Editorial | Give Judges Docket Control

December 1, 2012 

Teenager Bilal Harris was arrested in April 2006, accused of murder in the beating death of a homeless man in Myrtle Beach. Denied bond, he spent more than the next three years in jail as his case slowly made its way to trial. Eventually, in July 2009, he was acquitted for lack of evidence and subsequently released.

Harris (who has since gotten into more legal trouble and been convicted of drug charges) lost three years of his life while waiting for a trial that ultimately determined he wasn’t culpable for the crime he was accused of. The effect of that long time behind bars during his formative years can’t be measured, but it cannot be ignored or written off. Contacted this week to talk about court scheduling issues such as this, former S.C. Appeals Court Judge Ralph King Anderson called such long delays “totally unacceptable.”

“These people who are in jail, they ought to be tried,” Anderson said.

Who was in charge of making sure Harris received the “speedy and public trial” that the Bill of Rights guarantees all citizens? The 15th Circuit Solicitor’s office, which was simultaneously trying – without success – to find evidence to prove him guilty.

Solicitors around the state have long been the people in control of the criminal court docket, a bizarre situation unique to South Carolina and unique to criminal cases. In civil cases, a judge maintains the trial schedule. Orrie West, chief public defender in Horry and Georgetown counties explained the problem this way. If a defendant asks for a speedy trial, she said, “the judge has to say to prosecutor, ‘When do you plan on doing this?’ The judge can’t say to the prosecutor, ‘I’m putting this on the calendar for next month.’”

Thankfully, the S.C. Supreme Court has now ruled that the practice is unconstitutional, a violation of the separation of powers that saw executive branch solicitors setting the calendar for the judicial branch. As a result, the Supreme Court set out new court rules, effective this coming February. Solicitors will no longer have sole control of the criminal docket, although they will maintain control of cases less than a year and a half old. After that, judges will take over and have the power to set hearing or trial dates and move languishing cases forward. Most cases that are still lingering after two and a half years will be subject to dismissal unless the solicitor can offer a good reason why a resolution has not been reached.

These are welcome changes.

Not only because they give prosecutors a strong incentive to move cases more quickly through the system. But also because they reduce the risk of other prosecutorial manipulation.

Allowing prosecutors control over the docket opened the door to a host of unwelcome possibilities for manipulating the system. These include “judge shopping,” or scheduling cases before a particular judge likely to rule one way or another; scheduling hearings at times inconvenient for defendants or witnesses to increase pressure for a plea deal; or refusing to schedule a case for long periods in the hope that defendants will plead guilty just to have some resolution.

Former University of South Carolina law professor Andrew Siegel laid out a host of concerns in an exhaustive 2005 paper, “When Prosecutors Control Criminal Court Dockets: Dispatches on History and Policy from a Land Time Forgot:

“The ramifications of this single structural feature are legion: Lawyers and witnesses often have little real notice as to when and whether cases will be called for trial. Incarcerated defendants who might otherwise exercise their right to a jury trial routinely plead guilty instead of waiting in jail until the solicitor deigns to bring their cases to a court’s attention. Illegally obtained evidence is rarely challenged, because no judge has the authority to entertain a motion to exclude such evidence (or to dismiss the case for lack of sufficient evidence) until the morning of trial. Clients free on bond must continuously rearrange their lives to make court appearances called by solicitors for no purpose other than to ascertain the defendant’s continuing availability.”

It’s important to note that the risk of misconduct is not the same as actual misconduct, and we have no evidence that our local prosecutors stooped to any of these tactics. Nevertheless, we cannot vouch for every case or every solicitor’s office in the state. Some of these shenanigans have likely occurred. Even the possibility or risk of such misconduct should be anathema to those working for justice. The justice system should do its utmost to reduce the possibility of any undue manipulation and should minimize any temptation to impropriety, unlikely as it may be.

Outgoing 15th Circuit Solicitor Greg Hembree said this week he’s very much against this change, worried that a new “monstrosity of bureaucracy” will simply weigh down the justice system. “I think they’re going to find that it’s not going to be any more fair,” Hembree said, “and a whole lot more steps in the process.”

What of the point that South Carolina is the only state left where prosecutors control the criminal docket? Could we be the only state that’s got it right? Hembree’s not concerned. “We may be the only that has it, but we’re also tremendously efficient. Maybe California needs to come study how South Carolina does it.”

Jimmy Richardson, the 15th Circuit’s deputy solicitor and the man expected to take over from Hembree as our top local prosecutor, said this week that practically he didn’t expect these changes to make much difference. Only a small percentage of the office’s cases, maybe 2 percent, he said, are old enough to be affected and the office already works well with defense teams on scheduling, he said.

“We have a great relationship with the local public defenders office,” Richardson said. “…We certainly, to our detriment, accommodate their schedules.” In fact, he said, in the near future he expects “they would hope that we’re running the docket again.”

West, the public defender, isn’t singing quite the same tune.

“They move quickly with the cases they want to move quickly with,” she said of the solicitor’s office. “Other cases they’ve got issues with and they hope the issues resolve themselves with time. And that’s not how the system should be set up.”

West is delighted with the change in docket control, calling it much more fair to defendants. “It’ll be more fair. I think any defense attorney you ask will say it’s more fair.”

“It’s not unfair now,” Hembree said Thursday. Hembree said most private lawyers and state judges would agree with him, though Anderson, the distinguished retired judge he suggested talking with, is very much in favor of this change, primarily to avoid long delays such as the one that affected Harris’ case. “I think the judge should really be the person or entity to control the criminal cases,” he said.

Hembree and Richardson point out that the vast majority of cases are resolved quickly and efficiently, and that’s true. Cases like Harris’ are largely outliers, and most suspects don’t spend years waiting for solicitors to schedule a trial. But it’s not exactly unusual either, especially in big cases and often when defendants have been denied bond, leaving them to wait behind bars.

Richard Gagnon, arrested on murder charges in April 2005 stemming from the deaths of a Nixonville couple, wasn’t tried until March 2008. Edwin Cornelius, charged in the stabbing of his girlfriend outside Carolina Forest High School, eventually made a plea deal in June 2008 after being arrested in May 2006. Billy Nathan Lee was arrested in February 2006 and charged in the shooting of his girlfriend in Atlantic Beach. He wasn’t tried and convicted until March 2008. Danny Sarvis of Aynor, arrested in February 2006 in the sexual assault of an 11-year-old, spent almost three years waiting for a trial before making a plea deal in December 2008. Three Myrtle Beach teenagers arrested in January 2011 on attempted murder and armed robbery charges are approaching their two-year anniversary in the local jail with no trial looming. And that’s just a few examples of many that have occurred in recent years.

Most of these defendants either eventually plead guilty or are found guilty in a trial, at which point they’re given credit in sentencing for the time they’ve already spent in jail. In other words, the extra time behind bars before their convictions just comes off the end of their prison sentence. But those found not guilty after such a wait, even though the cases may be rare, are robbed of years of their life because of the slow pace of justice. These are situations we ought to be working harder to avoid, and forcing prosecutors to move faster is a good step forward.

The fight over who’s in charge of the docket will likely end up in the legislature in the coming session. Hembree, who was just elected a state senator, said that he’s already been approached a couple of times about the court’s order and people are talking about it in the Statehouse hallways. The law may very well be tweaked and changed as the State Solicitors Association and the Public Defender Association fight over the details. That’s fine. But the court was right in its basic premise. Control of the docket schedule should be vested in the court, and while solicitors should have some input on when cases are ready for trial – just as defense attorneys should – they should not be able to hold those cases in limbo indefinitely.

Judge Anderson summed up the situation well:

“You leave people in jail for a year and a half and then they’re found innocent; isn’t that a tragedy?”

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