Attorney general’s opinion sought in Myrtle Beach man’s request for new trial in 18-year-old sexual assault

Formal letter sought on plea for new trial

dwren@thesunnews.comNovember 3, 2012 

— The judge in charge of determining whether Robert Carter gets another hearing in his quest for a new trial on an 18-year-old criminal sexual conduct charge has asked the S.C. Attorney General’s office to file a formal, written response to Carter’s latest request.

Judge Steven John – who recently denied Carter’s request for a second post-conviction relief hearing – has given the attorney general’s office until Friday to respond to Carter’s pro se motion asking John to reconsider his decision. Mark Powell, a spokesman for the attorney general’s office, said the agency has received John’s letter but declines to comment further.

Carter, of Myrtle Beach, has been seeking a new trial since his 1996 conviction and subsequent life sentence in a case where he and defense lawyers say a DNA sample that inexplicably disappeared from an evidence container might have been used to frame him for a sexual assault that occurred at an oceanfront hotel two years earlier. Carter has been incarcerated at the Lee Correctional Institution in Bishopville.

Robert Carter’s father, Burke Carter, said he is encouraged by John’s actions – “No judge has ever asked the attorney general to respond to anything we’ve done before,” he said – but remains cautious about his son’s prospects for a new trial.

“Every motion we’ve ever filed has just been swatted away without any review,” Burke Carter said. “This is better than just getting a blanket denial.”

The request for a written response by the attorney general’s office probably indicates that John wants documentation in place before making a final ruling rather than signaling his intention to grant a hearing, according to criminal defense experts.

“He’s taking that extra step, which he doesn’t have to do, by giving the other side an opportunity to be heard and making sure that everything is documented,” said William Monckton, a Myrtle Beach lawyer and board member with the South Carolina Association of Criminal Defense Lawyers. Monckton said most judges give pro se litigants – those who represent themselves – greater latitude than those represented by lawyers.

“They will bend over backward for a pro se litigant,” he said.

Joseph McCulloch – a Columbia lawyer and founder of the Palmetto Innocence Project, which works with the national Innocence Project to exonerate wrongfully convicted individuals in South Carolina – said John’s request indicates he is “taking a more cautious approach toward the issues raised in the pro se application,” but it’s difficult to tell whether that’s driven strictly by procedural issues and a desire to preserve the record in this case or an underlying feeling that Robert Carter’s issues are valid.

“We don’t know why the judge has sent the letter,” said McCulloch, whose group is not involved in Robert Carter’s case.

John’s two-sentence letter does not state why he wants the attorney general’s office to file a response.

Rauch Wise, a Greenwood lawyer and board member with the association, said the request of the attorney general’s office probably means John “wants to make sure all the issues are fairly evaluated” before making a final ruling.

“He’s going the extra mile to see if there is something that has been overlooked,” said Wise, who unsuccessfully filed an appeal for a new trial in Carter’s case with the S.C. Supreme Court in 2001.

Wise told The Sun News last month that he was surprised when the state Supreme Court turned down Robert Carter’s request.

“The evidence in this case is very questionable,” Wise said. “It doesn’t take a rocket scientist to see that something is very wrong.”

For example, Robert Carter’s saliva sample – taken under a court order after he was charged with the assault – disappeared at some point between the day it was taken at Grand Strand Regional Medical Center and when the evidence kit was delivered to the State Law Enforcement Division a week later. A SLED serologist testified at Robert Carter’s trial that she detected a “mixed stain” of semen and saliva – which matched Carter’s DNA – on a pillowcase retrieved from the crime scene. However, two other experts – including one from SLED – said they could only detect saliva on the pillowcase.

SLED spokesman Thom Berry said the agency will not comment on the case. Wise and others say they believe someone took Robert Carter’s saliva sample and placed it on the pillowcase to gain a conviction.

The missing saliva sample was a key issue in Robert Carter’s initial post-conviction relief hearing in 2005, but the state Attorney General’s office dismissed what it called a “conspiracy theory” in a proposed order the agency wrote denying a new trial. Judge John Breeden signed that order within hours of receiving it – and more than two years after the hearing had taken place.

Robert Carter based his request for a second post-conviction relief hearing on allegations that the attorney general’s office wrote a proposed order that misrepresented the testimony and evidence presented during his initial hearing. He also said his previous lawyer – Carla Grabert-Lowenstein – acted against his wishes by filing court documents that ultimately resulted in his second post-conviction relief hearing being denied.

Robert Carter said in his court filing that Grabert-Lowenstein “appeared to have an agenda and she moved quickly” to file documents before becoming informed enough to “properly present the merits of his position to this court.”

Grabert-Lowenstein said that she cannot discuss specifics of Robert Carter’s case, but consulted with him before filing anything with the court.

“I do disagree with that characterization” in Robert Carter’s request, she said.

Although post-conviction relief proceedings follow criminal convictions, the post-conviction relief process is a civil matter. That means decisions in post-conviction relief cases are based on a preponderance of the evidence rather than the stricter reasonable doubt threshold used in criminal cases.

If Robert Carter’s motion for reconsideration is denied, he could appeal John’s decision to the state Supreme Court or file a separate habeas corpus action in federal court. In that case, a federal judge would determine whether Robert Carter’s imprisonment on the state charges is lawful. Neither route has much promise of success, criminal defense experts say.

“When you do a post-conviction relief, that’s generally your last bite at the apple,” said Patrick McLaughlin, president of the South Carolina Association of Criminal Defense Lawyers.

Contact DAVID WREN at 626-0281.

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