Wednesday, February 28, 2007

Final Orders and Record on Appeal

In Johnson v. SC Dept of Probation, the Supreme Court affirmed the Court of Appeals decision to dismiss an appeal because the final order was not included in the record on appeal. The Department argued below that absence of a favorable recommendation from a probation officer deprives the circuit court of subject matter jurisdiction to grant early termination of a person's probation. The record on appeal--prepared by the Department--contained the full transcript of the hearing before the trial court, including the Department’s subject matter jurisdiction argument and the trial court's oral ruling on the issue, but it did not include the trial court's final order in the record. Observing that a ruling is only final when reduced to writing and entered in the record, the Supreme Court held that because the Department failed to include the trial court's final order in the record on appeal, the court of appeals properly decided the case without reaching the merits.

The Supreme Court then went on to show why the Department's subject matter jurisdiction was wrong anyway. The Department argued that the circuit court lacked subject matter jurisdiction to consider Johnson's request because the request was not accompanied by a recommendation from the agent in charge of the responsible county probation office in support of early termination. This argument is based upon the language of S.C. Code Ann. 24-23-130 (Supp. 2005), which provides that "[u]pon the satisfactory fulfillment of the conditions of probation, the court, with the recommendation of the agent in charge of the responsible county probation office, may terminate the probationer or supervised prisoner from supervision." The Supreme Court held that the circuit court’s power and authority to hear cases involving probation derives from Article V, § 11 of the South Carolina Constitution and 24-21-410 of the Code. The statute cited by the Department did not concern subject matter jurisdiction.

Pilot Magistrate Mediation Program in Lexington and Richland Counties

This is a bad idea. The SC Supreme Court has a pilot program of mandatory mediation in South Carolina's magistrate's court. Under the new rules, for a couple of thousand dollar claim, a pro se plaintiff can require that a representative of the insurance company (if there is one involved) attend the mediation. The price of a hotel room and plane ticket for the adjuster in many cases might exceed the amount claimed by the plaintiff. Hence, in insurance cases, the defense could be forced into settlement to avoid the expenses of mediation.

To highlight the wild wild west nature of magistrate's court, the Supreme Court has adopted the following in this pilot program:

The parties and any other person present shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial or other proceeding, any oral or written communications having occurred in a mediation proceeding. This does not prohibit the following:

(4) Threats of harm or attempts to inflict physical harm made during the mediation sessions;

Yep, South Carolina's magistrate's courts are a thing of beauty.

Tuesday, February 27, 2007

S.C. Court of Appeals issues a reminder on motions in limine and error preservation

In State v. Govan, Govan argued that the trial court erred in denying his motions to suppress both his show-up identification as unduly suggestive and unreliable and the resulting in-court identification as tainted by the prior suggestive show-up. What really interests me in this case is the error preservation issue. Govan's attorney moved in limine to suppress the identifications of his client, and this motion was denied. However, the lawyer did not object when the initial witness following opening statements presented the identifications to the jury. Hence, the State argued that the identification issue was not properly preserved. The Court of Appeals disagreed. Because no evidence was presented between the ruling and the witness' testimony, there was no basis for the trial court to change its ruling. Thus, the motion was really not a motion in limine. The trial court's ruling in this instance was in no way preliminary, but to the contrary, was a final ruling.

The Court went on to find the show-up identification was not unduly suggestive.

S.C. Supreme Court holds that inmates in work programs may not bring Wage Payment Act Claims

In Williams v. SCDOC, a class action was commenced on behalf of inmates in custody of the South Carolina Department of Corrections. The inmates participated in a prison industry program operated pursuant to DOC's contract with respondent Williams Technologies, Inc. (WTI). The Inmates sued WTA and the SCDOIC arguing that claim they were underpaid for their labor and thus entitled to lost wages under the South Carolina Payment of Wages Act. The trial court dismissed the inmates suit and the state Supreme Court affirmed.

The Court held that the inmates could not maintain an action against WTI under the Payment of Wages Act since WTI is not the entity responsible for paying their wages. The contract between the SCDOC and WTI provided that WTI would pay DOC a flat rate of $4.00 per hour per inmate and that DOC was responsible to pay inmate workers and handle payroll deductions.

In dissent, Justice Pleicones forcefully argued that to hold that the payment of wages is exclusively within the control of the DOC ignores the language of S.C. Code Ann. 24-3-40, which provides that "the employer of a prisoner authorized to work … in a prison industry program … shall pay the prisoner's wages directly to the Department of Corrections" and then requires the DOC to distribute those wages to inmates on behalf of the employer. Thus, the ultimate responsibility for paying wages falls on the prison industry sponsor, while the DOC merely acts as a conduit for payment to the inmates. Hence, Pleicones would have allowed the suit to proceed forward.

My take on this is that Justice Pleicones is right on the law. However, knowing prisoners, once they learned of this new "right to sue," our courts would be inundated with Wage Payment Act Claims and thus the majority does not want to give them a tool with which to abuse the system.

Monday, February 26, 2007

Legal Notes from around the web

Check out Blawg Review #97, which includes two of my posts from last week regarding the Phillip Morris decision and consideration of a Compassionate Use Act in South Carolina. This week's review is hosted by Health Care Law Blog and has much to offer.

Fourth Circuit issues opinion on grouping of offenses and reduction of sentence

In UNITED STATES v. HARGROVE, Keith Hargrove pleaded guilty to three drug counts and was then tried and convicted of possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c) (2000). In calculating his guidelines sentence, the district court denied Hargrove a two-level reduction in offense level for the drug counts for acceptance responsibility. The Fourth Circuit vacated and remanded because the district court erred in believing that it had no legal authority to grant the reduction with respect to the drug offenses after Hargrove went trial on the 924(c) firearm charge. According to the panel:

He has pleaded guilty and did not go to trial on the narcotics counts grouped under the guidelines, which together constitute the only "offense" for purposes of 3E1.1. Thus, Hargrove has accepted responsibility for his 3E1.1 offense and so is eligible for the reduction. To be sure, he did proceed to trial on the 924(c) count, but that does not render him ineligible for the reduction because it is not subject to grouping with the guidelines offenses, is not factored into determining the guidelines offense level, and cannot be the basis for an acceptance of responsibility reduction. Because Hargrove accepted responsibility for all of the drug counts-- the counts grouped together under the guidelines that constitute the"offense" for the purposes of 3E1.1 --he was eligible for the reduction. The district court thus erred in concluding that it did not have the legal authority to grant Hargrove the reduction.

Chief Judge Wilikins dissented. He would have ruled that in determining whether to grant the reduction, the district court could consider the fact that Hargrove proceeded to trial and contested the facts underlying his 924(c) offense.

Friday, February 23, 2007

South Carolina Court of Appeals holds that attorney owes a duty to third parties to distribute settlement proceeds

In Moore v. Weinberg, after the settlement of litigation and receipt of proceeds, attorney distributed all the money and in the process overlooked an Assignment, which he drafted, of a portion of the proceeds to Wheeler. Wheeler sued the attorney for negligence. The trial court granted summary judgment in favor of the attorney and the Court of appeals reversed. According to the panel, the attorney drafted the Assignment and did not dispute that he had notice of it. The Rules of Professional Conduct and law from other jurisdictions established that the attorney owed a duty to Moore to disburse the funds. we conclude Weinberg owed Moore a duty to disburse the assigned funds to Moore.

The applicable part of Rule 1.15 provides:

(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive . . . .
(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

Hence, the grant of summary judgment was reversed.

Thursday, February 22, 2007

Chief Justice Toal calls on General Assembly to create more judges

From the Daily Comet:

Saying South Carolina's courts are in crisis, Toal reiterated her request for three additional judges for both the Circuit Court and Family Court levels. She asked lawmakers to make them at-large positions, so they can rotate to where they're needed most.

"South Carolina has fewer judges and a heavier case load per judge than any other court system in the nation," she said.

S.C. Supreme Court affirms trial judge's decision to excuse equivocal juror from death penalty case

In State v. Lindsey, Lindsey appealed his conviction and sentence of death on the ground that the trial judge erroneously excluded a juror because during voir dire the juror equivocated on whether he could impose the death penalty. The trial judge found that the juror's belief that life in prison was worse than death would substantially impair the juror's ability to follow the law as instructed. He further noted that when asked about giving the death penalty, the juror "took a very big deep [breath] and exhaled as if he were very uncertain as to whether or not he could do that." The judge concluded "from watching him" and considering his inconsistent responses, that the juror should be excused.

The Supreme Court affirmed the trial court's handling of the matter. The juror's equivocal views regarding the death penalty, his responses favoring a life sentence despite the facts of the case, and his noted hesitation when asked if he could vote for death, are a reasonable basis for the trial judge’s conclusion that the juror's views would substantially impair his ability to act as an impartial juror.

Wednesday, February 21, 2007

S.C. Supreme Court offers more guiadance on what is impermissible during closing arguments

In State v. Northcutt, Northcutt was found guilty of murdering an infant and was sentenced to death. However, because of an improper closing argument, the South Carolina Supreme Court reversed and remanded for a new sentencing proceeding. In closing, the solicitor made the following improper comments/actions:

1. the solicitor suggested declaring an "open season on babies in Lexington County" if the death penalty was not returned.

2. The solicitor also repeatedly told the jury he "expects" the death penalty and, in doing so, ignored precedent which rebukes such an imposition of the solicitor's personal belief.

3. The solicitor concluded his argument by producing a large black shroud and draping it over the baby's crib. He wheeled the crib from the courtroom in a staged funeral procession.

These comments and actions, according to the court, so infected the trial with unfairness as to make the resulting conviction a denial of due process.

SCOTUS holds that a petition for cert. does not toll AEDPA's limittaions period in 2254 actions

In LAWRENCE v. FLORIDA, SCOTUS considered the effect of a petition for a writ of certiorari on AEDPA's tolling provisions. Congress established a 1-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment, 28 U. S. C. 2244(d), and further provided that the limitations period is tolled while an "application for State post-conviction or other collateral review" "is pending." Lawrence argued that a state application is still "pending" when the state courts have entered a final judgment on the matter but a petition for certiorari has been filed in the United States Supreme Court.

SCOTUS held that a petition for certiorari is not part of the state post-conviction proceeding and thus a petition for cert does not toll the 1-year statute of limitations. According to Justice Thomas:

This Court is not a part of a "State's post-conviction procedures." State review ends when the state courts have finally resolved an application for state post conviction relief. After the State's highest court has issued its mandate or denied review, no other state avenues for relief remain open. And an application for state post conviction review no longer exists. All that remains is a separate certiorari petition pending before a federal court.

Tuesday, February 20, 2007

After Phillip Morris: What can a jury consider for punitive damages purposes? SCOTUS sets an unworkable standard

In PHILIP MORRIS USA v. WILLIAMS, the Supreme Court held that the Constitution's Due Process Clause prohibits a jury from basing a punitive damages award upon its desire to punish the defendant for harming persons who are not before the court. Punishment for acts that do not harm the plaintiff, according to the Court, would amount to a taking of "property" from the defendant without due process of law. So far so good.

However, the Court went on to hold that evidence of actual harm to non-parties is relevant to the reprehensibility prong of BMW v. Gore. So, while the jury may listen to evidence of harms to others, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on non-parties. The Due Process Clause requires States to provide assurance that juries are not punishing a defendant for harm caused to strangers to the litigation. Unfortunately, the Court gives no guidance on just how trial judges are to administer this standard.

Philip Morris argued that the following instructions should have been given by the trial court:

"you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is" between Philip Morris' punishable misconduct and harm caused to Jesse Williams, "[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims . . . ."

I do not interpret the majority opinion as approving or disapproving of this instruction. But, even if we assume it is a proper instruction, this is no more than a fiction. Only a fool would believe that a jury faced with such a limiting instruction would actually abide by it. (Admittedly, such fictions are employed all the time by judges, but this fiction can implicate enormous sums of money). A better course for the High Court, in my opinion, would have been to exclude all evidence of harm to non-parties or to permit full consideration of harm to others for punitive damages purposes. As it stands, the Court has crafted an unworkable standard.

In actuality, a trial judge has but three options when considering evidence of harms to non-parties: (1) admit the evidence and give a limiting instruction similar to the one above;(2) exclude evidence of harm to non-parties on an 403-type analysis (i.e., such evidence is unduly prejudicial and will be considered by the jury in awarding damages; or (3) permit evidence of harm to non-parties on the grounds that it is not unduly prejudicial and that the evidence will not be a major factor in the jury's award of punitive damages. Depending on the circumstances of a case, all three might be viable options. We are not dealing with a bright-line rule here.

Only one thing is certain after this latest SCOTUS pronouncement on punitive damages: There will be more litigation and conflicting opinions as the trial and appellate courts attempt handle evidence of acts not harming the plaintiff.

South Carolina lawmakers review bill to legalize marijuana for medical use

According to WPDE, Marijuana could be a prescription drug, if a Lowcountry senator's bill passes through South Carolina Legislature. A Myrtle Beach woman, whose husband has pancreatic cancer, is fighting to see the bill passed. Sandy Gabriel's husband was diagnosed six years ago, and she's been his caretaker ever since. This month, in between his many surgeries and doctor's appointments, she travels to the state capital, pushing a bill that would legalize medical use of marijuana. Sandy says, "I think medical marijuana does help with pain, nausea, depression, anxiety, and most of all, appetite."

Of course, even if the bill passes (likely not in conservative South Carolina), Gonzales v. Raich is still on the books. In this landmark Commerce Clause case, the Supreme Court affirmed that Congress’ power to regulate local, intrastate matters is boundless. The question presented in Raich was whether Congress may prohibit the medicinal use of cannabis via the federal Controlled Substances Act--even if the cannabis at issue is grown using only soil, water, nutrients, tools, and supplies made or originating in a single state, never crosses state lines, and never is sold in the stream of commerce.

Writing for the Court, Justice John Paul Stevens noted that "the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety." "[P]roduction of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity." Hence, the Controlled Substances Act will trump any Compassionate Use Act passed in South Carolina.

Sunday, February 18, 2007

Blawg Review #96

Welcome to this Presidents Day edition of Blawg Review. The South Carolina Appellate Law Blog is pleased to have y'all drop by. As the tag line indicates, my Blog follows the opinions of SCOTUS, the Fourth Circuit, and the South Carolina appellate courts. I also try to mix in a bit of fun and other legal news along the way.

As for me, I practice in Greenville, South Carolina, in the areas of civil and criminal appeals, health care, and professional negligence. A commitment to pro bono legal services is an important part of my practice. I serve as a pro bono special prosecutor for the state Attorney General in criminal domestic violence cases and also usually have at least one or two pro bono criminal appeals going at the same time. But for those darn Rules of Professional Conduct, I could convict a wife-beater and then represent him on appeal!

For those of you who don't know, Blawg Review is a collection of the best legal posts from around the blogosphere. I thank the editors for giving me this opportunity to host. I have divided the posts into broad categories reflecting the interests on the law blogging community during the past week. Each category will be dedicated to a different President in honor of the holiday. Without further delay, let's rock and roll with Blawg Review # 96.


This category is dedicated to William Howard Taft for his services as POTUS and on SCOTUS!

Let's start with the big boys and girls in the black robes. They have been quiet lately, but we can soon expect things to heat up.

Orin Kerr at the Volokh Conspiracy questions whether Congress can force the Supremes to televise oral argument and other proceedings. Ilya Somin concurs with Kerr that Congress does have the power if it is so inclined. Hmmmm... I wonder if Justice Thomas would ask more questions if he was on camera?

Lyle Denniston of SCOTUS Blog reported on a new Guantanamo detainee case coming before the Supreme Court, this time involving a Chinese citizen from a persecuted ethnic minority group there.

IP Law

This section is dedicated to George Washington, who signed the First United States Patent Grant on July 31, 1790.

Trademark law rears its ugly head in the world of rock! Michael Atkins reported a case of a "band on the run" after discovering that their name was taken already by another band.

William Patry discussed an important case which considered when a copyright renewal term commences.

Congress has approved the creation of patent-specific judicial training but Tim Lee and others were not convinced that expertise is always a good thing.

Marty Schwimmer noted a copyright infringement dust-up between comedians Joe Rogan and Carlos Mencia. The Techdirt post has more details, including Mencia's DMCA takedown of Rogan's YouTube video documenting his claims.

At the Fraser Gallery, Doug Sanford is exhibiting photographs of his exgirlfriend's emails to him. She wrote them after she learned of his infidelities and ended her relationship with him. Transcending Gender reported that the exgirlfriend threatened legal action against Sanford and the gallery for copyright infringement; she claimed the words of the email were her property.

The fight over Pooh Bear heats up. The Likelihood of Confusion tried to make this legal fight a little less confusing. But since I am not an IP lawyer, I remain confused.....

GI protection and how it can be accomplished is discussed at IP Notions.

The Net

Depending on how you handle hanging chads, Al Gore could have been president of the US. Because of his contribution in inventing the Internet, this section is dedicated to Albert.

Over at Concurring Opinions, you'll find a nice list of the best and worst of Internet laws.

Eric Turkewitz reported that the FDA is becoming concerned about drugs many Americans are buying over the internet. Many folks, it seems, are getting sick.

Law Firm Life

This category is dedicated to "His Rotundity" John Adams--the first lawyer to serve as POTUS.

Anonymous Lawyer knows the deal on life at a big law firm. I tell all students who ask me about law school to read his book and his blog. This week it appears AL was stabbed by an aggrieved associate . . . again. It seems AL ruined the man's life or something. A partner ruining an associate's life?? Come on--get real.

Speaking of being an arse, lawyers can behave like kids in a deposition, and Stephen Bainbridge discussed the latest case of misbehavior.

The formerly anonymous (and still great) Enrico Schafer mused that lawyers can be the most unreasonable people on Earth and that this profession can cost you a lot, including your personality.

Money Money Money. Associate salaries are in the news. David Lat at Abovethelaw noted that some have finally put the associate salary rise in proper perspective by divvying up the increase on a per-partner basis and calculating the number of bespoke suits each partner will have to forgo to pay for their greedy associates.

If you want to avoid big firms issues, should you consider hanging out a shingle right out of school? Susan Liebel discusses the risks and rewards.

Are there more jerks in law than in other occupations? Chuck Newton considers the issues.

Is it enough to be a "good lawyer" if you want to have those great cases?? Legal Marketing Blog discusses how to get work through the doors.

Many female lawyers are opting out of big firm life. I always knew women were smarter than men. Legal Profession Blog has the scoop.

Charles Green answers the old client question "why should we choose you?"

Honest Abe wanted to discourage litigation? So reported this post at Overlawyered.

Want to use a nickname or moniker in advertising in NY? Well, you better read this post from Sui Generis before you begin.

Ever wondered how a law firm should be designed to properly impress the clients? Starslate gives us the details with this post.

This post from veryLegal is worth a block quote. Preach it!

Now we will take a closer look and find out what lawyers say about their jobs. Lawyers complain of a lack of control, being sandwiched between judges and clients. They complain about the increasing hostility between fellow lawyers, a lack of loyalty between partners, and a diminishing public image(all those lawyer jokes don’t help). But paramount to all these, they complain about the torturous hours.

Lets get straight to the crux then, the hours. Lawyers nowadays just do not have enough time for their families and themselves at all. They complain of being sacrificed to the company instead of dedicating themselves to it. Whats the normal working hours like for a big firm associate? Think at least 12 hours, six days a week. Now we are beginning to understand a little of the problem.

International Issues

This category is dedicated to Woodrow Wilson and his legacy of international intervention.

Roger Alford tells us about a habeas case which prevented the transfer of an American citizen to the jurisdiction of the Iraqi courts.

Peter Spiro over at Opinio Juris attempted to determine, despite a thin Senatorial record, where President Obama might stand on international law; his hiring choices thus far and his stance on the Darfur genocide might offer some insights.

Torture ought not even be debated, but in Dubya's war on terror it unfortunately is. Peggy McGuinness discussed how the "ticking time bomb" myth shapes our perceptions about the acceptability and utility of torture.

Geeklawyer, the IP Barrister, is putting together a conference for Brit bloggers in May--he's been working really hard on it. I wouldn't mind having a pint or two and discussing blogging with that distinguished line up.

So you want to break into international law or China law? China Law Blog has some tips.


I dedicate this section to Mr. Jefferson--my favorite president in US History.

Eric Muller posted a "cool" letter he found relating to the Gibbons v. Ogden decision and noted the over-the-top oration employed during the hearing. Ann Althouse found that those involved didn't shy away from the double entendres she's noted in teaching the decision.

Should the Framers have ditched the Vice Presidency? Sandy Levinson, in considering a hypothetical redesign of the Constitution, wondered what value (if any) the vice-presidency has.

Mary Dudziak at Legal History Blog discussed the recently-discovered unsuccessful efforts of Otto Frank to gain entry into the US for Anne and the rest of the Frank family. Eric Muller of Is that legal? related his ancestor's similar story during the Holocaust and lamented "the sadness of failed rescue."

Legal Writing

This section is dedicated to Andrew Johnson, who taught himself to read and never spent one day in formal education.

For an interesting take on how court rules hamper the efforts of strong legal writers, see Attorney Mark Herrmann's recent blog post. Herrmann refers specifically to the work of two talented writers on the Seventh Circuit's bench, writers who know when to break the rules.

Lawrence Solum blogged the "Writing About the Law" conference at New York Law School, a conference attended by fellow bloggers Randy Barnett (of Volokh Conspiracy) and Ann Althouse.


This section is dedicated to FDR who was very successful at keeping himself employed.

Michael Fitzgibbon highlighted several key elements regarding the tort of negligent hiring. This tort is based upon the theory that an employer has a duty to protect its employees and customers from other employees that the employer has reason to believe, or should have reason to believe, pose a threat to others.

Overlawyered reported that things don't work out to well when government prohibits employers from checking into an applicants background.

Ted Frank informed us that a case involving death of a policeman sickened after working "fourteen hour days in the smoldering pit" at the World Trade Center site took a strange turn as it was revealed that the man only worked a few shifts for overtime pay and only months after 9/11 when the "smoldering pit" was no longer smoldering.


We are wrapping up fast here and that's a good feeling. So let's dedicate this final section to the Era of Good Feeling and James Monroe.

Unintended consequences of Sarbanes-Oxley--The law designed to increase transparency has resulted in companies keeping secrets from investors by selling bonds, or debt securities, that aren't registered with the Securities and Exchange. Leon Gettler tells us all about it.

Hanno Kaiser at the Antitrust Review criticizes Louis Kaplow and Carl Shapiro's paper "Antitrust" for failing to pay attention to "the ideological underpinnings of antitrust and the normative distributive commitments that are part and parcel of economic theory. "

MLB and the beer advertisements: They say their players should not sell suds, but Bud Selig has no issues with Miller Lite advertising during baseball games. Sports Law Blog has a good post on this and related issues.

Congress considers permitting federal reimbursement for midwife services. The Mommy Blog tells us about the proposed legislation here.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Friday, February 16, 2007

Judge Ralph King Anderson works for new Florence court house


S.C. Court of Appeals Judge Ralph King Anderson, in his quest for a new Florence County judicial center, has received the support of the state's Supreme Court chief justice and the free services of Horry County’s facilities supervisor."We have, in my judgment, a court crisis in Florence County," Anderson told the Florence County Council during its meeting Thursday morning.

HomeGold CEO files notice of appeal

From WYFF:

Former HomeGold CEO Ronnie Sheppard is asking to be released from prison while he appeals his fraud conviction.

Sheppard filed papers with the South Carolina Court of Appeals. A jury in Lexington convicted him of securities fraud, conspiracy, and obtaining property by false pretenses earlier this month. He was sentenced to 20 years in prison.

Wednesday, February 14, 2007

S.C. Supreme Court refuses to suppress recorded conversation of suspects in police custody

In State v. Turner, two suspects were arrested, read their rights, and placed in the back of a police car. The officer turned on recording equipment which captured an incriminating conversation between the two suspects. At trial, the suspects argued that the conversations should have been suppressed. The Supreme Court agreed that the tape should not have been suppressed. Miranda was not implicated by the taping of the suspects while in the police vehicle because, while they were undoubtedly in police custody at the time of the recording, there was no actual interrogation or functional equivalent.

S.C. Supreme Court clarifies takings law

In Hardin v. SCDOT, the state supreme court considered whether road construction that deprives an owner of convenient access to a main road constitutes a taking for which the plaintiffs were owed compensation. The Supreme Court held that there was no taking. According to the Court, modern takings principles instruct that road closings and realignments which do not "take" land or an easement from a property owner do not give rise to compensable takings because these actions do not directly interfere with an owner’s rights in the property as a whole.

Monday, February 12, 2007

Fourth Circuit holds that subcontractors do not have right to interpleaded funds owed to a government contractor

IN RE: BALTIMORE MARINE INDUSTRIES, the Fourth Circuit considered whether unpaid subcontractors have an absolute right to interpleaded funds owed to a government contractor, when the contractor has petitioned for bankruptcy. The panel answered the question in the negative. Because an unpaid subcontractor is not subrogated to the contractor's interest in the funds, the contractor's interest remains and must be included in the bankruptcy estate. Consequently, funds cannot be awarded directly to the contractor.

Friday, February 09, 2007

New anti-smoking laws under consideration in General Assembly

According to this story, SC legislators are considering a bill that would ban anyone in South Carolina from smoking in a vehicle with a child under 10 years old.

Criticism of ABA's work on judicial ethics

According to this NYT editorial, it sounds like the ABA will not be banning expense-paid judicial seminars that are held at desirable resorts and underwritten by private interests.

Wednesday, February 07, 2007

Allen charge is not required to be given when a juror retracts her verdict during polling

In State v. Kelly, after the jury rendered a verdict of guilty, one juror during the polling process expressed discomfort with the verdict. The trial judge sent the jurors back to the jury room to continue deliberations. The defense moved for a mistrial and argued that a full Allen charge should be given. The panel indicated that because the juror did not indicate that she was coerced into voting for a guilty verdict, nor did she indicate that the jury was hopelessly deadlocked, a mistrial was not required. As for the Allen charge, the panel held that there is no case law requiring or suggesting that an Allen charge be given when a juror retracts her verdict during polling.

In PCR matters, litigants are not required to petition for cert to have exhausted all state remedies

In Dunlap v. State, the state Supreme Court put the Bar on notice that in appeals from criminal convictions or post-conviction relief matters, a litigant is not required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. Instead, when the claim has been presented to the Court of Appeals, and relief has been denied, the litigant is deemed to have exhausted all available state remedies.

Tuesday, February 06, 2007

S.C. Court of Appeals affirms mistrial on grounds of witness coaching

In State v. Smith, a mistrial was granted in a sexual assault case because one of the victims was coached while he was testifying. The child's mother acted inappropriately making mouthing words to the child and shaking her head during his testimony. This coaching denied the accused of a fair trial and thus the grant of a mistrial was warranted.

S.C. Supreme Court recognizes new tort

In Marcum v. Bowden, the state Supreme Court held that an adult social host who knowingly and intentionally serves, or causes to be served, an alcoholic beverage to a person he knows or reasonably should know is between the ages of 18 and 20 is liable to the person served and to any other person for damages proximately resulting from the host's service of alcohol.

Formerly the social host incurred no liability to either first or third parties injured by an intoxicated adult guest.

Monday, February 05, 2007

Fourth Circuit decides conflict of interest case

In UNITED STATES v. NICHOLSON, the Fourth Circuit considered the issue of unconsentable conflicts in a criminal defense setting. Nicholson asserted that his lawyer was operating under an actual conflict of interest at his August 29, 2001 sentencing hearing because, at that time, Nicholson's lawyer, Jon Babineau, was representing Nicholson as well as another client, Lorenzo Butts. Butts had previously threatened to kill Nicholson and his family, had attempted to kill Nicholson's brother, and had already killed Nicholson’s step-father. Nicholson, who was convicted of a federal offense for his possession of a firearm and ammunition by a felon, asserted that he carried the handgun to protect himself from Butts. Nicholson maintained that Babineau, during the sentencing proceedings, failed to request a downward departure based on Nicholson's need to carry the handgun because, in so doing, Babineau would have accused his other client (Butts) of uncharged criminal conduct.

The panel agreed that an actual conflict of interest existed. Although Nicholson and Butts were not charged with offenses arising out of the same set of circumstances, Nicholson's interests, on the one hand, and Butts' interests, on the other, were in total opposition to each other during Babineau' s simultaneous representation of them. The panel remanded to the district court for a determination of whether this conflict affected Babineau's performance at the sentencing hearing.

Friday, February 02, 2007

South Carolina legislator wants to challenge federal immigration laws

From Aiken Today:

Declaring that illegal immigrants cost the state too much money, a South Carolina lawmaker on Thursday proposed denying them access to some hospital care and shutting them out of public schools.

State Rep. Mike Pitts said his proposal, quickly criticized by immigrant advocates and the state's hospitals, should be passed even if it violates federal laws. Washington, Pitts said, isn't doing "anything to attempt to solve this problem."