A South Carolina Criminal Defense Blog

Don’t rock the boat

I feel compelled to write about why I write about police misconduct, and prosecutorial misconduct.  Believe it or not, I care about what you think.  More importantly, I have friends who are police officers and family members who are police officers, and I care about what they think.

The public wants to believe that there is no systemic police misconduct.  It is always an isolated incident.  We want to believe that police officers are a special breed of honest, ethical, and upstanding human.  We need to believe that, because we want to feel safe.  We want to feel that our trust in public officials is not misguided.  I write about police misconduct because I’ve been on the front lines and I’ve seen that it isn’t always so.  Police officers are human – sometimes they lie, they cheat, they hurt other people and they abuse the power that we give them.  When they shine, they really shine.  But when the evil side of human nature comes through, it is twice as ugly because of the authority that police are vested with.

I don’t hate police officers.  I have an incredible amount of respect for any person who goes into law enforcement, risking their life and their health in the interest of keeping the rest of us safe, usually for low wages and little reward.  Criminal defense and law enforcement are two sides of the same coin – both sides’ goals are to enforce the laws and constitution of our state and nation, and to protect the citizens of our state and nation.  Both sides are needed to accomplish these goals and to keep the balance.  On both sides, we need advocates who go into their professions for the right reasons, not people who are just doing a job and drawing a paycheck.

I want you to do your job and to do it well.  But, if you are lying under oath, losing your temper and hurting people on the street, or using your authority for personal gain, you are not doing your job – you’re just an asshole with a badge.  There are not many things more frightening than an unethical human being who is out to help themselves with a badge and a loaded gun.

If you actually read the blog posts that I write, you would see that I am not bashing police officers or law enforcement.  I express my opinion about departmental policies such as when to chase a suspect – an important issue that needs to be discussed because it has a tremendous impact not just on the lives of motorists but of police officers as well.  I blog about abundant specific examples of officers who commit crimes – another important issue that reflects on the leadership and policies of specific police departments.  I don’t usually blog about warm fuzzy cop stories – it doesn’t mean I don’t see those and appreciate them, they just don’t typically have a place here.

If you are a cop, and you are not lying under oath, beating your wife, tampering with evidence, beating suspects while they are handcuffed, driving drunk, or arresting people who have not committed a crime, I am probably not complaining about you.

The same is true about prosecutorial misconduct.  I have to say that locally there are some of the most ethical and conscientious prosecutors that I could ever hope for, and I am grateful for them.  There are also a few that have proven they are not trustworthy, and that they will cheat to get results.  Unfortunately, the job attracts both types.

I’m going to continue to write about police misconduct and prosecutorial misconduct, because I don’t see anyone else doing it.  If no one writes about it, if no one points it out, the public will continue to believe that it doesn’t exist.  Lawyers don’t want to “rock the boat.”  Some are afraid, some are too political, and some just don’t care.  Sometimes, our job is to rock the boat.  Sometimes, if it’s necessary to make positive changes, it’s our job to sink the boat.

 

The latest on the Beatty controversy/ prosecutorial misconduct in South Carolina

Gideon, from A Public Defender, now has a column at the Connecticut Law Tribune titled “Your Bias is Showing,” where he continues the conversation about prosecutorial misconduct nationwide and where he comments specifically on Beatty’s much-maligned (or much-applauded, depending on the listener) comments at the Solicitor’s Conference this winter:

First Judge Michael Sheldon of the Connecticut Appellate Court called it “a deliberate pattern of improper conduct” in State v. Santiago. Then, in another reference to prosecutorial misconduct, a Fourth Circuit opinion in U.S. v. Bartko pleaded “whatever it takes, this behavior must stop.” And Chief Judge Alex Kozinski of the Ninth Circuit started a blistering dissent in U.S. v. Olsen with the following: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

Yet when South Carolina Supreme Court Justice Donald Beatty warned prosecutors that they had “been getting away with too much for too long” and that the South Carolina Supreme Court would “no longer overlook unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence,” and cautioned that prosecutors’ “bar licenses will be in jeopardy,” the main prosecuting authority in South Carolina—the attorney general—threatened to move to recuse Beatty in all criminal cases, citing bias.

I wrote about it last December, in “The pendulum has been swinging in the wrong direction for too long,” and Simple Justice’s Scott Greenfield wrote about it in “The hit dog hollers.”  Following Beatty’s comments, thirteen of South Carolina’s sixteen solicitor’s offices, including the Ninth Circuit Solicitor, wrote to the state’s attorney general, in a much publicized letter seeking the attorney general’s support in seeking the recusal of Justice Beatty in all matters involving criminal cases or ethics complaints against prosecutors.  The attorney general replied in another public letter, sympathizing with the solicitors over the justice’s unfortunate comments and agreeing to seek his recusal where appropriate.

S.C. Senator Larry Martin was quoted in the Charleston Post and Courier as saying the justice’s remarks were inappropriate and intimidating, and that, although there may be isolated cases of prosecutorial misconduct in the state, “I don’t believe it is a major problem.” The South Carolina Association of Criminal Defense Lawyers (SCACDL) issued a press release in response to the Solicitor’s public letter, questioning why “prosecutors in this state get so upset when they are reminded that they have an ethical duty not to win at any costs, but rather to administer justice.”

Since then, SCACDL sent it’s own letter to the state’s attorney general, outlining a series of specific examples of alleged ethical misconduct in just one state solicitor’s office in the 9th circuit and asking the attorney general, in keeping with his constitutional obligation to supervise all prosecutions in the state of South Carolina, to investigate the allegations of misconduct in the 9th Circuit Solicitor’s Office.  The 9th Circuit Solicitor responded with a press release that disputed the “version of events” outlined in the allegations.

The Attorney General’s office has responded in a brief letter that does not address the allegations but rather punts the issue, declaring that “the Attorney General’s Office is not equipped with the resources to conduct these types of investigations.”

Full disclosure: I am currently the president of SCACDL, and I struggled with whether I should write about this on Trial Theory.  I want to be clear that on this blog, I do not speak for SCACDL and this blog is in no way associated with the organization.  However, I do feel that this is a critical criminal law issue in our state and nationwide, and it is important for criminal defense lawyers and prosecutors to continue the conversation.

Edit:  Radley Balko also has an article at the Washington Post.

Can I be charged with Driving Under Suspension if I never had a driver’s license?

In South Carolina, you can’t be convicted of driving under suspension if you never had a license in the first place – there is a separate statute that makes it a crime to drive without a license.

On Avvo’s neverending circus of wrong answers provided by out-of-state lawyers playing the Avvo contributor level video game, Illinois DUI lawyer Ted Harvatin not only gives the incorrect answer to the above question, but goes on to insult the asker with some nonsensical attempted wit:

As nice as it would be to get away with a crime simply by not having the necessary permission to be where you wanted to be.. just think you could trespass and while you were there you could murder someone and get away with it.

S.C. Code § 56-1-460 makes it a crime to drive on a public highway when your license has been cancelled, suspended, or revoked.  Of course, if you have never had a license, then you’ve never had a license be cancelled, suspended, or revoked.  S.C. Code § 56-1-20 prohibits driving when you do not have a license, and the punishment is provided in S.C. Code § 56-1-440 “penalties for driving without a license.”

It is a crime to drive either way, whether you have no license or you had a license which has been suspended, but the difference is in the punishment.  A conviction for DUS/ driving under suspension can carry a significant potential prison sentence – up to, on a 3rd offense when the license was suspended for DUI, a mandatory minimum of 6 months to 3 years in prison.  A conviction for DUS carries higher fine amounts and an additional suspension of the person’s license, which could complicate matters if a person has never had a license and wants to get one.

Driving without a license – DWOL or no SCDL – has significantly lower fine amounts and has no effect on a person’s ability to get a license down the road.

Question and Answer

Just in case Google did not have the answer you were looking for, I am here to help.  Some search terms that brought people to trial theory in the last year (it’s been a while, hasn’t it):

find a case that cites this case and explain why the court in your case found the neil v. biggers case a useful precedent:  I’m guessing that, while taking a law school exam, this person just googled the entire exam question on their smart phone?  Dude, I am not going to help you cheat.

what were the guidelines in the neil v. biggers case:  Seriously, I’m not going to do it.

how to get a cdv off your record: If you have no other convictions, a CDV 1st offense can be expunged after five years.

do i need a lawyer at general session roll call:  Yes.  Although nothing substantive happens at roll call and, at least in Horry County, there is no judge there, you don’t want to be there without an attorney.  Also, apart from the Bond Returnable, there is a good chance that if you had a competent attorney you wouldn’t have to be there at all, because your attorney would have gotten you excused.

polygraphs pros and cons for criminal trials: there are no pros and cons for trial – they are inadmissible, period.  They are not admissible because they are not sufficiently reliable to be admitted.  Before trial, you need to know that polygraphs are used by law enforcement as an interrogation tool, and they are not used to clear your name.  Although the polygraph results are not admissible, anything that you say is.

state magistrate courts officers prosecute own cases: In Horry County, we have two assistant solicitors who work in the magistrate court who only prosecute CDV’s and DUI’s.  Every other type of case is prosecuted by the officer who made the case.  You might say this is not fair – officers have not been to law school and should not be required to try criminal cases.  You might also say it’s not fair when indigent CDV and DUI defendants, who also have not been to law school, are required to defend their own cases against trained prosecutors because we do not give them appointed counsel.

sc cwp law on carrying in bars:  If you have a concealed weapon permit in S.C., you can now carry your weapon in a restaurant or bar, as long as you are not drinking.

“mere presence at the scene of a crime”:  is not evidence of a crime.  It’s not probable cause, and it is not sufficient evidence for a case to be submitted to the jury.  Many officers think that if you are there when a crime is committed, you are guilty under “hand of one is the hand of all,” or accomplice liability, but it’s not true.  Accomplice liability requires that 1) you are there; 2) you know what’s happening; and 3) you participate in some way.  If all three elements are not present, you have not committed a crime.

 

is the drowning man trial real :  I don’t know.  If you mean, can “the drowning man” really be a theme at trial, then absolutely.  The jailhouse snitch, like the drowning man, will drag down everyone within reach.  Never trust a man with a family.

can a confidential informant videotape me: Absolutely.  Just because you are paranoid doesn’t mean they’re not out to get you, Jerry.

public defender “trial chicken”:  When you play “chicken,” whether it’s in a car or in a courtroom, the person who is willing to crash and burn wins.  Or crashes and burns, on occasion.  If you’re willing to crash and burn, you may have the advantage.

can an employee in south carolina represent their company in magistrate courtAbsolutely not.  And if they do, they should know that unauthorized practice of law is a crime that carries up to five years in prison.

theory of defense for robbery: It was my stuff, I was just taking it back.  As a matter of fact, he robbed me.  She told me I could borrow it, then she just flipped out.  Some other dude did it.  At the exact time of the alleged robbery, I was feeding the homeless with several nuns and local government officials, all of whom are prepared to testify to my whereabouts?

criminal trail defence perspective:  I saw the criminal approaching, through a gap in the trees ahead.  I quickly set up a perimeter with trip wires connected to small bells, and hid behind a fallen oak about 20 yards off the trail, with my back to a large rock at the bottom of the cliff face, with a clear view of the trail ahead.  I took off my pack so it would not slow me down, hiding it beneath the tree.  He would not surprise me here, and I would have the advantage if he attempted to attack.

beach naked old woman:  Really?  There was a blog post about Dorchester County cops who tazed a naked 80 year old woman, but do you suppose that is what the anonymous googler was looking for?

are defense lawyers friends: Shocking as it may be, I have some friends that are defense lawyers.

S.C. Police Misconduct Update

A 70 year old disabled veteran was shot by a York County deputy as he reached for his cane during a traffic stop – sheriff’s department spokesman says the shooting was unfortunate but appropriate.

A Cherokee County sheriff’s deputy was charged in federal court for confiscating electronic gambling machines and then selling them instead of turning them in as contraband.

A 68 year old man was shot and killed by police officers in Edgefield County after he did not stop for police – although the chase began in North Augusta, apparently SLED has not released the names of the officers involved, the agency that they work for, or why they shot the man.

The Williamsburg County Sheriff Michael Johnson was indicted in federal court for conspiracy to commit wire fraud, accused of creating false police reports so customers of a credit-repair business could claim that overdue bills were caused by identity fraud.  Johnson is the 6th S.C. sheriff in 4 years to be arrested and charged with a crime.  A 7th died of a heart attack before he could be charged, accused of taking more than $200,000  in public funds.

A lawsuit filed against the Georgetown County Sheriff by three women who were raped by a detention center guard was scheduled for trial last week – according to the Georgetown County public index the case settled, however.  The guard, Belvin Lee Sherrill, pled guilty to sexually assaulting the women and was sentenced to 18 months in prison.

The former Simpsonville Chief of Police and a former detective were indicted for misconduct in office in connection with the “improper forfeiture and collection of impound retrieval fees related to a 1975 Harley Davidson motorcycle.”  The same detective was arrested in 2013 and charged with obstruction of justice and misconduct in office.

New ideas

The “war on drugs” has failed – we have managed to become the world’s leader in number of citizens that we keep locked up in prison, in the process destroying families and perpetuating the culture and conditions that lead to drug abuse and drug-related violence.  I think that we need to stop locking people up for drug offenses and instead focus resources on violent crimes and, as relates to drugs, focus resources on education, prevention, and treatment.  Regardless, once we have realized that the mass incarceration approach is not working, we are insane to keep doing it.

in 2010, soon after being nominated as our district’s U.S. Attorney, Bill Nettles was willing to try something new and looked to a program that had been successful over the long term in High Point, N.C., called the “Drug Market Intervention Initiative.”  He began the program in North Charleston, but has continued the experiment in other towns, now including Conway, S.C.  Although high level drug dealers are still prosecuted and sent to prison, the program identifies lower level dealers, and, rather than putting them in jail, offers them an alternative: steady employment, drug treatment, education, even help with transportation.

The targets of the program are confronted with the evidence against them at an “intervention” with police, family members, religious leaders and other members of the community, and given a choice between prison or participating in the program.  The participants are not arrested but are monitored – if they go back to dealing, pre-signed warrants are served on them and they are prosecuted.  If they take advantage of the help that is offered, they stay out of prison, their record stays clean, and they have a new chance at life.

“When you declare a ‘war on drugs,’ the community sees the cops as the occupiers, and the cops see the people in the community as enemy combatants,” Nettles said. “Well, that’s not the way it’s supposed to be.”

Our leaders need to be willing to try new ideas – the public needs to understand that the “War on Drugs” is a war on people, and that it has failed.  When the public understands that being “tough on crime” is not working, at least as applied to drug crimes, and that our communities are torn apart not only by the drug trade, but by the government’s approach to the drug trade, then our legislators may become more willing to make changes.  Elected Solicitors and elected representatives in the legislature are only going to go as far as the public lets them, if they want to keep their jobs.

Programs like this just seem like common sense to me – why would we put someone in a cage, hardening them and tearing apart their family, when instead we could provide them with a job, health insurance, education, treatment, a chance?  Is it about money?  Which costs more?

I applaud our U.S. Attorney for pushing through this program, and Jimmy Richardson, our circuit solicitor, for supporting it.  I may be pessimistic, but I predict it will be short lived regardless of its success, and we won’t see many more innovative programs like it, unless the voting public learns about it and gets behind it.

 

 

How far we’ve come

Reading an appellate opinion from 100ish years ago can really put things into perspective – we are fighting today to make the criminal justice system fair, to stop wrongful convictions, to have an even playing field between prosecution and defense.  We complain about a prosecutor who makes an off-color comment during trial, who abuses the subpoena power, who makes a judge dismiss a case that the prosecutor should have dismissed themselves.

We are still fighting for justice for all – yes, a wrongful conviction, a person who loses decades of their life or even who is executed because a prosecutor did not turn over exculpatory evidence is unconscionable, but it was not so long ago that, in addition to our 2014 problems, lawyers were fighting against the unapologetic denial of civil rights to an entire race.  Not so long before that, our United States Supreme Court held in a published opinion that African Americans, whether slave or free, could not be United States citizens and therefore had no standing to sue in federal court, an opinion which officially sanctioned slavery and which is seen as a catalyst leading to the civil war.

If you are in the trenches fighting for your clients and feel like you are beating your head against the wall, take a moment and read State v. Edwards, a “run of the mill” S.C. Supreme Court case from 1923.  Edwards, a black man and former soldier, was convicted of robbing a white woman in downtown Greenville.  At the trial, the testimony showed that the alleged victim, Mrs. Jones, had described her assailant as a “brown skin negro,” and yet the defendant was a “coal black negro.”  The prosecutor argued to the jury that he could have stained his face for the trial.  During deliberations the jury asked the court to have Edwards wash his face in front of them, which he did.  There was no change in his skin color, but they convicted him anyway:

A most peculiar incident occurred during the trial. It developed in the testimony that Mrs. Jones had described the negro as being a brown skin negro. The defendant was a coal black negro, and the question of his color was a sharp issue during the trial. After the jury had deliberated on the case for a considerable time, they returned to the courtroom and asked if there was any objection to having the defendant’s face washed; it having been contended during argument by the solicitor that his face could have been stained. Hot water and washing powder was produced, and in the presence of the court and jury, in open court, the defendant vigorously scrubbed his face for several minutes without the slightest variation in his color. The jury returned to their room, and thereafter brought out a verdict of guilty, and the defendant was sentenced to 15 years imprisonment.”

The S.C. Supreme Court granted the appeal for re-sentencing only, because the trial judge had sentenced Edwards to 15 years when the maximum sentence was 10 years.

We still have institutionalized racism at every stage of the criminal justice system.  The fight continues.  Looking back at State v. Edwards, and the Dred Scott decision, reminds us why we fight, and how far we’ve come.

When good men (and women) do nothing . . .

A Sheriff’s deputy in Denver, Colorado assaulted an inmate in the courtroom on video in 2012.  The video clearly shows that the man is speaking to the judge when Sheriff’s Deputy Brady Lovingier becomes annoyed, touches the inmate on the shoulder, and then grabs the inmate and slams him into a window.  There was no provocation, the inmate was not being unruly, and the deputy is not acting in self-defense.

Lovingier was not arrested or charged with the assault, but was suspended for 30 days, and is apparently still employed with the sheriff’s department.

I’ve become desensitized to violence by law enforcement – it’s widespread, it’s rarely punished, and most people will say it’s an isolated incident, despite the increasing proliferation of videos showing gratuitous violence by law enforcement officers.  I usually pass over most police misconduct or brutality topics, unless they are local.  What struck me in this case is how Judge Doris Burd sits and watches the assault, does nothing, and says nothing.  Another female in the courtroom says “Ooh lala” after the assault.

Googling the judge’s name turns up nothing negative.  Maybe the judge does a wonderful job and is well respected in Denver, Colorado.  She also sat and watched as armed government agents brutally attacked a man in her courtroom, a man whose hands were cuffed in front of him.

She watched, and she did nothing:

S.C. Woman arrested for failure to return a movie rental

A woman was arrested in Pickens County on a 9 year old warrant for petty larceny for failing to return a Jennifer Lopez movie that she had rented.  According to the article, she was arrested when she went to the jail to report an unrelated crime.

Finley is charged with petite larceny, and more specifically, the now seemingly archaic charge of, “failure to return a video or cassette.”

The charge is a misdemeanor, and police told the news station they had no choice but to serve the warrant for her arrest, no matter how old or outmoded.

That’s a crock of ****.  The warrant could have been withdrawn, it could have been served on her without arrest, or the magistrate could have declined to sign it in the first place.

Forgetting to return a movie, or a library book for that matter, or losing the movie or book, is not a crime.  An element that has to be proven is criminal intent – if you did not intend to steal the movie, you are not guilty of petty larceny.  It’s a civil matter, not criminal, and the magistrate and officers involved should know better.  The problem is that it is not convenient or practical to sue a person for the value of a book or a movie; it is much easier to have to person arrested, jailed, and then ask a judge to order restitution.

It’s not an isolated incident, either.  The Smoking Gun published a collection of incident reports from January 2011 where Chapin Memorial Library in Myrtle Beach obtained warrants for people who failed to return library books:

For example, a 56-year-old man named in one report has not returned seven books (valued at $204), including “Stink and the World’s Worst Super-Stinky Sneakers.” A 22-year-old woman still has $219 worth of library items, including a VHS copy of “The Adventures of Elmo in Grouchland.” And a 24-year-old man still has “Home Alone 2” in his home.

While warrants are issued for the overdue material, suspects are unlikely to get picked up by cops solely for failing to return a board book like “That’s Not My Dinosaur,” which remains in the possession of a 24-year-old man.

But if offenders do come into contact with police, officers “try to refrain from cuffing people” on overdue book charges, according to Lieutenant Doug Furlong.

It sounds like they are saying Myrtle Beach doesn’t arrest people for overdue book charges?  Horse****.  I have sat in Myrtle Beach Municipal Court and watched as bonds were set on people who had just spent the night in the Myrtle Beach Jail for not returning library books.  They were shackled to other inmates by their legs in rows, shuffling out to stand in front of the judge to either plead guilty or have a bond set for their release.  If they “try to refrain from cuffing people” it is brand new policy, which I doubt considering the Smoking Gun’s article and quote is over 3 years old.

Michael Dunn verdict – begin with the truth, please

Last night and this morning I began to see a flood of commentary on the Michael Dunn verdict – I haven’t been following the case, but I knew it was out there and I’ve seen some references to it.  In the commentary last night and this morning, mostly on Facebook without links to news articles, I learned that a white racist, Michael Dunn, was acquitted of murder, by a white jury, because of Florida’s Stand Your Ground law, and people are outraged.

Except, I looked up an article (and another, and another) to see what had happened in this case, and discovered that Dunn did not invoke the Stand Your Ground law, although he argued self defense, he was not acquitted but the jury hung on the murder charge, and he was convicted on all 4 of the remaining charges, including 3 counts of attempted murder, each of which carries a mandatory minimum sentence of 20 years?

It appears that Dunn may be racist – according to some articles, he sent letters from the jail that sounded racist.  He clearly doesn’t like rap music, and he did shoot into a car full of black men.  I don’t claim to know what happened during the incident or what happened at the trial apart from the soundbytes the media gives us, but if the guy left the scene, had a drink, took a walk, and took a nap without calling the police he has a huge credibility problem.  Per the media reports, his girlfriend did not support his story of seeing a gun barrel and no guns were found.

Racist people come into court every day – as defendants, as victims, as witnesses, and as judges, prosecutors, and defense lawyers.  When you deal with people, you are dealing with biases and prejudices and some of them are extreme.  The fact that most people do not recognize or acknowledge their prejudices makes it more difficult to deal with.  But, the Michael Dunn verdict is not the poster child for decrying a racist criminal justice system that sets free white men who murder black teenagers.

To get to that conclusion, people are straight up lying about what happened.  Dunn was not acquitted or found not guilty – an acquittal means 12 people agreed that he was not guilty.  That did not happen.  A hung jury, which is what happened on the murder charge only, means that 12 people could not agree as to the elements of murder – some said guilty, some said not guilty, and they could not persuade one another – and a mistrial was declared, as to the murder charge only.  Which means that the state can retry the murder charge if they choose to, although it would be a ridiculous waste of resources since the man was found guilty of the other charges and is now facing mandatory minimums of 20 years in prison.

This probably wouldn’t bother me as much if the posts and comments were written only by non-lawyers who don’t understand the terminology or procedure in the criminal courts.  But, this is commentary by lawyers who should know better.  The same posts that I am seeing on Facebook, where lawyers – not lay persons, but lawyers – are posting the above incorrect information, also are quickly devolving into name-calling and what could be either racist or anti-racist rants in the comments.  By lawyers, talking about lawyers. 

I’ve always tried to steer clear of writing about or commenting on these cases.  Although I don’t understand it, I clearly see the frenzy that nationally-reported criminal trials send people into.  A man shoots into a car at a gas station?  There are racial over-tones?  It’s no different than the hundreds of run-of-the-mill cases criminal defense lawyers and prosecutors deal with every day in your local courtrooms.  Somehow the national media exposure sends the masses into an irrational, emotional, obsessive tailspin.

Start the conversation with the facts: Dunn was convicted.  He is going to prison.  The jury was a mix of Black, White, Hispanic, and Asian.  He was not acquitted on the murder charge and it can be retried if the state chooses.  Stand your ground laws were not an issue in the trial.  And, based on the limited information I’ve read in the above articles, he is probably a racist and the shooting was probably racially motivated.

Then, if the truth does not support your agenda, find another case where it does.  Don’t lie or shade the truth to support your arguments, and, to my lawyer friends attacking one another and calling names like children on the playground, shame on you.

 

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