Sunday, July 12, 2009

In Defense of the Defense

Two recent news items in The State paper this past week highlighted the ridiculous cheap shots my profession takes. On July 10, 2009, The State paper ran an editorial titled, "Giese Owes Public an Explanation for His Actions." In case you missed it, news broke Tuesday afternoon that 5th Circuit Solicitor Barney Giese had been arrested and charged with DUI on June 28, 2009 in Charleston. Take a minute to click that link and read that absurd editorial. After first opining that Giese has "always been a stand-up sort of a guy. A prosecutor’s prosecutor. A man who has devoted his adult life to public service. A man of unquestioned integrity," the editorial then proceeded to viciously attack not only Barney Giese, but also the profession of criminal defense attorneys as well as the very notion of criminal defense.

After magnanimously pointing out the Mr. Giese is "innocent until proven guilty," the editorial moves on to completely ignore that concept by writing the following:

His defense attorney friends say there’s no way he would drive while he’s
intoxicated — or even be intoxicated, for that matter. They say the case against
him looks weak — even though the police report says he couldn’t count backwards
or stand steadily on one foot or walk a straight line and pivot as instructed.
You see, there’s no videotape of the arrest, which means it’s the police
officers’ word against the word of Mr. Giese, who refused the breath test that
could have given police something more than their word to put up against

Perhaps it’s naive of us to think that someone whose entire career has
been prosecuting others for breaking the law — and trying to counter the defense
attorneys who work to discredit police and plant doubt where none belongs —
would avoid the tactics that people who are guilty (and well-informed) use to
reduce their chance of being convicted. But we wish he had.

Perhaps it’s naive to expect that the chief prosecutor for the capital
city would inform the public when he’s arrested on DUI charges, rather than
waiting for someone to dig it up. But he should have. No, he wasn’t under any
legal obligation to do that, but prosecutors of all people, who hold the public
trust, have at least a moral obligation to go beyond the law when it comes to
their own run-ins with the law.

Not intent to wait until Giese has been tried in a court of law, The State's editorial board is proceeding with vilifying Giese before the court of public opinion:

Unless there has been a horrible misunderstanding, or an astoundingly audacious
fabrication on the part of Charleston Police, Mr. Giese made what can at best be
described as a terrible error in judgment. An error of the sort that kills
hundreds of innocent South Carolinians every year. One for which he should be
punished. One for which he owes the public an explanation and, yes, as tired as
we are of them, an apology.

Congratulations to The State's Editorial board. With that above-used phrase of "...the tactics that people who are guilty (and well-informed) use to reduce their chance of being convicted," they have now placed themselves in pristine company of the likes of Mr. Robert E. Lee "Bob" Ewell. You can see Bob in the video below blasting those same "tricky lawyers" that The State's editorial board seems to despise so.

Of course, I did say two items. While The State's opinion makers are busy blasting the criminal defense bar, their front page is extolling the benefits of it the very next day when it reports on the Justin Mallory case. In case you missed that case, Justin Mallory was arrested for murdering his wife back in May of 2006. Mallory was tried not once, but twice for this crime (the first trial resulting in a mistrial, the second in an acquittal). So why was the case in the news Saturday? Because Richland County Sheriff Leon Lott had held a press conference to apologize to Mallory after they finally arrested the real murderer in California. Click this link and watch the video of "trick lawyer" Jerry Finney describing how bad this case was. By the way, I love Lott's quote at the end of the article where is states he is not sure whether or not his agency will be sued. Let me clear that up for you Leon: Uh...the answer to that question is "Yes."

I don't think I need to point out the hypocrisy of a newspaper vilifying the criminal defense bar on one day, then turning around and placing the heroic work resulting from a criminal defense attorney on its front page the next. That's apparent. I could point out that one of The State's editors is none other than Cindi Ross Scoppe, who had no problem enlisting the help of "tricky lawyers" when she was being charged with contempt during the infamous "Operation Lost Trust" investigation. I could point out that Mr. Giese was simply pulling a Judge Mendoza from The West Wing and availing himself of the criminal justice system for which he has worked his entire adult life, something we are all entitled to do.

I could point out that whoever the cop was that gave him the Field Sobriety Tests administered tests that are not in compliance with approved NHTSA guidelines. I could point out it doesn't matter anyway, because said tests are "designed for failure," due to the fact that on any given one of the three-approved tests, there are enough "indicators of inebriation" to fail someone before they even actually start performing the test.

I could point out that the State and the makers of the Datamaster breath machines have refused to turn over the source code for said machines for the past 20 plus years, in effect denying Defendants the right to see exactly how the machine is programmed to operate, thus denying Defendants their constitutionally protected right to present a Defense. I could point the bill to provide videotaping equipment in vehicles was passed over 10 years ago along with amendments to other statutes to provide for the funding for said equipment, leaving no justifiable reason for any cop car not to have video other than the fact that some agencies DO NOT WANT VIDEO. I could point out the only reason to deprive Defendants of potential exculpatory evidence is conscious decision on these agencies' part to prejudice all potential Defendants. I could also point out that due to the extremely low level for presumption here in SC (.08 BAC) and the inherent design-for-failure problem with FSTs, most attorneys advise ALL people (not just the guilty ones) to not blow or perform FSTs.

But I don't have to. Because anyone can simply read these two articles and see the inherent silliness of the Giese editorial. Get a grip and come back to reality. I'm beginning to think that Sanford foolishness is contagious and you've caught a case of Appalachian/Argentinian fever.

BTW, to see the greatest theatrical closing argument ever, check out my man Atticus Finch, here. "Miss Jean Louise, stand up. Your father's passin'."

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