Appellate Law

SCOTUS rules in lethal injection case: executions will likely soon begin again in the US

Posted on April 17, 2008
Yesterday the Supreme Court decided Baze v. Rees, which dealt with whether the most common method of lethal injection constitutes cruel and unusual punishment because of the dangers of pain and discomfort to an inmate. The final decision was splintered...

Fourth Circuit decides major Confrontation Clause Case dealing with state rape shield laws

Posted on April 16, 2008
In Barbe v. McBribe, the Fourth Circuit Court of Appeals dealt with a confrontation clause issue. The issue presented to the court was whether the district court erred in holding that Barbe?s rights under the confrontation clause were not violated when the state trial judge mechanistically applied the state?s rape shield statute without evaluating whether the interests served by the statute justified the total limitation enclosed upon Barbe?s federal constitutional right to cross-exam an expert witness...

Light Blogging this week

Posted on April 06, 2008
I'll be in trial the week of April 7, 2008. Wish me luck!!!Check back next week for posting.

States file suit against EPA on global warming

Posted on April 03, 2008
From the AP:Officials of 18 states are taking the EPA back to court to try to force it to comply with a Supreme Court ruling that rebuked the Bush administration for inaction on global warming.In a petition prepared for filing Wednesday, the plaintiffs said last April's 5-4 ruling required the Environmental Protection Agency to decide whether to regulate greenhouse gas emissions, including carbon dioxide, from motor vehicles...

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SC residents can still use driver's license in boarding aircraft

Posted on April 02, 2008
South Carolina residents will continue to be able to use their driver's licenses to get on airplanes and into federal buildings, the Department of Homeland Security said Monday as it granted the state an extension to comply with a new federal ID law.The AP has this report.

SC Supreme Court upholds Greenville Smoking Ban

Posted on March 31, 2008
On January 1, 2007, a Greenville County ordinance went into effect that banned smoking from a number of places, including restaurants and bars. A few bar and restaurant owners brought suit and a trial judge (The Hon. John Few) permanently enjoined the city from enforcing the ordinance...

SC Supreme Court holds that filing of an ODC complaint is not grounds to remove appointed PCR counsel

Posted on March 31, 2008
In Richardson v. State, the State Supreme Court dealt with the issue of a PCR judge refusing to relieve PCR counsel. The court addressed this matter because of the recurring problem of PCR applicants seeking repeatedly to have their appointed counsel relieved...

The week in review

Posted on March 31, 2008
Check out Blawg Review #153, for the best of blog posts from last week. Lot's of good stuff on the recent SCOTUS rulings. Declarations and Exclusions does a nice job hosting this one.

SCOTUS hears arguments on pro se representation by the mentally ill

Posted on March 27, 2008
When mentally ill defendants are found competent to stand trial, does that also mean they are competent enough to represent themselves in court?Tony Mauro, over at Law.com, has this discussion on standard of competence for self-representation. The case concerns a diagnosed as a schizophrenic who was denied his right to represent himself at a 2005 trial for a department store robbery and shooting.

SCOTUS decides Medellin, checks executive power, and limits the reach of the ICJ

Posted on March 26, 2008
Yesterday SCOTUS decided MEDELLIN v. TEXAS. This was one of the most important cases of the term with huge implications for American sovereignty. At stake was whether the International Court of Justice could command state and federal courts to alter PCR procedural default rules...

SCOTUS removes much discretion from trial judges in Batson hearings

Posted on March 24, 2008
On March 19, 2008, the Supreme Court decided Snyder v. Louisiana. In this case Snyder was convicted of first degree murder in Louisiana and sentenced to death. The case for before the Supreme Court dealt with a decision of the Louisiana Supreme Court to reject Snyder?s claim that the prosecution violated Batson v...

SC Supreme Court hears Home Gold Conflict of Interest Issue

Posted on March 20, 2008
At issue is the trial court's ruling that found a conflict of interest because Bill Bannister represented certain witnesses and John M. "Jack" Sterling in interviews with agents investigating the failures of Carolina Investors and HomeGold. The witnesses are now ready to roll on Sterling...

Smart money is on the right to bear arms being an individual right

Posted on March 19, 2008
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. "By all accounts, arguments went well yesterday in Heller. The Court seems primed to reject the assertion that the right to bear arms exists only in connection with state-regulated militias...

Good cause requirement for sex offender registration interpreted broadly

Posted on March 19, 2008
In State v. Hicks, Hicks was indicted for criminal sexual conduct with a minor (Victim). At trial, Hicks pled guilty to the lesser offense of assault and battery of a high and aggravated nature. (ABHAN). Although ABHAN, the crime to which Hicks pled guilty, is not included in the list of crimes for which sex offender registration is required under Section 23-3-430 of the South Carolina Code , Section D of the statute provides that:"[U]pon conviction, adjudication of delinquency, guilty plea, or plea of nolo contendere of a person of an offense not listed in this article, the presiding judge may order as a condition of sentencing that the person be included in the sex offender registry if good cause is shown by the solicitor...

SCOTUS to hear arguments in DC guns case today

Posted on March 18, 2008
ScrippsNews has this article.This is probably the most important case of the term. I'll post more on this topic later.

Notice and Hearsay

Posted on March 17, 2008
In Thomas v. Dootson, the central issue of the case was whether Dr. Dootson had notice that a surgical drill overheated prior to the injury to the patient. Testimony was offered that an assistant had told Dootson that the drill had malfunctioned on prior occasions...

South Carolina Supreme Court hints that SC might recognize tort for spoliation of evidence

Posted on March 12, 2008
In Austin v. Beaufort County, Austin sued the sheriff's department after the department destroyed evidence related to the drug overdose of Austin's son. Austine claimed she was entitled to damages because the destruction of evidence impaired her ability to bring a wrongful death action...

SC Supreme Court holds that plaintiff may bring negligent hiring and supervision claim even after the employer admits vicarious liability

Posted on March 11, 2008
In James v. Kelly Trucking Co., the Supreme Court considered whether a plaintiff in South Carolina is precluded, as a general matter, from maintaining a cause of action for negligent hiring, training, supervision, or entrustment after an employer stipulates that it is vicariously liable for its employee?s negligence...

Check out Blawg Review #150

Posted on March 10, 2008
For the best posts on law related matters from last week, please drop by Trust Advisor for the the hosting of Blawg Review # 150.

Fourth Circuit holds that to be convicted of aggravated indentity theft a defendant must assume the identity of a specific person

Posted on March 07, 2008
In UNITED STATES v. MITCHELL, Mitchell used a false driver?s license and counterfeit checks in the name of Marcus Jackson to buy merchandise and return it for cash refunds. He was convicted of aggravated identity theft. Mitchell argued that the district court erred when it held as a matter of law that the use of another person?s name by itself constitutes the use of a means of identification of another person (a specific individual) under § 1028A...

Scalia on the Living Constitution

Posted on March 06, 2008
Got to love Scalia. The man lays it on the line.Scalia compared the philosophical shift on the Constitution with the sales pitch of a stock broker who tells a wary investor that poor economic performance is merely a case of the markets resting before climbing again...

Fourth Circuit issues opinion on standing

Posted on March 04, 2008
In NEESE v. JOHANNS, tobacco producers challenged the Secretary of Agriculture?s implementation of the Fair and Equitable Tobacco Reform Act of 2004 ("FETRA"). The Act authorized the Secretary to offer buy out contracts to tobacco producers who had previously operated under a fixed quota system, which had been in place since the late 1930s...

Night out on the town for Ricky Raccoon

Posted on March 03, 2008
Only in South Carolina do have opinions like the one in Singleton v. Sherer. A mild mannered raccoon comes home after a night on the town and takes a hunk out a its owner and others. Lawyers are called and pleadings filed. This opinion could only be better if a possum had done the damage...

SCOTUS opinion could potentially create new flood of ERISA suits

Posted on February 27, 2008
Until the decision of the United States Supreme Court in LaRue v. DeWolff, Boberg & Associates, Inc., employee benefit plan participants who sued plan fiduciaries for investment losses in their retirement account faced significant legal hurdles to recovery...

S.C. Supreme Court clarifies Baggerly decision and admission of expert testimony

Posted on February 26, 2008
In Fields v. J. Haynes Waters Builders, the state supreme court revisited the admission of expert testimony. On of the issues at stake was whether the initial inspector of the Fields? home, was qualified to testify as an expert witness inasmuch as he failed to comply with South Carolina?s home inspection licensing requirements...

Guilty pleas keep wheels of justice turning

Posted on February 25, 2008
The Greenville News has an interesting article in today's paper about the number of guilty pleas in state court. I know that civil jury trials are becoming rarer, but this appears to be the case for the criminal trial too . Only 89 cases out of 6,800 total criminal defendants in 2007 made it to a jury.

SCOTUS rules on medical device preemption

Posted on February 21, 2008
The United States Supreme Court, in Riegel v. Medtronic, sided with the majority of the federal circuit courts today, holding that federal law regulating medical devices preempts common law tort actions that would impose different or additional requirements than those approved by the federal Food and Drug Administration (?FDA?)...

Curative instructions and mistrial motions

Posted on February 21, 2008
In State v. Ferguson, Ferguson was convicted of murder and possession of a firearm during the commission of a violent crime. During the second day of trial, in response to a question about Ferguson?s behavior at the time of the shooting, Ferguson's Girlfriend responded that Ferguson allegedly told her she ?was next...

SCOTUS to reconsider the exclusionary rule

Posted on February 20, 2008
The Supreme Court agreed Tuesday to reconsider the reach of the "exclusionary rule," a doctrine that has been controversial since the 1960s because it requires judges to throw out evidence if it was obtained improperly by the police.The precise question presented is: "Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent...

SCOTUS declines to hear domestic spying case

Posted on February 19, 2008
From Reuters:The Supreme Court on Tuesday turned down a legal challenge to the warrantless domestic spying program President George W. Bush created after the September 11 attacks.The American Civil Liberties Union had asked the justices to hear the case after a lower court ruled the ACLU, other groups and individuals that sued the government had no legal right to do so because they could not prove they had been affected by the program.

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