A South Carolina Criminal Defense Blog

Monthly archives for January, 2012

When is the victim the prosecutor’s client?

The Indiana Supreme Court publicly reprimanded a prosecutor for allowing the victim in a case to dictate the terms of the defendant’s plea agreement, finding that the prosecutor “engaged in conduct prejudicial to the administration of justice.”

Respondent, however, did more than just include in a plea offer, at a victim’s request, a restitution amount in excess of what the court could order under the Restitution Statute. Rather,
Respondent ceded to Big Rivers the entirety of restitution decisions with respect to the First Plea Offer, permitting Big Rivers to use the criminal case, without prosecutorial oversight, as leverage in its civil dispute with JH.

This is the problem in many civil cases which involve breach of trust charges or other disagreements with former employers or contractors – sometimes, the charge itself is only brought to force a person to pay money in what would otherwise be a purely civil dispute. Often when the person who thinks they are entitled to payment calls an attorney, the attorney will see that it is either not a good case to file or that there is not much chance of recovering if they do file suit, and they will advise the person to call the police instead.
When charges are brought in cases that are really civil in nature, some prosecutors will allow them to die on the vine. They might get kicked at the preliminary hearing, they might receive an offer of PTI, they might be dismissed after restitution is paid, but the bottom line is that many prosecutors can recognize which cases are viable and which are not.
Some prosecutors, however, have insisted that they cannot dismiss a case because their victim is not willing. There are some prosecutors who will do nothing in a case unless the victim approves – there are some prosecutors who have gone as far as to claim the victim in a case is their client.
The victim is never the prosecutor’s client – if they were there would be an unavoidable conflict of interest. The victim in any case is a witness, and the State is the prosecutor’s client – the prosecutor’s goal is not to make the victim whole, and the prosecutor should not be prosecuting the case at the direction of the victim. The prosecutor’s goal is to achieve Justice – Justice might make the victim happy, it might make the defendant happy, or it might make no-one happy.
Although the interests of the victim and the interests of the State may often align, it is not necessarily so.
H/T Legal Profession

S.C. police misconduct update

Lancaster County Sheriff’s Deputy Dale Perdue was fired and charged with burglary third degree, petit larceny, and misconduct in office after allegedly stealing construction materials from a home, while in his patrol car.
A Seneca, S.C. police captain was demoted and several other officers left employment as a result of sexual harassment allegations brought by a female Seneca police officer.
Seneca Police Department is refusing to release the names of the individuals involved in the above incident in response to requests under the Freedom of Information Act, and a local television station has filed suit under FOIA. Police Chief John Covington says, “We believe the release of information concerning former employees is not a matter of legitimate public or general interest and would constitute an unreasonable invasion of personal privacy.”
Orangeburg Department of Public Safety settles an excessive force claim for an undisclosed sum.
Horry County police tase a middle school teacher who demanded to know why their car was stopped and their tags checked. Whether this was police misconduct, teacher misconduct, or both is subject to interpretation I suppose.
H/T Injustice Newsfeed, and emails from readers.

Power – the slippery slope

The Montrose County, Colorado, District Attorney Myrl Serra has been disbarred following his convictions for criminal extortion, unlawful sexual contact, violating a protective order, harassment, and violating the conditions of his bail. There were multiple allegations against Serra of fairly egregious sexual misconduct against women including office staff, including groping the women, and attempting to force women to touch his penis/ masturbate him in his office.
One thing that stood out to me in the articles is that, long before an investigation was begun against Serra, at least one woman sought a restraining order against him which was denied by the magistrate, despite allegations of Serra physically assaulting her and her fiancee, and then a second request for a restraining order against Serra was denied despite her claim that Serra was sending sexually harassing messages to her phone.
Whether it is in court or out, there is a tendency to believe prosecutors – we want to believe that they are good human beings, who wear the white hat and who try at all times to do the right thing and make the right decisions. I want to believe that. But it is an inescapable fact that, for some people, power leads to corruption. Some like the feeling of power too much, and begin to abuse it for their own gratification – whether the gratification comes from the need to control, the need to win at all costs, or some other dark emotional need the person has. In some cases, the abuse of power leads to crime. In many others, it leads to abuse of the system, abuse of the litigants, abuse of the people who live and work in the system.
It can lead to Brady violations and the abuse of prosecutorial discretion – when courts do not punish or provide any sanction for misconduct, and when disciplinary bodies do not provide any sanctions for prosecutorial misconduct, some prosecutors will abuse their freedom.
For some, it may lead to a feeling of un-touchability, like the person is above the law, and for some this may lead to clear cut criminal conduct like that of Mr. Serra. I think that Serra could never have gotten to that point unless judges, attorneys, employees, and all around him were looking the other way and tacitly excusing his conduct for some time before it came to light. It’s a slippery slope that we create for those in power – how many others are struggling to keep their footing on that same or similar slopes?
H/T the Legal Profession

Atlantic Beach mayor arrested again

Retha Pierce was arrested for DUI Sunday night in Conway, S.C. Although she had prescription drugs on her, her breathalyzer result was 0.00. According to the article, she refused a urinalysis because they would not allow her to retain half of the sample to be tested by an independent lab (not the way it’s done, but doesn’t sound like an unreasonable request under the circumstances).
Ms. Pierce seems to be a magnet for police – the question is whether her actions attract them or whether she is a victim of police harassment.
“[Horry County police] are lying again as usual,” said Pierce.
“This is Horry County trying to take care of Retha Pierce. I was on my way from church and they put me in jail overnight. Talking about a DUI, knowing I don’t drink,” Pierce went on to say . . .
“[Horry County police] are always setting me up in this county and always trying to make Atlantic Beach look in a negative light. But thank GOD he knows the full truth here,” Pierce said.”

Local officers who have moved on

I’ve begun compiling a list of local officers who have left law enforcement, gone to other agencies, been fired for misconduct, etc. I’ll create a category for this post on the side bar so it can be easily found and updated, and would appreciate anyone who can send updates, additions, or corrections. It would help to know if the officer is employed at another local agency, or the details of their separation from employment if it was for misconduct.
I believe that prosecutors or police supervisors have an obligation under Brady to inform us if they do not have a witness available to prosecute a case, but some apparently disagree and will attempt to get a defendant to plead up until the morning of trial when their bluff is called.
Note that some officers are simply on leave for the military or other reasons, and some have moved to other police departments which means they may or may not be returning to prosecute their cases. Rely on this list at your own risk.
Horry County:

  • Bergeon, R. Conway
  • Bordner HCPD – now employed at Atlantic Beach PD
  • Bridges SCHP – charged with leaving the scene of an accident Dec 2012
  • Burgess HCPD – overseas, may return
  • Burgos SCHP – military leave
  • Conklin SCHP
  • Daly, Sean Surfside Beach
  • Edwards Conway – charged with CDV December 2012
  • Euhinger Conway – now at CCU
  • Fleming Conway – now at CCU
  • Fogle HCPD – now at CCU
  • Ford, Ken SCHP
  • Gonska HCPD – charged with CDV Jan 2011
  • Gross, Adam HCPD
  • Harris, Wesley HCPD – convicted of obtaining goods by false pretense
  • Koch, J. CCU
  • McComas Conway
  • McCoy Conway
  • McDowell Conway – now at CCU
  • McLendon, Charles – charged with CDV and misconduct in office December 2012
  • Parker HCPD – charged with DUI Jan 2011
  • Rexroad, D. HCPD – convicted of obtaining goods by false pretense
  • Rogers, Doug SCHP
  • Simmons SCHP – military leave
  • Watford, Heath CCU – now at Conway City
  • Camp, Gregory HCPD

Georgetown County:

  • Causey, Chad GCSO

 

Tallahassee to pay $2.6 Million settlement for Rachel Hoffman’s death

The City of Tallahassee is set to pay a $2.6 Million dollar settlement for the death of Rachel Hoffman, a Florida girl who was murdered after being forced to work as an informant for Tallahassee police following her arrests for pot.

Rachel Hoffman, 23, a recent Florida State University graduate, inhabited student drug circles, but after she was busted and agreed to become a snitch in 2008, Tallahassee police sent her out into an entirely different world. They set up a “buy-bust” sting, giving Hoffman $13,000 in marked bills to buy ecstasy, cocaine, and a gun. Instead of completing the transaction, the two men targeted shot and killed her, stole the money, her credit cards, and her car, and left her body in a ditch. The killers were later caught and are now serving life sentences.

After Rachel’s death, Florida passed a law that requires police who work with informants to get special training, to allow the informant to speak with an attorney, and not to promise reduced sentences to the informant. Every state should pass a similar law – the average citizen would be shocked to learn that their children, who are not hardened criminals, are being put in harm’s way by police officers to do law enforcement’s job for them, often at little or no benefit to the informant.
A person who is charged with simple possession or even possession with intent to distribute marijuana, with no prior record, has a fair chance of keeping this off of their record if they do not cooperate with the police and talk to an attorney instead. If they do go to work for narcotics officers, the officer will often recommend probation as their reward – telling an arrestee that they are facing x number of years and that the officer will recommend probation to the solicitor in these cases is an outright lie. Putting this type of defendant’s life in danger, and forcing them to stay in the drug world when they could otherwise be staying clean, is unacceptable.
Following Rachel Hoffman’s death, the Tallahassee police chief told 20/20 that:

Rachel was suspected of selling drugs and she was rightly treated as a criminal. “That’s my job as a police chief to find these criminals in our community and take them off the street, to make the proper arrests,” Jones told 20/20.

A similar high-profile death is in the news in Michigan, where a 19 year old transgender woman was murdered and mutilated by a drug dealer she set up for police after being arrested herself for marijuana.
H/T Stop the Drug War.org

New Yorkers jailed for putting their feet up on the subway

According to a NY Times article, New Yorkers are routinely jailed for not sitting properly on subway seats:

It is perhaps the most minor crime New Yorkers are routinely arrested for: sitting improperly on a subway seat. Seven years ago, rule 1050(7)(J) of the city’s transit code criminalized what was once simply bad etiquette: passengers putting their feet on a subway seat. They also cannot take up more than one seat if it interferes with other passengers’ comfort, nor can they block movement on a subway by doing something like standing too close to the doors.
Police officers handed out more than 6,000 tickets for these violations in 2011. But a $50 ticket would have been welcome compared with the trouble many passengers found themselves in; roughly 1,600 people like Mr. Peppers were arrested, sometimes waiting more than a day to be brought before a judge and released, according to statistics from district attorneys’ offices.

An NYPD spokesman says that the crackdown on minor offenses like putting your feet up or smoking on platforms has made the subways much safer, because it gives police an excuse to check for warrants and apprehend armed or wanted felons.
This has nothing to do with anything in South Carolina, where Subway is known only as the restaurant where they make sub sandwiches, but come on, is this true? Do we live in a country where the police arrest citizens and put them in cages because they put their feet up on a train or light a smoke in the wrong place?

Observations at Preliminary hearings

1) The Horry County Public Defenders Office waives all preliminary hearings, without regard to the client’s case or whether the client wants a preliminary hearing.
A prosecutor goes down the list of names, called in alphabetical order. Behind the bar are rows of seats filled with defendants, their families, observers, police officers, and attorneys. In front of the bar are two tables, one empty and one with two prosecutors standing behind it, one male and one female. In front of the tables is the judge’s bench, with the magistrate sitting above the rest of the courtroom. In front of judges bench is another table, with the clerk sitting behind it, paperwork spread in front of her and a computer screen on her table.
To the left, facing the judge’s bench, is a jury box filled with police officers waiting for their cases to be called. To the right is an identical jury box. Three inmates dressed in orange jumpsuits and wearing shackles sit next to watchful guards. On the other side of the jury box two attorneys sit, waiting for their cases to be called.
As the prosecutor calls the names of defendants, their attorney stands and moves to the defense table opposite the prosecutors. The prosecutor calls the officer for that particular case to the stand for testimony.
When the prosecutor calls the name of a defendant represented by the public defender’s office, they stand up in the audience, confused, not sure if they should go to the table, sometimes not sure if there is an attorney there for them. The magistrate tells them that their preliminary hearing has been waived by their public defender, and they are free to leave. Some leave quietly. Others tell the judge they do not understand, standing with all eyes on them, defiant, they say that they asked for a preliminary hearing. The judge explains, more firmly this time, that their attorney has waived their preliminary hearing and they should go to the public defenders office and and talk to their attorney.
2) If a private attorney is retained by a public defender client, they need to be sure they send a letter of rep to central preliminary court as well as to the solicitor’s office and the public defender’s office – otherwise the client’s preliminary hearing will be automatically waived, even though the client requested a preliminary hearing and never consented to waiving their right to a preliminary hearing.
3) Sometimes, a magistrate will dismiss cases when the officer does not show up after receiving notice for the preliminary hearing, and this is how it should be. Sometimes officers blow off preliminary hearings because they assume it will be waived, and if it is not waived, they assume the magistrate will continue the hearing because they are not there. If the hearing is continued, the case will be indicted at which point there is no longer a right to a preliminary hearing.
When a defendant does not appear for the preliminary hearing, the hearing is deemed to be waived by virtue of them not being there to pursue their right to a hearing. If the process is to be fair and the playing field is to be level, officers should not be treated differently. If the officer was noticed to be there and does not have a reason for missing the hearing, no probable cause is presented and the case should be dismissed. If the solicitor’s office feels that they still have a case, they always can, and usually do, send the case to the grand jury for indictment.
4) Credibility is the most important thing that you can have, whether it is with a jury, prosecutor, or judge. One local attorney, following a preliminary hearing where the officer briefly and clearly testified as to the elements of the charge, simply stood and said “Judge, I believe there’s probable cause here.” When there is no argument to the contrary, you only lose credibility by making a hair-brained left-field argument that you know will not be granted.
5) Same attorney in another hearing is cross-examining officer on the basis for a traffic stop that resulted in felony drug charges. The standard is that there must be a reasonable articulable suspicion that some type of crime is occurring to justify the traffic stop. The officer says “I stopped the car because of suspicious activity,” and the attorney presses the officer as to “what you were suspicious of,” and the officer cannot give a clear answer. Not often that a witness steps into such a clear statement of an invalid traffic stop that tracks the language of case law.

Substantial circumstantial evidence – State v. Odems

In State v. Odems, decided on December 28, 2011, the S.C. Supreme Court looked at how much circumstantial evidence is enough to survive a directed verdict, when there is no direct evidence of a defendant’s guilt. Odems was convicted of first degree burglary, grand larceny, criminal conspiracy, and malicious injury in Spartanburg County; the Court held that there was not substantial circumstantial evidence of Odems’ involvement in the crimes and that a directed verdict should have been granted.
Odems was found in a car with the burglars soon after the burglary, with the stolen goods, he ran from the police, went into a house where he asked the owner to use their telephone and then asked the owner to lie to the police about who he was – altogether insufficient circumstantial evidence to allow the case to go to a jury:

The circumstantial evidence presented in Petitioner’s case is analogous to that found in Bostick and Lollis. The State’s case against Petitioner relied primarily on three pieces of circumstantial evidence: (1) the fact that less than ninety minutes after the burglary, police located Petitioner in the getaway car with the burglars and the stolen goods; (2) Petitioner fled from law enforcement; and (3) Petitioner asked an uninvolved person to lie for him. State v. Odems, 385 S.C. 399, 404–05, 684 S.E.2d 573, 575 (Ct. App. 2009).
Even when viewed in the light most favorable to the State, the circumstantial evidence presented does not reasonably tend to prove Petitioner’s guilt. The sole eyewitness in Petitioner’s case described only two men at the scene. A forensic investigator testified that she collected twelve sets of fingerprints in the car and from the stolen goods. These sets included prints from both Dawkins and Bell, but not Petitioner. Dawkins testified during the State’s case-in-chief and explained how Petitioner ended up in the car with the stolen goods even though he did not participate in the burglary.

The Court distinguished the admission of evidence of flight in State v. Crawford, 362 S.C. 627, 608 S.E.2d 886 (Ct. App. 2005), in that there was some direct evidence of guilt in Crawford, whereas in Odems’ case there is no direct evidence of guilt.
If the State relies on circumstantial evidence to prove its case, every circumstance relied upon by the State must be proven beyond a reasonable doubt; and all of the circumstances proven must be consistent with each other and, taken together, must point conclusively to the guilt of the accused to the exclusion of every other reasonable hypothesis.
In this case, the State’s evidence did not exclude the possibility that the burglars picked Odems up at a convenience store after the crime was committed.

Jury selection in magistrate court

In State v. Johnson, decided January 4, 2012, the S.C. Court of Appeals held that section 22-2-90 of the South Carolina Code does not require that a minimum of 40 jurors be present in the jury pool in magistrate court. This is an issue that comes up frequently, particularly in the smaller counties where people tend to not show up for jury duty and the courts never notice enough potential jurors – generally the magistrates have held that where there are enough present to select a jury, meaning we don’t run out of potential jurors before all are seated, there is no problem.
The Court of Appeals held that section 22-2-90 requires that a minimum of 40 jurors be summoned for the jury pool, but not that 40 jurors be present at jury selection:

We agree with the State that there is no provision in Chapter 2 of Title 22 specifically establishing a minimum number of jurors required to be present in the jury pool before jury selection can proceed. The plain wording of section 22-2-90 requires only that a person selected by the presiding magistrate draw a minimum of forty jurors to serve for a one week term. It does not require that forty jurors be present and available in the jury pool before jury selection can proceed for a trial.
Further, section 22-2-100 mandates the individual names be randomly drawn until six jurors and four alternates are selected, with each party being allowed a maximum of six peremptory challenges as to primary jurors and four peremptory challenges as to alternate jurors. Thus, as noted by the State, allowing for the maximum number of primary (six) and alternate (four) jurors along with the maximum number of combined peremptory challenges (twenty), thirty jurors would be sufficient to meet such needs

Basically, if enough potential jurors are present to account for the number of jurors to be selected and the number of strikes allowed to each side, there’s enough jurors. The opinion says 30 is enough, accounting for 6 jurors, 6 strikes for each side, 4 alternates, and 4 strikes for each side as to the alternates. Typically we only seat one alternate in the magistrate court, which means that in actual practice 21 jurors is enough – 6 jurors, 6 strikes for each side, 1 alternate, and 1 strike for each side as to the alternate.

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