A South Carolina Criminal Defense Blog

Isolated incidents

My wife is working on a sociology degree.  In one of her classes, she is working on a project where she is supposed to highlight a community issue where a “fallacy” exists.  She chose to look at police misconduct, and the fallacy that she chose to highlight is the notion that, wherever police misconduct occurs or is alleged, it is an “isolated incident” and therefore there is no systemic problem.

She is complaining that there is no database or website that she could find with reliable statistics, so she researched newspaper articles where police misconduct was alleged in South Carolina, within the past 3 years only, and drew a map showing the allegations by county, to illustrate why the “isolated incident” excuse is a fallacy:

Download the PDF file .

Her map includes only incidents that were reported by the news media, and it does not include all incidents that were reported by the news media, because she was more concerned with showing how many counties it spans rather than creating an all-inclusive list.  The incidents on her map only go back three years.  Some involve officers that were charged with crimes, and they are innocent until proven guilty.  Others may involve officers that were not charged with a crime, that were disciplined, or that were not disciplined by their departments.  All are credible reports of misconduct, however.

The only way I know of to track allegations of misconduct is through the media reports, which certainly only contain the tip of the iceberg.  At one time, the National Police Misconduct Reporting Project was the most reliable collection of media articles nationwide, released daily.  Ironically, it was more reliable when one individual was in charge of publishing the statistics, but it appears to be useless/severely under-reporting since it was taken over the CATO institute.  I can only compare to the media reports in South Carolina, but they miss most of them.

 

Walker v. State – PCR granted where defense counsel failed to investigate alibi witness

In Walker v. State, decided March 19, 2014, the S.C. Supreme Court upheld the circuit court’s grant of post-conviction relief (PCR) to the applicant where defense counsel failed to investigate and interview a potential alibi witness.

The applicant had been convicted of criminal sexual conduct 1st degree and kidnapping, based on allegations that he had kidnapped a woman at a convenience store, held her captive and sexually assaulted her.  The applicant stated that, although he had been at the gas station on that day, he spent the night with his girlfriend’s home that night.  Trial counsel did not contact or interview the girlfriend, although trial counsel’s notes referenced her as a person that needed to be interviewed.

The girlfriend testified at the PCR hearing that no-one had contacted her and she did not know what had happened until she was contacted by PCR counsel, and that, although she could not testify as to the exact dates in question, she spent every weekend with the applicant up to the time he was arrested.  The Court found that, had the girlfriend testified at trial, there was a reasonable probability that the outcome would have been different.

The Court distinguishes Glover v. State, where an alibi witness would have testified that Glover was in Florida at 8:00 am, and the crime was committed at 8:30 pm the same day.  The drive from the location of the crime to the location in Florida was approximately 6 and a half hours, which means, if the jury believed the alibi witness, it still would not have precluded the defendant’s having committed the crime.  In Walker’s case, if the jury had believed that Walker was with the girlfriend the night of the alleged crime, it would have been physically impossible for him to have committed the crime.

Counsel has a duty to conduct an independent investigation, which means contacting and interviewing any alibi witnesses proffered by the defendant.  Failure to contact potential witnesses to determine if their testimony would help the defendant is not reasonable, and if the testimony would have resulted in a reasonable probability that the outcome would have been different, PCR should be granted.

Ex Parte Shurling – no prior approval, no attorney fees

In Ex Parte Shurling, decided April 9, 2014, the S.C. Supreme Court denied approximately $30,000.00 in attorney fees to two attorneys who were appointed to represent a client charged with murder, assault with intent to kill, criminal conspiracy, possession of a weapon during a violent crime, and possession of marijuana, because the attorneys did not obtain an order pre-approving the amount of their attorney fees.

South Carolina authorizes attorney fees in the amount of $40/hour out of court and $60/hour in court, up to a total of $3500.00 for appointed felony cases, including murder.  The same statute authorizes $500.00 in expenses, only if it is pre-approved.  This may seem like a lot of money to a layperson, but the truth is most law offices lose money at $40.00 an hour, taking into consideration their overhead, office staff, expenses, and paying clients whose cases they are not working on, or whose cases they miss completely because they are in a week long murder trial.

In this case, the attorney obtained a funding order that pre-authorized attorney fees of $100.00/hour (closer to a reasonable rate and closer to what federal courts pay), up to $15,000.00.  She just did not go back and get another funding order to increase the amount once she had reached the $15,000.00 limit.

On the one hand, all they had to do was go back and get a new order increasing the amount of attorney fees allowed.  Of course, one would have to keep careful track of their hours, anticipate when the limit is about to be reached, and then stop work on the case until a judge authorizes the increase.  On the other hand, if the amount of work that went into defending the client through trial was reasonable, then it was reasonable.  Its reasonableness doesn’t depend on whether the attorney has the foresight to have a judge pre-approve the attorney fees.

Denying an attorney payment for work they have already completed, based on their failure to get pre-approval, seems kind of shitty, to put it bluntly.  The state needs money, so indigent defense uses any excuse they can find to not pay the attorneys who work defending indigent clients.  Our state does not value attorneys who defend indigents.  Our legislature does not value them.  Our courts do not value them.  Our Office of Indigent Defense does not value attorneys who defend indigents.  Or the rights of indigents, for that matter.

Last year, the Commission on Indigent Defense moved to a system of conflict attorneys to save the state even more money.  Attorneys who volunteer for the conflict attorney contracts will get appointed cases at a flat rate of $900 per case, no matter the type case – drug possession, drug trafficking, armed robbery, murder, plea or trial, a flat rate of $900 per case.  How many attorneys can afford to shut down their office and try a murder case for $900?

We are guaranteed the right to counsel, not the right to counsel of our choice and not the right to the best counsel.  If we are asking the state to pay for our defense, we take what they give us, right?  Of course, we are guaranteed the right to effective assistance of counsel.  If we are convicted and we think we got the shaft, we can then file an action for post-conviction relief, alleging ineffective assistance of counsel, and we will get another appointed attorney to handle our PCR claim, one who has volunteered for a contract to handle PCR’s for a per-case flat rate.

 

Question and Answer

Just in case Google did not have the answer you were looking for, I am here to help.  Some search terms that brought people to Trial Theory in the past month:

rules and regulations on pretrial gps monitoring in south carolina – there are no rules governing when a gps monitor can and cannot be ordered as a condition of bond.  As a result, some magistrates and municipal judges will order it at random.  If it’s a non-violent crime, and there is no victim to protect, such as in drug cases, it doesn’t make sense to put someone on gps monitoring as a condition of bond.  If you are charged with a General Sessions level offense, you can automatically move in the Circuit Court to amend the conditions of your bond, and you have a good chance of getting the ankle monitor off it you’re charged with a non-violent offense.  If not, you can re-file the motion once every six months, or whenever there is a change in circumstances.

private prisons cheap labor - Prison labor amounts to forced slavery, and is booming business for the government and private corporations.

ineffective assistance of counsel did not convey final plea offer – if counsel does not convey a plea offer to the client, it can be grounds for post-conviction relief.  The courts can’t force the prosecutor to make the offer again once the case is remanded, although, in fairness, the prosecutor should.

what motivates criminal law – Society’s need to stop people from committing crimes, to protect us from one another, and to prevent vigilante justice?

how long does disorderly conduct stay on record first offense in south carolina law in 2014 – If it’s the only conviction on your record, it can be expunged after 3 years – it’s not automatic, you will have to take action to get it expunged.

duis money making machines – for government, for MADD money, for police departments, and for attorneys.  Everyone wins financially, except the guy who got arrested.

how do i win a failure to appear - show up in court?  Seriously, if it’s a failure to appear at roll call and it’s the first time it’s happened, your attorney may be able to get the bench warrant lifted.  Talk to an attorney before turning yourself in.

the hand of one is the hand of all” theory south carolina – it’s another way of saying “accomplice liability.”  Some police think that this means if you are there, you are also guilty – not true.  The elements include 1) you are present; 2) you know what’s happening; and 3) you take some action to participate in it.  Mere presence is never enough to convict a person.

counsel should not waive preliminary hearings - I agree.  Your case could be dismissed at a preliminary hearing.  If it is, the solicitor’s office can still get an indictment, but they don’t always.  Even if it’s not dismissed, it’s your best chance at getting testimony from the arresting officer before trial, at a point where he has not been prepped for testimony – if the testimony is helpful, your attorney can get a transcript made to use later.  On a related note, the Horry County public defenders office is no longer waiving their clients’ preliminary hearings, and from what I’ve seen they are doing a good job with them.

proscutor knows cop is lying – results on case - I suppose it depends on the prosecutor, doesn’t it.  1) prosecutor calls cop out and informs the court that cop lied, maybe case is dismissed or the jury is informed (not likely); 2) prosecutor says nothing, argues the false testimony to the jury, and defendant is convicted; or 3) most likely – you say the cop is lying, but the prosecutor knows no such thing; likely the prosecutor would say you are the one lying.

sc cdv 1 girlfriend and boyfriend both arrested - what if you both plead the Fifth Amendment and they have no witnesses?  What about that?  Anyway, get attorneys now.

i was sentenced to the youthful offender act does my record still show up – yes.  But – five years after the completion of your sentence, if you have no other convictions, you can get your record expunged.

when u make a statement why do some people say nothing – some people have sense.  Or read my blog.

in a drug case can county attorney withhold evidence til trail - in a perfect world, when the prosecutor produces evidence on the eve of or morning of trial, the evidence is excluded or the case dismissed, depending on the egregiousness of the violation.  In the real world, the Court will probably allow the evidence in, tell the defense that there is no prejudice, since you have the evidence now, and allow the case to go forward and the evidence to be presented.

i got arrested but not convicted for cdv in sc, can i buy a handgun? - they might make you wait until the case is over, but the answer is yes you can.

 

how much does it cost to get expungement in sc per charge - if an attorney is handling it for you, it depends on the attorney and the complexity of the expungement.  The court costs vary, depending on whether the charges were dismissed (no court costs) or whether it was a conviction that now qualifies for expungment.

i was arrested for cdv in 2009 in lexington, sc when can i have it expunge? If there was no conviction, you can have the arrest expunged at any time.  If you were convicted, it can be expunged after 5 years if there are no other convictions on your record.

lie detector test pro’s and cons - Just don’t do it.  Law enforcement uses the polygraph as an interrogation tool.  The test is not reliable.  It is so unreliable that it is never admissible in court.

can i buy a gun in south carolina if convicted of cdv 10 years ago - no you cannot.  But, if you have no other convictions on your record, you can get the CDV expunged from your record.  If you do have other convictions on your record, you can apply for a pardon – a pardon restores your civil rights, including the right to own a firearm and to have a concealed carry permit.

are former prosecuters good lawyers? Yes.  No.  Being a former prosecutor does not make someone a better defense attorney, in my opinion.  That being said, I know some former prosecutors who are excellent defense attorneys and I would trust them with my own case.  I know many more who are terrible, who see their clients as dollar signs, and who see their job as helping you to plead guilty.

adam reposa contempt - never a dull moment with Mr. Reposa.  He’s a lawyer.  Also, Don’t be a jerk-off.  Oh, and don’t drive drunk.

my lawyer didnt go to a hearing and now i have a bench warrant - it may be that your lawyer didn’t go to the hearing, I don’t know, but you probably have a bench warrant because you didn’t appear, not because your lawyer didn’t appear.  Not apologizing for the lawyer, it may be he or she sucks and its their fault.  But courts don’t issue bench warrants unless you missed a court date yourself.

what is a roster meeting in court – ostensibly, it’s a day when the attorneys and prosecutors set a trial date.  The judge or the clerk goes down the list, calls the names of each defendant, and they pick the date.  Depending on what court you are in, it could instead be a day when the prosecutor leans on you to get you to plead guilty, or it could be a day when your prosecutor disappears into a back room to discuss your case with the prosecutor.

bobby g lockdown crime – Yeah.  That’s right.  I’m a lawyer.

 

 

S.C. Police Misconduct Update

News reports in the past month:

Two Bluffton officers were suspended after a bar fight; one allegedly pulled a gun another person in the bar.

A North Charleston police officer who is also a substitute teacher was charged with assaulting a student.

A North Myrtle Beach K-9 officer was charged with DUI in his patrol car.  As of the date of article, he was not terminated, but instead was placed on desk duty.

A Gaffney police officer pled guilty to felony DUI with great bodily injury and was sentenced to 3 years home detention and probation.

A City of Columbia police officer was arrested and charged with CDV/ criminal domestic violence.

A Cherokee County Detention Center nurse was charged with first degree sexual misconduct with an inmate of a correctional facility, accused of having oral sex with an inmate.

Two people were killed following a high speed chase by a Darlington County Sheriff’s deputy – their car flipped over and the deputy crashed into it.  Although I may include deaths caused by police chases here, I want to point out that it is not necessarily misconduct on the part of the officer involved – in my opinion the problem with police chases lies with departmental policy and the departments’ failure to explore alternatives to high speed chases, which is reflected in their policies.  If the deputy is following his department’s policy, he may be doing nothing wrong.

A Lexington County woman has released a home surveillance video that shows a Lexington County Sheriff’s Department detective entering her boyfriend’s home as she sleeps on the living room sofa, then walking through the home, searching through her cell phone, and touching her breast before waking her up to tell her he is looking for her friend “on grounds of child support.”  The Sheriff’s department says that the detective was “serving civil papers at the proper residence,” but the woman says her boyfriend does not have children.  Also, since when do detectives serve warrants for child support?  Most, if not all, Sheriff’s departments have a warrants division with uniformed officers that serve warrants – they do not send detectives to serve child support warrants.  The detective was fired, but the Lexington County Solicitor’s Office declined to prosecute him.

 

DUI ignition interlock bill passes SC House

“Emmas Law” passed the House yesterday with a unanimous vote, and is expected to pass the Senate as well.  The law will require drivers to have an ignition interlock device for 6 months following a DUI 1st offense conviction with a BAC of greater than .15, and it will require an ignition interlock device for 2 years following a DUI 2nd offense conviction, regardless of the BAC level.

I’m ambivalent about requiring interlock devices for persons who are convicted of DUI, provided the devices are accurate (I don’t know that they are) and that they are mandated only for a definite period of time, such as the 6 month and 2 year requirements in this particular bill.  There are some nutcases out there who would like to require every person to have an ignition interlock device on their car, or require car manufacturers to install them on every car – that is untenable.

Of course, no DUI-related article in any self-respecting publication could forgo the obligatory slap at DUI lawyers, using the word “loophole” at least once:

South Carolina’s current DUI laws contain numerous loopholes that let people charged with DUI delay or avoid trial, get off with light sentences and resume driving quickly. Representing accused and convicted DUIs is a booming, $100 million-plus annual business for attorneys in South Carolina. About 30,000 people are arrested each year for DUI.

“Loophole” translates to “constitutional protection” or anything that is written into a law to protect ordinary people from over-zealous or over-reaching government officials.  Our current DUI law was carefully crafted by defense lawyers, prosecutors, and legislators to create a balance between aggressive DUI enforcement and protection of our rights.  The newest amendments to our state’s DUI laws increased penalties dramatically, with mandatory minimum sentences of up to 3 years and maximum sentences of up to 7 years, with a system of graduated penalties based on BAC level and prior offenses.

If you think that DUI defense lawyers are not necessary, consider that our state continues a system of rewards (not quotas), including shiny new cars, for law enforcement officers who make the most DUI arrests – not convictions, but arrests, without regard to the quality of the cases or whether the person arrested was actually guilty.

If you think that the only persons charged with DUI are hopeless drunks who are carousing the highways while liquored up, you are wrong.  I have handled cases where officers charged a person whose BAC was 0.00 and who then passed a blood test as well.  I have handled many cases where the person had a drink or two drinks and was well below the “legal limit.”  Some officers will charge a person if they smell alcohol, regardless of how many drinks the person had.  Whether you drink one half of one beer or 12 beers, it smells the same on your breath.

It is not against the law to drink and then drive, nor should it be.  It is against the law to drink to a point where your faculties to drive are materially and appreciably impaired – when your reflexes are impaired to the point where you are a danger to others on the highway.  The videotaping requirement in S.C.’s DUI law is not a “loophole” – it is a necessary check on an officer’s ability to arrest and prosecute people who are not violating the law.  We don’t have to take an officer’s word for it – the defense, prosecutor, judge, and jury can see the person’s conduct during the traffic stop for themselves.

Border patrol checkpoint refusal

H/T Reason.com – checkpoint officer is polite, friendly, and extremely conscious of protecting motorists’ constitutional rights:

(April Fools . . .)

DUI – reasonable efforts to maintain video equipment

In City of Greer v. Humble, decided March 27, 2013, the S.C. Court of Appeals upheld a municipal court’s dismissal of DUI charges based on the city’s failure to comply with the mandatory videotaping requirements of 56-5-2953.  By way of background, S.C. has a mandatory videotaping requirement for any DUI stop, which is contained in S.C. Code § 56-5-2953.  The video must begin no later than the activation of blue lights, it must include any field sobriety tests administered, it must show the arrest, and it must show the person being advised of his Miranda rights.

Because these requirements are mandatory, pursuant to City of Rock Hill v. Suchenski and Town of Mount Pleasant v. Roberts, the remedy for failure to comply is dismissal of the case.  Under 2953(B), the arresting officer can submit an affidavit certifying that the video equipment was in an inoperable condition and “stating which reasonable efforts have been made to maintain the equipment in an operable condition.”  Per the language of the statute, the affidavit must contain a statement of what reasonable efforts were made.

In Humble, the Court of Appeals noted that the officer’s affidavit was deficient on it’s face because it did not contain a statement of which reasonable efforts had been made to maintain the equipment – prior to the February 2009 amendments to 2953, the statute simply said the officer was required to state reasonable efforts had been made.  In 2009, the legislature amended the statute to specify that the officer, in the affidavit, must state specifically what reasonable efforts were made.  Then the trial court must make a determination as to whether those efforts were in fact reasonable.

Here, Officer Williams’ affidavit provides “[a]t the time of the defendant’s arrest, or probable cause determination, the video equipment in the vehicle I was operating was in an inoperable condition and reasonable efforts had been made to maintain the equipment in an operable condition.” We find that the circuit court erred in reversing the municipal court’s dismissal because the affidavit is deficient on its face. Even though there is no procedure in section 56-5-2953 either preventing or allowing a timely amendment of the affidavit, the statute requires an affidavit stating which reasonable efforts were made to maintain the equipment in an operable condition. The affidavit Officer Williams provided the municipal court does not state which reasonable efforts were made; thus, the City failed to comply with the plain requirements of section 56-5-2953. . . .

Therefore, we reverse the circuit court’s order because the affidavit does not provide an excuse for noncompliance with section 56-5-2953, as required by the statute. See Roberts, 393 S.C. at 349-50, 713 S.E.2d at 287 (holding an unexcused noncompliance with section 56-5-2953 mandates dismissal of a DUI charge).

The Court goes on to address Humble’s second argument on appeal, which was that the reasons that the officer provided in his supplemental testimony at trial (although the Court has already stated that supplemental testimony is insufficient – the reasons must be included in the affidavit, per the language of the statute) were insufficient anyway.  This part of the opinion highlights the importance of obtaining the maintenance records anytime that an officer submits an affidavit under 2953(B) – the City argued that, because the officer immediately reported the problems he was having with his video equipment, reasonable efforts had been made to maintain the equipment.  A review of the maintenance record, however, revealed that the City had contacted the manufacturer and noted that the equipment needed repairs, the City then did not get the repairs done because they didn’t want to pay for them:

To borrow a quote from Michel de Montaigne, we find that in its most basic sense, the municipal court merely found “saying is one thing and doing is another.”1 Quite simply, the statute requires reasonable efforts. The municipal court essentially found as a fact that saying something is broken while refusing to pay for a repair visit is not enough. The “reasonable efforts” language of the statute requires some “doing,” and refusing to pay for repair visits evades the intent of the statute and is not “doing” enough to constitute reasonable efforts to maintain the video equipment in an operable condition.

First – a statement of which reasonable efforts have been made must be contained in the officer’s affidavit, and the affidavit cannot be supplemented by testimony at trial.  Second – whenever an affidavit is submitted, get the maintenance records, rather than taking the officer’s word for it.  Whether the efforts made were in fact reasonable is a question for the Court.

 

Foundations, anchors, and opening statements

Skimming through notes on my iphone from the past year or so, I came across one that I wrote about foundations, anchors, and opening statements.  I’m pretty sure that I wrote the note during a murder trial last year in York County.  Not in the courtroom though.  Judge Cole would have a fit if he saw me typing notes on my iphone in the courtroom.

It occurred to me that opening statement is like laying a foundation for a building – if the foundation is strong enough, it can weather the storm that comes during the state’s case.  They can make allegations, poke holes in the walls, and blow shingles off the roof, but if the foundation is still solid by the end of the state’s case you have won the trial.

Then again, it occurred to me that opening statement is more like casting an anchor – if your ship is anchored well, when the storm comes it may get dragged a ways but it will hopefully weather the storm.  If the anchor doesn’t catch on anything, when the storm comes during the state’s case your ship will get blown away and beached or sunk.  I’m no sailor, much as I would like to be, but the analogy fits in my mind.

Opening statement has to tell my client’s story, and it needs to be compelling.  One thing that all people have in common is that we like stories, we want to be entertained, and we relate to others through story.  Most trials that I’ve lost had one thing in common – looking back, I did not tell my client’s story.  The jurors never got to know who my client was and there was nothing there for them to connect with.  Most of the trials that I’ve won were exactly the opposite – I was able to tell a compelling story, beginning in the opening statement and continuing through cross-examination, direct examination, and closing argument.

Unfortunately, most attorneys don’t tell their client’s story in the opening statement – most prosecutors do not give much to the jurors in opening, and in appeals and PCR’s that I have handled from other attorneys’ trials, rarely have I read an effective opening statement.  I believe that trials are won or lost in opening statement.  Jurors are going to view the testimony during the trial through a framework – if you don’t provide that framework they will view the evidence through the prosecutor’s framework, and if neither you nor the prosecutor provide a framework, the jurors will view the evidence through their own framework that may not be accurate at all.

Anyone who knows me knows that I am not a religious man.  But . . . some words of wisdom about opening statements from the New Testament:

“Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock. And the rain fell, and the floods came, and the winds blew and beat on that house, but it did not fall, because it had been founded on the rock. And everyone who hears these words of mine and does not do them will be like a foolish man who built his house on the sand. And the rain fell, and the floods came, and the winds blew and beat against that house, and it fell, and great was the fall of it.”

Matthew 7:24-27; and

Everyone who comes to me and hears my words and does them, I will show you what he is like: he is like a man building a house, who dug deep and laid the foundation on the rock. And when a flood arose, the stream broke against that house and could not shake it, because it had been well built. But the one who hears and does not do them is like a man who built a house on the ground without a foundation. When the stream broke against it, immediately it fell, and the ruin of that house was great.”

Luke 6:47-49.

More on discovery violations in the 9th circuit

The Charleston Post and Courier is reporting that an assistant solicitor in the 9th circuit was found to have withheld evidence in a trial today – the defendant is charged with a double homicide, the state has mis-tried the case twice already, and the assistant solicitor elicited testimony from a detective about a statement allegedly made by the defendant that had never been turned over to the defense, that was not in any of the state’s reports, and that had never been mentioned in the previous two trials:

[Judge] Nicholson found that Assistant Solicitor Greg Voigt had violated a rule requiring the disclosure of information that prosecutors intend to offer as evidence during a trial. It’s the same issue that drove a group of defense attorneys to recently request a state investigation into whether it’s a deliberate practice in the 9th Circuit Solicitor’s Office.

Instead of scuttling another trial, Nicholson told jurors to disregard that portion of Boone’s testimony when they deliberate Williams’ fate Thursday.

It may be that the assistant solicitor in this case didn’t know that the evidence had not been disclosed – according to the article, there was a different prosecutor for the first two trials.  If that is true, if it was not an intentional violation, it still shows a lack of preparation – he was responsible for learning the file and making sure that all evidence had been turned over before the trial began.  And, when there is a pattern of repeated discovery violations and other misconduct coming out of the same office, where does the blame lie?

Scarlett Wilson, who is in charge of the 9th Circuit Solicitor’s office and responsible for the training and supervision of the assistant solicitors there, led the charge to lambast Justice Beatty following his remarks at the solicitor’s conference, sending a much-publicized letter to the S.C. Attorney General asking for his assistance in having Justice Beatty recused from all criminal appeals and disciplinary matters that involve prosecutors.

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