I couldn’t turn this poor man away and agreed to represent him on a vehicular homicide charge down in Colleton County. When he was getting ready to leave an outdoor bar-b-que in a friend’s backyard, a woman he vaguely knew asked if he could give her a ride back to town. He said yes but, before he could say anything else, the woman, her baby, and her two other children crammed into the back seat of his car. She kept her baby on her unseatbelted lap.
It wasn’t his fault when a car pulled out in front of him and he slammed on his breaks narrowly avoiding a “T-bone” collision but the woman was thrown forward and crushed her baby against the back of the seat. The baby was dead before the police or ambulance arrived. The police charged my client with vehicular homicide, a felony carrying up to 10 years, a fine of up to $5,000.00, and a five year license revocation, on the theory not having the baby in a car seat constituted reckless driving.
His case wasn’t even three months old when I received a notice it was on the General Session trial docket the second week of August. I made what I expected to be a wasted trip down to Walterboro Monday morning when usually courthouses are packed with prosecutors, defense attorneys, policeman, defendants, and witnesses involved in cases pending before the court. I was surprised how empty the court was and, when I asked why, I was told by the clerk a lot of lawyers had been granted protection for their summer vacations. Then the actual roster sounding began and I began to smell a rat.
The clerk called the first case and the defendant’s attorney stood up to address Judge Perry M. Buckner, III. He was elected to the bench in 2000 but I got to know him when he was still an Assistant Solicitor for the Fourteenth Judicial Circuit. Born and raised in Walterboro, he was an avid outdoorsman. He was easy to get along with as a prosecutor and I dom’t remember ever having to try a case against him. This was my first time appearing before him as a judge. The defendant’s lawyer addressed Judge Buckner like they were lifelong friends. After exchanging pleasantries, the lawyer commented about how it was the beginning of deer season and he had plans to take his son on his first deer hunt. From the judge’s reaction you’d have thought he was taking his son for life saving surgery. Needless to say, Judge Buckner continued his case over the term.
The second case called was already a good ways down the docket and, again the defendant’s lawyer addressed Judge Buckner like they were best friends. He reminded the judge he was President of the 5,000 acre Collins Hunt Club and in charge of the club’s gala dinner marking the beginning of deer season. Judge Buckner said he was planning on attending and granted his request for a continuance too. Maybe like me, you’re ignorant of the significance of deer season in Colleton County but, like me, you’re probably getting an inkling of where this docket sounding was headed. Lawyer after lawyer asked for and received continuances until my case, which had been at the bottom of the docket, had climbed its way up to the top.
Wouldn’t you know it, Judge Buckner greeted me with a big smile like I was also a long-lost friend but somehow I felt more like a deer in the crosshairs of a rifle scope than a welcomed out of town attorney. I tried explaining my case was barely three months old and I wasn’t expecting a trial quite so quickly and Judge Buckner appeared concerned when he asked the solicitor if I’d been provided with all of the discovery. The eager young Assistant Solicitor replied yes before adding sua sponte the State was ready for trial. Judge Buckner turned back to me to ask if there was anything I still needed and, instead of saying I needed a break, I replied I would need until the morning to have my defendant and witnesses present for trial. Like he was magnanimously granting me a favor, Judge Buckner announced my case would be Number 1 case for trial Tuesday morning. I realized I’d been had.
Driving back to Charleston I remembered a case I sat second chair on with Jack Swerling in Richland County. It was a housebreaking case which depended on connecting Jack’s teenage defendant to the break-in by his bookbag having been found on the side of the road near the house. Jack simply argued the bookbag could have just as easily have fallen off the back of his client’s bike and in the absence of any of his fingerprints having been found in the house, or any of the stolen property having been found in his possession, the prosecutor had failed to prove its case beyond a reasonable doubt. The jury agreed and cut the boy loose. The victory rubbed the prosecutor the wrong way and, before we could pack up our things, he advised the Court he was calling another of Jack’s cases next for trial. Jack protested but the Judge refused to intervene and I got to sit second chair for one of the best trials I ever saw.
The smug prosecutor was way overconfident because he had a confession. He wasted no time calling the deadpan detective to introduce the confession and pissed off Jack wasted no time tearing him to shreds. Jack was familiar with the detective’s reputation for always getting confessions. The detective bristled when Jack suggested as much by asking how many of his cases depended on confessions. His evasive inability to remember caught the jury’s attention. Jack pressed on, well, how about just of your last ten cases, how many of those relied on confessions? I don’t remember. How about the last five? Four? Three? Two? The detective became more and more agitated each time he testified he couldn’t remember or said he wasn’t sure. Jack already knew the answer to his next question about the detective’s last trial because he knew the lawyer whose case it was. Jack called the exact name of the case and asked if he remembered his last case. The detective was stuck and knew it. If he said he couldn’t remember his last case, his credibility would be shot, so he admitted he remembered it. Jack didn’t skip a beat and said so you also remember there was no physical evidence, no eyewitness testimony, or recovered property in that case either, right? Just a confession the defendant retracted claiming it had been coerced. In rapid fire Jack followed up by laying out his case in rapid fire questions to the ruffled detective. In this case my client was held for four hours before supposedly confessing, there was no recording of his confession, the confession was written for him by the detective, he’d been threatened if he didn’t cooperate, promised he could go home if he confessed, and there was no physical or corroborating evidence whatsoever connecting his client to the crime aside from his confession. The detective denied the suggestion he coerced the confession but his answers no longer mattered.
Jack’s courtroom prowess shown through during his closing argument. Jack gave the jury a Criminal Law 101 lecture on the admissibility of confessions. They must be freely and voluntarily given, without threat of force or promise of leniency. Even if they are admitted by the judge, it is for the jury to determine wether to believe them. And, then he stopped, walked over to counsel table and picked up a random blank sheet of paper, walked back up before the jury and announced in an angry and rising voice, “You know what I think of this confession?” as he tore the sheet of paper in half in front of the jury.
I kid you not, he was so convincing, the Assistant Solicitor about jumped over counsel’s table objecting Jack was tearing up the evidence. The judge was surprised and started banging his gavel as the court security, unsure what was happening, started to converge. Jack just smiled and held the torn pieces of blank paper up for all to see, thanked the jury, and sat down. It was the fastest not guilty verdict I ever saw.
The remembrance of Jack’s case calmed me down on my drive back to the office. So, they decided to make my case the sacrificial trial for the week, they should be careful what they ask for. I hit the books in the library and learned that, while vehicular homicide is not a specific intent crime, meaning the State didn’t have to prove my client intended to kill anybody, it has to prove the death resulted from a conscious failure to exercise due care. Like in Jack’s case, it was the evidence the young prosecutor didn’t have that would be the undoing of his case.
My client was single and didn’t have any children,so he didn’t conciously fail to carry an infant seat in his car. He wasn’t concious the infant and children were coming along when he agreed to give the mother a ride back to town. He wasn’t concious the mother held her baby in her lap in the back seat. He hadn’t been conciouisly drinking, speeding, or otherwise driving recklessly when the other car pulled out in front of him. And, oh by the way, officer, why hadn’t the mother been charged with anything?
My trial turned out to be the second fastest jury verdict I’ve ever heard of. The jury returned a not guilty verdict before I had half a chance to smoke a cigarette outside the Walterboro courthouse.
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