A South Carolina Criminal Defense Blog

Monthly archives for May, 2010

How courts chill effective advocacy

Via Law of Criminal Defense, a lawyer in Detroit is facing contempt proceedings for filing a motion requesting formal notice of whether a victim’s mother would speak at a sentencing hearing, following the defendant’s conviction for child pornography.

Prior to the sentencing, Freeman filed a motion citing the Crime Victims’ Rights Act. In his motion, he said prosecutors were required to give advance notice of the contents of a victim impact statement from the child’s mother so he could appropriately respond.

U.S. District Judge Bernard A. Friedman, who ultimately sentenced the defendant to 60 years – twice the amount that the prosecution asked for – says the request was unwarranted and is accusing the attorney of attempting to intimidate the victim’s mother by requesting notice of her intent to speak. The National Association of Criminal Defense Lawyers (NACDL) has filed an amicus brief in advance of the contempt hearing.

Detroit attorney James Feinberg signed on to the response in an amicus filing on behalf of the National Association of Criminal Defense Lawyers.
“The possibility of someone being sanctioned or held in contempt for aggressively and properly representing their client is very scary,” Feinberg said Friday. The association “needs to make sure lawyers are free to aggressively represent their clients.”

It is unfortunate that, to effectively represent a client accused of a crime, we often are fighting not only the prosecution and law enforcement, but we can find ourselves fighting against a biased court as well – the threat of contempt for zealous representation is not only an insult to the advocate who is likely one of the few doing his job the way he is supposed to, but it has a chilling effect on those watching. There are few attorneys who have the fortitude to stand up to an angry court when they know they are right, and few attorneys who will risk being held in contempt of court – a fine or even jail time followed by the possibility of state bar disciplinary proceedings.
On the other end of the spectrum, take a look at this NY Times article on Texas lawyer Jerry Guerinot, who, according to the article, has had twenty capital clients sentenced to death on his watch, is now infamous for allowing his clients to die while he fails to investigate their cases, and who in 2007 and 2008 handled 2000 felony cases – an exponentially higher case load than what an attorney can ethically or competently handle – and many of which appear to be cases appointed to him by a local judge who is quite pleased with how he handles his cases.
Zealous advocate = scorn and punishment from the court; Incompetence = rewarded with an excess of court appointed cases. What if the courts actually encouraged competence in the courtroom, wouldn’t that be something?

A bit more on Comstock

The NYTimes yesterday noted that Elana Kagan, Obama’s nomination for the USSCT, had argued in favor of the government in this case:

At the argument of the case in January, Solicitor General Elena Kagan, now President Obama’s pick for the Supreme Court, said the law was needed “to run a criminal justice system that does not itself endanger the public.” She said 105 people had been confined under the law.
Ms. Kagan pointed to the Constitution’s “necessary and proper” clause as granting Congress the power to pass the law, though the clause is not ordinarily thought of as a source of free-standing authority. The clause gives Congress the right “to make all laws which shall be necessary and proper for carrying into execution” its other powers.

Not a huge deal, I suppose. The fact that the USSCT approved the indefinite detention of persons deemed to be sexually dangerous is not a huge deal at this point either – the USSCT and every state supreme court opinion that I have seen have already upheld these statutes under Due Process challenges where it is the states that are detaining the offenders under state laws.
What makes this case different is that it is the federal government doing the detaining under federal law, and not the states. The decision is not significant for the fact that people are being detained indefinitely – that is old news – what is significant is the further broadening, or stamp of approval on breadth already taken by the Congress, of the federal government’s power to detain and hold citizens in jails. The states already have systems in place to evaluate and detain sexually violent predators, and the federal government does not belong in this arena.
Another thing that bothers me is that throughout the Comstock opinion the majority analyzes the issue as if they are discussing a criminal law, with criminal penalties for criminal conduct that has been committed. The state sexually violent predator laws have been upheld in part because they were not criminal penalties – they were civil statutes and the process was one of civil commitment (even though the offender remains in a detention facility in a prison cell) and therefore there was no double jeopardy issue. We are not punishing people in advance for crimes they have not committed, we are civilly committing people who are diagnosed as mentally ill and who have been found to be a danger to others.
The tone of Comstock seems to be A-OK with classifying indefinite commitment of sex offenders as a criminal penalty for crimes that have not yet been committed.

Graham and Comstock

Two important criminal defense related opinions were released by the USSCT today – Graham v. Florida and United States v. Comstock. Graham holds that sentencing a juvenile to life without parole is cruel and unusual punishment in violation of the Eighth Amendment, at least in a non-capital case. Comstock holds that the Necessary and Proper Clause of the Constitution gives the government the authority to incarcerate a sexually dangerous federal prisoner indefinitely, beyond the time that he was sentenced to.
There’s plenty of commentary out there already, so I’ll keep it short. Scott Greenfield thinks that the two decisions are irreconcilable:

There isn’t any way to reconcile these decisions, as the thread between them seems never to meet. Yes, children should not be treated as harshly as animals to appease the fear of adults who despise them from a distance. But even adults, even the mentally ill, even those who are so hated by society as to be deemed unworthy of our slightest consideration, are supposed to be worthy of an opportunity for redemption.
Taken separately, these decisions offer much to chew on. Taken together, they offer no coherent penal philosophy. Taken that they come from the same court, they offer no clue what we stand for.

I disagree. All analysis aside, looking at the bare facts on the surface of each case, we have 1) children being locked up for life sentences; and 2) bad terrible sex offenders who could hurt children if we let them out of their cages. Law enforcement, legislators, and appellate courts follow the thinking and sentiment of the public-at-large, and the rationale behind each case can be summed up with one simple statement: “Think of the children . . .”
More commentary at A Public Defender, Gamso for the Defense, and Liberty and Justice for Ya’ll.

Police misconduct in Sumter and Lee Counties

The Sumter County Sheriff’s Office fired Sergeant Alexander Dukes and accepted the resignation of Investigator Dominick West last week, following numerous disciplinary violations, although no criminal charges have been filed against either. In addition to not following department policy regarding off-duty security details and refusing to respond to a call, the allegations include:

Dukes’ first write-up, dated March 31, 2003, came after Dukes initiated a traffic stop around 7:30pm on March 19, 2003. Records showed that Dukes did not radio the stop in to dispatchers, did not notify a supervisor of a police action, did not turn in evidence, did not file a report, released the suspect vehicle to an unauthorized person, and picked up property from a pawn shop with authorization. The incident happened at an address on Grey Fox Trail, according to the write-up. Dukes was suspended for two weeks without pay and demoted for six months.

West’s allegations include covering for Dukes and tipping off the subject of a drug raid:

Drug unit Captain Allen Dailey wrote West up on Feb. 8, 2010 after Dailey said West interfered with a drug raid. The write-up has several redactions of a juvenile’s name, according to Major Gary Metts. The write-up charges West with a conduct violation after Dailey wrote that West called to tip someone off about an arrest while the drug unit was executing a search warrant at the suspect’s address, according to the write-up. The suspect, Dailey wrote, could not be found until later.

Earlier this month, neighboring Lee County Sheriff E.J. Melvin was arrested and charged in federal court on drug conspiracy charges – he is accused along with 6 others of conspiring to distribute quantities of cocaine and crack cocaine.

Anonymous callers

Periodically I get phone calls from people who refuse to give me a name – they want legal advice, they want a consultation about their situation, or they just “have questions,” but they are not comfortable telling me who they are. If you call and cannot tell us who you are, you probably are not going to get past the receptionist. If I pick up and you cannot tell me who you are, I’m not talking to you. If I sound aggravated, it’s because I am.
You could be a co-defendant of a person I represent. You could be the victim in one of my criminal cases. You could be a witness in one of my cases. You could be one of the hundreds of annoying telemarketers that persist in calling my office and lying to get past the receptionist. You may have another attorney that represents you already – which does not necessarily mean I won’t talk to you, but I have to know if someone represents you, who it is, and why you are calling me.
If you are talking to a lawyer on the telephone, in most circumstances your identity is protected – I’m not going to call anyone and announce that you have called my office. Confidentiality, to the extent that it applies, applies to you even on an initial phone call. Also, it is common courtesy to identify yourself – you know who I am, and I am not speaking with you unless you can extend the same courtesy.

The “war on drugs” has failed, enough already

The failure of the war on drugs is a recurring topic on many criminal defense and political blogs, to the point where those of us who read blogs were probably bored with the news long ago. But the madness continues, the insane government spending, the mandatory minimum sentences that fill our prisons and destroy lives, the drug task forces who seem to become the most corrupt across the country, our nation’s/ government’s/ law enforcement’s addiction to drugs is not slowing down one bit. Politicians are not going to change their “hard on crime” stance until the voting public is educated on the failure of the war on drugs, so we need to keep blogging and keep talking about it until change happens.
In an article from the AP this week (H/T Grits for Breakfast), Martha Mendoza highlights the failure of the United States’ drug policies over the past 40 years culminating in the current administration. Obama’s government recognizes that it is not working, but can’t help themselves – we are getting more of the same when it comes to drug policy. Despite promises of a new national policy that would treat drug use as a public health issue, focusing on prevention and treatment, spending on interdiction and law enforcement has been increased instead.
The AP has compiled the costs of the war on drugs over the past 40 years, which has not stemmed the flow of drugs one bit, finding:

_ $20 billion to fight the drug gangs in their home countries. In Colombia, for example, the United States spent more than $6 billion, while coca cultivation increased and trafficking moved to Mexico — and the violence along with it.
_ $33 billion in marketing “Just Say No”-style messages to America’s youth and other prevention programs. High school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have “risen steadily” since the early 1970s to more than 20,000 last year.
_ $49 billion for law enforcement along America’s borders to cut off the flow of illegal drugs. This year, 25 million Americans will snort, swallow, inject and smoke illicit drugs, about 10 million more than in 1970, with the bulk of those drugs imported from Mexico.
_ $121 billion to arrest more than 37 million nonviolent drug offenders, about 10 million of them for possession of marijuana. Studies show that jail time tends to increase drug abuse.
_ $450 billion to lock those people up in federal prisons alone. Last year, half of all federal prisoners in the U.S. were serving sentences for drug offenses.

That is not a complete list of the costs of the war on drugs, and it doesn’t begin to account for the human costs over the past 40 years – the families ripped apart, the people who were subjected to long prison sentences for drug offenses. I’m impressed that this story came from the AP – let’s keep people talking about this country’s drug policies and why they don’t work.

Addition of sex offender conditions to probation

In State v. Hicks, decided May 3, the S.C. Supreme Court denied Hicks’ appeal from the addition of sex offender conditions to his probation on grounds that there were two additional grounds for HIcks’ revocation that his attorney did not appeal.
Hicks pled guilty to ABHAN (assault and battery of a high and aggravated nature) and was sentenced to ten years suspended to time served, five years probation, and registration as a sex offender. His probation was later revoked 90 days and the court ordered that Probation, Pardon, and Parole’s sex offender conditions would be added as conditions of his probation.
The sex offender conditions of probation are burdensome and extreme, and I don’t see where a court can or should add such terms at a later term of court, essentially modifying the defendant’s sentence after the fact. The defendant here was sentenced in 2005, the probation department added the sex offender conditions in January 2006, and the Circuit Court added them to the defendant’s sentence in May 2006.
The Court of Appeals did not answer the question, holding that the issue of the addition of the sex offender conditions at the revocation hearing was not preserved because it was not ruled upon by the Circuit Court; and here the Supreme Court has also dodged the question by holding that they cannot hear the appeal because defendant did not raise all grounds for revocation.
I believe, because of the extreme requirements in the sex offender conditions of probation, that this is not different than the case of State v. Davis, where the Court of Appeals reversed the Circuit Court’s addition of the sex offender registry to the defendant’s sentence during a probation revocation hearing – although the sentencing judge can order order placement on the sex offender registry for good cause following a conviction of ABHAN, a probation revocation judge at a later time does not have the authority to modify the sentence and add sex offender registry as a condition.

Former Ninth Circuit asst. solicitor suspended for 6 months for pointing and presenting a firearm

On May 11 the S.C. Supreme Court ordered a six month suspension (retroactive) for a former Ninth Circuit (Charleston and Berkeley Counties) asst. solicitor who pulled his pistol on another driver in a road-rage incident. The Court allowed for a lesser sanction than the two years recommended by Disciplinary Counsel after finding that the other driver was not truthful in her statements to the courts, supposedly to gain an advantage in a civil suit against the attorney.
The attorney successfully completed PTI (pre-trial intervention) and his record has been expunged.

Former North Charleston police officer busted with house full of explosives

Former North Charleston police officer Joe McFarlin was arrested this week in New Mexico on allegations that he possessed enough explosives to blow up an entire neighborhood. McFarlin worked for the bomb squad and the explosives were allegedly taken from the North Charleston police department.

McFarlin worked in North Charleston as a member of the department’s bomb squad, but quit and moved across the country. On Tuesday night, he was taken into custody in New Mexico with enough explosives to blow up an entire neighborhood.
What they found in McFarlin’s possession were three different types of nearly 60 high explosives. And with them, blasting caps and detonators.

The article says that a tip led to McFarlin’s house – so, the North Charleston PD did not realize that they were light 60 explosives, blasting caps, and detonators? They don’t inventory this stuff?
H/T Injustice Newsfeed

The warrior

Out of every one hundred men,
ten shouldn’t even be there,
eighty are just targets,
nine are the real fighters,
and we are lucky to have them,
for they make the battle.
Ah, but the one, one is a warrior
and he will bring the others back.
– Heraclitus

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