Monthly Archives: March 2010

Death Penalty Facts

Some facts on why we should abolish the death penalty from Amnesty U.S.A. via Colonel John P. Galligan, U.S. Army (Retired).

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Super DUI Cops

The S.C. Department of Public Safety held its 5th Annual DUI Enforcement Recognition Ceremony in Columbia today according to SC Now. Congratulations to the Conway Police Department for its award for Agency of the Year in the 51-100 officer category. Several local officers received individual awards.

Officer of the Year: Conway Police Senior Master Patrol Officer Josh Scott.

Trooper of the Year: Highway Patrol Trooper First Class Douglas J. Sarvis, Horry County.

The following received awards for DUI arrests:

Bronze Award: Conway Police Patrol Officer Justin Strickland for 20 DUI arrests

Gold category awards for 50 or more DUI arrests were given to Conway Police Senior Master Patrol Officers Chad Causey and Josh Scott for 60 and 74 DUI arrests, respectively; Horry County Police Lance Cpl. Jack Johnson Jr. for 57 DUI arrests; S.C. Highway Patrol Troop 5 Trooper 1st Class Douglas J. Sarvis for 167 DUI arrests; and Myrtle Beach Police Patrolman 1st Class Pete Schmidt for 139 DUI arrests.

Congratulations gentlemen, that’s a lot of arrests!

Speaking of a lot of arrests, S.C. Highway Patrol Col. Kenny Lancaster said at the ceremony that DUI arrests are up about 30% in the last year. One way to get those numbers up is to increase roadblocks:

During the past two weekends, the highway patrol hosted a DUI blitz called “Operation Downtown,” which posted check-points on main roadways exiting Columbia, Charleston, and Greenville. Although the checkpoints were only operated for a 2-hour period that past two Saturday nights, nearly 100 DUI arrests were made.

Now, that’s a lot of DUI arrests. 100 in 2 hours. That’s almost one arrest per minute.  Remember though, it’s only arrests – not convictions.

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Traffic Court Judge Reprimanded for Appearance of Bias

The New York State Commission on Judicial Conduct reprimanded a Village Court Justice for delaying the disposition of traffic court cases based on the police officer’s schedules according to the Legal Profession Blog. The opinion is here.

The judge held court based on the availability of the police officer. If the officer wasn’t working on the day of court, the judge simply continued the case. His rational behind his policy was to cut down on overtime payments to the officers and thereby save the town some cash. As you can probably guess, this resulted in a huge backlog of pending cases. Over a five year period there were over 500 unresolved cases and some were as old as five years and five months. The majority of the cases, however, were two to three years old.

The judge may have had good intentions, but his conduct was improper nonetheless.

[The judge’s] blanket policy of scheduling cases solely on the officers’ schedules created a bias and/or the appearance of bias in favor of the police department…

I bet it did create the appearance of something.

This case has some pretty bad statistics in it. We can, however, learn something from it in our practice. First, I want to point out that Village Courts are similar to our Municipal and Magistrate Courts in South Carolina. Second, I think the important part of the case is the appearance of bias more so than the actual delay.

Fortunately for us, our magistrate and municipal judges have always been pretty fair with motions for continuances. However, if a police officer is not available he’s not available and the case shouldn’t be put off indefinitely.  The judge should never grant a continuance unilaterally. The defendant’s proper response is a motion to dismiss for failure to prosecute.

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Filed under Motions, Trial Practice

The Death Penalty – I’m all about it

I’m all about the death penalty. It is a punishment that is as old as time. It works and it is certainly a deterrent – at least for the person who receives it. The death penalty is a divisive subject. People are clearly for it or adamantly opposed to it. I am with that crowd that believes in it. In fact, I believe it should be used more often.  I am going to explain to you why we should keep the death penalty and why we should use it more often.

Let’s see – used more often, hmm. First, let’s figure out what is an appropriate crime for death penalty punishment. Murder, definitely. What about manslaughter? Why not? An eye for an eye I say. But wait a minute. Some manslaughter cases are really almost like an accident. Then there are those jealous spouse cases and you know that was probably justified even though they were convicted. May be we shouldn’t do it for manslaughter cases.

So, we only use it for murder cases. That’s still a lot of death penalties. The reason we should use the death penalty for murder cases is because it’s the ultimate punishment for the ultimate crime. I got to thinking while I was typing punishment that not all murders are the same and maybe some of them should be punished differently.  That makes sense too. So we should only use it for the people that committed very heinous crimes. That’s still a lot of death penalties.

So, we only use it on people that are guilty of very heinous crimes of murder. That should be easy enough and should satisfy even the staunchest death penalty opponent. I got to thinking about the word guilty while I was typing and I guess we should make sure a person is guilty before we kill them. That makes sense too. So we should only use the death penalty on people that we are sure that they are guilty.

So, we only use it on people when we are convinced of guilt (might even throw in there beyond a reasonable doubt).  I shouldn’t have thrown that in there because as I did I got to thinking about it. If we want to make sure someone is guilty before we kill them we just need to do a few things. First, make sure the state follows the rules (no hiding evidence). Second, make sure the defendant has a competent attorney. Third, we should have some type of oversight.

So, we should only use the death penalty on people that have been convicted by an impartial jury, with a fair prosecutor, a competent defense team, and after a review by the appellate and PCR courts. Well, maybe that’s not as many death penalty cases because I’ve heard that it’s difficult to have a fair death penalty case for many reasons. Some death qualified juries are vigilantes, some prosecutors are more apt to cheat in a DP case and some of the defense lawyers are asleep at the wheel. Not to mention that the appellate court doesn’t look for innocence – only errors of law. Many innocent people have been convicted, and some executed, without any errors of law.

I shouldn’t have thrown that part about fair trials and innocence in there because it got me to thinking about a couple of other aspects of a death sentence.  It’s an expensive and time consuming process. But you know, it’s worth it when you get the state to get the eye for an eye. Of course, sometimes the wrong guy gets killed. That’s just wrong.

You know I’ve been thinking about the death penalty while I typed this stuff and it has convinced me.

I’m all about getting rid of the death penalty. It is a punishment that has run its time. It doesn’t work and it is not a deterrent. The death penalty is a divisive subject. People are clearly for it or adamantly opposed to it. I am with that crowd that adamantly opposes it. In fact, I believe it should be abolished.

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Supreme Court gets another chance to look at Prosecutorial Misconduct

The Supreme Court agreed yesterday to review Connick v. Thompson, a case involving prosecutorial misconduct in a death penalty trial according to Professional Responsibility. Actually, the appeal is a civil case where the former criminal defendant was awarded $14 million dollars plus attorney fees (approximately $1 million) for his wrongful conviction and death sentence.

The misconduct? Failure to disclose evidence pursuant to Brady v. Maryland, of course. From the opinion of the U.S. Court of Appeals for the 5th Circuit:

After a jury trial lasting several days, the jury determined that the DA’s Office was deliberately indifferent to the need to train, monitor, and supervise its attorneys on Brady principles.

That pretty much sums it all up, in my opinion: failure to supervise.  Criminal law is serious business and the folks prosecuting these cases need to take it seriously. It’s not a game and they are not on the high school year book club. Life and liberty are at stake, not to mention that prosecutors are ministers of justice – not someone looking to win at all costs. Here is a quick lesson on ethics for those who haven’t been trained.

This case didn’t merely involve simple carelessness or even indifference. John Thompson was factually innocent and the prosecutors willfully withheld exculpatory evidence. As a result, Thompson spent almost twenty years on death row.

Here’s what happened. Thompson was arrested on two unrelated charges: Murder and armed robbery. The prosecutor hid blood evidence in the armed robbery case that would have exonerated Thompson. Then the prosecutor switched the order of the trials. The armed robbery was tried first and Thompson was convicted. This was a strategic decision to keep Thompson off the witness stand as well as evidence of aggravation at the sentencing phase in the death case.  It was outrageous and unethical. And it worked.

It worked until Thompson’s investigators found the evidence – one month before the execution date. It gets worse. Turns out that the former prosecutor was diagnosed with cancer and learned he had only months to live. He confessed his sins to his friend who was also a former prosecutor. This friend did nothing with the confession until after the evidence was found. The question I have is would this former prosecutor have kept this information a secret if the blood evidence had not been found? Would another innocent man have been executed?

Something has to be done about prosecutors failing to disclose evidence. It seems to be a common event now. Every time I have a serious trial scheduled to start on Monday, I always get some new discovery from the prosecutor on Friday – even though the case is two or three years old.

I don’t think this case will settle like Pottawattamie did recently and I look forward to the Supreme Court’s decision. Prosecutors will argue immunity, but that is a pretty weak argument for intentionally violating someone’s constitutional rights.

One other thought. Some prosecutors like to comment on the defendant with no prior record that he just hadn’t been caught before. Well, I wonder how many other prosecutorial misconduct cases are out there that haven’t been caught yet.

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Exorcise your demons

The best way to have success at trial is to be prepared. We all know that. But what do we do about the unexpected things that happen during the trial? The typical response to that question is that if we have thoroughly prepared, then we are up for any contingency. That’s an easy thing to say and hard thing to do. But we do it and that’s one of the many things that make trial practice a difficult life.

Many crazy things happen during a trial. That is a given. From running out of strikes during jury selection to the judge charging the jury with the wrong law, the list of possibilities is endless. You can fix some of these problems during the trial. Some, you can fix on appeal (but that doesn’t help your client today). Others, can’t be fixed and you have to deal with them. Sometimes it’s as if the whole procedure is possessed. How we deal with problems during the trial is what separates good trial lawyers from great ones.

I saw a baseball game the other night. The home team was losing. They could not get a hit. During the seventh inning stretch, a couple of the older players took all the bats and threw them out of the dugout.  What a sight. All these bats being tossed out on the field. I don’t think anyone realized what was happening or knew what to do. The batboy didn’t know what to think but he knew what to do. He dutifully picked up the bats and returned each one to the dugout.  The players each received their bat and the team went on to not only hit, but score eight runs and win the ballgame.

We can’t throw witnesses or the judge out the courthouse window, but we can figure out a way to overcome the hard times during a trial. Like the young ball players with the “new” bats, we have to figure out how to exorcise our demons. The solution is as unique as the lawyer trying the case.

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Bruton is alive and well

In 1968, the U.S. Supreme Court decided Bruton v. United States. It stands for the proposition that codefendant statements can’t be used at trial unless the codefendant testifies. The following is a good explanation:

When two defendants, A and B are tried jointly, and defendant A makes a confession that inculpates defendant B. If defendant A does not testify, then A’s statement against B is inadmissible because B will be unable to exercise his right under the Confrontation Clause to cross-examine A.

In fact, that hypothetical was taken directly from State v. King, a 2006 South Carolina Court of Appeals opinion.

I believe the proper way to make a motion under Bruton is to do it before the jury is sworn. I say this because I believe the proper remedy is to sever the trials or to suppress the statements. Once a jury is sworn, a severance is no longer available.

I tried a case recently in Marion County. Better said, I tried part of a case. There were two codefendants. Each had given statements implicating the other. I made a pretrial motion under Bruton. The trial judge took the motion under advisement, the jury was sworn and we proceeded with the trial.

I’ve never had it happen like that before. Usually the judge rules right away. As a result of the judge’s delay in ruling, one of the remedies (severance) was now gone. Jeopardy has attached and the statements will be admitted, or not. I do get the judge to agree with me that the prosecutor should not mention the statements until the judge has ruled.

I believe the reason for the delayed ruling was in part because of very compelling argument by the prosecutor that Bruton didn’t apply. He cited Lee v. Illinois and Cruz v. New York, two U.S. Supreme Court cases decided in 1986 and 1987 respectively. According to the prosecutor, if the statements contain sufficient interlocking facts, they become reliable and are therefore, admissible.

The problem with that logic is that codefendant’s statements are notoriously unreliable and are absolutely hearsay. Oh yeah, and you can’t cross-examine them. Ultimately, the judge ruled in our favor and the statements were suppressed.

I am now preparing for another trial that is very similar to the one I talked about earlier. Incredulously, the prosecutor just informed me that he will be using the codefendant’s statements against my client. I screamed out to him that Bruton is alive and well. I don’t think he knew what I was talking about.

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