A South Carolina Criminal Defense Blog

Posts by Bobby G. Frederick

Move to Trial Theory

In the next couple of weeks I will be moving this blog and incorporating it into the trial theory blog. From here on out I will only be posting there.
If you have been kind enough to link to South Carolina Criminal Defense, it would be great if you could redirect your link to Trial Theory; also if there are any souls out there who have been reading, I hope you follow to Trial Theory and continue. I do appreciate the emails, comments, and support that I have been getting from readers over the past few years.

New Post at Trial Theory

PCR – can the prosecutor withhold the audio/video of a drug transaction prior to trial

New posts at Trial Theory

Crash the system redux
South Carolina Police Misconduct Update

Crash the system

“The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control.”
A NY Times opinion piece written by civil rights lawyer Michelle Alexander speaks the truth about our national system of mass incarceration and what may be the only possible method of fixing it. Every defense lawyer in the trenches knows that the criminal justice system is rigged, but the truth is rarely seen written in a national publication – it is something talked about behind closed doors, or in passing at the courthouse. In public we are infinitely more comfortable when we are lauding the best criminal justice system in the world, and how we work hard to protect our citizens’ constitutional rights – the dirty truth does not sound nearly as good.
Estimates vary from jurisdiction to jurisdiction, but on average 90 – 95% of criminal cases do not go to trial, and most plead guilty to something. Innocent people plead guilty, which is a tragedy ignored by many prosecutors, defense lawyers, and judges; while some guilty people go to trial, which is their absolute right. When innocent persons go to trial and lose, they are punished more severely than most guilty people who plead out.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

The reason innocent people plead guilty is that they understand the system is rigged. In as many words, their lawyers explain to them how the system is rigged. You can plead now, and walk away with a light sentence or probation; or you can go to trial and risk spending a significant portion of your life in a prison cell. Some judges, although not all, will punish a defendant for exercising his or her constitutional rights – a probationary or light sentence following a guilty plea becomes maximum and/or consecutive sentences following trial. Defense lawyers advise their clients of this and advise them that the risk is not worth it.
The federal system is the worst offender – in some areas of the country, the federal courts have become the enforcers of our government’s failed drug war, almost to the exclusion of other federal crimes. When a person is charged in a federal drug conspiracy, with few exceptions, they know that they cannot exercise their right to a trial. The federal sentencing guidelines are specifically designed to punish any defendant who exercises his right to a trial, and designed to do so in the extreme. A 10-20 year sentence can easily become life imprisonment following a trial.
The federal defendant is rewarded for not exercising his or her constitutional rights – their sentence is reduced for pleading guilty. Their sentence is reduced for helping the government arrest more people for drug conspiracy. Their sentence is reduced for testifying in court against any person who exercises their right to a trial – making it difficult at best to tell who is telling the truth and who is lying or bending the truth so that they can get the promised reduction to their sentences. The defendant who insists on a jury hearing their case is punished by having every possible enhancement added to their sentence, by being sentenced based on “relevant conduct,” even conduct that has been acquitted by a jury, and by having federal inmates lined up to testify against them, including many they have never met, not only to prove their guilt but to increase the drug weights attributed to the defendant and thereby their sentence.
There is no legislative solution to this rigged system – it is rigged as a direct result of legislation. Politicians will always pass laws that are increasingly harsh, so that they can use them as a bully pulpit to get attention and votes. Over time, the laws criminalizing conduct have increased in number and severity – criminal liability reaches more and more Americans and mandatory minimum sentences are the order of the day.
Some of us complain about the steady erosion of our Constitutional Rights – but how can we complain when no one exercises those rights? Use it or lose it. The norm across the country is to waive our constitutional rights, so why shouldn’t we lose them?
The only solution may be the extreme solution that is the subject of Alexander’s article – what will happen if every person refuses to waive their constitutional rights? Would we crash the system?

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”
Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

The machinery grinds on, but the system is broken. Let’s talk about it.

Lt. Ransom William’s point of view

More on Sheriff Cannon’s high speed chase in Charleston – the Post and Courier has the video from Lt. Ransom Williams’ patrol car, who was the furthest involved officer from the pursuit and yet managed to be the first on scene, ultimately traveling 40 miles in 28 minutes in an unmarked car. The video shows Williams traveling at speeds up to 133 mph through traffic, crossing into the oncoming lane six times, running cars off the road, and even passing other patrol cars at speeds in excess of 120 mph to ensure he was in the front.
At the end of the video, after the suspect’s tires are shot out, we see that Williams is the officer who is the first out and he is the officer who meets the suspect with a blow to the head as the suspect steps out the truck. Williams then continues to punch the suspect in the head as the dog is set loose on him.
Who was endangering the public in this incident, the suspect or the police? Watching this video, it seems nothing short of a miracle that Williams did not kill any motorists on his way to and during the pursuit.
Charleston County’s pursuit policy, posted on the Post and Courier’s website,

prohibits undercover vehicles from participating in a chase “except in situations where failure to act would create unreasonable risks of serious injury.” As the pursuit ended, about a dozen marked patrol cars arrived behind Williams.
The policy also states that deputies shouldn’t shoot at a moving vehicle “except as the ultimate measure of self-defense or the defense of another when the suspect is using deadly force by any means.”
Cannon, in a news conference last week, said McManus was threatening motorists’ lives by driving erratically. The sheriff said he had the “maturity and judgment” to decide whether to continue the pursuit.

The suspect ultimately was charged with failure to stop for blue lights and sirens, third-offense driving under suspension and resisting arrest. The police in this case were not so much keeping us safe from criminals, as they were putting the public in danger to prove a point and to get their adrenaline rush. Whether it is by legislation or by making changes to each agency’s policies on high speed pursuits, something needs to change.

Loose Cannon

What happens when you “swerve in traffic” in front of the County Sheriff? I expect you get a traffic ticket, at a minimum. But what happens when you then don’t stop for the inevitable blue lights? It appears that it may result in a high speed chase, your tires get shot out, you get the crap beat out of you, you get bitten by a police dog, and before it’s over the Sheriff himself gets a shot at slapping you in the face.
SLED is investigating the incident involving Charleston County Sheriff Al Cannon that occurred last Wednesday, due to the shots that were fired at the fleeing vehicle and Sheriff Cannon’s admission that he hit the suspect in the face while handcuffed in the back seat of a patrol car.

[The suspect] was treated at East Cooper Hospital before being lodged at the Cannon Detention Center. His wife and mother claimed after a Tuesday bail hearing that McManus, a roofer residing on Macoma Drive in Mount Pleasant, was assaulted at the arrest scene. Any form of police brutality was denied by sheriff’s officials.

Although “any form of police brutality was denied,” it seems apparent that guns were fired at the vehicle, no tasers were deployed and instead the suspect was beaten, a police dog was set loose on him, and the Sheriff himself got a shot in while the suspect was handcuffed in the patrol car.
I have no doubt that the average citizen believes that once someone offends a police officer it is open season. Is this good police work and a criminal getting his comeuppance? Or is this law enforcement using the cover of their job to commit violent crimes with impunity?
Following the multiple deaths/ injuries following high speed chases of motorcycles by the Horry County Police Department this past year, consider whether it is necessary to chase down a vehicle at speeds in excess of 100 mph to exact swift justice – when it is possible to simply photograph the tag number with the dashcam, let the person go, let them wind down and slow down without hurting anyone, and then go pick them up later. In many of these cases, there is no reason for the high speed chase and resulting violence other than the officers’/ adrenaline junkies’ need for a fix. Road rage?

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.”

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