reporting that the Berkeley County Public Defender's Office is threatening to close its doors for two months this year due to lack of funding. If the state is not providing adequate funding, and they are not, the only effective response is to either shut the doors or begin to refuse cases. We need to speak up and we need to support the circuit public defenders in doing what is necessary to obtain the funding that they need.

The legislature is not going to listen to one lone voice in the wilderness. The lone voice in the wilderness tends to get blacklisted and pushed out. The leadership of indigent defense services in this state needs to stop going along and getting along, they need to fight for the ability to provide an effective defense to each of their clients, and they need to do it as a group.

If clients are not getting effective representation, the chief public defenders/ circuit public defenders need to take a stand as a group - not individually - and refuse cases to ensure that they are adequately serving the clients that they do have. If a rank and file public defender feels that they are forced into a plea or forced to trial without adequate preparation, they need to speak up and make a record about what has not been done in any particular case and why. Prosecutors, who have the same duty to protect the Constitution and the Right to Counsel as the rest of us, should be supporting the public defenders in this fight.

"Part of what we do is try to make sure that cases that can be resolved and disposed of fairly quickly, get done and either get those people out of jail on probation or into the Department of Corrections," Kennedy said.

The above quote is from Chief Berkeley County Public Defender Patricia Kennedy. If this is what the public defender's job is, and there are not sufficient resources to get "those people" out of jail and onto probation or into the department of corrections, there is no question that effective representation, which should include an independent investigation of every client's case and at least some trial preparation, cannot be provided.

The following is a portion of the discussion in the comments from my last post, Why bother?:

As a public defender in an office that does not waive prelims, I agree with you on the usefulness of prelims. However, as to the squeaky wheel getting the grease, we don't have time to squeak. We don't have time to do a quarter of the things we want to do in each and every case. We are in triage mode all day every day. We have been informed that refusing additional cases is not an option. I carry a caseload of 150 cases at all times, all of which are violent felonies, 45 of whom are in jail. When I go to trial, 149 clients suffer so that I can take care of one. In 4 years, my office has reduced the number of attorneys by a third, while the number of cases handled by the office has increased by at least a third. All the while, I put up with judges, solicitors and private attorneys who believe its okay to treat me and my clients badly, because I am just a public defender. I have been told that because I am public defender I don't care, I don't try, I can't be a real lawyer, I should shut up and take it. I don't see private attorneys offering to help with the plight of the public defender. I don't see them offering words of encouragement. I don't see them advocating on our behalf. They show up when they want to know if my client is going to testify against them, or if they want a copy of a motion or memo I have done or if they want dirt on a state expert and they show up when I have been sitting in court for 3 hours waiting to do a plea and bump me out of line because their time is more valuable than mine.
If you have time to be outraged, why not lobby the legislature to get more funding for public defenders? Or forward your motions and memos to your local public defenders' office? Or tell the solicitor, let the public defender who has been sitting in court all day do their plea before me? Should these public defenders be waiving all prelims? NO! Does something have to give somewhere within the public defender system? YES! Can private attorneys help? I don't know, but please try. We are drowning!

Posted by: xxxx | March 30, 2011 9:37 PM

I am advocating on your behalf. I'm not a lobbyist and that's not my thing. But, how many people reading this work in government or know someone that does?

I think that to follow the ethical standards, the rank and file public defender would have to refuse cases when they can no longer provide competent representation due to overload. In most offices, what would happen then is that someone will be hired, to replace them, that won't refuse cases. Then how do you pay the bills?

The leadership of indigent defense has to make sure that public defenders are not put in the position of choosing ethics and no job vs. ineffective assistance and a paycheck. Chief public defenders and up.

Posted by: BFrederick | March 30, 2011 10:34 PM

In my office, we have been told that if we leave, we will not be replaced because of the budget. Our cases will be spread over the remaining attorneys who are already overloaded. Where does that leave my clients? If I take the stand that you propose, I screw my clients even more. I care about my clients and can't just abandon them. Its not just about a pay check.
The problem is that the leadership is not making sure that public defenders are not put in that position and even when they try to take a stand, it is just a single voice and the voice of a public defender at that. No one else cares. Those private attorneys who have power and influence don't seem to want to use it for public defenders or their clients. I appreciate you bringing attention to this, but you are one of few and I don't see any relief in sight

Posted by: xxxx| March 31, 2011 3:16 PM

In Horry County, the public defender's office refuses to appear at any preliminary hearings, and the magistrates refuse to allow the public defender clients to go forward without their attorneys - the two together amounts to a systemic denial of due process for a majority of criminal defendants in Horry County. The preliminary hearing is a critical stage of the process, where the defendant or his attorney is able to cross examine the arresting officer to determine what the probable cause is for his arrest, and discover at least some of the evidence against him. The right to a preliminary hearing is guaranteed to every defendant with general sessions level charges:

§ 22-5-320. Defendant's demand for preliminary investigation; appearance by attorney
Any magistrate who issues a warrant charging a crime beyond his jurisdiction shall grant and hold a preliminary hearing of it upon the demand in writing of the defendant made within twenty days of the hearing to set bond for such charge; provided, however, that if such twenty-day period expires on a date prior to the convening of the next term of General Sessions Court having jurisdiction then the defendant may wait to make such request until a date at least ten days before the next term of General Sessions Court convenes. At the preliminary hearing, the defendant may cross-examine the state's witnesses in person or by counsel, have the reply in argument if there be counsel for the State, and be heard in argument in person or by counsel as to whether a probable case has been made out and as to whether the case ought to be dismissed by the magistrate and the defendant discharged without delay. . . .

Sitting in preliminary hearing court last week I saw a typical example - there was a decent sized crowd of people sitting in the audience, and a small group of inmates sitting in the jury box, with sheriff's deputies standing guard nearby. There are two jury boxes, one on each side of the courtroom - on the right side are the inmates and on the left side is a group of 10 - 12 officers, some sitting in the jury box and some standing. Two prosecutors stand at the table on the left, talking with officers and attorneys who are trying to get out of there sooner rather than later. There are no public defenders in the room. There are three private defense lawyers apart from myself, and two of those quickly waive their clients' prelims and leave.

The magistrate assigned to handle prelims today comes out and takes a seat on the bench, makes some opening remarks explaining what a preliminary hearing is, and then launches into a review of the docket for the morning. As one of the prosecutors begins to call out the first names on their list, the judge asks her to stop, notes that this will save some time, and asks for anyone who is represented by the public defender to stand up.

One at a time, the judge identifies those who have applied for a public defender - it quickly becomes clear that none of these individuals have spoken to their attorney, although they have filed their application for a public defender it is still early in their case and many do not even know their attorney's name. As each person identifies his or herself, the judge explains that the public defender does not do preliminary hearings and therefore that person's hearing is waived. One at a time, they walk out of the courtroom, confused and angry. Towards the beginning, two of them try to argue with the judge, explaining that they are prepared to go forward without their lawyer, but the judge refuses, explaining that if their attorney says their hearing is waived then it is waived. Have a nice day.

I understand the Court's reluctance to let defendants proceed pro se - when a defendant tries to handle their own preliminary hearing it is usually something like a train wreck. The officer testifies, then the defendant tries to tell the judge what really happened, rather than asking questions of the officer. The Court has to repeatedly cut off the defendant and explain that they are not there to testify and they can only ask questions. The defendant doesn't know what questions to ask or how to ask them, they only want to explain their side of things and they do not understand the process.

But I do not understand the refusal of the public defender's office to even appear on behalf of their clients - regardless of the public defender's personal view of the efficacy of preliminary hearings, it is a critical stage of the proceedings, it is a right guaranteed to every defendant by statute, and the denial of preliminary hearings to every indigent person in the county is a systemic denial of due process. In my opinion, each public defender who does not appear on behalf of their client, whether the boss has ordered it or not, is committing malpractice.

There is no downside to preliminary hearings - no harm comes to the defendant, they cannot go to jail if they lose, their charges cannot be increased if they lose. Many lawyers will say they are a waste of time - they will tell you that magistrates never dismiss a case at the prelim, and even if they do dismiss the case the solicitor's office can still have the case indicted by the grand jury. But the truth is, cases do get dismissed at prelims. Some cases are terrible, some arrests should have never been made, some magistrates can recognize this and they will dismiss when there is no probable cause. When the case is dismissed, sometimes the assistant solicitor on the case takes the time to look at why it was dismissed and they leave it that way.

When the case is not dismissed, or if it is dismissed and the solicitor indicts it and revives the charges, the benefit is still obvious. We now have a transcript of the officer's testimony, early in the case, as to what the evidence will show. The officer is now locked into that testimony and the transcript can provide invaluable impeachment material for trial if the officer tries to change the story when trial begins. It also gives us a picture of who the officer is, how they will testify, will they lie on the stand, are they evasive, or are they straight up and honest. All of which is invaluable if this case goes to trial.

Which tells me there are two reasons why attorneys waive preliminary hearings - 1) they are lazy; and/or 2) they have no intention of taking their client's case to trial. Who cares what the officer's testimony is going to be if I know I am never going to try the case.

Or, in the case of the public defender's office, perhaps the reason is because they are too busy. Is it because case loads are too high, we don't have sufficient funding to hire enough public defenders to handle the case load, and so we must perform triage, trimming the less essential parts of representation? I understand that, I was a public defender once, and I empathize. But nevertheless - shame on you for abdicating your responsibility for your clients. If the problem is case load and time constraints, stop taking new cases. Period. Don't screw the clients that you have and blame it on the legislature or anyone else. Refusing to appear at preliminary hearings, or neglecting any other part of client representation, is not going to get the legislature's attention and inspire them to fund your office. They are cheering you, applauding the fact that more defendants will be found guilty. Some of them would cut your funding completely if they could.

Almost two years ago, the U.S. Supreme Court held in Melendez-Diaz that the right to confrontation required that a live chemist take the stand to testify as to the results of drug tests, invalidating the widespread practice of introducing a chemist's affidavit in lieu of testimony (you can't cross-examine a piece of paper). Last week Melendez-Diaz was re-tried in Massachussetts, the chemist appeared, testified, and was subject to cross-examination, and Melendez-Diaz was acquitted by the jury. (H/T Criminal Defense Blog)

It's always interesting to find out what happens to Defendants in landmark cases when their case is sent back for re-trial - another example is Clarence Earl Gideon, who was forced to defend himself because he could not afford an attorney, was convicted, appealed, and ultimately his name became the title of arguably the most famous case in American jurisprudence. He was given an attorney when his case was re-tried in Florida, and was finally acquitted by a jury :

Two thousand individuals convicted in Florida alone were freed as a result of the Gideon decision. Gideon himself was not freed. He instead got another trial.

Gideon chose W. Fred Turner to be his lawyer for his second trial. The retrial took place on August 5, 1963, five months after the Supreme Court ruling. Turner, during the trial, picked apart the testimony of eyewitness Henry Cook, and in his opening and closing statements suggested the idea that Cook likely had been a lookout for a group of young men who broke in to steal beer, then grabbed the coins while they were at it. Turner also got a statement from the cab driver who took Gideon from Bay Harbor, Florida to a bar in Panama City, Florida, stating that Gideon was carrying neither wine, beer nor Coke when he picked him up, even though Cook testified that he watched Gideon walk from the pool hall to the phone, then wait for a cab. This testimony completely discredited Cook.

The jury acquitted Gideon after one hour of deliberation.

After his acquittal, he resumed his previous way of life and married again some time later. He died of cancer in Fort Lauderdale on January 18, 1972, at age 61. Gideon's family in Missouri accepted his body and laid him to rest in an unmarked grave. A granite headstone was added later.

Ernesto Miranda, on the other hand, was not so lucky - following his victory in the U.S. Supreme Court which resulted in a bedrock opinion requiring law enforcement to tell suspects what their rights are in an attempt to stop coercive interrogations, Miranda was retried in Arizona without the coerced confession and was again convicted. In an ironic turn of events, he was later murdered in a barfight, and the suspect in his murder invoked his Miranda rights upon arrest:

The Supreme Court set aside Miranda's conviction, which was tainted by the use of the confession that had been obtained through improper interrogation. The state of Arizona retried him. At the second trial, his confession was not introduced into evidence, but he was convicted again anyway. He was sentenced to 20 to 30 years in prison.[3]

Miranda was paroled in 1972.[3] After his release, he started selling autographed Miranda Warning cards for $1.50.[4] Over the next years, Miranda was arrested numerous times for minor driving offenses and eventually lost the privilege to drive a car. He was arrested for the possession of a gun but the charges were dropped. But because this violated his parole he was sent back to Arizona State Prison for another year.

After his release, Miranda spent most of his time in poorly kept bars and cheap hotels in rough sections of Phoenix. Miranda, then working as a delivery driver, participated in a card game at La Amapola Bar. On January 31, 1976, a violent fight broke out and Miranda received a lethal wound from a knife; he was pronounced dead on arrival at Good Samaritan Hospital. Several Miranda cards were found on his person. He was 34 years old. A suspect was arrested, but he chose to exercise his right to remain silent after being read his Miranda rights. The suspect was released and supposedly fled to Mexico. The Miranda murder case was closed without ever apprehending the murderer.

In State v. Anderson, decided December 21st, the South Carolina Supreme Court held that authentication of a 10-print fingerprint card does not require the testimony of the person who actually took the fingerprint. Although trial counsel did not object on grounds of hearsay, the Court noted that the fingerprint card is admissible under the public records exception. The only question remaining is then whether the document was authenticated.

State v. Rich, 293 S.C. 172, 359 S.E.2d 281 (1987), requires evidence as to when and by whom the card was made and that the prints on the card were in fact those of this defendant. "The State in this case presented evidence regarding: when and where Anderson's fingerprints were taken; how they were submitted to SLED; the process implemented by law enforcement for taking the fingerprints; and how an accurate record of them was maintained in the AFIS." In addition to the testimony of the State's "fingerprint analysis expert," who testified that the prints on Anderon's card matched the prints that were lifted from the crime scene, the Lieutenant in charge of the crime information center at SLED and who oversees the AFIS (automated fingerprint identification system) also testified as to the procedure by which fingerprints are collected and stored. The Court held that this was sufficient to satisfy the authentication requirement under Rule 901 of the Rules of Evidence.

It seems to me that this issue falls squarely under Melendez-Diaz, where the U.S. Supreme Court held that it violates the Confrontation Clause to admit a chemist's affidavit in lieu of the chemist's live testimony to prove that a substance is in fact an illegal drug, and the S.C. Supreme Court's reasoning is the same as that which was rejected in Melendez-Diaz - that it would put too high of a burden on the State to produce the live witness who created the document:

To require this type of testimony would create an unrealistic standard and, at times, an insurmountable obstacle for the State. Given the thousands of fingerprints on file with SLED, it would be difficult to locate and procure testimony from the actual person. There may be instances where the person has changed jobs, has relocated out of state, or may be deceased. If the actual person is unavailable for any of these reasons, then the State could never definitively establish the authenticity of a suspect's fingerprint card.

The U.S. Supreme Court rejected this argument in Melendez-Diaz, and held that we cannot disregard the Constitution because it is inconvenient:

Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the “‘necessities of trial and the adversary process.’” Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.

Requiring the live testimony of the creator of a fingerprint card would not be as burdensome as the Court believes, it would merely create more work for law enforcement and the prosecution. Suppose that law enforcement gets a hit from AFIS from a latent print taken at a crime scene - even if they could not produce the technician or officer who took the original card, this would give them their lead to investigate and obtain further evidence, and wouldn't it provide enough evidence to warrant obtaining a new fingerprint card that could be authenticated at trial? This would avoid the possibility that an old fingerprint card was mis-filed, wrongly numbered, tampered with, or damaged, which is the reason that we require the testimony of the person who created the document.

Prelude to Montejo
Montejo Part I

Montejo v. Louisiana, decided in May of this year, overruled Michigan v. Jackson, which said that police could not initiate an interrogation of a defendant once the Sixth Amendment right to counsel had attached. Per Montejo, police can now seek a waiver of rights and interrogate a defendant even after they are represented by counsel.

Why is Jackson no longer needed?

Edwards and Minnick held that once a defendant requests an attorney during custodial interrogation the police must cease questioning and must not re-initiate questioning without an attorney present. The purpose of these cases was to "prevent police from badgering defendants into changing their minds about their rights," the effect of which might be to "coerce a waiver, which would render the subsequent interrogation a violation of the [Fifth or] Sixth Amendment." The Court concludes that the trilogy of Miranda, Edwards, and Minnick are more than sufficient to protect defendants' Fifth and Sixth Amendment rights.

The police will not badger defendants into waiving their rights, because all a defendant need do is tell the police he does not want to speak without an attorney present, and the police will stop the interview.

Montejo shows a world-view that is in opposition to that of the Miranda/Edwards/Minnick/Jackson Courts

The Miranda decision and those that followed it recognized that coerced confessions were a reality and that physical beatings had given way to coercive psychological interrogation tactics such as the Reid Technique which is still used today.

In Michigan v. Jackson, the Court made the proud statement that "doubts must be resolved in favor of protecting the constitutional claim. . . . Waivers are presumed "involuntary based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily in subsequent interactions with police."

The Montejo Court balances the Constitution against the needs of law enforcement, and finds that the importance of the Sixth Amendment right to counsel protected by Jackson is minimal compared to “society’s compelling interest in finding, convicting, and punishing those who violate the law.”

The Montejo Court states that in determining whether a Sixth Amendment waiver was knowing and voluntary, "there is no reason categorically to distinguish an unrepresented defendant from a represented one." I can think of a reason - because that defendant has sought the protection of the Sixth Amendment. Because, as the Court stated in Jackson, "The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."

The Court has shifted from one that had, for a time, placed the utmost importance upon the ideals of our founding fathers in protecting us from an oppressive government to a Court that, at least in the context of police interrogation, is willing to look the other way while those same ideals are violated by the same government.

Montejo shows a world-view that is sheltered and out of touch with reality

Reading the majority opinion in Montejo, the impression one is left with is that the authors have never practiced criminal law of any kind, have never been involved in a criminal investigation, and have never had a real police encounter.

The Court states that Miranda and Edwards are sufficient to protect defendants' Sixth Amendment right to counsel as well as their Fifth Amendment right against self-incrimination during custodial interrogations, because all a defendant needs to do is request an attorney and the police will immediately stop the interview.

Because police in this day and age are considerably more professional than they were in the days of Michigan v. Jackson, they will stop questioning a defendant. Because the Court said to. Except that is not always how it works - it never has been and I doubt that it ever will be. In order to obtain a waiver of Miranda, police can and do lie to their suspect. Many officers/investigators do things right, are conscientious, and respect the rules. Some record interviews from the moment they step into the room. Others don't. The statement that is heard in court is not often from the beginning of the interrogation. Often, before a waiver is given, the police must persuade the person to waive their rights - for example:

Cop: We want to speak to you, you don't mind do you?
D: I want my attorney to be here.
Cop: Why do you need an attorney if you have nothing to hide?
D: Well, he told me not to talk to the police.
Cop: It's only going to help your case if you talk to us. Your buddy is next door as we speak and he is blaming all of this on you. We know he's the bad guy, you only played a bit part in this, you aren't going to take the fall for this are you?
D: He's lying, I didn't do anything!
Cop: Well, listen, I need you to sign this form before we can talk anymore, I'll go over each line with you and you need to initial it here, here, here. It's just a formality.

The officer obtains a signed waiver of rights, then begins the interrogation anew. Once the officer gets a version of events that he feels will help to convict, the audio or video is turned on and the finished product is recorded for posterity.

The Montejo Court makes short thrift of the absence of any protections outside of the context of custodial interrogations - "noninterrogative interactions with the State do not involve the inherently compelling pressures that one might reasonably fear could lead to involuntary waivers." Non-custodial interrogations are "the least likely to pose a risk of coerced waivers. When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering."

Lets review: When a defendant encounters the police in the real world, he is in control. He need only shut his door or walk away.

Effects of Montejo

- The police will now get at least one free shot at interrogating any defendant, regardless of the defendant's prior requests for counsel in court.

- There will be a marked increase in swearing contests between officer and defendant in pretrial motions to suppress (Defendant: I asked for a lawyer; Cop: No he didn't), which will almost always result in admission of the statement because the defendant has no way to prove what was said. Officers/investigators have the option of bringing a tape recorder or video recorder to an interview, but defendants do not. When there is a recording, the defendant does not operate it.

- We can expect some prosecutors to send investigators to question defendants without their attorney's knowledge, in preparation for trial. Note that Rule 4.2 of the ethics rules that govern attorneys prohibit any contact with a person who is represented by counsel, which also extends to contact through a third party such as an investigator or police officer:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

- When police begin to question defendants outside the presence of their attorneys, it will result in less confidence in the justice system and the reliability of convictions - false confessions have proven to be among the leading causes of wrongful convictions.

How do defense lawyers protect clients from interrogations after Montejo? We can instruct our clients not to speak to investigators about their case, and to only respond with "I want my lawyer," until the questions cease. Some clients, however, are susceptible to any perceived pressure from law enforcement (ironically, the same clients that may be most likely to falsely confess to something they did not do), and some police, despite what the Montejo Court may think, are quite persistent.

A member of our state criminal list-serve suggested that we file and serve notices declaring that our clients have not and will not waive their rights. The Court in Montejo notes, however, that Miranda rights cannot be asserted "anticipatorily":

We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’. . . .” McNeil, supra, at 182, n. 3. What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation—not what happened at any preliminary hearing.

If a defendant is not protected under the Sixth Amendment by asserting his rights in open court, I don't see how he will be protected by asserting his rights in a document either.

The only other suggestion that I have at the moment is, when a statement obtained through post-arraignment (initial bond hearing) interrogation is sought to be introduced at trial, preserve an objection based on the State Constitution's right to counsel as well as the Federal Constitution. Increasingly, state courts are stepping in to protect the rights of their citizens when the federal courts will not, and perhaps the South Carolina Supreme Court will take up the challenge.

Every criminal defense lawyer needs to read this opinion and consider what it means to our clients and to the ever-diminishing protections we are given by the Constitution. In a nutshell, Montejo overruled Michigan v. Jackson, which said that police could not initiate an interrogation of a defendant once the Sixth Amendment right to counsel had attached. Per Montejo, police can now seek a waiver of rights and interrogate a defendant even after they are represented by counsel. Some background, first:

The Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

MIranda v. Arizona:
The Miranda decision was based on the Fifth Amendment right against self-incrimination, and held that before questioning a suspect, the police must tell that person what their rights are, including that they have a right to an attorney:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the [p445] process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

In Miranda the Court recognized the need to protect accused persons against coercive interrogations, and recognized that coercion does not necessarily involve physical violence - the Court discussed in detail the psychological interrogation techniques that were, and still are, used by police to obtain confessions from a person. The Miranda rule applies only when a person is in custody.

Edwards v. Arizona:
Edwards reaffirmed that questioning must cease when a person asserts their right to counsel, and that the police cannot come back later and re-initiate questioning unless the person's attorney is present.

Minnick v. Mississippi:
Minnick further clarified Miranda and Edwards, holding that once a person has requested counsel and spoken to counsel the police cannot then come back and re-initiate questioning without the attorney being present.

Michigan v. Jackson:
The rules of Miranda, Edwards, and Minnick were based on the Fifth Amendment right against self-incrimination, and applied only to custodial interrogation. Jackson extended the Edwards rule to post-arraignment interrogation, and held that once an accused person has requested an attorney at his arraignment the police cannot then initiate contact with the defendant and seek a waiver of his rights - it should make no difference whether a person is speaking to police or to a judge when he asks for the assistance of counsel.

Jackson held that interrogation by government agents is a critical stage of the proceedings where a defendant is entitled to the assistance of counsel under the Sixth Amendment, and recognized that police interrogation is often a coercive and one-sided endeavor. The language of the opinion makes clear the importance that the Jackson Court placed on the protections of the Sixth Amendment:

"[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings 'is far from a mere formalism.' Kirby v. Illinois, 406 U.S. at 406 U. S. 689. It is only at that time that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." 467 U.S. at 467 U. S. 189.

As a result, the "Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a 'medium' between him and the State. . . ."

. . . "Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking, he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."

"The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."

I skimmed over Montejo v. Louisiana when it was released in May of this year, and did not take the time to read it and study it. That was a mistake - this is a must-read opinion that can and probably will change the practice of investigations and of criminal defense. Others have blogged about it and dissected it already, and back then Scott Greenfield pointed out that the case reinforces and makes even more important the directive that many of our clients ignore before retaining counsel: "The first thing out of your mouth is 'I want to speak with my lawyer.' Then shut up."

I was forced to take a look at Montejo when I discovered that a U.S. marshal, along with an unidentified SLED agent, had interviewed one of my clients at J. Reuben Long detention center a few days ago with no notice to myself, although I have been her attorney for approximately six months now and there is no question that she had invoked her right to counsel. I doubt that the marshal has heard of Montejo or reads appellate court opinions, but when I told other defense lawyers what he had done, their response was to read Montejo, which I did.

More on Montejo later. When I spoke with the marshal, he explained why there was nothing wrong with him and a SLED agent questioning my client:

1) It was ok, because he was only asking questions about her co-defendant who he is attempting to locate, and was not asking anything about her case. (Do I need to explain why questions about someone's co-defendant are exactly questions about that person's case?)

2) It was ok, because she waived her rights and signed a Miranda waiver form before he questioned her. (My response was it is not ok, because you do not approach my client and seek a waiver of her rights after she has invoked her right to counsel)

3) It was ok, because this is the way he has always done it and no-one has ever told him anything different. (My response was: the fact that you have been breaking the law for your entire career does not make it ok to break the law)

The truth is, if the marshal and SLED were looking for this individual that has disappeared off the grid, in this particular case we probably would not have had a problem with providing information to assist. He did not ask - instead he waltzed into the county jail and interrogated my client without my knowledge. Worse, he professes that he is not only unconcerned with my client's Sixth Amendment right to counsel, but that this is how he always does it.

I have been told that my client, when taken into the interrogation room, told them that she had a lawyer and did not want to speak with them. That they told her it was ok to talk with them, because they were only asking about the co-defendant. That it was ok to talk with them, because it would help her case. And that it was ok to talk with them, because I was a court-appointed lawyer who probably would not even come to see her for six months anyway.

I can't independently verify what was said, because I was not there. This is the danger of questioning a defendant outside of the presence of their attorney once they have asserted their right to counsel - unless there is a recording made, there are no witnesses. If a recording is made, the record button is not pressed until after the person has been persuaded to speak. What do you suppose happens when a case gets to court and the defendant says, "I told the officer I wanted my lawyer, but he kept after me," and the officer says, "No, she never said she wanted her lawyer?"

I was court-appointed to this particular case. That changes nothing regarding how I represent my client. We have visited this client three times in past 4 or 5 months, and have a regular correspondence with her. We care about this case no less than if she had paid a $20,000 fee. The part of the story where the interviewer essentially tells the defendant "trust me, because your court-appointed lawyer doesn't care about you," if that is what was said, would be the worst lie that was told to her in that meeting.

Edit: removed the marshal's name from the post.