PCR granted for failure to object to hearsay and bolstering by forensic interviewer

In Smith v. State, decided February 16, the S.C. Supreme Court granted post conviction relief to Smith, finding that it was ineffective assistance of counsel to fail to object to hearsay testimony by a forensic interviewer that corroborated and bolstered the testimony of the alleged victim.
Smith was charged with criminal sexual conduct (CSC) with a minor and with contributing to the delinquency of a minor. At trial, the forensic interviewer testified without objection that the alleged victim told her that she had been sexually assaulted and that she believed the alleged victim was telling the truth. The prosecutor then used the bolstering in her closing argument, reinforcing the interviewer’s testimony that the alleged victim was believable.
To prove a claim of ineffective assistance, the petitioner must show that: (1) counsel’s performance fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defendant’s case. When the trial lawyer articulates a valid trial strategy, ineffective assistance is not found (failure to object because the lawyer does not want to upset the jury is not a valid trial strategy).
In this case, the trial lawyer testified at the PCR hearing that there was no trial strategy to explain his failure to object to the hearsay and bolstering, and the Court found that there was prejudice because there was conflicting evidence presented at trial. If the hearsay and bolstering had not been allowed in front of the jury, the outcome may well have been different.

Tell me more

Once upon a time . . .

And every day . . .

Until one day . . .

And because of that . . .

And because of that . . .

Until one day . . .

And ever since . . .

Since the dawn of time, people have been captivated by story.  If there is a point that we need to illustrate, give an example that illustrates the point, don’t explain it – it will stay in the audience’s mind and they will relate to it.  The same applies with explaining to the jury why our client is entitled to recover damages in a lawsuit – if you explain why, they might intellectually understand what you are saying, but they will not internalize it.

In working on the opening statement in a case with another attorney over the weekend, I recalled the importance of keeping the action of the story moving – if the listener is not thinking “tell me more,” the storyteller is missing something.  If the listener is thinking “go back and tell me more about that,” but the storyteller is talking about something else, he’s lost the audience.  It’s easy to get lost in the details, and for a storytelling to devolve into an explanation – but explanations do not hold an audience’s attention and explanations are not easily internalized.

I think of books by John Grisham, and the Harry Potter books, books that I could not put down once I began reading them, and I realize that what kept me reading was the mini-cliffhangers at the end of each chapter.  As I near the end of a chapter, I want to know more, and the suspense keeps me turning the page – what happens next?  The jury should have the same feeling when we are telling our client’s story – tell me more.

4th Cir. – ACCA not triggered by failure to stop for blue light

On February 25, in U.S. v. Rivers, the Fourth Circuit held that South Carolina’s failure to stop for blue light (FTSBL) statute is not a violent felony for purposes of enhancement under the Armed Career Criminal Act (ACCA).
Possession of a weapon by a felon ordinarily carries a sentence of up to 10 years, but the Armed Career Criminal Act increases the potential punishment to a mandatory minimum of 15 years if the defendant has three prior convictions for a violent felony or serious drug offenses. A violent felony is defined as a crime punishable by more than a year, and that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S. v. James: in 2003 the Fourth Circuit holds that FTSBL was a violent felony under the ACCA because it involves conduct that “presents a serious potential risk of physical injury to another.” The Court applies a categorical approach – looking at the elements of the crime without reference to the underlying facts of the conviction.
Begay v. U.S.: in 2008 the SCOTUS holds that New Mexico’s DUI statute does not qualify as a violent felony under the ACCA because “DUI involves conduct that presents a serious potential risk of physical injury to another.” It is simply too dissimilar to the listed crimes (burglary, arson, extortion, the use of explosives) to qualify. The Court held that to be classified as a violent felony, the crime must be roughly similar in kind and in the degree of risk to the examples listed – the crime must involve conduct that is purposeful, violent, and aggressive.
U.S. v. Roseboro: in 2009, the Fourth Circuit acknowledges that the U.S. Supreme Court in Begay overruled the Fourth Circuit’s prior decision in James, but then performs some legal analytical acrobatics to find that FTSBL is still a violent felony. Using a “modified categorical approach,” the Court holds that there could be two types of FTSBL – because S.C.’s FTSBL statute does not have a specific intent requirement, there could be cases where there is intent and cases where is no intent. The Court holds that in cases where there is intent (come on – in practice, this means all of them) FTSBL qualifies as a violent felony.
Chambers v. U.S.: in January 2010, eight days after Roseboro was decided, the SCOTUS holds that the crime of escape, where it involves either an actual escape from a facility or a failure to report, must be analyzed under the modified categorical approach and split into two separate offenses. Because it proscribes two different types of behavior, one of which inherently has a risk of violence and another which does not, and each example can be considered a different/ separate crime, the Court treats them as two separate crimes and holds that failure to report, as opposed to an actual escape, should not be considered a violent felony.
Back to Rivers – because there is only one type of conduct that is involved in S.C.’s FTSBL statute (keepin’ on truckin’ after the blue light comes on behind you), the Court must apply the categorical approach, without reference to the underlying facts of the conviction. Because FTSBL is a strict liability offense and includes conduct that is not intentional, it is different than “violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives,” and therefore is not a violent felony for purposes of the ACCA.

Or maybe the lottery?

This one came right after my last post:

Good day,
My name is Mr William Wilcox , I work with the Euro Lottery. I am
soliciting your assistance for a swift transfer of 4,528,000 GBP, should
you be willing to assist me in this project? you will be giving me just
40% of your winnings.
Just as a brief,you just have to register online,due to my position in the
company I can make it happen that you would be a winner of the above
stated amount.
Naturally, every body would like to play a lottery if they are assured of
I am assuring you today to be a winner, please do not take for granted
this once in a life time opportunity as we both stand to collectively gain
from this at the success of the transaction.
Should you be willing to assist me in this transaction please do respond
to e-mail: [email protected]
William Wilcox

Free money. Really.

I feel terrible for all of these people in far away countries that are having such a hard time transferring their large sums of money into the United States. There seems to have been quite an explosion of rich divorcees, diamond-fortune heirs, and wealthy princes from war-torn third world nations that have had to resort to email spam to find an attorney lately.
I don’t even know when the spam started, a year ago? Two? Anyway, now I get an average of 4-5 a day. I don’t recall when it began, but I am sure that I never lost a moment wondering if an email written in badly broken English from an overseas address asking me to participate in a half million – million dollar transaction was legitimate. Now I’m also getting emails purporting to be from the FBI, telling me to contact them to receive my million dollar fortune. Really?
The ABA Journal has had a few stories on unfortunate, gullible attorneys who have had hundreds of thousands of dollars stolen from them:

The FBI reports that the scam begins with e-mail contact from a prospective client who is seeking legal representation in a civil matter, such as a divorce. The supposed client sends the law firm a cashier’s check for a retainer in an amount far exceeding the firm’s rate.
When the law firm responds that the client has overpaid, the client requests and the unsuspecting firm sends a wire transfer with the refund. It’s after the refund that duped firms learned that the cashier’s checks are counterfeit.

Gullible? It’s hard to believe that any attorney would engage in any such transaction without ever meeting the “client” or verifying that they are who they say they are and that the funds are legit, based only on an email contact. Even if an attorney has not seen the hundreds of similar emails, and thinks for some reason that they are not going to be ripped off, did they believe that they were about to engage in a legal transaction? Greed is a frightening thing.


Charles Hood’s death sentence has been overturned, but not because his judge was sleeping with his prosecutor – the Texas Court of Criminal Appeals has reversed themselves, granting a new sentencing hearing based on an error in jury instructions that they had previously denied relief for. Dodging the bullet, and doubtless hoping that SCOTUS will not hear the case now.
A jury trial is a complex system that is more or less stable and predictable based on the amount of energy we inject into it.
A police misconduct victim’s guide, from Injustice Everywhere.
Why people go to trial, from DA Confidential. The list includes: an obstinate defendant or a defendant with a lot to lose (with an acknowledgment that a defendant may be obstinate because he is innocent), when the consequences of any guilty verdict are more important than the potential punishment (defendant is on probation or parole), and because the terms of the plea offer are unacceptable to them. How about because the Constitution provides for a right to trial by jury in every criminal case?
Two kids break into a car, one sits on his cell phone and dials 911 accidentally, and the two are recorded talking about what they are going to steal and what they will leave behind. Police arrive to find the two with the stolen property still in their possession.
Texas prosecutes vehicle accidents as crimes. Bennett and Kennedy are not pleased.
Homeland Security loses 985 Computers, 13 Automobiles, 1 International Harvester Truck, and 235 Night Vision Scopes. Lost, stolen and damaged equipment: 1975 pieces for a total value of $7.5 million.
Maricopa County attorney dismisses indictments against County Supervisor Don Staples and Judge Donahoe. H/T Balko.

Global Weirding, Systemary Trial

The bizarre weather we’ve been having this winter has me reflecting on one way to look at trials.

It snows in Atlanta in February, and the critics of global warming jump up and down with glee, proclaiming the weather to be proof that global warming is a myth. As columnist Thomas L. Friedman points out, though, when global temperatures rise and the climate changes, “The weather gets weird. The hots are expected to get hotter, the wets wetter, the dries drier and the most violent storms more numerous.”

The basic big-picture explanation for this is that the Earth is a system, and that when you add more energy to a system, the behavior of the system becomes more extreme. (Think of a pan of boiling water, which boils more violently as you pour more heat into it. Or think of a bouncing American football, which will bounce farther away,  in an unpredictable direction, the harder it’s bounced.)

This is a good place, I think, to start thinking about trial theory: viewed most simply, a jury trial is a system (a loosely-coupled complex system, but that’s more than we need to know right now). We don’t have to know what the components of the system are to know that adding energy will make its behavior more extreme. If it’s a stable system, adding energy will make it behave more extremely in a predictable way. . . until it breaks down (overrevving an internal-combustion engine). If it’s a system with some randomness built in, adding energy will magnify the randomness, with higher highs and lower lows.

Most jury trials are at least a little bit unpredictable—if the parties knew how they were going to come out, trials wouldn’t be needed. Adding energy to an unpredictable trial magnifies the unpredictability.

In the systemary trial, one way we can add energy is by adding witnesses. The more human beings get on the witness stand to testify, the more data the jury has to consider, the higher the emotions, and the less predictable the behavior of the system. Irving Younger’s “commandment” of cross-examination, “Never ask a question when you don’t already know the answer,” is a prescription for adding less energy. (As Paul Luvera writes, Younger was wrong.)

There are certainly times when we want to keep the energy low and the trial  predictable—for example, when our adversary has a burden that she can’t meet on her own.

There are often times when we want more unpredictability in a jury trial—for example, in a plaintiff’s case when we are trying to maximize damages, or in a criminal case when the deck is heavily stacked against us and it’s time to throw in everything including the kitchen sink.

There might even be times when we want to try to add enough energy to make the trial-as-a-system break down.

Recognition of the fundamental systemariness of the jury trial is a helpful tool in knowing whether to ask that next question, put on that next witness (the accused?) or even put on a case at all.

Mexican drug cartels in South Carolina?

According to SLED, cartels that had operations in Atlanta are relocating to North and South Carolina and Tennessee:

According to Reggie Lloyd, Director of South Carolina’s State Law Enforcement Division, Mexican drug cartels that used to enjoy Atlanta, Georgia are heading to rural and suburban areas of South Carolina. Lloyd says that Atlanta’s attempts to fight the cartels have been so successful that they are leaving Atlanta for quieter bases of operation, according to a Charlotte Observer report.

They need a market – I would assume that elements of drug cartels or at least those associated with them are already present in every state.

New authors

I am opening up trialtheory.com to other trial lawyers who may want to share their ideas and experiences.  The only rules for posting are that the author must be a trial lawyer, the topics must be related to trial practice or creative trial preparation, and no blatant self-promotion.

It does not matter what the author’s practice area is, so long as they are trying cases to juries.  I’d love to see a community of trial lawyers publishing their ideas and experiences and taking inspiration from one another.

We’ll see how it goes and where it takes us.

In the moment

I take inspiration wherever I can find it.  I was listening to Matt Damon in an interview on NPR this morning, talking about his role in the movie The Informant.  He was talking about how it is the hundreds of small details that go into preparing for a role that make the role believable.  It is the small things, like how a person stands, walks, speaks, facial expressions, and the list goes on and on.

In preparing for a role, you have to get into your head, learning the details and practicing for the performance, brainstorming about what will make this role believable and getting feedback from other actors or the director.  But – he says, once you are there, once you’ve prepared, you can’t be in your head.  When you are on the set and you are getting ready to give a performance, you must be “in the moment.”

What a wonderful analogy for trial preparation – you have to stay “in your head” while preparing a case for trial, and there are hundreds of details that go into preparing our case.  We have to research the legal issues, finding a way to exclude some evidence and to include other evidence.  There are the details of presenting opening and closing, cross and direct examinations.  The process of fine-tuning our case never ends, and although we may be ready for trial, we’re never fully prepared.

But when the trial begins, when we are standing inside the well, arguing motions to the judge or talking to the jury, we have to be in the moment.  All of the preparation that goes into the details is what makes it possible to be in the moment during trial, to act and react to the unexpected and the unpredictable nature of trial, without getting into our head and trying to figure things out while they are happening.