A South Carolina Criminal Defense Blog

Monthly archives for May, 2008

DUI attorney’s wife arrested

How to get busted for DUI – marry a DUI lawyer. The Phoenix New Times reports that Heather Squires, the wife of an Arizona DUI attorney, was arrested and charged with DUI despite not having had a drop of alcohol. She was given the breathalyzer at the station, which registered a 0.00.
Coincidentally, the officer, Bond Gonzales, had recently lost a DUI trial to Heather’s husband Jason Squires. Heather was driving Jason’s truck, which was registered in Jason’s name, and Jason was with her in the truck. Heather was almost immediately handcuffed when she stepped out of the truck. Gonzales never asked how much she’d had to drink. Although Bond carried a portable breath test, he never administered it.
Heather did not have a drop to drink, and registered a 0.00 on the breathalyzer, yet the officer’s report states that she had “bloodshot and watery eyes,” a “flushed face,” and a “strong odor of alcoholic beverage emitting from breath.”
The government has resorted to prosecuting defense attorneys, forcing their disqualification from cases, even having them disbarred from practice. Going after their families is a new low.

Scott prosecutors publicly challenge judge

Tracey Amick reports that

On Friday, Sheriff Ray Nash and Prosecutor Barry Barnette called a press conference to “set the record straight”- claiming the glitch on the tape that dismissed the whole case didn’t exist . . . There was no gap no glitch it should’ve gone to a jury, Barnette said.

What is this if not a public slap to the judge? They are going to appeal the decision to the circuit court, and if the issue was decided wrongly it will be corrected by the higher courts.
Rule 3.6 prohibits extrajudicial statements by attorneys involved in the proceeding that could prejudice the proceedings, but there is an exception that allows statements in response to statements made by others, “where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer’s client.”
Does this exception permit the parties to respond publicly to a ruling by a judge during the proceedings? The judge said part of the video was missing and this was the basis of the ruling. Does this entitle the prosecutors to call a press conference and “set the record straight,” and challenge the judge through the media? If the ruling was wrong it will be corrected by the circuit court, so what do they gain by these media statements other than prejudicing the potential jury pool?

Governor vetoes indigent defense funding bill

Our governor has vetoed the statewide public defender system funding bill. Veto message, line 65, $3,993,844.00 non-recurring revenue to fund public defenders and staff. Governor Sanford believes that funding indigent defense sends the wrong message. Message to who?
The House will vote to override this veto next Tuesday.

Senator Scott’s DUI dismissed

Senator Randy Scott’s DUI was dismissed today, because the video was missing portions of the audio and no affidavit was submitted by the deputy.
S.C. Code § 56-5-2953 mandates videotaping of the incident site, but provides for some exceptions. If one of the exceptions applies, the officer must submit an affidavit explaining why videotaping was not possible. Because this is mandatory, if the officer does not comply the case can be dismissed, pursuant to City of Rock Hill v. Suchenski, a 2007 South Carolina Supreme Court case.
Senator Scott has claimed from the beginning that his arrest and prosecution were politically motivated, a product of a long standing feud with Dorchester County Sheriff Ray Nash. Nash has denied any political motivation.
Despite Nash’s lack of political motivation for this prosecution, Sheriff Nash persuaded 7th Circuit Solicitor Trey Gowdy and 7th Circuit Deputy Solicitor Barry Barnette to travel 200 miles, from Spartanburg, S.C. to Dorchester County, to prosecute Senator Scott. Gowdy and Barnette are reputed to be the best DUI prosecutors in the state, and Gowdy has been “campaigning” for tougher DUI laws for years. 16 phone calls were made before Scott was pulled over by the deputies. The County Sheriff was sitting at the prosecution table as Scott’s trial began. Nothing political about this prosecution.
The Spartanburg prosecutors will likely file a motion to reconsider today’s ruling, followed by an appeal. If the appellate court overrules the magistrate’s decision, the trial may still go forward.

The concerned, well meaning citizen – DUI lay witnesses

Often DUI arrests are initiated by other drivers who see someone swerve or are cut off in traffic and then dial 911 to report a drunk driver. Most of the time these people mean well, and sometimes they are right, but things are not always what they seem. Some people have a compulsion to get involved, an over-developed sense of civic duty if you will. By the time a case gets to trial, their account of what they saw sometimes has grown from what they initially told the officer.
A recent story in the Phoenix New Times illustrates several points. A man watching Shannon Wilcutt at a cafe thought she looked intoxicated, thought he saw her downing several drinks, then watched her drive off with a four year old child in the car. He called police and then followed her until the police arrived.
When the police arrived she was arrested and charged with 3 felonies – even though a subsequent breathalyzer showed her BAC was .02. The story illustrates that the DUI lay witness does not always see what they think they see: as it turns out she was drinking glasses of water and not wine, she had just had surgery to remove dentures, and she had taken one hydrocodone pill.
The story illustrates that the police are not always right. She was unable to perform the field sobriety tests to the officer’s satisfaction, not because she was intoxicated, but because she was overweight, asthmatic, and had a herniated disc in her back. None of which affects your ability to drive, but all of which would affect your ability to perform physical exercises on the roadside. The officer noted that her speech was slurred, but remember that she had just had dental surgery.
Of course when all of this came to light, including a BAC of .02, the state’s attorney fixed it and dropped the charges right? Not so – she was indicted for DUI, drug possession (hydrocodone?) and the equivalent of South Carolina’s child endangerment law. Two years and $12,000.00 in legal fees later, the charges were dismissed.
The stories of Shannon Wilcutt, Diana Sifford, and Phil Cisneros that are told in the Phoenix New Times article illustrate how persons who are charged with driving under the influence are guilty until proven innocent, how the punishment does not always fit the crime, and how the fever to catch drunk drivers can profoundly affect the lives of ordinary people.

DUI fanatics

There are things that I read and hear from the get-tough-on-DUI crowd that just amaze me. For example, from George Spaulding’s article yesterday in the Charleston Post and Courier:
“Many of us will continue the anti-DUI movement until first-time offenders are dealt with severely.”
“The day when your car or truck decides whether you are sober enough to drive may not be as far off as it sounds.”
Spaulding goes on to discuss a research program that intends to develop devices that would test the sobriety of every driver, and have them placed into every car, not just those convicted of drunk driving. The devices would prevent the car from running if sufficient alcohol is detected. Spaulding cites “MADD’s successful efforts in many states in having drunken-driving interlock legislation passed into law.”
Wonderful idea. I don’t mind having devices placed into my car to monitor me 24 hours a day, do you? DUI and CDV are the two topics that seem to push otherwise rational people over the edge. We should also place videocameras in every home, with a live feed to the police station – this could potentially prevent incidents of domestic violence and various other crimes.
In Peoria, Illinois, they have announced a “no refusal” memorial day weekend. If you are charged with drunk driving and refuse the breathalyzer, “a county judge will order you to submit a medically authorized blood sample within an hour of your refusal.” Never mind the Fifth Amendment right against self-incrimination, there is an exception for DUI.
From the prison planet forum:

Start roadside firing squads for DUI offenders
I believe if someone is found to be DUI at a checkpoint they should be executed on the spot just like we kill the terrorists in Iraq. We need to get rid of all rights in the US so the fight against DUI terrorists can now include mobile roadside firing squads for violators.
I also want our government to mandate an implantable chip in everyone that will incapacitate you if you drink more than the legal limit. Even if you aren’t behind the wheel, this chip should automatically contact the local SWAT team so they can quickly dispose of you without wasting much time, gas or ammo.
C. Mao, Tyrannyville, USA

Mandatory minimum sentences

Woman in Black thinks that a mandatory month in prison should be a prerequisite to working as a judge or prosecutor. I agree. Before we are allowed to make decisions as to just how many months or years a human being will be locked inside a steel cage, we should know just what we are talking about.

Update on Moncier’s fight in the Eastern District of Tennessee

Any attorney practicing criminal defense law in the Federal Courts should be concerned with what is happening in the Eastern District of Tennessee. Earlier this month, I wrote about how Herb Moncier had been suspended from federal practice. I reviewed Chief U.S. District Judge Curtis L. Collier’s order and it is difficult to see where the specific conduct complained of by the Chief Judge warranted the punishment imposed or the blistering language of this and subsequent orders.
It seems that Moncier is being punished for aggressively representing his clients. The fact that the move to disbar him from federal practice was initially attempted to be kept secret is even more disturbing.
Moncier’s attorney Ralph Harwell filed a motion requesting a stay of the Chief Judge’s order and requesting that Moncier be permitted to remain as counsel for the completion of a client’s case which was set for trial on May 20 of this year. In Chief Judge Collier’s ruling he again blistered Moncier, accused him of further misconduct, accused him of lying, and called Moncier a “danger to the public.”
However, an article by Jamie Satterfield in the Knoxville News Sentinel points out that Chief Judge Collier misrepresents Moncier’s conduct in his ruling:

Collier accused Moncier in the ruling of misconduct in filing a motion in a high-profile case in Kentucky asking a federal judge to step down from that case. Collier wrote that he “has been informed” by the Kentucky court that Moncier’s motion was “an unethical attack on the court in a frivolous effort to disqualify that judge from presiding over the case.”
Collier then cites as proof a small section of Kentucky U.S. District Judge William O. Bertelsman’s ruling in which Bertelsman refused to step down from the case. That section does allege “serious ethical violations” committed by “attorneys” in the case.
A review of the entire ruling and all documents filed in the Kentucky case shows, however, that Bertelsman’s chief complaint lay with an attorney representing an alleged co-conspirator of Moncier’s client. A review of the entire case file shows that Moncier did not file the original request to have Bertelsman booted off the case. Instead, co-counsel O. Hale Almand Jr., a Kentucky lawyer, did so months ago.
An attorney for an alleged co-conspirator renewed the motion earlier this year with fresh allegations against Bertelsman that the judge since has deemed “outright misrepresentations.” Almand, not Moncier, filed a motion asking to join in those new claims.
Moncier notified Bertelsman of Collier’s suspension order the same day it was filed. He stepped down from that Kentucky case after a hearing before Bertelsman the next day.

Moncier’s attorney Ralph Harwell has filed three additional motions this week, asking for clarification of Chief Judge Collier’s prior orders, asking for additional findings regarding an attorney referenced in Collier’s Order, and asking for additional findings regarding Collier’s ruling as to Moncier’s motion to disqualify Collier from the proceedings.
The pleadings in Moncier’s proceedings can be found at his website, Moncierlaw.com, or can be downloaded from Pacer:
United States v. Michael Vassar, EDTN 2:06-cr-70
United States v. Michael Vassar, EDTN 2:06-cr-75
United States v. Herbert S. Moncier, EDTN 2:07-cr-40
United States v. Herbert S. Moncier, 6th Circuit 07-6053
United States v. Lee Almany, EDTN 1:08-cr-01
United States v. Lee Almany, 6th Circuit 08-5110
In re Herbert S. Moncier, EDTN 1:08-mc-09
The following is Herb Moncier’s account of events:

I have tried a number of high profile federal cases over my 38 years of practice and have upset a lot of prosecutors and judges. I have been a president and long time board member of the Tennessee Association of Criminal Defense Attorneys; a member of NACDL since 1980; A-V Martin Dale Hubble since 1981; Best Lawyers in America; 101 best lawyers in Tennessee; and Southeastern Super Lawyers.
On November 17, 2006 I was at a contentious sentencing hearing in a high profile case where my client was facing three jury trials was acquitted in the first; the second was dismissed and he was convicted at the third of the least possible offense – an offense that he admitted. The sentencing hearing was a war. see United States v. Michael Vassar. I had a recorded statement from the informant in support of reasons not to sentence my client for acquitted conduct. The informant said the prosecutors and FBI agents visited him in jail shortly before my client’s trial and threatened him that if he did not testify to matters he said were untrue against my client that they would pull a 10-15 recommended sentence he had been promised. He refused and the day after my clients trial the prosecutors pulled his recommendation and recommended a 27 year sentence that he received. I had filed a transcript of the statement four days before my clients sentencing and subpoenaed the informant to testify at the sentencing hearing on November 17th.
The day before the sentencing hearing the prosecutor wrote me a letter that the same jail house informant allegedly in 2005 made a statement that my client set for sentencing, Vassar, knew information about another client I represented who was a target but had not been charged. At a hearing in March 2006, conducted by the judge my client Vassar had testified under oath that he knew nothing about any other client I represented including the target. The prosecutors did not mention the alleged 2005 statement of the informant to me or the judge in March 2006.
On November 17th I attempted to have the judge appoint an independent attorney to clear up the potential of a conflict raised by the prosecutor the day before the November 17th hearing. All of my efforts to clear up the potential of a conflict failed. Just before the lunch recess after which the sentencing hearing was to begin the judge called me and my client to the podium in the presence of the prosecutors and FBI and began to question my client. I objected. The judge overruled.
The questions turned to what I perceived to be an attempt by the judge to clean up the record by getting Vassar to make an unadvised waiver. I again objected. The judge instructed me to stand there and be quiet until my client answered his questions. I requested to approach the bench to explain why I was objecting, out of the presence of the public. The judge refused to permit me to approach the bench.
I then again objected from the podium and the judge said “Mr. Moncier one more word and you’re going to jail.”
My client had been, and was continuing to attempt to speak to me. I asked the judge “May I speak to my client”. I was arrested and taken into custody. I was then charged with criminal contempt of court; tried before the same judge without a jury; convicted and sentenced to 1 year probation, a fine of $5,000.00, 150 hours community service, an anger management course and three extra hours CLE. see United States v. Herbert S. Moncier.
That conviction is on appeal to the Sixth Circuit. see United States v. Herbert S. Moncier.
Later in December 2007 I was hired by another high profile defendant to try his case before the same judge. The day I entered my name the prosecutors who had prosecuted me for contempt filed a motion to disqualify me. My client filed a 28 U.S.C. § 144 affidavit to disqualify the judge. On January 3rd the judge disqualified himself. On the same day the Chief Judge of the District assigned the case to himself 200 miles away in Chattanooga Tennessee and set a hearing on the prosecutor’s motion four days later.
A hearing was held on January 9th; I filed all the necessary declarations; and my client answered approximately 30 minutes of questions correctly. The judge then disqualified me without findings and ordered me out of the well of the courtroom and not to speak to my client, his family or friends and appointed my client a local attorney. Later, after disqualifying me
the judge sua sponte transferred the case back to the judge that originally disqualified himself. see United States v. Glen Almany.
Seven days later on January 17th I received a Show Cause Order from the Chief Judge why I should not be disbarred for my conduct at the November 17, 2006 hearing where I was found in contempt. see In Re Herbert S. Moncier.
That case become a high profile proceeding resulting in recent orders blistering me and my immediate suspension from federal court for five years. The pleadings in that case can be viewed at www.moncierlaw.com.
I did not, and do not, yell, curse, use disrespectful tone, slam books or storm out of courtrooms. I was held in contempt of court for asking to speak to my client. I have been disbarred because of the style that I defend my clients.

McGrier – South Carolina community supervision statute held unconstitutional

Any person who is convicted of a “no parole offense” as defined in § 24-13-100 must complete community supervision upon their release from jail. Basically, this means when the person is released, after serving 85% of their sentence, they are on a sort of probation for two years. If the community supervision is revoked, a process similar to a probation violation, they are sent back to prison for up to one year, in the judge’s discretion. This could happen over and over again.
Until now, many people have been caught in a revolving door, in and out of prison even when the amount of time served has greatly exceeded the amount of time they were originally sentenced to. In 2004, the South Carolina Supreme Court heard the issue in State v. Mills, and held that the plain language of the statute provided that community supervision revocations could cumulatively total twice the original amount of time a person was sentenced to. But the Court stated clearly that the sole issue before them was the statutory construction of the community supervision statute, and they did not address the glaring constitutional issues involved.
In State v. McGrier, decided last week, and argued by defense attorney Charles Grose of Greenwood, S.C., the Court revisited the community supervision statute and recognized that, as applied to persons who have already served the entire amount of time they have been sentenced to, the community supervision statute is unconstitutional.
The Court in McGrier held that a practical application of their decision in Mills violates a defendant’s procedural due process rights, by imposing a sentence which exceeds the defendant’s original term of incarceration without notice that the original sentence would be modified and greater punishment imposed. If a defendant realized the full implications of the community supervision provisions, he may not have decided to plead guilty.
The statute violates defendants’ Sixth Amendment rights as well. Mills‘ literal interpretation of the community supervision statute effectively allowed a community supervision violation to become a separate and distinct criminal offense without the benefit of of the Sixth Amendment’s constitutional protections. The Sixth Amendment guarantees the right to notice, cross-examination of adverse witnesses, and compulsory process to call favorable witnesses – the right to present a defense in an adversarial proceeding. Under the Sixth Amendment, any fact that exposes a defendant to greater potential sentence must be found by a jury, not a judge, and must be established beyond a reasonable doubt.
The Court in McGrier correctly concluded that the total amount of time that an inmate could be incarcerated for community supervision revocations must be limited to the length of the remaining balance of their sentence. Too often we have only criticism for our appellate courts, and the slow erosion of constitutional protections, but McGrier was a well written opinion in which our South Carolina Supreme Court acknowledged the Constitution and preserved it.

“The DUI Exception to the Constitution”

The DUI Exception to the Constitution, posted by Lawrence Taylor on his DUI blog in 2005, contains a persuasive and often cited speech about the state of our nation’s drunk driving laws. When it comes to DUI’s, there are a different set of rules and the Constitution does not always apply.
The Fourth Amendment says that police officers cannot stop and detain a person unless they have probable cause to believe the person has committed a criminal act. However, in Michigan State Police v. Sitz, the U.S. Supreme Court found that there is a DUI exception for roadblocks, allowing police to stop and detain vehicles with no probable cause whatsoever. On remand to the Court of Appeals of Michigan, however, the Court of Appeals found that these roadblocks were unconstitutional under their State Constitution.
If you watch television, you know that often police will read what is called Miranda rights to a person they are arresting. You have the right to an attorney, and the right to remain silent, for example. Any time a person is in custody, ie handcuffed on the side of the road or in a police car, Miranda requires that the officer inform the person of their basic constitutional rights before asking questions. If the Miranda rights are not given to the person, any statement they make will be excluded from trial. But in Berkemer v. McCarty, the U.S. Supreme Court found another DUI exception to the Constitution – essentially saying, “we don’t know when Miranda is supposed to be given in DUI cases, but it is clearly some time later than in other cases.” (from Lawrence Taylor). Even though an officer has no intention of allowing a motorist to leave, and every intention of arresting the motorist, he is not required to read Miranda rights during the roadside detention.
In South Carolina the officer must read the Miranda rights before the field sobriety tests are given. But, although the officer says, “you have the right to an attorney,” you do not have the right to an attorney. Tell the officer you want to consult your attorney and see what response you get. Again, when you are asked to blow into the little black box, tell them that you would love to do so, but wish to exercise your right to consult your attorney. In South Carolina, you will be denied your right to an attorney at this most critical stage of a DUI proceeding, when you need to seek advice as to whether to submit to breath or blood tests, or seek an independent test.
The Fifth Amendment guarantees all of us the right not to incriminate ourselves – not only do we have this right, but if we exercise it, the prosecutor at trial cannot comment on our decision to exercise our constitutional right. Except in a DUI trial. In South Dakota v. Neville, the U.S. Supreme Court found a DUI exception to the Fifth Amendment – there is no right to refuse a breath test, and if you do refuse the breath test, the prosecutor can comment on it to the jury. (On remand to the State Supreme Court, South Dakota held that their State Constitution protected the right against self-incrimination, even if the U.S. Constitution no longer does.) Not only will the prosecutor be allowed to comment on your exercise of your right not to incriminate yourself, but you will be punished for it under South Carolina’s implied consent laws.
Some states have a DUI exception to the Sixth Amendment right to trial by jury, believe it or not. If you are arrested for driving under the influence in New Jersey or Nevada your fate will be decided by a judge without the benefit of a jury of your peers.
There is a different set of rules when it comes to DUI cases. Over and again, DUI lawyers urge one another to be careful which cases they decide to take up on appeal, for fear that the appellate courts will be given another opportunity to take away more of our constitutional protections in the name of DUI prosecution, creating precedents that must be followed in future cases. As Taylor says, “rights that are lost in a DUI case today can be lost in any other case tomorrow.”
The above observations on the DUI exception to the Constitution are all drawn from DUI lawyer Lawrence Taylor’s 2005 blog entry, which I encourage everyone to read. He ends his piece by paraphrasing a famous quote from pre-war Germany:
“First they came for the drunks, but I was not a drunk, so I did not speak up . . .”

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