Helping innocent people out of jail? Lawyers can’t agree if it should be an added duty
In theory, all attorneys agree on the message behind a new proposed rule.
Nobody wants a wrongfully convicted person sitting in jail.
But now South Carolina lawyers are bickering about the rule designed to help those wrongfully imprisoned.
Opponents say the rule is redundant and places an overbearing burden on prosecutors. Proponents say it’s the job of all lawyers to protect justice.
At its basic level, the proposal — called rule 3.8 for the South Carolina Bar of Professional Standards — requires solicitors to investigate and turn over information that has a “reasonable probability” a convicted person did not commit the offense. If solicitors don’t, they could face suspension or termination of their law license.
The S.C. Bar issues law licenses and investigates complaints against state lawyers.
“It seems almost silly that we would need to have that rule,” said Mt. Pleasant based attorney Sterling Chillico.
Members of the S.C. Bar’s governing group took up the proposal at its recent convention in Myrtle Beach. They tabled a vote on the measure after a short discussion over concerns. The proposal will head back to a committee for further tweaks before returning to the governing board.
The proposal is similar to those adopted in other states.
Some solicitors have pushed back against the proposal. Duffie Stone is the solicitor for the the Beaufort County region and president of the state’s Prosecution Commission. He said the rule is finding a solution to a problem that doesn’t exist.
“We’re all very serious about the ethical codes now,” Stone said.
Prosecutors have a duty to provide information, either before or after trial, that could show someone didn’t commit a crime, Stone said.
As the rule was debated, Stone said, prosecutor groups asked for a case in South Carolina history where a solicitor withheld information on someone being wrongfully convicted. No one could find an example.
There are also concerns about the rule as it requires solicitors to investigate any claims where someone says they are innocent, Stone said. That means anyone who pleaded guilty or was found guilty by a jury could claim innocence and it would need to be investigated. A solicitor’s office would have to undertake that process or demand law enforcement investigate. Stone said they currently don’t have the power to make those demands of law enforcement.
Horry County Solicitor Jimmy Richardson said he has four investigators for two counties, and if they are required to explore all the innocence claims, it would add hundreds of cases to their workload.
“That puts all the duty on the solicitor’s office,” Richardson said.
Current rules also prevent him or his office of talking directly to defendants, so that would be an issue in investigations they would have to conduct, Richardson said.
Horry County Solicitor Jimmy Richardson also agreed with Stone and said ethical guidelines mean “we’ve already got a duty.”
Area defense attorneys objected to the solicitors’ concerns.
Horry County-based attorney Amy Lawrence said everybody is human and makes mistakes, but there are prosecutors that do not want to help when people are wrongfully incarcerated.
“They know better, they ought to be doing better,” she said, “and that’s heartbreaking.”
Lawrence didn’t buy concerns over investigative costs, saying there are hundreds of ways to investigate, including asking the South Carolina Law Enforcement Division for help. She also disagreed with an assertion made by some that investigations could impact relationships between solicitors and police agencies.
Any concerns over price is essentially the government putting a price tag on a person’s freedom, Chillico said.
People are exonerated and released from jail across the country on a daily basis, Lawrence said. When the layers and egos are removed, Lawrence said, the debate comes down to the question about leaving innocent people in jail.
“We should all in unison say ‘no.’”
This story was originally published January 24, 2019 at 2:13 PM.
