Closing Out

Well, I have left private practice and have taken a job with the US Attorney's Office. In light of my career change, this blog is shutting down. Thanks to everyone who dropped by for the latest SC legal news.

Merry Christmas.

Constitutional issues with Clinton appointment???

"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

Clinton was in the Senate when a pay increase passed for Secretary of State. Thus, under this clause, she is not eligible for the office. This situation has come up in the past and Congress has simply passed a law reducing the salary to what it was before.

The LA Times has more on this issue here.

Who will Obama appoint to SCOTUS?

The LA Times has this article.

The top three are:

Judges Diane Wood, 58, of the U.S. appeals court in Chicago;

Judge Sonia Sotomayor, 54, of the U.S. appeals court in New York;

and Elena Kagan, 48, dean of Harvard Law School.

Billy Wilkins' return to the courtroom as a lawyer meets with success

From the Greenville News:

William W. “Billy” Wilkins successfully argued against a motion in a shareholder suit against South Financial that asked for a temporary restraining order barring retirement payments to retired CEO Mack Whittle as part of a an agreement that the suit alleges is “unconscionable” and could threaten the company’s solvency if carried out.

The agreement would pay Whittle $10 million following his retirement in October, attorneys said in court Tuesday during a hearing before Circuit Judge John Few, who denied shareholder Vernon Mercier’s request for the restraining order.

Not surprisingly, Wilkins's stock as an advocate is rising.

SCOTUS vacates injunction against Naval use of sonar

Last week, the United States Supreme Court issued its first opinion of the new term: Winter v. Natural Resources Defense Council. This case concerned the Navy’s use of mid frequency active sonar, which transmits sound waves at various frequencies. This type of sonar is used in Naval exercises, including training and tracking of submarines. The Ninth Circuit Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy’s sonar training, even though the record contained no evidence that marine mammals have been harmed by the activity. In arguing against the injunction, the Navy emphasized that it had used sonar during training exercises off the coast of California for forty (40) years, without a single documented injury to a marine mammal.

The injunction issued based on the Navy’s alleged violation of the National Environmental Policy Act of 1969, which requires federal agencies to the fullest extent possible to draft an environmental impact statement for every major federal action affecting the quality of the human environment. The areas of the injunction that were in contention required the sonar to be shut down when a marine mammal was spotted within 2,200 yards of a vessel, and the requirement that the sonar be powered down during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water.

In reversing and vacating the injunction, the Supreme Court noted that the District Court and Court of Appeals held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a “possibility” of irreparable harm. The Supreme Court held that the preliminary injunction standard requires plaintiff seeking relief to demonstrate that irreparable injury is likely in the absence of an injunction. The issuing of a preliminary injunction based only on a possibility of irreparable harm is inconsistent with the court’s characterization of injunctive relief as an extraordinary remedy that may be awarded upon a clear showing that plaintiff is entitled to such relief.

The Supreme Court went on to note that even if the plaintiffs had shown irreparable injury from the training exercises, such an injury was outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. The court cited testimony from several Naval officers who emphasized that realistic training cannot be accomplished under the two challenged for civic restrictions imposed by the District Court.

Obama could transform the Fourth Circuit

A snippet from the Richmond Times:

As president, Barack Obama and a new U.S. Senate could transform the Richmond-based 4th U.S. Circuit Court of Appeals, long one of the most conservative in the country.

President Bush failed to fill four vacancies on the 15-judge court, which decides cases on issues such as abortion, the death penalty and terrorism.

The Bush administration steered terrorism cases to the court, where it largely has been successful in protecting the president's national-security powers, though not always.

Six of the court's current judges were appointed by Republican presidents and five by Democrats.

Judgment not necessary to pierce corporate veil

In Drury Development v. Foundation Insurance, the South Carolina Supreme Court answered the following certified question: whether a judgment against a corporation is a prerequisite to an alter ego claim. This question has come up often in South Carolina. Frequently, plaintiffs attempt to demand many financial documents of a corporation early in discovery on the basis of an alter ego claim. Defendants often counter that this discovery is premature and improper because no judgment has been entered against the corporation and therefore the issue of veil piercing cannot come up.

Noting that veil-piercing is a form of equitable relief, the South Carolina Supreme Court refused to impose "rigid rules of law to seek substantial justice." The court ultimately held that "so long as the plaintiff has pled facts sufficient to survive a motion to dismiss as to the corporate liability claims and the alter ego claim, the trial court should move forward to determination of both matters."

Voter registration drives

Here is an interesting take on the voter registration movement and the duties of citizenship.

SC Supreme Court says that dreadlocks is insufficient reason to strike juror

In McCrea v. Gheraibeh, the South Carolina Supreme Court reversed the denial of a Batson Motion and remanded the case for a new trial. This case arose out of an automobile accident. When three of six potential black jurors were struck, a Batson Motion was made. During the hearing, the lawyer striking the jurors stated that he struck one man with dreadlocks because he was uneasy about him. In accepting counsel’s explanation, the trial court stated that he knew both of the attorneys, was aware of their reputations in the community, and that he did not believe that the attorney would engage in racially high motivated conducted. Therefore, the trial judge accepted the “uneasiness” argument regarding the dreadlocks.

In reversing on grounds of Batson, the Supreme Court held that uneasiness over dreadlocks was not a race-neutral reason for striking someone. Regardless of their gradual infiltration into mainstream American society, the court stated that dreadlocks retained their roots as a religious and social symbol of black culture. Hence, no race-neutral reason for striking the juror was offered.

Court of Appeals issues opinion on 43k settlements

The following settlement was put on record just before trial:

Your Honor, the settlement that’s been reached is that this case will be dismissed with prejudice by an order of dismissal with prejudice to be consented to by the parties and signed by your honor.

Furthermore, the defendants, each and every one of them, will consent to and sign and deliver to me a confession of judgment which will provide for the payment of $165,000 within 18 months. And there will be additional payment terms in there, $25,000 of the 165 within 30 days.

Further, in kind consideration, in addition to the 165,000 the return of 15 rugs, three of which shall be room size Herizes, the confession of judgment will have an attorney’s fee provision that in the event of default, that the cost of enforcing the judgment or collecting the judgment will be recoverable.

And, finally, the confession of judgment will have a no contest stipulation. If it’s required to be domesticated in some state other than South Carolina, the defendants agree not to contest the domestication.

Some weeks after this was put on the record, the parties disputed whether interest was applicable. The court of appeals held that even though interest was not mentioned, it was applicable. The court of appeals held that interest was applicable: "However, interest is provided for by statute. Section 34-31-20(A) provides '[i]n all cases of accounts stated and in all cases wherein any sum or sums of money shall be ascertained and, being due, shall draw interest according to law, the legal interest shall be at the rate of eight and three-fourths percent per annum.'"

The case is Vista Antiques v. Noaha.

Can McCain or Obama Turn the Supreme Court?

Law.com offers this analysis.

SC Supreme Court affirms conviction of criminal solicitation of a minor

In State v. Gaines, the South Carolina Supreme Court upheld a conviction under our recently enacted Criminal Solicitation of a Minor statute. Gaines was an Internet predator who used AOL chat rooms to engage in conversations with young girls. Unknown to Gaines, two of the friends he met on line were police officers. A police officer in Pennsylvania reported his conduct to authorities in South Carolina, and an officer in South Carolina contacted Gaines via AOL. The officer pretended to be a 13 year old girl and Gaines suggested they meet for sex.
After conviction, Gaines appealed and argued that the evidence regarding the chats with the officer in Pennsylvania should have been inadmissible. This contention was rejected because under Rule 404(b) crimes or evidence crimes, wrongs, or acts similar to those that the defendant is on trial for, can be admitted to show motive, identity, or the existence of a common plan or scheme.

Gaines also argued he was entitled to an entrapment instruction. The entrapment defense consists of two elements: (1) government inducement, and (2) lack of pre-disposition. Gaines argued that because the South Carolina police officer first contacted him with the message "Hey" constituted entrapment. The Supreme Court disagreed and said that the initial contact merely afforded Gaines the opportunity to solicit sex. He was in no way induced to commit the crime of criminal solicitation with a minor.

Supreme Court hears case about Navy sonar and whales

From the LA Times:

The Supreme Court justices appeared closely split Wednesday on whether environmental laws can be used to protect whales and other marine mammals from the Navy's use of sonar off the coast of Southern California. A Bush administration lawyer argued that when national security is at stake, the president and his top military commanders are entrusted with setting the rules.

The government is urging the high court to throw out a Los Angeles judge's order that put limits on the Navy's operations. Acting on a suit brought by the Natural Resources Defense Council in Santa Monica, U.S. District Judge Florence-Marie Cooper ordered the Navy to shut down its high-intensity sonar whenever a whale or marine mammal is spotted within 1.25 miles of the ship.

Big Changes at SCOTUS

Law.com has a nice article on the upcoming term and possible changes.

SCOTUS declines to rehear Ban on Execution for Child Rape

The state of Louisiana and the Justice Department had asked the court to reconsider the 5 to 4 decision because the justices had not been presented with what the state and federal government considered an important fact: that Congress in 2006 made child rape a capital offense under military law. This would have perhaps undermined the "national consensus" argument in the majority opinion.

The Court, however, declined to reconsider the issue.

The Washington Post has this article.

Chief Justice Roberts stays execution of Freddie Owens

Freddie Owens has gotten extra time to prepare a petition for cert to the Supreme Court. Owens was sentenced to death stemming from a 1997 robbery-murder on Laurens Road in Greenville County.

In his order, Roberts wrote that should Owens' petition for a writ of certiorari be denied by the justices, the stay would automatically terminate. That would clear the way for the state Supreme Court to set another execution date.

Greenville Councilman Trout arrested by FBI

WSPA has the scoop here.

United States Attorney W. Walter Wilkins announced Harold Anthony “Tony” Trout was arrested Wednesday morning by FBI agents on federal charges of unauthorized computer access.

The federal complaint and supporting affidavit, filed Wednesday, allege violations concerning the unauthorized access of computers.

Trout made an initial appearance in federal court before the U.S. Magistrate Judge William M. Catoe at the United States Federal Courthouse in Greenville.

I'm on Vacation

Check back October 1 for more posts!!

Social worker refuses to testify in Inman case

There has been an interesting twist in the Inman trial going on in Greenville. Marti Loring, a social worker licensed in another state, did a social history on Inman, but refused to take the stand after the prosecutor alleged she was violating state law by practicing social work in SC.

"I feel threatened as a witness in this case and in other cases in which I've testified in South Carolina," Marti Loring told the judge after a recess to allow her to consult with an attorney.

The social worker is refusing to testify now, though the judge told her she does not have a legal ground to refuse. Thirteenth Circuit Solicitor Bob Ariail had previously objected to the introduction of Loring's testimony to her evaluation of Inman's behavioral profile, saying she freqently offers opinions that aren't factually based. The judge asked Loring if she felt uncomfortable and she said she was concerned that Ariail might charge her with a crime. She said she feared her reputation as an expert might be damaged. Ariail said he would grant her immunity, as did the judge.

Sounds like to me the defense team is working to come up with an appellate issue or something to raise on PCR.

S.C. Supreme Court issues opinion of duty of counsel to present mitigation evidence

In Council v. State, the South Carolina Supreme Court affirmed relief in a death penalty PCR case. Council was convicted of sexually assaulting a woman and forcing her to ingest cleaning fluids. At trial, Council’s lawyer argued that he was not the murderer, but rather an accomplice at the scene actually did the killing. In the penalty phase, trial counsel only called the defendant’s mother as a mitigation witness. She testified about Council's mental health between the ages of 7 and 14 and that he had been teased while a child at school. Not surprisingly, a jury returned a verdict of guilt and recommended a sentence of death.

The death sentence was overturned because trial counsel fails to present voluminous mitigation evidence. For example, no social history was compiled. Had a social history been compiled evidence could have been presented to the jury that several of Council’s family members suffered from mental illness, that his father was an alcoholic and extremely violate, that Council lived in several homes which did not have running water and indoor plumbing, that he did very poorly in school, and that he had attempted suicide at a young age. Had trial counsel obtained a forensic psychiatrist, testimony could have been presented that respondent was an undifferentiated schizophrenic, which began in early adolescents for childhood.

In summary, the Supreme Court agreed with the PCR court that the mitigation evidence would have been powerful and that that trial counsel was ineffective for failing to present such evidence. Accordingly, the sentence of death was reversed.