Inhaled marijuana is the only medicine that gives me some relief from nausea, stimulates my appetite, and makes it easier to fall asleep. The oral synthetic substitute, Marinol, prescribed by my doctors, was useless. Rather than watch the agony of my suffering, friends have chosen, at some personal risk, to provide the substance. I find a few puffs of marijuana before dinner gives me ammunition in the battle to eat. A few more puffs at bedtime permits desperately needed sleep.

This is not a law-and-order issue; it is a medical and a human rights issue.

16 states so far have legalized the use of marijuana for medicinal purposes, for good reason.  H/T Simple Justice.

But the tales of those who are exonerated after the government has killed them are not as common – like Carlos DeLuna who was executed by the State of Texas in 1989 for a murder, although he told authorities he knew who the killer was – a man who killed again after DeLuna was charged and prosecuted and who repeatedly admitted that he was the killer.

He was the spitting image of the killer, had the same first name and was near the scene of the crime at the fateful hour: Carlos DeLuna paid the ultimate price and was executed in place of someone else in Texas in 1989, a report out Tuesday found.

Even “all the relatives of both Carloses mistook them,” and DeLuna was sentenced to death and executed based only on eyewitness accounts despite a range of signs he was not a guilty man, said law professor James Liebman.

Liebman and five of his students at Columbia School of Law spent almost five years poring over details of a case that he says is “emblematic” of legal system failure.

DeLuna, 27, was put to death after “a very incomplete investigation. No question that the investigation is a failure,” Liebman said.

This is a rare example of an “exoneration” that was arrived at by old fashioned investigation, without DNA evidence; most exonerations happen when there is DNA evidence available to test – South Carolina needs to come into the 21st century and pass laws to require preservation of DNA evidence and to enable at least those who make a threshold showing of innocence to test DNA in their cases.

South Carolina ranks last in the nation in judges per capita, with just fewer than one judge for every 100,000 people. And every year, on average, each S.C. judge gets 5,011 new cases, nearly three times the national average of 1,791 cases per judge each year, according to S.C. Supreme Court Chief Justice Jean Toal.

This is why legislators – whose jobs consist of drafting, debating, and voting on . . . laws – should be required to have a legal education, if not legal experience.  I am going to bet that the most ridiculous bill proposals, and the loudest rhetoric that hurts our justice system, comes from the non-lawyers that we put into the legislature.  Peeler is probably a great guy, I have no idea.  But how a background in dairy farming and no legal education qualifies a person to get elected and stay in the legislature is beyond me.

I think it is clear to anyone who works in the court system that we do need more judges.  Even more desperately, we need more funding for our overburdened indigent defense system.  Let’s put people in the legislature who have a clue and who can keep our government running instead of blocking progress.

The concurring opinion finds that convicted sex offenders do not have a fundamental constitutional right to be left alone; nevertheless, lifetime GPS monitoring without judicial review to determine an individual’s likelihood of re-offending is arbitrary and still fails the lesser, rational basis test.  Further, it violates the right to privacy which is found in the South Carolina Constitution:

I believe the finding of arbitrariness is additionally supported by the South Carolina Constitution, which, unlike the United States Constitution, has an express privacy provision. See S.C. Const. art. I, § 10 (“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated . . . .”). While our constitution’s privacy provision does not transform a purported privacy interest into a fundamental right for purposes of applying the strict scrutiny test, I believe it does inform the analysis of whether a state law is arbitrary and lends additional support to the conclusion that section 23-3-540(C) is unconstitutional. Cf. State v. Weaver, 374 S.C. 313, 649 S.E.2d 479 (2007) (holding that by articulating a specific prohibition against unreasonable invasions of privacy, the people of South Carolina have indicated a higher level of privacy protection than the federal Constitution).

It is interesting that the State argued on appeal that the sex offender registry is more invasive than GPS monitoring, and therefore GPS monitoring must be constitutional:

The State argues that the inverse is true and that it is the sex offender registry which is more invasive. In particular, the State points out that the registry provides the public with the offender’s full name, address, and offense history. Furthermore, the registry contains a photograph of the individual in addition to a physical description, complete with a list of tattoos and scars. In contrast, information obtained through satellite monitoring of that individual is limited to only the person’s location and is not available to the public.

So, if in the State’s opinion lifetime registry requirements are more invasive than GPS monitoring, yet GPS monitoring fails not only the rational basis test but also strict scrutiny, depending on which Justice you listen to, what does that say about lifetime registry requirements?

South Carolina has the most oppressive registry requirements in the country – lifetime sex offender registry without regard to the nature of the conviction or likelihood to re-offend.  A person convicted of statutory rape, who had consensual sex with a partner a few years younger than themselves, is treated the same as a person convicted of forcible rape of a child, is treated the same as a drunk convicted of indecent exposure.

And we want all to wear a monitor on their ankle, 24 hours a day, and prevent them from traveling, for the rest of their lives?  I suspect the supporters of the lifetime GPS requirement would just as soon support summary execution if they could color it constitutional.

So, the only people who wanted someone dead were federal agents, the ones who offered the drugs were federal agents, and the ones who actually killed someone were the federal agents.  According to the article, the allegations are that the defendants were already involved in at least drug trafficking – to establish an entrapment defense they would have to show that they did not have a predisposition to commit the crimes – but you still have to wonder about the ethics of this type of investigation.

. . . the execution of search warrants beginning at 7:15 a.m. Monday was part of an operation that began in December of 2010, and is continuing in the south precinct of Horry County right now.

Those arrested face charges including possession, manufacture and distribution of marijuana, assault and battery, assault and battery by mob, kidnapping, accessory to kidnapping, threatening a witness, and possession of a weapon during a violent crime, among other charges.

There is no question that wearing the Hell’s Angel logo makes you a target for federal and local law enforcement – no matter how much PR is done by the organization, law enforcement is going to treat the HA as organized crime, and they are going to be targeted.

SECTION    1.    Chapter 1, Title 1 of the 1976 Code is amended by adding:

“Article 27State Agency and Department Telephone GreetingSection 1-1-1710.    No state agency, department, institution, or entity may be required to use a telephone greeting of ‘it’s a great day in South Carolina’ or another similar greeting connoting the advantages of or a general pleasant demeanor in this State so long as any of the following conditions apply:

(1)    the state’s unemployment rate equals or exceeds five percent;

(2)    all citizens of this State do not have health insurance;

(3)    state school funding for grades K-12 and for higher education is not sufficient to ensure that all students are prepared for the twenty-first century; or

(4)    the rural infrastructure of this State is not adequate to allow rural areas to compete for new business and industry on an equal basis with urban areas of this State.”

Honestly, I didn’t know that any state agency had been required by law to say “It’s a great day in South Carolina” when they answered the phones.  Sounds like a pretty stupid law.  And, we were all wondering if our legislatures had nothing better to do than come up with witty, snarky, meaningless and useless bills.

But, last week I called the Horry County Probation Department and was greeted with “It’s a great day in South Carolina!  How can I help you?”  I started to laugh, then I paused for an awkward moment of silence before asking to speak with my client’s probation officer.  I’m guessing the above amendment never passed.

A lawyer was suspended for a period of 9 months after 23 complaints were filed on him, including complaints for failing to enter proper fee agreements, failing to diligently pursue matters he was retained on, failing to return clients’ files, failing to appear for a hearing without notifying the court, failing to communicate with clients, failing to return un-earned fees to clients, and failing to respond to disciplinary counsel’s inquiries.

A lawyer was suspended for 90 days for commingling funds that were supposed to be deposited into his trust account, and for failing to respond to disciplinary counsel’s inquiries.

A lawyer received a public reprimand for submitting a false resume to a potential employer and for lying to disciplinary counsel.

A lawyer received a public reprimand for mis-stating and exaggerating his qualifications, experience, and results on his websites.

A lawyer received a public reprimand for having sex with his divorce client (which was discovered by opposing counsel’s investigator).

A lawyer received a public reprimand for failing to deposit client funds into a trust account and for having sex with a client.

A lawyer was disbarred for misappropriating client funds, a conviction for breach of trust with fraudulent intent for which he received a three year prison sentence, for taking out loans in his wife’s name without her knowledge, and for failing to respond to disciplinary counsel.

A lawyer was suspended for 18 months for mismanagement of his trust account/ misappropriation of client funds, resulting from his use of illegal drugs.  Although disbarment is the usual sanction for misappropriation of client funds, this lawyer took great lengths to get clean and to remain clean, and made full restitution.

A lawyer was suspended for 6  months after he (1) was charged with CDVHAN in 2004; (2) pled guilty to trespass and disorderly conduct in June 2008; and (3) pled guilty to possession of unlawful prescription drugs in April 2010; complaints were also filed because he failed to pursue an appeal on behalf of a client (because the client never retained him, after the lawyer filed the notice of appeal with the court), and because he had provided a criminal client’s discovery materials to a co-defendant in the client’s case (he says that the client told him to but that was never put in writing).

A lawyer was suspended for 6 months because he failed to diligently pursue a client’s claim for nearly 10 years.  The lawyer had been disciplined twice already in unrelated matters.

He explains that witnesses testify using words; then the jury visualizes scenes based on the words that the witness is using.  This process is never complete nor is it reliable – words can never capture the full experience that the witness is trying to convey, and the jury is going to place the limited facts conveyed by the witness into a mostly imagined re-visualization that is mostly based upon each juror’s individual experiences and memories.  In other words, each juror hears the testimony through their own unique filter, and may visualize something different than what the listener intended; in fact, each juror may visualize something different than the other jurors.

Lubet says that the trial lawyer’s goal, then, is to carefully choose the right words to create the desired visualization in a juror’s mind – which will lead to understanding and hopefully to the desired result.  Visualization, therefore, is the key to persuasion.  The lawyer, who has not personally experienced the events that are key to the case, is likened to the blind poet Homer (who may or may not be blind, and who may or may not have written the Illiad and the Odyssey) – Homer’s use of vivid visualizations, simile and metaphor, allusion, and careful description, are an incredible example of effective visualization accomplished through words alone.  Lubet uses several examples, like this excerpt from the Illiad:

Just as he shot past the matchless runner Achilles
speared him square in the back where his war-belt clasped,
straight on through went the point and out the navel,
down on his knees he dropped—
screaming shrill as the world went black before him—
clutched his bowels to his body, hunched and sank.

You can see the action becoming slow motion as the runner dies, feel his horror and pain as he falls, a sequence of events that the author likely never saw himself and yet was able to convey vividly through his choice of words.

I agree that visualization is an essential component of effective communication and persuasion, but I believe that it is more accurate to say that the key to persuasion is emotion, which can be created by effective visualizations.  Decisions are made based on emotion and not logic, then logic is used to justify the decision that has been made – understanding this opens up a new dimension to the art of persuasion.  The trial lawyer’s goal is to carefully choose the right words to evoke the desired emotion in each juror’s heart – which will lead to understanding and the desired result.

Last year some associates and I were working on this theory, and experimenting with trial prep by mapping out the desired emotions we wanted to convey at each stage of our client’s story.  Outline the case by emotion rather than by chronological facts, then fill in the outline with the facts/events/visualizations from the case that would effectively create each emotion.

I would say, then, that the trial lawyer’s goal is to carefully choose the right words to create 1) the desired visualization in a juror’s mind; and 2) the desired emotional response.

Also, I would say that Lubet’s central dilemma of litigation, that memory is visual, but communication is verbal, is based on a false premise.  Depending on what researcher you listen to, anywhere from 50% to 80% of all communication is non-verbal.  If you believe that communication is only or even mostly verbal, no matter how great of a wordsmith you are, you are losing most of your potential for effective communication.  We have to understand that, not only do we create visualizations through the words we choose, but also most of our communication is visual to begin with.  To be effective, we must show the jury, not just tell them.

In trial prep, in preparing for effective communication with a jury, psychodrama is an invaluable tool.  Re-enactment of events using psychodramatic methods not only allows us to find the story of our client, or the witness, or the alleged victim in a case, but it  allows us to find the right scenes that we need to show to the jury.  It allows us to find the right words to paint a picture of those scenes for the jury.  It allows us to find and express the real emotions that flow from those key events in a person’s life.  It allows us to show the jury, instead of just telling them.

There is no rule that prevents a witness from coming down off of the witness stand to show a jury what happened.  Rule 401 of the South Carolina Rules of Evidence, regarding the admissibility of evidence, says:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

There are times when a re-enactment, or when the witness leaving the witness stand, will help the trier of fact to understand the evidence being presented, when it would make the existence of a fact more or less probable.  Although it is not appropriate for every event or scene that a jury needs to see, it is entirely appropriate for some events because there is no way to effectively verbally convey a visualization of some scenes without actually showing the jury, whether it is in opening statement, closing argument, or through a witness who is testifying.

We effectively convey our client’s story to the jury by:  1) choosing the right words to create not only the right visualization but also the appropriate emotional response; 2) understanding that communication is not entirely verbal; and 3) whenever possible, showing the jury instead of telling them.