A South Carolina Criminal Defense Blog

Monthly archives for August, 2008

Judge who signed search warrants for attorney’s office recused from murder case

Via Grits and Tex Parte Blog, Collin County District Judge Mark Rusch has been recused from hearing a capital murder case, after signing search warrants for defense attorney Keith Gore’s office.
Despite a hearing being scheduled to determine whether the prosecution was entitled to the items they sought, the prosecution sought and obtained a search warrant from Judge Rusch to enter Gore’s office and search for a pair of boots and letters that the defendant had written to his wife. The boots were not found in the office, but the letters were taken by the police. From Tex Parte:

The boots were not found, according to a motion the DA’s office filed in the case, but letters and a shoe box were. “We’re pleased with it, and we think it vindicates what we’ve been saying all along: that Keith Gore did absolutely nothing wrong,” Miears says. “And we’re disappointed that the Collin County DA’s Office would put a district judge in the position of having to issue an illegal search warrant of a lawyer’s office.” Collin County assistant district attorney John Rolater, who represented his office during the recusal hearing, declines comment.

Official obstruction of justice

There are different ways to conduct interviews, depending on what you want to achieve in the interview. In law schools they usually offer a class on interviewing which teaches, among other things, how to get the most accurate and truthful information from an interview. You begin with broad, open ended questions, who, what, when, where, why, and how, allowing the subject to speak freely and not limiting their responses. Further along into the interview you may narrow the scope of your questions, to focus on what you have identified as the important issues, the topics you want to know more about, or the subject matter that they left out.
If you are seeking the truth, the above method is without a doubt the most reliable. On the other hand, if you are seeking only to verify what you already believe to be true or if you are seeking to make the subject say what you want them to say, you would use more coercive methods, such as the Reid technique or variations thereof that are taught to law enforcement.
In preparation for a murder trial, recently I interviewed a witness. There were times during the interview where I told them what others had said and asked them to confirm or deny, but for the most part I tried to just ask them to tell me what had happened and what they knew. Most of what I was told confirmed what I already knew from other witnesses, and I didn’t have to trick the person, lie to them, or scare them into telling the truth. After this, I was reviewing a typical police interview of a witness in the same case, where the investigators were convinced they had everything figured out.
In the beginning of the interview, they tell the subject that they already know everything and there is nothing that the subject can tell them that they don’t already know. They only want the subject to listen and they are going to tell him what happened. They then proceed to tell the subject what they want him to say, in great detail. When the subject tells them that they are wrong, and tries to tell them what actually happened, he is told he is lying. They then tell him that they know he is lying because A, B, and C have already told them what the subject’s involvement was. I know that A, B, nor C ever spoke to the police about this case.
They tell the subject that A is telling them that the subject is the “ringleader” and that A is laying all the blame on him. They tell the subject that if he does not clear the air he is going to have to take the fall. They tell him that A is saying it happened this way _________. But, the truth is, if it happened this other way __________ they can understand that, it’s alright. Scenario number 2 is not nearly so bad as what A is trying to pin on him (but admitting to scenario number 2 would in fact be a confession to a crime). They also want him to tell them what they want to hear about A’s involvement. They tell him they are going to be there for days if he does not say what they want him to say.
The subject continues to deny what they are saying, and repeatedly tells them he is not going to lie. At one point, he asks what they want him to say. The response is, I want you to say that A did this. The subject says I am not going to lie, and the cop’s response is it’s not a lie, because I know A did this.
The end result in this particular interview was that the interrogators lost control of the interview, lost all credibility with the subject, and he did not tell them what they wanted to hear. They did not keep him in the interrogation room for days, and he did not succumb to the pressure. But watching these interviews it is easy to see how police when applying these techniques can and do obtain false confessions from people. Persuade the subject that they are not leaving that room until they say what the police want them to. That there is overwhelming evidence proving what the subject knows is not true. That things will go easy on him if he just says what the police want him to. That if he does not say what the police want him to things will get much harder.
What occurs to me is the difference between my interviews and police interviews. What would happen if I interrogated a prosecution witness in the same manner that the police interrogated this guy, and the prosecutor got his hands on the video? When the police twist interviews to make witnesses or future defendants admit whatever facts support their case, provided Miranda rights are read, usually whatever is said is admissible at trial and the jury will overlook or not care about the methods used. It is called good police work. If a defense attorney were to use these same methods to twist the truth I am sure that it would be called obstruction of justice.

Brooklyn lawyer Marina Tylo sues blogger for reporting that she was sued for malpractice

Marina Tylo has filed a defamation suit against blogger Andrew Bluestone at the New York Attorney Malpractice Blog, for reporting in September of last year that she was sued for malpractice. In her complaint, provided here by Simple Justice, she asks for the sum of $10,000,000.00 in damages and a retraction.
The offending text she cites in her complaint is:

Here is the full text cite for a legal malpractice case in which plaintiff’s attorney served a summons before buying the index number. Khlevner v. Tylo, 10733/07,

which is text that prefaces language from the court’s decision in her case. A copy of the webpage is attached as “Exhibit A.” The lawsuit alleges that the above text constitutes “libel, gross negligence, negligence, intentional infliction of emotional distress, [and] tortious interference with prospective contractual relations.”
As Simple Justice points out, this ridiculous effort by Tylo to silence a blogger will end up earning her much more bad press than the one small post on Bluestone’s malpractice blog did:

And if the rest of the blawgosphere feels similarly, then let’s make sure that those inclined to try to use the courts to shut blawgers down and keep lawyers’ screw-up as their dirty little secret, learn that such vapid efforts to undermine speech in the blawgosphere is going to backfire on them. Perhaps Tylo will regret her decision to try to silence Bluestone as her misbegotten effort spreads across the internet.

Mike at Crime and Federalism says:

Is that how someone protects her reputation? By suing a law blogger? Really? Who advised Ms. Tylo that filing the lawsuit was a good idea? She should sue her lawyer for malpractice.
Oh, wait. According to the summons that Mr. Greenfield helpfully posted, Ms. Tylo filed the lawsuit pro se, that is, on her own behalf. She’s literally her own lawyer.

I see that a google search for “Marina Tylo” brings up activerain real estate network first (which I hope is a bad joke, as it shows a terribly unprofessional profile filled with typos and bad grammer), followed by many blawgs with commentary on her lawsuit. Several begin with “Brooklyn lawyer Marina Tylo deserves a good spanking.”
More from Eric Turkewitz, Mark Bennett, Crime and Federalism.

Another attorney’s office raided

From Fourth Amendment.com:
Last month federal agents executed a search warrant on the office of lawyer George Argie in Cleveland, Ohio, seeking information about one of his clients. The warrant was one of many issued as part of a federal investigation into corruption by Cuyahoga County officials:

Investigators are examining whether Cuyahoga County Commissioner Jimmy Dimora and Auditor Frank Russo steered the construction contracts to businesses that provided free improvements to their homes . . . agents want to know whether Dimora and Russo offered jobs in exchange for favors or used their influence in judicial proceedings, decision-making at the top levels of county government and determinations of how much taxes people and companies should pay.

The agents that searched Argie’s office took items related only to his work with one of his clients who is under investigation, and Argie was served with a grand jury subpoena to produce additional documents.
Argie says he does not think he is a target; they only wanted information regarding his representation of his client. My question is, if Argie is not a target, how in the hell does a judge sign a search warrant allowing law enforcement to go through his files? One of the first things that we learn regarding the attorney – client privilege is that it is sacrosanct. If a client’s confidences cannot be maintained, clients will not be able to confide in their attorneys, and they are denied effective representation.
The appropriate method of obtaining information from an attorney’s files is through subpoena, which the attorney can move to quash, providing for a hearing before an impartial judge who can review the materials in camera if necessary to determine if attorney-client privilege applies. Law enforcement cannot walk into lawyer’s offices, search through clients’ files, and take what they want (as they did in Keith Gore’s office in Texas).
If George Argie is the target of a valid investigation, then a search warrant for his office may be justified. If Argie’s client waived the attorney client privilege, then Argie can turn over his client’s information and a search warrant would not have been necessary. But if Argie was not a target and his client did not consent, this is a serious problem – law enforcement cannot bypass judicial review and ignore attorney client privilege in their search for evidence.

Ignition interlocks for all (MADD’s agenda)

DUI lawyer Lawrence Taylor points out some interesting facts at his DUI Blog. MADD has been advocating for ignition interlock devices for all vehicles for a few years now, and Taylor asks why?
We see that MADD’s list of corporate donors is topped by automobile manufacturers, donating over $100,000 each, who have been designing cars equipped with ignition interlocks, possibly in anticipation of government bowing to MADD and passing a law requiring them:

Platinum – $100,000+
DialAmerica Marketing, Inc.
Nationwide Mutual Insurance
Nissan North America, Inc.
DaimlerChrysler Corporation
CarMax Foundation
General Motors Corporation
Gold – $50,000+
Johnson & Johnson
Procter & Gamble
Anonymous
Outside the Classroom
Silver- $25,000+
Charter One Bank
GE Motor Club
Volkswagen Of America, Inc.
Takata
Oreck Direct
Ford Motor Company
Maid Brigade
Canadian National Railway Company
BP West Coast Products LLC
Bronze – $10,000+
Coca-Cola North America
Anonymous
Harvey Industries
Smart Start
Takata
American International Automobile Dealers
Anonymous
Special Donors
BP Corporation North America Inc.
Innocorp, Ltd.

MADD is big money. Taylor points out that in 2006 (still the most recent statistics available on MADD’s website) MADD received over $51 million in contributions, and received the lowest possible rating for “fundraising efficiency” – “the percentage of money raised that actually goes to the stated objectives rather than to salaries, overhead, etc.”
I don’t want to believe that I live in a society that would tolerate an ignition interlock device in every car, and I know that I would not purchase a car equipped with such a thing. It is frightening to think that people may agree to allow the government to monitor us every time we get into our own car, and more frightening to imagine, if we allowed that to happen, what will be next.

DUI – Ignition interlocks and vehicle immobilization

Last week in court I saw an attorney who was pleading his client to a DUI 2nd offense and was taken completely by surprise by the stack of forms that his client was required to sign before the Court would hear the guilty plea. Among them was the requirement that an ignition interlock device be installed on the defendant’s car, following the suspension period. Even after the solicitor explained what it was to the defense attorney, the lawyer did not explain it to his client but just put the papers in front of him, said sign here, here, and here, and then continued with the plea.
Every attorney that handles DUI cases needs to be aware of these requirements, found in S.C. Code Sec. 56-5-2941 and 56-5-2942, which are complicated, draconian, and can easily result in further penalties down the road with limited due process. Following any conviction for DUI 2nd offense or greater, the person’s driver’s license is suspended, they must “immobilize” (surrender the tags and registration) all vehicles registered in their name for 30 days (during the suspension period), and after the suspension period has run they must install an ignition interlock device.
Even if a DUI 2nd is remanded to the magistrate court for a plea to DUI 1st, the ignition interlock requirement applies, because it is determined by what is on the driving record and not what is before the Court. After a 2nd offense DUI the ignition interlock must be complied with for 1 year, after a 3rd offense 3 years, and after 4th offense the law says a defendant must have an ignition interlock device for the rest of their life, although there is a separate provision to apply for relief after 10 years.
The person has to pay a monthly fee to the probation department who supervises the interlock device, and has to have it inspected every 60 days. There is then a point system, where the person receives points if the machine registers greater than a .02 BAC or if the person does not have the inspection done each 60 days. Points lead to a longer period of time with the device, a requirement of enrolling in counseling with DAODAS, or a further license suspension. The remedy for assessment of points by the probation department is to appeal the decision . . . to the probation department. You won’t get a hearing or be permitted to present evidence before they make their decision.
If the person does not follow the requirements, further criminal charges and jail time could result. If the person drives without installing the device, they can be charged criminally and punished as if they were guilty of DUI. Tampering with the device, providing a car to someone who is required to use the device, asking another person to start the car, or starting the car if you are another person are misdemeanors that carry up to 30 days in jail.
Note that on SCDPPPS’s FAQ on their website, it says that if another persons drives the vehicle, they will have to blow into the interlock device as well. The law, on the other hand, says that it is a misdemeanor punishable by 30 days for another person to use the car.
Ignition interlock devices are no more reliable than Datamaster machines, and probably less so. The machine will make mistakes, and this coupled with the stringent reporting requirements and lack of due process for violations is bound to land many people into an administrative nightmare. Maybe that was the drafter’s intention?

State v. Spoone – S.C. approves waivers of appeal and PCR in plea agreements

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

Pursuant to a written plea agreement, petitioner James William Spoone pled guilty to murder, first degree burglary, and possession of a weapon during the commission of a violent crime. Prior to the guilty plea, the State issued a notice of its intent to seek the death penalty. In accord with the plea agreement, the trial court sentenced petitioner to life without parole for the murder and a consecutive life term for the burglary.[1]
The plea agreement expressly stated the following:
[Petitioner] agrees to waive any and all appeals, PCR applications, federal habeas petitions and any and all other methods of review of this guilty plea and sentence.

Thus South Carolina follows in the footsteps of the federal courts, allowing prosecutors to deny any review of guilty pleas or sentences as part and parcel of what is often a contract of adhesion. Although this practice is not yet as widespread in our state as it is in some federal circuits, our Supreme Court has given the green light if prosecutors wish to go this route.
When faced with a case where a defendant has a choice of significant additional prison time or signing a plea agreement that waives the right to appeal or PCR, what should a defense attorney do? I believe this type of agreement is unethical and should not be entered into by defense attorneys or offered by prosecutors, nor should it be stamped with the approval of judges or appellate courts. Is it a choice left to the client, or should the defense attorney refuse to participate in such agreements?
The Court’s holding, following a brief review of federal law and precedents from other states, is that waiver of review of a guilty plea and sentence is enforceable if it is knowing and voluntary.

Sober or slammer

South Carolina law enforcement has begun their latest DUI campaign, kicking off operation “sober or slammer” last Friday.

Troopers say no matter if you’re a teacher or a preacher, or anyone else, if you’re caught drinking and driving you’re going to jail.

The Highway Patrol says they are going to triple the number of officers on the road through September 1st, and will use the extra manpower to set up roadblocks as well. On Friday morning law enforcement held a news conference at Mount Hope cemetery in Florence, complete with anti-DUI banners and pictures of a DUI victim to announce the crackdown.
It is undeniable that drinking and driving can have tragic results. However, I predict that in the next few months what we will see are an increase in persons who were not legally under the influence who were arrested and taken to jail to bump law enforcement’s numbers. If there is an increase in arrests, the operation will be a success. Of course, if there is no increase in arrests, the operation will be a success, because the decrease will be due to less people drinking and driving as a result of the campaign.
I believe one (intended?) effect of these marketing blitzes by the Highway Patrol is large-scale jury tampering. I have had officers testify on the stand that one drink before driving is illegal, and there are many people who believe that any amount of alcohol before driving is against the law. That’s what the commercials are saying, right? Zero tolerance. Sober or slammer. You drink and drive, you lose. But that is not what the law is, nor is that what the law should be – the law says that DUI is impairment by alcohol or drugs to the extent that it affects your ability to drive, and only when you blow greater than a .08 on the datamaster is the jury instructed that there may be a rebuttable inference of intoxication.
When trying a DUI, the first thing that I tell the jury in opening statement is that it is not against the law to drink and then drive. I ask for an instruction from the judge that zero tolerance is not the law in South Carolina, and given the saturation of the “zero tolerance” advertising it is a necessary instruction to attempt to dispel the jury’s confusion on the issue. I hope that operation sober or slammer does some good for someone somewhere in the state, but the violation of Fourth Amendment rights at roadblocks and the arrests of persons who were not legally drunk is too high a price to pay.

Winning your case anthology

Last week, Gerry Spence posted Winning – the simple secret, in which he says the most important thing that we have when talking to jurors is credibility: “So how can you win your next case? How can you win your next argument—in the courtroom or at home? How real and how credible can you be?”
Soon after, A Public Defender offered us The secret to winning: Gideon-style, which consists of:

Gideon’s secret to winning: Knowing your rear from your face, or, preparation.
I mean, really, that’s your only shot. Know the State’s case inside out. Know the allegations, the witnesses, the police reports, the statute and your theory of defense. You have to prepare, prepare, prepare.

Gideon then tagged a few other bloggers to offer our advice on the topic as well, and my response is here. This turned out to be an interesting project, and I am glad for it – I have learned a thing or two from our fellow bloggers and Hostis Civitas is right, everyone has their own style and methods.
Houston criminal defense lawyer Mark Bennett tells us the secret to winning – Bennett style: solve the puzzle with which the case presents you, which requires inspiration:

prepare just enough, then stop. Don’t just do something, sit there. Play with the kids. Just play. Read a book — something non-law-related. Write a poem. Take the dog for a walk. Get some exercise. Sleep.

Public defender Hostis Civitas says that “rather than discovering our story we are busy retelling their story;” we need to throw out the government’s story and develop our client’s story – an excellent point considering how often attorneys end up relying on what is written in the incident reports. He also points out that what works for me may not work for you and may not work for anyone else – everyone has their own method and their own style.
AHCL gives us a prosecutor’s perspective, with excellent points for prosecutor or defense attorney: 1) Be yourself; 2) Get off the high horse; 3) Know the facts of the case like you were there when it happened; 4) Issue spot, issue spot, issue spot; 5) Meet with every last witness you are going to put on the stand; 6) Get yourself some theme music; 7) Don’t be afraid to show a sense of humor during lighter moments; 8) Always be the “Good Guy;” 9) Be passionate; and 10) Be right.
New York defense lawyer Scott Greenfield’s advice is “to see each case, each defendant, as unique. Approach it as if it’s the only case you’ve ever done, the only defendant you’ve ever represented, and figure out what makes it different from all the rest.”
Maryland defense attorney Jon Katz says that

. . . secrets are not really secret, but are readily available information, open things, but things that tend to pass unnoticed . . .
In the same vein, there probably are not any secrets to winning trials, but there are skill sets to learn, revelations to find, new levels of caring to attain for clients, more fearlessness to gain, more internal and external journeys to take, more joy to experience on the path, more ego to shed, more willingness to collaborate with other lawyers and non-lawyers in seeking the path to victory, and more of the tapping of the joy, fearlessness, and giggling of the child within.
My trio on this path is the overlapping lessons and practices from the Trial Lawyers College, t’ai chi, and the peace and harmony experienced even when walking into the eye of the storm as exemplified by Jun Yasuda.

Omaha criminal defense lawyer David Terrell remembers Don Fiedler’s performances at NCDC, and his lesson which was:

Work hard, behind the scenes, until the performance on the stage looks effortless and perfectly summarizes your client’s story for the jury.

Although I am glad for all of the responses to Gideon’s call, I’ll leave you again with Spence’s most recent posts, as he did after all write the book on winning your case: you must not give your opponent permission to beat you, and attempting to frighten or anger your adversaries will only result in motivating them, making your case more difficult.
Thanks to all.

South Carolina evangelist charged with DUI

73 year old television evangelist evangelist Dr. William Crews was arrested and charged with driving under the influence this week in Dorchester County. He has maintained that he was not too drunk to drive and says he will fight the charge.
This is another example of how anyone can be charged with DUI – there but for the grace of God go I. The comments to the News 7 article I linked to also illustrates the guilty until proven innocent mentality when it comes to DUI’s, throwing the presumption of innocence out of the window:

I don’t know anyone who would be dim-witted enough to believe his story. If you are charged with a DUI, there is obviously enough evidence to charge you. If you have not been given a field sobriety test, then they would have at least done a blow test or something. Sounds like he is not ready to give up his ministry as a Southern Baptist Pastor.

Obviously, if you are charged with a crime, there must be sufficient evidence. We’ve been doing it wrong all this time – who needs judges or juries when we’ve got police?

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