March 17, 2013
5:26 pm
by: Bobby G. Frederick

Maryland abolishes the death penalty

Maryland has become the 18th state to abolish the death penalty (17 + the District of Columbia).  Maryland’s legislature has passed the ban, and the governor has said he will sign the legislation.

Posted in Death penalty

March 17, 2013
4:59 pm
by: Bobby G. Frederick

The death of Google Reader

Since Google has announced that it is shutting down Google Reader on July 1st, I’ve been looking around for a replacement.  There are a number of different sites/apps that are claiming to be the next best thing for Google Reader users, except none of them look or feel anything like Google Reader.

Finally I came across this one, called the Old Reader – for those who are resistant to change and want to not only keep using Google Reader, but don’t mind going back to the old Google Reader style.  I’ve switched over and I’m very happy with it so far.

Posted in Blogging about blogging

March 10, 2013
4:34 pm
by: Bobby G. Frederick

DUI defense

Yesterday I saw this article written by Adam Beam at The State, and could not let it pass without comment:

Whoever said “you can’t have it both ways” clearly has not looked at South Carolina’s proposed budget.

The $22.7 billion spending plan — which House lawmakers are scheduled to debate next week — includes $1.6 million to prosecute drunken-driving cases. It also includes $1.2 million to defend those accused in the DUI cases.

On its face, that doesn’t make sense. If the state is spending a million to keep drunk drivers off the road, why would it also spend a million to keep drunk drivers on the road? Doesn’t that defeat the purpose?

No, said state Rep. Mike Pitts, R-Laurens, chairman of the House law enforcement budget subcommittee. Pitts, a former police officer, said 80 percent of S.C. defendants accused of DUI can’t afford an attorney. That means the state pays for their attorneys.

“When the court appoints an indigent defense attorney and there is none there, because there is no funding, then the system stops,” Pitts said. “You create a bottleneck.”

So the only way to prosecute a defendant accused of drunken driving is to defend him or her. Either way, the lawyers win.

First of all, not every person who is charged with DUI is guilty.  Police make mistakes, some innocent mistakes, some not so much.  The Bill of Rights applies to every citizen, and it’s protections apply to every person accused of a crime, even in a DUI case.  Defense lawyers don’t “keep drunk drivers on the road -” most see their job as making sure that law enforcement is doing their jobs and that the state proves their case.  You’ll appreciate that when you are accused of a crime that you did not commit and threatened with prosecution.

In the magistrate and municipal courts, there are trained attorneys who prosecute DUI cases.  In most municipal courts, there are attorneys who prosecute all offenses, and in most magistrate courts, there are attorneys who are hired solely to prosecute DUI’s and CDV’s.  In most counties, there are no public defenders in the magistrate or the municipal court.  This means that the 80% of defendants who cannot afford an attorney (according to Mike Pitts, cited in the article), are representing themselves against a trained prosecutor.  Which means that, whether they are guilty or not, they are pleading guilty or getting found guilty at trial.  Almost all plead guilty because they do not have a choice.

When we have lawyers prosecuting citizens in magistrate or municipal court, the citizens are entitled to an equal defense – if they are indigent and cannot retain an attorney the government is obligated to provide that defense.  If we are going to create positions for special DUI or CDV prosecutors, we need to create the corresponding positions for public defenders or appointed counsel for those who cannot afford representation.

In Horry County, I have never seen a magistrate appoint an attorney for a DUI defendant, although I am sure it has happened.  When an attorney is appointed to represent an indigent client, they are not making money.  They are not getting paid what a case is worth, or anything remotely resembling a fair fee.  When my office is appointed to represent an indigent client, we lose money – the fees that are approved for indigent defense in our state court are among the lowest in the nation, and do not cover operating expenses.  “Either way, the lawyers win” doesn’t make sense.

Posted in DUI DWI Driving Under the Influence, Indigent Defense

March 8, 2013
8:34 pm
by: Bobby G. Frederick

S.C. Ethics Advisory Opinion 00-000 (doesn’t exist)

According to the Ethics Advisory Committee, it would not comply with the ethics rules if I were to stop showing up at preliminary hearings for all of my clients.  However, there is no published opinion.

The South Carolina Bar has a procedure by which attorneys can request an advisory opinion as to whether a particular course of action would violate the ethics rules or not.  The opinions that are issued are published and are searchable online, and it is an invaluable tool – when you are not sure if a certain course of conduct is ethical per the rules, you can look it up.  If it is not found in prior published opinions, you can request an opinion from the Ethics Advisory Committee.

Last year I requested an opinion from the Committee as to whether it would violate the rules if I were to stop having preliminary hearings for all of my clients.  The question posed was as follows:

I have a primarily criminal defense practice with an active case load of just under 200 cases.  Each criminal defendant may request a preliminary hearing pursuant to S.C. Code Section § 22-5-320, and many do so before I undertake their representation.  Is it ethical, specifically in reference to South Carolina Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), and 3.1 (Meritorious Claims and Contentions), to:

1) Decline to request preliminary hearings in all of my criminal cases, regardless of the facts of the case or whether my client wants me to request a preliminary hearing; and

2) Waive all preliminary hearings that my clients request on their own, regardless of the facts of the case or whether my client wants to go forward with their preliminary hearing?

I was told they accepted the question, and I waited for a response.  I waited for an opinion to be published, and eventually I received a phone message from a member of the committee.  The message was no, it would not be ethical.  We played phone tag for a while, and finally I emailed her and asked what the response was and whether it would be published.  The response:

Hey Bobby -
The committee declined to issue a formal opinion, and opted instead for me to contact you and give you the information.  What they said was that you should not adopt a “policy” of waiver.  Instead, each case must be considered on an individual basis.  If waiver for one client is the best thing, then you should do it.  However, waiver may not be best for all and you have to look at each client individually to make that determination.

Please let me know if you have any other questions… I  will be happy to help clarify if you need it.

So, the answer is no, it is not ethical.  Why was it not published?

Posted in Ethics

March 8, 2013
7:57 pm
by: Bobby G. Frederick

Horry County preliminary hearings – denial of due process by the defense

Looking back, it seems like about once a year I write a blog post about how our local public defender has done away with preliminary hearings for indigent clients.  It is still happening, and nothing has changed.

I don’t know what public defenders in other parts of the state are doing, but the 15th Circuit Public Defender’s Office waives all preliminary hearings for all of their clients, without consulting the client, without informing the client, regardless of whether the client insists on going forward, and apparently without even telling the clients not to appear at the preliminary hearings.

Preliminary hearing court this morning was typical – before beginning, the solicitor assigned to handle the prelims went through the docket and called each case one at a time, identifying the public defender clients who were present and informing them that their attorney has waived their preliminary hearing and that they are free to leave.  That is most of the defendants in the room.  Usually at least one puts up some resistance and informs the Court that they are not waiving their preliminary hearing and that they want to go forward with or without their public defender; today was no different.

The Judge informs them that they cannot go forward – they are represented by counsel and their attorney has waived their preliminary hearing.  They need to contact their attorney and speak with them, and the Court cannot tell them anything more because they are represented by counsel.  Several of the public defender clients point out that they have had no contact with their attorney, but this doesn’t change the analysis – the Court’s hands are tied.

I doubt that each individual public defender has contacted the Court and waived their client’s preliminary hearing.  Rather, the Public Defender’s Office has notified the Court that all preliminary hearings are waived.  Our local public defender has effectively done away with the right to a preliminary hearing for all indigent defendants in our circuit.

Why does it matter?  What is a preliminary hearing?  It is hearing before a magistrate, to determine whether there is sufficient probable cause for the case to go forward.  It is a statutory right that applies to every person accused of a General Sessions level crime in our state:

§ 22-5-320. Defendant’s demand for preliminary investigation; appearance by attorney
Any magistrate who issues a warrant charging a crime beyond his jurisdiction shall grant and hold a preliminary hearing of it upon the demand in writing of the defendant made within twenty days of the hearing to set bond for such charge; provided, however, that if such twenty-day period expires on a date prior to the convening of the next term of General Sessions Court having jurisdiction then the defendant may wait to make such request until a date at least ten days before the next term of General Sessions Court convenes. At the preliminary hearing, the defendant may cross-examine the state’s witnesses in person or by counsel, have the reply in argument if there be counsel for the State, and be heard in argument in person or by counsel as to whether a probable case has been made out and as to whether the case ought to be dismissed by the magistrate and the defendant discharged without delay. . . .

My opinion is that the preliminary hearing should rarely, if ever, be waived – you lose nothing by going forward with a preliminary hearing.  The officer takes the stand and testifies under oath, and, whether the case is dismissed or not, there are times when that testimony is invaluable and can result in a dismissal later, or it can be used to impeach the officer at trial if they try to change their testimony later.

Sometimes the case is dismissed – if it is dismissed the solicitor can still send it to the grand jury for indictment, but sometimes they do not.  If they don’t, the case is over.  If it is dismissed based on a lack of probable cause, rather than the officer not showing up, it’s a pretty clear sign that the solicitor will not get a conviction at trial, where the standard is beyond a reasonable doubt instead of probable cause.

The preliminary hearing can be waived.  The defendant can not request a preliminary hearing at all.  But this is the client’s choice, not the attorney’s.  It is the client’s right to a preliminary hearing, and, although the attorney can advise a client to waive the hearing, the right does not belong to the attorney, it belongs to the client.  Similarly, an attorney can advise a client to waive their constitutional rights and plead guilty to an offense, but it is not the attorney’s decision.

An attorney can waive a preliminary hearing at their client’s request after talking with the client about what they are giving up and the attorney’s reasons for giving it up, but an attorney can’t simply refuse to have hearings for all of their clients across the board.  I say they can’t, but they do, and it doesn’t seem to bother anyone but the defendants who feel that they are getting screwed.

Every time I write a blog post that addresses indigent defense issues, I get accused of beating up on the public defenders.  I really don’t care – if you’re a public defender and you are offended by a post like this, my opinion is you are probably one of the offenders.  If you are a public defender and you are not trying to change the system that you work in, whether it is to find more resources, to reduce your case load, or simply to refuse to shit on your clients no matter what your instructions are from your boss or the office of indigent defense, you are the problem as well.  The denial of the right to a preliminary hearing to all indigent defendants in two counties is a systematic denial of due process, more pervasive and offensive than most problems we complain about in the solicitor’s office or the police department.

And yes, I am content to snipe from the sidelines and complain about what you are or aren’t doing.  I suspect if I worked in your office, I would have to quit or be fired to comply with the ethics rules that govern attorneys.  On the other hand, if you see a way that I can help you, my door is open and I welcome you to call or email me.

Posted in Ethics, Indigent Defense, Sixth Amendment

February 16, 2013
1:45 pm
by: Bobby G. Frederick

DUI heroes?

The S.C. Dept. of Public Safety has the results of the 7th Annual DUI Enforcement and 2011 Law Enforcement DUI Challenge recognition ceremonies posted on their website, where officers are given awards based on the number of DUI arrests that they made over the course of the year (2011).  Officers are ranked in the Bronze, Silver, or Gold categories, based on the number of arrests – the highway patrol troop that covers Horry County took the Gold category by storm, with 24 officers rewarded for making 50 or more arrests each during the year 2011.  Out of a total of 78 Gold awards, Troop 5 took about 31% out of all law enforcement agencies statewide.  Two Myrtle Beach police department officers and one Conway police department officer were given a Gold award as well.

Although I don’t see any mention of it on SCDPS’s website this year, in the past officers have been awarded prizes such as Dodge Chargers and Chevy Tahoes based on the number of arrests that they make.  DUI enforcement is a lucrative business for organizations like MADD, for municipalities who depend on fine money for income, for law enforcement agencies who depend on grant money which is justified by the number of arrests made, and by solicitor’s offices who depend on grant money for the salaries of special DUI prosecutors.

The awards, rewards, grant monies, and recognition is based not on the quality or accuracy of DUI arrests, it is based solely on the number of arrests made.  When officers are competing for recognition or even material rewards, and when grant money creates law enforcement jobs solely for the purpose of making DUI arrests, the number of arrests officers make justifies their job and their paycheck.  At best, there is no exercise of discretion and officers may err on the side of arresting people regardless of the proof.

At worst, you may recall this story from last year, where an officer was named “Utah Highway Patrol Trooper of the year,” for making over 200 DUI arrests in 2007, has been fired and is now the subject of a class action lawsuit based on the number of false arrests that she made where her victims were not intoxicated.

Posted in DUI DWI Driving Under the Influence, Police Misconduct, Wrongful Convictions

February 16, 2013
12:00 pm
by: Bobby G. Frederick

Arraignments

For now, there is no such thing as a formal “arraignment” in South Carolina, although that was addressed in the Chief Justice’s docket control order (which is currently in limbo).  For some time now, though, Horry County has been doing what they call arraignments – when a defendant refuses to plead guilty the prosecutor will schedule a hearing where the prosecutor makes the plea offer to them on the record, the judge questions the defendant about whether they understand the plea offer and the potential penalties they face, and the defendant will accept or deny the plea offer on the record.

I don’t think this is a bad idea, in theory.  In practice, however, it often turns into a debacle where the prosecutor, judge, and defense lawyer all lean on the defendant in an attempt to force a guilty plea.  The prosecutor without fail states that this case will be on the very next trial roster.  In a week’s time, various assistant solicitors may state on the record 50 times to 50 different defendants that their case will be on the very next trial roster.  The judge and the defense lawyers play along, knowing full well that the defendant’s case will not be on the very next trial roster – each term the solicitor is required to release no more than 20 names in the order that they will be called, and no more than a few of these will be the people who were arraigned the week before.

I have had cases where we played along, had an “arraignment,” then 6 months later when we still have not pled guilty, had another “arraignment,” then 6 months later . . . etc.  The worst of these that I have watched while sitting in the courtroom waiting our turn are the ones where the judge castigates the defendant, telling them that this is an amazing plea offer and they are going to get hammered after trial, and the defense lawyer gangs up on the defendant with the prosecutor and the judge.  “Your honor, I’ve explained all of this to him, I’ve told him why he needs to accept the plea offer . . .”

This week I watched several of these where the defendant’s public defenders stood by and allowed their client to explain to the court, on the record, why they did not think they were guilty.  Allowed the judge to question their client on the record about why they were not guilty and why they were not taking the plea offer.  I don’t know if this happened because the lawyer hoped their client would buckle under the pressure and be persuaded by the Court, or if they were afraid or did not understand that they do not have to allow their client to be questioned on their guilt or innocence.

If your client is about to have an “arraignment,” talk to your client beforehand.  Make sure they understand the plea offer, they understand the charges they are facing and the potential penalty, make sure they understand what your advice is and the reasoning for it.  If they want a trial, honor their decision.  Don’t subject them to interrogation on the record, by the Court or by a prosecutor – if you go to trial, and your client made admissions on the record at their arraignment, you are going to hear it again at the trial.

The only legitimate purpose of the arraignment is to have your client accept or reject the plea offer on the record.  The judge and/or the prosecutor are questioning your client on the record not because they have a right to, but because you are letting them do it.    It’s not only ok, but it is your job to say to the Court, “I am advising my client to remain silent.  He/she rejects the plea offer and wants a trial.”  If your client has told you they want a trial by a jury of their peers, be proud and help them to stand up in court and demand a trial by jury.

It occurs to me that I have done many arraignments since the practice began in Horry County, and only once have I had a judge or prosecutor attempt to question my client on the record.  If this is happening to your clients it is because you are letting it happen, and it’s because they know that they can get away with it when you are the attorney.

Posted in Credibility, Ethics, Sixth Amendment

February 3, 2013
2:16 pm
by: Bobby G. Frederick

Law school enrollment is down in S.C. (slightly)

For years, bloggers have been lamenting how there are too many lawyers and not enough jobs for them, and yet more law schools keep opening up shop to crank out more jobless lawyers.  Among the negative effects is a race to the bottom as untrained, jobless lawyers open their own practices by necessity, learn to market their non-existent skills, and take on cases for lower and lower fees.  It affects the quality of legal services provided, and older attorneys complain because at least some of their business is now migrating to the newer, cheaper attorneys.

The reason law schools are founded, and the reason that law schools continue to struggle to keep up their enrollment knowing that their graduates are not going to find work, is quite simple – legal education is a profitable business and the stakeholders do not want to go under or lose money.  Like most businesses, like many of the law school applicants who hope to become rich and famous despite the lack of jobs prospects, the motivation is money.

The problem is not that enrollment is down at law schools.  The problem is that there are too many law schools producing too many lawyers for the market to sustain, even in South Carolina, where we have only two law schools in the state.

I don’t have a solution – we can’t make law schools stop accepting students and we can’t control the number of graduates they produce.  There is the age old debate as to whether the number of law graduates should be regulated – it would solve the problem of the over-abundance of unemployed lawyers and the perceived decline in quality of legal services, but the counter-argument is that it would be protectionism pure and simple.  I don’t think that the number of attorneys graduating could be regulated, but the number of attorneys licensed could be.  Personally, I think that every citizen would benefit from a legal education, although not every citizen should be allowed to practice law in the courts.

South Carolina has two law schools, which is probably less than most areas of the country.  The Post and Courier ran an article today with quotes from the deans of the Charleston School of Law and USC School of Law lamenting the lack of jobs and how enrollment is down at their schools.  According to the article, lawyers graduating in 2011 had only 55% employment 9 months after graduation.

The job market has been tough for law graduates nationwide. That’s a problem because many of them take on more than $100,000 in student-loan debt.

The Chronicle of Higher Education reported this month that law schools produce more than 44,000 graduates each year, about two for every new opening for a lawyer or judicial law clerk.

The class of 2011 had the worst employment numbers of any since 1994, with only 55 percent of graduates known to have found full-time jobs requiring a law degree nine months after graduation.

When I went to law school, USC School of Law was the only law school in the state.  Finding a job was not a problem.  Then Charleston School of Law opened its doors – whatever their stated reason for opening the new school, it was, like every law school, to make money from potential law students.  Now we have two law schools with just over half of the graduates finding employment (I don’t know if this statement is substantiated for South Carolina or not, as I think the statistics cited in the article are nationwide – feel free to correct me if I’m wrong).  Yet the schools are certainly not accepting responsibility for the effect that they have on the job market – each school is concerned that their enrollment is down and they are working to keep up their enrollment, accepting students with lower scores and GPA’s to keep up the numbers:

USC Law Dean Robert Wilcox said his school also has faced challenges recently. Enrollment dropped from 240 students in 2009 to 213 in the past two years. And applications also have declined, he said, from 1,973 in 2009 to 1,771 this year.

The school has to have a class of at least 210 students to sustain itself financially, he said. With the smaller applicant pool in recent years, the average LSAT score and grade-point-averages of the entering class have declined, he said.

What’s the solution?  Can we limit the number of new schools that open in areas that do not need them?  Can we limit the number of graduates who are licensed to practice in the courts?  We can’t say that the market will even itself out as those who do not find work go into another profession, because the unemployed or unemployable new graduates now have a license to open their own offices and begin collecting money from the unsuspecting public.

Posted in Ethics

February 2, 2013
1:56 pm
by: Bobby G. Frederick

Someone’s gonna pay

You’ve probably heard about the Texas prosecutor who was gunned down in broad daylight in front of the Kaufman County Courthouse last week.  I don’t know anything about Mark Hasse, how he handled his cases, or his personal life, but I can surmise that he died for a cause that he believed in and that he is a hero.  I would like to know more about him.  If the killers’ intent was to send a message I expect and I hope that it was a failure – law enforcement and prosecutors will continue to do their jobs, likely with more conviction than ever before, inspired by Hasse’s memory.

The reports say that one or two gunman shot Hasse, in front of the courthouse, that they were masked, that at least one wore a tactical vest, and that they left the scene in a silver, older model Ford Taurus.  According to reports, there are still no leads, although the report linked to above names two members of the Aryan Brotherhood of Texas, linking them to the crime only because they pled guilty to unrelated crimes on the same day.

Which brings us to the question of whether the murderers will ever be brought to justice.  I predict that someone will be “brought to justice,” the question is whether it will be the killers.  A lack of credible information at the scene of the crime + outrage and a mandate to catch the killers = a recipe for charging and convicting the wrong person:

During an afternoon press conference, Kaufman County Sheriff David Byrnes, District Attorney Mike McLellan and Police Chief Chris Aulbaugh begged the public for any information that could identify those responsible.

“We’re very confident that we’re going to find you, we’re going to pull you out of whatever hole you’re in, we’re going to bring you back and we’re going to let the people of Kaufman County prosecute you to the fullest extent of the law,” McLellan said.

As I type every defendant charged with a serious crime in federal or state court in Texas is brainstorming trying to figure out how they can provide information that will lead to an arrest in Hasse’s case.  If I have charges pending, I can rest assured that if I have information that will lead to an arrest and conviction I am going to walk – this case is too important to not make an arrest.  For the coming weeks, months, or years, information will be pouring into every DA’s office, agents will be debriefing defendants who claim to have information, defense lawyers will be passing along information provided by their clients, and as the mountains of information grow, detectives and prosecutors will have their pick of suspects and testimony to support a prosecution, and they will need only pick the one that seems most credible to them.

I have a theory that, whenever a “professional hit” takes place, someone takes the fall for the killers.  I imagine that is part of the beauty of a true professional hit – once someone else is charged and convicted, the killer no longer has to worry about that particular job.  Case closed.

We want to believe that this doesn’t happen, but it does – I can point to local cases where a murder prosecution has survived directed verdict and an accused person has been convicted based solely on the testimony of a jailhouse snitch, and I bet most defense lawyers nationwide can point you to similar cases in their states.  In a high profile, high pressure case, law enforcement and prosecutors will charge, prosecute and convict a person based on whatever they have available, and there will always be a jailhouse snitch available.

Are we confident that the right people were charged and convicted in these cases?  Someone had to pay, and the police and the prosecutors had to answer to the public if there was no arrest and conviction.  The truth is that police and prosecutors can charge and convict anyone of anything, with testimony from jailhouse informants who are desperate to save themselves, and the fact that courts allow this type of uncorroborated testimony is a crack in the system that allows for injustice to prevail in many cases.

Someone’s gonna pay.  I predict that someone will be charged and convicted in Hasse’s murder – I hope that when it happens there is more evidence than uncorroborated testimony from informants, and that they get the right people – this is too big and too important to fail.  It’s also too important to get it wrong.

 

 

Posted in Ethics, Evidence, Wrongful Convictions

January 12, 2013
2:09 pm
by: Bobby G. Frederick

India law profession fail

Indian lawyers are vowing not to represent the men accused of a recent brutal gang rape “because of the nature of the crime.”  The District’s Bar Association has asked all of it’s members to refrain from representing the accused:

The 11 lawyers who make up the executive board of the Saket Bar Association on Wednesday vowed not to represent any of the accused assailants because of the nature of the crime. The brutal attack galvanized the nation and has led to protests by outraged citizens.

In addition, the bar association has appealed to its 7,000 members to also refrain from representing the accused, said the association’s president, Rajpal Kasana.

“We are not taking this case on the grounds of humanity,” he said.

The Bar Association adds that the accused can have a Legal Aid lawyer who is appointed to the case, or a lawyer from a different district.  I sometimes wish that I could only represent the innocent – I represent many people who are probably innocent, but it is just not possible to do criminal defense and represent only those that you believe are innocent.  To represent not only a person who is possibly guilty, but a person who is possibly guilty of the lowest, most depraved acts a person could commit is the noblest calling of our profession.  It is not done to earn the love and respect of the masses, but it is done in spite of their lack of understanding and their disdain.

It is done because the representation given to the worst among us sets the standard for the representation given to the best of us – those who don’t have money to buy the best defense but who are in fact innocent or who need an attorney’s help even if they are not innocent.  The Saket Bar Association in India fails at one of the most basic notions of our profession.  I hope that it doesn’t go unnoticed and that there are attorneys in Saket, India who get it and who will stand up for the most unpopular defendants in the nation.

Note:  this was originally posted on January 2, 2013 – I had some technical difficulties and had to restore the blog to it’s December 15 backup, but I re-posted this article from Google’s cache of the original.  My apologies to all who commented on the original post and/or linked to it.

Posted in Ethics