Three years after his guilty plea, two years after he filed for Post-Conviction Relief (PCR), Michael finally had the hearing. He thought he would finally get the truth out. He expected his conviction to be reversed. It should have been. Here’s why that did not happen.
The problems began months earlier when, after three written requests, an attorney finally was assigned to represent Michael. Unfortunately, it was another inexperienced “kid” lawyer.
Tristan Shaffer, a solo practitioner, had to pile on as many PCR cases as he could get. Most (and possibly all) were assignments from judges. And that is a problem for a “kid” lawyer with little experience, not even as a law clerk for a law firm while at school. He did not have referral sources. He did not have a reputation in the legal community. His income depended on judges’ referrals. He dare not piss off a judge.
The state pays appointed lawyers $40/hour for out-of-court work, $60/hour for court hearings. That meant Tristan needed as many assigned cases as he could get, just to survive day-to-day. It meant he could not afford a receptionist, a paralegal, not even voice mail. His answering machine often was full (probably messages from clients like Michael, who kept calling and calling because they did not get a return call). And it meant he had little time to read the pleadings Michael filed, little time to digest all the case law that was new to him, little time to think about it, no time to do independent research.
It is likely he hated this case, that he wished he had a more typical PCR where the client was caught red-handed. For those cases, he did not need to do much work. And it would not prick his conscience if his client lost.
And so, on the day of the hearing, Shaffer was not prepared. He did not remember case law and statutes that needed to be cited. Michael flipped through pages of the pleadings, pointed out things, showed Tristan Shaffer what he had to say.
Shaffer did not subpoena any defense witnesses. He did even notify them about the hearing–and they would have come without a subpoena.
He did not subpoena the police officer, John Specht–the one who drove his red car to North Carolina, kidnapped Michael, confiscated his possessions and his grandmother’s computer, etc. Thus, no one ever challenged Specht with the question, “Under what authority did you cross into North Carolina to arrest someone who was not a fugitive?”
The prosecutor had two witnesses–two former public defenders who did not look at the file, who wanted Michael to plead guilty so that they could get the case closed. Tonya Copeland Little testified against Michael, coloring the facts to make it appear she did her job.
Tonya Copeland Little breached the professional Code by testifying against Michael. She was not a defendant. Swilley was the only named defendant in Michael’s petition.
After it was over, Tristan Shaffer said they could expect the judge’s ruling in two months. The judge, Thomas A. Russo, was not appointed to the Darlington court. He’s at at-large judge, like a floater in a secretarial pool. He goes to a court when summoned and wields his power in various locales.
This time he turned over his power to the prosecutor. And signed without reading anything.
NEXT: The RESULTS: Order of Dismissal, Michael’s reply, Prosecutor’s Reply, Michael’s Opposition.