May 17, 2013
7:22 pm
by: Bobby G. Frederick

MADD Money

MADD is a money-making machine.  Looking at their financial statement for 2010-2011, total income for one year was $40,309,411 and their assets totaled $24,124,298, which included $7,788,683 in cash and $11,434,482 in investments.  $9,980,269 of their revenue stream came from government programs.  $17,408,072 was spent on salaries and benefits for employees.

MADD received a “D” rating from the American Institute of Philanthropy (charity watch) this year, and Charity Navigator gave them 1 out of 4 stars, with a score of 26.28 out of 70 for their financial practices.  According to Charity Navigator, $11,683,626 of MADD’s yearly revenue was spent on fundraising activities.

According to David J. Hanson at alcoholfacts.org, MADD’s operation in Canada claims that 86.3% of it’s donations go to support its programs, but an investigative report done by the Toronto-Star in 2006 found that MADD was cooking its books, counting “payments to professional fundraisers as charitable work, claiming they educate potential donors as they make their pitch.”  Based on reports obtained from the Canada Revenue Agency’s Charities Directorate, which regulates charities, only 19% of donations were actually spent on programs and services.

Dr. Hanson’s website outlines more of the problems facing MADD, including how the organization has become neo-prohibitionist, MADD’s use of junk science to promote it’s agenda, MADD’s focus on money and fund-raising, and MADD’s disregard for constitutional rights.

Posted in DUI DWI Driving Under the Influence

May 17, 2013
5:03 pm
by: Bobby G. Frederick

Bill introduced to reduce BAC limit to .05

This week a bill has already been introduced in the S.C. legislature that would reduce the BAC limit to .05.  The bill proposes a new scheme of graduated penalties, for below .07, .07 to .12, and .13 or greater.  It would change the lower end of the BAC range in the DUI statute as well as the DUAC (driving under unlawful alcohol) statute from .08 to .05, and it would change the inference levels in 56-5-2950(G).

Under the current statute, the jury is instructed that they can “conclusively presume” that the defendant was not under the influence if the BAC was .05 or less.  From .05 to .07 there is no inference, and if the BAC is .08 or greater, the jury can infer that the defendant was under the influence.  Under the new proposed .05 statute, the jury can conclusively presume that the defendant is not under the influence if their BAC was .02 or less.  From .02 to .05 there is no inference, and if the BAC was .05 or greater, the jury can infer that the defendant was under the influence.

The proposed change is not based on any kind of science.  We currently presume non-intoxication at .05.  Now, with no scientific basis whatsoever, we are going to presume intoxication at .05?  Under the DUI statute, it is illegal to drive a motor vehicle “while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired,” which is directly contradicted by the arbitrary limit of .05 – a person’s faculties to drive simply are not materially and appreciably impaired at .05.

Under the per se statute, a person can be charged and convicted after having 2-3 drinks.  Some individuals, depending on their metabolism, gender, and size, may be charged and convicted after having one drink.

How will law enforcement develop probable cause for a .05 DUI?  The standardized field sobriety tests were designed to test for intoxication at a level of .10.  Most people who would register at .05 will not show signs of intoxication and will not “fail” the standardized field sobriety tests unless they are overweight or have other physical problems that would cause them to “fail” anyway.  Will the new probable cause standard be “I smelled alcohol?”

Changing the limit to .05 will make more money for the government.  It will make more money for attorneys.  It will bring the MADD mothers one step closer to prohibition.  It will give politicians something to campaign on until it is passed, but it will come home to roost when legislators and their friends and contributors start getting caught in the net.

Posted in DUI DWI Driving Under the Influence

May 15, 2013
7:17 pm
by: Bobby G. Frederick

Another Administrative Order that won’t be followed

On Monday, May 15, 2013, Chief Justice Toal issued a “365 Day Benchmark” Administrative Order, ordering that eighty percent of all criminal cases be disposed of within 365 days of the defendant’s arrest.  The other 20%, I assume are covered by ordering that “the circuit court may continue a criminal case beyond 365 days by written order if the court determines that exceptional circumstances exist in the case.”

The title of the blog post is rather blunt, but does anyone really expect that this Order will be followed?  It replaces Chief Justice Finney’s 1999 Order that stated “all criminal cases in the State of South Carolina shall be disposed of within 180 days from the date of the defendant’s arrest,” with the same provision for continuance by written order of a circuit court judge in exceptional circumstances.  I don’t know if anyone followed this Order in 1999, but in the past eight years I have not even heard of it, I have never seen a circuit court order continuing a case beyond the 180 day benchmark for exceptional circumstances, and any attorney can tell you that most cases today do not get resolved within 180 days.

Then, there was Chief Justice Toal’s February 2011 Administrative Order, ordering that all jury trials in the magistrate and municipal courts be disposed of within 120 days, with a companion Administrative Order in March 2011 specifically ordering that all DUI jury trials in the magistrate and municipal courts be disposed of within 120 days.  That shook things up a bit and got some press coverage, but after the Order was issued and still today, in most magistrate and municipal courts where I have cases, 120 days typically translates to approximately a year.

Then, following State v. Langford, on November 21, 2012, the S.C. Supreme Court issued the Uniform Differentiated Case Management Order (UDCMO), which was to take effect February 4, 2013,  outlining procedures that were to be followed statewide to enforce time limitations in a new court controlled docket management system, which included very specific procedural changes for bond hearings, “roll calls,” scheduling of plea and trial dates, and preliminary hearings.  Then, on December 20, 2012, the S.C. Supreme Court announced that the UDCMO would be held in abeyance while a committee was appointed to propose a plan for implementing the changes in the Order.

State v. Langford unequivocally states that South Carolina’s current docket system, which is controlled by the prosecuting attorneys, is unconstitutional.  So all defendants are currently being prosecuted in an unconstitutional court system, with no remedy that I can see, and no change anywhere as of yet.  I predict that the Chief Justice’s 365 Day Benchmark Order will be ignored, I predict there will not be written orders from our circuit court judges outlining the exceptional circumstances that justify continuances in 20% of criminal cases, and I predict that there will be no remedy for defendants.

Posted in Appellate Opinions, Jury trials, Legislation

May 14, 2013
8:01 pm
by: Bobby G. Frederick

South Carolina DUI – are we moving to a .05 BAC limit?

Today the National Transportation Safety Board (NTSB) announced their recommendation that all 50 states adopt new laws reducing the blood alcohol concentration (BAC) limit for prosecution to .05.  The NTSB says that research supports the notion that a person with a BAC of .05 or greater is impaired and should not be driving.

Although the NTSB is an “independent” agency that cannot change the laws and can only make recommendations, it is influential.  Along with the MADD mother’s massive lobby in Congress, the NTSB’s recommendations continue the push towards “zero tolerance.”  If the federal government were to adopt the NTSB’s recommendation, the next step would be to pass legislation that would force the states to comply with what the federal government wants – as with the prior pushes lowering presumptive BAC levels for DUI prosecutions, federal highway money would be tied to individual states’ compliance with what the federal government believes each state’s DUI laws should be.

There is nothing that makes .05 a reasonable cut-off.  The first drunk driving laws in our country, dating from the early 1900′s, made it illegal to drive while intoxicated, with no particular BAC level tied to the statutes.  Later, in the 70′s and 80′s, with the development of BAC testing and with a concerted push by groups like the MADD mothers, DUI laws were tightened and many criminalized driving with a BAC greater than .15.  Research showed that a person with a BAC greater than .15 is impaired and should not be driving.

Uniform state laws were later passed, under pressure from the federal government, to criminalize driving with a BAC greater than .10.  Research now shows that a person with a BAC greater than .10 is impaired and should not be driving.  In the last decade, the federal government required the states to lower their cut-off to .08 and to enact “per se” statutes like South Carolina’s Driving with an Unlawful Alcohol Concentration (DUAC) statute.  Research now shows that a person with a BAC greater than .08 is impaired and should not be driving.

Now research shows that a person with a BAC greater than .05 is impaired and should not be driving?  Was the research wrong the last three times, but now it is right?  Each time the limit is changed, it is an arbitrary decision that has nothing to do with “research.”  It is moving us a step closer to “zero tolerance” which is the ultimate goal.

Every person’s tolerance for alcohol is different – determined by height, weight, gender, metabolism, food consumed with the alcohol, and other factors – which is not accounted for in the DUI laws or in the mechanisms of the various methods of testing for BAC.  The average person who consumes 4 alcoholic beverages in one hour’s time will likely register .08.  That does not account for the individual’s adsorption rate or the other factors listed above.  Consequently, one person who registers a .08 may be intoxicated while another may not be.

The average person who registers .05 may have had 2-3 alcoholic beverages in an hour’s time.  A small female who registers .05 may have had one alcoholic beverage.  To change the presumptive BAC level to .05 would criminalize responsible behavior – a person who has two beverages at a restaurant with their meal and then drives home, who is pulled over for speeding or goes through a DUI checkpoint may blow a .05 on the breathalyzer and is now subject to jail and a subsequent prosecution that can could result in loss of their license, substance abuse counseling, astronomical insurance rates, a criminal record, and even a jail sentence.

Is a person with a BAC of .05 more impaired than a person who had nothing to drink?  Almost certainly, to some degree.  The only way to effectively stop automobile accidents and fatalities is to outlaw automobiles – it is the price that we pay for convenient, fast, personal transportation.  Where do we draw the line when criminalizing driving conduct in our efforts to make the roads safer?  Many jurisdictions have passed laws criminalizing texting while driving.  Some have criminalized talking on a handheld phone while driving.  What we really want to criminalize is any kind of “distracted driving” that could result in an auto accident – should we criminalize adjusting the radio while driving?  Putting on make up while driving?  Eating while driving?  Driving with young children in the back seat (if you have young children, you understand)?  Driving while sleepy?  My wife is reading over my shoulder, and she says spiders in the car should be criminalized.

Posted in DUI DWI Driving Under the Influence

May 2, 2013
7:19 pm
by: Bobby G. Frederick

State v. Pradubsri – cross-examining the snitch as to charges, potential sentences, and plea-bargaining

In State v. Pradubsri, decided May 1, 2013, the S.C. Court of Appeals re-affirmed that a defendant must be permitted to cross-examine a cooperating witness on the length of any potential sentence of the witness’ charges, even though it may inform the jury as to the potential sentence that the defendant faces.  In this case, the co-defendant’s charges were reduced from trafficking in crack cocaine 28-100 grams, which had a mandatory minimum sentence of 7 years and carried up to 30 years, and she was permitted to plead guilty to a lesser included offense and a sentence of 18 months.

The Court held that it was not harmless error, and the defendant’s convictions for (1) trafficking crack cocaine in an amount of twenty-eight grams or more but less than one hundred grams, (2) possession with intent to distribute (PWID) crack cocaine within proximity of a school, and (3) unlawful carrying of a pistol were reversed.

Pradubsri maintains the restriction on cross-examination regarding Martin’s exact potential legal exposure prior to her acceptance of the State’s plea offer violated his Sixth Amendment right to confrontation and was in contravention of our supreme court’s decision in State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002). We agree.

“The jury is, generally, not entitled to learn the possible sentence of a defendant because the sentence is irrelevant to finding guilt or innocence.” Id. at 331, 563 S.E.2d at 318. “However, other constitutional concerns, such as the Confrontation Clause, limit the applicability of this rule in circumstances where the defendant’s right to effectively cross-examine a co-conspirator witness of possible bias outweighs the need to exclude the evidence.” Id. at 331-32, 563 S.E.2d at 318. . . .

“A defendant has the right to cross-examine a witness concerning bias under the Confrontation Clause.” Id. at 331, 563 S.E.2d at 317. “On cross-examination, any fact may be elicited which tends to show interest, bias, or partiality of the witness.” Id. (internal quotation marks omitted).

South Carolina and federal appellate courts have consistently held that a defendant has the right to cross-examine a cooperating witness on the mandatory minimum and maximum sentences that the witness faces, whether they have already pled and were sentenced or if the charges are still pending, whether there is a “plea agreement” or not, or even when the cooperating witness could have been charged but was not.

In State v. Brown, 303 S.C. 169, 399 S.E.2d 593, (1991), the S.C. Supreme Court held it was reversible error not to permit the defendant to cross examine a co-defendant whose charges had been reduced from trafficking in cocaine to conspiracy, on the potential penalties the co-defendant faced on the original trafficking charges – the defendant’s right to meaningful cross-examination outweighs the State’s interest in excluding the evidence.

In State v. Elijah Smith, 315 S.C. 547, 446 S.E.2d 411 (S.C. 1994), the S.C. Supreme Court held it was error not to permit cross-examination of an eyewitness about his pending but unrelated charges; in this case it was harmless error because there were multiple witnesses and because the jury heard the question anyway before it was objected to.

In State v. Jeffrey Jones, 343 S.C. 562, 541 S.E.2d 813 (S.C. 2001), the S.C. Supreme Court held it was reversible error, in the guilt phase of a capital trial, to not allow defense counsel to cross-examine a cooperating witness regarding prior plea bargaining with the prosecutor’s office in unrelated cases, where the defense “sought to explore past dealings between Brown and the office prosecuting the current charges, not to impeach Brown through those dismissed charges, but rather to expose Brown’s bias and prejudice in the present case. This excluded evidence had “a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity” of Brown’s testimony.”

In State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002), the co-defendant had the same charges that the defendant had, the charges were still pending, the co-defendant had no “plea agreement” with the state, and the S.C. Supreme Court held it was reversible error not to permit the defendant to cross-examine the co-defendant on the potential sentence that they faced.

In State v. Sims, 348 S.C. 16, 558 S.E.2d 518 (S.C. 2002), the S.C. Supreme Court held that it was error (harmless error in this case) not to allow cross-examination as to what a witness’ pending charges were – although the witness admitted he had charges, and stated there was no agreement with the state, the defendant has the right to ask what the charges are and the potential penalties.  “There was the substantial possibility Peterson would give biased testimony in an effort to have the solicitor highlight to his future trial judge how he had cooperated in the instant case. The excluded evidence had “a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity” of Peterson’s testimony, State v. Jones, supra. Therefore, under these circumstances, we find the trial court committed error under Rule 608(c) by improperly limiting the scope of appellant’s cross-examination.”

In State v. Gracely, 399 S.C. 363, 731 S.E.2d 880 (2012), the S.C. Supreme Court held that the defendant must be permitted to question the co-defendants not only as to the potential maximum sentence but also as to the mandatory minimum sentences that they faced.  “The fact that a cooperating witness avoided a mandatory minimum sentence is critical information that a defendant must be allowed to present to the jury.” Id. at 374-75, 731 S.E.2d at 886.

The defense in Pradubsri preserved the record by arguing that the Sixth Amendment right to confrontation was violated, but it is not clear from the opinion whether defense counsel cited to the cases:

The State objected to this testimony as being irrelevant, but Pradubsri argued that pursuant to his right to confrontation under the Sixth Amendment, he was allowed to elicit this testimony from Martin. Further, Pradubsri contended case law supported his argument.

“Contended case law supported his argument,” is not quite as compelling as “citing numerous cases that supported his argument” would have been, assuming that the prosecutor and judge did not already know that the cross-examination was proper.

Posted in Appellate Opinions, Cross examination, Evidence, Sixth Amendment

April 23, 2013
5:46 pm
by: Bobby G. Frederick

Sources for stories, myths, and fables

I’ve been meaning to look for good collections of stories and myths to read, in the search for better ways to express ideas and to communicate with jurors.  I’ve been putting it off for years, until last week I discovered the IBooks app on my IPad.  In the IBooks store I ran searches for “myths,” “fables,” “parables,” and “story collections,” and I’ve already found and downloaded 46 free collections of stories, myths, and fables from different cultures across the world.  These are only the free to download books, and there are many more that cost no more than a few dollars.

I can’t vouch for their quality as I haven’t read them yet, but I am excited for what I’ve found so far.  I am hesitant to spend money on the other collections that are available – if anyone has suggestions for collections that are worth paying for, please share.

Posted in Books on trial practice, Poetry and music, Story

April 21, 2013
7:12 pm
by: Bobby G. Frederick

Wake up America

Immediately following the Boston Marathon bombing, the United States Constitution was suspended for all residents of Watertown, Massachusetts.  An entire city was placed on “lockdown” as residents were told not to leave their homes, businesses were told to keep their doors closed, roads in and out were blocked off, and SWAT teams accompanied by armored vehicles went door to door with assault rifles searching people’s homes for the bombing suspect.

I’ve spent a few hours on the internet, reading message boards and articles which, for the most part, express the opinion that it was justified.  I looked for any indication that the searches were voluntary, but only found home videos and photos of squads of armed officers entering people’s homes.  I looked for examples of citizens who said “no, you cannot come into my home,” and what happened to those people, but found none.  I looked for video to see what it was like on the street for the residents, and found a few.  This one appears all over the internet, and shows officers removing residents at gunpoint and searching them as they exit their house:

Other videos only show paramilitary moving down streets, entering houses and yards as they go:

In response to events, appellate opinions, and constitutional rights in general, I have often pointed out how our country is slipping into a police state.  I have said we have to use our rights or we will lose them.  I say that slowly, gradually, we are losing the rights and freedoms that set our nation apart from the rest of the world.  I say that it is the nature of government to consolidate power, to grow ever more powerful, and to subjugate its citizens.  In the space of a few days, we have seen what that looks like, not on the television in a third world dictatorship, but in our own country at our own doorsteps.

Rick Horowitz at Probable Cause writes that he feels deeply for those who are suffering as a result of the bombers’ attack, and that he also fears deeply for the rest of us who have suffered a loss of liberty as a result of the government’s response.  This is a snapshot of life in a post-constitutional world.

An author at Slate.com attempts to explain why the shut-down, occupation, and search of residents’ homes at gunpoint without warrant was constitutional, by listing some of the exceptions to the search warrant requirement – consent, exigent circumstances, “hot pursuit,” the public safety exception, and to provide emergency aid to a resident.  None of these exceptions justify what happened in Watertown.  Never has the public safety exception been used to justify mass detentions and home invasions throughout a town to search for a crime suspect.  Exigent circumstances means an emergency supported by real facts at the scene of the home that is being entered – for example, someone is being attacked in the home or evidence is being destroyed.  “Hot pursuit” would apply if an officer chases a suspect into the house.

Politicians, including our very own Lindsay Graham, are declaring that when the suspect is questioned, there is no need to read his Miranda Rights to him, that he should be declared an “enemy combatant” under military law, that he should not be afforded constitutional rights or an attorney.

Is this the world that we want to live in?  We can do away with the Bill of Rights, with a 2/3 majority vote by the States.  Reading the overwhelming public response online, it seems like the people would be happy to give up our rights.  Majority rules.

As I watched the videos above, I imagined what I would do if my street were filled with armed, armored, paramilitary.  I imagined when they came to my door I would politely decline to admit them.  I wonder what would happen then.  I thought of my children, their fear as paramilitary officers forced us into the street, and their terror if one of these officers, patience worn thin, attacked me or my family for not submitting to their authority.

We are a society of sheep.  A few weeks ago I watched a six-part documentary about Auschwitz, and I wondered at the millions of East German Jews that were led from their homes to be sequestered in ghettos, and then led from the ghettos to be slaughtered at the death camps.  I realized that this is the nature of humanity.  It is the nature of governments to take power and to grow in power, and it is the nature of those who are governed to behave like sheep, to do as we are told, and to trust in government to protect us.

We have a Bill of Rights because the Founding Fathers knew that the government they were creating would grow in power and that it would eventually seek to oppress its citizens.  It is the nature of government.  They knew that the Crown had all of the power and the People had none, so they sought to protect our liberties through the document they created.  One of the very specific abuses that they sought to prevent was soldiers or other government agents entering citizen’s homes without a warrant based upon probable cause, “particularly describing the place to be searched, and the persons or things to be seized.”

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

Posted in Fourth Amendment, Police Misconduct, Politics

March 23, 2013
7:15 pm
by: Bobby G. Frederick

Being Real

Tonight we sat around the kitchen table and took turns reading The Velveteen Rabbit.  Most of us have probably heard or seen the story at some point; in it’s simplest form it is a story about a stuffed rabbit and his journey to become real.  If you have not read it I recommend doing so immediately; it’s not terribly long.

It is long enough that reading it all the way through with a 2 year old, a 6 year old, and an 8 year old is a lesson in patience.  It made me think of how differently people see things at different stages in their lives.  At 2 it’s an annoyance, because there are more interesting things to do than listen to grown ups read a long boring story.  At 6 and 8 it’s a bit boring, but the parts about the live rabbits, the burning of the toys, and the fairy are fun and make them perk up.

If they read it again, and then again as they grow older, I imagine it would take on new meanings for them as they compare it to their own life experience, as they experience how it feels when other children snub them, when they feel inadequate and the people around them act like they are better than them or if they ever feel the sting of racism.  When they first understand what real love is the story will strike a different chord, and when they come to feel that youth is leaving them, they begin to lose their hair and their bellies have grown softer than they would like, it will bring a tear to their eye.  When they share the story with their own children as their children snicker and fidget, wishing they were somewhere else playing with toys, I imagine they will feel the love and sadness that I felt as I shared the story with them tonight.

It makes me think of how we connect with jurors, or any person for that matter – people hear everything that we say through the filter of their own experience.  How much they listen to and care about what we are saying depends in large part on how much they can relate to what we are saying.  If we are talking about something they have seen, or felt, or experienced, it will strike a chord; they will pay attention and they will care about the outcome.  If we are telling a jury about a human story that they can relate to, they will listen more, and care more, than they will if we are prattling on about a legal case and bits of evidence.

The most important things that we learn in our lives come with us into the courtroom – the lesson for trial practice is that of connecting with the people around us.  Being genuine, being Real, in a courtroom should be the easiest thing in the world, but it can be difficult.  Just being myself, without any bells or whistles, without putting on a show, without trying to copy some other lawyer who is more successful, being vulnerable and not trying to hide behind flowery language, exaggerations, or fake smiles, as I stand in front of a jury or a judge, may be the most important lesson that I can take me with me into the courtroom.

 ”What is REAL?” asked the Rabbit one day, when they were lying side by side near the nursery fender, before Nana came to tidy the room. “Does it mean having things that buzz inside you and a stick-out handle?”

“Real isn’t how you are made,” said the Skin Horse. “It’s a thing that happens to you. When a child loves you for a long, long time, not just to play with, but REALLY loves you, then you become Real.”

“Does it hurt?” asked the Rabbit.

“Sometimes,” said the Skin Horse, for he was always truthful. “When you are Real you don’t mind being hurt.”

“Does it happen all at once, like being wound up,” he asked, “or bit by bit?”

“It doesn’t happen all at once,” said the Skin Horse. “You become. It takes a long time. That’s why it doesn’t happen often to people who break easily, or have sharp edges, or who have to be carefully kept. Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out and you get loose in the joints and very shabby. But these things don’t matter at all, because once you are Real you can’t be ugly, except to people who don’t understand.”

 

 

Posted in Credibility, Learning from children, Story

March 22, 2013
7:45 pm
by: Bobby G. Frederick

S.C. Police Misconduct Update

Chesterfield County Sheriff Sam Parker has been suspended by the governor after he was indicted on misconduct charges, including allegations that he allowed two inmates, who were serving sentences, one for arson and the other for drug trafficking, to go shopping, wear civilian clothing, sleep unsupervised in the armory, drive county vehicles, “host dinner parties in the armory,” eat at restaurants, and to possess TVs, clothes, drugs, alcohol, photo ID, refrigerator, grill, iPad, personal computer and other items, in exchange for doing work at the Sheriff’s home and at the detention center.

Abbeville County Sheriff Charles Goodwin resigned in January after he was indicted on allegations that he took cash kickbacks and used an inmate for unauthorized private work.

A S.C. DNR colonel was arrested and charged with criminal domestic violence.

A Monck’s Corner police officer was arrested and charged with 20 counts of child pornography.

A S.C. Dept. of Public Safety dispatcher in Florence was arrested and charged with identity fraud, after allegedly using information obtained from his job to commit the crimes.

A Columbia police officer was charged with DUI in his patrol car while on-duty, following a crash while responding to an emergency call.

A jury in Florence awarded $125,068 against Sheriff Kenny Boone for slandering a former employee who did not support his campaign.

A Greer police officer was charged with public disorderly conduct after a bar fight in Spartanburg.

A Hampton County sheriff’s deputy was charged with criminal sexual conduct with a minor, lewd act on a minor, and misconduct in office, following allegations that he abused a child while working as a school resource officer.

The former S.C. State University police chief pled guilty in federal court to accepting kickbacks.

A Greenville County sheriff’s deputy was arrested and charged with misconduct in office and obstruction of justice, following allegations that he began a physical relationship with and provided information to a woman he was supposed to be serving warrants on.

A Blackville police officer was arrested and charged with DUI.

S.C. Highway Patrol Trooper arrests woman and her husband for accusing him of racial profiling.

An Horry County school teacher and former police officer was charged with second and third degree assault and battery at a North Myrtle Beach Walmart.

According to WMBF, all four republican candidates for Sheriff in Oconee County last year were accused of wrongdoing, then all four were taken off the ballot for faulty paperwork.

A former Georgetown County sheriff’s lieutenant was wanted for robbery of a pharmacy in Santa Fe, New Mexico, and attempted robbery of a second pharmacy.  He was turned in by his wife, a Sante Fe District Attorney, who saw and recognized him on a television news broadcast.

S.C. Dept. of Public Safety’s internal affairs chief was fired for “conduct unbecoming of a state employee” after refusing to submit to field sobriety tests when stopped for suspicion of DUI by a state trooper.

An assistant solicitor in Kershaw County resigned after allegations that he tried to start a fight at 5:00 am at a person’s home last Thanksgiving, and that he gave special treatment to a female friend who was charged with DUI second offense, driving her to the  jail, walking her through the booking procedure, and getting a special bond for her.  As far as I can tell, no disciplinary proceedings were filed and he was not charged with anything as a result.

N.C. Deputy resigns following road rage incident in his patrol car in Summerville, S.C.:

North Charleston police chase and crash into a vehicle that matched the description of a suspect who had used fake money:

 

Posted in Police Misconduct

March 17, 2013
6:09 pm
by: Bobby G. Frederick

Happy Birthday Gideon

Tomorrow, March 18, marks the 50th anniversary of the U.S. Supreme Court’s landmark decision in Gideon v. Wainwright, which guaranteed the right to counsel to every person accused of a felony.  Since then, local governments nationwide have struggled to fulfill the promise of Gideon and the Sixth Amendment – the Sixth Amendment guarantees the right “to have the assistance of counsel-” Gideon made it clear that the right to counsel does not mean “the right to retain counsel if you are wealthy,” but that you have the right to counsel even if you are indigent and cannot pay for an attorney.

The right to counsel, however, is meaningless unless it is the right to effective counsel, and this is where local and state governments have fallen short.  When public defender offices are woefully underfunded, and appointed attorneys are paid so little that they lose money representing indigent clients, the right to counsel might mean: “the right to effective counsel if you are wealthy,” and “the right to have an attorney stand next to you in court” if you are indigent.

But 50 years later there is also much to mourn about Gideon and the Supreme Court standards that followed it. Today, there is a vast gulf between the broad premise of the ruling and the grim practice of legal representation for the nation’s poorest litigants. Yes, you have the right to a court-appointed lawyer today — the right to a lawyer who almost certainly is vastly underpaid and grossly overworked; a lawyer who, according to a Brennan Center for Justice report published last year, often spends less than six minutes per case at hearings where clients plead guilty and are sentenced. With this lawyer — often just a “potted plant” — by your side, you’ve earned the dubious honor of hearing the judge you will face declare that this arrangement is sufficient to secure your rights to a fair trial.

Today, sadly, the Gideon ruling amounts to another unfunded mandate — the right to a lawyer for those who need one most is a constitutional aspiration as much as anything else. And the reasons are no mystery. Over the intervening half-century, Congress and state lawmakers consistently have refused to fund public defenders’ offices adequately. And, as it has become more conservative since 1963, the United States Supreme Court has refused to force legislators to do so. “I think the Court doesn’t have the initiative to get involved in improving the administration of justice in every state,” former Justice John Paul Stevens told me in late January. “The Court’s really not the institution to get involved in that.”

God bless our public defenders who are believers in the right to counsel and who are fighting to do the best that they can within a system that doesn’t care about them and won’t help them.  Our legislature, courts, prosecutors, government, and society, more often than not, is satisfied with having a warm body there in the courtroom, someone we can point at and say “see – we are providing counsel for the indigent; the process is fair.”

But when public defenders are trying to manage caseloads that are impossible to manage, when they are meeting clients for the first time as they walk into the courtroom, when it is commonplace to not investigate, to not interview witnesses, to not look for exculpatory evidence because there are no funds for investigators, when it is commonplace to not retain experts because there are no funds to pay them, when a public defender’s office denies the right to a preliminary hearing to every indigent defendant in two counties, there is a problem.

Funding for indigent defense must keep pace with funding for law enforcement and prosecution – if we are going to arrest and prosecute ever-increasing numbers of citizens for thousands of varied crimes, we are also going to have to provide counsel for those citizens who are indigent.  It’s very simple – if there is no funding for indigent defense, cut back on the number of people we are arresting and prosecuting.

Be vocal.  Talk to your legislators.  Write opinion pieces.  Start a motions practice that asks for funding and make a record when it is denied.  Fight for funding and don’t back down.  Happy birthday Gideon.

Posted in Indigent Defense, Sixth Amendment