A South Carolina Criminal Defense Blog

Monthly archives for September, 2008

Trial to begin this week in Highway Patrol case

The civil rights trial of trooper Steve Garren is set to begin this week. He is charged with violating the civil rights of a man he struck with his patrol car, a federal crime that carries up to 10 years, because local prosecutors refused to bring charges against him for assault and battery with intent to kill (attempted murder).
According to the Greenville News, a second trooper who is accused of repeatedly kicking a truck driver in the head after a highway chase is expected to go to trial as well, although they do not say when or where.

Garren’s attorney predicted last week his client will be vindicated because of the video that shows the chase on a narrow, dark back road in Greenwood County in June 2007 after Grant bailed out of a car. Lawyer John O’Leary said Garren didn’t have time to get out of the way as Grant cut in front of the cruiser. He also noted no state charges were ever brought.
“There’s no way he could have intended to hit the guy based on that time frame,” O’Leary said. “The truth of the matter is this crime requires that it be willful. And, you know, we just believe it wasn’t. It was an accident.”

I don’t know. Looks like the trooper actually swerves to hit the man. What do you think:

But state Rep. Leon Howard, the chairman of the Legislative Black Caucus, which helped bring the videos to the governor’s attention, said Garren’s bragging shows the mind-set of the trooper.
“It’s ingrained in him to think they’ve got the kind of authority to do the things they do. He acts like he’s just hit a squirrel,” said Howard, D-Columbia. “It’s ridiculous that he would even say that he’s innocent.”

I know that Garren will get better than a fair trial. More often than not, when law enforcement officials are charged with crimes, juries do not hold them accountable. But I am glad that someone is trying to hold these troopers accountable, and, win or lose, these crimes and the abusive attitudes prevalent in law enforcement agencies have been brought into the light of day.

Sentence reduction as a remedy for prosecutorial misconduct

Doug Berman at Sentencing Law and Policy last week highlighted an Iowa district court opinion in which U.S. District Court Judge Mark Bennett reduced a defendant’s sentence by 17 months as a remedy for prosecutorial misconduct.
The prosecution had entered into a plea agreement with the defendant where he was to plead to drug and weapons charges with a guidelines level of 25 after a downward departure of 3 levels for acceptance of responsibility. However, at the plea, in violation of their agreement, the prosecution argued that the defendant should instead be sentenced as a career offender, with an adjusted base level of 29 and criminal history category III, based on a prior DUI conviction. (The prosecution argued to the judge that the Defendant should be sentenced to significantly more time in prison than they had agreed to.)
Ultimately, the Court found that the prosecutor’s breach of the plea agreement constituted prosecutorial misconduct, after which the case was sent to Judge Bennett to determine what, if any, the remedy should be.

The prosecution, now represented by a different Assistant United States Attorney, argued that, even if the violation of the plea agreement was “clear” or “blatant,” it was not in “bad faith,” and was more in the nature of a “technical” violation . . .

Judge Bennett, calling the prosecution’s argument “frivolous and grossly inaccurate” and noting that this was not the first case of a prosecutors breach of a plea agreement in his district,

found that Dicus’s total offense level is 25 and that his criminal history category
is III, which results in an advisory United States Sentencing Guidelines range of 70 to 87
months

and sentenced the defendant to 70 months, the bottom end of the guidelines range. The judge noted that but for the misconduct he would have sentenced the defendant to the high end of the guidelines range due to aggravating factors such as the sale of drugs to minors by the defendant. The opinion reasoned that:

Granting no relief is also inappropriate, because it would do nothing to deter
prosecutorial misconduct or to give defendants an incentive to raise prosecutorial
misconduct claims. See, e.g., Sonja Starr,3 Sentence Reduction as a Remedy for
Prosecutorial Misconduct (hereinafter Starr, Sentence Reduction), 2 & n.10 (unpublished
draft, September 2, 2008; used by permission) (citing Guido Calabresi, The Exclusionary
Rule, 26 HARV. J.L. & PUB. POL’Y 111, 116-17 (2003), and Harry M. Caldwell and Carol
A. Chase, The Unruly Exclusionary Rule, 78 MARQ. L. REV. 45, 68-71 (1994), as
suggesting that the appropriate remedy for prosecutorial misconduct should be the
combination of direct sanctions against the police, such as fines, to deter misconduct, with
sentence reductions, to give defendants an incentive to raise misconduct claims).
Moreover, “[p]rosecutorial misconduct has been a widespread and widely criticized
23
problem in the U.S. criminal justice system for decades,” albeit one for which existing
remedies are ineffective, “largely because they are rarely invoked.” Id. at 4 & 1. For
example, as the Second Circuit Court of Appeals observed more than two decades ago,
“Given this Court’s unwillingness to use reversals as a means of disciplining prosecutors,
threats to do so seem unlikely to have much effect. As a practical matter, prosecutors
know that courts are reluctant to overturn convictions because of improper [conduct].”
United States v. Modica, 663 F.2d 1173, 1183 (2d Cir. 1981) (cited in Starr, Sentence
Reduction, at 13). The problem cannot continue to go unremedied by the courts, so that
some relief from prosecutorial misconduct is appropriate in this case.

The Court cites a paper by Professor Sonja Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, which advocates for the use of sentence reduction as a remedy for prosecutorial misconduct. The reasoning is that the current remedies, reversal of a conviction or dismissal of charges, are never granted by courts and therefore there is no real deterrence.
Starr and Judge Bennett have a point – Courts rarely grant reversals, dismissals, or suppression as a consequence of prosecutorial misconduct. Prosecutors are rarely disciplined for ethics violations, and they are all but immune from civil liability or prosecution themselves. I don’t believe that sentence reductions will serve as an effective deterrent, however. I believe that all of the above would be the better deterrence for prosecutorial misconduct, such as Brady violations that can and do lead to wrongful convictions, but seeing as how none of that is happening, perhaps we need to start somewhere.

Buzzed driving is not drunk driving

Driving down the road today in Myrtle Beach I noticed another billboard proclaiming “Buzzed driving is drunk driving.” More state dollars spent on marketing to the potential jury pool with mis-truths about our state’s DUI laws. Buzzed driving is not drunk driving, zero tolerance is not the law, and it is not against the law to drink and then drive. South Carolina law says that if you are driving, while under the influence to the extent that it substantially impairs your ability to drive, then it is against the law.
Along with the marketing blitz by law enforcement, the media does all that they can to feed the DUI fanatics. For example, a few days ago the Greenville News announced that South Carolina is one of the worst states for drunk driving: We “ranked No. 2 in deaths as the result of drunken driving, according to recently released 2007 figures.” Which figures are they referring to?
Hopefully not from MADD, who takes the figures released by the National Highway Traffic Safety Administration for alcohol related deaths (which includes those accidents where there is a blood alcohol content of less than .08, or indications of alcohol such as a beer can found in the car or nearby), and translates this into alcohol-caused deaths? When dealing with DUI statistics the numbers usually come from biased agencies and are suspect.
The Greenville News article also hails the new DUI law which goes into effect February 10, 2009:

The DUI law, which takes effect in February, not only strengthens penalties but also requires counseling for offenders as well. That two-pronged approach should help reduce the terrible toll exacted by drunken drivers on our highways.

The new DUI law certainly increases penalties, providing for up to 7 years in prison for a drunk driver, but the old law already required counseling for offenders. The article praises the increased license suspension periods for persons who exercise their Fifth Amendment right to not give evidence against themselves (by blowing into the datamaster machine), and says “the law also gets rid of needless loopholes that kept some drunken drivers from being convicted.” This needless loophole being the required reading of Miranda rights before the person is given the datamaster test.
The article goes on to lament how there are not enough troopers on our highways, but to praise the increased number of arrests in the past year. More people in jail = good. The news media is not going to write articles about the unreliability of the Datamaster and other breath testing devices, how the system of DUI laws is geared to deprive defendants of the right to a fair trial, or how we have created a DUI exception to the Constitution, any more than most legislators are going to address these issues, because readers want to read about how much of a problem drunk driving is, like they will cast their vote for the politician who makes the most noise about being tough on crime.
Wouldn’t it be something if journalists wrote more articles on how the manufacturers of breath testing machines fight tooth and nail in court not to release the software code for these machines, and that when the code is finally released and tested, like the Alco-test 7110 in New Jersey:

The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…
It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards…

Reason and rationality seldom have a place in the public debate about DUI, or crime of any type.

For nine years, lawyer kept client’s secret regarding murder case

This story highlights some of the damnable ethical dilemmas that attorneys, in particular criminal defense lawyers, often face. In 1999, Florida lawyer Jay Hebert’s client told him that she had helped to bury the body of a missing real estate agent. Her boyfriend at the time had murdered his wife, the real estate agent, and she helped to dispose of the body.
For nine years Hebert lived with this knowledge, as his client refused to come forward and he was bound by attorney client privilege not to reveal the information revealed to him in confidence. The client finally decided to talk, after Hebert negotiated a deal for her immunity in exchange for the information, the body has been found, and the (now ex I presume) boyfriend has been charged with first degree murder.
The attorney client privilege is an ethical rule that is inviolate. Most lawyers, myself included, have clients’ secrets that we will carry to our graves. Blogger Jon Katz recently commented on client’s families who insist on being present during meetings, and how he deals with this. The issue is that whenever a third person is in the room, technically there is no attorney client privilege. That third person can reveal what was said, and hypothetically a judge could then force the attorney to reveal those confidences.
The way I deal with this is to sit down first with the client and his or her family, explain to the family that I will be glad to discuss procedural matters with them or how things are looking in general, but when it comes to the details of what my client tells me, that is between them. If it is a parent, I encourage my client to be honest with them about what happened, but I cannot tell them what my client reveals to me and once we begin discussing details of the alleged crime everyone but my client must leave the room. Although some have not liked this, I have never had to refuse to accept a client or have one leave because of it.
Attorney client confidentiality, like the priest-penitent privilege, is essential because without it clients would not be able to speak freely with their counsel. I believe that to do the best that I can for a client I need them to be able to trust me with the truth about their case without fear of being sold down the river to the government.

Veteran’s treatment courts

A client of mine who is also a distinguished combat veteran brought to my attention a bill pending in Congress that would establish a grant program to create veteran treatment courts based on the drug court model.

“These treatment courts will address the specific challenges with drugs and alcohol too many veterans face when returning home from their honorable service overseas,” said Senator John Kerry. “For those who have given so much for our country, we should address the serious issues of drug and alcohol addiction in an appropriate forum that recognizes that some veterans fall victim to substance abuse as a way to handle post-traumatic stress. It’s well past time we offered our veterans services worthy of their sacrifice.”

The SERV Act would authorize an annual $25 million for courts wanting to establish either a veteran’s treatment court or to serve veterans through an existing drug court.
Horry County and other counties in South Carolina have employed drug court programs with mixed success. I’ve commented on our drug courts before:

Horry County Drug Court has been praised as a success. It is a wonderful idea, and in theory it should divert many people away from the prison system. I think we all want the drug court, and the proposed middle court expansion, to work, but we need to step back and take a look at what is happening in drug court:
1) Some people are finishing the program, remaining drug free, and avoiding prison to boot. These are the success stories that we want to hear about. Horry County’s drug court began in August of 2005, and has graduated 12 people so far.
2) I am told that most people do not graduate, but I have not seen any numbers on how many have been admitted and how many have flunked out, other than only 12 have graduated in the past 3 years.
3) Before being admitted into the program, the defendant must plead guilty, be sentenced, and then the sentence is deferred pending completion of the program.
4) To be admitted into the program, the defendant must waive any right to appeal or enjoin any decision of the drug court/ middle court judge, and the defendant must waive any right to post conviction relief.
5) If the defendant is dismissed from the program, the defendant does not receive any due process or hearing, and the full sentence is immediately imposed.
So I ask, if most people do not graduate from this program, is it promoting the rehabilitation and re-entry of non-violent offenders into society and reserving the state’s prisons for dangerous offenders, or is it giving the prosecutors an easy out to obtain convictions and often lengthy sentences, without the terrible headache of appeals and PCR’s? So far, it seems that this bill will not only serve to keep people in prison longer, but it will help the prosecutors to send more people there in the first place.
I am not saying that we should scrap the idea, but I do think that we should make sure that it is achieving its stated goals, and I don’t think that this should be used as a way to get around defendant’s due process rights.

And I would have the same concerns with a veteran’s treatment court. Because the idea is to provide an alternative to incarceration for those who have served our country and are suffering for it, we do not want to put a system in place that only makes it easier to put veterans in prison instead of keeping them out of prison. Because the idea of a veteran’s treatment court is to cope with issues specific to veterans, such as the combination of Post Traumatic Stress Disorder and alcohol or drug abuse as coping mechanisms for the veteran, I believe that veteran’s treatment courts, if established, should be separate from the existing drug courts.
I’m not saying we should not continue with the drug court experiment – I think that we should. We should expand and improve on the drug courts that we have, and create a separate veteran’s court if funding becomes available for it. But I think that we need to be aware of the realities of drug court success/failure rates, and we need to constantly work to improve the system. I think that drug courts and veteran’s courts are a hopeful first step in helping the pubic and the players in the justice system understand that some people who become caught up in the justice system need help and not punishment. It is a beginning.

Marijuana arrests increased in 2007

The FBI’s yearly report on crime data was released this week, and shows that a record number of Americans were arrested for marijuana possession in 2007:

872,721 Americans were arrested for marijuana in 2007, and of those arrests, 89% or 775,138 were arrests for simple possession – not buying, selling, trafficking, or manufacture (growing) . . . This represents an increase in marijuana arrests of 5.2% from the previous year and the fifth straight year marijuana arrests have increased from the previous year. Now a marijuana smoker is arrested at the rate of 1 every 37 seconds and almost 100 marijuana arrests per hour.

In comparison, Grits points out that “597,447 were for violent crimes, and 1,610,088 were for property crimes. That means just 15.54% of arrests were for violent crimes or property offenses.” Dallas criminal defense lawyer Robert Guest takes this a step further, finding that the clearance numbers (crimes solved) for 2007 were:

Murder 60%
Rape- 40%
Robbery- 25%
When marijuana is legal the police can work on the 40% of annual uncleared murders. We owe it to the victims of real crime to quit wasting law enforcement resources on marijuana consumers.
What do you want your police solving and/or preventing? Pot smoking, or violent/property crime?

South Carolina had a total of 213,355 arrests, of which 10,681 were arrests for violent crimes, 302 were arrests for murder, and 30,679 were arrests for drug crimes
Just days before the FBI released their statistics showing that over 872,000 Americans were arrested in 2007 for marijuana, our esteemed Drug Czar stated on C-Span that “we did not arrest 800,000 marijuana users,” and went on to explain that “we arrest people because they are usually involved with things like violent offenses . . .”
Right around 1:38 on the video:

Hood’s execution stayed

From Grits for Breakfast: On September 9, the Texas Court of Criminal Appeals stayed the execution of death row inmate Charles Hood, saying that it will reconsider the propriety of jury instructions in a claim that the Court had rejected last year.
Hood’s attorneys asked the Court to stay the execution based on the revelations that Hood’s trial judge was sleeping with the prosecutor in his case, but instead the Court dodged the issue and based its stay on the previously denied issue of improper jury instructions.
For some time, the trial judge and prosecutor had refused to answer questions about their undisclosed relationship during the time of Hood’s trial, but after Hood’s attorneys filed a civil suit seeking damages and a district judge ordered them to submit to depositions, they admitted the affair.
Despite the admission of a sexual relationship between judge and prosecutor, which seems would be an obvious denial of the right to a fair trial before an unbiased tribunal, a letter to the governor from 22 former judges and prosecutors, and the attorney general’s request that the matter be looked into, the Texas Court of Criminal Appeals held that the claim of impropriety came too late, instead ordering the stay based on new developments in the law on jury nullification instructions.
Grits points out that the new development in the law of jury nullification instructions is a 2007 U.S. Supreme Court case Smith v. Texas, which came before the appeal was denied in Hood’s case in June of 2008. Therefore, the Court gave the go-ahead for the execution despite U.S. Supreme Court precedent on jury instructions at the time. The politics of state-sponsored killings in Texas is truly a marvel.

Myrtle Beach continues efforts to shut down the May bike rally

For some time now, the city of Myrtle Beach has been working on plans to end the Memorial Day Harley Davidson rally and “black bike week” the week after the Harley rally. In June of this year, the city passed a 3-million dollar property tax increase, to fund anti-rally efforts. Last month at a city council meeting to discuss the anti-rally campaign, supporters of the bike rally were told by Myrtle Beach mayor John Rhodes, “If you don’t like it, I’d leave.”
Myrtle Beach does not sponsor any motorcycle events, and cannot simply order the rally not to come next May. So, the plan is to do everything possible to harass the motorcyclists and vendors in an attempt to force them out. The proposals so far include new laws declaring unpermitted rallies and events to be public nuisances, creating a midnight curfew, closing bars at 2 am, requiring all motorcyclists to wear helmets (not a requirement under state law), towing and impounding all motorcycles that do not meet noise standards, checkpoints where motorcycles will be monitored for noise, and traffic diversion such as barriers and closed streets.
The city will call offenses “infractions” rather than criminal offenses – an “administrative hearing system” could be implemented to deal with “civil punishments” for infractions. Business owners or persons who sponsor rally events that “require a heightened law enforcement response” could be held liable for the city’s expenses. Business owners and property owners may be required to install video cameras or even hire guards to enforce new parking lot ordinances.
Myrtle Beach is my home, and this is an embarrassment to me. Our city is saying that we cannot tolerate diversity, if the rally does not leave we will pre-meditatedly violate the civil rights of motorcyclists and business owners, and we will not permit anyone to speak in dissent. I sincerely hope that the rally will come in May of 2009, and that these ridiculous measures that have been proposed will cost the city more than they bargained for in litigation.
Welcome bikers.

Copy and paste DUI reports

Lawrence Taylor expounds on the practice of police officers using pre-written arrest reports in drunk driving cases – writing out “driving symptoms, slurred speech, failed sobriety tests, and admissions of drinking – and then just filling in the names, dates, etc., when they actually make an arrest.”
Taylor points to a news channel investigation in Orlando Florida which uncovered evidence of the use of “DUI templates” by officers. Horry County officers may or may not use “templates,” but the exact same language does appear in most reports and I do not doubt that many officers copy and paste their DUI symptoms from one report to the next. When the officers testify they often read from their reports because they cannot remember one DUI stop from another months after the fact, and although judges, prosecutors, and defense attorneys hear the same testimony every time, the jury does not know the difference because this is probably the one and only DUI trial that they will ever sit through.

Criminal defense lawyer’s office searched in New Jersey

In the third search of a criminal defense lawyer’s office since spring, a federal judge in New Jersey is allowing prosecutors to review computer records seized from a criminal defense lawyer’s office, including the files of clients who were not targets of the search.
A federal magistrate signed the search warrant, which allowed the seizure of all computer hardware and electronic storage devices from the defense attorney’s office, and the attorney’s request for a preliminary injunction was denied by U.S. District Judge Robert Kugler. If the defense attorney was a valid target of the investigation – the FBI’s affidavit did state “Manno was using computers in furtherance of alleged criminal activity” – then a focused search for specific evidence of crime may be justified, but an all inclusive sweep of all of the attorney’s files without regard for attorney-client privilege cannot be justified.
West Virginia defense attorney John Bryan puts this practice into perspective:

It is sickening to see that there are prosecutors out there who would go between different judges to get an illegal search warrant of an attorney’s office. If that is legal, then I would like to see a mechanism put in place whereby the lawyers of criminal defendants can obtain their own search warrants to be executed on prosecutor’s office. Say, for instance, that you know a certain prosecutor has a video tape that would exculpate your client. He refuses to hand it over, or to even acknowledge it. You could get a search warrant and have your private investigator execute the warrant and look for the tape. Yeah right. That’ll be the day. The sad fact is, that prosecutors are perfectly willing and able to abuse their power and not only will many judges not stop them, some of them apparently will help.

The judge in this case apparently has approved the review of materials by a “taint team” in order to determine what material is covered by the warrant before it gets to the prosecutor. Last I checked, attorney-client privilege did not apply only to prosecutors – with limited exceptions it applies to everyone who is not attorney or client. This practice, in any situation other than where there is probable cause that a defense attorney is himself engaging in criminal activity and the search is specific and focused so as not to violate attorney-client privilege, is an abuse of process. To see these kind of tactics sanctioned by judges makes it that much worse.

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