Written by A Cherokee County Sheriff’s Deputy has been arrested and charged with criminal domestic violence of a high and aggravated nature.
A Beaufort County Sheriff’s Deputy was arrested and charged with Unlawful Dissemination of Obscene Material to Person Under 18 Years of Age and Misconduct in Office, accused of sending sexual text messages to a 15 year old girl and touching her inappropriately, while he was on duty.
A Columbia, S.C., police officer has been arrested and charged with prostitution; he is accused of paying a 17 year old girl for sex, at the Econolodge on Two Notch Road, while in uniform and driving his patrol car. He is a school resource officer at W.A. Perry Middle School.
Authorities are threatening to arrest a Mint Hill police officer for refusing to return a department issued shotgun and computer. A police supervisor who reportedly lied, saying he had picked up the equipment, has since been fired.
H/T Injustice Newsfeed
Monthly archives for October, 2011
S.C. police misconduct update
Manufacturing Marijuana
Thanks to some recent comments on our local listserve, I went back and read the definitions of “manufacture” and “marijuana” in the S.C. Code, and found two things – 1) the definition of “manufacture” does not include the growing of marijuana for personal use; and 2) the definition of “marijuana” excludes stems and sterile seeds.
1) “Manufacturing” of a drug is included in the same statutory sections as distribution and possession with intent to distribute – S.C. Code section 44-53-375(B) for methamphetamine and cocaine base (crack cocaine); and S.C. Code section 44-53-370(a) for everything else including marijuana:
(a) Except as authorized by this article it shall be unlawful for any person:
(1) to manufacture, distribute, dispense, deliver, purchase, aid, abet, attempt, or conspire to manufacture, distribute, dispense, deliver, or purchase, or possess with the intent to manufacture, distribute, dispense, deliver, or purchase a controlled substance or a controlled substance analogue;
(2) to create, distribute, dispense, deliver, or purchase, or aid, abet, attempt, or conspire to create, distribute, dispense, deliver, or purchase, or possess with intent to distribute, dispense, deliver, or purchase a counterfeit substance.
When you look at the definition of “manufacture,” in S.C. Code section 44-53-110, it specifically excludes the “preparation or compounding of a controlled substance by an individual for his own use . . . “:
“Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance:
(1) by a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or
(2) by a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.
Which means that a person growing marijuana for his own use should not be charged with “manufacturing” marijuana – instead the person should be charged with simple possession. Simple possession of greater than 28 grams of marijuana, under 44-53-370(d)(2), is punishable by up to 6 months for a first offense, whereas manufacturing marijuana is punishable by up to 5 years for a first offense under 44-53-370(b)(2). (According to 44-53-180 and 190(d)(11) marijuana is a schedule I narcotic, because it has: (a) A high potential for abuse; (b) No accepted medical use in treatment in the United States; and (c) A lack of accepted safety for use in treatment under medical supervision.
)
If the person was charged instead with possession with intent to distribute, based on the weight being greater than the inference level of 28 grams, then the potential punishment would still be the same as manufacturing. But, if it was being grown for personal use and there is no other evidence of intent to distribute, then what we are really talking about is simple possession, and not manufacturing or possession with intent. The intent of personal use that takes us outside the definition of manufacturing, also means that there was no intent to distribute.
2) The definition of “marijuana,” in in S.C. Code section 44-53-110, specifically excludes stems and sterile seeds:
“Marijuana” does not mean:
(1) the mature stalks of the marijuana plant or fibers produced from these stalks;
(2) oil or cake made from the seeds of the marijuana plant;
(3) any other compound, manufacture, salt, derivatives, mixture, or preparation of the mature stalks (except the resin extracted therefrom);
(4) the sterilized seed of the marijuana plant which is incapable of germination.
Which means, when calculating the weight of a quantity of marijuana, stems and seeds should be excluded, assuming that the seeds are sterile. I have never heard of law enforcement or chemists taking out the stems or seeds when weighing the drug, but it seems that, pursuant to the statutory definition of marijuana, a defendant should be entitled to have their own expert exclude the stems and seeds and re-weight the material. This could be critical when the weight is otherwise a close call – if the weight is close to the threshold 28 grams for an inference of intent to distribute, or the threshold 10 pounds for a trafficking marijuana charge.
State v. Jackson – possession requires more than mere presence/ mere suspicion
In State v. Jackson, decided October 5, 2011, the S.C. Court of Appeals reversed Jackson’s conviction for possession with intent to distribute marijuana and held that the trial court should have granted a directed verdict, where Jackson was a passenger in a vehicle, the officer testified that he smelled marijuana in the car and that the passenger’s and driver’s answers to his questions were not “real accurate,” they could not give the officer a location where they were coming from or traveling to, a drug dog alerted on the vehicle, and four bags of marijuana were found hidden in the plastic housing of the gear shifter under the center console. Jackson testified that the driver and Jackson’s son were friends, and that the driver was giving Jackson a ride because Jackson did not have a driver’s license.
Although the State contends the center console was centrally located and thus within Jackson’s dominion and control, Officer Montjoy testified the marijuana was “[u]nder the center console where the gear shifter is, the plastic housing there.” Jackson did not own or rent the car; Davy provided it and was driving it. Additionally, Jackson and Davy had only met once previously, at Jackson’s grandchild’s birthday party. Although Officer Montjoy testified he smelled marijuana as soon as he approached the vehicle, an officer testified likewise in Brown. However, in Brown when officers found a large opaque bag containing eight pounds of marijuana on the rear floorboard, an officer’s testimony he smelled marijuana and testimony the passenger was nervous were not enough evidence for the State’s case to survive the passenger’s directed verdict motion. Further, in Blue the officer testified the passenger made a shoulder dip and the gun was found under his seat in the car. However, this was not sufficient to sustain the passenger’s conviction. Here, the evidence against Jackson is even less than in either Brown or Blue. The drugs were more out of sight, and the State presented no evidence that Jackson was nervous or made any suspicious movements. Accordingly, the State failed to present sufficient circumstantial evidence of knowledge to submit the case to the jury. Thus, the trial court erred in denying Jackson’s motion for a directed verdict.
The Court is referring to United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992) and State v. Brown, 267 S.C. 311, 315, 227 S.E.2d 674, 676 (1976). In Brown, the facts that Brown
was a passenger in a car on a deserted rural road about 1:00 A.M., that [the driver] had an undetermined sum of cash in a large roll, that Brown was nervous and had no identification, that there was a smell of marijuana in the car, and that there was a large opaque bag containing eight pounds of marijuana on the rear floorboard. [The driver] knew Brown’s name as Chuck Brown and Brown told [the driver] to be quiet when [the driver] started to admit the crime,
were insufficient to withstand a motion for directed verdict.
In Blue , evidence was presented that
a police officer conducting nighttime surveillance of a house for possible illegal drug activity saw two men leave the house and enter a parked car on the street. The officer pulled the car over in a well-lit area to investigate a seatbelt violation. Id. While approaching the car, the officer saw the shoulder of the passenger “dip as if the passenger were reaching under the seat with his right hand.” Id. After the driver and passenger exited the car, the officer searched the passenger for any weapons and “discovered a needle, a syringe, and a small amount of heroin, and therefore placed [the passenger] under arrest.” Id. A consensual search of the car revealed a loaded gun under the passenger seat. Id. Both the driver and the passenger denied knowledge or ownership of the gun. Id. The car did not belong to the passenger, and no evidence was presented that the passenger had been in the carbefore.
The Fourth Circuit held in Blue that this was insufficient evidence to support the passenger’s conviction for possession of the handgun.
Whether it is drugs, guns, or another type of contraband, there are two types of possession: actual possession and construction possession. Actual possession is when someone is found with the drugs on their person, in their hand, in their pocket, etc. Construction possession is when the drugs are not actually on the person, but they are found nearby – it usually arises in a house or in a car – when the drugs are not actually found on a person, the state must prove 1) dominion and control, or the right to exercise dominion and control, over the drugs (ownership, in a loose sense); and 2) knowledge that the drugs are there.
The Court of Appeals dodged the second issue raised on appeal in Jackson, which was whether the cop was full of s*** in proposing that his reasonable suspicion for the stop was that the driver was traveling 55 miles per hour, where the speed limit was 60 and the minimum was 45. The officer testified that the average speed of the other cars was 70 to 75 miles per hour, and that the other cars were lined up behind Jackson’s vehicle to pass it.
The trial court found that
56-5-1560 of the South Carolina Code (2006) does not reference speed limits and states that no person should drive a vehicle at such a slow speed to impede the normal and reasonable flow of traffic. The trial court noted the testimony was that the vehicle was traveling in the center lane with a long line of traffic behind it and being passed on both sides. The trial court found the officer had probable cause to stop the car based on the statute.
So, according to the trial judge, the driver was violating the law by not speeding, and therefore causing other speeding drivers to go around him. If you don’t speed, you are violating the law and the officer can pull you over. If you do speed . . .
Justice
Friday morning in Horry County Central Jury Court, the magistrates speak to the members of the jury panel before letting them go, thank them for their service, sometimes answer any questions that they have. This past Friday, I was there as the two magistrates spoke to the panel, both magistrate court prosecutors were there, and two other defense lawyers.
One magistrate spoke to the panel and thanked them for their service, for being there for the entire week. She thanked them and explained that, although not many cases were tried, the fact that they were there allowed us to move over 300 cases. Some cases were tried, some defendants did not appear and were tried in absence, and many other defendants entered guilty pleas because the jury was there waiting.
The magistrate re-introduced the two assistant solicitors, and asked them to say a few words. Each prosecutor kindly thanked the jury panel for their service. The magistrate then noted that the prosecutors were there to seek justice, and that there were other attorneys present, whose job was not to seek justice, but who were very much appreciated for our help as well. She then asked if we would like to say anything.
I stepped forward and introduced myself as a defense lawyer, told the jury panel that I had to disagree, because my job absolutely is to seek justice and that is what I do, and then told the jury panel that of the over 300 cases that were resolved and did not go to trial, not all were guilty pleas. Our magistrate agreed that this is true.
I don’t write this to criticize the magistrate who spoke – there is no doubt in my mind that she meant well and that she did nothing inappropriate, not intentionally. She is a wonderful person and judge, tries to be fair to all parties, and I appreciate that more than she knows. But – the unintentional bias that results in suggesting to the jury that defense lawyers do not seek justice, that the prosecutors are the only ones who wear a white hat, and that the cases that are resolved because of the jury’s presence are resolved only by guilty plea, poisons this jury pool for their future service.
The same speech, given to a jury pool of approximately one hundred people, at the end of each week of jury court, surely influences their thinking and many of them will be called again for jury service.
I sometimes have told people that my job is not to seek justice – my job is to win my client’s case. I often tell people that the prosecutor’s job is not to win their case – it is to seek justice. The Supreme Court and the ethics rules agree. But I am not so quick to deliver the white hat to the prosecutor alone.
To put a more fine point on it, my job is to seek Justice – there are many different definitions of Justice, several of which i subscribe to and many of which I do not. The Justice that it is the prosecutor’s duty to seek most likely is a form of institutional, retributive Justice:
Justice for an institution, such as our court system, is determined by the standards of our day, by a fluid agreement made by leaders and representatives of a society as to what Justice should be, what is right, what is wrong, what is permitted and what is not, what the punishment for violations of the social norms should be, when reparations should be made and how.
Sometimes the Justice that a prosecutor seeks is a type of Restorative or Retributive Justice – they are seeking to make a victim whole by delivering to them restitution or by exacting revenge on their behalf. In a civil case this is more akin to the type Justice I may seek as an advocate, but I am not sure this should be the prosecutor’s position. The prosecutor represents the State, or the People, not the victim in any given case.
What I seek is a more individualized Justice, on behalf of my client alone:
There is Justice on each side of a dispute. In the courtroom, Justice is different for each person present. It is the advocate’s job to find what Justice is for his or her client, to show it to the jury, to be sure that the jury understands the client’s story and what Justice means for that one person in the room, and to empower the jury to give it to them when no one else would or could.
We should not be so quick to give up the white hat to prosecutors alone when speaking of Justice and who seeks it in the courtroom.
Define Justice
Written by What is Justice? It’s a question that philosophers have attempted to answer for ages, and which eludes those who work in our court system seeking Justice. Justice is fairness. Justice is Mercy, generosity, equality, compassion, kindness. Justice is retribution, punishment, revenge, and restoration. Justice is dictated by what serves the needs of a society. Justice is dictated by what serves the needs of each individual. Justice is when a person gets what they deserve. Justice is harmony and balance – righting what is wrong or at least evening the scales when they have tipped too far to one side or the other.
Justice is a lie. Trickery, a concept pushed upon us by those in power to justify the things that they must do to us in order to keep their power over us.
Justice is Truth. In the courtroom, Justice is achieved by an independent investigation of facts conducted by a judge and/or a jury, and presented for their review by advocates on each side of a dispute.
Justice for an institution, such as our court system, is determined by the standards of our day, by a fluid agreement made by leaders and representatives of a society as to what Justice should be, what is right, what is wrong, what is permitted and what is not, what the punishment for violations of the social norms should be, when reparations should be made and how.
There is Justice on each side of a dispute. In the courtroom, Justice is different for each person present. It is the advocate’s job to find what Justice is for his or her client, to show it to the jury, to be sure that the jury understands the client’s story and what Justice means for that one person in the room, and to empower the jury to give it to them when no one else would or could.
Something sinister lurks beneath
Some time ago, during a plea hearing on trafficking cocaine charges, the prosecutor said to the judge something like, Judge, sure this defendant seems repentant, and seems like she is trying to stay clean, sure she has had a rough life, but judge all is not as it seems, and “something sinister lurks beneath.” How poetic.
The defendant was a heroin addict who had stayed “clean” for some time, attending a methadone maintenance clinic and using the legal methadone instead of heroin. One day leaving the clinic an old friend approaches, asking, then begging her to hook her up with someone who can sell her heroin. She is getting sick, and in bad shape. Our defendant says no, and leaves, but the old friend then continues to call her and text her until our defendant gives in. Our defendant calls someone she knows, sets up a buy, and gets the girl what she needs. Days later, a warrant is served on our defendant for distribution of heroin.
The narcotics officers turn over incident reports, a case report, a video of the actual buy, but there are no recordings of the texts or phone calls where the informant is begging a reluctant defendant to buy drugs for her. It is a sketchy, shaky entrapment defense at best. Defendant is told by her prior attorney that she must plead guilty to a negotiated three year sentence, despite no prior record, and she calls us the day before her case is going to be called for trial.
The judge agrees to a continuance . . . of about four days and orders the case to trial. After many long hours of preparing for trial around the clock, reviewing the tapes, serving new discovery requests on the prosecutor, researching the dismal state of the law on entrapment as a defense, discovering the story, psychodrama sessions with our client, preparation for her testimony and telling her story to an ad hoc focus group made up of people from our building, defendant caves and tells us she cannot go to trial and she cannot testify. She will plead to the charge straight up, turning down the prosecutor’s offer of three years.
At the plea hearing, we tell her story to the judge, she admits to the distribution, and we argue for a probationary sentence. She is sent to prison for an active two year sentence – better than what her prior attorney urged her to agree to, but still a miscarriage of justice from my point of view. She will serve not much more than a year before she is released, assuming that she gets all of the credits that she is eligible for.
We have narcotics officers who are targeting drug addicts, using them to target in some cases other drug addicts, using them in some cases to drag people back into their addiction, taking them out of treatment and sending them to prison. In this case there was not even an effort on the part of the narcotics officers to apprehend the drug dealers who sold the heroin to defendant and informant – the officers watched the dealers’ car arrive, watched the transaction happen, watched the dealers pull off and leave, and then went and had a warrant signed on our girl only.
The prosecutor had the same discovery, the same video, the same information that we had. The prosecutor quite possibly had considerably more information than was provided to us. Yet, the prosecutor pushed for this girl to receive an active prison sentence, knowing how law enforcement came about this arrest, that it was “not quite entrapment,” knowing that the dealers drove off with impunity. This is the justice that we seek in our courtrooms.
Something sinister lurks beneath, indeed.
S.C. police misconduct update
A Fairfax, S.C. police officer (also a former Kershaw County Sheriff’s Deputy and a Lee County Sheriff’s Deputy) was arrested and charged with sexually assaulting an 11 year old girl – the girl’s mother says that the officer inadvertently called her on his cell phone and she heard the assault as it was happening.
The Town of Atlantic Beach, in Horry County, has hired a new police officer named John Jackson – who, according to SCNow.com, has worked at six other police departments since 2006. While at the Richland County Sheriff’s Office he was charged with petit larceny for allegedly stealing from a suspect’s car (allegations he admitted according to the criminal justice academy); he was then hired by the Lee County Sheriff’s Office, where he was later arrested on federal drug related charges. Before getting hired by Atlantic Beach, Jackson worked as a police officer in Society Hill, S.C., where the police chief says he is currently under investigation for an undisclosed incident that occurred while he was employed there.
A former University of South Carolina police officer has been arrested on misconduct charges related to illegally accessing DMV records.
A former Cherokee County Sheriff’s Deputy has been charged with misconduct in office for allegedly sleeping with an informant while working as a narcotics officer.
H/T Injustice Newsfeed
Nothing
It’s Sunday morning and I’m doing nothing. There are cases that I want to write about, there are cases that I want to be working on this morning, there is a stack of work waiting for me at the office, but I am doing nothing. Reading cases and blogging about them takes time and is work. I am not working this morning.
Most weeks I work 7 days a week, and if I put in less than 12 hours I feel like I am letting someone down, but sometimes I have to just back off and try to relax. Yesterday I drove to Charleston and took a test for certification in criminal trial advocacy by the National Board of Trial Advocacy – it’s a fairly long process getting approved, including the test, providing documentation that I have tried so many cases, examined and cross examined so many witnesses, examined and cross examined so many expert witnesses, letters of reference from judges and prosecutors, etc.
South Carolina does not certify criminal trial lawyers, and so the only option for certification is with the national board – I don’t know this for a fact, but I’ve been told the reason for not certifying criminal defense advocates in South Carolina is so that indigent defendants will not demand board certified counsel. I don’t know, but the effect is that South Carolina does not recognize criminal trial advocacy as a valid practice area where some are recognized for their experience and advocacy skills.
I’ve just finished reading Of Murder and Madness – it is decent and I recommend it to anyone who is a prosecutor or defense lawyer and who has ever tried or will ever try a case with a defense of insanity. It was difficult sticking to the story of the book, as throughout Spence digresses into his personal story, often tying his own story to that of his client when he can. I had already read his autobiography, The Making of a Country Lawyer (good), and Gunning for Justice (very good), and Gerry’s personal story begins to repeat itself throughout these books. They are good stories the first time, but in Of Murder and Madness I found myself flipping the pages and skipping the sections where he talks about himself.
Gunning for Justice may be one of the best lawyer books I have read, and I recommend it for all attorneys, civil, criminal, prosecution and defense.
It’s Sunday morning and I’m doing nothing. Maybe I’ll come back and hammer out something real later today.
York attorney killed
Attorney Michael Howe was killed last night, allegedly shot by his girlfriend. I don’t have any comment on it and I don’t have any information other than what is in the newspaper article.
Topeka, Kansas stops prosecuting CDV/ domestic violence cases
The Topeka City Council has announced that it will no longer prosecute domestic violence cases, following the County District Attorney’s announcement that it would no longer prosecute any misdemeanors.
Shawnee County has already dropped 30 domestic violence cases since it stopped prosecuting the crime on Sept. 8. Some 16 people have been arrested for misdemeanor domestic battery charges and then released after charges were not filed.
County District Attorney Chad Taylor has reportedly offered to review all misdemeanor cases filed in Topeka for potential prosecution, including those now handled by the city’s municipal court, in exchange for a one-time payment of $350,000 from the city.
It sounds like a pissing contest between the City and the County prosecutor to me – the City announces that it can no longer prosecute CDV’s, which is a move certain to get the public’s attention and put the blame on the County prosecutor.
I wonder if they were ever providing defense counsel for misdemeanors in Topeka, Kansas. If not, then this only levels the playing field, right?
