Law Office of Joshua S. Nasrollahi, LLC

Proposed changes to the public defender application process

Tue, 20 Mar 2018 16:18:00 GMT

Currently there is a bill before the South Carolina Senate Judiciary Committee which would create some significant changes to the process by which indigent defendant’s apply for a public defender. If passed, the law would require an applicant to supply more information regarding potential sources of income. Even more, the law would treat a willful misrepresentation or omission in the application process as a felony, punishable by five years in prison.

As an interesting aside, appointed counsel would have to “comply with Rule 407 of the South Carolina Rules of Professional Conduct” if the attorney determines that the defendant has violated the reporting requirements. This part of the bill is particularly bizarre because there is no “Rule 407 of the South Carolina Rules of Professional Conduct.” Instead, there is Rule 407 of the South Carolina Appellate Court Rules which contains all of the Rules of Professional Conduct. Moreover, all attorneys are bound by Rule 407 regardless of whether a statute specifically references it, making this a strange bit of throw away language. While the Rules do contain language controlling when an attorney is permitted to report illegal conduct by a client, they still contain the ironclad confidentiality requirements to which all attorneys must adhere. In this regard, it’s unclear what the purpose of this particular language is.

In any event, this bill is intended to require more information to determine whether a defendant is in fact indigent. Of course, appointment of counsel to indigent defendants is a fundamental right as recognized in the seminal U.S. Supreme Court case Gideon v. Wainwright . In Gideon , the Supreme Court held that the state must “provide counsel for defendants financially unable to employ counsel, unless the right is competently and intelligently waived.” United States v. McVay, 32 F. App’x 661, 663 (4th Cir. 2002). Building on this, Rule 602 of the South Carolina Appellate Court Rules establishes a presumption of indigence “if the person’s net family income is less than or equal to the Poverty Guidelines established and revised annually by the United States Department of Health and Human Services and published in the Federal Register.” As stated in the rule, this is a presumption which may be rebutted.

The post Proposed changes to the public defender application process appeared first on Law Office of Joshua S. Nasrollahi, LLC .

Legal Basis for Extended Traffic Stops

Fri, 09 Mar 2018 19:31:00 GMT

Traffic stops occur on a regular basis throughout the country, usually resulting in either a traffic citation or a warning. There are times when, during the course of an otherwise routine traffic stop, a police officer may become suspicious of other possible criminal conduct. Because of this suspicion, the officer lengthens the traffic stop beyond its intended purpose ( i.e. , to issue a traffic ticket or a warning) in order to investigate. The question then becomes whether the officer is legally justified in extending the scope of the initial traffic stop. This was one of the major issues in the Supreme Court’s decision earlier this week in State v. Alston , where a police officer extended a traffic stop after observing evidence of possible drug activity.

A Traffic Stop Is a Seizure

It is well settled law that a traffic stop is a seizure for Fourth Amendment purposes. As a seizure, it must be reasonable in order to survive constitutional scrutiny. To do so, there must be probable cause to believe that a traffic law had been violated. In such case, the traffic stop is reasonable per se .

The law, however, places significant restrictions on traffic stops. Primarily, the stop is limited to what is necessary for the officer to investigate the traffic violation and issue a citation. Any additional detention beyond what is necessary constitutes a second detention. In the same vein, the Fourth Amendment also prohibits using dilatory tactics to lengthen a detention.

Additional Detention Requires Reasonable Suspicion

In order to justify continued detention, the officer must have “an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring.” In this regard, the officer’s subjective beliefs about the situation are irrelevant. Instead, the inquiry centers on “an objective assessment of the circumstances.” At the same time, courts give a fair degree of deference to the officer’s judgments as influenced by their experience and training.

This was a large part of the discussion in Alston . There, the officer observed Alston swerving within his lane and repeatedly touching the dotted lines. The Supreme Court agreed that sufficient probable cause existed to initiate the traffic stop. During the course of the traffic stop, the officer observed additional facts which lead him to believe Alston was involved in criminal conduct. Based on this additional information, the officer lengthened the detention to investigate further.

In any case, the law exists as such to prevent legitimate traffic stops being used as pretexts for other, unrelated investigations. It also serves the purpose of restricting the invasiveness of an otherwise legal encounter with the police. The fact of the matter is that it does not take much time or that broad of an inquiry to investigate a traffic violation. A routine traffic stop, without more, should not include half an hour’s worth of questions and a search of the motorist’s trunk.

Judicial Review of Probable Cause/Reasonable Suspicion

It is clear that the Supreme Court struggled with the justifications the officer gave for extending Alston’s continued detention. In fact, the Court seems to have rejected the lion’s share of those given. Yet, it affirmed the lower courts’ rulings finding reasonable suspicion existed. It is against this backdrop that one must then understand that judicial review of probable cause and reasonable suspicion are a fairly deferential process.

“[C]ourts must give due weight to common sense judgments reached by officers in light of their experience and training.” State v. Taylor, 401 S.C. 104, 113, 736 S.E.2d 663, 667 (2013) (citing United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004)) . In this way, the courts must review and give weight to the totality of the circumstances observed by the officer. This means that one fact does not make or break a case for probable cause or reasonable suspicion. At the same time, an appellate court reviewing the same determination will only reverse for “clear error.” Thus, if a trial judge determines that probable cause/reasonable suspicion existed and there is any evidence to support that decision, the appellate courts will uphold the ruling.

This is precisely what happened in Alston . The Court found most of the officer’s arguments (and I’m putting words in the Court’s mouth) absurd. Still, given the totality of the circumstances, the Court found that there were some facts (specifically the inconsistent travel plans) which supported reasonable suspicion.

The post Legal Basis for Extended Traffic Stops appeared first on Law Office of Joshua S. Nasrollahi, LLC .

Defining a criminal offense

Tue, 12 Sep 2017 02:20:00 GMT

The best starting point in any discussion concerning criminal law is to first define what constitutes a criminal offense. At first blush, it would appear that defining a criminal offense would be as simple as turning to the criminal code and seeing if the offense is listed there. To this end, the lion’s share of criminal offenses recognized by South Carolina law are found within Title 16 of the South Carolina Code, which is aptly named “Crimes and Offenses.” Unfortunately, we cannot simply rely on whether a particular offense is codified in Title 16.

This is so because many criminal offenses are not codified in Title 16. Driving under the influence, for example, is codified in Title 56, “Motor Vehicles.” By way of another example, drug offenses under South Carolina law are contained in Title 44, “Health.” Some offenses aren’t codified at all, as is the case with common law criminal offenses. Crimes such as common law obstruction of justice were developed by the courts over the years and can’t be found anywhere in the South Carolina Code.

So, coming back to the initial task at hand, we need a way of looking at a law and determining whether it constitutes a criminal offense. With all of this in mind, we can use the simple two prong test discussed by the South Carolina Supreme Court in State v. Parker to conduct our analysis: a criminal offense is (1) any conduct (including omissions) which violates a public law that forbids the act (or omission) and (2) is punishable with a penalty.

Now that we have this rudimentary formula, we can address the deeper, more implicit question: why is it important that we define a criminal offense? Identifying whether a provision of law constitutes a criminal offense is important because criminal offenses trigger statutory and constitutional safeguards not otherwise provided in a civil context. The right to remain silent, the right to cross-examination, the right to a jury trial–these are some of the very important rights guaranteed in criminal prosecutions that are not always available in civil lawsuits.

This was precisely what was at issue in Parker , where the defendants were called to court for a violation of a contempt of court statute. Because the statute purported to be a civil one, the defendants were “were sentenced [to two years in prison] in a completely summary manner, and there is no contention by the State that any of the normal constitutional safeguards accruing to a person charged with a crime were observed .” Applying the aforementioned test, the Supreme Court found the statute created a substantial criminal offense and reversed the defendants’ convictions.

As can be seen from the Parker case, application of this test is more than simply an academic pursuit. Rather, this test is necessary to ensure that we provide all the necessary rights and protections incident to a criminal prosecution.

The post Defining a criminal offense appeared first on Law Office of Joshua S. Nasrollahi, LLC .

Police Misconduct and Brady Material

Fri, 16 Oct 2015 12:33:00 GMT

Recently, the head of a local narcotics investigations unit found himself in hot water pending an investigation ( Edit: another officer in the unit is also under investigation). The natural question is, if the allegations against the officer prove true, what happens to the cases he made? Police misconduct is, of course, evidence which may detract from the credibility of an officer. Where misconduct is sufficient to completely undermine the credibility of an officer (and depending on that officer’s role in the investigation), the ability to prosecute the case may be impaired.

The deeper question then is how would evidence obtained in the course of an internal investigation, like the one mentioned in the link above, make it into the hands of a defense attorney? These sorts of internal investigations can be very secretive affairs. In the case of the investigation discussed in the linked article, for example, the sheriff’s office is playing everything very close to the chest. And, since it’s an ongoing investigation, it’s likely not disclosable under a freedom of information request. The answer to this deeper question is that it’s the state’s obligation to turn over this evidence.

This kind of evidence is what’s known as Brady material. Brady , in turn, takes its name from the landmark U.S. Supreme Court case Brady v. Maryland , which held that exculpatory evidence must be turned over by the government to the defense. In the years that followed Brady , the Court expanded the rule to include impeachment evidence, i.e. , evidence which tends to damage the credibility of a witness.

Turning back for the moment to the issue of secrecy in internal investigations, the Brady rule goes a little bit further to cover these types of scenarios. It does this by requiring the prosecution to establish procedures and protocols to ensure that evidence disclosable under Brady is discovered and turned over to the defense. To this end, the prosecution cannot simply bury its head in the sand but must instead actively ensure that this critical evidence is uncovered and disclosed.

The post Police Misconduct and Brady Material appeared first on Law Office of Joshua S. Nasrollahi, LLC .

The Inconsistency of Bonds

Mon, 12 Oct 2015 17:31:00 GMT

A recent arrest reported in the local paper provides a good example of how bond settings for defendants can work. The facts of the case are relatively straight forward: a local dentist was arrested and charged with possession with intent to distribute a schedule II controlled substance in proximity to a school. His co-defendant was arrested and charged with trafficking in cocaine 10 grams or more, two counts of purchasing a controlled substance within proximity of a school, and possession of a schedule II and IV substance. When arraigned, the co-defendant was released on his own recognizance while the dentist was given a $25,000 bond.

The setting of bond in South Carolina is controlled by several layers of law. The starting point is Article I, § 15 of the South Carolina Constitution, which states that every defendant is entitled to a reasonable bond except where the defendant is “charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event.” In this way, our Constitution distinguishes between bailable and non-bailable offenses. This post is limited to discussing bailable offenses.

There are two overarching concerns for a court when establishing bond: flight risk and danger to the community. In this way, when determining bail, the law further requires the court to consider 11 factors: (1) family ties, (2) employment, (3) financial resources, (4) character and mental condition, (5) length of residency in the community, (6) record of conviction/criminal record*, (7) record of flight to avoid prosecution or failure to appear at other court proceedings, (8) any other charges pending against the defendant, (9) the incident reports of the crime for which the defendant is charged, (10) whether the defendant is lawfully present in the U.S. and whether this legal status creates a flight risk, and (11) whether the defendant is listed in the state’s gang database.

The analysis of these factors is, unfortunately, largely subjective as there is no law directing the courts on how much weight judges should give each factor. This means co-defendants or even similarly situated defendants could receive different bonds. The case of the dentist and his co-defendant is a good example. One would think that, based on the fact that the co-defendant was charged with significantly more serious charges, his bond would have been higher and vice versa . On the face of it, it would appear that the dentist’s previous indictments for other drug-related crimes may have been a motivating factor in setting the $25,000 bond.

* The statute in question actually lists 12 factors for the court to consider, with six factors the court may consider (factors 1 through 6) and six factors the court must consider (factors 7 through 11 in addition to the defendant’s criminal record). For some reason, the defendant’s record of convictions/criminal record are listed twice, once in both categories of factors.

The post The Inconsistency of Bonds appeared first on Law Office of Joshua S. Nasrollahi, LLC .