Serve and Protect?

It should be no surprise that there are a lot of laws on the books that are just asinine. In South Carolina, you must be at least eighteen years old to play pinball. I can’t remember the last time I even saw a pinball machine in South Carolina! You will find yourself in deep trouble if you keep your horse in a bathtub and it is a legal offense to get a tattoo. As kooky as these are, there are other “normal” laws on the books that appear to be asinine because are used improperly all the time, and usually no one but the police are laughing.

Imagine being arrested and jailed for simply asking a question of a public official. It can and does happen much too often; not in Iran or North Korea, but right here in Horry County and all over the United States.

One may scoff and ask, “Who would pass such a law that states, ‘Ask a question – go to jail.’” The answer is no one, of course, but what exists is what police like to call “failure to do right” laws. Disorderly conduct and interfering with a police officer in the performance of his duties are examples of this type of law. In a disorderly conduct situation, a person is in a public place creating a nuisance to others. When it comes to interfering with an officer’s duties, generally a third person gets in the way of an arrest or investigation by asking questions or being a pest.

Both of these situations are generally handled with a warning to the offending party, but all too often the police stretch these laws (and that’s putting it nicely), to a point where if a police officer is simply being asked, “What’s going on officer? Why are you taking the action you’re taking?” or “Will you explain to me what’s happening?” the officer’s immediate response is arresting the person for questioning his authority.

Of course, South Carolina law requires 1,500 hours of training for cosmetologists and only 396 for police officers. Perhaps a couple more hours of conflict training wouldn’t hurt those working towards being in law enforcement.

Why Does the Grass Seem Greener on the Other Side of the Fence?

In Memoriam, Luther Mitchell

So often I’ll have domestic clients who, upon our first meeting, say they believe their spouse is cheating. I’ll look into their case and more often than not, the client is correct in their assumption. What is it that draws someone into an affair? Many times a person tempted to cheat thinks life on the other side of the proverbial fence looks better or more exciting, so they “jump the fence” and give this new experience a try.

Until his passing a few years ago, my good friend, Luther Mitchell, was in a retirement home. I used to drop by and see him a few times a week and Luther always wanted to work on his memory. We would memorize lists like the names of the presidents, their dates of office, their wives’ names their vice presidents. Once we ran out of presidential material, we moved on to The Gettysburg Address. After about an hour of this, Luther would share thoughts and stories about [his] “good old days.” Spending time with Luther was always a two part meeting; he first wanted to keep his mind sharp by memorizing trivia then he wanted to share stories and relive the past.

I could spend the next year only blogging about all the things Luther taught me but I will just relay to you the last conversation we had before he passed. On that day, I had come over and we studied the Gettysburg Address for about an hour then he asked about my day. I went on to tell him yet another tale of how I had worked a case where I followed someone’s spouse from work at lunchtime and caught him in the arms of someone other than his wife. I told the whole sordid story; how I followed the man, took pictures of him with another woman, documented his illicit activities and finally, informing the client.

After I’d told the story, Luther looked me in the eyes and said, “You know what’s wrong with your generation?” I said, “No, what?” Luther went on to say, “Your generation never sticks anything out. They all think the grass is greener on the other side of the fence.” As I was thinking about this, Luther asked me, “Do you know why the grass is greener on the other side of the fence?” Before I could answer, Luther followed up with, “Because the man on the other side is tending to his lawn.”

Short, sweet and to the point, there it is, all summed up in a sort of bumper sticker philosophy.

Thank you Luther, for all the things you taught me over the years and thank you for the peek into the wisdom that only old age can bring.

The Pen is Mightier than the Sword…

…Unless said sword is wielded by a criminal defense attorney.

So last week I was sitting in the office of a good friend (who happens to be a criminal defense attorney), and we were just chit-chatting, talking about the upcoming holidays, daily activities and the like, when suddenly, he says, “Oh, I read your last blog,” and suddenly there’s the entry, pulled up on his laptop in front of us.

School was in session and my lesson on this day was that the police and criminal defense attorneys will never want to understand how each side works, because they simply do not share the same goal within the criminal justice system. There is no way I could state my friend’s case here as concisely and clearly as he did that day. I truly believe the plague and polio would have had a better chance of talking their way onto the ark than I had defending my position. This wasn’t the first time I have been debated out of my belief and knowing my friend, it won’t be the last.

I can only hope to win some future debate and even the score. But, until then, I am happy to be the “loser” with greater knowledge and insight gained this year.

PS:  On to debate topic #2, Making a professional and informative yet not cheesy attorney television commercial. I have been practicing my position on this one. I am ready.

Can’t We All Just Get Along?

Ask a police officer to tell a lawyer joke and certainly you’ll be met with something like the following:

Q:        What do you call a person who assists a criminal before the criminal is caught?

A:        An accomplice.

Q:        What do you call a person who assists a criminal after the criminal is caught?

A:        A defense attorney.

During my law enforcement career, I recall an officer who, when court was scheduled, would tug on his duty belt to pull his pants up and exclaim, “Well, let’s get to the courthouse and give those guilty bastards a fair trial!” Ironically, police and attorneys don’t only stereotype their “opponents.” Often, by being what they consider a model officer or lawyer, the jokes become a self-fulfilling prophecy.

There has been a long standing rivalry between police and defense attorneys over how everything, from arrests to sentencing are handled. Both sides are supposed to be working together towards a common societal goal but often the two groups are at odds. In the past several years, I’ve had the good fortune to become an investigator for some of the finest criminal defense attorneys in the Carolinas and after being on both sides of the fence, I believe much of the discord comes from misunderstanding about the job each side has to do.

Police officers often only have seconds, if not less, to make decisions that can determine life or death for themselves or others. Lawyers, on the other hand, have weeks, months or sometimes even years to go over the same scenario in the comfort of their offices to determine if the police made the right decision to use deadly force.

I’ll use the following scenario as an example to illustrate my point. Before you read it though, check your watch and time how long it takes to read.

It’s nighttime, thus dark, and a police officer pulls a vehicle over on the side of a lonely road. The officer approaches the vehicle and asks the driver to put his hands where he can see them. The driver does not comply, and in fact, begins reaching between the seats. The man pulls a dark object from between the seats and begins to turn toward the officer with the object. What should the officer do?

I am estimating it takes an average of 15 seconds to read the scenario. Now go back and read it again, this time stopping after 2 seconds. That is often how long the officer has to make a life or death decision on the side of the road. These scenarios play out much faster than they read. When the driver fails to comply with the officer’s instructions, the thought going through the officer’s mind is, “Gun / no gun… gun / no gun.” When the man reaches between the seats, again, the officer is thinking, “Gun / no gun… gun / no gun.” Having to make a split second decision about who may end up dead on the side of the road is part of the job for police officers. Erring on the side of caution is the neighborly thing to do, but giving a person acting suspiciously the benefit of the doubt has resulted in the deaths of many police officers.

The judicial system, on the other hand, may take months to pore over those few seconds to determine if the officer made the right decision to use deadly force.

I have learned that not every defense attorney sets out to trip up or discredit an officer on the stand but any attorney working to discredit the actions of a police officer should at least ride along with an officer for a while to see law enforcement in action. Dealing with someone on the side of the road is much different than dealing with them when they are handcuffed and in a locked room. This firsthand experience would help anyone to realize just how quickly decisions have to be made, on the spot, with no law books to consult first. Police should also have to work alongside a defense attorney to observe the law working in slow motion, where the consequences of recklessly putting citizens into the criminal justice system can be realized.

My only major complaint with the system is that when police make a minor mistake, the case can be thrown out. Perhaps the answer is to punish, fine or censure the officer but it shouldn’t be to punish society by letting a small mistake allow an “otherwise guilty person” to go free.  However, who will be the one to determine what a “minor” mistake would be? To a good lawyer, every minor mistake is a major mistake and truth be told, the lawyer who thinks that way would be the lawyer I’d hire should I ever find myself in trouble.

Devil in the Details

Most people know that when they’re charged with a crime they are entitled to representation by an attorney to provide a defense. What they don’t always realize is that part of a strong defense to charges is an investigation on the defense’s behalf. The interviews that law enforcement conduct to piece together the details of a crime only serve their purposes: to find someone to charge and convict. Their process doesn’t always guarantee the right person will be the one convicted, only that someone will be convicted.

When interviewing potential witnesses for a criminal case, I dig deeper than the police to get to the true facts of the situation. Often the facts are not the same as what the police present as what happened.

In discovery, your defense attorney gets copies of all the work that was done by law enforcement. My job as investigator is to review the evidence. The first place I start is with witness interviews. So often law enforcement personnel tend to get what is commonly known as “tunnel vision,” where the only focus is finding someone to charge with the crime. This lack of investigation can affect a case greatly.

To prove this point, I will give two interview scenarios for a fictional shooting in a nightclub parking lot. The first is how police interviews at the scene might likely go and the second, my follow-up interviews with the same two witnesses.

When a crime happens, police try to get to the scene quickly to lock down the crime scene, detain witnesses and obtain statements.

Witness #1 Interview

Police:              Did you see who shot the victim?

Witness #1:       No

Police:              Ok, thank you.

The police then move on to the next interview.

Witness #2 Interview

Police:              Did you see who shot the victim?

Witness #2:       Yes. It was the guy you have in the backseat of your patrol car.

Police:              What did you see?

Witness #2:       I heard a lot of commotion and yelling then I heard, “Pop, pop, pop.” I looked over and people were yelling and running around. There was the victim on the ground and the guy you have in your car standing over him. Then the guy just ran away.

Summary of police investigation:

Witness #1, saw nothing

Witness #2, witnessed crime

My witness interviews occur at a later time, after the client has hired both a criminal defense attorney (or had a public defender appointed to him) and myself.

An important note to remember, even if you have a public defender, the State has funds allocated for a defense investigation. You should always demand that your defense attorney have an investigation done on your behalf.

Witness #1 Interview

Bill Beam:         Did you see who shot the victim?

Witness #1:       No.

Bill Beam:         How long were you at the club?

Witness #1:       About an hour to an hour and a half.

Bill Beam:         Did you see anything out of the ordinary while inside the club?

Witness #1:       Not really. There was a small fight that broke out over some girl. Two guys were pushing each other and the bouncer broke it up then the party went on.

Bill Beam:         Would you remember either of the two guys who were fighting if I showed you pictures?

Witness #1:       Yes. [Shown pictures of client/accused] No, I don’t remember seeing him. [Shown pictures of the victim] Yes, that was one of the guys in the fight.

Bill Beam:         Did you see the victim outside after the club closed and the shooting happened?

Witness #1:       No, I heard shots and ducked down. That was it.

As you can see, the witness does know more about the crime than he thought he did; he just wasn’t asked the right questions by the police.

Witness #2 Interview

Bill Beam:         Did you see who shot the victim?

Witness #2:       Yes. It was the guy they arrested.

Bill Beam:         Was it this guy? [Shows picture of our client]

Witness #2:       Yes.

Bill Beam:         Tell me what you saw.

Witness #2:       I was outside in the parking lot, the club was closed and people were just hanging out. I heard some people fighting, then some yelling and then I heard the gun shots.

Bill Beam:         When you heard the gunshots what did you do?

Witness #2:       I dove behind a car. I didn’t want to get shot.

Bill Beam:         Then what did you do after the shots stopped?

Witness #2:       I stood up and looked over to where the shots came from. I saw the victim on the ground and your client standing over him.

Bill Beam:         What then?

Witness #2:       Your client stood over him for a few seconds then took off.

Bill Beam:         Did you see anything in his hands?

Witness #2:       Yes, I think he had a gun.

Bill Beam:         What kind of gun?

Witness #2:       I don’t know, it was dark out.

Bill Beam:         How do you know it was a gun?

Witness #2:       Well the shots were just fired and your client was standing over the guy. The guy had been shot and he had something in his hand then he ran.

Bill Beam:         What if I told you our client had a cell phone in his hand and was thinking about calling the police but didn’t want to get involved and ran?

Witness #2:       I suppose it’s possible if you say so, but he ran and later on the police caught him and arrested him.

Bill Beam:         So are you saying he had a gun or a cell phone in his hand?

Witness #2:       I’m not sure. I just couldn’t tell what was in his hand.

Bill Beam:         Did you see the shooting?

Witness #2:       Yes.

Bill Beam:         You did?

Witness #2:       Yes. I heard the shots, looked over and your client and the victim were the only ones around. Of course he shot him.

Bill Beam:         I thought you ducked behind a car?

Witness #2:       I did but only for a few seconds.

Bill Beam:         Two to three seconds or five to six seconds…?

Witness #2:       I’m not sure. Shots were fired, I waited for seconds after then looked up.

Bill Beam:         Before you heard the shots, you said you heard commotion. Would you know who was yelling?

Witness #2:       No, it was too crowded and a little dark. I didn’t pay attention. Stuff like that happens a lot at clubs.

Bill Beam:         So, you heard a fight and didn’t see who was fighting. Then you heard a shot, ducked down, got up and the crowd had cleared and there was only my client and the victim around.

Witness #2:       Yes.

Bill Beam:         But you didn’t see any weapons fired or anyone holding a weapon, did you?

Witness #2:       No.

Witness #2 actually knows less about the crime than he thought, but what he’s already told the police could be damaging to our client.

Summary of my interviews:

Witness #1 was able to identify the victim as one of the men fighting but unable to identify our client at all.

Witness #2 was certain our client was the shooter because he saw him standing over the victim with a gun in his hand. When the question of a cell phone in our client’s hand was introduced, Witness #2 could not say for sure if our client was holding a gun or a cell phone and admitted he never saw any weapon fired or anyone holding a weapon.

In this fictional case our client was on house arrest and violating his probation by being at the club. He saw the shooting, went up to the victim and wanted to call for help but decided against it because he didn’t want the police to know he was violating probation. Not wanting to go to jail for probation violation, he ran off. Witnesses identified him as a person who had run away from the scene. As a result, he was picked up a few blocks away and brought back to the crime scene and arrested for probation violation, NOT the shooting.

These errors in fact are common occurrence at crime scenes. Witnesses, though not maliciously, put “puzzle pieces” together that don’t always mean what they think it meant. The police look at witness statements as fact and think, “Well, I’ve got a witness who told me he saw this guy shoot that guy so I have an eyewitness to the crime.” Once they have that, it’s not the police’s job to tear down their own eyewitness so the questions stop there. A good defense investigator will do exactly that, though, and get to the facts of what the witness saw, not what he thinks happened.

As a former police training officer, I taught trainees how to conduct witness interviews and while one would hope anyone investigating a crime would want to get to the true facts of the case but that just isn’t always the way it goes. For the police, often having enough evidence to close the case is enough and for many defendants, who may have prior criminal charges, taking a plea deal in a case they weren’t involved in is much easier than risking the lengthy prison term if convicted in a trial. I am and have always been concerned with obtaining the facts of a case. When I conduct witness interviews I am not looking only for statements that paint a glowing picture of my client, I want the truth. It is not my job to take this evidence and prove to a jury that my client is innocent, that is for his attorney, but my expertise in this area leads me to interviewing the right people and asking the right questions.

Hidden Costs of Infidelity

For almost 150 years the United States legal system has recognized adultery as a crime but today few states have legislation which allow an injured party to pursue damages from the person their spouse has had an affair with. Currently only 8 states recognize alienation of affections as an actionable charge: Hawaii, Illinois, Mississippi, my own state of North Carolina, New Hampshire, New Mexico, South Dakota and Utah.

While NC has in the past month put limits on the circumstances in which a third party to the marriage can be sued, this is still a viable legal option for a scorned spouse to take and the third party isn’t limited to an extramarital lover. Technically anyone who contributes to the ending of the love in the marriage can be sued, but NC is making it increasingly more difficult to both use and/or prove alienation of affections in a divorce proceeding.

Alienation of affections essentially reduces a spouse to “property,” and  although I question the whole concept of people being property, owned by another that can be taken away, the alienation of affections approach has been a very useful tool in many divorce cases I have worked as a private investigator.

It’s not so much that the other woman or man gets sued for alienation of affections but more the fact that the threat of suing exists that makes it an effective tool. In most cases, the cheating spouse has already been caught and is about to be forced out of the home and marriage. Just about the last thing a person wants is for their extramarital “love” to be part of a court proceeding where this “love” will likely be happy to air dirty laundry in exchange for dropping a monetary or possibly a criminal suit against them. Most adulterers settle for giving up more than they normally would just to make their new love, fling or self comfortable. Isn’t devotion a wonderful quality?