Monthly Archives: November 2009

November 29, 2009 · 11:31 pm

Tiger Woods Hires Lawyer

Tiger Woods has hired a criminal defense lawyer according to John Wesley Hall, Jr.:

Every public figure should have one of us on retainer.

From DUI Attorney.com:

Just because Woods has hired a well-known and able defense lawyer does not mean that he is guilty or even that he has anything to hide. In fact, a smart innocent person with the means to do so would hire a criminal lawyer when investigated or suspected of any crime for which he or she is innocent.

Should it be national news that the number one golfer in the world has hired a lawyer? Probably not, but it is Tiger Woods.  He is a celebrity and with fame and fortune go gossip and innuendo. And sometimes, questions from the police.

Good advice from Mr. Hall. Bravo to Mr. Woods. I am not the first to say this, but here I go. Whether rich and famous or poor and unknown, no one should ever talk to the police without a lawyer.

It happens too many times. A person is a suspect and for whatever reason he or she decides they can get it cleared up without a lawyer. It almost never works out the way that person thought it would. It is far better to hire a lawyer and let the public think that you are guilty than to go it alone. The innocent person that goes alone is usually the innocent one that is convicted.

I look forward to a time when the public does not presume a person guilty because he or she hired a lawyer before questioning.  I hope for a time when the public simply thinks that the person who did not is an idiot.

I would also like to add to the dui attorney comments that even though a person may not have the means to hire a lawyer, he or she still has the right to remain silent and not answer the questions. Hopefully, he or she even has the right to a lawyer.

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November 28, 2009 · 11:50 am

Husband Cleared of Murder Charge – The Elk Did It

Swedish police decide wife was probably killed by elk and clear husband of suspicion of murder charge.

From the BBC News:

Ingemar Westlund, aged 68, found the dead body of his wife Agneta, 63, by a lake close to the village of Loftahammer in September 2008. He was immediately arrested and held in police custody for 10 days.

No matter how improbable the denial, sometimes when the defendant says he did not do it, he really did not do it.

The European elk, or moose, is usually considered to be shy and will normally run away from humans. But Swedish Radio International says the animals can become aggressive after eating fermented fallen apples in gardens.

Westlund was cleared after forensic analysis determined hair and saliva on his wife’s clothes was Elk.

This is all I know about the story. I do not know if Mr. Westlund had a lawyer. I don’t know if he did the forensic analysis independently. I do not know if, perhaps, it all worked out fine due simply to good police work.

I do know that ten days in jail and the obvious pain that this must have put Mr. Westlund and his family through must have been devastating.

There are several posts on the internet now about a criminal defense lawyer’s duty when it comes to justice. My answer is that the duty is to the client. To act within the bounds of the law and to defend the client zealously sounds good. To explore all options and defenses under fact and law sounds better. To allow any perceptions of guilt or what others may call “justice” to get in the way of the defense is not an option.

After all, that defendant that everyone says is guilty might just be innocent.

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November 26, 2009 · 12:27 pm

Thanksgiving

Every holiday stands on its own merits. To single one out as the best only invites criticism. I like Thanksgiving. It means more to me than the fact that the courthouse is closed for four consecutive days. It is a holiday of thanks with nothing expected in return.

I am thankful for many things today. I am grateful for my family, friends and good health. I am grateful for the fact that I have a job and with it, the opportunity to help many people who really need help. For these things and many others, I am eternally grateful.

I am also thankful for a few other people:

  1. The officer who remembers the oath when he testifies;
  2. The prosecutor who remembers that justice, not a conviction, is the goal;
  3. The judge who follows the law; and
  4. The defense lawyer who does not poach clients at any cost.

For these few people, I am also grateful. I just wish I had more.

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November 23, 2009 · 7:26 pm

Traffic Stop: Fake Cop; Fake Dog

Before you begin the Fourth Amendment analysis on your next traffic stop case, ask these questions instead. Is the officer a real police officer or is he a convicted felon? Is the drug dog certified?

According to the Log Cabin Democrat:

A Hilltop Volunteer Fire Department fireman has been arrested on suspicion of imitating a police officer in Mayflower, and Mayflower Chief of Police Richard Shaw has been suspended with pay pending the outcome of a Faulkner County Sheriff’s Office investigation.

Turns out that John A. Brinkley, dressed in “police markings” with duty belt and pistol, was using his personal vehicle with blue lights and drug dog to assist in traffic stops. Brinkley is a volunteer fireman, he is not a police officer. He is also a convicted felon. He is also under arrest.

Brinkley was arrested on suspicion of possession of a firearm by certain persons, criminal impersonation of a police officer, possession of blue lights and driving on a license suspended for DUI.

The article did not say if Brinkley made any arrests or how long he was assisting with the traffic stops. I wonder if he was able to, under the totality of the circumstances, develop a reasonable suspicion to prolong any of the stops. I wonder if he (or the dog) determined probable cause to search any of the vehicles.

Police officers will almost always argue that a defendant was nervous when trying to validate reasonable suspicion or probable cause. It’s scary enough when a citizen is stopped by an armed officer with blue lights, gun and dog. This article might make someone a little more nervous.

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November 20, 2009 · 9:48 pm

Divorce, Constitutional Style

An Amendment to the Texas Constitution may have done away with marriage in the Lone Star State. From the Fort Worth Star Telegram via Above the Law:

The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that “marriage in this state shall consist only of the union of one man and one woman.”

The problem, according to attorney general candidate Barbara Ann Radnofsky, is Subsection B, which declares:

“This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

The 2005 amendment was aimed at banning same sex marriages. The ambiguous language of this clause may have voided the state’s power to recognize any marriage. Radnofsky goes further: “Yes, I believe the clear language of B bans all marriages. This breeds unneeded arguments, lawsuits and expense which could have been avoided by good lawyering,”

Jerry Strickland, a spokesperson for the current attorney general countered with:

“The Texas Constitution and the marriage statute are entirely constitutional,” Strickland said without commenting further on Radnofsky’s statements. “We will continue to defend both in court.”

It looks like he has the opportunity. The same sex ban on marriage has been held unconstitutional by a Dallas district judge.

The problem with a constitutional amendment is that it is a constitutional amendment. A constitution is a product of serious thought and reflection. It is drafted with careful deliberations. To amend such a document should require the same process. This article is a clear example of why a rush to judgment or an attempt to be politically correct (or incorrect) should never be part of the equation.

This amendment may be as clear as the AG says it is. It may be as clear as the candidate says it is. It may even be unclear. One thing that is clear is that it will certainly lead to unnecessary litigation. That is what happens when we tinker with a constitution, especially when the tinkering is aimed at a particular group of people.

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November 18, 2009 · 7:27 pm

New DUI Trial for Flee or Fight Defense: A Choice of Two Evils

A jury can hear evidence that a defendant’s only choice was to drive away from bar fight. The Montana S.Ct. ruled that a woman convicted of DUI can have a new trial so she can present the defense of compulsion.

But “the affirmative defense of compulsion is a well-recognized basis for finding a person not guilty of a charged offense, even though her conduct appears to fall within the definition of that offense,” writes Supreme Court Justice Patricia Cotter in the unanimous opinion.

The state argued at trial that the defendant should not be allowed to present this defense because 14 miles was too far to drive and that she could have called 911 and stayed in her car. The trial judge agreed.

Some of the comments to the story called for tougher DUI laws. This ruling does not have anything to do with DUI laws. It is simply a restatement of the current law regarding jury charges. That is, if there is evidence of a defense the jury should hear it. Judges rule on law and juries decide facts.

Will this evidence acquit the defendant? I do not know. The jury may reject it. At least now they will be able to hear it, weigh it and make a more informed decision.

South Carolina recognizes the defense of necessity. The defendant must show three things:

1. an emergency not caused by the defendant;

2. a reasonable person would believe death or serious injury will occur if the defendant does not act; and

3. there is no reasonable alternative, other than committing the crime, to avoid the threat of harm.

Basically, it is a choice of evils defense. Necessity can be used in South Carolina as a defense in a DUI case where the defendant is presented with a choice of two evils.

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November 14, 2009 · 12:29 pm

DUI Defense Lawyers Wear White Hats

South Carolina is the Garden of Eden when it comes to Driving Under the Influence laws. The serpent, however, is coming. This was part of the message delivered by Lawrence Taylor yesterday at the SCACDL DUI seminar in Columbia. I don’t think any of the citizens arrested for DUI in SC would agree with the first part and I doubt most would care about the second.

Mr. Taylor was speaking of course, about the DUI exception to the constitution. This fit in quite well with our courts’ interpretation of the constitution when it comes to DUI cases. That is, there are two categories of criminal law: DUI and all the others.

If you are charged with murder, you most certainly are entitled to the constitutional protections of the Fourth, Fifth and Sixth Amendments. If you are charged with DUI, those amendments probably don’t apply to you in most states.

In most states the police can stop you without probable cause just to see if you have been drinking. There is no Miranda requirement and you do not have the right to an attorney. In some states you do not have the right to refuse the breathalyzer test and in some, the police will hold you down and draw your blood right there on the side of the road. In a few states you do not have the right to a jury trial. This is scary.

By comparison, SC is the ideal place for protection when charged with DUI. We were the last state to lower the blood alcohol level to .08 in DUI cases.  You still have a few constitutional rights left  and you do have the right to a trial by jury.

The times, they are a changing. The serpent is coming. SC passed a comprehensive DUI law in February of this year. If convicted, the punishment will now depend on the datamaster results. There is mandatory jail time based on the results from a machine. What if the machine is not reliable? Look here to see why breathalyzer machines are not accurate.

Hopefully South Carolina will not follow the other states and do away with our remaining constitutional rights in these cases. Once you whittle away a fundamental concept in the name of one cause, it becomes easier to do away with it for all other causes.

We know the power that lobbyists wield so it may just be a matter of time before we lose the entire constitution in DUI cases.  If they can’t change the law through the legislature – they have, and they will – they can change public opinion about the law. Thanks to Bobby Frederick for pointing out the following.

Right now there are organizations acting together with the Highway Patrol and others to change the public’s perception of the law. They have launched a media blitz to convince the public that it is illegal to drink and drive. That is obviously not the law in South Carolina.

The most significant thing I heard from Mr. Taylor is that he likes to think he wears the white hat. He does and for two reasons. The first reason is that the DUI defense lawyer looks for the truth. He looks for the truthful blood alcohol concentration at the time the defendant was driving.  The second reason is that he is trying to protect and preserve the constitution. Not just for the DUI defendant but for every defendant. Not just for the client, but for everyone.

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November 11, 2009 · 8:27 pm

A Salute

A salute to the man standing on the overpass today in the pouring rain. I don’t know him or anything about him.I did not see him in person because I didn’t drive that way today. I saw him on the tv news tonight. Only brief footage though, no detailed story about him. Just a man standing on top of the overpass all day long in the pouring rain and waiving a large American Flag.

Today it rained in Horry County. It rained all day. When the winds came, and they did often, it was cold. It was a cold, windy, rainy day today. Most business and government offices were closed. It was a good day to stay home.

It was also Veteran’s Day. The day we honor the men and women who served in our armed forces. Grand ceremonies were held honoring our heroes, past and present. Some were attended by large crowds; some were gatherings of a few. They were all noble in their own way and they all honored our heroes. Men and women who served and made tremendous sacrifices, some making the ultimate one, all to preserve our way of life.

This would be the the point in this post where I could link to some sites, explain the history of this day and start talking about our freedom and constitutional rights under the law. Not today. Today is the day I honor the ones that mean the most to me. The ones who suit up, show up and get the job done. Without them, this law stuff wouldn’t be all that important.

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November 10, 2009 · 2:28 am

Death is Different, but so are Juveniles

The U.S. Supreme Court heard oral arguments yesterday in two separate juvenile cases. Graham v. Florida and Sullivan v. Florida. At issue is whether the Eighth Amendment should prevent life without parole for juveniles convicted of crimes that do not involve murder.

Whether juveniles can be treated as adults and therefore punished accordingly has long been settled starting with Kent. In a nutshell, courts look at the seriousness of the alleged crime and other factors to determine basically if a particular juvenile is more like an adult. If so, then up he is waived. Some courts, it has been argued, stopped the analysis after merely considering the seriousness of the crime.

If a juvenile is arrested for murder, rape or robbery, he is almost certainly going to be waived up to adult court to face an adult sentence. This notion is popular with the general public and therefore with the legislature. In some jurisdictions, the judges who make these decisions are elected by the public and not surprisingly this notion is popular with them.

I remember when South Carolina lowered the age for adults in the mid 1990s. That legislation effectively took judicial oversight out of the equation for the majority of juvenile cases. Law enforcement made the decision whether or not to charge a minor as an adult. There was nothing a judge could do regarding jurisdiction: there is no reverse waiver hearing.

Naturally it followed that adult sentences encompassed all possible sentences.  That is, capital punishment. We now know that is off the table for juveniles. Is the next best thing LWOP? I don’t think so. If death is grossly disproportionate would it not logically follow that so is life?

The government argues that death is different. I agree with this, but it misses the point. Death cases are reviewed by our state Supreme Court individually. The sentence is permissible as a general category but questioned as to a particular individual. From the beginning, juveniles have always been reviewed individually for a possible sentence that is permissible as a general category. Should the general category for waived up juveniles include LWOP becomes the next question. That question has been answered affirmatively for those convicted of murder.

For those defendants, it was determined that they were beyond rehabilitation.  (That decision, more than likely, was made due to the seriousness of the crime.)

Rehabilitation is the benchmark when reviewing a juvenile. Because of their young age it is obvious that there is time for it. It is also obvious that these young people are by definition in there formative years, suffering through growing pains and finding themselves. Eventually, most will grow up. They should not discarded. We should not give up on them. This is why the government does not kill them. Even when they killed someone.

For the same reasons we don’t kill them, we shouldn’t lock them up and throw away the key. Especially if they didn’t kill anyone.

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Filed under Juvenile Defense

November 7, 2009 · 6:13 pm

Justice? An Illegal Search – Part 1

Below is a picture of Justice, the drug dog, and his handler as they work their way around a car. A police officer previously radioed the handler and asked him to come to the scene of a traffic stop. He asked him to come to the scene with Justice and try to get consent to search the car.

You see the officer had stopped the rental car in a store parking lot for following too closely back on the interstate. The officer wanted to search the car, but the two young black men both said no. So, the officer said he was going to write a warning ticket. But before he would start writing the ticket, he would end up doing some other things.

He would ask them some questions. He really wanted to know why the young man who rented the car was in the passenger seat, while the other young fellow was driving. He really wanted to know where they had been. So he separated them and asked them.  He also wanted to know the last time they smoked marijuana. If it was in Georgia the officer explained then there was nothing he could do. They didn’t smoke marijuana. They did, however, smoke cigars – Black & Mild.

The young men had pulled off the interstate to use the restroom. When they asked if they could go, the officer had another idea. He asked the young men if they would agree to be searched. The officer had a constable with him and he helped with the search and the armed escort to the bathroom.

Back in the squad car, the officer radioed the drug dog handler. He explained that he had two young black men from out of state, traveling from Georgia to N.C. in a rental car, one had a prior drug conviction, and there was “shake” in the car (tobacco taken out of the cigars). He also said they had given different versions of where they had been: one said to watch a basketball game; the other to visit some girls. There was also some energy drinks in the car.

The officer did not say that he smelled marijuana. He never even used the word. He did ask the dog handler to try to use Justice to get consent to search the car.

When the dog handler got there, he asked the young men if he could search the car or whether he had to get the dog out.  They said no. So, he went and got Justice out and went about doing the tasks that drug dogs and their handlers do.

This is a picture of Justice’s handler after Justice did not hit or alert on the automobile.

The officer asked again if he could search the car, adding that he could have sworn he smelled marijuana earlier on one of the young men.

After the young men said no, the officer and the handler looked around and talked. But no one could hear what they said. Then they searched the car.

They searched the inside of the car. They did not find any contraband. Then they searched the trunk and found drugs.

This might be an amusing story if it were not for the fact that it was an illegal search that resulted in a 30 year prison sentence for one young man.

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