Monthly Archives: November 2009

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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Filed under Fifth Amendment, Sixth Amendment

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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Filed under Justice

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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Filed under Uncategorized

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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Filed under Police Misconduct

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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Filed under Divorce

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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Filed under DUI/DWI

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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Filed under DUI/DWI