South Carolina Criminal Attorney Blog

Small towns have the same problems as the big ones. In Prosperity, South Carolina, which is about 180 miles from Myrtle Beach, the Police Chief, Graig Nelson, resigned. Now, SLED, which stands for State Law Enforcement Division, is investigate. Benji Sease, who is now the acting chief, told a local radio station that Chief Nelson stepped down in relation to certain money that is apparently missing. The radio station was informed that the money was kept in a locker that is part of the stored evidence. Nelson was previously investigated last year in an incident that reportedly involved him running over his ex-mother-in-law's foot. Reports so far have not stated if he has retained an attorney, as one might expect since this has the obvious appearance of a criminal investigation. This is just one of many different types of cases that SLED investigates. In the Mission Statement on their website, they say that their primary function is to assist law enforcement agencies with manpower and technology and to investigate matters for the State as needed by the Attorney General and the Governor.

What is the worse thing a defendant can do while out on Bond? Simple. Commit the same crime already charged with again.

Its rather hard for a criminal defense lawyer to convince a judge that hie/her client learned their lesson when they commit the exact same crime while out on bond, which is what the criminal defense lawyers tried to do this week when the two defendants pled guilty. That is what Elysia Nolan and Maurice Small did. After robbing three banks in May 2008, in the Myrtle Beach area, and just short of one month out on bond, the two did it again in Murrells Inlet when they robbed the Branch Banking and Trust. The judge was understandably in his rights in not show a great deal of symphthy.

Ms. Nolan received a sentence of seven years and Mr. Small got seven years and three months. They will serve their time in a federal prison.

Why on earth anyone would want to rob a bank is beyond me. Banks have every safe guard and devise imaginable. They are all equipped with videos, silent alarms, dye packs, and you never hear about anyone taking very much money. The tellers always keep a small amount of cash in their drawers and the robbers never seem to be able to get to the big stash of money in the safe. Then once there is a robbery, its investigated by the FBI, is handled in federal court, and is diligently and aggressively investigated using every piece of technology imaginable. Then once an arrest is made, the cases are prosecuted in federal court with the same aggressiveness. Oh well.

It appears that ol Iron Mike had another scrape outside of the ring yesterday. Altercations outside the ring are nothing new for Mike Tyson. This time it was with a photographer that Mike claims was being aggressive towards his wife and 10 month old child. For that matter, altercations involving photographers is nothing new as well.

I didn't see anything in the news articles describing exactly what the photographer did that amounted to being aggressive towards Tyson's family. If this was truely the case, then Tyson's actions might be legally justified. In South Carolina its called, "Defense of Others." Although this is not as common as Self Defense, it is nevertheless asserted by South Carolina criminal defense attorneys. There are other defenses that attorney's assert in Assault and Battery and Criminal Domestic Violence, Murder, and other violent crimes.

The photographer, Tony Echeverria, also said that he was hit by Tyson four times. News reports stated that Echeverria sustained a cut on his forehead. Dispite having retired from the ring and not appearing to be in the best shape of his life, I would imagine that he could still inflict some extreamley serious damage to the average man. If he did hit the photographer four times, then I'd be surprised that a minor cut on his forehead was the extent of his injuries. He should feel lucky that he walked away with both ears.

The prosecutors handing the 13-count murder charges against Maj. Nidal Malik Hasan, announced this week they will seek the death penalty against him.

With this being in the news today, I thought I'd explain when the law allows the prosecutors to seek the death penalty and when it does

Here in South Carolina, there are 12 different circumstances in which the prosecution can seek the death penalty. If one of these 12 situations does not exist, then the prosecution has no legal grounds for the death penalty and the worse the defendant can be sentenced to is life in prison.

In order for one of the 12 situations to apply, the murder must have happened in relation something else. For example, if the defendant committed murder while in the act of kidnaping, criminal sexual conduct (rape) or robbery with a deadly weapon, the death penalty would apply. These are specific crimes and there are several more that applies. It also depends on who the victim was. They can seek the death penalty if the victim was a law enforcement officer, a judicial officer such as a solicitor, judge, lawyer, or other officer of the court, who was killed in connection to performing their official duties, and this includes their family members. There are several more instances of who the person was that would give rise to this.

The media almost never explains any of this. They report on the crime and they state when someone will be seeking the death penalty, but they never seem to elaborate on why one person is facing it and not another.

Arguments were made this week in a Florida court on behalf of two children that were sentenced to life in prison without the possibility of parole. The lawyers argued that the same reasoning that the Supreme Court used for not allowing children under 18 to be given a death sentence, should be extended with regards to live in prison without parole.

The statistics are staggering. The degree of controversy is staggering. Just the mere existence of the issue is staggering.

In the US there are over 2,200 children that have been sentenced life to prison without the possibility of parole, with some being as young as 13.

In the Florida case, Joe Sullivan, at the age of 13, was found guilty of sexual battery with a victim that was 72 years old. This took place after a burglary. The previous two years leading up to this conviction he was convicted of 17 crimes with a number of them being serious felonies. He is also mentally disabled.

Terrance Graham, who was 16 at the time of the crime, committed Armed Robbery at a restaurant. Following a year in jail for that conviction, he then was found in violation of his probation when he committed a second robbery in which he used a gun.

In 2005, the Supreme Court held it was unconstitutional to execute someone under the age of 18, stating it would be Cruel and Unusual Punishment, reasoning that minors cannot be held as culpable as adults and there was far more possibilities for reform than adults.

Its interesting to note that the United States stands out from most of the world. Amnesty International states that 135 countries do not impose life sentences for minors. And, pursuant to a treaty of the United Nations, in which children are forbidden from life sentences without parole, the United States is the only country that has not signed the treaty.

A few years ago the local Sheriff Department received a domestic call in Georgetown. Just like countless ones before. A woman crying and a man in the background screaming, with an occasional bang or thump as though someone had just thrown a piece of furniture. A few minutes later the Sheriff deputies arrived and knocked on the front door. The door opened and standing there was a woman with bruises on her face and some overturned furniture. The man, with no marks on his face told the police that he had no choice and was just defending himself and that he had hit her so that she would stop hitting him. So the police arrested him and took him jail. Once at the jail, he goes in front of a bond judge who not only sets the bond, but issues a Restraining Order. Now he not only cannot return to his home, but isn't allowed to call his wife or even go visit his children.

This is just one of a thousand scenarios. It could be where the woman is the aggressor. Or a maybe they both were. Maybe there was self-defense. Sometimes the couple are in a car, or in the parking lot of a bar, or somewhere else. One thing is almost always the same..............there's alcohol involved.

After the defendant is bonded out of jail, he'll then go retain an attorney. With half of these cases, the client will then explain to the attorney that this was an isolated incident and he wants to go home. He'll explain how he has already talked to his wife or girlfriend and she isn't mad or upset with him and she wants him home too. He tells the attorney that he has a limited income and can't afford his own place. Then he will ask the attorney how long this is going to take and stresses the importance of getting this case over with so they can resume their lives together. So he can go back to his house and quit living out of a suit case. He wants the attorney to contact the solicitor and explain that there was no real harm done, she isn't upset with him, she loves him and he should be allowed to return to him house. Now the attorney has to break to him the bad news. Its just not that simple.

I try to explain to my new client in these situations that yes, there are isolated incidences and the solicitor knows that. There are times when people just "lose it" for lack of a better term. And if given a chance, they can kiss and make up, and this situation will never repeat itself. But on the other hand, there are times where this is not an isolated incident. Maybe its happened before and may it hasn't. The sad truth of the matter is, there are people that cannot handle their alcohol and violence against loved ones is almost inevitable. It might be a week or it might be a year. But with some people it is just a matter of time and it is going to happen. And with yet other people, there will be violence in the future even without alcohol, although that seems to be the exception.

So here is what lawyers try to get their clients to understand. The solicitor does not know you and does not know your wife or girlfriend. The solicitor has a duty to protect and to prosecute. If the solicitor was to dismiss the case a week after it happened, and then a month later, the defendant was to beat the living daylights out of the victim, then the solicitor certainly wouldn't look too good and certainly didn't do his or her job very well. That brings me back to the first paragraph of this article where Georgetown County Sheriff Deputies were dispatched to the scene of a Criminal Domestic Violence call. In that particular case the victim contacted the solicitor's office a short time after the arrest and pled with them to dismiss the charge. She explained that she simply could not afford the mortgage payments and all of the other costs of keeping the house up and running, and that she desperately needed her husband's help with the kids. Most important, she made is very clear that she did not fear for her safety and there was no danger whatsoever with the defendant returning to the home. She must have been pretty convincing because the solicitor did just that. They dismissed the charge and with it, the Retraining Order was rescinded. The husband was then allowed to return to his home and everything was fine..............for a while.

Eight months after that incident, the Georgetown County Sheriff Deputies were dispatched back to that residence again. However this time she did not open the front door like she did the first time. She couldn't. She was laying on the hallway floor with the back of her head split open from a baseball bat.

South Carolina with all states, are making very strong drives to protect victims of domestic violence. Here in Horry County, where Myrtle Beach is located, we have what is called, the Criminal Domestic Violence Court. We have solicitors that have been assigned to work the cases in that court and have a judge appointed just for that purpose. The laws have changed and policies have been put in place by not only the prosecutors but by Law Enforcement as well. When you stop to consider the Georgetown incident, you really can't blame anyone for taking such a strong approach.

The problem with these new laws and policies is that there really are people who have experienced an isolated incident. Not that what happened is in any way justified by it being isolated, but isolated nevertheless. Obviously there is an element of unfairness when a person who will never do such a thing again is grouped with those who do have a likelihood of repeating that behavior. But that is simply unavoidable. The solicitor's office operates on the principle of Better Safe than Sorry.

All of these cases are different and need to be treated different. The facts vary, the emotions vary, the evidence varies. But one thing remains the same. The prosecution is taking a hard stand with these cases. If a person charged with this crime truly does not feel they are guilty, then they may want to request a jury trial and will then have to wait for that trial. All the while they will not be allowed to return home. There will be financial hardships for not only them but for the other spouse as well. And of course its not fair to the kids either. There are certain advantages however with going this route, as it gives the victim time to cool off and they have been known to not show for court after some time has past. Often when the victim does not show for court, the case gets dismissed. Remember that most of these incidents happen in front of witnesses. By and large the only witness to the actual violence is the victim. Without the victim's testimony its extremely hard to prosecute.

Undoubtably requesting a jury trial and going through this waiting period will prompt a lot of these people to plead guilty when maybe they shouldn't, all for the sake of getting the matter behind them, returning to their homes and rejoining their families. And of course there will be the criminal record, which has also changed with respect to an expungement, which is possible now with certain First Offense CDV convictions.

Again, each case needs to be considered and a plan made based on the facts, circumstances and evidence of the particular case. The only thing that is for sure and always remains the same with these cases is that there are no winners.

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The short answer is, Yes. We all know that things such as weak evidence, possible defenses, questionable witnesses, various legal issues, and so forth can prompt the prosecutor to reduce a criminal charge. But don't limit yourself. There's sometimes other and rather novel approaches to this. This is best illustrated by sharing an experience I just had this week. The following summarizes how an attorney can sometimes go with the less common approach.

The judge just grinned and the prosecutor came right out and laughed. That is how ridiculous they both thought the idea of probation was when the prosecutor told the judge at the bench prior to the sentencing hearing that the attorney was going to ask the judge to give his two clients probation when they were arrested for Trafficing.

Just before the guilty plea hearing started, the prosecutor and myself decided we should approach the bench (off the record), and give him the heads-up on why the Charge of Trafficing Cocaine was being reduced to Possession with Intent to Distribute. That is next to never done, which is exactly why the prosecutor was laughing when he told the judge at the bench what I was going to ask for.

Here is what happened. I represented a husband and wife. He was 64 and she was 57. They were both charged with Trafficing Cocaine out of their home. It was enough cocaine that there was a mandatory minimum sentence of seven years, on a 7 to 25 year charge. After they hired me I looked at the discovery and it was a text book arrest. Everything from the surveillance to the search warrant to the Miranda to the preliminary hearing. My point is that there was no wiggle room as there was no defense whatsoever. This would have been a slam dunk for the prosecutor if taken to trial.

The prosecutor offered my clients the minimum of seven years. Although that is the lowest they could have received for that particular charge under the law, its still hard to accept. Seven years is a very long time in prison when you are convinced that your client's have learned their lesson and will never be arrested again. And that was how I felt.

Every time my clients would come into my office, the husband would be carrying an oxygen tank that every couple seconds would make this hissing sound that I couldn't stand. And the wife was so thin she looked like she just got run over by one of the machines that smooths out new pavement. So I started asking about their health. Come to find out that he had seven heart attacks, was a diabetic and had some disease in which he was in the "last stage" of. I didn't understand the disease, but I did understand how awful the term, "last stage" sounded. When I asked her, she replied with 3 or 4 medical terms that I sill cannot pronounce. So what I did was I asked them both to go their doctor and have the doctor write me a letter outlining how poor their health was.

I then sent the doctor's letters to the prosecutor on the case and I explained that not only was there almost a total lack of a criminal record, and one was 64 and one was 57, and in my humble opinion it was likely that at least half of the husband and wife team would not outlive a seven year prison sentence. And based on that, would they consider reducing the charge to something lessor that did not carry a minimum sentence.

Much to my surprise, in fact the only time I have ever heard of such a thing, about a week later I received a letter from the solicitor who explained that he took my letter to his boss and his boss gave him permission to reduce their charges to Possession with Intent to Distribute, which did not carry a minimum sentence. He went on to explain that my client could plead to this, but that he was still going to request that they get seven years. They call this a "substantial departure." So when we were at the judge's bench explaining what was going on, that is when the judge grinned and the solicitor laughed. In all honesty, I didn't fault the solicitor for finding it funny. Having a judge give a defendant probation who was arrested for the most serious drug dealing statute on the books, is kind of funny when you stop to think about how remote the chances are.

About 20 minutes later, the solicitor wasn't laughing anymore. The hearing was over and I had explained that only one of them had a prior arrest and it was only one arrest and it was 14 long years ago, and the two defendants were 64 and 57, and just how terrible their health was, and what a shame it would be if one of them died in prison for this, and how I was convinced that these two would never see the inside of a courtroom again if you give them probation, and we could in fact have justice if they were put on probation, the judge did just that.

I take my hat off to the solicitor and to his boss that gave the approval for reducing the charge. That is not something that they normally do and they were under no requirement to do such a thing whatsoever. I was quite impressed with their sense of fairness and compassion.

So I suppose that the moral of the story is that the evidence, the defendant's record, possible defenses, and so forth, although it the typical and common basis for seeking a reduction in the charges, is not the only basis of negotiations and requests for a reduction. Never limit yourself and don't be afraid of being creative. Its certainly can worth a try.

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