State v. Joshua William Porch, App. Case No. 2013-2531 (S. C. Ct. App., filed 8/3/16)
The main issue in this Court of Appeals case is whether the trial court judge erred in failing to void the State’s arrest warrant pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Franks generally stands for the proposition that cops can’t lie or omit material information in the affidavits they obtain from magistrate court judges.
A bit of the history of this case, since I’ve actually had a personal interest in it. Initially Justin Mallory was arrested for the murder of his wife around Mother’s Day, 2006. I met with Mallory just after his arrest when I was with the Richland County Public Defender’s Office. He ended up hiring a private attorney so I didn’t keep the case. But I still remember meeting him, and seeing how completely overwhelmed and distraught he was about the death of his wife. Frankly, I suspected then that he had been wrongly arrested.
During the investigation of the crime that focused solely on Mallory at that point, Mallory told the officers to speak to Porch, his neighbor. After what appears to have been Porch’s simple denial of being present at Mallory’s apartment when his wife died, the police conducted no further follow up. Over a year later, police spoke to Porch again when they found unidentified male DNA at the crime scene. Then, Porch was interviewed a third time. THIS TIME, he admitted he had been in the apartment. He told the police that he and the victim were drinking together, and that they started kissing and fondling one another. He said Mallory showed up at the house and a fight broke out between Mallory and his wife. He essentially then said he saw Mallory murder his wife. Importantly, Porch made inconsistent statements. He told law enforcement he did so because he was scared he would be charged as an accomplice. During this last interview, an officer noticed that Porch was left-handed.
Mallory was tried twice for his wife’s death. At both trials, Porch testified consistently with his last statement to law enforcement. The first jury hung. Mallory then had a second trial—a bench trial—and was acquitted. After his acquittal, Mallory contacted RCSD and asked them to reopen his wife’s murder case. Another investigator, looking at the case, was bothered by Porch’s inconsistencies! After interviewing additional witnesses, this investigator secured a warrant for Porch’s arrest. By then, Porch had moved from SC to California. He was arrested in California, and taken to the Long Beach Police Department for questioning. Investigators from SC interviewed him there, and he admitted he stabbed the victim but claimed it was an accident.
Porch then stated in his FIFTH statement to police that Porch initiated intimate contact with the victim and that she attacked him with a knife. Then, Porch gave a SIXTH statement in Los Angeles that was recorded. Porch was then taken back to South Carolina for trial.
Prior to trial, Porch challenged the sufficiency of the evidence to support the issuance of the arrest warrant. He alleged that he investigator intentionally or recklessly omitted information from his arrest warrant. The court held a pretrial hearing, but declined to suppress. Porch also argued to exclude the recorded interrogation from California because an investigator from CA was unavailable to testify. Porch argued he was not able to cross-examine her because the California state court declined to enforce the South Carolina subpoena sent by the state.
In Franks v. Delaware, SCOTUS held that the Fourth and Fourteenth Amendments give a defendant the right in certain circumstances to challenge the veracity of a warrant affidavit after the warrant has been issued and executed. Entitlement to a Franks hearing is a matter of law subject to de novo review. United States v. Tate, 524 F.3d 449 (4th Cir. 2008). The Franks test applies in cases when officers include false information in a warrant affidavit and cases when officers omit potentially exculpatory information. State v. Missouri, 337 S.C. 548, 554, 524 S.E.2d 394, 397 (1999). Here, the South Carolina Court of Appeals found that Porch was not entitled to a Franks hearing, and clarified the proper standard South Carolina courts should follow in cases in which a defendant challenges the omission of evidence from an arrest warrant.
Hold on folks, because it’s a pretty high burden:
“To be entitled to a Franks hearing for an alleged omission, the challenger must make a preliminary showing that the information in question was omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge. Missouri at 554. There will be no Franks violation if the affidavit, including the omitted data, still contains sufficient information to establish probable cause. Id (emphasis in opinion).
The defendant has the burden of proving the officer acted with the requisite intent. State v. Gore, 408 S.C. 237, 244, 758 S.E.2d 717, 721 (Ct. App. 2014). A party doing so “bears a heavy burden of proof.” State v. Lynch, 412 S.C. 156, 179, 771 S.E.2d 346, 358 (Ct. App. 2015). The defendant must show that the omitted material was such that is inclusion would defeat probable cause. The mere fact that the affiant did not list every conceivable conclusion does not taint the validity of the affidavit. United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).
Here, Porch asserted that Franks required the trial court to take out any offending information from the arrest warrant, and then analyze the affidavit to determine if probable cause still existed to support the warrant. According to the Court, Porch conflates the test for inclusion of false information in the affidavit, and omission of potentially exculpatory information. In this case, the trial court needed to include the potentially exculpatory information to determine if probable cause existed.
At the pre-trial, hearing, the investigator who obtained the warrant admitted that he did not include:
- Information from an eye witness who testified she heard a “domestic argument” coming from apartment and saw black male running toward a white van,
- Information from a security guard at hospital Mallory took Victim to who testified he heard Mallory say, “Bitch bled all over my van, my walls, my Play station” and saw Mallory remove something from his van while it was at the hospital,
- Mallory had “plenty of time” to commit this murder;
- Porch’s statements regarding how his blood came to be at the scene of the crime;
- Information that Mallory had been tried twice for this crime and Porch testified for the State in both instances; and
- Information that the situation during the argument was “fluid” and the blood could have gotten on Victim’s shirt during her fight with Mallory.
The Court found that the content of these omissions alone was insufficient evidence to show that the investigator acted intentionally or with reckless disregard of whether the omissions would make the affidavit misleading.
As to Porch’s confrontation clause argument, the Court declined to address it based on procedural grounds.
The take away here is what those of us in working in this area have long known– that when law enforcement conducts even a wholly substandard investigation, it is very difficult to hold them accountable for it. Justin Mallory sued these same people for malicious prosecution based on their shoddy investigation. The case was kicked out of court.
Also, enjoy some Chicken Man art– Ernest Lee.