Federal Sentencing Appeal: Challenging ACCA Violent Felony Designation | SC Supreme Court

All rise.

You may be seated.

Good morning and welcome back to those of you who attended the first session, and welcome to those of you who are just joining us. I'm Don Gordon. I'm the executive director of the Riley Institute at Furman. The Riley Institute, named after former U.S. Secretary of Education and two-term governor of South Carolina Dick Riley, is unique to Furman. And creates opportunities for students to broaden and to deepen their thinking about critical issues and to be exposed to high-profile guests who come to our campus to speak. To our high school students who are with us today, particularly those interested in public policy and social justice and politics, I want to mention just four things about Furman that you should know. Furman's Politics and International Affairs Department is one of the very best in the country. Furman has an outstanding and very active mock trial program. Furman has a full-time pre-law advisor for students who want to go on to law school. And the Riley Institute is home to our Advance Team, a group of students who are interested in public policy and who want to engage one-on-one or in small groups with our visiting guests. I hope you will all add Furman to your short list of potential universities. I think you should do that. And I'm glad you're here. Chief Justice, we are so honored to have you and your colleagues with us today. Thank you again for being here, and I'd like to take things over to you.

Thank you very much. We appreciate that. But before we get started, there is one introduction, maybe two, that we want to do, as we did in the last session. What I want to do is identify the lawyers that are in the audience here. Will all lawyers please Thank you all very much for attending, but there is one— also one special introduction I'd like to make, uh, point of personal privilege to the clerk of court.

Yes, there's someone in the audience today who's very special to me.

It is my son, Hugh Howard.

Hugh, will you please stand?

Hugh and I live in Columbia, but he is here with my mom, Jane Alexander, who grew up in Greenville and attended Wade Hampton High School, and also my aunt, Jeannie Howard, who is a Furman graduate.

Thank you for having us today.

And for the record, your mom does an excellent job for us. The final case or argument this morning would be the United States of America v. Patrick Clements. Counsel, you prepared to go forward? You may proceed. Just for the benefit of the audience and the students, would you tell us a little bit about why we're here.

Sure, absolutely, Your Honor. This is a case where I represent the defendant here, a federal criminal defendant. He was charged in federal court for felon in possession of a firearm, but under the federal system, if you have some prior convictions, in this case he had some South Carolina convictions, your sentence can be enhanced. And so that's what happened here. Um, he has two convictions for criminal domestic violence of a high and aggravated nature and assault and battery, uh, second degree. And because of that, he got a larger sentence. So the United States Supreme Court came down with an opinion that essentially says that before you can use certain offenses to enhance, they have to meet certain requirements. And the mens rea, or sort of the mental state that you have to have, is one of either purposeful or willful conduct. And so the question that we're here to kind of talk about today is whether or not recklessness, which is another mental state, but one that's below purposefulness or willfulness, is sufficient whether or not this is what we require under South Carolina law, and whether or not those convictions can actually be used to enhance his sentence at this point. So, generally.

So, what we're talking about is he is contesting increasing his sentence, in effect? Yes. Okay. That's correct. Please proceed.

Okay, thank you, Chief Justice Beatty, and members of the court. I mean, the issue here today remains can the battery element of South Carolina's assault and battery, second degree, and criminal domestic violence of a high and aggravated nature statutes be violated by conduct on the part of an offender that is reckless, or, as the government argues, whether it requires more, a mens rea that is either purposeful or willful. Respectfully, Your Honors, I think it's clear that the South Carolina General Assembly intends to criminalize a greater universe of misconduct than what the government's interpretation allows. And let's be clear about what recklessness means. It is still a criminal state of mind. It still implicates volitional acts. But where recklessness parts company with the greater mental states of purposefulness or willfulness is that it evinces an indifference indifference to the consequences, or it is the conscious failure to exercise due care or ordinary care of those acts. That is, for purposeful or willful conduct, the actor intends to a greater degree the actual harm that results. With recklessness, the actor fails to sufficiently consider those results. But it's still criminal conduct. One does not get a pass merely because one's conduct is categorized as reckless and not purposeful or willful. And respectfully, I think our General Assembly has shown that it wants to hold offenders to account when they cause harm to others recklessly.

So if we determine that recklessness is enough for a person to be convicted of these two offenses, then, as I understand, that would not meet the definition of the federal law for enhancement purposes.

That's exactly right.

I mean, sir— And if we say, well, recklessness is not enough, and it requires more, a specific intent, then it may qualify for enhancement. So, that's what we're to decide.

That's exactly right, Your Honor. It would qualify for that. But it would also make state prosecutions for these crimes much more difficult. And I think that is sort of the tension in this particular case, Your Honor. Now, I think the strongest argument for why the Court should hold that recklessness is sufficient to support a prosecution under either statute is the basic principles of statutory construction compel that conclusion. and under our current state laws, and I point specifically to State v. Ferguson, when statutes do not disclose a contrary legislative purpose, the act must be accompanied by criminal intent, quote, or by such negligence or indifference to duty, or to consequences, as is regarded by the law as the equivalent to a criminal intent. In other words, unless the statute says something different, then recklessness is enough. And to hold otherwise would be to say that the General Assembly passed the Omnibus Crime and Sentencing Reform Act of 2010, or the Criminal Domestic Violence Act of 2015, they did so in order to make it more difficult for the State to prosecute these crimes. I think that's clearly not the case. A fair reading of the revised statutes shows that the General Assembly wanted to provide more tools to law enforcement and solicitors to prosecute these crimes. It does not make sense to argue that our state legislature wanted it to make it more difficult to prosecute these crimes.

I think I've asked you this question before, but can you give me an example, just an example, of criminal domestic violence of a high and aggravated nature that does not involve, at its most basic level, some purpose or intent, or absolute intent to commit the act?

Well, I think we have to be clear. I mean, in order— when we're talking about recklessness, we're talking about the results. So there is always a point—

You're talking about results. This is like déjà vu all over again. This is exactly how the last oral argument began, with Justice James asking you that question. I'm not talking about the result, with recklessness. I'm talking about the act. I think that the focus for this case is not the result, it is the act that the defendant takes. And if I may suggest, he's— we're asking you for a case in which, or an example in which, the act act could be reckless, and yet there's a conviction of criminal domestic violence.

Okay, well, so, um, and I think that the Attorney General's, uh, amicus brief—

every one of the examples in that brief involves an intentional act.

An intentional act. That's absolutely—

it's a volitional act, but the recklessly caused result—

that, but the result— I mean, but that, that caused a result and, and was reckless, that the act was reckless. Throwing a plate in the direction of somebody, when you know that it's likely to shatter, is a volitional act, but that's reckless, and that supports a conviction for C.D.V. Hand, under South Carolina law.

Right, but you can, in order to get C.D.V. Hand in that scenario, with the plate being thrown against the wall, the State has to prove that the defendant was recklessly indifferent, to the consequences of throwing the plate.

Yes.

But the State also has to prove that the defendant purposefully threw the plate against the wall, not for the benefit of the plate, not for the benefit of the wall, to threaten the victim. That's what— so you can talk about the result all you want to, under C.D.V. Hand, but the State cannot get a conviction for that crime, without proving that the defendant purposefully threw the plate against the wall?

Well, that they threw the plate, but I mean, when we're talking about recklessness, it's being reckless about the consequences of that act. I mean, that is what makes something either reckless or purposeful.

I don't understand that, but because what federal law, as I understand, what we're being asked to determine, as what Justice Kittridge pointed out, is whether the State can get a conviction for this crime, without proving the criminal state of mind, of purpose. And in the scenario that you just gave us, State can't get a conviction without proving that the defendant acted with purpose.

And that, perhaps, leads to another question: the purpose, if you will, behind the Legislature's use of the words "extreme indifference." Is that the wording of the statute?

That is, Your Honor.

What does that mean, in the context of high and aggravated under the statute?

Well, so I think, you know, the aggravating circumstances under the statute have to be met by, you know, extreme indifference.

And what does that mean? What do those words mean? Reckless, or on purpose, or what?

Well, so I think I actually sort of— so I mean criminal disregard for the consequences of one's actions. So for example, when we look at the cases in South Carolina that really kind of sort of dig down into these concepts, when you look at like Jarrell and McKnight, I mean, those are cases where the women ingested drugs and their children died. So this is sort of a good example of what, you know, kind of recklessness is, right? I mean, when they were taking the drugs, it was not with the intent of harming their children. I mean, they were taking it with conscious disregard for what those consequences would be, that's why it's criminal. And so, you know, we don't call it a purposeful conduct because they intentionally, you know, sort of put a pill in their mouth or what have you. But it's those consequences that drive the analysis, Your Honor.

So a little bit oddly, in this case, you and the Attorney General, through Mr. Farthing, agree.

Yes.

And your result, your preferred result would broaden the possibility of prosecutions for AMB II and CDV Hein aggravated for those defendants who exist out there in the State of South Carolina. It would just allow you to avoid the enhancement of a federal conviction.

That's exactly right. Honestly, Your Honor, I think this is what is happening already. I think that this reckless conduct is already being prosecuted. Expanding anything. It's just reflecting what the courts are already doing.

Could our answers to the two questions be different? One for assault and battery, it has to be purpose or specific intent, and CDVI and aggravated, allowing prosecutions for what you term recklessness?

I mean, respectfully, I think they rise or fall together, because we're talking about that battery element of both statutes. I mean, with regards to assault component, we know that those are specific intent crimes. But the battery component for both the CDV and for the assault and battery statute are the same. I think it's the same analysis.

You said—

I'm sorry, go ahead.

I just want to be real quick. You said that the assault component of assault and battery is a specific intent crime. Really, what you mean, I think, is that it requires the state to prove purpose.

I mean, you know, it—

yeah, you have to—

Specific intent and general intent are ways of distinguishing the intent of purpose.

Yes.

You don't— you can't have a specific intent recklessness. So when we're talking about specific intent and general intent, that's a discussion about purpose.

Correct? I believe that's— I mean, it is correct, you know, definitely to say that when we're talking about specific intent, you are seeking to achieve that particular result, or it's practically certain to achieve that result.

When we're talking about this Career Criminal Act under federal law, the four points of intent are purpose, knowledge, recklessness, and negligence.

Correct.

Okay.

The federal framework— now I'm going to piggyback on Justice Few's question. Ms. Franklin-Bash, you indicated at the outset when you were talking about recklessness, all right, so if we adopt that, you want us to take recklessness as a mental state and take to the finish line where this doesn't meet the federal congressional statutory definition, and therefore enhancement doesn't apply. But to me, you said something important. You said that the concept of recklessness that you propose, looking to our state's traditional common law-driven approach, that it's a volitional act. So I'm Are we splitting hairs here? What's the difference between— and I know we got the state system and the federal— I wonder if we accept the premise that recklessness involves a volitional act, a purposeful act, why isn't that the functional equivalent of purpose under the federal statutory scheme?

I mean, you know, this is such a difficult issue, I think. It is. And in thinking about my argument for today, and just why this is so true. It's because I think oftentimes when we are dealing with this particular issue, sometimes we're not being very precise in our language. I don't think it's very often that we have cases like this where mental state is on all fours and is sort of directly before the court. I mean, I think oftentimes when we're talking about these concepts, you know, we kind of know what we're talking about and we make, you you know, sort of conclusions, and that becomes our law, like with the kidnapping statute, for example, which seems to import like a knowledge element. Um, so, you know, I, I understand, um, the question. And, you know, I think with one of the things that's sort of complicating all of this is that Congress has created this, you know, statutory regime where, um, courts are to look, or the federal courts are to look at the most innocent conduct that can be prosecuted under a statute in determining whether or not a particular case can be enhanced or not.

And the federal courts have struggled with this.

Yes.

The federal courts have encountered confusion and uncertainty. Absolutely. You know, the federal decision-making has not led to clarity.

No, and I think there's movement afoot to sort of address some of these difficulties, frankly. Now that we have a Federal Sentencing Commission that actually can have a quorum, it may be that this is one of the issues that's taken up. I mean, I don't imagine that we are the only state that is beginning to kind of grapple with these sorts of issues. But that is, that's where we're at.

I have to ask, I'm sorry. We got this case because we were given a certified question from the U.S. Court of Appeals for the Fourth Circuit. Because they couldn't figure it out, right?

That's exactly right. I think also, principles of common law—

We can't look at the facts underlying these convictions of your client, because that's not allowed under the federal test, right?

That's correct.

Why should we even answer this question, in this vacuum? What good does it do the State of South Carolina, and the common law of our state, for us to wade in, on something at such an abstract level?

Well, I do think that the Fourth Circuit, you know, asked this Court to weigh in on it.

Well, of course, we don't want to disrespect our dear friends on the Fourth Circuit, but why should we answer the question, I guess, is what I'm— We don't have to. We're not obligated to answer it.

You're not obligated to answer it, but, you know, if you don't, the Fourth Circuit will. And I think the Fourth Circuit, in certifying it to this Court, is its way of saying, we respect what's South Carolina says about South Carolina law. And I think it was just sort of a way of saying, you know the history and tradition of this law better than they do, and it's your prerogative to weigh in on this issue. If there are no more questions, I see my time is out, and I will talk to you on reply.

Thank you very much, Counsel. Thank you. We'll hear again from you in reply. It is to be noted to the audience that this is the second time that this case has been argued before, and 4 members of this Court sat on the first argument. So this is a very sensitive question— well, complicated question, I should say.

Yes, ma'am. Mr. Chief Justice, Associate Justices, I'm Katie Stoughton. I'm here on behalf of the United States. I'd like to pick up where Ms. Franklin Best's argument left off, which which is why the court should weigh in at all here. As I answered in that first argument, my answer is a little bit different for each of the two statutes. With respect to assault and battery, at the time that the Fourth Circuit certified the question, there was no case law from either this court or the South Carolina Court of Appeals that shed any light on the mental state required to commit any of the statutory assault and battery offenses. Since that time, the Court of Appeals has issued the Gutterian case, which says that ABHAN requires an intent to cause an injury. We can fight at the Fourth Circuit about what that means. I know that we probably have different interpretations of what exactly the Court of Appeals meant when it said that, but at least gives the Fourth Circuit something to look at, some case law that sheds light on the matter. With respect to domestic violence, there is no case law from this court, or the Court of appeals, that really sheds any light on the mental state required to commit those statutory offenses. And so the Fourth Circuit would be put in exactly the same situation that this Court is in now, which is trying to discern the legislature's intent when it passed the domestic violence statutes. We believe, and I think the Fourth Circuit believes, that that is this Court's province, to discern legislative intent. So rather than asking the Fourth Circuit to substitute its judgment For this court's judgment of what the legislature would say, we've come, so to speak, to the source, to find out what the legislature intended when it passed that statute.

Let me ask you a question that is a bit ridiculous, not intended to be facetious, but your colleague over there, Mr. Farthing, is here for the Attorney General of the State of South Carolina. You are here for the United States of America, the U.S. Attorney's Office. Both of you are prosecutorial arms, correct?

Absolutely.

Why don't you just take Mr. Farthing's word for it?

Well, were it that simple. Respectfully, the Attorney General doesn't make the law. The legislature makes the law and the court makes the law.

But if he said what you say in the form of an Attorney General opinion, you'd be holding that up knowing it's not binding. But hey, members of the court, This is what you should go by.

That's right.

You disagree, and we need to get to the bottom of that disagreement.

It is something else that the Fourth Circuit could look at, certainly.

Why is Ms. Franklin Vest wrong when she says, "The mens rea, the mental state, sufficient to sustain a conviction under either of these offenses, is recklessness"? Why is she wrong?

Neither statute enumerates a mental state, and so, under cases like Jeffreys and Bryant, this court is to look to both the common law, and the development of the statute, and construe the statute in light of its purpose and design. The two statutes have very different statutory backgrounds, and so, I'd like to address them separately, if that's okay. Yes, ma'am. But, if you start with the assault and battery statute, the only thing that's clear from the text is that the sole differentiation between assault and battery, third degree, which is a 30-day offense, and the 3-year, or 10-year, or 20-year offenses, is the degree of injury. That's what differentiates each of those offenses. I think we all agree that it's gonna be the same mental state that applies to each of those offenses. So the question is, since there's no enumerated mental state, what was the legislature intending to do when it codified those offenses? When the legislature abolished the common law offenses, and that word abolish is important, because the legislature didn't say—

Now, are you talking about since 2010?

2010, yes. The legislature didn't say it was codifying the common law. It didn't say it was clarifying the common law. It says it's abolishing the common law, and it's creating those new offenses. So the question is whether, in doing so, it intended to make the types of recklessly caused injuries, or offensive touchings, that were punishable at common law, offenses that could be punished all the way up to 20 years as abhand, if great bodily injury resulted, or whether the legislature was targeting a narrow universe of crimes, crimes, namely those crimes that are caused with higher levels of criminal culpability. And I know, Mr. Chief Justice, you are more familiar with the Sentencing Reform Commission than I could ever be, but I believe if you look at the concerns that prompted the legislature to create the commission, and then if you look at the commission's recommendations back to the legislature before they passed the omnibus crime bill, it's clear that the legislature is targeting a narrower universe of criminals than from those who could be punished at the common law. The legislature was concerned about increasing prison populations and mounting correctional costs. In response, the Sentencing Reform Commission recommended changes that would allow prison space, limited prison space, to be reserved for violent criminals with violent tendencies.

And honestly, we thought we were clarifying a thing or two.

They wanted to make sure that those violent criminals with violent tendencies were serving longer terms in prison. And so the idea wasn't just to make everything punishable by more time in prison, right? It was to target people who were wreaking havoc on the streets by making a deliberate choice to cause harm.

And you're saying the statutory scheme, the different degrees, were based on the seriousness of the resulting injury, right? And your point is that even though the, the injuries may be less severe, severe, more severe, the underlying act itself was consistent throughout the varying degrees. More specifically, more to the point, intent.

Right.

Purpose. Some sort of intent to harm, or to offer, or attempt to harm.

Let's say we agree with your interpretation. What is going to happen? You're talking about prison population. What's going to happen to the probably thousands people convicted under the statute, and their lawyer didn't raise, or the trial court didn't instruct the jury, that this intent level of purpose or knowledge required? What are we, what are we going to do with those cases when they come up after they read the opinion that you've asked us to issue?

So this is an important point that I want to make clear. We believe that we are asking the Court to say what the status quo status quo already is, and that's based off of all of the cases we've been able to identify that have fact patterns prosecuting these cases. It's based on all of the arrest warrants and indictments that come across our office when we're looking at potential predicates. We just have not seen, and none of the parties have put before this Court evidence, that purely recklessly caused offenses are currently being prosecuted as assault and battery under the statute.

But doesn't Professor Makinich, who's is considered the authoritative source, I guess, on criminal law, perhaps, as far as an academic standpoint. He says recklessness is enough. So, that's been out there for years, even after the passage of this statute.

But, he's relying on common law principles, and so the question for this Court is whether the Legislature, in abolishing those common law offenses, and codifying statutory offenses, intended to import all of that common law into the statutes, or whether it really was a break and a creation of new statutory offenses. I'd like to address, if I could, the hypotheticals in the Attorney General's brief, because I think this illustrates that we don't believe that our interpretation of the statute would in any way limit the state's prosecutorial authority. In that hypothetical, or the series of hypotheticals, Person A and Person B are in a fight. They're in a heated argument, and in a rage, Person A throws a plate at the wall, in the opposite direction of Person B. That's an intentional act, throwing the plate at the wall. The plate shatters, and if you take it to the most extreme of the State's hypotheticals, a piece of the plate hits Person B in the eye, and permanently blinds them.

That's two people, A and B. A is the aggressor, B is the victim.

Yes, Your Honor. So, you've got an intentional act of throwing the plate at the wall, and you've got a recklessly caused injury to Person B. And the State says, and we agree, that that is arguably conduct that needs to be able to be prosecuted under the statute. But the key facts of that hypothetical are that Person A and Person B are in a fight, and Person A is throwing a plate at the wall in a rage. And so we believe it's clearly prosecutable under the statute, because there is a threat conveyed when you're arguing with someone, and you're throwing things, whether you're intending those things to hit them or not.

But that, that would be contrary to the model penal the Model Penal Code's definition of purposefully and knowing, which cuts across against your whole argument. How do you square that?

I'm not sure how it would contradict the Model Penal Code. What I'm saying is it was an intentionally conveyed threat, even if the harm itself wasn't conveyed. These statutes don't require an injury. They require an offer, or attempt, or an injury. It's all one offense. It's all one assault and battery. So you don't even need the injury to prosecute someone, especially under AB 2nd or AB 3rd.

Let me alter the hypothetical a little bit. Sure. Have Person A, enraged husband, Person B, household member, let's just say wife. She is standing directly across from him, and in a rage, he takes out a pistol and fires at 90 degrees opposite. Bullet goes through the wall. He did not know another household member was in the room next door, and strikes that person in the leg. What was his conduct toward the person in the other room? Was it not just simply extremely indifferent, or reckless? He had purpose to fire the weapon, but the high and aggravated portion requires proof of extreme, or can require proof of extreme indifference. So what's the offense? What is he going to be charged with?

So I have two answers to that. One I think might draw some consternation from the bench, but for these general intent crimes, you can use transferred intent, and so the intent to harm the person may transfer, but he's—

No, he didn't fire at the person.

You're right. So my second answer is that When he is shooting at the person—

Not at the person.

He shoots a person he didn't know was there.

Or, he fires into the ceiling, and it goes upstairs.

Reckless conduct that can be prosecuted under other statutes. It's a reckless use of a firearm.

But, can it be prosecuted under CDV HAN?

Well, I don't think it violates the underlying domestic violence statute. So, it may be circumstances that amount to extreme indifference.

That's a trick question. Because he's asking you—

I didn't intend it as a trick question.

I'm sorry, I've messed it up.

Answer 3 then. As to the person who gets hit, who knows what the crime is, but he's still guilty of criminal domestic violence of a high and aggravated nature against the person he was trying to threaten.

Sure.

Based on the same intentional, purposeful act.

Yes, you've still got the threat as to the person I was focused on the person who was shot, which is, I think, a trickier question.

But he wouldn't be guilty under the battery, correct?

Is that what you're telling me? And that's why I asked if there were two possible answers to two different offenses. I asked Ms. Franklin, "Best that." Could our answers be different?

Your answers to what the mental state for CDB in assault and battery can definitely be different, because neither of those statutes enumerates a mental state. Mental state. And the question is to look at the purpose and design of each of those statutes, which, as I said earlier, have very different backgrounds. And so you certainly can find that— you probably have to find that C.D.V. requires a higher mental state than assault and battery.

For the benefit of the audience, assault is drawing back as if to hit you. That's assault. Yes. Battery is the physical contact when the aggressor follows through, and that requires some purpose and intent, undoubtedly, right?

Yes. I just want to point out—

Using that scenario, we were joking around at the last oral argument about transferred intent, but on a serious level, in the battery, in the assault and battery question, using the example that Justice James gave you, the intent to threaten the person that he was intending to threaten would transfer to the person who was hit by the bullet.

Yes.

And you would have the intent to threaten, then present, and the physical contact present, and the person who was hit by the bullet could be guilty of assault and battery.

Yes, that makes sense. And, and again, to point out that it's all one offense, even though we don't have transfer We just don't have transferred intent in attempted murder.

We have it in other crimes.

Right, but these are not specific intent crimes. I just want to point out briefly, because my time is going to expire soon, this interpretation of the statute as not proscribing reckless or negligently caused injuries makes a lot of sense when you look at the South Carolina Code as a whole. So under Mr. Clements' interpretation of the statute, if I took some action recklessly, recklessly, if I did it with a conscious disregard for the safety of others, and great bodily injury resulted, that would be "abhand" under the statute, which is punishable by 20 years. Um, but if I took that exact same action, in reckless disregard for the safety of others, and the person died, it would be involuntary manslaughter, which is only punishable by 5 years. Um, if I took that same action, with reckless disregard for the safety of others, but I did it with a boat or a car, it would be punishable by 10 years. It doesn't make sense that the legislature was intending to sweep up recklessly caused injuries as assault and battery of a higher and aggravated nature based solely on the harm that resulted. The legislature has expressly prohibited reckless conduct in a number of circumstances. It's done it where the conduct has resulted in death, so involuntary manslaughter, reckless homicide by car or a boat. It's done it where there's a particularly vulnerable victim, like with infliction of great bodily injury on a child, or the hazing statute, which applies to students. And it's done it when there's a particularly dangerous object used, like a car, or a boat, or a firearm. So it makes sense to say that at some point, even though you have a lesser state of criminal culpability in terms of intent, the resultant harm, or the potential resultant harm, the public policy danger there is so significant that we're going to punish punish it anyway. But that doesn't fit with saying that any recklessly caused injury can now be an assault and battery of a high and aggravated nature, or a DV hand punishable by up to 20 years in prison. Um, King explained that there's sort of a counterintuitive result with attempt offenses, right? Murder is not a specific intent crime, so you don't have to have a specific intent to kill to commit a murder, but an attempted murder does require that intent.

As I was asking Ms. Franklin Best, those are differentiations between the types of purpose.

Yes. I'm sorry, my time has expired. If I could just finish the thought. So King explained that the reason attempt offenses require a higher level of mental state than the completed murder offense is because the legislature was punishing the dangerousness of the actor, not the act itself. The corollary to that comes with the reckless reckless offenses, where even though the actor has a less culpable mental state, in some circumstances the legislature has said, what you've done is so dangerous, or it resulted in such a bad harm, we're going to punish it. But there's just no reason to look at the legislature's decision to abolish the common law and conclude that they still decided to somehow make those reckless offenses punishable by even more time in prison than they were under the common law, when they were trying to reserve prison space for violent offenders with violent tendencies. The court has no further questions. I'll rest on our brief.

Thank you. Thank you very much. Mr. Farthing.

Thank you, may it please the court. Mark Farthing on behalf of the state, this time in an amicus role.

Um, before I— before you get started, Mr. Farthing, why should we answer this question? What's the Attorney General What is the Attorney General's position on that?

Well, you know, we don't really have a dog in the fight as far as the question being answered. I certainly, I had a hard time wrapping my head around the United States v. Drummond decision, which came out before Borden from the Fourth Circuit, when they took a crack at some stuff. And so I don't know that I necessarily want them to take a crack without any guidance from us. So I think that is our interest in it. But as far as how the federal law plays out, you know, it's just not our primary focus in this case, which leads me to what I was going to start with. I am not standing before you as an expert on Borden or Voisin or the Armed Career Criminal Act, and so if I am wrong on any of the stuff that I interpreted from them, please feel free to disregard it. But as I read it, Voisin and Borden are where I'm having a hard time wrapping my head around the federal government's position because the word intentional can mean multiple things. Intentional can mean volitional, and intentional can mean purposeful. And as I understand it, when we're talking about intentional here for it to satisfy Borden— and again, not a Borden expert— uh, um, I think they're saying it has to be purposeful, not just volitional. And I think that's the distinction.

Explain the difference between the two.

Well, purposeful means you have an actual purpose that you're setting out to do. Volitional means I have committed the intentional act, but I don't necessarily have a specific purpose for the act that the statute is specifying. So in my hypothetical with the guy throwing the plate against the wall, the guy throwing the plate against the wall specifically— and I use the opposite wall, unlike Voisine— specifically threw the plate against the other wall, just because he was mad, but didn't necessarily want it going anywhere near the victim. So he had the intent to smash the plate on the wall. Because he was so blinded in his anger, His intent went no further than that. There was no intention in his mind of anything other than, I'm mad, and I'm going to smash this plate. If he had been purposeful, then he would have to have the intent related to the victim. And that's the distinction between the statute that was issued in Voisin, was use of force, where they said recklessness is absolutely OK, and then Borden's, which was use of force against another, where they said, actually, no, it needs to be purposeful. It needs to be directed at somebody. Under my scenario, I think throwing the plate against the wall is use of force, but it's not a use of force against another because he didn't have it directed at that individual at all.

But I'm going to push back on you a little bit there, because in a criminal domestic violence scenario, I think that the purpose can be satisfied not by an intent in the mind of the defendant to harm, but rather an intent in the mind of the defendant to convey to the victim some sort of threat, some sort of anger, some sort of, you know, that kind of thing. So, to take the plate on the wall, the defendant might very well say, "I'm going to throw this plate against the wall, but I want to make absolutely certain that I do not harm my household member." That's still purposeful conduct, because the intent is to throw the plate against the wall for the purpose of letting my household member know that I'm mad, that I'm threatening him or her.

Am I right about that?

You absolutely are, and I appreciate the, um, United States government acknowledging that, uh, that potentially could satisfy it from the offer, but the interesting thing that I would note about that is, that doesn't answer the potential factual question that can emerge there, because throwing the plate against the wall doesn't invariably mean he was making an offer, i.e., the threat to the victim.

It could, and if it doesn't, he's not guilty.

Not guilty under the offer theory, but our view is he could still be guilty under the cause and injury theory under our particular scenario, because his actions expressed a conscious disregard for the significant risks his actions were creating.

And so I think If you're right about that, what you just said, if you're right about that, then I'm going to vote for Ms. Franklin Best. But I don't think you're right about that. I mean, get— and this is the thing we've been focused on all in this oral argument and the one before. Give us an example in which a person can throw the plate against the wall with reckless disregard for the fact that the household member might be threatened. And still he'd be guilty of domestic violence.

Well, I think that goes to the intent of the actor, though, because, uh, uh, offer and attempt are the, the versions of that crime that are specific intent crimes, correct?

Correct.

Right. And so if there's—

I'm gonna let you ask me that question just this one time.

Yeah, but, uh, sorry, Your Honor, but if there's specific intent crimes, though, he has to have the specific intent.

Yeah, I think, I think this all boils down to 20 of Section 20? Better. No, I'm thinking about domestic violence, 1625.20, because under , you got to have purpose.

That's what I'm saying. For the officer, for the officer intent.

Yes.

Okay.

But under , it simply says it is unlawful to cause physical harm or injury to a person's own household member.

Correct.

Right. And that's the language that comes right out of the regular domestic violence, which is why we think recklessness is satisfied there, so long as you check off the other boxes. And one of the things we've talked a little bit about our legislature and what they intended and didn't intend, but I was trying to come up with— we're looking for something with intent to injure, and we just don't have a lot of stuff out there talking about it.

Can I just ask you a question? Sure. We were all about these high hypothetical. Let's— if the throwing the plate is not a really good example, because people don't throw plates for the purpose of, um, you know, anything other than conveying to someone else their anger. Imagine a scenario in which a man is driving a car and his wife is in the car as a passenger, and he's furious with her, but he hasn't conveyed that fury in any way. No, not verbally, not through body language or in any way. And he runs a stop sign that he should have seen in reckless fashion and she is injured. Is he guilty of domestic violence?

I don't know that I want to answer that question because as the state, I don't want to get us locked one way or the other. I would note, though, our legislature thinks that would be a crime if it was a child because of our infliction of, um, great bodily injury, because remember that statute specifically outlaws inflicting a great bodily injury on a child. And I think it's E, I can't remember off the top of my head right now, but in 16-395, it has a provision in there that says if the injury occurs in a traffic accident, it doesn't qualify as the offense unless the accident was caused in a reckless fashion. So if the driver injures a child and causes great bodily injury to a child—

Taking the child example and setting it aside, if you take the example I gave you and change it just a little bit, the man's driving down the road, he's furious, and he has conveyed that fury to his wife, who's sitting in the car, in such a way as to make her believe that he's going to run a stop sign for the purpose of hurting her, and he recklessly runs the stop sign, he's guilty there. Sure. So in the first scenario, I think what this comes down to is The case goes to— the case gets tried. And for Pete's sake, he has not conveyed his anger to his wife. He recklessly runs a stop sign. She's seriously injured. Case goes to trial. Jury comes back and says, Judge, we have a question. Can we convict him of domestic violence here when he did not purposefully try to threaten, or whatever, his wife? Well, and the judge had the answer. The judge's answer to the question is the resolution of this case, I think.

Well, and I think if we're going to the regular domestic violence, and you're looking at the plain language of those terms, cause a physical injury to a household member, you can cause an injury to somebody without setting out to cause an injury. People cause injuries to other people every day.

Negligently, non-negligently, recklessly, right?

And I think the language they employed allows recklessness. And I would note, in both the AB2 and the domestic violence— and I note, in 2007, so 3 years before the omnibus, uh, that was the last time we messed with that, um, workers' comp exception statute. And, uh, that one has the language that that somebody trying to make a workers' comp claim is out of workers' comp if they were injured, or the injury or death resulted when they did something with an intention to injure. The legislature knows how to communicate an intention to injure being required when they want to, i.e., purpose. They didn't do it in the Omnibus Act. They didn't do it with the Domestic Violence Act when we changed it all up. I think recklessness is sufficient when you're looking at cause or injury.

Just, just maybe one last question, but we're talking about the language that I quoted a minute ago, which that language does not say anything about purpose. It is unlawful to cause physical harm or injury to a person's own household member, right? But that language is included within the domestic violence statute, right? So there has to be something that makes the, you know, there's, I guess, implied into this, uh, into this text of subsection 1625.20 that is the violent part. Because if it's— if a person— if I— if you drop your coffee mug at breakfast tomorrow morning and it lands on your wife's foot, you are not guilty of domestic violence unless you acting with that violence.

Yes, but the violence that I was acting with could be violence that is not directed, like Borden's talking about, against another, but it still could be criminally culpable because it still could be an act that I committed with recklessness. And if it's an act with recklessness, it fits into the criminal culpability scale under purpose, under knowledge, yet still is criminally culpable. Or if I did it completely accidentally, I have no criminal intent, and I could do it in a manner that is just simple negligence that doesn't get us anywhere into a criminal court and can be addressed other places, though I don't think my wife's gonna sue me for that, hopefully.

What do you think the legislature's intent was in passing the amendment to the CDP statute?

I— well, I'm not exactly sure what the intentions were for everything, but I think that they were trying to make a domestic violence scheme that was somewhat consistent with their A and B scheme and was escalating and was clear and easy to follow.

And could it be to deter domestic violence?

Oh, absolutely. I think there's an intention to deter all of these crimes, and that's why we prescribe them.

If we require intent or purpose, are we not watering down that legislative intent?

Sure, I think, I think so. And I think our legislature knows how to write a statute when they intend for a higher mental standard. State to be involved, and they chose not to do it here. But one other point I'd like to make, though, is, you know, I mentioned that federal statute. That federal statute that has— the U.S. Attorney's Office has argued in other contexts is capable of being committed by reckless conduct, uses basically the same language as Arie B. too on the assault with— I think there's a serious bodily injury instead of moderate. But they've said in the context when it benefits their prosecutorial authority, they can be committed recklessly. But the same statute also has assaulting an intimate partner by strangling, or suffocating, or attempting to strangle, or suffocate. If you keep going down in that same statute, that one's 113, if you keep going down in the same statute, it says, it defines strangling, and it defines suffocating, and both of those can be committed recklessly. And so I don't know why we would be interpreting our statute in such a restrictive way, unlike how the federal statutes are interpreted, unlike how most statutes interpret these crimes. And so we are here today in an effort just to make sure these statutes are not interpreted in such a restrictive way that it cuts off our prosecutorial authority and leaves us having to tell victims, sorry, you're going to have to go to civil court to get your remedies addressed.

Can't— can our answers to the two separate offenses be different?

Oh, sure, they absolutely can be different. And in this particular case, The answer to would be, well, the answer to either would be dispositive. If it's yes, you can do reckless, because he has to have 3, and I think he only had 3 convictions, at least from what is—

No, I'm talking about could our answers, could our answer with regard to purpose, intent, reckless conduct, and so forth on and be different from our answer to the high and aggravated?

It can, but the only thing that I worry about, about if our answers are different, and it's yes for the A/B and no for the DV Han is, the operative language of the DV Han that I think goes to purpose is applicable to all DVs, so it's going to be a very broad answer if it's a no. If there's no further questions, though, thank you very much.

Thank you very much. Ms. Bass, in reply.

Thank you, Your Honors. I mean, it's unusual, perhaps, to think of the state's interest in prosecuting crime and the federal government's interest in prosecuting crimes as at odds with one another. I don't know that I can think of another situation quite like the one that we're here— that we're here. But here is where we are. I mean, the government wants to avail itself of enhanced sentences under the Armed Career Criminal Act, which is completely understandable, but they can only get these enhancements if this court agrees that only purposeful or willful conduct can be prosecuted under these statutes. But that's going to make it more difficult for state law enforcement to, to do its job, which is to protect South Carolina citizens, especially victims of criminal domestic violence. I mean, at the end of the day, this is a federal government problem and not a South a North Carolina problem, and this court should find that reckless conduct supports prosecution under assault and battery second degree, and criminal domestic violence of a high and aggravated nature. Any more questions?

Thank you very much. Ladies and gentlemen, to those of you that were with us in the first session, you understand that we do allow questions at this point. Point in time, and I think most of you were here the first session. But in any event, the questions that you are going to be allowed to ask of the lawyers of the bench are questions that cannot be something— well, the answer, I should say, cannot be something that might influence our decision in this particular case. We're going to have the law clerks and others to come out with the microphones, and we will take whatever questions starting on my left-hand side of the room, your right. Is there a question on this side of the room? No question on this side, on the left. Let's go to the center. George McCall here. The U.S.

Supreme Court has been under criticism in recent history for the lack of a code of ethics.

My question is, does the South Carolina Supreme Court have a code of ethics?

And if no, do you think we need one? Yes, we do. In the short answer, yes, we have a code of ethics. Are we bound by it? Yes, we are. The Supreme Court is the only court that I'm aware of that does not think that it's bound by a code of ethics. The U.S. Supreme Court, that is.

Thank you for that question, Mr. McCall. Appreciate you bringing Caroline with you today. Great to see y'all, my neighbors.

Good. Question on the right side of the room, my right, your left. No questions? Boy, I tell you, I thought we'd have some of those leftover from earlier.

Emily Eve State with Tri-County Technical College Criminal Justice Program. Apart from meeting other requirements to become a Supreme Court Justice, you have to go through some level of vetting process and hand or background check. This is to establish your integrity as a judge and ensure the board's integrity as a whole. So my question has 3 parts.

One, how exactly does this process look?

Two, how thorough is it?

And three, do you believe it needs to be more or less extensive in any way, shape, or form?

Well, let me say that's a very good question, and each of us is very familiar with the process. Your last part of the question, I think we'd be I would be very hesitant to respond to. It's more of a political question that's before the legislature at this point in time. But Justice Kitchen, it's your turn.

Thank you, Chief. Justice James just whispered to me, "It ain't fun." That gives you a sense of the intensity or scrutiny of the process. A very detailed application is required of your personal background, your professional background, financial, in every aspect of your life. That is sent to the Judicial Merit Selection Commission, which consists of members of the legislature, 6 members from from the body, 3 from the House, 3 from the Senate, and 4 at-large members from the public. Once that's filed, you go before a local community screening process. There are some lawyers on that community assessment board and process, but also members of the community, business people, community leaders. And they are required, and they do in fact, call dozens of people in the community in which you live to find out what is your reputation for character and integrity. You then appear before that body, and they question you at length. They prepare a report, and they submit it to the Judicial Merit Selection Commission that I just referred to.

To.

The next step in the process is you are vetted and reviewed by the South Carolina Bar. A large number of attorneys agree to participate on a voluntary basis to review the candidate's qualifications. Again, they make an independent review of contacting and calling people in the community, but unlike the— the first phase that contacts people in the community generally, the Bar often limits itself, or at least primarily, to lawyers. What is that judicial applicant's reputation in the legal community? At the end of that process, you appear before them, and you answer questions, and you're vetted. They file a report that, again, goes to the ultimate body, the Judicial merit selection commission. They then review all the information. There's an opportunity for people to, uh, submit, uh, survey responses as whether they believe a candidate is qualified or unqualified. People can file complaints against a potential candidate, and then those are vetted at a public hearing, and the hearing can be very extensive. At that hearing, under current law, if they find candidates qualified, then the Judicial Merit Selection Commission submits the names of 3 of the qualified candidates to the legislature for the ultimate decision to be voted on by the legislature. I want to do an, sort of an overarching comment to your question. I want to leave you with the impression that it is a very thorough process, and I want you to understand that South Carolina vets candidates very diligently. And one bit of evidence to substantiate that claim is Very, very few of the judges elected by the General Assembly ever end up in a judicial grievance setting where they are found to have committed misconduct. We get every week a summary of disciplinary grievance dispositions from every other jurisdiction around the country. This page after page after page of whether judges have done something inappropriate. And I will tell you that you hardly ever, ever see a member of the South Carolina judiciary in those reports. And I submit that the reason why the judges elected through the Merit Selection Commission do not end up with grievance problems and disciplinary problems is because they do such a good job on the front end. But my final comment is that we do have some problems occasionally. We do have to discipline, and the chief particularly has to be involved in the discipline of magistrates and municipal judges, and they sometimes find themselves running afoul. Of the rules of discipline and ethics, and they are held to account. And what's the difference between the magistrates and municipal judges and the judges that go through the legislative elective process? The magistrates and municipal judges are not vetted. They're just appointed primarily, if not exclusively, on a political basis. Those are the judges that end up in trouble, in hot water, in disciplinary matters. That shows you the difference between judicial candidates who have to go through a very exhaustive vetting process and those that do not. The former largely are free from any ethical complaints down the road. The latter unfortunately run into those problems. Forgive me, Chief, for the long answer, but I wanted to be thorough as I could.

Honestly, I think you were thorough, and I think it was necessary because there's so much in the media recently about judicial screening and the selection of judges, and I think your explanation was on point, and I think it was beneficial to the audience. And by the way, Justice Kennedy, Kittridge is currently involved in the same process, the extensive process, and that he described to you. And the truth of the matter is each and every one of us sitting here has gone through it at least once. Well, actually several times, if not more. Next question, center room. Hello, Your Honors.

My name is Susan Blackwell, and I have a rather naive question.

I wondered if the defendant is ever present during these oral arguments or at the ruling. Yes. They are not present for the ruling, because we do those in-house, and we publish them on our website. But are they sometimes present during oral argument? Yes, but not all the time. Well, it depends upon if it's a criminal case, and most times they're still in jail. That's what I thought.

Thank you.

Question to the left side of the room.

My name is David Grice, and I go to Greenville High, and I had a question about I hear that surgeons can't operate on family members, right? So can judges, lawyers, and/or justices preside over like a trial involving a family member?

Good question, but Justice Few will answer it for you.

Well, that kind of ties back to the question about rules of ethics because those— that rule is set forth Specifically in our ethical code, we call it the Code of Judicial Conduct, and I won't necessarily be able to recite it word for word, but there are certain degrees of kinship that are so close that we cannot participate in a case involving someone very close, such as I know my brother is a lawyer, my father is a lawyer. I could not sit on a case involving either one of them, but I might have a third or fourth cousin who's a lawyer who is is not so close to me in relationship that it would not permit— prohibit me from interfering. And then there's a whole other side of that analysis where we have to not only look at the technical requirement of whether the person is closely kin to us, but we also have to look at how the public might view it. So, for example, I have a cousin who's a lawyer who's not close enough to me to be automatically disqualify me in terms of kinship, but he's close enough friends with me that people who observe this would raise an eyebrow, and so I would not sit on anything that involves him.

Thank you very much. To the right side of the room.

Good afternoon.

My name is Harry Bullock. I'm an engineer. Judge Kitrick yesterday gave a great summary of numbers, and numbers are important to engineers too. He talked about why we have numbers, and I have— I would hope that he will repeat that today. I have a question relative to numbers. He went from the lower courts up to the Supreme Court of the United States, which is 9 people. and there is a movement and discussion about that number being larger, and I would like for that to be discussed.

Justice James.

Well, as far as I mentioned earlier in response to a question, that does tread quite deeply into the political feelings of those on both sides of the aisle. If the court were expanded perhaps from 9 to 15, who is to say 20 years from now that would be enough? Or who is to say 20 years from now people might say, well, I think it should go back to 9? I personally, I believe 9 is enough. You certainly don't want an even number because you might have too many tie votes. But, you know, I've never really thought about it. You know, some people call it packing the court because they might have a particular advantage in the Senate, the United States Senate, which effectively screens and recommends these candidates to the president. But, you know, when is enough enough? Chief, I hate to keep copping out on all these questions that involve some element of politics. I'll just state my personal view is, regardless if it's majority supposed liberal versus a minority of supposed conservatives, to me, 9 is enough.

Thank you very much, sir. We'll go to the middle. Or did we skip? No, it's back on the left side. I'm sorry, back to the left.

Gentleman on the 4th row.

5th row.

Your Honors, one, my question is not as nuanced as the last few questions.

I will say, as a citizen, I've heard ignorance of the law is no excuse. Since ignorance of the law is no excuse, sometimes you don't know what you don't know, especially with lack of shared vocabulary and scrutiny around definitions and case laws.

So are there any suggestions on how to navigate an understanding of the law from a citizen level, with or without the desire to be a lawyer, or having a lawyer?

Present or representing us.

Justice Hill.

Well, that's a good question, particularly as our society becomes more and more complicated and we seem to get burdened with more and more rules every day. You're right, the principle of law is ignorance of the law is no excuse. How do you navigate that without a lawyer? Is that— that was your question, sir?

You want to prevent it by having a lawyer present, but if you don't and you're just—

yes.

Yeah. So obviously you can represent yourself, but it's not advisable. Of course, we've all been trial judges here. People come into court all the time in trial court. Want to represent themselves, and we have to, particularly in criminal cases, discourage that. And, but people have a right to represent themselves. You have a right to appear in court on your own, in your own personal interest. So we have to go through a series of questions to make sure that people are doing that voluntarily and knowingly. And one of the things we tell people who want to represent themselves in criminal cases is that they're making a mistake, essentially. We're basically trying to talk them out of it, because we have to make sure they're doing it with their eyes open and fully aware of the pitfalls of doing it. So just as you wouldn't, or at least I wasn't, anybody who knows me and knows my limited mechanical abilities, I wouldn't work on my own car. I wouldn't recommend people working on their own legal problems. It's just— it's just not very wise, and so that'd be my answer to that question.

Thank you very much. As it relates to judicial— excuse me, legal education for the common person, this event is one of those things that we do in an effort to educate the public. In addition to that, we have what we call the Supreme Court Institute, where we bring teachers, invite teachers to Columbia for a week, and we put them through the legal process, and we are teaching them so they can go back and teach in their classes certain things about the law and civic responsibility and that kind of a thing. Additionally, as it relates to the schools, we often, and we still do, suggest strongly that our judges at every level of court visit a classroom and talk about the law at least once within a year. And with we having, say, 600 magistrates and municipal judges, we have another few hundred other level courts, meaning family court, circuit court, court of appeals, the Supreme Court, Masters in Equity. All these folks, we are asked often to go into the courtrooms and talk to the students about the law. We make very— or every effort, I should say, in trying to educate the public about the law. And this thing about ignorance of the law is no excuse is often said, but for practical purposes, no. If you don't know, you don't know. But in any event, that's what I have to say about that. We have one final question that goes to the middle. I thought I saw a hand in the middle. I did not. Oh, there it is. William Shine.

Again, I asked the question of yesterday, and I'm going to ask it in maybe a little different way today, based on Justice Kittridge's explanation of the judicial process, if I understood It seems that the 4 cases that you've tried for the public today, and to our benefit, are all based on technicalities and interpretations of due process of law in the lower courts, and brought through the appellate process.

Judge Kittridge, if I remember correctly, in your explanation, you said there were 2 purposes of the justice.

Process.

The first was ascertaining the truth, and the second was procedural law. Can you give some examples of where the Supreme Court of the State of South Carolina searched for the truth versus a discrepancy in a lower court on procedural process?

And I'll respond to that, if it's okay, Mr. Chief Justice. Mr. Schein's question, and I'll hearken back to Mr. Bullock's question earlier. Those who weren't present, we had a young man and others ask questions, and in response, I shared in summary fashion the two 2 pivotal, crucial goals that the law is designed to serve, as established by our founders: the ascertainment of truth and the certainty of a fair process. Ideally, the law would achieve both of those goals simultaneously, so that a case comes to court, you find the truth, and what was referred to as a technicality or a process, they all work together and they come out the same. Truth and a fair process coincide. The tension comes and the conflict arises when they are not lined up and truth is at odds with a fair process? I will answer that not with the hypothetical that I gave earlier, that was a silly hypothetical, but it illustrated the point. I'm gonna illustrate it now with an actual case we had years ago, and I wrote the opinion, and it was 5 to 0. We were all together. In an area of South Carolina, police suspected that someone was a drug dealer, so they decided they would put a GPS device on the individual's vehicle so they wouldn't have to follow him around. They could just sit in their office and monitor where he was going. No search warrant. No nothing, even though the United States Supreme Court in a case called United States v. Jones had held 9-0 that it was a violation of the Fourth Amendment to place a tracking device on a vehicle without a warrant. There's also a state statute that requires a listening in or tracking device on a vehicle to be installed only after an application through the state law enforcement division to a judge to obtain a warrant. Well, in this case, they did none of that. It turns out their gut was right. The individual was a drug dealer. And one day the drug dealer goes to Atlanta, and they see him on the computer driving back to South Carolina. They say, you know, let's just pull him over and search and see what he's got. So they get a state trooper on the edge of the road as they follow the track, and they pull him over as he enters that particular county. And lo and behold, he's got the drugs. So that's the truth. That's the drug dealer. He made a motion that you can't do that in law. The The ends don't justify the means. Process and truth. That's an example where the truth is in conflict with the certainty of a fair process. And I would submit to you that constitutional rights are not technicalities. They are fundamental rights to which every citizen, including me, and each of you is entitled. And we held 5 to 0 that his conviction could not stand on that basis, and we sent it back for a new trial because the certainty of a process, the actions of law enforcement of not obtaining a warrant when they knew that the U.S. Supreme Court case was on point. We had a state statute on point, and they ignored it, and they chose to place a GPS device. So they got the drug dealer, but they didn't follow the correct process. So there's an old saying in the law that many people who are convicted or guilty should go free at the expense of an innocent person being wrongly convicted. So I think all of us would agree without any hesitation or apology that when we enforce constitutional rights, we do so consistent with our oath. And if it's at the expense of truth, we're guided by the adage that in law, the end end doesn't justify the means.

Thank you, uh, Justice Kittredge. Uh, that was our final question. Uh, time— we have time constraints today, but I want to make, um, one response to a question we got on yesterday concerning why doesn't the Supreme Court include certain types of cases in our public index. Well, I told you I would look into that. And see whether or not, uh, that was the case, because we make every effort to be transparent. There are two types of cases we try not to put on public index. In fact, we do not. We have a case management system that was constructed some time ago, and it was constructed with the exclusion of these two categories of cases. Therefore, they are not automatically included in our public index. The first one, family court matters, and that's because they involve children and information about families, personal information. And the other category oftentimes includes cases involving criminals or defendants, and reason being, we learned some time ago that they will put anything in writing, and there's no way to redact personal information and that kind of a thing about other people, even though the defendant might be talking about himself, they always talk about other people as well. So we don't include that information in our public index. However, if someone wants information, we provide it to them if we have it. And in the Gerard Price matter that you mentioned, I believe, on yesterday— I don't know if the reporter is still here, but if you recall, we did provide that information to whomever requested it. At their request, we We went back and found that information and gave you what we had. Now, that question being answered, that concludes our session for today. Let me thank each and every one of you for the effort that you've shown in participating today. Your presence here was fantastic. We could not have done this without the assistance of Furman University. And the Riley Institute. And there were some individuals who were instrumental in making this happen. We're talking about Don Gordon. I saw him sitting on the left side of the room for a while. I don't— is he still around? Oh, there he is. Okay. All right. And of course, we're talking about Jill Folsom. Folsom, I think it's Folsom. She's back here. She's been behind the curtain all this time, but she's been the major mover in getting this stuff done. And then Kendall Gallagher, who was very, very important as well. And then we talk about Jackie Martin and Theresa Crosby. Those are all the individuals who were very, very much involved in this process. It's not an easy thing to put the court on the road. It takes a lot for for us to leave Columbia and the technical work that we need and the facilities we have to bring with us, if you will, the equipment, that kind of thing, is extensive. But we have good people like our clerk of court who's sitting over there, Tricia. She takes care of this matter for another good lawyer, by the way. So again, thank you all for assisting us in our efforts to be transparent and bringing the court on the road for taking, or lifting, if you will, the curtains over the judicial system. Thank you for participating in our efforts at civic education. So on behalf of the South Carolina Supreme Court and those who are involved in this event, thank you all very much. That concludes our work here today. We are now adjourned.