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.

Inman mitigation evidence presented in Greenville trial

Here is the story from the g-news.

Today's proceedings are expected to focus on the defense testimony of mental and prison experts, carrying over Price’s testimony on Tuesday -- based on 3,000 pages of medical and prison records -- to how Inman’s childhood and genetic predisposition to mental disorders paved his violent path.When Inman was a toddler, his biological father would tie Inman and his older sister to their bunk bed and molest them, a pattern of abuse that later manifested as Inman likewise bound his victims’ hands after in most cases waking them in their beds, Price testified.

The sexual assaults, along with later sexual acts by another family member, left Inman permanently damaged mentally, Price testified. Inman’s only steady parental figure -- his grandfather, who would often try to intervene when Inman’s parents abused him -- died when Inman was a child, Price testified.At age 10, Inman was using drugs. At age 15, after dropping out of ninth grade, Inman was living on the streets, Price testified.

Forgotten, man sits in jail for two years

From the St. Louis Post:

Joseph A. Shepard Sr. sat in local jails for almost two years, assuming that his lawyer was making progress on his case and that drug-related charges against him would soon be resolved in federal court.

His family says lawyer Michael P. Kelly told them Shepard had pleaded guilty and would return home soon with credit for time already served behind bars. Shepard never came home. Shepard, 53, is a man the system forgot, apparently ignored by his own attorney--and the prosecutor and judge--as days ticked by in a municipal lockup where he was confined to a cell 23 hours a day.

Shepard was surprised when a reporter broke the news at the Jennings jail Wednesday night that his case had been forgotten. It was more than a month after prosecutors took steps to move the case forward, though he still had not been told about it by his lawyer.

Mississippi Supreme Court tries to suppress a dissenting opinion

Take a look at this article.

Power corrupts--especially on the Mississippi Supreme Court.

ABA supports legal outsourcing

Always one to battle for Mom and Apple Pie, the ABA have given its approval to shipping American legal jobs to India.

According to the opinion, Fat Cat Firms may send legal work overseas as long as the lawyer doing the outsourcing takes steps to ensure the protection of client confidences and preservation of attorney-client privilege. The advisory also states that attorneys should check to make sure that foreign lawyers are suitably trained and competent and that bills for outsourced work be reasonable.

SC Supremes issue opinion in Sloan emergency procurement case

From the Greenville News:

The South Carolina Supreme Court on Monday sided with Greenville businessman Ed "Ned" Sloan in ruling that state transportation officials were wrong to negotiate with a contractor on a project rather than put the job out to bid.

The 4-1 decision handed Sloan another legal victory in his lawsuits against the state Department of Transportation and other government agencies and made clear what is and is not an "emergency" for state agencies procuring services.

Sloan filed his suit in 2005 over a 2004 Charleston-area road-widening project that had fallen behind, according to the justices.

Faced with the dilemma of firing the contractor and putting the remainder of the project out to bid, DOT officials thought they could save time by negotiating a new contract with a subcontractor on the project under the state's emergency procurement procedures. The new contract cost just under $8 million, according to the justices.

Sloan argued in his suit that the circumstances did not allow an emergency procurement.

Chief Justice Toal address SC judiciary

Among other points made, the Chief noted that South Carolina has fewer judges with a heavier caseload than any other court system in the nation.

Here is a copy of her powerpoint.

Married to the Big-Firm Machine

Once again, the Snark has a hilarious take on law firm courtships. Considering our summers just left, I found this pretty funny.

SC Supreme Court holds that a defendant may waive, in a plea agreement, right to PCR

In Spoone v. State, the South Carolina Supreme Court dealt with the issue of whether a defendant who pleads guilty may also waive his rights to collateral review. The Court decided to follow federal law and held that a waiver of the right to collateral review is permitted where the circumstances surrounding the waiver show it is knowing and intelligent.

ACLU sues SC on ballot access

From Foxcarolina:

A civil rights organization said it has filed a federal lawsuit against South Carolina, contending the state unfairly limits how candidates are chosen to be on voter ballots.

The American Civil Liberties Union said it filed the lawsuit Thursday in U.S. District Court in Columbia.

The organization said the state's so-called sore loser law is unconstitutional. The law prevents a candidate who loses a primary election from appearing on a ballot as the candidate of a different political party.

The ACLU filed its lawsuit on behalf of a voter, the Green Party and a one-time state House candidate.

Election Commission spokesman Chris Whitmire said the law protects a party's selection process.